International Bachelor of LAW Program 2018-2019
Human Rights Law Course Notes by 18024580 Page 1 of 17
Course notes
Lecture 1: Introduction to Human Rights Law
❖ Human Rights are the rights necessary to live a human(e) life (wide definition)
❖ Human Rights Law is the law that deals with the protection of all individuals (and groups) against
violations of their (inter)nationally guaranteed rights, and with the promotion of these rights.
▪ History of Intl Human Rights Protection
Humans from object to subject of Human Rights
✓ State to State Obligations to protect human rights
✓ State responsibility for injury to aliens
✓ Nationality is key, and statelessness a problem
Limitation state sovereignty by Treaties
- Internationalization of subjects otherwise not governed by international law
- After signing the treaty, neither government can claim exclusive domestic jurisdiction
- Early treaties: Banning the slave trade (Paris, 1856), Christian minorities in the Ottoman Empire
(Berlin, 1878)
▪ Developments in Intl Law
Humanitarian Law
- Geneva convention 1854, 1949 and 1977 (ICRC)
The expansion of the scope of who needs protection in the field of war.
- Tribunals
o After WW II: Nuremberg and Tokyo
o Holding individuals responsible for human rights violations if the State is unable or unwilling.
o Doing justice for the victims
- Humanitarian intervention
o The lawful use of force to stop maltreatment by a state of its own nationals
▪ Currently decided by the UN Security Council
▪ Universal application
League of Nations (organisation from 1919 Treaty of Versailles)
o Art. 22 → Mandates system
A system that allows people to govern themselves under the mandate of the League of Nations
o Art. 23 → international labour standards and protection of Minorities
The League of Nations would act as guarantor.
United Nations (1945 – present)
o “[…] to save succeeding generations from the scourge of war […]“ – UN Charter Preamble.
o An individual has internationally guaranteed rights as an individual (human being) and not a national of
a particular state
o 1945 UN Charter, 1948 Universal Declaration of Human Rights, 1966 ICCPR and ICESCR, 1989 CRC
o Notion: democracy and the rule of law are a prerequisite for the effective protection of human rights.
, International Bachelor of LAW Program 2018-2019
Human Rights Law Course Notes by 18024580 Page 2 of 17
▪ Generations of Human Rights (1st, 2nd and 3rd)
1st – Civil and Political Rights | Civil and Political Rights Covenant
➢ Prohibition of Torture, Freedom of Speech, Right to Vote, Right to Protest
2nd – Economic, Social & Cultural Rights
These rights stem from the same era as the 1st Generation (1966) but it does not follow up on the
historical part of the 1st Generation.
➢ Right to Health, Right to Food, Right to Water, Right to Education
3rd – Group Rights
➢ Rights of Indigenous People: the right to live in your own culture
➢ Rights of Children, Rights of Women, Rights of Migrants: protection of the group
➢ Right to a clean environment
Sources
− International Bill of Rights: UDHR, CCPR & CESCR (1966)
− Other UN and regional instruments
Differentiation
The generation has been created by political distinction through politics.
The UN stated that all human rights are:
− interdependent and indivisible
Interdependence: no guarantee on one right without guaranteeing the other rights.
Indivisibility: no separation of rights from each other which is coal upon the Member States.
− clear (meaning) and unequivocal (wording)
Human rights should be phrased less politically and are guarantee-based.
− Negative v Positive obligations
o Respect, protect, fulfil
− Guarantee v Progressive realization
Progressive realization: a State's compliance with its obligation to take appropriate measures is
assessed in the light of the resources —financial and others— available to it.
Art. 2 – Personal field of application
1. This Protocol shall be applied without any adverse distinction founded on race, colour, sex, language, religion
or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar
criteria (hereinafter referred to as "adverse distinction") to all persons affected by an armed conflict as defined
in Art. 1.
− The myth of expenses v Justiciability
Remedies and the ability to bring cases to court.
Lecture 2: Human Rights Enforcement
▪ Human Rights Monitoring Practice
There are different types of forms of monitoring.
➢ Overlooking the work of someone else to check whether they’re doing what needs to be done is a
form of monitoring – and if necessary you will guide that person to fulfil the tasks that come along with
the work.
, International Bachelor of LAW Program 2018-2019
Human Rights Law Course Notes by 18024580 Page 3 of 17
➢ A police officer patrols neighbourhood to ensure that the citizens are abiding the law.
➢ Enforcing the rules that are set by an institution.
➢ Peace enforcement/peacekeeping e.g. Blue Helmets.
National level
It is of primary importance that when hr rights violation takes place, it can only be stopped at this level.
There will be no interference by international police to enforce the treaty provisions in an MS.
➢ Human rights in lawmaking and policy
o Human rights should be a consideration in the legislative and policy-making process – (ex-ante
[before] /ex-post [after] constitutional review). A policymaker should see how the law or policy can
impact human rights and whether their policy is in line with the human rights obligations the State
has signed up for.
o Implementation/execution should be continuously checked against human rights
(internal & external). The executive – who implements/ execute the law – should check whether
they live upon the role of human rights obligations.
➢ Courts v Human Rights
o Monism v Dualism
o Direct effect (“clear and unequivocal”) v Self-executing Treaty Provisions in order for court to apply.
➢ Ombudsman
o Quasi-judicial solution: determination of unlawful conduct by State or body of a State. Not only
bound to national law.
➢ Third party involvement
NGOs and civil society (including you)
International level
State Reporting system
o Duty on the States
It is a Treaty-obligation to report on the human rights obligations
▪ Pro: states know most data; have access to information; experts reviewing; self-reflection.
▪ Con: one-sided, thus states may bend the truth; informal involvement of NGOs; limited participation.
o Periodical reports that must be submitted
▪ Art 40 para 4 ICCPR: General Comments Human Rights Committee (para 4)
▪ Art 16 and 17 ICESCR: ECOSOC (Committee on Economic, Social and Cultural Rights)
▪ Art 21 and 22 ESC 1961: European Committee on Social Rights (Comments)
o Upon request
▪ Art 40 para 1(b) ICCPR: General Comments Human Rights Committee (para 4)
▪ Art 52 ECHR (Sec. Gen. CoE)
o Result
▪ Naming and shaming (concluding observations) because of publicity
▪ General comments: a guideline for implementation (finding the common denominator)
Inter-State complaints
o Right (not duty) of the MS
▪ Pro: respect states as key players (Int’l Law), shared norms, the potential for objectivity (court or
body of experts).
Human Rights Law Course Notes by 18024580 Page 1 of 17
Course notes
Lecture 1: Introduction to Human Rights Law
❖ Human Rights are the rights necessary to live a human(e) life (wide definition)
❖ Human Rights Law is the law that deals with the protection of all individuals (and groups) against
violations of their (inter)nationally guaranteed rights, and with the promotion of these rights.
▪ History of Intl Human Rights Protection
Humans from object to subject of Human Rights
✓ State to State Obligations to protect human rights
✓ State responsibility for injury to aliens
✓ Nationality is key, and statelessness a problem
Limitation state sovereignty by Treaties
- Internationalization of subjects otherwise not governed by international law
- After signing the treaty, neither government can claim exclusive domestic jurisdiction
- Early treaties: Banning the slave trade (Paris, 1856), Christian minorities in the Ottoman Empire
(Berlin, 1878)
▪ Developments in Intl Law
Humanitarian Law
- Geneva convention 1854, 1949 and 1977 (ICRC)
The expansion of the scope of who needs protection in the field of war.
- Tribunals
o After WW II: Nuremberg and Tokyo
o Holding individuals responsible for human rights violations if the State is unable or unwilling.
o Doing justice for the victims
- Humanitarian intervention
o The lawful use of force to stop maltreatment by a state of its own nationals
▪ Currently decided by the UN Security Council
▪ Universal application
League of Nations (organisation from 1919 Treaty of Versailles)
o Art. 22 → Mandates system
A system that allows people to govern themselves under the mandate of the League of Nations
o Art. 23 → international labour standards and protection of Minorities
The League of Nations would act as guarantor.
United Nations (1945 – present)
o “[…] to save succeeding generations from the scourge of war […]“ – UN Charter Preamble.
o An individual has internationally guaranteed rights as an individual (human being) and not a national of
a particular state
o 1945 UN Charter, 1948 Universal Declaration of Human Rights, 1966 ICCPR and ICESCR, 1989 CRC
o Notion: democracy and the rule of law are a prerequisite for the effective protection of human rights.
, International Bachelor of LAW Program 2018-2019
Human Rights Law Course Notes by 18024580 Page 2 of 17
▪ Generations of Human Rights (1st, 2nd and 3rd)
1st – Civil and Political Rights | Civil and Political Rights Covenant
➢ Prohibition of Torture, Freedom of Speech, Right to Vote, Right to Protest
2nd – Economic, Social & Cultural Rights
These rights stem from the same era as the 1st Generation (1966) but it does not follow up on the
historical part of the 1st Generation.
➢ Right to Health, Right to Food, Right to Water, Right to Education
3rd – Group Rights
➢ Rights of Indigenous People: the right to live in your own culture
➢ Rights of Children, Rights of Women, Rights of Migrants: protection of the group
➢ Right to a clean environment
Sources
− International Bill of Rights: UDHR, CCPR & CESCR (1966)
− Other UN and regional instruments
Differentiation
The generation has been created by political distinction through politics.
The UN stated that all human rights are:
− interdependent and indivisible
Interdependence: no guarantee on one right without guaranteeing the other rights.
Indivisibility: no separation of rights from each other which is coal upon the Member States.
− clear (meaning) and unequivocal (wording)
Human rights should be phrased less politically and are guarantee-based.
− Negative v Positive obligations
o Respect, protect, fulfil
− Guarantee v Progressive realization
Progressive realization: a State's compliance with its obligation to take appropriate measures is
assessed in the light of the resources —financial and others— available to it.
Art. 2 – Personal field of application
1. This Protocol shall be applied without any adverse distinction founded on race, colour, sex, language, religion
or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar
criteria (hereinafter referred to as "adverse distinction") to all persons affected by an armed conflict as defined
in Art. 1.
− The myth of expenses v Justiciability
Remedies and the ability to bring cases to court.
Lecture 2: Human Rights Enforcement
▪ Human Rights Monitoring Practice
There are different types of forms of monitoring.
➢ Overlooking the work of someone else to check whether they’re doing what needs to be done is a
form of monitoring – and if necessary you will guide that person to fulfil the tasks that come along with
the work.
, International Bachelor of LAW Program 2018-2019
Human Rights Law Course Notes by 18024580 Page 3 of 17
➢ A police officer patrols neighbourhood to ensure that the citizens are abiding the law.
➢ Enforcing the rules that are set by an institution.
➢ Peace enforcement/peacekeeping e.g. Blue Helmets.
National level
It is of primary importance that when hr rights violation takes place, it can only be stopped at this level.
There will be no interference by international police to enforce the treaty provisions in an MS.
➢ Human rights in lawmaking and policy
o Human rights should be a consideration in the legislative and policy-making process – (ex-ante
[before] /ex-post [after] constitutional review). A policymaker should see how the law or policy can
impact human rights and whether their policy is in line with the human rights obligations the State
has signed up for.
o Implementation/execution should be continuously checked against human rights
(internal & external). The executive – who implements/ execute the law – should check whether
they live upon the role of human rights obligations.
➢ Courts v Human Rights
o Monism v Dualism
o Direct effect (“clear and unequivocal”) v Self-executing Treaty Provisions in order for court to apply.
➢ Ombudsman
o Quasi-judicial solution: determination of unlawful conduct by State or body of a State. Not only
bound to national law.
➢ Third party involvement
NGOs and civil society (including you)
International level
State Reporting system
o Duty on the States
It is a Treaty-obligation to report on the human rights obligations
▪ Pro: states know most data; have access to information; experts reviewing; self-reflection.
▪ Con: one-sided, thus states may bend the truth; informal involvement of NGOs; limited participation.
o Periodical reports that must be submitted
▪ Art 40 para 4 ICCPR: General Comments Human Rights Committee (para 4)
▪ Art 16 and 17 ICESCR: ECOSOC (Committee on Economic, Social and Cultural Rights)
▪ Art 21 and 22 ESC 1961: European Committee on Social Rights (Comments)
o Upon request
▪ Art 40 para 1(b) ICCPR: General Comments Human Rights Committee (para 4)
▪ Art 52 ECHR (Sec. Gen. CoE)
o Result
▪ Naming and shaming (concluding observations) because of publicity
▪ General comments: a guideline for implementation (finding the common denominator)
Inter-State complaints
o Right (not duty) of the MS
▪ Pro: respect states as key players (Int’l Law), shared norms, the potential for objectivity (court or
body of experts).
