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Human Rights Law (SB - S1) > S2 Sources of International Law > Flashcards

S2 Sources of International Law Flashcards

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1
Q

what is the primary source of international law?

A

Treaty

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2
Q

who enforces international law?

A

this is the role of international institutions such as UN Charter bodies and Treaty bodies

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3
Q

what is international law?

A

is the body of rules which regulates a state’s conduct in relation to other state on the international levels.

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4
Q

what’s the subject of international law?

A

states, not individuals

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5
Q

what makes countries bound under a treaty?

A

consent

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6
Q

Dualist state?

A

international and domestic laws are seperate

Eg; Al-Kateeb case

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7
Q

what does dualist state mean for Australia?

A

Strict seperation between domestic and international law
Alleged breach of international law cannot be determined by domestic court - only by an international tribunal such as UN body

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8
Q

Can individuals from dualist system bring complains before UN ?

A

Usually not, States have laws to protect the rights of their citizen
Exception - individual complaints mechanism under Optional Protocol 1 of ICCPR

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9
Q

The main sources of International law under?

A

Art 38 of Statute of the International Court of Justice (ICJ)

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10
Q

The main sources of International law?

A
  • Treaties
  • International Custom
  • the general principle of international law recognised by civilised nations
  • Judicial decisions and the teachings of the most highly qualified publicists
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11
Q

International law forms?

A

1- Treaties and conventions

2- Customary International Law

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12
Q

Bill of Rights;

A
  • UDHR
  • ICCPR
  • ICESCR
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13
Q

what is Customary international law (CIL)?

A

‘unwritten law’ - based on the actual practice of the states, rather than a written document

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14
Q

is Customary Law as biding as a Treaty?

A

yes, but difficult to prove it’s existence and consent

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15
Q

is consent a requirement for customary law?

A

No consent or agreement required

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16
Q

Requirement for proving CIL?

A

1- Unambiguous and uniform state practice - followed by significant number of states over a significant period of time
2- Subjective Belief by states that this practice is mandatory (Opinio Juris) - followed out of a sense of legal obligation

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17
Q

Opinio Juris?

A

“an opinion of law or necessity.”

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18
Q

what was the first Universal statement of UN?

A

UDHR

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19
Q

Content of UDHR consists of

A 
preamble and 30 articles setting forth the human 
rights and fundamental freedoms to 
which all men and women everywhere in 
the world are entitled without 
discrimination: liberty, equality in 
dignity and rights, security, non-
discrimination and a host of civil and 
political rights (Arts 4-21) as well as 
economic, social and cultural rights (Arts 
22-27)
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20
Q

Among the rights and freedoms named in the UDHR are:

A

the right to life, liberty and security of person
equality before the law
the right to freedom of movement and residence
freedom from torture and cruel, inhuman or degrading treatment or
punishment
the right to seek asylum in other countries
freedom of thought, conscience and religion
the right to own property
the right to education
the right to work and to form and join trade unions
the right to an adequate standard of living
the right to health care
the right to freely participate in the cultural life of the community 12

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21
Q

when did UDHR declared?

A

UDHR is a declaration of the UN General Assembly adopted
on 10 December 1948

several aspects of the UDHR are by operation of process of CIL, binding upon all states. These are generally thought to include prohibition against slavery, genocide, torture, arbitrary detention and systematic racial discrimination.

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22
Q

is UDHR a treaty or convintion?

A

No

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23
Q

Main source of International Law?

A

Treaties - Only treaties can create (& define powers of) international institutions (such as UN) to monitor, implement & enforce international law

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24
Q

Main 2 human rights treaties?

A

International Covenant on Civil and Political Rights 1966 (ICCPR)
International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR)

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25
Q

are both main treaties multilateral (many parties) ?

A

yes, ICCPR- currently 172 parties (116 parties to first optional protocol)
ICESCR- currently 169 parties

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26
Q

similarities between two main conventions?

A
  • Preamble and Articles 1, 3 & 5 are very similar
  • Note the similarities between the right to self-determination in each of the treaties
  • Art 1, ICCPR; Art 1, ICESCR
    ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’
27
Q

Difference between two main conventions?

A

Art 28 ICCPR – provides for establishment of Human Rights Committee responsible for supervising implementation of rights set out in Covenant
ICESCR does not provide for establishment of treaty monitoring body

28
Q

ICCPR art 6?

A

the right to life

29
Q

ICCPR art 7?

A

freedom from torture and cruel, inhuman or degrading treatment or punishment

30
Q

ICCPR art 8?

A

freedom from slavery and compulsory labour

31
Q

ICCPR art 9 v 11?

A

the right to liberty and security of person

32
Q

ICCPR art 12?

A

the right to freedom of movement

33
Q

ICCPR art 13?

A

legal aliens to protection from expulsion/deportation

34
Q

ICCPR art 14?

A

a fair and public trial

35
Q

ICCPR art 15?

A

criminal law can not be retroactive

36
Q

ICCPR art 16?

A

recognition as a person before the law

37
Q

ICCPR art 17?

A

privacy

38
Q

ICCPR art 18?

A

freedom of thought, conscience and religion

39
Q

ICCPR art 19

A

opinion and expression

40
Q

ICCPR art 21?

A

freedom of assembly and association

41
Q

ICCPR art 23

A

marry and to find a family

42
Q

ICCPR art 24

A

protection of children

43
Q

ICCPR art 25

A

right to political participation

44
Q

ICCPR art 26

A

freedom from discrimination

45
Q

ICCPR art 27

A

rights of person belonging to ethnic, religious and linguists minorities

46
Q

ICESCR art 6

A

work

47
Q

ICESCR art 8

A

form and join trade union

48
Q

ICESCR art 9

A

social security and social insurance

49
Q

ICESCR art 10

A

protection of family

50
Q

ICESCR art 11

A

right to adequate standard of living

51
Q

ICESCR art 12

A

medical care

52
Q

ICESCR art 13

A

the right to education

53
Q

ICESCR art 15

A

the right to take pat in cultural life

54
Q

which treaty is seen as ‘first generation human right’?

A

ICCPR - They emerged in the 18th century during the French and American revolutions (e.g. Right to life, liberty, fair trial and fundamental freedoms such as expression and conscience)

55
Q

which treaty is seen as ‘second generation human right’?

A

ICESCR- They emerged in the late 19th century with social reform in Europe (e.g. right to education, housing, social security, safe and healthy working environment, leisure and rest)

56
Q

‘Third generation rights’ exist?

A

it is emerging as solidarity rights, such as right to a healthy/safe environment conducive to development

57
Q

Major difference between ICCPR & ICESCR:

A

ICCPR imposes immediate obligations

ICESCR imposes obligations which are ‘progressive’ & subject to ‘available resources’. But not always so clear cut.

58
Q

implementing rights may involve?

A
  • Passing new legislation e.g. Racial Discrimination Act 1975 (Cth); or
  • Repealing legislation (such as Tasmanian criminal laws involved in Toonen case)
  • Changing policies & allocating resources
59
Q

not all Human rights are ‘absolute’ under ICCPR - Scope of Rights?

A

can be limited;

  • Limitation in the terms of Right
  • Reservations
  • Derogations
60
Q

is Freedom of Expression limited under ICCPR?

A

Yes, freedom of expression is subject to respect for the rights and reputation of others, public orders etc

61
Q

example of “internal limitation” on rights under ICCPR?

A
  • Freedom of Expression

- Liberty

62
Q

what is arbitrary detention means under international law?

A

arbitrary detention covers detention that is imposed inconsistently with relevant international standards.

Basically, arbitrary detention is the violation of right of liberty as an individual is being arrested without any evidence of them committing a crime against statute law or international law.

63
Q

Example of legitimate/allowed deprivation of liberty;

A
  • person convicted of serious offences
  • mentally disturbed person
  • state of emergency

Human Rights Law (SB - S1) (5 decks)

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