Lecture notes on Human rights law, Lecture notes of Law

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Human Rights Law

Teaching Material

Prepared by:

Demelash Shiferaw, & Yonas Tesfa

Prepared under the Sponsorship of the Justice and Legal System

Research Institute

Table of Contents

Title Page

• Introduction to human Right Law ……………………………………………………………………………………………. Chapter One
  • 1.1 Nature and Definition of Human Rights ……………………………………………………………………. - 1.2 Historical Development…………………………………………………………... - 1.2.1 Pre World War II Developments ……………………………………………………………………………. - 1.2.2 Post World War II Developments ……………………………………………………………………….. - 1.3 Theories of Human Rights: Justification ……………………………………………………………………. - 1.3.1 Classification of Human Rights …………………………………………………………………………… - 1.4 Sources of Human Rights Law ………………………………………………………………………………..
• Human Rights Systems:(Substantive Rights, Institutions and Procedures)………………………………. Chapter Two - 2.1 The Universal System: The UN System ……………………………………………………………………….. - 2.1.1 The Legal Framework …………………………………………………………………………………………… - 2.1.2 Reservations and Declarations .................................................................................... - 2.1.2.1 Reservation ........................................................................................................ - 2.1.2.2 Declarations .......................................................................................................... - 2.1.3 Restrictions and Derogations …………………………………………………………………………… - 2.1.3.1 Restrictions ……………………………………………………………………………………………………. - 2.1.3.2 Derogations ……………….…………………………………………………… - 2.1.4 Institutions and Procedures ……………………………………………………………………………… - 2.1.4.1 Treaty Based Mechanisms ................................................................................... - 2.1.4.2 Non-treaty Based (Charter Based) Mechanisms ................................................. - 2.2 Regional Human Rights systems ……………………………………………………………………………… - 2.2.1 The European Human Rights System …………………………………………………………………… - 2.2.2 The Inter-American Human Rights System ………………………………………………………….. - 2.2.3 The African Human Rights System ………………………………………………………………………… - 2.2.4 The Arab and Asian Human Rights Systems ………………………………………………………....
• Systems of Protection for Vulnerable Groups………………………………………………………………………… Chapter three - 3.1 Women’s rights …………………………………………………………………………………………………………… - 3.2 The rights of the child ……………………………………………………………………………………………………. - 3.3 Minority protection regime ……………………………………………………………………………………. - 3.4 The rights of indigenous people ……………………………………………………………………………. - 3.5 Protection of disabled persons, ……………………………………………………………………………… - 3.6 Elderly Persons …………………………………………………………………………………………………. - 3.7 Refugees ……………………………………………………………………………………………………………….. - 3.8 Stateless person ……………………………………………………………………………………………………… - 3.9 Migrant workers …………………………………………………………………………………………………….. - 3.10 HIV Positive Persons and AIDS Victims .....................................................................
  • Culture, Globalization and Human Rights ................................................................................. Chapter Four
• Introduction ………………………………………………………………………………………………………………………….
• Section one: Culture and Human Rights……………………………………………………………………………………………….
• Section Two: Globalization and Human Rights…………………………………………………………………………………….
• RESPONSES TO GRAVE VIOLATION OF HUMAN RIGHTS …………………………… Chapter five
• Introduction ……………………………………………………………….................................
• Section One: National responses -Transitional Justice …………………………………….......
• Section Two: International Responses ………………………………………….. …………….
• Reference Materials ………………………………………………………………………………………………………………

Chapter One: Introduction to Human Rights Law

1.1 Nature and Definition of Human Rights

Human rights are a special sort of inalienable moral entitlement. They attach to all persons equally, by virtue of their humanity, irrespective of race, nationality, or membership of any particular social group. Human rights belong to an individual as a consequence of being human. The term came into wide use after World War II, replacing the earlier phrase "natural rights," which had been associated with the Greco-Roman concept of natural law since the end of the Middle Ages. As understood today, human rights refer to a wide variety of values and capabilities reflecting the diversity of human circumstances and history. They are conceived of as universal Universality of human rights is controutrsial, applying to all human beings everywhere, and as fundamental, referring to essential or basic human needs.

The concept of human rights is based on the belief that every human being is entitled to enjoy her/his rights without discrimination. Human rights differ from other rights in two respects. Firstly, they are characterised by being:

• Inherent in all human beings by virtue of their humanity alone (they do not have, e.g., to be purchased or to be granted);
• Inalienable (within qualified legal boundaries); and
• Equally applicable to all.

Secondly, the main duties deriving from human rights fall on states and their authorities or agents, not on individuals.

One important implication of these characteristics is that human rights must themselves be protected by law (‘the rule of law’). Furthermore, any disputes about these rights should be submitted for adjudication through a competent, impartial and independent tribunal, applying procedures which ensure full equality and fairness to all the parties, and determining the question

Before this period, several charters codifying rights and freedoms had been drawn up constituting important steps towards the idea of human rights. The first -were the Magna Charta Libertatum of 1215, the Golden Bull of Hungary (1222), the Danish Erik Klippings Håndfaestning of 1282, the Joyeuse Entrée of 1356 in Brabant (Brussels), the Union of Utrecht of 1579 (The Netherlands) and the English Bill of Rights of 1689. These documents specified rights, which could be claimed in the light of particular circumstances ( e.g. threats to the freedom of religion), but they did not yet contain an all-embracing philosophical concept of individual liberty. Freedoms were often seen as rights conferred upon individuals or groups by virtue of their rank or status.

In the centuries after the Middle Ages, the concept of liberty became gradually separated from status and came to be seen not as a privilege but as a right of all human beings. Spanish theologists and jurists played a prominent role in this context. Among the former, the work of Francisco de Vitoria (1486-1546) and Bartolomé de las Casas (1474-1566) should be highlighted. These two men laid the (doctrinal) foundation for the recognition of freedom and dignity of all humans by defending the personal rights of the indigenous peoples inhabiting the territories colonised by the Spanish Crown.

The Enlightenment was decisive in the development of human rights concepts. The ideas of Hugo Grotius (1583-1645), one of the fathers of modern international law, of Samuel von Pufendorf (1632-1694), and of John Locke (1632-1704) attracted much interest in Europe in the 18th century. Locke, for instance, developed a comprehensive concept of natural rights; his list of rights consisting of life, liberty and property. Jean-Jacques Rousseau (1712-1778) elaborated the concept under which the sovereign derived his powers and the citizens their rights from a social contract. The term human rights appeared for the first time in the French Déclaration des Droits de l’Homme et du Citoyen (1789).

The people of the British colonies in North America took the human rights theories to heart. The American Declaration of Independence of 4 July 1776 was based on the assumption that all human beings are equal. It also referred to certain inalienable rights, such as the right to life, liberty and the pursuit of happiness. These ideas were also reflected in the Bill of Rights which

was promulgated by the State of Virginia in the same year. The provisions of the Declaration of Independence were adopted by other American states, but they also found their way into the Bill of Rights of the American Constitution. The French Déclaration des Droits de l’Homme et du Citoyen of 1789, as well as the French Declaration of 1793, reflected the emerging international theory of universal rights. Both the American and French Declarations were intended as systematic enumerations of these rights.

The classic rights of the 18th and 19th centuries related to the freedom of the individual. Even at that time, however, some people believed that citizens had a right to demand that the government endeavour to improve their living conditions. Taking into account the principle of equality as contained in the French Declaration of 1789, several constitutions drafted in Europe around 1800 not only contained classic rights, but also included articles which assigned responsibilities to the government in the fields of employment, welfare, public health, and education. Social rights of this kind were also expressly included in the Mexican Constitution of 1917, the Constitution of the Soviet Union of 1918, and the German Constitution of 1919.

In the 19th century, there were frequent inter-state disputes in connection with the protection of the rights of minorities in Europe. These conflicts led to several humanitarian interventions and called for international protection arrangements. One of the first such arrangements was the Treaty of Berlin of 1878.

The need for international standards on human rights was first felt at the end of the 19th century, when the industrial countries began to introduce labour legislation. This legislation, which raised the cost of labour, had the effect of worsening their competitive position in relation to countries that had no labour laws. Economic necessity forced the states to consult each other. It was as a result of this that the first conventions were formulated in which states committed themselves vis-à-vis other states in regard to their own citizens. The Bernlin Convention of 1906, which prohibited night-shift work by women can be seen as the first multilateral convention meant to safeguard social rights. Many more labour conventions were later drawn up by the International Labour Organisation (ILO),which as founded in 1919. Remarkable as it may seem, therefore,

These two Covenants, together with the UDHR, form the International Bill of Human Rights. At the same time, many supervisory mechanisms have been created, including those responsible for monitoring compliance with the two Covenants.

Human rights have also been receiving more and more attention at the regional level. For example, in the European, the Inter-American and the African context, standards and supervisory mechanisms have been developed have already had a significant impact on human rights compliance in the respective continents, and promise to contribute to compliance in the future.

1.3 Theories of Human Rights: Justification

The “justification” of a right refers to how we argue for its existence, what philosophical assumptions and theories we use to defend and define the right.

Politicians, states and people do not necessarily use any explicit philosophical theory to support their views, or to explain why they believe in certain laws or basic rights, but they inevitably have some type of theory.

Also, the nature of public policy is compromise and mish-mash. Usually, no one philosophical theory wins out. Instead, policies reflect compromises between different theories.

1.3.2 Classification of Human Rights

The term ‘human rights’, is used to denote a broad spectrum of rights ranging from the right to life to the right to a cultural identity. They involve all elementary preconditions for a dignified human existence. These rights can be ordered and specified in different ways. At the international level, a distinction has sometimes been made between civil and political rights, on

the one hand, and economic, social and cultural rights on the other. This section clarifies this distinction. Since other classifications are also used, these will likewise be reviewed, without claiming, however, that these categorisations reflect an international consensus. It is also clear that the various categorisations overlap to a considerable extent.

Although human rights have been classified in a number of different manners it is important to note that international human rights law stresses that all human rights are universal, indivisible and interrelated ( e.g. Vienna Declaration and Programme of Action (1993), para. 5). The indivisibility of human rights implies that no right is more important than any other.

i. CLASSIC AND SOCIAL RIGHTS One classification used is the division between ‘classic’ and ‘social’ rights. ‘ Classic’ rights are often seen to require the non-intervention of the state (negative obligation), and ‘social rights’ as requiring active intervention on the part of the state, Classfying human rights in terms of negative and positive ovligations may have its own defects for a certain right may involve both negative and positive obligations for its effective realization. In other words, classic rights entail an obligation for the state to refrain from certain actions, while social rights oblige it to provide certain guarantees. Lawyers often describe classic rights in terms of a duty to achieve a given result (‘obligation of result’) and social rights in terms of a duty to provide the means (‘obligations of conduct’). The evolution of international law, however, has led to this distinction between ‘classic’ and ‘social’ rights has become increasingly awkward. Classic rights, such as civil and political rights, often require considerable investment by the state. The state does not merely have the obligation to respect these rights, but must also guarantee that people can effectively enjoy them. Hence, the right to a fair trial, for instance, requires well-trained judges, prosecutors, lawyers and police officers, as well as administrative support. Another example is the organisation of elections, which also entails high costs.

On the other hand, most ‘social’ rights contain elements that require the state to abstain from interfering with the individual’s exercise of the right. As several commentators note, the right to food includes the right for everyone to procure their own food supply without interference; the right to housing implies the right not to be a victim of forced eviction; the right to work

tribunal, the ‘presumption of innocence’, the ne bis in idem principle and legal assistance (see, e.g., Articles 9, 10, 14 and 15 of the ICCPR).

Political rights In general, political rights are those set out in Articles 19 to 21 of the UDHR and also codified in the ICCPR. They include freedom of expression, freedom of association and assembly, the right to take part in the government of one’s country, and the right to vote and stand for election at genuine periodic elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 of the ICCPR).

Economic and social rights The economic and social rights are listed in Articles 22 to 26 of the UDHR, and further developed and set out as binding treaty norms in the ICESCR. These rights provide the conditions necessary for prosperity and wellbeing. Economic rights refer, for example, to the right to property, the right to work, which one freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living, including rights to health, shelter, food, social care, and the right to education ( Articles 6 to 14 of the ICESCR).

Cultural rights The UDHR lists cultural rights in Articles 27 and 28. These include the right to participate freely in the cultural life of the community, to share in scientific advancement, and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (see also Article 15 of the ICESCR and Article 27 of the ICCPR).

• The alleged dichotomy between civil and political rights, and economic, social and cultural rights Traditionally, it has been argued that there are fundamental differences between economic, social and cultural rights, and civil and political rights. These two categories of rights have been seen as two different concepts and their differences have been characterised as a dichotomy. According

to this view, civil and political rights are considered to be expressed in a very precise language, imposing merely negative obligations which do not require resources for their implementation, and which, therefore, can be applied immediately. On the other hand, economic, social and cultural rights are considered to be expressed in vague terms, imposing only positive obligations conditional on the existence of resources and therefore involving a progressive realisation. As a consequence of these alleged differences, it has been argued that civil and political rights are justiciable whereas economic, social and cultural rights are not. In other words, this view holds that only violations of civil and political rights can be adjudicated by judicial or similar bodies, while, economic, social and cultural rights are ‘by their nature’ non-justiciable. Over the years, economic, social and cultural rights have been re-examined and their juridical validity and applicability have been increasingly stressed. During the last decade, we have witnessed the development of a large and growing body of case-law of domestic courts concerning economic, social and cultural rights. This case-law, at the national and international level, suggests a potential role for creative and sensitive decisions of judicial and quasi-judicial bodies with respect to these rights.

iii. FUNDAMENTAL AND BASIC RIGHTS Fundamental rights are taken to mean such rights as the right to life and the inviolability of the person. Within the UN, extensive standards have been developed which, particularly since the 1960s, have been laid down in numerous conventions, declarations and resolutions, and which bring already recognised rights and matters of policy which affect human development into the sphere of human rights. Due to the concern that a broad definition of human rights may lead to the notion of ‘violation of human rights’ losing some of its significance has generated a need to distinguish a separate group within the broad category of human rights. Increasingly, the terms ‘elementary’, ‘essential’, ‘core’ and ‘fundamental’ human rights are being used.

Another approach is to distinguish a number of ‘basic rights’, which should be given absolute priority in national and international policy. These include all the rights which concern people’s primary material and non-material needs. If these are not provided, no human being can lead a dignified existence. Basic rights include the right to life, the right to a minimum level of security, the inviolability of the person, freedom from slavery and servitude, and freedom from torture,

1920s. Civil liberties refer primarily to those human rights which are laid down in the United States Constitution: freedom of religion, freedom of the press, freedom of expression, freedom of association and assembly, protection against interference with one’s privacy, protection against torture, the right to a fair trial, All the rights of workers. This classification does not correspond to the distinction between civil and political rights.

Individual and collective rights Although the fundamental purpose of human rights is the protection and development of the individual (individual rights), some of these rights are exercised by people in groups (collective rights). Freedom of association and assembly, freedom of religion and, more especially, the freedom to form or join a trade union, fall into this category. The collective element is even more evident when human rights are linked specifically to a membership of a certain group, such as the right of members of ethnic and cultural minorities to preserve their own language and culture. One must make a distinction between two types of rights, which are usually called collective rights: individual rights enjoyed in association with others, and the rights of a collective.

The most notable example of a collective human right is the right to selfdetermination, which is regarded as being vested in peoples rather than in individuals (see Articles 1 of the ICCPR and ICESCR). The recognition of the right to self-determination as a human right is grounded in the fact that it is seen as a necessary precondition for the development of the individual. It is generally accepted that collective rights may not infringe an universally accepted individual rights, such as the right to life and freedom from torture.

First, second and third generation rights The division of human rights into three generations was first proposed by Karel Vasak at the International Institute of Human Rights in Strasbourg. His division follows the principles of Liberté , Égalité and Fraternité of the French Revolution.

First generation rights are related to liberty and refer fundamentally to civil and political rights. The second generation rights are related to equality, including economic, social and cultural rights. Third generation or ‘solidarity rights’ cover group and collective rights, which include, inter alia, the right to development, the right to peace and the right to a clean environment. The only third generation right which so far has been given an official human rights status - apart from the right to self-determination, which is of longer standing - is the right to development (see the Declaration on the Right to Development, adopted by the UNGA on 4 December 1986, and the 1993 Vienna Declaration and Programme of Action (Paragraph I, 10)). The Vienna Declaration confirms the right to development as a collective as well as an individual right, individuals being regarded as the primary subjects of development. Recently, the right to development has been given considerable attention in the activities of the High Commissioner for Human Rights. The EU and its member states also explicitly accept the right to development as part of the human rights concept.

While the classification of rights into ‘generations’ has the virtue of incorporating communal and collective rights, thereby overcoming the individualist moral theory in which human rights are grounded, it has been criticised for not being historically accurate and for establishing a sharp distinction between all human rights. It would be more interesting if how hte concepts of generations of tights is at adds with the Tehran Proclummation or the UDPA was described or explained.

1.4 Sources of Human Rights Law

Since time immemorial, states and peoples have entered into formal relationships with each other. Over the ages, traditions have developed on how such relationships are conducted. These are the traditions that make up modern ‘international law’. Like domestic law, international law covers a wide range of subjects such as security, diplomatic relations, trade, culture and human rights, but it differs from domestic legal systems in a number of important ways. In international law there is no single legislature, nor is there a single enforcing institution. Consequently, international law can only be established with the consent of states and is primarily dependent on self-enforcement by the same states. In cases of non-compliance there is no supra-national

‘covenant’, ‘convention’ and ‘protocol’; but what they have in commone are the explicit indication of states parties to be bound by their terms.

Human rights treaties have been adopted at the universal level (within the framework of the United Nations and its specialised agencies, for instance, the ILO and UNESCO) as well as under the auspices of regional organisations, such as the Council of Europe (CoE), the Organisation of American States (OAS) and the African Union (AU) (formerly the Organisation of African Unity (OAU)). These organisations have greatly contributed to the codification of a comprehensive and consistent body of human rights law.

i. UNIVERSAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS Human rights had already found expression in the Covenant of the League of Nations, which led, inter alia , to the creation of the International Labour Organisation. At the San Francisco Conference in 1945, held to draft the Charter of the United Nations, a proposal to adopt a ‘Declaration on the Essential Rights of Man’ was put forward but was not examined because it required more detailed consideration than was possible at the time. Nonetheless, the UN Charter clearly speaks of ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’ (Article 1, para. 3). The idea of promulgating an ‘international bill of rights’ was developed immediately afterwards and led to the adoption in 1948 of the Universal Declaration of Human Rights (UDHR).

The UDHR, adopted by a resolution of the United Nations General Assembly (UNGA), although not a treaty, is the earliest comprehensive human rights instrument adopted by the international community. On the same may that it adopted the Universal Declaration, the UNGA requested the UN Commission on Human Rights to prepare, as a matter of priority, a legally binding human rights convention. Wide differences in economic and social philosophies hampered efforts to achieve agreement on a single instrument, but in 1954 two draft conventions were completed and submitted to the UNGA for consideration. Twelve years later, in 1966, the International Covenant on Economic, Social 21 and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were adopted, as well as the First Optional Protocol to the

ICCPR, which established an individual complaints procedure. Both Covenants and the Optional Protocol entered into force in 1976. A Second Optional Protocol to the ICCPR, on the abolition of the death penalty, was adopted in 1989 and entered into force in 1991.

The ‘International Bill of Human Rights’ consists of the Universal Declaration of Human Rights, the ICESCR, and the ICCPR and its two Optional Protocols. The International Bill of Rights is the basis for numerous conventions and national constitutions.

Besides the International Bill of Human Rights, a number of other instruments have been adopted under the auspices of the UN and other international agencies. They may be divided into three groups: a) Conventions elaborating on certain rights, inter alia :

• The Convention on the Prevention and Punishment of the Crime of Genocide (1948)
• ILO 98 concerning the Right to Organise and to Bargain Collectively (1949)
• The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) b) Conventions dealing with certain categories of persons who may need special protection , inter alia:
• The Convention relating to the Status of Refugees (1951), and the 1967 Protocol thereto
• The Convention on the Rights of the Child (1989)
• Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (2000)
• Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (2000)
• ILO 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989)
• The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (2000) c) Conventions seeking to eliminate discrimination
• ILO 111 concerning Discrimination in respect of Employment and Occupation (1958)
• UNESCO Convention against Discrimination in Education (1960)