Human Rights: Natural Law vs. Positivist Perspectives

• Legal foundation of human rights in international law is based on natural law and positivist perspectives.
• Natural law claims human rights are inherent to human beings through existence or divine authority, suggesting they are self-evident and need no external justification.
• Natural law views legal norms as merely declarative rather than constitutive, but is seen as weak and impractical because states limit rights.
• Positivist theories state human rights are meaningful when codified in written laws at national or international levels, viewing legal recognition as constitutive.
• The positivist perspective facilitated a strong international legal system that actively protects human rights, marked by the UDHR adoption in 1948, which established the moral and legal framework for global human rights protection.
• Before the UDHR, the protection of human rights was primarily attached to citizenship, granting states control.
• Citizenship was a form of subjection, granting the state ownership over its individuals, defining rights by their status as citizens.
• International law before the UDHR focused on protecting foreigners and minorities, primarily religious groups, through diplomatic protection, where the home state defended rights of citizens abroad.
• After the UDHR, international human rights law recognized rights as universal, applying to everyone regardless of citizenship, marking the era's end where rights were solely determined by citizenship or national affiliation.
• International law recognizes individuals as direct bearers of rights, obligating states to respect these rights for everyone within their jurisdictions, enabling individuals to take legal action in international courts for human rights violations.
• Modern framework of human rights law acknowledges collective human rights, such as the right to self-determination and the rights of minorities or indigenous peoples, requiring collective action and protection.
• Collective rights recognize interests of groups or communities, allowing groups to preserve their language, culture, or territory as a collective entity.

Universal vs Regional Human Rights

• There is a tension between universal human rights and regional human rights, leading to cultural relativism.
• States may ratify treaties with reservations or derogate based on regional needs or local sensitivities.
• Examples of this include the Arab Charter on Human Rights of 2004.
• Domestic supreme courts may provide different answers to similar cases due to differences in cultural acceptance, legal frameworks, and the context.
• Article 53 of the Vienna Convention regulates exceptions of jus cogens norms.
• Proponents of universalism argue that human rights are inherent to human dignity and must be respected universally, contending that local practices violating fundamental human rights should not be tolerated.
• Universal human rights ensure all individuals enjoy the same basic rights and protections globally.
• Third World Approaches to International Law (TWAIL) or Marxist perspectives say human rights must be adaptable to regional and cultural contexts, emphasizing preserving regional traditions and customs while incorporating human rights standards.
• Imposing universal human rights standards is seen as Western hegemony, pressuring non-Western nations to adopt values not aligning with their cultural and religious practices.
• The Bangkok Declaration of 1993 recognized the universal nature of human rights but emphasized considering national and regional contexts in interpretation and application.
• The Arab Charter on Human Rights (2004) allows for gender inequality and discrimination to accommodate cultural and religious practices, reflecting in the Universal Islamic Declaration of Human Rights as a counter narrative.
• Universal treaties, like the UN Covenants on Human Rights, establish principles transcending cultural contexts.
• Regional treaties, such as those negotiated under the European Union or the Arab League, tailor human rights provisions to local legal, cultural, and religious norms.
• States may ratify international treaties with reservations or derogate from certain obligations based on regional needs or local sensitivities.
• Domestic supreme courts may provide contrasting responses to similar cases due to diverse social and cultural contexts.
• There is ongoing dialogue between domestic courts and international bodies to align national and international human rights law.
• The Vienna Convention on the Law of Treaties highlights that jus cogens norms cannot be derogated from under any circumstances.
• States may adopt reservations or derogations based on cultural or regional sensitivities, they cannot justify violations of these core human rights principles.

Characteristics and Sources

• Main characteristics of human rights are universality, indivisibility, interdependence, and inalienability.
• Sources of law are generally similar, with the application to human rights having some unique characteristics.
• Jus cogens and its importance for protecting human rights, customary internal law to human rights, need for positive obligations apart from negative ones.
• Domestic amnesty laws that shield individuals responsible for serious human rights violations are invalid when conflicting with peremptory norms.
• Obligations erga omnes affect the international community as a whole.
• Universality asserts that human rights are inherent to all human beings, regardless of citizenship, gender, ethnicity, and race.
• Indivisibility emphasizes interconnectedness, where violations in one area undermine the enjoyment of others.
• Interdependence underscores the need to treat civil, political, economic, social, and cultural rights equally without creating hierarchies.
• Inalienability asserts that human rights cannot be transferred or waived, safeguarding the inviolability of human dignity, although some rights may be limited in exceptional circumstances.
• Customary international law is a fundamental source, including unwritten rules from consistent state practice and opinio juris (belief that such practices are legally obligatory).
• States must also acknowledge that they believe the behavior in question is legally mandatory and provide public statements, official publications, decisions of national courts, and actions related to international resolutions as evidence.
• Jus cogens norms are deeply rooted in customary law, with the distinction being the psychological element that certain norms are so fundamental.
• All jus cogens norms are customary, but not all customary laws are jus cogens, such as the prohibition against torture, that cannot be overridden by treaties or national laws.
• The Vienna Convention on the Law of Treaties (VCLT) mandates terminating treaties conflicting with peremptory norms.
• Jus cogens norms impose obligations erga omnes, meaning obligations that states have toward the international community as a whole, leading to international responsibility.
• South Africa initiated legal proceedings against Israel before the International Court of Justice (ICJ), alleging genocide due to violating jus cogens norms.
• States have a duty to refrain from violating rights and take proactive measures to protect and promote these rights.
• General principles of law derive from domestic legal systems and are used when customary law is insufficient, helping interpret ambiguous legal provisions and ensure consistency.

General vs Particular Law

• General International Law (GIL) arises spontaneously from socio-normative activities and binds all community members, manifesting in customary laws or general principles.
• It can be subject to codification through formalizing unwritten norms into treaty texts.
• Particular International Law is based on written agreements, applying only to consenting states.
• Human rights treaties focus on freedoms of individuals or groups, providing human rights enjoyed by individuals per se.
• Soft law (e.g., the Universal Declaration of Human Rights) is not legally binding but foundational for developing international law regarding human rights protection.
• They deal with sensitive issues, focusing on protecting the rights and freedoms of individuals or groups, protecting individuals regardless of citizenship and independent of state consent.
• Unlike most treaties, which are designed to protect the rights and interests of states, human rights treaties require state parties to ensure the application of human rights obligations not only within their own territory, but also in areas where they exercise jurisdiction
• Effective control over foreign territory may result from military occupations, including those that violate international law by breaching the prohibition on the use of force or violating the principle of self-determination of people.
• Russian annexation of Crimea and occupation of Donbas are examples.
• Treaties include ensuring the application of human rights obligations not only within their own territory.
• The development of human rights treaties has increasingly involved the horizontal application of human rights, also known as Drittwirkung, which imposes positive obligations on states to prevent and address human rights violations committed between private individuals.
• Human rights treaties deal with sensitive rights and create erga omnes partes obligations, allowing any state party to address breaches, exemplified by South Africa's case against Israel.
• Obligations raise unique questions regarding state succession, where the new-born state can issue a notification of succession to continue participating.
• Recognition of human rights treaties adapts to the evolution of society.
• Based on the Vienna Convention on the Law of Treaties, treaties should be interpreted objectively.
• Human rights treaties allow for objective and evolutionary interpretation.
• The European Court of Human Rights (ECHR) has interpreted the right to marry and found a family to include same-sex couples.
• However, measures suspending or restricting certain rights during public emergencies must be strictly necessary, proportionate, and consistent with the state's other international obligations.
• Treaties are unlikely to terminate or be suspended due to their fundamental and non-reciprocal nature.
• States are obligated to uphold human rights not only within their own territory but also where they exercise effective control.
• Treaties are typically applied vertically but also increasingly involve horizontal application, imposing positive obligations on states to prevent and address human rights abuses committed between private individuals.
• Through immediate and progressive obligations, states must take immediate actions and long-term measures to ensure full realization of human rights.
• The principle of non-retrogression prohibits the deterioration of established human rights protections.
• Widespread acceptance has led provisions to become customary international law, and in some instances reaching the status of jus cogens.

The UDHR

• The Universal Declaration of Human Rights (UDHR) represents the legal and cultural values of Western states.
• The alternative-no legal framework-would have hindered the development of international human rights protections.
• Although soft law instruments like the UDHR are not legally binding, their importance in shaping international human rights law is undeniable.
• Instruments help shape the opinio juris and provide guidance in the interpretation of existing international rules, influencing both international treaties and regional agreements.
• Soft law often serves as a moral and practical stimulus, encouraging respect for and adherence to international human rights standards and contributing to forming opinio juris ac necessitatis.
• A key example is the UDHR, adopted by the UN General Assembly in 1948.
• Prior to its adoption, human rights protection largely depended on domestic legal systems.
• The UDHR marked a shift toward global standards and laid the foundation for later legally binding treaties like the ICCPR and ICESCR.
• Critics have argued that the UDHR reflects predominantly Western legal and cultural values, whereas the absence of any framework would have significantly impeded/hindered development.

Regional Frameworks

• Countries with shared geographical proximity or cultural ties often have more aligned interests and values, facilitating the development of cohesive human rights frameworks.
• Regional frameworks are easier than establishing universal systems, which some nations may perceive as conflicting with their cultural or religious values.
• Council of Europe's primary mission is to uphold human rights, democracy, and the rule of law across the continent.
• When a state violates core principles, expulsion is possible.
• The European Convention on Human Rights (ECHR) was the first legal instrument to give effect to certain rights stated in the UDHR and to make them binding on states.
• The Margin of Appreciation gives states some discretion in how they interpret and apply the Convention, especially in sensitive areas like national security or public morality.
• ECtHR issues decisions and judgments, and its rulings have binding legal force.
• The ECHR has been developed through protocols like the 11th Protocol and the 16th Protocol.
• Applicants must exhaust all domestic legal remedies and submit within six months with the single judge who initially reviews the admissibility.
• Cases proceed to a committee or chamber for further examination and states are legally obligated to implement the Court's judgments.

Regional Similarities and Differences

• The frameworks are based on regional human rights instruments aimed at safeguarding civil and political rights and establish legal obligations for states to respect rights within their jurisdictions.
• They establish monitoring bodies that interpret regional human rights instruments, issue recommendations, and ensure human rights obligations are respected through state accountability and remedies for victims.
• In differences, inter-American system uses two distinct bodies and offers broader participation by non-state actors, making the ECtHR's decisions enforced by the Committee of Ministers.
• The African Court's enforcement mechanism is more politically fraught.
• The Inter-American system includes cultural considerations through the lack of ratification of the ACHR.

United Nations

• The UN was created to maintain international peace and security and promote cooperation among nations.
• Human rights are an integral part of the UN's mission, promoting respect for human rights and fundamental freedoms for all individuals, which, over time, became a cornerstone for treaties after the UDHR adoption in 1948.
• The Cold War divided states into two ideological blocs, leading to separate covenants in 1966 (ICCPR and ICESCR).
• These covenants established a minimum standard of human rights and created oversight created to ensure states' compliance.
• A key challenge is the veto power wielded by the five permanent members of the Security Council and the imposition of "smart sanctions".
• The UN faces challenges in ensuring the effectiveness of its human rights mechanisms through the non-binding nature of many of its resolutions.