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1. PERSPECTIVES AND FOUNDATIONS
a. What are Human Rights?i. This is unlike simple rights as a citizen or member of an
organization.there are certain rights, like these human rights which
transcend national boundaries and give rise to certain obligations.
ii.
Thus there is an internationalcomponent to this as well: universalentitlement ---> does not depend on nationality, culture, traditions, orreligion.
iii. Rights that humans are entitled to solely by virtue of their humanity.
iv. Rights that are intimately connected to human beingsv. Rights are an entitlementnot a matter of kindness.
1. If A kills B, normally just a crime. But if A is the government or
the crime is committed because of discrimination, it begins to be
regarded in terms of human rights.
b. History and Antecedents
i. History:
1.
17-18
th
Century: negative rights characterized by freedom.Autonomy over authority. Individualistic.
a. Shift from Natural law into Positive Law
2. 19th
Century: welfare rights; society and the state that represent
society must provide certain things. Affirmative rights.3. 20
thCentury: synthesis of both trends. Two branches of rights
civil/ethical rights + economic/social/cultural rights.
a. Absolution of the slave trade and InternationalHumanitarian Law.
b. Protection of minorities + League of Nations.
c. Following WWIICrimes Against Humanity + UN
Charteri.
Universal Declaration of Human Rights
1. General Assembly resolution, and not
binding. Aspirational statement.2. International Covenant of Civil and Political
Rights (ICCPR)
3. International Covenant of Social andCultural Rights (ICESCR)
a. All 3 are referred to collectively as
the International Bill of Rights
4. Human Rights On The International Plane: Key Datesa. Roosevelts Four Freedoms Speech 1941
b.
Declaration of the UN1942
c. UN Charter1945
d. UDHR and Convention on Prevention and Punishment ofthe Crime of Genocide1948
e. Four Geneva Conventions1949
f. ICCPR and ICESCR opened for signature1966g. ICCPR and ICESCR enter into force - 1976
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ii. Antecedents:1. Code of Hammurabi
2. Magna Carta3. Habeas Corpus Act
4. Bill of Rights
5.
French Declaration of the Right of Man and Citizen6. US Constitution7. Declaration of Independence
8. Nuremberg Charter
iii. Enlightenment thinkers had a lot to do with this too:1. Hobbe
2. Locke
3. Montesqiue
4. Rosseau5. Thomas Jefferson
2. Other Important Documents:
a.
Genocide Convention of 1948b.
4 Geneva Conventions relating to International Law
c. Covenants on Human Rights
d. CERD
e. CEDAW
f. Justifications and Critiques
i. Critiques:1. Richard Rotyno such thing as human rightsbeing Human does
not imply righs.
2. Peter SingerHR is like racism or sexism; this is specieism.
Calling them human rights is a moral flaw by excluding animals.
a. Realistb.
Utilitarian
c. Marxist
d. Particularist (cultural relativist)e. Feminist
f. Post-Colonial Theoretical Perspectives
g. TWAILThird World Approaches to International Law(originated in Harvard but now all over the world)
h. Post-Modernism Critiquehow its not neutralits all
politics, and pretends to be universal and neutral. Basically
saying all law is politics.
ii. Justifications:1.
Religious v. Non-Religious
2. Prudential v. Objective
3. Sequentialist v. Non-Consequentialista. Instrumental v Inherent
b. Consequentialism egalitarianism
4. Equality5. Dignity
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6. Legal PositivistsLawyers --> focus on what law is rather than
what it ought to be.
7. Deontological Theory8. Modernismobjective, neutral, and universal
3. HUMAN RIGHTS ASLEGALRIGHTS IN INTERNATIONAL LAW
a.
Sources and Nature of Obligationsi. Sources
1. Principal Treaties:a. UN Charterfirst guarantee of human rights and
fundamental freedoms within a global treaty, albeit ingeneral and indeterminate language.
b. UDHRnon-binding
c. ICCPR
d. ICESCRi. ^^ These three collectively referred to as
International Bill of Rights. Also most important.
After those came:e.
International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD)
f. CEDAW
g. Convention Against Torture and Other Cruel, Inhuman orDegrading Treatment (UNCAT)
h. International Convention on the Right of the Child (CRC) +
3 optional protocolsi. Children in Armed Conflict
ii. Sale of Children, Child Prostitution and Child
Pornography
iii. Communications Procedurei.
International Convention on the Protection of Rights of
Migrant Workers and Members of their families
j. Convention on Rights of Persons with Disabilities (CRPD)k. International Convention for the Protection of All Persons
from Enforced Disappearance
2. Many other multilateral treaties that include HR obligations butdont have such monitoring mechanisms.
a. Prevent Punishment of Crime of Genocide
b. Suppression and Punishment of Crime of Apartheid
c. International Labor Organizationd. UN Educational, Scientific and Cultural Organization
3.
Regional institutions have developed their own HR systems
through adoption of treaties that are limited to states within their
region:a. ECHR
b. ACHR
c. African Charter on Human and Peoples Rights
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4. Widespread treaty adherence provides for a degree of uniformity
between states in their understanding of the requirements of
international human rights law (may undermine arguments ofcultural or other specificity)
a. Treaty ratification and accession allow for certainty in
identifying states parties and written texts set outobligations accepted.5. Additional Protocolslike a new treaty
6. General Commentsrecommendations on the part of treaty
bodies.7. Customary International Law
a. ICJInternational Court of Justice
b. While treaties are only binding on states that have chosen
to become parties, custom is binding upon ALL states withlimited exceptions.
i. A treaty may codify customary international law or
come to be accepted as customary international lawthough.
8. Jus Cogensnormis a peremptory norm of general international
lawaccepted and recognized by the international community of
states as a whole as a norm from which no derogation is permittedand which can be modified only by a subsequent norm of general
international law having the same character.
a. Essentially means compelling law in Latin. This higherlaw may not be violated by any country. For example,
genocide or slave trade may be considered to go against jus
cogens.
i. Typically includes genocide, slavery, murder,disappearances, prolonged/arbitrary detention, and
systematic discrimination.
9. Interaction at the International and Regional Levelsa. ICJ is the only international Court with jurisdiction over all
questions of international law, which includes issues
relating to human rights.10.Interaction Between National Courts
a. Most states have adopted IHR standards into their
constitutions and legislations, requiring national courts to
interpret and apply the relevant provisions.b. Jurisprudence of regional and national courts is
authoritative only within their own legal system, but careful
judicial analysis can be influential in the decision-making
by courts in other regions and stats that are faced withcomparable problems and must apply similar language.
i. Judicial decisions can carry persuasive weight
across national/regional boundaries and it isbecoming commonplace for judges in one
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jurisdiction to refer extensively to decision of courts
of foreign jurisdictions when interpreting human
rights guarantees.11.Human Rights Litigation
a. Now a body of judges (relatively new) and experts in
global and regional institutions who regularly hear casesinvolving claims of violations of HR. Complemented byjudges in national courts responsible for the judicial
enforcement of HR.
b. Networks such as International Bar Association.12.Writings of Juriststhese also weigh on opinions as experts and
teachings of the most highly qualified publicists/experts on various
HR issues can help decide a case.
13.Another way in which a non-binding resolution may be understoodas a source of HR law is where it provides an authoritative
interpretation of a treaty. (This approach taken by Inter-American
Court of Human Rights regarding the American Declaration of theRights and Duties of Man).
14.Soft Lawincludes things like HR Council guidelines, codes of
conduct, standards of behavior, etc
ii. Nature of Obligations1. The special character of human rights obligations. Objective, and
designed to protect the third parties (usually people within the
state) from actions of others (higher other parties), rather thancreating subjective and reciprocal rights for these higher others.
a. Objective and subjective here means whether or not there is
a dependence on other states (respectively).
b. Becoming a party to a HR treaty is declaratoryof statesobligations rather than constitutiveof them.
2. Implementation of HR Obligations
a. International HR law has thus come up with a complexconcept of how obligations are to be discharged and a new
vocabulary of obligations has emerged. Typically, states
are supposed to respect and ensure rights to allindividuals. However, this is very broad and in practice,
the UN HR treaty bodies have adopted a 3-part typology of
how HR obligations should be secured. States must ___
HR:
i. Respect1.
Dont infringe
2. This duty requires the state to treat persons
equally, to respect their individual dignityand worth, and hence not interfere with or
impair their declared rights, etc
a. Hands-off Duty ---> negative duty
ii. Protect
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1. Protect people against violations by others
2. Responsibility to protect --> international
community has an affirmative obligation tointervene if a particular government is
unable or unwilling to prevent terrible things
happening.iii. Fulfill1. Create institutions and structures, which are
conducive to the health of HR.
2. Refers to bringing about changes in publicconsciousness, perception, or understanding
about a given problem or issuewith the
purpose of alleviating the problem.
a. *This plays a vital role in CEDAW*3. Positive obligationunlike respect (which
is negative in that it is a duty to not actively
violate HR), where you must takepositive/affirmative steps that have as a
consequence the greater enjoyment of rights.
3. Margin of Appreciation
a. Developed by ECHR when considering whether a memberstate of the ECHR has breached the convention.
i. MoA doctrine allows the court to take into account
the fact that the Convention will be interpreteddifferently in different member states.
ii. Judges are obliged to take into account the cultural,
historic, and philosophical differences between
Strasbourg and the nation in question.b.
Involves an assessment of the degree of consensus (a
minimum common denominator) about a certain practice
across member states.i. In the absence of such a consensus, and in the
presence of significant divisions, the EC will
hesitate to impose on a minority (let alone amajority) of states, a particular understanding of
rights.
ii. Important to note that whether there is a MoA for a
particular issue is something that can evolve overtime.
c.
According to ECHR MoA doctrine, there is room for
differences between European states.
d. On many rights, ECHR gives States a MoA in limitingthose rights (prescribed by law and are necessary in
democratic society for prevention of certain interests).
i. ECHR always has final say though ---> question ishow wide of a margin.
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1. The doctrine has never been theorized in a
sophisticated way ---> introduced usually
when youre in a tight spot.2. Reflects the role we think ECHR should
play:
a.
Constitutional Court: you can appealany major issue to the courtb. Something Softer: stricter on core
issues, but otherwise applies MoA
to the state.e. Unclear how wide the margin is, but it is wider when it
comes to certain issues (like national security as seen in
Norris).
i. In determining the scope, courts something look atboth 1) nature of the aim of the restriction; and 2)
nature of the activities involved.
f.
Disputes should be left to resolved as close as to where thefacts arose as possible. International bodies should step in
only as a last resort. If the domestic system has any way of
resolving it internally, HRC should not intervene.
g. Exhaustion of Local Remediessimilarly, before you go tointernational bodies, should seek to exhaust local remedies
(unless the local remedies are illusory as seen in
Singarasa).h. One rationale for MoA is that states and domestic courts
are better suited to assess local peculiarities and that there
is simply too much uncertainty about how HR are to be
implemented in practice for international supervision toexercise more than relatively minimal control.
i. Issues of legitimacy also arise, as international
bodies might provoke political backlash if theydelve too deeply in matters that are seen as
culturally specific.
i. MoA reasoning has featured prominently in cases involvingsexual minorities, and place of religion in society.
j. Consequence/Critique:MoA militates in favor of
conservative international assessment of rights.
i. ECHR has often been less of a pioneer than a safeendorser of existing trends and development.
ii.
Criticized as possibly leading to an excessively
relativistic application of human rights that may
even contain the seeds of the projects dissolution.1. The HRC, in particular, has expressed
skepticism about the notion.
k. Justification:In addition to the fact that it allows thosebetter suited to deal with a problem (the more local, the
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better suited in some cases), MoA reinforces the sense of
HR being rooted in a community of reference (which is
also a community of interpretation), dynamic in time, and aproduct of a constant interaction between rights and ideas
about society and justice.
l.
*The idea of the MoA is not universally accepted beyondthe European context.4. Reservationsdefined in Article 2 VCLT as a unilateral
statement, however phrased or named, made by a State, when
signing, ratifying, accepting, approving, or acceding to a Treaty,whereby it purports to exclude or to modify the legal effect of
certain provisions of the Treaty in their application to the State.
(**Look at Vienna Convention)
a. Aim of reservation is to limit a states obligations under aparticular treaty.
b. International law is not formalistic about what constitutes a
reservation: it doesnt matter whether a state presents it as ageneral political statement or a declaration of
interpretation.
i. If the result is exclusion or modification of the legal
effect of certain provisions, it will be considered areservation.
c. A typical reservation is one whereby a state purports to
interpret an internationally protected right only inaccordance with its domestic, often constitutional or
religious law.
d. Essentially, its a way in which States may modify their
obligations under IHR treaties (by entering reservations)e.
States may want to enter reservations to HR treaties for a
number of reasons...
i. A state may generally be committed to HR but haveproblems with one particular provision, and
therefore want to exclude or limit the application of
that provision in order to be able to become a partyto the treaty.
ii. May also want to inject a certain cultural
understanding of a particular obligation, or guard
against an expansive interpretation by IHR bodiesby preempting the meaning of a particular
provision.
iii. States may know in advance that part of their
domestic law is incompatible with a provision of atreaty and seek some temporary accommodation.
1. May be encouraged by HR lawyers, if only
to encourage states to ratify treaties.
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f. Critique:Problematic for IHR law and maybe even more
so for general international law. (HR supervisory bodies
have frequently deplored the abundance and scope ofreservations, and urged states to repeal themdifferent
from ordinary international treaties where few bodies are
authorized or would see fit to criticize a practice that islargely seen as within a states prerogativein fact, IHRlaw has evolved specific notions of what reservations are
permissible who may decide on their permissibility, and
what consequences flow from reservations).i. Human rights are clearly more of a package than
most international normative instruments. Tension
between idea of HR and notion that a state may,
through reservations, pick and choose obligations towhich it wishes to be bound or interpret them as it
so wishes, at the risk of emptying some of their
context.1.
It is the very universality of HR and the
whole point of IHR treaties, which is
threatened if states dont agree to honor the
same rights.2. Also a sense that some states may free
ride HR treaties, by obtaining the benefits
broadly associated with being a party tothem, whilst subscribing only to an
eviscerated set of obligations.
ii. Also create problems of legal certainty, making it
difficult for individuals to ascertain the exact scopeof the rights they have been guaranteed.
iii. **** CUT THIS PART DOWNTAKE FROM
NOT AS GOOD AS OTHER.DOC OUTLINEg. Permissibility: General regime under Article 19 VCLT is
that states may formulate
i. General Comment 24: very existence of thiscomment indicates how seriously the UN treaty
monitoring bodies takes the issue (in regards to
reservations to ICCPR).
ii. HRC specifically excludes a number of reservationswhich it considers would be incompatible per se
with object and purpose of HR treaties (such as
violating preemptory norms, customary
international law, or non-derogable norms).1. States may not make reservations relating to
certain basic guarantees associated with
rights protected, such as right to effectiveremedy (defined as supportive guarantees,
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these provisions are seen to provide the
necessary framework for securing the rights
in the Covenant (ICCPR) and are thusessential to its object or purpose.)
2. States cannot make reservations to
institutional arrangements designed tosupervise the implementation of treaties.(Example: a state cannot become a party to
one of the universal HR treaties and make a
reservation to the effect that it does notconsider itself bound by the obligation to
submit periodic reports to its corresponding
supervisory body).
3. Cant have reservations that are too vague orbroad for it to be possible to determine their
exact meaning and scope.
iii.
This leaves VERY FEW areas where reservationsmight be valid.
h. Responsibility for Assessment: The particular interest that
the international community has in the integrity of HR
treaties necessitates that reservations fall under a strongsystem of international supervision.
i. *Reservations do not have to be accepted by all states for a
HR treaty to enter into force.j. *Under general international law, position is that the
reserving state becomes bound by treaty if at least one other
state accepts the reservationin context of treaties of a
humanitarian or HR character though, ICJ has held thatstates can in fact become party to a treaty even if other state
parties object to its reservations.
5. Limitations and Derogationsa. Limitations ---> some treaty provisions explicitly provide
circumstances in which the enjoyment of a right may be
limitedi. Have to be justified by the fact that they are:
1. Prescribed by law
2. Pursue a legitimate aim
3. Necessary in democratic societyb. Derogations ---> states have possibility of derogating from
obligations in a time of emergency justifying exceptional
measures. (**Temporal and Spacial)
i. Permits states to suspend obligations under thecovenant in situation of emergency threatening the
very life of the state.
ii. Discussed in Article 4 ICCPR (refer to other outlineon the Treaties/Articles)
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1. *GET THIS FROMALSTONFALL06.DOC OUTLINE
6. WithdrawalAllowed under certain conditions and known asdenunciation
a. Some IHR instruments contain denunciation clauses.
b.
Straightforward withdrawal is very rare though.c. Withdrawal from a HR treaty is likely to be seen as anadmission that a state is up to no good.
i. Only 2 states have availed themselves successfully
of possibility of denouncement of a HR treaty;Greece (denounced ECHR following a military
coup); and Trinidad and Tobago (denounced both
Optional Protocol to ICCPR and ACHR as a result
of wanting to proceed in execution of death penaltywithout oversight of the Inter-American
Commission).
1.
In both cases, the denunciation would nothave had retroactive effect and, therefore,
these states could not escape liability for
violations committed prior to withdrawal.
d. For HR treaties that dont explicitly allow for denunciation,there is a view that denunciation is simply NOT an option.
e. In contrast to normal international law treaties, rights once
recognized (rather than granted) cannot subsequently bewithdrawn. Suggests a stickiness to IHR commitments,
which cannot be undone even when states desire to do so
formally.
4. SCOPE OF OBLIGATIONS AND THE HOHFELDIAN MODEL
a.
Scope of Obligationsi. Who Has Human Rights?Generally those within a states JD are
generally recognized as a person with HR under IHR law.1. Non-Nationals
a. Dont have to be a national of a state in order to be able to
claim HR against that state.i. Rights of political participation though may
legitimately be restricted to citizens (like voting).
ii. Similarly, non-citizens dont have the same rights to
enter or remain in a state as nationals (though thatdoesnt mean that states have absolute right under
IHR to expel them).
1. Due to special vulnerability to deportation,
non-nationals have unique procedural rightswith regard to deportation.
2. The Unborn
a. ACHR says life beginning at conception while ECHR havefound that a fetus is not a person protected by the right to
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life, and in any case, its right would not automatically
override the rights and interests of its mother.
i. European HR bodies have found complaintsbrought on behalf of a fetus to be inadmissible.
ii. Declined to decide whether the right to respect for
private and family life extends to unborn children.3. Artificial Entities (Corporations & Associations)a. Have standing to make claims on their own behalf before
European Court of HR.
b. UN HR treaties generally protect only individual rights.Though some rights can clearly be enjoyed in conjunction
with other people such as the freedom of association or
minority rightsonly collective right recognized in global
treaty system is that of self-determination.c. Corporations and other artificial entities dont have rights
under the UN treaties, though can organization can submit
a complaint under the Convention on Elimination of AllForms of Racial Discrimination as the representative of a
group of individuals.
i. Inter-American system concerned with rights of
individuals, though complains may be submitted inrespect of those rights by others, such as
corporations or other artificial entities.
d. *Keep in mind that restrictions on rights of corporationsmay inevitably impact severely on the rights of a person
such as a director or shareholder such that the person can
bring a claim of abuse of his or her own rights.
ii. For Which Entities is a State Responsible?1.
Private ActorsState responsible for private actors if that actor is
acting in a governmental capacity, or under its direction and
control, or where it adopts a persons actions as its own.a. Such situations might arise when private contractors carry
out governmental functions, for example.
b. Application of HR within private sphere is now wellrecognized in IHR law.
i. *General Comment 31
2. International OrganizationsA state, which is a member of an
international organization, is not per se responsible for the actionsof that organization under IHR law.
3.
Other Statesa state is responsible for its acts which expose a
person to a real risk of violation of their rights by another state
where that breach was reasonably foreseeable at the time of therelevant act (e.g. deportation when reasonable to believe that
deportation would cause a risk of killing or torture to the person).
iii. Where Do Human Rights Apply?
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1. ECHRNo territorial limit expressed in Article 1 of ECHR +
extraterritorial application of ECHR in certain circumstances
confirmed in a number of cases.2. ACHRArticle 1(1) ACHR requires states to respect and ensure
the rights to all persons subject to their jurisdiction, so as with
ECHR, no territorial limit expressed.3. African Charter on Human and Peoples Rightseffective controlexercised in an extraterritorial context.
4. ICCPRUN treaties logically unaffected by any legal space
argument, given their global reach.a. Article 2(1) requires to respect and ensure ICCPR rights to
all individuals within its territories and subject to its
jurisdiction (thus arguably limits responsibility to a states
territoriy).5. ICESCRExtraterritorial scope of ICESCR is more open to debate
due to current lack of case law under the treaty.
a.
Doesnt contain a provision relating to jurisdiction orterritorial scope.
b. Article 2(1) does mention that states must progressively
realize ICESCR rights through steps taken individually and
through international assistance and cooperation ---> seemsto imply that states should at least refrain from actions
which harm those rights abroad, as such measures are
decidedly non-cooperative.
b. A Hohfeldian Perspectivei. Famous for exposing ambiguity in concept of a right and resolving that
ambiguity with a typology of rights that distinguishes between claims,
liberties, authorities, and immunities.ii.
Hohfeld distinguished different types of rights.
1. Claim rights for example create corresponding obligations.
a. Thus my right to exclusive use of my land entails acorresponding duty of noninterference..you have duty not
to enter upon my land.
2. But property right also entails liberty to use land in a wide varietyof ways (building a house, plant a garden, etc)
a. Correlated to that liberty is a correlative absence of
inconsistent claim rights.
i. You have no right to prevent me from building ahouse or planting a garden.
3.
Some legal rights involve powers over others (employer has right
to control and direct employee actions at work and parents have
authority over their children)4. Immunities from authority - when children reach age of majority or
are legal emancipated, they acquire immunities that disable the
authority rights of their parents for example.iii. Implicit in this discussion is Hohfelds second big idea - which is that each
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kind of right (claim liberty authority and immunity) has a correlative legal
consequence for others.
1. Claim rights have correlative legal duties.2. Liberty rights correlate with an absence of claims.
3. Authority rights correlate with liabilities.
4.
Immunities correlate with absence of authority.c. Four Types of Rightsi. Lists the schema rights and legal consequences. P is party with right, Q is
person or group on whom the right has a legal effect, X is the object of the
right.
1. Claim Rightsa. Rights Relation: P has claim against Q to X.
b. Correlative Relation: Q has a duty to P to X.
2. Liberty Rightsa. Rights Relation: P has a liberty against Q to X.
b. Correlative Relation: Q has no claim against P to not-X.
3.
Authority Rightsa.
Rights Relation: P has authority over Q to X.
b. Correlative Relation: Q has a liability to P to X.
4. Immunity Rightsa. Rights Relation: P has an immunity against Q to X.b. Correlative Relation: Q has a disability (no authority)
against P to not-X.
d. Moral and Legal Rightsi. Hohfeld was interested in legalrights, but we can extend his scheme to
moral rights.
ii. If I have a moral claim right to performance of a promise, you have
corresponding moral duty to perform.iii.
Of course many legal rights are identical to (or substantially the same as)
similar moral rights.
1. Contract, for example, create both moral and legal obligation.2. Some moral rights, however, may not be reflected in the law.
a. Example: I may have moral obligation not to discriminate
on the basis of race when letting someone in my home, butat the same time have a legal liberty right to engage in such
discrimination.
5. PRINCIPAL SUBSTANTIVE RIGHTSa.
Categories of Rights and the Principle of Equality, and Non-Discrimination
i. Categories of Rights1.
Economic, Social, Cultural Rights/Civil, Political Rights
a. Economic/Social/Cultural include rights to adequate
standard of living, education, and work.b. Civil/Political include freedoms of thought, expression,
association, and assembly, and the rights to liberty and a
fair trial.
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c. Differences seen between ICCPR and ICESCR reflect the
differences in rights.
i. ICESCR Article 2 provides for theprogressive
realizationof these rights and acknowledges the
constraints due to limits of available resources
ii.
ICCPR Article 2 prescribes the obligation to respectand ensure these rights as an immediateobligation.iii. Distinguish by contrasting concept of freedom
rights with that of welfare rights or by referring to
duties of the state NOT to intervene as opposed toduties to take POSITIVE measures. (doesnt apply
across the board though, and no strict dividing line
between these two types of rights)
1. The economic/social/cultural rights aresometimes seen as aspirations and are
considered much less part of the HR
package.a.
This is changing over time to
become more accepting and pursuant
regarding ensuring these
economic/social/political rights toindividuals in a IHR law context.
2. Rights of Individuals/Rights of Collectives
a. Focus normally is on individuals. Although they may worktogether and become a group, it is the individual who is the
beneficiary of the rights.
3. One-Dimensional/Composite Rights
a. More complex in nature (like right to self-determinationand development, and right to peace) than other rights
like to a fair trial, or expression.
i. These arent rights inherent in the human person.Their realization depends on
political/economic/social, and cultural policies
deployed by national and international organs andinstitutions.
1. These rights dont lend themselves to
enforcement by legal authorities.
a. Gross violations of these rightsthough may incur state responsibility
as well as civil responsibility of other
major actors, if they amount to
aggression, genocide, or crimesagainst humanity, even criminal
responsibility of natural persons.
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i. May be tested in political or
judicial settings in case of
their breach or gross denial.ii. These rights are interrelated and intersected.
iii. Indirect Protection of Economic, Social, and Cultural Rights Through
Civil and Political Rights1. Invoked civil and political rights ----> protected ECSR2. Right to life ---> rights to health/food/water/education
3. Freedom from torture/degrading trtment --> right to health/housing
4. Right to property ---> right to social sec/housing/land of indig.ppl5. Protection of child ---> rights to health/food/education
6. Freedom of mvmnt/residence ---> rght to housing/land of indig.ppl
7. Freedom of assoc. ---> right to form/join trade unions + collec barg
8. Freedom from forced labor ---> right to work/fair conditions
iv. Core Rights1. Certain HR more important than others.
2.
Reflected in ICCPR, ECHR, and ACHR, which suggests certainset of core rights exist from which no derogation is permitted, not
even during times of emergency. (ICCPR ones listed below)
a. Right to life
b. Prohibition of torture or cruel, inhuman, or degradingtreatment or punishment
c. Prohibition of slavery
d. Prohibition of imprisonment because of inability to fulfill acontractual obligation
e. Principle of legality in criminal law
f. Recognition of everyone as a person before the law
g. Freedom of though, conscience, and religion3.
With development of international criminal law, there is duty upon
states to carry out effective and prompt investigation and to
prosecute and punish perpetrators, as well as providing effectiveremedies to victims, including reparation for harm suffered.
a. Case law makes it clear that when core rights are violated
or at stake, urgent preventive action by way of provisionalor interim measures is called for in order to avoid
irreparable harm to persons.
v. Equality and Non-Discrimination1. Difference Between Formal and Substantive Equality
a. In many contexts, formal equality hasnt helped people in
disadvantaged situations.
b. Push towards an adoption of substantive equality which
takes into consideration plurality, difference, disadvantage,and discrimination.
c. Genuine equality between women and men can only be
achieved if both formal and substantive equality are fullyrealized.
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d. The focus on equality as consistency (formal) has many
problems:
i. Since it is not concerned with outcome, it doesntmatter whether two parties are treated equally well
or equally badly. (e.g. OK for a city closing all its
swimming pools rather than open its whites onlypools to black people).ii. Inconsistent treatment can only be demonstrated if
the complainant can find a comparably situated
person who has been treated more favorably.1. For a woman in a low paying position
though it may be hard to find a man doing
the same job.
iii. Treating people apparently consistently regardlessof their differing backgrounds may have a disparate
impact on particular groups.
e.
Focus should be on equal outcomes or equal benefits.f.
2 main variants of substantive equality: 1) equality of
opportunity; and 2) equality of results
i. According to 1 ---> true equality can only be
achieved if people are not only treated equally butalso given the same opportunities.
ii. According to 2 ---> equality of results goes further
than this and aims to achieve an equal distributionof social goods such as education, employment,
healthcare, and political representation. Recognizes
that removing barriers does not guarantee that
disadvantaged groups will in fact be able to takeadvantage of available opportunities.
g. These differing conceptions of equality find their reflection
in different forms of regulation.i. Formal = conceptual basis of the requirement of
equality before the law and prohibition of direct
discriminationii. Substantive = prohibition of indirect discrimination.
2. Equality and Non-Discrimination in International Law
a. Foundational significance of equality is reflected in the fact
that it is proclaimed in the very first article of the UDHR ---> all human beings are born free and equal in dignity and
rights.
b. Sources:
i. ICCPRii. ICESCR
iii. ICERD
iv. CEDAWv. CRPD
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vi. CRC
vii. ICRMW
c. The only international HR treaties without explicit non-discrimination clauses are:
i. UNCAT
ii.
CPED3. Subordinate v Autonomous Normsa. Subordinate norms are non-discrimination provisions only
in the enjoyment of rights and freedoms otherwise set forth
in the respective instrument.b. Autonomous norms guarantee non-discrimination not only
in the context of other rights but in general.
4. Prohibited Grounds of Distinction
a. Obvious ones like gender, race, etcbut grounds such asmembership of a particular group, holding certain beliefs,
and national or social origin are outlawed by most human
rights treaties.i.
What is seen as unacceptable though can change
over time.
1. Discrimination may be
intersectionalbased on a combination ofcharacteristics that form an individuals
identity rather than a single ground.
b. Equality and non-discrimination norms vary widely in theirapproach to defining the prohibited grounds of distinction.
i. A first type of norm provides for ageneral
guarantee of equality, without specifying any
particular prohibited grounds.ii.
A second category of norms uses a diametrically
opposed approach; these norms contain an
exhaustive listof prohibited grounds.iii. A third category (middle ground) which contain a
list of prohibited grounds but one that is open-
ended. (e.g. prohibited on anygroundsuch as____)1. As a consequence, even distinctions made
on grounds that are not explicitly listed may
engage these provisions.
2. ECHR sometimes does not even find itnecessary to state the particular ground of
distinction involved when considering a case
under Article 14 ECHR.
5. Direct and Indirect Discriminationa. Direct Discriminationmeans that a person is treated less
favorably than another in a comparable situation.
i. In other words, when a person on account of one ormore of the prohibited ground, is treated less
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favorably than someone else in a comparable
circumstance.
ii. The complaint must show, first, that others havebeen treated better because they do not share the
relevant characteristic or status, and second, that
these others are in a comparable, or analogous, orrelevantly similar, situation.1. In practice, IHR bodies often ten to merge
the comparability test with the test for
whether there is an objective justification forthe difference in treatment.
a. Example of DD: members of a
certain ethnic group are denied
access to a public facility, such as aswimming pool, which is open to
everyone else. (most of the time
though, it happens covertly in thatthe discriminating party will not
admit that the difference in treatment
was based on a prohibited ground,
thus making it difficult for thecomplainant to provide sufficient
evidencealso hard to identify a
person in a comparable situationsometimes).
b. Indirect Discriminationmeans that an apparently neutral
provision or practice de facto disadvantages one
person/group compared to others.i.
Includes practices or policies that appear to be
neutral or fair but adversely affect a higher
proportion of people of one specific group. It canoccur even when there is no intention to
discriminate.
ii. In other words, occurs when a practice, rule, orrequirement that is outwardly neutral(not based
on one of the prohibited grounds of distinction) has
a disproportionate impact on particular groups
defined by reference to one of these grounds.1. Thus, although there is no difference in
treatment, due to structural biases, treating
unequals equally lends to unequal results.
6. Discriminatory Intentiona. In some legal systems, such as USA, complainants need to
show a discrimination intention or purpose to establish
discrimination. There is no such requirement under IHR
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law; the reason why someone has been treated less
favorably is irrelevant.
b. That both intended and unintended discrimination areprohibited under IHR law is apparent from the explicit
definitions of discrimination contained in some of the HR
treaties.i. Indirect discrimination is often equated withunintended discrimination.
ii. Conversely, normally assumed that where there is
direct discrimination, there is a discriminatoryintention.
1. Although true that these concepts often
correlate, not always the case. (like when
you discriminate to protectwhile neutralcriteria may amount to intended indirect
discrimination).
7.
Justified and Unjustified Distinctions (The Justification Test)a.
Once a discriminatory effect is proven, the burden switches
to the State to justify its policy by proving that it is
necessary to achieve a legitimate aim.
i. In cases of racial discrimination, justification mustbe interpreted as strictly as possible.
b. Two part test, requiring that any difference in treatment
must:i. Pursue a legitimate aim
ii. Be proportionate
c. The test is very similar to the test used in the context of
other rights to assess the permissibility of limitations.d.
Has been adopted by most other HR bodies (created by
European Court).
e. First part of the test is not very hard for states to meet --->most distinctions can be argued to pursue some aim that
qualifies as legitimate (e.g. the protection of public order or
tailoring education system to childrens differing learningcapabilities).
f. Second part is more difficult to satisfy ---> wide range of
factors need to be considered including suitability of
distinction to achieve aim pursued, availability ofalternative means, question of whether disadvantage
suffered by the affected individuals or groups is excessive
in relation to the aim.
i. While this assessment inevitably turns on specificfacts of a case, IHR bodies have been consistent in
their characterization of certain reasons as not
sufficient to justify differential treatment including,among others:
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1. Mere administrative inconvenience
2. Existence of a longstanding tradition
3. Prevailing views in society4. Stereotypes
5. Convictions of the local population
8.
Standard of Reviewa. The stringency with which HR courts or bodies reviewexistence of a justification varies according to a number of
factors.
i. Certain grounds of distinction generally regarded asinherently suspect and therefore require particularly
strict scrutiny.
ii. Grounds attracting highest degree of attention and
most likely to be declared unjustified are: race,ethnicity, sex, and religion (all suspect
classifications).
1.
Any distinction based on one of the groundsexplicitly listed in Article 26 of the ICCPR
(above) places a heavy burden on State to
explain the reason for the differentiation, but
that does NOT seem to mean thatdifferential treatment on grounds other than
race, sex, and religion are subject to the
same intense scrutiny.2. Any distinctions based on nationality,
illegitimacy, and more generally,
membership of any particularly vulnerable
group in society that has sufferedconsiderable discrimination in the past (like
those with HIV or disabilities) should be
treated as inherently suspect.iii. These lists are not fixed and can changeas
international law on these matters develops
(disability, sexual orientation and age seem to beheading in the direction of being classified as
suspect).
iv. Apart from ground of distinction, intensity of
review may also depend on other factors (mostcourts tend to apply a lenient standard as far as
matters of social or economic policy are concerned
whereas classifications affecting fundamental
individual interests entail particularly strictscrutiny).
1. Furthermore, generally more difficult for
states to justify direct rather than indirectdiscrimination.
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a. *Declaration of Principles on
Equality (an important but non-
binding document signed bynumerous HR and equality experts)
states that direct discrimination may
be permitted only veryexceptionally.9. Evidence and Proof
a. According to established HR jurisprudence, it is up to the
individual complaining of discrimination to establish adifference in treatment or outcome, the ground of
distinction, and the existence of comparably situated
groups. Having done so, the burden of proof shifts to the
state to show that there is a justification for the distinction.b. Complainants may find it very difficult to prove that a
neutral measure has a disproportionate impact on particular
groups ---> therefore, ECHR has held that less strictevidentiary rules should apply in these cases: statistics
which appear on critical examination to be reliable and
significant may be sufficient prima facie evidence of
indirect discrimination.10.Positive Action
a. As with any other HR, right to equality and non-
discrimination entails state obligations of different types.i. Obligation to respectrequires states to refrain from
any discriminatory action and to ensure that all their
laws and practices comply with the right to non-
discrimination (according to jurisprudence of theUN treaty bodies, this means that states must
introduce comprehensive legislation prohibiting
discrimination in fields such as employment,education, healthcare, housing, and the provision of
goods and services.
1. Conclusion supported by various provisionsin the respective HR treaties themselves.
b. An exclusively prohibitory approach is severely limited in
that it focuses on discrimination understood as individual,
isolated events that can be remedied through penalizing theperpetrators and compensating the victims (even though
discrimination is often the consequence of deeply
embedded patterns of disadvantage and exclusion that can
only be addressed through changes to social andinstitutional structures).
i. Accordingly, it is now well established in IHR law
that it is not sufficient for states to have anti-discrimination legislation in placeinstead they
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also have an obligation to promote, guarantee, and
secure quality by taking proactive steps to eliminate
structural patterns of disadvantage and to furthersocial inclusion ---> this obligation is often referred
to as the duty to take positive action, covers a
huge variety of legislative, administrative, andpolicy measures, ranging from restructuring ofinstitutions to the provision of reasonable
accommodation for individuals in particular
circumstances, from educational campaigns to theuse of public procurement to promote equality, and
from the mainstreaming of equality issues in
public policy to encouraging participating of
affected groups in relevant decision-makingprocesses.
c. Important aspect of positive action = affirmative action
programs (in international law called special measures ofprotection) ---> aimed at specifically correcting position of
members of a target group in one or more aspects of their
social life, in order to obtain effective equality.
i. Usually includes preferential treatment of membersof a previously disadvantaged group over others in
the allocation of jobs, university places, and other
benefits (often referred to as positive or reversediscrimination).
b. Civil and Political Rights: Principal Legal Instrument: ICCPR
c. Integrity of the Person
i. Respect for Human Dignity
1.
Respect for human dignity is the one explicit underlying principle
of the International Bill of Human Rights. Invoked in UDHR,
ICESCR, and ICCPR.
2. The prohibition of torture and ill-treatment and the right to life
both have an immediate link to the principle of human dignity.
ii. The Right to Integrity of the Person
1. The prohibition of torture and ill-treatment and the right to life are
at the core of the motion of integrity of the person.a. Article 5 ACHR, for example, guarantees the right to
human treatment, providing in its first paragraph everyperson has the right to have his physical, mental, and moral
integrity respected.b. The link between the right to humane treatment and
personal integrity is established.
i. Same is true for the link between the right to life
and integrity of the person.
1. Thus, Article 4 ACHPR says the right ofevery human being to respect for his life
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and the integrity of his person. (Herethis
link is essential)
iii. Freedom from Torture and Ill-Treatment
1. UDHR Article 5 discusses this.
2. Verbally inspired by the prohibition of cruel and unusual
punishments in the English and American Bill of Rights3. The reason for this being introduced was the Nazis use of torture.
a. Related concerns included the use of harmful and painful
medical experiments, such as those conducted by the Dr.
Mengele.
b. Expansive, non-technical language of the prohibition
displays the breadth of concern.4. After being included in UDHR, found its way uncontroversially, in
almost identical language, to the ICCPR and the principal regionaltreaties.
5. That the use of torture may not have been such an aberration
became clear in the 1970s when Amnesty International published areport documenting the practice of torture in many countries from
all regions around the world and led a campaign on the issue.a. UN responded first in standard setting, then in area of
developing an institutional response.
i. Also activity at the regional level to the same effect.6. Institutional Output includes: UN Special Rapporteur on the
question of torture, the establishment of the Committee againstTorture under the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (UNCAT), and a
Sub-Committee on the Prevention of Torture created by the
Optional Protocol to UNCAT (UNCAT-OP)
7.
Sourcesa. ECHR, ICCPR, ACHR, ACHPR, UNCAT, Key UN soft
law (page 176).
b. Also treaty provisions in field of international humanitarian
law that prohibit torture, cruel treatment, inhuman
treatment, and humiliating and degrading treatment.
i. As with HR treaties, terms are undefined.
c. International Criminal Law also covers, among other
aspects, crimes against humanity and war crimes.
i. Torture and other forms of ill-treatment mayamount to war crimes.
d.
Case law of International Criminal Tribunal for the former
Yugoslavia and Rwanda, also provide helpful guidance in
determining the normative content of the right to be freefrom torture and ill-treatment.
e. Rome Statute of the International Criminal Court (ICC
Statute) has both codified crimes against humanity and war
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crimes and provided definitions for some components,
including torture.8. Legal Status
a. This is a norm of contemporary international law.
i. Rule is stated in absolute terms.
ii.
No exceptions to this prohibition and non-derogable(not even the ticking time bomb situation) even intime of war or public emergency.
iii. States do not claim a right to torture.
b. It is a rule ofjus cogensand cannot be modified or limitedby treaty.
c. All that remains unsettled is whether the prohibition of
other forms of ill-treatment have the same status.
i. American Restatement doesnt distinguish and mostof the other sources cited focus on torture, without
necessarily excluding other forms of ill-treatment.
9.
Componentsa.
Drafted broadly so as to avoid narrow or technical
interpretations.b. Cases dealing with prisoners began breaking down the
prohibition into its components.
c. Definition of torture and cruel, inhuman, and degrading
treatment or punishment
i. 3 Core Elements:
1. Pain or suffering that must be severe; it may
be physical or mentala. No requirement for aggravation of
pain or suffering.
i.
*Court continues to
distinguish between inhuman
treatment and torture. Littleguidance as to criteria for
inhuman treatment.2. It must be inflicted for a certain kind of
purpose, that is, the sort of public purpose
traditionally associated with torture; anda. The purpose is the only
distinguishing element betweentorture and inhuman (or cruel)
treatment.b. *Article 7 ICC does not have the
purposive element and definestorture as a crime against humanity
(probably explained because crimes
against humanity can be committedby unofficial groups and thus the
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attribution of motivation becomes
more difficult than in respect of
states or other official constitutedbodies).
i. Also limited to persons in
custody or under control ofaccused thus implicitlyassigning some public
purposive context.
3. It must be inflicted by or under the aegis ofpublic officialdom.
a. Not found in ICC related definitions
(as crimes against humanity arent
necessarily committed by publicofficials in the sense of state
officialsa party to an armed
conflict may well not be the state).i.
However, it must have
sufficient elements of
organization such as to
endow it the status of a partyto an armed conflict within
the meaning of international
humanitarian law.
ii. Similarly, a crime against
humanity must also be
committed in the context of
an attack against a civilianpopulation.
iii. *This institutional element
should be seen as substitutingfor the public official
requirement, as is the case in
respect to war crimes.
d. Specific Practices
i. Like explicit and implicit threats of torture and
death in circumstances where threats were credible.
ii. Any treatment that would amount to torture but wasnot inflicted for a public purpose.
1.
Unnecessary use of handcuffs and restraints
may amount to prohibited ill-treatment, as
can unnecessary or oppressive stripsearching, and displaying an alleged terrorist
in prison garb
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iii. Those in detention at high riskbecause of things
like possibly having pertinent information that they
want to use torture to get out of you.
iv. Also not having access to lawyer or being able to
see outsiders like family. (investigative and remand
and post-conviction (condition of detention andnature of punishment) phases of detention all poserisks). (page 181) ---> each phase raises issues.
1. UN standard Minimum Rules for the
Treatment of Prisoners.
a. Extensive treaty body authority
finding various forms of corporal
punishment to violate the
prohibition.
10.Types of Obligations
a. Primarily a negative obligation. State required to
REFRAIN from engaging in practices concerned, eitherdirectly through its agents acts or indirectly by its agents
omissions when there is a duty to act. (latter dimension can
be understood as positive in that it arises to avoid the
circumvention of the rule by simply blaming acts on others,in circumstances in which the acts may well have been
committed with a nod and a wink from state authorities.
(because such collusion is hard to prove, other positiveobligations have been developed).
b. Where State has grounds to believe torture has taken place,
must initiate an effective investigation into the situation
i. Istanbul Principles
ii.
Also obligation to prosecute people (not just
prosecute when these facts of torture are brought
up).
iii. Cant grant amnesties to people responsible for
committing torture.c. Regardless of jurisdiction where torture took place, stats
required to submit for prosecution anyone in their jd
against whom there is sufficient evidence of having
committed torture.
i. This applies unless person is extradited to anotherstate wishing to exercise jurisdiction.
d.
Another positive obligation is to refrain from exposing
people to torture or ill-treatment by sending that person to a
country where he or she faces a real risk of treatment inviolation with the prohibition.
e. One factor that may be relevant in making any assessment
is the extent to which the state may be said to have an
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interest in the perpetration or continuation of the harm
suffered by the victims.
i. The less the interest, the higher may be thethreshold to attribute responsibility to the state.
11.Relationship With Other Human Rights
a.
Fair trial...cant get evidence by coercion from ill-treatmentor torture.
b. Libertyprovides essential guarantee against prohibited
ill-treatment.
c. Arbitrary detention may amount to a violation of of ill-treatment (if prolonged and under certain circumstances).
i. Can also bring up right to life in this case.d. Death and right to life.
iv. The Right to Life
1. Dealt with very early and summarily in UDHR (Article 3).
a. It is the first substantive right, after the Article 2
affirmation of the principle of non-discrimination.b.
It was not further developed partly because a lack of
consensus as to what issues it covers (notably the death
penalty).
2. Considered the supreme human right and the fountain fromwhich all human rights spring.
3. Treating giving effect to this arent couched in the same absolute
language as those prohibiting torture.
4. Typically states no one shall be arbitrarily deprived of life.
a. Warfare is most obvious example and killings committed
lawfully under IH law will not in principle be considered as
violating the right to life.
b.
Sometimes required to take life too, mainly to protect life
of others.
c. Death penalty creates problems for this.
5. Work to campaigns focus on specific situations, mainly death
penalty. Some soft law enacted mainly in law enforcement life
deprivation situations. UN Commission on HR in 1982 alsomandate of Special Rapporteur on extrajudicial, summary, and
arbitrary executions.6. Sources:
a. Article 6 ICCPR
b. Article 4 ACHR and ACHPR
c.
Article 2 ECHRi. All ^^ make provision for death penalty. Although
many of them have contemplated getting rid of thedeath penalty.
d. Soft Law Sources (including UN Basic Principles on Use
of Force and Firearms by Law Enforcement Officials, UNPrinciples on the Effective Prevention and Investigation of
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Extra-legal, Arbitrary, and Summary Executions, and UN
Social Councils Safeguards guaranteeing protection of the
rights of those facing the death penalty). (EOSOCSafeguards)
7. Legal Status:
a.
Customary International Law.b. Non-derogable in treaties that contemplate derogation.
c. Prohibitions against murder arejus cogensrule.
d. **Prohibition of unnecessary and disproportionate killings
deserves to fall into the same category.
8. Scope: Beginning and End of Life
a. Question is ---> when does life begin?i. Article 4 ACHRsince conception.
b. Euthanasia, and assisted suicide an issue too.
i. Article 2 ECHR --> no right to die explicit.
1. Yet there is issue of dignity and possible
degrading treatment if one is denied theoption.
a. European Court refused to accept
that denial of this right infringes
upon Article 3.
9. Componentsa. Protection against killings by security forces
i. Diff bodies use diff terms to describe unlawfulkillings by agents of authority (extra-legal or
extrajudicial)whenever there is intentional resort
to outright killings of those considered undesirable,
considered murder by any definition and is at thecore of the prohibition of arbitrary deprivation of
life.
ii. It is generally accepted that LE measures mustconform to the principles of necessity and
proportionality.
1. Article 2 ECHR creates some problems withthis.
2. Lethal force may be used to protect life
(seen in UN Basic Principles on Use of
Force and FirearmsPrinciple 9)
a. Practice of treaty bodies is consistent
with this ^^.b. Protection against death penalty
i. Although prohibition of torture and ill treatment, noconsensus on Death Penalty.
1. This reflects that IL is not a system that
operates by majority rule. State practice is akey element and as long as a substantial
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minority of states maintain the death
penalty, especially states as influential as
China, India, and USA --- international lawwill have to reflect that reality.
2. All the human rights treaty norms
guaranteeing the right to life, except Article4 ACHPR, contemplate the possibility of thedeath penalty.
a. Since any treaty provision has to be
interpreted in the context of thetreaty as a whole, means it is not
possible to interpret the provisions
on treatment of prisoners without
reference to those on the right to life.
b. The HRC has indeed made that point
that, but for the death penalty
provisions of Article 6 ICCPR, itwould find the death penalty to
violate Article 7.3. The fact that so many want to abolish,
makes it hard for the other parties to suggestits not a HR issue.
4. UN GA more recently adopted a view that
calls on states that retain the death penalty toadopt moratoria on its use.
5. As for abolitionist protocols themselves, all
but one envisage commitments that permit
states to carve out an exception for wartimesituations (few have done so).
a. The exception is Protocol 13 of the
ECHR, adopted to fill gap ofProtocol 6.
b. Adherence to Protocol 6 is a
condition of membership of theCouncil of Europe47 country area
of Europe is now essentially a death-
penalty-free-zone.
6. States who permit cantjust do it wheneverthey want and however they wantthere are
limitations.ii. Substantive Limitations
1. Article 6(2) ICCPR and Article 4(2) ACHR,requiring that imposition of the death
penalty be limited to the most serious
crimes.
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a. First paragraph of ECOSOC
Safeguards endorses the notion of
the most serious crimes.
2. There is no definitions of what elements
would place a crime among the most
serious.a. ECOSOC Safeguards are helpfulhere. Must be only for serious crimes
with lethal or other extremely grave
consequences.
3. Further substantive limitations come from
Article 6(2) and 15 ICCPR, which state that
both the crime and prescribed punishment
must not be retroactive (must be provided bylaw at the time of the commission of the acts
in question).
4.
Also Article 4(2) ACHRDP may not beextended to crimes to which it does not
presently apply. While Article 4(3) ACHR
prohibits reintroduction in states that have
abolished it.
a. Possible to interpret Article 6(2)
ICCPR in the same way.
b. Article 4(4) ACHR also prohibits useof DP for political offenses or
related common crimes.iii. Procedural Limitations
1. Main one is that DP may only be imposedafter a fair trial, including a right of appeal.
a. Article 6, 14, 15.
2. General assembly called on states to respectas a minimum thesearticles.
3. HRC has made clear its view that this means
that not only is Article 6 non-derogable, butalso 14 when it comes to application of the
death penalty.4. Right to appeal explicitly guaranteed in
Article 14(5) ICCPR, so this is a violation ofnot only that provision, but also Article 6.
5.
ECOSOC Safeguards contain the same
guarantee.
a. Article 6(4) ICCPR and Article 4(6)ACHR require the possibility of
submitting a clemency petition.
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6. Also, must be carried out with the minimum
possible suffering to the person so as not to
violate the prohibition of ill-treatment.
iv. Personal Limitations
1. Under various articles in various treaties,
may not be imposed upon persons under theage of 18 (190).
a. Counts at the time of the offense.
b. May not be carried out on pregnant
women or recent mothers either(according to ECOSOC Safeguards).
c. Also immunizes those who are
insane or mentally ill.
d. Also not anyone over 70 at the timeof the offense.
10.Types of Obligation
a.
This is primarily a negative obligationto the extent thatthere is no treaty obligation prohibiting the use of the DP,
states are simply obliged to refrain from having recourse to
it when not respecting the legal limitations that apply to it.
b. Other deprivations of life involving the intentional killingof people by public authorities are to be avoided, if they do
not meet the criteria of necessity or proportionality already
considered here.
i. Three provisions guaranteeing right to life stipulate
that the right shall be protected by law, which has
connotation of positive obligation.no, just says
that they need to investigate apparent unlawfulkillings.
c. Thus there have been numerous findings of state violations
of the right to life because of absence of an effectiveinvestigation, even when killing could not be found on the
evidence to be firmly attributable to the state.
d. As with prohibition of ill-treatment, exposing someone tothe threat of a violation of the right to life is itself a
violation of the prohibition or ill-treatment, as well as
presumably of the right to life.
e. Also evident obligation to protect people from death fromthird parties. (obligation of means not of result).
i.
Question is always whether state did their due
diligence when apprised of circumstances that may
suggest that a persons life required protection.
f. Also, if it is difficult to justify the rules permitting
euthanasia and assisted suicide, it is because of the positive
obligation on states to protect life and the need to avoid
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people being improperly influenced to seek or accept aid in
terminating their lives.11.Relationship with Other Human Rights
a. Prohibition of torture and ill-treatment.
b. Avoid unnecessary suffering (even for DP)
c.
Connection with right to fair trial.d. Notion of security of person.
d. Though, Expression and Assembly
i. The Four Freedoms and Their Relationship
1. Thought
a. Includes freedom of conscience, religion, or belief.
2. Expressiona. Includes freedom of opinion and information.
i. Media freedom is also protected by IHR law asessentially for the enjoyment of freedom of
expression.
3.
Associationa.
Concerns the right to establish autonomous organizations
through which individuals pursue common interests
together.
4. Assembly
a. Protects non-violent, organized, temporary gatherings in
public and private, both indoors and outdoors.
5. All of these are interrelated and fundamental freedoms ofindividuals.
6. Essential for the exercise of all other rights.7. None are absolute in the sense that their exercise may never be
restricted.
8.
IL provides grounds on which each freedom may be required to be
balanced against the rights of others or broader community
interests.
9. Also offers principles to safeguard against abuse of restrictions by
the state.10.Thus, freedom of expression is necessary if freedom of thought is
to be exercise.
a. In turn, freedom of expression has little meaning without
individual having freedom to think and have an opinion.
11.Right to practice or teach a religion includes the freedom topublish religious literature or broadcast religious programs.
a.
Thus in order for religion communities to exist, freedom of
association is essential as is their right to assemble for
religious purposes.12.Freedom of expression essential when people come together to
pursue their interests through other associations, such as trade
unions, political parties, or community groups.13.European Court of HR has defined one of the objections of the
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freedom of association as the protection of opinions and the
freedom to express them.
14.Freedom of expression is essential to the freedom to assemble andthe right to demonstrate over grievances.
a. Thus while each freedom is distinct in theory, in practice
they are all interrelated and interdependent.15.Denials of freedom often occur in context of discriminatorypolicies directed at particular groups or minorities (e.g. religious or
ethnic minorities).
16.Each freedom as defined in International Law, is expressed as afreedom of the individual but also a collective dimension.
17.Freedom of expression includes not only the right of a speaker to
communicate with others but the right of others to hear what the
speaker has to say.18.Be definition, freedom of association or assembly concerns the
collective activities of individuals.
ii.
Limitations1.
In summary, a society which enjoys the freedom under discussions
is not one in which there are NO restrictions on their exercise; it is
rather one in which the boundaries of freedom are openly debated
and democratically resolved under the rule of law.a. Limitations are discussed further as regards to each
freedom by some general principles applicable to all can be
set out here:i. Legality: any limitations on a freedom must be set
down or prescribed in law. A restriction cannot be
legitimate where it is the arbitrary whim of an
official. National law must set out the ground ofrestriction in clear and precise terms.
ii. Legitimate Aim: the interference or restriction
must follow and legitimate purpose, that is, bebased on one of the exhaustive ground of limitation
listed in the international standards which define the
freedom.iii. Proportionality: the restriction must be necessary
in the sense that there is a 'pressing social need for
it and that any measure taken is the minimum
required to achieve the purpose of the limitation in ademocratic society.
iv.
Presumption of Freedom:freedom is the rule, its
limitation the exception. In theSunday Times
Casewhich involved a claim of justified judicialrestriction on the publication of information by a
newspaper, the European Court of HR noted that
freedom of expression is not a right that is to bebalanced equally with the permissible restrictions. It
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is rather a right that is subject to a limited number
of restrictions that must be narrowly construed and
convincingly justified, ultimately to a court. Thusone should start with a strong presumption in favor
of the freedom in question. The onus is on the
authorities in the particular case to show that it islegitimate to restrict it.
iii. Freedom of Thought, Conscience, and Religion1. Found in all the treaty bodies.
2. The predominant focus is on freedom of religion, however, scopeof the right is wideralso protects freedom of thought (right of
individual to have independent thoughts, ideas, and beliefs).
3. Freedom of conscience also explicitly recognized and protected.
4. Duty on state to respect liberty of parents or guardians to child todetermine religious and moral education of their children in
conformity with their own convictions.
a.
This childs right to freedom of thought, conscience, andreligion is provided for in the Convention on the Rights of
the Child (CRC).
5. Freedom of Religion or Belief
a. Freedom to choose religion/belief
b. Freedom to change/beliefc. Freedom to choose these things free of coercion.
i. Freedom to spread it and seek to persuade others toconvert is protected though.
d. No requirement by IL that there should be separation
between religion and state.
i. EC of HR said though that in order for democracyto function probably, these need to be separate.
e.Limitationsinclude:
i. Freedom of thought/conscience/religion/or beliefmay never be compelled to be revealed (like the
requirement to swear a religious oath applies here)
ii. Manifestation of religious belief may be limited onthe grounds set out in ICCPR 18(3)public safety,
order, health, or morals or the fundamental rights
and freedoms of others.
1. Sometimes includes religious clothing andsymbols.
a.
Not limited to Islamic dress although
this is most pertinent issue.
6. Freedom of Opinion and Expression
a. Sources
i. This freedom is contained in Article 19 UDHR,
Article 19 and 20 ICCPR.
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1. Detailed and authoritative guidance on
states obligations under these provisions
can be found in the Human RightsCommittees General Comments 34.
2. Similar but not identical formulations of the
freedom can be found in regional HRinstruments.3. Also important provisions in the UN
Convention on the Elimination of Racial
Discrimination (ICERDArticle 4) whichconcerns the prohibition of racist speech and
organizations.
4. CRC recognizes a childs right to freedom
of expression.
a. Since 1993 there exists position of
Special Rapporteur on the promotion
and protection of the right tofreedom of opinion and expression,
who is now appointed by the HR
Council.
b. Scopei. Described as touchstone of all rights.
ii. Considered inseparable from freedom of thought,
association, and assembly, essential for enjoymentof all rights, including economic/social/cultural
rights.
1. Vital freedom for development, the
functioning of democracy, and moderneconomies.
iii. Article 19 UDHR provides foundation for fuller
definition of this freedom.
iv. Although this text was drafted over 60 years ago, it
powerfully expresses the idea of freedom of speech
in todays era of the internet and other digitalcommunications technologies.
v. Freedom of expression is an individual right.
1. Means freedom without interference or
penalty, to speak ones mind.
2. ^^It also has its collective components.a.
Humans communicate with others,
not with themselves.
i. Freedom includes right tohear other views and to
exchange ideas and
information with others.
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ii. Also includes right to inform
oneself and to be informed.
Hence the crucial importanceof all media as means of
communications.
3.
Freedom of OpinionArticle 19 ICCPRguarantees freedom of opinion as well asexpression. Humans have differing and vast
amounts of opinions on all kinds of subjects.
Article 19(1) provides that everyone isentitled to hold such views without
interference. No one can be forced to think a
particular way, nor should anyone suffer
prejudice, discrimination, or expressionbecause of their views or opinions. Freedom
to hold opinions may not be restricted. HR
Committee says it is a right to which theCovenant admits no exception or
restrictions. In other words, people may
think what they like.
4.Freedom of ExpressionArticle 19(2)ICCPR sets out positive meaning of freedom
of expression under international law. Scope
is extensive. Right defined as includingfreedom to seek, receive, and impart
information and ideas of all kinds. Freedom
to seek includes active and investigative
journalism in public interest. Freedom toreceive has been interpreted by the EC of
HR as including right of public to be
informed and duty of mass media to impartinformation to public. Freedom to impart
extends to every kind of information and
idea expressed through any media of choice,either orally, in writing or in print, or in
form of art. Freedom is applicable to all
information (those that are and arent
offensive). All forms of expression areprotected (includes spoken and written
language as well as art and images). Manner
in which they are transmitted is also
protected. In 2011 a Joint Declaration onFreedom of Expression and Internet was
adopted by UN Special Rapporteur on
freedom of expression and SpecialRapporteurs on freedom of expression from
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Organization of American States, the
Organization for Security and Cooperation
in Europe, and African Commission onHuman and Peoples Rights. Declaration
sets out that freedom of expression must
apply to the Internet same way it applies toother media. NO human to access theInternet (some argue though with its
increasing popularity States have positive
obligation to promote and facilitate right tofreedom of expression by way of access to
Internet). Freedom of expression doesnt
stop at borders of the state (this was
intended to outlaw forms of censorship suchas Cold War practice of radio jamming of
foreign broadcast signalsso completely
blocking access to Internet during times ofsocial unrest, constitutes interference with
the right).
5. Media FreedomNo explicit recognition or
protection offered to the press and othermedia in international HR standards,
although such is often to be found in
national laws and constitutions. Atinternational level, freedoms and
responsibilities of press have been
developed from guarantee of freedom of
expression of individual. Protection affordedunder HR standards to all media is justified
because of role in making peoples freedom
of expression meaningful and theircontribution to democratic life (all such
means of communication provide access to
news and opportunities to exchangeinformation and ideas). International and
national standards on freedom of expression
have largely been shaped by struggle for
journalistic and artistic independence againstgovernment licensing and censorship of
media (this struggle continues in different
parts of the world). Media freedom is
inseparable in practice from enjoyment offreedom of expression in society (media has
watchdog role on exercise of power in
society, and free media facilitates politicaldebate). States therefore must protect
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journalists from threats, violence, or other
acts of harassment that stop them from
fulfilling this essential role. HR bodiesadopted expansive definition of term
journalists (including bloggers,
professional full-time reporters, etc).Media is also source of power, includingeconomic power. International standards
speak of medias duties and responsibitilies
(regulation is necessary to ensuredemocratic accountability and to guard
against excessive concentration of
ownershipregulatory regimes, whether
self regulated or established by legislation,will differ according to different media.
Thus, public, private, or community
broadcasting systems and the print mediawill often be subject to different regulatory
codes (but all such regulatory systems
should protect editorial freedom, promote
plurality of the media, and operateindependent of government).
6. Freedom of Information LawsMost
striking advance in norms on freedom overrecent years have been growth of laws
implementing right to access official
information held by governments.
Democracies have come to understand thattransparency affords governments and
public administration legitimacy in eyes of
public. In all regions of the world,governments have established the right to
know through legislation. An access to
information law works on principle ofmaximum disclosure, all official information
should be made public as a matter of
principle, unless there are legitimate reasons
justifying non-disclosure. In 2009, Councilof Europe adopted first international treaty
on access to official documents. *CASE
mentioned page 228.
c. Limitationsif people may think what they like, they maynot always say or write what they like. As opposed to
freedom of opinion, freedom of expression is not an
absolute right. Under Article 19(3) ICCPR its exercisecarries with it special duties and responsibilities (such
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language acknowledges power of media, but also
justification of restriction where it is necessary to respect
rights or reputation of others, and where it is necessary ongrounds of national security, public order, public health, or
morals). If restrictions are applied wrongly or excessively
invoked, they can chill freedom or even eliminate it (thusground such as national security, in the context of counter-terrorism is often misapplied or abused to the detriment of
freedom of expression).
i. Privacymay clash with freedom of expression.While public figures such as politicians and popular
celebrities do have right to private life, it is les
extensive given that they are willingly in the public
arena. Therefore, when considering whether correctbalance has been struck between freedom of
expression and privacy, regard should be had to the
following issues: 1) whether the expressioncontributes to debate of general interest; 2) how
well-known person concerned is; 3) nature of the
activities that are subject of report and how they
link to role of person concerned; 4) prior conduct ofperson concerned; 5) how information was obtained
and its veracity; 6) content, form, and consequences
of publication; 6) severity of sanctions imposed.ii. DefamationPublishing false statement about
another which damages their reputation is a civil
and often criminal wrong. These laws though which
impose liability for it, can and often do underminefreedom of media to fulfill their function of
informing public and to comment critically on
public affairs. Given importance of free media indemocracy, IHR standards have been directed at
ensuring that national laws on defamation are
applied as narrowly as possible as regards politicalspeech. Robust criticism of government or political
should be tolerated in interests of open debate on
political issues. Increasing trend towards abolition
of criminal penalties for defamatory statementsbased on argument that civil remedies such as
payment of damages is a sufficient sanction and
threat of criminal prosecution has chilling effect on
freedom of expression (this approach garneredsupport of Human Rights Committee).
d. Hate Speechthis presents challenge to all states. Internet
added global dimension to availability of propagandaadvocating violence or hatred of others. Article 20 ICCPR
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and Article 4 ICERD oblige states to criminalize speech
that amounts to war propaganda or that advocates racial
hatred. However, these limitations on expression must becompliant with Article 19*3) and thus be provided by law
and be least restrictive means of achieving the relevant aim.
Use of speech to incite violence is a criminal offense invirtually all states. But to strike acceptable balance betweenright to freedom of expression and restraint on other forms
of objectionable speech is in practice often very difficult.
i. Islamophobia and anti-SemitismIncitement toethic, racial, or religious hostility, hatred, and
discrimination is not protected speech. This and
holocaust denial (anti-Semitism and Islamic attacks)
is a criminal offense in several European states.Reporter said it, was charged, and HRC said this
was a justifiable interference with his freedom of
expression rights under Article 19 ICCPR becauseholocaust denial was a primary vehicle of anti-
Semitism in his State.
ii. BlasphemyCriticism of religion is highly
contested freedom of expression issue at theinternational level. GA and HR Council passed
resolutions (aided by Muslim majority states) to
restrict freedom of expression in order to suppressdefamation of religions. Others though, mostly
Western states, have rejected the need to protect
religious