Lecture 1

Introduction
Lecturer: Eoin Delap
 International Human Rights Law
• Eoin Delap BL
▫ [email protected]
• Review of substantive international human
rights law
• Focus on European Convention of Human
Rights
• Critical assessment – universalism v. relativism
 International Human Rights Law

1. Get good text books

2. Read the cases
3. Build critical assessment
through academic literature
Development of International Human Rights
• Prior to the Second World Wars, human rights were largely
protected under national law but not under international
law

• Ad hoc instances of state liability for harm to aliens

• The most important departure in this regard was the

adoption of the Universal Declaration of Human Rights in
1948

• This and subsequent documents repositioned human rights

as parts of international law
 Early Human Rights Instruments
• Magna Carta 1215
▫ Was a “human rights” instrument drafted in order
to address persistent violations of ancient customs
by King John

▫ Magna Carta contained many freedoms and rights

including freedom from excessive taxation,
equality before the law, and the right to inherit
property
Early Human Rights Instruments
• Bill of Rights 1689
• Was a restatement in statutory form of the Declaration of Right
presented by the Convention Parliament to William and Mary in
March 1689

• Lays down limits on the powers of the Crown and and sets out
the rights of Parliament and rules for freedom of speech, the
requirement of regular elections to Parliament and the right to
petition the monarch without fear of retribution, the right to
keep and bear arms

• Ideas behind the Bill of Rights were inspired by the thought of

John Locke
 Early Human Rights Instruments
• Declaration of Independence (1776)

• American Constitution (1787)

• Declaration on the Rights of Man (1789)

• Bill of Rights (1791)

 Early Human Rights Instruments
• American Constitution served as an example to
other nations in the development of their own
constitutions

• Until the Second World War, individual nations

had the primary competence for protecting
human rights
 Geneva Convention (1864)
• Aimed to improve the conditions of the wounded in
war
• Main principles were:
▫ the relief to the wounded without any distinction as to
nationality
▫ Neutrality (inviolability) of medical personnel and
medical establishments and units
▫ The distinctive sign of the red cross on a white ground
• Subsequent Geneva Conventions aimed to address
the treatment of individuals in combat
Human Rights After the Second World War
• The atrocities committed during the Second
World War provided a major impetus to the
drafting of human rights documents at the
international level

• Serious issues of legality arose, including

concerning the nature of rights, in particular at
the Nuremberg trials
Human Rights After the Second World War

Sands, Philippe, East West

Street (Penguin, 2016)
Justice Jackson’s Speech at Nuremberg
Justice Jackson’s Speech at Nuremberg
“Never before in legal history has an effort been made to
bring within the scope of a single litigation the developments
of a decade, covering a whole continent, and involving a
score of nations, countless individuals, and innumerable
events. Despite the magnitude of the task, the world has
demanded immediate action. This demand has had to be met,
though perhaps at the cost of finished craftsmanship. To my
country, established courts, following familiar procedures,
applying well-thumbed precedents, and dealing with the legal
consequences of local and limited events seldom commence a
trial within a year of the event in litigation.
Justice Jackson’s Speech at Nuremberg
“Yet less than 8 months ago today the courtroom in which
you sit was an enemy fortress in the hands of German SS
troops. Less than 8 months ago nearly all our witnesses and
documents were in enemy hands. The law had not been
codified, no procedures had been established, no tribunal
was in existence, no usable courthouse stood here, none of
the hundreds of tons of official German documents had been
examined, no prosecuting staff had been assembled, nearly
all of the present defendants were at large, and the four
prosecuting powers had not yet joined in common cause to
try them.
Justice Jackson’s Speech at Nuremberg
“I should be the last to deny that the case may well
suffer from incomplete researches and quite likely will
not be the example of professional work which any of
the prosecuting nations would normally wish to
sponsor. It is, however, a completely adequate case to
the judgment we shall ask you to render, and its full
development we shall be obliged to leave to
historians.”
 The United Nations Charter
• The United Nations Charter was signed in San
Francisco in October 1945
▫ Specifically mentions right to self-determination
and right to non-discrimination
▫ Protection of minorities also central
• The Charter doesn’t directly protect human
rights
• The Economic and Social Council was
empowered by Art. 68 to create commissions on
thematic issues including human rights
Human Rights After the Second World War
• Ecosoc first convened in early 1946
• Established the Commission on Human Rights
under commission Eleanor Roosevelt
• The Commission set about drafting an
“International Bill of Rights”

• Commission on the Status of Women also

established in 1946
Human Rights After the Second World War
• Three working groups were formed to draft the
Bill of Rights
▫ The first worked on the non-binding declaration
• The other two worked on the binding articles
• The first group agreed on the Declaration of
Human Rights, which was adopted by the
Commission and the UN General Assembly in
1948
Universal Declaration of Human Rights
• Art 1 – all humans are equal in dignity and rights
• Art 2 – non-discrimination against any
individuals
• Art 3 – right to life, liberty, and security of the
person
• Art 4 – prohibition of slavery
• Art 5 – prohibition of torture, inhumane and
degrading treatment
Universal Declaration of Human Rights
• Art 6 – Recognition as a person before the law
• Art 7 – Equal protection from the law
• Art 8 – right to an effective remedy
• Art 9 – no arbitrary arrest or detention
• Art 10 – fair hearing by impartial tribunal
• Art 11 – presumption of innocence
• Art 12 – no arbitrary interference with privacy,
home, family or correspondence
Universal Declaration of Human Rights
• Art 21 – access to public services
• Art 22 – right to social security
• Art 23 – the right to work, equal pay and form
and join trade unions
• Art 24 – right to rest and leisure including
holiday pay and limitations on working hours
• Art 25 – reasonable standard of living, health and
wellbeing including food, clothing, housing,
medical care, and necessary social services
particularly motherhood and childhood
Universal Declaration of Human Rights
• Art26–education

• Art27–participation in cultural life

• Art 28–social and international order

• Art 29 – limitations of rights necessary in a

democratic state
Universal Declaration of Human Rights
• The UDHR established a coherent and thorough list of
rights that correspond in the main with our concept of
human rights, writ large, and our expectations in free
and democratic societies

• Two critical limitations of the UDHR:

– Not Legally binding; rather, an aspirational document.
Transposing these guarantees of basic freedoms into legally-
binding human rights treaties would engender the
segregation of civil/political rights from
social/economic/cultural rights
– Speaks of universal rights, no account of cultural relativism
 Universalism v Cultural Relativism

• UDHR moves to divorce human rights law from

conceptions of rights which are relative to the
socio- cultural and economic communities which
are meant to enact and assure them.

• Considers the rights contained in the UDHR as

universally acceptable and applicable to all
human beings
 Universalism v Cultural Relativism

• Questions of competence for articulation and

guarantee of basic rights within specific
communities

• Superiority/inferiority of certain systems

• These debates continue in modern legal and

political scholarship
 Universalism v Cultural Relativism

• What is the purpose of a universalist approach to

rights?

• To treat questions of equality and liberty under a

more general, human angle, or to disparage one
approach in favour of another which might both be
equally valid?

• Detractors note that a universalist approach fails to

account for any cultural, traditional, or social
differences of persons throughout the world
 Universalism v Cultural Relativism

• Further Critique: rights conferred at an

individual level, does not take account for some
abuses which may be so endemic or diffuse that
they cannot be counteracted at the personal level

• Emphasis: individual or collective rights

The Division of Legally Enforceable Rights

• UDHR was not a binding human rights

instrument
– Could not be relied upon in Courts
– States could not be punished for violations
– States responsible for enacting rights
domestically

• Necessity recognised for rights contained in

UDHR to be transposed into subsequent binding
international legal instruments
The Division of Legally Enforceable Rights

• The divide between economic/social rights vs.

civil and political rights was brought to the fore
during the transposition of the rights of the
UDHR to legally enforceable covenants

• Drafting committees riven with disagreements

as to proper treatment/hierarchy of rights
The Division of Legally Enforceable Rights

• Negotiations began in earnest in 1949 to

transpose the rights contained in the UDHR
• These negotiations concluded in 1966
• One of the chief causes for the delay was the
disagreement over the status of social and
economic rights
• Many states opposed to their inclusion
• – Cited concerns over implications for resource
allocation; preservation of political sphere
Disparate Treatment of Categories of Rights

• Propositions to transpose UDHR into single

international legal instrument were abandoned
in 1951

• UN DOC A2929(1955)
Civil and Political vs. Social and Economic

• Agreement that two separate documents be drafted.

• This resulted in: The International Covenant on
Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights,
which where adopted by the General Assembly and
opened for signature, ratification and accession on
16th of December 1966
• ICESCR entered into force on the 3rd of January
1976
• ICCPR entered into force on 23rd March 1976
Civil and Political vs. Social and Economic

• ICCPR places immediate negative and positive

obligations upon states to protect the rights
contained therein
• State-State,State-citizenobligations
• Optional protocol individuals may bring a
petition to United Nations Human Rights
Commission
Civil and Political vs. Social and Economic

• However, United Nations Human Rights

Commissioner mainly a reporting and advisory
body
• No enforcement mechanism for findings,
depends upon political pressure
• I.e.: Position clarified in Ahani v Canada
(Attorney General) (2002) 58 O.R (3d) 107 at
para. 32, states are not bound by the final views
of the Committee
Civil and Political vs. Social and Economic

• The petition system for the ICCPR only available

to individuals whose state has ratified optional
protocol, decisions are not binding; succession
from optional protocol also possible
• At minimum, however, provides a forum for
individuals to illuminate rights violations by
states
Civil and Political vs. Social and Economic

• By contrast, ICESCR places no immediate

obligations upon states
• Rather, states are bound respect, protect, and
fulfil the rights contained therein according to a
programmatic or progressive implementation
process
• May take into account the availability of
resources in consideration of their compliance
with the ICESCR
Civil and Political vs. Social and Economic

• Committee on Economic, Social and Cultural Rights

was established in 1985 to monitor compliance with
the Covenant.
• States are required to provide reports to the
committee at regular intervals regarding their
compliance with their obligations under the ICESCR
• Committee may issue recommendations, no
enforcement mechanisms whereby it could compel
compliance
• Reports are non-binding
Civil and Political vs. Social and Economic Rights

• Recent Developments: The Optional Protocol to

the ICESCR

• United Nations Committee increasingly

recognises the interdependence of the two sets of
rights, underscores the need for greater
compliance with obligations under the ICESCR
Civil and Political vs. Social and Economic Rights

• In 2008, Optional Protocol was approved by the

Human Rights Council and was adopted by the
General Assembly
• Establishes an individual petition mechanism
• Committee may request interim measures
• All domestic remedies must be exhausted before
right of individual petition attains
Civil and Political vs. Social and Economic Rights

• Three reasons for which the Individual Complaint

Mechanism will not result in meaningful change regarding
the status of economic, social and cultural rights
• First: states may cite lack of available resources to justify
lack of progress toward realisation of the rights, no
immediate obligations
• Two: Optional Protocol does not provide for enforcement
mechanisms, Committee may only make recommendations
• Three: In dualist nations such as Ireland and United States,
international legal instruments do not have direct effect and
must be enacted by legislation, therefore, not part of
domestic law
Civil and Political vs. Social and Economic Rights

• Civil and political rights largely required states

to refrain from interfering in lives of people
• Economic and social rights, by contrast, required
government action
• Debated raged for decades and was only partially
resolved the Optional Protocol to the
International Covenant on Economic, Social and
Cultural Rights
Regional Human Rights enforcement

• Regional enforcement stepped into the gaps left

the UN
• The primary organisations are:
▫ Council of Europe
▫ Organisation of American States
▫ Organisation of African Unity (now the African
Union)
Council of Europe
• Statute of the Council of Europe adopted 1949
• There was a significant expansion in the 1990s
with the new independent former Eastern Block
states joining
▫ The Council now has 47 member states
▫ Statute says that members must rule of law and
human rights (Art 3)
Council of Europe
• The primary role of the Council was to draft and
adopt the European Convention on Human
Rights
• This was achieved in 1950 when the ECHR was
signed
• Created the European Court of Human Rights,
which was optional for contracting parties
• The European Commission on Human Rights
could receive individual applications which it
could then refer to the ECtHR
Council of Europe
• The primary role of the Council was to draft and
adopt the European Convention on Human
Rights
• This was achieved in 1950 when the ECHR was
signed
• Created the European Court of Human Rights,
which was optional for contracting parties
• The European Commission on Human Rights
could receive individual applications which it
could then refer to the ECtHR
Council of Europe
• The ECHR was the most important
instrument of the Council, but was not
the only one
• The European Social Charter was
signed by 13 member states in 1961
• There are also several other
instruments and associated monitoring
bodies under the Council
The Organisation of American States and
Human Rights
• Role in human rights is similar to the Council of
Europe
• Today is has 35 member states
• 1948 Declaration on the Rights and Duties of Man
▫ Not initially intended to be binding
• In 1959, the Inter American Commission on Human
Rights was established to monitor implementation
• Commission now has jurisdiction over all members
of the OAS
The Organisation of American States and
Human Rights
• The American Convention on Human Rights was
adopted in 1969 and entered force in 1978
• It created the Inter-American Court of Human
Rights
• This Court has been adopted by all Spanish
speaking member states and Brazil
• Less impact on English speaking states
The African Union and human rights
• OAU founding charter signed in 1963
• Though it referred the UNDHR, state
sovereignty was much more highly valued
• Human rights became more prominent after
1979 when certain dictatorships fell
The African Union and human rights
• African Charter on Human and People’s Rights,
adopted 1981 and entered into force in 1986
▫ Initially monitored by the African Commission on
Human and People’s Rights
• African Court of Human and People’s Rights
created in 2004
• African Charter is distinguished by inclusion of
economic and social rights
• It also includes duties, though their practical
effect is doubtful
The African Union and human rights
• Significant distinction in the emphasis on
collective rights
▫ Confers various rights on peoples, including self-
determination, development, etc.
• These rights are present elsewhere, but are given
equal status to first and second generation rights
in the African Charter