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Moreso than probably any other type of law, Human Rights law is informed by the things that we consider most fundamental to our existence as humans. Where property or torts law deals with disputes between two people, human rights law goes deeper. Human rights law poses questions where one of the parties involved has been otherised into inhuman, where there is a group of people whos right to exist as a human is being challenged.

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Before we can ask ourselves anything about human rights we must first have a solid grasp of what human rights are. I mentioned in post 1 that a violation of ones human rights denies somebody their right to be human. I personally like that explination but there is some much needed nuance provided by the acedemic world.

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The first, and I believe most interesting, question we need to tackle in the domain of Human Rights is where do they come from? Some scholars would argue for the existence of a thing called natural law. Some would say that there are certain humans that are just worthy of protection from certain types of persecution, be this from their status as a citizen (Aristotle) whereas others would argue for a more divine, holy protection (Aquinas ) based on their status as humans alone

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The contra point is that man made law is the be all and end all. That man made law is where it's at. There can be no law for humans others than the law they choose to submit themselves to and we can only choose laws if we know and understand their content.

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I think arguing for the existence of one framework that says all human rights law flows from the universe or a system that says we must enumerate each and every protection humans are worthy of is a ridiculous proposition. From a pragmatical standpoint the idea of needing privacy in a digital world simply did not exist when the UDHR was drafted so how could man-made law protect us?

From an ideological perspective, the concept of what is a human right is changing and morphing so quickly that keeping it vague, I believe, is the safest way to secure an adaptable world with the necessary security and risk needed for everyday life.

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So what do the experts say?

The general consensus is that the foundational arguments as to what should constitute a human right can be broken up into 6 categories. They are
1. Autonomy and rationality

2. Dignity
3. Capabilities

4. Basic interests
5. Obligations
6. Interference

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This is quite a simple theory supported by legal experts such as James Griffin. He says that human rights flow from natural law, that they are rights that humans have "by nature of being human". He argues for what he describes as a "bottom up approach" where, he claims, we would not seek to infer human rights from anything more fundamental, such as common moral principles but rather we would  "a theory of human rights that fits into the best ethics overall"

He argues that human rights flow from our humanity, and what defines our humanity is our ability to be rational and autonomous as well as our normative agency. This all boils down to 3 essential types of rights, autonomy, liberty, and welfare rights. These rights, can be broken down further into other rights (the right to life, freedom of expression, etc.).

Because normative agency is of such huge importance to Griffin it is important to note that human rights, as he would have them, are not rights to a prosperous life but rather rights to pursue a prosperous life as we would define it.

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This one is pretty important.

The UDHR, International Covenant on Economic, Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights (ICCPR) and even the Irish Constitution can't even get through their preambles without spouting at us the importance of dignity and inalienable rights (again using the language of natural law).

All of these documents frame human rights (or the very idea of the Irish state in the case of the constitution) through the lens of dignity of the person. They frame dignity as something that all of us as "members of the human family" have inherently that flows through our veins and cannot be taken away without taking our very being away.

That's fantastic but it doesn't give us a very clear idea of what exactly dignity is. Jeremy Waldron however suggests that human rights flow from dignity and that dignity provides us with the substance of rights. Cicero all the way back suggested that dignity was a byproduct of rank in a particular social order, that one could only have dignity or ones level of dignity was determined by how many people were below you on the totem pole. I find neither of these suggestions to be satisfactory.

Google defines dignity as "being worthy of honor or respect". To me, this definition helps to narrow our field of focus but still feels far too rough around the edges. The honor aspect is, I believe, a relic from bygone days but the respect part is particularly interesting to me.
The important question becomes "What rights does one need to live a life worthy of respect?"
This question is similar to the one posed by Griffin, however the caveat is that Griffin only wanted the rights required to be able to pursue a fulfilling life, not necessarily live one.

An interesting addition to this is the concept of Dignitas as discussed by Stephanie Hennet where she proposes that while dignity is inherent in one person or individual there should be a much larger focus on dignity as it pertains to a group or society or culture.
This way each and every individual, regardless of rank or ability has some measure of responsibility towards the dignitas of their community.
While I do enjoy this idea on the surface I'm far too skeptical and think too little of the average person to believe that most people care about the dignity of their community. All I need for my proof is to sit on Grande Parade and watch how many people walk past homelessness and poverty every day while doing nothing to help to push me away from believing that the dignity of a group is ever going to show that group in a good light. If we take what the average person will tolerate through indifference I do not believe we will have very robust human rights protections.

I do, however, disagree with scholars such as Chris McCrudden who would argue against the use of the word dignity in this sense by judges, again based on its vagueness and elusiveness. I can understand the concern that, within the traditional understanding of the three branches of government keeping each other in check with a system of checks and balances, a judiciary that allows itself to go beyond the scope of a written document should raise more objections than eyebrows, however, I appear to weigh my concerns differently than McCrudden.
I am of the opinion that, particularly with human rights, we need to keep the law somewhat malleable to avoid locking ourselves in to a system that will lead to miscarriages of justice because we are afraid of allowing civilians the world over to have too big a shield to hide behind. I am yet to be convinced that, in the current world, human rights can go too far.

An interesting limit on dignity came up in the case of Manuel Wackenheim v France. It found that public order was a reasonable ground on which to defile someones dignity (in stopping Wackenheim from earning a living). The interesting question is "How is the balance struck?". How do we allow one persons choice to be "undignified" to been seen as more or less important than another persons choice. Certain religious groups would argue that same-sex relationships are undignified but Ireland has chosen, by popular vote, to legalize same-sex marriages. Who gets to decide what measure of dignity is important?  (Remember when I discussed the impact of *Europe's* enlightenment era of history on the modern approach to human rights?)

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This is Charles Beitz's baby.

Beitz based a lot of his thought around a response to noted scholars such as John Finnis or Cranston's "What are Human Rights?", where Cranston essentially put forward that human rights are simply a modern synonym for the far more eldritch conception of "Natural Rights" (again the language of natural law), using this as a stepping stone to argue that the landing strip for human rights should be far shorter than is generally agreed.

Beitz does not agree. He believes that human society has evolved in the last two and a half thousand years since Aristotle laid the foundations for natural rights. By asking questions such as "Consider the way human rights discussions function in the world today" he displays a much needed pragmatism in the domain of human rights, one that I feel was sometimes lacking the other approaches to human rights, such as those discussed under the headings of Autonomy and Rationality as well as Capabilities, which sought to limit the scope of human rights to those who could exercise a base level of autonomy.

Beitz does, however use the language of dignity for all persons, specifically citing the 1993 Vienna Convention, but he also puts forward an interesting addition. He argues that human rights are of a global concern. I think this is already quite self-evident. Human rights concern humankind or, as the UDHR puts it, "all members of the human family". He then goes on to condense this into "human rights are the basic requirements for human justice".
Beitz's nuance is the global aspect of human dignity. His approach is underpinned by the global importance of human rights that transcends national boarders and unifies us all into the "human family".

The interference in the heading refers to the long established practice of states interfering in each others affairs. Beitz argues that we need not look beyond current international practices to the realms of legal philosophy to find a basis for our arguments because we have all already endorsed the idea that states can trespass into each others sovereignty by our collective indifference to the practice. The principle of interference would state that because most humans already believe that there are certain reasonable grounds in which to interfere in the internal affairs of other states, than there is a reasonable ground on which states can interfere with the internal affairs of other states.

It is essentially confirmation bias on a dangerously global scale.

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The central approach under this banner is defined mostly by the writings of two particular legal scholars Martha Nussbaum and Amartya Sen.

Sen, specifically, would argue that the core function of human rights is to allow people to be and to do whatever they choose to be and to do; they also have enough humanity left in them to recognize that there are far too many practical stumbling blocks in the very much unequal world we inhabit. That we do not live in an ideal world and we must, unfortunately, navigate life within the range of options that we are able to find before us.
Nussbaum on the other hand has observed that we do not live in a vacuum, and there are real life practical constraint tying us to our interdependent relationships where we both need and accept help from others.

This approach to human rights endeavors not just to protect humans from persecution but to set every human in society up for a life in which they can feel worthy of respect. Interesting to see the language of dignity coming up again here through a different lens.

The capabilities approach lists 10 core "Central human capabilities which are very self explanatory.
1. Life

2. Bodily health

3. Bodily integrity

4. The development and expression of senses, imagination and thought

5. Emotional health

6. Practical reason

7. Affiliation (personal and political)

8. Relationships with other species and the world of nature

9. Play
10. Control over one’s environment (material and social).

I very much appreciate this list and it is thus far my favorite approach to human rights. My personal favorite two are 4 and 9.

4. The development and expression of senses, imagination and thought can, essentially, be summarized in the freedom to learn, which is such an important part of my own personal identity while also being what I consider to be one of the aspirations most sorely missing by society, both by old men sitting in the corner of a pub refusing to learn acceptance of more fringe cultures and by young people (myself included) struggling to learn wisdom and courage in a terrifying world.

9. Play is, I believe, the most simple yet often over looked aspect of what makes us human. We speak of human rights with this huge, aspirational language and almost hallowed righteousness too often forgetting that the reason we want these rights to be respected. Most people don't want to work their job or do the thing they spend their days doing. We want to play, be that with toy cars, video games, food in a kitchen, teasing our significant other, kicking a football, making art in whatever form that takes for you, hike a mountain, take something apart only for the joy of putting it back together again. This is what being human is, this is what we really want the right to do. This is what human rights strive for. To create a world where every human can play until they get bored, not until its time to go to work.

One aspect of this approach I find particularly compelling is the utter rejection of a positive/negative rights distinction. A classic approach to rights would have you believe that a 'positive' right places an obligation on others to act whereas a negative right prevents others from acting in a particular manner. Eg. Life, liberty and the pursuit of happiness in the American Declaration of Independence are not positive rights. The government is not supposed to provide life, liberty and the pursuit of happiness. They are negative rights, in that the government is to prevent any obstruction to one striving for life liberty and the pursuit of happiness.

I have always believed that this artificial distinction was merely a ploy for governments to avoid the responsibility of helping their citizens when they have the means at their disposal to do so. An example to clarify just how arbitrary this distinction is can be found in the concept of freedom of speech. Freedo of speech is mostly regarded as a negative right, it's something passively enjoyed by individuals. But what happens when somebody, be they a state or an individual, interferes with my right to freedom of speech? I need some kind of police force to protect my right. Where does the police force come from? Who employs them? Where do they derive their right to interfere with the person blocking my speech? It has to be the government. If the government needs to employ a police force how is my right passively enjoyed? It isn't.

I also like the idea of abandoning the concept of a hierarchy within the field of human rights. As I brought up in the Dignity section and the Wackenheim case, I have huge issues with allowing somebody to decide which rights are more important than others.

Nussbaum and Sen would argue that this approach also circumvents the issue that some approaches to human rights face in that this methodology does in fact have theoretical foundation. Sen, in particular, argues that because this approach is founded in the criteria needed to live a live of basic human dignity she hasn't just pulled these metrics out of the air. Although I agree with this approach, I find this particular argument completely baseless. We discussed the subjective nature of dignity and respect earlier and, not to beat a dead horse, suffice it to say that this approach is equally as subjective and immeasurable as the others.

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This approach is certainly similar to the point discussed under 6. 3) Capabilities. However the main distinction is that it does not preclude individuals on the basis of agency.

Allen Buchanan is very clear that his approach to human rights is far more egalitarian in it's approach than the ones previously discussed. It is also far more straight forward. Buchanan would create a world where we list out the "basic human interests", such as was done by Sen and Nussbaum, and build our human rights around that framework, a stark contrast from Griffin.

This approach side steps the issue I briefly mentioned in the comment under capabilities in that just because people in prison cannot exercise a certain level of liberty does not mean they can be alienated from their human rights. He says that because not being tortured is still a basic human interest than it stands on its own legs without needing to be underpinned by the agency requirement the other approaches have used.

I like it.

The only issue I have with it is that how difficult it is to name all the basic human rights. However I am in the minority, as most legal scholars such as Buchanan himself are worried about the diluting of human rights and taking away the weight that we tend to give them. This is know as the populist expansion of human rights. However, as I said above, I fundamentally disagree with the idea that we can give people too big of a shield to hide behind in the modern, terrifying world.

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This conception of human rights is likewise founded upon the same concern as that which we saw in the capabilities approach, a fear of the watering down or diluting of human rights.
The proponents of this approach, scholars such as Joseph Raz, would argue that a right, at its core, is an obligation upon another. That obligation could be one such as non-interference in the case of free speech, or if we take education to be a right it is the obligation to provide schools, teachers etc.
Raz argues that it than follows naturally that human rights are also rights which impose a duty upon others. He states that human rights discourse should center around the idea of obligations we place on others, and the enforcement of that duty. The ability to enforce an obligation is key for Raz, so much so that, if a right cannot be reliably enforced it is not a right.
I think its particularly odd that Raz's approach takes a step back from the recipient of a right in a human rights discussion. So often, our human rights vocabulary is informed by "protecting" and "ensuring" things, which is a fundamentally different approach than the one Raz puts forward.

I don't find Raz's argument to be particularly convincing. The main thing that I struggle with is the idea that for a right to be a right, it must be enforceable. The right to say freedom of religion is not one that is fundamental to a free society but it is not strictly enforceable. The influence of one's family, friends and societal upbringing is going to greatly interfere with one's freedom.

In Ireland, for example, there is set times built into the school program for the celebration of religious festivals, ranging from time out of school for participation in Catholic rites of passage (Communion, Confirmations), regularly taking time to learn Catholic prayers (in at least two languages), structuring the school calendar around Catholic festivals, etc.
Now, I acknowledge that I have gone down a bit of a rabbit hole into a discussion more along the lines of "What constitutes religious freedom?" or "Should countries adopt a model of 'Laïcité' as seen in France?", we need to ask if the principle of non-interference in religious matters can be seen to constitute a a human right to religion? The question Raz would have us ask is can this right be guaranteed and enforced? In Ireland, as I have outlined above, I believe it cannot be strictly enforced which means, under Raz's model, there is no human right to religious freedom. That's stupid. Humans need to be able to have whatever relationship with the infinite/divine that they choose. I don't like Raz's model.

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I've already gone too far without mentioning the UN.

The UN is an organisation where the majority of the states in the world sit in a room and get bullied by Russia, The US, The UK, China and France. (I like calling these The Big 5 because it confuses my classmates who think I'm talking about the 5 largest law firms in Ireland. I shall henceforth, in this assignment, only use the term "The Big 5" to refer to the 5 permanent members on the UN security council unless otherwise stated)

It's is an organisation founded in the ashes of the catastrophic failure that was the League of Nations. The league of nations was a body of states established to use discourse and open channels of communication that would prevent a second world war.

After the second world war the League of Nations was disbanded and the UN was formed with a similar sort of ideology. It hence became a self proclaimed powerhouse in terms of international development, aid and of course, human rights. They, in 1945, the same year WWII ended, adopted the UDHR, deriving human rights mostly from the dignity point I discussed earlier.

In modern terms the UN is what I opened this text box with. A room where the world gets bullied by The Big 5. The Big 5 get the bully power (called a veto power in formal texts) because they are "permanent members of the UN security council". The UN security council is a smaller room where 10 countries get bullied by The Big 5.

Now despite my satire the security council does in fact have some important functions in the governing of the world. They are the people that make all the big decisions, such as if peace keeping troops are allowed to be deployed in a particular crisis.

However the UN has it's hands tied in all major decisions by the internal policies of The Big 5. A cursory glance makes it painfully obvious that the internal policies of The Big 5 are rarely going to align in such a way as to make decisive action possible.

A traditionalist standpoint, coupled with an education system that takes a very lackluster approach to world history, might convince some the China and Russia are the two states that one needs to watch out for in relation to human rights concerns however Edward Luck, Professor at Columbia University, argues that it is the US, more so than others, that want a UN without teeth. (https://www.latimes.com/archives/la-xpm-2002-oct-17-fg-resolution17-story.html)

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Iraq is not alone in its breaches. Israel and Turkey, among other countries, have failed to comply with the world body’s stipulations.

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I have pointed out a few times the western-centric problem with the traditional approach to human rights. I said how, even in the foundational language and vocabulary we use when we approach the human rights debate, our approach is fashioned around the framework of the "European Enlightenment"

I wonder just how arrogant the philosopher who coined the term must have been (It's surprisingly difficult to find out who exactly did coin the term)

The modern conception of human rights is founded on the main cultural values which rose to prominence in the enlightenment, the power of the people, the ideas of liberty and, of course, the conceptualization of rights. This is all good, until we remember that every approach to human rights didn't place some kind of arbitrary geographical element to their justification. How is a right to encompass the dignity of all humans if what dignity is changes across cultures?

What about clashing cultural values? How do we allow for the right to ones own culture while at the same time denying the very thing that defines their culture?

There are two main sides to this debate. The moral relativists and the universalists.

The moral relativists would argue that a moral framework conceived by any particular person is informed by their culture and upbringing and not by some larger truth, whereas the universalist understanding is that human rights flow from the "centrality of the human being as a whole" in a similar medium to the concept of dignitas as discussed above.

Moral relativists would argue that because of our inherent cultural biases we can very quickly stray into the territory of ethnocentricity, a viewpoint where ones own culture is seen through a rose tinted lens and viewed as an almost messianic influence saving the otherised, less developed and primitive cultures.

Ethnocentrism is generally bad, however, scholars such as Abdullahi Ahmed An-na’im puts forward that it is an unavoidable, inherent part of the human experience. He bases this on the fact that our culture forms an integral part of our identity and our tendency towards ethnocentrism stems from our need to accept our own culture in order to accept our identity. He believes that ethnocentrism stems from our self-image and cannot be avoided.

An-na’im, and myself, would argue that a certain degree of ethnocentrism is not inherently evil but rather the issues arise when we get to a level of ethnocentrism that becomes rigid, intolerant and pushes us to persecute those with different cultural values.

What An-na'im calls enlightened ethnocentricity, a world view where you enjoy your own culture and the values contained therein yet are tolerant of and understand the importance of other cultures and cultural values is, in his opinion, the goal. This is also called cultural relativism.

The main critique of cultural relativism is quite a grave one. It shuts down concerns of a cross-cultural yet moral nature. It says that we need to be so respectful of other cultures that we cannot debate the perceived atrocities contained therein.  That because of our need to respect differences we can't call people out on their unjust acts, leading to a tolerance, eventually indifference and therefor acceptance of injustice.

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Neo-colonialism; it's bad.

The western-centric viewpoint of most human rights leads to a type of colonialism where the west still endeavors to control, exploit and demean the less developed regions of the world.

Makau Mutua points out that the west is "claiming to be the only genius of a good society". The Asian values debate points out that some European values such as individualism are alien to certain cultures. That in certain parts of the world the community is core to the social fabric and the individualism argument can be used as an excuse for an "I can do whatever I want" mentality.

The feminist concern for the concept of universality is that what is often regarded as a universal is actually just a straight, cis-gender, white, middle-class, middle-aged, male western norm hiding under a cloak of universality. The amount of adjectives I needed to get to the so-called norm is not very normal.

The next level of concern says that the concept of feminism in the west originated in a group of straight, cis-gender, white, middle-class, middle-aged, females in western culture. Again, lots of adjectives, not very universal. You can see the rabbit hole

I'm not a particular fan of this train of thought. I don't like breaking people up into categories they can't choose, but I was born a white male in a western society so my experience in this domain is... limited.

However, academics such as Beitz have argued that the concept of cultural homogeneity doesn't exist. He uses examples such as the death penalty in the US or female genital mutilation in Sahelian Africa as examples to illustrate that just because something is endorsed by a particular group in society does not mean that the society as a whole accepts it.

The idea that human rights is just an imposition of western values upon the rest of the world, Beitz would argue, cannot hold up. If, in the US as seen with capital punishment, there is cultural differences within one subset of supposed western culture, how can western culture as a whole be homogeneous? If western culture as a whole is non-homogeneous how can human rights be an imposition of western values upon the rest of the world?

I see the point the Beitz is trying to make but I do not agree. I believe that certain cultures do have a particular set of values even if that view is not unanimous. I would argue that that is what defines culture. Disagreement and debate is allowed to be a part of a culture.

I would go so far as to say that this idea of questioning your own culture is a value rooted in the enlightenment. The notion of skepticism towards the established power bodies is foundational to the enlightenment and to say that there is no causal link between the French Revolution (a very fundamental influence on modern western society) and the skepticism of the enlightenment is a farce.

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What is a source of international law?

What is a source of law?

What is law?

Law is a set of rules. These rules tend to provide us with a list of things we cannot do and to inform our conduct in everyday life.

A source of law is the thing from which we derive our rules.

A source of international law is therefore, a thing from which we derive a set of rules governing how states are to conduct themselves. In a human rights context this would mean a set of rules governing the rights and responsibilities of states, to their citizens, relating to the guarantee of human rights.

International Human Rights Law is a subset of Public International Law.

So what are the sources of Public International Law? Well, there is not exact defined list. Nobody can stand up with one piece of paper and say "This is international law", nor can somebody stand up and say "This is human rights law". I would argue that this is good, that avoiding a strictly rigid or stale form of human rights law allows for a more robust response when there are questions raised about a particular situation outside the realm of what had previously been considered (Think nuclear warfare before the 1940's).

That said there are still written, defined sources of international law. These can range from more global, UN endorsed, treaties such as the UDHR or more regional documents such as the African Charter on Human and Peoples’ Rights. (Strange that the drafters felt the need to distinguish between human and peoples rights, as if they're not synonyms?)

Some of the main sources of International Human Rights Law are outlined below.

1. International Bill of Rights
a) Universal Declaration of Human Rights (UDHR), 1948

b) International Covenant on Civil and Political Rights (ICCPR) 1966
c) International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966

2. Specialized human rights treaties (Convention on the Rights of the Child (CRC) (1990))

3. Regional human rights regimes (EU Convention on Human Rights (EUCHR) (1953))

4. International Criminal Law (International Criminal Court (2002)) - This body can hold individuals accountable for their violations of human rights.

5. Customary International Law

I'm not going to go into too much detail about the specifics of all these various sources because their names are self-explanatory.

Customary International Law is, however, a little less clear. It is very similar to an easement that can occur in common law when two parties treat each other in a certain way it can create an obligation on the involved parties, customary international law becomes binding when, after an undisclosed amount of time, a certain practice by one state or another becomes binding upon them because they have been conducting themselves this way for that amount of time. The caveat however is that the state performing the action MUST be performing the action out of a perceived obligation. One state simply choosing to be neighborly towards another will not result in a binding obligation upon that state. One state being neighborly towards another out of a perceived obligation will result in a binding obligation upon that state.
I think this idea is pretty silly. If one state is acting out of a perceived obligation then they already have accepted that they are bound to a certain action. If they then decide to cease that action, they are knowingly breaking international law. If they are already breaking international law what kind of sanctions or obligations can be put on them ?

There is, however, a "special character" of International Human Rights Law (IHRL) that sets it aside from Public International Law (PIL). This special character is that, while most branches of PIL deal with state and inter-state relationships, IHRL can be both inter-state and intra-state. It can inform the relationships between states, such as when international military intervention may be necessary, as well as the states relationships with its citizens, such as when the state must intervene to protect a citizens human right.

While most branches of PIL can be viewed akin to a contract between two parties, where both can offer and receive something from the other, IHRL is unique in that the individual (the centerpiece in most human rights discussions) is something of a third party to IHRL and cannot directly bring something to the table to offer the states that have ratified a treaty. IHRL does not benefit the state directly, but does place obligations upon them.

One reasonable question that may arise from this train of thought is "How do states protect themselves from over committing leading to them being unable to deliver on any human rights obligations?".

They do this through a process known as "reservations". The States that choose to ratify a given treaty can also choose to make "reservations" on certain sections. This means that the chosen section will not be ratified, but the rest of the treaty will. Essentially they ratify every part of the treaty that they do not place a "reservation" on. It's through means like this that certain States can circumvent the issue mentioned earlier about the imposition of Western values on the rest of the world.

This would allow a State to put on the fair guise of a progressive, proactive State very much concerned with the protection of their citizens human rights, while not actually taking any steps to put protections in place. Another "more reasonable" justification for a reservation would be on the grounds that a particular article in a treaty violates the religious traditions or constitutions law of a given country. I still think that using religion as an excuse to justify the denial of human rights is abhorrent.

There are some obvious concerns with this practice, notably: What happens when a state ratifies a treaty but makes reservations over nearly every substantive section contained therein? Why should we allow States to cherry-pick their way through human rights? Does this not undermine the very foundational aspect of human rights as it relates to universality? There is no nice answer to these questions.