Week 4: Human Rights and International Law of The Sea
Public International Law | LLB International and European Law | Year 2 | Block 2
Lecture 1: Human Rights
What are Human Rights?
● = norms with the aim of protecting people all over the world from a variety of abuses,
whether it be social, legal or political. Not only are they norms, but also rights of
individuals that are law. Most human rights are ‘claim rights’, which impose duties on
their addressee’s (usually, states).
● There are various different schools of thought within human rights (Dembour, 2010:
○ Natural school — human rights are a given.
○ Deliberative school — human rights are agreed upon.
○ Protest school — human rights are fought for.
○ Discourse school — human rights are talked about.
● Additionally, human rights are usually organized as generations, or categories (as well
as when they started to be developed):
○ Civil and political rights during the age of enlightenment (1800).
○ Economic, social and cultural rights during the industrial revolution (1919).
○ Collective rights with decolonisation, post WW2 (ie, right to self determination)
(1940s).
■ Despite human rights being a large part of international law today, they
are permanently tied to their domestic law roots.
The Development of Sources of Human Rights Law
● 1945: UNC, article 1(3) provides that promoting respect for human rights and
fundamental freedoms is one of the purposes of the UN. The Charter also refers to the
principles of non-discrimination and self-determination. Despite elements of human
rights and the respect of these rights being stringed throughout parts of the UNC, it does
not include a full catalog of what the human rights actually are.
● 1946: ECOSOC (arising from art 68 UNC), established the Commission on Human
Rights. A year later, the Commission authorized the creation of a preliminary draft of an
International Bill of Human Rights. The first draft was proposed but a year later, and the
final version was adopted at the end of 1948: the Universal Declaration of Human
Rights.
○ Note: the UDHR, despite its importance and the initial intent to make it a treaty,
remains but a General Assembly resolution, which is why it is titled simply as a
‘declaration’. Nonetheless, scholars today have agreed it is now CIL (or, if not,
should be considered part of the general principles).
○ Contains 6 families of rights: security, due process, liberty, political, equality and
social rights.
○ This Commission experienced particularly great expansion after decolonisation
(50s, 60s).
, ● While there were attempts, it was not possible to create one treaty for all rights (civil and
political, as well as economic, social and cultural rights) due to lack of consensus
amongst states. Therefore they had to wait on the creation of two separate treaties.
● 1966, ICCPR + ICESCR completed and adopted as treaties.
Universality vs Cultural Relativism
● Major debate surrounding whether human rights take into account local particularities,
and thus, if they are a Western product. While the UDHR is a comprehensive instrument
containing both C+P and E+S+C rights (universal), the ICCPR / ICESCR reflect the
East (ESC focus) and West (CP focus) divide during the Cold War (cultural relativism),
which forced the treaty to be split in two.
● VIENNA DECLARATION AND PROGRAMME OF ACTION, 1993: “claimed that human
rights are all universal, indivisible and interdependent and interrelated.”
○ While the significance of national, regional and historical particularities need to be
kept in mind, ultimately it is the duty of states to promote and protect human
rights and fundamental freedoms.
Modern Sources of International Human Rights Law
● Continued Presence of South Africa in Namibia Advisory Opinion (1971) — UNC
imposes on states the obligation that they at minimum comply with a core set of human
rights, given that the Charter refers to them.
● TREATY LAW
○ While the ICCPR + ICESCR are the main treaties, there are also other global
human rights treaties, including CAT, CEDAW, CRC, CRPD etc.
○ As for the regional level, there are international treaties. The European System is
that which has most human rights treaties, including ECHR, ESC, CFREU and
Council of Europe treaties.
■ The Council of Europe includes Azerbaijan, Turkey, etc. — thus wider
Europe, not only the European Union.
■ Don’t confuse the legal character of the treaties between global and
regional — equally binding for signed and ratified states!
● CUSTOMARY INTERNATIONAL LAW: All (or at least, most) UDHR rights have gained
CIL status.
○ Evidence of a custom can arise from UNGA resolutions and statements made in
other International organizations, so long as they reflect a clear commitment of
the international community towards certain values.
○ The entrance of human rights into CIL can help to impose obligations on persons
other than states, such as multinational corporations.
○ Also important to note that not all treaties are universally ratified and ratifications
may come with reservations.
Human Rights Obligations
