POLI 444 Readings Midterm
Donnelly 4 Universal Human Rights in Theory and Practice.
- Legalization of human rights: "The practice of formulating human rights claims as legal claims and pursuing human rights objectives through legal mechanisms"(61). Problems with legalized definitions of human rights: - Controversy over generality, to which Donnelly contends that "generality can also be a strategy for bracketing disagreements over particular details rather than allowing them to derail broader and more fundamental agreements"(64). - Continuing refusal of many of those in power to comply with their international human rights obligations - Issue of "statism, the exclusion of individuals and national and transnational groups from the process International enforcement - "International human rights treaties are implemented and enforced almost entirely through national legal means International Norms - Normative force more important than judicial enforcement; so definitions matter - Thinking of human rights as international legal norms allows them to be conceptualized as entitlements rather than remedies
Freeman (2006). "Putting the law in its place: an interdisciplinary evaluation of national amnesty laws."
Assumptions made by the legalization of human rights - Human rights are 'prior' to law - They have been 'legalized' - This legalization is problematic Courts of law can make human-rights principles more precise in meaning International human-rights law is not above politics: All law is political in that it reflects the distribution of power in society and its interpretation and application have differential impacts on the like-chances of those who are subject to it
Yeshanew (2014). "The African Regional Human Rights System." In Anja Mihr and Mark Gibney (eds.), The Sage Handbook of Human Rights, SAGE, Chapter 32.
Banjul Charter Frames of reference: indivisibility of human rights and an African conception of human rights Provides for civil and political rights; economic, social, and cultural (ESC) rights as well as collective (People's) rights Derogation and Limitation: Absence of clear provisions; 'claw-back' clauses in the Banjul charter Lots of issues with interpretation by the Commission No right to privacy or against forced labor African Commission on Human and People's Rights - Actio popularis: any person or entity may bring a case of human rights violation on behalf of any other persons African Charter has no derogation clause; onus on states is heightened
Jack Donnelly. Universal Human Rights in Theory and Practice. Chapters 1& 5.
Chapter 1 - Rights as entitlement - Righteousness as in rectitude - Three forms of social interaction involving rights: 1) Assertive exercise (right is exercised) 2) Active respect (right is taken into account) 3) Objective enjoyment (rights never apparently enter the transaction, the norm/ideal) Human rights as a distinct category (rights one has because they're human) All human beings have the same human rights and they are unalienable Possession Paradox: Having' and 'not having' a right at the same time - possessing it but not enjoying it - with the 'having' being particularly important precisely when one does not 'have' it"(9) Armed with multiple claims, right-holders typically use the 'lowest' right available Chapter 5 Politics and Justice in the Premodern Non-Western World - Confucion Code of ethics: rights had to be earned - Premodern rights reserved for male landowners because they were the most truly "human." Modern Origins - US Declaration of Independence (1776) - French Declaration of the Rights of Man and the Citizen (1789) - Still only white men (and often property owners)
Smith (2012, 5th edition). Textbook on International Human Rights. Oxford University Press. Chapter 11 (pp. 181-192).
Chapter 11 State Discretion Margin of appreciation: the degree of flexibility accorded to States in determining whether certain measures are necessary. When rights clash, a decision must be made on which one gets priority - Tends to be decided on an individual basis
Smith (2012, 5th edition). Textbook on International Human Rights. Oxford University Press. Chapter 12 (pp. 181-192).
Chapter 12 - De jure equality does not necessarily result in de facto equality - Almost every human rights instrument includes a non-discrimination clause - realization of de facto equality may be dependent on affirmative action - Women treated as a vulnerable group: progression from protective discrimination -> full equality - Race Discrimination - Religious discrimination - Different forms of discrimination (nationality, language, etc)
Smith (2012, 5th edition). Textbook on International Human Rights. Oxford University Press. Chapter 13 (pp. 181-192).
Chapter 13 The right to life (positive) (healthcare, investigation) Parameters of life: when does life start Death penalty Genocide Freedom from torture Torture as a violation of the physical and mental integrity of the person No universal legal definition Threat of torture alone can be an infringement of human rights Inhuman or degrading treatment or punishment Treatment of detainees No derogations
Ilias Bantekas and Lutz Oette (2013). International Human Rights Law and Practice. Cambridge University Press. Chapters 15 (pp. 567-599) and 15 (pp. 613-655).
Chapter 15: Human rights and counter-terrorism The legal nature of terrorism: - Lacks a globally-agreed definition Underlying or Root Causes: - "Developing nations argued that terrorism should be examined from its root causes, such as racism, colonialism Obligation of States to protect their populations from terrorism - Terrorism is a crime committed by private entities, and incurs criminal liability - But this makes victims the victims of crime, not human rights violations (because these can only be committed by state agents). Vague and broad definitions for terrorism in criminal legislation increases the risk of arbitrary detention, reduces the application of ordinary guarantees - Thus, the ability of a state to suspend particular rights depends not only on whether this is specifically permitted in a human rights treaty, but also on whether other rules of international law allow, and to what degree, the sus- pension in question. By way of illustration, if a certain freedom is derogable under a human rights treaty, but the conduct implementing the derogation is considered an international crime it is impermissible The Right to Life in Counter-Terrorism Operations: - lethal force is permissible when Absolute necessity; high-threshold proportionality, when they have been notified and can surrender - The Court accepted that targeted killings were possible so long as the information on the identity and activity of the suspects had been verified Even unlawful combatants should be entitled to due process rights
Donnelly 6 & 7 Universal Human Rights in Theory and Practice. Cornell
Chapter 6 International Legal Universality Functional universality of internationally recognized human rights. Levels of Universality and Particularity - Ontological relativity: human rights are not part of the natural fabric of reality; they do not apply everywhere and at all times. - Historical or anthropological relativity: they were not present in 'traditional' (nonstate and nonmarket) societies, and there is no reason to assume that they will apply in very different types of societies in the future. - Foundational relativity: human rights have a considerable number of quite different foundations (which converge on the Universal declaration in an overlapping consensus) - Relativity of enjoyment: human rights, although held universally, are implemented nationally, making their enjoyment relative to where one has the good or bad fortune to have been born or to live. - Relativity in specification: a list of human rights reflects a process of social learning with respect to historically particular and contingent standard threats to human dignity. Chapter 7 Western culture and international human rights Cultural absolutism, accepting the status quo Genetic fallacy: Confusing the origins of a practice with its validity Some cultural practices demand our condemnation rather than our respect. It also, however, indicates that some beliefs, although despicable, demand our toleration - because freedom of opinion and belief is an internationally recognized human right
Ilias Bantekas and Lutz Oette (2016, 2nd edition). International Human Rights Law and Practice. Cambridge University Press. Chapter 12 (pp. 526-549).
Children's Rights - Children are uniquely vulnerable; dependent on others for survival - Childhood is a non-static concept - Child liberationist model: absolute autonomy - Protectionist model: in need of specialised protection - Age of majority contentious Child's right to be heard - Entitled, but not obliged - there is no collective right of children to be heard, unless it is a group of children with common interests Non-discrimination - Any discrimination against a caregiver is discrimination against the child
Smith (2012, 5th edition). Textbook on International Human Rights. Oxford University Press. Chapter 7 (pp. 92-113).
Council of Europe and its Conventions European Social Charter: Guarantees social and economic human rights; divided into general principles, specific rights, and obligations Convention is developed and monitored by European Court of Human rights Court can receive complaints from individuals and sta Chambers can relinquish jurisdiction in favour of a Grand Chamber where a serious question affecting the interpretation of the treaty is concerned European Commission on Human Rights: Dealt with questions of admissibility but could also give opinions on cases Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights - Democracy viewed almost as a prerequisite to human rights All EU members are members of the Council of Europe and bound by the terms of the European Convention on Human Rights Treaty on European Union provides the first acknowledgment of human rights in EU constitutional law
Ramcharan "The Law-Making Process: From Declaration to Treaty to Custom to Prevention." In Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law pp. 499-526.
Drafting Process for Declarations and Conventions Customary International Law Room for improvement: Systematic, thematic compilation of existing standards Academic compilation of core norms of customary international law Academic compilation of general principles of international human rights law Periodic survey of international human rights law Publishing of digests of the jurisprudence of UN human rights bodies Repertory of the the Practice of the Human Rights Council Threats to humanity that call for the articulation of their human rights dimensions - Climate change, natural disasters and global competition for depleting resources - Preventative human rights strategies - Protection of vulnerable groups - Using the Universal Periodic Review process to advance prevention - Injecting human rights dimensions into regional preventive regimes (AU, OAS, etc.)
Ilias Bantekas and Lutz Oette (2013). International Human Rights Law and Practice. Cambridge University Press. Chapter 9 (pp. 366-408).
Economic, social, and cultural rights - Disparate from civil and political rights; subject to progressive realisation rather than immediate realization - Many civil and political rights are meaningless without ESC rights (right to life dependant on food/water) - USA and allies pressed the Commission on Human Rights to remove ESC rights - ESC Rights are positive in nature Nature of state obligations - Progressive realisation: respect, protect, and fulfil - Derives from the reality that most, if not all, states are unable to provide the entire range of ESC rights, at least with immediate effect, because of resource constraints Minimum core obligations - Non-derogable, but obligations of means - progressive realisation - Advancement of a baseline level of protection - Signalling an acceptable global redistributive debate Justiciability: "The capacity of a particular claim to receive judicial scrutiny or determination on the basis of mandatory rather than discretionary rules"(380) Indicators and Benchmarks for measuring compliance - Indicators must be anchored in the normative content of particular rights - Examples: Percentages of persons covered by social security, access to healthcare, education enrolment rates, number of women with a fixed income Human rights indicators are: - Structural: ratification/implementation of legal instruments and institutional mechanisms - Process-based: Degree to which laws are transformed into concrete policies - Outcome-based: attainments in the realisation of human rights (can be misleading because of several other contributing factors)
Smith (2012, 5th edition). Textbook on International Human Rights. Oxford University Press. Chapter 18 (pp. 283-294).
Freedom of Expression - Overlaps with several other rights - Vertical and horizontal levels: Designed to protect the individual against arbitrary interference with the freedom of expression by both the State and other private individuals - Right to opinion and free thought is almost impossible to control Freedom of the press and media - State-owned media: "Problems arise when either the State-owned enterprise has a monopoly or when the State prevents other enterprises from operating or even from receiving information" Exceptions - Must be prescribed by law - No war propaganda - Issue: no universal standard of public morality Clash between rights and freedoms - Freedom of expression vs. right to privacy
Ilias Bantekas and Lutz Oette (2013). International Human Rights Law and Practice. Cambridge University Press. Chapter 10 (pp. 409-451).
Group Rights - self-determination, minorities, and Indigenous peoples (Collective or solidarity rights) - Examples: continued existence, development, peace and security, a generally satisfactory environment - Collectivised individual rights should best be viewed as policy objectives realised through mechanisms available to individual rights, rather than as collective entitlements - Collective rights should not be implemented in a way that prejudices the individual rights of group members - External self-determination can only be exercised and enforced as collective; requires broad consensus - Territorial integrity of states must remain to the fullest extent - Only applies to majority groups, Minority groups like Indigenous groups only enjoy the internal dimension of self-determination Exceptionalism - Unilateral secession of peoples from a failed state - Consensual secession by means of a plebiscite or agreement - Indigenous land rights: Mayagana Case, Nicaragua - Indigenous ownership as a right to property - The property rights of Indigenous peoples involve a particular positive obligation on states
Donnelly 4 (2013, 3rd edition). Universal Human Rights in Theory and Practice. Cornell University Press Chapter 15
Humanitarian Intervention against Genocide - Intervention and international law: Intervention as armed coercion is illegal, "nonintervention is the duty correlative to the rights of sovereignty - Human rights infringements do not authorize foreign states or organizations to intervene Pluralism, Paternalism, and Political Community - When human rights violations such as cases of genocide are so great that "there are no moral bonds between a state and its citizens that demand the respect of outsiders" then "the moral presumption against intervention may be overcome Darfur and the Future of Humanitarian Intervention - "In 2012, the general international consensus is that there is a right to humanitarian intervention, especially when authorized by the UN Security Council" changing views on intervention
Ilias Bantekas and Lutz Oette (2013). International Human Rights Law and Practice. Cambridge University Press. Chapters 14 (pp. 567-599) and 15 (pp. 613-655).
International Humanitarian Law - Distinct rules for international and non-international conflicts Combatants and non-combatants - Only combatants and military objects can be subject of attack - Combatants can both be lawfully targeted, and lawfully authorized to kill other combatants and be afforded POW status - IHL does not oblige states to recognize rebels as legitimate combatants Lawful and unlawful combatants - Unlawful being "persons taking a direct part in hostilities without satisfying the four criteria in the Geneva Conventions" Prohibition of: - Killing or wounding an enemy if they are incapacitated or surrender - Refusing to provide quarter - Excess/unnecessary suffering - Incendiary weapons - Treachery/deception Why HR Bodies find the application of IHL problematic - Proportionality and necessity Human Rights in Situations of Military Occupation - IHL > IHRL
Onuora-Oguno (2014). "Migration, Refugees, Asylum and Uprooted Peoples' Rights." In Anja Mihr and Mark Gibney (eds.), The Sage Handbook of Human Rights, SAGE, Chapter 15.
Refugees - to be classed as refugees a person or group of persons need to be displaced due to violence - A person has the right, subject to the law, to seek and to enjoy asylum from persecution in countries other than their own, and the countries in which asylum is so sought, though not obliged to grant it, are obligated not to send a person out to a country where their life or well-being might be threatened - Burden of proof lies with the persons seeking asylum Internally Displaced Persons (IDPs) - Someone who flees for the same reason as a refugee, but remains in their country - Not protected by international law or eligible to receive many types of aid Refugee-Specific Rights: - Doctrine of non-penalization - Non-refoulement doctrine - Non discrimination
Donnelly 4 (2013, 3rd edition). Universal Human Rights in Theory and Practice. Cornell University Press Chapter 16
SOGI Rights - Right to Nondiscrimination - Article 2 of the Universal Declaration - In most countries, sexual orientation is an accepted ground for discrimination Tactical and strategic issues involved in bringing sexual minorities under international nondiscrimination protections: - Amendment process is extremely difficult - Relying on interpretation: "other status" (Reading "sex" into "sexual orientation and Procedural issues) - Ethical issues with sanctions or conditional aid: Does someone have to come out to claim rights as an individual member of an oppressed group? - Yogyakarta Principles - Transition from negative "right from" to positive "right to" rights
Smith (2012, 5th edition). Textbook on International Human Rights. Oxford University Press. Chapters 15 & 16 (pp. 233-267).
Slavery Liberty and security of person - Deprivation of liberty is only permissible if the grounds of detention are lawful and the procedure followed upon detention is also in accordance with the law - Liberty entails a freedom of movement within a State Procedural guarantees (informed, review, compensation, etc) Equality before the law and the right to a fair trial
Smith Chapter 1, Texts and Materials on International Human Rights.
Sources of international human rights: - States' custom/practice - National tradition - International laws - Protocols: "International instruments added on to a treaty. They are usually optional, so a State may be party to the main treaty but avoid obligations under any associated protocols"(9). Customary international law - May not be written down - A practice which States follow because they feel legally obligated to do so Based on: - Actual behavior/practice of states; 'constant and uniform' - Legal reason for such behaviour; opinio juris, necessary to demonstrate that States are acting in a consistent practice because they feel they are under a legal obligation to do so - National laws, voting, soft law, trade agreement terms, can be used as evidence of opinio juris, and reflect accepted norms Example: Customary guarantees against torture and slavery - States are bound to refrain from engaging in slavery or torture, irrespective of whether or not they have ratified any Problems of definition, "only the most abhorrent treatments may fall within the (customary) prohibition on torture"(15). Jus cogens: those norms of law which are effectively entrenched in the international regime and are non-negotiable
Preis "Human Rights as Cultural Practice: An Anthropological Critique," pp. 286- 315.
The problem of Universalism Cultural Relativism Human rights doctrines like the UDHR often emphasize the individual but many cultures emphasize the group.
Ilias Bantekas and Lutz Oette (2013). International Human Rights Law and Practice. Cambridge University Press. Chapter 12 (pp. 484-521).
The right to development, poverty, and related rights Collective entitlement, what should the basic objective of development be? - Human well-being, 1986 Declaration on the Right to Development (RTD) - Development isn't just financial progress - Not dependent on external actors but on the active engagement of the target state Justiciability - Challenges can not be directed against failure to achieve well-being, but only for violations of civil, political, and ESC rights -
Kozma (2014). "The United Nations human rights system: the genesis and role of the Human Rights Council and the High Commissioner for Human Rights."
Three main purposes of the UN: international peace and security, development, human rights. Article 62 of the UN's 1945 Charter "confers the institutional responsibility for reaching the aim of universal respect for human rights to the Economic and Social Council (ECOSOC)"(3). UN Human Rights Council: - Criticism against the Commission on Human Rights was growing: rogue states using it for their own interests, double standards, met only once a year and could not react quickly - The council had a more comprehensive set of tasks than the Commission - Elevated from a commission of ECOSOC to a subsidiary organ of the GA. - Met much more frequently, at least 3 sessions for a duration of ten weeks; more flexible to react Universal Periodic Review - Introduction of a system of regular reviews of State compliance with their respective human rights obligations (with creation of the Council) - However, impact of the UPR depends on the commitment of the state under review, so those most in need of external scrutiny are the least impacted by the UPR UN High Commissioner for Human Rights - Actions limited by the specific mandates of the UN organs and obligation to carry out assigned tasks; can also make recommendations to organs
Rodley (2013). "The Role and Impact of Treaty Bodies." In Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law, Oxford University Press, pp. 621-648.
UN could not monitor states' compliance with human rights" bc doing so would be impermissible intervention unless they agreed to a treaty with an obligation of supervision Composition of treaty bodies: minimizing bias with experts instead of state reps Functions of treaty bodies - Review of state reports: core function - General comments - Interstate Complaints - Individual Complaints - Inquiries Outcomes are not per se legally binding but they have legal significance Problems with the Treaty Body System - Too much work - Case backlog - Procedures not well known - Proliferation of treaty committees
Smith (2012, 5th edition). Textbook on International Human Rights. Oxford University Press. Chapter 6 (pp. 83-90).
UN's system of human rights "made no possibility for regional human rights systems" Benefits of regional agreements: - Smaller number of states needed to agree - Final texts are easier to administer and disseminate. - More accessible - Easier enforcement; greater political will to conform; pressure applied by nearby states Three main regional systems: Organization of American States, Council of Europe, Organization of African Unity/African Union
Contreras-Garduño (2014). "The Inter-American System of Human Rights." Chapter 33.
What is the Organization of American States (OAS) Regional, intergovernmental organization; purpose to promote good things 1948: American Declaration of the Rights and Duties of Man - Origin of the Inter-American System of Human Rights Inter-American Commission of Human Rights - Can monitor state compliance through on-site investigations, country reports, recommendations to member states Individual Complaint Procedure: Inter-American Court of Human Rights - contentious jurisdiction - Advisory Jurisdiction Burden of Proof - In some cases, the burden of proof is put on the state to prove that allegations did not occur (rather than on the claimant) e.g: disappearances - state has intention to hide or destroy all evidence related to the disappearance of a person 2009 reform: Commission would no longer act as the 'legal representative of the victims' - This reform recognized victims as autonomous parties of the proceedings US and Canada not ratified
Ilias Bantekas and Lutz Oette (2013). International Human Rights Law and Practice. Cambridge University Press. Chapter 11 (pp. 452-483).
Women's Rights Why do the human rights of women still remain so contested and controversial? - Violations committed in the private, rather than the public realm - Conceptual distinction between sex and gender CEDAW: Women's Convention - Critiques: does not specifically refer to rights that have particularly detrimental effects on women; reservations, weak enforcement mechanisms; no explicit provision in relation to violence against women, no explicit provisions on right to life and prohibition of torture - Many signatory states to treaties with liberal values continue to deny civil and political rights to women Western Critiques: - Failure to sufficiently recognise and respond to the public-private divide issue - Use of masculine language and vocabulary in international human rights Critiques of Western feminist approaches - Too much emphasis on law - Not intersectional