International Human Rights Law PDF

[International Human Rights Law](https://www.studeersnel.nl/fr-ch/document/universiteit-van-amsterdam/international-human-rights-law/international-human-rights-law/109784116?utm_campaign=shared-document&utm_source=studocu-document&utm_medium=social_sharing&utm_content=international-human-rights-law)...

[International Human Rights Law](https://www.studeersnel.nl/fr-ch/document/universiteit-van-amsterdam/international-human-rights-law/international-human-rights-law/109784116?utm_campaign=shared-document&utm_source=studocu-document&utm_medium=social_sharing&utm_content=international-human-rights-law) [International Human Rights Law (Universiteit van Amsterdam)](https://www.studeersnel.nl/fr-ch/course/universiteit-van-amsterdam/international-human-rights-law/73076?utm_campaign=shared-document&utm_source=studocu-document&utm_medium=social_sharing&utm_content=international-human-rights-law) Studocu n\'est pas sponsorisé ou supporté par une université ou un lycée [Week 1:] Foundations of and Critiques of Human Rights Law ====================================================================== INTRODUCTION --- OUTLINE OF THE COURSE -------------------------------------- - - - - - - - - - - - FOUNDATIONS OF INTERNATIONAL HUMAN RIGHTS ----------------------------------------- - Human Rights = rights you have simply because you are human = only rights that **apply to everyone, everywhere = universal** - - - - - Over the years - decades - war times → same governments, state authorities could infringe upon the freedoms and rights of people → **to balance out the needs of central governments and the idea that individuals / groups have right** ⇒ reconciled by the idea of HR - - Governments cannot claim that it is in their country and part of their culture → HRs apply to all not part of your culture - history - - - - - - - - - - - - - - - - - - - - - - By themselves HR mean nothing → **to mean something, they require the protection of the law** - → **Idea** of **Human Rights was recognised early on**, but **not that they were applicable to all** → always an idea that some people are more equal to others, more entitled to Human Rights - - - **1945 with the UN = renewal** (purpose: to **reaffirm faith in human rights**, in the dignity and worth of the human person) → where we saw a restriction of state sovereignty → construct a new world order - 'Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small' - - **Limit**: article 2(7) UN Charter (Domestic Jurisdiction Clause) → did not commit MS to a lot → **required to 'promote' HR** - - - - - - - **1990s**: **collapse** of the **Soviet** Union, **economic and social rights lost their stigmatising** association with communism and **entered the constitutional law of many western countries** - - - - - - - - Actual **sovereignty of states for a long time was absolute** → states had sovereignty to do what they want on their territory and other states wouldn't intervene ⇒ totally free from intervention - Still happens sometimes → they use the non-intervention argument and that they know best on their territory ⇒ exception, now the norm is HR respect - Until the UN was established there was **not a real institutional platform where states from all sides could come together, discuss HR issues and adopt HR treaties** → with UN there was an institutional framework and platform where this could take place - - - **Moral basis of HR: human dignity** (= idea that because you are a human being you have certain rights = inherent in you as being human) → dignity is something that needs to be protected with HR and certain freedoms - **Revolutionary**: human dignity is not a secular concept originally but religious → HR got detached from the religious tradition and then re-attached this concept of human dignity to it - Idea that **human rights are declared** → they were already there (**natural law ---** *Bentham*) → putting them on paper was more a declaratory act - - - - - - - - - INTERNATIONAL HUMAN RIGHTS LAW WITHIN PUBLIC INTERNATIONAL LAW -------------------------------------------------------------- - - - - - - **International Law = based on consent and voluntarism** v. HRL = because of its form does the same → but **not all these rules of treaty law fit well within international law because** of the vertical relationship which adds to the **horizontal** one (and might be more important) - **Non-reciprocity:** PIL is based on reciprocity (mutual rights and obligations created between states) with IHRL does not work that way - **Not a contractual relation** (if I don't respect my part of the treaty you don't need to respect yours → if HR violations of one state in its territory would mean other states could do that as well on their territory → HRL would be dead) - For other treaties say if you don\'t respect you're not a party to it → for HR if you kick them out does not help the people of that country because then the country isn't bound by the treaty and can whatever they want → why it's **harder to withdraw from a HR treaty because if withdraw you don\'t punish other states but your own people** which are supposed to profit and benefit from those treaties - **Main obligations of the state are not towards the other states but towards the people** on their territory and jurisdiction → if horizontal reciprocity the people would automatically suffer ⇒ if counter-measures are not improving the human rights of the people there, then they're not efficient - **Interstate interest for HR to be respected** → consequences of HR violations can trickle down in another state (i.e: refugee flow) - - - **Multinational corporations** → MNCs can also be **responsible for HR violations** because very much involved in HR violations - - - UNIVERSALISM v. CULTURAL RELATIVISM ----------------------------------- - 1. - - - - **30 Human Rights** → listed in the universal declaration of human rights (customary law) → **UDHR = first agreement that Human Rights apply to all** - **Adhered** to by many governments + **no states that deny its value** regardless of them respecting it or not - **Translated into more than 500 languages** → local languages, indigenous languages, dialects → shows the importance that we generally attach to it - **Article 1**: **all human being are born free and equal in dignity and rights** → and human beings have these rights regardless of their specificities and differences - - **Adopted** by a **small group of state and a lot of African countries** weren't even part of the debate - **Counter**: many **socialists countries played an active role** on the debate → doesn't only reflect western standard - Does **not** have the **force** of **law** → optional → not ratified by nations by approved by the GA - - - - - "Fullest development as a member of his society" → **inalienable rights** and person needing the respect of a certain amount of rights to ensure their representation as individual in society - "Respect for the cultures of differing human groups is equally important" → **individuals have certain rights** but if you want to do that at **world level you must take into account the huge amount of diversity** - Asked the UN commission to **take into account all human beings** → how to make sure its not a western American way of looking at those rights - Attention to **individuals as members of society** (collective aspect) moving away from a more liberal way of individuals → development is always in line with society - Must remember that **cultures are different but equal** → attention must be payed to these differences of equal value ⇒ **reconcile universalism and cultural relativism** - Requested a **bottom up approach → cultures can change approaches** ⇒ contested: traditional practices that are questionably in line with HR → must look at rights and duties based on today's scientific knowledge of differences and equality - - - 2. **Cultural Relativism: universalism is impossible because of the variety and differences in the world** → HR can only be relative (to the culture, region, country) - - idea of the universality of human rights is sometimes challenged by cultural and political ideas or economic circumstances that are at times seen as incompatible with international or universal human rights norms - **Special Rapporteur: critical** of **relativism** → it is very **often abused by states** to deny people certain rights (you don't understand these are our values) - "**Arguments based on 'relativism' or 'cultural specificity' seek to place people outside human rights protection**" → sees it as a false excuse to place people outside of the protection of HR - - **Universalism does not mean you don't value diversity** → essential factor for the realisation of universal human rights is diversity → **full respect of HR creates an enabling environment and is a guarantee of cultural diversity** - **Cultures and cultural traditions can be contested → not static** = very dynamic so can change and HR can be a good factor in promoting that change - **Reconciling universality and cultural relativism** → this dichotomy (strict issue between the two sides) can be **overcome by making a distinction between different levels of universality and relativism** → there is diversity and this is an asset - - - - But, how they are implemented → discretion of how they can implement / interpret those rules - - - - - - - - - - **All HR are interrelated + should be treated the same**→ irrelevant if social, political right or freedom + no cherry picking - **In between of universalism and relativism: must bear in mind cultural particularities, BUT regardless of these particularities, it is the duty of states to protect all these HR** - - **Freedom of expression:** commonly accepted but the extent of this freedom you have depends on systems (US: absolute, NL: because of WWII and nazism there are limits) → doesn't mean you don\'t have freedom of expression but that **it can be limited dependent on your history and culture** ⇒ freedom of speech applies but different in the way it plays out in practice → universality =/= uniformity - - - Universalisation should reduce the gap between principles and practice and covers a number of separate actions and processes that should take place within a given cultural, religious, social and political context: - Increasing knowledge and awareness of human rights, in governmental and non-governmental circles, and among the different ethnicities of States - HR education → translating information on rights into the different languages, spreading knowledge within the populations (= spread awareneess) - - Policies should focus on searching for and underlining the commonalities between HR principles and those in the dominant cultural traditions of the concerned culture - - Role of domestic constitution and administrative law, the independence of the judiciary, and access to justice - - Dependent on the willingness and the ability of lawyers and NGOs to 'frame' concerns in terms of rights violations - - RESERVATIONS ------------ - - **Problem**: want as many states onboard but then the + other states don't know what you have bound yourself to - - - - - - - - - - - - - - - - - - - - - **Steps to analysing a reservation:** 1. Is it **allowed** in the treaty? 2. - - - - - - - - - - Not mentioned in the VCLT → treaty bodies have given themselves the right to interpret the validity of reservations (GC n^o^24) → need it to be able to deal with cases pertaining to reservations and violations of rights by the states - - - **Examples**: - - - - - Contradiction between convention and *norms* → **unclear** + **too broad** what these norms are (especially to non-islamic states) + what SA has obliged itself to → **treaty is a contract between states** and other **actors don\'t know what SA has agreed** to - - - - - Reservations → **if everybody makes reservations what is left of the joint agreement** → many of them are based on unacceptable cultural relativist excuses for not implementing human rights ⇒ **argument for relativism** - Reflect that States **do not see all the rights as the same for everyone everywhere** but that states decide not to adhere to certain parts - **States fall back on their own provisions** to say **this is what they consent** to or understand by the treaty = sign of **relativism** - If we **accept that these reservations are not acceptable then strengthens the universality of these treaties** CRITIQUES OF INTERNATIONAL HUMAN RIGHTS LAW ------------------------------------------- - → Point to the **gap** between **promise that every human being enjoys a number of fundamental rights** and **world where HR violations continue and individuals are excluded from the enjoyment of their HR** - Potential **critiques**: - - - - - - - - 2 forms of critics → **overlap** in the types of critics made +-----------------------------------+-----------------------------------+ | Problems with human rights as | | | demanding that a better practice | | | be elaborated | | +-----------------------------------+-----------------------------------+ | Includes: | | | | | | - - - - - | | +-----------------------------------+-----------------------------------+ | Accept the idea of human rights, | Concept of human rights is | | but demand that human rights be | fundamentally flawed | | made to work better in the face | | | of challenges | | +-----------------------------------+-----------------------------------+ | Don't suggest that the concept is | Not against human rights in the | | inherently defective → say that | sense that their aim is not to | | the gap *can* and *should* be | call for the supposed binary | | improved | opposite of human rights, namely, | | | violations of human rights Route | | | towards emancipation need should | | | not take the form of human | | | rights. | +-----------------------------------+-----------------------------------+ - **Utilitarianism** - Oppose the granting of individual rights regardless of the consequences for the common good; they think it is **impossible for human rights to be absolute and/or inalienable** - - - - **Realism** - Reject the idea that human rights are natural, simply existing out there to be recognized and implemented; they argue that **human rights cannot be \'above or \'beyond\' the state but necessarily originate from and are enmeshed within the state** - Realism is **critical about this idea of natural rights** → says **they are man made** and there is nothing logical about HR → **HR are a man-made creation** - - These rights did not exist, but making people believe they existed was dangerous, for their inevitable disrespect would lead to discontent, and possibly in turn, insurrection - Practical **problem** as the **promise of rights that could not be respected in practice invited a perpetual overthrowing** of political institutions - - Hold the **state as the key actor** on the international scene → always follows its own interests → state does whatever is required to ensure its own survival and acts morally → should not be guided by private morality → **no cooperation between States because follow their own needs** - - If states act in apparently immoral ways, it is because it is in their interests to do so, not because they (should) follow a public morality different from the one governing relations between individuals - - - **Marxism** - Rights as **sustaining the bourgeois order** and thus feeding oppression by privileging a particular class to the detriment of the oppressed majority - **Cultural relativism - particularism v. Universalism** - Cultural **differences** in the world are **not sufficiently reflected in HR law** → HR takes an universalist perspective and tries to **elaborate common standard in the world BUT denies diversity** - **Universal does not mean the same thing in every language** → in some translations it is "**world wide**" → idea that **universality is in its application in the whole world v. the idea that the norm is universal** → question of whether this universal norm was the idea at the time - +-----------------------------------+-----------------------------------+ | | **Particularism** | +===================================+===================================+ | all **values and different | **overcomes the dichotomy between | | practices should be respected** ⇒ | relativism and universalism** → | | about what HR entail → | there is a **common idea and | | **relative** to a particular | unity in the value of HR** but | | **context** | its **implementation, respect and | | | development, diversity** can be | | **Moral systems = embedded in | **taken into account** | | culture** and that **different | | | cultures produce different | | | moralities** | | +-----------------------------------+-----------------------------------+ | **Object** to the idea that | | | **moral judgments can be made | | | that hold true across cultures**; | | | they call for **tolerance of | | | practices** that are not | | | comprehensible within the | | | dominant perspective | | +-----------------------------------+-----------------------------------+ | | **Rights need to be interpreted** | +-----------------------------------+-----------------------------------+ - **Post Colonial Critique** - - - - - - - - - - - - - - - - - - - - - - - - - - Ratification of the ICC statutes has spread and the Office of the Prosecutor has begun to signal its resolve by commencing investigations, indicting alleged wrongdoers, and issuing warrants, episodes of intentional civilian killing by government agents has decreased - - - - - - At national level, **NGOs and activists count very much on HR and use these treaties, norms all the time to hold their states accountable** → need to look at the vertical effect POSITIVE OUTLOOK ON HUMAN RIGHTS -------------------------------- - **HR are not static and HR law is not static either** → flexible and offering entry points to adapt and change - - - [Week 2:] Sources, categories of right and UN monitoring systems ============================================================================ - **Sources, categories and monitoring of HR** - - SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW ----------------------------------------- - → Identifies **what constitutes law** = how decision-makers can determine what instruments, practices, or policies constitute legally binding obligations as opposed to moral, political, or other social commitments - **Natural law believers → they existed before we even put them in HR documents** - Here: **sources of positive law → adopted by states and reflect State consent** - - **Sources** of **PIL** as defined by ICJ (article 38(1)): - - - - - - - - - **PB**: how to select which state activities constitute state practice - **PB**: divergence between what states do and what they say - - - - - - - - - - General principles drawn from international arenas may be found in statements of consensus → global summits, and in the resolutions of UN organs - - - - - - - - - Jurisprudence of regional and national courts is authoritative only within their own legal system, but careful judicial analysis can be influential in the decision-making by courts in other regions and states that are faced with same PB - - - - - - - HR Council, reports of the advisory council, reports of the UN High Commissioner for HR, HR work of UN specialised agencies, NGO reports - **Other HR sources:** - - - - - - - - - - - - - - - - UN HUMAN RIGHTS INSTRUMENTS --------------------------- - - - **Charter of the UN 1945** - - - - - - Increasing agreement that Article 2(7) **does not justify HR violations** and does not justify non-interference - - - UPR (universal periodic review) = mechanism whereby the HR Council regularly reviews all the states in the world for their HR record → periodically all the states have to do that - **UNDHR 1948** - - - - **HR treaties → HR instruments can be divided into** 1. 2. - Protect specific groups because sometimes they have **different needs which are not protected /** are more disadvantaged / less powerful to protect their rights → leads to the pluralisation of HR → overview of HR was not fitting for particular groups → HR should protect the special needs and interests of different groups - - 90% rights are the same as the general treaties with some additional specific provisions to the particular group in question → don't necessarily create new rights but transfer them to the specific needs of such groups - **Specific instruments are needed because of their experience** → might require creation of nearly new rights - - - - - - - - - - - - - - - - - - Individual autonomy → important for such groups → what do they want and need = must ast them - Freedom to make one's own choices → not present in other treaties but here because was very important for this group - Non-discrimination → very important because disability is not a prohibited ground for discrimination → because when the treaties were drafted there was not much attention placed on rights of people with disabilities - Full and effective participation and inclusion in society → must ask people what they need and see to what extent this can be accommodated "reasonable accommodation" → states must do as much as they can in order to accommodate - - - - - - - - - - - - - - - - - - - - → Necessary because not always obvious → theoretically entitled but never acknowledged → makes it clear that existing right apply to people with disabilities - - → Refers to principle of equality and non-discrimination → people with disabilities should be able to enjoy the same rights on an equal basis with everyone else - - - - - - - - - - - - - - - **Reaffirms their *access* to rights** → point is to make clear how these HR statndards are to be understood for people with disabilities - **→ Makes clear how the right should be protected - implemented - guaranteed → different from other HR documents → clear spelling out** - - - - - - - - - - **→ Idea = delve deep in issues of implementation and to absorb them in a group rights** - - - - - - **Idea of autonomy** → not defined but refers to their ability to do things on their own without the assistance of others and is linked to the right to be \"free to make one\'s own choices,\" (highlighted in the Preamble as being of \"importance\" to persons with disabilities) - **Refugee convention and genocide convention** - **New HR instruments are getting added** → reasons: 1. **Legal development** + **coincidence** (enforced disappearances: already prohibited before but there was an idea in countries where this was a major problem (dictatorship) at some point there's the idea that maybe we should adopt a treaty on it) 2. Most of the documents on certain groups are promoted by **non-governmental entities and then states start negotiating and then a treaty is adopted** 3. 4. - - - - **What triggers HR treaties:** - - - - Treaty on business and HR → idea so far is not that *business* themselves become party to the treaty BUT that states are bound by it → how they regulate the practices of businesses in terms of HR and environmental issues → goes beyond Labour Rights (environmental issues, security...) but includes them - - Treaty on the rights of older persons → because the population is aging fast (West) → to what extent are HR adapted and reflect the rights of older people sufficiently (digitalisation: are we not excluding a lot of people? Sufficient health care? Inclusion in general public life?) - - → Now much more done in cooperation with the people concerned by it → actively involved in the drafting process of the treaty - **Pros and cons of new treaties:** - - - - - - - - - Treaty is a **compromise** → can be a watered down text, some issues ar left out on purpose (CEDAW: domestic violence and sexual violence were not included because not seen as gendered discrimination but violence → now realised that sexual violence is related to their sex → domestic violence is based on the fact that you're a woman so now added to CEDAW) - **No ratification / small ratification** → treaty is not very helpful v. declaration where there's no need to ratify and cannot make a reservation - - Not just a legal decision but also a **political decision → sometimes endless negotiations to ensure there's no treaty adopted** - **Alternative solution to new treaties: interpreting existing ones in a broader way → expand the scope of existing treaties** - **GA recognition of HR to a clean - healthy - sustainable environment** → read into the right to health and life BUT no clear explicit right to it - GA recognised it through a GA resolution (not legally binding) → still reflects consensus by states (161 in favor and 8 abstentions) - PB: does not solve the question of what *particular* obligations this leads to → still under debate and in development - - - - **Bad**: **declaration is more specific** v. based on all these treaties and documents we recognise this right (not any more details) - **General Comment: only adopted by the UN Treaty bodies** → what treaty bodies do based on their experience in reviewing states; want to give states more guidance so adopt General Comments - - Legal value: authoritative statements by these bodies → bodies themselves use them and the ICJ has also referred to them - - - **Bad: not adopted by states** (weaker legal status) → but can lead to states adopting the rights they recognise in the GC as rights - **Value hierarchy of sources: treaty \> case law and jurisprudence \> general comments \> GA resolution \> interpretation treaty by treaty body \> academic writing --- NGO reports** CATEGORIES OF HUMAN RIGHTS -------------------------- - **IHRL = rights based regime → not duty based** \- Rights are justified first and duties follow - - **Civil and Political Rights** - **Classic freedom rights** → oldest in history because they were supposed to protect us (our freedoms) against the state (interference) → rights where the state had to refrain from interfering - - - - - - - About **social issues** → education, health, work, housing → states have to actively do something → not about respecting freedom but state providing active support - - - - Situations require **collective rights** → worldwide problem we need to tackle (right to peace, clean environment, development) - - Some **declarations already adopted** → right to clean environment seen as part of right to life and health - Are being developed but collective object makes it difficult to apply them → what is peace? No war or peace of mind as well? - - - UN MECHANISMS AND BODIES TO PROTECT HUMAN RIGHTS ------------------------------------------------ - - -------------------------------------------------------- ------------------------------------------------------------------------------------------- Comprised of **States** GA, HR Council (subsidiary body of the GA), ECOSOC, SC ICJ, Advisory Committee of the Council, Treaty Bodies, Office of High Commissioner for HR -------------------------------------------------------- ------------------------------------------------------------------------------------------- +-----------------------------------+-----------------------------------+ | Get their authority from the | Established by a particular | | **charter** | **treaty** | +-----------------------------------+-----------------------------------+ | HR Council, ICJ | Human Rights Committee (for | | | ICCPR), Committee on ESC Rights | | | (ICCPR), Committee on the Rights | | | of the Child | +-----------------------------------+-----------------------------------+ - - - NGOs may participate in the the Council as observers - - - - - - - - - Promoting **effective coordination and mainstreaming of human rights** in the UN system - - Serving as a **forum for dialogue on thematic issues** - Making **recommendations** to the **GA** on developing new human rights standards - **Responding promptly to human rights emergencies** - **Supporting the work of the UN High Commissione**r for HR - - Difficult to get suspension procedure in motion - **Criticism**: too **politicised** → takes decisions not based on justice or HR concerns but what is politically the best things to do - - - Can lead to some states saying we'll withdraw - US: withdrawal in 2018 - Reasons: biggest abusers are in the HR Council, hypocritical, not meeting its original purpose so withdraws - 2021: rejoined as observer and in 2022 as member → if we want to reform we must do it from within → shows that politics and political ideas are very present in this - **If countries have a bad behavior need to get ⅔ of the votes to suspend a member from the HR council** - - - - - - - - Why does it want to rejoin? - - Power play: if we want to rejoin we can - **Many other countries (Syria and countries with questionable HR reports) are still within → talk about HR in such an important form but don\'t respect them at home** - - - **HRC has Independent Advisory Committee and Special Procedures (working groups and Special Rapporteurs) → independent advice → helps council in its monitoring function** - - **Universal periodic review** - **Review of all the MS of the UN** (not just those in the HRC Council) - - **Basis**: - - **Compilation** of **UN information**: to create a picture from the UN side on how it considers that picture to be doing - **Summary of stakeholders' Information:** (NGOs, NHRIs) → independent bodies working in that country / region - → Get a nice overview of the situation - Council looks at this and then **discusses it with the State → provide a report to them** - **UPR = complementary to other UN treaty bodies** - **Critics**: - States **avoid negative UPR assessments by ensuring that friendly states praise** their human rights records and ignore their shortcomings → outcome of the review might not be truthful - - - **fewer recommendations address economic, social, and cultural rights** than civil and political rights, thereby → undermine objective of promoting universality, interdependence, indivisibility, and interrelatedness of all human rights - - - **Extraordinary** → bodies at international level which can monitor how states are doing by hearing individual HR complaints - Can **only hear complaints on a consistent pattern of gross violations of HR** → most serious HR violations - **Who** can file complaint - **Any individual claiming to be the victim** - **People on their behalf** → information must be serious - substantial and real (from real source not internet) - **Criteria**: 1. 2. Must give a **factual overview** of the alleged violations and indication of the rights violated 3. **Cannot overlap with other procedures** → cannot put complaint at multiple places at the same time 4. **Cannot be manifestly politically motivated** → HR Council is a political body, wants to maintain some leeway - **Procedure is confidential** → hard for HR activists and people working on these issues to know what the HR Council is doing - **Responses to urgent and country situations** - HR Council can convene special sessions - HR Council can convene urgent debates during its regular sessions to address issues of significant concern - **Outcomes**: - Creation of **expert fact-finding missions** - Creation **independent international commissions of inequity** - Creation **HR commissions** - Creation **independent expert mechanisms** - - Whether the Council will address a country- situation or continue to do so depends on the willingness of its membership → **composition means African and Asian groups have an automatic majority in Council decision-making** → charges that the Human Rights Council is selective and politically biased - There has **been no special session, special procedure, or similar mechanism for and taking account of the HR concerns in Western states** - - Should HR be monitored by states or experts → AKA the HR council or the HR committee? - **Yes**: - - - **Encourages dialogue** → general participation + can have urgent sessions - **States in the end are the ones who develop the treaties and remain the main actors** → should be given a platform where they develop these norms and discuss them - **States don't believe the experts** → what do they know? States consider that experts don't really know the *reality*, we have to take the real decision, not them - Gives a **platform where HR issues are discussed** - **Review for all states and complaints can be brought against all states** → no relation with ratification of treaties (can be about any topics and countries which haven't ratified the treaties can still be a part of this) → as treaty body can only deal with the topics you've elected for - **Special procedures → elaboration of HR has taken place** and the special rapporteurs (independent persons who help the HR council and advise it on special issues --- not connected to a UN body but member of states) really try to interpret HR norms - **Politicised** → comes with the territory of being a body of state members → states protect each other and diplomacy trumps justice - **Ineffective** sometimes - More **attention for certain countries and rights** - **Complaint procedures are completely confidential and you do not get an individual redress** → must be *gross* and *systematic* violation (no individual situation) → council will not provide individuals with a solution but will try to change the situation in the country as such, will benefit me individually but no individual outcome - **States protect each other** → are we doing diplomatic relations or justice - **Every HR treaty has its own treaty body** → seen as a collective system rather than individual committees - - **When States violate HR** → not a solution to terminate treaty → better to **discuss** violation → why we need the treaty bodies - Treaty bodies are **invested with various tools to assist states parties implementation of their treaty obligations** - - - - **Treaty** **Treaty body** ------------------------------------------------------------------------------------ -------------------------------------------------------------- International Covenant on Civil and Political Rights (ICCPR) Human Rights Committee International Covenant on Economic, Social and Cultural Rights (ICESCR) Committee on Economic, Social and Cultural Rights Convention against Torture Committee against Torture Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) Committee on the Elimination of Discrimination against Women International Convention on the Elimination of Racial Discrimination (ICERD) Committee on the Elimination of Racial Discrimination --------------------------------------------------------------------------------------------------------------- ------------------------------------------------------- Convention on the Rights of the Child (CRC) Committee on the Rights of the Child Convention on the Rights of Persons with Disabilities (CRPD) Committee on the Rights of Persons with Disabilities International Convention for the Protection of all Persons from Enforced Disappearance (ICPPED) Committee on Enforced Disappearances International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Committee on Migrant Workers - - - - - - - - - - - - - - - - - - → Because of State sovereignty → keep control over whether or not they accept such a procedure - - - - Have **exhausted local remedies** → State sovereignty → prefer to solve issues themselves first - If local remedies are ill-founded or inexistent (Somalia) → criteria can be skipped - - - - **Cannot have already been examined by the treaty body concerned or another international investigation or settlement procedure** - **General Comments** → not linked to an individual country or situation → interpret a part of a treaty or norm - Valuable for researchers, individuals, judges → see how these norms should be adopted - - **Can be source of negotiation for future treaty** / generate state practice which leads to adoption of a new law - **Limit: not legally binding** → States can be critical of how these treaty bodies interpret such articles - Secondary treaty law → derives its authority from the binding nature of the treaty and the implied consent of states to it, or as indicative of subsequent agreement and practice for interpretation of the respective treaty as provided for in Article 31(3) Vienna Convention on the Law of Treaties - **No law-making power** → can be seen as treaty bodies exceeding their comeptence - - - CEDAW, ICESCR, CRPD, CRC; CT Committees → can initiate inquiries upon receipt of reliable, well-founded indications of serious, grave, or systematic violations of the respective treaties by a state party - - - **Findings are analysed by the whole Committee and transmitted to the state party with recommendations** - - - - - - - - Budget cuts → force the cancellation of hearings to monitor government compliance with human rights standards → limit conversation ability (limit implementation HR) - 25% cut in travel expenses → only cost incurred by the human rights committees, whose members work without pay but travel for meetings - - Lots of discussion on the selection of members of treaty bodies → long election process (done by member states and some take it seriously others no) - - - - Russia left Council of Europe and ECHR → all complaints come to the HR Committee - No treaty body for environmental or humanitarian law (apart from ICJ but only interstate complaints) and environmental law → difficult for individual to complain about them so go to HR Committee - Lots of discussions on reform procedures → very difficult to streamline these procedures [Week 3:] civil and political rights --- equality, non-discrimination, right to life ================================================================================================ - HR are laid down in various instruments but in vague terms → **interpretation is key to know what the right entail and what obligations states have** - - - - - What are **subsequent agreement between states and practice** → what has happened since the adoption → any new instruments which can help us interpret - - - - - Dynamic interpretation: looks at what we would consider nowadays a good interpretation - - - - - Broadly recognised that **HR treaties are dynamic instruments** → must be **interpreted in the present** day conditions - **HR can be limited by states under certain circumstance**s + states in implementing HR have a certain **margin of discretion** → to what extent are states free to interpret them and implement them at national level in a certain context - **HR** are **supposed to have a core** → minimum of protection states have to provide → core of the right and the rest is periphery → core is more limited and which states always have to protect while the periphery there is more liberty for states interpretation wise - - - **HR treaties → not only states** → also the **treaty monitoring bodies which need to decide on cases** and reports and therefore interpret the treaties + academics (do research on topics or norms and prove interpretations → not binding but helpful) - 1. - Question about the **scope → when is the right actually applicable** → does the particular activity I want respected fall under the scope of this freedom 1. 2. - Don't need to go into details → just need to prove a link between the activity and the right - 2. - - 3. **Addressee → who bears a duty** → every right entails a duty for someone else / something else → who is the right addressed to - **State responsibility** → circumstances in which a state will be held liable for a violation of its international obligation - - - - - State is responsible for the acts of a private actor if the actor is acting in a governmental capacity / under its discretion and control - - States **must exercise due diligence by taking reasonable measures to prevent and punish actions by a private actor** that prejudice the human rights of others - - - **Exceptions under customary international law → duties not to perpetrate genocide, certain war crimes, or crimes against humanity** 4. - Scope of application of international human rights law is **contingent on a state\'s \'jurisdiction\'** over potential rights-holders - - - - ICCPR: article 2(1) → requires **states to respect and ensure the rights recognized in the Covenant to all individuals within its territory and subject to its jurisdiction** - **Effective control test** → situations **where a state exercises power or effective control either over the territory on which the individual is located (spatial model) or over the individual (personal model)** - **ICESCR: state parties have duties to *protect* HR in other States** → take steps to prevent and redress infringement of covenant rights that **occur outside their territories but *due to the activities of business entities over which they can exercise control*** - - **Situations over which it exercises authority or effective control**, whether or not such control is exercised in accordance with international law - **Situations over which State acts or omissions bring about foreseeable effects on the enjoyment** of economic, social and cultural **rights**, whether within or outside its territory - **Situations in which the State, acting separately or jointly**, whether through its executive, legislative or judicial branches, is in a position to **exercise decisive influence or to take measures to realize** economic, social and cultural **rights extraterritorially** in accordance with international law - **Difference with enforcement → difference between to what do I have the right and to what extent can I enforce this right** - **Not every HR can be directly enforced in front of a court or national judge BUT this does not mean that the State does not have certain obligations and that I do not have the right in the first place** - INTERNATIONAL CIVIL AND POLITICAL RIGHTS --- GENERAL ASPECTS ------------------------------------------------------------ - - **Were supposed to protect individuals from the state and abuse from state power** → freedom rights: state had to abstain from interfering - Not true that they *only* demand state abstention → **sometimes demand the state to act** (right to vote: state has to do a lot to organise the elections; right to freedom of expression includes the right to demonstrate: state needs to do a lot to facilitate it) - - **Most known one → ICCPR + protocols added afterwards** (instead of changing the OG treaty states adopt new protocols to add a new right or amend things in the treaty without changing its initial wording → makes it easier to keep the original treaty and add new elements afterwards BUT does mean that some of these protocols are not ratified by all states which ratified the original treaty) - - - - **Widely ratified** → more than 165 ratifications → not ratified by China though (signed but not ratified) - - Article 2(1) → States parties undertake to ensure the rights recognised in the covenant and this must be done without distinction of every kind → issue of **non-discrimination** cuts across the whole treaty (all rights must be implemented in a non-discriminatory way) - Article 2(2) → State has an active role in **implementing the treaty** → not just a matter of negative obligations ('respect') but also **positive** ('undertake') - Article 2(3) → if the state sees that the right has been violated → **must provide remedies** → important part of HR law: not just about protecting the original right but ensuring that if this right has been violated there is a remedy - - - - - HRC further defined what article 2 implies → subjects of the covenant are individuals - **Also a collective dimension** (freedom of assembly is an individual right but you do it as a group, a right which can be enjoyed only with other individuals, has a collective dimension) - - - What is decisive is whether a country or state **exercises effective control or power over a person or a territory** (can be outside its territory) - Entails an **obligation not to extradite, deport, expel or otherwise remove a person from their territory** if grounds to believe that there is a **real risk of irreparable harm** (article 6 and 7 ICCPR) = **non-refoulement** - - - 1. - - - - **Jurisdiction** → happened outside the territory and territorial waters of both states ⇒ had to find jurisdiction - **Connected it to law of the sea and clear responsible to assist people in danger** (applies to every state) - - Article 6 (right to life) --- GC 36 (§63) → addresses issue of jurisdiction → obligation to come to help of those who find themselves in distress at sea (effective control idea) → need to protect the lives of people in a situation of distress - Extra-territorial application → special relationship of dependency (interpretation of effective control in this case) → needed to make connection between the authorities and people on the ship → they were in the Maltese rescue and search region, but there was still this duty by Italy to at least respond and cooperate - Individuals on the vessel in distress were affected by Italy's decision in a negative way → duty to respond and duty to cooperate → under Italy's effective control → long stretch of power and effective control - For Malta HRC found it easier to establish because search and rescue zone → jurisdiction was clearly there - - HRC looked at the UN convention on law of the seas → duty to render assistance to those in distress at sea = applicable to every state - - ICCPR: right to life and duty to investigate every time a violation of the right to life happens 2. - - **Positive obligation → obligation to protect life** - **Negative obligation → obligation not to take life** - **Obligation to due diligence → prevent lives from being taken** - HRC mentioned that principle responsibility lies with Malta - See that due diligence is an obligation of conduct but not an obligation of result - - **Found a failure to promptly respond to the distress call** (did not do anything to prevent it from happening), call for the Maltese was not sufficient to meet due diligence responsibility → no prompt investigation - - Obliged to **implement the treaty at national level** → not only a contract between the states but must also be implemented for us, people, through a vertical relationship - **How that is done is not defined** → depends on the system, state can define itself how precisely it wants to implement (directly applicable, must be transposed...) - **What is prescribed is that those obligations start immediately** → as soon as you've ratified you have to ensure that all your national laws are in compliance with the treaty - - The ICCPR **does not have [direct] horizontal effect** → I cannot rely on a treaty against another individual if they violated my right because we are not parties to the treaty - If I start a case against an individual before a court and the *judge* says my right has not been violated → can sue the state at international level and invoke ICCPR (first additional protocol) because the judge is part of the state and has failed to adequately protect my right (= indirect horizontal effect) - BUT there is an **indirect horizontal effect** → obligation by the state not only to refrain itself from violations but also to protect us from violations by other private actors / individuals → indirect horizontal effect → between two private actors via the state - - **HRC =** treaty monitoring body **composed of independent experts** monitoring how states implement the treaty and comply with their obligations - - **State reporting procedure** → must regularly report on how it implements → HRC goes into discussion and adopts concluding observations - **Individual complaint procedure** → protocol 1 - Adopted by states → not legally binding - **Revolutionary** procedure → allowing **individuals to file complaints to the UN as to how the state has performed** - 1. **State must have ratified ICCPR** → otherwise no obligations under it so cannot be held against him 2. **State must separately accept the ICP** → state must recognise the competence of the treaty body - 3. **Individuals first need to exhaust local remedies** → obligation under the treaty → state provides for such remedies at the national level - **Exception: unless really those national remedies are inexistent or very ineffective** - **Caselaw** of these treaty bodies is very **important** → interpretation of HR is difficult (broadly formulated, vague) → **interpretation gives a sense of what the right entails** - Can **define the scope of HR** → to what extent does the activity I want protected fall under the protection of this right - Defines to **what extent the state has jurisdictio**n → is it responsible for what is happening - - Define in **which situation which right prevails** → usually a conflict of rights → different actors invoke different rights - - - **2 phases:** Committee looks at formal requirements → to what extent have the formalities been done (**admissibility**) → then looks at the content of the case (**merits**) - - **Formal requirements which need to be fulfilled** → found in API (article 2 - 5) 1. 2. 3. 4. 5. 6. 7. - - - Look at **derogation** → article 4(2) of the ICCPR states that a **state can derogate from certain rights under certain circumstances**: state of emergency → unable to fulfill its obligations → invoke derogability of certain obligations - - **Core rights** (not to be tortured, free from slavery, right to life) → **often *jus cogens*** norms BUT the two concepts should not be confused: - *Jus cogens* = peremptory norms → always to be respected + of a very high standard → nothing to do with a state of emergency or temporarity - Non-derogable norms are connected to the particular state of emergency - - - - **Decision and follow up** (**GC 33**) - **Decision** of the HR bodies (not only committee) is called a ***view*** → final (no appeal possible aka higher instance to go to) → committee not a court (members are not judges); **not binding** - Represent an **authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument** - Identifies that the **characteristics of the HR bodies and its procedures have judicial elements** - Committee **independently looks at the case BUT there are no hearings** → only written materials they look at - - - **HRC says you need to implement the ICCPR in good faith** → **views shed light on those meanings** - HRC asks the **state party to inform it within 3 months as to how it has given effect** → forces the state to come up with a remedy - **Failure by a State party to implement the Views of the Committee in a given case becomes a matter of public record** through the publication of the Committee's decisions, inter alia, in its annual reports to the General Assembly - **Special Rapporteur follows up with the state on how it has given effect to those views every 3 years** - - - **Inherent** → natural law → there from the beginning - Applies to **all** persons **without distinction or discrimination** of any kind and concerns the rights of individuals to be free from **acts or omissions** that are intended or may be expected to cause their **unnatural or premature** death and enjoy a **life with dignity** - - - - **Not an absolute right** → states have the possibility to take lives under certain circumstances → right to **not be *arbitrarily* deprived of life** - - - - **Sources** - - - **Same parties** - **Same application / situation** - **Existence of first decision on the merits** - **Did not look at the merits** - - - - - Legal status - - **Territorial scope: obligation** to respect and ensure the right to life operates **within a state\'s territory** but also extends to other locations **outside a state\'s territory but subject to its jurisdiction** (GC 36) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - For **states that still have it:** - - - - - - **Additional Protocol II**: on the abolition of the death penalty - **No reservations** → you accept this abolition full stop - - NON-DISCRIMINATION AND EQUALITY ------------------------------- - **Non-discrimination and equality**: concepts - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sources of the Right of equality and non-discrimination: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - **Scope** - - - - - - - - - - - - - - - - - Distinctions are always made → not discrimination if reasonable justified basis to make that distinction - - - - - - - - - - - - - - - - - - - - - - - - - - - - **Equality and universality are not necessary in conflict → nuances which allow to reconcile them** FREEDOM OF THOUGHT - EXPRESSION - ASSOCIATION - ASSEMBLY -------------------------------------------------------- - Freedoms of thought, expression, association, and assembly, often described as **fundamental freedoms**, are - **None is unconditional** → **can be limited** - - - - **Freedom of thought - conscience - religion** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - **Freedom of opinion and expression** - - - - - - - - - - - - - - - - - - - - - When necessary to **protect the rights or reputations of others** - Right to **privacy** → *Von Hannover v. Germany* - - - - - - - - "Offend shock, disturb the state or sections of the population" - - **Freedom of association** - - - - - - - - - - - **Freedom of assembly** - - - - - - - - - - - [Lecture 4]: Economic Social and Cultural Rights ============================================================ STATE OBLIGATIONS ----------------- - **IHRL = rights- based regime → not duty-based** - HR = grounds for duties - Different **approaches** to state obligations over time: - - - - ------------------------------------------------------------------------------------------------------------------------------------- ------------------------------------- State parties are **obliged** to **respect** and **ensure** to all individuals within their territory and jurisdiction these rights Require **immediate and unconditional respect** Require **progressive realisation** ------------------------------------------------------------------------------------------------------------------------------------- ------------------------------------- - **Different obligations:** - - - - - - - - - **Tripartite typology:** mostly for ESCR rights but now also applied for CPR - - - - - - - - - - - - - - **Balancing approach: focus on norms and exceptions** - - - - LIMITATIONS AND DEROGATIONS --------------------------- - What and how it is **permitted to limit the enjoyment of rights** - - - - - - - - - - - **Derogations** - - - - - - - - - Strictly required under the situation - **Emergency which threatens the life of the nation** - State of emergency must be proclaimed - - - - - - - - - - - - - - - - - CORE CONTENT / OBLIGATIONS -------------------------- - GC 3 ICESCR - - HISTORY AND NATURE OF ECONOMIC SOCIAL AND CULTURAL RIGHTS --------------------------------------------------------- - **Developed later than CPR → were supposed to be protection against state actions** - First development which led to their development: - - - - - **Increased cooperation between states in the field of health and education** - - - **End WWII → 4 freedom Speech** - - - - - **In the UDHR → all rights were put together political and economic and social** - ECONOMIC SOCIAL AND CULTURAL RIGHTS ----------------------------------- - **Nature**: cover **social and economic issues** - - - - - - - - - - - - - - - - - **State obligations under ICESCR** → article 2(1) - - - - - - - - - - - - - - - - - - - **Subjects**: - - - - - - - - - - - **Limitations**: - - - - - - - - - - - - **No Derogation clause** → not considered necessary because of progressive measures MONITORING ICESCR ----------------- - - - - - - - - - - - - - - - - - - - - - - - - - - RIGHT TO AN ADEQUATE STANDARD OF LIVING --------------------------------------- - Recognised first in article 25(1) of the UDHR - - - - - - - - - - - - - **Duties of the individual** - - - - **State obligations** - - - - - - - **Equality and non-discrimination → overarching principle** - - - **Normative content:** - - - Article 11 ICESCR - - - - - - - - - - - - - - - - - - - - - - - - RIGHT TO FOOD ------------- - **Fundamental right of everyone to be free from hunger → starting point is that nobody should be 'hungry'** = minimum level of food should be available and accessible to everyone - - - - - - - **Right to food** general comment 12 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RIGHT TO WATER -------------- - - Explicitly **recognised in** the **GC 15** in 2002 by the committee - - - - - - - **Includes freedoms → nagative obligations** - From arbitrary interference - **Entitlements → positive obligations** - - - - - - - - - - Article 14(2)(h) of CEDAW → **right to adequate living condition mentions water as "water supply"** - - - Article 11 → **progressive realisation → is progress always a good thing → should it always be *more*** - - → GC started a process of getting more acceptance → **2010 GA Resolution on the human right to water and sanitation** → recognises the right to water - - - - RIGHT TO DEVELOPMENT -------------------- - - → **Now recognise a moral and legal obligation to have some sort of development** - **UN Declaration on the Right to Development (1986) → soft law document BUT adopted by states (legal instrument)** - - - - - - - **UN system → set up committees, commissions, groups of experts** - - - - - - - - - - - - SDGS: ----- - **A political process and not about recognising HR** - **Advantages** - - - - - **SDGs have the right to food → SDG 2 'zero hunger'** - - Targets looks at what falls under the right to adequate food - - [Lecture]: regional human rights systems ==================================================== - Just as important + increasing interactions - **Sometimes development takes more place at the regional level because more coherent** (background - history - culture) → more agreement - What if there's a different interpretation regional v international → who prevails EUROPEAN SYSTEM OF HUMAN RIGHTS ------------------------------- - **Sources** - - - - - - - - - - area of **freedom and justice** - Article 6 TEU → **HR policy** - - EU has own **charter** of fundamental rights → binding legal document - **Legally binding** → most important HR document in EU - - - - - Article 37 → environmental protection → not a right but a principle - → **Because the charter was developed later** - - Applies to the **institutions and bodies of the charter** → should respect and promote these rights in implementing laws and policies - - - - Same criteria as other HR treaties: **Provided by law, necessary, proportionate, legitimate aim** - - - - - - - - - - - - - - - - - - - - - - - - - **Work load: enormous** → thousands of cases per year and enormous backlog - - - - - - - **Through all of its cases → has given an important interpretation to the rights in the convention** - **Include new issues** under the convention which was adopted in the 50s - - - - - - Difference in connotation → **separate charter and separate supervising commission** → European Committee of Social Rights - Other treaties on torture, minorities, violence against women were adopted → must be ratified separately INTER-AMERICAN SYSTEM OF HUMAN RIGHTS ------------------------------------- - Takes place in the **organisation of American states (OAS)** - **Sources**: - **OAS Charter** (1948) → **established organisation but no list of HR** → just that they needed to respect HR - **Protocol of Buenos Aires** (1967) → **established list of HR** and the **working of the American commission of HR** - - - - - **Difference in perception → first CPR and then ESCR (20 years later)** - - - - → **Only continent with a declaration and convention → interpreted that they *complement* each other** → can take both into account when looking at HR system - **Institutions**: - **Inter-American Commission HR → established by OAS Charter and reaffirmed by the Convention** - - - - - - **Advisory jurisdiction → same as African Court** - - **Contentious jurisdiction → in the individual complaint procedure** - → Still has a commission and a court → complicates system - - - - For **individuals and groups** → as victims or without the victims consent / then knowing that → because one of the major HR issues on the continent was disappearances → if victim was no longer present → harder to do - **State parties** can also file complaints between each other hear - - **All provisions of HR Convention, several provisions of San Salvador Protocol, Disappearances Convention, Convention on Violence against Women** - - - - - - - **Final decision → recommendation** (because not a court) → not the force of law - BUT within 3 months after the finishing of the procedure → **commission can decide to submit the case to the Court** - - - **Inte-American Commission** after having finished its review and not satisfied by how the state implements the outcome - - - - - - - - - - - Follow up → **no follow up** → led to quite a number of cases having not been complied with by states AFRICAN SYSTEM OF HR -------------------- - **African Union → binds all the states on the continent** - **Sources:** - - **Not a list of HR → HR promotion and protection is one of the *objectives* of the African union** - **African Charter on Human and Peoples' Rights** (1981) - → Most important HR document in Africa - - - - **Contains all categories of rights** - - **Individual and collective rights** → specific feature of the African continent - - Article 23: All peoples shall have the right to national and international peace and security - Rights and duties → **duties for *individuals* → individuals don't just have rights** - Article 27: Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community. - - - - → Proof of the speciality of the particular issues in that continent reflected in the continent (corruption) - **Monitoring bodies** - - - - - **Allowed to do on-site visits** → see how certain things are done in the countries - - Led to the **acceptance of individuals or groups (NGOs) submitting complaints** - - - - - - **Advisory opinion** → can ask for a clarification on rights in the charter - - - - **Follow up → committee of ministers** INTERACTIONS HR SYSTEMS ----------------------- - **Positive aspect interaction regional and global level** - - - - **Issues related to enforced disappearances** (particular for Latin American countries) - Women's rights - Corruption → major problem in Africa → treaties at the UN level then - - - - - **African court refers extensively to the committee on IESCR** - **ECtHR refers to the women's rights treaty** - → Take notes from it and draw inspiration from it - - - Need to realise to what extent is the *regional* norm applicable at the international one - **Problem**: - - - **For the people working on it → cannot keep up with everything going on in different courts →** why academic work is important to get a sense of what is going on - - - HRC and ECtHR going in 2 directions on the same topic and same country - - - **Blocked developments and new interpretations because don't open yourself to other visions** - Main **similarities and differences** between the international and regional systems - - - - - - - - - - - - - - - - - - What are the **main differences between the various regional systems** - - - - - - - - - - - - - - - - - Collectivity → just as important as you as an individual - - - - - - - FORUM SHOPPING -------------- - **First → need to ensure which options are open in the first place in terms of treaty bodies** (has your country ratified the APs?) - **States don't like the idea of forum shopping** → in the treaties they identified which ways to go - - - OP ICCPR art 5 → **won't examine a case if being examined by another international body *right now*** - Why it might **not be helpful if after having lost in a regional court to go to international level → because international is not binding** (legally speaking does not change much) - - FREEDOM OF RELIGION --- ARTICLE 18 ICCPR ---------------------------------------- 1. - - - - 2. - - - - - - - +-----------------------+-----------------------+-----------------------+ | **Scope** | Religious clothing is | Religious clothing is | | | part of manifestation | part of manifestation | | | of religion | of religion | +-----------------------+-----------------------+-----------------------+ | **Limitations** | Prescribed by law | Prescribed by law | +-----------------------+-----------------------+-----------------------+ | **Legitimate aim** | Protection of | **No legitimate | | | **public order and | aim:** | | | living together** | | | | (new concept) (part | **No protection of | | | of the rights of | public order** → why | | | others) | is that a problem | | | | with public order? | | | | **Right of living | | | | together → does not | | | | exist** --- does not | | | | recognise it as a | | | | legitimate aim | +-----------------------+-----------------------+-----------------------+ | | **Public order is a | **Not necessary | | | legitimate aim BUT we | because the State | | | don't see the | failed to show that | | | prohibition** of face | the measure was | | | coverage as | proportionate or | | | **necessary** for | least restrictive** | | | public order | | +-----------------------+-----------------------+-----------------------+ | | | Anyway there is no | | | | legitimate aim | +-----------------------+-----------------------+-----------------------+ | **Verdict** | **Non-violation** → | **Violation** of the | | | gave the state this | HR | | | wide margin of | | | | appreciation | | +-----------------------+-----------------------+-----------------------+ - - - - - - - - [Lecture 6:] Collective Human Rights ================================================ - Emerged after the idea that the **original outlook of HR was too *western*** and did not do justice for other systems where people considered themselves to be not only individuals but a member of a group (seen as just as important and individuality) - **Biggest challenges**: how do we **define** that **group** + what happens when the collective rights clash with the individual ones - 1. 2. 3. ORIGIN ------ - - - - - - - - Rationale for group rights: **often not individuals who are discriminated against but a *group*** → discriminated against because the individual belongs to that group - **Acknowledgment that peoples - minorities and indigenous people have human rights and that their rights should be protected in international law has taken a long time** → important human rights that affect the whole of the international community - DIFFERENT FORMS OF COLLECTIVE RIGHTS ------------------------------------ - - - - - - - - - - **Individual rights with a collective dimension → rights drafted as purely individual rights but who have a clear collective dimension which you enjoy collectively** - - - - - - - - - - - - RIGHTS OF PEOPLE WITH THE RIGHT TO SELF DETERMINATION ----------------------------------------------------- - - - - - - - - - - - - Said that all complaints under article 1 ICCPR are inapplicable because individual complaint procedure is about individual rights → this is collective right so is exempted from the whole procedure - - - - - Special Rapporteurs have come up with interesting definitions of people → possible to come up with a definition (not a legal issue) → **if you define something it becomes a political issue as well** - - - **PB: many of the struggles of minorities is that States say they are not 'a people'** - - - - - - - - - 1. **Establishment of a sovereign and independent State → ex-colonies, Bangladesh from Pakistan** 2. 3. - - - - - - - - - - - - - - Already have internal self-determination → don't consider this enough → want to step out of Spain and create their own state (external self-determination) - - - - - ICJ has found that **right to self-determination is one of the essential principles of contemporary international law** → has ***erga omnes* character** → not only an obligation on colonial powers and in the colonial context = **right for *all people*** (article 1 ICCPR) - - - **Case** --- *advisory opinion on the situation in Kosovo*, ICJ, 2010 → clearly saw the struggle - - **Did not answer whether there is a right to external self-determination, independence, cessation in this situation, only made a general claim that they recognised it for under colonial domination but not for other situations** - Recognised a wide variety of views between states on self-determination - - - - - - - - - Limited to the extent that it enables all human rights to be exercised as fully as possible in the circumstances - - - - - - - PB: retrospective principle investing as international boundaries administrative limits intended originally to promote the colonial control - - - - - RIGHTS OF MINORITIES -------------------- - **No reference to minorities or indigenous people in the UNDHR** → much more **emphasis on formal equality**: idea that there were no specific groups needing special rights and special guarantees ⇒ focus was on level of equality not making distinctions - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RIGHTS OF INDIGENOUS PEOPLES ---------------------------- - - - - - - - - - - - - - - Talks about **tribal and indigenous *populations*** → wanted to **avoid the link with self-determination** (idea that these peoples are independent peoples) - Covered **issues such as traditionally occupied lands, social, economic, cultural development, recruitment and conditions of employment, social security and health** - - - - - **Limit: under article 1(3) and definition of peoples → term does not mean anything and is not connected to what that term means in international law (said that self-determination is not the responsibility of ILO, other international organisations)** - - - Included right to identity, territory, autonomy, participation in the political and social national life, physical welfare, cultural integrity - **Limit: only 24 ratifications** (Latin American States - EU States (no France) → very little states with indigenous peoples - - - - - - - - - - **Rights of indigenous people** - - - - - - - **Exercise of the rights of indigenous people** - - **Includes right of consultation** → essential for protecting indigenous people (general international law obligation) = free, prior, informed consent (FPIC) - **Free**: no coercion, intimidation or manipulation - **Prior**: consent is sought sufficiently in advance of any authorisation or commencement of development projects - **Informed**: all relevant information is provided in a culturally appropriate manner, language, form - **Consent**: should be clear from all the relevant indigenous peoples affected - - Cases at the international level: - Right to life cannot be properly understood if it is interpreted in a restrictive manner, and that the protection of that right requires States parties to adopt positive measures to protect the right to life (GC 36) - Right to life also includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death - Both it and regional human rights tribunals have established that environmental degradation can compromise effective enjoyment of the right to life, and that severe environmental degradation can adversely affect an individual's well- being and lead to a violation of the right to life - → BUT information provided by the State party indicates that it is taking adaptive measures to reduce existing vulnerabilities and build resilience to climate change-related harms in the Islands (still 10-15 years to prevent this so we're not there yet → no imminent threat to life and cannot show a clear causal link between non-action and violation right to life because not dying yet) - Authors depend on fish, other marine resources, land crops, and trees for their subsistence and livelihoods, and depend on the health of their surrounding ecosystems for their own wellbeing → components of the traditional indigenous way of life of the authors = protected by article 17 - - State party has not explained the delay in seawall construction with respect to the islands where the authors live + not provided alternative explanations concerning the reduction of marine resources used for food, and the loss of crops and fruit trees on the land on which the authors live and grow crops, elements that constitute components of the authors' private life, family and home - **State party failed to implement adequate adaptation measures to protect the authors' home, private life and family** - - Right which is conferred on individuals belonging to minority indigenous groups and is distinct from, and additional to, other rights which all persons are entitled to enjoy under the Covenant - **Enjoyment of culture may relate to a way of life which is closely associated with territory** and the use of its resources, including such traditional activities as fishing or hunting → protection of this right is directed towards ensuring the survival and development of the cultural identity - Inalienable right of indigenous peoples to enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity - - - Rights of indigenous people → not just about protecting their culture but **right to life** and being able to live on their territory → idea that they cannot live on *someone else's land* → strong link with land - Highlighted the dramatic consequences of climate change on the respect of traditions and traditional ways of life of indigenous people - - Recognised collective dimension → recognised that states had failed to adopt **adaptation measures to protect their collective ability** - Recognised the **need to protect future** generations' enjoyment of rights → question if this is what the treaty requires - In the case of indigenous peoples, the enjoyment of culture may relate to a way of life which is closely associated with their traditional lands, territories and resources, and that the protection of this right "is directed towards ensuring the survival and continued development of the cultural identity" → culture related to their lands should be regarded with respect and protected - Committee on the Elimination of Racial Discrimination has stated, citing regional jurisprudence, that "the close ties of indigenous peoples to the land must be recognized and understood as the - Ownership of and control over ancestral territories are essential to indigenous peoples' survival as peoples, with the preservation of their distinct culture - → **Vital importance that measures that compromise indigenous peoples culturally significant territories are taken after a process of effective participation and with the free, prior and informed consent of the community concerned** - State party does not contest the authors' self-identification as indigenous peoples + does not contest that they maintain cultural interests in their territory - - - - - - - - - - - - - - - - - - Interpreted in light of UNDRIP → to show that this treaty is not independent but must be intercepted *in light of subsequent practice* (Vienna Convention) - - - Nicaragua did not provide compensation for the indigenous community + they incurred significant expenses and encountered difficulties in pursuing their rights (was presented in a language other than their own + travel) - Commission concluded that Nicaragua had violated the American Convention on Human Rights - - Government was recommended to delineate the borders of land held by indigenous populations, to register these lands, and to provide compensation to the Awas Tingni tribe for their lost resources - - Indigenous people are specifically mentioned under this article because of their past history of discriminatory treatment, and the need to prevent such discriminatory treatment in the future - Discrimination: lack of effective state guarantees for the traditional forms of use and possession of lands and resources belonging to indigenous groups by failing to demarcate the lands belonging to them - Obligation of the State is to guarantee the rights contained in the American Convention in a non-discriminatory manner, particularly with regard to property rights in land and natural resources - Obligates Member States to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms - Commission declaration declared that special protection is required so that indigenous peoples can exercise their rights fully and equitably in comparison to the rest of the population - This article, examined in light of the fundamental principle of non-discrimination established in the Convention, necessarily includes protection for those forms of property that are based on the patterns of land possession typical to indigenous communities - Awas Tingni community has property rights to lands and natural resources based on a pattern of use and ancestral, traditional occupation, thus entitling them to the protections of Article 21 of the Convention as well as other applicable provisions of international law - Such forms of property are recognized explicitly and unconditionally by the Political Constitution of Nicaragua - - There were extreme delays both in the Supreme Court's rendering a decision and in the government's following through with the Court's instruction. Nicaragua was so slow in providing justice to the Awas Tingni that the government took over a year to stay the deforestation - For indigenous groups traditional land possession is an aspect of the enjoyment of its culture protected by Article 27 of the ICCPR - - UN committee calls upon the States Parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories, and resources and where they have been deprived of their lands or used without their free and informed consent, to take steps to return those lands and territories - - - - - - - - - - - - - - - - First indigenous rights case before the Court → recognised the existence of indigenous groups in Africa (conteste because distinction between minorities, indigenous peoples and "peoples" is still not clear cut) - - - Recognised the right to food as derived from the right to natural resources → usually seen as part of the right to life (chose this approach because causality between the eviction of a group and a violation of their right to life can be difficult to establish) - 1. 2. 3. 4.