International Human Rights

 

Where Do Human Rights Come From?

 

Legal Sources

-         Normative Declarations

o       1948 Universal Declaration of Human Rights is not a treaty

-         Treaty Law

o       1948 Treaty to Prevent Genocide

o       International Covenant on Civil and Political Rights (1966/1976)

o       International Covenant on Economic, Social, and Cultural Rights (1966/1976)

-         Customary Law

o       Derived from customary practices of states

o       customary international law justifies intervention against genocidal acts (e.g., application to Serbia/Kosovo in 1999)

 

Philosophical Sources

-         divine law (Declaration of Independence: "endowed by their creator")

-         natural law (e.g., Aquinas, Locke, ): intrinsic part of humanity by nature of being human

-         secular deontological theories (Kant): non-consequentialist moral obligations

-         consequentialism: human rights are means to other ends

-         social constructs: evolve as social institutions

 

 

International Human Rights Regime

 

Norms: 

·        states are obligated to respect internationally agreed-upon human rights

Delimiting the list of the rights is the controversial part

·        states are accountable to other states for human rights violations

·        gross violations of human rights justify international intervention

 

Principles:

·        human rights exist: delimited primarily in UDHR

·        ’civilized’ states respect them human rights

·        gross systemic violations of human rights threaten international peace and security

 

Rules:

as outlined in treaties and UN procedures

 

Decision-making procedures:

as outlined in treaties and UN procedures

 

 

Explaining the creation of the regime

 

Realist Views

-         HR not a major concern

-         HR compliance has some security benefits (preventing refugee flows)

-         Regime will be weak

 

Liberal Views

-        HR are intrinsic to peace and cooperation

-         HR sustain liberal polities and cosmopolitan hospitality

-         NLI is more puzzled: why not just a voluntary approach? What gains are made?

  •  economic rights create a “level playing field”

  •    political and civil rights more puzzling; must have positive externalities

 

Constructivist Views

-         constitutive v. regulatory norms

-         HR norms regulate behavior but adherence to the norms also creates identities for states as supporters of HR

-         Few states reject the constitutive norm of HR


 

Leading United Nation HR Organizations

 

Human Rights Committee

-         18 independent experts established by ICCPR

-         reviews reports submitted by signatories and questions signatory representatives publicly about the reports

-         Optional Protocol allows individuals of signatories to the protocol to submit complaints for review.

 

Committee on Torture

-         10 independent expects established by 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

-         hears complaints from individuals only when state parties have consented to the procedure

 

ECOSOC Commission on Human Rights (replaced in March 2006)

-         53 state representatives

-         hears complaints from states and individuals regarding “consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms”

-         issues reports and votes on condemnations

-         most political

 

General Assembly's Human Rights Council

  • created in March 2006

  • 47 state representatives, elected by GA

  • 3 regular sessions & special sessions

  • no de facto permanent members

 

 

UN High Commissioner for HR

-         created in 1993 to promote HR

-         reports to Secretary-General

-         supported ECOSOC Commission on HR, now GA's Human Rights Council

-         moral authority


 

Leading Regional Organizations

 

European Court of Human Rights

-         Created as part of European Convention on Human Rights (1950/1953)

-         Not an EU institution: Council of Europe

-         Court had limited role prior to 1994/1998 with Protocol 11

-         Increase in case load

o      7 cases accepted out of 404 complaints in 1981 to 119 cases out of 4,705 complaints in 1997

 

Inter-American Commission & Court on Human Rights

-         part of OAS

-         Commission founded in 1959

-         American Convention on Human Rights 1969/1978

o      25 parties

o      Created Court

o      Strengthened commission

-         US is not a party to ACHR