lecture 2 - human rights Flashcards
What are human rights?
Rights inherent to all human beings
➞ positive and negative obligations
What type of obligation does the right to protest represent?
Negative obligation
What type of obligation does the right to education represent?
Positive obligation
What does the right to adequate living include?
Right to water
falls under in -> so it can also be seen as a human right
Which historical documents inspired international human rights laws?
- Magna Carta
- English Bill of Rights
- US Declaration of Independence
- French Declaration of the Rights of Man and Citizen
- US Bill of Rights
➞ they all come from western countries. These rights are really about protecting the rights of the individuals against the state (curtail sovereign power of the state)
What was the state of international law before WWII?
International law as a blank canvas with state sovereignty and non-intervention
What significant events marked the beginning of international criminal law after WWII?
- Nuremberg Tribunals
- Tokyo Tribunals
What is the purpose of the UN Charter Article 1(3)?
To promote human rights and fundamental freedoms
What is the UDHR?
Universal Declaration of Human Rights
➞ what they could do to prevent the things which happened during WWII. They wanted a treaty, but states couldnt agree what would be in the treaty, so that’s why it is a declaration (as a compromise, but not legally binding)
What are the two major human rights treaties?
- ICCPR (International Covenant on Civil and Political Rights)
- ICESCR (International Covenant on Economic, Social and Cultural Rights)
What is required for a treaty to become binding?
State consent
States has to ratify treaty, and if they want (they don’t have to), they can ratify the actual protocols.
if they don’t ratify the protocol, the treaty has less power, but it is NOT powerless because there are still other mechanisms in the treaties
Sources of international law
art 38 ICJ statue
- International conventions;
- International custom;
- General principles of law
- Judicial decision
What is international customary law composed of?
- State practice: have to do something and do it consistently
- Opinio juris:the belief that it acutally is a law/legal obligation
sources of international law
What are some examples of international customary law?
- Genocide
- Torture
- Slavery
- Right to life
- Discrimination
What do general principles of law refer to?
Vague legal principles that are less helpful in practice
a source of international law
What is the role of judicial decisions in human rights law?
Provide authoritative interpretations and guidance
a source of international law
-> part of the secondary sources: these are helpfull in practice. Many human rights treaties don’t really go into detail of the rights, but these two (writings of jurists) really clear it up
What is soft law in the context of human rights?
Non-binding guidelines and recommendations from expert committees
a source of international law
What are the two systems for monitoring human rights in the UN?
- Charter-based procedures
- Treaty-based procedures
the distinction is important because there are differences
What is the function of the Human Rights Council?
Peer review of states through the Universal Periodic Review (UPR)
- It works in cycles, because you cant have every state be reviewed each day
➞ subsidiary organ of the UN GA
What types of procedures can be found under the charter-based system?
- Resolutions
- Special sessions
- Commissions of inquiry
- Complaint procedures
Activities:
- Resolutions
- Special sessions & urgent debates during regular sessions
- Commissions of inquiry & fact founding
Special procedures under the charter based procedures
This is depended on the charter again, not weather a state accepted this
- They are independent expert and do it voluntairily
- They can do a lot of different things. The state has to have given a standing issue if they want to go to a state however.
Complaint procedure under the charter based system
- Concerns patterns of gross human rights violations (when it is really serious and not about individual cases)
- Confidential (so dont really know how effective it has been etc)
- No state visit ➞ written material
What is the main process under treaty-based procedures?
= State reporting
Similar to UPR but focuses on specific treaty obligations
What is the purpose of general comments or recommendations by treaty bodies?
Provide guidance or clarify the scope of specific rights
treaty based system
Authoritative interpretation of the treaty
What is required for an individual complaint procedure to take place?
State must have ratified the protocol
treaty based system
Then you’d go to a committee of experts (so not legally binding, but soft law as result)
What is the inter-state complaint procedure?
Requires additional ratification and involves state-to-state complaints
treaty based sytstem
You don’t want other countries to come after your back, so only used when it effects their state in particular.
inquiry procedure under the treaty based system
➞ depends on the treaty in questions, not all treaties allow this
Deals with patters of grave gross human rights violations
➔ so under charter universal and treaty depends on whether it is ratified, and only dealt with the specific rights itself
Charter based (Human rights council)
- Based on UN charter, all states are bound by it
- Special procedures (public)
- Complaint procedure (confidential)
- States do this against other states
Treaty based (treaty monitoring bodies)
- General comments/recommendations
- ➞ more specific rights
- Individual complaint procedure
- Inter-state complaint procedure
- State consent needed!!!!
What regional human rights mechanisms exist?
- Council of Europe
- European Union
- Organisation of American States
- African Union
Which regions have limited human rights mechanisms?
South-east Asia and the Middle East
