HRL 2 online

welcome back so we discussed before the break we discussed the um the importance of human rights law as a as a framework which revolutionizes international law we've also talked about the historical precedence for human rights law and we talked about the introduction of human rights law after World War II into the U.N Charter and from that onwards the process starts to pick up momentum so 1946 Human Rights Commission is is established which today operates under a different name the Human Rights Council 1948 the universal Declaration of Human Rights which we will see is is a

treaty is is it is a document the Declaration sorry that actually stipulates states that what are the 30 major human rights and Norms surrounding human rights that should be included within the charters reference to promoting respects and observance of Human Rights and then afterwards we are seeing more and more developments uh the establishment of new Norms in the form of treaties uh from the 1950s and 60s onwards and the establishment of Institutions so that would include what we call the treaty bodies which are Committees of experts that are appointed to monitor the implementation of the

major the nine major Universal treaties and then on a regional basis we also see sometimes commissions but sometimes also courts such as the the European Court of Human Rights the African Court of people uh human in people's rights and the inter-american court of of Human Rights and the combination of these norms and institutions has given rise to this branch that we now call international human rights law now why how how did we uh turn the corner how did we move from a world in which human rights law was something that is considered a domestic matter

of states to something which is an international matter we've already said before the break that one aspect has been the lessons of World War II uh and the period leading up to World War II about the limited trustworthiness of states and the fact that atrocities within a state could could actually have spillover effects to other contexts we've also mentioned the uh the need to legitimize the new uh institutions of governance and specifically uh the United Nations organization to some extent this was also true for European the Council of Europe and subsequently the European Union that

also saw the human rights as part of their calling card but there were also uh perhaps uh more political Dimensions that were part of the game or part of the reason why human rights picked up so uh so much momentum in such a short time one is the Need For a symbolic reaction to the horrors of World War II so the new world war order was built on the premise of never again the International Community had to create solidarity enhancing structures in order not to find itself engaged again in in a situation of total violence

total Destruction total rejection of basic human values and there was also um perhaps in the background uh Cold War dynamics that were also important in pushing forward the human rights agenda it was very important for uh the the Western countries headed by Europe and the United States to actually use human rights also as as a vocabulary for criticizing the Soviet Union and its political system by emphasizing the fact that that political system falls short of basic uh human rights as they have been developed historically in the liberal West but eventually also anchored in human rights

in international human rights standards and treaties by the way the the East has done the same with respect to promoting socioeconomic rights and underscoring their importance so in a way the tension between the the two blocks has served as a catalyst for the the for the development both of civil and political rights but also economic and social rights when we move to look at the actual Norms that have been developed first in the Universal declaration in 1948 and then in the uh in the treaties that have been adopted from 1950 the European convention on human

rights onwards one can identify perhaps four uh key principles that shape the general direction of the field one is the principle of universality human rights are recognized as such because they reflect some deep truth or they purport to reflect some deep truth about human beings and about human welfare and about Human Experience so human rights in a way derive much of their legitimacy from the universality from the idea that these are rights that morally are pertain to individuals by virtue of Being Human Beings so it's not because there are citizens of this or that country

it's not because they have agreed or they did not agree to this or that government this is in a way a natural natural property that every individual should have and this is reflected in the notion of universality uh the fact that all human beings have these rights by virtue of being born as human beings and this is reflected in Article 2 of The Universal Declaration of Human Rights by the way we do have uh within academic writings especially in the field of um of philosophy and theory of Rights there are deep disagreements as to what

is the source of this natural right idea is it because there is a condition of the state of teacher like some of the early enlightenment philosophers have claimed that requires governments to be formed in ways which will be which will respect certain basic rights that exist in the in the in the in the state of nature so these have been arguments by Locke and mail and Hogs Etc or uh whether there are some immutable moral principles which uh someone like Emmanuel kante had stipulated that um that can be deduced through rationality through observation and through

uh analysis of uh of of of good qualities that are pertain to uh to humanity so Notions like dignity and autonomy um and Liberty would actually result in certain categorical imperatives that could translate into rights or whether we should be talking about trying to find ways to maximize human potential and capabilities uh As Americans and Martha Nussbaum have argued subsequently but it doesn't really in a way it doesn't really matter because the law at least as it was recognized in the treaties applies universally regardless of what specific justification supports this proposition the second major principle

is the principle of inalienability which is also found in article one of the universal declaration and that really ties the the entitlement to uh to birth so people are born with human rights it's not something they they acquire during their lives and the uh the almost inevitable supplementary proposition would be that individuals cannot lose their right to Human Rights the right to have rights during their lifetime so uh the notion of inalienability which also finds expression in many human rights instruments does um provide that uh all human beings have all the time human rights this

doesn't mean that human rights are absolute human rights could be limited even the right to life under certain conditions can be limited for instance we've talked in another unit about the laws of war so during an armed conflict a combatant could be killed lawfully by another combatant but what you cannot accept and human rights law does not accept the proposition that there would be certain persons like prisoners or criminals or terrorists or what have you that do not have any human rights to begin with OR that with respect to their human rights one would not

engage in some form of balancing between when one is dealing with relative rights between the rights of one person and the rights of another person so uh the proposition is that rights are inalienable States cannot deny any individuals the rights that they have by virtue of their Humanity the third principle which overarches the application of the field of human rights law is the erga ominous principle and the Ergo omnis principle which is the principle that developed in in international law um in the 1970s so the previous Century but there are some Echoes of that idea

even before that provides that there are certain Norms with respect to which every state has a legal interest in upholding so one does not have to show a specific link or a specific interest in the in the right in question or in the person in question in order to uphold that person that person's human rights now that is very important because the the the the uh common or the typical configuration of a human rights violation involves the relationship between a state and its own citizens so the state often so a state the tortures criminal suspects

a police state police that tortures criminal suspects uh if one would require only a state with a specific linkage to the criminal suspect in question to Advocate his or her rights then the the the the actual outcome would be that an outcome of impunity I mean no state in many cases would be able to have so to speak standing to claim on behalf of that person the idea of Ergo omnis is designed to was designed and its actual effect is to circumvent this this problem and actually allow any state any NGO any person to raise

concerns about the way in which other persons are being treated by the state or uh in cases involving other states it could State citizens of other states it could be their state of nationality but it could also be third states that are advocating on their behalf so that actually is the uh the flip side of the universality of Human Rights so they pertain to every individual and every individual and state has a stake in promoting and protecting these rights and we have seen cases for instance where Gambia is suing before the international court of justice

Myanmar for perpetrating uh allegedly perpetrating genocide against the rohingya which is a Muslim minority within Myanmar in the in the late um second decade of the 20th century around 2017. um although Gambia has no direct link to Myanmar or to the ruringa they were upholding a universal principle and we have seen cases like that also unfold before the European Court of human rights now uh the final point which I want to unders score is that by and large human rights are relative in nature they're not absolute in nature and that actually this is specified in

article 29 of the universal Declaration on human rights and the the reason why this is important because it does actually render human rights from an utopian ideal that uh should be respected but can never really be respected because in the real world uh upholding or advancing the rights of one often conflicts with the rights and interests of others and also sometimes has implications for the general welfare in society so for instance the right of health of a person can never in the real world entail that the state will have to spend an unlimited amount of

resources in order to ensure the right of health of everyone they're all almost always has to be some balancing between the right of one person and the right of another person between the right of one person and the public interest and international human rights law creates a framework by which by by by and large rights can be restricted if that restriction has a legal basis and if the Restriction is necessary and proportionate and is designed to serve a legitimate purpose there are some Exceptions there are some rights which are considered absolute in nature for which

no exception is Justified either because of the importance of the right or because of the considerable potential for abuse of any exception one clear example of such a an absolute right is the prohibition Against torture which is viewed in the convention Against torture from 1984 torturing and cruel and accrual and inhumane integrating treatment or punishment that convention does Outlaw the perpetration of torture and provides that under no circumstances would torture be permissible and that stems both from the very deep immorality of engaging in torture but also because of the concern that it will be very

difficult to supervise any relative application of that principle and therefore it is better to err on the side of no torture than on the side of an exception which would practically speaking would allow states to torture most of the time many people so these four principles apply by and large with regard to the Norms of of human rights law absolute inalienable uh Ergo omnis and uh relative in nature by and large there is another uh notion which I want to introduce at this stage and this is the weakness of the uh enforcement Machinery of human

rights law and as a result The Chronic non-compliance with human rights law and here I think we are reaching an area which is which is quite difficult and challenging states have agreed uh to accept human rights norms and many states have agreed to accept many human rights Norms but states have been much less forthcoming in accepting the authority of international mechanisms as supervision and even when they have accepted the powers of international mechanisms of supervision they do not always comply with their decisions and they have not actually accepted or developed mechanisms that would be effective

and actually forcing them or enforcing decisions on them and and this I think is perhaps reflective of some ambivalence on the part of States vis-a-vis the human rights movement it may reflect a partial internalization of the importance of Human Rights it may reflect limited political support within the state for human rights Norms it could basically convey that human rights are important but there are other interests of the state which are viewed as more important than the state within the political system we live in states are sufficiently strong and sufficiently dominant in order to resist pressures

to improve the human rights records Beyond a certain a certain point so states are quite keen on their reputation and they like to basically they do not like to be portrayed as violators of Human Rights it may also affect their diplomatic standing it may also affect their economic network of relationships but there is a point in which state interests appear to Trump you human rights law and with regard to many contexts there is quite the ability of the International Community to actually address this situation is somewhat limited and part of the weakness of the International

Community in this regard has to do with the problem of reciprocity which I've alluded to in another unit dealing with IHL so reciprocity does not work in human rights law from a normative point of view so the fact that state a is torturing citizens of state A does not allow State B to torture citizens of State B and even state aid torturing State V citizens would not allow State B to torture State visitors estate a Citizens because the rights are pertaining to the individual and not to the state so you do not have reciprocity but

again the flip side of this is that when a state uh when Canada is is concerned about conditions in Saudi Arabia and I'm mentioning this example because Canada did actually raise issues uh in recent years on a number of occasions with Saudi Arabia about treatment of women or treatment of Human Rights Defenders uh it is in a way putting itself uh in a confront on a confrontational track with another country which may be more powerful economically or diplomatically and the question is why would a country like Canada actually go out of its way to uh

to to to to basically uphold the rights of foreign citizens and in truth is that many for many countries this is really something which they uh are quite reluctant to do because it really uh entails costs on their part economic costs diplomatic courts because it may also encourage other countries to go in the other direction and and basically criticize them for for their own human rights violations and this is the reason why we're seeing States much more comfortable with pushing these issues to the international enforcement mechanisms that as I said before these International enforcement mechanisms

tend to be rather weak in their authorities and in their enforcement capacities and therefore we end in the end with a chronic under enforcement of human rights law still not whole not all hope is lost we are seeing some improvement over time we are seeing a process which results in some strengthening of Human Rights norms and institutions this happens partly because Regional bodies have become over the years stronger partly because of changing uh changing Notions ideologies increased acceptance of Human Rights by certain States but also because of the growing interrelatedness between economic development and economic

integration and and and human rights of the European Union which is a very important political and economic actor within Europe has really developed conditionalities by which uh the process of integration in Europe and participation in the integration in Europe does require an upgrade of Human Rights standards so this is one area where we're seeing uh an improvement there are also gradual opening up of international mechanisms for individual complainants so whereas states don't like to complain against one another individuals do like to complain about their own situation so if the human rights committee which applies the

icpr has a complaints mechanism which is now adopted by Most states of the world and other mechanics similarly have Avenues by which individuals can appeal and other mechanisms are developed under the hospices of the Human Rights Council and the regional bodies that entails that a lot of Human Rights problems would be addressed by International bodies and could generate increasing pressure on states to improve their record the fact that public opinion is also becoming more dominant the the more technology actually renders information on human rights violations more accessible and also facilitates mobilization of social forces through

ngos through social media through International media all of this actually helps in a way raise the costs for violating States and generates some deterrence against violation and we have seen uh mostly after the fall of of the of the of the Soviet Bloc and communism we have seen increased democratization nation in in east Europe we've also seen some democratization in other regions of the World perhaps at a less impressive Pace this is a process that has its ups and downs there are some fluctuations but by and large the more States become Democratic and develop domestic

Democratic institutions the more amenable they are to apply human rights at a global level as well so we have concluded the first part of our lecture on human rights we have discussed the the general trajectory of international human rights law what we will do in the second half we will be discussing uh some of the Norms of international human rights law and also deals specifically with the Machinery of enforcement of human rights law I thank you for your attention