Lecture 10

Question 1

Where do human rights come from?

Answer 1

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”

From the preamble, Universal Declaration of Human 					Rights (1948)

Question 2

Natural law approach

Answer 2

• Natural law approach: human rights come from higher law, law that is higher than positive (man-made law).
• embodied in UDHR’s preamble, but doesn’t call explicitly upon divine law.

Question 3

Positivist tradition

Answer 3

Positivist tradition: rights come from what positively enacted law (by humans)

Question 4

What/who grounds rights in religion?

Answer 4

Some subsequent human rights documents, such as the Universal Islamic Declaration of Human Rights and the Cairo Declaration on Human Rights in Islam, specifically ground rights in religion

The Cairo declaration (1990 version) e.g. bans conversion from Islam and 	limits rights of non-Muslims in some respects

Question 5

Is the idea of inherent, universal rights inherently theological?

Answer 5

no, see civil and political rights and economic, social and cultural rights

Question 6

Civil and political rights

Answer 6

right to vote, to free speech, to due process, etc—protections for the person against the power of the state
Generally but not always negative rights

Question 7

Economic, social and cultural rights

Answer 7

right to education, healthcare, livelihood, etc—positive entitlements of a person which the state has to provide
Generally but not always positive rights

Question 8

Associations with the developed world?

Answer 8

Civil and political rights are often predominantly associated with the developed world—the influence of the experience of totalitarianism

Question 9

Associations with the developing world?

Answer 9

Economic, social, and cultural rights are often predominantly associated with the developing world—greater emphasis on e.g. development over traditional negative rights

Question 10

China’s justification?

Answer 10

China used their progress in the economic, social and cultural rights to justify their authoritarianism

Question 11

Human rights traditionally

Answer 11

Human rights were traditionally viewed as within the sovereign purview of states

Question 12

Human rights in the treaty of Versaille

Answer 12

The Treaty of Versailles for the first time internationalizes human rights, albeit in a very limited way (for inhabitants of mandate territories, e.g. and for certain minorities in eastern Europe) + labour rights through the ILO

Question 13

Influence of ww2

Answer 13

After the horrors of the Second World War, protection of human rights became an international priority

Question 14

UN Charter 1945

Answer 14

• UN Charter (1945): “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”
• UDHR followed in 1948, and has been enormously influential for subsequent developments—but not binding

Question 15

Proliferation human rights stuff

Answer 15

• Since 1945, there has been a proliferation of human rights declarations, treaties, instruments, etc. some of them binding, others symbolic.
• There are also many international human rights bodies, some of which have the power to make binding decisions (e.g. ECtHR)
• Virtually all international/regional human judicial rights bodies require for the exhaustion of local remedies before complaints can be taken up

Question 16

UN bodies

Answer 16

The United Nations System contains many mechanisms/bodies dedicated to the promotion of human rights, but virtually none of them has the power to bind states to follow their decisions

Question 17

UN human rights council

Answer 17

United Nations Human Rights Council: reviews members’ human rights record (universal periodic review), appoints special rapporteurs to report on particular issues, and accepts complains against states from individuals

Has been accused of bias against certain countries and of being unduly tolerant of some systemic human rights violators

States can simply ignore the UNHRC’s activities, reports, etc.

Question 18

UN committees

Answer 18

Nine other UN bodies about specific areas of human rights established under various treaties

Committee on the Elimination of Racial Discrimination, The Committee on the Elimination of Discrimination against Women, Committee against Torture, etc.

The most these committees can do is to ask states nicely to stop doing what they are doing

Question 19

Regional arrangements & inforcements

Answer 19

The strongest (in terms of bindingness on states) international human rights protection regimes are to be found in regional arrangements

Question 20

European convention of human rights

Answer 20

European Convention of Human Rights (drafter 1950; entry into force 1953)—inspired by the UDHR, but with enforcement teeth (eventually)

Under the aegis of the Council of Europe (not the EU!)

Question 21

European court of human rights

Answer 21

European convention of human rights led to the establishment of the European Court of Human Rights (ECtHR), based in Strasbourg, which has the power to make legally binding rulings against states

Question 22

UN system and rights protection

Answer 22

Guarantees a variety of rights, both civil and political and economic and social and cultural—some of which can be derogated in emergency situations

Right to—life (Art 2), liberty and security (Art 5), privacy (Art 8), marriage (Art 12), among some examples

Additional protocols, not all of which have been signed by all parties (e.g. private property, against discrimination), reflecting the contentious nature of some rights and the difficulty in defining their scope

Question 23

The ECtHR rulings & compliance

Answer 23

The ECtHR is an international court which hears complains against states by individuals who feel aggravated under the Convention, after they exhausted domestic remedies

Rulings are binding on states as a matter of international law

Compliance is generally good

Question 24

ECtHR margin of appreciation

Answer 24

The ECtHR is meant to allow states a margin of appreciation, in acknowledgement of the fact that the scope of rights is seldom entirely clear and that different states may reach different conclusions as to what a right requires

ECtHR looks at state practice (needs not be uniform) and the nature of the right under ECtHR

Examples: abortion (no uniform state practice except perhaps when life of mother in danger), euthanasia (no right nor prohibition), criminalization of wearing of burqas)

Question 25

living instrument doctrine ECtHR

Answer 25

The ECtHR adopts a “living instrument doctrine” which allows itself to reinterpret ECHR provisions in light of new conditions

This can be controversial as states which may not have agreed to a certain right under the ECHR may find themselves suddenly bound by it via the expansion of the “living” instrument

Example: Dudgeon v United Kingdom (1981) on prohibition of certain homosexual acts—right to private life

Question 26

Similar bodies to the ECtHR

Answer 26

Other similar bodies include the Inter-American Court of Human Rights (est. 1979) and the African Court on Human and Peoples’ Rights (est. 1998; first judgment 2009)

Cases in the former can only be submitted by state parties; of the latter, nine African countries allow for individual petition