Lecture 10: International human rights law Flashcards
Where do human rights come from? Natural law vs. positivism
Natural law approach: human rights come from higher law, a law higher than positive (man-made) law
Positivism: rights come from what positively enacted law (by humans)
The natural law approach to human rights is embodied in
The Universal Declaration of Human Rights’ preamble (1948), although it does not specifically call upon divine law
The main distinction of human rights in IL
Civil and political rights: right to vote, free speech, due process etc. (generally negative rights)
Economic, social, and cultural rights: right to education, healthcare, livelihood etc. (generally positive rights)
What kind of human rights are usually associated with the developed vs. developing world?
Civil and political rights are often predominantly associated with the developed world, because of the influence of experiencing totalitarianism
Economic, social, and cultural rights are often predominantly associated with the developing world (placing emphasis on development over traditional negative rights, e.g. focus on having enough food to eat at the expense of civil and political rights)
Historically, human rights were viewed as…
Within the sovereign purview of states - they could do what they wanted
Which treaty internationalized human rights for the first time?
The Treaty of Versailles: laid out some rights for inhabitants of mandate territories and certain minorities in Eastern Europe + labor rights through the ILO
When did human rights become an international priority?
After the horrors of WW2
Are UNHR findings binding?
No (has no court and not valid in most domestic courts), but highly influential
Has UNHR reached status of customary IL?
No, because state practice shows that it is not enforceablw
Since 1945, human rights have
Proliferated, with human rights declarations, treaties, instruments - some of them binding
Virtually all international and regional judicial human rights bodies require for this before complaints can be taken up
The exhaustion of local remidies
Are the UN systems for promoting human rights binding?
No, they are all mostly symbolic and can only advice and condemn, with the exception of UNSC in cases of genocide and very grave crimes
What 3 things does the UN Human Rights Council do?
- Reviews members’ human rights record (universal periodic review)
- Appoints special rapporteurs to report on certain issues
- Accepts complaints against states from individuals (if local remedies exhausted)
What has the UNHRC been accused of?
Bias against certain countries and of being unduly tolerant of some systemic human rights violators
E.g. been accused of bias against Israel, while lenient on North Korea, China, and Saudi Arabia
Are UNHRC reports binding?
No
Name 3 of the 9 other UN human rights bodies
- Committee on the Elimination of Racial Discrimination
- The Committee on the Elimination of Discrimination against Women
- Committee against Torture
UN treaties usually requires that states
Change their own domestic laws in accordance with the treaty - but not really enforced
European Convention of Human Rights - 4 points
- Drafted in 1950, entered into force 1953
- Inspired by UNHR but with enforcement (eventually)
- Under aegis of Council of Europe (not EU!)
- Eventually led to the establishment of the European Court of Human Rights
European Court of Human Rights (ECtHR) - 5 points about how it works
- Is an international court that can make legally binding rulings against states
- Receives individual complaints
- Most member states have legislation that automatically translates their rulings into national law
- Every member has a judge, regardless of population size
- Compliance generally good
Content of the European Convention on Human Rights - 2 points
- Guarantees a variety of rights, both civil and political, and economic, social, and cultural, e.g. right to life, liberty and security, privacy, marriage
- Additional protocols (that haven’t been signed by all parties) contain legislation on private property, against discrimination etc.
Two central doctrines to ECtHR
- Margin of appreciation
- Living instrument
ECtHR: Margin of appreciation
Rulings can mean different things in different national contexts, so even if rights are universal they can be implemented differently with a minimum of the right that must be implemented
If no consensus or strong disputes between states, the ECtHR will usually…
Allow states to do what they want
ECtHR: Living instrument doctrine
Allows itself to reinterpret ECHR provisions in light of new conditions
Can be controversial as states which may not have agreed to a certain right under the ECHR may find themselves suddenly bound by it
Example: Dudgeon v. United Kingdom on prohibition of homosexual acts argued as right to private life
Name 2 other regional bodies of human rights
- Inter-American Court of Human Rights (state party submissions)
- African Court of Human and Peoples’ Rights (9/50ish countries allow individual complaints)
