HUMR5140 Introduction to Human
Rights Law
Autumn 2015
Lecture 3:
International Bill of Rights
Outline
1. Development of human rights in law:
Idealisation, positivisation, realisation
2. What is the “International Bill of Rights”?
3. The typology of States’ obligations
4. “Absolute” vs. “relative” rights
5. Immediate vs. progressive realisation
6. Examples of human rights provisions
The development of human rights
Idealisation
Three
Phase
phases
1:
Re-idealisation
Positivisation
Normativisation
and realisation
Phase 1:
Idealisation
Fear and
Want –
Rule by
Power
Phase 2:
Positivisation
Human Rights Law
Phase 3:
Realisation
Enjoyment
of Life –
Rule of
Law
Phase 2:
Early norms pertaining
to conduct during
armed conflicts
From ancient times
to 1900
Code sidestep:
of of
US Declaration
A French
necessary
«Rights
Magna
English
Carta,
Bill
Habeas
Peace
of ofof
Early
20th Corpus
Century
Hammurabi,
Independence,
Three
«generations»
Man»,
1789
Rights,
1215
1688
Augsburg,
Act,
1679
1555
Fourth
generation?
1700
BC
1776
Positivisation
The transformation of
First generation:
into normative
• Civil ideals
and political
rights
• Liberté standards
Second generation:
Morality tostep:
Important
• Economic, law
social and
cultural UDHR
rights 1948
Softit the
lawfirst
to step?
• Egalité
…but was
hard law
Third generation:
International law to
• Group and collective
domestic law
rights
• Fraternité
Phase 2:
Bolshevism
– Favoring equality and
economic rights (egalitè)
– The Soviet was not just
the Russian state, but the
spokesperson for the world.
– Leon Trotsky: we will
”issue some revolutionary
proclamations to the
th Century
Early[of
20the
peoples
world] and
then close up the joint.”
LIBERALISM
vs.
Positivisation
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.’
EQUALITY
Phase 2:
Positivisation
Early 20th Century
Attempted positivisation
with the League of Nations
•
Minority rights
•
Right to health
•
Anti-slavery
•
Women’s rights
•
Labour rights
Phase 2:
Economic collapse
Positivisation
th Century
Early
20th20
Century
Phase 2:
Positivisation
20th Century
Devastation of World War II
Dresden, Germany
Shanghai, China
London, UK
Manilla, The Philippines
Phase 2:
Positivisation
20th Century
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’
Phase 2:
Positivisation
The destructive power of
States demonstrated
USA Atomic Bombing of
Hiroshima in 1945
20th Century
First Soviet Test of an
Atomic Bomb in 1949
First Chinese Test of an
Atomic Bomb in 1964
Phase 2:
The UN Charter
San Francisco Conference
Drafting of the UN Charter (1945)
Modern
Positivisation
positivisation
20th Century
After World War II
1st Session of the UN General Assembly
Central Hall in London (10 Jan 1946)
Phase 2:
The UN Charter
Preamble
Art. 1
Arts. 55
and 56
Modern
positivisation
After World War II
Determined … to reaffirm faith in
fundamental human rights
UnitedofNations
shallNations
promote
……
universal
The The
purposes
the United
are
To achieve
respect
for,
and
observance
of,
human
rights
and
international co-operation in … promoting and encouraging
fundamental
freedoms
without distinction
respect
for human rights
and for
for all
fundamental
freedoms for
as
to
race,
sex,
language,
or
religion.
all without distinction as to race, sex, language, or religion;
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.
Phase 2:
The Universal Declaration
of Human Rights (1948)
Modern
positivisation
After World War II
Renè Cassin from France
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
The UN General Assembly
unanimously proclaimed the
UDHR as a ”common standard
of achievement”
Modern
positivisation
Phase 2:
The Universal Declaration
of Human Rights (1948)
After World War II
Legal status?
UNGA resolution,
International
legally non-binding customary law
Content?
Both CivPol and
EcoSocCul rights
Art. 1: All human
beings are born
free and equal
The International
Bill of Rights
Art. 2: The basic
principle of
non-discrimination
Bridged the …and
gap between
the gap
CP and ESCre-emerged?
rights
Arts. 3-21:
Civil and political
rights
ICCPR
Arts. 22-27:
Economic, social
and cultural rights
ICESCR
Phase 2:
Modern
positivisation
Positivisation and
After
World Some
War II
realisation:
challenges and
developments
• A “World Court for Human Rights”?
• The recognition of grave human rights violations as a justification
The International
International
for intervention
• Individual international
responsibility
for
violations
of human
human
rightsBill
treaties
of
Rights
rights law
• The responsibility of non-state actors
• NCHR researchVienna
project:
The legitimacy
ofregional
multi-level
human
Declaration
1993:
«All
human and
Other
A category of
rights judiciary rights
Integrated
are
universal,
interpretation
indivisible
No formal hierarchy
of normsand
international
human rights
fundamental
rights?
interdependent
and interrelated.»
• The “legalisation”
of international
relations
instruments
• The fragmentation of human rights tribunals
• A focus on the “wrong” human rights…?
The human rights circle
http://www.humanrights.is/the-human-rightsproject/humanrightscasesandmaterials/humanrightsconceptsideasandfora/substantivehumanrights/
Scope of application:
On Friday
The typology of
States’ obligations
International
human rights treaties
Absolute vs. relative
rights
Immediate realisation
vs.
progressive realisation
The typology of
States’ obligations
To respect, to protect
and to fulfil (Eide)
Positive and negative
The State should
protect
obligations
rights-holders against
interference of their rights
by other actors
refrain
To avoid depriving, to The State shouldObligation
of result
interfering withvs.
theobligation
protect from deprivation, from
The
State should
enjoyment
of rights
to provide security (Shue) take active steps of conduct
towards the full
realisation of the rights
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HUMR5140 Introduction to Human Rights Law Autumn 2011