International Human Rights Law

Special Characteristics of International Human Rights Law

• Human rights law aims to establish and protect basic guarantees for individuals against actions by the state
• In contrast, international law has slowly grown out of customary practices historically
• Traditional international law emphasizes state obligations and has considerable flexibility
• Human rights law is based on proclaimed rights found in declarations or constitutions
• It sets minimum rights with a strong emphasis on principles, focused on protecting individuals

Fundamental Differences: Ordinary Treaty vs. International Human Rights Treaty

• Ordinary treaties regulate relations between states to secure mutual advantages, human rights treaties establish and guarantee basic human rights at the international level
• Under an ordinary treaty, only states have rights and obligations
• Under a human rights treaty, individuals, though not formal parties, are granted rights and protections
• States enter ordinary treaties only with states they choose, while human rights treaties apply to all individuals within their jurisdiction
• Traditional treaties focus on rights and obligations strictly between states
• Human rights treaties directly benefit individuals, even if they aren't parties to the treaty
• Ordinary treaties aim for mutual benefit tied to costs, human rights treaties protect universally, regardless of benefits
• Traditional treaties are rooted in state consent and reciprocity, depending on mutual agreement between parties
• Human rights depend on recognizing and protecting individual rights, even if individuals are not formal parties
• Ordinary treaties exclude third parties, but human rights treaties directly subject individuals to the rights created, like non-state actors, even if affected

Reservations on the Genocide Convention

• A key legal case distinguished ordinary treaties from those of a humanitarian or human rights nature
• States signing human rights treaties share a common interest in accomplishing high-purpose goals
• Human rights treaties are not about individual state advantages or maintaining a perfect balance of rights and duties, greater than individual state interests
• Idea of vertical element where states solemnly commit to a supranational standard of behavior, vs horizontally bargaining with each other
• A similar approach characterized obligations stemming from the European Convention on Human Rights
• The obligations of High Contracting Parties are objective, designed to protect the fundamental rights of individuals from infringements
• States commit to what they should already recognize, so becoming a party to such a treaty declares states' obligations rather than creates new ones
• Human rights are owed toward the international community and they are the concern of all states

Human Rights Council Complaint Procedure

• The Human Rights Council uses a complaint procedure for allegations of large-scale human rights violations
• It is a confidential process that facilitates cooperation from the involved state
• It rests on principles of impartiality, efficiency, and focusing on the victims

Special Procedures of the UN Human Rights Council

• Special Procedures involve independent human rights experts appointed by the UN Human Rights Council
• These experts monitor and assess human rights situations globally and act as the Council's "eyes and ears"
• Their main role is to provide early warnings of human rights violations
• They bring new issues to the Council’s attention
• They assist countries in addressing issues
• Special Procedures ensures effective implementation of UN human rights treaties

Selection and Qualities of Special Procedures Experts

• Experts are appointed by the Human Rights Council and are chosen for their expertise and independence
• An effective expert needs in-depth knowledge, empathy for victims, and the ability to build trust
• Deep commitment to human rights and a willingness to work hard since the role is voluntary and demanding

Activities of Special Procedures Experts

• Experts receive claims of human rights abuses, conduct research, and engage in dialogue with state and non-state actors
• They advocate for human rights, report findings to the UN, and conduct country visits
• Experts observe situations on the ground, meet with officials and communities, and advise states

Communications Procedure

• The communications procedure is a complaint mechanism for individuals and communities who have experienced human rights abuses
• Individuals and communities can contact the UN and seek help from Special Procedures experts
• This enables rights holders to directly raise concerns and seek redress, regardless of their location

Goals of Special Procedures

• Their aim is positive impact in the lives of individuals and communities
• This includes raising awareness, enabling protective legislation, and drawing attention to global issues
• They strive to translate observations into political action and advise states to improve human rights
• The ultimate goal is protections and the promotion of human rights

Addressing Arbitrary Detention

• The Working Group on Arbitrary Detention issues opinions on arbitrary detention
• They send confidential communications, urgent appeals, and allegation letters to states
• They also deliberate on detention issues and conduct country visits

Engagement with State and Non-State Actors

• It's vital for experts to engage with both state and non-state actors for a full understanding of human rights
• Dialogue with governments allows them to address concerns, give guidance, and advocate for policy changes
• Engaging with civil society and affected communities provides valuable insights and ensures the voices of victims are heard

Motivations of Special Procedures Experts

• Driven by a deep commitment to human rights
• Desire to help people
• Opportunity to make a difference in the world
• Personal obligation to defend human rights
• Expertise and experience to serve humanity
• Recognition to engage in conversations with states and other actors can also be rewarding

Human Rights Council Procedure Admissibility

• Screen by the Chairperson together with the Secretariat, of the Working Group on Communications
• Written in any of the six UN official languages
• Factual description
• Must not be politically motivated
• Must not be exclusively based on mass media reports
• Must not be already dealt with by a special procedure, a treaty body or other United Nations
• Domestic remedies must have been exhausted
• Must not use abusive language
• The complaint is not mandated to provide compensation to alleged victims
• Once screening has taken place, if it is admissible it moves to the Working Group on Communications for assessment
• If it is inadmissible, it is discontinued
• If admissible, it moves to the Third Stage - the Working Group on Situations

Steps of process

• Victims submit communication
• Screened by Working Group on Communication
• Dismissed/Complaint under Review/ Trasmittal to Working Group on Situations
• Third Stage: Working Group on Situations
• Discontinue or Further Review or Transmittal to HRC
• Fourth Stage at HRC involves a decision on discontinuing the review
• Or having an Under Review (State/Iindependent and highlt qualified expert)
• Or can Recommend to OHCHR

Second Stage

• The Communications Group assesses the merits of the allegations
• If a pattern of gross human rights violations appears to be taking place
• Group meets twice a year
• Group asses if single complaint, or if in combination with others appear to reveal violations of HR
• The Working Group (dismiss, retain, transmit)

Third Stage

• Situations group receives the assessment from the Working Group
• May discontinue reviewing it
• retain complaint for future review for adding more info
• Transmit the situation to Human Rights Council and presents a report

Fourth Stage

• The HR Council examines the report, keeps it confidental
• May take a number of actions including discontinue review
• Keep reviewing it and request furhter information
• Keep reviewing it and appoointed experts
• disconitnue in order to take up public consideraton
• Recommend assistance by OHCHR
• Proceudre cannot be taken up if it being used elsewhere already
• Each state determines for itself whether HR are justified

The Universal Declaration of Human Rights (UDHR)

• Adopted by the UN General Assembly December 10, 1948 as a result of WWII
• A complement to the UN Charter
• Composed in less than two years
• Hansa Mehta of India is credited with changing the phrase "All men are born free and equal" to "All human beings are born free and equal"
• Agreed to be the foundation of international human rights law
• It represents the universal recognition that basic rights and fundamental freedoms are inherent

Key Points Regarding the Background and Drafting process of the UDHR:

• Document was taken up at the first session at Geneal Assmebly 1946
• It was then transmitted to the Economic and Social Council for reference
• Commission Authroized to formualte preliminary draft
• Consistied of members of the Commission from eight States, selected with consideration for geographical distribution.
• Comssion = 18 members, polictal cultureal and religious backgrounds
• Chaired by Eneloar rooselvelt, other figure include CAssin, Malik, Change, and Humprehy
• Discsuuons on diverse perspective including Thomas Aquinas
• Final draft by Cassin was known as the geneva draft
• over 50 memes participated in drafting
• Colossal to find common ground during divison into Blocs
• UDHR = foundation for human right law
• Inspried by numerous rights and treaties
• Core pricnple = universality
• equality
• non-discrimination

Primary Aim

• Emphasis is on the expansion of being "free and equal in dignity and rights"
• Instruments connected right and obligations vaguely
• Obligations have beome more state centric
• Emphasis on mechanisms and complant procedures

The importantce of clear Obligations an Defining them

• Crucial for realizing rights
• Protect Individuals
• Dynamic Nature
• Conflicting Righrs

State Obligations

• Main Approaches To Understanding State Obligations
• The tripartite typology of obligations to respect, protect, and fulfill
• This Respect requires the state, protect Requires the state and Fulfill requires the state

Derogations and Limitation

• Allow states to restrictions on rights
• Allowed set out in law
• Necessary and proportionate in society
• Time Limits applied

Absolute Obligation

• Genocide and torture = Jus cogens norms
• Cannot be suspended
• High Morality

Extraterritorial Obligation

• Extends states humn rights over borders

Clarfy State OblIGATION

• Achknowleging dutes
• social measurements

Equality And Non-Discrimination

• Article 1 ALL HUMANS ARE BORN FREE AND EQUAL IN DIGNITY AND RIGHTS
• They are edndowned with reason
• And should at toward another in the spirit of bothers
• Article 2- Everyone is entitled to freemdos are set forth
• Without discrimination - Article 7 - ALl are equally entitled to protection of the law
• Article 16 - Without limitation, the right to marry
• Articel 21- Everyone has the right to country and government
• Discsuuon
• Equality requirements = positive for real equality
• Opertunity means everyone is given equal possibiliteis
• Equiality of social goods including healthcare.
• Ecnomopi bassed prohibits

Subordinate and Autonomous Norms

• Non discrimination only in the enjoyment of the rights provided
• UN Clear that one of the basic purpose
• Numerous instruments under the unis
• Equality and non discriminatoon in UDHR
• UDHR = non discrimination

Equality Before UN

• International prohibits discrimination.
• Requiremnt if equality
• Prohibits treatment (both direct and indirect discrimination)

Direct Discrimination:

• This occurs when someone is being not treated as favorable than someone else, (complaint)
• Court needs to know whetehre there are different of results
• Analgud and simulation

Indirect Discrimination

• This occurs when a practice/rule that is ‘neutral’ has an inpart on groups
• (1(2)) Explicit discrimation