human rights Flashcards
human rights
IB: HR are basic claims & entitlements that, many argue, one should be able to exercise simply by virtue of being a human being.
Heywood: Rights in which people are entitled to by virtue of being human. They are universal, indivisible, and absolute.
examples of civil + political rights
freedom from slavery, discrimination, and torture
equal protection under the law
freedom of movement
suffrage
freedom of thought, expression, opinion, association, religion
examples of social + economic rights
free basic education
social security
employment
fair wages and equal pay for equal work
an adequate standard of living
positive rights (help)
Expands the role of government
Others must help you in some way
A service of some kind must be provided
Known as “entitlements”
negative rights (don’t harm)
Limits the Government
Others cannot interfere with you
No action is required in order for these rights to exist
Known as “liberties”
libertarianism
is a political philosophy that upholds liberty as a core principle.
libertarian view
Libertarians seek to maximize autonomy and political freedom, emphasizing free association, freedom of choice, individualism and voluntary association
4 key human rights principles
inalienable, independent, interdependent, universal
UDHR (universal declaration of human rights)
Adopted by the UN General Assembly on Dec 10, 1948
58 countries in UN @ time, 48 signed, 8 abstained, 2 didn’t vote. Abstainers: 6 Communist countries (including USSR), Saudi Arabia, and South Africa
30 articles
Not legally binding, but foundation for 9 binding treaties that came later
problems with the drafters of the UDHR
1 female, none from Africa (most countries weren’t independent yet), P5 nations represented, etc.
UN role in human rights
Articulates HR standards
Develops treaties
Monitors HR conditions
Reports abuses
HRC conducts a universal periodic review
Rapporteurs investigate problems
Condemns perpetrators
criticisms of UN dealing w/ hr
Slow to respond
Cannot enforce standards/resolutions
role of international courts for hr
ICJ (UN)- tries countries
Tribunals- try individuals
ICC (independent)- try individuals
Hold governments accountable
Threat of trial may deter violations
Allows those who have no voice a chance for justice.
challenges of international courts dealing w/ hr
Refusal to join from powerful countries
Lacks legitimacy- cases come from less powerful countries
May shatter chance for peace
role of ngos in hr
Grassroots of international
Educate general public/ provide support and take legal action
Impartial
criticism of ngos dealing w/ hr
International ngos don’t take enough local input
role of social movements for hr
Pressure government to modify behavior
Address wide range of issues
Can draw international attentions
challenges social movements face when dealing w/ hr
Can be met with brutality
Public apathy
why is it important to codify at a national level?
protects human rights
promotes accountability
provides a legal framework for addressing violations
increases awareness
supports international obligations
what is a constitution
At the national level, human rights typically codified in a state’s constitution.
A constitution is a legal document that outlines the powers of the state and the procedures that will determine how the government is formed and how it functions.
Constitutions are laws, and as such are very legalistic in their language. It is also important to note that constitutions are meant to be the supreme law of a state and that no one, even the government, is allowed to break its provisions. Of course in practice this may not always happen, particularly in a state that does not have an impartial or independent judicial branch of government. Politically appointed judges may interpret, or ignore, the constitution.
U.S. Secretary of State Christopher Warren opinion on cultural relativism
“We cannot let cultural relativism become the last refuge of repression.”
U.S. Secretary of State Christopher Warren speaking at the World Conference on Human Rights in Vienna, 1993.
To what extent do you agree with Warren?
universalism
Universalists argue that all peoples have a shared and common humanity which means there can be some universal values. In human rights, universalists believe that all humans have the same inalienable rights simply because of their humanity. Therefore, all humans are entitled to the same rights and freedoms, regardless of age, sex, gender or any other distinguishing characteristic.
relativism
Relativism is a critical theory that argues nothing is universal among humans and that all values are created by culture. Because there is no universal culture, there can be no universal values. As a result, each culture determines its own values and its own idea of justice. Morality is subjective, and there is no objective morality. Relativists believe it is impossible to impose a universal set of human rights on all cultures because each culture creates its own set of morals and ideas of right and wrong. Instead, human rights are relative to the cultures that created them (i.e. western culture) and other cultures are entitled to their own morality.
treaty
an international agreement b/w 2 parties, members or even nations
- legally binding
- ex: global plan of action to combat trafficking in persons
protocol
a document that is legally binding that allows alterations and amendments to the main treaty
- legally binding
- ex: kyoto protocol
convention
something that happens prior to a treaty being formed. can also mean a treaty among a number of countries
- legally binding
- ex: geneva convention
International Covenant on Civil and Political Rights (ICCPR)
a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.
pros of the ICCPR and ICESCR
1st legally binding int’l human rights laws
Clarified rights from UDHR
cons of the ICCPR and ICESCR
No international enforcement body; only reports to UN GA
Not all states signed + ratified (e.g. China) and many ratified but w/ “reservations” (e.g. US – govt may impose capital punishment on anyone but pregnant woman)
review process for ICCPR
The Human Rights Committee is the body of 18 independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its State parties.
All States parties are obliged to submit regular reports to the Committee on how civil and political rights are being implemented.
Countries submit periodic reviews regarding the status of HR in their country
pros and cons of Convention Against Torture and Other Cruel, Inhuman & Degrading Treatment (1984)
pros:
- Builds on UDHR & ICCPR
- Specifies definition of torture & responsibilities for preventing it
- Prohibits states from relying on evidence gained via torture
- Protects all human beings (not just a state’s own citizens from torture)
cons
- States that have signed+ratified still carry out torture (e.g. US in aftermath of 9/11)
pros and cons of the Convention on the Protection of Rights of Migrant Workers (1990)
pros:
- Focuses on a specific subset of people (approx. 3% of world population are int’l migrant) often overlooked
cons:
- Mostly migrant SOURCE countries have ratified (e.g. Philippines, Bolivia, Morocco)
- Migrant DESTINATION countries (e.g. EU, US) have not ratified
pros and cons of the Rome Statute (1998)
pros:
- Created the International Criminal Court ICC
- Power to investigate & prosecute HR violations
- If UN Security Council allows, countries may be investigated for HR violations
cons
- No Russia, US, China, etc.
- Few convictions; mostly in Africa
how many core international human rights treaties are there?
9
what does the international criminal court deal with?
(I) Genocide,
(II) Crimes against humanity,
(III) War crimes, and
(IV) Crime of aggression
9 core international hr treaties
ICERD, ICCPR, ICESCR, CEDAW, CAT, CRC, ICRMW, ICRPD, ICPPED
ICERD
international convention on the elimination of all forms of racial discrimination
ICCPR
international covenant on civil and political rights
ICESCR
international covenant on economic, social and cultural rights
CEDAW
convention on the elimination of all forms of discrimination against women
CAT
convention against torture and other cruel, inhuman, or degrading treatment or punishment
CRC
convention on the rights of the child
ICRMW
international convention on the protection of the rights of all migrant workers and members of their families
ICPPED
international convention for the protection of all persons from enforced disappearance
CRPD
convention on the rights of persons with disabilities
ad hoc
created or done for a particular purpose as necessary.
ad hoc tribunals
The practice of protecting and enforcing human rights at the international level has existed since the end of World War Two.
- The Nuremberg Trials (1945-1946)
- International Criminal Tribunal for the Former Yugoslavia (1993-2017)
- International Criminal Tribunal for Rwanda (1994-2015
None of these courts were permanent and were entirely reactive in nature. In other words, they were only established after a severe violation of human rights had occurred. Afterwards, the court was dissolved.
why was the ICC created?
In 2002 the International Criminal Court (ICC) was established to ensure that a permanent court of justice existed to remain vigilant over violations of human rights.
ICC
After 60 states ratified the 1998 Rome Statute, the ICC began in 2002
As of Oct 2017: 137 members
Can only prosecute crimes occurring since 2002
Unlike ICJ, ICC prosecutes only individuals, not states
Is a court of “last resort” – wants states to enforce 1st
Tries to limit Security Council’s role in enforcement
NGO role in ICC
NGOs such as Human Rights Watch and Amnesty Int’l helped est. the ICC as a permanent body to focus on (a) the prosecution of genocide, (b) crimes against humanity, and (c) war crimes.
NGOs help:
provide support for victims & witnesses in giving evidence
submit legal analyses and policy arguments in the ICC through amicus curiae (“friend of the court”) briefs
govts with writing reports, translating services, etc.
strengths of ICC
- Attempts to provide consistent enforcement (tries to eliminate ad hoc tribunals)
- Provides the basis for external intervention when internal remedies are unavailable
- Tries to deter future atrocities
weaknesses of ICC
- US, China, Russia, India are not members
- Threatens intrusion into the affairs of sovereign states, even for non-member countries. (Most common criticism)
- Jurisdiction to intervene is granted only (a) in countries who are members OR (b) (if allowed) in non-member countries by nationals of countries who are members
- However, if the US deployed its military IN another country that is an ICC member, its personnel would be subject to the laws governing the ICC. - Too slow/too ineffective
- Not enough convictions - Possible biases
- Pro-Western values & legal traditions
- Anti-developing world
- Anti-Africa (until 2013, all those prosecuted by ICC had been African)
universal jurisdiction
is a legal principle (concept) that says certain crimes can be prosecuted from anywhere in the world because they are crimes against the human community. As a result, certain violations of human rights can be investigated and tried regardless of state sovereignty and international borders.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
- regional interstate organization
- permanent body: Meets several times a year to examine human rights violations in the hemisphere
- Parent organization: OAS (Organization of American States) – 35 countries of the Americas.
Its human rights duties comes from 3 documents:
the OAS Charter (1948), the American Declaration of the Rights and Duties of Man (1948, earlier in same year than UDHR), the American Convention on Human Rights (1969)
- tries countries, not people
- Enforcement: Court can require monetary and non-monetary reparations for damages done.
process of INTER-AMERICAN COURT OF HUMAN RIGHTS (IACHR)
- Individuals file a complaint with the Commission
- If the Commission rules case is admissible and the state is at fault, the Commission will issue recommendations to the state to make changes
- If the state does not follow these recs, then the case may be referred to the Court.
- The court is a LAST RESORT in settling the matter.
Court can require monetary and non-monetary reparations for damages done.
examples of regional human rights courts
- The African Court on Human and Peoples’ Rights
- European Court of Human Rights
- Can prosecute individuals
Asia does not have a court, though some trading blocs have HR agreements
issues with national courts
The issue with national courts, however, is that not all states have a fair, independent, or transparent court system. Furthermore, states may be incapable (e.g. failed states) or unwilling to enforce certain human rights, regardless of their treaty obligations under international law
2 tasks of supreme courts
First, be a court of final appeal meaning that if you believe a local or provincial court did not give you justice you have the opportunity to go to the supreme court to get a final decision on your case.
Second, the determine the legality or constitutionality of government legislation. This means that the supreme court has the power to determine if a government’s laws follow the constitution’s rules or not. Therefore, if human rights are codified in the constitution, it is often the supreme court’s job to determine when or if these have been broken.
NGOs bringing human rights to court
Supreme courts do not investigate human rights violations independently.
Instead, a concerned party (e.g. the person whose rights were violated, an NGO) must bring the case to court in a lawsuit that argues a particular right under the constitution was violated. This process can take years to go through the courts and requires the costly employment of lawyers to argue your case. We should recognize that not everyone has the financial resources to bring their cases to court. On the other hand, this is good opportunity to consider the value of non-governmental organizations (NGOs) in the practice of human rights. The American Civil Liberties Union (ACLU), for example, often provides, and pays for, its own lawyers to represent individuals who believe their human rights have been violated by the American government.
