Summary for the minor Human Rights. The summary is of the book 'International Human Rights Law. It includes chapters 1, 2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 19, 20, 21, 22, 24, 26, and 27.
Samenvatting Human Rights Law Tilburg University 2016/2017
The Role of the United Nations in the Protection of Human Rights II: Other Treaty Body Functions
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Human Rights Summary
Chapter 1
Hersch Lauterpacht (1945)= professor of international law. Committed to the establishment of
international human rights law. It addressed the content of the proposed International Bill, and how
it would be implemented at international law.
2. Human Rights on the domestic plane
It is very difficult to find a specific starting point for human rights. From a legal perspective
concerning measurements, the beginning is set at the Magna Carta of 1215. However, the right to
trial by jury and of habeas corpus were hardly established in the Magna Carta. It was concerned with
securing rights for the powerful barons against an overbearing kind of England. It was seen as the
beginning of the limitation of absolute and arbitrary power of the sovereign.
Latter half of the 17th century:
- English civil war (1642-1651)
- Glorious revolution (1688-1689)
culminated in the Bill of Rights in 1689 = constitutional settlement that championed the
sovereignty of Parliament, set the seal on the absolute power of the Stuart kings. The
absolute power of the state should be limited for the sake of the individuals within it. It was
a source of limited number of defined rights.
2.1 The Enlightenment Thinkers
Hobbes’ Leviathan (1651) = no acceptance for the idea of formal restraint on power. Few, if any
natural rights for the individual, all obeyed to the ruler. Abuse of power by the ruler was expected.
Leviathan is known for the introduction of the social contract the power to govern is to some
extent derived from the consent of the governed.
John Locke (Two Treatises of Government, 1690) published after the overthrowing of James II in
1688 and Bill of Rights in 1689. Locke advocated the natural liberty and equality of human beings,
strong advocate for natural rights (in particular the right to property).
Leading figures of the Enlightenment movement:
- Baron de Montesquieu (The Spirit of Laws,1748)
o Structure of government and separation of powers
- Jean – Jacques Rousseau (The Social Contract, 1762)
- Voltaire (Philosophical Dictionary, 1769)
- Immanuel Kant (On the Relationship of Theory to Practice in the Political Right, 1792)
Main emphasis on the natural rights which no authority could take away. This thinking led to the
French Declaration of the Rights of Man and Citizen (1789).
2.2 Human Rights Transformed into Positive Law
Locke greatly influenced the US Declaration of Independence of 1776. The document listed
grievances against George III and inspired successful prosecution of the American War of
Independence. Also set out the view that ‘all men are created equal, that they are endowed
by their creator with certain unalienable rights’.
The Virginia Declaration of Rights of 12 June 1776 is regarded as the first proper Bill of Rights.
It introduced the government by consent and separation of powers. Said: ‘all power is vested
in, and consequently derived from, the people’.
The US Constitution of 1789 only provided the right to trial by a jury and a right of habeas
corpus. In 1791 the first 10 amendments to the Constitution came into force after ¾ of the
states ratified it. Now, it became known as the (US) Bill of Rights.
, Thomas Paine’s Common Sense in 1776 set out the influences on the French and US
experiences. It led to the US democracy in 1776, July 4 th. The ‘Rights of a Man’ in 1791/1792
was his response to Edmund Burke’s attack on the French Revolution.
French Declaration of the Right of Man and Citizen of 1793; ‘any society in which no
provision is made for guaranteeing rights or for the separation of powers, has no
constitution’
2.3 19th Century Challenges to Natural Rights
Jeremy Bentham had the opinion that from natural rights revolutions would arise. He wrote
the Anarchical Fallacies (1843), which discusses social damage after revolutions. He criticized
idea of God given rights and believed rights required protection of law: ‘from real laws
comes real rights’
Marx- rights for the selfish me; they didn’t truly free the individual
Edmund Burke wrote his Reflection on the Revolution of France. Karl Marx wrote On the
Jewish Question in 1844, which asked what the use of the French Declaration had for the
Jews such as himself. Rights were for egoistical men.
These criticisms are still debated today
2.4 Domestic Protection of Human Rights today
Milestones in the constitutional history, curtailing the sovereign powers of the state, including by
reference to the basic rights of the individual:
- The Bill of Rights (1689)
- The American Declaration of Independence (1776)
- The French Declaration of the Rights of Man and Citizen (1789)
- The US Bill of Rights (1791)
80% of national constitutions adopted betwee n1778 and 1948 provided a human rights
guarantee in one form or another, and that between 1949 and 1975 was 93%
constitution didn’t always lead to rights being effected however
US Supreme Court in the case of Marbury v Madison (1803) held that it (court) had a power
of judicial review by which it could even declare acts of Congress unconstitutional- slavery
was continuing to flourish however
Brown v Board of Education (1954)- broad an end to the separate but equal doctrine
previously upheld by the court in the case of Plessy v Ferguson
The upward trend of guaranteeing human rights in states constitutions after the 1990s was a result
of the states that were formerly part of the Soviet Union.
In 1803, the Bill of Rights was an instrument that applied mainly at the federal level, thus not
individual (related to Marbury vs. Madison case).
Key dates:
1215 – Magna Carta
1689 – English Bill of Rights
1776 – US Declaration of Independence
Virginia Declaration of Independence
1789 – French Declaration of The Rights of Man and Citizen
US Constitution
1791 – US Bill of Rights
The Human Rights Act in 1988 was used by England for the juridical protection of a select number of
human rights against the acts of public authorities.
,The 1958 Constitution in France refers to the people’s commitment to the Declaration of 1789, but
only a limited challenge to the authority of the legislature is possible via the Conseil Constitutionnel.
The US Supreme Court only began to use the Bill of Rights more to protect the individuals as well
around 1925.
3. Human Rights on the International Plane Before the Second World War
International law did not recognize individual human rights as much as for example with domestic
law during the start of the 20 th century. Pre 1940s no real conception in international law of
fundamental rights.
3.1 International Humanitarian Law and the Abolition of the Slave Trade
Henry Dunant was the influencer which caused for more international activity related to care
for individual’s post –war eras. He founded the International Committee of the Red Cross.
This was later followed by the Geneva Conventions in 1949 and The Hague Conventions at
the start of the 20th century.
The Anti-Slavery International is the oldest human rights NGO in the world – 1839. In the 20 th
century, the international abolition of slavery was taken up by the League of Nations
= the key international organization established after WOI, objective is to maintain peace and
stability in the world.
1771 Somersett’s case- slavery becomes illegal in the UK. UK and USA subsequently pass
legislation at the beginning of the 19 th century to outlaw the trade of slaves in their
jurisdiction
Slow process to get this more widely recognized in other states beyond an agreement
1890 General Act- included Anti-Slavery Act which saw 18 states ratify measures for
countering the slave trade
League of Nations- International Convention of the Abolition of Slavery and the Slave Trade
of 1926 to depress slavery in all its forms
3.2 The Protection of Minorities and the League of Nations
Efforts to provide a level of protection for religious minorities by:
- Treaty of Westphalia (1648) (at the end of the Thirty Years War)
- Treaty of Utrecht (1713)
- Treaty of Berlin (1878)
Arrangements of the League of Nations:
- The constitutional arrangements of the respective states should provide basic guarantees of
protection as to life, liberty and equality before the law.
- When the League of Nations was set up, the Council of the League of Nations was mandated
to make arrangements for the supervision of the aforementioned obligations at the
international level.
- Oversight and possible measures of implementation concerning the obligations were
envisaged.
Individuals now had the opportunity to directly petition the Council of the League. Critics say it was
more for regional stability instead of for the individual rights.
4. Human Rights on the International Plane After the Second World War
The first proposals for an international code of human rights can be traced back to 1929, when in
New York the Institute of International Law adopted an International Declaration of the Rights of
Man.
, White Rose Movement- a body made up out of a small group of students and some academics at the
University of Munich. They produced and distributed a series of leaflets in defiance of the Nazi
regime, calling for democracy in Germany and for the protection of certain fundamental rights in a
new Europe.
President Roosevelt (January 1941) – Four essential human freedoms:
- Freedom of speech and expression
- Freedom of every person to worship God in his own way
- Freedom from want
- Freedom from fear
14 January 1941 – Roosevelt and British Prime Minister Winston Churchill proclaimed the Atlantic
Declaration – a world where the men in all lands may live out of their lives in freedom of fear and
want. This was followed in 1942 by the Declaration of the UN (NOT THE SAME AS THE UN CHARTER,
WHICH WAS INTRODUCED THREE YEARS LATER).
The Declaration of the UN was signed by 47 alliance states prepared to subscribe to the principle that
complete victory was over their enemies was essential to defend life, liberty, independence and
religious freedom and to preserve human rights and justice in their own lands, as well as in others.
4.1 Crimes Against Humanity
Four– Power Agreement (August 8 th, 1945) = provided for the establishment of the International
Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the European
Axis (Nuremburg Trial).
4.3 The Universal Declaration of Human Rights
The UN initiated to draft an International Bill of Rights. The drafting committee of the Commission
consisted out of Australia, Chile, China, France, Lebanon, the UK, the USA and the Soviet Union. The
chair was Eleanor Roosevelt.
The UDHR was subsequently formulated from an initial outline by John Humphrey. On December
10th, 1948, the UDHR was proclaimed by 48 states in the UN General Assembly.
It took until 1954 for the UN Commission to complete the drafts of what would become the
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR). They were opened for signature in 1966 and entered
into force in 1976 in 35 states.
Human Rights on the International Plane: Key Dates:
- 1941: Roosevelt’s Four Freedoms speech
- 1942: Declaration of the UN
- 1945: UN Charter
- 1948: UN Declaration of Human Rights & Convention on the Prevention and Punishment of
the Crime of Genocide
- 1949: Four Geneva Conventions
- 1966: ICCPR and ICESCR opened for signature
- 1976: ICCPR and ICESCR enter into force
Chapter 2
Introduction
Human rights are often seen as an irreducible value, that is not in need of further justification,
justified by being themselves justifications (for example of the authority of domestic or international
law), or justified by reference to another value that not itself needs justification (dignity or equality).
This turns it into a matter of faith instead of reason.
2.1 Explaining Justification
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