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Foundations of Human Rights

Week 1 - Definitions of Human Rights
Week 2 - Different Categories of Rights
Week 3 - Identifying and Classifying Human Rights
Week 4 - History of Human Rights Protection and Promotion in the UK
Week 5 - Human Rights Act - Legal protection of Human Rights in the UK
Week 6 - Human Rights Commission
Week 7 - Media and Non-governmental Organisations (NGOs)
Week 11 - International Human Rights Law
Week 12 - Actors in the International Legal System
Week 13 - The Universal Declaration of Human Rights (UDHR)
Week 14 - The United Nations
Week 15 - International Covenant on Economic, Social & Political Rights
Week 17 - International Covenant on Civil and Political Rights
Week 18 - Regional Human Rights Mechanisms - Europe

Week 1 - Definitions of Human Rights

"Basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. Calling these guarantees 'rights' suggests that they attach to particular individuals who can invoke them, that they are of high priority, and that compliance with them is mandatory, rather than discretionary. Human rights are frequently hold to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognised and implemented by the legal system or officials of a country." James Nickel, 1992: 561-62

People should have a minimally good life. They need access to resources for this to happen. Human rights should not be political. Governments can be audited by looking at how they treat the people based on the people's access to human rights.

Historical Origins

Natural justice - Pre-exists social and political systems. It is universally valid and comes from pure reason. There is a single valid order. Aristotle, John Locke and Cicero both wrote about natural justice.

Equality - All human beings have the same moral status. In recent times, people have seen natural justice for everyone. Aristotle thought it was only for middleclass men.

John Locke saw that we all have rights to: life, liberty and property. Including property in this links with his bourgeoisie attitudes.

What are human rights?

Moral/legal rights - They are two separate categories. Everyone had a basic moral right in South Africa, but there was no legal right for some of these rights for the black and Asian people. Also, a right to education is a legal right in the UK. Moral rights develop into legal rights.

Type of rights

Claim rights/liberty rights - Claim rights are correlated to duty. Claim rights are owed duty by someone, e.g. right to education. Some has a duty to provide it and someone claims this right for it. Without the duty, the right is valueless.

"in personam" - rights holders are identified, e.g. local education authority
"in rem" - rights held against everyone and no one, e.g. holding the right not to have your property stolen.

Rights and Duties - Whom does the protection of human right fall? We all do and owners of rights holders, e.g. governments, systems but not just governments.
"Taking Rights Seriously" Ronald Dworkin 1978. He refers to "rights as trumps". Rights should be prioritised above anything else.

Philosophical Justification of Human Rights

Interest Theory Approach - Human rights protect human interests that are essential. It looks at what is needed for a good life. John Finnis (1980) - appeal to human nature and essential human interests.

Will Theory Approach - It appeals to reason and freedom. Alan Gewirth (1982) - he says we decide what rights are.

Week 2 - Different Categories of Rights

Categories are needed to choose priorities over one right over another as some can come under conflict. Food is more important than education rights. Treating all rights equal can undermine the most essential rights.

Three different generations of rights

  1. Rights to security (state/person), property and political participation. This was conceived at the French Revolution.
  2. Socio-economic rights - welfare, education, leisure - UN Declaration of Human Rights - Resources
  3. National self-determination (governing own country) - clean environment. Rights of indigenous minorities. Collectively looking at everyone's rights together (communities). Problems arise in this generation, e.g. religious teaching being taught in Bradford and it going against the National Curriculum.

Philosophical Criticisms of Human Rights

Cultural Relativism - They claim moral beliefs come from a given society. (Against Kant's Moral Subjectivism - For subjectivists, there is no such thing as an objective moral statement.

JL Mackie - Ethics: Inventing Right and Wrong.
There are no true or false moral statements. E.g.
"I am holding a chair."We can all agree to this.
"Abortion is morally wrong."This is an opinion.
Normative statements are opinions. Subjective ideas should not be passed as being objective. Human rights should be objective and not subjective.

J. Bentham - Human Rights is decribed as "nonsense upon stilts". He recognised legal rights but not moral rights. He was referring to cultural relativism.

Criticism of Cultural Relativism - Capital punishment is morally okay. It is justified if the state does the killing and not an individual. Or is it justifiable? It is a contradiction. Criterion of moral true - universal

Week 3 - Identifying and Classifying Human Rights

There are already a huge number of lists of what are considered to be human rights. There are international, national and regional lists. Human rights need to be classified, as there are so many:

  1. 1st Generation - Civil/political
  2. 2nd Generation- Social/economic
  3. 3rd Generation (Emerging in the 1970s) - Collective/group rights - self determinism

Hierarchy of Rights - The rights in the list can conflict, e.g. right to privacy vs. the media's freedom to speech

How can this be resolved? - Problems are solved using Utility. Right to fair trial is an absolute right.

Week 4 - History of Human Rights Protection and Promotion in the UK

Traditionally, human rights are not human rights unless they have legal protection. Nowadays people are aware moral duties/rights. Legal protection took off in the late 18th century and early 19th century where natural law was popular.

There is no written constitution in the UK. Bentham and Birck did not like the idea of rights. They saw it lead to anarchy, as the rights could never be satisfied.

Rights - how they are protected. Rights improve duties.

Liberty - It is freedom and no imposed duties within the law. States can only do what the law permits.
Civil liberties - freedom of expression, assembly
(See Redmond v Bate case) Breach of the peace, Freedom of speech
The idea was that people had liberty and freedom but no rights as duties were needed.
Magna Carta gave protection from the monarchy but not the state for the people.

Ex parte Simms - This person was in prison for murder. They wanted the case reopened as he thought he was innocent and wanted to talk to the media. The prison governor used the Prisons Act to stop the interviews being published. The prisoner said the orders were stopping the freedom of expression. There was no allowance for the interference to the freedom of expression.

Common law Constitutional Rights (1970s) - Freedom of expression, rights to a fair trial, right to life

Statues - Equality, Race Relation Act, Sex Act, Police and Criminal Evidence Act, Disability

International law - Last 500 years, human rights have been protected indirectly by international law. There is the Council of Europe (European version of UN - 45 members). They drew up the European Convention on HR. The UN has the International Covenant on Economic, Social and Cultural Rights. When the UK ratifies one of the international laws, it doesn't change the UK law. International laws come from the European Court of HR when the UK ratified it in 1951. In 1966, individual petition to European Court of HR (Strasbourg) was allowed. In 2000, the Human Right was formed.

Week 5 - Human Rights Act - Legal protection of Human Rights in the UK

Background - In Labour's 1997 election promise, within the manifesto, there was "bring rights home". So people do not have to go the ECHR for appeals. The act came into force on the 2nd October 2000. it gave further affect to the "convention rights."

Principles of Interpretation - It is regarded as a bill of rights, but the courts does not do as much as they could with it.

Section 2 - when judges make decisions about the convention rights, they have to take into account decisions of the ECHR. The ECHR has 50 years of case law to refer to. There is an obligation to take into account but not to follow it. If they do not follow it, they can take their case to Europe.

Practicalities of the HRA
Section 7 - victim is defined. Rights have to be directly violated. This is to stop interest groups taking test cases to court.

Burden of the act - who must comply
Section 6 - public authorities and functional public authorities (police, local authorities, NHS). Private - limited such as companies, shareholders, etc. it is not mentioned directly in the HRA.
Courts are public authorities. They often deal with a private body vs. a private body. Whenever the courts determine the result, they are affected by the HRA and indirectly that affects the outcome.

For example: Jamie Bulgar Case - They were due to be released from prison but there were a number of people who threatened to kill them if they were found. The boys applied for an injunction to protest their identities from everyone and especially the media. This case was the media vs. 2 individuals and was in a family court and human rights were noted.

Determining Compatibility - Section 10 i & ii
i) My rights have been infringed.
ii) It is accordance with law and was necessary to fulfil a legitimate interest (proportionate)

Primary legislation provides an absolute defence
Section 3 and 4 - interpret compatibility with convention rights. If they say it is incompatible with human rights, the declaration is incompatible. A declaration of compatibility notifies Parliament to change the law.

Week 6 - Human Rights Commission

It promotes and protests human rights. There is one in Northern Ireland but not in the UK. It was set up in Northern Ireland in March 1999 as part of the Belfast Peace Agreement.

Paris Principles (UN indorsed - 1993 - Indications of good commissions)

Functions

Our Government is more interested in joining the existing equality commissions together to make a human rights and equality commission.

Functions of Human Rights Commission

Role of Parliament - Westminster

Sovereignty of parliament - once parliament had passed a law, nothing can interfere in the passing of human rights.

Problems
 Human Right Act and equality acts have been passed by parliament. Parliament has done some bad things in passing laws such as getting rid of double jeopardy and the new Terrorists Act.

Currently there is a Labour majority in parliament with 165 MPs and it can pass laws through easily. The House of Lords can delay the passing of laws. The scrutiny of laws can be limited due to the time and resources available.

Section 19 of HRA - statements of compatibility. When a bill is introduced a statement has to be made about if the bill is compatible with humans rights. This has not been taken seriously.

They set up a Joint Parliamentary Committee on Human Rights made up of House of Commons and Lords members. This committee is being ignored by government and carried out a lot of work on the Anti-Terrorist Act, which was also ignored.

Week 7 - Media and Non-governmental Organisations (NGOs)

Characteristics

NGOs are Non-governmental so they are not a part of the state. Most NGOs base themselves around international human rights issues but sometimes they are domestic. E.g. Liberty and Justice bases work on Human Rights Act

Some domestic NGOs will base work around international standards if domestic is inadequate for their goals/campaign. Some foreign NGOs might not be independent and are connected with a social or political group.

International NGOs - They criticise activities of particular countries:

They are usually involved in drafting of international instruments. E.g. rights of indigenous people. They campaign for reform for human rights protection internationally. They keep databases on countries and there are over 36,000 international NGOs. They are starting to become a part of the way the government works. There are humanitarian NGOs that are giving out more aid to needy countries than the UN.

Criticism of NGOs

Roles of the Media in Human Rights

The media is seen as the most important part of protecting human rights.

Chomsky - He sees the media as serving the middle class elite. It finds the conservative middle ground. He singles out the western media for neglecting their questioning role. This is bad for human rights as nothing is being challenged. He lists 5 filters on the news we receive:

Week 11 - International Human Rights Law

The Horror of WW II led the international community to take steps to outlaw war and ensure that all individuals are protected by from human rights violations. Before, human rights were only the concern of the country with the problems.

The UN - It was established after WWII and replaced the League of Nations. It aimed to: "Save succeeding nations from the scourge of war…and to reaffirm faith in fundamental human rights" (UN Charter) and "to promote and encourage respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion" (Article 1(3), UN Charter)

The International Court of Justice - The UN Charter also created an international court with jurisdiction to settle disputes between states (article 34). It is not a human rights court but a principal judicial body of the UN. It can deal with non-human rights issues too.

Universal Declaration of Human Rights - 1948 - It expanded the human rights provisions of the UN Charter and includes civil and political rights and economic, social and cultural rights. It was the first step in the development of international human rights law but it is not a legally binding document.

International Bill of Human Rights - They wanted to have a treaty that covered the UDHR (1948) and is legally binding so they wrote:

The international system for the protection and promotion of human rights is based in international law

International Law - It is concerned with the protection of individuals and groups against violations of their internationally agreed rights. It places obligations upon states with regard to all persons within their territory. If it is the state that has the obligation, what do they do if the non-state actors are committing the crimes? It is important to understand that international human rights law is a branch of international law.

What is international law? - It is law, which regulates the behaviour of states and places obligations upon states. It is unlike national systems and it is not made by a central legislature. International law has developed through a number of "sources", e.g. not just Parliament as in the UK.

What are the sources of international law? - It is listed in Article 38 of the Statute of the International Court of Justice.

Why do we need to know about the sources?

It enables you to identify whether a certain right exists under international law (e.g. right to peace?) and whether states are prohibited from certain behavior under international law (e.g. torture)
Judicial decisions and writings of publicists as a subsidiary means of determining whether a rule exists
(Article 38, Statute of the International Court of Justice).

Article 38 (1)(a) - Conventions generally known as treaties.

Some International Human Rights Law Treaties

How do treaties work? - They are drafted at international conferences and then they are "open for signature". They become binding upon states when a state signs or ratifies them. Human Rights treaties establish mechanisms to monitor state compliance with their provisions.

Some human rights documents are NOT treaties (soft law)

Article 38 (1) (b) = Customary International Law - Custom is sometimes called General International Law. It is a non-written down law that every states sees as bad even if they do it. It requires evidence of general practice by states and evidence that the principle is accepted as law (opinio juris). Some human rights are part of customary international law:

It binds ALL states unlike treaties which only bind states which are a party to the particular treaty.

Week 12 - Actors in the International Legal System

What is international human rights law? - It is Law that regulates the behaviour of states vis a vis all persons within their territory. Which entities hold rights, responsibilities and obligations in the international legal system? Or which entities have "international legal personality"?

States

States are primary subjects of international law. They possess full international legal personality and are vested with rights, obligations and responsibilities on the international plane. States make international law, sign treaties and are bound by customary international law and liable for human rights violations.

State responsibility - As States are the primary subjects of international law with full international legal personality states can be held responsible for violations of international law. The Legal Criteria for Statehood is set out in: Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States.

Article 1, Montevideo Convention - The State as a person of international should possess the following qualifications: a permanent population, a defined territory, a government and the capacity to enter into relations with other states.

Non-State Actors - International Organizations, Individuals and Trans-National Corporations (TNC)

Do Non-State Actors have international legal personality? - If Non-State Actors can be said to have international legal personality then it is limited. Therefore, in the international legal system they hold only limited rights and responsibilities. E.g. a NSA might be able to become a party to a treaty, be the object of an international criminal prosecution and be able to make an international claim. However, this doesn't mean they have the full set of rights, obligations and responsibilities (States only)

International Organizations - When examining whether an IO has international legal personality one must analyse the function of the IO. This provides an indication of the specific rights, duties and obligations of an IO. Powers vary from organization to organization.

Reparations case: The legal personality and powers of organization do not have to be specifically set out in the constituent treaty. UN has implied powers, which are necessary in order for it to effectively fulfil its functions, therefore, the UN has an amount of international legal personality required to carry out its functions effectively.

Individuals - They are not actors in the international legal system. Certain branches of public international law confer rights upon individuals (e.g. human rights law). Human rights law provides individuals access to certain international mechanisms (subjects). Individuals may be considered as an object of international law for the purposes of international criminal prosecution.

Trans-national corporations - TNC only have international legal personality conferred on it by states. The burden is on host States to regulate their operations.

International Human Rights Law: the non-state actor debate - If States are the primary subjects of international law how does international human rights law deal with the following? Death squads? Rebel/armed opposition groups? Trans-national corporations? Private military companies? Domestic violence? States are responsible for HRVs. The acts of private individuals or groups may constitute a HRV if the state colluded or acquiesced in the act or failed to protect the alleged victim, by act or omission
Note: In such cases it is still the State which is responsible

Under what circumstances can armed opposition be said to have violated human rights?
When they are "parties to an armed conflict" within the meaning of the Geneva Conventions and when they exercise "effective control" over territory, similar to a government.
Note: if these conditions are not fulfilled then the acts of opposition groups constitute crimes under domestic law NOT human rights violations!

Week 13 - The Universal Declaration of Human Rights (UDHR)

UDHR Background
 The efforts to build a "bill of human rights" in to the Charter failed. Human Rights Provisions of the UN Charter (articles 1(3), 55 and 56).
The Economic and Social Council (ECOSOC) created the Commission on Human Rights in 1946. It formulated a "bill of rights" and it drafted a declaration and two legally binding treaties.

The Bill of Rights

It was adopted 1948 by General Assembly Resolution 217. It provides a "Common standard of achievement for all peoples and nations" and Provides a "common understanding". "All human beings are born free and equal in dignity and rights" (article. 1). It contains:

UDHR Rights - What is the scope of each right? Are all rights binding in all circumstances?

Legal Significance
 Not a treaty = no force of law
The UDHR provides authoritative interpretation of the UN Charter (1,55 and 56). It reflects common understanding and is a normative instrument. 

Is the UDHR a customary international law or all or just part of it by looking at each article?

Symbolic impact of the UDHR - It defines what we mean by human rights. It is the basis for the development of international and regional human rights law and a springboard for treaties.

Week 14 - The United Nations

Purposes of the UN - It is to maintain peace and security and it helps to develop friendly relations among nations based on equal rights and self-determination of peoples. It promoting and encouraging respect for human rights - Article 1, UN Charter.

Principle organs of the UN

Specialist Agencies

The Security Council (SC) - It is primarily responsible for peace and security. it can make recommendations for the pacific settlement of disputes and can authorise the use of force. (15 members: 5 permanent (US, UK, France, Russia, China))

General Assembly (GA) - It is the main deliberative organ of the UN. It has the power to discuss and make recommendations on any issue related to the UN Charter, e.g. Peace and security, human rights, humanitarian situations. (Representatives from each UN member state)

Economic and Social Council (ECOSOC) - It coordinates the work of the 14 UN specialized agencies and promotes higher standards of living, economic and social progress and identifies solutions. It also issues policy recommendations to the UN and member states.

The International Court of Justice (ICJ) - It can settle disputes between states and provide advisory opinions to the UN. It applies the sources of international law (article 38, ICJ statute)

The Secretary-General - He is the chief administrative officer of UN appointed by the GA and reports to the GA on work of UN. He can refer a threat to peace and security to the SC.

The UN and Human Rights - Article 1, UN Charter
 "Promoting universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion" (art. 55)
Take joint and separate action to ensure the achievement of 55

UN and Human Rights - The GA, ECOSOC, ICJ, SC all deal with HR issues and in addition the UN has created CHARTER and TREATY based HR mechanisms.

The UN and Human Rights

Treaty Based HR mechanisms

Charter based human rights mechanisms

The Commission on Human Rights
Established by ECOSOC:
It representatives of 53 states sit on the Commission and meets for 6 weeks in Geneva. It adopts resolutions, decisions and statements and appoints country and thematic mechanisms

Country and thematic mechanisms established by the Commission
Special Rapportuers
Act as independent experts with mandates to examine either:

Country specific Special Rapportuers, e.g. Afghanistan , Bosnia, Burundi, Congo and Iraq

Thematic Rapportuers, e.g. detention, health, disappearances, education, extra-judicial executions and housing

Sub-Commission

High Commissioner for Human Rights (HCHR) - 1993 GA appoints the first HCHR - It provides the lead role on HR in the UN and coordinates state and UN action on HR. The high commissioner promotes development, ratification and implementation of HR treaties and supports human rights organs and treaty monitoring bodies and human rights field operations.

Week 15 - International Covenant on Economic, Social & Political Rights

Social - concerned with adequate standard of living
Economic - concerned with adequate standard of living and closely associated with freedom and independence, e.g. right to work
Cultural - right to your own culture, right of authors to benefit from their own production.

Economic, social and cultural rights were grounded in the struggle of the poor. (Article 25 UDHR)
At the Vienna Declaration and programme of action, they claimed that all rights are "universal, indivisible, independent and interrelated".
The body to ensure the rights are kept is the CESCR - the Committee on Economic, Social and Cultural Rights. It cannot take up individual case. Every 5 years the states that have ratified the International Covenant on Economic, Social and Political Rights, have to submit a report on how well they have met the treaty agreement. The committee asks the states questions about the report. Non-governmental organisations can attend the meeting. There is a constructive dialog. The NGOs can submit information such as statistics on human rights violations. Recommendations are made about any problems.
States have an obligation to protect, respect and fulfill rights.

Summary of the Convention - This covenant describes the basic economic, social, and cultural rights of individuals and nations, including the right to:

In addition, this convention forbids exploitation of children, and requires all nations to cooperate to end world hunger. Each nation, which has ratified this covenant, is required to submit annual reports on its progress in providing for these rights to the Secretary General, who is to transmit them to the Economic and Social Council. The text of this covenant was finalized in 1966 along with that of the Covenant on Civil and Political Rights, but has not been ratified yet.

Week 17 - International Covenant on Civil and Political Rights

It was approved by General Assembly in 1966 and came into force in 1976. 150 states have signed the treaty. Fewer states have signed up to the first Protocol. 50 states have signed up to the second Protocol and it is on the abolition of the death sentence. ICCPR protects everyone who lives in a country that has signed up to the treaty (article 2(2 and 3). The treaty gives the right to an effective remedy (the state has to do something to compensate the wrong they have done or admitting guilt).

Derogation - A state declares being in a state of emergency and can legally violate rights if the life of the nation is at risk. They can only derogate specific rights relating to the risk. They have to justify their actions. There are some non-derogatable rights like rights to life and slavery and torture, etc that cannot be scrapped.

Human Rights Committee - It implements the ICCPR and was stabilised by ICCPR in article 28.

Summary of the Convention - This covenant details the basic civil and political rights of individuals and nations. Among the rights of nations are:

Among the rights of individuals are:

The covenant forbids torture and inhuman or degrading treatment, slavery or involuntary servitude, arbitrary arrest and detention, and debtor's prisons. It forbids propaganda advocating either war or hatred based on race, religion, national origin, or language. It provides for the right of people to choose freely whom they will marry and to found a family, and requires that the duties and obligations of marriage and family be shared equally between partners. It guarantees the rights of children and prohibits discrimination based on race, sex, colour, national origin, or language. It also restricts the death penalty to the most serious of crimes, guarantees condemned people the right to appeal for commutation to a lesser penalty, and forbids the death penalty entirely for people under 18 years of age. The covenant permits governments to temporarily suspend some of these rights in cases of civil emergency only, and lists those rights, which cannot be suspended for any reason. It also establishes the UN Human Rights Commission.

Week 18 - Regional Human Rights Mechanisms - Europe

Human Rights is protected by some organisations:

Council of Europe - It was founded when Europe was split from the eastern half and wad mostly Western Europe. It strengthens democracy and the rule of law. It creates laws and treaties. The council provides training too. It wrote the European Convention on Human Rights. The Court of Human Rights and the Committee on Human Rights is in Strasbourg. There is a margin of appreciation allowed under the ECHR where some rights can be forfeited if it is considered culturally okay to do so but only if there is a disagreement on whether it is a right or not. The Committee deals with the judgments of the ECHR and implements their verdict. The European Social Charter makes up for the shortcomings of the ECHR.

Organization for Security and Co-operation in Europe - The Organization for Security and Co-operation in Europe (OSCE) is the largest regional security organization in the world with 55 participating States from Europe, Central Asia and North America. It is active in early warning, conflict prevention, crisis management and post-conflict rehabilitation. The OSCE approach to security is comprehensive and co-operative: comprehensive in dealing with a wide range of security-related issues including arms control, preventive diplomacy, confidence- and security-building measures, human rights, democratization, election monitoring and economic and environmental security; co-operative in the sense that all OSCE participating States have equal status, and decisions are based on consensus. The OSCE work 'on the ground' to facilitate political processes, prevent or settle conflicts, and promote civil society and the rule of law.


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