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international law - block 1 > week 6 - human rights > Flashcards

week 6 - human rights Flashcards

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1
Q

What is the main idea behind human rights?

A

There are certain moral principles that require a ruler to rule justly
⇒ main idea is that they limit the power of a ruler based on moral principles

⇒ ex. Magna Carta 1214 - Although not specifically abt HR, they established that rulers had certain limits

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2
Q

not so important;

history of human rights - 16th century

age of European reformation + increase in ideas of religious toleration

A

Development of ideas of freedom + freedom of belief
People began questioning who had the authority to control the land + who should control it

Dutch Revolution ⇒ Dutch rebelled against the Spanish
William of Orange quote emphasized freedom of individuals + limits to a monarchs rule
“I cannot approve of monarchs wanting to rule over the souls of their subjects and take away from them their freedom of belief and religion”

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3
Q

not so important;

history of human rights - 17th + 18th century

age of enlightenment + john locke + revolutions

A

Rise of secular (non-religious) theories of rights ⇒ rise of natural rights

John Locke; natural rights + social contract
Argued that we are naturally born free, so when we enter into society we enter into a contract with each other and those in power (abt respecting each other, etc.)
This is why we can ‘rebell’ aka break the social contract

American + French Revolutions;
The first time that human rights were enshrined in constitution

Ex. American Declaration of Independence 1776 ⇒
““We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness.”
Rights were only applicable to men, not women or slaves

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4
Q

not so important;

history of HR - 18 + 19th century

A

Development of ideas of sovereignty - supreme auth a state has over its territory
HR were viewed as rights for membership in society
aka individuals were entitled to certain rights on the virtue of being a member of a society governed by a specific state

HR were not used against the government
instead they were used as tools integral to the functioning of a state + wellbeing of citizens

HR were further emphasized due to the growing demand for social + economic welfare
Focus on unemployment, trade unions, right to strike
All based on natural rights

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5
Q

history of human rights - post WWII era

A

States realized the rights established beforehand were clearly not strong enough
need for change regarding stricter HR laws (to ensure the war wouldn’t happen again)

Linked to sovereignty ⇒
Focus on what states should / could / shouldn’t do

Exclaimed in Roosevelt’s “4 Freedoms Speech” 1941
he articulated a powerful vision for a world in which all people had freedom of speech and of religion, and freedom from want and fear

New international dimension ⇒ ppl began realized everyone has the right to have rights, regardless of what state they are in
Highlighted that sovereign states cannot strip u of ur rights

Development of a major UN goal;
UN Charter ARt. 1(3) ⇒ one of the purposes of the UN is to achieve international cooperation in promoting human rights

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6
Q

What is International Human Rights Law?

A

= internationally agreed upon rules values & principles regarding the status of humans

=> regulates the conduct of a state in relation to individuals residing within their territory

=> Provides rights to individuals through governments + other auth

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7
Q

What is the underlying value of human rights?

A

human dignity

Dignity = a state or quality of being worthy of honor or respect.

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8
Q

Who are right holders and duty bearers?

A

Individuals + people’s = right holders
(sometimes ppl use words holders and bearers interchangeably)

States = duty bearers

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9
Q

What are the two main approaches to human rights?

A

Universalism and Cultural Relativism

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10
Q

What is universalism?

A

HR are universal (moral norms)

arguments;
HR treaties are widely ratified + recognized
Some even more recognized than the UN Charter

The language of HR is practically universal

Governments care about theri HR image

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11
Q

What is Cultural Relativism?

A

HR are NOT moral norms → they are a Western Invention that has been imposed on the rest of the world

HR are too individualistic + secular
In non-western areas, collectivistic values + religious beliefs may hold more weight than individualistic values

HR don’t account for non-western Ideas

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12
Q

Universalism vs Cultural Relativism

A

universalism = hr are universal

cultural relativism = standards of morality are based on ones cultural

=> THUS HR are NOT moral norms → they are a Western Invention that has been imposed on the rest of the world

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13
Q

What are positive rights?

A

Positive rights = state must perform a positive action to ensure structures exist for the realization of those rights

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14
Q

What are negative rights?

A

Negative rights = state must refrain from interfering in order to allow individuals to use their rights

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15
Q

How clear is the distinction between positive and negative rights?

A

distinction is not super clear

freedom of speech => more of a positive right - mechanisms that allow for expression, but state ALSO has to abstain from censoring legislation

legally speaking = differentiating is not that important because regardless of the right the state has to keep it

just understand there are both positive + negative aspects to all rights

so when u get a case –> look at which aspect of the right was violated (did the state fail to interfere or did they interfere when they were not supposed to?

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16
Q

1st generation human rights

A

civil + political
Mostly negative rights ⇒ State must refrain from interfering

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17
Q

2nd generation human rights

A

Economic + social + cultural rights
Mostly positive rights ⇒
The state must interfere in order for these rights to be established

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18
Q

3rd generation human rights

A

collective rights
Examples;
Right to self determination
Right to peace
Right to clean environment

Self Determin = communities to freely determine political status

19
Q

controversial 4th gen rights

A
  • rights related to access to information, internet, right to be forgotten
  • There is no universal agreement upon them as they are derived from pre-existing rights
20
Q

What is important to keep in mind abt the differentiation of 1st, 2nd and 3rd gen rights?

A
  • The differentiating of rights into 3 generations was made up in 1960’s during cold war when the covenants were drafted - it was bc of ideological dif between the western and eastern bloc
  • they are useful to understand the dif dimensions of HR
  • the terms were first used by a CZECH jurist Karel Vasak
  • despite the division, human rights are UNIVERSAL
  • Thus they are all equal to each other → there is no hierarchy, no HR takes precedence over another
    Thus the differentiation does not matter, although there are separate covenants
    HR must be promoted + respected + complied w/ on the same footing
21
Q

Is there a hierarchy in Human Rights Law?

A

NO
The declaration of Human Rights states;
“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”

Thus they are all equal to each other → there is no hierarchy, no HR takes precedence over another

Thus the differentiation does not matter, although there are separate covenants

HR must be promoted + respected + complied w/ on the same footing

22
Q

What is the International Bill of Human Rights?

+ what is it composed of?

A

collection of international treaties and documents that together form a comprehensive framework for the protection and promotion of human rights at the global level

it is made up of;
1)The Universal Decleration of Human Rights (UDHR)

a) International Covenant on Civil and Political rights (ICCPR)

b) International Covenant on Economic, Social and Cultural Rights (ICESCR)

23
Q

What is the UDHR?

A
  • 1948
  • Non binding ⇒ NOT A TREATY!!
  • Seen as customary international law
  • Two covenants were later created - to write down the custom laws (ICSPR + ICESCR)

ICESCR =international covenant on economic, social and cultural rights
ICSPR =international covenant on civil and political rights

24
Q

Is the UDHR a treaty?

A

NO!

it is a decleration NOT a treaty, therefore it is NOT legally binding

SO U cant make an argument saying that a state was obligated to do this bc its in the UDHR
=> U CAN make an argument saying that particular right is customary intr law

25
Q

What day is human rights day + why?

A

December 10
the day the UDHR was established (in 1945)

26
Q

What is the international covenant on civil and political rights (ICCPR)?

A
  • Adopted 1966
  • Entered into force 1974
  • 174 state parties to this treaty
  • Notable non-state parties;
    China, Myanmar, saudi

Civil and political rights of individuals include;
- Self determination
- No discrimination life
- Prohibition of torture
- Freedom of movement
- Right to fair trial
- No arbitrary interference by an auth
- Freedom of thought, consciousness, religion

27
Q

What is the internaitonal covenant on Economic, social and cultural rights (ICESCR)?

A

Adopted 1966
Entered into force 1976
172 state parties
Notable non-state parties =
US, Saudi

Economic, social and cultural rights of individuals include;
Right to self determination
Art. 2 → obligation to ‘take steps, to the maximum of a states available resources achieving progressively the full realization of the rights without discrimination
Work, food, housing, health, education
CESCR has maintained that there is a minimum core to each obligation

28
Q

What are the 9 core UN Human Rights treaties?

+ their dates

A

9 core treaties;
1. 1965 ICERD ⇒ elimination of racial discrimination
2. 1966 ICCPR ⇒ intr covenant civil + political rights
3. 1966 ICESCR ⇒ intr covenant economic + social + cultural rights
4. 1979 CEDAW ⇒ elimination discrimination against women
5. 1984 CAT ⇒ convention against torture
6. 1989 CRC ⇒ rights of the child
7. 1990 CMW ⇒ migrant workers
8. 2006 CRPD ⇒ persons w/ disabilities
9. 2010 CED ⇒ enforced disappearance

29
Q

what is the most widely ratified treaty to exist today?

which state did not sign it?

A

Convention on Rights of the Child (CRC) 1989 (196 parties)

The only state who did not sign = US

30
Q

What are 6 treaty based UN human rights mecahnisms?

A
  • CESR = Committee on Economic, Social and Cultural Rights
  • HR committee
  • CEDAW = Committee on the Elimination of Discrimination against Women
  • CERD = Committee on the Elimination of Racial Discrimination
  • CAT = Committee against Torture
  • CRC = Committee on the Rights of the Child
31
Q

What are the charter based UN HR mechanisms?

A
  • HR council
  • HR commissioner
32
Q

Which of the following is a UN HR treaty body?
a) Human rights Committee
b) Human Rights Council
c) Human Rights Commissioner

A

A = human rights committee is treaty based
- independent experts that monitors implementation of the International Covenant on Civil and Political Rights

HR council =
- charter based
- Since 2006
- aim; promote and protect human rights around the world
- Headquarters in Geneva, Switzerland

HR commisisoner =
- is charter based
- intergovernmental body within the United Nations system responsible for strengthening the promotion and protection of human rights

33
Q

Role of UN Treaty Bodies (committee’s) - aka treaty-based mechanisms:

A
  1. Periodic Review
    report on compliance with the treaty every 4-8 years
    NGOs can comment on the reports (problem of “GONGOs”)
    Committee raises concerns in “concluding observations”
  2. Examine Interstate complaints
    When one state complains about the obligation of another state
    Very rare
  3. Examine individual complaints
    But only against States which have ratified Optional Protocol or made a special
    declaration
  4. Issue ‘General Comments’
    They provide interpretative guidance on meaning of treaty provisions
  5. Can provide quasi-judicial Decisions
    These decisions are not legally binding
34
Q

Role of UN Charter based Mechanisms;

A

AKA the Human Rights Council
- Made up of 47 States elected by UNGA for 3 year terms: set number of seats for each region
- Important: made up of States, not individual experts
Political rather than quasi-judicial process

  1. Conduct Universal Periodic Review
    all 193 UN member State report on human rights compliance every 5 years; followed by interactive questioning and adoption of report
  2. Establishes specific mandates / procedures;
    Thematic ⇒ arbitrary detentions, right to development
    Country ⇒ belarus, syria
35
Q

Is there an international human rights court?

A

NO

There is no universal human rights court that has jurisdiction to receive individual complaints and make binding decisions
However → there are regional courts

ICJ has on multiple occasions entertained disputes + delivered advisory opinions regarding international human rights law

ex.
Violation of certain HR may constitute a war crime or a crime against humanity ==> Could fall under jurisdiction of ICC

Quasi judicial compliance mechanisms ⇒ committees, councils, commissions remain the standard for universal HR treaties

36
Q
A
37
Q

Regional HR mechanisms in Europe?

ex. what are the dif available courts?

A
  • European Convention of Human Rights (ECHR)
  • => judged by the European Court of HR
  • European Social Charter (ESC)
  • European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT)
38
Q

Regional HR mechanisms in the Americas?

A
  • 1978 American Convention on Human Rights (ACHR): civil and political rights
  • 1999 Protocol of San Salvador: economic and social rights
39
Q

```

Regional HR mechanisms in Africa?

A
  • African Charter on Human and Peoples Rights, 1981: all rights, including several collective rights
40
Q

What 2-stage process used in americas + africa?

A

example used w/ US:
1. Individuals complain to o Inter-American Commission of HR
They give the state recommendations to fix complaint of individual

  1. The case is referred to the Inter-American Court of Human Rights IF;
    state fails to abide by the recommendation
    The commission decides the case is of special legal interest
41
Q

What are derogations?

A

A state temporarily, in times of emergency, suspends obligations regarding Human rights.
Criteria;
Emergency must be of sufficient gravity (pandemic, war)
Emergency must be imminent
Not a potential threat, it is currently happening or is imminently about to happen
Emergency must pose a vital threat to the organized life of the community

Example;
Ukraine derogated from certain provisions of the CHR after the invasion from Russia

Non-derogable = under no circumstances u cannot derogate from them
freedom from torture, freedom from slavery, freedom from the retroactive application of criminal law
Right to life (it is actually derogable in cases of lawful exercise of military / police operations)

42
Q

What are limitations?

A
43
Q

Limitations vs Derogations

A

limitations = in the same article of the treaty
- specific limitation on a particular right which the state can do on its own if the conditions apply
- a small part of the right is limited

derogations = in a separate article
- a serious deviation through which u can suspend the entire right
- the entire right is stopped = more serious = there is a higher threshold

IF no limitation or derogations apply there is a violation

IF THEY DO APPLY THERE IS A LAWFUL VIOLATION (aka no violation at all = not a legal issue)

international law - block 1 (6 decks)

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