Comprehensive Notes on International Human Rights Law

History and Foundations of International Human Rights Law

Modern Origins and Historical Roots:
- While the current modern system of human rights emerged primarily following World War II, the roots of international human rights extend back several centuries.
- Significant historical instruments include:
  - The Magna Carta ( $1215$ ): One of the first instruments to recognize human rights to a certain extent.
  - The English Bill of Rights ( $1689$ ).
  - The French Revolution: Led to the Declaration of the Rights of Man and of the Citizen ( $1789$ ), which famously declared that men are born and remain free and equal in rights.
- Historical Limitations: These early instruments typically only recognized a small handful of rights and were restricted to a narrow set of individuals, specifically property-owning men.
The Enlightenment Period ( $17^{th}$ and $18^{th}$ Centuries):
- John Locke: Articulated that human beings possess rights to life, liberty, and property (estate) in a "pre-political state of nature." These natural rights serve as a limit on the legitimate authority a state can exercise over individuals. This philosophy heavily influenced the American Revolution and the Declaration of Independence ( $1776$ ).
- Immanuel Kant: Focused on the inherent dignity of all human beings. A central concept from Kant is that humans should not be used as a means to an end; rather, human beings are ends in themselves. This idea remains a foundation for modern human rights thinking.
$19^{th}$ and Early $20^{th}$ Century Developments:
- The international human rights project began tentatively by focusing on specific issues.
- Abolition of Slavery: Recognized as one of the earliest international human rights developments. It was abolished in Britain in $1807$ , followed by other European nations. The Slavery Convention ( $1926$ ) eventually led to the large-scale elimination of chattel slavery.
- Trafficking: Early $20^{th}$ -century efforts sought to combat the trafficking of women for prostitution. However, these efforts did not initially aim for broad women's rights or equality.
The Impact of World War II:
- The modern system is a direct response to Nazi Germany's systematic oppression and extermination of its own citizens, including Jewish people, Roma people, homosexuals, individuals with disabilities, and political opponents.
- Legal Gap: At the time, International Humanitarian Law governed the treatment of foreign nationals in conflict but did not regulate how a state treated its own civilians.
- The exposure of extermination and concentration camps after the war convinced the international community that atrocities must not occur with impunity, leading to a transformation in international law.

The United Nations International Human Rights Framework

The United Nations Charter:
- While Article $2$ of the Charter emphasizes sovereign equality and state integrity, human rights were established as one of the three pillars of the UN, alongside Peace and Security and Development.
- Reference to Human Rights: The inclusion of human rights in the Charter was driven by intense lobbying from civil society and NGOs (particularly those in the US). The argument was that domestic brutality (as seen in Nazi Germany) and international aggression are interconnected.
- Article $1$ , Paragraph $3$ : States that a primary goal is achieving international cooperation in promoting respect for human rights and fundamental freedoms without distinction to race, sex, language, or religion.
- Article $55$ : Requires the UN to promote universal respect and observance of human rights.
- Article $56$ : Imposes an obligation on member states to take action to achieve the goals set out in Article $55$ .

The International Bill of Rights

The International Bill of Rights consists of three primary instruments:
- The Universal Declaration of Human Rights (UDHR): Adopted in December $1948$ . It was the first comprehensive international statement of human rights. It was adopted by roughly one-quarter of the UN membership at that time.
- The International Covenant on Civil and Political Rights (ICCPR).
- The International Covenant on Economic, Social, and Cultural Rights (ICESCR).
Key Principles of the UDHR:
- Article $2$ : Asserts that rights are possessed by virtue of being human.
- Dignity: Reflective of Kantian philosophy, dignity is the underpinning motivation.
- Rights Included: Right to life, liberty, security, prohibition of torture, privacy, peaceful assembly, education, and work.
- Legal Status: As a General Assembly declaration, it is not legally binding (it is a recommendation), but it served as the blueprint for subsequent binding law.
Cold War Bifurcation:
- Initial plans for a single treaty were delayed for two decades by Cold War politics. The rights were split into two treaties in $1966$ to reflect competing ideologies:
  - ICCPR: Reflects Western emphasis on individual freedoms and protection from state interference.
  - ICESCR: Reflects the Eastern Bloc emphasis on state-guaranteed access to goods and services.
- Ratification Variations: While many states (like Australia) are party to both, others align with one ideology. The United States has not ratified the ICESCR, and China has not ratified the ICCPR.

Core International Human Rights Treaties

Beyond the International Bill of Rights, there are nine core UN human rights treaties:
1. International Covenant on Civil and Political Rights (ICCPR).
2. International Covenant on Economic, Social, and Cultural Rights (ICESCR).
3. Convention on the Elimination of All Forms of Racial Discrimination (CERD).
4. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
5. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
6. Convention on the Rights of the Child (CRC).
7. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
8. International Convention for the Protection of All Persons from Enforced Disappearance.
9. Convention on the Rights of Persons with Disabilities (CRPD).
Sources of Law:
- Treaty Law: Obligations are binding on states that ratify the specific instruments.
- Customary International Law: Certain rights bind all states regardless of ratification (e.g., prohibition of torture, genocide, and racial discrimination).
- Jus Cogens: Peremptory norms like the prohibition of torture from which no derogation is permitted, regardless of treaty status.

Generations and Categories of Rights

First Generation (Civil and Political Rights):
- Focus on fundamental freedoms and protection from state interference (negative obligations).
- Associated with liberal democracies and the rule of law.
- Examples: Right to life, freedom from torture, freedom of expression, fair trial.
- Positive Obligations: Also requires state action, such as training police or establishing court systems.
Second Generation (Economic, Social, and Cultural Rights):
- Requires positive state action to ensure access to goods and services.
- Examples: Right to education, health, adequate standard of living, work.
- Implementation: Unlike the ICCPR (which requires immediate respect), the ICESCR allows for "progressive realization" based on the available resources of the state.
Third Generation (Collective Rights):
- Newer, often contested rights exercisable by groups rather than just individuals.
- Reflect post-colonial experiences and priorities of developing nations.
- Examples: Right to self-determination (recognized), right to development, right to a healthy environment.

Universalism versus Cultural Relativism

Universalism: The view that human rights apply to all humans everywhere regardless of nationality, race, or gender. Basic rights (life, freedom from torture) are not dependent on culture. Universalists argue that relativism often masks the oppression of women and minorities.
Cultural Relativism: Argues that rights must be interpreted through a cultural lens as different societies have different values. This view posits that Western individualism is a form of cultural imperialism and that rights law is ethnocentric.
International Law Stance: Clearly rejects cultural justifications for violations of fundamental rights but allows flexibility in the methods used to implement rights.

Nature of Obligations and Jurisdiction

Indivisibility and Interdependence: Rights are interconnected and of equal status; they cannot be ranked in a hierarchy. Denying one right often impacts others.
Duty Bearers: The state is the primary duty bearer.
- Vertical Obligations: Duties owed by the state to individuals within its jurisdiction.
- Horizontal Obligations: Duties of the state to protect individuals from violations by private actors (e.g., preventing discrimination in housing or work by private entities).
Jurisdiction:
- Rights apply to people within a state's territory and those subject to its jurisdiction (nationals and non-nationals alike, including visitors and stateless persons).
- Extraterritorial Application: Confirmed in the Wall Advisory Opinion ( $2004$ ) and the Armed Activities Case (Congo v. Uganda). States cannot escape obligations when exercising jurisdiction outside their territory, such as during military occupation.

Scope, Restrictions, and Derogations

Absolute vs. Limited Rights:
- Absolute Rights: These cannot be restricted or balanced against other aims (e.g., prohibition of torture and slavery). These are often Jus Cogens norms.
- Limited Rights: Most rights can be restricted in specific situations provided they meet certain criteria.
Derogations under ICCPR Article $4$ :
- Allowed in times of public emergency threatening the life of the nation.
- Some rights remain non-derogable even in emergencies (Article $4(2)$ , including right to life and freedom from torture).
- Criteria: Derogations must be necessary and proportionate. This was explored in Aksoy v. Turkey, where the European Court of Human Rights found long-term incommunicado detention of a PKK member was not necessary or proportionate.
- Notification: States must notify other parties via the UN Secretary-General, explaining the provisions being derogated and the reasons why.

International Monitoring Mechanisms within the UN

The Human Rights Council (HRC):
- Established in $2006$ to replace the Commission on Human Rights (considered too politicized).
- Consists of $47$ member states with geographical distribution ( $13$ African, $13$ Asian, $6$ Eastern European, $8$ Latin American/Caribbean, $17$ Western Europe/Others).
- Suspension: Possible for gross violations (e.g., Russia was suspended).
Working Methods of the HRC:
- Regular Sessions: Meets at least $3$ times a year to adopt resolutions on general or country-specific issues.
- Special Sessions: Convened for urgent, escalating situations (requires $1/3$ vote of members).
- Universal Periodic Review (UPR): Every $4.5$ years, the record of every UN member state is scrutinized. It looks at the UN Charter, UDHR, and voluntary commitments (not just treaty compliance). States can "accept" or "note" recommendations.
- Special Procedures: System of independent experts (Special Rapporteurs) who hold thematic ( $46$ ) or country-specific ( $14$ ) mandates. They conduct visits, receive complaints, and issue reports. Professor Suriya Deva (Macquarie University) is currently the Special Rapporteur for the Right to Development ( $2023$ ).

The UN Human Rights Treaty Body System

The Committees:
- Ten committees exist (e.g., Human Rights Committee for the ICCPR, Committee Against Torture).
- Composed of $10$ to $25$ independent experts (not government representatives) serving $4$ -year terms.
Functions:
- State Reporting: States must submit initial and follow-up reports (every $2$ to $5$ years). Committees issue "Concluding Observations" with concerns and recommendations.
- General Comments: Authoritative interpretations of treaty provisions.
- Individual Complaints: Allow individuals to claim violations by their state if the state has signed the relevant optional protocol or declaration.
- Interstate Complaints: Very rare; only occurred $3$ times, all under the CERD.
Legal Weight of Decisions:
- While not technically binding, they carry significant weight.
- Ahmadou Sadio Diallo Case ( $2010$ ): The ICJ stated it should ascribe "great weight" to these interpretations for the sake of consistency and legal security.
- Departure from Views: The ICJ is not strictly bound and may depart from treaty body views, as seen in Qatar v. UAE ( $2021$ ) regarding racial discrimination interpretations.