Foundations of HR Flashcards
Human Rights
A claim by someone, on someone, for something essential to human dignity
Binding International Law
Legally binding treaties (conventions, covenants) that can be bilateral or multilateral. They can have optional protocols which are added onto treaties after the fact. They have some type of reporting mechanism and the number of states needed to ratify it in the treaty itself.
Treaty Ratification Process
Representatives of a state SIGN a convention.
It is then passed to that country’s legislature for RATIFICATION, they must make sure their nation’s laws don’t conflict with the convention’s obligations. The nation will uphold the convention with national laws. Ratified once the required number of states specified in the treaty ratify it.
Customary Law
Mid-range law that achieves the binding force of international law over time through custom and practice. Isn’t signed, but upheld through constant and uniform practice. Ex: UDHR (Universal Declaration of Human Rights) & Principle of Diplomatic Immunity.
Norm
Expectation for an actor with a given identity
Soft Law
Norms that do not meet the procedural test of law, but influence policymaking including UN Declarations & Conference Documents. They aren’t ratified, but countries can endorse them. Ex: Declaration on Violence Against Women.
Shame and Blame Game
If one state is upset with the actions of another, they may shame them and blame them in various ways.
Universal Declaration of Human Rights
First authoritative interpretation of references to HR in UN Charter that has 30 articles. Not a theory of Human Rights. Customary law, without a monitoring body. Includes both negative and positive rights (protections from and entitlements to).
examples of rights:
- political rights (to vote, express political ideologies),
- economic rights (equal access to work, treatment at work, minimum guaranteers for wellbeing for people who cannot work)
- Rights of communities (self-determination)
- NONDISCRIMINATION (common among all three pieces)
UDHR Article 29
Everyone has duties in the community along with their rights. Interconnected. Also, rights are limited for the purpose of securing recognition and respect for the rights and freedoms of others and the requirements of morality, public order, and general welfare. (non-derogable v. derogable rights)
Derogable Rights
Can be suspended under some circumstances (public order, public emergency). Ex: property, freedom of movement
Non-Derogable Rights
Cannot be suspended under any circumstances. Listed in ICCPR Part II, Article 4:
- Article 6 (Life)
- Article 7 (TORTURE)
- Article 8 (SLAVERY)
- Article 11 (IMPRISONMENT for FAILURE TO MEET CONTRACTUAL OBLIGATIONS)
- Article 15 (NO RETROACTIVE JUSTICE)
- Article 16 (RECOGNITION UNDER THE LAW)
-Right to be recognized legally even without citizenship
- Article 18 (THOUGHT, CONSCIENCE, RELIGION)
ICCPR
International Covenant on Civil and Political Rights (1976)
ICESCR
International Covenant on Economic, Social, and Cultural Rights (1976)
ICCPR (Def)
U.S. Constitution/Bill of Rights is heavily based on this.
- Under context of Cold War, so delay in entry into force.
- Monitored by HR Committee created under a term of the treaty.
- Rights are immediately actionable OR remedies must be in place for shortfalls.
- Nondiscrimination must be guaranteed.
- Article 4 paragraph 2 details non-derogable rights and derogable rights. Derogable can only be suspended in public emergency
ICESCR (Def)
- U.S. has not ratified, but many other countries have based parts of their constitutions on it
- Progressive Realization of rights.
- States have minimum obligation to ensure nondiscrimination & to use maximum extent of available resources to achieve economic rights
- International Development Cooperation is essential
- Nondiscrimination immediately guaranteed
- No treaty body initially created
INCLUDES: - Article 6: the right to work
- Article 7: to just and favorable conditions of work
- Article 8: to trade unions
- Article 9: to social security
- Article 11: to an adequate standard of living
- Article 12: to health
- Article 13: to education
Challenges of ICESCR
setting “baselines” for fulfillment of economic rights & enforcement
Humanitarian Law
Protection of rights in times of war, beginning with the Geneva Conventions which protect:
- wounded sick combatants
- prisoners of war
- civilians in times of war
International Criminal Law
Challenge
has the challenge of enforcement in absence of an international “police” force
Protect who?
Geneva Conventions
protect:
* wounded/sick combatants
* prisoners of war
* civilians in times of war
Main Challenges of International Law
Enforcement & Sovereignty
UN Charter (1944)
First international treaty to explicitly mention human rights (but does not define or specify types of rights to be protected & promoted. This is why the UDHR was created as soft law. Chapter VII specifies UN’s role in addressing “threats to international peace and security.” Threats is continuously evolving. Created Security Council, Secretary General, General Assembly, International Court of Justice
Nuremberg Charter (1945)
established concept of “crimes against humanity”; example of humanitarian law; precursor to Genocide Convention
Genocide Convention (1948)
Made individuals responsible for prosecution if they try to destroy a national, ethnic, racial, or religious group
Security Council
Authorized under UN Charter chapter VII to create judicial institutions as needed for promotion of peace and security.
Goal: prosecute individuals who pose a “threat to international peace and security” and act preventatively.
Declares war which can declare a state of humanitarian law.
- archaic, reflecting power balance from founding of UN with P5 (France, US, UK, China, Russia) having veto power. Also rotating members.
Special Courts & International Criminal Tribunals
Temporary International Humanitarian Law Institutions
Truth & Reconciliation Commissions (TRCs)
Create a collective record of the past & normally people are granted amnesty if they share information
1980s on
non-judicial mandated, not trials, not created by UN. Created at the national level, unique to the country who sets it up
International Criminal Court (ICC)
Rome Statute (1998) signed and ratified to join the ICC. 100 members.
Not part of the UN
prosecutes INDIVIDUAL PEOPLE for the following:
1. crimes against humanity, genocide, serious war crimes
2. crimes that occurred within the territory of a (member) State Party
3. Crimes committed by a national of a (member) State Party, wherever the crime took place
-Complimentarity principle: “Court of last resort,” only when national CJ systems unwilling/unable to act
- members can prosecute people from other member states only
- Can only prosecute crimes committed after ICC began operation
- Emergency cases can be referred by the UNSC
Genocide
Intent to destroy, in whole or part, a national, ethnic, religious, or racial group. (Doesn’t include certain categories like sexual and gender identity. )
State
An entity with a monopoly on the legitimate use of force in a certain territory
Crimes Against Humanity
widespread, systematic attacks; not random; include rape, murder, torture
War Crimes
Breach what law?
Grave breaches of Geneva Conventions (protection of civilians, wounded, & POW)
Crimes of Aggression
“Aggressive war” (def still under debate)
Complimentarity
The ICC may only exercise jurisdiction when national legal systems fail to do so, when it is demonstrated that they are unwilling or unable to genuinely carry out proceedings.
What is it & what are some challenges?
Transitional Justice
Ongoing process in transition from ongoing war -> peace; finding accountability; institutional reform; integral to transition from authoritarianism to democracy
Challenges:
- Balancing peace w justice; stability w punishment
- rejecting impunity
- balancing truth-telling with prosecution
- reconciliation process
- balancing UNSC mandate w/ state’s sovereignty
impunity
freedom from punishment
Protection of HR
Protections from harm, protections with negative rights
Promotion of HR
Entitlements to things, positive rights
Progressive Realization of HR
Economic Rights are the only ones. Rights realized in coordination with the maximum amount of resources a nation has
Secretary General
Has to remain above the fray of politics, can only comment generally on crises and situations. Represents all nations. Office rotates; has always been a man
General Assembly
aka “Parliament of Nations”. All states have 1 vote in the assembly regardless of power and size
International Court of Justice
settles state-to-state disputes. Part of the United Nations and is interstate. Doesn’t always mean something happens after the ruling.
ex: Nicaragua v. U.S. w/ US making mines on international waters in Nic territory. US didn’t stop after
Economic & Social Council (ECOSOC)
Receives reports on state enforcement of all treaties
HR council
replaced old HR commission (couldn’t be called into emergency session, didn’t meet routinely, affected by political motives and lobbying)
2/3 of GA members
Treaty monitoring committees
Mechanism for monitoring the upholding of a treaty. Only monitor treaty members.
High Commissioner for HR
“public face” of HR. job is to call out states and centralize human rights implementation
HOW does HR Council Investigate HR?
Meet 3 times annually minimum. Monitors w special procedures that gather evidence for resolutions 1235 & 1503
ECOSOC Res 1235
country-level complaints; public debate. Members of HR council that are elected will openly debate country complaints.
incentive for countries to avoid this
ECOSOC Res 1503
Individual complaints; confidential debate.
Individual experience rep. of wider pattern of abuse brought up as a complaint. Hopefully resolves the issue so it does not escalate to 1235.
Requirements for submission:
- consistent pattern of abuse
- gross HR violations
- supported by evidence
- only submitted in one venue
- must exhaust all domestic remedies first
HR Council Special Procedures
fact-finding missions: independent experts gather info for 1503 or 1235 procedures
Thematic Mechanisms: investigate problems caused by HR violations on global scale by “Working Groups” or “Special Rapporteurs”
Advisory Services: can offer education, info, and institutional strengthening based on fact finding and thematic mechanisms
Working Groups
eyes and ears on an issue
Special Rapporteurs
Have an office for years where they are the point person for that issue and report on it
UN Reform Proposed?
Revise security council membership. enhance efficiency/coordination across HR institutions
International Labour Organization (1919)
Oldest UN agency. Tripartite (gov’t, business, and labor represented)
Many multinational corporations have higher GDPs than developing countries
Develops conventions (ie. binding treaty law) on different aspects of labor rights & monitors them.
provides technical assistance
ILO Declaration on Fundamental Principles & Rights at Work
Type of Int. law & some rights w/i it
SOFT LAW
U.S. has signed, but many employers and lack of inspectors. And rights vary by state. picked and chose which treaties within it to ratify
freedom of association
right to organize
collective bargaining
abolition of forced labor
equality of access and treatment
minimum age
Regional HR systems
European Court of HR: all EU states are members
Inter-American Court of HR (1979)
African Commission on Human & People’s Rights (1987)
