Detailed Notes on "The International Protection of Human Rights"

1. The Nature of Human Rights

 Universal Declaration of Human Rights (UDHR): Adopted on 10 December 1948, the
UDHR emphasizes the inherent dignity and equal rights of all humans as the foundation
of freedom, justice, and peace. However, the precise nature and role of human rights in
international law remain contested.
 Controversy Over Rights: The definition of a "right" is debated. Some rights are
immediately enforceable, while others are aspirational, outlining future behavior patterns.
 Enforcement Challenges: Non-compliance with human rights norms is common,
leading some to argue that human rights principles are not firmly established in
international law. However, this view is criticized as overly negative and academically
flawed.
 Human Rights and Morality: Human rights are closely tied to ethics and morality.
Rights that align with community values are more likely to be successfully implemented.
Positive rights are legally enforceable, while moral rights may not be.
 Sources of Rights: Rights can stem from religion, human nature, or societal structures.
The Natural Law perspective, associated with thinkers like John Locke, posits that certain
rights (e.g., life, liberty, property) are inherent and universal, derived from a higher law
than man-made laws.
 Positivism and Marxism: Positivism emphasizes state authority, limiting rights to those
granted by the state. Marxism, while acknowledging historical laws governing society,
denies the existence of rights outside the legal order.
 Modern Rights Theories: Contemporary theories emphasize the complexity of human
rights, recognizing the need for evolving legal systems to address new challenges.

Development of int. Human rights law

 19th century,
o In matters today regarded as universal were at that stage confined to internal
sphere of national jurisdiction. Only exceptions were Piracy jure Gentium and
slavery
o Acceptance of right of humanitarian intervention, although its range and extent
were unclear
o LON 1919, art 22: set mandates for people in ex-enemy colonies
o Art 23, just treatment of the native populations of the territories
o Treaty of Versailles created Int labor organization: promotion of better standards
of working conditions
o WW2: NGOs, protection of int. peace and human rights

2. Ideological Approaches to Human Rights

 Western Perspective: Focuses on civil and political rights, such as freedom of
expression, assembly, and political participation. The consent of the governed is central.
 Soviet Perspective: Emphasized the role of the state in guaranteeing human rights.
Human rights were seen as state obligations, with no direct individual rights under
international law. The state's socio-economic system determined the interpretation of
human rights.
  Third World Perspective: Combines elements of both Western and Soviet views,
emphasizing state sovereignty, equality, and socio-economic rights. Civil and political
rights are often secondary to developmental concerns.
 Cultural Relativism vs. Universalism: Some argue that human rights must be
understood within cultural contexts, challenging the universality of human rights. This
can be problematic, as states may use cultural differences to justify human rights
violations.
3. Development of International Human Rights Law
 19th Century: State sovereignty dominated, with human rights issues considered
domestic matters. Exceptions included piracy and slavery, which were addressed through
international treaties.
 League of Nations: Established in 1919, it introduced the mandates system to protect
peoples in former colonies. Minority rights were also addressed in post-WWI treaties.
 Post-WWII Developments: The horrors of WWII highlighted the need for an
international system to protect human rights. The UN was established, and the UDHR
was adopted in 1948.
 Modern Mechanisms: The UN has developed various mechanisms to address human
rights violations, including intergovernmental committees, courts, and truth and
reconciliation commissions.
4. Basic Principles of Human Rights Law
 Domestic Jurisdiction: Article 2(7) of the UN Charter prohibits interference in states'
internal affairs, but this has been reinterpreted to allow international concern for human
rights violations.
 Exhaustion of Domestic Remedies: Before seeking international remedies, individuals
must exhaust local legal options, unless these are ineffective or unreasonably prolonged.
 Non-Derogable Rights: Certain rights, such as the right to life and freedom from torture,
cannot be suspended, even in emergencies.
 Customary International Law: Some human rights, like the prohibition of torture and
genocide, are considered customary international law, binding on all states.
5. The United Nations System
 UN Charter: Articles 1, 13, 55, and 56 emphasize the promotion of human rights. The
UN has played a central role in developing human rights standards and mechanisms.
 Universal Declaration of Human Rights: Although not legally binding, the UDHR has
influenced national constitutions and international treaties. It covers a wide range of
rights, from civil and political to economic, social, and cultural rights.
o Liberty and security, equality before law, effective remedies, due process,
prohibition on torture, arbitrary interference with privacy, freedom of movement,
asylum, expression, conscience and religion, assembly.
 Vienna Declaration (1993): Reaffirmed the universality, indivisibility, and
interdependence of human rights. It called for the establishment of a UN High
Commissioner for Human Rights.
 UN High Commissioner for Human Rights: Established in 1994, the High
Commissioner promotes and protects human rights globally, providing advisory services
and engaging in dialogue with governments.
6. Collective Rights
 Individual vs. Collective Rights:
 o While international law traditionally focuses on individual rights, collective rights
(e.g., self-determination, minority rights) have gained prominence.
 Prohibition of Genocide:
o The 1948 Genocide Convention defines genocide as acts intended to destroy a
national, ethnic, racial, or religious group. It obligates states to prevent and punish
genocide.
 Prohibition of discrimination:
o Group need protection form discriminatory treatment. It is relevant to both
individuals and groups
o Int convention on elimination of all forms of racial discrimination 1965
o Also includes discrimination on religion and gender
o Int covenant on civil and pol rights, race, colour, sex, language, religion, pol or
other opinion, national or social origin, property birth or other status. UN Human
rights committee was established under this covenant
o PCIJ noted in Minority Schools in Albania case, "equlaity in law precludes
discrimination of any kind,
 Self-Determination:
o It relates to the context of decolonization
o Question: whether this right applicable beyond colonial context?
o Art 1 of int covenants on Human rights: all peoples have the right to self
determination. They can freely determine their pol status and freely pursue their
eco, soc, and cultural development
o However, principle of territorial integrity. This means that boundaries
established and existing at the moment of independnece cannot be altered unles
the relevant partes consent to change
o The principle of SD applies beyond colonial context, within the territorial
framework of independent states
o Cant be utilized as a legal tool for dismantling sovereign states
o As Professor Higgins noted: "external self-determination requires a state to take
action in its foreign policy consistent with the attainment of self-determination
in the remaining areas of colonial or racist occupation. But internal self-
deteminaiton is directed to their own peoples"
o Candadian SC: self determination is normally fulfilled thorough internal self-
determination.
o Recognized as a right of all peoples, self-determination allows groups to
determine their political status and pursue economic, social, and cultural
development. However, it must be balanced with the principle of territorial
integrity.
 Minority Rights: Protected under Article 27 of the International Covenant on Civil and
Political Rights, minority rights include the right to enjoy culture, religion, and language.
The UN has established mechanisms to protect minority rights, including the Declaration
on the Rights of Persons Belonging to Minorities (1992).
7. Implementation of Human Rights
  UN Treaty Bodies: Various committees oversee the implementation of human rights
treaties, such as the Human Rights Committee (Civil and Political Rights) and the
Committee on Economic, Social, and Cultural Rights.
 Reporting Mechanisms: States are required to submit periodic reports on their
compliance with human rights treaties. Committees review these reports and provide
recommendations.
 Individual Complaints: Some treaties allow individuals to submit complaints to treaty
bodies, provided domestic remedies have been exhausted.
 Challenges: The proliferation of treaty bodies has led to issues of consistency and
resource constraints. Efforts are underway to harmonize reporting procedures and
improve coordination among committees.
8. Conclusion
 The international protection of human rights is a complex and evolving field. While significant
progress has been made since the adoption of the UDHR, challenges remain, particularly in
enforcement and addressing cultural relativism.
 The UN plays a central role in promoting and protecting human rights, but its mechanisms face
resource constraints and political challenges.
 The development of collective rights, such as self-determination and minority rights, reflects the
growing recognition of the importance of protecting groups as well as individuals.
 The future of human rights protection will depend on the ability of the international community
to address these challenges and ensure that human rights are universally respected and
enforced.