LWN158: PUBLIC INTERNATIONAL LAWSEMINAR 5: HUMAN RIGHTS

Objectives

To understand the theoretical foundations of human rights including the concepts of human dignity, autonomy, will theory, interest theory and natural law.

To consider the development of international human rights law, including the categories of civil, political, economic, social and cultural rights.

To understand the fundamental principles of international human rights law, including indivisibility and interdependence and the debates surrounding the ‘universality’ of human rights guarantees.

To consider the international regime established to supervise and adjudicate States’ performance in the human rights area.

What are human rights?

Fundamental rights and freedoms that all persons possess and are entitled to by virtue of their being human

Regardless of sex, age, religion, language, political views or nationality

Can be individual entitlements or group rights Recognised and protected by governments, courts and

parliaments Capable of enforcement Corresponding duty to respect the rights of others Civil, political, economic, cultural, religious

Theoretical foundations of human rights

Where do human rights come from and why are they important? Natural rights theories:

Based on the philosophy of natural law (Aristotle, St Thomas Aquinas, John Locke, Thomas Hobbes, John Finnis)

Human beings are entitled to certain fundamental rights and claims simply because they are human – they do not depend on recognition by the government

Rights are those things which are necessary for maintenance of a life worthy of a human being.

Will theory: rights flow from an individual’s capacity for free will – they are those rights which are necessary to maintain liberty and autonomy (Immanuel Kant, Hans Kelsen, HLA Hart)

Interest theory: rights are things which human beings are entitled to claim because they are necessary to fulfil their interests and well-being (Bentham, MacCormick, Raz, Feinberg)

Foundations of human rights law

Universal Declaration of Human Rights (1948) Preamble: ‘Recognition of the inherent dignity and of the

equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood

UN Charter: Articulates the UN’s determination to reaffirm “faith in fundamental human rights and the dignity and worth of the human person”

International Covenant on Civil and Political Rights, Preamble: recognition of the inherent dignity and of the equal and

inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world

these rights derive from fundamental human dignity

Foundations of human rights law

Fundamental principles of human rights

1. Universality – rights belong to everyone

2. Equality and non-discrimination – everyone is equally entitled to the enjoyment of human rights

UDHR Article 2:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

3. Inalienability – human rights cannot be taken away or surrendered

4. Interdependence & indivisibility – everyone possesses the full range of rights and all rights are equally important

5. Positive & negative rights Positive: entitlement to Negative: freedom from

6. Rights & corresponding duties

Fundamental principles of human rights

Human rights obligations

States parties to human rights treaties have three general levels of obligation:

1. To respect human rights – to refrain from activities which would interfere with the enjoyment of human rights

2. To protect human rights – to ensure that other states or non-state actors do not interfere with the enjoyment of human rights

3. To fulfil human rights – to take steps to ensure the enjoyment of human rights

The specific duties which these obligations entail vary according to particular treaty, the specific right concerned and circumstances of each state.

The UN Human Rights Treaties

International Covenant on Civil & Political Rights (ICCPR) International Covenant on Economic, Social & Cultural Rights (ICESCR) Convention Against Torture (CAT) Convention on the Rights of the Child (CRC) Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW) Convention on the Elimination of All Forms of Racial Discrimination (CERD) International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families (CMW) Convention on the Rights of People with Disability (CRPD) Convention for the Protection of All Persons from Enforced Disappearance

(CPED)

UN Human Rights System

Treaty monitoring bodies Human Rights Committee Committee on Economic, Social & Cultural Rights Committee on the Rights of the Child Committee on Elimination of Discrimination Against Women Committee on Elimination of Racial Discrimination Committee Against Torture Committee on Migrant Workers

Office of the High Commissioner for Human Rights Human Rights Council (replacing Human Rights Commission)

Regional Human Rights Systems

Europe Council of Europe

European Convention on Human Rights

European Court of Human Rights European Union

Charter of Fundamental Rights of the European Union

Organisation of American States American Declaration on the Rights

and Duties of Man Inter-American Commission of

Human Rights Inter-American Court of Human

Rights

Organisation of African Unity African Charter on Human

and Peoples’ Rights African Commission on

Human and Peoples’ Rights

League of Arab States Arab Charter on Human Charter

Association of South East Asian Nations (ASEAN) ASEAN Human Rights

Declaration

International Covenant on Civil and Political Rights

To date 167 states have become parties to the ICCPR Civil & Political Rights (“First Generation Rights”) Preamble:

“The objective of human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights”

Key provisions

Right to self-determination (Art 1) Right to life (Art 6) Freedom from torture, and cruel, inhuman or degrading treatment

or punishment (Art 7) Freedom from slavery (Art 8) Right to liberty & security of person (Art 9) Right to a fair trial (Art 14) Freedom of thought, conscience and religion (Art 18) Freedom of opinion and expression (Art 19) Right to peaceful assembly & freedom of association (Art 21 & 22) Right to vote (Art 25)

International Covenant on Economic, Social and Cultural Rights

Opened for signature 16 December, 1966, entered into force 3 January 1976

Currently 160 states parties Economic, Social & Cultural Rights (“Second Generation Rights”) Preamble:

“Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights”

Key provisions

The right to work and to just and favourable conditions of work (arts 6 & 7) Right to form and join trade unions (art 8) Right to social security (art 9) Protection of the family including paid maternity leave (art 10) Right to adequate standard of living (art 11) Right to highest attainable standard of health (art 12) Right to education (art 13) Right to take part in cultural life and enjoy benefits of scientific progress,

including intellectual property (art 15)

Obligations of States

ICCPR art 2 ICESCR art 2

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures asmay be necessary to give effect to the rights recognized in the present Covenant.

1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislativemeasures.

What do you think the justifications are for the different provisions?

Are rights absolute?

Limitations on rights Restriction on human rights is possible where it is necessary to protect

other rights Restriction must be proportionate Restriction must be imposed by law Cannot be arbitrary or discriminatory

Derogation from human rights is possible in times of emergency But some rights are non-derogable (jus cogens rights, eg

freedom from torture, freedom from slavery)

Limitations and restrictions in ICCPR

Generally need to be:

1. Prescribed by law

2. Necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Art 18: Freedom of thought, conscience and religion limitations may be on ‘manifesting religion or belief’ but not on beliefs

themselves limitations must be “prescribed by law” and “necessary to protect public safety,

order, health, or morals or the fundamental rights and freedoms of others” Art 19: freedom of opinion, thought and expression

“carries with it special duties and responsibilities” may be limited by law where necessary to protect rights of others, public safety

etc

Derogation of human rights

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

ICCPR, art 4:

Derogation from human rights cont/...

ICCPR art 4(2): No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 Art 6 – right to life Art 7 – freedom from torture and cruel, inhuman or degrading treatment Art 8 – freedom from slavery Art 11 – no imprisonment for breach of contract Art 15 – no retroactive criminal law Art 16 – right to legal personality Art 18 – right to freedom of thought, conscience or religion