Comparative Human Rights
Week 1: General introduction to human rights
Book
Chapter 1: International human rights law and notions of human rights: foundations,
achievements and challenges
Dual function HR: claims based on values and principles & legal rights entailing entitlements and
freedoms.
HR theories: substantive (based on moral values), formal, subaltern (born out of struggle),
postmodern (empathy for the other), political (liberal/socialist).
HR founding document = Universal Declaration of Human Rights (UDHR).
UDHR: in preamble and art. 1 HR are claims/freedoms that human beings enjoy by virtue of
their humanity = inherent rights, based on dignity, equality and liberty.
HR address the relationship of individuals to others: in respect to government, groups and its
members, settlements of disputes and administration of justice, rights to participate in polis,
material conditions for a life of dignity and freedom.
First international law only governed the relationships between states (sole subjects). States were
sovereign, no individual or collective rights. Religions conducted ethical frameworks, often in the
form of commandments, principles and practices. Question: how must human beings treat each
other and how must power be exercised? creation of a just society (not really protection of
individual/collective rights).
US Declaration of Independence (1776), Bill of Rights (1791), French Declaration of the Rights
of Man and of the Citizen (1789) were outcome of political struggles. Problems with these
declarations: Focus on ‘man’, certain class interests (mainly civil and political rights), failed to
address some HR-violations. Burke: ‘conservative perspective’, criticised abstract &
individualistic nature of rights. Bentham: utilitarian perspective, HR only when posited in law,
maximising aggregate happiness. Danger positivism: self-validating justification for its commands
irrespective of its substance, like in the Nazi period. Return to natural law with Radbruch
formula: statutory law should be set aside if it is entirely incompatible with the idea of justice,
especially when law deliberately denies equality. Industrial revolution: inequality and inhuman
work conditions. Marx: HR were used to secure interests of the capitalist class; communist.
In the 19th century: women’s rights movements, anti-slavery movement, nationalist movements
(decolonisation, didn’t end at that time), Development of international humanitarian law:
diplomatic protection relating to the minimum standard of treatment of ‘aliens’; Injury to an alien
constituted and injury to the aliens’ state, which could demand appropriate forms of reparation
under the rules of state responsibility. Not really precedent for recognition individual rights.
World War I resulted in an increase of women’s’ rights (voting), social and economic rights
recognition of the right to self-determination and minority rights. Also rise of the League of
Nations: to promote international co-operation and to achieve international peace and security. It
established important principles for the protection of members of minorities. It couldn’t develop
a genuine right to self-determination (colonisation didn’t end), monitoring was weak and
ineffective. Measures were inadequate and failed to build stable international order.
World War II: UN established in 1945 goal was effective international organisation built on a
system of collective security with strong enforcement powers. Preamble UN Charter: ‘reaffirm
faith in fundamental human rights, in the dignity and worth of the human person, in the equal
,rights of men and women and of nations large and small’. Art. 1(3): human rights is one of the
purposes. Art. 55 & 56: human rights part of UN’s international economic and social cooperation
obligations. Art. 68: Human Rights Commission. UN Charter perceives HR protection as
imperative to a new international order conducive to peace (instrumental value in international
relationships).
UDHR established in 1948 (part of Bill of Rights). UN foundational HR document. Educational
tool for promotion HR. Preamble and art. 1: universality HR. Debate: UDHR as an authoritative
interpretation of the UN Charter (non-binding declaration of principles). Not representative of
all peoples, strong Western influence(?), no collective rights.
Cold War and decolonisation: ICCPR and ICESCR in 1966. Politicisation of HR: evaluate other
states critically and demand action. Establishment of the Organisation for Security and Co-
operation in Europe (OSCE). Because of violent colonisation the International Convention on
the Elimination of All Forms of Racial Discrimination (ICERD) was adopted in 1965.
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) in 1984, International Convention for the Protection of All Persons form Enforced
Disappearance (CPED) in 2006, Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) in 1979, the Convention on the Rights of the Child (CRC) in 1989.
More attention for collective rights for members of groups dealing with systematic discrimination
and disadvantages on account of their status. Soft law on global economic and environmental
problems and the role of business. Upcome of regional human rights treaties and jurisprudence.
Establishment of International Criminal Court in 1998; war crimes committed in internal armed
conflicts: broadening scope of international criminal law.
Current challenges:
- International dimension of violations (because of economic globalisation). Challenges: 1)
qualifying a violation and developing an adequate framework of protection, 2)
determining causality between acts and consequences, 3) identifying responsibility in case
of a multitude of actors, 4) providing a forum for victims for access to justice. In contrast
to the territoriality principle.
- Because of globalisation not only states responsible for HR violations; also non-state
actors. Broadening of positive obligations for states to protect individuals from threats
and harm inflicted by NSAs.
- Growth of international HR regime has not been matched by an equally effective
enforcement system. Relies on goodwill of states: political. Humanitarian intervention:
obligation of the state to respect, through the UNSC: also political.
- Vague use of human rights language by major powers to justify interventions and the
invocation of human rights to protect the commercial interests of powerful economic
actors: HR seen as instruments through which Western states in particular seed to dictate
what policies other states ought to pursue. HR are often used to justify violations of HR.
Moral and liberal theories on HR of great influences on development and understanding HR:
universally applicable inherent natural HR. Liberalism: autonomous individual which may
exercise his rights as long as he does not conflict with the rights of others emphasis on civil &
political rights. Rawls: The Law of Peoples: HR serve as a benchmark for the acceptability of a
state.
Solution to universality-disagreement: agreement or discourse theories. Democratic, but of nu
use in power asymmetry and/or no willingness to engage in dialogue. Pragmatism: HR are
inherently political and should be promoted through education. Constructivism: overlapping
consensus.
,Universality: the nature and validity of rights that are common to all human beings by virtue of
their humanity. Tension between HR that supposedly apply in to everyone at all times and the
lack of understanding/recognition of these rights around the world. Some criticisers (relativists)
say that some cultures have developed different understanding of HR, which may include the
notion that HR are not suitable to govern social relationships. Other say that HR are specific to
political systems (liberal democracies) and so it is inappropriate to impose these on other
cultures. Some reject universality altogether, others say HR have to be interpreted in the cultural
context in which they are imposed on order to be effective. Solution: genuine dialogue about HR
must engage in addressing the content of the subject of the disagreement where ‘we’ must
adequately answer questions, the outcome may be the acceptance of universal standards.
Some say that HR are not universal, because they are Western biased. Also the notion of
universality can be used for ideological purposes in order to mask the intent behind what is
essentially a political project: promotion of liberal democracy as a political ideology. Such a focus
may protect the interest of certain individuals or classes at the expense of the public good.
Solution: building strong and credible national and regional systems that protect and promote
fundamental values and rights while being sensitive to local contexts, develop a ‘decentred
understanding of HR as normative construct’.
NGO Tostan has developed a community empowerment programme to respectful approach
villagers to allow them to make their own conclusions in FGM and to lead their own movements
for change; educational programme enables villagers to make informed choice. Community based
approach; chancing social convention. Key elements of change: non-coercive and non-
judgmental approaches with focus on empowerment; awareness of the harmfulness of FGM,
decision to abandon FGM as a collective choice, public affirmation, organised diffusion from
one community to another, environment that enables and supports change. Conclusion: it is not
sufficient to condemn a practice by invoking human rights, it needs to be tackled through
creative and painstaking engagement before it can change for good.
Chapter 2: International human rights law: the normative framework
Sources of international human rights law:
- Treaties: bilateral or multilateral agreements between states, governed by the Vienna
Convention on the Law of Treaties. Consent is needed. Preparatory work can help
interpreting the treaty. Can also help to evaluate if a norm is customary international law.
Initiators can be individuals, NGOs, states, IGOs or expert commissions. Negotiations
may involve the UNGA, the Committee, the Economic and Social Council, the Human
Rights Council and an intergovernmental conference. NGOs can observe and lobby
delegates and make submissions. Multilateral treaties need to have a sufficient number of
states parties to command legitimacy.
States can enter reservations: 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 that state = limit the scope of their obligations. More state parties, but
also fragmentation, undermine integrity and frustrate objectives. A reservation must not
run counter to the object and purpose of the treaty. Reservations cannot derogate from
jus cogens norms and non-derogable rights fundamental to a treaty. The treaty provisions
apply between the states parties unless the objecting state expressly states its intention
that they should not do so. ECtHR and HRCtee can exclude invalid reservations and so
the objecting state party is bound by the treaty.
- Customary international law: International custom as evidence of general practice
accepted as law. State practice accompanied with opinion juris. Can be important when a
, state has not already ratified a treaty. State is not bound by it when it has persistently
objected to it.
- Jurisprudence: By the HRCtee, ECtHR, IACtHR, the African Commission on Human
and Peoples’ Rights and the ICJ. Also tribunals and regional courts. Increased application
resulted in more understanding of international HR law, but also for fragmentation (no
formal hierarchy between courts). Development of jurisprudence depends on what type o
cases come before the bodies.
- Soft law: Non-binding instruments that set standards and/or form part of the law-
making process. Declarations, resolutions, conference statements etc. Limited compliance
and lack of adequate monitoring and enforcement mechanisms; not effective. For
example, the UNGA Declaration in the Rights of Indigenous Peoples (UNDRIP). Soft
law can have a pull factor. Because they are not binding, they may facilitate reaching
consensus. No formal requirements. But by soft law states can also escape binding
obligations.
Jus cogens: a peremptory norm of general international law, which is a norm accepted and
recognized by the international community of states as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character (if the opinio juris changes in line with the state
practice). States must not recognise situations resulting from violations of jus cogens norms and
have to take measures to bring such situations to an end.
Erga omnes: denotes obligations of a state towards all other states because of the fundamental
nature of a particular norm. States can invoke the responsibility of another state that is in breach
of its erga omnes obligation to demand that it ceases the wrongful act, guarantees non-repetition
and provides reparation to the injured party. Not the interest of the invoking state has to be at
stake.
Rights: Traditionally only states were subjects of international law, so only they had rights. Also
exercise of diplomatic protection was a state’s right. After 1945 individual also subject, even
when he is not able to claim his right.
Categories of rights: 1) origin (natural/positive), 2) subject (individual/group), 3) subject matter
(civil & political/ECS/collective), 4) type (negative/positive) and 5) nature (absolute/qualified).
Most HR in treaties are individual rights: because of idea people have rights by virtue of their
humanity. Minority rights belong to the individual members of minorities. Problems: who is
entitled, who had obligations, conflicts between individual and collective rights. Now collective
rights are recognised in the ACHPR, UN Declarations (indigenous people). Three generations of
rights: Civil and political, ESC and collective. Now the vision that rights are ‘indivisible,
interdependent and interrelated’. Fundamental principles of HR are equality, freedom & dignity.
Qualified rights can be limited, limitations must be based on law, be proportionate and must not
deprive the right of his essence. Emergency situations may influence the proportionality of
measures. ESC rights contain a non-derogable core obligation of ‘minimum essential levels of
each of the rights’.
Obligations: by becoming party to treaty or by customary international law. CP rights: negative
obligations. ESC rights: positive.
But see 2(1) ICCPR: respect and ensure rights. This encompasses legislative, judicial,
administrative, educative and other appropriate measures in order to fulfil legal obligations.
Prevent and repress violations and provide adequate remedies. Duty of means, not of result. Due
diligence: all measures that reasonably can be taken in the circumstances in order to ensure the
rights granted. Treaties can specify measures.
,(ESC rights: duty to protect, promote and fulfil. Measures so that rights are not infringed by
others and direct measures if needed to fulfil minimum standards.)
Scope of application: is confined to a state’s jurisdiction. Territorial: respect and ensure rights
of individuals within their territory. Every individual, except for e.g. citizen and minority rights.
Also sometimes outside territory: clandestine operations, military operations, cooperation with
states violating certain rights. When a state has ‘effective control’.
Implementation: serves as the measure of compliance with obligations. States are free how they
implement, unless treaty specifies modalities. Laws must be in conformity. Civil law: monism.
Common law: dualism. For each country needs to established: 1) the constitutional recognition
of international HR treaties and customary international law, 2) rank of these sources within
national legal order and 3) the judicial interpretation concerning the relationship between the
international and the national legal system.
Also recognition and protection of rights by domestic courts is important.
National human rights institutions: According to Paris Principles NHRIs should be
independent bodies tasked with promoting and protecting HR, using a range of measures in
respect of all spheres of HR.
HR treaty bodies and courts monitor compliance through reporting and complaint procedures.
Self-contained regime? When these ‘would be manifestly unavailable or ineffective or where it
would be otherwise unreasonable to expect recourse to these’ states may recourse to other bodies
(ICJ) or use proportionate counter measures. Responsibility to respect of the UN: can has
primary responsibility to take effective action where a state failed in its duty to protect those
within its territory from serious human rights violations (international crimes).
Law reform: states should actively seek to incorporate relevant human rights standards in their
domestic legislation. For this to succeed, rights must be justiciable and effective remedies must
be available. In practice often statutory laws are not adequate reformed. Because of politics,
recourses or not enough time. Reform commissions?
Lecture
Universality v. cultural relativism. Cultural relativist critique: 1) western imperialism, norms
unsuitable for specific cultures, because focus on individual instead of community and on rights
instead of duties, 2) bias-critique: HR are not applied equally yet, like gender bias.
Countries formed the UDHR in a binding treaty(?). Treaty only binding when ratifying, signing is
not ratifying.
Arguments international law is not law: no single legislature, no executive, no enforcement
mechanism (treaties are reciprocal). Argument international law is law: treaties are legally binding
when ratified, but not all human rights documents are treaties.
Tension between sovereignty and HR. 2(1) UN Charter: sovereign equality (internal: sovereign at
national level, and external: states are equal). However 2(2) UN Charter: All members shall fulfil
the obligations assumed by them. It is a joint state interest that states act in compliance with
human rights in maintenance of peace.
Bill of rights: UDHR, ICCPR and ICESCR.
,Absolute rights: no restriction (slavery, torture). Qualified rights: general restrictions or specific
restrictions (provided by law, are necessary to protect (different goals) ans are consistent with the
other rights recognized in the present covenant (see 12(3) ICCPR!).
HR actors: states, international (governmental) organistations (IGOs), individuals, NGOs,
MNCs, nhri’s.
The ‘tripartite typology’ of state obligations:
- To respect: refrain from interference
- To protect: prevent violations by 3rd parties by preventing violations, eliminate incentives
for violations and provide legal remedies.
- To fulfil: legislative and other measures to fully realise HR.
Art 1 UN Charter, purposes of the UN are: maintain international peace and security, develop
friendly relations, strengthen universal peace, encouraging respect for HR and for fundamental
freedoms for all without distinction as to race, sex, language or religion.
Regional organisations:
- Council of Europe: ECHR, ECtHR
- Organisation of American States: ACHR, Inter-American Commission & Court of
Human Rights
- African Union: ACHPR, African Commission & Court of Human & Peoples’ Rights.
Working group
Main differences between International Law & International HR Law:
- No clear state interest in protection of human rights, whereas general IL mostly serves
reciprocal state interests.
- IHRL is based on common interests reflective of fundamental values of international
legal order, exemplified in concepts of jus cogens and erga omnes.
- Common interests reflected in number of actors involved in drafting of
treaties/declarations.
Similarities: sources, obligations, state responsibility
More differences: HR treaties are supervisory, are they self-contained or special regimes?
3 categories of state obligations:
- Respect: negative obligation, abstain from violating a right
- Protect: positive obligation, prevent and repress violations from 3rd parties.
- Fulfil: positive obligation, take measures to ensure the right is enjoyed by those in the
state’s jurisdiction.
Always act in accordance with due diligence: take all measures that can be reasonably taken in the
circumstances in order to ensure the rights granted.
Legal effect of reservation: The provision against which the state has submitted a reservation
does not apply between the reserving state and all other states parties (to the extent stipulated by
the reservation), unless another SP objects to the entry into force of said reservation.
No reservation if treaty prohibits reservations, stipulates only specific reservations or if the
reservation is incompatible with object and purpose of the treaty.
,NHRI: a national institute that contributes to the promotion and protection of HR. Tasks:
Advise government, remedy HR violations, dissemination of HR information, HR education. See
par. 8 of preamble and art 1-3 Paris Principles.
Week 2: UN human rights mechanisms: legal and intergovernmental
approaches
Book
Chapter 4: The United Nations Charter system
Not meant to directly address human rights or confer strict obligations on states, but to secure
international peace and security. But many Charter organs have been instrumental in promotion
and protection of HR. UN mostly political, but since 1990s more HR approach. Decreased de-
politicisation of HR institutions HR agenda by Security Council and mainstreaming HR. No
longer HR fall under sovereignty of states as in 2(7) UNC. Treaty organs are not susceptible to
the authority of the Security Council, Charter-based organs are.
The Charter is a constitutional force, above other international treaties, see article 103. Preamble,
article 1(3) and 55 UNC: promotion universal respect for human rights etc. Art. 56 UNC: All
members pledge to take joint and separate action in co-operation with the Organization to
achieve these purposes. Not really serious human rights, because pledges not really binding, also
‘promotion’ and ‘observance’ weak terms.
Evolutionary method of interpretation: rejects literal interpretation or interpretation based on
original intent authors. Adopts meaning derived from current state practice and understandings
shared between nations.
First sovereignty of states important, not anymore. International peace and security may be
threatened by domestic conflicts, the absence of the rule of law or HR will lead to weak/failed
states. HR now so fundamental, that peace and security cannot be read separately from it.
UN Economic and Social Council (ECOSOC) is originally destined to promote and observe HR.
ECOSOC set up the CommHR, the processor of the HRC. Commission is responsible for the
Bill of Rights and the CERD. The General Assembly and the Security Council have made some
important political decisions in respect to HR. Slow realisation of HR within the UN is because
organs were primary political.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) was
established by the GA. Purpose: mainstream and coordinate the UN’s HR activities and promote
and ensure realisation of HR (making recommendations).
HRC (Human Rights Council): Processor of CommHR and ECOSOC, because of politicisation
(political manipulation) and incredibility of last. Other reasons why HRC instead of CommHR: 1)
USA had lost the requisite majority to thwart Third World politics, 2) monitoring and complaint
mechanism of the Commission became merely symbolical (replaced by (UN) treaty mechanisms),
3) work of the Commission had been assumed by the Third Committee of the GA and the SC, 4)
global climate where human rights collaboration was welcome at all levels, 5) political cost no
longer seemed acceptable to politicians and masses.
No need for Commission because UN was already engaged in HR issues and HR were already
incorporated? One permanent body was needed, otherwise HR agendas would overlap.
Significant political was needed, otherwise ignored, so active participation states. No other system
, within UN where states can discuss human rights issues. Also, courts only resolve one problem at
a time.
HRC is subsidiary organ of the GA, not set up by ECOSOC as the Commission was. HRC
brings HR matters before the GA for discussion. Responsibilities HRC: 1) review of the HR
record of all UN members (UPR), 2) examination and investigation of situations concerning
gross and systemic violations of HR, 3) optimisation of UN’s institutional capacity to deal with
HR.
Optimisation of UN’s capacity to deal with HR: HRC coordinates HR mandates and functions,
mainstreaming human rights considerations into UN policies and actions.
Because HRC has to be impartial, independent, transparent etc. the GA ‘shall take into account
the contribution of candidates to the promotion and protection of HR and their voluntary
pledges and commitments made thereto’. Membership to the Council is based on equitable
geographical distribution among the various regional groups. Ideally states compete for seats and
will be elected by their regional peers on basis of their human right record. In reality competition
within the group is discouraged because seats are allocated under the table by mutual agreement
between group members.
Universal periodic review: born out GA resolution 60/251 par 5(e) (in reader). Comparing to
reporting of treaty bodies: they are confined to limited number of rights contained in the treaties
and only to states that have ratified the treaties. Obligations arising from Charter/UDHR are
more extensive and treaty bodies’ periodic reporting mechanisms are not free form friction and
compulsion (because obligations arising out of treaties are binding, recommendations imply
incompliance). Treaty bodies reports are by independent experts, UPR is premised on peer
review.
Why taking part in a UPR? Risk of political and financial isolation and that its HR record will
eventually surface.
Process: states must submit a national report which discusses the state of human rights in the
country and be prepared on the basis of consultation with all relevant stakeholders. Two distinct
information sources made publicly available: 1) reports of treaty bodies, special procedures,
including observations and comments by the state concerned, other relative UN documents and
2) information provided by other relevant stakeholders, namely NGOs. National report and
information is reviewed by a working group of three rapporteurs (selected from members of the
Council, troika): interactive dialogue, presence of observers and stakeholders. Then deliberation
of troika and adoption outcome. Outcome: summery proceeding, conclusion and/or
recommendations and list of voluntary commitments of the state concerned (not criticising, but
suggestions for improvements). HRC may decide if and when follow up is necessary and may
address all instances of persistent non-cooperation. See HRC Resolution 5/1 in reader.
The Council’s complaints procedure: First there was the 1503 procedure, why an new
procedure? it didn’t require consent of states for the submission of communications by their
nationals like individual complaint mechanisms and it was only triggered with respect to gross
and systematic violations of HR (so ineffective) and it excluded ESC rights and demonstrated a
political bias (unable to act against particular governments). See HRC Resolution 5/1 in reader.
New procedure mainly warning system and complementary political pressure system. All human
rights, but still consistent patterns of gross and reliably attested violations (par 85). Par 105: 2
years to reach an outcome. 106-108: involvement of complainant. Admissibility: application must
not be politically motivated, adequately describe violations, direct (can be second hand) and
reliable information (not only media reports), effective local remedies must have been exhausted
and case must not have been referred to another HR procedure (see par. 87), submitted by
person or group of persons that are victim of violations of HRs, also NGOs.
Complaints/admissibility are assessed by a working group staffed by the members of the
