Summary Ch. 1 - 6, 8 - 11, 13, 14,15,17
International Human Rights Law and Practice
Ilias Bantekas
9781009306379
Cambridge University Press
4th edition 2024
Pages book: 1043
This summary: 75
Reading time: 180 min.
,Contents
Chapter 1 - International human rights law and notions of human rights: foundations, achievements and
challenges...................................................................................................................................................2
Chapter 2 - International human rights law: the normative framework.....................................................14
Chapter 3 – Human Rights in Practice......................................................................................................24
Chapter 4 – The United Nations Charter System......................................................................................26
Chapter 5 – The UN Human Rights Treaty System..................................................................................30
Chapter 6 – Regional Human Rights Treaty Systems...............................................................................34
Chapter 8 – Civil and Political Rights.......................................................................................................41
Chapter 9 – Economic, social and cultural rights......................................................................................51
Chapter 10 – Group Rights: Self-Determination, Minorities and Indigenous Peoples..............................53
Chapter 11 – The Human Rights of Women.............................................................................................57
Chapter 13 – The Right to Development, Poverty and Related Rights.....................................................60
Chapter 14 – Victims’ Rights and Reparation...........................................................................................62
Chapter 15 – The Application of Human Rights in Armed Conflict.........................................................68
Chapter 17 – Human Rights and Counter-Terrorism................................................................................73
Protection of Human Rights in International Law
Chapter 1 - International human rights law and notions of human rights: foundations,
achievements and challenges
1.1 Introduction
Human rights have an important dual function: they are claims based on particular values or
principles and often also legal rights that entail entitlements and freedoms. Philosophical and
political conceptions of human right are broader than international human rights law, which is
essentially a normative term referring to rights validated in recognized sources. While the two
spheres are closely intertwined, they do not necessarily share a causal or automatic
relationship, that is that every claim must transform into a legally recognized right.
Theories of human rights abound, including:
• Substantive: based on moral values or foundational postulates;
• Formal: constructive, pragmatic, discourse;
• Subaltern: human rights as distinctive practices born out of struggle; and
• post modern approaches: such as political theories, and liberal or socialists notions of
human rights.
It is in particular the purported universality of human rights, that is their applicability to
everyone, everywhere and anytime that has given rise to enduring debates. These debates may
be seen as bewildering if not downright counterproductive, potentially undermining support
for human rights at a time when much needs to be done to ensure their effective protection.
However, downplaying or dismissing the importance of these debates may lead to a failure to
answer satisfactorily the question of what we mean when we refer to human rights, which is
critical in situations where the very idea is being challenged. It is perhaps inevitable that the
notion of human rights is and will remain charged and will be used for differing if not
contradictory ends. This does not mean that the notion is entirely open-ended, but it counsels
against using it lightly without having considered its multiple dimensions.
1.2 The Development of human rights and international human rights law
The founding document of international human rights law, that is the Universal Declaration of
,Human Rights (UDHR), refers in its preamble and article 1 to claims and freedoms that
human beings enjoy by virtue of their humanity: that is, inherent rights. These rights are
based on the principles of dignity, equality and liberty, and are underpinned by notions of
solidarity.
At the core of the human rights lie fundamental questions about the nature of human
beings and their relationship with each other as members of societies, including the
''international society.'' In this context human rights address the relationship of individuals to
others, in particular to those in a position of power (especially civil and political rights,
equality and non-discrimination) and the relationships of groups and their members to others
(minority rights, rights to self-determination and rights of indigenous peoples); the settlement
of disputes and administration of justice (fair trial in modern parlance); rights to participate in
the polis (particularly freedom of expression and related rights, including the right to vote);
and the material conditions for a life of dignity and freedom (social, economic and cultural
rights; the rights to development).
1.2.1. Foundations
International human rights law is a rather late addition to the body of international law whose
modern origins are commonly located in the seventeenth and eighteenth centuries.
International law governed the relationship between states, which were recognized as its sole
subjects. States were considered sovereign, which meant that the treatment of citizens and
, other individuals on their territories fell within their exclusive prerogative. Individual and
collective rights as understood today did not form part of the corpus of international law at
that time. This explains why international human rights law, when emerging with
considerable force following World War II, drew heavily on ethical imperatives, concepts of
rights and historical sources, as well as national declarations and constitutions.
Ancient and traditional cultures and societies, and the world's major religions, share a
deep concern about human nature, ethics and justice. The major religions were faced with the
task of constructing an ethical framework for the conduct of their members. This often took
the form of commandments and the definition of desirable if not obligatory conduct,
adherence to which would bring the rewards promised by each religion.
While notions of individual autonomy and rights were known in some societies, the question
of how human beings treat each other and how best to exercise power in a polis was
frequently framed as a matter of virtuous conduct and justice in conformity with reason,
religious or customary commands. The principal concern was therefore the creation of a
harmonious and just society rather than the protection of the rights of individuals.
1.2.2 The American and French declaration of rights
The United States Declaration of Independence and the French Declaration of the Rights of
Man and of the Citizen were the outcome of political struggles that drew on natural law and
liberal theories of rights. The American Declaration emphasized the right to life, liberty and
the pursuit of happiness while the French Declaration stressed the right to liberty, property,
security and resistance to oppression. However, the shortcomings of the declarations are
readily apparent: the declarations speak of the rights of man: the rights granted are
predominantly civil and political, reflecting and privileging certain class interests; and the
documents failed to address a number of practices that violate fundamental rights. It is indeed
a paradox that it was not seen as contradictory that these rights were declared while the
American settlers were invading indigenous peoples' land, destroying their cultures and
practicing slavery. At the same time, the French pursued a policy of imperialism and
colonialism and large groups of individuals in their own societies, such as woman, were
effectively excluded and barred from the enjoyment of rights.
The industrial revolution in Europe was characterized by stark inequalities and the
inhuman conditions in which a large number of children and adults had to work and live.
Unsurprisingly, the nineteenth-century working class and labor movements had mixed views
of the conceptions of rights embodied in the American and French declarations. Karl Marx
(1818-1883) argued in his work that human rights as defined in the declarations, in particular
the right to property, were used to secure the interests of the capitalist class. He saw human
rights as antithetical to a communist society that would overcome the antagonism between the
individual and the state by providing for everyone according to his or her needs. It is clear that
Marx, and many other actors, have made important contributions to the development of
human rights law, particularly in respect of the right to non-discrimination, political rights,
economic, social and cultural rights, as well as collective rights.
Notwithstanding these criticisms, the American and French declarations exerted symbolic
significance and became important reference points as the language of rights and liberties was
increasingly invoked to buttress demands for equality, freedom and self-determination.
1.2.3 The struggle for rights in the nineteenth century
The nineteenth century witnessed a growing struggle for rights which was often inspired by
the language of the declarations. For example, feminists advocated for a declaration of the
rights of women and another major movement evolved to call for the abolition of slavery, an
ancient practice that had been transformed into a globalised commercial enterprise negating
