International Human Rights Law
Rhona K. M. Smith
Eighth Edition
ISBN: 978-0-19-880521-2
This summary contains the following chapters
CHAPTER 1 – Introduction
CHAPTER 2 – Historical background
CHAPTER 3 – The United Nations
CHAPTER 4 – The international Bill of Human Rights
CHAPTER 5 �...
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International Human Rights Law
Rhona K. M. Smith
Eighth Edition
ISBN: 978-0-19-880521-2
This summary contains the following chapters
CHAPTER 1 – Introduction
CHAPTER 2 – Historical background
CHAPTER 3 – The United Nations
CHAPTER 4 – The international Bill of Human Rights
CHAPTER 5 – The United Nations – Organizational structure
CHAPTER 6 – Regional protection of Human Rights
CHAPTER 7 - Europe
CHAPTER 10 – Monitoring, implementing, and enforcing human rights
CHAPTER 12 – Equality and non-discrimination
CHAPTER 13 – The right to life
CHAPTER 14 – Freedom from torture; cruel, inhuman, and degrading
treatment or punishment
CHAPTER 15 – The right to liberty of person
,CHAPTER 1 – Introduction
The period since the formation of the United Nations in 1945 has seen an expansion in the
internationally recognized rights of all people with acceptance of a human rights dimension
to the quest for international peace and security.
Human rights traditionally embody elements of the rule of law, recognition that the state
should act in accordance with higher norms of behavior, and an understanding that there is a
limitation in the manner in which states can treat individuals within their jurisdiction and
power.
Early example of the recognition of human rights: Prohibition on slavery
The 1993 Vienna declaration: All human rights are universal, indivisible, interdependent and
interrelated. The international community must treat human rights globally in a fair and
equal manner.
CHAPTER 2 – Historical background
Human rights date back to international discussions preceding the founding of the United
Nations. Since 1945, the scope of human rights has been elaborated and the concept now
permeates the fabric of international society.
The basis for international human rights lie in philosophical discussion. They represent the
modern interpretation of the traditional rule of law.
2.1 – Origins of international human rights
There are divergent views as to the origins of Human rights: the existence of a body of basic
rights can be traced back to the early 19 th century in Europe. It is linked to the constitutional
concept of the rule of law. The rule of law links to theories of natural law and religious
doctrines. The basic tenets of all faiths prescribe boundaries f conduct often in norms of
religious law ïƒ UK Magna Carta. Rights that come from this are: Principle of equality
before the law, the right to property and an element of religious freedom.
Many customary and traditional systems around the world embed ideals on rights and
freedoms enjoyed by individuals and are often the corollary of duties owed to others.
There are two principle legal theories:
1. The liberty-based approach which is prevalent in common law jurisdictions
2. The rights-based approach of civil legal systems
Both address the relationship between the individual and the state. A more pragmatic
approach is also used. States must respect human rights in their deeds and actions; protect
human rights in laws and policies and fulfil their treaty obligations.
2.2 – the 18th century: revolutions and rights
In the 18th century there was a focus on natural rights, rights which should be enjoyed by all
human beings.
,The French declaration of the rights of men 1789, the United states declaration of
independence 1776 and the Bill of rights 1791 articulate various rights to be enjoyed by all
citizens including liberty and equality. The French declaration was inspired by the united
states declaration of independence. The French declaration had a considerable wider impact,
serving as a guide to the constitutions of other European and former colonial countries, as
well as the European Convention on human Rights by the Council of Europe.
The American Bill of Rights refers to freedom of religion, various requirements relating to
due process and the right to a fair trial, freedom of person and property and the right to bear
arms. These rights remain the foundation of the united states constitution.
2.3 – The role of international law
Originally International law was the law of nations. It was exclusively concerned with the
interaction of states. Individuals were considered property of the states. However, customary
international law has recognized that some individuals deserved protection. International law
has shaped human rights law.
Human rights law goes beyond the boundaries of general international law. There is an
overlap between the traditional effect of international law (relations between states) and the
traditional effect of national and constitutional law (relations between the state and
individuals) with human rights allowing the international community to determine some
limits to what a state may do to its nationals.
The traditional approach to recognition of individual rights based the individual’s rights on
the rights of the state ïƒ Law of aliens.
2.4 – the law of aliens
International law imposes obligations on states to grant certain privileges to foreign head of
states and diplomatic personnel in return for which each state has the right to expect its
citizens to be granted certain rights by foreign states when on their territory.
2.4.1 – Reparations and reprisals
With the growth of the nation state and the consequential migration of men, the position of
the alien underwent a fundamental change: an alien became perceived as representing a facet
of the state of origin. Consequently, an injury to an alien would be construed as an indirect
injury to the state of origin, for which reparation could and would be sought.
In taking up a case of one of its nationals a state is in reality asserting its own right to ensure
in the person of its national’s respect to the rules of international law. Only a state can decide
to bring an international claim, an individual cannot compel a state to act on its behalf.
Before an individual submits his or her claim to the government all local remedies in the host
state must have been exhausted. ïƒ An individual claiming a violation of a right in a human
rights instrument is usually required to tale reasonable steps to exhaust all local remedies
before bringing the claim to the international plane.
, 2.4.2 – The two schools of thought
The increase in interstate communications let to new laws of aliens. There are two
recognized schools of thought. These being: The national or equality standard of treatment
and the international minimal standard of treatment.
2.4.2.1 – The national or equality standard of treatment
Many developing countries, particularly in Latin America adhere to this school of thought.
The rationale is as follows: a foreigner should be accorded only the same rights, however
few or great in number, as a citizen of the host state. In other words, a visitor to a state
should not expect to be afforded more protection than a national of that state. There should
be no positive or negative discrimination.
This doctrine was accepted by the first international conference of American states and later
encapsulated in the Montevideo convention on the rights and duties of states in 1933. This
view poses one main problem: It negates public international law in that it deprives a state of
the right to protect its nationals outside of their territorial boundaries.
2.4.2.2 – The international minimum standard of treatment
The minimum universal standard of treatment must be observed by all states in their
treatment of foreigners. This minimum standard applied irrespective of the treatment
accorded to a state’s own nationals. ïƒ established standard of civilization.
2.4.2.3 – Recognition of the international minimum standard
The doctrine of an international minimum standard is also articulated in various international
instruments. An early example is the convention respecting the conditions of residence and
business jurisdiction, concluded between the UK, France, Italy, Greece, Japan and Turkey in
1923.
A foreigner may enjoy a greater degree of protection than a national of the state in which he
or she is either visiting or temporarily residing. This predates international recognition of
Human Rights. The international minimum standard comprises the right to personal liberty
and the right to equality before the law.
2.4.3 – Contemporary law on aliens
Although the law of aliens may be considered a distant relation of human rights, insofar as it
recognized the right of aliens to a certain standard of treatment, it does so solely because of
the designation of an alien as a part of that state. Thus, a violation of the rights of an alien is
viewed as a wrong against a state. The individual has no right of action per se.
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