HUMAN RIGHTS

LECTURES
2025 - 2026

Alba Torres Sánchez

UNIT 1: CONCEPTUAL APPROACH

1. A GENERAL IDEA OF HUMAN RIGHTS

1.1. Realities in Recent Times

Many people in many countries have been victims of state violence in recent times.

- Government forces massacred more than half a million civilians in Indonesia in the
mid-1960s in an attempt to suppress Communism.

- Estimates of the number of people killed by the Khmer Rouge regime of Pol Pot in
Cambodia are as high as 2.2 million people, or between one-quarter and one-third of the
entire population.

- More than 9,000 people ‘disappeared’ under the military government in Argentina in
the late 1970s.

- During the rule of Idi Amin in Uganda from 1972 to 1978 more than 250,000 people
were killed.

- Hundreds of thousands of civilians were murdered by security forces in Iraq during the
1980s.

- Between 1980 and 1992 almost 2 per cent of the population of El Salvador is estimated
to have died as the result of ‘disappearances’ and political killings during the civil war.

- In 1994 between 500,000 and 1,000,000 people were killed in the government-directed
genocide in Rwanda.

This list is far from complete. It does not include Bosnia, Chechnya, Kosovo, East Timor, Sri
Lanka, Yemen, or Syria.

Today, numerous human rights violations are occurring across the globe—in countries such as
Burkina Faso, Sudan, Russia, Myanmar, Niger, Venezuela, and even the United States. Among
the most alarming is the ongoing genocide in Palestine, carried out by Israel. According to
Euro-Med Human Rights Monitor, by July 2025 more than 73,000 Palestinians had been killed
in indiscriminate attacks, with 9 out of 10 victims being civilians, including over 24,400
children. The violence has left 43,000 children orphaned, and nearly 99% of the population has
been forcibly displaced at least once. In addition, Israel’s blockade of humanitarian aid has
caused widespread famine and dehydration. These conditions inflict not only severe physical
suffering but also deep psychological trauma.

Particular attention should be given to Report A/HRC/55/73 by the UN Special Rapporteur on

the situation of human rights in the occupied Palestinian territories: “The violence that Israel has
unleashed against the Palestinians post-7 October is not happening in a vacuum, but is part of a
long-term intentional, systematic, State organized forced displacement and replacement of the
Palestinians”.
1.2. A first approach of the concept

Human rights aspire to protect all people everywhere from severe political, legal, and social
abuses. The Universal Declaration of Human Rights (UDHR) was adopted by the Third United
Nations General Assembly in December 1948 and became a standard of justice for the
constitutions of many countries and non- governmental organizations (NGOs).

Human rights are moral, legal, and political claims that impose duties or responsibilities
on their addressees or duty-bearers. Rights focus on a freedom, protection, status, or benefit for
the right holders.

1.3. Human rights in eight groups

The Universal Declaration’s list, which has had great influence, consists of six families of
human rights:

(1) Security rights that protect people against murder, torture, and genocide;

(2) Due process rights that protect people against arbitrary and excessively harsh
punishments and require fair and public trials for those accused of crimes;

(3) Liberty rights that protect people’s fundamental freedoms in areas such as belief,
expression, association, and movement;

(4) Political rights that protect people’s liberty to participate in politics by assembling,
protesting, voting, and serving in public office;

(5) Equality rights that guarantee equal citizenship, equality before the law, and freedom
from discrimination;

(6) Social rights that require that governments ensure to all the availability of work,
education, health services, and an adequate standard of living.

Moreover, it is pertinent to add two more groups at least:

(7) A seventh category, minority and group rights, has been created by subsequent
treaties. These rights protect LGTBQ+, women, racial and ethnic minorities, indigenous
peoples, children, migrants, and persons with disabilities. These groups (not only
minorities) are subject to historical and systemic oppression or domination.

(8) And new human rights such as the right to a clean, healthy, and sustainable
environment (UN Resolution 76/300, 2022), or the right to water and sanitation (UN
Resolution 64/292, 2010).
Video ‘What are the universal human rights?’ – Benedetta Berti:

The idea of human rights is that each one of us, no matter who we are or where we are born, is
entitled to the same basic rights and freedoms. Human rights are not privileges and they cannot
be granted or revoked – they are inalienable and universal.

Throughout the centuries and across societies, religions, and cultures, we have struggled with
defining notions of rightfulness, justice, and rights. But one of the most modern affirmations of
universal human rights emerged from the ruins of WWII with the creation of the United
Nations.

The treaty that established the UN gives as one of its purposes to reaffirm faith in fundamental
human rights. And with such idea in mind, in 1948, the UN General Assembly adopted the
Universal Declaration of Human Rights. This document, written by an international
committee chaired by Eleanor Roosevelt lays the basis for modern international human rights
law. The declaration is based on the principle that all human beings are born free and equal
in dignity and rights. It lists 30 articles, among them:

- The principle of non-discrimination and the right to life and liberty.

- Negative freedoms, like the freedom from torture or slavery,
- Positive freedoms such as freedom of movement and residence.
- Basic civil and political rights: freedom of expression, religion, or peaceful assembly.
- Social, economic & cultural rights : right to education; right to work and receive fair
pay.

No right is considered above any other, highlighting their universality, indivisibility and
interdependence.

Critics:

The general problem is that it is difficult to universally enforce these rights or to punish
transgressors. The UDHR is a declaration not a hard law so the mechanisms to protect it
mostly monitor and investigate violations, but they cannot force states to change a policy or
compensate a victim. For this reason, many argue its unrealistic to consider human rights a
given in a world where state interests wield so much power.

Critics also question the universality of human rights and emphasize that their development has
been heavily guided by a small number of mostly Western nations, to the detriment of
inclusiveness. This results in a general bias in favour of civil political liberties over socio
political rights and of individual over collective/groups rights.

In favour of HRL:

Others defend universal HRL and point at the positive role they have on setting international
standards and helping activists in their campaign. Not all human rights instruments are
powerless: for example, the European Convention on HR establishes a court with binding
decisions for all 47 member states.
HRL is constantly evolving as our views and definitions of what the basic HR should be – right
to democracy? Right to digital privacy? Right to access to internet?

1.4. Crisis and challenges of human rights today

Nowadays human rights are in crisis due to the inaction of the international community in the
face of numerous events: the genocide in Palestine, the Russian attack on Ukraine, the rise of
the authoritarian populism, modern slavery and social inequalities, the legal protection to
refugees, armed conflicts around the world, or the effects of climate change are some examples.
The protection of human rights is in question. Perhaps we are now at the point of no return
when it comes to protecting them.

According to Fernando Flores, we have to at least face some challenges:

(i) educating in and for human rights values, such as equality;

(ii) strengthening democracies and promoting citizen participation;
(iii) care for the planet,
(iv) demanding compliance with international law. [Accountability]

It is important to remind that human rights “depend on the individual and collective
commitment of everyone.”

2. COMMON PRINCIPLES OF HUMAN RIGHTS [ * This section will fall in the

exam.]

As we have seen, human rights are plural. They address a variety of specific problems such as
guaranteeing fair trials, ending slavery, ensuring the availability of education, or preventing
genocide.

Actually, there isn’t a list of specific rights. Human rights are composed of different norms of
international law and moral demands. Such list of HRs is open to current and future challenges.

However, it is possible to stand out some common principles or characteristics. According to

“The Human Rights Based Approach to Development Cooperation. Towards a Common
Understanding Among UN Agencies” (1997), the principles for human rights protection are
the following

PRINCIPLE 1: Universality and inalienability

“Human rights are universal and inalienable. All people everywhere in the world are entitled to
them. The human person in whom they inhere cannot voluntarily give them up. Nor can others
take them away from him or her. As stated in Article 1 of the UDHR, “All human beings are
born free and equal in dignity and rights”.

PRINCIPLE 2: Indivisibility
“Human rights are indivisible. Whether of a civil, cultural, economic, political or social nature,
they are all inherent to the dignity of every human person. Consequently, they all have equal
status as rights, and cannot be ranked, a priori, in a hierarchical order”.

PRINCIPLE 3: Inter-dependence and inter-relatedness

“The realization of one right often depends, wholly or in part, upon the realization of others. For
instance, realization of the right to health may depend, in certain circumstances, on realization
of the right to education or of the right to information”.

PRINCIPLE 4: Equality and non-discrimination

“All individuals are equal as human beings and by virtue of the inherent dignity of each human
person. All human beings are entitled to their human rights without discrimination of any kind,
such as race, colour, sex, ethnicity, age, language, religion, political or other opinion, national or
social origin, disability, property, birth or other status as explained by the human rights treaty
bodies”.

PRINCIPLE 5: Participation and inclusion

“Every person and all peoples are entitled to active, free and meaningful participation in,
contribution to, and enjoyment of civil, economic, social, cultural and political development in
which human rights and fundamental freedoms can be realized”.

PRINCIPLE 6: Accountability and rule of law

“States and other duty-bearers are answerable for the observance of human rights. In this regard,
they have to comply with the legal norms and standards enshrined in human rights instruments.
Where they fail to do so, aggrieved rights-holders are entitled to institute proceedings for
appropriate redress before a competent court or other adjudicator in accordance with the rules
and procedures provided by law”.

3. CONCEPTIONS OF HUMAN RIGHTS [ * Not in the

exam.]

Although enactment in national and international law is one of the ways in which human rights
exist, many have suggested that this is not the only way. If human rights exist only because of
enactment, their availability is contingent on domestic and international political developments.
Human rights could also exist independently of legal enactment by being part of actual human
moralities. All human groups seem to have moralities, that is, imperative norms of behaviour
backed by reasons and values.

This is one of the most important points of human rights: the question of what justifies their
existence. We might agree, for example, that human rights ought to be understood as important
moral rights that all human beings possess simply in virtue of their humanity and yet disagree
about which aspects of human nature should ground human rights.
Many scholars provide normative reasons or foundations to justify the existence of human rights
(e.g., dignity, basic needs, interests, status equality and equal respect, agency and autonomy,
sentience, or species membership), but the problem with this view is that an existence based on
reasons seems a rather thin form of existence for human rights. Perhaps we can view this
thinness as a practical rather than a theoretical problem—that is, as something to be remedied
by the formulation and enactment of legal norms. Anyway, human rights could also exist
independently of legal enactment by being part of actual human moralities. All human groups
seem to have moralities, that is, imperative norms of behaviour backed by reasons and values.

In summary, there are two main approaches to justify human rights: moral conceptions and
political conceptions. Perhaps the best form of existence for human rights would combine
robust legal existence with the sort of moral existence that comes from being supported by
strong moral and practical reasons.

3.1. Moral Conceptions

Philosophers coming to human rights theory from moral philosophy sometimes assume that
human rights must be, at bottom, defined in moral terms. Human rights would be moral claims
based on different justifications:

(i) divine decree,

(ii) human nature, or
(iii) justified (or prudential) moral reasons.

Usually (i) and (ii) are named natural rights: inherent rights that all/some individuals
possess by virtue of God or by their humanity. Currently most of the scholars justify human
rights based on the dignity of every human, just to be part of the mankind.

In a logical (as opposed to historical) sense, natural rights are pre-institutional because their
substance may be understood without mentioning any institutional structural elements.
Therefore, the rights (or a subset of the rights) that exist in a pre-political state of nature could
be referred to as natural rights. People have natural rights "at all times and in all places,"
regardless of a society's level of development and its productive forces, the specifics of its
political system, or the content of its political culture or religious traditions. Natural rights are
inherent. And according to rationalist iusnaturalism, natural rights could be known by the
reason.

The Virginia Declaration of Rights (1776), Section 1: "That all men are by nature
equally free and independent and have certain inherent rights, of which, when they
enter into a state of society, they cannot, by any compact, deprive or divest their
posterity; namely, the enjoyment of life and liberty, with the means of acquiring and
possessing property, and pursuing and obtaining happiness and safety."

Philosophers coming to human rights theory from moral philosophy sometimes assume that
human rights must be, at bottom, defined in moral terms. These are rights that all human beings
possess simply in virtue of their humanity, and which can be identified simply by the use of
ordinary moral reasoning, as opposed to the sort of conventional reasons created within
particular social or institutional contexts. Humanity is itself a morally loaded notion.
On the other hand, (iii) moral rights should tend to not argue based on naturalist fallacy (a
logical mistaken argument or belief which argues that if something is 'natural' it must be moral
or good), but rather on other justified concepts or values. (Otherwise, we would always
maintain the status quo – for instance, rape – arguing that it is a part of human nature). These
terms could be related to natural characteristics (e.g., reasoning), However, this is not important
by itself, but in relation to the main value or concept (e.g., well-being or equality). This moral
conception also refuses arbitrary reasons. Here the main question is to know what is a justified
and an arbitrary reason.

These moral rights are not inherent, they suppose justified reasons to support, such as basic
needs, agency or sentience. They could be supported also in a historical sense, and it is
compatible with other theories, such as agreement theories (democracy). Thus, moral rights are
“reasons for action” which aspire to be part of domestic and international legal systems.

3.2. Political Conceptions

These “political” conceptions of human rights explain what human rights are by describing
the things that they do. Such a view would see the idea of human rights as playing various
political roles at the national and international levels and as serving thereby to protect urgent
human and national interests. These political roles might include providing standards for
international evaluations of how governments treat their people and specifying when use of
economic sanctions or military intervention is permissible.

This kind of view may be plausible for the very salient international human rights that have
emerged in international law and politics in the last fifty years. But human rights can exist
and function in contexts not involving international scrutiny and intervention such as a world
with only one state. (HR would continue even without international relations, law, or politics.)

Discussions of human rights in social science are more likely to contain agreement notions than
in Philosophy. For this reason, the effects of an overlapping consensus (common core) could
be more widespread rather than a particular moral reasons. In this sense, many scholars
support agreement theories. Thus, Michael Walzer distinguishes "thin" and "thick" moralities
raises one possibility. "A set of standards to which all societies can be held—negative
injunctions, most likely, rules against murder, deceit, torture, oppression, and tyranny would
constitute the moral minimum," he speculates, based on a comparison of social moral codes.

4. HUMAN RIGHTS AND FUNDAMENTAL RIGHTS

Human rights and fundamental rights can be distinguished on their primary characteristics:

Fundamental rights: set of rules constitutionally recognised, legally binding for all,
protecting rights and freedoms of citizens. They are numerus clausus (very difficult to add/
remove clauses).

Human rights: moral and political claims and could be legally recognised or not. They are
numerus apertus.
According to standard language usage, the term "human rights" typically refers to those rights
that are created by international treaties and relate to basic values. Therefore, the legal
framework that acknowledges and defends them—domestic for fundamental rights, and
international for human rights—would constitute the distinction between fundamental rights and
human rights.

UNIT 2: CONCEPTUAL (AND CULTURAL) APPROACH

1. ROOTS

Until recently, there were two main views about the history of human rights: either they had
little history before the establishment of the UN in 1945; or they had a much longer history.

Both views have been challenged recently by Samuel Moyn, who maintains that the concept of
human rights refers to a global morality that became significant only in the 1970s. Moyn
rightly notes that human rights achieved unprecedented influence in the 1970s, but he is wrong
to claim that this was discontinuous with previous concepts.

1.1 Ancient roots [ * Not in the

exam.]

The roots of the concept of human rights have a universal history. The Code of Hammurabi
(c.1792–1750 BC), king of Babylon, is said to be the oldest surviving text establishing the rule
of law. Cyrus the Great (died 529 BC), king of Persia, proclaimed a policy of religious
toleration and abolished slavery. The Buddhist King Ashoka of India (c.264–238 BC) also
promoted religious toleration, provided for the health and education of his people, and
appointed officials to prevent wrongful punishments. Thus, principles now associated with
human rights can be found in ancient times in many cultures. These examples weaken the
claim that the concept of human rights is Western.

The contemporary concept of human rights is intended primarily to protect individuals

from the abuse of power by governments. In this sense, for instance, the ancient Greeks
undoubtedly understood the concept of power and its misuse, regardless of whether they had an
idea of ‘rights’. The Stoics believed that all people are equal by nature (Marcus Aurelius). What
the Stoics added the use of equity as a principle of criticism requires a clear perception that
justice cannot be identified with positive law. Centuries later, the Magna Carta (1215, England)
recognizes ‘subjective’ rights by such terms as ‘his right’ (jus suum). The concept of rights was,
however, at that time embedded in customary law. The Magna Carta was, furthermore, a text
whose purpose was to provide remedies for specific grievances. But it was not a charter of the
rights of Englishmen, still less of human rights.

[ * 1.2 on the liberal revolution is relevant for exam. 1.3 : what was the LoN.]

1.2. Recent roots. Natural rights and the age of liberal revolutions
The concept of natural rights was pervasive in eighteenth-century North America. The Virginia
Declaration of Rights (1776) included specific liberties that were to be protected from state
interference, including freedom of the press, the free exercise of religion, and the right not to be
deprived of freedom except by due process of law.

In 1791 the Bill of Rights was enacted as a set of amendments to the US Constitution
(1787), and included rights to freedom of religion, the press, expression and assembly,
protection against unreasonable search and seizure, the right not to incriminate oneself, and the
right to due process of law. These rights were based on historical precedents, the rights of
Englishmen, but were justified by appeal to natural rights grounded in the laws of God.

The American conception of natural rights at the time of the Revolution did not include the
rights of women and was generally considered compatible with the institution of slavery. It also
offered little protection for the native peoples of the country.

 Women and minorities were not included and thus they don’t fully constitute HR.

On the other hand, the Declaration of the Rights of Man and of the Citizen (1789), in France,
was an act of revolutionary power carried out in the name of the popular will. The Declaration
stated that the preservation of the natural Rights of Man was the aim of every political
association. These rights were those of liberty, property, security and resistance to oppression. It
affirmed equality before the law, freedom from arbitrary arrest, the presumption of innocence,
freedom of expression and religion, the general freedom to do anything that did not harm others,
and the right to property. The rights that it declared were qualified repeatedly by restrictions and
conditions and made subject to the rule of law. This ambivalence between individual natural
rights and the requirements of social order reflected deep ideological differences among the
revolutionaries.

The ideology of the French Revolution was expressed in egalitarian terms. The theoretical
concept of equal rights had, however, to be implemented in a society in which various forms of
inequality existed. During the Revolution economic and social rights – such as those to work,
education and social security – were proclaimed.

But the Declaration did not include everyone. The question of the rights of women was raised,
especially by Olympe de Gouges, who, in 1791, published a Declaration of the Rights of
Woman and the Citizen. The demand for human and civil rights for women was, however,
defeated in the National Assembly, and Olympe de Gouges was guillotined in 1793. Thus
supressing the idea of women's rights. The revolutionaries also abolished slavery, which
Napoleon later soon restored.

Years later, Karl Marx (1818-1883) argued that the Rights of Man were the rights of egoistic
man, separated from the community. The concept treated society as external to individuals and
as a limit on their natural freedom. It purported to be universal, but in fact expressed the
interests of the bourgeois class, and, by emphasizing the rights of individuals, concealed the
structured inequalities of class-based societies. Marxist ideas served as the basis for the
labour movement and the recognition of social rights, such as the right to health care,
education, and work. These rights were recognized in the Mexican Constitution of 1917, the
German Weimar Constitution of 1919, and the Spanish Constitution of 1931.
The fight of suffragettes for gender equality should be highlighted. In 1918, the Representation
of the People Act (United Kingdom) was finally passed meaning some women over the age of
30 could vote. But women would not get the same voting rights as men until 1928.

1.3. League of Nations

The League of Nations, established in 1920 by the Paris Peace Conference that concluded
WWI, was the first worldwide intergovernmental organization with the primary mission of
maintaining global peace. However, its Covenant made no reference to human rights (Rights of
Man).

The League of Nations addressed questions of justice in the colonies, minorities, workers'
rights, slavery, the rights of women and children and the plight of refugees. Nevertheless, the
League turned out to be a practical failure. Only the horrors of Nazism made the world truly
embrace the concept of human rights.

2. AFTER 1945

2.1. The Universal Declaration of Human Rights (1948)

After WWII and the horros of Nazism, in June 1945 the UN was founded. It was set up to
establish a new world order in accordance with the principles upon which the war had been
fought. The Nuremberg Trials were held between 1945 and 1946. And, some years later, the
Genocide Convention (1948) was approved.

With 48 states voting in favour, none against, and eight abstaining (6 communist states, Saudi
Arabia, and South Africa), the General Assembly of UN adopted the Universal Declaration
of Human Rights on December 10, 1948. As a result, while the majority of UN members
supported the proclamation, the majority of those governments were from Europe, North
America, and Latin America, with a small number from Africa and Asia. The Declaration was
draughted with the participation of eight Muslim states. Seven voted in favour of the final text,
while Saudi Arabia did not vote.

The goal of the Universal Declaration of Human Rights was to stop similar crimes to those
carried out by the Nazis from happening again. The preamble’s second paragraph, which
claims that “disregard and contempt of human rights have resulted in barbarous acts which
have outraged the conscience of mankind,” is a particularly good example of this.

By prioritising rights over duties, individual rights over collective rights, civil and political
rights above economic, social, and cultural rights, and by failing to specifically address the issue
of imperialism, the Declaration is said to be biassed towards the West. The Declaration did,
however, incorporate some social and economic rights that had been achieved in a number of
industrialised nations throughout the late 19 th and early 20th centuries, including the rights to
employment, health care, and education.

While directly or indirectly taking part in the egregious human rights crimes, the two primary
Cold War protagonists, USA and USSR utilised the notion of human rights to gain
propaganda points. Midway through the 1960s, plans to enact legally binding human rights
accords were postponed.

Decolonisation, the right to self-determination, and anti-racism were among the new human
rights concerns and issues that the global decolonisation movement brought to the UN in the
1950s and 1960s.

The numerous human rights instruments—conventions, declarations, and resolutions—that

the UN has ratified since its founding constitute its most significant contribution to the defence
of human rights. Together with the Charter’s human rights provisions, these instruments
established the normative framework for the current global human rights movement.

They served as inspiration for the legislative procedures that gave rise to the human rights
regimes in Europe, the Americas, and Africa. They have also had an impact on the legal
standards that international criminal tribunals currently operate under, at least in part.

2.2. Periodization [ * Not in the

exam.]

There are different ways of understanding the history of human rights. Here, it is proposed to
distinguish three periods that have no strict temporal boundaries. In fact, they partly overlap:

A. The Welfarist Stage (40s up to 60s). The idea of HR in the 40s was synonym for the
project of national(ist) welfarism that would be founded on the notion of welfare
citizenship.

The Declaration of Philadelphia (1944) restated the traditional objectives of the

International Labour Organization and branched out in two new directions: the
centrality of human rights to social policy, and the need for international economic
planning.

B. The Anticolonial Stage (50s to mid 70s). UDHR had dropped the commitment to
national self-determination that was encoded in the Atlantic Charter (1941) and the UN
Charter. The greatest proponents of UDHR were the colonial powers at the time.
However, link with previous stage: the globalization of national welfarism from the
Global North over and through the Global South.

Decolonization aims to dismantle oppressive colonial structures, foster economic

and cultural freedom. In this sense, the surge of the anticolonial movement was not
conceived by its leaders as a primarily human rights movement but as a self-
determination movement. Regardless, in two major treaties on HR protection that
emerged in the 60s (International Covenant on Civil and Political Rights and
 International Covenant on Economic, Social and Cultural Rights) self-determination
figures first in the list of enumerated human rights.

Some key examples: Equatorial Guinea (1968) from Spain; Ghana (1957), Nigeria (1960),
Algeria (1962), Kenya (1963), Botswana (1966) and Seychelles (1976) from the British Empire;
Tunisia (1956), Morocco (1956) and Comoros (1975) from France; the Democratic Republic of
Congo (1960) from Belgium; and Mozambique (1975), Cape Verde (1975) and Angola (1975)
from Portugal.

However, in 1948 UN General Assembly established a Jewish State (Israel) in a Palestinian

territory. Until the Declaration of the Establishment of the State of Israel, Palestina was under
the British Empire control. The League of Nations granted Britain a mandate to administer the
territory, with the goal of preparing it for self- government. Since 1984, the State of Israel has
been carrying out a plan to colonize the entire territory.

C. The Humanitarian Stage (late 70s and 80s). This is the period when the Holocaust
memory is actually inscribed in the conceptualization of human rights. Atrocity
consciousness, not welfare promotion begins to animate the practice of human
rights.

Human rights are now seen as individual rights that, primarily, operate as trumps
against abuses of state sovereignty and as the ground of the permissibility of
international intervention. From the ideal of national self-determination, we move to the
ideal of individual self-determination. The 1977 Amnesty International Nobel Prize
made the language of human rights the lingua franca of international justice. This
conceptual transformation coincided in an obscure way with the demise of the welfare
state in the late 70s and 80s and the rise of the neoliberal belief in the power of the free
market (see Thatcherism, Reaganomics, the Chicago Boys).

Today, more than ever in recent times, it is clear that humanitarianism is being called
into question due to the international community's inaction in the face of the genocide
in Palestine.

3. UNIVERSALITY HUMAN RIGHTS AND CULTURAL DIVERSITY

[ * Not in the exam.]

Both historical and cultural approaches are basic to understand properly human rights. As we
seen in Unit 1, human rights are guided by the principle of universality. They prescribe
universal standards in areas such as security, law enforcement, equality, political participation,
and education. It does not mean that a human rights approach supports moral monism, in
other words, that there is only one set of universal, objective moral principles that everyone can
recognise, as well as the most ideal or truly human way of living. This would be related to
ethnocentrism: to judge other cultures or beliefs from one’s own culture. Even might be related
to cultural imperialism: the imposition of a culture’s values, practices and beliefs on another.

Nevertheless, there are two familiar philosophical worries about human rights are that are based
on beliefs and attitudes that are culturally relative and that their creation and advocacy involves
ethnocentrism. Why? Because the peoples and countries of Earth are, however, enormously
varied in their practices, traditions, religions, and levels of economic and political development.

Some people think that moral relativism is the key to solve the point. According to metaethical
relativism, moral judgements are neither objectively true or false, and different people and
societies may have opposing moral opinions without either being incorrect. There are weak and
strong versions of this position. Since moral principles cannot be objectively justified, the strong
version suggests moral scepticism. Practically speaking, this stance leads to a state of moral
chaos and an open-ended environment. There are no universally accepted standards by which to
judge whether a moral assertion is true. Moral arguments will always be specific to a particular
setting, with no chance of reaching universal standards, if metaethical relativism, in the weak
sense, is assumed.

There is an alternative solution: normative relativism. This view claims that every society, just
like every individual person, is entitled to pursue a different moral project and this involves a
genuine decision about what is valuable and what is not. To honour human rights can be and is
part of the moral projects of most human societies. But it may not be part of the moral project of
every human society. In other words, and as opposed to the metaethical relativist, a normative
relativist believes that there is genuine and often objective moral good in letting different
cultural societies choose the moral standards by which they judge an action as right or wrong.

Another position is value pluralism: an intermediate position between monism and relativism.
This position holds that moral values are objectively plural and in conflict. It assumes that a
comparison between two values is not possible. That is, one cannot theoretically assert a
hierarchy between freedom and equality, Isaiah Berlin's topical example, but rather, they are
plural values in conflict (incommensurability). A feasible constructive criticism of this approach
is that pluralists must explain how comparisons between values are made, or defend the
consequence that incommensurability is widespread.

But value incommensurability seems worrying: if values are incommensurable, then either we
are forced into an ad hoc ranking, or we cannot rank the values at all. To try to solve the ethical
problem: Practical Wisdom, or Basic Preferences.

On this matter, it would be intriguing to rebut the criticism of human rights ethnocentrism with
Pareck's pragmatic argument. This author affirms the importance of the 1948 UN Declaration of
Human Rights, which "has become an important part of domestic and international morality
over time". The legitimacy of the text derives from the fact that the declaration is signed by a
large number of governments representing different cultures, geographical areas and political
systems, and that, in addition, people around the world have frequently invoked these principles
in their struggles against repressive governments.

On the other hand, Fernando Flores Giménez states that human rights are asserts that human
rights represent a basic and situated universalism. They are a minimal standard open to
interpretation, adapting to historical and cultural contexts through consensus values. An
important point, human rights have a vindictive and subversive dimension.

Thus, human rights are a seed for resistance and reaction to oppression and injustice.
UNIT 3: Human Dignity

[ Focus on Kant’s definition (1.1); then 1.2 and section 2 regarding the main concepts]

1. HUMAN DIGNITY

1.1. A Very Short Historical Approach

The notion of human dignity (dignitas humana) is often thought to originate in the Judeo-
Christian tradition, which espouses the view that Homo sapiens species was made in the image
of God.

In roman law, dignitas hominis refers to status, that entails honour and respect as well as
privileges and reputation. Human dignity also referred in contrast to animals: reason (human) v.
senses (non-human animal), not only humans but also institutions and state has dignity.

Political theorists in the natural law tradition also emphasized the importance of human
dignity and autonomy. The rights of the individual were theorized as analogous to those of a
national sovereign-both had the right to self-defence. These ideas were developed further during
the Enlightenment, particularly by Immanuel Kant, who grounded human rights in human
dignity construed as autonomy as the capacity for self-legislation. Kant's conception of
human dignity required that people be viewed as ends in and of themselves rather than
merely as means.

Dignity first appeared in national constitutions at the beginning of the twentieth century in
Mexico, Weimar Germany, Finland, Portugal, Ireland, and Cuba. The use of dignity was
sporadic during this time.

After World War II, the concept of human dignity really took hold when it appeared in the
Preamble to the Charter of the United Nations and then in five different provisions of the
Universal Declaration of Human Rights. After the Declaration, many national constitutions
drafted in the post-World War II era included the term dignity. In particular, the German Basic
Law protected dignity in Article 1 and treated dignity as an overarching value of the German
constitutional order. This served as an important model for constitutions in Eastern Europe and
other countries around the world.

1.2. Concept

Dignity is a complex concept. In academic and legal contexts, it is typically used in the couplet
“human dignity” to denote a kind of basic worth or status that purportedly belongs to all
persons equally, and which grounds fundamental moral or political duties or rights. In this
sense, many believe that dignity is a defining ideal of the contemporary world, especially in
western society. However, the concept of dignity has long been associated with many more
meanings, some of which cut in distinctly different directions: rank, station, honour,
uniqueness, integrity, self-respect, self-esteem, a sacred place in the order of things, supreme
worth, and even the apex of astrological significance.
Thus, there is no single, incontestable meaning of dignity. In fact, there are so many possible
meanings that it has become commonplace in the literature to worry about the expansive variety
of conceptions, and in turn to worry whether dignity is or has become essentially ambiguous.

Depending on the social and historical context, dignity could be:

a) Dignity as Gravitas: a grace associated with behavioural comportment, e.g., the

sophisticated manners or elegant speech of nobility, or outward composure in the face
of insult or duress.

b) Dignity as Integrity: the family of ideas associated with living up to personal or social
standards of character and conduct, either in one’s own eyes or the eyes of others.

c) Dignity as Status: noble or elevated social position or rank.

d) Dignity as Human dignity: the unearned worth or status that all humans share equally
(either inherent or constructed).

An inspection of the main human rights documents reveals some points about the current use
of the idea human dignity:

1. The ambiguity of dignity is intended. In the preambles of the great human rights
governance, dignity was included not to express any specific meaning but rather to
serve as a kind of stand-in when the drafters intended to seem philosophical but were at
a loss for words.

2. Dignity as an inherent property of human beings. The first sentence of the Preamble
of the Universal Declaration of Human Rights (UDHR) refers to the “inherent dignity…
of all the members of the human family.” Human dignity to all people equally.

3. Dignity-conferring features. “All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood” (UDHR, Art. 1).

4. As something that can be violated or even destroyed: “one of the most atrocious
violations against human dignity is the act of torture, the result of which destroys the
dignity and impairs the capability of victims to continue their lives and their abilities”
(Vienna Declaration and Programme of Action (1993), Art. 55).

5. Also, as a predicate of collective entities. An example are the references to indigenous

people in the Vienna Declaration. As well as Article 20, calling “all Governments to
take immediate measures and to develop strong policies to prevent and combat all forms
and manifestations of racism, xenophobia or related intolerance”.

6. As a source of global duties to respond to human rights deprivations. Thus, the UN

Millennium Declaration, in its Article 2, says that “in addition to our separate
responsibilities to our individual societies, we have a collective responsibility to uphold
the principles of human dignity, equality, and equity at the global level.”

7. Dignity is a special kind of status. Unlike non-human animals, each human has a kind
of moral status that implies that he cannot be substituted or replaced by other
individuals in a morally relevant sense. This also means "The right to have rights"
(Hannah Arendt). Dignity is characteristic of the collective humanity. This is, any
 human hold dignity because is part of Homo sapiens species, regardless of the
individual capabilities.

8. Most scholars argue that human dignity is closely related to human rights. Firstly,
because it is a ground of human rights. The third sentence of the Preamble of both
ICCPR and ICESCR refer to the recognition “that these rights derive from the inherent
dignity of the human person.”

According to Jürguen Habermas, the "portal" through which the universalistic and
egalitarian core of morality is incorporated into legislation is human dignity. Human dignity
is the conceptual link that binds positive law, democratic lawmaking, and the morality of
treating everyone with equal respect so that their interaction may result in a political system
based on human rights.

According to MacCrudden, certain values appear to be very intimately linked to the

judicial interpretation of the fundamental concept of dignity, regardless of whether it is
applied as a right, obligation, justification, or principle with specific meaning. Especially linked
to freedom from humiliation, such as when limitations are imposed on the dissemination of
data or information that could result in someone being defamed.

2. SOME SKEPTICAL WORRIES OR OBJECTIONS

The conceptual complexity surrounding dignity has sparked a long history of disagreement
about the utility of the concept, with some concluding that it is hopelessly messy or essentially
ambiguous. One of the more cited versions comes from the Yale bioethicist Ruth Macklin, who
made this complaint: “Dignity is a useless concept. It means no more than respect for persons or
their autonomy”.

Exactly how widespread is scepticism of dignity? There is no simple answer to this question
because it depends greatly on what one takes dignity to be. Even defenders of one conception of
dignity often express scepticism about other conceptions.

In summary, dignity would be a helpless or pointless concept because:

a) It is vacuous. For example, consider the first sentence of Article One of the Universal
Declaration of Human Rights: “All human beings are born free and equal in dignity and
rights”. What would be lost, Rosen asks, “if one were just to say, ‘All human beings are
born free and equal in rights’ ?”. The idea of dignity is simply unnecessary.

b) It is ambiguous. The thrust of this frequent complaint is that dignity has become a
useless concept, not so much because it is empty, but because it has too many meanings.
In other words, it is incomprehensible, susceptible to abuse and conceals
objectionable subjective opinion. Especially in relation to certain moral issues such as
abortion, euthanasia, human research, future generations, non-human animals.

c) It is fungible. It has been politically manipulated to capitalize on its deceptive

potential. Thus, Gearty and Moyn argue that the continuing ambiguity of dignity make
it too easily abused in courtroom deliberation and democratic theories of rights.
Rejecting the notion of human dignity only implies the alternative use of different concepts in
different contexts, such as equal status, moral consideration, wellbeing, respect, or free
development of personality, for instance.

3. ANIMAL DIGNITY? [ * Not in the

exam.]

 Adela Cortina says that humans hold dignity and animals only have value. That is,
although other entities may have moral consideration, dignity provides higher moral status to
humans.

 On the contrary, Remy Debes argues that dignity is a qualification to the

“distinctiveness” point, but this is not equivalent to demanding a value that belongs
distinctively to humans.

 Manuel Atienza, in On Human Dignity (Sobre la dignidad humana) explains that “no animal
species can be attributed full dignity, but perhaps the great apes (our closest biological relatives)
can be attributed an incipient dignity or some moral attribute analogous to dignity”.

Some scholars from animal ethics argue that non-human animals hold dignity. Martha
Nussbaum argues that there is a wide range of types of animal dignity, and of what
animals’ need in order to flourish. The fact that so many animals never get to move around,
enjoy the air, exchange affection with other members of their kind —all that is a tragedy, and it
is not a life in keeping with the dignity of such creatures.

In addition, Malanie Challenger affirms the animal dignity. She indicates that much of what
we value is related to being an animal: caring, love, subjective experiences, pain, pleasure,
and emotional relationships. The biggest problem is that humans deny they are animals.

However, most animal ethics scholars prefer to emphasize other moral characteristics,
such as sentience (subjective experiences, such as pain or pleasure) or consciousness. The
debate revolves around the possible degree of moral consideration and whether this moral
consideration is individual (regardless of the species) or collective (usually the species).

Jeramy Bentham hold that the key point is whether or not animals suffer. But animals do not
only feel pain or pleasure, they feel empathy, grief, the security of being close to their clan,
they enjoy playing, they care for each other, they evaluate reality to make decisions, etc.
They feel the life in a subjective way. If we affirm that dignity exists, belonging to a species
does not seem to be a justified reason for not recognizing this special value in other animals.
According to Jonathan Birch, we can understand the animal consciousness in a
multidimensional framework that distinguishes five dimensions of consciousness: perceptual
richness, evaluative richness, integration at a time, integration across time, and self-

consciousness.

Finally, many scholars highlight some struggles to defend the supremacy of (human)
dignity over other animals.

a) A petition of principle/ begging the question or assuming the conclusion: We hold

dignity because of we are humans. We are humans, so we hold dignity…

b) Is group membership an impartial argument? The "argument from species overlap":

If this group membership is due to the fact that the majority have the ability to reason,
what happens to (human) individuals who do not possess that ability?

c) What is really relevant when it comes to protecting human life? Argument of

Relevance: the ethical issue is about the capability of having subjective experiences,
such as pain, pleasure, autonomy, caring for, etc.
UNIT 4: International Protection of Human Rights

1. THE INTERNATIONAL HUMAN RIGHTS SYSTEM

1.1. Introduction

The United Nations (UN) is a multipurpose international organization. According to its Charter
(Art. 1), UN aims

(1) To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace...

(2) To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace;

(3) To achieve international co-operation in solving international problems of an economic,

social, cultural, or humanitarian character, and in promoting and encouraging respect
for human rights and for fundamental freedoms for all without distinction as to race,
sex, language, or religion; and

(4) To be a centre for harmonizing the actions of nations in the attainment of these common
ends.

UN has also been criticized for perceived ineffectiveness and bias. These critical points are very
related to the essence of UN because of (i) states do not want to relinquish their power and
sovereignty and (ii) states have many economical and political interests. Moreover, UN is
composed of 193 member states, each one from different cultural beliefs, ideologies, and
political systems.

UN is far from being ideal, but maybe it is the only way to try to maintain a partial and
imperfect peace and an improvable protection of an international human rights system.

One of the main purposes of UN is to respect and promote human rights. In this sense, there is a
UN system of human rights protection that has two main tasks:

- it develops international human rights and

- it monitors and protects existing human rights.

The development of international human rights depends on how many states ratify – meaning
make a legally binding commitment to – the various treaties. The number varies from treaty to
treaty. Because of this, a number of treaties are almost universal in their legal force, while
others apply in only a few countries. The UN aims for all states to ratify the treaties.

The gradual development of human rights is accompanied by monitoring of whether states

respect those rights in practice. To avoid empty promises, each core treaty has an associated
committee which is tasked with monitoring that contracting parties to a treaty duly comply with
it.
 1.2. International Human Rights Law and International Humanitarian Law

International Humanitarian Law (IHL) and International Human Rights Law (IHRL) are
complementary bodies of international law that share some of the same aims. Both IHL and
IHRL strive to protect the lives, health, and dignity of individuals, albeit from different
angles – which is why, while very different in formulation, the essence of some of the rules is
similar.

Although the aim is the same (protection of civilians), they differ in every other aspect:

APPLICATION:

While IHL applies exclusively in armed conflict, IHRL applies, in principle, at all
times (in peacetime and during armed conflict).

DEROGATION

Unlike IHL, some human rights treaties (IHRL) allow governments to derogate from
certain obligations during public emergencies that threaten the life of the nation.

Derogation must, however, be necessary and proportional to the crisis, must not be
introduced on a discriminatory basis and must not contravene other rules of
international law– including provisions of IHL.

Certain human rights can never be derogated from: among them, the right to life,
the prohibition against torture or cruel, inhuman, or degrading treatment or punishment,
the prohibition against slavery and servitude and the prohibition against retroactive
criminal laws.

EXTRATERRITORIAL REACH:

If a state does not ratify a treaty, the UN cannot act to enforce the human rights protected by
such treaty. This entails that IHRL has limited extraterritorial reach and is usually
controversial.

However, the fact that IHL governing international armed conflicts applies extraterritorially
is not a subject of controversy, given that its purpose is to regulate the conduct of one or more
States involved in an armed conflict on the territory of another. The same reasoning applies in
non-international armed conflicts with an extraterritorial element: parties to such conflicts
cannot be absolved of their IHL obligations when the conflict reaches beyond the territory of a
single State.

This characteristic is also due to the extent of each Law: while IHRL is more extensive and
some States disagree with certain elements (and thus, may chose not to ratify them), IHL is the
bare minimum expected.

SCOPE:

IHL aims to protect persons who are not or are no longer taking direct part in hostilities.
It protects civilians and combatants hors de combat, such as the wounded, the sick and the
shipwrecked or prisoners of war. Human rights Law, developed primarily for peacetime, applies
to all persons within the jurisdiction of a State. Unlike IHL, it does not distinguish between
combatants and civilians or provide for categories of 'protected person'.

BINDING NATURE:

IHL binds all parties to an armed conflict and thus establishes an equality of rights and
obligations between the State and the non-State side for the benefit of everyone who may be
affected by their conduct (an essentially 'horizontal' relationship). IHRL explicitly governs the
relationship between a State and persons who are on its territory and/or subject to its
jurisdiction (an essentially 'vertical' relationship), laying out the obligations of States vis à vis
individuals acrossa wide spectrum of conduct. Thus, IHRL binds only States, as evidenced by
the fact that human rights treaties and other sources of human rights standards do not create
legal obligations for non-State armed groups.

SOURCES OF LAW:

IHL is then often divided into two sections. These are commonly called the Hague law (1899
and 1907 Hague Conventions) and the Geneva law (four Geneva Conventions of 1949 and
Protocols), after the main international treaties containing the applicable rules. According to this
distinction, the Hague law is concerned with regulating the means and methods of warfare
employed by the parties to an armed conflict, while the Geneva law is concerned with
protecting vulnerable parties who find themselves affected by warfare.

IHL regulates the conduct of armed conflict. It is not about how a conflict starts nor about
blame. IHL stipulates what forms of conducts are permissible once the war is ongoing: Ius In
Bello (law in war). On the other hand, the justification of engaging (/starting) armed conflicts is
called Ius ad Bellum (law to war).

IHL is guided by three principles:

 Distinction: to distinguish between civilians and combatants (as well as between

military and civilian objectives).

 Proportionality: prohibits attacks where incidental civilian harm is expected to be

excessive in relation to the anticipated military advantage.

 Precaution: constant care to spare the civilian population from the effects of military
operations.

1.3. Sources of International Human Rights Law

International human rights law, like international law generally, derives from three well-
established “sources”: (1) treaties, (2) customary international law, and (3) general
principles of law. In addition, some scholars believe that (4) UN human rights declarations
and resolutions such as the UDHR may constitute a fourth source, however inchoate, of
international norms. These latter norms, which are typically not fully binding, are sometimes
referred to as “soft law”.
Human Rights Law does have some differences from other areas of international law: it is not
governed, in general, by a principle of reciprocity, but is more ‘unilateral’ in character; it
protects individuals and groups rather than states; it is ‘objective’ and survives changes in
sovereignty.

Accordingly, the special nature of the subject matter of human rights treaties (see section 1.6)
gives rise to a particular approach in relation to their interpretation as multilateral treaties.
Human rights treaties stipulate unilateral rather than reciprocal obligations in the sense that the
obligations of each party to a treaty are independent of other parties’ performance of their
obligations under the treaty, even in the event of one of those other parties’ breach of its
obligations.

In addition, many norms have also evolved, through time, into customary international law.
Customary international law has traditionally been defined as a less formal law among two or
more states that arises from their behaviour and beliefs. In particular, a norm attains the status of
customary international law when (1) there is a consistent practice among states that is
engaged in over some unspecified period of time (State Practise), and (2) states believe that
this practice is legally required (Opinio Iuris).

A third source of international law are general principles of international law. This source has
a shorter pedigree than that of treaties and customary law. It is widely recognized to encompass
general principles that appear in the national legal systems of most nations, such as the
principles of ‘estoppel’ and ‘res judicata’.

Finally, some scholars have maintained that UN declarations and resolutions constitute an
emerging fourth category of international law norms, although they are non-binding texts (soft
law). Anyway, many UN General Assembly declarations and resolutions have exercised
significant influence in global political and legal discourse. In the human rights area, these
obviously include the 1948 UDHR.

1.4. Ius Cogens and Erga Omnes Norms

Many human rights norms codified in treaties or treated as customary legal rules or general
principles of law may have the further distinction of being peremptory, ius cogens norms. These
norms prevail in the case of a conflict with treaty provisions, and it is also generally accepted
that states may not excuse themselves from the obligation to observe these norms even if
they persistently object to them.

The International Court of Justice (ICJ) has identified a number of weighty human rights norms
as establishing erga omnes obligations as “obligations of a State towards the international
community as a whole,” which can be distinguished from typical obligations of a state that
arise “vis-à-vis another State”. It referred to those obligations springing from the outlawing of
genocide, as also from the principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination.

There is a close relationship between ius cogens norms and erga omnes obligations. Indeed,
most if not all jus cogens norms should qualify as erga omnes obligations.

1.5. International Bill of Human Rights

The UN Charter (the founding document of the United Nations) is where the modern history of
human rights development begins. The UN Charter lists "promoting and encouraging
respect for human rights and fundamental freedoms for all without distinction as to race,
sex, language, or religion" as one of its purposes.

Nonetheless, it has been called "a constitution without a bill of rights and with only a mention of
human rights" (sets up the framework but does not list or protect rights in detail). The majority
of its laws pertaining to human rights are primarily promotional or programmatic in nature, and
its allusions to these rights are generally quite few and ambiguous.

This lack of detail / gap was soon fixed. The first outcome of their endeavours was the 1948
adoption of the Universal Declaration of Human Rights (UDHR) by the General Assembly,
which covers simultaneously a large range of economic, social and cultural rights as well as
traditional civil and political rights. This document was the first international document that
systematically set out a wide range of right.

Although itself not binding, it did serve as a springboard (inspiration) for the two principal
international human rights treaties that were opened for signature in 1966 and went into
force in 1976:

- the International Covenant on Economic, Social, and Cultural Rights (ICESCR):

protects traditional freedoms such as life, liberty, fair trial, speech, religion,
participation in government;

- the International Covenant on Civil and Political Rights (ICCPR): protects rights
like work, social security, family life, education, adequate living standards.

The Covenants identify the responsibilities (legal duties) placed on States to respect, protect
and fulfil those rights. [Such wording is important: protect entails that they cannot interfere
with rights; protect that they must stop others from violating such rights; and fulfil implies
taking action to make rights a reality].

 Thus, International Bill of Human Rights is the collective of essential documents: UDHR,
ICESCR, and ICCPR.

The treaty bodies are committees of independent experts that monitor implementation of the 10
core international human rights treaties (see section 1.6), including the ICCPR (the Human
Rights Committee) and the ICESCR (the Committee on Economic, Social and Cultural
Rights). These bodies:

- Review reports submitted by states.

- Issue recommendations.

- Sometimes hear individual complaints (if states accept this procedure).

1.6. International Human Rights Treaties

In addition to the ICCPR and the ICESCR, the UN General Assembly has adopted the text of
numerous more specialized human rights treaties:
 - Beginning with the Convention on the Prevention and Punishment of the Crime of
Genocide (“Genocide Convention”), approved a day before the UDHR, on December 9,
1948.

- In 1965, a year before approval of the ICCPR, the General Assembly adopted the
International Convention on the Elimination of All Forms of Racial Discrimination
(Requires states to eliminate racial segregation and hate speech).

- The General Assembly adopted the Convention on the Elimination of All Forms of
Discrimination Against Women in 1979 (“international bill of rights for women” –
protects women from discrimination in political, economic, social, cultural, and family
life)

- The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment in 1984.

- The Convention on the Rights of the Child in 1989.

- The Convention on the Rights of Persons with Disabilities in 2006.

These treaties bind those states that have ratified them.

Other important human rights-related treaties concluded under UN auspices are the 1951
Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of
Refugees which removed the temporal and geographic restrictions established by the 1951
Convention.

1.7. International Procedures for standard-setting and implementation

The implementation of international human rights legal norms – whether arising from treaty
law, customary law, general principles of law, or “soft law” declarations and resolutions – has
posed major challenges for the international community.

With respect to treaties, implementation of treaty obligations remains problematic. Most

contemporary UN human rights treaties establish a supervisory body composed of independent
experts. That can review reports by states on the measures they have taken to implement their
obligations and sometimes hear complaints of violations by individuals. However, these bodies
can only make recommendations and not issue binding decisions.

The UN Charter created an intergovernmental Commission on Human Rights under the

supervision of the UN Economic and Social Council. However, over the years the
Commission’s work became controversial due to its perceived politicization and marginal place
in the UN system. The Commission on Human Rights was replaced in 2006 by a new Human
Rights Council elected by and reporting directly to the General Assembly, a move intended to
give human rights greater prominence in the work of the UN. In addition, the resolution
establishing the Council inaugurated a “universal periodic review” mechanism under which
all UN member states would undergo regular scrutiny of their human rights record.

The Council each year adopts a number of resolutions, some of which call specific
governments to account for violations of their international human rights obligations. There are
also individuals and bodies that operate under the Council’s supervision, including special
rapporteurs, special representatives, independent experts, and working groups. These
mechanisms are referred to as “special procedures”.

In 1993, the United Nations established the post of UN High Commissioner for Human
Rights. This position was intended to be a high-level focal point for diplomatic efforts to
improve member states’ observance of their international human rights obligations. Holders of
this post have faced the challenge of reconciling their responsibility to call governments to
account for human rights violations with the need to garner support from UN member states for
their human rights promotion activities.

The International Court of Justice (ICJ) which settles disputes between states in accordance
with international law and gives advisory opinions on international legal issues can hear
complaints by one state that another state has violated its legal obligations, including its
obligations under international human rights law.

For example, Bosnia successfully brought an action against Serbia and Montenegro
alleging violations of obligations under the Genocide Convention, which resulted in a
2007 judgment in the 2007 Genocide Convention Case.

Importantly, however, the ICJ, unlike regional human rights courts, has no authority to hear
complaints brought by individual human rights victims. Just for states issues: disputes
between states in accordance with international law and gives advisory opinions on
international legal issues, including some alleged crimes. It can hear complaints by one state
that another state has violated its legal obligations, including its obligations under international
human rights law.

On the other hand, according to Rome Statute, International Criminal Court (ICC) has the
power to prosecute individuals accused of genocide, crimes against humanity, or serious
war crimes. But only if national authorities are unwilling or unable to investigate or prosecute
them.

Proceedings before the ICC may be initiated by the state party, the Prosecutor, or the UN
Security Council. The work of the ICC in particular, has sparked controversy in some
countries, including the USA, China and Israel which still eschew the Court’s jurisdiction by
not having ratified the Rome Statute.

As a last resort, the Security Council has the power under Chapter VII of the U.N. Charter to
order economic or even military sanctions against a state if it determines that the state has
engaged in conduct amounting to a threat to the peace, breach of the peace, or act of aggression.
Certain violations of international human rights obligations might be treated as a “threat to the
peace” or even a “breach of the peace” warranting these sanctions. Indeed, over the last fifty
years the Council has declared that a number of situations including human rights violations
posed a threat to the peace, including the situations in South Africa, Southern Rhodesia,
Somalia, and Darfur. However, the permanent members (USA, China, Russia, the UK, and
France) use the veto to defend their national interests, to uphold a tenet of their foreign
policy or, in some cases, to promote a single issue of particular importance to a state.

Gross human rights violations commonly occur during situations of armed conflict.
International law requires, however, that during wartime, belligerent parties must treat civilians
and other non-combatants humanely  International Humanitarian Law remains applicable.

The first international efforts to hold individuals accountable for serious crimes under
international law were the Nuremberg and Tokyo Trials. In the 1990s and early 2000s,
additional ad hoc international tribunals and courts were established to prosecute individuals
suspected of committing grave international crimes and to prevent impunity for such acts. These
included the International Criminal Tribunal for the former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR), created in 1993 and 1994 respectively
by the UN Security Council under its Chapter VII powers.

2. THE REGIONAL LEVEL OF PROTECTION OF HUMAN RIGHTS

Although the UN has served as the focal point for the negotiation and adoption of many
important human rights treaties, regional organizations have also, since the mid-twentieth
century, sponsored the negotiation and adoption of regional human rights agreements. These
treaties have in turn provided the foundation for sophisticated human rights monitoring systems.

Most notably, the Council of Europe in 1950 adopted the Convention for the Protection of
Human Rights and Fundamental Freedoms (European Convention on Human Rights). That
treaty establishes a European Court of Human Rights (ECHR). Over the last six decades, the
Convention and the Court have come to exercise significant influence in Europe. The Court’s
caseload has expanded immensely, and it has become, in effect, the court of last resort for
European citizens who believe their rights have been violated.

Furthermore, the European Union, in order to make human rights a greater focus of its own
activities, adopted in 2000 the Charter of Fundamental Rights of the European Union,
which became binding European Union law under the Treaty of Lisbon, which entered into
force in 2009, applying to cases heard by courts across the EU, including the Court of Justice
of the European Union (CJEU).
 It is pertinent to emphasize that the Convention for the Protection of Human Rights and
Fundamental Freedoms (and European Court of Human Rights) are different from
Charter of Fundamental Rights of the European Union (Court of Justice of European
Union), because they have different members and different roles.

The Council of Europe is a broader, older organization focused on democracy, human

rights, and the rule of law across Europe with a wider membership, while the European
Union (EU) is a narrower economic and political union of 27 member states that creates
and enforces its own laws and currency. Do not confuse the Council of Europe and
Council of the European Union (or European Council):

Council of the
Feature Council of Europe European Council
European Union
1974 (formalized 1992,
Year Founded 1949 1957 (Treaty of Rome)
Treaty of Maastricht)
46 European states Ministerial
Heads of State /
Members (includes non-EU representatives of the
Government of EU states
countries) 27 EU member states
Adopt EU laws and Set the EU’s overall
Promote democracy, human
Main Role coordinate national political direction and
rights, and rule of law
policies priorities
Court of Justice of the
Key Institutions European Court of Works with other EU
European Union
/ Court Human Rights (ECHR) institutions (no court)
(CJEU)
European Convention on EU law (Treaties and EU law (policy-level
Legal System
Human Rights legislation) decisions)
Binding / Not Binding on ratifying states Binding on all EU Generally, not binding
Binding (via conventions) member states (issues political guidance)
The Organization of American States (OAS) also established a human rights system in the
post-war years, founded on the 1948 Declaration on the Rights and Duties of Man, adopted the
same year as the UDHR. That system includes an Inter-American Commission on Human
Rights. In 1969 the OAS adopted the American Convention on Human Rights. The
Convention established an Inter-American Court of Human Rights, whose influence is
growing.

Moreover, in 1981 the African Union adopted the African (Banjul) Charter on Human and
Peoples’ Rights. A 1998 Protocol to the Charter established an African Court on Human and
Peoples’ Rights, whose judges were first elected in 2006.

3. THE DOMESTIC PROSECUTION OF HUMAN RIGHTS ABUSES

3.1. States and Human Rights Violations

The concept known as the “the rule of law” retains a cherished place in democracies around the
world. Without a system of laws and institutions that protect the rights of citizens against abuse
and mistreatment, victimizers act with impunity, and nations experience widespread violations
of fundamental human rights.

Thus, states must prosecute those responsible for human rights violations, not only to redress
wrongs done to victims, but also to combat impunity and deter future crimes and to maintain the
legitimacy of the rights that were violated, as well as the state itself.

3.2. Universal Jurisdiction

Universal jurisdiction refers to the assertion of a domestic (national) judicial authority

over crimes regardless of the place where the crimes occurred or the nationality of the
criminals or victims. It applies to the most egregious crimes under international law such as
piracy, torture, war crimes, crimes against humanity, and slavery.
Universal jurisdiction holds the promise of a system of global accountability (to avoid
impunity) – justice without borders administered by national courts. Indeed, the Rome Statute –
which describes the duty of every state to exercise its criminal jurisdiction over those
responsible for international crimes – has led many states to improve their legislation
concerning universal jurisdiction. It is a very controversial jurisdiction, because of political and
economic reasons.

Spain was a great example in the application of universal jurisdiction (e.g., the case of the
Guatemalan genocide, or "death flights" during the Argentine dictatorship). However, some
reforms were introduced in 2009 and 2014 that significantly restricted universal jurisdiction in
Spain (because of political reasons). In fact, universal jurisdiction is now practically
unenforceable.
UNIT 5: Civil and Political Rights

1. INTERNATIONCAL COVENANT ON CIVIL AND POLITICAL RIGHTS

On December 16, 1966, the UN General Assembly adopted the International Covenant on Civil
and Political Rights (ICCPR), which came into effect on March 23, 1976. The Covenant has
been approved by 173 parties thus far. China is one of six other nations that have signed but
not ratified it.

The Covenant, one of the fundamental UN human rights treaties, converts some human rights
into a legally binding agreement. The convention aims to improve conditions inside states for
the enjoyment of civil and political rights, based on the inherent dignity of every human
being.

NOTE: The UN intended for the Universal Declaration's provisions to be legally binding under
a single comprehensive human rights treaty. However, Western States were successful in
demanding two distinct Covenants with different State duties, as well as various monitoring
organisations and procedures, in the early years of the Cold War. They argued the economic,
social, and cultural rights of the "second generation" were only regarded as "programme
rights," while the civil and political rights of the "first generation" were the only true human
rights that could be immediately guaranteed and put into effect through legal processes.

With the exception of the collective right of peoples to self-determination (Article 1 – in

both Covenants), which is listed in a separate ‘Part I’ and which according to the case law of the
Human Rights Committee is not subject to monitoring by means of individual complaints,
the Covenant only guarantees individual rights enumerated in Part III:

- right to life (Article 6),

- prohibition of torture and inhuman prison conditions (Articles 7 and 10),
- prohibition of slavery (Article 8),
- right to personal liberty and security, including prohibition of detention for debt
(Articles 9 and 11),
- freedom of movement and protection of aliens against arbitrary expulsion (Articles 12
and 13),
- procedural guarantees in civil and criminal trials including prohibition of retroactive
criminal laws (Articles 14 and 15),
- recognition of legal personality (Article 16),
- privacy (Article 17),
- freedom of thought, conscience, religion and belief (Article 18),
- freedom of opinion, expression and information, including the prohibition of
propaganda for war and advocacy of hatred (Articles 19 and 20),
- freedom of assembly, association and trade unions (Articles 21 and 22),
- rights of marriage, the family and the child (Articles 23 and 24),
- political rights (Article 25),
- equality (Article 26), and
 - rights of persons belonging to minorities (Article 27).
Most of the corresponding rights listed in the Universal Declaration are included in and
expanded upon in the Civil and Political Rights Covenant. It includes other rights like the right
to self-determination and specific cultural rights for linguistic, religious, and ethnic minorities,
but it excludes the right to asylum and the freedom to have property.

As we saw in the unit 4, the Human Rights Committee is the body of independent experts
that monitors implementation of the ICCPR by its States parties. The Committee, which is
made up of impartial human rights specialists, evaluates conformity using member reports—
typically presented every four years—and renders conclusions based on the performance of the
nation. Furthermore, the Human Rights Committee occasionally publishes General Comments
that offer interpretations of the duties outlined in the treaty, these aren’t legally binding but do
carry significant moral and interpretative authority (guiding States in implementing the
Covenant, but also Courts and institutions in interpreting human rights standards).

From a historical perspective, the phrase “civil rights” emerged in the United States. It is
generally understood as referring to various “non-discrimination rights” created by the federal
“Civil Rights Acts” of the 1960s through the 1990s. Those rights, themselves the product of
the civil rights movement of the 1960s, aim to protect all North Americans against adverse and
discriminatory actions that might otherwise be taken against them on the basis of race, sex,
religion, ethnicity, disability, and age in various spheres of social life, including employment,
housing, banking and credit, public accommodations, education, and voting.

In contemporary usage, the phrase “civil rights” is a broad concept. In addition to

antidiscrimination rights, and rights to the equal protection of laws, rights against police
brutality and other unconstitutional actions taken by state officials are also now widely regarded
as civil rights.

More aspirationally, there are also various movements for the enactment of new law that might
create rights that don’t currently exist, but that would broadly protect human welfare, such as
rights to social welfare, a clean environment, to privacy, or to safety against gun violence are
sometimes understood as aiming for “civil rights.

2. THE FALSE DICHOTOMY BETWEEN NEGATIE AND POSITIVE RIGHTS

It is often assumed that certain human rights (economic, social or welfare, and cultural rights)
require the government to do something, while others (such as civil and political rights) require
the government to refrain from doing something. This distinction is traditionally expressed in
terms of positive and negative rights, respectively.

According to this view, positive rights impose obligations on the state to take active measures.
Governments must adopt policies, create programs, and allocate resources to ensure that these
rights are effectively realized (hands-on approach to ensure that guaranteed positive rights are
accessible to the rights-holders). Because of this, positive rights are often seen as imposing a
heavier economic burden on the state, given their dependence on public expenditure and
administrative action (requiring that resources be allocated in specific ways and with limited
flexibility).
However, this dichotomy is false, or in the very least, quite excessive. So-called negative
rights (such as security, access to justice, or the exercise of political rights) can entail
considerable costs for the public treasury – similar to those of social programs – which
demonstrates the intervention of the State in their maintenance.

Guaranteeing access to justice, for instance, necessitates the construction and maintenance of
courthouses, the employment of judges and legal staff, and the provision of materials and
administrative systems. Likewise, ensuring public security involves training and funding police
forces, maintaining prisons, and upholding due process—all of which are costly state
interventions. This without including that defence, the military, public order and safety… are a
huge part of national budgets (we are talking millions).

Moreover, human rights are interdependent and indivisible. The effective enjoyment of one
right often depends on the realization of others. For example, access to education can strengthen
the protection of civil and political rights by empowering individuals to participate fully in
democratic life. Conversely, the protection of security and justice can help create the stable
environment necessary for the fulfilment of social rights.

In this sense, all rights contain both positive and negative dimensions, and their realization
invariably demands some degree of state action and resource commitment. The distinction,
while conceptually useful in some contexts, ultimately obscures the complex and
interconnected nature of human rights obligations.

3. CITIZENSHIP IN RELATION TO CIVIL AND POLITICAL RIGHTS

Free and equal citizens in a modern society enjoy rights to both public and private
autonomy. Each citizen must have rights securing their freedom to participate in the formation
of public opinion and in society’s collective decisions (public autonomy), as well as rights
guaranteeing their freedom to decide what way of individual life to pursue (private autonomy).

The importance of these two dimensions of modern citizenship derives from what John Rawls
calls “the two moral powers” of personhood: the capacity to have and act from a sense of
justice and the capacity to hold, revise, and act from a conception of the good.

 Persons stand as free and equal citizens when their society and political system accord equal
and due weight to the interest each one has in the development and exercise of their own moral
powers.

Citizenship is a fundamental element of human security. As well as providing people with a

sense of belonging and identity, it entitles the individual to the protection of the state and
provides a legal basis for the exercise of many civil and political rights.

People who lack a nationality may find it difficult or impossible to engage in a range of
activities that citizens take for granted. If an individual is to enjoy the automatic right of
residence in a country, carry a passport and benefit from diplomatic protection while abroad,
then citizenship is indispensable. In many situations, nationality also enables people to find
employment, to make use of public services, to participate in the political process and to have
access to the judicial system. Thus, nationality and citizenship may be a limit the exercise (or
to be entitled) of civil and political rights.

Citizenship provides the legal connection between individuals and the state, and thus serves as
the basis for the realization and enjoyment of all other rights. It is therefore not surprising that
stateless people have in many instances been denied those rights and have been obliged to live
in conditions of acute legal, physical and psychological insecurity.

4. CRITIQUES OF THE MODERN CONCEPTION OF CIVIL RIGHTS

The standard idea of civil and political rights fails to consider the roots of oppression and
social inequality, as well as the impact of economic ideologies on the exercise of these rights.
Therefore, this standard conception often turns ‘hollow’ and merely ‘formal’, lacking
substantial content.

On the other hand, several contemporary, 21 st-century, civil rights movements (and the
contemporary understandings of “civil rights” those movements imply) are not fully captured
by even an expansive conception of the antidiscrimination principle.

For instance, the “environmental justice” movement, that aims to expose and rectify the
disproportionate environmental harms borne by Black, Indigenous, and low-income
communities, directly challenges this narrow conception of civil rights. It argues that the
protection of civil rights must extend beyond formal equality to address the structural and
material conditions that shape people’s lived experiences. The movement suggests that
achieving genuine equality sometimes requires laws and policies that intentionally and
disproportionately benefit historically disadvantaged groups. In this sense, a new generation of
“civil rights” measures would not only impact but also affirmatively favour marginalized
communities—indeed, they almost certainly must, if justice is to be substantive rather than
merely formal.  Here we come back again to the concept of “equity” rather than “equality”
to achieve true justice.

However, as some scholars argue, the essence of civil rights in all these cases lies not merely in
the right to be free from discrimination or to enjoy the protection of existing laws, but rather in
the right to a flourishing and dignified life.

5. RIGHT TO LIFE

5.1. Introduction

The right to life, as it is known, does not ensure that people will live. Instead, it guards against
life deprivation brought on by governmental action or as a result of its inaction. The right
to life is non-derogable, yet it is not absolute during public emergencies.
Three exceptions to the rule that forbids taking human life are provided under treaty law:

A. Killing by a state agents cannot be characterised as a violation of the right to life is

the lethal outcome is a unavoidable in circumstances of self-defence, defence of
others, or any other legitimate or proportional police action that, although not intended,
result in death.

B. Killing in the context of armed conflicts are permissible if they are compatible with
the requirements set out in international humanitarian law. For instance, a military
target with precautions to minimize civilian harm, and any incidental harm must be
proportionate to the concrete military advantage sought.

C. Execution of death sentence imposed by a fair trial in a state where capital

punishment has not been abolished does not constitute a violation of human rights if
certain specific procedural and substantive conditions are met.

5.2. Death Penalty

However, Amnesty International holds that the death penalty breaches human rights, in
particular the right to life and the right to live free from torture or cruel, inhuman or degrading
treatment or punishment. Both rights are protected under the Universal Declaration of Human
Rights, adopted by the UN in 1948.

Over time, the international community has adopted several instruments that ban the use of the
death penalty, including the following:

- The Second Optional Protocol to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty.
- Protocol No. 6 to the European Convention on Human Rights, concerning the abolition
of the death penalty.
- Protocol No. 13 to the European Convention on Human Rights, concerning the
abolition of the death penalty in all circumstances.
- The Protocol to the American Convention on Human Rights to Abolish the Death
Penalty.

There are several reasons to abolish the death penalty:

a) it is irreversible and mistakes happen,

b) it does not deter crime,
c) c) it is used as a political tool by populism, and
d) it is discriminatory, because the weight of the death penalty is disproportionally
carried by those with less advantaged socio-economic backgrounds or belonging to a
racial, ethnic or religious minority.

5.3. Abortion

The Human Rights Committee's (UNHRC) General Comment 36 on abortion places all of the
emphasis on the mother's life and well-being, not the foetus'.

Therefore, it cannot be used to forbid abortion or provide protection for the unborn. Rather,
states must "ensure that women and girls do not have to undertake unsafe abortions,"
according to the Comment. In carrying out this responsibility, the UNHRC enumerates several
desirable actions, all of which are qualified by the word "should." States "should not... apply
criminal sanctions against women and girls undergoing abortion or against medical service
providers assisting them in doing so, since taking such measures compel[s] women and girls to
resort to unsafe abortion," for instance.

As Amnesty International argues:

“in places where abortion is stigmatised, criminalised or restricted, people are

forced to resort to unsafe abortions. It is estimated that 25 million unsafe abortions
take place every year, the vast majority of them in developing countries, and can lead to
fatal consequences such as maternal deaths and disabilities. All people have a right to
bodily autonomy which is another reason why anyone who can become pregnant
should be able to get an abortion. However, many people, especially those from
historically marginalised communities, face social, economic and political conditions
which hinder their ability to exercise reproductive autonomy”.

In relation to the possibility of sentience (consciousness) of the foetus, as Jonathan Birch

affirms “the point at which a human foetus becomes sentient is not the point at which abortion
becomes morally impermissible. We should separate these issues. The ethics of abortion
depends primarily on questions of personhood and bodily autonomy, not on questions of
sentience.” Anyway, human foetuses are sentience candidates from the 16 week or further (20-
24 week), whereas, in Spain as an example, the voluntary termination of pregnancy may be
performed at the request of the woman without justification up to the 14 weeks of gestation.

5.4. Assisted Suicide or Active Euthanasia

The UNHRC appears to imply support assisted suicide in General Comment 36. It offers advice
to "States parties that permit medical practitioners to administer medical care or the
medical means to facilitate the termination of life of afflicted adults, such as the terminally
ill, who experience severe physical or mental pain and suffering and wish to die with
dignity."

The inclusion of such instructions suggests that states' permission of assisted suicide and
facilitation of life termination under specific conditions does not in and of itself constitute a
violation of Article 6. To guarantee that the relevant person's consent is "free, informed,
explicit, and unambiguous," the following guidance requires strict precautions.

It is interesting to note that the UNHRC does not appear to limit access to assisted suicide
regimes under Article 6 to people who have a terminal disease, which is used as an apparent
non-exhaustive example of such regimes. Although the reference to "afflicted adults" alone may
exclude the applicability of such regimes to minors, it is also not stated explicitly that such
regimes must be restricted to adults.

5.5. Socioeconomic Aspects of the Right to Life

According to the UNHRC, Article 6 entails significant socioeconomic responsibilities. Living

(and not dying) is simply one aspect of Article 6; another is leading a "life with dignity."
Therefore, "States parties should take appropriate measures to address the general
conditions in society that may give rise to direct threats to life or prevent individuals from
enjoying their right to life with dignity."

The UNHRC lists a wide range of "general conditions in society" that states should address.
These include social housing conditions, life-threatening diseases, traffic and industrial
accidents, gun violence, and emergency response operations. Article 6 entails duties "to
preserve the environment and protect it against harm, pollution, and climate change caused by
public and private actors," as the UNHRC affirms later in the General Comment.

This aspect is related to Article 24 UDRH: ‘Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family, including food, clothing,
housing and medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control’. This right is usually classified as a Economic, Cultural and
Culture right.

6. FREEDOM TO SPEECH AND HATE SPEECH

In common language, “hate speech” refers to offensive discourse targeting a group or an

individual based on inherent characteristics (such as race, religion or gender) and that may
threaten social peace.

To provide a unified framework for the United Nations to address the issue globally, the UN
Strategy and Plan of Action on Hate Speech defines hate speech as…

“any kind of communication in speech, writing or behaviour, that attacks or uses

pejorative or discriminatory language with reference to a person or a group on the
basis of who they are, in other words, based on their religion, ethnicity, nationality,
race, colour, descent, gender or other identity factor.”

The need to preserve freedom of expression from censorship by States or private

corporations’ is often invoked to counter efforts to regulate hateful expression, in particular
online.

Freedom of opinion and expression are, indeed, cornerstones of human rights and pillars
of free and democratic societies. These freedoms support other fundamental rights, such as to
peaceful assembly, to participate in public affairs, and to freedom of religion. It is undeniable
that digital media, including social media, have bolstered the right to seek, receive and impart
information and ideas. Therefore, legislative efforts to regulate free expression
unsurprisingly raise concerns that attempts to curb hate speech may silence dissent and
opposition.

Alongside the relevant international human rights law provisions, the UN Rabat Plan of Action
provides key guidance to States on the difference between freedom of expression and
“incitement” (to discrimination, hostility and violence), which is prohibited under criminal law.

Determining when the potential of harm is high enough to justify prohibiting speech is still the
subject of much debate. But States can also use alternative tools – such as education and
promoting counter-messages – to address the whole spectrum of hateful expression, both on and
offline.

The differences between the US and EU hate speech regimes are striking, largely for
historical reasons.

- The First Amendment to the US Constitution provides almost absolute protection to

freedom of expression.

- By contrast, European and EU law curtails the right to freedom of expression:

Article 10 of the European Convention of Human Rights, which applies to all EU

Member States, states that freedom of expressions 'carries with it duties and
responsibilities'

In a democratic society, restrictions may be imposed in the interest, among others, 'of national
security, territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others'. EU
legislation criminalises hate speech that publicly incites to violence or hatred and targets a
set of protected characteristics: race, colour, religion, descent or national or ethnic origin.

Still, legislation in EU Member States varies widely, many having extended protection from
hate speech to additional characteristics.
UNIT 6: Economic, Social and Cultural Rights

Two questions can be asked

from this topic:

(1) The dichotomy

between civil and
political rights
(negative rights)
versus economic,
social, and cultural
rights (positive
rights).

(2) Make a summary of

the unit.

1. INTRODUCTION

It has been asserted that economic, social and cultural rights constitute a 'second generation' of
human rights, the first generation being civil and political rights. And with a later addition of a
third generation of ‘solidarity rights’, such as the right to self-determination and the right to
development.

This notion of three generations, which was first put forward by Karel Vasak in 1979,
appeared quite suggestive and has been repeated by many, but not without objections. The
history of the evolution of human rights at the national level does not make it possible to
place the emergence of different human rights into clear-cut stages (this neat division into
“generations” doesn’t match historical reality).

 Efforts to do so would, in any case, make it necessary to distinguish also between civil and
political rights, since the political rights were accepted as human rights much later than some of
the civil rights (*). Even later than economic and social rights in some countries.

* Some civil rights (like property rights or freedom from arbitrary detention) appeared
early in history. But some political rights (like the right to vote) were recognized later,
and in some cases after certain economic or social rights (like access to education or
social security) were introduced.

Additionally, during the French Revolution (1789) — and the Declaration of the Rights of Man
and of the Citizen — both civil/political and economic/social ideas were present. Ideas about
welfare, work, and social justice emerged along freedom and equality before the law. So,
historically, it’s wrong to treat civil/political rights as “first” and economic/social rights as
“second.” They coexisted and often developed side by side.

Thus, the main objection to this notion is it risks implying a hierarchy, where civil-political
rights are seen as more fundamental or more “mature” than economic-social ones.
This is not to deny that there are some significant differences of emphasis between the typical
civil rights and some of the economic, social and cultural rights. Much of it revolves around the
perceived role of the state. The main emphasis regarding civil rights is on freedom from state
interference, whereas a major element regarding economic, social and cultural rights is the
claim on the state for protection and assistance. It may therefore appear that civil rights incur
only passive obligations of abstention from the state, whereas economic, social and cultural
rights require active measures by the state.

It is a well-known fact that economic, social and cultural rights are surrounded by controversies
both of an ideological and technical nature. To some, they are not true rights at all, while others
may even accord them priority over civil and political rights.

The field of economic, social, and cultural (ESC) rights is growing at a fast pace. Scholars
and advocates around the world are increasingly focusing their energy and attention on
poverty eradication, sustainable development, dignity, and their realization through the
implementation of the rights to housing, education, food, water, health, social security, work,
and culture.

At the United Nations (UN) and in regional and national human rights systems, new
mechanisms have been established to monitor implementation of these rights. As judges
and lawyers are being asked to address more legal claims related to these rights, and as non-
governmental organizations (NGOs) and UN agencies expand their programs in these areas,
universities and professional trainers are responding to the demand by introducing courses to
train lawyers, development workers, policymakers, and diplomats in these 2 areas. These
activities have culminated in the adoption of the Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights (ICESCR) in December 2008 and its
entry into force in May 2013. For the first time, individuals and groups can bring complaints
about violations of ESC rights before the treaty monitoring body of the Covenant, namely the
UN Committee on Economic, Social and Cultural Rights (CESCR). This significant
development also forges an optimistic view about the future clarification and development of
aspects of the ESC rights that hitherto were controversial.

On the other hand, the project of ESC rights is saddled with serious, sometimes persistent and
emerging challenges that first relate to its structural/institutional approach to human rights
realization, hinged largely but not exclusively upon economic issues.

Part III of ICESCR guarantees:

 The rights to employment, fair working conditions, and trade union rights are all
included in economic rights (Articles 6 to 8).

 The group of social rights (Articles 9–12) includes the following: the right to social
security; the right to protection of the family, women, children, and youth; the right to a
reasonable quality of living, which includes, in particular, the right to food, clothing,
and shelter; and the right to health.

 Cultural rights include the right to universal basic education, the freedom to
participate in cultural life, and the right to benefit from scientific progress (Articles 13
to 15).
Importantly, we need to highlight poverty as a key issue as it affects the rest of rights: health,
working, education, sanitation, liberty, equality, ... In other words, to the right to an adequate
standard of living.

Poverty is not just about a lack of income — it’s a multidimensional condition that affects
a person’s ability to enjoy all human rights. When people live in poverty, their access to
essential goods and services (like food, housing, health care, and education) is restricted, which
in turn limits their ability to exercise even their civil and political rights.

For example:

- A person struggling to survive may not have the time, means, or freedom to participate
in public life or political processes. [Or get an education that allows them to make an
informed decision / exercise their right.]
- Poor health and malnutrition can prevent people from working, studying, or even
exercising autonomy.
- Lack of sanitation and housing can undermine human dignity, a foundational human
rights principle.

The Universal Declaration

of Human Rights (UDHR),
in Article 25, explicitly
recognizes the right to an
adequate standard of living.
This includes:

“food, clothing,
housing and medical
care and necessary
social services, and
the right to security
in the event of
unemployment,
sickness, disability,
widowhood, old age
or other lack of
livelihood.”

This right is also enshrined

in Article 11 of the
International Covenant on
Economic, Social and
Cultural Rights (ICESCR).
So, when we talk about poverty, we’re not only discussing an economic issue — we’re
addressing a violation or denial of this fundamental right. Ensuring an adequate standard of
living is the foundation upon which other rights can be realized.

This also relates to the interdependence of rights: HR are indivisible, interdependent, and
interrelated. This means: if the right to housing or education is denied, it affects one’s ability to
enjoy equality, freedom of expression, or political participation. Poverty undermines not only
economic and social rights, but also civil and political rights — for example, through exclusion,
marginalization, or lack of representation.

2. CIVIL AND POLICTICAL RIGHTS VS. ECONOMIC, SOCIAL AND

CULTURAL RIGHTS

If human rights are "universal, indivisible, and interdependent and interrelated", they must be
treated fairly, equally, and with equal attention by the international community everywhere.

The traditional position regarding the different legal nature of these rights and, consequently,
the different kinds of obligations that they generate for States is evident in the fact that both
types of rights (those Karel Vasak refers to as "first and second generation") were the subject of
two distinct international treaties, while they were united in the Declaration.

According to this view, Civil and Political rights:

- generate ‘absolute’ and immediate obligations for States,

- fundamentally imply an “obligation to refrain from doing something” (prohibition of

torture, of arbitrary deprivation of life, of interference in peoples’ private lives, etc) –
which would correspond to the idea of negative rights – and

- are justiciable, providing individuals with a remedy against violations

However, Economic, Social, and Cultural rights:

- generate ‘relative’ obligations (States commit to adopt measures, to the maximum of its
available resources, for the progressive realisation of these rights);

- fundamentally imply “a duty” (positive social benefits), dependent on the resources of

each State; and

- are not justiciable, so individuals are not provided with effective legal remedies in the
event of a violation.

Negative and positive rights are the first and most often cited distinction. It is commonplace to
think that some human rights (welfare rights or social rights) describe the activities that the
government must do, while other human rights (liberal rights or civil and political rights)
describe the activities that the government must not do. This distinction is described by the
ideas of positive and negative rights, respectively.

Based on this logic, positive rights require the government to act in certain ways: the
government must take a hands-on approach to ensure that guaranteed positive rights are
accessible to the rights-holders. Positive rights therefore place a heavy (economical) burden
on the government by requiring that resources be allocated in specific ways, and with limited
flexibility.

But this dichotomy is false or, at least, quite excessive. The so-called negative rights (such as
security, access to justice, equality, or the exercise of political rights) can entail considerable
costs for the public treasury, similar to those of social programs. Then, the intervention of the
State in their maintenance would be comparable. For instance, it is necessary to build and
maintain infrastructure, as well as pay many salaries and materials. See Unit 5 (Section 2).

According to some scholars, the obligations arising from civil and political rights are more
precisely defined, more readily justiciable (subject to legal action), and more easily enforceable
than those associated with economic, social, and cultural rights.

3. THE MINIMUM CORE

A customary view amongst legal scholars and human rights practitioners holds that a just society
ought to guarantee social and economic rights in recognition of its commitment to social equality.
Human rights law plays a key role in identifying central concepts that guide the determination of
what social rights, presumed to be applicable to all states, precisely entail.

This determination includes deciding which social or economic goods are given rights status and
setting the precise level of the obligations states have in order to respect or promote these
goods. To assist this endeavour, the 1966 International Covenant on Economic, Social and Cultural
Rights (ICESCR) and subsequent documents from the United Nations Committee on Economic and
Social Rights proposed the notion of a ‘minimum core’ as a way to establish the minimal legal
content of social rights, as well as the related notions of ‘progressive realization’ and ‘non-
regression’ to guide how to determine the correlated state obligations (ICESCR, Art. 2). The
minimum core concept purports to advance a baseline of socioeconomic protection across varied
economic policies and vastly different levels of available resources.

The CESCR Committee—the supervisory body responsible for clarifying the terms and
implementation of the Covenant—issued its General Comment No 3 on the minimum core at an
auspicious moment: shortly after the 1989 collapse of the communist economies and shortly
before those advocating neoliberal policies raced in to restructure them. Since then, the
Committee has used the "minimum core" to give substance to the Covenant's enumerated rights
to food, health, housing, and education, and the emerging right to water.

Commentators have proposed the minimum core as the concept to guide the interpretation of
the economic, social and cultural rights protected in other international human rights
instruments. The Committee has also applied the minimum core, not only to its supervision of
national systems of political economic organization, but also to its supervision of states
parties' individual (and collective) activities in global trade, aid, development, and security
regimes.

4. PROGRESSIVE REALIZATION

Civil and political human rights are generally interpreted as imposing obligations of
‘immediate effect’. By contrast, the rights set out in the ICESCR are subject to a doctrine
of ‘progressive realization’ that enables them to be complied with over time in light of
available resources. Given the resource and knowledge restraints faced by many countries, the
International Covenant on Economic, Social, and Cultural Rights recognizes that the fulfilment
of economic and social rights can only be achieved over time and calls for the progressive
realization of ESCR.

The doctrine of progressive realization concerns the gradual implementation of non-core

obligations until the right is fully realized. Minimum core obligations, by sharp contrast, are the
sub-set of obligations associated with economic, social and cultural rights that must be
immediately complied with in full by all states. Minimum core obligations, so understood, are
obligations of ‘immediate effect’ to which the doctrine of ‘progressive realization’ is
inapplicable.

Progressive realization of ESCR does not mean that governments have no obligations until a
certain level of economic development is reached, but rather that there will be continual
progress on the status of these rights and therefore states should take deliberate steps
immediately and in the future towards the full realization of ESCR. Governments must take
immediate steps within their means (available resources) towards the fulfilment of these rights.

5. NON-REGRESSION

Since 1991 there has been a doctrine (the doctrine of non-regression or non-retrogression)
attached to the ICESCR for the purpose of regulating reductions in socioeconomic rights
protection.

The fullest statement of the doctrine is in the General Comment on the right to social
security. There, the CESCR required States that wished to reduce rights protection (to take a
retrogressive step) to prove that the measures are duly ‘justified by reference to the totality of
the [ICESCR] rights’, and that the maximum available resources are being used. The non-
regression doctrine is central to states’ implementation of the obligation of progressive
realization of economic and social rights. It prohibits states from taking deliberately
retrogressive measures but also grants significant flexibilities to States. Where States parties
find themselves unable to progressively realize the rights, it is open to them to prove the need
to take ‘backwards steps’.

Regressive steps include all of those acts, of omission or of commission on the part of the state,
which deprive people of rights that they used to enjoy. States should refrain from cutting
subsidies for essential goods such as food, water and energy if they will cause undue hardship
on people. Reducing spending on education, health care or other social services are a
violation of ESCR unless the state can prove that they do not have the necessary resources.

In May 2012, the UN Committee on Economic, Social and Cultural Rights (CESCR) released
an Open Letter addressing the financial and economic crises.

The Letter acknowledged that emergencies may require some adjustments in how states
fulfil their ESCR obligations. Suggested a more flexible approach during crises —
“accommodating” emergencies — rather than expecting full compliance exactly as in
normal times.

Many experts say that the 2012 “Letter to States” changed the CESCR’s approach. Before, the
Committee treated normal times and emergencies the same under non-retrogression. After the
Letter, it allows some flexibility during emergencies, letting states temporarily reduce
obligations in a more limited way.

Although the Letter is not legally binding (can be understood as soft law), courts and other
decision-makers would probably treat it as an important guide for understanding ICESCR
obligations.

Such a change in the CESCR’s approach is relevant in situations of economic, security or public
health crisis, or as a result of natural disaster.

Under minimum core obligations, a state must immediately provide essential healthcare
services and medicines, such as vaccinations for children, treatment for HIV/AIDS, or access to
maternal healthcare. Progressive realization allows the state to gradually expand healthcare
over time, for example by building more hospitals, training additional doctors, or offering
specialized treatments like cancer care as resources allow. Non-retrogression ensures that the
state cannot remove the essential services already guaranteed—such as stopping routine
vaccinations or closing primary care clinics—even during economic crises or budget cuts,
thereby protecting the most vulnerable while working toward full realization of the right to
health.

6. JUDICIALLY ENFORCING SOCIAL RIGHTS

Many writers include the element of enforceability in their definition of legal rights,
because the notion of rights entails a correlative duty on the part of others to act or refrain
from acting for the benefit of the rights-holder.

Unless a duty (for example, of compensation) is somehow enforced, it risks being seen as a
voluntary obligation that can be fulfilled or ignored at will. Judicial remedies are often cited as
a sine qua non (a prerequisite) of the successful application of a right in international law. Many
people argue that without judicial sanction, a right is without merit.

In many states, however, even where national legislation provides guarantees of socio-economic
rights, the claims of violation of those rights are not justiciable or enforceable presumably by
the right-holder, at least in the first instance through domestic or supranational courts.

Justiciability or adjudication of rights can be characterized as a means of implementation,

through judicial decision making. At the same time, it can also be characterized as an
accountability mechanism when other implementation mechanisms fail to adhere to a common
human rights framework and so is about taking steps to ensure compliance.

7. MAKING ESC RIGHTS JUSTICIABLE

The duty to provide an effective remedy encompasses a right to facilitate access to justice,
forming an ESC right in itself.

Because ESC rights have no mechanisms to be enforced or hold authorities accountable, many
have argued that they cannot be considered fundamental rights. However, this is simply based
on a technicality, which General Comment Number 9 seeks to remedy:

There have been significant steps taken by the judiciary in recognition of the right to access
justice. According to an ever-increasing body of literature, the capability of vindicating ESR
before the courts is of paramount importance in a democratic society committed to the
domestic protection of international human rights obligations.

The international legal position is now converging in acknowledging that recourse to an

effective (judicial) remedy now forms part of state obligations to progressively realize ESC
rights. More specifically, it is now argued that access to justice in and of itself is a right, and
this includes the need to develop effective remedies for violations of all human rights.

In its General Comment No. 9 (3 December 1998), regarding the domestic application of the
ESCR Covenants, the ESCR Committee has stipulated that the duty to ‘progressively achieve’
ESC rights includes the obligation to provide remedies to an aggrieved individual.

This obligation includes making available adequate, effective, prompt and appropriate remedies,
including reparation for violations of civil, political, economic, social and cultural rights. The
international legal position asserts that ‘where there is a right, there is a remedy’ based on the
principle of ubi ius ibi remedium. This means that for any recognized right, the law must
provide a mechanism (a remedy) to enforce it and protect it against possible violation, whether
by public authorities or in a judicial process. In paragraph 10 of its Comment the Committee
remarks:

While the respective competences of the various branches of government must be respected, it is
appropriate to acknowledge that courts are generally already involved in a considerable range
of matters which have important resource implications. The adoption of a rigid classification
of economic, social and cultural rights which puts them, by definition, beyond the reach of
the courts would thus be arbitrary and incompatible with the principle that the two sets of
human rights are indivisible and interdependent. It would also drastically curtail the capacity
of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.

This means that: While courts should respect the roles of the executive and legislature, they
already handle cases with big resource implications. Saying that ECS rights are automatically
beyond judicial review would be unfair and ignore the fact that all human rights are
interconnected. Such a rule would also severely limit the courts’ ability to protect vulnerable
and disadvantaged people.
 8. RIGHT TO HEALTH [ * Not in the exam.]

ICESCR, in Article 12.1, includes "the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health." States must take affirmative action to
"(b) improve all aspects of environmental and industrial hygiene; (c) prevent, treat, and control
of epidemic, endemic, occupational, and other diseases; [and] (d) create conditions which would
assure to all medical service and medical attention in the event of sickness" in order to fully
realise this right.

Despite criticism for its ambiguity, the individual right to health has been construed to include,
as part of its minimum core content, the provision of life-saving emergency medical care,
including the treatment of common illnesses, the supply of necessary medications, and
protections against major environmental health risks. However, the legal content of even these
basic ideas of health is still unclear, notwithstanding recent progress in defining the breadth and
essential elements of the right to health.

Safe drinking water, proper sanitation, and access to health-related information are just a few
examples of the underlying determinants of health that are included in the right to health, which
also includes the right to health care.

Freedoms like the right to be free from discrimination and forced medical treatment are
included in the right. It also covers rights, like the access to basic primary healthcare. Access to
necessary medications, maternal health, and child health are only a few of the many components
of the right.

Similar to other human rights, it is especially concerned with the poor, the weak, and the
disadvantaged. A high-quality, inclusive, and a public efficient health system is necessary to
support the fulfilment of such right.

9. RIGHT TO EDUCATION [ * Not in the exam.]

By recognising children as the bearers of rights and creating the Committee on the Rights of the
Child to oversee the implementation of these rights, the Convention on the Rights of the Child
(CRC) in 1989 set a new standard (UN General Assembly, 1989).

According to Article 28 of the Convention, states parties recognize the right to education on
the basis of equal opportunity. In particular, primary education is free (in reality, it is not
free, it is universal or public) and mandatory, secondary education is made "available and
accessible to every child" through "measures such as the introduction of free education," and
higher education is "accessible to all on the basis of capacity by every appropriate means."

In this sense, also according to Article 26(1) of the Universal Declaration of Human Rights
(henceforth referred to as the "Universal Declaration"), "Everyone has the right to education"
tacitly acknowledges that education is a continuous and lifelong activity. On the other hand,
the duty to provide free education to children suggests that every country should set up a public
education system so that all children may access education.

International law also guarantees the right to be free from discrimination when exercising
one's right to an education. While the CRC protects rights based on these characteristics and
also mentions "ethnic origin" and "disability," the UDHR and ICESCR guaranteed the right to
education regardless of one's "race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth, or other status" (UDHR Article 2; ICESCR Article 2).

The right to education is very related to other rights and circumstances, such as liberty,
equality, developing your own personality and beliefs, freedom of expression, poverty, or
democracy.
UNIT 7: Self-Determination

Questions about this topic in the exam will ask to summarize the main ideas (half a page, the
last two points are the least important).

1. PRELIMINARIES

The political and historical background of decolonisation led to the association of self-
determination with a legal right—the freedom of colonial-ruled peoples to freely choose their
international status.

Self-determination was framed in universalist terms as a right of "all peoples" in the 1960
Declaration on the Granting of Independence to Colonial Countries and Peoples (the
"Colonial Declaration"). It also stated that the populations of trust and non-self-governing
territories, "or all other territories which have not yet attained independence," qualified for
"complete independence.

The ICCPR and ICESCR both have common articles (nº 1) that signify a further transition from
a legal right to a human right. Self-determination is even positioned by some as a prerequisite
and a means of achieving all other human rights.

According to ICCPR and ICESCR the aspects of self-determination are the following:

 the right to control natural wealth and resources,

 non-interference between states in general; and

 the right of a people of a state to freely choose their rulers.

The right to self-determination rests on the idea that it is inherently valuable for a people to be
able to choose its own system of government, regardless of the consequences (although these
may matter in the broader aspect such as whether a state will collapse if granted independence,
it must not affect the decision for self-determination to apply). While all peoples have the right
to self-determination, there are some undetermined questions which continue to defy clarity:

- What is ‘a people’,

- Who belongs to ‘a people’, and

- how the will of ‘a people’ is determined

Except in the limited framework of decolonisation, self-determination is not absolute. There

are not many absolute rights, therefore this should not come as a surprise. Just as exercising the
right to free expression does not include having the ultimate freedom to say anything one wishes
in whatever situation, acknowledging that one has the right to self-determination does not mean
that one can always use that right to its fullest.
 2. TWO FORMS OF THE RIGHTS TO SELF-DETERMINATION

There are two forms of the right to self-determination:

 Internal Self-Determination applies to all peoples, and signifies that all peoples
should have cultural, social, political, linguistic, and religious rights, and those
rights should be respected by the state. As long as those rights are respected by the
state, the “people” is not oppressed and does not need to challenge the territorial
integrity of its mother state.

 External Self-Determination applies to colonized, occupied, or dominated peoples.

Such oppressed peoples, in theory, have a right to external self-determination, which,
under exceptional circumstances, includes a right to remedial secession and
independence.

Two restrictions apply to the scope of this right:

(1) First, any right of SD, whether internal or external, is bestowed by international law
on peoples, not minorities. Under international law, the term “people” implies a more
defined “self” whose members have common characteristics and a subjective belief in
the unity of that “self.”

Minority groups, however, are larger entities with some, but not necessarily all,
common characteristics, and without the required sense of uniqueness and
distinctiveness from their mother state. Minority groups are entitled to the protection of
some rights under international law, but those rights do not entail the right to political
autonomy or self-governance. Rather, minority group rights entail the respect of the
group’s culture, heritage, language, or religion.

(2) A second limiting factor in the application of the SD theory lies in the distinction
between internal and external SD, and the disagreement over the applicability of the
latter to non-colonial and non-occupied peoples.

Some scholars have simply concluded that only colonized peoples and peoples subject
to foreign occupation and domination could ever accrue the right to external self-
determination. According to this argument, non-colonized and non-occupied peoples
have merely rights to internal self-determination under international law; thus, for these
peoples, the distinction between internal and external self-determination is irrelevant as
the only possible form of self-determination for them entails only internal rights within
the existing mother state. [This would be the case for Catalonia, Quebec, Scotland,
etc.]

3. CONTENT OF EXTERNAL SELF-DETERMINATION

3.1. The content of the right to external self-determination is divided into two sub-
rights:

A  right to non-interference by other communities (colonial imposition,

occupation/domination, economic sanctions, etc.)
B  right of inclusion in the international community (right to recognition and to participate in
international relations).

(A) The collective right against the interference (colonial imposition, foreign occupation
and domination, military intervention, highly coercive economic sanctions) by other
communities in the conduct of the political/public affairs of the self-determining
community.

The conduct of the political/public affairs of a self-determining community may be

implemented in different ways: by the establishment of a sovereign and independent
State, by the free association or integration with an independent State or by the
emergence into any other political status freely determined by a people. In exceptional
circumstances, the conduct of such affairs can only be implemented by way of
remedial secession which is the most radical exercise of the right against
interference. This type of secession is called remedial in the sense that it operates as a
redress for certain prior violations of international law. Such violations notably concern
3 main exceptional cases:

(i) colonial occupation,

(ii) the case of alien subjugation, domination or exploitation,

(iii) when a people is blocked from the meaningful exercise of its right to self-
determination internally but then only as a last resort. Moreover, when human
rights are seriously and persistently violated —when the oppression of a people is
extreme, for example—this is widely perceived in academia as activating the right
to secession, although only as an ultima ratio.

(B) The right of inclusion in the activities of the international community. This involves
minimally a right to recognition by other states and the international community. It
involves a right to participate voluntarily in treaty making in all of its complexity (as
specified for example in the Vienna Convention on Treaties) as well as a right to
register persistent objections to evolving rules of customary international law.

It involves a right to participate in international institutions such as the Committees

and Councils of the United Nations, the World Trade Organization (WTO), International
Monetary Fund (IMF), and the World Bank. It can involve the right to be included
without reservation in international trade and cooperation. And it can involve the
rights to be treated as members in good standing for the purposes of receiving loans and
other forms of non-essential assistance from the international community.

3.2. Conditions of Existence

Some conditions of existence of self-determination are:

a) a collective “people”,
b) a free will and expression,
c) a colonized, occupied or dominated situation,
d) over a particular territory (territorial autonomy), and
e) the choice must be expressed through informed and democratic processes.

According to Thomas Christiano’s view, the conditions for the existence of the right to self-
determination are themselves democratic (usually by universal adult suffrage), although a
right to nondemocratic self-determination exists when the members of a community have
collectively waived their individual right to democracy in favour of some other form of
organization that they genuinely accept. (Example: A group might voluntarily accept a
monarchy or religious authority instead of democracy, as long as that choice is genuinely
theirs.)

This is precisely the sense in which, as Christiano argues, the collective right to self-
determination is derived from the individual right to democracy. The right to self-
determination exists derivatively on condition and because of a collective waiver of the
individual right to democracy (when they collectively decide to exercise that right by forming a
community — even one that isn’t democratic — the collective right to self-determination
arises). This is a very controversial but also very interesting view.

4. SELF-DETERMINATION AND SECESSION

4.1. Secession

While it is not necessary, secession is a potential result of self-determination. Public

international law allows people to exercise their right to self-determination over their political
status. This could include, among other things, the establishment of a new sovereign state or
independence, depending on the community. It may also refer to shared sovereignty,
administration, integration, or free association. When there is a confrontation between the
sovereign state and the population that wants to separate, secession is the last resort. This is
demonstrated by examples like Catalonia and Kurdistan.

The unilateral withdrawal from a State of a constituent part, with its territory and its
population, constitutes secession stricto sensu. As a consequence of secession, the existing
State splits in two: the State continues to exist, but a new State comes into existence
concurrently (New States and International Law). In other words, what was formerly a
constituent part of a State becomes independent—at least from a legal, though not necessarily a
factual perspective. Rather than create a new State, the separating part of a State may choose to
join an existing State. Such a case also amounts to secession.

One could also understand the term secession as encompassing a situation in which a
constituent part separates from a State and the existing State gives its consent at a later stage.
According to this understanding, the elements of secession are normally fulfilled at an earlier
point in time. The notion then becomes broader, but also hazier, due to the time criterion—
unless one couples the term secession, somewhat artificially, with a specific point in time, such
as the occasion on which independence is unilaterally declared.

Anyway, secession affects the fundament of the international order: the State and the guarantee
of its integrity. Whenever a secession is about to occur, the national and international order
trembles, and that is why there is a stigma attached to it. One of the most recent and important
episodes is Kosovo (from Serbia) in 2008.

According to Daniel Thürer and Thomas Burri, secession seems to be an amalgamation of

legitimacy and legality. Besides, as the role and the limits of international law in situations
involving secessions seem to be unclear in its structure and content.
International law, however, does not play a very prominent role in it. As is most often the case
in the origins of States, other, mainly political, considerations prevail. International law
remains neutral vis-à-vis secession and neither prohibits nor permits it. International law
becomes important, however, when the facts have been consolidated and the new State has
come into existence, in particular when it comes to matters of State recognition and
succession.

4.2. Arguments against secession

Among academics there are different approaches.

According to Allen Buchanan, the general consensus among experts in international law seems
to be that there is now NO international legal right to secede, WITH THE EXCEPTION of
two very particular situations:

(i) Traditional "decolonisation" occurs when a colony abroad aims to free itself from
metropolitan rule.

(ii) State territory under unfair military occupation may be reclaimed.

(iii) (Some scholars would add a third circumstance where a racial group has been
denied meaningful access to participation in government).

Hurst Hannum claims that in cases when there have been severe and discriminatory human
rights abuses that come close to genocide, it would be acknowledged – as an exception – a
right of secession. According to the precise definition of the term, the infractions do not
necessarily have to be genocide, but Hannum feels that they must be severe and discriminatory.
However, someone could argue that this discriminatory may occur when a town, area, or group
has been routinely denied political and economic power, or when a fair demand for self-
government or a minimal level of minority rights has been routinely denied.

Finally, some scholars argue that there are a number of arguments against interpreting a
people's right to self-determination as a right to secede:

(1) Violence frequently accompanies secession.

(2) Secession frequently leaves one or more vulnerable minorities in the seceding state.

(3) The majority in the original state typically opposes secession; therefore, secession by
a minority violates the majority's right to self-determination.

(4) Secession may cause distributive justice issues if the secessionists are the wealthiest
segment of the population and control the richest portion of the territory.

(5) Secession is frequently motivated by strong nationalist sentiments.

Obviously, there can be a reply to each of these points. Basically, none of these facts are
inherent to the phenomenon of succession.
UNIT 8: Democratisation

1. A DEFINITION OF DEMOCRACY

1.1. Concept

The term democracy, as we will use it in this entry, refers very generally to a method of
collective decision making characterized by a kind of equality among the participants at an
essential stage of the decision-making process.

Four aspects of this definition should be noted:

1) Democracy concerns collective decision making, by which we mean decisions that are
made for groups and are meant to be binding on all the members of the group.

2) We intend for this definition to cover many different kinds of groups and decision-
making procedures that may be called democratic. So, there can be democracy in
families, voluntary organizations, economic firms, as well as states and transnational
and global organizations. The definition is also consistent with different electoral
systems, for example first-past-the-post voting and proportional representation.

3) This definition is not intended to carry any normative weight. It is compatible with
this definition of democracy that it is not desirable to have democracy in some
particular context (e.g., decisions against some human rights).

4) The equality required – by the definition – of a democracy may be more or less deep.
It may be the mere formal equality of one-person one-vote in an election for
representatives to a parliament where there is competition among candidates for the
position. Or it may be more robust, including substantive equality in the processes of
deliberation and coalition building leading up to the vote. “Democracy” may refer to
any of these political arrangements. It may involve direct referenda of the members of a
society in deciding on the laws and policies of the society or it may involve the
participation of those members in selecting representatives to make the decisions.

The function of normative democratic theory is not to settle questions of definition but to
determine which, if any, of the forms democracy may take are morally desirable and when
and how. To evaluate different moral justifications of democracy, we must decide on the merits
of the different principles and conceptions of human beings and society from which they
proceed.

1.2. Justifications

We can evaluate the justification of democracy along at least two different dimensions:
instrumentally, by reference to the outcomes of using it compared with other methods of
political decision; or intrinsically, by reference to values that are inherent in the method.

Within these two justifications for democracy, there are 2 instrumental benefits commonly
attributed to democracy: (1) the production of relatively good laws and policies and (2)
improvements in the characters of the participants.
However, few theorists deny that political institutions must be at least in part evaluated in terms
of the outcomes of having those institutions. Here we can include the intrinsically linked
justifications, those that argue the moral legitimacy of democracy. Some argue in addition, that
some forms of decision making are morally desirable independent of the consequences of
having them. A variety of different approaches have been used to show that democracy has
this kind of intrinsic value, such as liberty, equality, or public justification (laws and policies
are legitimated).

1.3. Conditions of Existence

The academic literature on the topic converges in a moral conception of the right to democracy.
The human right to democracy is thus defined as the individual (not collective) moral right to
participate as an equal in the collective decision making of one’s political society.

The conditions for the existence of the human right to democracy are the conditions of minimal
equality, namely:

a) Equality of vote: one person’s voting power ought to be roughly equivalent to another
person’s within the same state (or region).

b) The existence of several pluralistic parties.

c) Protection of fundamental fundamental/human rights, such as freedom of

expression and assembly.

d) Rule of law: the restriction of the arbitrary exercise of governmental power by

subordinating it to well-defined and established laws. Also, it entails an independent
judiciary, separation of powers, and transparent, accountable governance.

The triangular balance for democracy consists of:

 Democracy and democratic accountability

(electoral freedom/political cornerstone):
requires free, fair, and periodic elections,
pluralism, and citizen
involvement/participation to ensure people
have a voice in government. However,
safeguards are required to prevent abuses
from majority powers. Democracy without
rule of law risks corruption and tyranny.

 Rule of law (institutional cornerstone): a fair judicial system ensures al subjects,

including rulers, are subject to the law. It relies on separation of powers, checks and
balances, and transparency. Nonetheless, rule of law without democracy can become
authoritarian.

 Protection of fundamental rights (moral cornerstone): by upholding individual dignity,

equality and freedoms (speech, assembly, conscience) we can protect minorities and
dissenting voices from state oppression. It enables meaningful participation in
 democratic life, otherwise, democracy and law without human rights lose moral
legitimacy.

All three must coexist and balance to sustain a democratic system.

2. THE RIGHT TO DEMOCRACY AND THE RIGHT TO POLITICAL

PARTICIPATION

According to Kirchschlaege, democracy may also be understood as the institutional

manifestation of respect for the autonomy of the individual, allowing the individual to be
involved in the formulation of public opinion and the decision-making process of the legal
system in which they live as a citizen.

A system of political decision-making is democratic when those subject to it have effective and
equal opportunities to participate in it and shape its results. The idea of a human right to
democracy has received substantial attention from political theorists, philosophers, and
international lawyers.

Democracy has long had a close association with the idea of human rights and justice. Actually,
the democratic ideal is a component of human rights.

While no society is fully just, lack of a substantial democratic system is a serious defect in a
society, from the perspective of justice. Given this, there is significant reason to favour a
democratic government for a society whenever this is possible, on the obvious grounds that we
ought to prefer a more just society over a less just one. If this is so, then there seems to be a
strong prima facie reason for states that are able to do so, to promote democracy and democratic
reform in states that are not currently democratic.

There are three essential “building blocks” that have aided in the emergence of right to
democratic governance (Thomas M. Franck, “The Emerging Right to Democratic
Governance”):

- The first was the self-determination concept, which dates back to the interwar years.
Self-determination, according to Franck, “postulates the right of a people organised in
an established territory to determine its collective political destiny in a democratic
fashion.” In colonies and trust territories, it is associated with a “long evolving tradition
of maintaining observers … at elections”.

- The second was the right to “free political expression,” which had its roots in the anti-
totalitarianism born of World War II. The freedoms of expression, assembly, and
opinion are safeguarded by numerous international and regional regimes and are
considered “the essential preconditions for an open electoral process.”

- The third and most recent building component was the growing right to free and fair
elections on a regular basis. Provisions in human rights treaties for the right to hold
legitimate periodic elections start to approximate prevailing practice and thus may be
said to be stating what is becoming a customary legal norm applicable to all.

Although there is no explicit human right to democracy itself, one can argue that Article 21 of
the Universal Declaration of Human Rights (UDHR) effectively encompasses the core
principles of democracy and thus guarantees such a right by implication. Much of the debate
around the legal recognition of a right to democracy stems from how we define or identify an
authentic democratic system. However, if we adopt a basic, widely accepted definition of
democracy — grounded in participation, representation, and accountability — it becomes
reasonable to argue that a human right to democracy exists in substance, if not in explicit form.

The legal definition of “democracy” has been most extensively developed in the arena of
international human rights law. The origins of the definition can be traced to the Universal
Declaration of Human Rights (UDHR), which provides an “election-focused” conception of
government in Article 21:

1) Everyone has the right to take part in the government of his/her country, directly or
through freely chosen representatives.

2) Everyone has the right of equal access to public service in his/her country.

3) The will of the people shall be the basis of the authority of government; this will shall
be expressed in periodic and genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free voting procedures.

Similarly, Article 25 of the International Covenant on Civil and Political Rights (ICCPR)
includes the following: Every citizen shall have the right and the opportunity, without
discrimination and without unreasonable restrictions.

Notably, neither document right explicitly refers to the term “democracy”, nor rule of law
or protection to fundamental rights included.

Consequently, is there is an international legal human right to democracy?

 For most authors, these articles represent a right to democracy. However, some authors argue
that the existing international human rights law does not provide for the legal recognition of the
right to democracy but rather, guarantees the less “generous” and less egalitarian right to
political participation. The point would be to know what is the line that defines an authentic
democratic system.

3. DEMOCRACY AND VIOLATIONS OF HUMAN RIGHTS

It is possible for a majority to support a course of action that infringes upon the human
rights of a minority. To locate some examples of this theoretical finding, we do not need to go
too far back in time.

Unfortunately, the Swiss lawsuit to prohibit minaret construction serves as an illustration of this.
In a democratic process, a majority of voters supported a law that discriminated against a
minority within the national legal system—in this case, prohibiting them from constructing
minarets at all. (Beforehand, while planning and constructing a structure, everyone had to
adhere to the Swiss construction code, including religious communities and, of course, the
Muslim community.) Additionally, the prohibition infringes upon this minority's right to
freedom of religion. The incident demonstrates how human rights abuses inside ostensibly
democratic systems might result from a reductionist view of democracy.
This is why such a view of democracy is often called “reductionist”: reduces democracy to a
mere process of majority decision-making, ignoring its substantive foundations. Human rights
are an integral part of the democratic ideal, since democracy itself is built on the principle of
equal dignity and rights for all individuals. Therefore, a genuinely democratic system
necessarily includes respect for human rights; without them, it becomes democracy in form but
not in substance.

Therefore, in order to eliminate the possibility of a democratic decision violating human rights
from the outset, a democracy must incorporate mechanisms that guarantee human rights
are respected with regard to access to democratic opinion-building and decision-making
processes as well as in the manner in which these processes are conducted. A democracy's
frame of reference is human rights. For the purpose of advancing the realisation of human
rights, several mechanisms that ensure respect within a democratic system—such as the
Constitution, the Supreme Court, the Constitutional Court, etc. —need to be established in
democracies where they do not currently exist.

4. SOME ISSUES ABOUT DEMOCRACY

4.1. The Moral Duties of Democratic Citizens

What are the moral duties of democratic citizens in complex democracies? Importantly:

1) The (legal or moral?) duty to vote,

2) Duty to be sufficiently informed.

3) Duty to promote and participate in public affairs.

4) Duty to accommodate disagreement through compromise and consensus.

5) In exceptional cases, the duty to promote justice through principled disobedience of the
law.

4.2. What sort of representative system is the best one?

A number of debates have cantered on the question of what kinds of representative systems are
best for a democratic society. What choice we make here will depend heavily on our
underlying moral justification of democracy, our conception of citizenship as well as on our
empirical understanding of political institutions and how they function. The most basic types
of formal political representation available are single member district representation,
proportional representation and group representation. In addition, many societies have opted for
multicamera legislative institutions.

For example, in a two-party system with majority rule, it is argued, each party must appeal to
the median voter in the political spectrum. Hence, they must moderate their programs to appeal
to the median voter. These tendencies encourage moderation and compromise in citizens to
the extent that political parties, and interest groups, hold these qualities up as necessary to
functioning well in a democracy.

In criticism, advocates of proportional and group representation have argued that single
member district representation tends to muffle the voices and ignore the interests of minority
groups in the society. Minority interests and views tend to be articulated in background
negotiations and in ways that muffle their distinctiveness. In proportional representation, by
contrast, representatives of different groups are seated in the legislature in proportion to
citizens’ choices. Minorities need not make their demands conform to the basic dichotomy of
views and interests that characterize single member district systems, so their views are more
articulated and distinctive as well as better represented.

One worry about group representation is that it tends to freeze some aspects of the agenda that
might be better left to the choice of citizens. For instance, consider a population that is divided
into linguistic groups for a long time. And suppose that only some citizens continue to think of
linguistic conflict as important. In the circumstances a group representation scheme may tend to
be biased in an arbitrary way that favours the views or interests of those who do think of
linguistic conflict as important.

4.3. Neoliberalism and Democracy

Increasingly, big corporations play an important role in social dynamics and political decision-
making. Sometimes, the interests of huge financial companies even take priority over
democratic decisions. Many policies regarding healthcare, housing, education, and privacy are
dictated by pressure from the lobby of huge corporations. Wendy Brown highlights that the
rise of neoliberalism has led to a rise in anti-democratic policies.

According to Nancy Fraser, current capitalism (neoliberalism) is self-expansive and

displaces humans as its servants; that is, it leads to a decline in democratic determination. The
idea of achieving professional and economic success has taken root instead of inter-relational
well-being.

Neoliberalism is based on the idea of accumulation and exploitation. And this may be
incompatible with the idea of a robust democracy based on the equality and freedom of
citizens. For this reason, Michael Sandel advocates recovering the notion of ‘the common good’
in contrast to the selfish individualism of capital accumulation.

What is the purpose of the economy: to improve people's well-being or to encourage the selfish
accumulation of capital in a few hands?

4.4. Ordinary Citizens and Democracy

A vexing problem of democratic theory has been to determine whether ordinary citizens are
up to the task of governing a large and complex society. There are, at least, two distinct
problems here (competence and motivation):

 Plato argued that some people are more intelligent and informed about political
matters than others and have a superior moral character, and that those persons ought
to rule (The Republic, Book VI).

 Since individuals have so little impact on the outcomes of political decision making
in large societies, they have little sense of responsibility for the outcomes. Some have
argued that it is not rational to vote since the chances that an individual’s vote will a
decide the outcome of an election (i.e., will determine whether a candidate gets elected
or not) are nearly indistinguishable from zero.
These observations pose challenges for any robustly egalitarian or deliberative conception of
democracy. Without the ability to participate intelligently in politics one cannot use one’s votes
to advance one’s aims nor can one be said to participate in a process of reasoned deliberation
among equals. So, either equality of political power implies a kind of self-defeating equal
participation of citizens in politics or a reasonable division of labour seems to undermine
equality of power. And either substantial participation of citizens in public deliberation entails
the relative neglect of other tasks or the proper functioning of the other sectors of the society
requires that most people do not participate intelligently in public deliberation.

Some proposed solutions to the problem of democratic participation are the following:

A) Elite theory of democracy

Some modern theorists of democracy, called elite theorists, have argued against any robustly
egalitarian or deliberative forms of democracy in light of the problem of democratic
participation. They argue that high levels of citizen participation tend to produce bad
legislation designed by demagogues to appeal to poorly informed and overly emotional
citizens.

B) Interest group pluralism

One approach that is in part motivated by the problem of democratic citizenship, but which
attempts to preserve some elements of equality against the elitist criticism is the interest group
pluralist account of politics. On this account, democracy is not rule by the majority but
rather rule by coalitions of minorities. Policy and law in a democratic society are decided by
means of bargaining among the different groups. This view is conceivably compatible with the
more egalitarian approach to democracy.

In this sense, there is a line of reasoning in democratic theory appeals to a deliberative

conception of democracy. According to Joshua Cohen’s deliberative conception, political
morality requires citizens to make binding collective decisions through a process of public
reasoning in which citizens recognize one another as equal members of the political community.
The process of public reasoning requires that each citizen should offer reasons to convince
others to adopt a legislative proposal, where these reasons are reasons that she could properly
expect others to accept, given the facts of reasonable pluralism.

C) The self-interest assumption

A considerable amount of the literature in political science and the economic theory of the state
are grounded in the assumption that individuals act primarily and perhaps even exclusively
in their self-interest narrowly construed.

Moreover, defenders of deliberative democracy often claim that concerns for the common good
and justice are not merely given prior to politics but that they can evolve and improve through
the process of discussion and debate in politics.

Note that people usually have selfish interests but also a particular sense of the common good.

D) The Division of Democratic Work

Public deliberation in any large-scale democracy will occur within a complex and differentiated
“deliberative system”, a wide variety of institutions, associations, and sites of contestation
accomplish political work.

One promising view is that citizens must think about what ends the society ought to aim at
and leave the question of how to achieve those aims to experts.

Citizens are capable in their everyday lives of understanding and cultivating deep
understandings of values and of their interests. And if citizens genuinely do choose the aims and
others faithfully pursue the means to achieving those aims, then citizens are in the driver’s seat
in society, and they can play this role as equals.

HOW IT ADDRESSES THE

THEORY PROS CONS
PROBLEM
Assigns political decision-making to a Realistic about citizen Undermines equality.
small, competent elite better equipped competence. Reduces participation to
Elite Theory to govern than the average citizen, Promotes efficient voting.
limiting the risks of uninformed or and stable Risks technocratic or
emotional mass decisions. governance. oligarchic rule.
Reflects social
diversity. Wealthier or better-
Channels citizen influence through
Interest Encourages organized groups
organized groups that compete and
Group participation through dominate.
negotiate, creating policy through
Pluralism associations. Inequalities of power
bargaining among diverse interests.
Balances competing persist.
interests.
Strengthens
Promotes inclusive public reasoning Hard to achieve in large
legitimacy.
where citizens justify policies to one societies.
Deliberative Enhances equality
another with reasons all can accept, Assumes informed,
Democracy and mutual respect.
aiming to reach rational consensus motivated, and
Connects democracy
and common good. cooperative citizens.
to justice.
Balances participation
Divides responsibilities: citizens
and competence. Relies on trust in
define broad aims and values, while
Division of Realistic for complex institutions.
experts handle technical
Democratic societies. Risks detachment of
implementation, combining
Work Maintains citizen experts from public
democratic input with effective
sovereignty over values.
management.
goals.

Each theory offers a different way to reconcile the tension between equality and competence in
democracy — from limiting citizen participation (elite theory) to enhancing it through
pluralism, deliberation, or a balanced division of roles.

4.5. Modern Populism

One of the big threats to democracy is modern populism, since it can break and hurt the essence
of democracy from inside. The term populism can designate either democratic or authoritarian
movements. Populism is typically critical of political representation and anything that mediates
the relation between the people and their leader or government.

In its contemporary understanding, however, populism is most often associated with an

authoritarian form of politics. Populist politics, following this definition, revolve around
charismatic leaders who appeal to and claim to embody the will of the people in order to
consolidate their own power. In this personalized form of politics, political parties lose their
importance, and elections serve to confirm the leader’s authority rather than reflect the
different allegiances of the people. Some sorts of authoritarian populism have been
characterized by extreme nationalism, racism, conspiracy mongering, and scapegoating of
marginalized groups, each of which served to consolidate the leader’s power, to distract public
attention from the leader’s failures, or to conceal from the people the nature of the leader’s rule
or the real causes of economic or social problems.

Populist parties and movements use our cognitive bias to get power over some particular
interests.

- For example: irrational or emotional beliefs related to fear, lack of personal control,
uncertainty, the tribal bias, the need to simplify reality, the automatic prejudice and
confirmation bias, the ingroup favouritism, the self-interest bias, the naive realism bias,
the recoil effect, the status quo bias, etc.
- Some feelings are involved: angry, rejection, fear, unease, exaltation, resentment, or
lack of assertiveness.

Paradoxically, being aware that we are very manipulable makes us freer. Why? Because it
activates our critical thinking.
UNIT 9: Women

1. GENDER EQUALITY AND HUMAN RIGHTS

The 1948 Universal Declaration of Human Rights, which practically all States have ratified,
serves as a foundation for women's rights. This international agreement requires civil society
organisations to implement laws, policies, and constitutions that protect the rights of all peoples,
regardless of their gender, sex, or national and social identities. World conferences on
women's rights held in Beijing (1995), Mexico City (1975), Copenhagen (1980), and Nairobi
(1985) reaffirmed women's rights as a moral, ethical, and political obligation that calls for the
explicit protection of women's human dignity and fundamental freedom from interference in
any setting across the globe.

Additionally, about 90% of governments have ratified additional international agreements that
expressly forbid discrimination against women, such as the Declaration on the Elimination of
Violence Against Women (1993) and the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW, 1979). Similar concepts are also enshrined in
regional commitments, such as the Protocol to the African Charter on Human and People’s
Rights on the Rights of Women in Africa (Maputo Protocol, 2003).

Equality in rights, opportunities, and individual treatment regardless of a person's sex is

known as gender equality. Men and women should ideally have equal access to resources, jobs,
health care, education, and decision-making authority. It is also about respecting and
guaranteeing women's decisions in private and public spheres, their mental and physical
integrity, and their dignity. So, feminism(s) support gender/sex equality in different ways.

We might consider addressing the topic of gender equality or sex discrimination on two levels:

The first level focuses on the external expressions of gender equality that appear to be trouble-
free. For instance, women have the right to be free from violence in both public and private
settings, to have non-discriminatory access to healthcare, education, and employment, to take
part in local and national elections and governance in the same way as men, and to have the
same rights when it comes to child custody. These are broad statements that are unlikely to
cause countries that uphold gender equality concept to disagree.

But the second level is more intricate and calls for a more subtle strategy as it refers to
substantive equality. At this level, individual decisions and collective demands are more likely
to be contested for having a discriminatory foundation. For instance, it is difficult to voluntary
hyper-sexualisation (such as women choosing to present themselves in an overly sexualized
way, is it empowerment or internalized sexism?), or women's decisions to cover their heads in
public (an act of faith and agency, or is it imposed by social pressure and inequality?) as
harmful examples of gender inequality. These are more general cultural issues that touch on
women's alternatives and choices as well as how they interact with cultural norms and values.
Furthermore, in these cases there are other rights at stake (free development of personality, or
religious freedom).

The distinction lies in the difference between formal and substantive equality. The first level
concerns the external, legal, and institutional aspects of gender equality which are broadly
accepted and relatively uncontroversial. The second level deals with the deeper cultural and
social dimensions of gender inequality, where individual choices and societal norms intersect.

On the other hand, women's empowerment focuses specifically on enabling women and girls
to establish an atmosphere in which they may fully exercise their rights and take charge of their
own lives. It entails giving women the tools, information, and encouragement they need to
effectively participate in social, economic, and political spheres and to challenge gender
conventions and prejudices. In addition, women defy patriarchal conventions by using their
positions in traditional family structures to further their political goals.

Some names of the fight to gender/sex equality are Olympe de Gouges, Mary Wallstonecraft,
Simone de Beauvoir, Susan B. Anthony, Clara Campoamor, Bell Hooks, Gloria Steinem,
Angela Davis, bell hooks, Kimberlé Crenshaw or Malala Yousafzai. Also, a special mention to
the Suffragettes, such as Emmeline Pankhurst.

2. DIRECT AND INDIRECT DISCRIMINATION

Direct discrimination occurs when a difference in treatment relies directly and explicitly on
distinctions based exclusively on sex and characteristics of men or of women which cannot be
justified objectively.

The three (necessary) elements that make up the concept of direct discrimination are:

- less favourable treatment – one person is disadvantaged or treated worse than another

- comparative reference – there’s a comparison with someone in a similar situation of a

different sex

- protected characteristic – the unequal treatment is based on a legally protected trait, in

this case, sex.

For instance, imagine a university that refuses to admit women into its engineering program
because it believes “women are better suited for caring professions.” In this case, the woman
experiences less favourable treatment (denial of admission) compared to a man with the
same qualifications who would be accepted, and the difference is based on a protected
characteristic — her sex. This is a clear example of direct discrimination, since the unequal
treatment is explicitly linked to gender stereotypes rather than objective criteria.

The discrimination based on sex is called sexism. This kind of discrimination has occurred
across different cultures and times during history, for example: the exclusion or objectification
of women in roles like geishas, polygamy, witch hunts, practices such as female genital
mutilation, foot binding, or modern issues like hyper-sexualisation, sexist violence, and
prostitution.

Direct discrimination can occur in less obvious forms, such as in the case of ‘micro
machismos’: a low-level male chauvinism. These types of behaviours are usually normalized or
naturalized.
Indirect discrimination occurs when a law, policy or programme does not appear to be
discriminatory but has a discriminatory effect when implemented. This can occur, for
example, when women are disadvantaged compared to men with respect to the enjoyment of a
particular opportunity or benefit due to pre-existing inequality. In these cases, a gender-neutral
law may leave the existing inequality in place or exacerbate it.

The European legislation manual against discrimination identifies the following elements of
indirect discrimination:

(a) an apparently neutral provision, criterion or practice;

(b) which affects a group defined by a "protected ground" (gender, etc.) in a

substantially more disadvantageous manner;

(c) in comparison with other persons in a similar situation.

In legal systems such as those of the United States and the United Kingdom, a fourth element is
often added, namely the absence of justification for this disproportionate adverse impact.

3. POSITIVE ACTIONS

Positive action refers to measures taken to correct or reduce existing social inequalities
affecting disadvantaged groups. These actions aim to promote substantive equality—real
equality in practice, not just in law.

Positive action encompasses all facets of social life. However, the social scenarios in which
positive actions occur are very limited; they arise in contexts of "special scarcity", such that
the benefit to certain people necessarily entails a clear and visible disadvantage to others.
Positive action is directed at any form of social discrimination.

This means that when positive action is applied in a situation of “special scarcity”, helping one
group necessarily limits opportunities for others. Setting a quota means someone else isn’t
getting such spot. However, the goal is not to discriminate unfairly, but to rebalance historical
or structural advantages.

The most relevant examples are: jobs (hiring members of certain ethnic minorities, women and
disabled people, as well as access to management positions), admission to schools and
universities, and places on electoral lists. These are also known as ‘quotas’.

In the American Supreme Court, case Croson, there are some requirements for positive actions:

Quotas are an exception to the rule of equal treatment and may only be established in very
limited cases and under certain conditions.

- Must pursue an overriding public interest.

- It may only be used when the same objective cannot be achieved by other less
burdensome means.
 - The quota must be appropriate to the aim pursued and proportionate in its
configuration. The more symmetrical it is in relation to the social groups affected, the
better.
- The quota must be a temporary measure, so that it must be repealed as soon as the
inequality it seeks to balance is remedied.
- Positive actions in our legal system may only be established by law.
Among scholars and institutions (courts and legislations also) there is some real confusion
around the concept of positive action, because many people only see it as a form of positive
discrimination. According to my point of view, if a discrimination is an unfair and/or arbitrary
differentiation, when that differentiation is fair (substantive equality), it would not be
appropriate to define this action/measure as a discrimination, although it supposes a 'breakdown'
related to formal equality.

In other words, a fair differentiation designed to achieve substantive equality should not be
seen as discrimination, even if it departs from strict formal equality. Meaning, it is not truly
discriminatory when it promotes fairness and corrects deep inequalities.

4. FEMINISM(S)

4.1. An umbrella term

“Feminism” is an umbrella term for a range of different views about injustices against women:
liberal feminism, radical feminism, decolonial feminism, black feminism, intersectional
feminism, Latin American feminism, transfeminism, Marxist feminism, ecofeminism, or anti-
speciesist feminism *. For this reason, it is better to refer to “feminisms”.

Broadly understood, feminism is both an intellectual commitment and a political movement

that seeks an end to gender-based oppression. Motivated by the quest for social justice, feminist
inquiry provides a wide range of perspectives on cultural, economic, social, and political
phenomena. It identifies and evaluates the many ways that some (social and legal) norms have
been used to exclude, marginalize, and oppress women on the basis of sex/gender, as well as
how gendered identities have been shaped to conform and uphold the norms of a
patriarchal society. In so doing, it tries to understand the roots of a system that has been
prevalent in nearly all known places and times. It also explores what a just society would look
like. Feminism means equality, very different from female chauvinism.

Patriarchy is the social system where men hold a disproportionate amount of power and
authority. Some key points to understand the discrimination through this male structure are the
following: naturalization of the male power, systemic power imbalance, control of institutions,
cultural reinforcement, spreading the male role as the best, micro and macro violence against
women and its trivialization, etc.

* ) Anti-speciesist feminism connects the struggle against sexism (with the struggle against
speciesism (discrimination based on species, usually privileging humans over animals). From
this perspective, women and non-human animals have historically been associated with nature,
the body, emotion, and reproduction, while men and humans in general have been linked to
reason, culture, and control. This symbolic division has justified both the subordination of
women and the exploitation of animals. Anti-speciesist feminists therefore advocate for a form
of feminism that rejects all forms of domination, whether based on gender, race, class, or
species

4.2. Liberal Feminism

Liberal feminism remains a strong current in feminist political thought. Following liberalism’s
focus on freedom and equality, liberal feminism’s primary concern is to protect and enhance
women’s personal and political autonomy, the first being the freedom to live one’s life as one
chooses and the second being the freedom to help decide the direction of the political
community. This follows from Enlightenment liberalism’s core norm of equal respect for
personhood, where personhood is tied to moral equality, or the equal worth of persons as moral
choosers.

4.3. Ethics of Care from Feminism

Rather than attempting to align their theories with those values of individualism, rationality, and
abstraction associated with masculinity (and classical liberalism), many feminist thinkers have
instead sought to revalue traditionally denigrated values associated with femininity, such as
care, empathy, and affect.

Some feminist ethicists argue that the development of masculinity typically involves valuing
individual autonomy, individual rights (v. common good and care policies), disconnection from
others, and independence, while seeing other persons and intimate relationships as dangers or
obstacles to pursuing those values; they refer to this perspective as the “perspective of justice”.

Carol Gilligan showed that the dominant conception of moral development was really a
reflection of a particular, masculine, style of moral reasoning. Ethics of care does not focus on
reason, but an emphasis on emotions like empathy and care, responsiveness to need, and an
awareness of one’s connection with others and the natural world. In more recent work, Gilligan
has modified the idea that the perspective of care is a distinctively feminine one, arguing instead
that it is a distinctively “human voice,” which challenges what she calls a “patriarchal
voice”.

This spurred new approaches to theorizing foundational political concepts that are at odds with
liberal political theory in particular. While liberal individualism assumes people are
autonomous, independent individuals who make decisions on their own and pursue their own
interests. Gilligan and later theorists of care ethics argue that this view is incomplete and
unrealistic, because in reality, human beings are inherently social and interdependent.

Political theorists influenced by the care ethics tradition insist that political subjects are not
independent, but fundamentally inter-dependent, enmeshed in complex networks of
relationships necessary for survival. This means that as political agents, we do not act on our
own but rely on others who are themselves dependent. Human beings live in an inter-relational
autonomy rather than an independence. Basically, because we are social and gregarious
primates, we all need support or care (and cooperation). The amount of support needed depends
on the person (e.g., with or without disabilities) and her/his stage of life (e.g., child, adult or old
person).

4.4. Radical Feminism

Those who work in radical feminism continue to take issue with many of the central tenets of
liberal feminism, especially its focus on the individual and the supposedly free choices that
individuals can make. Where the liberal sees the potential for freedom, the radical feminist
sees structures of domination that are bigger than any individual. This male structure is
called patriarch.

The idea that domination and oppression affect social groups in ways that are structural
and systemic, though they may be experienced differently by members of different social
groups, is a major contribution of feminist political philosophy. Radical feminists remain
committed to getting at the root of male domination by understanding the source of power
differentials, which some radical feminists, including Catharine MacKinnon, trace back to
sexuality and the notion that heterosexual intercourse enacts male domination over women.

Radical feminism argues that oppression takes many forms and refuse to identify one form as
more basic or fundamental than the rest. For example, Iris Marion Young describes five “faces”
of oppression: exploitation, marginalization, powerlessness, cultural imperialism, and
systematic violence.

A new generation of radical feminist theorists are renewing the tradition, showing how it has
respected concerns such as intersectionality and shares some of the commitments of the
postmodern feminists discussed below, e.g., scepticism about any fixed gender identity or
gender binaries and a more fluid and performative approach to sexuality and politics, as well as
the ways that power and privilege continue to hold women back.

4.5. Intersectional Feminism

Features of social identity intersect to create a subject of new forms of oppression and
discrimination. For example, sex and class intersect to produce the subject of working-class
women’s oppression; race and sex intersect to produce the subject of black women’s
oppression. The concept of intersectionality (coined by Kimberlé Crenshaw), roughly speaking,
captures the idea that different dimensions of oppression are not additive, simply stacking one
on top of the other; rather, what may seem to be different dimensions of oppression interact
in complex ways, and may even be impossible to fully distinguish from one another.

Viewing social identities as intersectional has become central to understanding how various
dimensions of sex, race (ethnic group or skin colour), gender, sexual orientation, disability
status, colonial history, or (economic and social) class interact to yield more complex forms of
discrimination than those suffered by persons who fall under only one category.

4.6. Ecofeminism

There are many different approaches from ecofeminism. For example, related to a strong (anti-
speciesist feminism) or weak rejection (standard discourse of ecofeminism) of human
supremacy over other animals.
A general, common-denominator characterization of “ecofeminist philosophy” is that it:

1) Explores the connections between the unjustified dominations of women and nature;

2) Critiques male-biased Western canonical philosophical views (assumptions, concepts,

claims, distinctions, positions, theories) about women and nature; and

3) Creates alternatives and solutions to such male-biased views. In this sense, very related
to Ethics of Care.

5. GENDER BINARISM, TRANSFEMINISM, AND ANDROGYNOUS APPROACH

Gender binarism (or essentialism), which is the view that there are only two genders—male
and female—and that everyone is only one of them, was assumed by most feminist ethicists
publishing in philosophy in the 1970s and 1980s in the course of arguing the moral wrongness
of women’s oppression.

One criticism of gender binarism is that its assumption marginalizes nonconforming

individuals. In efforts described as promoting coalition between trans activists and non-trans
feminists, some feminists argue that we ought to examine the gender privilege inherent in
presuming a binary that reflects one’s own experience better than the experiences of others.

Such “beyond-the-binary” approaches, in turn, have been cautioned against as well-

intentioned but, at times, invalidating trans identities, “by invalidating the self- identities of
trans people who do not regard their genitals as wrong” or “by representing all trans people as
problematically positioned with regard to the binary”.

Arguments for androgynous approaches to ethics or for gender abolition include perspectives
that gender abolition ameliorates the harmful effects of hierarchical gender constructions.

Arguments against gender abolition suggest that gender abolition comes with new costs of its
own, including the failure to do justice to the gender identifications of biological women and
trans people, when self-labelling as a particular gender may be a morally valuable form of
agency. Gender-norm authenticity may be liberating and morally important to individuals. In
this sense, some essentialist feminists reject the idea that trans women should be considered
subjects of feminism, but rather of the LGBTIQ+ movement.

On the other hand, transfeminism approves that a trans person is considered a woman because
of their own female gender identification. Transfeminism is rooted in an intersectional analysis,
recognizing how sexism, transphobia, and other forms of oppression are interconnected and
affect trans people.
UNIT 10: Children

1. WHAT IS A CHILD?

On the surface, the question 'what is a child?' appears to be clear-cut and uncomplicated but
defining what a child is extremely complex. Tensions over children's human rights have been
further exacerbated by its ambiguity. At what age do you truly qualify as an adult? And for
what?

We may usefully distinguish a concept from a conception of the child as follows (Archard):

 ‘to have a concept of “childhood” is to recognise that children differ interestingly from
adults;

 to have a conception of childhood is to have a view of what those interesting differences are’

Having made this distinction we should recognise that conceptions of childhood vary across
time and cultures. In the past, labels of childhood were more influenced by social circumstances
than by biological or chronological variable. Moreover, conceptions of childhood may beg
normative questions of why children have a different moral status to adults.

The concept of capacity is relevant to questions regarding which theory of rights is correct and
which rights children might have. This refers to the capacity to make autonomous choices.
However, we might ask ourselves the following questions:

- Do all adults (without disabilities) make autonomous choices?

- Is autonomy a concept dependent on the social and historical context?
- Are not children autonomous because of their age or because their autonomy is not
encouraged?

There are no clear or general answers, but it's quite useful to think about it.

The Convention of the Rights of the Child (CRC) designates anyone under age 18 as a child,
‘unless,’ it adds, ‘under the law applicable to the child, majority is attained earlier’. Using age
chronology to calculate age is the most commonly used standard of determining child or adult
status. A person is deemed a child until they reach the black-and-white age of 18 or 21, which is
used to define who is an adult. A 17-year-old may be regarded as the same child, right until
their birthday, then they abruptly change into an adult with a distinct set of rights and
obligations, completely changing how the individual is perceived.

In some respects, a sixteen-year-old may be self-sufficient and “adult,” while a thirty-five-year-

old may be reliant and “childish.” Therefore, one can wonder if a person's age is the most
accurate indicator of their position. The age at which a person can get married, drop out of
school, consume alcohol, operate a motor vehicle, smoke, cast a ballot, and engage in other
“adult” activities is determined by law. And it is not determined individually, but for all people
regardless of their psychobiological development.

Children are not acknowledged as independent individuals before the law. Thus, parents
and other family members are legally tasked with protecting and defending the interests of their
children; if they are unable to do so, social and legal services step in. The family, or society in
the absence of a family, is responsible for providing for and protecting the child.

Still, because the terms “minor” and “child” are not interchangeable under the law, national
laws must take into account that children's needs differ according to their age, and that different
minimum legal ages are set for things like marriage, employment, testifying in court, criminal
liability, incarceration, and army recruitment.

2. DO CHILDREN HAVE RIGHTS? TWO THEORIES OF CHILDREN’S RIGHTS

There are two main theories about the appropriateness of Rights of the Child:

2.1. Will Theory of Rights

According to this theory, rights protect choices. So only those capable of exercising choices
can be right holders. Children are incapable of exercising choice; thus children are not right-
holders.

 Children should not have Rights

Related to will theory, some scholars argue that children are not qualified to have rights.
Children in general lack certain cognitive abilities—to acquire and to process information in an
ordered fashion, to form consistent and stable beliefs, to appreciate the significance of options
and their consequences. For example, a right to free speech cannot properly be possessed by an
entity incapable of speech. Children also lack certain volitional abilities—to form, retain and act
in the light of consistent desires, to make independent choices.

The ascription of rights to children misunderstands what childhood is. On one view we
begin thinking about what we owe to children from a moral perspective, by specifying our
obligations as adults to them. We all are obliged not to abuse any child, and parents have a
particular duty to care for their children. Such a perfect duty correlates with a corresponding
children’s right not to be abused. But then there are imperfect obligations which are those of
caring for children to whom we do not, as parents for instance, have specific obligations. All
adults owe these duties, but they are not owed to all children (how could they possibly be?) nor
is it specified what precisely is owed to them (this will depend on circumstances).

Notwithstanding their lack of rights, children can be assured of adequate moral protection
by other means. This claim aims to provide reassurance that such a denial is not bad for
children. One can thus maintain that rights do not exhaust the moral domain. There are things
we ought to do which do not correspond to the obligations we have (or to the of rights of
others). As adults we should protect and promote the welfare of children. It need not follow that
they have rights against us.

2.2. Interest Theory of Rights

This theory proposes that rights and duties are correlative in relation to interests of persons,
and adults have duties to protect the important interests of children. In this sense, children are
right holders.
  Children should have Rights

UN Convention on the Rights of the Child (1989) takes seriously that children have interests.
Even “the best interest” of children “shall be a primary consideration” (art. 3). In this
sense, article 4 of the Convention: “States Parties shall undertake all appropriate legislative,
administrative, and other measures for the implementation of the rights recognized in the
present Convention”.

Most countries—though not the United States of America—have ratified this Convention. The
Convention accords to children a wide range of rights including, most centrally, the right to
have their ‘best interests’ be ‘a primary consideration’ in all actions concerning them (Article
3), the ‘inherent right to life’ (Article 6), and the right of a child “who is capable of forming his
or her own views … to express these views freely in all matters affecting the child” (Article 12).

2.3. If Children Can Have Some Rights, What Rights Should They Have?

Most who believe that adults have rights which children do not have make the cut between
liberty and welfare rights. Joel Feinberg distinguishes between rights that belong only to
adults (A-rights, i.e. liberty), rights that are common to both adults and children (A-C-rights,
i.e. welfare), and rights that children alone possess (C-rights).

But don’t children have a right to liberty at all? Isn't well-being related to liberty?

 This frame by Feinberg may is useful to take a big picture, but not accurate. On all
occasions, the ‘best interests’ of a child should be promoted., and many times the best interests
is some kind of liberty.

For example, Article 29 CRC: “1. States Parties agree that the education of the child shall be
directed to:

(a) The development of the child's personality, talents and mental and physical abilities to
their fullest potential,

(b) The development of respect for human rights and fundamental freedoms, and for the
principles enshrined in the Charter of the United Nations”.

Another example: Article 12.1 CRC: “States Parties shall assure to the child who is capable of
forming his or her own views the right to express those views freely in all matters affecting the
child, the views of the child being given due weight in accordance with the age and maturity of
the child.”

2.4. Main Types of Children’s rights

Most of scholars hold that there are two main types of Children’s rights:

PROTECTION RIGHTS which children possess in virtue of their condition of childishness,

for example: right to receive food and shelter, rights to be protected against harms (abuse and
neglect) which befall children because of their childlike vulnerability and, because there are
some goods that children should arguably receive just because they are children. The most
central, and contentious, example is a child’s right to be loved.
ANTICIPATORY AUTONOMY RIGHTS given to the child in the person of the adult she
will become. They are the rights whose protection ensures that, as an adult, she will be in a
position to exercise her A- and A-C-rights to the maximal or at least to a very significant
degree. They keep her future open. Such rights impose limits on the rights of parents and also
impose duties on the part of the state to protect these rights.

Examples include the right to education (to ensure future opportunities), protection
against harmful labour, trafficking, or early forced marriage (because these would limit
her future), the right to an identity, nationality, and family relations.

But this raises a question: Do children themselves have the capacity to be autonomous? In
other words, do children have autonomy rights in the present, not just in the future? According
to the lecturer, children do possess a degree of autonomy that depends on their age and level of
development. This means they have current autonomy rights, not only anticipatory ones. This
interpretation aligns with Articles 27 and 29 of the Convention, which emphasize the child’s
right to develop their personality, abilities, and potential here and now.

3. THE BEST INTEREST OF CHILDREN

“In all actions concerning

children, whether undertaken This principle includes the rules, regulations, and procedures
by public or private social we create. The requirements of children should direct the
welfare institutions, courts of creation of services and programs, the allocation of funds,
law, administrative and the decision-making process. Young people are entitled
to participate in decisions that will affect how their lives turn
out.

Yet this concept results ambiguous when discussing what is in the child's best interests. To
clear up any misunderstandings regarding the UN's intention when they stated that the child's
best interests should be taken into consideration, the ‘UN created General Comment No. 14
(2013) (art. 3, para. 1) on the right of the child to have his or her best interests taken as a
primary consideration’. They understate that they refer to their best interests as individuals,
in the more constrained category of children, or in the projected manner as future adults
could all be referred to by this word; it could also be a manipulative one that refocuses the
attention on what adults believe to be in their own best interests.

The phrase “children’s rights” reminds adults that they have a responsibility to uphold
children's rights, despite the fact that some adults may contend that children, particularly very
young ones, are incapable of exercising them and require assistance.

As Vissing argues, “If children are to be treated equally and as autonomous creatures, they
must have rights, which entails considering everyone's autonomy to be equally vital”. This
raises complex questions: If children are autonomous and have responsibilities, what about
criminal liability? How do we handle issues such as minors producing or manipulating
deepfakes? These tensions highlight the need for careful differentiation between rights,
capacities, and legal responsibility.
Regarding some restrictions (or violations) of the best interest of children and the free
development of their personality, adultcentrism and ageism are two kinds of important
discrimination to children. These two concepts limit the best interest and rights of children:

- Ageism refers to the stereotypes (how we think), prejudice (how we feel) and
discrimination (how we act) towards others or oneself based on age.

- Adultcentrism is the exaggerated egocentrism of adults, including the belief that an

adult perspective is inherently better. E.g., urban planning, to take decisions, to take into
account, for policies/legislation, etc.

Often, the best interests of children clash with the parents’ rights. According to international and
domestic law, parents have right to protect and educate their children.

- Art. 14.2. Convention of the Rights of the Child : States Parties shall respect the rights
and duties of the parents and, when applicable, legal guardians, to provide direction to
the child in the exercise of his or her right in a manner consistent with the evolving
capacities of the child.

- Art. 14. EU Charter of Fundamental Rights : the right of parents to ensure the education
and teaching of their children in conformity with their religious, philosophical and
pedagogical convictions shall be respected.

- Art. 27.3 Constitución Española: The public authorities guarantee the right of parents to
ensure that their children receive religious and moral instruction that is in accordance
with their own convictions.

On the other hand, states must respect the free development of personality of children. In a
wide interpretation, this should be respected by parents too.

- Article 14.1 Convention: States Parties shall respect the right of the child to freedom of
thought, conscience and religion.

- Article 29.1 Convention: States Parties agree that the education of the child shall be
directed to: (a) The development of the child's personality, talents and mental and
physical abilities to their fullest potential.

- Art. 27.2 Constitución Española: Education shall aim at the full development of the
human character with due respect for the democratic principles of coexistence and for
the basic rights and freedoms.

Making a balance between children’s rights, parents’ rights, protection and autonomy is a very
difficult issue. John Rawls proposes “An acceptable paternalism” of a guardian’s
treatment of his child: “We must choose for others as we have reason to believe they would
choose for themselves if they were at the age of reason and deciding rationally”.

 But the question is: How can adults know what a reasonable child would choose without
adequate knowledge from psychology and neuroscience about child and adolescent
development?

4. SOME CHILDREN’S HUMAN RIGHTS

 4.1. Right to know one’s origin

With the exception of situations when legal and biological parenting do not coincide, children
born in marriage often do not have this right as strongly because they are aware of their parents
from birth. But for children born out of wedlock, adopted children, and children created with
medical help, the child's right to know where they came from is extremely important. These
children often lack automatic access to their biological story, and this knowledge is essential
for: identity formation, emotional well-being, and health.

4.2. Right to education

According to the CRC, States Parties must uphold children's freedom of thought, conscience,
and religion. Additionally, the freedom to express one's religion or beliefs may only be
restricted in ways that are required by law to safeguard public safety, order, health, or morals, or
the fundamental rights and freedoms of others (Article 14/1,3). Therefore, in an effort to bring
religious education closer to the students' faith, some States Parties have made it a required or
elective subject in the curriculum; other states have outright prohibited religion education in
public schools.

It might be argued that religious instruction as part of the school curriculum is not in violation
of the CRC as long as it is not required for all students and is equally offered to adherents of
various religions and denominations, without prejudice.

We believe that learning about the world's major religions, their significance for the
relevant historical period, and their relevance for the present would be more beneficial for
young people than receiving religious instruction or just religious instruction (for example,
through courses like “religious culture” or similar). In addition to enhancing the child's overall
culture, this knowledge can foster tolerance and respect among youngsters from diverse
countries, religions, and cultural backgrounds.

A main question is how compatible the right to the development of the child's personality
(Article 29 CRC) is with the right of parents to ensure that their children receive a religious and
moral education that is in accordance with their own convictions (Section 27.1 Spanish
Constitution).

One way to understand their compatibility is to recognize that a child's personality does
not develop in the abstract—it develops within conditions, including the cultural, moral,
and religious environment provided by the family. In this sense, parental influence is part of
the child’s developmental context. However, there must be a distinction between
indoctrination and awareness raising:

 Indoctrination involves imposing beliefs on a child in a way that restricts their ability
to question, evaluate, or develop their own views. It suppresses the child’s personal
autonomy and therefore conflicts with Article 29 CRC.

 Awareness raising, on the other hand, means introducing children to the family’s
values while also allowing them to explore other perspectives, ask questions, and
eventually form their own convictions. This approach respects both the parents’ rights
and the child’s right to personal development.
 In short, the two rights can be compatible, but only when parental transmission of beliefs
does not block the child's ability to think freely and develop their own personality.
Differentiating between indoctrination and education helps clarify the proper limits of
parental authority.

Additionally, education has different and essential dimensions: family, the social community,
media, and formal education (primary and secondary school). Thus, it must be understood as a
lifelong, multidimensional process that goes far beyond formal schooling. For instance,
university cannot be reduced to a space for acquiring technical skills; it remains part of the
continuum of personal, intellectual, and civic development.

It is this holistic understanding of education which aligns with Article 29 of the CRC, which
emphasizes the full development of the person, not merely the acquisition of knowledge or
professional competence.

4.3. Medical Consent of the Child

This is a problematic issue, particularly when it comes to the child's right to refuse medical
consent or to make an independent decision about abortion, especially if the child's and parents'
opinions do not align, if refusing medical intervention could seriously jeopardise the child's
health or life, or if the child's parents' religious beliefs (such as those of Jehovah's Witnesses)
have a significant influence on such a refusal.

In a number of nations, parents or other legal representatives (guardians) will make decisions on
behalf of minor children who lack the capacity to grant or refuse medical permission.

4.4. The Rights of the Child in Employment

Child labour exploitation is rather common in various nations. Despite the commitment made
by States Parties to the CRC to guarantee and protect children's rights, there are instances in
which this duty is not fulfilled, leaving many children unprotected by the government or their
parents.
UNIT 11: Persons with Disabilities

1. CONCEPT OF DISABILITY

1.1. An Umbrella Term

The central case of disability seems deceptively obvious in popular culture: a severe, permanent
impairment, such as tetraplegia. It is nonetheless impossible for policymakers and philosophers
to agree on a single definition. Many researchers and institutions, like the World Health
Organization, understand disability as an “umbrella” term in order to do justice to its
conceptual breadth. However, which phenomena and values are centrally connected to the
concept of disability remains a highly controversial question.

Descriptively speaking, the concept of “disability” can help us to explain some phenomena due
to its close relationship with other concepts such as normality, capacity, and incapacity. But,
perhaps more importantly, how we understand disability has substantive normative
implications. Concepts and models of disability can serve to attribute a certain value to the
phenomena we call “disability” so that we can decide, individually or collectively, how we
ought to react to them.

The concept of disability can be used to accomplish enormous practical, political, legal, cultural,
psychological, and theoretical (harmful or beneficial) “work” but any such attempt must register
the fact that “disability” has various meanings that cannot be reduced to one another.

At the same time, defining “disability” solely in terms of social responses like stigmatization
and exclusion does not distinguish disability from other oppressions or discriminations. Two
common features stand out in most official definitions of disability, such as those in the World
Health Organization or the U.N. Standard Rules on the Equalization of Opportunities for People
with Disabilities:

1) A physical or mental characteristic labelled or perceived as an impairment or

dysfunction (in the remainder of this entry, we will refer to such characteristics as
“impairments,” without assuming the objectivity or validity of that label), and

2) Some personal or social limitation associated with that impairment.

In between we find definitions which assert that individual impairment and the social
environment are jointly sufficient causes of limitation. Perhaps the best-known example is
the WHO's International Classification of Functioning, Disability and Health (ICF, 2001),
which emphasizes that disability is a “dynamic interaction between health conditions and
environmental and personal factors.” Such interactive definitions predominate in current law
and commentary on disability.

1.2. Disability or functional diversity?

From some decades ago, some people have preferred to use the term ‘functional diversity’
rather than ‘disability’. This view has radicalized the social paradigm (see section 2). The
functional diversity model revolves around a basic idea: people do not have disabilities, but
rather diversity. From this, it follows that what they do not have disability, but rather they
suffer marginalization and injustice due to their diversity. That deficiency is a construct that
responds to an anthropological and normalizing conception of existence, which exalts standard
models of perfection, forgets that we are all dependent, vulnerable, and finite, and subjugates
those who differ from the statistical majority through different strategies, for example,
pathologizing their differences (Canimas Brugué).

Certainly, the term 'disability' is far from ideal, as it indirectly refers to the natural functional
aspects of the human species that are sometimes very difficult to define.

However, there are several important objections to the term 'functional diversity':

a) The difficult delimitation of all these functional aspects does not imply that other
aspects (e.g., two legs and two arms) may be standardized;

b) The term disability implies differentiation, but not necessarily related to stigma and
discrimination. Through education, full inclusion and understanding of people with
disabilities can be achieved;

c) Eliminating the disability label might lead to non-differentiated treatment. Social

policies and law require concepts that delineate specific or differentiating characteristics
in order to adopt positive actions. If there is not a significant difference, there is no
reason to apply social policies. Functional diversity suggests an equality that may
have unintended bad consequences for the well-being of people with disabilities.

2. MODELS OF DISABILITY

These different understandings of the relationship of impairment to limitation inform two main
contrasting approaches to disability, often described as opposing models: the medical and
social.

The medical model understands a disability as a physical or mental impairment of the

individual. It regards the limitations faced by people with disabilities as resulting solely from
their impairments. The medical model appears to support the correction of the biological
condition or some form of compensation when that is impractical.

The medical model may entail compensation and medicalization, but sometimes it is the pretext
to apply a disregard paradigm/model. This view looks down on people with disabilities.
Persons with disabilities are seen as unnatural, non-functional, or a family ‘burden’. Therefore,
the fate of these people is social exclusion, death, or lifelong confinement.

In contrast, the social model which is now the dominant legislative, social-science, and
humanities paradigm for understanding disability as a relation between an individual and
their social environment: the exclusion of people with certain physical and mental
characteristics from major domains of social life. Their exclusion is manifested not only in
deliberate segregation, but in a built environment and organized social activity that preclude or
restrict the participation of people seen or labelled as having disabilities. The social model
appears to favour measures to eliminate or compensate for exclusionary practices and recognize
their injustice.

A joint objection against both models is that they rest on a false dichotomy between
biological impairments and social limitations. A strong version of this objection rejects the
treatment of impairment as a (strictly) biological phenomenon. Claims that there is a stable
biomedical basis for classifying a variation as an impairment are called into question by shifting
classifications; by the “medicalization” of some conditions (some personality disorders) and
“demedicalization” of others (homosexuality). Moreover, the social environment appears to
play a significant role in identifying and, arguably, in creating some impairments (ADHD).

We may stand out two different paradigms in relation to the social model: biopsychosocial and
functional diversity (seen above in Section 1.2).

According to Joan Canimas Brugué, the biopsychosocial paradigm is based on the

differentiation between ‘impairment’ and ‘disability’: it considers that impairment is an
anomaly or abnormality in bodily functions or structures that hinders or prevents the
performance of actions considered valuable (as advocated by the medical paradigm), and
disability is the interaction of this impairment with the world (as advocated by the social
paradigm). Thus, the same deficiency may or may not become a disability, or it may become
so to varying degrees, depending on who and where it occurs. The Convention on the Rights
of Persons with Disabilities (2006) perfectly captures the biopsychosocial paradigm.

Thus, the same impairment can be non-disabling or more/less disabling depending on the social
class, place, and time to which the person or people who have it belong. For example: myopia is
a visual impairment, but if you have the right glasses and the society you live in does not
marginalize or stigmatize, in one way or another, those who wear them, you do not have a
disability.

3. DISABILITY AND JUSTICE

Disability is of special interest for justice because of the way in which it juxtaposes two basic
and powerful senses of injustice. These two senses of injustice are sometimes expressed in
terms of a distinction between the justice of distributions and the justice of recognition, or more
recently, between distributive justice and relational injustice.

Very roughly, we can think of these labels as denoting a distinction between the injustice of
certain outcomes—in particular, outcomes in which there is an inequality of income, wealth,
health, or other aspects of well-being resulting from morally irrelevant factors—and the
injustice of certain forms of treatment—in particular, the treatment of some people as moral,
social, or political inferiors on the basis of morally irrelevant characteristics.

Correcting the first form of injustice is thought to require, fundamentally, a change in the
distribution of resources, broadly construed, that affect well-being. Correcting the second
form of injustice is thought to require, fundamentally, a change in the structure and character
of interpersonal relationships, which may in turn require changes to social and institutional
norms and practices. For example: cognitive accessibility.

The range and variety of physical and mental differences within a society raise issues of
distributive justice that have no obvious analogue for other stigmatized groups. A “gender-
neutral” environment can be readily conceived and achieved at modest cost.

In a practical view, there are three important concepts: universal design, cognitive accessibility,
and reasonable accommodation.
Universal Design means the design of products, environments, programmes and services to be
usable by all people, to the greatest extent possible, without the need for adaptation or
specialized design. Universal means inclusive but does not mean accessible only for persons
with disabilities, all people can profit (for instance, having a ramp makes it accessible to
wheelchair users but it can be used by everyone, and it can actually become beneficial to
everyone in certain occasions).

Cognitive accessibility refers to inclusive practices that remove barriers for people whose
disabilities affect how they process information. Some of these practices could be part of
Universal Design/accessibility. ‘Easy-to-read’ is a very clear example.

Reasonable accommodation means a necessary and appropriate modification and

adjustments not imposing a disproportionate or undue burden, where needed in a
particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal
basis with others of all human rights and fundamental freedoms.

4. DISABILITY AND GROUP IDENTITY

There are many categories or groups into which people can place themselves, and be placed, on
the basis of their varying characteristics. The salience and appeal of these categories depend on
social and historical context as well as individual preferences and values. Identity and identity
politics become important as members of historically excluded groups challenge their status and
work for inclusion.

Although people with disabilities are not always understood as sharing an identity, their
awareness of membership in an oppressed group has been shaped by exclusionary laws and
customs. A sense of group identity has been further encouraged by welfare, social security and
other laws that place people with various disabilities in a single category, even if they define
that category in different ways.

In contrast, some people claim their specific characteristic as part of a cultural group and not as
a disability. This is the case of many members of the deaf community, since they have their own
(sign) language. They argue that they live a shared history is both personal and social.

5. ONGOING ISSUES OF DISABILITY RIGHTS

5.1. Disability and Employment:

The International Labour Organization (ILO) estimate that a majority of disabled people in the
world are of working age – some 470 million – yet the extent of their collective exclusion from
full participation and equality in employment is marked.

In this sense, it is necessary an active intervention in the labour market is needed to reshape the
opportunities within that market. The evolution of public intervention to promote the
employment of disabled people in contemporary welfare states is strongly associated with the
emergence of ‘active labour market policies’.

5.2. Disability and Education

Article 24 CRPD establishes the right to education for persons with disability without
discrimination based on the principle of inclusive education and promotes reasonable
accommodation of an individual’s requirements. But many times, according to the specific
context, a special education is the best option to persons with disabilities.

CRPD General Comment 4 makes clear that excluding or segregating persons with disabilities
from the general education system constitutes discrimination. Children with disabilities have
very low rates of initial enrolment. Even if they do attend school, children with disabilities are
more likely to drop out and leave school early without transitioning to secondary school and
beyond (GCE, Equal right, equal opportunity report, 2014). Children with disabilities are also at
increased risk of school violence and bullying, preventing the safe enjoyment of their right to
education (UNESCO, School violence and bullying: Global status report, 2016).

5.3. Disability and Political Participation

Despite the large and growing number of disability activists over the past few decades, people
with disabilities in general tend to be less likely than non-disabled people to engage in standard
political activities such as voting. Voting can be discouraged by barriers getting to or using
polling places, which make voting more time-consuming and difficult. People with disabilities
tend to have fewer resources for political participation, including lower average education and
income levels, and often must spend extra money, time, and energy on disability-related
matters, which further decreases their ability to participate in politics.

Most democratic countries either limit or deny altogether voting rights for people with cognitive
impairments or mental health conditions. Some countries have constitutional provisions or
parliamentary legislation that exclude whole classes of people — such as those under
guardianship — whereas others have provisions to exclude individuals based on individual
assessments of ‘capacity’. Many international and state-based human rights organizations argue
that Article 29 creates an obligation on all states that have ratified the Convention to ensure full
voting rights for persons with cognitive impairments.

5.4. Disability and Reproduction

The new cell-free foetal DNA (cffDNA) technologies mean that non-invasive tests can provide
information about the foetus with a high degree of accuracy by the tenth week of pregnancy.
These developments seem to have the potential to have a far greater impact than embryo
selection, via pre-implantation genetic diagnosis (PGD), which is offered to couples undergoing
in-vitro fertilization (IVF).This implies a vast expansion in the detection possibilities: not just of
trisomies such as Down syndrome, but potentially a “fishing expedition” to find any single gene
condition, or indeed genetic difference, however trivial. For example, sex selection remains
controversial but is a possibility that is actively promoted in this new world of reproductive
choice.

One set of arguments hones in on whether a baby is itself harmed by being born with a
disability that could have been prevented. Derek Parfit’s famous “non-identity problem”
reminds us that the individual with a disability is not harmed, counter-intuitively, because they
would not exist if the pregnancy had been terminated on grounds of disability. A different
person would have been born at a later date, but they themselves only face the possibility of
existence with disability, or non-existence. Unless the disability is so grievous that it would be
better not to exist, then they are not harmed by being brought into the world with disability.

There are some difficult questions to answer: for Down syndrome, spina bifida, achondroplasia,
and many of the common conditions for which screening is offered; is nonexistence is usually
not regarded as better than living with the condition? What about a woman's right to voluntarily
choose pregnancy? Do you think terminating a pregnancy is justified to avoid a life with
disabilities? And, in your personal opinion, what specific degree of disability would justify
terminating a pregnancy? Why?

5.5. Sexual and reproductive health rights of women with disabilities

Only nine EU countries criminalise forced sterilisation as a distinct offence, while 13 allow it to
be performed on persons with disabilities – and in three of those countries that includes minors.
When it comes to the sexual and reproductive health rights of women with disabilities, the EU is
far from being a union of equality, an EESC hearing revealed

The sexual and reproductive health rights of women and girls with disabilities still remain
a taboo both within the EU and globally. The United Nations Convention on the Rights of
Persons with Disabilities (UNCRPD) and the Istanbul Convention, both ratified by the EU,
clearly state that persons with disabilities should enjoy the same sexual rights and retain
their fertility on an equal basis with others. However, the gap between the legislation and
people’s lived experience is enormous.

5.6. Sexual assistance: a right for people with disability or a covert sexual exploitation
for women in financial need?

Some persons with disabilities claim that they have ‘right’ to feel their sexuality. For this, they
need sexual assistance. On the other hand, some people argue that it is a covert type of sexual
exploitation, since most of those sexual workers are in financial need.

The central point revolves around these questions:

 If the majority of sex workers are women, isn't this a reflection of patriarchy?

 Is a woman's will free? This answer depends on each person's view of whether our
decisions are completely free or whether they are heavily conditioned by our social
context.

 Is sexuality a service that can be offered? Can our bodies be used even if it entails
exploitation?

5.7. The right to live ‘independently’ and being included in the community

Article 19 of the Convention recognize the equal right of all persons with disabilities to live
in the community, with choices equal to others, and shall take effective and appropriate
measures to facilitate full enjoyment by persons with disabilities of this right and their full
inclusion and participation in the community, including by ensuring that:
 a) Persons with disabilities have the opportunity to choose their place of residence and
where and with whom they live on an equal basis with others and are not obliged to live
in a particular living arrangement;

b) Persons with disabilities have access to a range of in-home, residential and other
community support services, including personal assistance necessary to support living
and inclusion in the community, and to prevent isolation or segregation from the
community;

c) Community services and facilities for the general population are available on an equal
basis to persons with disabilities and are responsive to their needs.

What is independent living?

“Independent living means that individuals with disabilities are provided with all
necessary means to enable them to exercise choice and control over their lives and make
all decisions concerning their lives…”. “includes the opportunity to make real choices
and decisions regarding where to live, with whom to live and how to live” (European
Disability Forum).
UNIT 12: Migrants
1. PEOPLE ON THE MOVE

Migration denotes the process of human mobility. Humanity has always been in motion, since
its origins. The complex issue of migration involves a multitude of dimensions, implying
economic, sociological, political, and legal aspects.

The causes of migration can be divided into two main categories:

a) the dimension of security, concerning persons threatened by natural disasters, internal

or international conflicts, threats to individual safety, or persecution; and
b) the dimension of economy linked to a poor economic situation of a State, region, or an
individual.

According to the international law, no State is obliged to admit aliens to its territory except
under treaty obligations or because of general human rights standards. A great number of
bilateral and multilateral treaties provide for the admission and the position and status of aliens.
International treaties allow States to rule migration in order to achieve their interests. In this
case, States decide on the legal status of the migrants by applying their instruments of law
according to international law.

International treaties of this kind, such as the Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families (1990), especially include human rights
aspects. For example, the granting of social rights.

In any case, nobody is illegal, we can either refer to irregular migration or people in an irregular
administrative situation or without a legal authorization.

2. WHO ARE MIGRANTS?

It is a commonplace to define a migrant as a non-citizen “in the eyes” of a particular receiving

State or legal order. The rights of subgroups of migrants—e.g., asylum seekers, migrant
workers, refugees, stateless persons, trafficked persons, etc.—are frequently discussed and
defined in isolation, without taking into account the similarities these human beings experience
as non-citizens. In what follows we shall inspect some of the basic subcategories of migrants.

2.1. Migrant Workers

Art. 2 (1) of the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families (1990) (‘ICRMW’) defines a migrant worker as ‘a
person who is to be engaged, is engaged or has been engaged in a remunerated activity in a
State of which he or she is not a national’.

Specific instruments of the International Labour Organization (ILO) protect migrant workers,
and relevant regional instruments limit their definitions of migrant workers to persons in a
regular situation, e.g., those who have entered lawfully in accordance with the admission rules
of the country concerned.
 2.2. Refugees

From a strictly legal point of view, a refugee is a person forced to move outside the country
of his, her or their nationality, fearing persecution out of certain grounds.

More generally, a refugee is a person who flees his, her or their habitual place of residence and
seeks refuge elsewhere. The person may leave his, her or their home due to natural disasters
or human-made situations, for example out of fear of persecution, war, or other circumstances
threatening his or her individual sphere of interest. After a certain period of time the person may
return to their home country or may stay in the destination country for an unlimited time.

However, this wide description does not yet entail concrete legal consequences, because there is
no consent on a general legal definition of the term refugee at the level of customary
international law.

The fundamental legal instrument for the protection of refugees is the 1951 Convention relating
to the Status of Refugees (‘Refugee Convention’), modified by the 1967 Protocol relating to the
Status of Refugees (‘Refugee Protocol’). There are further legally binding international
provisions relating to the situation of refugees or their status, e.g., Art. 44 of the Geneva
Convention relative to the Protection of Civilian Persons in Time of War, which deals with
refugees and displaced persons, and Art. 73 of the Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts, which stipulates that refugees and stateless persons shall be protected persons
under parts I and III Geneva Convention IV.

The 1951 Refugee Convention is not like most other human rights treaties, and it is styled as a
convention relating to the status of refugees, rather than one on the rights of refugees. States
may grant the rights linked to the refugee status only if there was a formal determination
of the status. Before the authorities of the State can take this decision, it has to be examined if
the person satisfies the relevant criteria, especially if a ground of persecution provided for by
Art. 1 A (2) Refugee Convention is given.

During the procedure, the refugee is in most cases physically present in the State and enjoys
procedural rights. The State of refuge is obliged to guarantee fairness and a minimum standard
of substantial rights. Fair and effective procedures are an essential element in the full
application of the Refugee Convention. The right to free access to the courts laid down in Art.
16 Refugee Convention can only be effectively exercised if the procedure for the determination
of refugee status is fair. As the Refugee Convention does not explicitly provide for procedural
rules, the content and realm of the procedural rights cannot be easily identified, and State
practice is not coherent. In many countries, the UNHCR participates in the procedures or, at
least, tries to influence the procedure of determination of refugee status.

The 1951 Convention does not deal with the question of admission, and neither does it oblige
a state of refuge to accord asylum as such or provide for the sharing of responsibilities (for
example, by prescribing which state should deal with a claim to refugee status). The 1951
Convention is sometimes portrayed today as a relic of the Cold War, inadequate in the face of
‘new’ refugees from ethnic violence and gender-based persecution, insensitive to security
concerns, particularly terrorism and organized crime, and even redundant, given the protection
now due in principle to everyone under international human rights law.
 Under international law,
Art. 1 A (2) Refugee
This definition requires that the fear of persecution was the
Convention defines the
reason for fleeing the State and it requires that the person
notion ‘refugee’:
crosses a border. Persons fleeing from natural disasters,
- as a person who, civil wars, or economic crisis do not fall into the scope of
owing to a well- the Refugee Convention. However, the responsibility of
founded fear of the United Nations High Commissioner for Refugees was
being persecuted extended by unanimous consent of the Member States to
displaced persons in refugee-like situations. This includes
- for reasons of race, persons who are compelled to leave their home because of
religion, human-made disasters, e.g. armed conflicts or other political
nationality, and social upheavals.
membership of a
particular social The legal principle of non-refoulement is the cornerstone
group or political of asylum and of international refugee law. It is a principle in
opinion, the sense that it connects the legal duty of receiving States
not to expel or return (‘refouler’) a refugee with a correlative
- is outside the
legal claim-right of a refugee not to be repelled or returned
country of his
in any manner whatsoever to the frontiers of territories
nationality and is
where one’s life or freedom would be threatened on account
unable or, owing to
of one’s race, religion, nationality, membership of a
such fear, is
particular social group or political opinion. The observance
unwilling to avail
of the principle of non-refoulement is intrinsically linked to
himself of the
the determination of refugee status.
protection of that
country; Procedures or arrangements for identifying refugees
- or who, not having should provide a guarantee against refoulement, by
a nationality and ensuring that persons who are entitled to protection do in fact
being outside the receive it. Such procedures or arrangements are particularly
country of his important when a country receives both asylum-seekers and
former habitual migratory movements. In UNHCR's view, respect for the
residence as a result principle of non-refoulement can therefore be most
of such events, is effectively ensured if claims to refugee status and asylum are
unable or, owing to determined substantively and expeditiously.
such fear, is
Blunt denials of access or turn-back policies of States are
unwilling to return to
hardly compatible with the principle of non-refoulement.
it.
States are entitled to introduce or continue a system of
immigration control including the imposition of visa requirements. States Parties to the
Refugee Convention cannot escape their responsibilities by intercepting refugees or by
deporting them to areas outside the State borders including the territorial sea or the so-
called international zones. Extraterritorial refoulement is subject to the same rules as any other
refoulement.

2.3. Asylum Seekers

The comprehensive protection of human dignity is the ultimate goal pursued when
granting asylum or refuge. However, although the purpose is the same, these two concepts
should not be understood as synonymous.

Asylum consists of the right to humanitarian aid that an individual has to seek protection
beyond the borders of their country. Generally speaking, asylum is requested when there is a
conflict or persecution of any kind that puts the applicant's safety and life at risk.

There are specific reasons or circumstances under which a person may request asylum.
These reasons are related to threats based on political or religious ideologies, nationality, sexual
orientation, social class, or ethnic group.

In Spain, the legislation is very specific regarding the terms asylum and refuge for immigrants.
The concept of asylum only applies to requests for protection in individual cases, where a
person requests protection alleging persecution in their country.

Refugee status, in Spain, is established when it involves not a single individual in a particular
situation, but a group of people forced to flee due to circumstances that endanger their
lives. This mass exodus is very common in situations of war, famine, or natural disaster.

There is also subsidiary international protection, a protective measure established for those
who do not meet the criteria for individual persecution required for asylum, but who cannot
return to their country of origin for specific reasons.

In this sense, subsidiary international protection, like asylum, guarantees that the individual will
not be expelled from Spain after being granted this protection.

2.4. Stateless Persons

In several international conventions, the term ‘statelessness’ is generally defined as the

situation of being without citizenship or nationality—the two terms are used synonymously
in international law—of any State. But besides legally or de iure stateless persons, there are also
effectively or de facto stateless persons, who are citizens of a State, but are not adequately
protected by it or are unable to establish their citizenship. Since both groups of persons
suffer from a lack of State protection, these two types of statelessness have been internationally
recognized to accommodate this phenomenon. Persons may either be rendered stateless
because they were a priori denied a nationality or because they were subsequently
deprived of it. Statelessness is an undesirable anomaly under international law. Yet ultimately,
only States can grant nationality to a person. International instruments can merely encourage
and assist States in altering their nationality laws and practices.

Although an absolute obligation on States to prevent statelessness has not yet been
recognized, States are nevertheless obliged to prevent statelessness in certain cases
pursuant to basic human rights principles, such as the principles of non-discrimination,
equality, and due process. For example, since ethnic and gender discrimination are prohibited
under customary international law and have by now even gained the status of ius cogens,
denationalization on these grounds is unlawful.

Most stateless persons tend to be ethnic minorities, who are denied or deprived of their
citizenship as part of a wider discrimination by their State of residence.
The 1954 Convention relating to the Status of Stateless Persons has been ratified by 96 States
and the Convention on the Reduction of Statelessness has been ratified by 78 States. Neither of
these two conventions provides for a monitoring system.

2.5. Internally Displaced Persons

Internally Displaced Persons (‘IDPs’) are described by the United Nations Guiding
Principles on Internal Displacement as persons or groups of persons who have been forced
or obliged to flee or to leave their homes or places of habitual residence, in particular as a
result of or in order to avoid the effects of armed conflict, situations of generalized
violence, violations of human rights or natural or human-made disasters, and who have
not crossed an internationally recognized State border.

IDPs are similar to refugees in the sense that they may share the same experiences, needs,
fears, and wants. Consequently, IDPs are sometimes referred to as ‘internal refugees’.
However, this label is misleading as there is a significant legal distinction between IDPs and
refugees which stems primarily from the fact that a refugee has crossed an international frontier.
A refugee is granted legal status and a range of rights set out in the Convention Relating to the
Status of Refugees (1951) (‘Refugee Convention’) and falls within the protection mandate of
the UN Refugee Agency, the UNHCR. IDPs, on the other hand, remain the responsibility of
the State and have no specific international agency to protect them.

There is no explicit prohibition of internal displacement in any legally binding

international agreement. Human rights law is nonetheless relevant as it applies to all humans
without distinction and some instruments contain provisions that are particularly relevant to the
internally displaced. Art. 12 International Covenant on Civil and Political Rights (1966)
(‘ICCPR’), for example, protects freedom of movement and thus forced displacement is
prima facie unacceptable under the ICCPR.

3. THE NORMATIVITY OF BORDERS

The normativity of borders is commonly understood as the normativity of popular

sovereignty everything in the discussion about the human rights of migrants revolves in explicit
or implicit terms around ideas of sovereignty. A migrant is an Other in relation to those who
are members of a sovereign people.

There are three huge issues about the normativity of borders and migrations policies:

1) The measures adopted by the States to prevent and respond to irregular migration do
not always respect the dignity and fundamental rights of immigrants. The violation
of human rights in camps or detention centres are common (in Europe, USA or other
countries). For example: Spain uses “hot deportations” in the fence of Melilla. This
point is very connected to the externalisation of borders.

2) Externalisation of borders. EU and some specific States have transferred the border
management to third countries. The only factor that is considered is geopolitical interest
and the perceived threats to European countries. These agreements produce illegal
deportations and systematic violations of asylum rights.
 This is the case of the Agreement between EU and Turkey, adopted in 2016. In 2017
Italy also externalised its borders (agreement with Libia, renewed in 2019). Or the
agreement between Spain and Morocco signed in 1992 on the readmission of foreigners
who illegally enter Spanish territory. Another example on control or borders is the
agreement between USA and Mexico.

3) Criminalization of solidarity and the defence of the rights of migrants. Some States
have adopted measures that restrict the abilities to NGOs to rescue refugees in the sea
(accusing them of smuggling) and threaten associations and citizens with legal
sanctions if they aid refugees.

States do not comply with their international obligations under “the law of the sea” of
searching and rescuing people distress at sea. UN Convention on the Law of the Sea
(UNCLOS), called also Montego Bay Convention, the International Convention for the
Safety of Life at Sea (SOLAS), and the international Convention on Maritime Search
and Rescue (SAR). Whoever does not rescue people in danger at the sea commit a
Criminal offence consisting on Non-Assistance to a person in situation of Danger
(Omisión del Deber de socorro).

In any case, the normativity of borders cannot be only a question of identity (who) but
rather a question of place (where). For example: (a) in one State citizens with different culture
identities may live together, such as the USA; and (b) several States can agree each other to
‘unify’ the borders, despite the diverse identities, such as the European Union.

Facts about borders are first and foremost answers to questions about locations, places, regions.
When two neighbouring countries share a river basin that keeps changing due to natural causes
their borders will be equally affected. But they will be affected in a way that is not relevant for
answering the who question but in a way that is relevant to answering a where question: for
example, on which side of the river lies the most fertile soil, how has an earthquake affected the
location and accessibility of underground ores of the region etc.

It goes without saying that this way of framing the debate on migration changes entirely the
terms of the discussion and paves the way for more progressive answers to the question of how
we should treat migrants.

Immigration is usually perceived as a matter of economic stability and security. Although these
kinds of issues are not completely black or white, the data rejects the myth that immigration
leads to more crime or that worsens the national economy.

These descriptive ‘Where’ questions can matter also normatively but not in the sovereignty
(WHO) sense. The relevant normative sense here is Justice. Persons should be in the centre of
any policy.

Justice is about the allocation of resources and a place to stay, work and lead a life is itself a
resource. Allocation literally means to transfer something from one place (physical or
symbolic) to another.
UNIT 13: Grave Violations of Human Rights

1. INTRODUCTION

During the 2005 United Nations World Summit, heads of state and government accepted the
responsibility of every state to protect its population from four crimes: genocide, war crimes,
crimes against humanity and ethnic cleansing.

The first three crimes are legally defined in various international legal documents, such as the
1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1949
Geneva Conventions and their 1977 Additional Protocols, and the 1998 Rome Statute of
the International Criminal Court.

Their status as international crimes is based on the belief that the acts associated with
them affect the core dignity of human beings, both in times of peace and in times of war.

2. GENOCIDE

Genocide means acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, including:

 Killing members of the group;

 Causing serious bodily or mental harm to members of the group;

 Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

 Imposing measures intended to prevent births within the group;

 Forcibly transferring children of the group to another group.

To constitute genocide, there must be a proven intent on the part of perpetrators to

physically destroy a national, ethnic, racial or religious group. Victims of this crime are
deliberately – and not randomly – targeted because of their real or perceived membership in
one of the four protected groups. Genocide can also be committed against only a part of the
group, as long as that part is identifiable and “substantial.”

ETHNIC CLEANSING

Ethnic cleansing has not been recognized as an independent crime under international
law, because it is usually included as an act of genocide. The term surfaced in the context of
the 1990’s conflict in the former Yugoslavia and has been used in resolutions of the UN
Security Council and the General Assembly. Notably, the term has been acknowledged in
judgments and indictments of the International Criminal Tribunal for the Former Yugoslavia,
although it did not constitute one of the counts for prosecution.

A UN Commission of Experts mandated to look into violations of international humanitarian

law committed in the territory of the former Yugoslavia defined ethnic cleansing in its interim
report as “rendering an area ethnically homogeneous by using force or intimidation to
remove persons of given groups from the area” and as “a purposeful policy designed by
one ethnic or religious group to remove by violent and terror-inspiring means the civilian
population of another ethnic or religious group from certain geographic areas.”

The Commission also stated that coercive practices used to remove the civilian population
can include: murder, torture, arbitrary arrest and detention, extrajudicial executions, rape and
sexual assaults, severe physical injury to civilians, forcible removal, displacement and
deportation of civilian population, deliberate military attacks or threats of attacks on civilians
and civilian areas, use of civilians as human shields, destruction of property, and robbery of
personal property, as well as attacks on hospitals, medical personnel, and locations with the Red
Cross/Red Crescent emblem.

3. WAR CRIMES

There is no single document in international law that codifies all war crimes. Lists of war
crimes can be found in both International Humanitarian Law (the Hague and Geneva
Conventions) and International Criminal Law treaties (the Rome Statute of the International
Criminal Court), as well as in international customary law.

War crimes take place in the context of an armed conflict, either international or non-
international. What constitutes a war crime may differ depending on whether an armed
conflict is international or non-international.

The Rome Statute of the ICC makes a distinction between four categories of war crimes,
depending on its character:

A) War crimes in international armed conflicts include:

 Grave breaches of the 1949 Geneva Conventions, such as:

o Wilful killing, torture or inhuman treatment, or wilfully causing great suffering

or serious injury to body or health against the sick, wounded and shipwrecked
persons not taking part in hostilities, prisoners of war and other detainees,
civilians and civilian objects.

o Extensive destruction and appropriation of property, not justified by military

necessity and carried out unlawfully and wantonly.

 Other serious violations of the laws and customs, such as:

o Intentionally directing attacks against the civilian population as such or against

individual civilians not taking direct part in hostilities;

o Intentionally directing attacks against civilian objects, that is, objects which are
not military objectives;

o Attacking or bombarding, by whatever means, towns, villages, dwellings or

buildings which are undefended and which are not military objectives;

o Employing poison or poisoned weapons.

 B) War crimes in non-international armed conflicts include:

 Serious violations of Article 3 common to the 1949 Geneva Conventions, such as:

o Violence to life and person, in particular murder of all kinds, mutilation,

cruel treatment and torture of persons taking no active part in the hostilities,
including members of armed forces who have laid down their arms and
those placed hors de combat by sickness, wounds, detention, or any other
cause against the sick, wounded and shipwrecked persons not taking part in
hostilities, prisoners of war and other detainees, civilians and civilian
objects.

 Other serious violations of the laws and customs, such as:

o Intentionally directing attacks against the civilian population as such or

against individual civilians not taking direct part in hostilities;

o Intentionally directing attacks against buildings dedicated to religion,

education, art, science or charitable purposes, historic monuments, hospitals
and places where the sick and wounded are collected, provided they are not
military objectives.

By contrast to genocide and crimes against humanity, war crimes can be committed against a
diversity of victims, either combatants or non-combatants, depending upon the type of
crime.

4. CRIMES AGAINST HUMANITY

Crimes against humanity have not yet been codified in a separate treaty of international law,
unlike genocide and war crimes, although there are efforts to do so. The crime has, however,
been clearly defined in the Rome Statute of the International Criminal Court. The crime against
humanity means acts committed as part of a widespread or systematic attack directed
against any civilian population, such as:

- Murder;

- Extermination;

- Deportation or forcible transfer of population;

- Torture;

- Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or

any other form of sexual violence of comparable gravity;

- The crime of apartheid;

- Other inhumane acts of a similar character intentionally causing great suffering, or

serious injury to body or to mental or physical health.
Crimes against humanity involve either large-scale violence in relation to the number of
victims or its extension over a broad geographic area (widespread), or as part of a wider
policy or plan (systematic). This excludes random, accidental or isolated acts of violence.

5. TORTURE

We usually understand torture as:

a) the intentional infliction of extreme physical suffering on some non-consenting,

defenceless person;
b) the intentional, substantial curtailment of the exercise of the person’s autonomy
(achieved by means of (a));
c) in general, undertaken for the purpose of breaking the victim’s will.

In various national and international laws, e.g., Convention against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (1984), a distinction is made between
torture and inhumane treatment, because torture is a specific type of inhumane treatment.

Such a distinction needs to be made. For one thing, some treatment, e.g., flogging, might be
inhumane without being sufficiently extreme to count as torture. For another thing, some
inhumane treatment does not involve physical suffering to any great extent, and is therefore not
torture, properly speaking (albeit, the treatment in question may be as morally bad as, or even
morally worse than, torture). Some forms of the infliction of mental suffering are a case in
point, as are some forms of morally degrading treatment, e.g., causing a prisoner to pretend to
have sex with an animal.

International law provides

a fairly precise definition of
Nowadays the concern is mostly with interrogational
torture that separates illegal
torture: torture to obtain information. It seems that in
practices into two categories
general torture is undertaken for the purpose of breaking the
while also providing that not
victim’s will. If true, this distinguishes torture for the sake of
all mistreatment amounts to
breaking the victim’s will from the other four purposes
torture. Thus, the
mentioned above. For with respect to each one of these four
Convention against Torture
purposes, it is not the case that in general torture is
and Other Cruel, Inhuman or
undertaken for that purpose, e.g., in most contemporary
Degrading Treatment or
societies torture is not generally undertaken for the purpose
Punishment declares (Article
of punishing the victim.
1):
Achieving the purpose of breaking the victim’s will is very
“means any act by which
often a necessary condition for the achievement of the other
severe pain or suffering,
four identified purposes (and, indeed, for the achievement of
whether physical or
sadistic pleasure). In the case of interrogatory torture of an
mental, is intentionally
enemy spy, for example, in order to obtain the desired
inflicted on a person for such
information, the torturer must first break the will of the
purposes as
victim.
1) obtaining from him
Torture is absolutely prohibited under all the major
or a third person
international human rights and humanitarian law
information or a
confession,

2) punishing him for

an act he or a third
person has
conventions. This unconditional ban also forms part of customary international law and,
arguably, amounts to a pre-emptory norm of international law. No country around the world
admits to the use of torture by its agents or openly challenges the absolute nature of the
prohibition. Indeed, most governments proudly point out to specific provisions in their
respective national constitutions and penal codes that prohibit torture and attach criminal
sanctions to acts amounting to torture.

In addition to prohibiting torture, the UN Convention binds signatories to “undertake to

prevent... other acts of cruel, inhuman or degrading treatment or punishment which do not
amount to torture.” The Convention does not define “cruel, inhuman or degrading
treatment or punishment,” but the United Nation’s Code of Conduct for Law Enforcement
Officials says that the phrase “should be interpreted so as to extend the widest possible
protection against abuses, whether physical or mental.”

In the case of the Bush Administration and CIA, the USA government used the euphemism
“Enhanced interrogation techniques” to commit torture. These euphemisms for the program of
systematic torture of detainees by the Central Intelligence Agency (CIA), the Defence
Intelligence Agency (DIA) and various components of the U.S. Armed Forces at remote sites
around the world, including Bagram, Guantanamo Bay, Abu Ghraib, and Bucharest authorized
by officials of the George W. Bush administration.