POLI 244 Lecture Notes - Lecture 16: United Nations Economic And Social Council, Cultural Relativism, General Idea
19 Jun 2018
School
Department
Course
Professor
The special nature of international human rights law
Basically a contract between states
○
Treaties between states where they exchange legal
rights and obligations
○
When a state ratifies a human rights treaty, it is
undertaking certain legal obligations owed to individuals
(especially those living in the territories)
○
-
State obligations vis-a-vis individuals (and groups)
-
The problem of reciprocity as a driver of compliance
-
A huge asymmetry between the right-holder (individual) and
the duty-bearer (state)
Creates problems of compliance and cause other states
to intervene
○
-
Admits a national "margin of appreciation"
Universalism vs. cultural relativism
We might agree on the general idea that
individuals have certain rights because they are
human (rights they are born with and can't be
taken away from them)
§
When the actual rights are listed, there are
problems that arise because it is difficult to find a
concesus based on backgrounds and cultures
§
The same rights are born with you regardless of
what region you live in
§
Many practices that many western states find
illegitimate under human rights (ie. Genitial
mutilation)
§
○
-
Charter based bodies
The commission on Human Rights (1946 - 2006)
Commission was replaced by the human rights
council
§
○
Created by the UN ECOSOC (economic and social council)
○
53 representatives of UN member states
Elected by ECOSOC, every year (1/3 approx.)
§
Africa 15, Asia 12, LA&C 11, EE 5, WE&Other 10
§
Not everyone had a seat in the human rights
committee
§
3-year term; can be re-elected
§
○
Annual meeting (not a standing body)
○
-
Functions:
Standard-setting (exclusive function 1946-1966)
Participate in the creation of human rights treaties
or issue recommendations on how to interpret
human rights issues
§
○
Human rights compliance reports (1970s and 1980s)
Self reporting (all members) and the commission
would revise documents to see how states were
doing in terms of human rights obligations
§
○
Advisory functions (1990s and 2000s)
States would ask the commission on how to
interpret particular obligations
§
○
International forum on human rights
Forcing discussions of specific issues
§
○
-
Working mechanisms:
Special procedures system: expert investigations
Force states to comply
§
○
Individuals' reports (confidential)
○
-
Non-binding recommendations
-
2006 the commission was replaced with the Human Rights
Council (2006-present)
Created by the UNGA: 170-4-3
○
47 represnetatives of UN member states
Elected by UNGA, every year (1/3 approx)
§
Africa 13, Asia, 13, LA&C 8, EE 6, WE
§
○
-
Functions:
Same as the commission with an emphasis on
monitoring human rights compliance
○
-
Working mechanisms:
Universal periodic review (every 4.5 years)
○
Urgent situations and special procedures
○
Complaint procedure
Bring forward issues complaining against another
state with regards to human rights
§
○
Advisory committee
○
-
Non-binding recommendations
-
Treaty based bodies
UN human rights treaties
○
-
1965 ICERD 177 ratifications
1966 ICCPR & ICESCR 169&164 ratifications
1984 UNCAT 162 ratifications
1979 CEDAW 189 ratifications
1989 CRC 196 ratifications
1990 ICRMW 51 ratifications
2006 CRPD 174 ratifications
2006 CPED 57ratifications
State is the main perpatrator of violations but is also the main
protector of human rights and can protect third parties from
violating human rights
-
9 treaties comes with a committee (made up of human rights
experts - not representing specific states)
Institutions that have certain powers to enforce the
rights
○
None of the committees have the power to make legally
binding decisions, just recommendations
○
-
Human rights compliance mechanisms
State self-reporting every 2-5 years depending on the
committee in question
Self-report forces to make their lies explicit
§
When you bring the lie to the table you may suffer
naming and shaming from the rest of the
committee
§
○
General comments on treaty obligations
○
Inquiries on alleged grave of systematic violations
○
Complaints procedures
○
-
Inter-American system of human rights
Organization of American states (OAS)
35 members, almost all members of the western
hemisphere
§
Main human rights treaty associated with the OAS
is the American Convention on Human rights (23
state parties)
Key institutions associated: Inter-American
commission on human rights, Inter-American
Court of Human rights (20 parties)
□
§
Before the ACHR there was the American
declaration of the rights and duties of man
Declaration is not binding for states □
Known to be customary law because it is
followed and upheld by so many states and
therefore has become legally binding
□
§
○
-
Inter-American Court of Human Rights (IACtHR)
Created in 1979
○
Functions:
Adjudicate contentious cases
§
Order provisional measures
§
Issue advisory options (beyond the ACHR)
State can approach the court and ask how to
interpret conventions
□
§
○
Jurisdiction: consent-based (general or case specific)
○
Applicable law: American Convention and Declaration
○
Legal standing: limited to the commission
○
-
The court is able to have legally binding (resolutions?)
-
Has to accept jurisdiction
-
Individual cannot go directly to the court
First to the commission (issue recommendations) if
country fails to comply then the commission can decide
to take case to court
○
-
European system of Human rights
Council of Europe (47 members, founded in 1949(
○
Main treaty: European convention of Human rights
(1950/1953)
○
Can be approached directly by an individual
○
Compulsory jurisdiction (all members have to accept)
○
Complaints from states, individuals and organization
○
Legally binding decisions
○
-
African system of human rights
African union (55 members, founded in 2002)
○
African Charter of Human and People's rights (54 parties)
○
ECOWAS court of justice
○
African commission on human and people's rights
○
African court of human and people's rights
○
Court jurisdiction accepted by 30 AU members
○
Indiviudal complaints procedure accepted by 8 AU
members
○
-
Lecture 16 - Human rights
Wednesday, October 25, 2017
2:41 PM
The special nature of international human rights law
Basically a contract between states
○
Treaties between states where they exchange legal
rights and obligations
○
When a state ratifies a human rights treaty, it is
undertaking certain legal obligations owed to individuals
(especially those living in the territories)
○
-
State obligations vis-a-vis individuals (and groups)
-
The problem of reciprocity as a driver of compliance
-
A huge asymmetry between the right-holder (individual) and
the duty-bearer (state)
Creates problems of compliance and cause other states
to intervene
○
-
Admits a national "margin of appreciation"
Universalism vs. cultural relativism
We might agree on the general idea that
individuals have certain rights because they are
human (rights they are born with and can't be
taken away from them)
§
When the actual rights are listed, there are
problems that arise because it is difficult to find a
concesus based on backgrounds and cultures
§
The same rights are born with you regardless of
what region you live in
§
Many practices that many western states find
illegitimate under human rights (ie. Genitial
mutilation)
§
○
-
Charter based bodies
The commission on Human Rights (1946 - 2006)
Commission was replaced by the human rights
council
§
○
Created by the UN ECOSOC (economic and social council)
○
53 representatives of UN member states
Elected by ECOSOC, every year (1/3 approx.)
§
Africa 15, Asia 12, LA&C 11, EE 5, WE&Other 10
§
Not everyone had a seat in the human rights
committee
§
3-year term; can be re-elected
§
○
Annual meeting (not a standing body)
○
-
Functions:
Standard-setting (exclusive function 1946-1966)
Participate in the creation of human rights treaties
or issue recommendations on how to interpret
human rights issues
§
○
Human rights compliance reports (1970s and 1980s)
Self reporting (all members) and the commission
would revise documents to see how states were
doing in terms of human rights obligations
§
○
Advisory functions (1990s and 2000s)
States would ask the commission on how to
interpret particular obligations
§
○
International forum on human rights
Forcing discussions of specific issues
§
○
-
Working mechanisms:
Special procedures system: expert investigations
Force states to comply
§
○
Individuals' reports (confidential)
○
-
Non-binding recommendations
-
2006 the commission was replaced with the Human Rights
Council (2006-present)
Created by the UNGA: 170-4-3
○
47 represnetatives of UN member states
Elected by UNGA, every year (1/3 approx)
§
Africa 13, Asia, 13, LA&C 8, EE 6, WE
§
○
-
Functions:
Same as the commission with an emphasis on
monitoring human rights compliance
○
-
Working mechanisms:
Universal periodic review (every 4.5 years)
○
Urgent situations and special procedures
○
Complaint procedure
Bring forward issues complaining against another
state with regards to human rights
§
○
Advisory committee
○
-
Non-binding recommendations
-
Treaty based bodies
UN human rights treaties
○
-
1965 ICERD 177 ratifications
1966 ICCPR & ICESCR 169&164 ratifications
1984 UNCAT 162 ratifications
1979 CEDAW 189 ratifications
1989 CRC 196 ratifications
1990 ICRMW 51 ratifications
2006 CRPD 174 ratifications
2006 CPED 57ratifications
State is the main perpatrator of violations but is also the main
protector of human rights and can protect third parties from
violating human rights
-
9 treaties comes with a committee (made up of human rights
experts - not representing specific states)
Institutions that have certain powers to enforce the
rights
○
None of the committees have the power to make legally
binding decisions, just recommendations
○
-
Human rights compliance mechanisms
State self-reporting every 2-5 years depending on the
committee in question
Self-report forces to make their lies explicit
§
When you bring the lie to the table you may suffer
naming and shaming from the rest of the
committee
§
○
General comments on treaty obligations
○
Inquiries on alleged grave of systematic violations
○
Complaints procedures
○
-
Inter-American system of human rights
Organization of American states (OAS)
35 members, almost all members of the western
hemisphere
§
Main human rights treaty associated with the OAS
is the American Convention on Human rights (23
state parties)
Key institutions associated: Inter-American
commission on human rights, Inter-American
Court of Human rights (20 parties)
□
§
Before the ACHR there was the American
declaration of the rights and duties of man
Declaration is not binding for states □
Known to be customary law because it is
followed and upheld by so many states and
therefore has become legally binding
□
§
○
-
Inter-American Court of Human Rights (IACtHR)
Created in 1979
○
Functions:
Adjudicate contentious cases
§
Order provisional measures
§
Issue advisory options (beyond the ACHR)
State can approach the court and ask how to
interpret conventions
□
§
○
Jurisdiction: consent-based (general or case specific)
○
Applicable law: American Convention and Declaration
○
Legal standing: limited to the commission
○
-
The court is able to have legally binding (resolutions?)
-
Has to accept jurisdiction
-
Individual cannot go directly to the court
First to the commission (issue recommendations) if
country fails to comply then the commission can decide
to take case to court
○
-
European system of Human rights
Council of Europe (47 members, founded in 1949(
○
Main treaty: European convention of Human rights
(1950/1953)
○
Can be approached directly by an individual
○
Compulsory jurisdiction (all members have to accept)
○
Complaints from states, individuals and organization
○
Legally binding decisions
○
-
African system of human rights
African union (55 members, founded in 2002)
○
African Charter of Human and People's rights (54 parties)
○
ECOWAS court of justice
○
African commission on human and people's rights
○
African court of human and people's rights
○
Court jurisdiction accepted by 30 AU members
○
Indiviudal complaints procedure accepted by 8 AU
members
○
-
Lecture 16 - Human rights
Wednesday, October 25, 2017 2:41 PM
Document Summary
The special nature of international human rights law. Treaties between states where they exchange legal rights and obligations. When a state ratifies a human rights treaty, it is undertaking certain legal obligations owed to individuals (especially those living in the territories) The problem of reciprocity as a driver of compliance. A huge asymmetry between the right-holder (individual) and the duty-bearer (state) Creates problems of compliance and cause other states to intervene. We might agree on the general idea that individuals have certain rights because they are human (rights they are born with and can"t be taken away from them) When the actual rights are listed, there are problems that arise because it is difficult to find a concesus based on backgrounds and cultures. The same rights are born with you regardless of what region you live in. Many practices that many western states find illegitimate under human rights (ie. genitial mutilation) The commission on human rights (1946 - 2006)
