Maurice Ganston – What are human rights? (1973) - During the Hellenistic period (following the breakdown of Greek city states) stoic philosophers constructed the doctrine of natural rights – something that belongs to men at all times simply because they are human and rational.

Arguable issues with this - Rational? what is considered rational? Changes with time and place? - There were points in time where certain groups of people were not considered rational e.g. women. Since certain people would have not been considered rational, does that mean that human rights do not apply to them?

 Daniel Moeckli, Sangeeta Shah & Sandesh Sivakuraman, International Human Rights Law (3rd ed, OUP 2017)
From a legal viewpoint, the starting point of the history of human rights is usually taken to be the Magna Carta of 1215: ‘To none will we sell, to none deny or delay, right or justice’; and ‘No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed … save by the lawful judgment of his peers or by the law of the land.’ 

At this time, it had little to do with the rights of the regular man, and more to do with securing rights for powerful barons against the King of England. - Rights of the poor, impoverished not taken into account or being fought for yet.

  Seen by some as be seen the start of the limitation of absolute and arbitrary power of the sovereign - not just one overall person in charge anymore.

  How does this develop?

Hobbes, Levithan (1651)– us vs them “solitary, poor nasty, brutish and short” - Pitting the 'enlightened', 'forward thinking' Europeans against the 'savage' 'violent' foreigners - A sign that human rights do not apply to everybody?

Hobbes also introduces the concept of a 'social contract' - This means that the government only has power by consent of the people.

Locke – Two treaties of government (1690) Locke brings in the idea that not only should your life, liberty and estate be protected but the government should also provide for and protect your rights.

   Daniel Moeckli, Sangeeta Shah & Sandesh Sivakuraman, International Human Rights Law(3rd ed, OUP 2017)

"Locke expounded the democratic ideal through the idea of government by consent."  Still, he did not advocate for universal suffrage and was, after all, it is important to not that he was writing in the seventeenth century when the right to vote remained a privilege of very few in England at this time - The rights of the majority of people still not being taken into account at this time.

U.S. Declaration of Independence (1776) – “We hold these truths to be self-evident that all men are created equal …with certain unalienable rights.” The declaration continues that if the government becomes destructive, it is the right of the people to alter or abolish it.
"All men are created equal" statement is controversial as slavery was not only legal in the United States but some of the founding fathers who signed the declaration e.g., Thomas Jefferson owned slaves and subjugation of women at the time was also a huge issue – They did not have the same rights as white men and thus, this declaration did not apply to them.

French declaration of rights of man (1789) “...preservation of the natural imprescriptible rights of man” - rights of man cannot be taken away.

  The French Revolution removed any idea of absolute monarchical power - Showed that rights and freedom can be fought for and gained - would go on to have a major influence on the future of both France and the world at large.

   Instead, monarchical power was replaced with the philosophy of the French Declaration of the Rights of Man and Citizen - ‘ignorance, forgetfulness, or contempt of the rights of man’ were ‘the sole causes of public misfortunes and of the corruption of governments’.

   Rights of the regular person being taken into consideration finally.


Jeremy Bentham - Anarchial fallacies being an examination of the declaration of rights issued during the French revolution (1816)

  Do natural rights oppose law? (Its endless and irreconcilable enemy) - Law keeps people in check - can prevent people from fighting for their rights as they could be arrested, lose their freedom etc.

  For Bentham natural rights were dangerous since they were fuelling revolutions such as those in France and thus, caused great social damage, hence the title of his famous work The Anarchical Fallacies. He believed that human rights and law should go hand in hand - believed that anarchy would lead to social and civil unrest.

Conor Gearty and Costas Douzinas, The Cambridge Companion to Human Rights Law (CUP, 2012).
The French and American revolutionary declarations present the subject and beneficiary of rights as an abstract human being, i.e., the ‘man’ of the rights of man, ‘everyone’ or ‘anyone’. And yet, once we turn from the abstractions of law to real people a different picture presents itself, i.e., not applied to women, people of colour etc. 

                      International Law

Evolved as laws of nations and not as laws of humanity.

Tension with sovereignty – Human Rights conflict with sovereignty as human rights are universal – transcends states – It is arguably might not be in the best interest of those states to protect their citizens - e.g., certain acts of states might be harmful to the rights of a state's citizens but may be financially beneficial/or make certain people more powerful and thus the state may choose those things over the protection of the rights of their citizens.

 Conor Gearty and Costas Douzinas, The Cambridge Companion to Human Rights Law (CUP, 2012) - Human rights and law at odds? - Many believe human rights to transcend legal, religious and historical limitations but the law is not transcendent in the same way - has more of a concrete basis.

1800s onwards – states begin to interfere with the affairs of other states.

1807 – Britain abolishes the slave trade.

1827 – Britain, France, and Russia undertake a ‘humanitarian intervention in the ottoman empire – early idea of universal intervention – novel at this time as you wouldn’t see states interfering with other state’s affairs like this.

1924 – States are responsible for injury to ‘aliens.'

1915 – Woman’s suffrage movement – gained international momentum – first known international woman’s rights movement.

1919 – creation of the international labour organisation. 

1920-1939 league of nations – 1^st officially recognised international organisation. 

League of Nations also had a Minorities Treaties System which was supposed to recognise minority rights. 

 They Created the mandate system - a mechanism set up after WW1, allowing the victorious powers to govern enemy colonies until the natives of those colonies were fit to rule themselves. The colonies were called ‘mandates’, while the country ruling it was referred to as the ‘mandatary’. 

Controversial as this devolved into international sanctioned colonialism. 

 With World War II, the league of nations was considered a failure.

1926 – Convention to supress the slave trade and slavery.

1945 - After the horrors of WWII the International Court of Justice was established by the Charter of the United Nations - This court established the idea that states could commit crimes against people. 

1946 - Nuremberg Trials – First trial in the International Court of Justice.
 Trial of 24 Nazi War Criminals for crimes against humanity.

Robert Jackson - Nuremberg Trials opening statement – The law should hold people to account, and no one should be above it

The aftermath of WWII and the Cold War resulted in an agreement to legally binding human rights treaty.

Contains 30 article such as the right to life (Article 1), right to freedom from torture (Article 5) etc.

Issues with the declaration?

Contains vague language and is not legally binding -this was due to some ideological divide between the states, and this would make more states more likely to sign the treaty. 

Problems - States do not have to follow the articles of the UDHR if they do not want to. If states are not legally bound, they can commit offences against people and not be held accountable.

                        Positive v Negative Rights
Negative rights are the requirements of someone else not to interfere in your ability to obtain your rights. 
Positive rights are a requirement of someone else to provide you with rights.

1976 - Two separate treaties needed 

ICCPR (International Covenant on Civil and Political Rights) – immediate obligation to uphold rights (Negative rights).

ICESCR - (International Covenant on Economic, Social and Cultural Rights) - Progressive realisation of rights (Positive rights).

Came into force 1976.

Issues with ICESCR - There is no obligation to realise rights straight away - This means that ICESCR can do very little for the progression of rights and get away with it as long as they can claim they are "progressing" towards establishing the right.

1951 - Convention on the prevention and punishment of crime of genocide.

Bosnia v Serbia 2007 – Case went to the international court of justice – While not responsible for the crime, Serbia was held to be in violation of its obligations under the Genocide Convention when Serbia failed to prevent the genocide in Srebrenica in 1995 and did not punish Mladić for that crime as he was hiding in Serbia somewhere.

                 Regional Human Rights Regimes

Contains 47 State Parties. 

Article 35 allows for individual applications to the European Court of Human Rights.

You must be a victim of a State to bring forward a case. 

Rights must be violated by a state instead of a private party.

ECHR is Controversial as it uses margin of appreciation doctrine – The doctrine gives permission to the court to reconcile practical differences in implementing the articles of the ECHR. Such differences create a limited right, for contracting parties to derogate from the obligations laid down in the Convention.
 This means that there are different standards for different states. This can allow certain states to escape accountability for human rights offences by using this doctrine.

 Conor Gearty and Costas Douzinas, The Cambridge Companion to Human Rights Law (CUP, 2012)
   Finally, why is there such a disconnect between the desire for human right implementation and the reality that this cannot always be achieved? (Besides issues of opposing views) - Ideas of law become so strict and are lacking nuance to the point that there ends up being a lack of empathy for those behind bars (i.e. "He stole he should go to prison and he should be punished" not taking into account that he might have stolen food to feed his starving family etc.), corruption in the criminal justice system (police, prosecutors, judges and prison officials e.g., over policing and unjust killings of the African American population in the United States, and a lack of access to justice for poor/working class people (e.g. poor people in most places do not get the same level of legal defence as upper-middle class/right people would as they would likely not be able to afford high quality representation). - Important to keep in mind as we discuss human rights further.

Where does this leave us today?   ➟➟➟➟➟➟➟➟➟

He believes that dignity and autonomy and rationality go hand in hand.

 Problems with this idea?

 DISCREPANCIES BETWEEN THE BEST PHILOSOPHICAL ACCOUNT OF HUMAN RIGHTS AND THE INTERNATIONAL LAW OF HUMAN RIGHTS by James Griffin
   Griffin believes that the human rights should be based on the idea of respect for people from a place of morality. This would not mean treating everyone 100% equally (e.g., you wouldn't treat a stranger the same way you treat your child). Instead, it is "... giving them all some form, still to be spelled out, of equal weight in our deliberation". To explore this idea further, Griffin looks at Emmanuel Kant's idea that "... everyone must be treated as an end and not as a means". However, this approach will not be helpful. It spells out an idea of dignity that dominates morality completely.  
   If this understanding was to be adopted, human rights would increase to the point where it would have to fill the entire moral domain or moral obligation. If human rights increase, will the concept lose its importance, be taken less seriously? Griffin believes that it would become so nonsensical that it must be avoided. This leads to the obvious question; how much is too much in terms of granting human rights?

 
   Issues with this; This idea of autonomy and rationality does not permit all human beings to experience normative agency, being human demands more than being a homo sapien, you have to be able to have agency, have the ability to choose life paths and have freedom to choose a certain form of life. This excludes any person who is incapable of having this type of agency e.g., young people, old people, disabled people wouldn't deserve human rights.
 
Do they not also require human rights, especially as they would be especially more vulnerable?

   2. Dignity: The concept of dignity is found in various declarations and articles e.g.

Universal Declaration of Human Rights Preamble: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world".

International Covenant on Economic, Social and Cultural Rights/International Covenant on Civil and Political Rights:
"Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world".

EU Charter of Fundamental Rights Article 1: "Human dignity is inviolable. It must be respected and protected".

 What does dignity mean? -  There are two senses of dignity according to Jeremy Waldron
 1. The person has inherent dignity – Human rights derives from dignity
 2. Dignity in the content of rights -Dignity gives us rights 

 History of Dignity : Feudalism: Hierarchy, rank, status, merit – Historically, dignity derived from these ideas. If you did not have rank, status etc. you did not have dignity, thus not deserving of human rights?

 Cannot be separated from human nature?

   Dignitas? Broader moral duties? – Ties dignity to the subjects of human rights, there is a dignity to uphold the dignity of our community.

    Concept of individual being embedded in society (uphold the communities' reputation) - rights or community > rights of the person? 

    South African Constitutional Court: Bernard case - "The individual, as the bearer of the right to dignity, should not be understood as an isolated and unencumbered being. Dignity contains individualistic as well as collective impulses".

  Christopher McCrudden - Does dignity has a basic minimum content?

   Manuel Wackenheim v France
  Communication No 854/1999, - U.N. Case
   
  Dwarf-tossing’ case
 
  Dwarf tossing banned in France 
 
  The argument was that the game went against the human rights and dignity of dwarfs.
 
  By contrast, the game was how the plaintiff made his money, thus the argument was made that by losing his job, he lost his livelihood and thus, his dignity and human right to earn a living. 
 
  Human Rights Committee rejected the later argument as they believed they had to ban Dwarf Tossing as allowing it undermined public order. This brings in the idea of the communal nature of human dignity (rights of the community > rights of the person). 

  This case did not consider the wider constraints that the plaintiff had as due to the plaintiff being a dwarf and being discriminated as a result, he had very few employment options open to him.

  You can also make the argument that for the plaintiff to have complete human rights and dignity, you can ban dwarf tossing while also putting systems and laws in place to prevent discrimination and allow more job opportunities for the plaintiff and others like him in other non-discriminative areas.

 3.  Capabilities 

 Capabilities approach (Amartya Sen)
 
   It is the right of the individual to be and do what she chooses to be and do.

    Autonomy matters within the range of the options that are actually available. 
 

   Martha Nussbaum
  Connection between autonomy and dignity.

  Cooperation and reciprocity important aspect of this.
 
Material support and interdependence also vital.

  We are now beginning to move away from previous ideas on human rights 

  Nussbaum advocates for central human capabilities 

       Central Human Capabilities
 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). 

By putting emphasis on what people are able to do and be, the capability approach sees the diversity of people’s ability to convert those resources and goods into real opportunities and achievements and thus live the sort of life they are successfully able to lead.

 While this can be seen as a positive thing, the Capabilities Approach also has critics.

 Capabilities approach based: Nussbaum argues, that "not in rationality, nor in any other specific human property, but, rather in the bare fact of being a living human being: being born from human parents and having a minimal level of agency or capacity for activity. That is enough to give a human being a dignity that is equal to that of every other human being". This above all else should be the main basis for human rights.

    I agree with the part about we should have rights on the basis of being human, the agency and capacity part of the quote creates some issues.
 
  Does this capabilities approach mean that there is a minimum level of agency needed to be provided human rights?
 
  Is agency always a precondition to human flourishing/the ability to live a good life?
 
  Does the idea of agency exclude certain groups and individuals from obtaining their rights if they do not have the capacity/capabilities to flourish or live a 'good' life?

Idea of a 'good' life also vague - one person's idea of a good life may be drastically different to anothers.

             4. Basic interests

     Buchanan: Believes that interests most crucial for a good life

  Available to all, regardless of agency

  But which interests? (Are some more important than others?).

  Expansion of rights? (If rights expand too much, do they lost importance and meaning?)

  Rights as a ‘rhetorical flourish (A rhetorical elaboration that goes beyond the limits of what most people would describe as useful or informative,)’? 

 Populist expansion of human rights?

  How to we decide what interests are worthy of protection?

  This approach results in having a more limited list of interests and therefore human rights.
 
   Idea is intimately reductive and limitative.

  5. Obligations: Raz:
  Rights correlate to obligations
 
Rights of one person limits the freedoms of another
 
  Thus, we should focus on obligations

  Can the duty/obligation be justified?

  Enforcement is vital to something being a human right
 
  If it is unable to be enforced through reliable, efficient and fair institutions, it is thus, not a human right 
 
  Is it even possible to enforce all rights? - such as right to health - it may be possible to guarantee a right to health care, but overall health of an individual can never be guaranteed?

Confuses enforcement with the substance of the right – It is not a good enough reason to reject a human right if it is difficult to enforce.

  6. Interference?: A society failing to vindicate and have respect for the human rights of its people on a large scale may give outside agents a reason to act and provide aid.

  Bates 

    Distinguishes practices of states from actual human rights. 

    Human rights are an international concern.
 
   They transcend boundaries and national interests.
 
   Human rights limits sovereignty.
 
   States ought to help to secure rights in other states.
 
   Idea has basis in international practice.

       Problems with interference?

   Interference with sovereignty- international organisations have more say and control over a state's rights than that state's own elected leaders.

   Very limited number of rights protected

   Excludes social and economic rights

   Distinction between national and international human rights

Various people have different views on what are considered and where they come from as shown above. This inevitably leads to conflict and uncertainty. 

  For example, when we consider practices or customs such as capital punishment in the United States or female genital mutilation in Sahelian Africa, this reminds us that there can be serious intercultural disagreement about what is necessary to respect human dignity and human worth. "To dismiss the practice because it doesn't conform to a received philosophical construction seems to me dogmatic..." It can sometimes seem culturally insensitive to dismiss certain practices as people can lack awareness to the fact that what you consider normal and justified punishment can seem horrific to somebody not from your culture.

Issue of moral relativism will be discussed further ➟➟➟➟➟➟➟➟➟

 

      American Anthropological Association, 1947

American Anthropological Association, “Statement on Human Rights” (1947)

“Groups are composed of individuals, and human beings do not function outside the societies of which they form a part.”

“We must take into full account the individual as a member of the social group of which he is a part, whose sanctioned modes of life shape his behaviour, and with whose fate his own is thus inextricably bound.”

   “The individual realizes his personality through his culture, hence respect for individual differences entails a respect for cultural differences”

  “Cultures differ in degree of complexity, of richness of content, is due to historic forces, not biological ones... [and] no technique of qualitatively evaluating cultures has been discovered”

                Universality and cultural relativism
  1951: Proposed ‘Covenant on Human Rights’ (constructed from UDHR) denounced by American Bar Association as embodying an ideology alien to the United States, being marked by "the heavy imprint of Eastern philosophy”

1994: President of the US National Institute of Womanhood denounced CEDAW, arguing that it would "establish an international policy instrument that can be used as a weapon against the family, the institution of marriage, cultural and religious values.”

   Universality
  Human rights beliefs universal?
  Centrality of the human being as a whole.
  Contrasts with the autonomy of the individual - does not take into account someone's difference in beliefs, upbringing etc. which may cause them to have different views on certain human rights than somebody else.
  Liberal rights theory - huge basis is the right of the person, equality etc. but a very individualist philosophy.
  Communal rights theory – dignitas (rights of community prioritised (discussed earlier)).

 Culture
Abdullahi Ahmed An-na’im:
Describes culture as a totality of values, institutions and forms of behaviour transmitted within a society, as well as material goods produced by men and women.
  ‘World view’, ideology and cognitive behaviour central to this idea of culture.
Vital to what it means to be ourselves.
Culture has influence over how we see and interpret the world.

                            Ethnocentricity
  This means to evaluate other cultures based on preconceptions based on the standards and customs of one's own culture.

    In An-Na'im's view, ethnocentricity cannot be avoided and to some extent believes that it can be useful to an extent - e.g., group cohesion, community pride, cultural identification. Also, acceptance of our culture is needed for survival. 
 
   BUT!!!!!!!!
  Too much focus on ethnocentricity leads to intolerance and hostility and the dehumanisation of others - e.g. "They're not like us", "They're uncivilised" etc.

                 Cultural relativism
   What is considered fair, just, moral etc. in one culture might be considered horrific, savage etc. in another. 
   Enlightened ethnocentricity (An-Na’im). 
   Cultural relativism is important as it;
  Encourages the right of others to be different
  Encourages equal validity of diverse patterns of life to be upheld.
  Also encourages tolerance of different customs.

               Critiques of cultural relativism
  Neutralises or ignores moral justice – have to accept that things are different elsewhere? - is not questioning how things are done anywhere just as dangerous? is it allowing horrors and injustices to be conflicted against others while others do nothing out of "respect of their culture"?
  Allows tolerance of injustice.
  Denies the right to compare cultures to each other.
  Denies the right to insist on universal standards
  Does not allocate for healthy argument and discussion on moral matters?
  Nihilism? No absolutes but morality is universal? - e.g., shouldn't everyone agree that torture, abuse etc. is in some ways immoral?

                  Asian values’ debate
  Challenge to western hegemony over rights

  Bangkok Declaration 1993
‘While human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.’ 

Advancement for Human rights from the west – If the west believes that they are morally superior, this can then lead to the ideological idea of domination – could this be seen as a form of modern colonialism?

  Issue also concerning the use of human rights as an instrument of political pressure - state imposes rights as they would not want to be seen as an outlier as opposed to the state imposing certain human rights out of morality and concern for their citizens.  

  Also, it is important to note that the concept of individualism is alien to various cultures and more value is placed on the community.

The June 1993 Vienna U.N. conference on human rights - "The West went to Vienna accusing Asia of trying to undermine the ideal of universality, and were determined to blame Asia if the conference failed. Inevitably, Asia resisted. The result after weeks of wrangling was a predictable diplomatic compromise ambiguous enough so all could live with it, but that settled very few things". Overall, there was no genuine debate or discussion between Asia and the West, no genuine attempt to address the issues. If anything, the Vienna conference may only have hardened attitudes on both sides and increased the deep scepticism that many Asian countries see as Western posturing on human rights. (Asia's Different Standard: Bilahari Kausikan)  

       Universalism as Neo-Colonialism
      Many see human rights as having a basis in morality and doing what is right for mankind.

 Many see Human rights as the continuation of the ‘White Man’s Burden’.
 
 Bringing of human rights, law, gender equality etc. as modern-day ‘civilising mission’.
   
                           For example;
 
                   Makau Mutua:
  “What is interesting are the parallels between Christianity’s violent conquest of Africa and the modern human rights crusade. The same methods are at work and similar cultural 
dispossessions are taking place, without dialogue or conversation. The official human corpus, which issues from European predicates, seeks to supplant all other traditions, 
while rejecting them. It claims to be the only genius of the good society.”

                Roxanne Doty:
• “’We’ of the West are not inefficient, corrupt or dependent on a benevolent society for our existence. ‘We’ are the unquestioned upholders of human rights. ‘We’ attained positions of privilege and authority as a result of our capacities. ‘We’ of the West are different from ‘them’. ‘Their’ fate could not befall ‘us’. ‘They’ can succeed only if ‘they’ become more like ‘us’... The incapacity to exercise agency in the same manner as the Western ‘self’ is repeatedly inscribed in the identity of the non-Western ‘other’.”

                 France: the ‘burqa ban’
   In 2010, the French parliament and Senate passed an act that banning the wearing of face-covering headgear, including masks, helmets, balaclavas, niqabs and other veils covering the face in public places, except under specified circumstances
  Is this not denying people the right to religious freedom? For a "progressive" western country, does this not feel discriminatory and regressive? 

        Relativism, universality and diversity
  Feminist critiques of universality: Are these "universal" ideals a cover for a male norm? – behind the idea of universality is the ideas of the dominant group, which is men in this case.

  However, that view comes from white middle-class feminists – would they not just be replacing the male view with their own white middle-class feminist view - failing to see the perspectives of working-class women and women of colour.

   There is also this idea that feminism is just a western concept – Issue with this line of thinking as it could be used to legitimate breaches of women’s human rights.

   There is tension between universal values and cultural perspectives
 
  Is it possible to be sensitive to plurality and diversity while maintaining universal standards? 

  Relativism and cultural homogeneity (culture is stable, consistent, unchanging?) - I'd argue no as various cultures throughout the entire have gone through massive changes - e.g., Ireland, a famously Catholic and conservative country voted for same-sex marriage and access to abortion to be made legal in Ireland.

  Thus, Western culture is not homogenous, there is a lot of diversity within different western culture so to say that the concept of human rights is a "western ideal" is a dangerous.

  It is also important to note that western countries have also committed major human rights violations - e.g., Ireland and the mother and baby homes crisis/church abuse scandal.

  "As a matter of principle, it should be admitted that every cultural tradition has problems with some human rights and needs to enhance the internal cultural legitimacy of those rights." (Abdullahi Ahmed An-Natim: Toward a Cross-Cultural Approach to Defining International Standards of Human Rights The Meaning of Cruel, Inhuman, or Degrading Treatment or punishment)

  Human rights are also invoked and fought for just as frequently in places like Asia than in Europe. -  Asia's Different Standard: Bilahari Kausikan - Kausikan gives the example of countries like China, Indonesia, and Burma who have not just dismissed Western criticism of their human rights records and have attempted to respond seriously, stating or trying to show that they too adhere to international human rights norms. While not perfect, they have released political prisoners; and in Indonesia, for example, they have even held commissions of inquiry on alleged abuses and punished some officials found guilty. 

Lovelace marries a non-Indian man – loses her Indian status 

Later divorced, still lost her status. 

Breach ISPCR – Breach of her right to enjoy her culture.

Argued that this law was necessarily to protect the indigenous Indian population.

Indian reserve land was more threatened by non-Indian man.

Law cannot take away one's identity – she might have lost status but not her right to enjoy her culture. 

   Cultural rights vs universal human rights 
 
  The right to enjoy culture in community with others

  Sacrificing one right for the other/greater good sometimes needed.

                Relativism and tolerance

Tolerance – someone’s belief should not be prohibited because someone sees it as wrong 

Has roots in liberal political theory

Belief that states should remain neutral on morals

  Different interpretations of tolerance and applications of human rights among and within different countries

           Problems with tolerance:
  Assumption that tolerance is a universal value – cultural relativism critique

My tolerance vs your tolerance? - What one person tolerates another might not.

  Hall and Preddy v Bull and Bull [2013] UKSC 73

Christian hotel owners refused same-sex couple a room as homosexuality goes against their religious beliefs 

Held: the owners had acted unlawfully against the couple 
 Tolerance is required on both sides

 Can tolerance address deep social disagreement?

Cultural consensus - An-Na’im
 Just tolerating something will not address social disagreement or result in any social change.
 Makes it easier to sweep things under the rug.
 Allows for secret hate/discrimination instead of striving for actual equality - e.g. I do not like you for a discriminatory reason that is unfair, but I will put up with you in the name of "tolerance".
 Lowest common denominator is not good enough
 Must give basic contents to shared moral values
 Dialogue and debate needed to establish cross-cultural consensus and try to come to some sort of agreement - This approach is based on the belief that, despite differences and diversity, human beings and societies as a whole "...share certain fundamental interests, concerns, qualities, traits, and values that can be identified and articulated as the framework for a common "culture" of universal human rights". (Abdullahi Ahmed An-Natim: Toward a Cross-Cultural Approach to Defining International Standards of Human Rights the Meaning of Cruel, Inhuman, or Degrading Treatment or punishment).

Must critique values internally and externally - why do I feel this way? is it how I was raised? am I being biased? is it right and fair to treat others this way? - This is the only way any progress can be made.

                            An-Na’im  
   “The way out of the vicious cycle of the ‘universality-relativity debate’ is to go deeper into the local context of each issue in order to find sustainable points of mediation. As with other public policy issues, the legitimacy and efficacy of the protection of human rights must be 
 promoted through deliberate strategies that combine visionary belief in the possibilities of social and political change with a realistic appreciation of the difficulties.”

  For progress to be made and to start having these complex and nuanced conversations, sensitivity to cultural relativity is very important for the international protection and promotion of human rights - Abdullahi Ahmed An-Na’im
   This is because if you are not taking the other side into account, they are not going to want to have debates and discussions and thus, no progress will be made.

                           Eva Brems
  Brems seems to be in agreement with An-Na'im
  Introduces the concept of inclusive Universality
  She believes that human rights are inherently biased 
  Also, formal standards not enough to guarantee protection
  Marginalised groups need to be listened to about the shortcomings of human rights

                                   Brad Roth
  Also seems to be in agreement.
  Bounded Pluralism
“Respectful accommodation among territorial political communities is predicated on a “bounded pluralism” in regard to clashing political moralities... Reformers must acknowledge the unique stake of a territorial political community’s members in the collective decisions 
that condition life in their society, and the inherent untrustworthiness of even well-intentioned and thoughtful (let alone self-interested, arrogant, or sophomoric) outsiders poised to impose unilateral implementations of supposed universal standards...

Pluralism not exactly the same as relativism.

“Pluralism is not scepticism or relativism. To uphold limitations on [enforcement of universal values] is not to refrain from condemning or sanctioning breaches of legal obligations".

• “Standards, as well as values, arise on the basis of social practice... Human rights as principles are abstractions which, even if universally justifiable, point to specific interpretive applications taking into account both the political context of implementation as well as the specificities of the cases to which they are applied... Functional differentiation remains the core point for granting pluralistic self-determination at the local, regional and international level.”
 
 How do courts address the tension between universaliity and relativism?

  One way this is done is what is known as the ‘Margin of appreciation’ doctrine in the European Court of Human Rights

  State is allocated a certain amount of discretion when it takes legislative, administrative or judicial action in the area of a convention right
 
 Can be seen as a positive thing as this means there is room for socio-political self-determination, recognition of cultural and historical diversity among states

  On the other hand, does this margin of appreciation allow certain states get away with human rights offences?

  First applied in Commission report for Lawless v Ireland [1961], this case involved the determination of an emergency situation: “having regard to the high responsibility that a government bears to its people to protect them against any threat to the life of the nation, it is evident that a certain discretion – a certain margin of appreciation – must be left to the government”
 

  Doctrine applied again in Handyside v UK [1976] 
Copies of ‘The Little Red School Book’ by UK authorities were ceased because of section on sex.

Right to Freedom of expression. 

Handyside allowed to publish the book.
 
Article 10(2) case, there needs to be a balance between freedom of expression and state’s right to protect morals.
 
Court recognised that “state authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements [of morals]”, but found that this “power of appreciation” was not unlimited.

  States have this margin of appreciation but do not have unlimited authority - prevents unlimited right to commit major human rights offences? - Protective measure in place.

  A source is something that stems from law. Also, provides us with the foundation of a legal obligation.
  
  A source tells is what is and isn’t law - This can be of use as it indicates to us that something is or is not a legal instrument and can help us distinguish between an obligation that is legal and one that is not (e.g., social, moral etc.)

  A source can also let us know how new laws are made and also how existing rules can be changed or removed.

Christine Chinkin, ‘Sources’ in Daniel Moeckli, Sangeeta Shah & Sandesh Sivakuraman International Human Rights Law

 

   When looking at sources of law, you also have to look at the relations between International Human Rights Law (IHRL) and Public International Law 

    IHRL is within or a subset of (PIL) (does not involve private international law)

    They both share formal sources 

    Their legal systems are different from national/individual state legal systems

    They contain no legislature, executive, constitution or central judiciary 

    PIL - Do not have a central court or police force. 

  States still obligated to follow international law.

              What are the sources of IHRL?

  A complex changing system.
  There is no single or complete list of sources.
  Sources are also evolving and developing. 
  This gives the IHRL system flexibility and fluidity 
  Sources also modify to reflect the times and thus, the everchanging social needs of the people. 

                  Article 38(1) ICJ Statute

According to this statute there are four discrete finite sources of law (A-D)
 "1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
 a) International conventions [...];
 b) International custom, as evidence of a general practice accepted as law;
 c)The general principles of law recognised by civilised nations;
 d)Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Christine Chinkin, ‘Sources’ in Daniel Moeckli, Sangeeta Shah & Sandesh Sivakuraman (eds.), International Human Rights Law (3rd ed, OUP 2017), Chapter 4

 

             Treaties
   Treaty, conventions, charter, covenant, protocol, pact – Generally men the same thing. 
  Generally, only states are parties to treaties
  Occasionally international organisations and international institutions – e.g. World Health Organisation, European Union etc.
 
  States must confirm/ratify treaties – Signing off to a treaty – each country has a different system to ratify themselves to a treaty.
 
Treaties are not reciprocal – States are bound to the human rights treaties, and they are bound to protect the individuals of their state and the people do not have to reciprocate. - This is contrasted to PIL, where their treaties are reciprocal. 
 
  Treaties are also agreements that are bound by a legal obligation to individuals in certain territory or jurisdiction

Key treaties: examples
  UDHR 1948
  ICCPR/ICESCR 1966
  ** these treaties and others discussed earlier

  The treaties list is not a closed one – can expect more, for example, there has been huge advocacy for a treaty on the protection of the human rights of older persons and an Open-ended Working Group on Ageing has been established to consider the issues arising in this context. - Concept of human rights ever expanding.

  Christine Chinkin, ‘Sources’ in Daniel Moeckli, Sangeeta Shah & Sandesh Sivakuraman (eds.), International Human Rights Law (3rd ed, OUP 2017), Chapter 4.

   As needs (e.g., social needs) change, you can add a protocol onto a treaty (optional protocol) – e.g. 1989 Treaty on rights of the Child – protocol added (Recognizing the particular needs of those children who are particularly vulnerable to war recruitment or to being used in hostilities due to their economic or social status or gender etc.)

                            Treaty bodies
  Every treaty has a specialist committee or treaty body

  This is a unique feature of IHRL system

  Role of the treaty body is to monitor implementation of treaty by a state 

   The work of the treaty body members and the content of their reports are important as they tell us what human rights are about, and they are also vital to the development of international human rights law as a whole - We would like be in a much more dire situation, in terms of our human rights goals if we did not have this system in place - e.g., they aid in the prevention of human rights offences by states. 

          Regional human rights treaties
Regional institutions have developed their own human rights systems through the adoption of treaties that operate within their specific regions only 
e.g;
European Convention on Human Rights
American Convention on Human Rights 
African Charter on Human and Peoples’ Rights
Less Pressure on the United Nations - if various continents and states have their own human rights implementation system. 

               Customary International law

  A custom is a practice, or the usual way things are done e.g., in Ireland, leaving out cookies and milk for santa on Christmas Eve.

  In IHRL – a custom is how a state behave/relate to each-other
   e.g;
  Treaties binding only on states’ parties.

  A custom is unwritten; difficult to concretely identify

  There are two elements of a custom:

  1. State practice
  Opinio juris – This is a states’ belief that they have a legal obligation to follow the practice.

   In R v Jones, the House of Lords held that the crime of aggression was to be established under customary international law. Lord Bingham referred to what he called the ‘major milestones along the road leading to this conclusion’. These included a mix of treaties and statements: e.g., a draft Treaty of Mutual Assistance in 1923 (which never came into force) (as well as others).

   Issue with this: treaties that never came into force were being used as evidence of the practice of a state. Can argue that a treaty that has not come into force is more evidential of what was not accepted by a state rather than what was.  Arguably it is not sufficient enough evidence to prove the practice of a state and should not be used in a national court.

    Another issue caused by the difference in what a state says and does.  In Filartiga, Judge Kaufman stated that he had not been ‘directed to any assertion by any contemporary state of a right to torture its own or another nation’s citizens’. But this is contradicted by reports of evidence of torture brough by human rights organisations such as Amnesty International.

   Clear evidence of a flawed and imperfect system.

Christine Chinkin, ‘Sources’ in Daniel Moeckli, Sangeeta Shah & Sandesh Sivakuraman International Human Rights Law

 

  2. Universal Law
 Jus cogens - This is law that no state is allowed to delegate from – e.g., prohibition of torture, genocide etc.

 ‘Peremptory norm of general international law ... accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.  Chapter V Peremptory norms of general international law (jus cogens) (U.N.org)
    A Pinnacle in the hierarchy of sources
    These laws/obligations cannot be ignored
    They are universally applicable legal norms
    Examples: prohibition of torture and genocide

     There is still controversy over which human rights norms are allowed this status and over some of its implications. "There is widespread agreement on the jus cogens quality of certain rights such as the prohibition of torture and genocide, but others that have been accepted by some bodies are more controversial; for example, all forms of discrimination, the death penalty for those under 18, and the right to property." By looking at the legal consequences of a determination of jus cogens, it looks like despite being universal and states are being allowed to delegate from it, it does not seem to overrule jurisdictional requirements.
   Christine Chinkin, ‘Sources’ in Daniel Moeckli, Sangeeta Shah & Sandesh Sivakuraman International Human Rights Law (3rd ed, OUP 2017), Chapter 4

    Universal concept of human rights and the law are still in conflict.

                General principles of law

 A vague concept. 

 It is believed to mean the principles that the majority legal systems include e.g. prohibition of murder, right to a fair trial etc.
 
 The concept is unclear and rarely used
 
 Are there general principles of national legal systems?
 
 Are there general principles of international relations?
 
 Human rights are likely to be considered general principles

Judicial decisions
There are no central international human rights court

There are also no central enforcement bodies 

 It instead falls on judges to interpret the law 
 
 There are regional human rights courts
 
 In these courts there is no hierarchy, also no precedent. No precedent means that courts are not bound to follow decisions from previous courts
 
  This means that it is unclear what weight to give decisions
 
  Also, highly influential to interpretation and understanding of human rights.

                          Other sources?
  Treaty bodies
  Resolutions of international institutions, e.g. UN GA and UN SC
  ‘Soft law’: guidelines, codes of conduct, standards of behaviour, instruments from UN global summit meetings – non-binding 
  Others?

                  Development and diversity
It is important for us to ask ourselves is Art 38 ICJ Statute complete or exhaustive? – It was drafted in the 1920s (over 100 years ago)
 
Does it capture the complexity and diversity of human rights? – especially as time moves on and changes.

Arguably not and you have to look beyond it 
 
   Ad hoc growth of international human rights law since 1945, yet there is no overarching plan or rules about how human rights should grow and develop.

Human rights gives us language to make claims – Human rights also has to some extent, a morality basis

Art. 38(1) does not completely answer the question 

 As a result, we need to look to other charters, treaties, customs. 

There is no test or process for coming up with new human rights 

 Also, there is no authoritative body that has a final say in what human rights are/how they should be implemented etc. - No quality control in a sense.

Frédéric Mégret, ‘Nature of Obligations’ in Daniel Moeckli, Sangeeta Shah & Sandesh Sivakuraman (eds.), International Human Rights Law (3r ed, OUP 2017), Chapter 5.

              The ‘special character’ of IHRL
    Basic idea:
 
  Human rights obligations are different from public international law obligations, i.e;

  Human rights deals with obligations of states towards individuals and; 
 
Public international law deals with obligations between states.

                Something owed to individuals
  IHRL treaties benefit individuals (‘third parties’)
  Individuals are not usually subjects of PIL
  UN Convention Against Torture example

                 The ‘special character’ of IHRL
  Human rights create something greater than parties’ ever will, i.e., they do something more.
 
               International Court of Justice:
‘States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.’  RESERVATION TO THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

             ‘Objective’ regime of human rights
  As stated earlier, human rights have a higher purpose – Goes beyond National Law and goes beyond what states want. 

  Human rights try to shape behaviour. 
 
  Human rights obligations = high normative worth.
 
  Thus, there are mechanisms for enforcement.
 
  Human rights treaties declare existing moral obligations

                        Reservations
  What are reservations? – Source of IHRL – Reserving means to set something aside e.g., the way a state would change its obligations under a treaty.

  Controversial area of IHRL 

   How do reservations work?
  
  Do these reservations undermine human rights?
 
  Should reservations be allowed?

                 Limits the state’s obligations
 •VCLT Article 2 definition of reservations:
 ‘unilateral statement, however phrased or named, 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.’

 States want obligations to be consistent with domestic law

  Especially constitutional and religious law
 
  Typical reservation to Convention on the Elimination of Discrimination against Women e.g., that this would conflict with the laws on personal status derived from Islamic Sharia’.

           Why do states use reservations?
  To exclude or limit an obligation and still remain party to treaty  
 
  To inject a cultural understanding of a human rights obligation - cultural relativism 
 
To protect against an expansive interpretation of a human rights obligation to the point that human rights would become meaningless 
 
When there is incompatibility with domestic law

To protect a state against the possibility of going to court for breaking their obligations

Are already aware that their domestic law in in conflict with IHRL 

                          Problems with reservations
   Successfully gets more states on board with IHRL

                                     BUT!!!!!!

 Allows a 'pick and choose'- approach – This weakens the universality idea of human rights 

 ‘Free riding’ human rights treaties – State looks like they care about protecting human rights when they do not in actuality they can just look like they do while committing human rights violations.

  Creates legal uncertainty – Leads us to question what is and what is not considered a human right. 

      Implementation of human rights obligations

Formula to implement and uphold human rights 
  Duty to respect
  Duty to protect
  Duty to fulfil

                   Duty to respect
  Negative obligation not to violate rights

State should not directly violate your right 

Liberal philosophy 

State should not interfere in our private lives 

                      Duty to protect

 State has to take steps to make sure their people are protected from even natural phenomena e.g., a pandemic 

 Obligated to ensure that people do not suffer from human rights violations at the hands of third parties or from any other phenomena 

  State not liable for every violation of individuals’ rights by private actors
 
 However, state will be held responsible where failures can be traced to state’s shortcomings e.g., failure to follow up on a known threat 

      Velásquez Rodríguez v Honduras 1988
‘An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the [American] Convention. . . . [The state is liable when it] allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.’

  Velásquez Rodríguez Case (Samuel Witten) - The Commission alleged that Honduras was in violation of Articles 4, 5 and 7 of the American Convention on Human Rights (Convention) with respect to the 1981 detention and subsequent disappearance of a Honduran student, Angel Manfredo Velásquez Rodríguez. The Court held that domestic Honduran legal remedies were not effective and that a systematic pattern of disappearances was carried out or tolerated by Honduran government officials between 1981 to 1984.

                           Duty to fulfil
  States obliged to take positive steps towards enjoyment of human rights

  E.g., having access to education

Not enough just to create human rights law – other measures are needed

E.g., must provide remedies for violations: Velásquez Rodríguez 
 ‘The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction.’

Penalty in place if you for example allow torture to occur.

  For states, doing nothing is not optional !!!!

     Overall, human rights obligations can allocate for a certain amount of flexibility in their application but are at the same time binding?

   The tension ultimately lies in the fact that the idea of human rights and general international law have a very different history and are also very fundamentally different in nature.  

    Can also argue that human rights law has also hugely impacted the evolution of public international law and "...contributed to redefine it less as a project of coexistence between equal states, and more as a common effort to achieve certain universal minimal standards of treatment of the individual."

Frédéric Mégret, ‘Nature of Obligations’ in Daniel Moeckli, Sangeeta Shah & Sandesh Sivakuraman (eds.), International Human Rights Law (3r ed, OUP 2017), Chapter 5.

  Can human rights and law work together?
 No - too vastly different as they place value on different things ? e.g.; morality vs legislation.
 Yes - cannot have human rights without law? - how can we expect states to commit to their human rights promises without being legally bound as not everybody, especially those in power, look to their morality or to the concept of universality. 

  Ultimately - From research, it can be concluded while the majority of the focus on human rights should come from an intrinsically moral/universal place, laws, to some extent are needed to keep those in power in check. 

 However, laws should not be relied on to the point where states should delegate from their responsibilities based on legal loopholes that those in power put in place or to the extent where the most marginalised in our society are disenfranchised.