Module 3.1.pptx

Introduction to Law (C0OP1a) Drs. Emine Ozge Yildirim-Vranckaert Week 5, 9 November 2023 Today’s Lecture ★ Human Rights Idea - Roots and Theoretical Background ★ Human Dignity as the Basis of Law and Drafting History of the UDHR and ICCPR ★ Different Generations of Human Rights ★ Human Rights Crit...

Introduction to Law (C0OP1a) Drs. Emine Ozge Yildirim-Vranckaert Week 5, 9 November 2023 Today’s Lecture ★ Human Rights Idea - Roots and Theoretical Background ★ Human Dignity as the Basis of Law and Drafting History of the UDHR and ICCPR ★ Different Generations of Human Rights ★ Human Rights Critiques ★ Different Human Rights Frameworks ★ Practice Lesson Part I: Human Rights Idea - Roots and Theoretical Background What do you think is more important for a society to focus on ensuring human rights: individual freedom or the collective good? 4 Natural Rights and John Locke (1632-1704) Natural Law: ❖ Moral principles inherent in humanity. ❖ Discovered through reason; obliges us to preserve ourselves & others. Natural Rights: ❖ Inherent entitlements: life, liberty, property. ❖ Must be protected by society & government. Difference Between Natural Law & Rights: ❖ Natural Law: Moral duties we have towards each other. ❖ Natural Rights: Moral claims we can make, particularly from the state. Social Contract: ❖ Mutual agreement: People consent to governmental authority for rights protection. ❖ Right to alter/overthrow a government that fails to protect these rights. Importance of Locke ❖ Locke’s principles form the foundation of modern human rights law. ❖ Underpin democratic values and limit governmental power. Immanuel Kant (1724-1804) Moral Autonomy & Dignity: ❖ Humans as rational beings have inherent worth. ❖ Basis for autonomy and non-instrumentalization in law. Kingdom of Ends: ❖ A community of individuals respecting each other's freedoms. ❖ Inspires participatory rights in democratic societies. Categorical Imperative: ❖ Act only on maxims fair as universal laws. ❖ Informing principles of justice and equality in human rights. Publicity Principle: ❖ Laws must withstand public scrutiny. ❖ Encourages transparency and accountability. John Stuart Mill Mill's Moral Theory ❖ Mill's utilitarianism, centered around the 'Greatest Happiness Principle,' proposes that actions are right if they promote happiness and wrong if they produce the opposite. The Principle of Liberty ❖ 'On Liberty' advocated for individual freedom as a fundamental right, essential for personal and social progress, and a protection against societal and governmental overreach. The Harm Principle and its Legal Resonance ❖ The Harm Principle asserts that freedoms can only be rightly infringed to prevent harm to others, forming a key justification for legal intervention and a pillar for ethical norms within human rights law. Advocacy for Freedom of Expression ❖ Mill insists on the necessity of free expression for the discovery of truth and the well-being of society, a concept enshrined in the freedom of speech protections found in international law and constitutions. Echoes in Human Rights Instruments ❖ While not referenced directly, Mill's ideas conceptually prefigure the principles in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Constitution. “Over himself, over his own body and mind, the individual is sovereign.” - J.S. Mill Post-UDHR View of Human Rights Theory of Justice - John Rawls Justice as Fairness ❖ Rawls’ philosophy centers on equal basic liberties and fair equality of opportunity. Original Position & Veil of Ignorance ❖ Promotes unbiased principles for human rights protection. Difference Principle ❖ Advocates for the benefit of the least advantaged in society. Human Rights & International Law ❖ Influences modern human rights discourse and the structure of international law. 8 Two Concepts of Liberty - Isaiah Berlin Berlin distinguishes between 'negative' and 'positive' liberty, influencing human rights discourse on freedom and self-determination. Negative Liberty ❖ Freedom from interference; a cornerstone for civil and political rights. Positive Liberty ❖ Freedom to control one’s life; inspires economic, social, and cultural rights. Impact on Human Rights ❖ Berlin's framework underpins distinctions in the UDHR and subsequent human rights treaties. Relevance in Contemporary Debate ❖ Berlin's ideas remain central in discussions on state intervention and individual autonomy. What do you think is more important for a society to focus on ensuring human rights: individual freedom or the collective good? → No definitive answer. 9 Part II: Human Dignity as the Basis of Law and Drafting History of the UDHR and ICCPR Need for a Universal Declaration ❖ World War II marked a period of unprecedented human rights violations, including genocide, forced labor, torture, and the suppression of political freedoms. ❖ The Holocaust emerged as a particularly grim chapter, with the systematic extermination of six million Jewish people and millions of others deemed undesirable by the Nazi regime. ❖ The war ended with the world in shock over the extent of the atrocities committed, creating a collective resolve among nations to prevent such horrors from happening again. ❖ Recognizing the imperative of human rights protection, the Allied powers sought to establish international norms that would uphold human dignity. ❖ It was against this backdrop of moral urgency that President Franklin D. Roosevelt articulated the "Four Freedoms" in 1941—freedoms that everyone in the world ought to enjoy. ❖ The end of the war also saw the creation of the United Nations in 1945, an international organization aimed at fostering peace and preventing future conflicts, where the need for a human rights charter was a central concern. 11 Roosevelt’s Four Freedoms: ★ Freedom of speech ★ Freedom of worship ★ Freedom from want ★ Freedom from fear Drafting of a Universal Declaration ❖ In the wake of World War II's devastation, the United Nations formed the Commission on Human Rights, with a pivotal task: drafting an International Bill of Rights. ❖ Eleanor Roosevelt, as Chairperson, infused the Commission with her visionary leadership, building on her late husband's human rights legacy. ❖ Philosophers and jurists like Charles Malik and Rene Cassin significantly shaped the Declaration's essence, advocating for freedoms that transcended material well-being. ❖ Article 1's powerful opening statement, "All human beings are born free and equal in dignity and right" mirrors the deep philosophical discussions on human worth and dignity. ❖ Despite the Declaration's transformative vision, Malik later critiqued its material focus but acknowledged Article 1's foundational recognition of individual dignity. 12 “Man must be able to think and choose freely and even to reject freely and to rebel freely.”- Charles Malik From a Declaration to a Covenant ❖ The Universal Declaration of Human Rights (UDHR), while not legally binding, has been the cornerstone of international human rights law. ❖ It has exerted a profound influence, inspiring a host of binding treaties and conventions that embody its ideals. ❖ The Declaration's "moral force" has become a universal yardstick, guiding nations in promoting and safeguarding human rights. ❖ To transform these aspirations into enforceable obligations, an international covenant on human rights was aspired to be drafted. While it was envisioned as a single covenant first, later it was split into two separate covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). 13 UDHR and ICCPR’s Influence on the ECHR ❖ The European Convention on Human Rights (ECHR) codified a legally binding commitment to human rights protection in Europe. ❖ Drawing from the UDHR's universal principles, the ECHR built upon the draft covenant's legal articulations. ❖ The draft International Covenant on Human Rights (ICHR), though not yet adopted, provided a structured approach to human rights enforcement. ❖ By aligning with the UDHR and draft ICHR, the ECHR established a strong legal framework for human rights within Europe. ❖ The convention signified a pioneering step in making the ideals of the UDHR operable through a regional treaty with judicial mechanisms. 14 Part III: Different Generations of Human Rights Civil and Political Rights - I Civil and political rights safeguard individual freedoms, ensure fair treatment by law, and protect against abuses of power. Five key categories of rights under the ICCPR (Articles 1-27): ➔ Protection of Physical Integrity: Against torture, arbitrary arrest, and extrajudicial killing. ➔ Procedural Fairness in Law: Rights during arrest and trial ensuring due process. ➔ Equality Provisions: Protection against discrimination based on race, religion, gender, etc. ➔ Freedoms of Belief and Expression: Includes freedom of expression, thought, conscience, religion, and association. ➔ Political Participation Rights: The right to vote, to form political parties, and to participate in government. 16 Civil and Political Rights - II Emergency Measures and Rights Balancing: ❖ Article 4 of the ICCPR permits states to derogate from some obligations in critical situations, balancing order and human rights. ❖ Restrictions are permissible to safeguard national security, public safety, and public order. Qualified and Absolute Rights: ❖ Qualified rights, like expression and assembly, can be restricted lawfully for public interest. But not arbitrarily! ❖ Absolute rights, such as freedom from torture and slavery, are foundational and non-derogable, upholding human dignity even in the most challenging circumstances. UNHRC Oversight: ❖ The UNHRC monitors and holds states accountable to the ICCPR. ❖ It ensures that all rights, whether qualified or absolute, are respected equitably. 17 Economic, Social, and Cultural Rights-I ❖ Originates from the International Covenant on Economic, Social and Cultural Rights (ICESCR). ❖ Economic, Social, and Cultural Rights aim for adequate living standards. ❖ States should progressively realize these rights, considering their resources. Key Aspects: ❖ Fair work conditions, social security, and cultural life are core rights. Oversight Mechanism: ❖ The Committee on Economic, Social, and Cultural Rights reviews and advises states. Principle of Progressive Realization: ❖ Acknowledges the varying economic capabilities of states. ❖ Encourages effective steps towards the fulfillment of these rights within resource limits. 18 Economic, Social, and Cultural Rights-II State Efforts and Committee Monitoring: ❖ States need to show continuous improvement in rights implementation. ❖ The Committee advises on interim measures for immediate support needs. Distinction from Civil and Political Rights: ❖ Economic, social, and cultural rights require gradual enforcement. ❖ These rights need active state involvement and resource dedication. ❖ Realizing these rights is an ongoing process, unlike the immediate nature of civil and political rights. 19 Part IV: Human Rights Critiques Critique on Human Rights’ Universality Western Ideals Dominance: ➔ ➔ Imposing specific cultural values Undermining global diversity Individualism as a Mythical Universal: ➔ ➔ Misrepresentation of collective identities Ignoring community-oriented societies Silencing Diverse Voices: ➔ ➔ Marginalizing non-Western perspectives Homogenizing human rights discourse Cultural Sovereignty Overlooked: ➔ ➔ Conflicting with local traditions and norms Straining cultural self-determination Disputed Rights Hierarchy: ➔ ➔ Arbitrary prioritization of rights Lacking a universally accepted rationale The Power to Refuse: ➔ ➔ 21 Upholding the right to dissent Challenging one-size-fits-all solutions Universality Problem and Reservations Vienna Convention Articles 19-23: Framework for reservations Purpose & Impact: ❖ Must align with the treaty’s objectives ❖ Tailors treaty obligations to fit national laws Examples: ❖ U.S.: Aligning ICCPR with the Constitution ❖ Certain Arab States: Harmonizing ICCPR with Sharia Outcomes: ➔ Varied human rights standards ➔ Potential discord between domestic and global commitments 22 Critique on Human Rights’ Enforcement Compliance Challenges: ➔ Voluntary adherence by states ➔ Lack of binding enforcement mechanisms Monitoring Difficulties: ➔ Inconsistent reporting by states ➔ Limited verification capabilities Political Dynamics: ➔ Geopolitical influences on enforcement ➔ Accusations of selective condemnation Efficacy of Sanctions: ➔ Questionable impact on state behavior ➔ Unintended harm to civilian populations Jurisdictional Constraints: ➔ International law vs. State sovereignty 23 Post-Colonial Critique of Human Rights Historical Evolution: ➔ Inherent rights from ancient social structures to modern laws ➔ Western-centric development since European Enlightenment Cultural Neglect: ➔ Disregard for non-Western legal traditions and cultures ➔ Dominance of Western ideals in human rights discourse Developmental Challenges: ➔ Human rights enforcement vs. national sovereignty ➔ Resource disparities and enforcement difficulties Western Dominance Allegations: ➔ Use of human rights as instruments for Western hegemony ➔ Economic and social inequalities in the Global South Dichotomy and Defense: ➔ Criticized yet leveraged against Western intervention ➔ Rights as tactical tools, not ultimate objectives 24 Feminist Theory Critique of Human Rights Gendered Foundations: ➔ Male-centric narrative in human rights discourse ➔ Example: "All men are created equal" reflecting gendered mindset Patriarchal Structures: ➔ Influence of patriarchal values in human rights development ➔ Gender biases in laws reflecting societal roles Violence and Discrimination: ➔ Inadequate redress for gender-based violence ➔ Economic and reproductive rights often undervalued Universal vs. Particular: ➔ Clash between universal rights and women’s specific needs ➔ Advocacy for intersectionality in human rights Agency and Representation: ➔ Underrepresentation of women in rights formulation ➔ Need for diverse and inclusive women's perspectives 25 Karl Marx’s Critique of Human Rights Human Rights as Bourgeois Constructs: ➔ Rights reflect capitalist values, not universal norms. ➔ Focus on liberty, property, and security are egoistic and individualistic. ➔ Abstraction of rights overlooks social and economic inequalities. Liberty, Property, and Security: ➔ Liberty is seen as a personal barrier against others. ➔ Property rights promote selfishness and social rivalry. ➔ Security becomes a means to protect property, not people. Political vs. Social Emancipation: ➔ Rights of citizens in political communities are limited. ➔ Political emancipation does not equate to full human emancipation. ➔ Social revolution is necessary to overcome class differences. Communism and Real Rights: ➔ Abolition of class distinctions is essential for genuine rights. ➔ Communism replaces individual liberties with social rights. ➔ Entitlements tied to duties reveal the conditional nature of rights. Economic Structure and Rights: ➔ Rights are constrained by the society’s economic and cultural levels. ➔ Inequality is embedded in the structure of rights themselves. 26 Part V: Different Human Rights Frameworks Inter-American Human Rights System ❖ Anchored by American Declaration of the Rights and Duties of Man (1948) and the American Convention on Human Rights (1969). Oversight and Enforcement: ❖ Overseen by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Focus: ❖ Tackles regional human rights concerns in the Americas/ Compared to UN ICCPR: ➢ Enforceability: Court issues binding judgments ➢ UN Committee: Limited to recommendations 28 African Human Rights System ❖ Based on African Charter on Human and Peoples' Rights (Banjul Charter) (1981) Oversight and Enforcement: ❖ African Commission and Court on Human and Peoples' Rights Focus: ❖ Balances individual rights with community duties and collective rights Compared to UN ICCPR: ➢ Enforceability: Court can issue rulings reflective of local norms 29 Arab Human Rights System ❖ Centered around the Arab Charter on Human Rights (2004), which entered into force in 2008. Oversight and Enforcement: ❖ Administered by the Arab Human Rights Committee. Focus: Includes rights and freedoms within the context of Islamic law, and also addresses the rights of women and children extensively. Compared to UN ICCPR: ➢ Arab Charter incorporates Sharia principles. ➢ Focus on duties/social order. ➢ May diverge from international norms. 30 Association of Southeast Asian Nations (ASEAN) Human Rights System ❖ Established by the ASEAN Human Rights Declaration (2012) and the Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights (AICHR). Oversight: ❖ AICHR: Consultative, not enforcement-based Focus: Integrates regional values with human rights Compared to UN ICCPR: “ASEAN Way,” consensus and non-interference 31 QUESTIONS? COMMENTS? Contact me: Emine OzgeYildirim-Vranckert [email protected] Practice Lesson 34 Manuel Wackenheim v France, Communication No 854/1999, U.N. Doc. CCPR/C/75/D/854/1999 (2002) 35 Manuel Wackenheim v France The case is about Manuel Wackenheim who is a dwarf and began in July 1991 to appear in "dwarf tossing" events organized by a company called Société Fun-Productions. Wearing suitable protective gear, he would allow himself to be thrown short distances onto an air bed by clients of the establishment staging the event. 36 Manuel Wackenheim v France When you analyse a case, first think of:  What are the facts of the case? (The context, what led to the case)  What is the problematic? (What is the legal problem to be answered)  Which laws are relevant? (Easy: they are explicitly mentioned in the decisions)  What are the arguments of the parties?  How did the court decide?  Do you agree with the decision? (Your arguments that you should support with legal reasoning) 37 Further legal discussions • What is human dignity? Can you weigh it? Let’s say saving the lives of 7 people vs. torturing someone to tell their whereabouts • What is a dignified living? Are states responsible for making people survive? • Do you think the right to work (for a dignified life) should have no limits? Also, should we conceive this right only with a negative dimension (nonintervention of the state), or should states even positively interfere with providing work? • And who decides what is dignified? (e.g. Can/should an administration ban the prostitution?) 38 Final words-let’s go back to Immanuel Kant • Act in such a way as to treat humanity, whether in your own person or in that of anyone else, always as an end and never merely as a means. • But a man is not a thing, so he isn’t something to be used merely as a means and must always be regarded in all his actions as an end in himself. So, I can’t dispose of a man by maiming, damaging or killing him—and that includes the case where the man is myself. (Kant I. The groundwork for the metaphysic of morals) Do you agree/disagree? 39