Human Rights Law Day 1
DAY 1 – INTERNATIONAL HUMAN
RIGHTS
OVERVIEW
1. History of Human Rights
2. Overview of Human Rights
3. Sources of International Law
4. United Nations
5. International Bill of Rights
6. Key International Human Rights Bodies
7. Human Rights Committee
8. Review
OBJECTIVES
By the end of this lecture you should know
1. Basic information about human rights
2. General information about the United Nations
3. The sources of International Law
4. The instruments that constitute the International Bill of Rights
5. General information about the key human rights treaties and organisations
6. The key functions of the Human Rights Committee
7. General details about the operation of the Human Rights Committee during a session
INTERNATIONAL LAW
1. United Nations Charter
2. Statute of the International Court of Justice
3. Universal Declaration of Human Rights
4. International Covenant on Civil and Political Rights
5. International Covenant on Economic, Social and Cultural Rights
General
- Ethical and or legal claims regarding how states, organisations and individuals should act to
ensure the dignity of every human being is respected
- HR are a moral right - where person makes a claim against another to act in certain way on
ethical grounds
- HR as a legal right - a claim made against another to act in certain way based on a legal
instrument e.g cases, legislation, documents
- There is an importance difference between desires and rights — humans desire many things,
but that should not automatically mean that person has a right to have their particular right
satisfied — not necessarily an ethical or legal obligation to assist in satisfying a desire
- Key features typically attributed to HR
- UN websites typically state that HR have some essential features
, - HR are universal - wherever a person is in the world, an individual has HR, govt cant
take those rights away but can violate those rights — problem of cultural relativism
(different countries and groups have a different understanding of ethics which means
that HR will vary across those countries based upon their cultural ethics)
- HR are inalienable - cannot be taken away by anyone including ourselves
- HR are indivisible - the rights contained in international instruments work together and
are all essential and must respected in order to adequately respect the dignity of human
beings
- HR are of equal importance
- Difference between a 2 term right and a 3 term right — 2 term:the rights holder and the
particular right being claim — people argue that 2 term right is in adequate, need to hold
it as a 3 term right: the right holder, the right itself, and the person who is obliged to
uphold that right
- Wesley Newcombe Hopefuls: published 2 famous articles in the Yale law journal, focusing on
HR language and the need to clarify what people meant when they were making HR claims,
people seem to be using the term ‘right’ in a range fo different ways and he aimed to add clarity
to right discussions
- Proposed that rights could be divided into 4 categories:
- 1. A right/claim right/ right stricto senso: person with this type of right has a claim
against another to do or refrain from doing an act, a person with a duty has an
obligation to do or refrain from doing an act e.g a contract
- 2. A liberty: a freedom (not a right) to act in a particular way, if you have a liberty then
the other person in relation to that liberty has a ‘no right’ e.g if you own a car you can
choose to drive the care or not to, you have liberty to choose that but in terms of that
decision you make another person has a ‘no right’ in relation to it
- 3. A power: A person with a power has the ability to change a legal or moral relationship
with a person who is said to be under a liability — ability to change someone else’s legal
status — if you have a power someone else has a liability in relation to that power
- 4. An Immunity: person with an immunity cannot have their liability legally changes in
correspondence to another’s disability e.g someone with an immunity would be a young
child, young child offers to sell you their car, if they were an adult it would be a valid
offer and they would give the buyer a power or right in relation to their car, but because
they are young and cannot legally enter into that agreement, that child has an immunity
and the buyer has a disability and the buyer cannot change the child’s immunity to
enforce that contract
- Proposed that when someone is using language in relation to rights, you could break down
what they mean with reference to the 4 categories to enhance understanding
- Can appreciate the difference between these rights and their functions
- Sources of International Law
- Article 38(1) of the Statute of the International Court of Justice: there are 4 sources of
international law
- 1. International Conventions: similar to legislation in that the UN bodies or States come
together to produce drafts of what the instruments should look like and then will vote in
favour of that convention
- Only binding on States that agreed to that Convention
- Key source of human rights laws
- 2. International Custom: created when states follow a practice consistency out of a
sense of legal obligation
- 2 key elements for customary international law to arise:
- 1. Consistent effort by the state to act in a particular way
- 2. Opinoi juris: the State has consistency acted in a certain way because they
consider themselves legally bound to act in that way
- Exclusion: pre-emptory rules of customary international law (juscognes) are
binding on all states regardless of consent (states cannot object these pre-
emptory rule) e.g genocide, prohibition against torture, crimes against
humanity,
- Article 53 of the Vienna Convention of the Law of Treaties: treaty is void if it
conflicts with a pre-emptory norm of general international law
- 3. General Principles of Law Recognised by Civilised Nations
- Deals with issues not covered by international convention or custom.
, - 4. Judicial Decisions and the Teachings of the most highly qualified publicists of the
various nations
- First, Second and Third Generation Rights
- Modern revolution
- Liberty - 1st gen: deal with liberty and participation in political life (recognised in 18th
century with French and US declarations concerning rights)
- Rights such as freedom of speech, right to fair trial, freedom of religion, voting
rights,
- Economic, social and cultural right - 2nd gen: recognised in the later stages of the
19th century by social reformists
- Rights to employment, right to housing and healthcare, social security and
unemployment benefits
- Rights which don’t easily fit within 1st and 2nd gen rights: 3rd rights
- Not necessarily civil and political rights or economic, social and cultural rights
- Absolute and non-derogable rights
- Very few rights considered to be absolute - dispute as to which rights should be
considered absolute
- Australian Commonwealth Attorney General:
- Website claims that there are numerous rights contained in the ICCPR are absolute
e.g Article 7 prohibition on torture, Article 8 prohibition on slavery, Article 11 freedom
from imprisonment or inability to fulfill a contractual obligation, Article 15 the
prohibition of the retrospective effect of laws, Article 16 right to recognition of the
law?
- Notes that absolute rights cannot be limited for any reason — no circumstance can
justify the qualification or limitation of absolute rights, cannot be restricted even in a
state of emergency
- Aus parliament has the ability to pass retrospective criminal law regardless of whether
the AG has deemed the prohibition to pass retrospective laws an absolute right — e.g
tax evasion laws often retrospective
- Non-derogable rights: a right that cannot be suspended even in a state of emergency
- Substantial cross over between absolute rights and non-derogable rights
- Key distinction that non-derogable rights can still be limited
- Freedom of religion recognised as non-derogable right, however, under ICCPR Article
18(3) it is possible to limit freedom of religion
- Article 6 right to life - freedom from arbitrary deprivation of life, meaning that you can
have a deprivation of life which is not arbitrary: there are circumstance which justify
taking of life e.g military can deprive enemy soldiers of their life if invading and this is
not a deprivation of life
- United Nations
- Successor to the League of Nations established after WWI under treaty of Versailles
- Key objectives of notion of international co-operation
- Draft of the charter was ratified by 29 countries on 24th Oct 1945 — date of UN formation
- UN consists of 6 keys organs:
- General Assembly - parliament
- Security Council - responsible for maintaining world peace
- International Court of Justice - resolves disputes between states
- Economic and Social Council — states to collaborate on economic and social issues
- Secretariat
- Trustee Council - non-operative currently
- Purpose of UN
- Article 1 UN Charter:
- 1. To maintain international peace and security
- 2. Develop friendly relations among nations
- 3. Achieve international co-operation in solving economic social and cultural
humanitarian problems and promote respect for human rights and fundamental
freedoms
- 4. Insenter for harmonising ????
- UN charter first treaty to make HR a global concern
- Article 13- allows the general assembly to initiate studies and make
recommendations for promoting HR standards
, - Article 55: requires UN to promote respect for HR
- Article 56: which requires all members of the UN to commit to taking action to
achieve respect for HR
- Geneva Conventions
- International Bill of Rights - consists of 3 key instruments
- UNDHR
- Drafted between 1947-1948, designed to be representative of the states
- Elenor Roosevelt prominent national figure in US, involved drafting UNDHR
- William Hodgson, Australian on commission on HR
- 38 counties which voted for the general assembly and 8 states (soviet states)
that abstained from the UNDHR
- HR day 10 December
- No mechanism of enforcement
- Criticisms on UNDHR
- Should have been enforceable from the beginning
- Should have included rights concerning conscience e.g right to
conscientiously object
-Should have included rights as to what happens to us after death
-Should have more protections from minorities
-Should have included rights concerning organ donations
-Should have included a declaration as to when life forms e.g debate as to
whether we are human in the womb or when we are born - when does life
start?
- Should have concerned indigenous rights
- Should have concerned gender/sex rights
- Appears to have a range of rights which don’t seem as important as others e.g
comparison of importance of right to life as opposed to right to leisure
- Should have mentioned capital punishment
- Some are critical of the HR movement in that it emphasises individualism and
moves away from our nature as communitarians
- ICCPR and ICESCR - Twin Bills
- General assembly debated the documents for 12 years
- Covenants require states to take measures to implement human right
standards and can also hold states to account
- Both covenants required 35 ratifications before they both came into force
- 1956 adopted, but another 10 years until they entered into force
- ICESCR - economic, social and cultural rights
- Optional protocols
- 1. Establishment of complaint mechanism
- ICCPR - Civil and Political rights
- 27 articles that support HR principles
- Part 4: range of structural and procedural articles regarding how the HR
Committee will operate and have procedural features about how the
document will work?
- Body to monitor compliance with the document
- Contains optional protocols - optional because these protocols are particularly
controversial and many states were not willing to sign the Covenant if these
were included
- 1. Allows individual applications/complaints to the HR committee
- 2. Abolishes capital punishment
DAY 1 – INTERNATIONAL HUMAN
RIGHTS
OVERVIEW
1. History of Human Rights
2. Overview of Human Rights
3. Sources of International Law
4. United Nations
5. International Bill of Rights
6. Key International Human Rights Bodies
7. Human Rights Committee
8. Review
OBJECTIVES
By the end of this lecture you should know
1. Basic information about human rights
2. General information about the United Nations
3. The sources of International Law
4. The instruments that constitute the International Bill of Rights
5. General information about the key human rights treaties and organisations
6. The key functions of the Human Rights Committee
7. General details about the operation of the Human Rights Committee during a session
INTERNATIONAL LAW
1. United Nations Charter
2. Statute of the International Court of Justice
3. Universal Declaration of Human Rights
4. International Covenant on Civil and Political Rights
5. International Covenant on Economic, Social and Cultural Rights
General
- Ethical and or legal claims regarding how states, organisations and individuals should act to
ensure the dignity of every human being is respected
- HR are a moral right - where person makes a claim against another to act in certain way on
ethical grounds
- HR as a legal right - a claim made against another to act in certain way based on a legal
instrument e.g cases, legislation, documents
- There is an importance difference between desires and rights — humans desire many things,
but that should not automatically mean that person has a right to have their particular right
satisfied — not necessarily an ethical or legal obligation to assist in satisfying a desire
- Key features typically attributed to HR
- UN websites typically state that HR have some essential features
, - HR are universal - wherever a person is in the world, an individual has HR, govt cant
take those rights away but can violate those rights — problem of cultural relativism
(different countries and groups have a different understanding of ethics which means
that HR will vary across those countries based upon their cultural ethics)
- HR are inalienable - cannot be taken away by anyone including ourselves
- HR are indivisible - the rights contained in international instruments work together and
are all essential and must respected in order to adequately respect the dignity of human
beings
- HR are of equal importance
- Difference between a 2 term right and a 3 term right — 2 term:the rights holder and the
particular right being claim — people argue that 2 term right is in adequate, need to hold
it as a 3 term right: the right holder, the right itself, and the person who is obliged to
uphold that right
- Wesley Newcombe Hopefuls: published 2 famous articles in the Yale law journal, focusing on
HR language and the need to clarify what people meant when they were making HR claims,
people seem to be using the term ‘right’ in a range fo different ways and he aimed to add clarity
to right discussions
- Proposed that rights could be divided into 4 categories:
- 1. A right/claim right/ right stricto senso: person with this type of right has a claim
against another to do or refrain from doing an act, a person with a duty has an
obligation to do or refrain from doing an act e.g a contract
- 2. A liberty: a freedom (not a right) to act in a particular way, if you have a liberty then
the other person in relation to that liberty has a ‘no right’ e.g if you own a car you can
choose to drive the care or not to, you have liberty to choose that but in terms of that
decision you make another person has a ‘no right’ in relation to it
- 3. A power: A person with a power has the ability to change a legal or moral relationship
with a person who is said to be under a liability — ability to change someone else’s legal
status — if you have a power someone else has a liability in relation to that power
- 4. An Immunity: person with an immunity cannot have their liability legally changes in
correspondence to another’s disability e.g someone with an immunity would be a young
child, young child offers to sell you their car, if they were an adult it would be a valid
offer and they would give the buyer a power or right in relation to their car, but because
they are young and cannot legally enter into that agreement, that child has an immunity
and the buyer has a disability and the buyer cannot change the child’s immunity to
enforce that contract
- Proposed that when someone is using language in relation to rights, you could break down
what they mean with reference to the 4 categories to enhance understanding
- Can appreciate the difference between these rights and their functions
- Sources of International Law
- Article 38(1) of the Statute of the International Court of Justice: there are 4 sources of
international law
- 1. International Conventions: similar to legislation in that the UN bodies or States come
together to produce drafts of what the instruments should look like and then will vote in
favour of that convention
- Only binding on States that agreed to that Convention
- Key source of human rights laws
- 2. International Custom: created when states follow a practice consistency out of a
sense of legal obligation
- 2 key elements for customary international law to arise:
- 1. Consistent effort by the state to act in a particular way
- 2. Opinoi juris: the State has consistency acted in a certain way because they
consider themselves legally bound to act in that way
- Exclusion: pre-emptory rules of customary international law (juscognes) are
binding on all states regardless of consent (states cannot object these pre-
emptory rule) e.g genocide, prohibition against torture, crimes against
humanity,
- Article 53 of the Vienna Convention of the Law of Treaties: treaty is void if it
conflicts with a pre-emptory norm of general international law
- 3. General Principles of Law Recognised by Civilised Nations
- Deals with issues not covered by international convention or custom.
, - 4. Judicial Decisions and the Teachings of the most highly qualified publicists of the
various nations
- First, Second and Third Generation Rights
- Modern revolution
- Liberty - 1st gen: deal with liberty and participation in political life (recognised in 18th
century with French and US declarations concerning rights)
- Rights such as freedom of speech, right to fair trial, freedom of religion, voting
rights,
- Economic, social and cultural right - 2nd gen: recognised in the later stages of the
19th century by social reformists
- Rights to employment, right to housing and healthcare, social security and
unemployment benefits
- Rights which don’t easily fit within 1st and 2nd gen rights: 3rd rights
- Not necessarily civil and political rights or economic, social and cultural rights
- Absolute and non-derogable rights
- Very few rights considered to be absolute - dispute as to which rights should be
considered absolute
- Australian Commonwealth Attorney General:
- Website claims that there are numerous rights contained in the ICCPR are absolute
e.g Article 7 prohibition on torture, Article 8 prohibition on slavery, Article 11 freedom
from imprisonment or inability to fulfill a contractual obligation, Article 15 the
prohibition of the retrospective effect of laws, Article 16 right to recognition of the
law?
- Notes that absolute rights cannot be limited for any reason — no circumstance can
justify the qualification or limitation of absolute rights, cannot be restricted even in a
state of emergency
- Aus parliament has the ability to pass retrospective criminal law regardless of whether
the AG has deemed the prohibition to pass retrospective laws an absolute right — e.g
tax evasion laws often retrospective
- Non-derogable rights: a right that cannot be suspended even in a state of emergency
- Substantial cross over between absolute rights and non-derogable rights
- Key distinction that non-derogable rights can still be limited
- Freedom of religion recognised as non-derogable right, however, under ICCPR Article
18(3) it is possible to limit freedom of religion
- Article 6 right to life - freedom from arbitrary deprivation of life, meaning that you can
have a deprivation of life which is not arbitrary: there are circumstance which justify
taking of life e.g military can deprive enemy soldiers of their life if invading and this is
not a deprivation of life
- United Nations
- Successor to the League of Nations established after WWI under treaty of Versailles
- Key objectives of notion of international co-operation
- Draft of the charter was ratified by 29 countries on 24th Oct 1945 — date of UN formation
- UN consists of 6 keys organs:
- General Assembly - parliament
- Security Council - responsible for maintaining world peace
- International Court of Justice - resolves disputes between states
- Economic and Social Council — states to collaborate on economic and social issues
- Secretariat
- Trustee Council - non-operative currently
- Purpose of UN
- Article 1 UN Charter:
- 1. To maintain international peace and security
- 2. Develop friendly relations among nations
- 3. Achieve international co-operation in solving economic social and cultural
humanitarian problems and promote respect for human rights and fundamental
freedoms
- 4. Insenter for harmonising ????
- UN charter first treaty to make HR a global concern
- Article 13- allows the general assembly to initiate studies and make
recommendations for promoting HR standards
, - Article 55: requires UN to promote respect for HR
- Article 56: which requires all members of the UN to commit to taking action to
achieve respect for HR
- Geneva Conventions
- International Bill of Rights - consists of 3 key instruments
- UNDHR
- Drafted between 1947-1948, designed to be representative of the states
- Elenor Roosevelt prominent national figure in US, involved drafting UNDHR
- William Hodgson, Australian on commission on HR
- 38 counties which voted for the general assembly and 8 states (soviet states)
that abstained from the UNDHR
- HR day 10 December
- No mechanism of enforcement
- Criticisms on UNDHR
- Should have been enforceable from the beginning
- Should have included rights concerning conscience e.g right to
conscientiously object
-Should have included rights as to what happens to us after death
-Should have more protections from minorities
-Should have included rights concerning organ donations
-Should have included a declaration as to when life forms e.g debate as to
whether we are human in the womb or when we are born - when does life
start?
- Should have concerned indigenous rights
- Should have concerned gender/sex rights
- Appears to have a range of rights which don’t seem as important as others e.g
comparison of importance of right to life as opposed to right to leisure
- Should have mentioned capital punishment
- Some are critical of the HR movement in that it emphasises individualism and
moves away from our nature as communitarians
- ICCPR and ICESCR - Twin Bills
- General assembly debated the documents for 12 years
- Covenants require states to take measures to implement human right
standards and can also hold states to account
- Both covenants required 35 ratifications before they both came into force
- 1956 adopted, but another 10 years until they entered into force
- ICESCR - economic, social and cultural rights
- Optional protocols
- 1. Establishment of complaint mechanism
- ICCPR - Civil and Political rights
- 27 articles that support HR principles
- Part 4: range of structural and procedural articles regarding how the HR
Committee will operate and have procedural features about how the
document will work?
- Body to monitor compliance with the document
- Contains optional protocols - optional because these protocols are particularly
controversial and many states were not willing to sign the Covenant if these
were included
- 1. Allows individual applications/complaints to the HR committee
- 2. Abolishes capital punishment
