History of HR and IL

Question 1

What are four main phases of the history in regards to protection of HR?

Answer 1

1. The Prehistory of Rights.
2. The Positivization of Rights.
3. The Generalisation of Rights.
4. The Internationalisation.

Question 2

What does the prehistory of Rights include?

Answer 2

The prehistory of rights include the first forms of regulation, although they cannot be understood in terms of the modern kind of rights. Examples of the first forms are: Mesopotamian codifications (2350-1780 BC) such as the Urukagina and the Hammurabi code. Some Far East regulations, especially in Japan, China and Mongolia. And some Islamic agreements, such as the Medina, which laid down a list of rights and responsibilities for Muslims. In the Western context, we have some forms of regulations in classical Greece and ancient Rome. Here, the development of rights in the modern sense was born.

Question 3

What does the phase of positivisation refer to?

Answer 3

It refers to the period around 12th-13th century, in which we can find some important legal documents with some - although vague and fragmentary - recognition of rights. We can find examples of the self-limitation of power, which laid the foundations for the rules of law. The nobles and the bourgeoisie created a political regime which managed to guarantee the so-called natural rights, thanks to jus naturalis. Example: Magna Charta Libertatum.

Question 4

What did the phase of generalisation include?

Answer 4

The phase of generalisation came after the phase of positivisation, after the Glorious Revolution, mostly at the end of the 18th century. It included several subphases:

1. The sub-phase of Declarations, which began on the eve of the American Revolution with the American Declaration of Independence, Constitution and Bill of Rights, which included the so-called first generation of rights. Followed by the French Declaration, 1879.
2. The sub-phase of Codifications. The French model circulated quickly based on its innovative character but also the impact of the Napoleonic era/the Napoleonic conquerors. Both the Statuto Albertino 1848 (e.g., the previous Italian Const.) and the German Constitution 1849 was part of this process and similar to the Bill of Rights. Then, things changed. 1919, Wemar Constitution - put individual HR at the centre, Const. no longer intended at only limiting public power. But it also allowed for a dystonic use of power and led to the affirmation of the Nazi regime.
3. The sub-phase of Constitutionalization. After WW2. Influenced by the war. Emphasized the inalienable rights of humans. Some aspects recognizable from the previous declarations; from the US declaration came the concept of consts. as source and guarantee for HR + the distinction between constituent power and constitutive powers, to protect the constitutional rigidity. From the Fr. Declaration: the Const. as something evolving, not fixed. Something that was containing general values to be implemented by public authorities, incl. the legislative power. In this period 2nd generation rights began.

Question 5

What can be said about the internationalising of HR?

Answer 5

There are some precedents, but mostly, it began after WW2, with international legislation and processes, with the goal of keeping peace. The Charter of the UN 1945 and the UN Declaration of 1948 affirmed that HR was universal and positive.

Question 6

Why is the hegemony of Western perspective in regards to the history of HR not only political?

Answer 6

It is also cause by the articulation of power. While the Middle Eastern and Oriental communities were characterized by an absolute power, the power was fragmented in the geographical area of Europe. This led to municipality revolution, creation of cities that could have recognition of some property rights. European feudalism was kind of a stateless society: several powers interrelated and the affirmation of the municipal authorities was the beginning of the developmental process of civil societies.

Question 7

Some scholars distinguish between human rights and fundamental rights. What is a problem with that approach?

Answer 7

Fundamental rights are only those rights included in constitutions, which varies significantly from state to state. Only truly democratic systems protect what we define as fundamental human rights.

Question 8

How are duties and rights connected?

Answer 8

Duties need to be connected to rights, since every time we want to recognize a new right, it means the erosion of another. Opposing rights need to be balanced. In some regional systems, duties are more heavily emphasised, e.g. the African system for protection of HR.

Question 9

When and what was the Magna Charta Libertatum?

Answer 9

The Magna Charta was the first attempt to protect the freedom of movement, to limit the power of the crown and the habeas corpus (you can’t imprison someone without court decision). King John signed it, in 1215, because he had to - he was threatened by the nobles and did it as a compromise to remain in power. It was during the phase of positivization of rights.

Question 10

What are the different generations of rights?

Answer 10

1st generation rights - Negative liberties.
2nd generation rights - Positive liberties.
3rd and 4th generation - Intergenerational dimension, e.g. right to sustainable development, tech. developments, However, also previous generations protected these rights since case law interpreted e.g. right to health as right to a safe environment.

Question 11

What is the sub-phase of Declarations?

Answer 11

Part of the Generalisation phase. It began on the eve of the American Revolution with the American Declaration of Independence, Constitution and Bill of Rights, which included the so-called first generation of rights. Followed by the French Declaration, 1879.

Question 12

What is the sub-phase of Codifications?

Answer 12

It refers to the how the declarations spread and was codified into different national constitutions, especially the French one spread due to its innovative character but also the impact of the Napoleonic era/the Napoleonic conquerors. Both the Statuto Albertino 1848 (e.g., the previous Italian Const.) and the German Constitution 1849 was part of this process and similar to the Bill of Rights. Then, things changed, in relation to the end of WW1. In 1919, the Weimar Constitution - put individual HR at the centre and created a constitution no longer intended at only limiting public power. But the Weimar Constitution also allowed for a dystonic use of power and led to the affirmation of the Nazi regime.

Question 13

What is the sub-phase of Constituionalization?

Answer 13

It began after WW2. Influenced by the war, there was an emphasis on the inalienable rights of humans. Some aspects were recognizable from the previous declarations. From the US Declaration came the concept of constitutions as a source and guarantee for HR + the distinction between constituent power and constitutive powers, to protect the constitutional rigidity. From the French Declaration: the idea of the Constitution as something evolving, not fixed. Something that was containing general values to be implemented by public authorities, including the legislative power. In this period 2nd generation rights began.

Question 14

What are the differences between the French Declaration 1789 and the American Declaration of 1776?

Answer 14

The French is more philosophical and less suitable for immediate application, since it fundamentally a declaration of intent - the power of the King was still pretty much absolute. The Declaration gave juridical form to a social reality that had yet to be constructed. Meanwhile, the American bill was drawn after the independence.

Question 15

What are the consequences of the internationalisation of HR?

Answer 15

1. Every individual enjoys the rights recognized by International Law - the system no longer depends on only states as actors and subjects of IL.
2. International HR protection change the concept of state sovereignty regarding the recognition and protection of rights.
3. NGOs have gained weight in the implementation of rights and in monitoring the level of protection worldwide.

Question 15

How did International Law evolve historically?

Answer 15

In the 19th century, IL played an essential role in the formal abolition of slavery and under the League of Nations, the slavery convention was adopted in 1927 –> this can be considered an international treaty of HR. (Followed by a different one in 1956.)

We can also refer to humanitarian law and the law of war; agreements on the conduct of hostilities and treatment of war prisoners.

Then: treaties of the last century, such as the Geneva Convention 1949, the International Criminal Court in investigating war crime, minority and labour rights, the UN, the UN Declaration.

Question 16

What are the sources of IL?

Answer 16

A source of law is a binding rule that enables any state to govern its territory or any international organization to set binding rules. The sources of IL are listed in Art. 38 of the Statute of the International Court of justice, which is part of the UN charter. Which sources? International agreements, treaty law, international customs, customary law, soft law.

IL differs from domestic level, since at dom. the legislative power must be obeyed but at international level; orgs form treaties, states sign of their own volition.

Question 17

How does treaties function?

Answer 17

They are international legislations, states have to agree and they indicate this agreement through their signature. To sign is mainly a political act, which has to be followed by a legal act, i.e. the ratification of the treaty, which means accepting the legal consequences of the treaty. Treaties are made according to the provisions of the Vienna Convention on the Law of Treaties 1969. They have to be approved following certain procedure and formal rules. They contain statements of law, specifies legal obligations of states, which have to be endorsed on national level. To come into force, treaties usually need a minimum number of ratifications. Reservations are possible.

Question 18

What is a reservation in relation to treaties?

Answer 18

A reservation is a way for a state to opt out of certain provisions –> exclude liability for a specific article of a treaty. This is not that problematic. Problem arises in cases such as Saudi Arabia ratifying CEDAW but stating that in case of conflict between CEDAW and Islamic law, Saudi Arabia does not have to follow CEDAW. The concept of reservations is inconsistent with the concept of universality of HR. Reservations is a sort of compromise.

Question 19

What can be said about derogations?

Answer 19

In states of emergency, derogations from a treaty or certain provisions of a treaty can be allowed if necessary. The measures justifying a derogation must be of a temporary and exceptional nature, and the threat must be a genuine threat on the stability of the state, limited to extreme situations. But some rights can never be derogated from: right to life, torture etc. In the ECHR, art 15 decides those rights.

Question 20

What is customary law?

Answer 20

It relates to international customs. So, not legally written in a treaty, but something that has been done in a certain way for a very long time. The prohibition of torture and slavery reflect customary international law.

Question 21

What is soft law?

Answer 21

It is a term used to contrast with hard law (treaty and customary law), which provides legally binding obligations. Meanwhile, soft law includes various instruments of international organisations, which are not legally binding, although breaching them can have consequences, but mostly political consequences.

Question 22

What is ius cogens?

Answer 22

Fundamental laws which can not be negotiated away or overstepped. Some Constitutions recognize Ius cogens as a superior value in the sources of law of their legal orders. Mostly countries which gained independence after very dramatic wars or severe HR violations.