self determination / human rights

Question 1

Selbstbestimmungsrecht – allgemein

Answer 1

• collective right of people
• right to decide autonomously on political status
• ideological basis: nation-state idea in 19th century
• „Fourteen Points“ of US President Wilson für eine
  Neuordnung Europas:
  Selbstbestimmungsrecht – allgemein
• included as a main purpose of the UN into the Charter: Art 1(2)
  and Art 55:
  “2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”
• included as common Art 1 to
  the 1966 Covenants: “All peoples have the right to self - determination. By the virtue of that right they freely deter,mine their political status and freely pursue their economic, social and cultural development.”

Question 2

Definition of people

Answer 2

• various definitions of people
• objective approach:
• objective commonalities of the group:
  – ethnic „origin“
  – language
  – religion
  – culture
  – customs, traditions …
• • subjective „belief“ to form a common group (people)
• OR „nation“
  – all people living within the territorial boundaries of a State
  – decolonization
  – uti possidetis (administrative boundaries as drawn by colonial
  power become external boundaries)

Question 3

Self-determination - content

Answer 3

• external  internal self-determination
• external:
  – right to establish own State
  – secession?
  – Confined to colonial context (decolonization)
  – remedial secession as ultima ratio (means of last resort) in case of
  serious, systematic, widespread human rights violations?
  – Kosovo Advisory Opinion
• internal:
  – free choice of own status
  – political, economic, social, cultural order
  – without interference from outside
  – right to political participation?
  – autonomy of ethnic minorities?

Question 4

Human rights – the idea

Answer 4

rights of the individual against (own) State
– defensive rights (eg freedom of opinion and expression)
– State may not interfere and must guarantee these rights
– development in domestic law (Great Britain, France, USA)
* early/mid-20th century:
– treatment by States of own nationals purely domestic issue
– sovereign regulatory powers
* minority protection after WW I
* comprehensive approach after WW II
* Art 55(c) UN Charter:
* Art 56 UN Charter:

Question 5

Human rights – concept

Answer 5

Diplomatic protection = right of
the State to have own nationals
being protected abroad (law on
the treatment of foreigners)

Human rights = rights of the
individual vis-à-vis (own) State;
nationality is irrelevant;
individual becomes holder of
rights

•  individual human being as holder of direct rights on the basis of
  international law
• no mediatization of individual by his/her own State (diplomatic
  protection)
•  international enforcement of these rights by the individual
  himself/herself
  – quasi-judicial procedures (UN system)
  – individual complaints before regional human rights courts
  Human rights humanitarian law
  in peacetime and timas of armed conflict only in times of conflict

Question 6

Human Rights – sources

Answer 6

• Universal Declaration of Human Rights1948
  – Resolution of the UN General Assembly
  – per se not legally binding
  – Customary law?
  – authentic interpretation of the UN Charter?
• International Covenants 1966:
  – Internationaler Covenant on Civil and Political Rights (No. II)
• Right to live
• Prohibition of torture, slavery …
• Right to freedom of the person, private life, religion …
• Right to fair trial and of due process
• Political rights (expression, assembly, demonstration …)
  – Internationaler Covenant on Economic, Social and Cultural Rights
  (No. I)
• right to work
• right to education
• right to social security, health care …
• right to cultural services
• Multilateral UN treaties on specific human rights, eg
  – Genocide Convention 1948
  – Convention on the Prohibition of Racial Discrimination 1965
  – Anti-Torture Convention 1984
  – Convention on the Elimination of Discrimination against Women 1979
  – Convention on Children‘s Rights 1989
  – Convention on Rights of Persons with Disabilities 2006
• regional Conventions:
  – European Convention on Human Rights and Fundamental Freedoms 1950
  – American Convention on Human Rights 1969
  – African Charta on Human and Peoples‘ Rights1981
• regional human rights conventions on specific matters – Council of Europe:
  – European Social Charta 1961
  – European Charta of Regional and Minority Languages 1992
  – European Framework Convention on the Protection of national Minorities 1995
  – Convention on the Prevention of Domestic Violence against Women (Istanbul
  Convention) 2011

Question 7

Human rights – restrictions

Answer 7

• few absolute rights: prohibition of
  – torture
  – slavery
  – apartheid (racial Discrimination)
• limitation must have a basis in a (specific) law providing for
  the condition of its application
• limitation must be necessary – legitimate purpose
  – public purpose interest
• national security, territorial integrity
• maintenance of public order, crime prevention
• protection of health or morals
  – or the protection of the rights and freedoms of others
• protection of reputation
• protection of confidentiality of certain information
• justification – proportionality
  – Is the restriction appropriate to attain the result desired?
  – Is the restriction the least interfering means to reach that result?

Question 8

Human rights – enforcement

Answer 8

• judicial – quasi-judicial – political enforcement
• judicial only available on the regional level – European Court of Human Rights (Strasbourg, Council of Europe)
  – Inter-American Court of Human Rights (San José, Costa Rica)
  – African Court of Human and Peoples‘ Rights (Arusha, Tanzania)
• International Criminal Court (?)
• individual complaint – State complaint
• quasi-judicial
  – treaty bodies (eg Human Rights Committee of 1966 Covenant II)
  – individual or State complaints
• political – unilateral by States
  – multilateral
• reporting mechanisms – by States
  – by UN bodies (eg UNHCR, UNHHR)
  – by appointed Special Rapporteurs (eg on torture, disappearance …)
• subsidiary organs of the UN (eg Human Rights Council of the GA – Universal Periodic Review)
• Security Council