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IPHR > Ch.2 - International Law and Human Rights > Flashcards

Ch.2 - International Law and Human Rights Flashcards

1
Q

What is IPHR?

A

IPHR is the study of the protection afforded to individuals under international law.

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2
Q

International human rights law falls under what area of law?

A

Public international law.

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3
Q

How did the concept of human rights originate?

A

The concept of human rights originated in domestic constitutions.

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4
Q

Does HR law regulate the relationship between states?

A

HR law regulates the relationship between states to some extent, but is mainly concerned with regulating the relationship between states and their citizens.

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5
Q

What is jus commune in HR law?

A

Jus commune in HR law is the jurisprudence that has arisen as national and international tribunals address HR issues.

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6
Q

How do human rights fit into customary international law.

A

Human rights become customary international law through state practice and opinio juris.

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7
Q

What are the sources of general public international international law?

A

Several sources set out in Article 38(1) of the Statute of the International Court of Justice (ICJ).

Treaties and Conventions. Customary International Law. General Principles of Law, such as equity, justice, fairness, and good faith. Judicial Decisions and Scholarly Writings. Other Subsidiary Means for the Determination of Rules of Law: This catch-all category encompasses various materials that can aid in determining international law, including diplomatic correspondence, travaux préparatoires (the preparatory work of treaties), and resolutions and decisions of international organizations.

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8
Q

What are the sources of HR law?

A

The sources of HR law are (i) the general principles of law; (ii) customary international law; (iii) treaties

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9
Q

Why is it important to be able to derive human rights from customary international law or the general principles of law instead of just treaties?

A

Treaties bind only those states that ratify them. Customary international law and the general principles of law bind all states.

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10
Q

What is jus cogens?

A

Jus cogens, or compelling law, refers to a category of norms that govern customary international law, aka “peremptory norm”.

Jus cogens norms differ from other norms in two key respects: (1) jus cogens norms are mandatory. If a provision of a treaty conflicts with an existing jus cogens norm, that provision is invalid insofar as it violates jus cogens.
(2) for a norm to be considered a jus cogens norm, its mandatory effect must be universally accepted by the international community. In practice, this limits jus cogens norms to prohibitions against egregious conduct, such as crimes against humanity, genocide, slavery and human trafficking.

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11
Q

What is erga omnes?

A

In international law, obligations in whose fulfilment all states have a legal interest because their subject matter is of importance to the international community as a whole. It follows from this that the breach of such an obligation is of concern not only to the victimized state but also to all the other members of the international community. Thus, in the event of a breach of these obligations, every state must be considered justified in invoking (probably through judicial channels) the responsibility of the guilty state committing the internationally wrongful act. It has been suggested that an example of an erga omnes obligation is that of a people’s right to self-determination.

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12
Q

When and where was the Charter of the UN adopted?

A

June 26, 1945 in San Francisco.

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13
Q

What seven provisions/areas of the Charter refer to human rights?

A

Preamble; Art.1(3); Art.55(3); Art.62(2); Art.68

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14
Q

Which UN organ was charged with creating a Commission on Human Rights?

A

The United Nations Economic and Social Council (ECOSOC) is one of the six principal organs of the United Nations, responsible for coordinating the economic and social fields of the organization, specifically in regards to the fifteen specialised agencies, the eight functional commissions, and the five regional commissions under its jurisdiction.

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15
Q

When did Ecosoc establish the Commission on Human Rights?

A

By resolution of 21-June-1946. In 2006, the Commission on Human Rights was replaced by the Human Rights Council.

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16
Q

When did Ecosoc establish the Commission on the Status of Women?

A

By resolution of 21-June-1946

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17
Q

When did Ecosoc establish the Sub-Commission on Prevention of Discrimination and Protection of Minorities?

A

By resolution of 21-June-1946

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18
Q

What other name has the Commission on Human Rights been given?

A

Nuclear Commission

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19
Q

What was the first task of the Commission on Human Rights?

A

Draft a text for the Declaration of Rights

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20
Q

When was the Universal Declaration on Human Rights adopted by the General Assembly?

A

10-Dec-1948

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21
Q

What was the UDHR vote count?

A

48-0, 8 abstentions, including South Africa, Saudi Arabia, USSR and satellites

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22
Q

Have the rights set out in the UDHR acquired the status or become part of customary international law?

A

Some have

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23
Q

Should the rights set out in the UDHR be considered part of the ‘general principles of law recognized by civilised nations’ mentioned in Article 38(1)(c) of the Statute of the ICJ as a source of international law?

A

Partly

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24
Q

How was the UDHR to be implemented, i.e. take legal effect?

A

By binding international treaties

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25
Q

What would be the advantage of having one single universal covenant covering human rights?

A

Emphasize that all Declaration rights were interconnected and interdependent.

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26
Q

Why having one single universal covenant covering human rights was not feasible?

A

Because it was recognised that civil and political rights were of a different nature to social and economic rights.

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27
Q

With regard to implementation, how do civil and political rights differ from economic and social rights?

A

Civil and political rights could be monitored; they required the state not to interfere with individuals’ rights. Social and economic rights required progessive implementation as resources became available.

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28
Q

In what year did the General Assembly decide to implement the UDHR as two separate covenants?

A

By resolution of 4-Feb-1952

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29
Q

Why was it necessary to have an Optional Protocol to the International Convention on Economic, Social and Cultural Rights?

A

The Optional Protocol introduces a communications procedure allowing individuals and groups to submit complaints to the Committee on Economic, Social and Cultural Rights if they believe that their rights protected by the International Covenant on Economic, Social and Cultural Rights have been infringed.

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30
Q

What were the two treaties drafted to implement to the UDHR?

A

International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICE, SCR)

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31
Q

When were the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICE, SCR) adopted by the GA?

A

16-Dec-1966

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32
Q

What nine ‘core HR treaties’ are based on the UDHR?

A

International Covention on the Elimination of All Forms of Racial Discrimination; date taking effect 4-Jan-1969; ICESCR 3-Jan1976; ICCPR 23-Mar-1976; Convention on the Elimination of All Forms of Discrimination against Women 3-Sep-1981; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 26-Jun-1987; Convention on the Rights of the Child 2-Sep-1990; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1-Jul-2003; Convention on the Rights of Persons with Disabilities 3-May-2008; International Convention for the Protection of All Persons from Enforced Disappearance 3-May-2008

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33
Q

Which one of the nine ‘core HR treaties’ based on the UDHR did not set up a monitoring body of experts?

A

The International Covenant on Economic, Social and Cultural Rights.

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34
Q

How has the ICESCR’s lack of an expert monitoring body been compensated for?

A

By providing that ECOSOC should monitor.

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35
Q

How does the monitoring process operate?

A

States are expected to file regular reports on the measures taken to fulfil their treaty obligations.

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36
Q

What is the legal status of Optional Protocols to the nine core HR treaties?

A

Optional Protocols take on the same legal status of the relevant treaty once adopted by a state party.

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37
Q

What appear to be the three phases of HR development recognised in HR historiography beginning in the 1940s/ 1950s?

A
  1. 1940s-1950s: focus on containing communism and far-left activity.
  2. 1960s: focus on rights to self-determination (independence), and freedom from racial and religious discrimnation.
  3. 1990s: the fall of the Iron Curtain and the democratization of Eastern Europe.
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38
Q

What other treaties aprt from the core nine address HR?

A
  1. Convention on the Prevention and Punishment of the Crime of Genocide.
  2. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.
  3. International Convention on the Suppression and Punishment of the Crime of Apartheid
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39
Q

What do those treaties other than the core nine that address HR lack?

A

They are not monitored by a body of experts.

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40
Q

Why is a body of experts important?

A

To establish a jurisprudence

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41
Q

When did the Statute of the Council of Europe take effect?

A

August 3, 1949.

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42
Q

How many initial signatories?

A

Ten

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43
Q

Presently, how many members of the Council of Europe?

A

47

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44
Q

What was the Council of Europe’s first task?

A

Adopt a Charter on Human Rights.

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45
Q

What convention emanated from the Council of Europe?

A

European Convention on Human Rights (ECHR) effective September 3, 1953.

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46
Q

What important organ was created by the ECHR?

A

European Court of Human Rights (ECtHR) under Art.19 of the ECHR

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47
Q

What organ, now defunct, accepted individual applications?

A

European Commission of Human Rights, which was abolished by Protocol 11 and allowed individuals to commence action directly in the ECtHR.

48
Q

What is one requirement for membership in the Council of Europe?

A

Ratification of the ECHR

49
Q

What European convention implemented the economic and social rights of the UDHR?

A

European Social Chart effective February 26, 1965

50
Q

Having been dormant after its adoption, why did the European Social Charter become active in the 1990s?

A

More activity in social rights generally. Move to market economies in Eastern and Central Europe that threw focus on protection of social rights as deregulation unfolded

51
Q

What event revitalized the European Social Charter?

A

Ministerial Conference on Human Rights, Rome, November 1990.

52
Q

What are the six instruments adopted by the Council of Europe?

A
  1. ECHR
  2. European Social Charter
  3. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
  4. European Charter for Regional or Minority Languages
  5. Framework Convention for the Protection of national Minorities
  6. European Convention on Human Rights and Biomedicine
53
Q

What other areas that impinge on human rights has the Council made a contribution to and in what way?

A

Protection of the environment through the criminal law; eradicating corruption; disrupting human trafficking by setting standards

54
Q

In the context of the European Union, what is the ‘acquis’?

A

The acquis is the body of common rights and obligations binding on all the EU member states.

55
Q

What were the scant references to human rights in the original treaties of the European Communities?

A

Movement of workers; prohibition of discrimination on grounds of nationality; equal pay for men and women.

56
Q

The shifting landscape of human rights in Europe resulted in what instrument?

A

Charter of Fundamental Rights of the European Union, 07-Dec-2000.

57
Q

What is the most comprehensive acquis of the EU in human rights?

A

Charter of Fundamental Rights of the European Union

58
Q

In what year was the Pan American Union renamed the Organization of American States (OAS)?

A

1948

59
Q

At what conference was the OAS established?

A

Ninth International Conference of American States in Bogota, Columbia.

60
Q

What instrument was adopted at the Ninth International Conference of American States in Bogota, Columbia?

A

American Declaration of Human Rights

61
Q

When was the Inter-American Commission on Human Rights established?

A

1959

62
Q

When the Statute of the Inter-American Commission on Human Rights was adopted in 1960, how did it define ‘human rights’?

A

As the rights in the American Declaration of Human Rights, Bogota Declaration

63
Q

Before the American Convention in 1969, what instrument did the Inter-American Commission on Human Rights apply to member states of the OAS?

A

American Declaration of Human Rights. American Declaration of the Rights and Duties of Man.

64
Q

When and where was the American Convention on Human Rights adopted?

A

San Jose, Costa Rica, November 1969. Took effect July 1978.

65
Q

What important organ did it create?

A

Inter-American Court of Human Rights, San Jose

66
Q

What instruments complement the American Convention?

A
  1. Additional Protocol (to Convention) Economic, Social and Cultural Rights, San Salvador, 1988.
  2. Protocol (to Convention) to abolish death penalty, 1990.
  3. American Declaration
  4. American Convention to Prevent and Punish Torture (1985)
  5. Convention on the Forced Disappearances of Persons (1994)
67
Q

By what instrument and where and when was the Organization of African Unity founded?

A

Charter of the OAU, Addis Ababa, May 1963

68
Q

What was the initial concern of African states?

A

Independence and non-interference in domestic affairs.

69
Q

What references to human rights were included as objectives of the OAU?

A

To the UN Charter and the UDHR

70
Q

What was the specific human rights instrument adopted by the OAU?

A

The African (Banjul) Charter on Human and Peoples’ Rights, adopted June 1981 in Nairobi, Kenya.

71
Q

How was the African HR system strengthened?

A

By the adoption of the two protocols to the African Charter: the 1998 Protocol on the Establishment of an African Court on Human and Peoples’ Rights and the 2003 Protocol on the Rights of Women in Africa.

72
Q

How does the African Charter differ from similar regional charters?

A

By insisting on recognizing African history and culture, by according justiciability to economic and social rights, and by raising duties as a complement to rights.

73
Q

According to Schutter, what might be the most significant aspect of the African Charter?

A

Recognition of the collective rights of peoples.

74
Q

What are ‘third generation’ rights?

A

Rights of peoples that depend on international solidarity for their realization

75
Q

What is the status of third generation rights in the African Charter?

A

They are treated on par with first generation (civil and political) and second generation rights

76
Q

What other important charter has been adopted by the OAU?

A

The African Charter on the Rights and Welfare of the Child to reflect the 1989 UN Convention on the Rights of the Child

77
Q

What organ monitors the African Children’s Rights Charter?

A

The African Children’s Rights Committee.

78
Q

Initially, what body monitored the African Charter?

A

The African Commission on Human and Peoples’ Rights.

79
Q

How and when did the OAU tansform into the African Union?

A

Following the Sirte Declaration in 1999, the AU was launched at the Durban Summit in 2002.

80
Q

What are some essential features of the African Union Constitutive Act?

A

The right of the Union to intervene in respect of grave circumstances, viz. war crimes, genocide and crimes against humanity, et al.

81
Q

When was the Arab Charter of Human Rights adopted by the Council of the League of Arab States?

A

May 2004

82
Q

What body monitors the Arab Charter of Human Rights?

A

The Arab Human Rights Committee.

83
Q

How is the Arab Charter of Human Rights monitored?

A

Under Art.48(4) of the Charter by reviewing reports from State members.

84
Q

What are some of the inconsistences of the Arab Charter with international HR standards?

A
  1. Death penalty for minors.
  2. Equating Zionism with racism.
  3. Rights of women
85
Q

When did the Association of South-East Asian Nations (ASEAN) establish the ASEAN Intergovernmental Commission on Human Rights (AICHR)?

A

July 2009

86
Q

What are two of the deficiencies of the AICHR?

A

No independent monitoring. No peer review.

87
Q

When did ASEAN adopt an Asian Human Rights Declaration?

A

November 2012.

88
Q

What are some deficiencies in the Asian Human Rights Declaration?

A
  1. No input fron civil society
  2. Introducing elements of cultural relativism
  3. No mention of certain rights, e.g. freedom of association; prohibition of enforced disappearances.
89
Q

What is to be differed from the use of comparative HR law to develop the law?

A

Those instances when courts have a duty to follow the interpretations set out by international judicial and quasi-judicial supervisory bodies.

90
Q

What is meant by the autonomization of HR jus commune from international law?

A

HR jus commune has developed in national courts rather than at the international level and this has contributed to a separate and distinct jurisprudence.

91
Q

What issues have arisen from the autonomization of HR law?

A
  1. The status of interim measures
  2. Activism by HR courts and bodies
92
Q

What did the recognition that HR bodies should have the power to grant interim relief originally arise?

A

In the case of Cecilia Rosana Nunez Chipana v Venezuela (1998) when the Commitee Against Torture (CAT) applying Art.18(2) of the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted a rule allowing it to istitute provisional measures when it receives a complaint.

93
Q

In what case did the right to bargain collectively first arise?

A

Demir and Baykara v Turkey (2008) ECtHR

94
Q

Apart from the granting of interim protection, provide an example of when a court or other body disregarded the limitation on the application of scope—ratione personae—set by a Charter or other instrument?

A

In International Federation for Human Rights (FIDH) v France (2004), the European Committee on Social Rights drawing on the corpus of international HR law opined that Art.17 of the European Social Charter, specifically medical assistance, applied to children even those illegally in residence.

95
Q

Provide an example of when a court or other body drew on comparative jurisprudence to alter a precedent by which it should have been guided?

A

Lawrence et al v Texas, (2003) U.S. Supreme Court. Violation of a Texas statute prohibiting homosexual acts.

96
Q

What is the significance of Washington v Glucksberg (1997) U.S. Supreme Court?

A

Claim that the 14th Amendment’s Due Process Clause protected a liberty interest that extended to a personal choice to commit physician-assisted suicide. Use of comparative law and Dutch data to adjudicate HR claims.

97
Q

Why are human rights treaties considered to be hierarchically superior?

A

By virtue of Articles 55, 56 and 103 of the UN charter and because some human rights included in Art.55 are jus cogens.

98
Q

What are the sources of international law recognised by the Statute of the International Court of Justice?

A

International conventions, international custom, general principles of law, commentary by jurists.

99
Q

Do treaties create obligations or do they simply codify obligations?

A

Both, perhaps.

100
Q

What is the significance of the ICJ’s Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia… (1970)?

A

An implication that the UN Charter imposes the obligation on all member states to comply with, at least, a core set of rights.

101
Q

What are the two elements of customary international law?

A
  1. Consistent identifiable state practice.
  2. A belief that compliance is required under international law (opinio juris sive necessitatis).
102
Q

What appears to be the difference between the ICJ Art.38(1) approach and the ‘modern’ approach to determining customary international law?

A

The ICJ approach considers state behaviour. The ‘modern’ approach looks at pronouncements.

103
Q

What is international humanitarian law?

A

International humanitarian law applies to armed conflicts.

The International Committee of the Red Cross (ICRC)… defines it as a “set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.”

104
Q

Where is international humanitarian law to be found?

A

In the four Geneva Conventions of 1949, which the ICRC points out “nearly every state in the world has agreed to be bound by”, as well as the Additional Protocols of 1977.

105
Q

What are the Geneva Conventions?

A

A series of international treaties concluded in Geneva between 1864 and 1949 for the purpose of ameliorating the effects of war on soldiers and civilians. Two additional protocols to the 1949 agreement were approved in 1977.

106
Q

What are the Hague Conventions?

A

A series of international treaties and declarations regulating warfare that were adopted at two international peace conferences in 1890 and 1907 and the 1954 Hague Convention on the Protection of Cultural Property in the event of armed conflict.

The rules emanating from these Conventions – the Law of the Hague- governed the use of means and methods of warfare, conduct of hostilities and occupation, as opposed to the Law of Geneva – which primarily governed the protection of war victims.

107
Q

What is the result if human rights are regarded as jus cogens norms?

A

Human rights will be superior to other rules of international law, including UN Security Council resolutions, despite UN Charter Arts. 25 and 103.

108
Q

What are the two reasons why it is difficult to ascribe jus cogens status to human rights?

A
  1. not all human rights merit that status: uncertainty about which ones do.
  2. are jus cogens norms universal or are there regional jus cogens norms?
109
Q

Why has the Inter-American Court of Human Rights accorded the general principle of equality, i.e. the obligation to implement HR with discrimination, jus cogens status?

A

Because of the principle’s universal recognition and close link to human dignity.

110
Q

How does the concept of erga omnes affect the inclusion or otherwise of a right as jus cogens?

A

All jus cogens norms are erga omnes, but the reverse is not true.

111
Q

What is the significance of the Barcelona Traction, Light, and Power Company Ltd, [1970] ICJ case?

A

The ICJ first explicitly articulated the idea of erga omnes obligations – “obligations of a State towards the international community as a whole” – as distinguished from normal obligations of a state “arising vis-à-vis another State.”

112
Q

What ICJ case stated that the right of a peoples to self-determination is erga omnes?

A

Portugal v Australia (East Timor) (1995)

113
Q

What rights are presently considered jus cogens?

A

Prohibition of aggression, genocide, slavery, racial discrimination, a peoples’ self-determination.

114
Q

What are the implications of raising a human right to jus cogens status?

A
  1. Not only must a state respect, protect and fulfill the right, it must institute measures to protect the right. The state will violate its obligations even where there is an absence of a protective system.
  2. where a jus cogens right has been infringed, other states should not recognize ‘legal’ attempts to justify it.
  3. extraterritorial punishment of violators is lawful.
115
Q

Which case illustates the interplay of erga omnes and jus cogens human rights in regard to torture?

A

Prosecutor v Anto Furundzija, International Criminal Tribunal for former Yugoslavia (ICTY) (1998)

116
Q

What UN body pronounced on the legitimacy of amnesty laws for torture?

A

In General Comment No.20 on Art.7 of the ICCPR, the Human Rights Committee stated that amnesties are incompatible with a state’s duties regarding the prohibition against torture.

117
Q
A

IPHR (15 decks)

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