Lecture 13: Introduction to Human Rights Flashcards
What are human rights?
Human rights are often used loosely with varying meanings, both positive and negative, depending on the context and the purpose (Ilias Bantekas and Lutz Oette, 2024).
What is the difference between values, principles, and legal rights in human rights?
Human rights serve as both claims based on values and principles and legal rights that involve entitlements and freedoms. Philosophical conceptions differ from international human rights law, which is based on recognized sources (Bantekas and Oette, 2024).
Are human rights universal?
The universality of human rights has been contested, especially whether they arose from Western traditions or have global roots. Debates focus on textual compatibility rather than the social practice of human rights (Catherine Baylin Duryea, 2022).
What is the Natural Rights tradition in Western thought?
The Natural Rights tradition, associated with Thomas Aquinas (1200s) and John Locke (1632-1704), holds that rights are derived from human nature, society, and culture, and can be understood through observation of the world and human nature. It also connects to divine rights.
What is the theory behind Positive rights, utilitarianism, and legal positivism?
Positive rights, utilitarianism, and legal positivism, as discussed by thinkers like Thomas Hobbes (1588-1679), John Austin (1709-1859), and HLA Hart (1907-1992), argue that rights come from laws passed by the supreme political authority of the state.
What question does the debate on rights raise?
The debate raises the question: What rights do we have, and what rights should we have? It involves considerations of morality, politics, and law.
What is individual liberty?
Individual liberty, based in political liberalism, is freedom from interference by others in one’s choices or actions (“negative rights”). It supports personal autonomy but is not absolute. Clashes are resolved by law or social regulation.
What is a key question regarding individual liberty?
Key questions include: Which liberties should be valued over others? How should individual liberty be balanced with the public interest?
What are civil liberties?
Civil liberties refer to the liberties that contribute to the relationship between individuals and the state. They are enjoyed by people as citizens and protected by the state, either as a matter of political morality or law.
What are negative rights or freedoms (liberties)?
Negative rights or freedoms mean people are free from interference by others, ensuring autonomy. However, to exercise this freedom effectively, there must be a system or positive duties on others to protect these freedoms. Liberty means the law provides for it to be lawfully done.
What is the tension in negative rights between individual and collective responsibility?
The tension is in balancing individual responsibility for freedom and the collective duty to protect those freedoms.
What are positive rights?
Positive rights correlate with duties to provide the content of the right (such as “goods”). These rights are specifically provided by the law to ensure they can lawfully be done.
What are 1st generation civil and political rights?
1st generation rights focus on personal liberty, religious tolerance, and freedom of expression.
What are 2nd generation economic, cultural, and social rights?
2nd generation rights include the right to housing, education, and minimum living standards.
What are 3rd generation collective or group rights?
3rd generation rights include the right of peoples to self-determination.
What are some key international human rights treaties?
Key treaties include the Universal Declaration of Human Rights (1948), European Convention on Human Rights, ICCPR (1966), and ICESCR (1966), among others.
What are the possible state obligations regarding human rights?
State obligations include “respecting,” “protecting,” or “fulfilling” rights, refraining from interfering with liberties, securing rights against others’ interference, and having positive obligations to achieve outcomes.
What is the traditional approach to rights in the UK?
The traditional approach is based on a presumption of liberty, where rights might be protected by common law, with additional rights created or protected by statutes.
What does the sovereignty of Parliament mean in relation to rights?
The sovereignty of Parliament means that Parliament can override rights at any time, as there is no fundamental law protecting them.
How are international treaties treated in the UK regarding rights?
International treaties must be enacted (incorporated) into UK law to be effective in protecting rights.
How have fundamental rights/civil liberties been recognized in the UK?
Fundamental rights and civil liberties have received some recognition in political practice and judicial decision-making, even though they are not always protected by a fundamental law.
What was the case of Entick v Carrington (1765) about?
Entick v Carrington (1765) involved John Entick, whose house was searched and papers seized by King’s messengers. They claimed authority from the Secretary of State, but the court ruled their actions were unlawful.
What was Lord Camden’s reasoning in Entick v Carrington?
Lord Camden ruled that the Secretary of State’s claimed power was not supported by any law. He stated that any invasion of private property, no matter how minor, is a trespass unless justified by positive law.
What did Lord Camden say about the justification of actions in Entick v Carrington?
Lord Camden stated that if a justification is claimed, it must be shown through statute law or common law principles. If no justification can be found, the silence of the books is an authority against the defendant.
What was the case of Bell v Black and Morrison (1865) about?
In Bell v Black and Morrison (1865), the Procurator-fiscal investigated a conspiracy to kill or injure two people. Bell, a suspect, was not charged but had his house searched and papers seized without a named warrant for all suspects.
What did the court say about the seizure of papers in Bell v Black and Morrison?
The court stated that the seizure of papers in the circumstances was unknown to the law of Scotland. They emphasized that only an Act of Parliament or common law founded on usage recognized by the Court could justify such actions.
What was the court’s decision in Bell v Black and Morrison regarding the warrant?
The court declared the warrant illegal, stating that if they had any hesitation in their judgment, they would have consulted other judges, but they had no doubt and immediately pronounced the warrant to be illegal.
How can legislation affect freedom?
Legislation can either expand or restrict freedom depending on its provisions.
Can you provide examples of legislation that affects rights?
Examples include the Criminal Procedure (Scotland) Act 1975, Sex Discrimination Act 1975, Contempt of Court Act 1981, and Public Order Act 1986.
What was the approach of English courts towards the ECHR before the HRA & SA?
English courts used the ECHR to help interpret statutes, with a presumption of conformity (e.g., Phansopkar [1976], Brind [1991]).
What was the Scottish courts’ approach to the ECHR before the HRA & SA?
Scottish courts took a different view, as seen in Kaur v Lord Advocate (1981), where it was stated that the ECHR could not be regarded as part of the municipal law of Scotland unless Parliament passed legislation giving effect to the Treaty provisions.
How did T, Petitioner (1997) change the approach to the ECHR in Scotland?
T, Petitioner (1997) departed from Kaur v Lord Advocate and adopted a presumption of conformity with the ECHR, aligning more closely with the approach taken in England.
How can ‘common law rights’ be used in interpreting statutes?
Common law rights can be used to interpret statutes, ensuring that rights cannot be taken away except by express words (e.g., R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115).
How do ‘common law rights’ affect judicial review cases?
Common law rights can lead to enhanced scrutiny in judicial review cases (e.g., R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514).
How are rights understood under common law?
Rights are understood as liberties, and common law rights cannot be taken away except by express words (e.g., R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115).
How do common law rights affect judicial review cases?
Common law rights lead to enhanced scrutiny in judicial review cases (e.g., R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514).
What does Parliamentary Sovereignty mean for rights protection?
Parliamentary Sovereignty means Parliament can always override rights and may be a source of additional rights or restrictions on liberties/rights.
How were decisions of the ECtHR used in UK courts before the HRA & SA?
ECtHR decisions were used to aid the interpretation of statutes, with a presumption of conformity (e.g., T, Petitioner 1997 SLT 724).
What is the process in the ECtHR for individuals?
Individuals can make a petition to the ECtHR once domestic remedies are exhausted, seeking just satisfaction and ensuring the execution of the judgment by the state.
