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 AS PART OF

INTERNATIONAL LAW

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

IDEALISATION, POSITIVISATION,

REALISATION

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

EARLY FRAGMENTED

“POSITIVISATION”

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?

EARLY 20TH CENTURY

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

POST-WORLD WAR II

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

QUO VADIS, HUMAN RIGHTS

LAW?

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: k.m.larsen@nchr.uio.no