humr5140 introduction to human rights law autumn 2011 · humr5140 introduction to human rights law...
TRANSCRIPT
HUMR5140 Introduction to Human Rights Law
Autumn 2011
Lecture 2:
Human Rights in International Law:
History, Concepts and Trajectory
This lecture
1. Human rights as part of international law
2. Idealisation, positivisation, realisation: Human rights law as the positivisation of human rights ideals
3. Early fragmented «positivisation»
4. Early 20th Century
5. Post-WWII
6. Quo vadis?
Human rights law is a part of
international law
• Human rights treaties are treaties
– …but with special characteristics
• UN Human Rights Committee:
– The International Covenant on Civil and Political
Rights is “not a web of inter-State exchanges of
mutual obligations”, but concerns the endowment
of individuals with rights.
Human rights treaties
State
State
State
State
State
Individual
Horizontal Relationship
Vertical
Relationship
Interpretation of human rights treaties
ECtHR, Bankovic: The Court recalls that the Convention must be interpreted in the light of the rules set out in the Vienna Convention 1969 … It will, therefore, seek to ascertain the ordinary meaning to be given to the phrase “within their jurisdiction” in its context and in the light of the object and purpose of the Convention … The Court will also consider “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” … Moreover, Article 31 § 3 (c) indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. More generally, the Court recalls that the principles underlying the Convention cannot be interpreted and applied in a vacuum. The Court must also take into account any relevant rules of international law when examining questions concerning its jurisdiction and, consequently, determine State responsibility in conformity with the governing principles of international law, although it must remain mindful of the Convention’s special character as a human rights treaty … The Convention should be interpreted as far as possible in harmony with other principles of international law of which it forms part … It is further recalled that the travaux préparatoires can also be consulted with a view to confirming any meaning resulting from the application of Article 31 of the Vienna Convention 1969 or to determining the meaning when the interpretation under Article 31 of the Vienna Convention 1969 leaves the meaning “ambiguous or obscure” or leads to a result which is “manifestly absurd or unreasonable” …
Interpretation of human rights treaties
• Some particular features
– State sovereignty vs. rights of individuals
– A strong principle of effectiveness
– Evolutive (dynamic) interpretation
– Greater place for jurisprudence
Example # 1
• ICCPR Art. 2.1:
• ”Each State Party to the present Covenant
undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national
or social origin, property, birth or other status.”
• Does the ICCPR apply to acts outside a
State’s own territory?
Example # 2
• ECHR, Article 8.1: Everyone has the right to
respect for ... his home and his
correspondence.
• Are the business premises of a company
protected?
• Colas Est.
Example # 3
• The principle of non-refoulement
• What about the extradition of AIDS patients
to a State without adequate medical
services?
• The N case
The development of human rights
• Three phases:
1. Idealisation
2. Positivisation
– Re-idealisation
3. Normativisation and realisation
(Asbjørn Eide, NCHR)
Ongoing
Ongoing
Ongoing
Phase 1: Idealisation
• Covered by HUMR5131
• Key question: Are human rights values
universal?
– In this lecture: What does “universality” mean in a
legal context?
The objective of positivisation
Human Rights LawEnjoyment
of Life –
Rule of
Law
Fear and
Want –
Rule by
Power
Phase 1:
Idealisation
Phase 2:
Positivisation
Phase 3:
Realisation
What is “positivisation”?
• Positivisation refers to the transformation of
ideals into normative standards – from
morality to law, from soft law to hard law,
from international law to domestic law.
• May view the UDHR 1948 as a first step.
• …but let us take some steps further back.
Early norms pertaining to conduct
during armed conflicts
• The Sumerians, the Babylonians, the
Persians, Ancient Greece, the Roman
Empire, the Old Testament, the first caliph
Abu Bakr: Introduction of rules which
imposed restrictions on the conduct of war
and the means of warfare
• Human dignity, humanitarian considerations
From ancient times to 1900
• Code of Hammurabi, King of Babylon, 1700 BC: Protection of the weak against oppression by the strong
• Magna Carta, 1215: – Denied the divine right of the King
– “To no man will we sell, to no man will we deny or delay justice or right.”
• The Peace of Augsburg, 1555: Freedom of religious belief and expression
• Akbar the Great, 16th century: Religious tolerance, no enslavement, no immolation of widows
• Habeas Corpus Act (1679)
• English Bill of Rights (1688)
• 1776, the Declaration of Independence of the United States declared the equality of all people and the right to self-determination
• French ”Rights of Man” (1789)
• US Constitution, 6th Amendment (1791)
• The Norwegian Constitution (1814)
A necessary sidestep: The three
“generations” of human rights
• First generation:– Liberté
– Civil and political rights
• Second generation:– Egalité
– Economic, social and cultural rights
• Third generation:– Fraternité
– Group and collective rights
• Fourth generation?
The 20th Century
A fundamental schism:
•Wilsonianism
– Favoring individual liberalism (libertè)
– U.S. President Woodrow Wilson: the USA model is the ”flag not only of America but of humanity.”
– ”We are running a race with Bolshevism, and the world is on fire."
•Bolshevism
– Favoring equality and economic rights (egalitè)
– The Soviet was not just the Russian state, but the spokesperson for workers of the world.
– Leon Trotsky: we will ”issue some revolutionary proclamations to the peoples [of the world] and then close up the joint.”
Woodrow Wilson
Trotsky & Lenin
The 20th Century: Attempted positivisation with the
League of Nations
• Rejected the balance of power ”determined
by the sword.”
– Collective security based on international
organization
• Minority rights
• Right to health
• Anti-slavery
• Women’s rights
• International Labour Organization
Catalyst for new attempt:Economic collapse
Food Lines in the USA
during the 1930s
’Great Depression’
Burning Worthless Money:
Hyperinflation in
Germany in the 1920s
Catalyst for new attempt:Devastation of World War II
Dresden, Germany
London, UK
Shanghai, China
Manilla, The Philippines
Catalyst for new attempt:Brutality of the State
Nanking massacre
Japanese forces burying prisoners alive
German forces detain and kill
undesirable citizens
German Program to kill
handicapped people
because they were ‘costly’
to Taxpayers – ‘life
unworthy of living’
Catalyst for new attempt:The potential destructive power of States
USA Atomic Bombing of
Hiroshima in 1945
First Soviet Test of an
Atomic Bomb in 1949
First Chinese Test of an
Atomic Bomb in 1964
Modern positivisationFrom ideals to law: The United Nations Charter (1945)
San Francisco Conference
Drafting of the UN Charter (1945)
1st Session of the UN General Assembly
Central Hall in London (10 Jan 1946)
Human rights in the UN Charter
• Preamble: Determined … to reaffirm faith in fundamental human rights
• Art. 1: The purposes of the United Nations are … To achieve international co-operation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;
• Art. 55: The United Nations shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
• Art. 56: All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.
Modern positivisationFrom ideals to law: The Universal Declaration of Human
Rights (1948)
P.C. Chang from China, Eleanor Roosevelt from
USA, John Humphrey from Canada (of UN
Secretariat), Charles Malik from Lebanon, Vladimir
Koretsky from the USSR
Renè Cassin from France
The UN General Assembly
unanimously proclaimed
the UDHR as a ”common
standard of achievement”
The Universal Declaration of Human
Rights
• Content
– Both CivPol rights and EcoSocCul rights
• Legal status
– UNGA Resolution; not legally binding
– But international customary law
• Truly a “universal” declaration?
Human rights in treaties: Categories of
treaties
• Global vs. regional
• General vs. specific
• Civil and political rights vs. economic, social
and cultural rights
– Fundamental characteristics will be addressed in
lecture # 3
Core international human rights
treaties• International Convention on the Elimination of All Forms of Racial
Discrimination (1965/1969)
• International Covenant on Civil and Political Rights (1966/1976)
• International Covenant on Economic, Social and Cultural Rights
(1966/1976)
• Convention on the Elimination of All Forms of Discrimination against
Women (1979/1981)
• Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984/1987)
• Convention on the Rights of the Child (1989/1990)
• International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families (1990/2003)
• Convention for the Rights of Persons with Disabilities (2006/2008)
• International Convention for the Protection of All Persons from Enforced
Disappearance (2006/2010)Dates: (treaty completed / entry into force)
Regional human rights treaties
• European Convention on Human Rights
• Revised European Social Charter
• American Convention on Human Rights
• American Declaration of the Rights and
Duties of Man
• African Charter on Human and Peoples’
Rights
– Including Protocol on the Establishment of an
African Court on Human and Peoples' Rights
Human rights beyond treaties
• International customary law
• Human rights as “general principles of law”
• Human rights as jus cogens and erga omnes
Are human rights universal? – the
legal response• Different interpretations of the term “universal” (Donnelly):
Anthropological universality
Functional universality
International legal universality
Overlapping consensus universality
Ontological universality
Substantive universality
Conceptual universality
Universal possession
Universal enforcement
Some ongoing developments, some
challenges and opportunities• A “World Court for Human Rights”?
• The recognition of grave human rights violations as a justification for intervention
• Individual international responsibility for violations of human rights law
• The responsibility of non-state actors
• NCHR research project: The legitimacy of multi-level human rights judiciary
• The “legalisation” of international relations
• The fragmentation of human rights tribunals
• A focus on the “wrong” human rights…?
Four schools of human rights thinking
1. Natural school: Human rights as given– Human rights exist independent of positivisation, but
positivisation is to be supported
2. Deliberative school: Human rights as agreed upon– Human rights do not exist beyond human rights law
3. Protest school: Human rights as fought for– Skeptical towards human rights law
4. Discourse school: Human rights as talked about– Human rights law is like any other law, and may be good or
bad
Marie-Bénédicte Dembour, Who Believes in Human Rights? (Cambridge University Press, 2006), or «What Are Human Rights?», 32 Human Rights Quarterly (2010) 1-20
Contact information:
Kjetil Mujezinović Larsen
Associate Professor, the Norwegian Centre for Human Rights
Phone: +47 22 84 20 83
E-mail: [email protected]