The Law of Human Rights, Appunti di Diritti Umani

Scarica The Law of Human Rights e più Appunti in PDF di Diritti Umani solo su Docsity! TOPIC 1. The Law of Human Rights 1 TOPIC 1. The Law of Human Rights 1.1 Sources of Human Rights Law 1.2 History of Human Rights 1.1 Sources of Human Rights Law 1.1.1 Hard Law There are 2 ways through which International Law is created and in which it is located: International Conventions/Treaties and International Custom Treaties A treaty is an international agreement concluded between States or States and International organisations Typically in written form and they are drafted, discussed and negotiated by experts. It has many designations: convention, covenant, protocol and treaty → the name is chosen to indicate the degree of solemnity but doesn't affect the legal status. 2 types: bilateral (2 countries) or multilateral (+2 countries) Limitation: to become legally binding for a state, that state must accept them. Treaties need: TOPIC 1. The Law of Human Rights 2 1.Signature: by states representatives. It doesn't bind the states and it is more a symbolic procedure. However, it still has some legal effects and it also shows a moral and political commitment. After, the ratification process starts. 2.Ratification: formal acceptance of the treaty by the sovereign of the country. The treaty isn't legally binding yet. Sometimes countries abandon the treaty before ratification (denunciation or withdraw). 3.Entry into force: treaty becomes legally binding for states that have ratified the treaty. It is achieved when the minimum number of ratifications needed are done (this changes depending on the treaty). There are some treaties that don't need a lot of ratification while others do. This moment is the official entry into force date. 4.Finally, national implementation is crucial. There have been created many compliance procedures to assure that treaties are respected by member states. Even if a national legal system is not in line with a treaty, after ratification, breach isn't justified. That is why many states take ratification very seriously and don't ratify a treaty until the national legal system is adapted. Drafting techniques to provide flexibility in multilateral treaties: 1) Optional clauses 2) Comprehensive set of provisions → States must accept certain core provisions but can choose among remaining provisions 3) Reservations at the time of signature → A reservation is when a State can exclude or modify the legal effect of certain provisions of the treaty in their application to that State. Some human rights treaties prohibit or limit reservations. Treaties may allow denunciation or termination with notification. Some permit denunciation at any time while others allow denunciation only after the expiry of a certain period No treaty expressly prohibits a State from denouncing the agreement but if a treaty does not contain provisions that expressly allow it, then it cannot be done. Custom TOPIC 1. The Law of Human Rights 5 4. Crimes against humanity 5. Aggressive war These norms are considered customary international law and are binding on all states, regardless of their consent or agreement in treaties. States cannot make treaties or enact laws that violate peremptory norms, and no state can use its internal laws as an excuse for not complying with these fundamental principles. Additionally, peremptory norms can't be altered or overridden by agreement between states. If a new customary rule or treaty provision conflicts with a peremptory norm, the peremptory norm prevails. The concept of peremptory norms serves as a safeguard for fundamental values in international law and is crucial for maintaining a global order that upholds essential human rights and prevents egregious violations. 1.2 History of Human Rights Human rights have an important dual function: 1) They are claims based on particular values or principles 2) And often also legal rights that protect entitlements and freedoms. The two spheres are closely related but they do not necessarily share a causal relationship (ex: not every claim must transform into a legally recognised right) nor is the relationship always harmonious (ex: a legally recognised right may be dened too narrowly and may therefore exclude certain categories) It is in particular the universality of human rights (their applicability to everyone, everywhere and anytime) that has given rise to enduring debates. TOPIC 1. The Law of Human Rights 6 1.2.1 The development of Human Rights and International Human Rights Law 1. Origins 2. The American and French declarations of rights 3. The struggle for Rights in the Nineteenth Century 4. World War I, the League of Nations and Human Rights 5. World War II, the Holocaust and the Foundations of the International Human Rights System 6. The Universal Declaration of Human Rights (UDHR): Origins, Content and Significance 7. Cold War and Decolonisation 8. The Growth of International Human Rights Law 1.Origins The founding document of international human rights law was the Universal Declaration of Human Rights (UDHR). However, the notion of human rights is arguably of more recent origin. International human rights law → It is a rather late addition to the body of international law (whose modern origins are commonly located in the seventeenth and eighteenth century). International law merely governed the relationship between states but did not include human rights. Human rights → While certain human rights concerns were at times politically raised (ex: religious persecution) or developed by religions, traditional cultures or societies (ex: the principle of ahimsa, which means non-violence, shared by Hindus/Jains /Buddhists), individual or collective rights as understood today did not exist and didn't form part of the corpus of international law. Nevertheless, it is clear that this principles have contributed to the development of modern human rights law. TOPIC 1. The Law of Human Rights 7 The events considered the true starting point of human rights (as we know them now) are the American and French declarations of rights. 2.The American and French declarations of rights The United States Declaration of Independence (1776) (and later the Bill of Rights, 1791) and the French Declaration of the Rights of Man and of the Citizen (1789) were the outcome of political struggles that drew on natural law and liberal theories of rights. The American Declaration emphasised the right to life, liberty and the pursuit of happiness and the French Declaration the right to liberty, property, security and resistance to oppression. Both declarations had a considerable inuence on international human rights law, particularly the UDHR. However, they had many PROBLEMS: 1) the declarations speak of the rights of ‘man’ 2) the rights granted are predominantly civil and political and reect privilege of certain class interests 3) the documents failed to address a number of practices that violate fundamental rights They also were very criticised by writers such as the utilitarian thinker Jeremy Bentham. When the the Industrial Revolution in Europe came, it was very influenced by these documents. In this period, society was characterised by stark inequalities and the inhuman conditions in which a large number of children and adults had to work and live. Unsurprisingly, the nineteenth-century working class and labour movements had mixed views (😢) of the conceptions of rights embodied in the American and French declarations. Karl Marx argued that human rights as dened in the declarations (in particular the right to property) were used to secure the interests of the capitalist class. 3.The struggle for Rights in the Nineteenth Century The 19th century laid some foundational groundwork for the development of human rights law. TOPIC 1. The Law of Human Rights 10 The measures taken after the World War I, proved inadequate and failed to build a stable international order. Instead, the global crisis in the 1920s contributed to the rise of extremist political movements and aggressive nationalist states (particularly in Germany, Italy and Japan) and ultimately resulted in World War II. Its signicance for the development of international human rights law is largely due to the parallel Holocaust executed by Nazi Germany. The impact of World War II led to a profound understanding of the need for international systems to protect human rights and maintain peace. Post-war, intergovernmental committees and courts addressing human rights violations arose, along with NGOs playing a significant role in advocating for human rights. 1. Universal Declaration of Human Rights (UDHR): The aftermath of World War II prompted a global consensus on the need for a comprehensive framework to safeguard human rights. In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. The UDHR established a broad range of civil, political, economic, social, and cultural rights, setting a foundation for subsequent human rights treaties and instruments. 2. Nuremberg Trials: Following the war, the Nuremberg Trials prosecuted war criminals for crimes against humanity, genocide, and war crimes. These trials established important precedents for holding individuals accountable for violating human rights on an international level, emphasizing the principle of individual responsibility. 3. Geneva Conventions: The experience of World War II led to the revision and expansion of the Geneva Conventions, which provided the foundation for international humanitarian law. These conventions established rules to protect civilians, prisoners of war, and wounded combatants during armed conflicts. 4. Human Rights Institutions: The war highlighted the need for international institutions dedicated to promoting and protecting human rights. The United Nations, founded in 1945, played a central role in this regard. Various specialized agencies and committees were established within the UN to address specific human rights issues. 5. War Crimes Tribunals: Apart from the Nuremberg Trials, other tribunals and mechanisms were established to address war crimes and atrocities committed during World War II and subsequent conflicts. These include the International Criminal Tribunal for the former TOPIC 1. The Law of Human Rights 11 Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). 6. Recognition of Genocide: The Holocaust and other mass atrocities during World War II led to the recognition of genocide as a specific crime under international law. This ultimately led to the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948. 6.The Universal Declaration of Human Rights (UDHR): Origins, Content and Significance The work on establishing a universal human rights system began in the early 1940s and culminated in the UDHR in 1948. The UDHR (1948) is the UN’s foundational human rights document and the cornerstone for the international human rights system. States differed on whether to make a Bill of Rights an integral part of the Charter, and once it was decided that it should be separate whether to have a non-binding declaration followed by a legally binding covenant or to agree on such a covenant from the outset. The decision was to make an independent and non-binding document. The Commission tasked a committee of eight members from Australia, Chile, China, France, Lebanon, the USSR, the UK and the USA with drafting the UDHR, under the leadership of Eleanor Roosevelt. It took two years Most states were in support of a universally shared set of principles. However, several objections were raised to the draft articles at the time (Ex: South Africa objected to racial equality) The UNGA adopted the UDHR on 10 December 1948 The UDHR, together with the International Covenant on Civil and Political Rights and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights, form the so - called International Bill of Human Rights. TOPIC 1. The Law of Human Rights 12 POINTS TO CONSIDER 1. What is the legal status of the UDHR? Although not legally binding, the contents of the UDHR have been elaborated and incorporated into subsequent international treaties, regional human rights instruments, and national constitutions and legal codes. 2. How has it contributed to the development of international human rights law? Indeed, the UDHR has inspired more than 80 international human rights treaties and declarations, a great number of regional human rights conventions, domestic human rights bills, and constitutional provisions, which together constitute a comprehensive legally binding system for the promotion and protection of human 3. Is the criticism that the UDHR represents a ‘Western’ imposition justied? No, it would be misleading to portray the UDHR as a straightforward ‘Western’ imposition. The very universality of the declaration is in considerable part a compromise forged in lengthy sessions and debates which included a discussion of ideological and cultural differences. 7.Cold War and Decolonisation The Cold War and decolonisation are arguably the two most important factors that shaped the development of international human rights law from the 1950s to the late 1980s. The divide into political ideologies (in particular the USA and other ‘Western’ states vs ‘socialist’ states and later several newly established states) slowed down the realisation of the International Bill of Human Rights. Differences over the nature of rights and suitable modes of protection resulted in the adoption of two treaties in 1966, the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which constitute the main general treaties for the respective body of rights. States parties are obliged to realise these rights (right of self-determination, the right to life, the prohibition of slavery and torture…) progressively. Decolonisation was a complex and uneven struggle and political process. The UN Charter recognised the obligation to “promote the well-being of the inhabitants (of non-self-governing territories) and to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, their protection against abuses, and to promote self-government’. It also