6 PPT HR_F_LAWC (1)(1).pptx
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HUMAN RIGHTS – LAWC 102 – FALL 2023 DR. IOANNIS KONSTANTINIDIS TODAY’S SESSION I. Recap on the Previous Session – The Universal Periodic Review Mechanism II. The International Bill of Rights - Core International Human Rights Treaties III. Concluding Remarks TODAY’S SESSION Learning Outcomes: O...
HUMAN RIGHTS – LAWC 102 – FALL 2023 DR. IOANNIS KONSTANTINIDIS TODAY’S SESSION I. Recap on the Previous Session – The Universal Periodic Review Mechanism II. The International Bill of Rights - Core International Human Rights Treaties III. Concluding Remarks TODAY’S SESSION Learning Outcomes: On completion of this week, students should Have developed an advanced understanding of the most important international instruments pertaining to human rights Be able to reflect critically on the key features of the core international human rights treaties Be able to compare United Nations and the treaty-based human rights systems I. RECAP ON THE PREVIOUS SESSION – THE UNIVERSAL PERIODIC REVIEW MECHANISM Socrative Quiz – Course Group: IHRLAW II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES The Notion of an “International Bill of Rights” The Universal Declaration of Human Rights (UDHR) 1948 – Adopted by the General Assembly of the United Nations The International Covenant on Civil and Political Rights (ICCPR) 1966 (entry into force 1976) The International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 (entry into force 1976) The First (1966 – individual complaints) and Second (1989 – abolition of the death penalty) Optional Protocols to the ICCPR II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES The Universal Declaration of Human Rights II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES The Main Differences between the UDHR and Treaty-Based Human Rights Law UDHR Treaty-based human rights law Aspirational (though some of its content may be Ratification of an human rights treaty creates said to constitute customary or general binding obligations on States parties international law) The rights it contains are not detailed Rights tend to be set out in much greater detail For example: the right to life For example: the right to life In the ICCPR, the corresponding provisions are Article 3 simply states that “Everyone has the found in both Article 6 (right to life) and Article 9 right to life, liberty and security of person.” (right to liberty and security of person). Both of these Articles divide into a number of sub-sections detailing the content of the right to life Creates no implementing body Each of the nine core human rights treaties create treaty organs, who are responsible for monitoring implementation of the relevant treaty and for the normative development of the rights contained within it II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES The Main Differences between the UDHR and Treaty-Based Human Rights Law The emphasis is on individual rights Many human rights treaties contain protection for “collective” rights For example: self-determination For example: self-determination: The concept of self-determination includes the right of people of a State to choose their political and legal status and pursue their own social, economic and cultural development. The UDHR does not mention the right to self-determination Does not specify any limits on the rights contained within it Both the ICCPR and ICESCR recognize the right of “all peoples” to selfdetermination (Article 1 of both) Human rights treaties generally limit the obligations on States through derogation and limitation provisions For example: freedom of movement For example: freedom of movement Article 13(1): “Everyone has the right to freedom of movement and residence ICCPR, Articles 12(1) and 12(3): within the borders of each state.” (1) “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.” (3) “The above-mentioned right[s] shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.” II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES Common Features Codification of jus cogens norms (Peremptory norms of general international law accepted by the international community of States as a whole) The universality of human rights – This is the “cornerstone” of international human rights: the principle was first laid out in the UDHR All human rights are interdependent: Each one contributes to the realization of a person’s human dignity through the satisfaction of his or her developmental, physical, psychological and spiritual needs. The fulfilment of one right often depends, wholly or in part, upon the fulfilment of others All human rights are indivisible: human rights are inherent to the dignity of every human person. Consequently, all human rights have equal status, and cannot be positioned in a hierarchical order. Denial of one right impedes enjoyment of other rights All rights are to be enjoyed and protected on a non-discriminatory basis – The principle of non-discrimination appears in all of the core international human rights treaties II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES Key Features of International Human Rights Treaties Overarching provisions: non-discrimination, universality, method and timing of realization The protection of substantive rights and freedoms The establishment of an independent monitoring body to implementation and normative development of the treaty oversee II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights Commission on Human Rights established in 1946 (replaced by the Human Rights Council in 2006) In the same resolution as the UDHR was proclaimed by the General Assembly in 1948, the General Assembly requests the Commission on Human Rights to continue its work on creating a Covenant on human rights which would translate the aspirations of the UDHR into binding treaty obligations State representatives in the Commission on Human Rights met annually for negotiations leading up to the adoption by the General Assembly of the two International Covenants Both were adopted and opened to States for signature, ratification and accession by the General Assembly (GA resolution 2200A (XXI) of 16 December 1966) – Qatar acceded to the Covenants on 21 May 2018 II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES Key ICCPR and ICESCR Rights Compared – Overlaps ICCPR ICESCR Art. 1: the right to self-determination Art. 1: the right to self-determination is exactly the same as in the ICCPR Art. 3: equal rights of men and women Art. 3: equal rights of men and women Substantive rights: elaboration of the UDHR rights Substantive rights: elaboration of the UDHR rights Art. 13: right to education and the liberty of parents to choose their Art. 18(4): child’s school education parents’ liberty to choose their child’s religious and moral Art. 22: freedom of association Art. 8: freedom to form trade unions Art. 2(1) and Art. 26: the principle of non-discrimination Art. 2(2): the principal of non-discrimination “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES Key ICCPR and ICESCR Rights Compared – Differences ICCPR ICESCR The formulation of rights: “Everyone has the right to…” compared to… “States Parties recognize the right of everyone to…” The timescale for realization: Immediate respect (Article 2(1)) Article 2(2) provides that each State Party undertakes to take the necessary steps, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant Progressive realization Article 2(1) provides that “Each State Party to the present Covenant undertakes to take steps… with a view to achieving progressively the full realization of the rights recognized in the present Covenant…” Limitations on rights: The ICCPR contains no limitation on rights relating to resources The steps required by Article 2(1) are limited to “…the maximum of [a State Party’s] available resources…” The ICCPR contains no limitation on the protection of the rights of nonnationals (in fact, General Comment 15 of the Human Rights Committee restates the general rule that “each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens” (paragraph 2)). Article 2(3) provides that developing countries may determine “to what extent they would guarantee the economic rights recognized in the present Convention to non-nationals”, having “due regard to human rights and their national economy”. II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES Key ICCPR and ICESCR Rights Compared – Differences Substance of rights: Protection of life, liberty and security of person Right to work (and just & favorable conditions of (e.g., prohibition on torture, on slavery, the right work) to life) Right to social security Procedural fairness and equal protection (e.g., right to a fair trial, prohibition on arbitrary Right to an adequate standard of living arrest, recognition before the law) Right to health Fundamental freedoms to be enjoyed without interference (e.g., right to privacy, free speech, Right to education freedom of association) Right to join trade unions Role of the family unit (e.g., the rights of children) Protection of the family The right to political participation Right to participation in cultural life II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES The Problems with Giving Effect to ICESCR Rights The obligation to fulfil ICESCR rights is one of progressive realization. Progressive realization does not mean that governments do not have obligations in terms of these rights until a certain level of economic development is reached but rather that there will be continual progress on the status of these rights and therefore States should take deliberate steps immediately and in the future towards the full realization of these rights, for instance: the adoption of legislative measure. The fulfilment of ICESCR rights may be limited by available resources (Art. 2 ICESCR). However, there is a “minimum core” of rights that must be secured, independent of such resources. Some economic, social and cultural rights do not require significant resources. For example: obligations to ensure the right to form and join trade unions and to strike, and the obligation to protect children and young persons from economic and social exploitation. The reference to “resource availability” reflects a recognition that the realization of these rights can be hampered by a lack of resources and can be achieved only over a period of time II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES The Other “Core” International Human Rights Treaties The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) The Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW) The Convention on the Elimination of All Forms of Racial Discrimination 1965 (CERD) II. THE INTERNATIONAL BILL OF RIGHTS - CORE INTERNATIONAL HUMAN RIGHTS TREATIES The Other “Core” International Human Rights Treaties The Convention on the Rights of the Child 1989 (CRC) The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990 (ICRMW) The International Convention for the Protection of All Persons from Enforced Disappearance 2006 (CPED) The Convention on the Rights of Persons with Disabilities 2006 (CRPD) III. CONCLUDING REMARKS Concluding Remarks New human rights standards have built on the 1948 Universal Declaration of Human Rights Participation in the treaties themselves has grown exponentially reinforcing the universality of human rights ASSIGNMENTS Assignment Blackboard – Week 5 – Reading: United Nations, The Core International Human Rights Treaties NEXT SESSION: INSTITUTIONAL FRAMEWORKS CREATED BY THE CORE INTERNATIONAL HUMAN RIGHTS TREATIES Readings R.K.M. Smith, International Human Rights Law, Oxford University Press, 2022, 10th Edition, pp. 150-177 Course Materials – Week 6 – Session 1 - Compulsory Reading – Notes Prepared for the Students THANK YOU FOR YOUR ATTENTION Contact Details Dr. Ioannis Konstantinidis, Assistant Professor of International Law, College of Law, Qatar University Email: [email protected] Office: College of Law Building I09 – Office B335 (second floor) QUESTIONS?
