Topic 1: Introduction to International Human Rights

Transcription

1 Topic 1: Introduction to International Human Rights Basic principles of public international law - IL = the system of rules that governs relations between states - In theory, IL is created between individual sovereign states, all answering to no higher power problem = if every state answers to no higher power how is the law enforced - Traditionally a nation would have absolute sovereignty within its own borders however IL has had the effect of being a series of trade offs that nations would agree to relinquish certain parts of their sovereignty so that other states would do similar - Until WW2 states had absolute sovereignty over what they did with their own people within their own borders, however IHR has grown since then, focussing on the idea of universal rights Notion of IHRL - IHRL is a species of IL that regulates states (countries) - Traditional international law was about relations b/w countries - HR laws was a radical addition to that in recognising rights of individuals o Rights owed by states to people (not rights owed by states to states) - Human Rights Law concerns the rights of humans, however, humans are not the subject of IHRL - IHRL involves rights against the government What are human rights? - Rights that you have by virtue of being a human being - Legal answer rights contained in treaties, in universal declaration of rights - Primarily it is governments that are meant to protect human rights - You don t earn them and ou don t lose them just because you ve done a bad thing - Fluid/changing o Freedom of speech now includes access to the internet (irrelevant 20 years ago) o Attitudes change Marriage equality not a live debate 15 years ago, now it is LGTB rights (lesbian, gay, trans, bisexual) Emergence of IHRL HRs in the domestic system - Magna Carta o One of the earliest and most famous examples of sovereign power being constrained o Taxation and arbitrary rule of the King was constrained o Very limited no. of rights today o Only applied to those with land, not ordinary people - Glorious revolution o 400 years later o 1969 UK o Finally confirmed that it is Parliament that is basically in control, rather than the monarchy o Important bcos Parliament is meant to represent the people o Radical at this time 1

2 o Constraining rule by whim and instead having rule by law o UK way of protecting human rights rely on Parliament - Bill of Rights o An alternative means of upholding rights Bills of Rights o US, France (100 years later) - All of these things start to establish human rights in domestic systems, HRs as part of the French, UK etc legal system Before WWII - The concept of HRs was not really recognised prior to WWII and sovereignty was a prevailing concept up until this time - There was limited rights recognise in IL: o Anti-slavery movement One of the first recognised breaches of HRs States which engaged in slavery were recognised as breaching international law Leap from domestic HR (bill of rights etc) to international law o Establishment of the International Labour Organisation (ILO) that recognised labour and trade union rights o Geneva Convention and humanitarian law that regulated conduct during wartime Evolution after WWII Atrocities of WWII shocked the consciousness of mankind - WWI had led to the creation of the League of Nations o Precursor of the UN o Goals included preventing war through collective security, disbarment and settling international disputes - WWII was the biggest turning point in the formation of international human rights - The two primary developments after WWII were the: o Establishment of the International War Crime Tribunals o Established of the UN - It was no longer the case that there were no IL governing how states treated it citizens United Nations - UN is the international organisation founded in 1945 following WWII by 51 countries UN Charter Foundational treaty of the UN - All members of the UN are bound by it - Charter states that the states obligations to the UN prevail over all other treaty obligations - Most countries in the world have now ratified the Charter - UN Charter gives the UN a no. of functions: o Keep the peace (UN has stopped WWIII) o Maintain global peace Article 1 The purpose of the UN is: 2

3 - To maintain international peace and security - To develop friendly relations among nations - To promote social progress, better living standards and human rights o First time, HRs is a legitimate subject of international law o Until that moment there was some exceptions (slavery for eg), but until then HRs and particularly HRs of a states own nationals was not a matter of international law Article 55 and 56 - Treaty states have duty to take joint and separate action to promote HRs Universal Declaration of HRs UN Commission on Human Rights, a body created by the UN Charter, drafted the Universal Declaration of Human Rights which was adopted by the United Nations in December Universal Declaration of Human Right represents the first global expression of the rights to which all human beings are entitled - No country has ever voted against Universal Declaration o In 1948 though South Africa, Russia, Saudi Arabia abstained from the vote - The rights included in document have since been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws. - The UDHR is NOT a treaty o It s not a legally binding treaty o It is a declaration it is a type of international document o It has enormous moral force De-colonisation & Samuel Moyn thesis s: Lot more independent states - More actors joining the UN and officially participating in the HRs debate - Instead of having 48 members, had 100+ members of the UN bcos newly formed nations Samuel Moyn Thesis - Is dismissing of those who trace the origins of HRs to WWII - IHRL DID NOT emerge in the 40s. Yes there was kumbay moment. But then everyone forgot about it - It was not until the late 1970s that human rights in the contemporary sense began to play a significant political role and became a real legal phenomenon - In the 70s that countries started to judge each other by HRs standards Sources of IHRL Treaties - Treaties are a major source of IL - They are international binding agreements b/w states. Can have bi-lateral treaties (eg Aus with South Korea) or multi-lateral (many state parties) Process of becoming party to a treaty Signature 3

4 - Firstly, a state will be required to sign a treaty - At this stage, they are not yet party to the treaty, however their signature signals their intention to ratify the treaty Ratification - Secondly, a state will be required to ratify a treaty. - Once a state has ratified a treaty, they become a party to the treaty and are bound by it. - The process of ratification depends on a state s domestic law - In Australia, a treaty can be ratified without the assent of the parliament, so it is quite simple in Australia and most western systems to ratify a treaty. Accession - A multilateral treaty will always need a certain number of parties to ratify it before it comes into force. - The number of parties will be specified in the treaty itself. - If a state becomes a party before a treaty comes into force, it is said that they have ratified the treaty. - However, if a state becomes a party to a treaty after it has come into force, they will have acceded to it. - Legally there is no difference between ratification and accession- all states have the same duties, rather it is a timing issue. UN Human Rights Treaties NB: optional protocols - Optional Protocols to human rights treaties are treaties in their own right, and are open to signature, accession or ratification by countries who are party to the main treaty - Protocols add more rights or add procedures International Covenant on Civil and Political Rights 1966 (ICCPR) - Freedom of assembly and speech, rights of prisoners, political rights (right to vote), right to privacy - 2 optional protocols possible to join but not ratify the protocols o 1 allows ICCPR complaints to be made to the UN (Aus is a party) o 2 add more rights prohibits the death penalty in all circumstances which means that the death penalty is allowed in some circumstances under the ICCPR itself adopted in 1966 when most have the death penalty International Covenant on Economic Social and Cultural Rights 1966 (ICESCR) - Right to housing, right to health and economic rights (right to work, right to join trade unions), right to work, right to adequate standard of living International Convention of Elimination of all Forms of Racial Discrimination 1965 (CERD) Convention on Elimination of all Forms of Discrimination against Women 1978 (CEDAW) 4

5 Convention against Torture 1984 (CAT) Convention on the Rights of the Child 1989 (CRC) (most popular treaty, however not US) Migrant Workers Convention (MWC) - Least ratified even though was adopted in approx Didn t come into force until Migrant workers convention is not about ppl who happen to work in a country who happen to be migrants - It is about guest workers workers brought in for specific jobs but then are expected to move home - No western country is a party believe it is not an issue of concern to them but not necessarily true Aus brings ppl in Convention on Rights of Persons with a Disability 2006 (CPRD) International Convention for the Protection of all Person from Force Disappearance Treaties are binding in international law, but are not necessarily binding in domestic law. - This has consequences for the type of sanctions a country may be subject to if they violate human rights. Regional treaties - European convention on HRs (1951) covers Russia (probably receive the most complaints) o Has several protocols 17. A protocol is a subsidiary treaty that is bolted on and up to states whether they want to ratify the subsidiary treaty o Most effective - American convention on HRs o Technically covers north and south America but US and Canada haven t joined o Mainly central America - African Charter on Human and Peoples Rights 1981 o Largely contains individual rights but also focuses on group rights (ie peoples ) - Arab Charter on HR 2004 o Newest regional treaty o Difficult to get info on this charter bcos most is in Arabic - Don t cover this so much bcos no regional treaty that Aus can join and nothing really on the horizon for Asia Pacific o Why not? Less cohesive. Who would Aus join with? NZ? Countries like Tonga don t want to be in a treaty with Aus, sort of see them as the bully, like America. o Asian countries are focused on state-sovereignty (eg Indonesia saying don t interfere) Problems of treaties Only states party to a treaty are bound by it 5

6 - If treaties were the only source of international human rights law, then states could choose which laws they wanted to be subject to, as treaties only bound states that have ratified the treaties. Reservations - A reservation is a statement made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. - Reservations allow states to choose what provisions in a treaty they wish to be bound by o E.g. Some states have ratified CEDAW, but then enter reservations that result in them implementing treaty only as far as it is compatible with domestic law. - Under International Law a reservation is not allowed if undermines object and purpose of treaty - Reservations are a real complication in human rights law. Declarations - Serve various purposes o Stepping stone towards an actual treaty - Universal Declaration of Human Rights Declaration on the Right to Development Declaration on the Rights of Indigenous Peoples 2007 (DRIP) - Declarations look like treaties, but they do not impose legal obligations on states. - States do not ratify declarations as that would not make sense, they can vote in favour of a declaration, but that is all. - Whether a country supports or does not support declaration is entirely a political matter. What is the use of declarations? - Declarations provide a measure of standard of conduct of states - Declarations are the precursors of treaties, that is, declarations assist in the development of International HR law o Signal an intent that this issue is serious and we care about it. May sound weak but it is important. Signal motivation of adopting a treaty. - Declarations can evolve into international customary laws, and become legally binding. - Declarations can have political impact, even if not legally binding. - Signal an intent that this issue is serious and we care about it. May sound weak but it is important. Signal motivation of adopting a treaty. - Can come to be seen as a custom of international law Customary international law Custom - Customary international laws are laws that bind all states regardless of the treaties that they have ratified - If we can show that states act in a particular way because they feel they are obliged to do so then the rules which bind them may be discussed as being customary laws - These rules might be written and they might not 6

7 - For example, China is not bound by civil and political rights under any treaties, but maybe it is bound under custom - Analogy: o Treaties are a bit like K law. People sign it. Custom is a bit like tort law. We are all bound by it even though we don t sign anything. In order for something to be accepted as a custom, it has to satisfy 2 tests: 1. State practice - Conduct has to be practiced by large number of states for reasonably long period of time - Vague test. Doesn t say about the size of the state either. 2. Opinio juris - It is not enough that state s practice is in accordance with particular rule, there must be enough states that believe that rule is legally binding (circular argument) o Not enough to be doing it bcos they think it is polite. Have to be motivated by the fact that it is law - This is a difficult test to apply because goes to the state of mind of a state (difficult to ascertain.) Exception to being bound by custom Persistent objector rule - Customary laws bind all states except for states who are persistent objectors. - When a rule of custom crystalises (some point in time where it becomes custom). If a state has persistently objected to that norm FROM THAT MOMENT, then they are not bound by the rule. - Generally means they have had to object for a very long time - Eg: apartheid is a breach of HR (physical separation according to ones colour, able to do certain things and not others) breach of customary law o When did apartheid crystalise? 1960 (approx. guess) o South Africa from 1960 to 1992 might have been able to say we persistently object bcos we have an apartheid system and don t accept this as a human right. Possible example of where the rule would rise dismantled so cannot be persistent objector. Can t object and then stop objecting. Compulsory custom: Jus Cogens - However, some rules are part of jus cogens, an inner core of customary law, which makes rules binding to all states whether they consent or not. - We don t have a great big book of jus cogens norms but some that there is a lot of agreement eg: apartheid. When did it become jus cogens probably close to So what is customary law and what isn t? - Sarah s view the whole UNDR o Argument that some point in time the UDHR it has crystallised somewhere along the way and has become custom - Minimalist view more discrete list 7