HUMR5140 Introduction to Human Rights Law Autumn 2014 Lecture 3: International Bill of Rights.
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Transcript of HUMR5140 Introduction to Human Rights Law Autumn 2014 Lecture 3: International Bill of Rights.
HUMR5140 Introduction to Human Rights Law
Autumn 2014
Lecture 3:
International Bill of Rights
Outline
1. Development of human rights in law: Idealisation, positivisation, realisation
2. What is the “International Bill of Rights”?3. The typology of States’ obligations4. “Absolute” vs. “relative” rights5. Immediate vs. progressive realisation
Four ‘schools’ of human rights thinking
Natural school: Given
Discourse school: Talked about
Protest school: Fought for
Deliberative school: Agreed upon
Human rights exist independent of
human rights law, but positivization is to be supported
Human rights do not exist beyond human rights law
Skeptical towards human rights law
Human rights law is like any other law, and may be
good or bad
Phase 1:Three phases
The development of human rights
Normativisation and realisation
Positivisation
Idealisation
Re-idealisation
ONGOING
ONGOING
ONGOING
Human Rights Law Enjoyment of Life –Rule of
Law
Fear and Want – Rule by Power
Phase 1:Idealisation
Phase 2:Positivisation
Phase 3:Realisation
Phase 2: Positivisation
The transformation of ideals into normative
standards
Morality to law
Soft law to hard law
International law to domestic law
Important step: UDHR 1948
…but was it the first step?
Early norms pertaining to conduct during armed conflicts
From ancient times to 1900
Code of Hammurabi,
1700 BC
Magna Carta, 1215
Peace of Augsburg, 1555Habeas Corpus
Act, 1679English Bill of Rights, 1688
US Declaration of Independence,
1776
French «Rights of Man», 1789
A necessary sidestep: Three «generations»
First generation:•Civil and political rights•Liberté
Second generation:•Economic, social and cultural rights•Egalité
Third generation:•Group and collective rights•Fraternité
Fourth generation?Early 20th Century
Bolshevism– Favoring equality and economic rights (egalitè)
– The Soviet was not just the Russian state, but the spokesperson for the world.
– Leon Trotsky: we will ”issue some revolutionary proclamations to the peoples [of the world] and then close up the joint.”
Wilsonianism– Favoring individual liberalism (libertè)– U.S. President Woodrow Wilson: the USA model is the ”flag not only of America but of humanity.” – ‘We are running a race with Bolshevism, and the world is on fire.’
Phase 2: Positivisation
L I B E R A L I S M vs. E Q U A L I T Y
Early 20th Century
Phase 2: Positivisation
Early 20th Century
Attempted positivisation with the League of Nations
• Minority rights
• Right to health
• Anti-slavery
• Women’s rights
• Labour rights
Phase 2: Positivisation
20th CenturyEconomic collapse Early 20th Century
Phase 2: Positivisation
20th CenturyDevastation of World War
II
Dresden, Germany
London, UK
Shanghai, China
Manilla, The Philippines
Phase 2: Positivisation
20th CenturyBrutality of the State
Nanking massacre
Japanese forces burying prisoners alive
German forces detain and kill undesirable citizens
German Program to kill handicapped
people because they were ‘costly’ to
Taxpayers – ‘life unworthy of living’
Phase 2: Positivisation
20th CenturyThe destructive power of
States demonstrated
USA Atomic Bombing ofHiroshima in 1945
First Soviet Test of an Atomic Bomb in 1949
First Chinese Test of an Atomic Bomb in 1964
Phase 2: Positivisation
20th Century
Modern positivisation
After World War IIThe UN Charter
San Francisco ConferenceDrafting of the UN Charter (1945)
1st Session of the UN General AssemblyCentral Hall in London (10 Jan 1946)
Phase 2:Modern
positivisation
After World War IIThe UN Charter
Determined … to reaffirm faith in fundamental human rights
The purposes of the United Nations are … To achieve international co-operation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;
Preamble
Art. 1
Arts. 55 and 56
The United Nations shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction
as to race, sex, language, or religion.
All Members pledge themselves to take joint and separate action in co-operation
with the Organization for the achievement of the purposes set forth in Article 55.
Phase 2:Modern
positivisation
After World War IIThe Universal Declaration of Human Rights (1948)
P.C. Chang from China, Eleanor Roosevelt from USA, John Humphrey from Canada (of UN Secretariat), Charles Malik from Lebanon,
Vladimir Koretsky from the USSR
Renè Cassin from France
The UN General Assembly unanimously proclaimed the
UDHR as a ”common standard of achievement”
Phase 2:Modern
positivisation
After World War IIThe Universal Declaration of Human Rights (1948)
Content?Both CivPol and EcoSocCul rights
Legal status?UNGA resolution, legally non-binding
International customary law
Art. 1: All human beings are born free and equal
Art. 2: The basic principle of
non-discrimination
Arts. 3-21: Civil and political
rights
Arts. 22-27: Economic, social and cultural rights
ICCPR ICESCR
The International Bill of RightsBridged the gap between CP and ESC rights
…and the gap re-emerged?
Phase 2:Modern
positivisation
• A “World Court for Human Rights”?• The recognition of grave human rights violations as a
justification for intervention• Individual international responsibility for violations of human
rights law• The responsibility of non-state actors• NCHR research project: The legitimacy of multi-level human
rights judiciary• The “legalisation” of international relations• The fragmentation of human rights tribunals• A focus on the “wrong” human rights…?
Other regional and international human rights instruments
The International Bill of Rights
Positivisation and realisation: Some
challenges and developments
After World War II
International human rights treaties
No formal hierarchy of normsA category of
fundamental rights?
Vienna Declaration 1993: «All human rights are universal, indivisible and interdependent and interrelated.»
Integrated interpretation
The human rights circle
http://www.humanrights.is/the-human-rights-project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/substantivehumanrights/
International human rights treaties
The typology of States’ obligations
Absolute vs. relative rights
Immediate realisationvs.
progressive realisation
Scope of application: On Wednesday
To respect, to protect and to fulfil (Eide)
The State should refrain from interfering with the
enjoyment of rights
The State should protect rights-holders against
interference of their rights by other actors
The State should take active steps towards the full
realisation of the rights
To avoid depriving, to protect from deprivation, to provide security (Shue)
Positive and negative obligations
The typology of States’ obligations
Obligation of result vs. obligation
of conduct