1. What are human rights? Flashcards
When was the Universal Declaration of Human Rights adopted? By whom? What did it contain? Was it binding?
The UDHR was adopted in 1948 by the General Assembly with 48 votes, 8 abstentions. It lists the full catalogue of human rights (civil, political, economic, cultural and social) in the form of 30 Articles which are non binding.
What are the reasons why the UDHR was implemented through 2 seperate covenants - civil, political and economic, cultural, social?
The two covenants were created because the two types of rights required different approaches, regimes and legal techniques. Civil and political rights were seen as less subjective and therefore more able to be immediately implemented with independent experts providing an impartial view. Economic, cultural and social rights were seen as more reflective of policy goals than rights, their implementation required further development of the legislation alongside progressive implementation and as such they were more subjective by nature, which could lead to experts second guessing domestic authorities.
Could the UDHR be regarded as a source of international law?
The UDHR is reflective of both customary international law and general principles of law, which are both sources of international law. The primary sources of international law include treaties, international custom and general principles of law. Even if it could be argued that some human rights do not constitute customary international law, it is however likely that they are general principles of law. This is because the UDHR was based on provisions contained in most liberal constitutions and has been replicated through a large number of domestic constitutions.
What are some of the differences between civil and political rights and economic, cultural and social rights? What are 3 of their common characteristics?
Civil and political rights are considered to be justiciable and enforceable by nature unlike economic and social rights which are more akin to policy goals eg. the right to housing and food. Economic and social rights also take more time to implement and require a different level of financial investment, international cooperation and legislative reform. The 3 common characteristics are that these rights are interdependent, indivisible and of equal importance.
Name some of the 9 core human rights treaties. How many international human rights treaties are there?
International Convention on the Elimination of all Forms of Racial Discrimination (1965), Convention on the Elimination of all forms of Discrimination Against Women (1979), The Convention Against Torture and Inhuman or Degrading Treatment (1984) The Convention on the Rights of the Child (1989), The Convention on the Rights of Persons with Disabilities (2008), The Protection of All Persons with Enforced Disappearance (2010), The International Convention on the Rights of All Migrant Workers (2003). There are 18 international human rights treaties.
What are the arguments that support the statement that the human rights contained in the UDHR, as codified by the human rights treaties adopted by the General Assembly, are part of international customary law?
International Customary Law is binding even to those States that have not formally expressed consent. International Customary Law consists of ‘rules defined by general practice’ which is in turn defined by two elements: an objective element that determines whether a practice is widespread and representative and a more subjective element that determines whether there is a belief that the practice is obligatory emerging from a belief that it reflects a rule of law.
The UDHR has often been mentioned in UN resolutions which, while non binding, contain a large number of State signatories providing evidence of opinion juris; The UDHR embodies important values that form the basis of the international legal order; violations of the UDHR has on occasion created protests from States; while States do violate human rights, they often deny or obfusgate their actions and/or do not debate the validity of the right, both of which could be said to be an implicit acceptance of a rule.
What is the governance mechanism for the core human rights treaties?
All treaties have Committees who can receive reports from States and individual complaints/communications regarding alleged violations. These Committees adopt authoritative statements in the form of general comments or general recommendations defining their understanding of the requirements of the treaties they are governing. The Committees collaborate and influence each other to ensure human rights law is implemented in a consistent manner. (Note that initially the International Convention of Economic, Social and Cultural Rights did not have a body of experts governing it as this was seen as inappropriate. This changed however in 1985 with the birth of the Committee on Economic, Social and Cultural Rights.)
How has jus commune in the field of human rights law developed and what are some of its distinctive characteristics and complexities?
Jus Commune refers to common law. Human Rights Treaties were a) developed based on the UDHR, often borrowing its terminology. These principles are also b) enshrined in international and domestic law as well as c) in the practice of NGOs who use comparative law to guide their recommendations and policies. Since the 1980s, fundamental shifts have occurred in the development of jus commune resulting in a shift from literal interpretation and a focus on the original intent of the authors, to d) a focus on contextual factors to enable the judge to apply the same doctrine to changing contexts. This is referred to as the ‘living instrument doctrine’, meaning the convention is interpreted in the context of present day conditions. The second key shift is that human rights bodies, rather than focusing exclusively on interpreting the treaty or legislative instrument to which they have been tasked, e) increasingly refer to each others juris prudence ie. case law; whereas before they were working in isolation from each other, today they are all participating together in the shaping of a common human rights law. This results in an ‘autonomisation’ of human rights law, occurring as a result of the conversation between judicial and non-judicial bodies, resulting in f) the State consent becoming less of a determinant. There is therefore a new logic being developed that represents a hybrid between domestic and international law.
This cross-referencing can make it difficult to predict what the Courts will do and carries with it a risk of ‘cherry picking’ the instruments that they regard as authoritative and contextually relevant.
What is the ‘special nature’ of international human rights law treaties as opposed to other international law treaties?
International law reflects obligations that have been agreed upon between States in the States interests. The special nature of human rights treaties stems from the fact that they are concluded in the interest of the persons under the jurisdiction of the contracting States and not in the mutual interest of the State.
Do international human rights obligations have a jus cogens status?
Some or all human rights norms may be considered to have a jus cogens status although this is a matter of debate. The duty to comply with human rights as listed in the UDHR is imposed by the Charter of the United Nations on all its members.
Jus cogens rights are rights that are owed to all States (ie. erga omnes) and cannot be derogated from via the conclusion of other treaties. They are also referred to as peremptorary norms. Jus cogens norms trump other norms including those enshrined through customary international law and local customs. So if, for example, a State were to authorise torture, this would have the legal effect of delegitimising any such State law and providing individuals with the right to effective remedy, compensation and rehabilitation; every member of the international community then also has a right to insist on fulfilment of the obligation or cessation of the breach (ie. lato senu).
While the extent to which human rights laws have the status of jus cogens is a topic of debate, there is however consensus on a number of human rights having jus cogens status including the prohibition of torture, aggression, slavery, genocide, racial discrimination and apartheid. The determination as to the status of the remaining human rights is complicated by the fact that some are inadequately defined and still evolving. There is also debate as to whether jus cogens can exist at the regional level or whether by definition, jus cogens norms are universal. Future candidates for jus cogens status are the application of the death penalty for juveniles and the prohibition of refoulement (ie.returning a person to a State where they are at risk of torture or inhumane treatment).
Are all erga omnes obligations jus cogens norms?
No
What are the implications of a HR obligation having a jus cogens status?
The norm cannot be derogated from. Treaties that do not adhere to the norm are considered void. The norm applies erga omnes (ie. each and every member is required to comply and each and every member has the right to demand a cessation or fulfilment of the obligation - lato sensu (international enforcement). States are obliged to respect, protect and fulfil these rights but also to take measures to ensure that they are not breached. In other words, State obligations extend to potential breaches. Every State is entitled to investigate, prosecute and punish torture which has occurred in a territory under its jurisdiction. If States do not choose to prosecute the offender, other States must do so as there can be ‘no safe haven’ for offenders - prosecute or extradite. In the case of torture, superior orders provide no defence.
In the ECHR case, Al-Adsani v United Kingdom, 2001, the ECHR concluded (albeit by a narrow margin) that although the prohibition of torture is a jus cogens norm and is of overriding importance, it does not follow that foreign States (ie. Kuwait) are not entitled to immunity in respect of civil claims for damages of alleged torture committed outside of the forum State (ie. the case in which the court proceedings are being held - UK). What was the basis of their argument?
The judgement stated that it was not an established acceptance that State immunity did not apply in respect of civil claims for damages for alleged torture committed outside the forum State. The Court was unable to conclude on the basis of the international materials presented to it, that a State no longer enjoys immunity from a civil suit in the Courts of another State where acts of torture are alleged. Kuwait was therefore able to claim immunity of jurisdiction.
What are the differences between immunity that applies ratione materiae and ratione personae?
Ratione materiae applies to people who perform certain functions of State even after their term in Office. Thus the immunity is restricted to the type of action that was performed and ends only if the State itself ceases to exist. This enables States to ensure that if their own officials are to be tried for anything by a domestic Court, they will be tried at home. It ensures that a State cannot prosecute another State with the only exception being the Courts that have been recognised by the State itself such as the ICJ or a relevant regional court eg. ECHR. Ratione personae is enjoyed by heads of State and high ranking officials for official acts as well as for acts being enacted in a private capacity but only while they are in office.
What two conditions are required for a reservation to be permissible in a human rights treaty? Who determines the validity of reservations and why?
Reservations are considered valid if they are consistent with the object and purpose of the treaty and they are permitted by the treaty. The validity of reservations is determined by an independent monitoring body because of the fact that the States cannot be relied upon to monitor each others behaviour as they have little incentive to ensure the compliance of human rights by other States.
