topic 8

International Human Rights Law

Definition of Fundamental Human Rights

  • Fundamental human rights are inherent to all human beings, regardless of nationality, race, religion, gender, sexual orientation, or any other status. These rights are universal, inalienable, indivisible, interdependent, and interrelated.

  • These rights are considered universal, meaning they apply to everyone, everywhere, and at all times. They are inalienable, meaning they cannot be taken away or given up. They are indivisible and interdependent, indicating that one right cannot be fully realized without the realization of others. The recognition of these rights reflects a commitment to upholding the dignity and worth of every individual.

  • Characteristics:

    • Reflect the minimum standard of human dignity, ensuring that all individuals are treated with respect and worth.

    • Must be respected by all states, regardless of their political, economic, or social systems.

    • Cannot be arbitrarily taken away or limited (with few exceptions, such as during a declared state of emergency under specific conditions and limitations).

    • Often enjoy heightened legal protection (e.g., non-derogability in emergencies), ensuring that certain fundamental rights, such as the right to life and freedom from torture, cannot be suspended even during times of crisis.

  • Examples of Fundamental Human Rights:

    • Right to Life: Every human being has the inherent right to life, and states must take measures to protect this right.

    • Freedom from Torture and Inhuman Treatment: Prohibition of torture and cruel, inhuman, or degrading treatment or punishment.

    • Freedom of Thought, Conscience, and Religion: The right to hold and express beliefs, whether religious or non-religious, without coercion or discrimination.

    • Freedom of Opinion and Expression: The right to seek, receive, and impart information and ideas through any media and regardless of frontiers.

    • Right to Equality and Non-Discrimination: Ensuring that all individuals are equal before the law and are protected against discrimination on any grounds.

    • Right to an Effective Remedy: Access to legal remedies to address human rights violations.

Sources of International Human Rights Law
International Bill of Human Rights

  • Universal Declaration of Human Rights (UDHR): Adopted by the UN in 1948, it is not a treaty but provided the foundation for subsequent treaties, setting out a common standard of achievement for all peoples and all nations.

  • Genocide Convention: Adopted in 1948, it criminalizes genocide and obligates states to prevent and punish it.

  • International Covenants:

    • International Covenant on Civil and Political Rights (ICCPR): Covers individual rights such as the right to life, freedom of expression, and the right to a fair trial. It has a monitoring mechanism (Human Rights Committee), which reviews state reports and hears individual complaints.

    • International Covenant on Economic, Social and Cultural Rights (ICESCR): Concerned with collective rights such as the right to education, the right to health, and the right to an adequate standard of living. It requires positive action by the State, making implementation more challenging and subject to progressive realization.

    • Together with the UDHR, these two covenants form the International Bill of Human Rights, forming the core of the international human rights system.

UN General Assembly Bodies

  • Key bodies involved in drafting human rights treaties:

    • ECOSOC (Economic and Social Council) and its subsidiary, the Human Rights Council (HRC). The HRC is responsible for strengthening the promotion and protection of human rights around the globe and for addressing situations of human rights violations and make recommendations on them.

    • The Third Committee, which deals with social, humanitarian affairs and human rights issues.

    • The Sixth Committee, which primarily considers legal matters.

Universal Human Rights Treaties

  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979):

    • It defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.

  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984):

    • It requires states to take effective measures to prevent torture within their jurisdiction and prohibits the expulsion, return, or extradition of a person to another state where there are substantial grounds for believing that they would be in danger of being subjected to torture.

  • Convention on the Rights of the Child (1989) - Stemming from the ICESCR

    • It sets out the civil, political, economic, social, health, and cultural rights of children.

  • Convention on the Rights of Persons with Disabilities (2006):

    • It aims to promote, protect, and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Thematic Treaties on Specific Groups and Issues

  • Protection of specific groups:

    • 1951 Convention on the Status of Refugees

    • 1954 Convention on the Status of Stateless Persons

    • 1952 Convention on the Political Rights of Women

    • 1989 Convention on the Rights of the Child

    • 2000 Optional Protocol on the Involvement of Children in Armed Conflicts

    • 2000 Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography

    • 1990 Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

  • Prohibition of inhumane treatment and human rights violations:

    • 1926 Slavery Convention and 1953 Protocol

    • 1930 Convention on Forced Labour

    • 1948 Convention on the Prevention and Punishment of the Crime of Genocide

    • 1949 Convention on Trafficking and Exploitation of Prostitution

    • 1956 Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions Similar to Slavery

    • 1957 Convention on the Abolition of Forced Labour

    • 1958 Convention on Discrimination in Employment and Occupation

    • 1960 Convention Against Discrimination in Education

    • 1965 Convention on the Elimination of All Forms of Racial Discrimination

    • 1973 Convention on the Suppression and Punishment of the Crime of Apartheid

    • 1979 Convention on the Elimination of All Forms of Discrimination Against Women

    • 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Regional Human Rights Treaties

  • General Regional Treaties:

    • 1950 European Convention on Human Rights

    • 1969 American Convention on Human Rights

    • 1995 CIS Convention on Human Rights and Fundamental Freedoms

  • Specialized Regional Treaties:

    • 1993 CIS Agreement on Aid to Refugees and Forced Migrants

    • 1994 CIS Convention on Ensuring the Rights of Persons Belonging to National Minorities (not in force for Russia as of September 2008)

    • 1995 Council of Europe Framework Convention for the Protection of National Minorities

Soft Law

  • Soft law instruments influence the formation of international human rights norms by providing guidance and frameworks that states can adopt voluntarily. Although they are not legally binding, these declarations and resolutions can evolve into customary international law or be incorporated into legally binding treaties over time.

  • Examples:

    • 1963 Declaration on the Elimination of All Forms of Racial Discrimination

    • 1967 Declaration on the Elimination of Discrimination Against Women

    • 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief

    • 1998 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms

Monitoring Implementation

  • Most human rights treaties establish committees of independent experts to monitor implementation. These committees review state reports, conduct inquiries, and issue recommendations to ensure states comply with their obligations under the treaties.

  • Examples:

    • Human Rights Committee (1966 ICCPR)

    • Committee on Economic, Social and Cultural Rights (1966 ICESCR)

    • Committee on the Elimination of Racial Discrimination (1965 CERD)

    • Committee on the Elimination of Discrimination Against Women (1979 CEDAW)

    • Committee Against Torture (1984 CAT)

    • Committee on the Rights of the Child (1989 CRC)

    • Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990 CMW)

International Labour Organization (ILO)

  • Since 1919, the ILO has produced conventions to improve labor standards, addressing issues such as working hours, wages, and workplace safety. These conventions are legally binding on member states that ratify them.

  • In 1946, it became a UN specialized agency, solidifying its role in promoting social justice and decent work.

  • Unique structure with equal representation of governments, employers, and workers, ensuring that labor standards are developed through a tripartite process that reflects the interests of all stakeholders.

Classification and Generations of Human Rights

  • Principle of respect for human rights is enshrined in the 1975 Conference on Security and Co-operation in Europe Final Act, also known as the Helsinki Accords, which emphasized the importance of human rights as a cornerstone of peace and security in Europe.

  • Doctrine distinguishes three generations of human rights:

First Generation: Civil and Political Rights

  • Rights of immediate effect, meaning they are immediately enforceable upon ratification of the relevant treaties.

  • Individuals can demand state respect for these rights through legal and political mechanisms.

  • Effective protection mechanisms exist at the international level, including monitoring bodies and judicial mechanisms.

  • Characteristics:

    • Civil rights protect life and personal liberty (e.g., right to life, liberty, security, privacy, property ownership, freedom of thought, religion, movement). These rights are essential for individual autonomy and dignity.

    • Political rights allow participation in governmental activities (e.g., right to vote and be elected). These rights enable individuals to participate in the political process and hold their governments accountable.

  • Examples Covered in the International Covenant on Civil and Political Rights:

    • Right to life, personal liberty, and security (Article 3)

    • Freedom from slavery (Article 4)

    • Prohibition against torture and inhuman treatment (Article 5)

    • Equality before the law and equal protection (Article 7)

    • Remedy before national tribunals (Article 8)

    • Freedom from arrest, which is arbitrary in nature (Article 9)

    • Right to a fair trial and public hearing by an impartial tribunal (Article 10)

    • Freedom from ex-post-facto laws (Article 11)

    • Right to privacy (Article 12)

    • Right to nationality (Article 15)

    • Right to own property (Article 17)

    • Right to freedom of religion and conscience (Article 18)

    • Freedom of expression (Article 19)

    • Freedom to conduct a peaceful assembly (Article 20)

    • Take part in government activities (Article 21)

Second Generation: Social, Economic and Cultural Rights

  • Programmatic in nature, requiring states to adopt policies and programs to progressively realize these rights.

  • Imply obligations on states to perform social functions and establish regulations to ensure the enjoyment of these rights.

  • Fundamentally economic, social, and cultural, addressing issues such as poverty, inequality, and access to education and healthcare.

  • Positive rights requiring state policies and provisions for implementation, meaning states must take active steps to ensure these rights are realized.

  • Guarantee equal conditions and treatment in areas such as employment, education, and healthcare.

  • Rights:

    • Right to social security (Article 22)

    • Right to work and choice of employment (Article 23)

    • Right to rest (Article 24)

    • Right to standard living and health (Article 25)

    • Right to education (Article 26)

    • Freedom to participate in cultural life (Article 27)

    • Right to social and international order (Article 28)

  • Covered by the Universal Declaration of Human Rights (Articles 22-28) and the International Covenant on Economic, Social, and Cultural Rights.

Third Generation: Collective Rights

  • Collective in nature; addressed to communities of people, recognizing the rights of groups to self-determination, development, and a healthy environment.

  • Not currently codified, but enshrined in General Assembly resolutions and some international treaties