Oral exam Flashcards
Why do human rights matter?
They protect individuals from state held power and also provides moral guidelines and legal tools
What are some critiques against HR? (Moyn)
HR are utopian, there is a too big gap between the theory and the reality
What are some critqiue against HR? (Hannum)
There is a inflation of the HR beacuse the provide a protection for a too big spectrum of rights which slows down and make the framwork inefficent
what are som critque against HR? (feminist critqiue)
The HR are crated by men in a mens world and womens issues are not as considerd as they should be
what are some critque against HR? (post colonial)
the rights where created in a wester context and reflects western vaules which doesn’t really leave room for other alternatives
argue against the critique
ofc, HR a lot of weaknesses but universalism creates a common minimum standard of life and HR are better then no rights at all
what are the orgins of human right?
it is hard to specify it to one certain time point since similare thoughts to what we today say is human rights have exsited for so long
king Hammurabi
an eye for an eye, a tooth for a tooth
Magna carta (1215)
was one of the first scripts mentioning rights, but limited these to powerful men
natural law (lex naturalis)
Human rights originate from natural law (lex naturalis), law that is inherited by virtue of human nature, they are god-written and a natural norm. some HR we have today is bulit on the same ground as lex naturalis
human law vs. natrual law
natrual law should alwasy prevail human law (man made law) but later in the renaossance natrual law became natrual rights which was the start of human rights
What documents contributed to the transformation to positive law?
US constitution (1789): protected only a few interests such as freedom of speech, religion, right to bear arms and fair trial
French déclaration (1789): liberté, fraternité et egalité
What were the Nuremberg trials?
International court following WW2 where individuals were prosecuted for crimes against humanity/war crimes
Customary international law was applied since the conduct was of such a degree that it was not only a matter of domestic jurisdiction–> international military tribunal
france, soviet union, uk and the us signed the charter
individauls were prosecuted based on the violation of peace, war crimes and crimes against humanity
What is the UDHR?
the start of the international law that we recognise today as human rights
10 december 1948 un general assambly adopted it
Aimed to build international relations and includes both political and social rights
not a treaty in a formal sense. couöd be interpretred in lots of ways
What happened during the cold war and the division of the rights?
The US emphasized political rights, such as right to vote, speak, freedom of religion, symbolicing the liberal democracy
While the soviet union emphasized social and economic rights, such as the right to work, healthcare and education, symbolicing socialism
This later on (1966) led to a division into the two covenants International covenant on civil and political rights (ICCPR) and International covenant on economic, social and cultural rights (ICESCR)
What are human rights treaties?
It is a form of agreement on boundaries and legal frameworks for how states can treat individuals within their territory, human rights treaties are not based on reciprocity and has room for reservations
What does erga omnes mean?
Towards all, toward the international community as a whole
What are the pros and cons of human rights treaties?
Pros: almost universal ratification, uniformity and certainty
Cons: requires consent, room for reservations and vaguely written
What does opinio juris mean?
Opinio juris is the belief that a practice is rendered obligatory by the existence of a rule of law requiring it, practise is required by law
What does jus cogens mean?
Jus cogens are peremptory norms that does not need consent and cannot be derogated regardless of the states ratification
Originates from natural law and that there are laws written not by man but by a higher power
Includes for example prohibition of slavery, torture and genocide
What is soft law?
Non-binding instruments such as guidelines, codes of conduct, declarations and general comments
They facilitate political consensus, clarifies how international law can be applied and creates norms for the future
What are the characteristics of human rights?
Interdependent, interrelated and universal
They recognise the individuals interests against the state,
The individual holds the rights and the state holds the obligation which is not based on reciprocity but erga omnes
What are the implementations of human rights obligations?
Respect: negative duty to not breach the right
Protect: protect and prevent violations of the right
Fulfill: positive duty to ensure the protection of the human rights (legislation)
What is the norm-and-exception framework?
Absolute vs relative obligations
absolute obligation: some core obligations, such as those covered by jus cogens, must be respected at all times and sets a minimal essential threshold
Relative obligation: some obligations can for some exceptions be changed, such as the right to protest during covid
Who has human rights and who holds the obligations?
Individuals, Both citizens and non-citizens (although non-citizens’ rights might be restricted, right to vote for example) have human rights
States has obligations, but also individuals to not harm other individuals rights
When do states also have extraterritorial jurisdiction?
Where they have effective control of a territory (by military occupation) and exercise all or some of the public powers normally done by the territory’s government
Why are regional human rights systems created? What are the strengths/weaknesses?
They address local and regional systems and can adapt to a specific situation which creates a strong enforcement mechanism
Strengths: transplants international law to local domestic law, and vice versa; local law and values can have an impact on international law
Weaknesses: regional law may conflict with international human rights norms and regional human rights bodies might interpret human rights differently
What is ECHR?
European Convention on Human rights (1950), created in response to the two world wars and the violations/war crimes committed
what is the aim of ECHR?
The aim was to ensure justice and international peace by constructing and protecting human rights and democracy
ECHR is enforced in ECtHR, european court of human rights, in strasbourg
It is required to ratify ECHR in order to be a member for the council of europe
For example, art. 2 right to life, art. 3 freedom from torture, art. 9 freedom of thought, conscience and religion and art. 14 right to not be discriminated against
What are the different types of interpretation of international law?
Dynamic/evolutionary: international law is considered a living instrument and that the interpretation should follow social, political and moral changes
Effective protection principle: the rights of individuals should be interpreted broadly with limited exceptions
Systemic interpretation: interpretation should be in the light of the UN treaties’ context but states retains a margin of appreciation
What is the margin of appreciation?
(bedömningsmarginal) judge made doctrine that considers differing economic, legal, social and cultural backgrounds
If there is a lack of european consensus there will be a wide margin of appreciation
What is the inter-american system?
American convention on human rights (1969)
Focus on civil and political rights
Enforced in Inter-american court of human rights
What is the African system of human rights protection?
African charter on human and peoples’ rights (1981)
Delay due to decolonization
Emphasizes collective rights and applies an evolutionary interpretation
What is the Arab world system for human rights protection?
Cairo declaration on human rights in islam (1990)
The declaration refers to the islamic sharia rather than UDHR and many states have made reservations to UN treaties based on sharia law
Arab charter on human rights (2004)
Elaboration of CDHR that covers but civil and political rights and economic, social and cultural rights, but lacks enforcement and is in need of ratification
What is the asian system for human rights protection?
ASEAN human rights declaration (2012)
It’s based on soft law and includes both civil and political rights and economic, social and cultural rights and emphasizes the collectives rights and cuties
It also includes rights for elderly, which is not included in the UN system
ASEAN intergovernmental commission on human rights (2004)
Composed of governmental representatives and has no interference in international affairs
Promotes human rights through enhancing public awareness, encouraging ratification and promoting implementation
What are the categories of human rights?
Civil and political rights:
right to life, prohibition of torture and slavery, freedom of religion, association, right to liberty, privacy, a fair trial, vote, property
Embodies freedoms and has immediate realization
Economic, social and cultural rights:
right to adequate standard of living, food, water, health, education, work, strike
Includes welfare matters, progressive realization due to limited available resources
Individual rights:
the majority of rights are individual rights
Collective rights:
peoples-oriented, indigenous people, womens’ rights, groups facing specific vulnerability and in need of specific protection
First generation rights:
Civil and political rights
Second generation rights:
Economic, social and cultural rights
Third generation rights:
Environmental rights, the right to development
What are the general characteristics of civil and political rights?
They are rights and freedoms that enables individuals to participate in civil and political life, civil rights provides protection from the government’s action and political rights allow individuals to participate in the political system
What are the general characteristics of economic, social and cultural rights?
They provide the right to participate in cultural life and protection from authorities moral and material interests from scientific, literary and artistic production
What are the sources of human rights law?
human rights law has is part of international law and comes from the same source, mainly article 38 in the statute ICJ but also treaties (ICCPR and ICESCR?), customs, soft law and jus cogens
what is the human rights council?
It replaced the human rights commission that was considered too politicized, a subsidiary organ of the UN general assembly consisting of 47 members states which are geographically representative, they have plenty of human rights instruments and organs but still have not achieved to reach the aim of human rights
What is the human rights councils functions?
Functions: promotes the mainstream of human rights in the UN system, makes recommendations, private advisory services, serves as a forum for dialogue and undertakes a universal periodic review
States report on how well they comply with the aims of the treaties they have ratified, but they usually want to portray themselves as better than they actually are so also NGO:s create shadow reports so there is a full picture and all problems are identified, this review is not judicial but more of a dialogue
This is not because of lack of legal instruments or declarations, but rather to fulfill and realize these rights
What are treaty based bodies and their functions?
The rights included in UDHR were further developed into treaties that bind the states that ratify them, there is a massive codification of HR’s law and a big challenge to comply them
That’s why there are committees working pro bono with the functions to consider state implementation reports, draft general comments, conduct inquiries and individual complaints
Functions: reports on how well states have implemented the treaties they ratified (not legally binding but still influential), provide guidance for improvement in treaty obligations,
Could there be a world court of human rights?
The idea to create a world court of human rights appeared already in 1947, but was not supported, since it was considered too difficult to combine all the world’s states’ legislation and legal systems to one global court
