Topic 1 - Introduction to Human Rights Flashcards
What are human rights? (5)
- Tomuschat - Human rights are rights which a person enjoys by virtue of being human, without any supplementary condition being required
- Pillay – Everyone’s aspiration to be free from oppression and poverty
- Goodhart – human rights are pervasive in the political world
- Besson – Protect important interests and give rise to obligations
- Pateman – doctrine of individual freedom and equality swept away ground on which subordination of groups of people had been justified
The Development of human rights - 16th Century-1776 (5 + 3 critics)
o Traditional doctrine of monarch sovereignty – monarch cannot be challenged, without monarch state would collapse, there would be rebellions without order of monarch as supreme authority
o English Civil War Bill of Rights 1689 – introduced idea of Parliamentary sovereignty – there were limited rights introduced. Idea that power of the sovereign is not absolute or unlimited and can be restricted
o Bodin and Hobbes – Both believed in idea of absolute authority but believed ruler must get its power from society. Individuals should e babel to question absolute authority but there should still be an absolute power on top to keep order
o Enlightenment Movement (Locke) – Theory of natural law. Individuals are by nature free, equal and independent. Humans have rights from the nature of being human (they are inherent). Advanced governance by rule of law rather than absolute sovereign power.
o Enlightenment Movement (Vattel, Grotius and Montesquieu) – Need separation of powers to have checks and balances. Advocated against oppression
o Critics of Early Rights:
Burke – No such thing as natural rights. Individuals are lined to social bonds, abstract bonds on humans would lead to chaos
Bentham – natural rights are nonsense and unreal. Reform of actual rights, positive laws
Marx – rights to property, liberty, personal security advantaged the bourgeois. Rights were part of capitalist domination and stood in way of equality and well-being for all
Development of human rights 1776 - 1919 (domestic laws (4), international (3), aliens (4))
o Development of domestic laws which recognises rights and freedoms – without legal foundation, human rights cannot be enforced
US Declaration of Independence – Virginia Declaration of 1776 – First document of constitutional policy. Recognises Locke’s idea of inherent rights. Gives right to abolish destructive power (right to rebel if rights are challenged)
Bill of Rights 1789 (amended 1791) – right to fair trial, religion, person/property
French Declaration 1789 – right to liberty, rule of law, fair trial, freedom of expression. Influenced UDHR, ECHR, HRA
Thomas Paine 1791 – Book The Rights of Man spread idea of human rights
o Later development of international protection of human rights
Vienna Peace Conference and Declaration on the Abolition of Slave Trade 1815 – does not abolish slavery but abolishes the slave trade
Geneva Law 1864 – recognised treatment of victims of war. States came together to realise they must consider level of suffering war inflicts
1899 and 1907 Hague Conventions – states adapted how warfare is conducted to make it more humane
o Treatment of aliens
Henkin
International concerned exclusively with relations between States – individuals regarded as property of State to which they belonged (states subject of international law, individuals the objects)
Treatment of nationals fell within exclusive jurisdiction of states – no interference by other states
Treatment of aliens (foreign nationals) – did not matter if individuals badly treated by home state, only concerned with how they were treated by another states (linked to idea that individuals are state property)
Oppenheim 1905 – Law of Nations is a law between States, individuals cannot be subjects of this law
Panevezys Railway Case (Estonia v Lithuania) – Lithuania claimed Estonia was nationalising Lithuania’s railways. Lithuania could not make this claim as it concerned rights of individuals outside of their state – International Court dismissed Lithuania’s claim. Lithuania can bring claim in International Court so long as they represent their own nationals – national state can bring a claim on behalf of the individual to the International Court (indirectly recognised rights of the individual)
Case Concerning Certain German Interests in Polish Upper Silesia (Merits) – Must afford aliens a minimum standard of protection – foreign nationals given a higher protection than nationals of that state as foreign nationals represent the interests of their state
Development of human rights 1919-present day (7 + 4 academics)
o Recognition that individual must be protected following WW1
o League of Nations –
Promotion of peace and security.
No mention of human rights however emphasised outlaw of slave trade, freedom of religion and conscience, fair and humane labour conditions
No direct protection for individuals – individual petition would be considered by Committee and then Council would refer question to Permanent Court of International Justice. No remedy available for individual
Minorities – re-mapping of European borders following WW1 meant minorities emerged as non-homogenous populations compelled to love together. No mention of minority rights under League of Nations
o Declaration on the International Rights of the Man 1929 – departure from view that treatment of nationals fell within exclusive jurisdiction of states
o International Instruments after WW2 1945
Universal Declaration of Human Rights 1948
European Convention on Human Rights 1950
International Covenant on Civil and Political Rights 1966
International Covenant on Economic, Social and Cultural Rights 1966
Convention on the Elimination of All Forms of Discrimination against Women 1979
Idea of individual autonomy v state interference
Kennedy – human rights are an international standard of legitimacy for sovereign power
* In future politics should move on from human rights as it focuses too longingly on the perfection of a politics past its prime. Instead a new global governance needs to be born
Goodhart – even if do not find moral arguments for human rights persuasive, you can still acknowledge human rights practice is a significant phenomenon in our world
Charlesworth and Chinkin – human rights law challenges traditional state-centric international legal system by enabling individuals to make international claims
Lauterpacht – UDHR ineffective if not accompanied by legal force and ability for individuals to seek remedies
Do human rights developments guarantee protection for all? (persecution, western idea, women (3 academics), cost (2 academics))
- Human rights not synonymous with democracy – persecution of Jews justified on democratic national laws in Nazi Germany
- Western Idea
o See universality v cultural relativism arguments - Women
o Eleanor Roosevelt only woman present for discussions on establishment of UN
o Locke’s ideas of natural rights made distinction between public and private sphere – both were dominated by men at the exclusion of women
o UDHR has no mention of women’s rights
o Wording of UDHR refers to ‘man’ rather than woman
o Freedom of religion used to oppress women – e.g. FGM
o CEDAW – women’s rights under separate treaty – emphasises marginalisation of worm’s rights. States can opt out of this. Weak language means states can choose whether to follow or not
o Charlesworth – international law making institutions have been dominated by men and so international human rights law has been developed to reflect experiences of men at the exclusion of women
o Charlesworth and Chinkin – campaign for ‘women’s rights as human rights’ allows women only access to a world already constituted by men, not to a world transformed by the interests of women.
o Kennedy – human rights treaties are vague and open to interpretation - Cost of developing human rights
o Kennedy – cost of human life when advocating for human rights in Libya and Syria. Is it worth it?
o Bell – important to continue to fight for human rights even if it comes at a cost
