Human Rights: A Conceptual Approach PDF

Lesson 1 - Conceptual approach 1. The notion of Human Rights. What are Human Rights? Human Rights (short version) → Rights inherent to all humans by virtue of being human. - Theoretically, Human rights are universal entitlements based on being human. HOWEVER, this is a simple con...

Lesson 1 - Conceptual approach 1. The notion of Human Rights. What are Human Rights? Human Rights (short version) → Rights inherent to all humans by virtue of being human. - Theoretically, Human rights are universal entitlements based on being human. HOWEVER, this is a simple concept. There is neither a single nor a consolidated de nition of HR due to contradictions, con icts and incompatibilities that hinder their universal application. Article 1 of UDHR could be used as an approximation ⇒ “All human beings are born free and equal in dignity and rights”. Yet this begs a great variety of questions: - Human beings → Human rights are tied to human nature, but what de nes "human"? - While the scienti c de nition (Homo sapiens) exists, history shows contradictions (e.g., exclusion, discrimination). - Are born → Suggests rights begin at birth. - This raises debates around pre-birth stages (e.g., abortion) and whether rights apply to the unborn. - Free and equal → it seems obvious, but certainly is not. - Often assumed but contradicted by realities like slavery, servitude, and systemic discrimination, which persist globally - There is a trend not to consider humans equal regarding genocides and episodes of domination, discrimination… - Dignity → Dignity distinguishes humans from other species despite genetic similarities with animals like chimps and bonobos (98.6% similarity). Dignity stems from moral considerations, not biology. - Rights → Rights are objects of legal protection granted to "legal persons." De ning when someone becomes a "legal person" is fraught with complexity (e.g., birth, cognition, or societal recognition). - The legal notion which in our legal systems acknowledges to be a right bearer is the notion of a legal person. - When do you consider someone a person? It is very complicated to establish a threshold. Characteristics of Human Rights 1. Inalienability Human rights are intrinsic to individuals and cannot be removed, even with consent. Challenges to inalienability → However, there are some cases in which they are given away, even if it should not be possible: Privacy → Digital terms and conditions (e.g., cookies) erode the right to privacy. Surrogate motherhood → Raises ethical questions about alienating certain rights. 1 2. Universality Human rights apply equally to all, regardless of location or status. Challenges ○ Territoriality → universality challenges states sovereignty, that it is based on the idea of locus. In legal systems, the territory (locus) where the individual is, has several implications. According to most domestic systems, state sovereignty means that they have jurisdiction and power within their territory (thus states have territorial jurisdiction). Sovereignty means that no one is above you in terms of power, which lies in the Latin maxima “parem in parem non habet potestas” (an equal has no power over an equal). In this way, human rights laws, proclaiming they have universal status, are challenging the idea of state sovereignty (imposing limits to it). ○ Cultural relativism: While rights are universal in theory, implementation varies by cultural and regional nuances. Human rights are being developed, enforced, and created by western states and in some way they re ect the perspective of a part of the world. This tension is a problem. Many regions claim that gender rights as created by the UN and western countries do not apply to their regions. Muslim countries; Afghanistan or Saudi Arabia; Gender apartheid Women are left aside, treated di erently and not able to enjoy rights. The use of burka in European schools has been a matter of analysis. 3. Indivisibility Rights are interdependent, holistic, and interconnected; none is inherently more signi cant than another. Reality → however practice shows that this is not much so. Civil rights (individual-focused) are often prioritized over social or economic rights (collective-focused) due to practical and political constraints.. 2. Human rights in legal instruments. Human rights vs. fundamental rights. Key distinction: Human Rights → Inherent and universal → do not depend on state recognition. ○ They do not require formal acknowledgment by a state or legal system to exist. ○ Transcend geographical and jurisdictional boundaries, applying to all humans irrespective of their location (e.g., on high seas, in outer space, or in non-state territories). 2  ○ Serve as moral and international legal benchmarks for state legitimacy and global governance. Fundamental Rights → Embedded in a nation’s constitution or legal framework → vary by jurisdiction. Place (locus): States have jurisdiction over land, air, and maritime spaces. Issues arise regarding spaces beyond national control (e.g., high seas, outer space). Human rights transcend these boundaries, unlike fundamental rights. Their main distinctions are: - Universality → Human rights apply universally, while fundamental rights are speci c to a state and its citizens. - Legal Recognition → Fundamental rights require formal recognition by a state; human rights do not. - Application → Fundamental rights are tied to constitutional law, whereas human rights act as higher norms that challenge and shape legal systems globally. - Jurisdiction → Fundamental rights are bound by national territories, while human rights transcend borders. 3. Human rights in legal philosophy. Human Rights have no strong foundation → Philosophical debates persist about the foundation of Human Rights. Philosophical foundations of human rights attempt to provide a universal basis for their legitimacy, often appealing to concepts like: - Divine authority: Rights granted by God. - Natural law: Rights derived from human nature or reason. - Inherent dignity: Emphasized in documents like the Universal Declaration of Human Rights (UDHR). Challenges: Internal (epistemological): Foundational arguments often lack de nitive evidence or consistency even within their frameworks. External (ontological): Critics question the assumptions behind foundational claims (e.g., the existence of God or universal "human dignity"). ○ Foundations like natural law or inherent dignity resonate with speci c traditions but fail to compel universal agreement, particularly among skeptics or those outside these traditions. 3 Human Rights as Social Constructs While the foundations of human rights are contentious, this does not undermine their necessity or validity. Human rights rest on a collective decision to act as if they exist and then enforce them through social practices, making them real in the process. This does not make them arbitrary; like all social practices, human rights require justi cations, even if those justi cations rely on agreements rather than proof. - Foundations for human rights are not absolute but can still provide compelling moral and political reasons for their acceptance. ○ Justi cations may include: Desirable consequences. Coherence with other moral or political ideas. Cultural or religious traditions. ○ Competing practices or principles may also have valid foundations. - Moral progress can be achieved by critically examining foundational principles and practices. ○ By working "up" from premises to conclusions and "down" from practices to assumptions, human rights can evolve to re ect better moral and political frameworks. A substantive theory of human rights, such as the framework provided by the UDHR, remains morally and politically justi able even without unassailable foundational proof. Lesson 2 - The historical origins of human rights. Although HR were formally settled with the UDHR in 1948, we might go back to Ancient thought to talk about their origins. 1. Pre Modern Era. Classical Greece and Rome Most scholars settle the rst roots to HR in Roman Law, which introduced the concepts of ius gentium and ius civile: - Ius civile → the Law of the Roman citizens. - The ius civile was exclusionary, re ecting the hierarchical nature of Roman society. It did not extend to non-citizens, slaves, or women, who were often excluded from legal protections and full participation in public life. - Ius gentium → govern the interaction between romans and non-citizens (peregrini). - The ius gentium was more pragmatic and universal compared to the ius civile. It drew from common principles observed among di erent peoples (e.g., fairness, contract enforcement). It was a minimum legal status provided to everyone, regardless of their origin (people who didn’t enjoy the status of ius civile). - While the ius gentium still re ected Roman supremacy, it represented an early attempt at codifying universal principles that transcended local customs, laying groundwork for later notions of international law. 4 Rights were linked to citizenship with sharp distinctions between citizens and non-citizens, including slaves and women, who had little or no rights. Political participation was limited to elites. Christianity Medieval Christendom contributed to the formation of the idea of HR with Natural Law (laws emerge from natural order). Natural law refers to the rational order established by God, that is, an amount of moral principles that stem from the natural order and are accessible to human reason, in a way that they serve as the foundation for moral and legal systems. While natural law suggested a universal moral order applicable to all humans by virtue of their rational nature, its practical application in medieval society was constrained by hierarchical divisions based on status, religion, and class. Rights were seen through the lens of obligations and privileges rather than universal human dignity. Thomas Aquinas was a central gure in formalizing natural law within Christian thought: - He argued that natural law derives from eternal law (God’s divine plan) and is accessible through human reason. - He distinguished natural law from human law (positive laws made by society) and divine law (revelation through scripture). - Natural law was seen as universal and immutable, re ecting God’s will and guiding principles of justice, but its application was interpreted in ways that supported existing social hierarchies. English Carta Magna - 1215 The Magna Carta, had profound implications for the evolution of the idea of human rights, despite its original purpose being limited and speci c to the feudal context. Over time, it became a symbol of the principle that all individuals, including rulers, are subject to the law. Here's a detailed look at its signi cance: First real milestone in the evolution of the idea of human rights, despite its original purpose being speci c to the feudal context (to limit the absolute power of the King) → The Magna Carta was a response to King John’s arbitrary rule and heavy taxation, demanded by his barons to protect their feudal privileges and properties. Its original focus was not on universal human rights but on limiting royal authority and safeguarding the rights of a small elite. The Carta Magna was the 1º written procedure that establishes a legal order to limit king’s power throughout a series of basic principles: - The rule of law → limitation of royal power → No one (including the emperor's/king/governor) is above the legal frame. 5  - Due process → right to fair trial → guarantees that nobody can be deprived from their rights without a fair legal procedure. - Property rights → property cannot be arbitrarily con scated by the king. - Habea corpus → no arbitrary detention → individuals could not be detained without legal justi cation. - Ius puniendi → principle of legality → There is no crime without a law that establishes that as a crime. 2. Modern Era. Key Question → What in “modernity” led to the development of human rights? → Modernity brought about systemic transformations that reshaped hierarchical societies into more egalitarian political systems, transitioning from rulers and subjects to o ceholders and citizens. Transformations: - Bureaucracy and markets → The rise of sovereign bureaucratic states (what lead to the creation of Modern States) and capitalist markets disrupted traditional communities and systems of support. These disruptions left individuals and families vulnerable to economic and political threats, necessitating the creation of mechanisms to protect dignity and rights. - Bourgeoisie → the newly emergent bourgeoisie envisioned a society in which the claims of property balanced those of birth. Key historical processes: Slavery and colonization Slavery and colonization had profound implications for the evolution of human rights, both as practices that grossly violated human dignity and as catalysts for the development of rights-based discourses aimed at challenging such injustices (Abolition of the Slave Trade Act (1807) in Britain and the Thirteenth Amendment (1865)). Enlightenment → shift from natural law to natural rights. This episode of hº was elementary for the evolution of HR because many of the principles that were proposed are still valid today. Transformation of medieval natural law to the rationalist natural individual rights. - Secularization - Schism between Power and Religion: Enlightenment thinkers rejected the dominance of religion in governance and legal systems. Politics and law were rede ned to operate independently of divine authority, emphasizing human reasoning. - Scientific Revolution’s Influence: Rationality and empirical methods replaced theological explanations. This approach underpinned the transformation of medieval natural law into rationalist natural rights, emphasizing reason over divine will. 6  - Anthropocentrism → The individual became central to ethical, political, and social thought (rejection of previous religious order). - The idea of inherent dignity and autonomy for every person emerged, aligning with the modern concept of universal human rights. Key thinkers: Immanuel Kant → best representation of the idea of natural rights. Humans should not be treated as means to an end, but as an end itself (ontological philosophy was an important precedent to HR). Social Contract Theorists → the justi cation of the State formation is not God but a social contract, a collective agreement of individuals that decided to live in community, stepping down their individual liberty. In this way, the recognition and e ective protection of natural rights is a necessary and substantial part of the social contract. ○ Hobbes - Leviatán - Highlighted the need for order, seeing unregulated humans as threats ("man is the wolf of man"). ○ Locke: Focused on property, life, and liberty as fundamental rights. This was a rst attempt to create human rights, but they certainly weren’t universal: Locke clearly envisioned them to be held only by propertied white Christian men. Women, “savages,” servants, and wage laborers were never imagined to be holders of natural rights at the end of the seventeenth century. ○ Rousseau: Advocated for general will and collective sovereignty to ensure rights. Revolutions English Revolution (1688) → Limited monarchical power, strengthening parliamentary authority, laying groundwork for rights through governance constraints. American Revolution (1776) → Rooted in Enlightenment principles, declared inalienable rights (life, liberty, pursuit of happiness), and justi ed governance through consent of the governed. French Revolution (1789) → Directly linked to Enlightenment ideals, asserted equality and freedom, abolishing monarchy in favor of a rights-based republic. 3. Twentieth century and Universalization. Constitutionalism and Positivism Liberal Constitutionalism: - First time countries start to formally recognise some basic rights in written constitutions → e.g., life, property, freedom of thought and religion - Di erentiated between Europe (incremental development) and America (parallel to independence processes). - However, these were not yet universal human rights, often limited to certain groups (e.g., property owners or citizens, women still to be excluded). United Nations (UN). 7 The historical development of human rights has involved the constant expansions of both the list of human rights and the groups of Homo sapiens considered to hold them. It wasn’t until after World War II did the Western world really come to accept the notion of equal political rights for all, not being legitimately denied on the basis of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, [or] birth”. In fact, Human rights were not a priority in the foundation of the United Nations (1945); focus was on state security and peace. The San Francisco Peace Treaty and the UN Charter, both entering into force in 1945, supposed a transformation of the International Law with the creation of the United Nation, as an international organ aiming the maintenance of peace and security. Rights gained prominence over time, with the UN committing to preserving and promoting human rights universally, formally demonstrated with the creation of the UDHR in 1948. Challenges to Universality Cultural and Developmental Di erences: ○ Tensions arose in applying a universal human rights framework due to diverse cultural and socioeconomic contexts. Progress Toward Universality: ○ E orts continue to bridge gaps in rights recognition and implementation across varying global systems. Lesson 3 - Human dignity 1. Historical notions. Dignity in Ancient thought. The English word of dignity comes from the Latin word dignitas. In the Ancient thought, conceptions of dignity were particularistic, associating dignity with hierarchy, virtue, and public recognition rather than equality. 1. Ancient Rome - The Ciceronian vision. Dignitas signi ed worth (valor) Associated with hierarchical distinction, worthiness, and honor, predominantly tied to the elites. It involved public recognition of achievements. Three interrelated features of the Roman conception of dignity are especially relevant to us here. Dignity was… Hierarchical distinction → an attribute of a distinguished few that marked them o from vulgar masses. 8  ○ Dignity was understood as an attribute of a “worthy”, that is, a distinguished or eminent person. Virtue → it was coined by stoicism theories. Dignitas was the reward of virtue. ○ Virtue is de ned as the excellence that makes one worthy of honour. ○ What gives one worth and demands respect, however, is the (di erential) realization of that potential. ○ And di erential virtue provides the ethical basis for social distinction. Public appearance → dignitas was tied to an individual’s public and social role. ○ It referred to achievements and moral qualities that earned respect and admiration from others, particularly in the political and social spheres. ○ While it had an inner basis—rooted in integrity and virtue—it was mainly about external recognition, charisma, and the esteem associated with one’s rank or o ce. Dignitas, in sum, was a virtue of great people. It was also tied to other ideas: - Wisdom: Rational understanding and prudent decision-making. - Courage: Bravery in facing challenges. - Justice: Fairness and moral rightness. - Temperance: Self-control and moderation. Reason → Elevated humanity above animals, emphasizing rationality and self-discipline as essential to achieving dignity. 2. Religious dignity. Biblical and early Christian views associated dignity with divine favor or spiritual potential, often emphasizing hierarchy and the fallibility of human nature. Narrow conception → dignity was restricted to upper class and high-status groups. The Kantian approach. Immanuel Kant rede ned dignity as an inherent, universal value intrinsic to all humans, independent of social or hierarchical status. He was a precursor of contemporary notions of human dignity. - Antropocentrism: Focused on human rationality, separating dignity from theological foundations. - Rational thinking: Human dignity was not anymore linked to theological aspects but to rational, moral, decision thinking. He proposed the moral imperative, which is considered a fundamental principle of morality → Act in such a way that you treat humanity (whether in your own person or in the person of another) never as a means to an end but as an end itself. This notion implies equal dignity and rights for all. 9 He distinguished 2 sides of human nature: Dignity → absolute inner worth. ○ Each individual, as a possessor of dignity, deserves respect from all the other rational beings. Price → standard of value of the material world and man’s nature. ○ Man regarded as a person is exalted above any price. A human being is a creature with a worth, a dignity, that is literally priceless, outside of the domain of instrumen- tal value. He tied dignity to moral autonomy, respect, and universal rights, laying groundwork for modern egalitarian conceptions of human dignity and its connection to human rights. 2. Dignity and human rights. Michael Meyer summarizes all previous notions of human dignity, identifying 3 senses of dignity: - Social dignity → associated with a position of high rank. - The virtue of dignity → a more or less settled disposition, and attendant attitudes, that over time contributes to the constitution of a good moral or ethical temperament. - Human dignity → the special moral worth and status had by a human being. The modern notion of dignity drops the hierarchical elements implicit in the meaning of dignitas, and uses the term so that all human beings must have equal dignity, regardless of their virtues, merits, actual social and political status. Nevertheless, we must not lose sight of the fact that “the concept of human dignity evolved historically out of the idea of social honor” (Margalit 1996: 43). This involved both incremental extensions of the category of honorable to more and more groups of people and a reorientation of the locus of honor and dignity from ascribed or earned characteristics to an inherent, universal humanity. Associated with these changing conceptions of dignity, Western politics went through a gradual process of largely incremental liberalization that eventually led to full democratization and the granting of the full range of equal rights to all citizens. How does human dignity ground human rights? Human dignity is the foundation of human rights because it emphasizes the intrinsic worth of every individual; Human rights re ect a particular speci cation of certain minimum preconditions for a life of dignity. This idea can be understood in three ways: 1. Vagueness → Some criticize dignity as being too unclear or subjective to serve as a foundation. They see it as a "fuzzy" concept used when other arguments are insu cient. 2. Speci c Characteristics → Others connect dignity to speci c traits, like autonomy, rationality (Kant), or divine creation, “being created in God’s image” (Christian thought). 10  These characteristics explain why humans deserve respect and rights. 3. Shared Morality → Many believe dignity is an unde ned, foundational concept—a shared moral value that transcends speci c attributes or traditions, forming a universal basis for rights. Both notions are interconnected: Human rights operationalize the concept of dignity by outlining practical guarantees—like equality, freedom, and non-discrimination—that allow individuals to live with dignity. Human dignity also shapes our understanding of rights, creating a feedback loop: rights ensure dignity, while dignity inspires and justi es rights. Critical issues of Human Dignity. There are 4 main issues regarding human dignity: 1. Dignity and Human Agency → Connection between human dignity, agency, and capacity has spurred criticism. Human Agency → A moral term translating into legal capacity; it determines the ability to exercise rights. However, this framing narrows dignity to functionality rather than inherent worth. 2. Dignity and Personhood → Legal systems link personhood to dignity but face challenges → when does personhood begin and end? ○ Before Birth → Debates around genetic selection, abortion, and the dignity of embryos. ○ After Death → Issues like “deadbots,” AI systems replicating deceased individuals’ personalities, challenge traditional ideas of dignity. Deadbots → IAs with someone’s identity (death people). A bot is copying my individuality (morality, personality…). Current frameworks center dignity from birth to death, neglecting periods outside this scope. 3. Dignity and Vulnerable Groups → The relationship between dignity and groups in vulnerable situations (e.g., disabled, marginalized communities) highlights the need for inclusive frameworks. 4. Dignity and Transhumanism → Technological advancements, such as cyborg technology and genetic editing, are reshaping humanity: ○ Technological developments (the use of tools) is pretty much a human feature (animals don’t use tools, they use their own means to achieve things). Electronics and social media is restructuring and reshaping human capacity for attention, reaction. ○ Human enhancement: Bioethical debates about improving human abilities and traits through technology (cyborgs). ○ Gene Editing: Altering embryonic genetics raises questions about the essence of humanity and the potential erosion of dignity. As technology advances, human dignity must be rethought to address evolving scienti c realities. 11  Lesson 4 - International Protection of Human Rights Introduction. Protection of individuals before and after the UN Charter This system of protection of individuals is based on the UN system. As many international organisations as there may be, the UN sets the basis for international relations. As we have already seen, the UN Charter makes few references to human rights, as the main priority was peace and security. - The UN “failed” to address human rights broadly because at the time it was created our international order only considered the State as a subject of international relations. The individual was not entitled to rights and obligations under international rules. - The only way through which states would protect the individual was diplomatic relations. When a State protects individuals through consular and diplomatic law, they do it relying on the State’s willingness to embrace such action. Individuals did not have subjectivity until the UN was created. The key event that de ned the start of subjectivity and the recognition of human rights was the Nuremberg trials. This UN system developed gradually and little by little recognised individual rights at an international level. Everytime we deal with a system, it is necessary to consider the following elements: Legal Source → WHAT? → A legal source is always needed. The two more important sources are treaties (conventions/conventional law) and costume (customary law). The legal source establishes the legal obligation to respect human rights. Organ → WHO?→ We need a system to control the ful lment of rules, a system that revises the compliance of obligations. The organ will be in charge of controlling the mechanism. Procedure → HOW? → A procedure will be needed to organise and order the system. It is a formal design of how the system will work. Of course, these three steps are followed by Human Rights laws. There are two systems Charter based system → founded on the UN Charter, so binding to all. Conventional based system → based on treaties, so binding to the subjects that have rati ed that treaty. 1. Charter based system. There is an international HR protection system that is charter-based: 12  Legal source Article 55 and 56 of the UN Charter → It states a general obligation to all Members pertaining to the UN and ratifying the Charter to protect and ensure human rights. With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: - higher standards of living, full employment, and conditions of economic and social progress and development; - solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and - universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. Organs → Human Rights Council (Former HR Commission until 2006). It is the organ within the UN which deals with human rights issues. - In 2006, the former secretary of the UN (Ko Annan) made an unsuccessful attempt to reform the UN Charter. His idea proposed 3 pillars (key elements) that built international relations: ○ Peace → Security Council ○ Development → Economic and Social Council ○ Human rights → We didn’t have one. Now we have HRC. Ko Annan proposed to give the HRC a superior status, placing this organ at the top of the UN structure as a main organ. However, he was unsuccessful in his enterprise. - The HR Council is a political organ. It is composed by diplomatic representatives of each member state, receiving direct indications from the government of the States. The HRC, for this reason, is notably biased, as they decide where to investigate human right violations, leaving powerful countries out of these investigations. Procedure → two procedures: 1) UPR - Universal periodic review → The council does this periodically addressing the situation of HR in the world. It is a sort of a report that describes the HR situations in each state. Not very e ective but important for the development of HR. 2) Special procedures: they are created by the HRC. The HRC decides to create what is called a mandate. This acknowledges the need to recognise a speci c issue that a ects human rights (access to water, violence against women, arbitrary executions….). 13  - The council identi es the problem and creates a mandate which will create the conditions for this topic to be addressed. - They would usually appoint an individual which is known as a “rapporteur” (appointed for 5 years, he/she has to elaborate an annual report on the issue that is entitled to him or her). - They decide which mandates should be created through voting, so it really depends on the likes of the member states. All of these are not binding, they are not legal sources. - If a rapporteur states anything in a report, it does not constitute any obligation, it is just a source of soft law. There are 3 formats: a) Thematic → about a certain topic. Source of information b) Geographic → speci c region (Latham, Africa) c) Investigations → country visits This is very unlikely to happen in powerful nations, it is usually carried out in developing countries. 2. Conventional based system. Everytime we refer to conventional law, we are referring to treaty based law. It is more e ective than the Charter-based system. Legal order. Several treaties form its source. Some of the sources include (core human rights treaties). Some of the most common HR Treaties are: - ICCPR (1996) - ICESCR (1996) - CERD (1965) - CEDAW
(1976) - CAT (1984) - torture - CRC (1986) - ICMW (1990) - CRFD (2006) They provide more concrete and varied obligations to respect and preserve HR. It is necessary to point out that, unlike universal declarations (UDHR), these treaties are legally binding for state members. Treaties generally have two distinctive parts: one which is about rights and obligations and another part that creates an organ.Thus, treaties do not only create rights and subsequent obligations but also organs to supervise that these obligations are complied with. 14  Organs The organ that controls these treaties is NOT singular. There is a supervising organ per treaty (we change convention to committees, and the names are pretty similar) → ex.: CRC → UN Committee on the Rights of Children. - When states ratify the treaty, they automatically accept the jurisdiction of the committee to perform a control over the compliance of obligations. - These organs are not political, they are composed by independent experts that are selected by state parties. Once they are elected, they do not respond to the states (they are independent). They do not represent the state, they should be apolitical (they are elected based on their knowledge and expertise). - They are normally formed by 10-12 experts. - They are not constantly working, they gather 2 or 3 times a year. Procedures All the systems are independent of each other. There are several procedures, however the focus will be placed on the following procedures. Monitoring systems: how do committees supervise that states ful l their obligation: 1. Periodic State Reviews - the most important one → it is the inter-State cooperative mechanism, established by the General Assembly in 2006 as one of the procedures of the Human Rights Council, to review the human rights performance of all States. The mechanism is based on an interactive dialogue between the State under review and the member and observer States of the Council. Countries become a part of a treaty by rati cation of the treaty. Rati cation is a unilateral act: states manifest their consent to be part of a treaty. When countries agree to become part of a treaty, they must submit every 5 years (on average, it depends on the treaty) a country report. Countries need to inform what they have done in order to enhance that speci c right in their territory. - After ratifying a treaty, states must submit every 5 years a country report (art. By art. Looking for violations done by the state). The State communicates what have been the domestic measures adopted in order to improve the situation related to a speci c right. - The Committee gives the country feedback with a list of issues, asking for some clari cations in relation to some speci c topic regarding the report. The Committee delivers the list of issues and then they gather a hearing. It is composed of several stages. In the last 20 years a new step has been adopted in the procedure → calling civil society and NGOs to bring shadow reports. - When countries issue the report, it is up to the government what to include in the report. What the Committee realised is that States 15  would omit relevant information, even including misleading information which could not be proven. - That is the reason why the Committee allowed NGOs to submit shadow reports on the country’s situation concerning human rights. These reports often reveal important information that countries have tried to overlook. - The Committee does not need to adhere to these reports. Concluding observations of the Committee do not create obligations for the States, they are just recommendations (soft law). 2. General Comments - legal interpretations of the obligations that states adopt. - Non-binding but authoritative. 3. Individual Complaints - not all treaties have it → it is an individual possibility to complain about a HR violation su ered by an individual. - Any individual who is within the jurisdiction of a State party and alleges a violation of his/her human rights can present this complaint before the Committee. Individuals can actually le complaints to the international organ without the permission of the state. - It is necessary the exhaustion of domestic remedies is necessary → Every individual can present this sort of complaint, but only when he/she has already exhausted all domestic law stances. - Organs usually rst attempt to mediate between the State and the individual in order to reach a friendly solution - International organs do not usually act like judges because their power is weak, anf they opt for searching diplomatic solutions. - If this is not possible, they open a hearing and then the Committee adopts a “communication”, which will deliver a conclusion on whether the country has violated human rights. - We could say that the committee is somehow binding, but this is not a jurisdictional procedure but an administrative one, so states are not legally forced to comply with it, although they normally do. What is the purpose of all these procedures if they are not legally binding? → In reality, the only instrument they rely on to be e ective is “public shame”. All these procedures are public, and states do not want to be publicly indicated as human rights violators. In this way, they comply with the recommendations to avoid bad press. In order for the Committee to have jurisdiction to analyse individual complaints, it is not enough that the country has rati ed the country. The complaint procedures need the rati cation of additional or optional protocols that are usually focused on individual complaints. 3. European protection rights system. We do not only have a universal protection system, but also 4 regional systems are in charge of protecting human rights. One of each is the European protection rights system. 16 It is a complex system, composed of several organs both from and outside the EU whose competencies are sometimes intertwined; for instance, in a country like Spain, or any other EU member State, there are 2 organs which have jurisdiction over the protection of HR. Council of Europe - Strasbourg - is a distinct international organization (outside from the European Union) dedicated to promoting human rights, democracy, and the rule of law across its member states. Its primary institution for protecting human rights is the European Court of Human Rights (ECHR). EU → The EU has jurisdiction over HR and the European constitution includes very important provisions on the protection of HR. Council of Europe. Legal source → European Convention on Human Rights (1950). It is a binding document and the main treaty in the CoE. There are additional protocols to this Convention. Organ → At the beginning it was composed of two organs, that changed 2 decades ago, now the most important organ to control the ful lment of the obligations of the ECHR is the European Court of HR, which is located in Strasbourg. ○ It is a multi chamber organ and, unlike the EU organs, they are courts, not administrative organs- this is very important, because rulings issued by the ECHR are binding. ○ European rulings enforceable through domestic courts, however the consequence is usually pecuniary ž. Procedure → The ECHR acts as a proper, real court. Lesson 5 - Civil and Political Rights (ICCPR) In this session we will focus on civil and political rights as a subcategory of human rights. Technical distinction: Treaty, convention, covenant→ Legally, there is no di erence between a treaty, a convention or a covenant. ○ All are international legal instruments which, in international law, legally 57 bind those States that choose to accept the obligations contained in them by becoming a party in accordance with the nal clauses of these instruments. Declaration → A State may choose, or be required, to make a declaration concerning a treaty to which it has become a party. There are several types of declarations: ○ Interpretative declarations → A State may make a declaration about its understanding of a matter contained in, or the interpretation of, a particular provision in a treaty. Unlike reservations, such declarations do not purport to exclude or modify the legal e ects of a treaty. The purpose is merely to clarify the State’s position as to the meaning of certain provisions or of the entire treaty. ○ Optional and mandatory declarations → Treaties may provide for States to make optional and/or mandatory declarations. These declarations are legally binding on the declarants. 17  1. Introduction. The rationale of civil and political rights lies in the Enlightenment → they were created to control the power of the state by law. The International Bill Of Human Rights → it is formed by the 3 main instruments for the protection of of human rights: 1. Universal Declaration Of Human Rights (UDHR) - 1948 → It is NOT a binding instrument (declaration), but it serves as a common standard for human rights globally. This instrument is the only one that comprises both civil, political, social, economic and cultural rights. 2. International Covenant On Civil And Political Rights (ICCPR) - 1966 → Legally binding treaty, so countries that ratify the ICCPR are obligated to uphold its provisions. - Civil and political rights = Set of rights which recognize and protect individual liberties and political participation. 3. International Covenant On Economic, Social And Cultural Rights (ICESCR) - 1966 The ICCPR and the ICESCR are international treaties, which means that they are binding for the signatory parts. It is not clear why it was necessary to distinguish between two sets of rights. The main reason why this happened is the Cold War (explained below). Today we will focus on ICCPR, which is adopted by all of the members of the UN (the most adopted HR treaty). ICCPR in short. The International Covenant on Civil and Political Rights, like the International Covenant on Economic, Social and Cultural Rights, elaborates the civil and political rights set out in the Declaration, with the exception of the right to property and the right to asylum (which was covered separately in the 1951 Refugee Convention). It also includes additional rights, such as the rights of detainees (art. 10) and the protection of minorities (art. 27) In addition to articles 2 (1) and 3 on non-discrimination (which are mirrored in arts. 2 (2) and 3 of the International Covenant on Economic, Social and Cultural Rights), article 26 ensures equality before the law and non-discriminatory protection of the law generally in force in a State. The Covenant then covers the key civil and political rights and freedoms. Its article 25 guarantees the right freely to take part in public a airs, particularly through fair and periodic elections. The Covenant, in part IV, requires all State parties to report periodically to the Human Rights Committee. Two Optional Protocols supplement the Covenant and allow State parties to accept additional obligations. 18  - The rst Optional Protocol, of 1966, provides for a right to individual petition - The second, of 1989, promotes the abolition of the death penalty 2. Principles. The ICCPR is based on 3 key principles: Universality: the duty of all states to recognize the rights of individuals under those state´s jurisdiction, including all areas where they exercise control (territorial, maritime spaces, air space…). Non-discrimination: States should apply these rights with no discrimination regarding race, gender, ideology or religion. It is a principle to apply and interpret. This principle re ects on the rest of rights of the treaty. As this principle has been acknowledged by the ICJ as ius cogens (rules and obligations of IL which cannot be derogated by neutral consensus, parties cannot agree to violate these principles). Ius cogens is the exception, as States can generally decide which treaties to adopt. Duty to ensure and protect: The Convention established in Article 1 a duty to ensure and protect HR within their jurisdiction. When we mention jurisdiction in IL we refer to power to enforce, create and apply the law. It covers the territorial spaces, air spaces, time and some other places that under IL are considered as part of State’s jurisdiction (e.g. embassies, rigid regime). The ICJ has stated that the occupation of other nations is not justi ed if it is not the territory owned, nor the sake of the protection of HR. ○ Ex: Israel exercises military power over another territory, which raises the duty to protect and ensure human rights. Limitations: There are certain rights that can be restricted, while there are others that can never be subject to limitations - In some cases, States may limit certain rights in exceptional occasions, usually in a state of emergency (right to life or to be protected from torture).. - Ex: Ukraine could limit some rights because they are currently in a war; States restricted civil and political rights during the pandemic (right to liberty). Monitoring: there is a supervision organ that ensures the commitment of member states to their obligations → UN Committee on Human Rights. 3. Content A. Basic civil rights. Individual liberties - protect individuals from state’s abuses. The notion of civil rights in this case will match with individual liberties. These are the basic rights enshrined by human rights historically. The rights recognised in the Bill of Rights consisted of liberties that 19 intended to limit the power of State. Besides this jurisdiction we mentioned, States have what is called the monopoly of the force. States deprive citizens of their capacities to solve legal issues by themselves (By using violence). Some of them are: - Right to Life and Physical Integrity → Article 6 - Life → Every human being has the inherent right to life, and this right must be protected by law. No one can be arbitrarily deprived of life, and capital punishment (where still practiced) must be applied only in the most serious cases and under strict procedural safeguards. - Physical integrity → refers to the protection of individuals from physical harm, mistreatment, or violations of their bodily autonomy - Prohibition of Torture and Inhuman Treatment → Article 7 → No one shall be subjected to torture, cruel, inhuman, or degrading treatment or punishment. - Freedom from slavery or servitude → Article 8. - Freedom of thought, conscience and religion → Article 10 - Freedom of movement → Article 45 → duty to move freely within a country Legal protection - right to have a fair trial & safe access to the judicial system. Within this monopoly of the use of force, the most serious expression is the ius puniendi (power to punish legally). Punishment varies from economic sanctions to the most extreme punishments, which is death. Another form of punishment is deprivation of liberty. As this power is so serious, many individual liberties will aim to control the State’s power. Some of them are: - Right to a fair trial → Article 14 → right not to declare against yourself, right for double instance, nulla pena sine lege. - Principle of legality is comprised of 2 main components: - Sinelege (there is no crime without law) - Nulla pena sine lege (no punishment without law) - - Freedom from arbitrary detention and arrest → Article 9 → important guarantee of civil rights in the eld of justice system. We cannot be arrested or detained unless there is a judicial order or very exceptionally by police forces (only in very exceptional circumstances). The capability of the police to arrest someone is heavily regulated under HR standards. These guarantees are so important that many constitutional systems have a constitutional remedy to protect individuals from arbitrary detention (habeas corpus). B. Political rights ICCPR protects our rights to participate in the political order of the state. 20  - Article 25 → it involves voting rights dimensions - Passive dimension → the right to vote. - Active dimension → right to be elected. - Right to be part of public affairs → Political processes need to be open to society. This is the reason why declarations should be public to individuals. This is a very important rule for controlling democratic processes. It includes the right to access public information. - Article 21 & 22 → Freedom of assembly and association: these rights allow people to gather freely. The most common representations are political parties, but it also includes unions. Repressive regimes usually forbid free association as a rst measure. - Article 15 → Right to a nationality. Every person has the right to a nationality within a jurisdiction. This is a domestic issue, States do not want others to decide whether citizens are national or not. Nationality is important because it grants the right to vote to the citizens of States, it can restrict individual liberties within a territory. - Article 19 → Freedom of expression, without it you cannot participate in debates or public discussions. It can be interpreted as a political right but also as an individual liberty. 4. Distinction between civil rights and social rights. There are 3 reasons to distinguish CP rights and ECOSOC rights. 1. Historical reason → Cold War. The UN included both the US and the USSR among its members. In the context of the Cold War and the divisions derived from the rivalry between the US and USSR, the two sets of rights tried to capture both visions of civil and political rights. Afterwards, another treaty was created addressing economic, cultural and social rights. 2. Normative reason Civil and Political rights = negative rights → refrain from doing something - They impose the duty to the State not to do something → the State must not deprive from life. - As it was mentioned above, the Bill of Rights limited the power of the State, that is, it limited the power of the King imposing a duty not to do something. - This means that the rights are of immediate realization: when they commit to upholding these rights, they have to do it immediately because they have to abstain from doing something, which can be done instantly. ECOSOC rights = positive rights → the state is required to do something. 21  - States need to do something, they need to deploy resources, usually monetary resources, to endure these rights → in order to implement a health system, the State must build hospitals. - There are rights of progressive realization: State must progressively incorporate them, but it will take them time, resources and money to be able to provide those rights Negative Rights Positive Rights Nature Right of non-interference of the Provision by the state of certain state services Government’s Role Refrain from acting Actively intervening Realisation Immediate Progressive Examples Freedom of speech Right to education or health 3. Practical reasons. The system of protection that has just been addressed is a universal system of protection. Regional human rights frameworks are also relevant. There are 4 regional HR systems: Africa, Asia, Europe and America ⇒ we will focus on the European regional system (CoE). The Council of Europe: 1. Source → ECHR (1950). This system is prior to the universal conventional system. 2. Organ → European Court of Human Rights (Strasbourg). 3. Procedure → Jurisdictional process. The members are called judges in jurisdictional programmes. From IL perspective, the di erence between jurisdictional process and the administrative one is that the last one is not binding. The State must previously accept the jurisdiction of the regulatory body, as there is no judicial body above the supremacy of the State. Because of the EU, most States have acknowledged the European Community jurisdiction. States cannot be forced to submit a case before an international court/ tribunal, they must accept it willingly. IL is quite rigid on handling the submission of cases before tribunals, so when the State has accepted the jurisdiction, it accepts that the judgement of that tribunal is totally binding. Taking these into account, there is also a practical distinction of civil and social rights → ECOSOC rights are almost impossible to be brought forth in a judicial procedure both in universal and regional systems. Only civil and political rights can be brought to justice at the international level (the ECHR protects human rights in Europe and they have enforcement mechanisms that only address civil and political rights). The enforcement of social rights in Europe is primarily through state monitoring and collective complaints, rather than individual cases adjudicated by a judicial body like the ECHR. 22 WHY? States are reluctant to be judged on the ability to ful ll positive rights. Additionally, in addressing social rights, there is usually a lot of internal political con ict, and states tend to be reluctant to extend this con ict to the supranational level. When states accept the jurisdiction of the court, they accept to be judged by it on a binding (ECHR) or non-binding nature (UN). In cases of economic, social, and cultural rights in which there are di erent interpretations, states can be reluctant to be subjected by a supranational court which may not consider its regional interpretation of the right. Lesson 6 - Social Rights (ICESCR). Video and magistral* 1. History and origins of ESC rights. T.H. Marshall (1940s) mapped the historical progress of rights: - 18th century → civil rights - 19th century → political rights - 20th century → social rights There are 3 major milestones in these rights, which took place simultaneously and are interwined: 1. Welfare state → Shift in the notion of what states should do in terms of social protection. From the liberal point of view, human rights pose a negative obligation (the state not intervening, not adopting any measures to protect rights). Nevertheless, at the beginning of the 20th century states came up with the idea of a welfare state, which received a strong in uence from socialism (start point Russian Revolution, when a socialist state was founded). Welfare state relies on 4 core principles: - Social Security → State provide social insurance for individuals with risks (social pensions..). - Public services → States must ensure the bare minimum of public services, specially healthcare, education and access to food. - Redistribution of wealth → State playing an active role in redistributing wealth. States must redistribute wealth primarily through taxation. - Economic regulations: states must intervene in the economy in order to ensure social protection. 2. Social constitutionalism → In terms of law, e orts to formally recognize certain forms of social rights become a reality when these ideas are materialised in some national norms (constitutions) → Constitutions of Mexico, USSR (1917), the Weimar Constitution (1919) or the latin american liberal constitutions pre WW2. 3. Labour movement → This is the most important element, as it determined the emergence of social rights internationally. 23 At the International level, the creation of the International Labour Organization (1919) was a direct response to the progress made by the proponents of communist systems, and the ILO sought to demonstrate that capitalism and social rights were compatible and even complementary. The ILO still exists today and is within the framework of the UN, even though it was created before the UN (it was indeed one of the main legal organs of the League of Nations). It was really important for the development of social rights, and also to promote several International treaties that are called ILO Conventions, and also protocols regarding employment. These three (welfare state, social constitutionalism and labour movement) are the milestones which made social rights possible. In fact, it should be known that social rights are in uenced by socialist perspectives, but they still emerged in the capitalist world. The UN Declaration on Human Rights (1948) includes the whole catalogue of HR, although there was a huge discussion within the UN on whether to include social rights in the Declaration. As the world was becoming bipolar, the Bretton Woods Agreement introduced the basis for the new nancial model that would govern the world. The American perspective relies on pure capitalism and free market, while the British proposal aims to incorporate the notions of the welfare state. Be that as it may, the UDHR does not recognise any distinction between civil and social rights, issue that was addressed in 1951, by the creation of the 2 distinct categories. Economic and social rights provisions are not only established in ICESCR, but also in other in nities of UN Treaties, specialized ILO Conventions (Women), geographically-determined legislations (European Social Charter, African Charter,...). 2. Classi cation of rights. What are the rights we are talking about? → In theory, they’re classi ed into 3 categories (economic, social or cultural), but in practice, the boundaries and characteristics of the various rights don’t break down so easily into such categories. It’s not easy to draw a line between economic and social rights, but it is not that important to distinguish them than to provide them. While political and social rights must be distinguished (reasons above in lesson 6), ECOSOC must be primarily provided. Economic Right to work → Articles 6 and 7 ○ Right to work (Article 6) →.Acknowledges the right of any individual to gain their living by work that they freely choose and accept. It is about ensuring that you are able to consent freely to an employment agreement. During capitalism, the real options of workers were not many, leading to exploitation rather than real work agreements. 24  ○ Work condition (Article 7) → which include fair wages, equal pay for equal work, safe and healthy working conditions, the right to rest, leisure, and reasonable working hours. Right to social security → Article 9 →workers would gain their living while they were able to work, and while they were not able to work because they were injured, sick or pregnant, because they are too old to work; they would be covered by social insurance. It includes social insurance, protection against unemployment and protection for sickness, disability or the elderly. Social Adequate standard of living - Article 11 → this right recognises that everyone has an adequate standard of living, which includes, at its core, food, clothing and housing. This right must ensure that this minimum protection is covered. Right to health - Article 12 → right to the highest attainable standard of physical and mental health. It is a common aspiration that everyone has the highest standard both physically and mentally. Health, as a human right, does not consist of the right not to be sick or the right to be healthy. It is rather related to achieving high standards, instead of a direct and unique connection to medical standards. It takes a wider approach, relating to medical treatment, but also food and adequate sanitation conditions. Right to education - Article 13 → At least primary education should be free and compulsory. All states parties of the convention must ensure that primary education is compulsory and free, so it is a duty for children and parents. In relation to secondary and higher education, the obligation is for states to ensure equal access to everyone to this type of education. ○ Right to water Cultural → the right to take part in cultural life. 3. Rights recognition. Formulating and proclaiming rights are the easy part. The harder challenge is to nd the scope and content, and thus the concrete obligations that attach to them. For this purpose, institutions are essential (either international or national), since ECOSOC rights are positive rights and states must take active action to protect and enforce them. Progressive Realisation Principle. Civil and political rights are negative rights and are rights of immediate realisation, that entail an obligation of not to do. Contrary, social rights, which are positive rights, to ensure these rights, they entail active obligations upon the states (state must do). Article 2.1. ICESCR → Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 25 Thus, we can appreciate 3 main elements to the idea of progressive realisation: Immediate eligibilities → the principle of progressive realisation must comply with some requirements: ○ Non-discrimination → States that may ensure these rights progressively, might ensure immediately that the available resources are applied with non discrimination. ○ Minimum realisation → There must be some minimum levels of rights which must be ensured in relation to healthcare, primary education and food. ○ Duty to take steps → the protection of these rights should always increase, states have the duty adopt measures to go forward in the recognition of these rights. Maximize available resources (art. 2.1) → Basically, the duty to ensure social rights is subject to two conditions: - Availability of resources. - Progressive realisation of the rights. This perspective has been highly criticised by many scholars because the progressive realisations weaken the insurance of social rights, because states can avoid obligations with the excuse of not having enough resources. In order to address this issue, the Committee has indicated that available resources refers to all resources available for States, which means that States sometimes need to relocate some resources in order to ensure these rights. This is what happened in Europe during the last century, when European states achieved peace, they started to cut down expenses for the military and started to increase their budget destined for social protection. Within the GDP, the available resources refers to the whole availability of resources, not only the ones that States decide to allocate for social purposes. Less developed countries believe that powerful States have a duty to assist them in the task of protecting social rights. However, there is not a duty for wealthy countries to ensure cooperation and assistance. Non retrogression → not going back → There is a general understanding that social rights, even though they take time to be allocated, once they are socially recognised they cannot be taken back, which means that no regression can take place. These rights will be achieved little by little, they will always become better throughout time. The idea is that States should improve at recognising social rights. 4. Monitoring of social rights. The justiciability of social rights is a question open to debate → whether these social rights can be enforced in Courts. - The constitutional provisions for social rights are weaker in terms of the legal resources to claim these rights before a Court. - All judicial protection mechanisms (Europe, America, Africa), which are jurisdictional mechanisms, only deal with political rights. 26 What is the monitoring body of the ICESCR? → The UN Committee on ESCR This mechanism is not jurisdictional and its members are not judges. The ndings of the investigation made by the Committee are not binding. This protocol has been rati ed by only a handful of States. Justiciability is therefore still a problem to address in the context of social rights. Composition: - 1987 - Consists of 18 independent experts from di erent countries that have rati ed the Covenant. - Rati ed by 162 states. Functions: a) Concluding Observations. - This Committee evaluates the compliance of the state members to the Covenant by examining government reports, questioning o cial delegations and taking into account the information provided by civil society and other sources. - This evaluation results in the adoption of what are called Concluding Observations, directed to the government, but also of potential signi cance to a wide range of other actors. - Individual complaints alleging violations of the Covenant coming from any of the 14 states that have rati ed the Optional Protocol (2008) that spells out the procedure to be followed. - It also allows for an inquiry to be undertaken on the territory in exceptional circumstances b) General Comments ○ The other main function of the Committee is the formulation of General Comments, which enables the Committee to o er an authoritative interpretation on a particular issue such as the implications on a particular issue such as the implications of a right or other obligations owing from the Convenant. ○ General Comment Nº3 Overall, we can talk about a wide variety of international arrangements, but it is at the national level where the most important developments take place (courts). There is a big emphasis on what’s called “justiciability” to show that economic, social and cultural rights could be enforced by judges (many examples from Colombia, Brazil, South Africa…). But equally important are initiatives outside the formal judicial arena. Social protection schemes and oors promoted by the ILO are probably much more important than judicial decisions which are given so much attention to literature. 27 What is the place of ESCR within the overall HHRR regime today? On the one hand, validity of these rights is rarely contested. These rights are re ected in all of the major treaties, in many national constitutions and they are increasingly central to the work of NGOs at the national level. On the other hand… - They continue to be inadequately re ected in the national legal systems. - They occupy a distinctly secondary place in the work of most international HR. Di culties. The costs → they are inherently costly to achieve, while civil and political rights are not. The reality is that all rights are expensive if they are taken seriously, but that society must allocate the resources needed to ensure adequate policing and fair elections just as much as the right of children to education. The legitimacy of courts → social rights should be assessed by a democratic debate and political choices rather than being determined by courts → it is true, but it applies the same to civil rights. In both cases the political process should determine the ways in which and the extent to which rights will be realized. ○ But in both cases, their options are constrained by the obligations to ensure the respect called for in the international treaty obligations. ○ There is no more an option to decide not to ensure adequate health care than there is to dispense with public policing. The indirect ful llment of ESCR Lesson 7 - Democracy and Self Determination. 1. Introduction. Today, we’re exploring the intersections between democracy, human rights, and self-determination. These three ideas are central to modern international relations and human rights law. Each promotes the empowerment of individuals and communities, ensuring that people have a voice in their government and control over their lives. We’ll discuss how democracy has developed over time, its essential elements, and the way it supports human rights. We’ll also look at how democracy enables self-determination, allowing people to shape their own political and social realities. 28  2. Democracy. A. History. Starting point → Ancient Greece (Athens) - Around the 5th century BCE, Athens developed a direct democracy, where citizens voted directly on laws and policies rather than electing representatives to make decisions for them. - This system was revolutionary because it emphasized that political power should come from the people. However, it had limitations —only free adult men born in Athens could participate. Women, slaves, and foreigners were excluded, showing that even early democracies weren’t entirely inclusive. - Despite its aws, Athens gave us the foundation of democratic governance: the idea that the state should serve its citizens, not rule over them. The Enlightenment. - The Enlightenment brought about an expansion of democratic ideas thanks to the thought of thinkers such as Rousseau or Locke. - They argued that governments should be based on a ‘social contract’—a mutual agreement where people consent to be governed in exchange for protection of their rights. - This shift marked the beginning of modern democracy, where individual freedoms and limited government became essential principles. - Documents like the Magna Carta in 1215 limited the king’s powers and protected certain rights. - Later, the US Constitution formalized these ideas, establishing a representative democracy based on elections and checks on government power. - These developments shaped democratic systems as we know them, prioritizing both individual rights and a government accountability to the people. B. Basic principles of democracy. There are some principles or ideas that are intrinsically attached to the democratic regime: Rule of law → everyone (including leaders) must follow the law. ○ In a truly democratic society, laws apply equally to everyone, ensuring fairness and accountability. Separation of powers (Montesquieu) → power should be divided across 3 branches : legislative (makes laws), executive (enforces laws) and judicial (interprets laws). ○ The division prevents any branch from becoming too powerful and abuse of its authority. ○ This framework fosters balance and protects individual rights, as each branch can ‘check’ the others. In most democracies today, the executive branch enforces laws, the legislative branch makes laws, and the judiciary interprets them. This framework fosters balance and protects individual rights, as each branch can ‘check’ the others. 29  C. Political structures. Republic Monarchies Leaders are elected by the people Led by a hereditary ruler. (which aligns well with democratic principles, as Absolute monarchies → concentrate the government is directly accountable to its power in a single ruler citizens) Constitutional monarchies (CM) → balance monarchic tradition with democratic governance. The monarch’s powers are limited by a constitution, and elected representatives govern alongside or above the monarch. Promote democratic accountability more directly (CM) adopt democratic principles to ensure rulers serve the public good. Liberal constitutionalism and Political Rights. During the 18th and 19th centuries, liberal constitutionalism emerged as a philosophy that emphasized individual rights and limited government. - This movement helped establish political rights as essential components of democracy (freedom of speech, freedom of assembly, voting…). - Liberal constitutionalism argued that the government’s role is to protect these rights, enabling people to live freely and participate in public life. Without these protections, a society cannot be truly democratic. C. Core elements of Modern Democracies. Modern democracies share several core elements that de ne their structure and protect their citizens’ rights. Equality: Equality means that all citizens have the same rights and responsibilities, regardless of their background. In a democracy, each individual’s vote carries the same weight. Participation: Citizen participation, often through voting, is central to democracy. People have the right to choose their leaders and engage in political discourse. Majority Rule & Minority Rights: Democracies operate on majority rule, but they must also protect minority rights to prevent oppression and ensure inclusivity. Rule of Law and Fair Trial: In democracies, laws apply equally to all. Fair trials ensure justice and protect individuals from arbitrary detention. Commitment to Human Rights: Democratic governments are committed to protecting civil, political, economic, and social rights, ensuring that citizens can live with dignity. Political Pluralism: Political pluralism means that multiple parties and viewpoints are encouraged, ensuring a diversity of perspectives in governance. Free and Fair Elections: Elections are free and fair, meaning they’re conducted transparently, with equal access for all eligible voters. 30  Division of Powers: The separation of executive, legislative, and judicial powers prevents abuses and balances authority across branches. D. Democratic clause. Many international organizations, such as the European Union and Mercosur, include a ‘democratic clause.’ This means that membership is contingent on upholding democratic governance and respecting human rights. - These clauses help enforce democratic norms and provide incentives for countries to maintain human rights standards. For instance, EU member states must uphold democratic values and human rights protections as a condition for membership. - Integration processes like these foster a collective commitment to democracy, ensuring that shared values are maintained across borders. 3. Self determination. A. De nition. Self-determination → the right of a people to determine their own political status and pursue development as they choose. - This is essential in democratic systems, where individuals and groups can express their identity and control their future. How does SD relate to democracy and human rights? - Democracy enables self-determination by allowing people to participate in government decisions. - Self-determination also supports human rights, as it empowers groups to protect their interests within a larger democratic framework. We see examples of self-determination in decolonization, indigenous movements for autonomy, and minority communities seeking cultural preservation. Self-determination reinforces democracy, allowing diverse groups to thrive within an inclusive society. B. History. The principle of self-determination rst gained prominence in the early 20th century. - 14 Wilson Points → President Woodrow Wilson have highlighted that people should have the right to choose their own government. - WWII → it wasn’t until the end of World War II that SD became a signi cant international legal principle. - The UN Charter (1945) explicitly acknowledged self-determination in Article 1(2), emphasizing it as essential to maintaining peace and security. This marked a turning point, as it tied self-determination to global stability and human rights. Over the years, self-determination has been further re ned and recognized in international law, especially through UN resolutions and treaties that solidify its legal status. 31 The role of the UN. The UN played a central role in promoting self-determination through the decolonization process after World War II. - The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514) was a landmark, a rming that all peoples have the right to self-determination and that colonialism should be ended. - This resolution led to signi cant decolonization e orts throughout Africa, Asia, and the Caribbean, where many countries gained independence from European powers. Self-determination was a driving force, allowing colonized peoples to claim their sovereignty and control over their territories. The UN’s role in supporting self-determination for colonized nations remains one of its most impactful contributions, transforming the world’s political landscape and promoting a more inclusive international system. C. The Use of Force One of the most complex aspects of self-determination is the question of whether force can be used to achieve it. In international law, the general principle is that states and peoples should pursue self-determination through peaceful means. - The UN Charter explicitly prohibits the use of force except in cases of self-defense or when authorized by the UN Security Council. This re ects a commitment to maintaining international peace and stability, even as the UN recognizes the right of peoples to self-determination. - However, history has shown that certain self-determination movements, especially those against oppressive regimes or colonial powers, have turned to force when peaceful options were denied. Anti-colonial struggles in Africa and Asia often involved armed resistance as people sought independence from colonial rule. In modern international law, using force for self-determination is generally discouraged, especially if it risks violating the principle of territorial integrity of states. Nevertheless, the 1970 Declaration on Principles of International Law suggests that if a state denies fundamental human rights or refuses democratic solutions, people under colonial or oppressive rule may be justi ed in seeking independence through other means. However, the contemporary international community promotes non-violent avenues for self-determination. - This includes the option of autonomy within existing states or the use of diplomatic negotiations and international mediation to address claims. - Recent cases, such as the Scottish independence referendum, have shown that self-determination can be peacefully negotiated within the framework of the law. Challenge → The use of force remains highly controversial, and international recognition of movements that use force is limited. For students of international relations, this raises important questions about 32 balancing the right to self-determination with international peace and stability. It highlights the need for legal, diplomatic, and sometimes humanitarian interventions to address complex self-determination claims without resorting to violence. D. International Relations and Contemporary issues. In international relations, self-determination continues to in uence the global order. While decolonization led to the independence of many states, there are still unresolved cases where groups seek self-determination within established states. - Some contemporary examples include - Indigenous rights movements → Mapuche people's struggle for land rights in Chile and Argentina - Regional separatist movements → Catalonia independence movement in Spain. - Political con icts where groups seek autonomy or independence → Kurdish struggle for autonomy or statehood, Palestine. The challenge in international relations is balancing self-determination with the principle of territorial integrity. While international law supports self-determination, it generally respects the existing borders of sovereign states to avoid con icts. This tension requires diplomacy, mediation, and sometimes regional or international intervention. In this context, the concept of ‘internal self-determination’ has emerged, where groups seek autonomy and recognition of their cultural and political rights within the state rather than full independence. This approach aligns with human rights principles and democratic values, allowing diverse communities to coexist peacefully within a single state framework. Lesson 8 - Women’s rights. 1. History. A. Systematic discrimination of women Throughout history, societies have often attributed certain roles to men and women based on biological di erences, such as physical strength or reproductive roles. These di erences have sometimes been used to justify discrimination, with women placed in subordinate roles within family, society, and law. Historically, women were excluded from public life and doomed to enroll in domestic roles. This led to systemic discrimination across legal, economic, and social institutions. Women were excluded from property ownership, voting rights, and formal education, reinforcing a cycle of dependency and lack of autonomy. B. “Pater Familias” In ancient Roman law, the concept of pater familias referred to the male head of the household, who held authority over all family members, including his wife, children, and slaves. This concept spread through Europe and in uenced civil law systems. 33 The ‘pater familias’ notion justi ed legal systems that placed women under the control of male relatives, often depriving them of legal capacity, property rights, and autonomy. Marriage laws commonly required women to obey their husbands, and inheritance laws prioritized male heirs. This historical legacy contributed to the institutionalization of gender discrimination, which would later require extensive legal reforms to achieve gender equality. C. The Feminist Movement The feminist movement began as a response to systemic gender inequality. It emerged in various waves, each addressing di erent aspects of women’s rights: - First Wave - 19th and early 20th centuries - Focused on legal inequalities, particularly voting rights and property rights. - Second Wave - 1960s–1980s - Broadened to include issues like workplace discrimination, reproductive rights, and family law. - Why is there a special protection of women over men? → It is easily recognizable that males physical traits poses a considerable superiority in terms of physical damage that an aggression can cause. For that reason, the main purpose of feminist e orts was not only base on halving autonomy and own control of their body, but establishing limits and controls to male violence against women. - Third Wave - 1990s–2000s - Emphasized diversity within feminism, focusing on intersectionality and the unique experiences of women of color, LGBTQ+ women, and other marginalized groups. - By challenging gender roles, we were able to acknowledge new social challenges attached to gender but not necessarily linked to women-men dynamic. Male patriarchal roles not only challenges women, but also other minority LGTBQ+ groups. - Fourth Wave - 2010s–present - Characterized by digital activism, this wave targets issues like sexual harassment, violence against women, and gender-based pay inequality. The feminist movement has been instrumental in advocating for equal rights, challenging stereotypes, and transforming laws that restricted women’s autonomy and participation in society. D. Recognition Of Political And Labor Rights. Women’s ght for political and labor rights has been a core part of the feminist movement. - The right to vote, or su rage, was one of the rst major goals and was achieved progressively across the world, starting in New Zealand in 1893. - In the labor sector, women faced unequal pay, limited access to certain professions, and a lack of legal protection against discrimination. The struggle for labor rights led to demands for equal pay for equal work, maternity protections, and the right to safe working conditions. 34  - These e orts were critical in breaking down barriers that prevented women from fully participating in economic and political life, laying the foundation for modern gender equality laws 2. The UN Gender perspective A. PARADIGM The United Nations has played a key role in promoting gender equality as a global human rights priority. Since its founding in 1945, the UN has adopted numerous resolutions and conventions supporting women’s rights. - The UN Charter itself acknowledges the equality of men and women, and the Universal Declaration of Human Rights (1948) a rms equal rights for all, regardless of sex. - International conferences, such as the Fourth World Conference on Women in Beijing (1995), reinforced global commitments to gender equality, leading to the adoption of action plans and frameworks that address issues like economic empowerment, reproductive rights, and protection against violence. CEDAW - UN Convention on the Elimination of All Forms of Discrimination Against Women of 1979 CEDAW, often called the ‘international bill of rights for women,’ is a landmark treaty adopted by the UN General Assembly in 1979. It is one of the most comprehensive instruments addressing gender equality. - CEDAW obligates states to eliminate discrimination against women in all forms and to take measures to ensure women’s equal participation in political, social, economic, and cultural life. It covers rights such as education, employment, healthcare, and equality before the law. - Countries that ratify CEDAW must report on their progress every four years. The CEDAW Committee monitors compliance, reviews country reports, and makes recommendations for improving gender equality protections. A. Core principles: Substantive equality: beyond formal equality, it ascertains the need to go further and adopt measures to face systematic discrimination. Some of the main initiatives are the importance of temporary special measures like quotas to accelerate gender equality. ○ Formal equality - based on equality - provide the same treatment to everyone under the law, without special considerations for individual circumstances. ○ Substantive equality - based on equity - address underlying inequalities that can a ect people's ability to bene t equally from opportunities and emphasizes equality of outcomes or impact, which may require di erent treatment for individuals or groups facing disadvantages. 35  It also requires states to eliminate discrimination in both the public and private spheres, meaning that states must address issues like family law, inheritance rights, and cultural practices that harm women. ○ is private, bit law should regulate what happens in order to avoid discrimination of the least strong (women and children). The Convention has inspired legal reforms worldwide, and it continues to serve as a reference for courts and legislators in establishing gender equality standards. B. Main Provisions of CEDAW - Article 2: Mandates that states condemn discrimination and take immediate steps to eliminate it, both by passing laws and modifying existing ones. - Article 5: Calls on states to address cultural and social practices that perpetuate gender-based stereotypes and discrimination. - Article 10: Guarant