Human Rights: Norms, Institutions and Systems

International Human Rights Law (LW843)Week 3 (3 February 2021)

Kent Law School

Human Rights: Norms, Institutions and SystemsLecture: International Norms, Institutions and Systems

Lecture Readings:

- Universal protection of Human Rights

Malcolm N. Shaw, International Law (CUP, 8th ed, 2017), 217-220, 231-254.

- Regional protection of Human Rights

Malcolm N. Shaw, International Law (CUP, 8th ed, 2017), 255-287 .

- Key International Human Rights Instruments

• Universal Declaration of Human Rights (1948)• International Covenant on Civil and Political Rights (1966)• International Covenant on Economic, Social and Cultural Rights (1966)• European Convention on Human Rights (1950)• American Convention on Human Rights (1969)• African Charter on Human and Peoples' Rights (1981)

Reading Questions:

1. What are the main features and elements of the universal system of human rights?2. What are the main mechanisms to protect universal human rights?3. What are the main differences between the different regional systems of human rights?

Human Rights: Norms, Institutions and Systems

Seminar: Beyond Norms and Institutions

Seminar Readings:

1. Florian Hoffman, ‘Foundations Beyond Law’ in Conor Gearty and Costas Douzinas (eds), The Cambridge Companion to Human Rights Law (CUP, 2012)

Reading Questions:

1. According to Hoffman, why is so important to question the foundations of human rights again and again?

2. According to Hoffman, what are the ‘beyond-the-law-foundations’ of human rights?

Let’s recapitulate our discussions up to this point …

20152012

The idea of human rights has been lauded a new secular religion. The intangible and abstract notions of dignity, universality, and humanity are today the defining features of human rights. Faith in these abstract, unassailable ideas exerts a powerful force over [our] doubts an uncertainties. These foundational ideas have become an accepted core of today’s common language of human rights – a lingua franca that provides the strength to resist the chronic indeterminacy of meaning while concealing the intellectual sectarianism that divides the study of human rights.

C. Roberts, The Contentious History of the International Bill of Human Rights (2015), 9.

Upon these foundations, there has emerged a glorious, triumphalist history of human rights. A founding narrative of postwar consensus billows up with confidence and certainty even as a host of challengers gnaw at the presumed age and origins of [human rights]. And this now-familiar founding story sustains our belief that human rights are good, obvious, and natural and that all human possess them by virtue of their humanity, even in the face of ongoing and horrific violations that seem to suggest that human rights might be nothing more than window dressing, empty promises, or utopian dreams.

C. Roberts, The Contentious History of the International Bill of Human Rights (2015), 9.

In practice, the efficacy of human rights depends on its perceived legitimacy and the normative strength of the idea. But though such a normative foundation is crucial for its success, an unwavering faith in its power and being is a poor foundational departure point for rigorous empirical inquiry. Faith is a bulwark against all challengers. Within the historical study of human rights, its tendency is to shield from view that which does not agree.

C. Roberts, The Contentious History of the International Bill of Human Rights (2015), 10.

So it seems that we should approach human rights in their (uncomfortable, yet maybe

explosive) oscillation between this …

And this …

IDP Protests (Bogotá 2009)

IDP Protests (Bogotá 2009)

And this …

2016

Decolonisation made a crack in the world running from South to North and East to West. From this tectonic shift, the issue of human rights emerged and over time achieved global prominence. This transformation was not just a result of structural changes in the international system of states: It was also a story of agency where the lead proponents were, in fact, a group of states from the Global South that explored and used this global transformation to reform the norms of international society and create a platform for human rights in international politics.

S. L.B. Jensen, The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values (2016), 2.

Let’s begin our bird-view account of human right norms, etc…

International Human Rights Law Principles:

- Universality- Indivisibility- Interdependent- Interrelated

- Participation- Accountability- Transparency- Non-Discrimination

Vienna Declaration and Programme of ActionWorld Conference on human Rights, Vienna 25 June 1993

Enforceability of InternationalHuman Rights LawPrinciples

Exhaustion of domestic remedies

Domestic Jurisdiction

Priority of Rights

Customary Int. Law

Non Intervention (art. 2(7) UN Charter)

Unless the state adheres to a HR treaty.

Internal problems = Internal law.

Unless local remedies are non-existent or unduly and unreasonable prolonged or unlikely to bring effective relief.

Non-derogable (higher hierarchy) (jus cogens?) rights (even in times of emergency) (e.g. Right to life & Prohibition of Torture: ICCPR; European Conv.; Inter-American Conv.)

Particular value (Partially limitable) Rights (e.g. freedom of assembly? due process?) (clawbackclause)

Jus cogens? (more substantive? E.g., prohibition of torture, genocide and slavery, non-discrimination.) Treaties create obligations erga omnes, obligations for the parties

2016 2003

Evolving Principles

UN Human Rights System

• Main organs:

• General Assembly

• Security Council

• Secretary General

• Human Rights Council (called before 2006, the Commission on Human Rights)

• Office of the United Nations High Commissioner for Human Rights

• Treaty Bodies

Human Rights Council

António Guterres

Published by the United N

ations Departm

ent of Public Information DPI/2470 rev.2—

11-36429—O

ctober 2011

The United Nations System

UN Principal Organs

Subsidiary Bodies

Main and other sessional committees

Disarmament CommissionHuman Rights CouncilInternational Law CommissionStanding committees

and ad hoc bodies

Subsidiary Bodies

Counter-terrorism committeesInternational Criminal Tribunal

for Rwanda (ICTR)International Criminal Tribunal

for the former Yugoslavia (ICTY)

Military Staff CommitteePeacekeeping operations and political missions

Sanctions committees (ad hoc)Standing committees and ad hoc bodies

Specialized Agencies 4

ILO International Labour Organization

FAO Food and Agriculture Organization of the United Nations

UNESCO United Nations Educational, Scientific and Cultural Organization

WHO World Health Organization

World Bank Group

t� IBRD International Bank for Reconstruction and Development

t� IDA International Development Association

t� IFC International Finance Corporation

t� MIGA Multilateral Investment Guarantee Agency

t� ICSID International Centre for Settlement of Investment Disputes

Departments and Offices

EOSG Executive Office of the Secretary-General

DESA Department of Economic and Social Affairs

DFS Department of Field Support

DGACM Department for General Assembly and Conference Management

DM Department of Management

DPA Department of Political Affairs

DPI Department of Public Information

DPKO Department of Peacekeeping Operations

DSS Department of Safety and Security

OCHA Office for the Coordination of Humanitarian Affairs

OHCHR Office of the United Nations High Commissioner for Human Rights

OIOS Office of Internal Oversight Services

OLA Office of Legal Affairs

OSAA Office of the Special Adviser on Africa

OSRSG/CAAC Office of the Special Representative of the Secretary-General for Children and Armed Conflict

UNODA Office for Disarmament Affairs

UNOG United Nations Office at Geneva

UN-OHRLLS Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States

UNON United Nations Office at Nairobi

UNOV United Nations Office at Vienna

IMF International Monetary Fund

ICAO International Civil Aviation Organization

IMO International Maritime Organization

ITU International Telecommunication Union

UPU Universal Postal Union

WMO World Meteorological Organization

WIPO World Intellectual Property Organization

IFAD International Fund for Agricultural Development

UNIDO United Nations Industrial Development Organization

UNWTO World Tourism Organization

Regional Commissions

ECA Economic Commission for Africa

ECE Economic Commission for Europe

ECLAC Economic Commission for Latin America and the Caribbean

ESCAP Economic and Social Commission for Asia and the Pacific

ESCWA Economic and Social Commission for Western Asia

Other BodiesCommittee for Development PolicyCommittee of Experts on Public

AdministrationCommittee on Non-Governmental

OrganizationsPermanent Forum on Indigenous IssuesUnited Nations Group of Experts

on Geographical NamesOther sessional and standing

committees and expert, ad hoc and related bodies

NOTES: 1 UNRWA and UNIDIR report only to

the General Assembly.

2 IAEA reports to the Security Coun cil and the General Assembly.

3 WTO has no reporting obligation to the General Assembly (GA) but contributes on an ad-hoc basis to GA and ECOSOC work inter alia on finance and developmental issues.

4 Specialized agencies are autono-mous organizations working with the UN and each other through the coordinating machinery of ECOSOC at the intergovernmental level, and through the Chief Executives Board for Coordination (CEB) at the inter-secretariat level. This section is listed in order of estab-lishment of these organizations as specialized agencies of the United Nations.

5 The Trusteeship Council suspended opera-tion on 1 November 1994 with the inde-pendence of Palau, the last remaining United Nations Trust Territory, on 1 October 1994.

This is not an official document of the United Nations, nor is it intended to be all-inclusive.

Advisory Subsidiary Body

UN Peacebuilding Commission

Programmes and Funds

UNCTAD United Nations Conference on Trade and Development

t� ITC International Trade Centre (UNCTAD/WTO)

UNDP United Nations Development Programme

t� UNCDF United Nations Capital Development Fund

t� UNV United Nations Volunteers

UNEP United Nations Environment Programme

UNFPA United Nations Population Fund

UN-HABITAT United Nations Human Settlements Programme

UNHCR Office of the United Nations High Commissioner for Refugees

UNICEF United Nations Children’s Fund

UNODC United Nations Office on Drugs and Crime

UNRWA1 United Nations Relief and Works Agency for Palestine Refugees in the Near East

UN-Women United Nations Entity for Gender Equality and the Empowerment of Women

WFP World Food Programme

Research and Training Institutes

UNICRI United Nations Interregional Crime and Justice Research Institute

UNIDIR1 United Nations Institute for Disarmament Research

UNITAR United Nations Institute for Training and Research

UNRISD United Nations Research Institute for Social Development

UNSSC United Nations System Staff College

UNU United Nations University

Other Entities

UNAIDS Joint United Nations Programme on HIV/AIDS

UNISDR United Nations International Strategy for Disaster Reduction

UNOPS United Nations Office for Project Services

Functional Commissions

Crime Prevention and Criminal Justice

Narcotic Drugs

Population and Development

Science and Technology for Development

Social Development

Statistics

Status of Women

Sustainable Development

United Nations Forum on Forests

Related Organizations

CTBTO PrepCom Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization

IAEA2 International Atomic Energy Agency

OPCW Organisation for the Prohibition of Chemical Weapons

WTO3 World Trade Organization

Security Council

Economic and Social Council

Trusteeship Council 5

International Court of Justice

Secretariat

General Assembly

UN Human Rights Council

• Replaced the UN Commission on HR in 2006.• 47 member states responsible for promoting and protecting human rights ‘around the

world’.• The UN GA elects the members based on candidate States’ contribution to the

promotion and protection of HR, as well as their voluntary pledges and commitments. • Seat are for three years, and no member may occupy a seat for more than two consecutive

terms. • Seats are distributed among the UN’s regional groups: 13 Africa, 13 Asia, 6 Eastern

Europe, 8 Latin America and the Caribbean, and 7 Western European and Others.• Based in Geneva.• Subsidiary body of the UN GA. • Works closely with the Office of the High Commissioner for Human Rights (OHCHR) • Administers the UN system of “Special procedures” = independent human rights experts

with mandates to report and advise on human rights from a thematic or country-specific perspective. Central element of the UN human rights machinery. Covers all human rights. As of 1 August 2017, there are 44 thematic and 12 country mandates.

- Universal Periodic Review, under the Human Rights Council (Established by GA Res. 60/251 (2006)

- Examines the HR performance of all UN Member States.

- To complement, not duplicate, the work of other human rights mechanisms, including treaty bodies.

- The Working Group on the UPR, composed of the HRC’s 47 members, conducts country reviews.

Office of the United Nations High Commissioner for Human Rights(OHCHR)

• Established by the UN GA on 20 December 1993

• UN Agency

• Works to promote and protect the human rights that are guaranteed under international law and stipulated in the UDHR

• Headed by the High Commissioner for Human Rights: Co-ordinates HR activities throughout the UN System and supervises the Human Rights Council

• Current High Commissioner is Michelle Bachelet.

UN Human Rights Treaty BodiesHuman Rights Committee (CCPR) International Covenant on Civil and Political Rights (1966) and its optional protocols; Committee on Economic, Social and Cultural Rights (CESCR) International Covenant on Economic, Social and Cultural Rights (1966);Committee on the Elimination of Racial Discrimination (CERD) International Convention on the Elimination of All Forms of Racial Discrimination (1965);Committee on the Elimination of Discrimination against Women (CEDAW) Convention on the Elimination of All Forms of Discrimination against Women (1979) and its optional protocol (1999); Committee against Torture (CAT) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (1984);Committee on the Rights of the Child (CRC) Convention on the Rights of the Child (1989) and its optional protocols (2000);Committee on Migrant Workers (CMW) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990);Committee on the Rights of Persons with Disabilities (CRPD) International Convention on the Rights of Persons with Disabilities (2006); Committee on Enforced Disappearances (CED) International Convention for the Protection of All Persons from Enforced Disappearance (2006); and

European Convention on Human Rights

• Drafted in 1950 by the Council of Europe. Entered into force on 3 September 1953.

• All Council member states are party to the Convention

• It established the European Court of Human Rights (ECtHR).

• Any person can take a case to the Court!!!

• Judgments finding violations are binding on the States!!!

• The Committee of Ministers of the Council of Europe monitors the execution of judgments.

• State parties can also take cases against other state parties to the Court.

• The Convention has several protocols.

American Convention on Human Rights(Pact of San José)

• Preceded by the American Declaration of theRights and Duties of Man (Bogotá, 1948).

• Adopted 22 November 1969. Came into force in 1978.• Main bodies:

• Inter-American Commission on Human Rights (1959)• Receives, analyzes, and investigates individual petitions.• Monitors the general human rights situation in the region.• Conducts on-site visits • Issues member states with recommendations • Requests that states adopt precautionary measures• Refers cases to the Inter-American Court of Human Rights, and

litigates those same cases before the Court.• Asks the Inter-American Court to provide advisory opinions

• Inter-American Court of Human Rights (1979)• Both bodies are organs of the Organization of American States (OAS)(1948)

African Charter on Human and Peoples' Rights(Banjul Charter)

• Emerged from the Organisation of African Unity (now the African Union)

• In 1979 the Assembly of Heads of State and Government called for the creation of a committee of experts to draft a continent-wide human rights instrument, similar to the European Convention on Human Rights and the American Convention on Human Rights.

• Approved by the OAU in 1981.

• Came into effect on 21 October 1986 (African Human Rights Day).

• As of 2016, 54 states have ratified the Charter. It has been ratified by all the AU member states.

African Charter on Human and Peoples' Rights(Banjul Charter)

• Main bodies:

• African Commission on Human and Peoples' Rights (1987)• Promoting human and peoples' rights • Protecting human and peoples' rights • Interpreting the African Charter on Human and Peoples' Rights

• African Court on Human and Peoples' Rights (created in 1998, came in 2004).• Applications against member states can be brought by:

• Member states of the protocol establishing the Court• The Commission and African inter-governmental organisations.• Individuals and NGOs with observer status before the Commission,

however, only against members states accepting that specific option (as of 2013, Burkina Faso, Ghana, Malawi, Mali, Tanzania and Rwanda).

• First judges of the Court (2006). First judgment on merit (2013 against Tanzania).

… the lesson of the actual history of human rights is that they are not so much a timeless or ancient inheritance to preserve as a recent invention to remake – or even leave behind – if their program is to be vital and relevant in what is already a very different world…

S. Moyn, Human Rights and the Uses of History (2014), 86.

Seminar

Hoffmann

Reading Questions 1.0

1. What is the understanding of human rights that the chapter challenges?2. What’s the central argument of the chapter?

Reading Questions 2.0

1. According to Hoffman, why is so important to question the foundations of human rights again and again?

2. According to Hoffman, what are the ‘beyond-the-law-foundations’ of human rights?

Legal

Cultural Moral

Human Rights

Still… “essentially contested concept”Gallie (1956)

Foundations?

Tautological arrangement:‘each refers to the others in order to fill a gap

it cannot close by itself.” Hoffmann

“Principles”Facticity

Foundation of the foundation = Legality = Legal Validity = Secondary Rules = Authority =

Lawyers

Foundation of the foundation = “Cultural significance”

“Once” a right is enshrined in a domestic constitution or an international treaty the

question of foundations becomes “immaterial”.

What’s next?a) Law trumps other foundations

b) Actors speak law in order to advance a human rights law beyond foundations

HR… “has come to enjoy a near monopoly on emancipatory and utopian discourse…”