HUMR5140 Introduction to Human Rights Law

Autumn 2012

Lecture 3:

International Bill of Rights

Outline

1. Development of human rights in law:

Idealisation, positivisation, realisation

2. What is the “International Bill of

Rights”?

3. The typology of States’ obligations

4. “Absolute” vs. “relative” rights

5. Immediate vs. progressive realisation

Phase 1:

The development of human rights

Three phases

Normativisation

and realisation

Positivisation

Idealisation

Re-idealisation

Human Rights Law Enjoyment

of Life –

Rule of

Law

Fear and

Want –

Rule by

Power

Phase 1:

Idealisation

Phase 2:

Positivisation

Phase 3:

Realisation

Phase 2: Positivisation

The transformation of

ideals into normative

standards

Important step:

UDHR 1948

…but was it the first step?

Early norms pertaining

to conduct during

armed conflicts

From ancient times

to 1900

Early 20th Century

Phase 2: Positivisation

…but was it the first step?

Code of

Hammurabi,

1700 BC

Magna Carta,

1215

Peace of

Augsburg, 1555

Habeas Corpus

Act, 1679

English Bill of

Rights, 1688

US Declaration of

Independence,

1776

French «Rights of

Man», 1789

A necessary sidestep:

Three «generations» First generation:

• Civil and political rights

• Liberté

Second generation:

• Economic, social and

cultural rights

• Egalité

Third generation:

• Group and collective

rights

• Fraternité

Fourth generation?

Phase 2: Positivisation

Early 20th Century

Attempted positivisation

with the League of Nations

• Minority rights

• Right to health

• Anti-slavery

• Women’s rights

• Labour rights

Phase 2: Positivisation

20th Century Economic collapse Early 20th Century

Phase 2: Positivisation

20th Century Devastation of World War II

Dresden, Germany

London, UK

Shanghai, China

Manilla, The Philippines

Phase 2: Positivisation

20th Century Brutality of the State

Nanking massacre

Japanese forces burying prisoners alive

German forces detain and

kill undesirable citizens

German Program to

kill handicapped

people because they

were ‘costly’ to

Taxpayers – ‘life

unworthy of living’

Phase 2: Positivisation

20th Century The destructive power of

States demonstrated

USA Atomic Bombing of

Hiroshima in 1945

First Soviet Test of an

Atomic Bomb in 1949

First Chinese Test of an

Atomic Bomb in 1964

Phase 2: Positivisation

20th Century

Modern

positivisation

After World War II The UN Charter

San Francisco Conference

Drafting of the UN Charter (1945)

1st Session of the UN General Assembly

Central Hall in London (10 Jan 1946)

Phase 2: Modern

positivisation

After World War II The UN Charter

Determined … to reaffirm faith in

fundamental human rights

The purposes of the United Nations are … To achieve

international co-operation in … promoting and encouraging

respect for human rights and for fundamental freedoms for all

without distinction as to race, sex, language, or religion;

Preamble

Art. 1

Arts. 55

and 56

The United Nations shall promote … universal

respect for, and observance of, human rights and fundamental

freedoms for all without distinction

as to race, sex, language, or religion.

All Members pledge themselves to take joint and separate

action in co-operation with the Organization for the

achievement of the purposes set forth in Article 55.

Phase 2: Modern

positivisation

After World War II The Universal Declaration

of Human Rights (1948)

P.C. Chang from China, Eleanor Roosevelt from

USA, John Humphrey from Canada (of UN

Secretariat), Charles Malik from Lebanon,

Vladimir Koretsky from the USSR

Renè Cassin from France

The UN General Assembly

unanimously proclaimed the

UDHR as a ”common standard

of achievement”

Phase 2: Modern

positivisation

After World War II The Universal Declaration

of Human Rights (1948)

Content? Both CivPol and

EcoSocCul rights

Legal status? UNGA resolution,

legally non-binding

International

customary law

Art. 1: All human

beings are born

free and equal

Art. 2: The basic

principle of

non-discrimination

Arts. 3-21:

Civil and political

rights

Arts. 22-27:

Economic, social

and cultural rights ICCPR ICESCR

Bridged the gap between

CP and ESC rights

Phase 2: Modern

positivisation

• A “World Court for Human Rights”?

• The recognition of grave human rights violations as a justification for intervention

• Individual international responsibility for violations of human rights law

• The responsibility of non-state actors

• NCHR research project: The legitimacy of multi-level human rights judiciary

• The “legalisation” of international relations

• The fragmentation of human rights tribunals

• A focus on the “wrong” human rights…?

Positivisation and

realisation: Some

challenges and

developments