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Honours Human Rights Colloquium

Section 1 - Democratisation and election rights
Section 2 - Globalisation and human rights
Section 3 - Three freedoms: freedom of thought, freedom of expression, freedom of association
Section 4 - Conflict and human rights

Section 1 - Democratisation and election rights

Lecture 1 - Democratisation

There are many forms of democracy and it is complex and it is not fully possible for every person to rule at the same time.

"Democracy is institutionalised uncertainties" Adam Przeworski - we can never tell entirely the outcome of democracy. If we did, it would be authoritarian. There are many actors involved. The parliamentary/electoral/judicial systems etc do not change much.
Democratisation is becoming more democratic. It involves:

Waves of Democratisation (Huntington)

The first wave started in the late 18th century and ended at the beginning of the 20th. In this period, which included the French and the American revolutions, 15 or 16 countries developed multiparty systems and democracies that came to be known later on as a "Westminster type of democracy".
The second wave started in the 1920s and ended in the early 1960s when it was halted. Some 30 countries democratised during this period.
The third wave started in the mid 70s. The Portuguese Revolution was followed by Spain, then Greece, Latin America, East Asia, South Asia and Eastern Europe.

Democratic Transitions

This is a regime change from one authoritarian regime to a democracy., the authoritarian regime has to collapse first. The seeds of democracy are planted. Consolidation is the process of institutionalising democracy.
Samuel Huntington - he saw a test of democratisation was if there were 2 terms in office with different groups on power. Consolidation had occurred.

Lecture 2 - Measuring Democratisation

Why measure democratisation?

A means of seeing where a state is to chart changes over time and to see how successful the changes are. You can then compare the countries.

Can you measure democracy?

There is no real consensus of what is democracy. Using a concept does not always sum up the full meaning as it involves abstraction and creates distortion. It is hard to measure the elements of democracy, e.g. how do you measure civil society?
David Beetham - example of qualitative measurement
Poulity - Geer, Freedom House - quantitative measurement

Lecture 3 - Why a state goes from a non-democracy to a democracy?

Three explanatory factors for democratisation:

Socio-economic

It was one of the first explanations for democratisation (Lipset). He saw socio-economic change and growth would lead to democracy. People think that it increases their ability to organise themselves were they become industrial. It increases education for the industrial working and leads to cognitive education where people start to want to hold their leaders to account. Communication starts to spread and informs people. This mobilise the people to make demands for the government. More wealth leads to trust and less division. You need a middle class for democratisation it can be argued.
Criticisms - it relates to wealth being evenly distributed rather than average GDP per person. The GDP per capita is not enough to be looked at for signs of democratisation.

Political

A lot of Latin American countries tried to democratise whilst suffering economic decline. The transfer of power in an authoritarian system is very unregulated. The leaders can get very old and other elites become unhappy with the old ways of the system. Democratisation might get rid of the old leaders so the elites may push for it so they can be voted in. Coercion is risky and expensive and the military could defect.
Civil society - previous experience of democracy gives people a realistic idea of what it involves.

Geo-political

This is external factors outside of the country. This can include direct pressure to democratise such as sanctions and giving aid to only states that meet certain conditions. Both Iraq and Kosovo are not really democratic. There can be a domino effect of democracy where it happens when countries share a cultural ideology.

Lecture 4 - Election rights, electoral systems and democratisation

This includes such rights as elections being free and fair and regular with the ‘obligation of result’ based on freedom and impartiality. From the UDHR and the International Covenant on Civil and Political Rights, elections must be held periodically and feature the following:

There is no convention on electoral rights specifically.

Lecture 5 - The Manipulation of elections and electorates

This is where political actors intervene in the electoral process to give them extra advantages over other actors. Not all manipulation is illegal.

Manipulation of voter choice

Manipulation of procedures

Section 2 - Globalisation and human rights

Lecture 1 - Defining globalisation

Defining globalisation

Do we live in a globalised world?

How does globalisation affect us?

Lecture 2 - Globalisation and Human Rights

International human rights law - state trade relations
Different branches of law are integrated with each other. This can create tension. Human rights seem to be neglected in relation to trade law. Human rights can help to regulate trade law. Law is essential for globalisation in order to regulate.
Marxist - rights do not really exist and so don’t protect people.

Does globalisation come from above or below? Countries that do not accept economic and/or social rights would see globalisation of these rights as above. The above view is that only states can violate human rights. Globalisation from below sees that it is more than just states violating human rights. There are gaps in the law that can be filled in by human rights law.

Liberal states - Right to ascent - if equality or liberty is violated, boundaries are there to tell us how to ascent. There are procedures for victims to get justice. The system can constrain us too as there is a limit to how many people can have their cases seen. You can no go directly to the international court but need to try all domestic remedies first.

International Commissions aim to recognise, respect and protect human rights and recognise obligations.

Should international and financial groups have human rights obligations? However, by doing this, there is a danger that making Coca-cola on the similar level as the state. if the state regulated human rights better, multinational cheap labour would not occur and rather would avoid this problem. We could use international trade law to make multinational companies accountable so this would no longer need human rights law.

Globalisation requires the law but law prevents change. The law does not change as fast as globalisation requires it. Changes in state law are a lot easier than in international law. There is no binding law of indigenous rights at the moment but what about immigration and refugees? The law does not cover economic migrants.

AIDs - international property rights of the drugs versus the right to life. Brazil and South Africa are providing the medicines regardless of patients on the drug’s design.

Lecture 3 - Globalisation from the south and the struggle for the implementation of human rights

For what are southern movements fighting?
How are the south and north movements different in their human rights approach?
Is there a north versus south category in globalisation?

Globalisation - a set of complex processes and links to how we relate to others where people seem closer.
It is not only economic reasons as people come together to protect themselves, their environment, children, lifestyle, etc. NGOs are the key to help bring coalitions together. There are local and national NGOs and nation ones link countries together. However, NGOs are not always representative. The human rights law isn’t always good in itself but human rights is seen as a mechanism by the social movements to create change. This is because human rights are universal and we all need a moral discourse.

Globalisation from above

Globalised localism, e.g. speaking English but it suppresses languages, using the dollar outside the US undermines local currencies.

Globalisation from the bottom

South Africa - AIDS - allowing the government to buy the cheap versions of drugs rather than from the multinationals. The right to health (essential medicines) versus the US intellectual property. The South African government created a commission to look at the prices. The government got to produce the medicines themselves. The US threatened South Africa through trade restrictions and did restrict some trade.
South America - the disappearances of young people and their children being re-homed.

Lecture 4 - Globalisation and migration

Lecture 5 - Global Security and Human Rights

Section 3 - Three freedoms: freedom of thought, freedom of expression, freedom of association

Lecture 1 - ‘To live in freedom’

UDHR article 1 – “all human beings are born free and equal in dignity and rights.”
It is easier to say what is unfree than what is free. The purpose of development is to achieve real freedom like through educating.
Sam - Freedom is a means and an end. His hypothesis is that a country with a free press never has a famine.

Freedoms are usually negative. There are three dimensions of a right/freedom:

Equality of freedom - what is radical about human rights isn’t human rights itself but its universality through equality. Self-determination, gender and race are the most significant issues in the 20th century. Racists haven’t moved with the paradigm shift.

Three sets of values:

Freedoms and historical analysis

Freedom of religion comes from freedom of speech. The Schism (1054) => Protestantism => etc
Freedom of association came from workers coming together to create trade unions.
Paradoxically, struggles for rights can lead to war!

Lecture 2 - Article 18 - UDHR

There is a lot of disagreement on having a convention on the equality of women but not for race. There are a few agreements during the 1960s-1980s on religion to create a convention. The concerns were of secular discrimination, e.g. Eastern Europe and one religion discriminating against another. Both Nazism and Marxism are atheistic. During 1964-1981, it took this long to agree a declaration on religion. Freedom is to change religion or belief is contested in many states, e.g. how can you change to what would be seen as ‘wrong’ or ‘inferior’? Not only that, this new belief might go against the teachings of the dominant belief in the state.

Has anyone got the right to convert someone to their beliefs?

Internal beliefs - thoughts
External beliefs - how you worship or act religiously
Externally can easily be limited but it is hard to limit thoughts except though indoctrination. External beliefs can be limited so these behaviours do not undermine other people’s fundamental freedoms and rights such as excessively criticising a religion to the point of, say, burning down a church. You are also not required to adopt a particular religion so force is wrong.

Lecture 3 - Freedom of Expression

Freedom of expression is not only being allowed to speak and even about being suppressed. Freedom of expression has to be within the rule of law. Restrictions shouldn’t be arbitrary and should be in the framework of a democratic system. There had to be restrictions to allow the maximum freedom. It is a balance. These restrictions will be discussed: UDHR - articles 18-21 Article 21 is about democracy and rights are not absolute.

There are three categories of speech: political, artistic and commercial.

Lecture 4 - Hate Speech

Religious symbols in schools, Sikh play, Jerry Springer the Opera.
Should a state censor anything?
Are there limits to freedom of speech? We would probably question humiliation and hatred. The internet is uncensored and this can be a tool to spread hate. At the same time, it brings different people together.

Lecture 5 - Freedom of Information

Freedom from the abuse of power by the government? However, the government has a duty to provide information. The people have a right to know.

Nixon/Watergate - this created a need for freedom of information. It led to the idea of open government where the citizen is allowed access to government information and meeting details. This is to avoid corruption or being accused of it

www.informationcommissioner.gov.uk - a fish bowl democracy where politicians are held to account?

With the passing of freedom of information laws, there are still exceptions to what information can be easily released such as information that might risk national security and commercially sensitive data. We should consider typed documents, files and emails too. There is a shift from being reactive and giving information if asked to being proactive where information is readily available online. There remain privacy laws versus freedom of information and the public do not have a right to know everything.

Section 4 - Conflict and human rights

Lecture 1 - Conflicts

Conflicts are organised political violence
Is there a causal relationship between human rights and conflicts? If there is, demands can be made on states. Law does consider issues of liability and so if a state does not have responsibility of abuse, they cannot be taken to court. Simply because B happened after A you cannot say that A caused B. In this way, just because a state treats the people in a particular way, they cannot necessarily be blamed for political violence within the state. State human rights abuse can create civil war but not necessarily. Can you prove that human rights abuse created the conflict?

Kosovo - it is part of Serbia with two provinces where Kosovo is one of them. The majority of the people there are Albanian. These people felt pushed out of society and felt targeted. With repression, conflict builds up and up but there is no sign of conflict since the government moved in to suppress the people so they were terrified through political coercion.
Zimbabwe - there is not much conflict because life is so harsh that the people are focusing on surviving and not on conflicts.
Iraq - the sanctions prevented the people from revolting.

The collapse of an economy can also stop violence. Repressing people for a long time can lead to violence because they become so desperate. In some cases, groups engaging in violence do so not because of the human rights violations but because they have a goal or motivation (some times religious or political).
Article 1 and 2 of the UN Charter and the UN preamble - this assumes human rights violations can lead to violence.

There needs to be a move from humanitarian aid (food, shelter, tents, etc) to a protection system. You need to solve why the people are hungry, being moved on from their homes by the government rather than just giving out food, e.g. Rwanda.

If there are human rights violations, does this justify violence?

This means the violence is not 100% wrong in legal terms since the violence was through protecting oneself and not used arbitrarily. Only the state is allowed to use force but from the way the state is behaving, it can make the people use political violence. There are two actors: the state and states outside. As far as the state is concerned, they will not see the violence as justified and may see it as treason by undermining societal structures. External states may not see it as wrong because of the difficult internal situation. It is not allowed but can be justifiable where it is not prohibited.

Colonies - Being rules by another group of people with no self rule. Colonies are geographically separate. It is difficult if we looked at it in terms of nations since Scotland is a nation. If A is wanting to break from B to have self-determination, it is tricky if state C helps state C since B will see it as an act of war from state C. It is illegal to assist a colonial power but legal to support a colony breaking away. However, the colonies are only allowed to seek assistance but it is irrational for this to be illegal if this is answered. The law does not cover the response but it is assumed that this is allowed. This does not apply in UN practice to nations breaking away in countries such as Scotland froth the UK. If a state excludes a group of people from public life of the state such as from voting, then there might be a theoretical right for a nation to seek a right to self-determination. This does not refer to people not being allowed to speak their own language and other sorts of restrictions. It relates to whether the government is legitimate to represent all the people if it is excluding certain groups. In this case, the people might be allowed help from an external state.

Intervention

You can intervene into a country if you are protecting your own state property, e.g. nationals (your own people or the embassy) Article 51 of the UN Charter refers to self-defence. It is allowed if the Security Council orders action if there is an international threat to security (article 27 and 39)
The first time the Security Council agreed to order action was when Iraq invaded Kuwait. Both Kurds and Marsh Arabs revolted. Since the Kurds were mass-moving into Turkey and Turkey did not want them so it raised a security issues. These are situations in states that are so difficult and horrible that something needs to be done but it can too hard to get it through the Security Council because of politics, e.g. Russia did not want intervention of Kosovo to go to the Security Council since they did not want to be put into a position where politically they had to veto it. They did not want to prevent assistance in the area so they looked like they were siding with the Serbians through voting. This shows that it can be politically difficult where hands can be tied. It is state responsibility to protect the people (failed state - Somalia) or the state is doing the abusing, as in Kosovo. There is a high panel of the UN to avoid the UN being sidelined.

Lecture 2 - Legal Framework

Resort to force in international law: self-defence - territory and nationals abroad.
Security Council authorisation
Humanitarian intervention - responsibility to protect. Humanitarian intervention is problematic as it is decentralised. Do these people need saving?

Ian Brownlie - UN Charter has created clarity in the rules (article 9 and chapter 2). You should not be allowed to intervene as it can be abused. In this way, there is no right to humanitarian intervention.

UN failed to deal with the genocide of Rwanda.

Bosnia - there are two parallel societies with unofficial schools and universities for Albanians. Tensions grew. It could grow into Macedonia where they have a minority of Albanians too. No country could go to the Security Council because Russia was a traditional ally of Serbia. Albanians were Muslims and it can be seen to defeat the idea that Europe never protects Muslims. Some people would not want to intervene as it can undermine state sovereignty.

Swedish Report - their findings was that states should always go to the Security Council even if they say no - what is better, do it anyway when told no, or do it when you know its going to be a no if asked? It is never lawful but the right thing to do. The focus is on intervention. It is illegal but morality can apply to states as well as individuals.

Canadian Report - this was sent tit hr UN. States have a legal responsibility to protect their people. Failed states no longer protect their people or if the state refuses to protect the people. In these cases, the UN Security Council should act but if they do not, something still needs to be done. The focus is moved to the victims - if states fail, it could be the world’s responsibility to. The scale over time and the sorts of rights bring violated need to be considered. There is a residual responsibility.

How does a conflict impact on human rights?

What is worse: transnational or home grown terrorism?
Human rights violations can be more controlled in arm conflicts by armies since they occur in specific areas and the behaviour of armies are meant to be regulated. States tend to overreact when there is organised political violence since the authority of the state is challenged.

Regulate:

If you feel unprotected by the state, you wont be loyal to it. Human rights should apply to peace time and war but the situation will lead to specific human rights limitations, e.g. right to privacy. This however doesn’t give a state the right to abuse of rights during wartime.
Who decides and what is decided? Limiting rights is done to protect the country. A threat to fundamental institutions of a country by a terrorist may be justified.
Article 5 of the European Convention on Human Rights prevents “arbitrary killings/detentions.”

Lecture 3 - Derogation

In times of emergency, states tend to modify laws to hold people. In European case law. It allows using deregulation if only part of the territory has conflict.
Derogation - opting out of certain rights laws or specific articles in times of conflicts. You need a good reason to derogate. Torture, arbitrary killings, slavery, most discrimination are not derogative. You need to show derogation is needed and the response is proportional. Things usually limited are privacy, freedom of assembly and due process.

Lecture 4

Terrorism

Most terrorists form within a state and is directed at that state, the scale of nature tends to make them go beyond a state. They tend to have a political agenda. It might be possible to talk to some of the groups. Where demands are impossible to be met, there is no way to negotiate. Defining terrorism is hard, as states do not want to restrict themselves by creating legal loopholes. Bearing in mind some people are terrorists, whilst to others, they are freedom fighters.
Geneva Convention Protocol 1 - 1977 - article 57 para 2 - spreading terror across civilians is prohibited.
Defining terrorism leads to which states can try a terrorist. The place where the acts can take place or the nationality of the terrorist or by a state that has a stake in the terrorist act.
Some crimes are of universal jurisdiction so any state can prosecute, as it is an offence against everyone. Treaties have made some crimes ‘international’ - “Aut dedere aut punire" (extradite or punish). Either try the criminal or hand him over to a state that will, e.g. political assassinations, aeroplane hijacks.

Extradition - you can not use extradition if the defendant claims they did what they did as it was politically motivated.

911 - Security Council - resolution or counter terrorism measures - based on the finance of terrorism.
US claim that human rights law does not apply in times of war and this includes the ‘War on Terror’.
3rd Geneva Convention - (detainees) The US claimed this convention is not applicable to the detainees in Afghanistan. By going around legal rules, this undermines them. Human rights violations can occur if you say protection laws are not applicable. We need rules to ensure we do not detain an innocent person. Some countries have transferred people to the US who are claiming some laws are not applicable.

Jus in bello

International humanitarian law tries to limit the suffering caused by war through protecting victims and their fundamental rights regardless to the side they are on (neutrality). This uses jus in bello (law in war). Its covers the warring parties whatever the reasons of the conflict regardless of the cause being are just. In international armed conflict, it is hard to know who is to blame. Civilians need not only protection from the opposing side but also the fighting so methods of warfare need regulating.

Jus ad bellum

Jus in bello remains independent of jus ad bellum or jus contra bellum (law on the use of force or law - justification for the war and the prevention of war) to ensure the war is just.
UN Charter Articles 2.4, 2.7, 51 - self defence. Both the victim and the aggressor are both bound by the rules of law.

Is the ‘war on terror’ a global war so you can attack anywhere? States tend to see things as a law and order issue rather than an armed conflict.

Protocol II article 41 - this defines the difference between civilians and the military, and non-fighters and fighters. Combatant is a legal term - having a legal right to fight. By there being a state of armed conflict, combatants can be killed at any time (prot I, art 44). Article 43 is customary law. The US hasn’t ratified Protocol I. Military medics and clergy are not combatants and should not be killed. If the Territorial Army are put into the army, they could become combatants too, if there is an emblem, they openly carry arms, have a hierarchy and follow and the means and methods of warfare. As Al Qaeda do not adhere to the means and methods of warfare, they cannot be called combatants. A civilian is a not a member of the armed forces and does not fight. It was necessary to clarify who is participating in the hostilities if you include indirect people like people supplying food to the combatants. It has to be direct participants.

Armed conflict law is not based on hindsight. Either something is military or civilian so if both military and civilians use a bridge, it can be a legitimate target if there is a good military reason to remove it. It is assumed a church or house is a civilian building.

Catholic doctrine of double affect - when doing X to try to achieve Y, you might do Z. this needs to be some consideration of the outcome of Z so to have a just war as the end shouldn’t always justify the means. Protocol I requires thought on the outcome of the war. Article 51 refers to indiscriminate attacks such as bombardment. This is not allowed, as it doesn’t use targeting. You have to weigh civilian deaths and destruction of buildings against the direct military advantage. If the weapon is inherently indiscriminate, it can not be used, such as gas. By creating too much suffering that the soldiers have to injure, such as using dumb-dumb bullets that shatter on impact as this can be called torture.

Lecture 5

Can a country attack a dam?

To answer:

You have to prove that the dam (that has a road on the top of it) is used to move troops across it. The dam is also a source of power. However, the power generation doesn’t only affect the local area where the dam is located as it is plugged into the national grid. The dam may well be a military objective BUT (prima facie): there has to be a consideration of how the dam is attacked to minimise civilian harm. What would happen to the removal of the dam wall? Massive flooding? Could only the road on the top be damaged rather than the dam wall itself?

There is no such thing as a due-use object (being both military and civilian) except in proportionality.

4th Geneva Convention

Article 27-34 - applies to civilians in occupied territory.
Article 35-46 - only applies to civilians not in an occupied territory

Internment - this is used because someone has committed a crime or suspected of doing one and they are locked up for security reasons without a trial.

Cluster bombs

It is like a pick-a-mix bag of weapons - article 35, Protocol 1 (customary law)
Cluster bombs tend to include anti-personnel mines (Ottawa Convention)
Some weapons are prohibited whilst some are limited. Poison gas and dumb-dumb bullets are not allowed to be stockpiled.
There are issues with proportionality with cluster bombs. They can be used but it is very difficult of what to do if parts of the bombs do not explode. How are these cleared up?

Internal conflicts

A group is engaging acts of violence against the state with attempts to undermine the state. The state cannot regard the fighters as combatants as they do not have the right to fight. They are then not given prisoner of war status.
Geneva Convention Protocol 3, common article 3 - contains law that binds on all parties to cover internal conflicts (non-state actors too).

Protocol 2, article 5 - detaining ex-fighters
Article 13-18 - like means and methods
Protocol 1 - what you can do
Protocol 2 - what you can not do

Enforcement

War crimes need to include court marshals and criminal court proceedings (not only Nuremberg).
Human rights law related to what the state is required to do at the international level.

‘Grave breach’ - the term relates to the protocol it is referred in. There is a requirement to seek out grave breach criminals and prosecute them. There is a legal obligation to prosecute.

US - it thinks that human rights law is not applicable when as armed conflict law is applicable.

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