ECH2300

Divide and list some of the basic freedoms listed in the ICCPR within the following categories: 1. Basic Civic Freedoms 2. Protections of Security of the Person and Physical and Mental Integrity 3. Due Process and Legal Guarantees 4. Political Rights 5. Non-Discrimination and Equality 6. Self-Determination and Minority Rights

1. Basic Civic Freedoms - Freedom of movement, to leave and return (Art. 12) - Rights to privacy and family (Art. 17, 23) - Freedom of thought, conscience and religion (Art. 18) - Freedom of expression (Art. 19) - Freedom of Assembly (Art. 21) - Freedom of association (Art. 22) 2. Protections of Security of the Person and Physical and Mental Integrity - Right to life (Art. 6) - Prohibition on torture (Art. 7) - Prohibition on slavery, servitude (Art. 8) - Right to liberty and security (Art.9 (1)) - Humane treatment if detained (Art. 10) 3. Due Process and Legal Guarantees - Rights of detained persons (Art. 9) - No debt bondage (Art. 11) - No arbitrary expulsion (Art. 13) - Due process rights in criminal and civil proceedings (Art. 14) - Non-retroactivity of criminal law (Art. 15) - Recognition as a legal person (Art. 16) 4. Political Rights - Right to take part in public life, to vote (Art. 25) 5. Non-Discrimination and Equality - Non-discrimination (Art 2 (1), Art. 26) - Equal rights for men and women (Art. 3) - Equality before the courts (Art. 14 (1)) 6. Self-Determination and Minority Rights - Self-determination (Art. 1) - Protection of minority rights (Art. 27)

What are the four key features of human rights?

1. Hold as "humans" - not citizens. Our state is important because it is the primary duty holder in relation to our human rights, but we have these right not by virtue of our citizenship in a particular state, but as human beings. 2. Claims on power - mainly, but not only, on state power. 3. Special claims (almost transcendent claims) that assert their primary importance over competing claims - sovereignty, politics, the general welfare; however, as we will see, even human rights have limits. 4. Protected in international treaties, or significant claims that they should be - but it's not a closed list, human rights emerge from struggle that is ongoing to define and protect.

What are the 4 main points of limitation clauses?

1. Not all human rights include limitation clauses ex. Article 3 gender equality ex. Article 7 prohibiting torture ex. Article 18 (3) does not apply the right to hold religious beliefs or to freedom of conscience, or the right to adopt a religion of one's choosing. They are concerned with the manifestation of religious belief. 2. Interference with rights must be explained and justified by the state - the burden to demonstrate a limitation is required falls on the state. 3. The state must demonstrate that the limitation is done in accordance with the law - this doesn't just mean that you just have to show a law permitting the law exists rather: - was the law duly passed in accordance with correct legal process? - are its provisions public and its operations of the law accessible? - can it be challenged in court? 4. The limitation must bear a rational justification to one of the permitted grounds for limiting the right in question AND the state must show it is necessary and proportionate to achieve the aim sought.

What are the 4 main points regarding limitation clauses.

1. Not all human rights include such limitation clauses. ex. Article 3 (gender equality) and Article 7 (prohibiting torture) ex.

What are the 4 types of obligations/duties associated with rights that address both state and non-state action? Elaborate on each.

1. Respect - Nothing must be done to interfere with the exercise or enjoyment of human rights. For example: do not censor press; do not torture detainees, do not discriminate in law against women or minorities 2. Protect - Take the necessary steps to protect rights from interference by others. For example, prohibit and punish domestic violence so that women are not at risk in the home; regulate the conduct of private security companies, so that they don't mistreat people when they detain them; enact and enforce hate speech laws, so that a free press doesn't permit hounding of minority groups 3. Fulfill - Speaks to positive action and generally requires a commitment of resources and/or institutional capacity to give effect to the right. For example, build schools and train and pay teachers to ensure primary education; Ensure even the poorest can access basic health care; provide legal aid so that even the poor get a fair trial 4. Promote - Sometimes, the obligation requires that measures be taken to overcome prejudice and build public support for human rights. For example, public awareness campaigns that promote awareness of rights, or human rights education in schools to promote tolerance.

Group UN bodies according to those that are primarily political in nature, primarily advisory and/or quasi-judicial in character, and primarily "civil service" oriented

1. Some like the Human Rights Council and the Commission on Human Rights before it, are made up of Member States that are primarily political in nature 2. Others, like the UN Committee Against Torture, or the UN Human Rights Committee, are made up of independent experts and are primarily advisory and/or quasi-judicial in character 3. The Office of the UN Commission for Human Rights is appointed by the Un Secretary-General and approved by the General Assembly and leads an office of several hundred UN staff (in Geneva) with overall responsibility for the UN's human right program. It is, if you like, the "civil service" arm of the UN human rights programme

Who does Public International Law (PIL) apply to? How?

1. States How? - defines conditions of statehood - defines benefits and limits of sovereignty assigns states responsibility for unlawful acts - sets rules for negotiating, applying, interpreting inter-state agreements (treaties) - governs inter-state dispute resolution 2. Intergovernmental Organizations (IGOs) - huge growth in IGOs since founding of the UN in 1945 + some with universal membership (United Nations, World Trade Organization) + Some with regional membership (European Union, Organization of American States, Arctic Council) + Some with membership criteria based on language or common heritage (Commonwealth, Organization of the Islamic Conference) - Variety of purposes - military alliance, peace and security, economic relations, cultural exchange - Usually founded by treaty - member states must ratify to join - Growing IGO role in defining and promoting international law 3. Others (increasingly also to non-state actors (but in limited ways)) - Transnational corporations: may have both rights and obligations under PIL - Non-governmental Organization (NGOs): may be granted rights under treaties, may play a consultative role in international standard-setting - Armed groups (insurgents, "terrorists"): duties and obligations under the laws governing armed conflict - Individuals: may be allowed to bring complaints to international tribunals, may be prosecuted for committing international crimes

Break down the First counter-argument to the relativist criticism to the universality of human rights - how would skeptics answer that argument?

1. The Legal Argument - States from very diverse political, cultural and religious traditions still sign and ratify human rights treaties even when those treaties cover 'controversial' issues: women's rights, religious freedom, free speech etc. - So if culture were of primary importance, why would states ratify treaties that require changes in domestic law that will contravene these traditional practices or beliefs? COUNTER: (a) states may ratify those treaties only because they feel it is necessary to conform to the normal requirements of membership in the international community of states. It signals no real commitment to the so-called universal values embedded in those treaties. - even if the decision to ratify/commitment is made by the political leadership, this hardly shows a deeper, societal commitment to those values. In many countries, the state is quite weak, and its institutions remote from the reality of people's lives (b) States can also make reservations when they ratify human rights treaties and many have: - a reservation is a legal declaration accompanying a notice of ratification that simply indicates which parts of the treaty the state might not fully accept - many states have made reservations in ratifying treaties on women's rights, sexuality, rights of a child etc. clearly indicating continued disagreement regarding some human rights.

What are the limits to the application of the derogation clause?

1. The Threshold Test the derogation clause can only be invoked "in time of public emergency which threatens the life of the nation" Not all emergencies will meet this test. ex. the 1970 October Crisis when due to the kidnapping of two public officials (one of whom was later found murdered) by a small, armed group in Quebec, the Canadian government invoked the War Measures Act, suspending some civil liberties. Most commentators agree the threat - though clearly criminal and intended to terrorize - did not justify such a heavy-handed response. 2. The Proportionality Test Derogation does not mean the right can be fully suspended. Limits must be those that are "strictly required by the exigencies of the situation" There must be no discrimination in the application of such limits, and they must be consistent with other international law obligations. 3. The Test of Legality The emergency must be officially and publicly proclaimed - through accepted constitutional processes. And, under the ICCPR, there is a duty to inform other states, and justify the restrictions 4. As per Article 4(2), some rights can never be limited. These non-derogable rights include: - right to life - freedom from torture - prohibition on slavery and servitude - recognition before the law - freedom of thought, conscience, religion

Break down the first argument against economic and social rights

1. Type one, if you like, philosophically-based, says that social goods (like education, health care) and basic needs (food, shelter, etc.) cannot be equated to civil and political rights. a) this argument denies that they are rights. OR b) concedes they might be rights, but certainly of a lesser priority than civil and political rights. 1. Some argue that while education, health care, decent work and social security are all desirable, they are more in the nature of entitlements or benefits than human rights. - so, while government policy in this area might aim to satisfy claims for these 'goods", its failure to do so is not a denial of some inherent right. CRITICISM: - narrow: This argument has its roots in a narrow view of the state's role in relation to citizen's rights -the proposition that only rights that create negative duties on a state not to interfere with freedom, with speech, with religious practice, only such rights that give rise to negative duties of non-interference are properly considered human rights. - The strong version of this argument denies economic and social benefits are "rights" at all 2. In this latter view, if civil and political rights are respected first - we respect free expression and free association rights, a free press, fair and periodic elections, equal participation in political life, etc. if these are guaranteed - then an informed citizenry can best determine how best to deliver social and economic policy in ways that achieve the maximum impact for the most number of people ARGUMENT AGAINST ALL THESE VIEWS: - One answer to this argument denying economic and social rights, or giving them a lessor priority is to point to the simple fact that there is an International Covenant on Economic, Social and Cultural Rights, as we know, and that over 160 states have ratified it and, in doing so, presumably indicated at a minimum that they accept the legitimacy of such rights. - Further, although the Canadian Charter of Rights and Freedoms does not explicitly protect economic and social rights, dozens of constitutions from around the world do. - Perhaps the better answer is to point to the inter-related character of human rights, such that fulfilling economic and social rights ensures the better exercise of civil and political rights, and vice-versa. ex. Who can doubt that a literate and educated population is better able to participate in and contribute to a healthy democracy? ex. free speech and a free press help to curb corruption in the distribution of social programs to the poor? - In other words, rights are not nearly as separable as proponents of a civil/political rights-first position presume.

Break down the first factor that inhibited the recognition of women's rights including the - history - the response - the debate - the response to the debate - the implications/effect on other things

1. the state had to be the one abusing the human right through either discriminatory laws or the discriminatory application of laws by state agents - the dominant human rights' concerns faced by women were so often abuses perpetrated not by the state or its agents, but abuses they faced in their homes, families and communities, by husbands, traditional and religious authorities and by patriarchal systems of traditional or customary law - until the 1990 the fact the states tolerated such abuse or even through laws or their weak application, encouraged such abuse, this was not seen as sufficient enough to establish a human rights claim, at least not at the international level ex. rape of a woman by a prison officer would be an abuse of human rights but systematic domestic abuse of a woman for however long, even if complaints to the police brought no action, was not considered a human rights abuse back then ex. laws denying women equal political status might be a human rights issue, but sex discrimination in private employment was not RESPONSE: - the state not only had the duty to respect human rights, but also to protect them: the state must, through its laws, institutions and policies, take all reasonable steps to prevent discrimination and abuse of women and girls in the so-called "private" sphere. - Positive state action was required that would prevent non-state actors from interfering with the enjoyment of human rights by women ex. - review of the laws or law reform to ensure domestic violence is criminalized with appropriate punishment - prosecution of domestic violence cases - police training and adequate resourcing to identify and investigate complaints of domestic violence - public education campaigns to raise awareness of criminal nature of domestic abuse - establishing women's shelters so poor women are not forced to remain in abusive situations - etc. DEBATE: - what if the state does take some steps, but domestic violence persists, in general or in a particular case? Is every act of violence against a woman, or every act of discrimination, a human rights abuse, notwithstanding genuine efforts by the state to prevent or outlaw it? RESPONSE: - concept of "due diligence" was applied which provides for an external evaluation of the state's effort, and asks: - were these efforts appropriate given the risk and the resources available to address it? Has the exercised due diligence to prevent or punish these harms? - If so, then continuing domestic violence may not mean a state is in breach of its international human rights obligations (although certainly a matter for domestic criminal law) IMPLICATIONS: - the same notion of a duty on the state to exercise due diligence to prevent and punish harms by transnational corporations affecting the enjoyment of rights is at the heart of the UN's Principles on Business and Human Rights

Break down the second argument against economic and social rights

2. A second type of argument grounds its opposition in the alleged vague and costly nature of the obligations towards meeting so-called 'economic and social rights'. - it is really a debate, therefore, about resources not rights (do we have the money/resources to finance the protection, promotion, respect, and fulfillment of these rights?) - But does the issue of cost only arise for economic and social rights? Think of the costs associated with some civil and political rights. ex. Holding a federal election in Canada costs $300 million dollars, yet no-one suggests we stop holding them to save money. ex. costs involved in establishing and maintaining a fair justice system, or providing legal aid to ensure even the poor get a fair trial. - few civil and political rights are cost free - It is the case, as you're learning in this module, that the Economic and Social Rights Covenant defines special types of obligations for economic and social rights - that take into account a state's available resources. But just because the obligation is different, it doesn't follow that the rights are of a lesser stature, or are not rights at all. - As we've seen, there are differences as regards the obligations to respect some civil and political rights - in some cases these are absolute, in others they may be limited in times of war or emergency.

What are 4 key elements of the mandate of the Office of the UN High Commissioner?

4 key elements of the mandate of the Office of the UN High Commissioner: 1. The High Commissioner has a clear responsibility for the promotion and protection of human rights around the world - she need not wait for a decision by some other UN body to express concern about - or seek to influence - the human rights situation in a country 2. she has a clear mandate to enter into dialogue with governments for this purpose - and holds a very senior position, reporting directly to the UN Secretary General, this is a post that must be taken seriously; Governments do usually respond to her requests for dialogue 3. the High Commissioner has a strong New York presence, her office is in Geneva but the mandate requires a presence in New York with and office, staffed at a senior level, thus to be in a position to influence the General Assembly and Security Council debates (which take place in New York) 4. the mandate gives her the ability to open offices in specific countries, with local mandates that include protection efforts

Break down the Second counter-argument to the relativist criticism to the universality of human rights - how would skeptics answer that argument?

2. The Commonality Argument - the basic values found in International Human Rights Law are common to all (or almost all) cultural and religious traditions BECAUSE: - when drafting the Universal Declaration of Human Rights, and effort was made even then to reach out to different cultural traditions in agreeing to a list of rights. - this list is hardly purely "western" or even purely "liberal": (a) it includes economic and social rights which had less resonance in western, free market economies (b) in some areas, western ideas about rights were even changed. For example, the right to freedom of expression under international law does not protect hate speech, although in the United States free expression rights are more far-reaching (and would protect hate speech) COUNTER: - skeptics may agree that many values resonate in all cultures but to agree that justice and tolerance are universally valid does not mean that all cultures agree that the best way to uphold these values is through the declaration of individual human rights, protected by law. - an alternate approach stresses the importance of community and family, and one's duties within each - duties to other members of the family and duties to the community as a whole. - Though inherently suspect to those raised in a western, liberal tradition, the idea of promoting individual duties, rather than (or alongside) individual rights, is not necessarily an entirely misguided means of upholding a commitment to tolerance or protection for the vulnerable

Break down the second factor that inhibited the recognition of women's rights. Describe the ways in which the UN Declaration on Violence Against Women protected the rights of women.

2. arguing the cause for the abuse of women's rights lay in issues of culture and tradition, supposedly beyond the power of the state to alter, or as such, said to over-ride universal notions of human rights - cultural and religious specificity are invoked as an explanation and sometimes justification for a range of practices that infringe on human rights, not just women's rights: women's rights though are especially impacted by the invocation of these justifications though - the emergence of the global women's movement that gave voice to women from all societies which together rejected the cultural justification for abuse is one of the big reasons that contributed to the end of any oversight in this matter - they called for the universality of women's rights and for an expanded notion of the state's duty to protect to ensure women were protected from harm in their homes and communities: this led to the unanimous adoption by the General Assembly of the UN Declaration on Violence against Women UN DECLARATION ON VIOLENCE AGAINST WOMEN - made clear that violence against women was a human rights abuse and included "physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; physical sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution." - also explicit in regards to cultural justifications for violence: states cannot "invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination" - duties on states to protect women from violence in their homes and communities, the Declaration states: "exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons"

Which are the 3 most important Charter-based bodies for enforcing human rights?

3 most important Charter-based bodies for enforcing human rights: 1. The UN Security Council: though it only acts in the most serious cases 2. The Human Rights Council: the key UN human rights body, reports to the UN General Assembly 3. The UN General Assembly: oversees work of the Human Rights Council, approves new human rights standards, and may criticize individual countries Not ECOSOC or UN Commission on Human rights because although some UN human rights bodies report to ECOSOC, it does not play a major role in human rights issues and the UN Commission on Human Rights was replaced by the UN Human Rights Council in 2006.

What are the 3 ways in which the Convention against Torture marked a new approach to human rights standard-setting. Elaborate on each.

3 ways in which the Convention against Torture marked a new approach to human rights standard-setting: 1. It aimed to prevent torture (not just outlaw it) (a) by providing a very clear definition of torture, so as to largely preempt debates on whether certain treatment is torture or not: Article 1 in Convention: torture is defined as severe pain or suffering (physical or mental), that is intentionally infliction for certain purposes, by or at the instigation or with the consent of public officials. - Now, this definition hasn't ended all debate on whether certain types of treatments are torture or not. For example, consider the discussion on whether the use of waterboarding by US security forces amounts to torture in the context of counter terrorism efforts. But it has made it much harder for officials to defend certain types of treatment or punishment. (b) several articles of the Convention against Torture require states to establish a legal and regulatory environment that discourages torture and ill-treatment - Article 2(2) - makes clear there's an absolute prohibition on torture - that under no circumstances can it be justified, it lists the type of circumstances that states seek to put forward for justifying torture: terrorism, war, or emergency. It makes it very clear that none of these permit states to practice or condone torture. - Article 2(1) requires states to legislate against torture, and Article 4 requires states to criminalize the act of torture - Article 10 - Requires that public officials, police, those working in detention facilities - in fact, anybody coming in contact with people in custody, - be trained so that they understand that there are types of treatments and practices that are not permitted - Article 11 - Requires states to review regularly their detention, and interrogation policies - Article 15 - very importantly, says that no evidence and testimony obtained by torture can be used in a court of law. This aims to make very clear that there's no incentive for public officials, police etc. to gain information through torture because it would not be permitted to be used in court. 2. It identified specific duties on states to punish torture - One way to prevent torture is, of course, to punish those who order or commit it, so that a deterrent is established. Convention against Torture provides very strong provisions relating to punishment: + Article 4 - requires that states make it a grave offence under criminal law + Article 5 requires states to establish a broad jurisdiction in relation to the crime - for example, when it's committed by or against their nationals even if done abroad + Article 12 requires the state to investigate all complaints of torture + Article 13 gives individuals the right to lodge a complaint of torture + Article 14 includes the right to compensation if torture or ill-treatment is proved Taken together, these provisions make very clear that acts of torture will be punished and redress will be possible. 3. It internationalized the obligations to prevent and punish torture The Convention against Torture made the prevention and punishment of torture a shared international responsibility. Look at articles 6, 7 and 8 of the Convention. They place an obligation on states not only to punish acts of torture committed on their territory or by their nationals at home or abroad, but also to investigate. This created a provision of universal jurisdiction, giving the state not only the right but the duty to prosecute torturers if they had jurisdiction over them, even if the act of torture has taken place in another country against victims of another country. This was one of the first provisions in an international treaty for universal jurisdiction and it created duties on all states to seek to punish torture. Another way in which the Convention against Torture internationalized the duty to prevent torture is found in article 3 - it provides that states cannot forcibly return people within their jurisdiction to a country where they may be at risk of torture. This bolstered the protection of refugees and asylum-seekers who might be at risk of torture if returned to their home country.

Break down the third argument against economic and social rights

3. A third argument - related to the second one on vague obligations - holds that economic and social rights are incapable of being defined with sufficient precision to allow courts to enforce them - The third argument is that economic and social rights are non-justiciable which means that it is difficult for courts to make decisions in relation to claims about the denial of these rights; the rights and nature of the duties they give rise to are incapable of judicial determination. ex. if a state closes schools in some rural areas (in order to rationalize expenditures and maximize the impact of the money it can invest in education) thus requiring students to travel much farther to attend school, can a court second guess that decision based on a right to education? - How fast should the state be moving to realize these rights? - How much progress is enough? - Recall, the duties on states are to realize the rights progressively, and using the maximum of their available resources. ex. if very expensive and still unproven treatments are not provided to critically ill patients by a public health service, should a court - can a court - take a different view on the basis of a violation of the right to health? - Given the many demands on the state budget, how much should be devoted to any particular social goal? - Should courts answer these questions? - courts are already empowered to judge government policy against constitutional guarantees for economic and social rights. - . Further, Court decisions on civil and political rights also bear cost implications - in Canada the Supreme Court judgment in 1986 that granted asylum-seekers a right to an oral hearing (previously they only had a right to submit the facts of their case through written submissions), this decision cost hundreds of millions of dollars to implement (just as one example). As more and more courts and international enforcement bodies do issue rulings and opinions on the violations of economic and social rights, the argument on non-justiciability is increasingly hard to sustain.

Break down the Third counter-argument to the relativist criticism to the universality of human rights - how would skeptics answer that argument?

3. The Popularity Argument - If human rights did not resonate with individuals around the world, why have so many struggled for justice used the language of human rights? COUNTER: - skeptics claim that the appeal of human rights is more limited than claimed - while human rights NGOs are found all over the world, in many countries they represent elite opinion and are not broadly representative; funding for the promotion of human rights has come for the most part, from western countries, and this has also influenced the emergence of a so-called "global" human rights movement - even if local struggles adopt the language of human rights, there is little hard evidence to show doing so makes their message more appealing or more impactful - if the popularity of an idea were evidence for its deep acceptance, one would have to note that at the same time as human rights discourse advances, so too do discourses grounded in xenophobia, and various fundamentalist creeds that deny the idea of universal human rights; the human rights idea may, for many, be associated with globalization that arguably fundamentalist movements are reacting against

List the 4 key counter-arguments to the relativist criticism to the universality of human rights?

4 key counter-arguments to the relativist criticism to the universality of human rights: 1. The Legal Argument 2. The Commonality Argument 3. The Popularity Argument 4. The Change Argument

Why are most international rules enforced far more often by national courts than by international ones? List 4 reasons.

4 reasons why most international rules enforced far more often by national courts than by international ones: 1. National courts are more numerous and easier to access 2. Often, international tribunals, especially in the human rights field, require petitioners to "exhaust domestic remedies" before they can accept the case - this means you have no choice but to first seek redress through national courts and only when that fails can they access an international tribunal or process 3. Often (though not always) a decision by a national court will be more easily enforceable 4. International procedures are time-consuming and often more costly

Break down the fourth argument against economic and social rights

4. And the fourth set of arguments dwells on the alleged political character of these rights - meaning they involve political choice and compromise and cannot be reduced to fundamental precepts that should never be abridged. - Finally, there is the argument that economic and social policy issues are too political to be decided in terms of rights. - Political for all of the arguments already cited - because they involve decisions on the direction of state economic and social policy, on questions of money and budgets, and necessarily involve choice and compromise. - But is this unique to economic and social rights? - Decisions to enforce most rights require compromise. - Some argue that fulfilling economic and social rights is only possible with an interventionist, welfare state model, and thus implicitly tilts away from free market approaches. - But the ICESCR is silent on the orientation of economic policy and indeed leaves it to states to determine what combination of private and public provision of basic services they allow for - in education, in health care, in pension and old age security, etc. - the perception that some rights are less controversial than others very much depends on one's context.

Break down the Fourth counter-argument to the relativist criticism to the universality of human rights - how would skeptics answer that argument?

4. The Change Argument - cultures change and are influenced by others - to defend uncritically local culture against universal values is to impose the same sort of absolutism that is said to inhere in universality, because it assumes local culture is timeless and transcendent but obviously it's not - culture isn't rigid or immutable, tradition and so-called fundamental beliefs change - And this isn't just about supposed traditional and "underdeveloped" societies changing to accept the liberal assumptions of supposed "modern" and democratic societies. - some rights aren't traditionally linked to liberal or western thinking, like economic and social rights - ex. even western society is changing: US Supreme Court eventually ruled that the death penalty could not be applied to those under 18, citing as one reason, a growing global consensus against the practice COUNTER: - skeptics agree that cultures change and are influenced by others but they insist that it is better if they do so through an internal process, not through external imposition - when universal human rights are asserted from the outside, this may be counter-productive to the process of an internal re-evaluation of a particular practice. - the best tool to facilitate internal reflection may not be universal human rights codes, but rather, forward-looking interpretations of internally valid ethical frameworks (grounded in religious belief, for example) ex. Efforts in Africa to eradicate the practice of female genital cutting have had great success when grounded in local initiatives that are based in inter-communal dialogue involving elders and not the law and human rights

What are the 5 main oversight functions performed by treaty bodies? Accompany each with a description

5 main oversight functions performed by treaty bodies: 1. Periodic review of state reports - the treaty body considers and comments on a report submitted by the state regarding its compliance with the treaty. The process is repeated every so often 2. General comments - the treaty body issues authoritative pronouncements on the meaning, content and scope of various rights protected in the treaty 3. Review individual petitions - if a state has permitted it (for example, by ratifying an optional protocol), the treaty body may receive and give its views on complaints from individuals who claim the state has violated human rights 4. inter-state complaints - the treaty body may consider a claim by one state that another state is in breach of its obligations under the treaty 5. inquiry procedure-for serious situations/on-site visits - in certain cases, some treaty bodies may initiate a special procedure to examine an especially troubling pattern of human rights abuse

Which of the following is the least widely ratified of the major UN human rights treaties. 1. UN convention against torture 2. ECOSOC 3. International convention on the protection of the rights of all migrant workers 4. convention on the eliminations of all forms of racial discrimination

ANSWER: 3. The Rights of Migrant Workers Conventions is the least widely ratified. Only 49 states have ratified the Convention - almost all of them countries of origin, not destination, for migrants. The Conventions was adopted in 1990, much earlier than other treaties (ex. rights of persons with disabilities which have far greater number of ratifications)

[MOD2] A democratically-elected government is almost overthrown in a coup attempt. Sections of the military working closely with a network of civil servants who owe loyalty to a religious charity attack the Parliament, seize television stations, and shoot hundreds of protestors who rush onto the streets to protest. The government survives and the coup leaders and thousands of those who are alleged to have supported them are arrested. The country's laws don't include the death penalty, but the public is so enraged by this assault on democracy, they demand it be reinstated. The President agrees and promises to amend the criminal law to bring back the death penalty so that it might be imposed on the coup plotters. What do you think? - Justified - Not Justified - Need more information

Almost certainly not justified, but why? The death penalty clearly impacts on the right to life, which under international law - as you'll see in this module - is an absolute right that states cannot limit. BUT, as defined in Article 6 of the International Covenant on Civil and Political Rights (ICCPR), the right to life allows for states that have the death penalty in their criminal law to use it - but only for very serious crimes. A violent coup attempt is clearly such a crime. Why then can't the government use it on the coup plotters? Because while it permits the death penalty, the ICCPR prohibits absolutely the retroactive application of criminal law- you can't be charged with a crime for an act that wasn't a crime when you committed it; likewise, you can't be punished with a sentence that wasn't allowed for the crime when you committed it. The reason is simple. Experience shows that allowing governments to amend laws to look backwards permits misuse and arbitrariness. This situation is based on what happened in Turkey in July 2016. MOD2

Explain further the ideology between the first key feature of human rights

Basically the notion of human rights isn't a new idea but those ideas were grounded in notions of citizenship or property, race, class or gender so like the American Declaration of Independence and the Bill of Rights, those rights didn't extend to people who didn't fall into those categories like slaves or women (not everyone was entitled to the same rights equally). Today constitutional guarantees and international treaties overlap significantly but it's not always a perfect fit. Ex. Canada is a party to a UN human rights treaty that includes the right to education but you won't find that right in the Canadian Charter, or rights to adequate housing or social security. Now the claim on rights is the question - if political rights in Canada and China or Denmark and Chad are at different stages of development under different systems of government can the people there still claim these rights? Is this possible in a divided world?

What's the middle ground between relativists in criticism of the universality of human rights and those that deem it valid?

Both universalists and the skeptics agree that tradition and culture change, and even strong universalists would agree that change that is internally driven is preferable to change that is externally imposed (if only because the former is likely to be more effective than the latter) - even strong universalists have no reason to object if human rights principles go through some process of translation to be made locally relevant ex. by appeals to religious codes or other or other ethical frameworks - THE POINT IS to end abusive practice, not to insist that one do so by convincing people or to not necessarily do so by convincing people they have legally protected rights - the result is that where a cultural tradition - for example marriage of young girls - conflicts with universal human rights principles, both sides can agree the best way to end the practice is through local efforts to change attitudes that perpetuate this practice - this doesn't solve all disagreements; dispute will continue about how fast the change should come about, and whether external actors have any legitimate role (and if so, what sort of role?) - also, in regards to some specific beliefs, customs or traditions, there may be no "local" interest in changing them - they may be seen as eternally valid - ex. countries where laws based on sharia punish apostasy or denunciation of one's religion - where this is true, arguments about whether international human rights law or local tradition takes precedence are inevitable ^the defence of a "local value" over an international human rights norm is a tactic relied on by many countries, western and non-western alike - this also isn't homogenous across the board in the country - it would be rare if no local actors objected to abusive practices justified in the name of tradition; however, too often, their voices may not be heard

Explain the concept of cultural relativism as it related to Universal Human Rights.

Cultural relativism is the idea that the universal human rights code is blind to borders (both the political and cultural kind): There are diff. versions of the relativist critique of universal human rights: WEAK - A weak relativism argument asserts that while some practices or rules of human behaviour may be universally valid (ex. it is wrong to kill an unarmed civilian), many clearly are not, particularly in relation to issues of religion, sexuality, and the family. This is claimed as an empirical fact, but one that puts in doubt at least some of the universal claims of the human rights project STRONG - a strong relativism argument goes further, arguing not only that diverse cultural contexts give rise to diverse beliefs and ethical codes, but that where local tradition and/or belief collide with a "universal" right, to insist on the universal rule is a form of cultural imperialism. And usually one that is tied to imposing modern, liberal, secular (and western) values on traditional, non-secular (and non-western) societies. - in this strongly relativist view, outsiders may object to the practice or belief as morally wrong, but they shouldn't be able to invoke international law to over-ride local cultural preferences

How do national courts enforce international law?

Different legal systems have different rules in regards to the use of international law by national courts. Can be: 1. Monist: international treaties directly enforceable in national courts - In a monist system, international rules that are binding on the government, for example as set out in treaties it has ratified, can be directly raised in the courts by the parties to any litigation, and directly applied. - This is obviously a very direct and effective means to give effect to international legal rules. - Many countries with a civil law tradition follow this monist system. 2. Dualist: treaty rules enforceable when incorporated by legislation into national law - Secondly, in a dualist system, international treaties cannot be directly relied on in national courts - parties to any dispute must point to national legislation that incorporates the international rule. Canada, like most common law countries, applies the dualist approach. - Judges in Canadian courts will generally only give effect to those international treaty obligations that are clearly incorporated into Canadian law by an act of parliament or a law passed in one of the provincial legislatures. - For this reason, once the Canadian Government ratifies an international treaty, it usually turns its rules into Canadian legislation. CRITICISM: - dualist system is less effective for enforcing international rules - ex. what if the government fails to pass domestic legislation incorporating those rules? Apparently the court would be unable to give it any effect at all to the treaty HOWEVER: - even in situations in a dualist system where a government doesn't incorporate international obligations into domestic law, it doesn't mean the courts will necessarily ignore the international rule. ex. in Canada, if it can be shown that the treaty rule in question is binding as a matter of treaty or custom on the government, it may be cited for its persuasive value - to suggest a course of action the court should take. - Also, where that course of action is not obviously in direct opposition to a piece of domestic legislation, Canadian courts will endeavour to give effect to the international rule - especially where it is shown to be customary international law. GENERALLY: - In the human rights area, human rights treaties that a state has ratified are very often invoked in cases before national courts, especially to support a particular argument about how rights in that country's constitution ought to be interpreted/or applied. This is frequently the case in Canada.

Explain how duties correlate with rights?

Duties are a necessary counterpart to rights. If you have a 'right' to something - ex. free speech or education - then others have an obligation/duty to not interfere with that right, or, in the case of education, to provide the necessary means to fulfill that right.

Explain the debate on the relative importance of different categories of rights and how it led to the idea of indivisibility

Duties on states in relation to the two sets of rights differ. The distinct treatment of separate categories of rights hardened over time, and led to a compartmentalization (the UN's programme of work on human rights, the agenda in meetings of the Commission on Human Rights and the Human Rights Council and even the concerns that certain NGOs took up - all of them tended to divide rights according to whether it was an economic and social right or a civil/political rights issue. This fed into the debate: which set of rights is more important - economic and social or civic and political? Is there a hierarchy of rights so that certain rights deserve to be respected first, or more quickly, or more fully? ARGUMENTS: - "bread before ballots" - proponents argued that a government's first priority was to feed its population, to ensure they were educated and healthy, and only then to democratize, and allow for civil and political freedoms. So in this view, poor and under-developed countries shouldn't be expected to be multi-party democracies with a free press before they had at least to some degree, tackled their poverty and under-development. - Civic and Political Rights Should Take Priority: in this view, only in truly free societies can governments take the right decisions - and be held accountable for them - that will advance social and economic progress. ex. a free press, property rights, and an independent judiciary are better guarantors of economic progress than government planning THE COLD WAR BACKGROUND - the debate was well off during the cold war - The Soviet Union and allied states/states committed to socialism, argued for the priority of economic and social rights - the US/allies/many western states, argued for the priority of civil and political rights - the categorization of rights permitted this debate to rage. Western criticism of the Soviet Union's intolerance for dissent was matched by the Soviet criticism of the inequalities under capitalism INDIVISIBILITY - the idea of indivisibility arose in this context: as a concept developed to counter the argument on prioritization from either camp - obviously it was a compromise - the idea was simply to affirm the inter-dependent character of human rights which meant it was not possible to separate out one right or one type of right for priority treatment. By asserting the primacy of all rights, and not one category, neither side won the debate

True or False: International law protects economic and social rights, but it places greater priority on civil and political rights, like the right to vote and a free press. Explain.

False. Although some people argue one set of rights should take precedence, international human rights law provides no such prioritization.

True or False: Since its founding in 1945, the United Nations has always scrutinized the human rights record of its Member States.

False. Although the UN Charter includes the "promotion of human rights" as a key objective of the organization, for its first 40 years, UN human rights bodies rarely criticized the record of Member states. Only with the creation of the Office of the UN High Commissioner for Human Rights in 1994, was there a UN body explicitly mandated to speak out about human rights abuses in any Member State.

True or False: disputes about economic and social rights like the right to health or to an adequate standard of living cannot be adjudicated by courts, because it really comes down to questions of government finances. Explain.

False. Courts in many countries do hear cases where claimants allege their economic or social rights are being denied or infringed, and many constitutions explicitly protect these rights (but not in Canada). But some people argue that where the case turns on questions of government spending, the courts should leave such matters to elected parliaments.

True or False: Because of the growing power and influence of authoritarian or semi-authoritarian regimes like China and Russia, UN human rights bodies are far less active than they were a decade ago.

False. It's true that on many human rights issues there is less consensus among UN Member States than during the immediate post-Cold War period. However, the UN remains very active in this area, creating new investigative mechanisms, new international standards, and generally expanding its human rights work.

True or False: Countries with very poor human rights records are not permitted to run for election to sit on the UN Human Rights Council.

False. The UN Human Rights Council (HRC) is composed of 47 states, who are elected to serve for a fixed term. Although nominated states are encouraged to make pledges regarding human rights to get elected, there is no firm rule excluding repressive states. Although some say the result is a "rogues' gallery", it is hard to imagine clear criteria for excluding some states. Others argue it would be pointless to only include democracies on the HRC.

True or False: The UN has three objectives: to prevent and bring an end to armed conflict, to promote sustainable development, and to protect human rights. Each area of activity gets roughly one-third of the UN's budget. Explain.

False. These are the UN's three objectives, but the UN spends less than 3% of its total budget promoting and protecting human rights. UN Member States are reluctant to increase funding for human rights work at the UN.

True or False: Under International Law, university education is a human rights meaning students shouldn't have to pay for it. Explain.

False. Yes, education is a human right, protected in Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), but although that provision demands free primary education, it indicates free secondary and tertiary (college, university) education is an aspiration that states should pursue, but not an absolute requirement.

True or False: The ICESCR creates positive obligations on states, whereas civil and political rights create negative obligations on states. Explain

False. Although the ICESCR places many obligations on states to take positive steps to fulfill rights, such positive obligations are also found in regards to many civil and political rights. Further, some of the rights protected in the ICESCR, such as trade union rights and cultural rights, require states to refrain from interfering with basic freedoms

True or False: Economic and social rights are more politicized than civil and political rights because they seem to impose choices on governments as regards economic and social policy.

False. The ICESCR is silent on how a government purses its obligations, even if it would seem that a social democratic policy might be best; just as the ICCPR is silent on how governments respect freedoms, though obviously this will be easier in a full democracy

True or False: The right to work would require the government or business to give a job to anyone who asks. Explain

False: False. The right to work in Article 6 of the ICESCR protects first the right of individuals to pursue work of their own choosing, and secondly that governments undertake training and other programs to assist individuals to find work, and to reduce unemployment.

Are human rights really "indivisible and interdependent"? Explain.

First, take a look at what "indivisible and interdependent" means with concern to human rights. It would mean that paying attention to only one set of rights, and ignoring others, would be counter-productive as it would lead to minimal results even for the category of rights one prioritized. So ex. fulfilling the right to education ensures the better functioning of democracy, the right to free press means less famine (because famine is an issue of food distribution and not shortages usually). IN PRACTICE - in practice it is also hard to separate the social aspects of many human rights from its legal and civil aspects ex. Right to Housing Many of the issues like housing affordability, habitability, accessibility, service (water, electricity, plumbing) etc. are determined by social policy. Whereas protection agains arbitrary and/or forced eviction, security of tenure deals with civil rights and forced evictions might violate civil rights as much as they violate a right to adequate housing. ex. Right to Health - pregnancy leading to death is much more likely in poorer countries - part of the explanation lies in the incapacity of the health system but also the right to education that leads to women not being able to advocate through the same political power as men on decision like health funding or access to contraception. ALL RIGHTS? - but are all rights interdependent and indivisible? - China and the US both continue to hold to positions that champion the PRIORITIZATION of rights. + China asserts its preference to first fulfill economic and social rights before democratization. It has ratified the ICESCR but not the ICCPR. +US continues to argue that civil and political rights take priority - it has ratified the ICCPR but not the ICESCR - governments can and do take specific action in relation to specific rights, even as they stall on the implementation of others - similarly, illiteracy can be significantly reduced, even in a dictatorship - but while the debate continues, and while we speak of different categories of rights, they ARE still clearly linked in important ways

In relation to the 4 obligations, what is the main approach of international human rights law when dealing with actors other than the states?

In dealing with the duties on actors other than the states, the main approach of International Human Rights Law is the duty to protect - the duty falls on the state (which ratifies the treaty) to protect against abuse by non-state actors. In some cases, legal obligations might fall directly on the private actor - a multinational company, an armed group that controls territory, or others wielding significant power over people - but for the most part International Human Rights Law creates duties on states.

List some of the rights protected in the International Covenant on Economic, Social and Cultural Rights. What are some that arent?

Included: - Right to work, Article 6 - Right to adequate housing, as a component to an adequate standard of living in Article 11 - Right to food, as a component of the right to an adequate standard of living in Article 11 - Right to form and join a trade union in Article 8(1)(a) - Right to health, in article 12 - Right to social security, in Article 9 - Right to maternity leave, in Article 10(2) Not included: - Right to play, not in ICESCR but such a right is found in Rights of Child Convention - Freedom of movement, no but is included in ICCPR - Right to seek asylum, is only found in UDHR - Right to access the Internet, no, not explicitly. But might be implicit in rights to work (art.6),to take part in cultural life (art.15)(1)(b), and to benefit equally from scientific progress Art.15(1)(b)

Further explain the fourth key element of international human rights: International Legal Protection

International human rights are defined and protected in international treaties, and the expectation is that states which ratify these treaties will ensure domestic law will be amended to give effect to international rules. - All states have ratified some international treaties; the most important treaties enjoy close to 80% ratification rate. There are different types of agreements - some rights are better protected, some only recently recognized (disabled), some still disputed (lesbian, gay, bisexual and transgender (LBGT)) - ongoing process of definition and debate but, problem of enforcement. How to define new rights and how to enforce these treaties?

Rural people from a poor country move to the city to seek work. Unable to afford to rent (or accommodation simply is unavailable), they live in slums or shanty-towns on land they do not own, constructing housing from whatever materials they can find. The government points to the dangers of crime and disease in the slums and orders these people evicted, with force if necessary, and their homes demolished. Is this a possible violation of human rights and, if so, which right(s)?

MAYBE. Forcible evictions if done without due process and without ensuring alternative housing may amount to a breach of an individual's right to security, to property and to adequate housing. We need more information to understand the circumstances of the evictions. Look at Articles 3, 17 and 25 of the Universal Declaration of Human Rights.

Girls in a remote province of a poor country are often married before they reach the age of 18; many are married as young as 15 years. The legal age for marriage in the country is 18 and, although the government criticises the practice of underage marriage, it does little to stop the practice, claiming both a lack of resources and that it cannot easily overcome the forces of tradition and culture that still favour child marriage. Is this a possible violation of human rights and, if so, which right(s)?

MOST LIKELY. Child marriage is a violation of human rights, and it may reflect patterns of discrimination against girls. It might also prevent girls from completing their schooling - education is also a human right. Although the law forbids child marriage, as far as we know the government isn't doing enough to prevent it - the practice seems widespread. Look at Articles 2 (non-discrimination) 16 and 26 of the Universal Declaration of Human Rights.

Further explain the third key factor of international human rights: special (transcendent) claims

Many demands are made of governments and the powerful - human rights are "special" in the sense that when asserted, the claim is that they take priority. For example: - Fighting terrorism is important, but it shouldn't permit us to detain people without trial - Building schools is expensive, but children have a right to education - Minorities shouldn't suffer insults, but allowing restrictions on free expression is more dangerous But how special? How absolute? + Limitations - trae-offs + States of emergency ^conditions where rights can be limited Where are the limits?

A Christian pastor believes homosexuality is a sin. He prepares a pamphlet setting out his views, and a website too. The information makes explicitly hateful statements about homosexuals, including that they "will burn in Hell", "seek to destroy the Christian family", and that "they have seized control of our schools and government and must be stopped", including by criminalizing homosexuality and denying them permission to teach in schools. He distributes the pamphlet in front of schools, and other public places. A complaint is lodged with the police who warn the pastor to stop. He refuses to do so, and is charged under the country's criminal code with inciting hatred, a crime punishable with fines and/or up to 2 years in prison. What do you think? - Justified - Not Justified - Need more information

Most likely justified. The criminal charge clearly infringes on him expressing his views and the right to free expression is protected in Article 19 of the ICCPR. But freedom of expression is a right that can be limited - you can't slander or libel people, and there may be other reasons to restrict expression: Article 19 lists several. Among them, it clearly prohibits hate speech - public expressions intended to incite discrimination, hate and/or violence against any group. In this situation, the pastor's speech probably crosses the boundary, as he is publicly advocating for discriminatory laws against homosexuals, and encouraged hateful views towards them (which in turn may lead to violence). This situation is based loosely on a real case in Saskatchewan in 2011.

In what ways (3) do NGOs contribute to the UN human rights system? Are they important?

NGOs contribute to the UN human rights system in 3 crucial tasks: 1. promoting and contributing to the drafting of international standards 2. providing information on human rights abuses to UN procedures 3. campaigning for action The UN human rights system is crucially dependent on NGOs to make it effective

IS THIS A BREACH OF HUMAN RIGHTS: A strongly secular society passes a law banning the wearing of any clothing in a public place that covers a person's face; it is widely seen as intended to prevent Muslim women from wearing the burka and/or niqab (face-covering) in public.

No. At least not according to the European Court of Human Rights which in 2014 upheld such a law enacted in France in 2010. But a number of human rights groups continue to argue the law is discriminatory.

IS THIS A BREACH OF HUMAN RIGHTS: A country with a largely Catholic population refuses to allow women to choose to have an abortion, except in the extreme cases of rape or where the pregnancy poses serious risk to the mother's health

No. No human rights treaty provides for an unrestricted right to choose abortion. Some of the UN supervisory bodies have recommended this right be recognized in limited circumstances, such as the ones cited in this example.

If a state party to a United Nations human rights treaty fails consistently to fully implement its provisions, which sanctions may be applied?

None of the UN human rights treaties provide for any penalties when states fail to fully abide by their provisions. They establish monitoring bodies which scrutinize the ratifying states' human rights records, and which may draw attention to shortcomings, make recommendations and criticize he state, including in public reports. In serious situations, they might demand to visit the country. The only real international 'penalty' is the reputational cost to the state being held non-compliant by an official UN body. However, the views of the UN body might be used by domestic courts that can impose penalties on government.

A country faces threats from a global terrorist network, that carries out acts of terror against its nationals both at home and abroad, killing many people. In response, the threatened country permits its security services to use "aggressive interrogation methods" against terrorist suspects in custody. Such methods include sleep deprivation, forcing prisoners into stressful positions, simulated drowning, simulated executions, and "rough handling". The security services claim the use of these methods is producing actionable intelligence that has allowed them to disrupt and prevent other attacks. What do you think? - Justified - Not Justified - Need more information

Not Justified. The acts described clearly fall within the definition of torture (that you'll study in this module) and under Article 7 of the ICCPR there is an absolute prohibition on the use of torture. Moreover, there is a specific treaty outlawing torture, the UN Convention against Torture, and it states explicitly that nothing can justify torture and makes it an international crime. Even in wartime, torture is prohibited. This situation is based on the response of some states to Islamist terror, including the United States.

An unpopular government faces growing discontent, and trade unions, civil society groups and opposition political groups are organizing public protests. These start small but grow, especially after 3 demonstrators are killed by the police in disputed circumstances at one of the protests. Though for the most part peaceful, there are photographs of some demonstrators throwing rocks at the police, and vandalizing government-owned property to "be prepared to defend themselves" at the next protest - planned to be huge. The demonstrators also say the next protest will include halting public transport, and they demand only the government's resignation. The Minister for Public Order bans any further large demonstrations for 3 months, and instructs the police to arrest anyone who defies the order. - Justified - Not Justified - Need more information

Probably not justified, but we might need more information. The right to peaceful assembly is guaranteed in Article 21 of the ICCPR, but, like freedom of expression, it is not absolute. Large protest rallies usually require permits, if only to allow the police to manage traffic and other concerns. You can't demand a right to protest in the middle of a motorway, or on someone's private land. Further, maintaining "public order", and "public safety" are both stated as legitimate reasons in the ICCPR for restricting the right of peaceful assembly. On the other hand, usually these concerns can be met by agreeing terms for the holding of rallies - an outright ban seems to be too sweeping a response to what might be the government's legitimate concerns. However, is the threat of violence serious? Has the government tried and failed to get protest organizers to agree on some conditions regarding their rallies?

What was the focus of the UN Charter of Human Rights when it was first created? Why did states agree to it?

Prominence was given to the PROMOTION of human rights within the UN Charter: Article 1 (3) of the Charter declares as one of its purposes: "Article 1 (3) To achieve international cooperation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion." At the same time, governments were worried about giving the UN a role in promoting human rights but were reassured by the Charter's insistence in Article 2 (7) that the UN could not intervene in matters "essentially within the domestic jurisdiction" of Member States. In short, the understanding - broadly - was that the UN might "promote and encourage" but not take action vis-à-vis human rights matters in specific countries or territories in this initial Charter. Despite promotion being prominent, other aspects were mentioned in the charter: 1. Article 13 (1) (b) grants to the UN General assembly the power to study and make recommendations to assist in realization of human rights and fundamental freedoms 2. Article 55 and 56 reiterate that the UN shall promote "universal respect for an observance of human rights", and that "All Members pledge to take joint and separate action in co-operation with the organization" for that purpose 3. Article 68 calls on one of the UN bodies - the Economic and Social Council - to establish a commission on human rights

How is Public International Law enforced?

Public International Law (PIL) is enforced through: - diplomatic protest - moral suasion - imposing sanctions - counter-measures - dispute resolution before international tribunals (usually based on state consent) - use of force (where UN Security Council authorizes) But, a determined (and powerful) State can often still choose to pursue an illegal course of action

What is Public International Law? What are it's 3 key features?

Public International Law (PIL) is most importantly (and traditionally) rules regulating inter-state behaviour. But increasingly also: - rules regulating States' relations with intergovernmental organizations. 3 key features of the International Legal System: - state sovereignty: exclusive jurisdiction over territory and nationals - sovereign equality - states are "equal" in law (one vote each in UN General Assembly) - horizontal legal order - usually no higher authority to appeal to for final ruling (as in vertical, domestic legal order)

Elaborate on the second key element of human rights: claims on power.

States negotiate and ratify the treaties that protect international human rights, and for the most part these treaties place obligations on the states. But, people are at risk not only from state power: - women: in home, in the community - minorities: in the streets, or in accessing private services - civilians in war: from armed groups (Kony 2012 - LRA) - peasants: displaced by mining companies There are 2 ways in which international human rights impact on non-state power: 1. Indirectly: through state duty to protect (for example, the state has a duty to protect women from domestic violence) 2. directly: obligations may be placed on armed groups, emerging obligations on transnational corporations Mainly state power, but not only. Where to stop?

Describe the "enforcement spectrum." Break it down.

The "enforcement spectrum" can be used to understand the 6 ways in which the UN can be used to enforce all the fine rules set out in all the treaties from the least intrusive to the most intrusive. 1. Dialogue: a number of UN procedures simply establish a dialogue between the UN and a state on human rights. Typically, the state is not legally obligated to engage in this dialogue - but usually do so as anything emerging will be in the nature of mere recommendations. ex. UPR 2. Persuasion: persuasive procedures are those where the state is legally required - usually by virtue of ratifying a treaty - to report or engage in discussion on its human rights record. The results may be similar to those emerging from a dialogue - mere recommendations for action - but they might carry more weight as the procedure is mandated by a treaty the state freely signed up to. ex. UN treaty bodies 3. Formal Criticism: this set of procedures involves singling out a state for criticism, usually by means of a vote by other UN Member States, or by some special procedure that is triggered by virtue of a particularly worrying pattern of human rights abuse. ex. when the UN Human Rights Council passes a resolution expressing concern about the human rights abuses of a particular country 4. Investigation: the UN routinely reports on the human rights situation in dozens of countries, but only rarely does it formally establish or empower specific investigations. These will often be asked to make recommendations with a view to further action, including, potentially, criminal punishment. ex. The Human Rights Council has established several Commissions of Inquiry, and this is an example of an investigation-based procedure 5. Punishment: To force of a state to comply with its human rights obligations, the UN might impose various forms of sanctions on its leadership (i.e. travel bans, and restrictions on finances and moving money abroad). Also, international criminal investigations might be undertaken against those ordering and/or committing war crimes, crimes against humanity or genocide. ex. These might be undertaken by the International Criminal Court or the other International justice mechanisms 6. Use of Force: in extreme cases, the UN Security Council may authorize the use of military force to protect civilians and put an end to mass atrocities. It has done so rarely - and obviously this is a very controversial means to enforce compliance with human rights norms. The "enforcement spectrum" is organized by: - willingness: states are more willing to co-operate with the UN procedures that are dialogue and persuasion-based than those at the other end of the spectrum - does not measure effectiveness: dialogue might be the quickest most effective way to bring change and convince a government to amend its laws, release political prisoners, or stop forcibly evicting slum-dwellers - don't apply it too rigidly, it's one of the many tools that can be used to help remember the ways in which the UN can intervene to protect human rights

What are the 4 arguments against economic and social rights?

The 4 arguments against economic and social rights: 1. Type one, if you like, philosophically-based, says that social goods (like education, health care) and basic needs (food, shelter, etc.) cannot be equated to civil and political rights. 2. A second type of argument grounds to opposition in the alleged vague and costly nature of the obligations towards meeting so-called 'economic and social rights' 3. A third argument - related to the second one on vague obligations - holds that economic and social rights are incapable of being defined with sufficient precision to allow courts to enforce them 4. And the fourth set of arguments dwells on the alleged political character of these rights - meaning they involve political choice and compromise and cannot be reduced to fundamental precepts that should never be abridged

Describe how NGOs can involve themselves in the UN system.

The Charter provided, in Article 71, that the UN should make arrangements so that "non-governmental organizations" - NGOs - could in limited ways observe and participate in the UN's work. These NGOs could apply for and be given "consultative status" allowing their representatives to sit in UN Meetings, to make written and oral statements to such meetings, and to co-operate in various ways with UN bodies.

What is the Human Rights Council?

The Human Rights Council has the ability to discuss all thematic human rights issues and situations that require its attentions throughout the year Consists of: - UPR: mechanism which serves to assess the human rights situations in all UN Member States - Advisory Committee: which serves as the Council's "think tank" providing it with expertise and advice on thematic human rights issues - Complain Procedure: which allows individuals and organizations to bring human rights violations to the attention of the Council - made up of special rapporteurs, special representatives, independent experts and working groups that monitor, examine, advise, and publicly report on thematic issues or human rights situations in specific countries

Describe the right to free primary education through the 4 obligations.

The Right to Free Primary Education 1. Respect - do not require school fees for primary education; do not maintain separate but unequal systems of education 2. Protect - state has a duty to stop interference with the right - for example, where girls are kept out of school; and ensure schools are safe environments 3. Fulfill - obv, build schools, train and pay teachers 4. Promote - hold awareness campaigns of girls right to education to overcome discrimination

Describe the right to not be subject to torture or ill treatment through the 4 obligations.

The Right to Not be Subject to Torture or Ill Treatment 1. Respect - state agents prohibited from torturing, and punished is they do so 2. Protect - laws are in place that prohibit ill treatment by "private" actors (security companies, schools, private 'internment' facilities for the mentally ill) 3. Fulfill - place video cameras in police lock-ups; establish and fund a complains mechanism for prisoners 4. Promote - provide training in humane treatment for police and personnel

How has the UDHR proved its value?

The UDHR was a catalyst for two critical processes: 1. It kick-started the process to turn the aspirational language agreed in the Declaration into binding international treaties. From 1948 onwards, the process was begin in the UN Commission on Human Rights to adopt several international human rights treaties. These treaties establish legal obligations, and also establish international bodies to scrutinize state behaviour. Ex. - 1965, the Convention on the Elimination of Racial Discrimination - 1966, International Covenant on Civil and Political Rights (ICCPR) and the Internal Covenant on Economic, Social and Cultural Rights (ICESCR) - 1979 - Convention on the Elimination of Discrimination Against Women (CEDAW) etc. 2. A diverse and growing number of activists around the world dared to take seriously the uplifting language of the Declaration. Ignoring the weak nature of the document or its supposed aspirational quality, people experiencing oppression weren't prepared to wait. They claimed the UDHR to defend their rights. Despite governments decrying the UDHR's applicability, the repetition of the document by activists grew the importance of the document. Today, many of its provisions are considered to be part of customary international law even the the Declaration itself wasn't meant to create any legal obligation now its like standard practice. Ex. - many anti-colonial movements in the 1950s and 1960s - in 1950- the African National Congress, challenging Apartheid in South Africa (Mandela in his 1962 trial cited the language in the UDHR) etc.

Why was the UDHR such a remarkable achievement?

The Universal Declaration of Human Rights was a remarkable achievement because while the Charter proclaimed that one of the key purposes of the UN would be the promotion of human rights, it left undefined what those rights would be. The UDHR (1948) guaranteed rights to all humans and promised equality between the sexes and races and an end to discrimination; it promised civil and political freedoms alongside basic economic and social rights. This occurred at a time when these exact rights were being abused and violated around the world. So that's why it's pretty remarkable. Ex. - it was the year Apartheid was launched into law in South Africa - Segregation was still prevalent and legal in the USA - First Nations people were denied the right to vote in Canada etc.

What is the Universal Periodic Review?

The Universal Periodic Review (UPR) is a unique process which involves a periodic review of the human rights records of all 193 UN Member States. - based on equal treatment for all countries It provides an opportunity for all States to declare what actions they have taken to improve the human rights situations in their countries and to overcome challenges to the enjoyment of human rights. The UPR also includes a sharing of best human rights practices around the globe. Currently, no other mechanism of this kind exists.

What is the derogation clause?

The derogation clause is listed in Article 4 of the ICCPR: "ICCPR - Art. 4 In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour sex, language, religion or social origin. So to explain, in emergency situations, this clause allows states to further limit the extent to which they uphold the rights in the ICCPR. It anticipates events like war that might give rise to a declaration of martial law, or a natural disaster that might require extraordinary efforts by the states to maintain public order.

Why is there a UN Convention Against Torture when there was already a UN declaration against Torture made 9 years prior?

The development of the Convention against Torture was part of a trend whereby certain forms of human rights abuse, or the rights of particular groups of people were singled out for special attention. ex. when campaigns for women's rights and the emerging feminist movement in the 1960s spurred the adoption of a Declaration on the Elimination of Discrimination against Women in 1967 and eventually the negotiations led to the treaty on the Elimination of Discrimination against Women in 1979. The Convention against Torture (1984), was part of the same trend, where a particular form of abuse was singled out for more in-depth regulation. Torture which had been seen as a medieval practice confined to the dustbins of history, suddenly emerged through the pages of NGO reports as a practice in widespread use. In fact, later reports of Amnesty International suggested that it was practiced in more than a hundred countries. The emergence of the Convention against Torture (CAT) is an example of a new phase in standard-setting, from general affirmation or prohibitions, to itemized lists of duties and definitional clarity. It is also an example of the growing influence of civil society, whereby non-governmental organizations work together with interested governments to build international coalition, culminating in an international treaty on a specific subject. This was part of the two key trends launched by the adoption of the Universal Declaration of Human Rights: the process of standard-setting (agreeing to international treaties) and the emergence of a global human rights movement, and how these two were mutually reinforcing. Perhaps nowhere is this clearer than in relation to the struggle to abolish torture.

What are Special Procedures of the Human Rights Council?

The special procedures of the Human rights Council are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. With the support of the Office of the United Nations High Commissioner for Human Rights (OHCHR), special procedures undertake country visits; act on individual cases and concerns of a broader, structural nature by sending communications to States and others in which they bring alleged violations or abuses to their attention; conduct thematic studies and convene expert consultations, contribute to the development of international human rights standards, engage in advocacy, raise public awareness, and provide advice for technical cooperation. Special procedures report annually to the Human Rights Council; the majority of the mandates also reports to the General Assembly.

List the two factors inhibiting the recognition of women's rights

The two factors inhibiting the recognition of women's rights: 1. a dominant view of human rights that considered direct state involvement/action was necessary to establish a claim that a human rights were abused - so the state had to be the one abusing the human right through either discriminatory laws or the discriminatory application of laws by state agents 2. arguing the cause for the abuse of women's rights lay in issues of culture and tradition, supposedly beyond the power of the state to alter, or as such, said to over-ride universal notions of human rights

How is the UPR unique and useful?

The uniqueness of the UPR lies in the fact that every UN Member State, once every four years, must defend its human rights record. This is done in a public session of the Human Rights Council, and on the basis of the public reports - one by the state, one by the UN summarizing what all UN bodies have said about the human rights situations in the country, and one summarizing the material submitted by NGOs. Other states can ask questions and comment. A final report then summarizes by listing the recommendations for reform that were made in the session. The state under scrutiny is free to accept or reject these recommendations. - through the universality of the UPR process, and the essentially voluntary nature of the reform commitments a state might in that process, the UPR was empowering the reformers, equipping them with an opportunity to raise the voice for reform, and in a way that wasn't easily dismissed as bowing to foreigners, or giving in to biased pressure. - those the name and shame techniques of human rights NGOs are important, and there is a role for foreign pressure, sometimes the most effective voice for reform will come form within the state, even a non-democratic state. UPR has a number of drawbacks, but as a technique that through its universality and consensual nature removes the controversy attached to more coercive and country-specific measures, it may create a space for reformers to act where they couldn't have before. The value of that should not be under-estimated

What are the 2 key institutions of OP-CAT?

There are 2 key institutions of OP-CAT: 1. when a state ratifies op-cat, it must designate (or establish) a "National Preventive Mechanism" (NPM) - a domestic body that undertakes regular visits to places of detention, and operates independently 2. OP-CAT establishes a "UN Sub-Committee on Prevention of Torture (SPT) that is empowered, at short notice, to visit places of detention in countries part to OP-CAT and which makes recommendations to the authorities. The SPT is quite unique among the treaty bodies in its extensive powers of on-site investigation.

What are the sources of Public International Law (PIL)?

Three Main Sources: 1. Treaties The terminology for treaties differs (treaty, covenant, charter, agreement, etc. - point is whether purpose is to create legal rules). - Arrived at through negotiation (where IGOs, NGOs and others play a role) + Signature - when treaty text agreed (shows intent to be bound) + Ratification - formal notification of agreeing to be bound by treaty - Most often a 2 step process for States to join a treaty - Ratification rules vary - in Canada, rests with Executive, in US, Senate must agree - Legal effect of treaties - in Canada, must be incorporated in domestic legislation for courts to enforce - Interpretation - guided by "object and purpose" of treaty; will look to drafting history 2. Customary International Law Rules that reflect the practice of states over time, and which are accepted as binding - Two elements: + State Practice - that is extensive and consistent, and + "Opinio Juris" ... evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it" (How determined? - resolutions, statements, diplomatic cables, etc.) - Still relevant, but customary rules are of declining importance and many international rules are being codified into treaties 3. General Principles of Law Basic legal rules, usually regarding procedures or interpretation of rules, found in all modern legal systems What are basic legal rules? Ex. - Rule against unjust enrichment - some evidentiary rules - rules against retroactive criminal legislation - rules regarding negotiating in good faith Treaties, customary rules are called "hard" law, with a clear, binding quality But states reach many other agreements: - Resolutions passed - for example, at UN General Assembly - Declarations agreed at conclusion of sumits - Conclusions adopted by UN bodies Non-treaty law agreements often are called "soft" law - Not of a clear binding quality, but may create political expectations - Over time may reflect emergence of customary rules

Summarize how the claim on women's rights changed international law.

To claim women's rights are human rights was not simply to demand that an existing body of international law be applied to protect women, but more fundamentally that the law should be CHANGED and INTERPRETED in ways that ensured women's concerns were not left aside. The story of the recognition that women's rights are human rights is not only a story of how women fought to ensure the mainstream human rights movement recognized their claims, but also a story of how women campaigning for their rights changed the mainstream - and in ways that had implications and benefits for all human rights.

True or False: The obligations on states to protect and fulfill economic and social rights must take account of local realities - poor countries and rich countries cannot be judged by the same standard. Explain.

True. As you'll see, the ICESCR requires states to work progressively to realize the rights it protects, and to use the maximum of their available resources to do so. Both of these standards imply taking account of the particular situation of each state.

True or False: the human rights record of every UN Member State - even the most powerful - is regularly reviewed in public UN meetings

True. In 2007 the UN Human Rights Council established the Universal Periodic Review (UPR) and every four years every UN Member State must defend its human rights record in a publics, three-hour session. Also, under treaties states ratify, they must regularly appear before UN monitoring bodies (the "treaty bodies") to answer questions regarding their compliance with treaty norms.

True or False: Although governments may have limited resources, they cannot discriminate in how they distribute those to fulfill rights to education, housing or health Explain

True. Articles 2(2) and 3 of the ICESCR make clear that discrimination on grounds of sex, race, colour, language, religion, etc., is impermissible.

Members of an extreme political group take up arms against a democratically elected government. They kill members of the police, take civilians hostage to raise ransom money to buy more weapons, and explode bombs in public areas, killing many civilians. Is this a possible violation of human rights and, if so, which right(s)?

YES. Although international human rights treaties mainly place obligations on governments, not rebel forces or "terrorists", killing civilians and taking hostages are international crimes, prohibited in all circumstances even by non-governmental forces - though the rules are found in treaties governing armed conflict.

A newspaper editor is arrested, imprisoned by the police, and held for many weeks without charge. She is eventually convicted on a charge of criminal defamation for an article that was published that alleged the country's president was illegally providing his family preferred access to government contracts. Is this a possible violation of human rights and, if so, which right(s)?

YES. The editor's human rights to liberty (infringed by being held without charge) and freedom of expression (infringed by conviction for publishing legitimate criticism) have likely been breached. Look at Articles 3, 9 and 19 of the Universal Declaration of Human Rights.

Has the Office of the High Commissioner for Human Rights fulfilled the expectations of the NGOs who campaigned to have it established?

Yes and No: yes: - the UN High Commissioners have been vocal public advocates for human rights. Look at the OHCHR website to see the many statements the High Commissioner makes about human rights in countries around the world. - has opened field offices in many countries No: - no one has served two terms, everyone subject to considerable opposition from a variety of states and pressure from states, especially powerful ones - retained aspects of the "secretariat" culture of the old Centre for Human Rights, and is seen to lack the quick response capacity for independent action of the more operational UN agencies like the UN High Commissioner for Refugees or UNICEF

IS THIS A BREACH OF HUMAN RIGHTS: The laws in a country with a strong religious tradition criminalize same sex relationships. Explain

Yes. Although discrimination on the grounds of sexual orientation is not explicitly prohibited in any UN treaty, both the UN Human Rights Council and the UN Human Rights Committee (that monitors the ICCPR) have said that equality, non-discrimination, and other guarantees in the ICCPR mean that states cannot criminalize same sex relations between consenting adults.

IS THIS A BREACH OF HUMAN RIGHTS: Customary law in a largely agrarian society provides that at death, a man's property, including his land, passes to his male offspring or relatives, not his wife (though there is also a duty on those male offspring relatives to ensure the widow is cared for)

Yes. The UN Convention on the Elimination of Discrimination against Women (CEDAW - see Art. 16(h)) explicitly prohibits discrimination between men and women in respect to property rights and inheritance. And further, CEDAW requires states to take proactive steps to change discriminatory customary or traditional practices.

How does Canada defend economic and social rights?

the Canadian Charter of Rights and Freedoms does not explicitly protect economic and social human rights. Although Canada ratified both the ICCPR and the ICESCR at the same time, in 1976, when the Canadian Charter was drafted and agreed in 1982, economic and social rights were left out. What this means is that Canada is internationally bound to protect and fulfill a set of rights, economic and social rights, not provided for in its constitution, alongside civil and political rights, which are found in the Charter. - The result is that in Canada when issues pertaining to rights to education, housing, health or education arise, and end up in the courts, lawyers use some of the wording of rights that are found in the Charter, buttressed by arguments based on Canada's international commitments, to claim these rights are implicitly protected.