22 International Human Rights Law PDF

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xIntroduction to International Human Rights Law ● Individuals have rights and obligations, standing before international courts, and can play a role in shaping the international system ● International human rights law (IHRL) places limitations on state sovereignty by creating obligations for states ...

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xIntroduction to International Human Rights Law ● Individuals have rights and obligations, standing before international courts, and can play a role in shaping the international system ● International human rights law (IHRL) places limitations on state sovereignty by creating obligations for states to treat individuals ● Implementation of IHRL relies on states willing to incorporate and implement at a national law ● Increasing role of non-state actors such as NGO’s are highly relevant to the implementation of IHRL ○ Negotiating treaties and ensuring implementation → pressure on states ○ Submitting parallel reports alongside state reports tasked with monitoring ● Pressing issue of how corporations are held accountable for violations of human rights (ex. Environmental degradation, displacement of populations, etc.) History ● International law was predominantly focussed on relations between states ● 17th century - Doctrine of humanitarian intervention ● 18th-19th centuries - Doctrine of state responsibility ● League of Nations post WW1 did not provide for IHR → however it did include principles of self-determination and minority rights ○ ILO - international labour standards ● IHRL began after WW2 UN System ● UN charter itself did not establish a human rights system, references in the document provided the basis to codify and develop human rights norms and enforcement mechanisms in treaties and non-treaty mechanisms for protection and promotion of human rights ● Commission on Human Rights (now Human Rights Council) became the UN’s primary legislative body for HR → tasked with elaborating the Universal Declaration of Human Rights (UDHR) ○ Together with the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR), and various instruments dealing with particular human rights issues such as genocide → form the International Bill of Rights ○ Though not binding, it has gained more legal authority than usual declarations → many provisions form customary international law ● State reporting is the most common and basic mechanism for monitoring ○ Not limited to solving a given violation, but has the potential to address systematic violations and general problems affecting implementation of IHRL → forward outlook ○ Weak form of enforcement dependent on state’s willingness to submit reports and monitoring bodies’ effectiveness ■ Also just TOO many reports (see below, proliferation) ● Protection mechanisms come from the ones established under the charter itself and those that have come from more specialized conventions or treaties that establish their own normative framework and enforcement procedures via monitoring bodies ○ Some exceptions though → ex. Genocide Convention does not have a specific monitoring body but is enforced through the ICC ○ Some treaties may provide communications/complaints procedures → monitoring body will consider admissibility criteria and merits of the complaint ■ Address specific violations and offer some remedies for individuals ■ Can spur states into action for fear of negative publicity when the ‘final view’ findings are released

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However, lengthy procedures, only available after exhaustion of domestic remedies, and decisions are not binding Proliferation of monitoring bodies and treaties → overlaps, duplications, inconsistency, etc. ○ Burden on the state/experts to comply with all reporting obligations → not possible within the limited time and resources available ○ Most bodies are unknown to people and it is difficult for them to know their relevance and competence ○

Regional Human Rights Mechanism ● Three most developed regional systems are the European, Inter-American, and African systems ○ Each system is more accessible to individuals (address local concerns, achieve political consensus more easily, etc.) → individual complaints can be brought against state parties ● European Convention on Human Rights (ECHR) ○ established an international complaints procedure and international court for deciding individual human rights complaints ● Organization of American States (OAS) ○ Inter-American Commission on Human Rights ○ Inter-American Court of Human Rights ● Organization of African Unity ○ Focus from inception was informed by colonial and anti-apartheid struggles ○ Changed to an African Union → aimed at economic integration and social development ○ African Charter on Human and Peoples’ Rights ○ Suffers from lack of resources and weak implementation Generations of Rights ● ‘Third-generation rights’ such as the right to development and the right to a healthy environment are neglected ● ICCPR is more recognized than ICESCR ○ ICESCR individual complaints mechanism only came into force in 2013 and only 11 states are party ○ ECOSOC General Comments elaborate on the vague language under the agreement of the ICESCR → though an interpretative role but are non-binding and have not elicited widespread acceptance ■ Established the Committee of Economic Social and Cultural Rights ○ ICCPR insists on states party to the treaty to provide effective remedies → not replicated in ICESCR Novak ● Complaints require legal expertise and should be taken out of the hands of existing treaty bodies and given a proper judicial body → similar to ECHR, etc. ○ World Court of Human Rights? ■ professional judges and based on a new treaty without requiring any amendment of existing human rights treaties ■ Go beyond civil/political rights but also economic, social, and cultural rights ■ Not just hold State parties accountable, but also inter-governmental organizations, corporations, etc. ■ Provide reparations beyond monetary compensation

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Give bodies more time to examine State reports instead of deciding on individual complaints Will need the political will of governments and the High Commissioner (fmake inancial resources available as it did with the ICC)

Kennedy ● Human rights movement is more powerful but less urging, compelling ● Human rights violations can legitimate a regime ● Two dangers of human rights work: ○ Idolatry ■ “Enchanting the tools and norms and practitioners of human rights, while remaining marginal to power, standing on the sidelines ‘speaking truth’” ■ Looking overall instead of focus ■ Starting but not carrying out work until completion ■ Human rights movement achievements → ‘what costs were associated with that success’ → red flag: a project that only has upsides ● Participate in governance and not just critic it ■ Remedy: activist practice of human rights should become more pragmatic ○ Pragmatism ■ “Participation in governance, with all the tools of policy analysis, instrumental reason, and savvy evaluation of the costs and benefits of human rights initiatives that entails” ■ Dangers of the ‘principle of distinction’ → ex. Killing combatants vs civilians ● When law becomes a standard of balancing and difficult discretionary decisions need to be made, there has to be someone responsible to make judgements ■ Remedy: return to ethics and idolatry ● Humanitarians have natural tensions ○ Reform the world, but renounce the tools of power politics → sustain the experience of humanism by denying ourselves the experience of our own rulership ○ Prefer to think of humanitarians off to one side, speaking truth to power ot hiding in the policy apparatus advising other people to humanize their work...