CHAPTER 2 CASE STUDIES + EXTRA CONTENT: HUMAN RIGHTS Flashcards
UDHR impact on international law
- Basis for Treaties: The UDHR inspired binding covenants such as the ICCPR
and ICESCR, which further elaborate and enforce the rights proclaimed in the
Declaration. - Catalyst for Regional Instruments: The principles of the UDHR inspired
regional human rights conventions in Europe, Africa, and the Americas. - Informing Jurisprudence: Courts like the International Court of Justice and
regional human rights courts often reference the UDHR in their decisions. - Influence on Customary Law: Several principles of the UDHR are now
considered customary international law due to their wide acceptance and
practice by states.
UDHR Role in Shaping Subsequent Human
Rights Instruments and Conventions
- Framework for Other Instruments: It provided the foundational framework for
conventions like CEDAW, CRC, and the Convention against Torture (CAT),
among others. - Promotion of Specific Rights: By establishing universal rights, it paved the
way for focused instruments targeting specific groups (e.g., women, children,
indigenous populations). - Evolution of Rights: The UDHR’s fluid interpretation allowed for the evolution
of rights, leading to discussions on third-generation rights like development,
environment, and digital rights.
Milestones in Women’s Rights Rights
- Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW, 1979): A landmark treaty that signifies global commitment to
dismantle barriers of gender discrimination. Encompasses a range of rights,
from political participation to health and education. - Beijing Declaration and Platform for Action (1995): Adopted by the Fourth
World Conference on Women, it maps out a strategic route for global gender
equality. Encourages the international community to address systemic
barriers, such as violence against women and inadequate healthcare
provisions.
Milestones in Children’s Rights
- Declaration of the Rights of the Child (1959): Emphasizes that children, by
virtue of their physical and mental immaturity, need special safeguards and
care. Outlines ten principles ranging from protection against neglect to the
right to education. - Convention on the Rights of the Child (CRC, 1989): Comprehensive in nature,
the CRC addresses the needs and rights of children from various angles,
including protection from exploitation and access to healthcare. Encourages
nations to adopt legal measures for the betterment of children’s lives
Milestones in Indigenous People’s Rights
- ILO Convention No. 169 (1989): This convention recognises the aspirations of
indigenous and tribal peoples and aims to ensure their rights concerning
cultures, traditions, and institutions. Promotes consultation and participation
mechanisms for these communities in decisions affecting them. - UN Declaration on the Rights of Indigenous Peoples (2007): Emphasizes the
rights of indigenous peoples to maintain their unique traditions, customs, and
land relations. Addresses collective rights, which often aren’t included in other
human rights instruments.
Milestones in Refugees rights
- 1951 Refugee convention: A comprehensive code of conduct for the
treatment of refugees, defining who they are, their rights, and the legal
obligations of states. Focuses on key aspects like non-refoulement,
prohibiting the forced return of refugees. - 1967 Protocol: Expanded the geographical and temporal scope of the 1951
Convention, addressing newer challenges faced by refugees and making
provisions universally applicable.
History of International Concern for Human Rights
- World War II Aftermath: Following the catastrophic events and human rights
violations of WWII, nations were determined to develop an international
framework that would prevent future atrocities. This marked the beginning of
human rights as an international agenda. - UN Charter: Established in 1945, the charter emphasised the importance of
human rights, setting a precedent for international collaboration.
Influence of Globalisation on International Concern for Human Rights
- Exposure to Atrocities: As communication technology advanced, human rights
abuses in one region gained immediate global visibility, sparking international
outcries and demands for action. - Economic Interdependence: Nations became intertwined not just politically,
but economically. This interdependence brought with it an obligation to uphold
certain ethical and human rights standards.
Regional Instruments that aid in Human Rights
- European Convention on Human Rights (ECHR): Implemented in 1953, the
ECHR oversees the protection of human rights in Europe. - African Charter on Human and Peoples’ Rights: Adopted in 1981, this charter
reinforces human rights in the African context. - Inter-American Commission on Human Rights: Serving the Americas, this
body attends to human rights issues specific to its region.
Universal Jurisdiction of Human Rights Abuses
- Universal jurisdiction is a revolutionary legal doctrine permitting nations to
claim criminal jurisdiction over an accused person irrespective of nationality or
where the alleged crime was committed. - Crimes under this ambit are war crimes, genocide, crimes against humanity
and torture and enforced disappearances.
Customary Law and Statutory Law
- Customary Law: These laws, being unwritten, evolve from prolonged
practices and are built on societal mores. - Statutory Law: These are the codified laws passed by legislative bodies.
- Symbiosis can occur: Situations where customary and statutory laws mutually
uphold human rights. - Dominance can occur: In certain systems, statutory laws hold precedence and
can override customary laws if they contravene human rights. - Friction can occur: Statutory laws, especially if introduced externally, can be
seen as invasive and resisted in favour of customary laws.
International Humanitarian Law
- Predominantly focused on limiting the barbarities of war, IHL sets forth rules
that are in force during conflicts, aiming to safeguard those not actively
participating in the hostilities. - The Geneva Conventions are the main foundational treaties: These 1949
conventions, divided into four primary treaties, epitomise the international
standards for humane treatment during wars, particularly concerning civilians,
prisoners of war, and the injured. - IHL differs from Human rights in terms of the scope of application, and the fact
that it is treaty based(it is not customs) - The International Criminal Court is pivotal in prosecuting IHL violators
- The international Committee of the Red Cross promotes and monitors IHL.
Contemporary Challenges in Humanitarian Law
- Sovereignty vs. Global Standards: Balancing between upholding international
human rights and respecting state sovereignty has been a longstanding
challenge. Certain states view international interventions as infringements
upon their sovereignty. - Inconsistent Implementation: Despite the foundational importance of universal
jurisdiction, its real-world application is frequently marred by inconsistencies.
Factors like politics, strategic alliances, and economic interests can dictate
whether action is taken against alleged wrongdoers. - IHL and Human Rights Law Intersection: While both frameworks share the
goal of safeguarding human dignity, their confluence can lead to intricate legal
scenarios, especially in conflict zones. - Jurisdictional Conflicts: Determining the appropriate forum for prosecuting
international crimes, given the multiple overlapping jurisdictions, can pose
challenges.
Influence of customs on Human Rights
- Influence on Perception: Customs, being society’s moral compass, can often
determine how human rights are perceived. If the core principles of a custom
align with human rights, societies may be more receptive to embracing those
rights. Conversely, customs might also serve as barriers, especially if they
inherently violate global human rights norms. - Influence on Implementation: Customary practices can influence the
mechanism of human rights enforcement. When a nation’s customs align with
human rights, they can facilitate the enforcement process. However, if
customs are at odds with human rights norms, it could hinder the
implementation, causing friction between tradition and modernity
Challenges in the Custom-Human Rights Nexus
- Cultural Relativism: The argument that human rights are not universally
applicable but should be adapted to each culture’s nuances. This stance can
sometimes mask human rights abuses under the guise of customs. - Resistance to Adaptation: Age-old customs can create strong resistances to
human rights norms, especially when communities believe their identity is
under siege. - Legal Ambiguities: Dual systems, i.e., customary and statutory, can lead to
ambiguities, with people often torn between which to follow, especially in
scenarios of conflict
South African Constitution Protecting Human Rights(background, key provisions,
implications)
- Background: After decades under the oppressive apartheid system, South
Africa transitioned to a democracy in the 1990s. To ensure past mistakes
weren’t repeated, a new constitution, which was formally adopted in 1996,
placed human rights at its core. The drafting process involved extensive
consultations, including public participation, reflecting a nation’s collective
aspiration. - Key Provisions: There was a bill of rights, focus on maintaining equality, and
emphasis on freedom of expression - Implications: Constitutional court, affirmative action, land rights
Implications of Constitutional Rights on
National Legal Frameworks and Practices
- Direct Application: When a constitution enumerates rights, they’re not merely
aspirational. Citizens can invoke these rights in courts, leading to tangible
remedies. - Legislative influence: All legislative proposals undergo a constitutional litmus
test. Laws contradictory to constitutional guarantees risk being invalidated.
Over time, this ensures national legislation evolves, mirroring the
constitution’s ethos. - Judicial Review: Courts, especially apex ones, are empowered to review
governmental actions and laws. This acts as a check on potential overreaches
or transgressions by the legislative or executive branches. This dynamic
fosters a culture of rights-respectful governance, with the judiciary acting as
the final sentinel. - Political and Civic Participation: Politicians, while crafting policies or
campaigning, use the constitution as a reference point. Promising better
enforcement or suggesting amendments becomes part of the democratic
discourse. For civil society, these rights provide tools for advocacy, allowing
them to hold authorities accountable. - One Challenge is varied interpretations: As societal norms evolve, so does
the interpretation of rights. Courts are frequently tasked with navigating this
dynamic, ensuring rights remain relevant and meaningful. E.g. US supreme
court.
Role of International agreements in setting human rights standards
- Setting Standards: They’ve established universal benchmarks, urging states
to meet and uphold specific human rights norms. - Promoting Accountability: Their monitoring mechanisms instil accountability
among member states, ensuring that obligations are not just words on paper. - Raising Awareness: By codifying rights, they’ve bolstered global awareness,
catalysing advocacy movements and informing citizens of their inherent rights. - Driving Legislation: Many nations, spurred by these treaties, have revamped
or introduced new laws, embedding these rights within national frameworks
National Courts(Role, effectiveness, challenges)
- Role: A national protection mechanisms of human rights that serve as the
primary protectors of human rights within a country’s borders. They offer the
means to interpret and enforce rights enshrined in constitutions, legislation,
and ratified international treaties. - Effectiveness: The efficacy of national courts is intrinsically tied to the
independence of the judiciary. In nations with a robust rule of law, courts
frequently offer effective remedies against human rights infringements. - Challenges: judicial backlog, political interference, access barriers