Comparative Human Rights: Complete and clear summary of the textbook, all lectures, working groups, jurisprudence and articles
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IHRL Lecture 1 Reading Notes
Putting to rest the Three Generations Theory of human rights - Steven L. B. Jensen
● The so-called “Three Generations Theory of Human Rights”—known for dividing human
rights into three separate generations based on (1) civil and political rights; (2) economic,
social and cultural rights; and (3) collective or solidarity rights
● which has undermined historical complexity, excluded other geographies from the
evolution of human rights and helped instil a hierarchy of rights which has nurtured
analytical complacency and over-simplification. In doing so, the theory has caused
significant conceptual damage to our understandings of human rights in scholarship and
practice. Its wide dissemination may indicate that human rights as a field of practice is
too easily prone to certain fashions and superficial forms of thinking.
● The Three Generations Theory of Human Rights was a product of its time and not an
actual theory of history
THE STRANGE TRIUMPH OF HUMAN RIGHTS,1933–1950*
MARK MAZOWER
● origins of the UN’s commitment to human rights and links this to the wartime decision to
abandon the interwar system of an international regime for the protection of minority
rights
○ League of Nations developed a comprehensive machinery for guaranteeing the
national minorities of eastern Europe
■ regarded as a failure and the coalition of forces which had supported
them after the First World War had disintegrated
○ Germany’s disregard for versailles was seen as sufficient justification for a new
approach which would combine mass expulsion, on the one hand, with a new
international doctrine of individual human rights on the other
■ The Great Powers supported this because they thereby escaped the
specific commitments which the previous arrangements had imposed on
them, and which Russian control over post-war eastern Europe rendered
no longer practicable
■ also supported it because the new rights regime had no binding legal
force
○ the degree to which the principle of absolute state sovereignty was threatened by
these arrangements, the rights regime of the new UN represented a considerable
weakening of international will compared with the interwar League
● So did the United Nations usher in ‘the idea of our time’ – ‘the first international
document of ethical value’ as some of its supporters have claimed? Or are the cynics
right? Did all the talk of human rights serve, rather effectively, to disguise the fact that the
United Nations was not an advance on the League but in fact a step backwards, planting
us firmly once again in that Victorian world of a concert of powers telling everyone else
what to do in the name of humanity?
○ Our answer may depend on whether one believes we would have been better off
without the United Nations all these years
,IHRL Lecture 1 Reading Notes
■ If it is to be valued, minimally, as a genuinely global forum for international
discussion, then it is important to recognize the compromises which were
necessary to bring it into being
● the United Nations did not represent a political community whose
leading members were likely to derogate real power to it
■ On the other hand, sufficient ambiguity was built into the UN’s approach
to allow a new emphasis on human rights to emerge during the Cold War
● The UN bureaucracy itself, smaller member-states – especially
those who linked the human rights agenda to the struggle for
decolonization – and an increasing number of non-governmental
organizations, all found that the pro- visions contained in the
Charter permitted them to highlight issues of human rights
internationally in a way that had no precedent
● The severely formalist approach taken, in different ways, by both
Kelsen and Lauterpacht – namely, that without the precise
definition of rights and the establishment of enforce- ment
mechanisms the UN’s real usefulness in defending rights was
mini- mal – was replaced by an approach closer to that intended
by the drafters of the Declaration who had clearly hoped that
essentially moral aspirations might come themselves to be
regarded as a source of law
○ The historian, however, is in a different position. It does no service to the cause
of human rights to disguise the political struggles and conflicts of interest that
accompanied their emergence into the international arena. On the contrary, a
better understanding of that story, their relationship to prior rights regimes, and
their dependence on the international balance of power may help us recognize
their true weight and worth
TWAIL – “Third World Approaches to International Law” and human rights: some
considerations*
● Best Conceptualized as a Movement
● the interests of Third World have been recently taken by international law, as before the
decolonization and the political independence of Third World coun- tries, they were ruled
only by western powers national laws
○ Badung
● Nevertheless, it is new as an intellectual movement which grew around the 1990s. The
term TWAIL has embraced all scholarships that have advocated a postcolonial approach
to international law inclu- ding those associated with NAIL - New Approach to
International Law, and many scho- lars think that TWAIL have actually emerged from
NAIL
● Since the beginning of its discussions, TWAIL have always paid attention to the human
rights discourse, which has been analyzed by both generations of TWAILers, TWAIL I
and TWAIL II, if one accepts its division
,IHRL Lecture 1 Reading Notes
● In Pooja Parmar words, “a focus on strategies of resis- tance adopted by people involved
in struggles today reveals the centrality of the rights language, but it also reveals the
limitations of human rights law. The language of rights has arrived in our times burdened
with “ideological and historical baggage”
● Since 1945, the United Nations has played a key role in universalizing principles and
norms which are European in identity, whose “principal focus has been on those ri- ghts
that strengthen, legitimize, and export the liberal democratic state to non-Western
societies.”
Chapter 1: International Human Rights Law and Notions of Human Rights: Foundations,
Achievements and Challenges
● Human rights are often labelled (somewhat mockingly) as the new religion, a label which
illustrates the elevated status they appear to en joy
● evident that the term human rights is used freely and sometimes loosely by members of
different disciplines and the public at large, meaning different things – both positive and
negative – to different people, depending on the context and the purpose for which it is
used
● Human rights have an important dual function: they are claims based on particular
values or principles and often also legal rights that entail enti- tle-ments and freedoms
● purported uni- versality of human rights, i.e. their applicability to everyone, everywhere
and anytime, that has given rise to enduring debates
○ ‘cultural relativists’ have raised important chal- lenges regarding the supposed
origins, validity, scope of application and politics of human rights
○ These overlapping debates may be seen as bewildering if not downright
counterproductive, potentially undermining support for hu- man 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
The Development of Human Rights and International Human Rights Law
● The founding document of international human rights law, i.e. 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 humani- ty: that is, inherent rights
● principles of digni- ty, equality and liberty, and are underpinned by notions of solidarity
● Ancient and traditional cultures and societies, and the world’s major religions, share a
deep concern about human nature, ethics and justice
● The United States (US) Declaration of Independence (1776) (and later the Bill of Rights
(1791)) and the French Declaration of the Rights of Man and of the Citizen (1789) were
the outcome of political struggles that drew on natural law and liberal theories of rights
● The Industrial Revolution in Europe was characterised by stark inequalities and the
inhuman conditions in which a large number of children and adults had to work and live
, IHRL Lecture 1 Reading Notes
● In the realm of international law the American and French declara- tions, for all their
influence on national constitutions, did not translate into a state practice that recognised
human rights or which pierced the veil of sov- ereignty
● World War I marked the culmination of a prolonged power struggle be- tween European
states and came at a time of growing calls for indepen- dence and the overthrow of old
orders such as that of tsarist Russia
○ The crisis also gave birth to international institutions, marking a sig- nificant shift
in the system of international relations and international law
■ ILO
○ World War I also bolstered demands for self-determination following the rise of
nationalist movements and declarations by the then US president, Woodrow
Wilson, which resulted in reconfigurations in Eastern Europe
● The measures taken following World War I proved inadequate and failed to build a stable
international order. Instead, the global crisis in the 1920s con- tributed to the rise of
extremist political movements and aggressive nation- alist states, particularly in
Germany, Italy and Japan, and ultimately resulted in World War II
● The objective of the United Nations (UN), which was established in 1945, was to put in
place an effective international organisation built on a system of collective security with
strong enforcement powers
● Parallel developments witnessed the UN War Crimes Commission (1943–1948),41 the
Nuremberg and Tokyo war crimes trials (1945–1949 and 1946–1948 respectively), which
laid the foundation for international criminal law,42 and the adoption of the Genocide
Convention (Convention on the Prevention and Punishment of the Crime of Genocide) in
1948
● The work on establishing a universal human rights system began in the ear- ly 1940s
and culminated in the UDHR in 1948, which was seen as an inte- gral part of the
International Bill of Human Rights then envisaged by the UN. The UDHR is the UN’s
foundational human rights document and the cornerstone for the international human
rights system, setting a framework for the understanding and content of rights that has
stood the test of time
○ The UDHR endorses the universality of human rights according to which all
human beings have the same inherent rights, which should be recognised and
observed universally ‘in a spirit of brotherhood’
○ The UDHR’s status was subject to some debate during the drafting stage, with
some representatives arguing that it constituted an authoritative interpretation of
the UN Charter
■ Most representatives and commentators held the view that it was
essentially a non-binding declaration of principles
○ The UDHR was hailed as a major achievement at the time and since.51
However, it has also been subject to scathing criticism for its supposed empty
rhetoric and ethnocentrism
○ For all its apparent shortcomings, such as the lack of recognition of collective
rights, the UDHR has provided standards that have enabled actors to debate and
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