Study Notes on International Human Rights Law

INTERNATIONAL HUMAN RIGHTS LAW

1.1 Nature and Definition of Human Rights

  • Definition: Human rights are a special type of inalienable moral entitlement.

    • Attach to all persons equally, by virtue of their humanity, irrespective of race, nationality, or social group membership.

    • Belong to an individual as a consequence of being human.

  • Historical Context: The term gained prominence after World War II, replacing "natural rights" which were linked to the Greco-Roman natural law tradition from the Middle Ages to the 20th century.

  • Current Understanding: Human rights encompass a variety of values and capabilities reflecting the diversity of human circumstances and history.

1.1.a Universality

  • Concept: Conceived as universal, applying to all human beings everywhere.

    • Controversial because it refers to fundamental human needs.

    • Based on belief that every human is entitled to rights without discrimination.

  • Key Characteristics of Human Rights:

    1. Inherent: Own human characteristics, not subject to purchase or grant.

    2. Inalienable: Cannot be surrendered except under legally defined circumstances.

    3. Equally Applicable: Universal across all individuals.

1.1.b Duties Derived from Human Rights

  • Primarily rest on states and their authorities, not individuals.

    • Rule of Law: Human rights must be protected by law.

    • Adjudication: Disputes should be settled in a competent, impartial, independent tribunal, ensuring full equality and fairness in procedures.

  • State Power Concerns: Human rights originated to protect individuals from arbitrary state power.

    • Focus on rights obliging governments to refrain from certain actions, known as fundamental freedoms.

    • Essential for leading a dignified life and as a guide for legislation.

  • Implications for Relationships:

    • Between individuals and the state (vertical effect).

    • Among individuals (horizontal effect), indicating a government's duty to protect individuals from the infringement of rights by others.

1.2 Historical Development of Human Rights

a. Pre-World War II Developments

  • Origins: Found in Greek philosophy and world religions.

  • 18th Century Enlightenment: Introduced the concept of human rights as inalienable rights for individuals against government power.

  • Initial Charters:

    1. Magna Carta (1215): early rights codification.

    2. English Bill of Rights (1689): specified rights to be claimed in certain contexts.

  • Evolution of Liberty Concept: From privilege based on status to a universal right.

    • Contributions from Spanish theologians (e.g., Vitoria, Las Casas) advocating for indigenous rights.

b. Post-World War II Developments

  • WWII Impact: Shift in view of state sovereignty regarding citizen treatment.

  • United Nations Charter (1945): Integral in embedding human rights into international law, obligating all member states to uphold these rights.

  • Universal Declaration of Human Rights (UDHR):

    • Drafted by the UN Commission on Human Rights (1946), adopted by UN General Assembly in Paris (December 10, 1948), celebrated as Human Rights Day.

    • Continues to inspire treaties and conventions.

2. Theories of Human Rights

Overview

  • Legal Justifications: Various theories explain the origins, justification, and applicability of human rights, noting the lack of universal consensus.

Natural Law Theory

  • Core Idea: Rights are inherent, arising from a moral order or divine authority.

  • Key Thinkers: John Locke, Thomas Aquinas, Hugo Grotius.

  • Features:

    • Universal and inalienable rights linked to moral/religious principles; foundational to constitutional and international human rights law.

Positivist Theory

  • Core Idea: Rights are derived from laws, treaties, or constitutions.

  • Key Thinkers: Jeremy Bentham, John Austin, Hans Kelsen.

  • Main Features:

    • Legal constructs that emphasize state authority.

    • Law takes precedence over morality.

Social Contract Theory

  • Core Idea: Rights result from a contract between individuals and the state.

  • Key Thinkers: Thomas Hobbes, John Locke, Jean-Jacques Rousseau.

  • Main Features:

    • Individuals sacrifice certain freedoms for security; governments gain legitimacy from protecting rights.

Utilitarianism

  • Core Idea: Rights should optimize happiness for the majority.

  • Key Thinkers: Jeremy Bentham, John Stuart Mill.

  • Main Features:

    • Rights are not absolute and can be limited for societal good.

Marxist Theory

  • Core Idea: Rights shaped by class struggle and economic systems.

  • Key Thinkers: Karl Marx, Friedrich Engels.

  • Main Features:

    • Rights reflect the interests of the dominant economic class.

Critical Legal Studies & Feminist Legal Theory

  • Core Idea: Law reinforces power structures.

  • Key Thinkers: Duncan Kennedy (CLS), Catharine MacKinnon (Feminism).

  • Main Features:

    • Calls for a gender-sensitive approach to law.

Universalism vs. Cultural Relativism

  • Universalism: Rights apply universally regardless of culture (e.g., UDHR, international courts).

  • Cultural Relativism: Rights interpretation must consider cultural and social contexts (e.g., practices in indigenous traditions).

3. Classification of Human Rights

Overview

  • Human Rights Spectrum: Ranges from the right to life to cultural identity, reflecting basic preconditions for dignity.

  • Classification Categories:

    • Civil and Political Rights

    • Economic, Social, and Cultural Rights

  • Universality Statement: All human rights are universal, indivisible, and interrelated (Vienna Declaration 1993).

Classic and Social Rights

  • Classic Rights: Require non-intervention by the state (negative obligations).

    • Examples: Right to life, freedom from torture.

  • Social Rights: Invite affirmative state action (positive obligations).

    • Examples: Right to education, health care.

Civil, Political, Economic, Social, and Cultural Rights

  • Civil Rights: Include rights to personal security and freedom from arbitrary detention (e.g., articles in the UDHR).

  • Political Rights: Encompass rights related to governance (e.g., voting rights).

  • Economic Rights: Rights to work, fair wages, and favorable labor conditions.

  • Social Rights: Entitlements providing for living standards (e.g., health, education).

  • Cultural Rights: Participation in cultural life (e.g., scientific advancement).

Non-Derogable Rights

  • Rights that cannot be suspended under any circumstances (e.g., freedom from torture, right to life).

4. Sources of Human Rights Law

Overview

  • Types of Sources:

    • Treaties

    • Customary International Law

    • General Principles of Law

  • Characteristics:

    • International law lacks a single enforcing body, relying on state consent and self-enforcement.

    • Non-compliance addressed through individual or collective actions by other states.

4.a International Conventions

  • Definitions: Legally binding treaties imposing obligations on states.

  • Titles and Types: Consist of covenants, conventions, and protocols regarding human rights.

4.b International Custom

  • Definition: General practice accepted as law, binding unless states object during formation.

  • Features: May lead to universal jurisdiction under certain conditions.

4.c General Principles of Law

  • Role of Principles: Guiding principles in both national and international law; critical for human rights case law.

5. Treaties and Binding Agreements

Overview

  • Treaties: Formal agreements between states that define and set legally binding rights and obligations.

    • Process Includes: Signature, ratification, and potential reservations.

Key Features

  • Exclusively written; may be bilateral or multilateral.

  • States must follow their national procedures to ratify treaties.

5.a Consent and Ratification

  • Defines how states express commitment to treaties, including clauses related to entry into force.

5.b Reservations

  • Allow states to exclude or modify treaty provisions in their application, subject to certain conditions and acceptance by other states.

5.c Derogations

  • States may derogate from obligations temporarily during emergencies, with strict criteria ensuring non-abuse.

Conclusion

  • Human rights laws govern the behavior of states concerning individual rights. Understanding the intricate structures, definitions, historical contexts, and various theories surrounding these laws is crucial for effectively advocating and upholding human rights.