International HR law Flashcards
2 definitions HR
rights that the individual can assert against the organized power of the state
rights that we have by virtue of being human beings
Relevant historical facts in HR development
Before WWII:
- state sovereignty + non intervention
- 1919: international labour organization
- 1927: Slavery convention
- League of nations
- - HR clauses in mandated to colonial powers to administer territories
- - treaties about minorities
After WWII:
- 1945 Charter UN -> Art 1 foundation of modern HR law
- nuremberg + Tokyi tribunals
- 1948: UDHR
- 1966: ICCPR + ICESCR
Domestic developments that inspired international HR law (list)
1791: US Bill fo Rights
1789: French Decaration of Rights of man and citizen
1776: UD declaration of independence
1689: English Bill of rights
1215: Magna Carta
Domestic developments that inspired international HR law (characteristics)
- from western countries
- to reduce sovereign power of states
- Basic rights of the individual
Basis of obligation in international human rights law
- general international law
- custom
- jus cogens
- treaties
- General principles are too hard to prove
- subsidiary sources
- judicial decisions helpful to interpret vague norms of HR
- soft law (es not binding decisions from committees)
Characteristics core international treaties in international HR law
- require state consent
- contain rights + state obligations
- each ahs a body that supervises it
- can have protocols attached (state consent) about
- enforcement
- extra rights
Which HR are jus cogens?
prohibition racial discrimination
prohibition genocide
prohibition torture
Main HR treaties
- International Bill of HR
- Universal declaration of HR
- International covenant on civil and politcal rights
- international covenant on economic social and cultural rights
- 1948 Genocide Convention
- Subject specific treaties
- UN Charter
- Regional treaties
Regional treaties on HR
- American Convention on Human Rights
- European Convention on Human Rights
- African Charter on Huma and People’s Rights
Important UN Charter articles for HR
- Art 1 ->encouraging respect for HR without discrimination
- Art 55 -> universal respect for HR without discrimination
- Art 56 -> All MS should work to achieve Art 55
Collective rights: definition
thie needed by segments of the population that demand government action
Group rights: definition
inhere in population, not in individuals (es to self determination)
Duty bearers of HR are
- States
- Intergovernmental organizations (1949 Reparation case)
Collective rights can be divided in
- Civil and political rights: individual freedoms from government
- Economic and Social rights: claim action by the government
Art 2 ICCPR vs Art 2 ICESR
- art 2 ICCPR = respect and ensure
- art 2 ICESR = take steps, but minimum obligations
Core obligations Economic and social rights
- health facilities, goods, services on non discimination basis
- essential food
- basic shelter
- essential drugs
- equitable distribution of health facilities
Universal nature of HR from
1993 Vienna Declaration and program of action
State’s obligations in HR can be (state - individual)
- horizontal: protect individuals from other individuals
- vertical: State direct obligation towards individuals
States have 2 types of obligations
- positive: to fulfill (the right)
- negative: to protect (the right)
In what is international HR law different from Public international law?
In international HR law the obligations are on States towards individuals, while in PIL the obligations are between states
Monist state definition
= direct application of IL
Absolute rights (definiion + examples)
= rights that cannot be limited
- prohibition of torture
- of slavery
- certain freedoms
- certain fair trial aspects
Permissible limitations of HR
- prescribed by law
- necessary
- legitimate aim
- public safety
- public health
- public order
- public morals
- foundamental rights
- freedom of others
Dualist state definition
= IL has to be incorporated in domestic legal system
HR have universal nature because
they are a characteristic of the modern state
Principles of HR/Main Civil and Political rights
- Human dignity
- Freedom (intellectula and physical)
- Fairness, impartiality and Equality
- Justice and legality
- Private sphere
- Accountability
- Participation
International machinery HR
UN
- Charter based -> human rights council
- Treaty based -> treaty monitoring bodies (committees)
Regional systems
Treaty monitoring bodies (Committees)
- are 9
- their work has weight in ICJ decisions
- functions
- state reports
- general comments
- individual complains (where can do)
- inter-state complains
- inquiries
Treaty based bodies monitoring procedures
- state reporting
- review + analysis
- concluding observations
Human Rights council: functions
- plus promotion and protection HR
- Address violations
- investigate HR concerns with independent experts
Human Rights Council: Tools and mechanisms
- UPR
- Complaint procedure (confidential)
- Special procedures (public)
Huma Rights Council: limitations
- enforcement power: not binding
- among its 47 members there have been HR violations
Human Rights Council predecessor
UN commission on Human Rights
- standard setting role
- country based reports
- thematic mandates
but political selectivity
Regional bodies
- Inter American Commission on HR + Inter American Court: complains to IACH that makes recommendations, cases to the Court
- European Court of Human Rights: complains + cases
Council of Europe: broader standard setting role and compiance monitoring, to enter mandatory to sign European convention on HR - African Commission on Human and People’s rights + Courts: complains and investigation by the Commission, cases to the Court
Regional treaties on HR
- American Convention on HR
- European Convention on HR
- African Charter on Human’s and People’s Rights
CPRs vs ESCRs
- Traditional western rights/ favoured by Eastern block and Global south
- Negative obligations/ Positive obligations
- Strict obligations/ Margin and Progressive
- No resource allocation questions/ questions on resource allocation
- Limitate to State’s jurisdiction/ Extraterritorial application
Similarities ICESCR and ICPR
Obligations are of immediate effect
From CESR General Comment 3: obligations
Under ICESR States have to obligations:
- of conduct -> no discrimination
- of result -> take steps towards
From CESR General Comment 3: minimum core obligations
- widest enjoyment of rights
- keep monitoring
- low- cost targeted programs for vulnerables
UN GA “The right to a clena, healthy and sustainable environment”
- Resolution 76/300
- it is a human right
- it is related ot other HR and int law
Right to healthy environment: where can we find it?
- Art II protocol san salvador
- Art 24 CRC
- Art 24 ACHPR
Special rapporteur…: what has it done?
… on the issue of HR obligations relating to the enjoyment of a safe, clean, helathy, sustainable environment
- The safe climate report -> Wha this right means
- Clean Air report -> many states have it in their legislations/are in international agreements that include it
Human Rights Committee: case Billy at al. vs Australia
CLAIMS: Australia, failing to adopt adaptation and mitigation measures vs GHG emissions, violated of ICCPR
- Art 2
- Art 6 -> right to life
- Art 17 -> right to private life
- Art 27 -> rights of minorities
- Art 24 CRC
ADMISSIBILITY
- Australia is part of ICCPR
- High Court of Australia already ruled regarding this case
COMMITTEE’s CONSIDERATIONS
- no violation -> art 6: risks are in the foreseeable future, no imoacts now, Australia has still time
- violation -> Art 17. Art 27 (Art 2)
Optional Protocol to ICCPR
- Art 1: individuals can bring claims before the HR Committee
- Art 2: domestic courts must be exhausted before
- Art 4: Committee will bring claims to State’s attention, State will give written explanation
