1) The document traces the evolution of human rights from regional to international standards. It discusses the rise of human rights in the European Union, American States, African Union, Arab States, and South East Asia leading to various declarations and charters.
2) It explores the concept of human rights as part of international law and the path towards universalism. It discusses peremptory norms (jus cogens) and their status as being superior to other international agreements and treaties. Prohibitions against acts like aggression and genocide are seen as having acquired jus cogens status.
3) The document examines issues around state liability for breaches of jus cogens rights and questions around state immunity from civil claims regarding alleged
1) The document traces the evolution of human rights from regional to international standards. It discusses the rise of human rights in the European Union, American States, African Union, Arab States, and South East Asia leading to various declarations and charters.
2) It explores the concept of human rights as part of international law and the path towards universalism. It discusses peremptory norms (jus cogens) and their status as being superior to other international agreements and treaties. Prohibitions against acts like aggression and genocide are seen as having acquired jus cogens status.
3) The document examines issues around state liability for breaches of jus cogens rights and questions around state immunity from civil claims regarding alleged
1) The document traces the evolution of human rights from regional to international standards. It discusses the rise of human rights in the European Union, American States, African Union, Arab States, and South East Asia leading to various declarations and charters.
2) It explores the concept of human rights as part of international law and the path towards universalism. It discusses peremptory norms (jus cogens) and their status as being superior to other international agreements and treaties. Prohibitions against acts like aggression and genocide are seen as having acquired jus cogens status.
3) The document examines issues around state liability for breaches of jus cogens rights and questions around state immunity from civil claims regarding alleged
1) The document traces the evolution of human rights from regional to international standards. It discusses the rise of human rights in the European Union, American States, African Union, Arab States, and South East Asia leading to various declarations and charters.
2) It explores the concept of human rights as part of international law and the path towards universalism. It discusses peremptory norms (jus cogens) and their status as being superior to other international agreements and treaties. Prohibitions against acts like aggression and genocide are seen as having acquired jus cogens status.
3) The document examines issues around state liability for breaches of jus cogens rights and questions around state immunity from civil claims regarding alleged
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International Protection of Human Rights (IPHR) – UOL LLB Programme – Nations School of Law
Worksheet 1 The Rise of Human Rights – Universalism vs Cultural Relativism Introduction The subject of human rights has experienced a very unique evolution over time. The work by the International Human Rights Committee, the Vienna Conference and the very many other international organizations and supranational bodies (WTO, IMF, EU. UN among others) have tried relentlessly and has been in the assiduous pursuit towards establishing a universally accepted Human Rights Treaty applicable across all jurisdictions (eastern and western). However, this process of evolution requires an understanding, documentation and chronological passage of regional recognition and acceptance towards an international acceptance. It is undisputable that globalization has played a significant role in the relentless pursuit of establishing human rights on a universal level. However, we need to trace the regional development first and foremost, then the international development. 1. The rise of human rights in the EU It should be noted that at the inception of the creation of the European Economic Community (as it was then called) – was primarily focused on the economic benefits to be had from harmonization of an internal market. Hence the name ECA. Then the name changed to the European Community and eventually the European Union – which obviously widened the scope of the mandate of the EU altogether. Initially it was understood that the approach adopted by the court of justice was characterized by the recognition that the absence of written provisions of fundamental rights did not negate their existence. subsequently, the treaties were amended to give greater and expressed reference to human rights standards. The first time Human rights was explicitly referred to was in the Maastricht treaty – Art 6 TEU. Art 6 TEU reflects three elements of human rights protection in the Union. Despite some initial reluctance to pronounce on human rights matters, there was pressure on the ECJ from the courts in Germany and Italy for union law to pay regard to fundamental human rights. In Internationale Handelsgesellschaft – the court of justice held that the protection of fundamental rights, whilst inspired by constitutional traditions common to member states must be ensured within the framework of the structure and objectives of the union. In the case of Omega – the court of justice stated that it was immaterial whether a fundamental human right had its source in national constitution or union legal order as a general principle of law since union law would protect such a right whatever its source.
2. The rise of human rights in the American states
The accession of the American states to human rights inevitably lead to the American Declaration of Human Rights 1948 which made progress in the 1990’s towards abolishing the death penalty across many states. 3. The rise of human rights in the African Union Lead to the African charter on Human Rights. Some of its most significant contributions included recognition of the right of existence, self-determination, international peace and security and generally a clean and satisfactory environment. 4. The rise of human rights in the Arab States Lead to the Arab Charter of Human Rights 2004. However, there were some concerns that some of its provisions were inconsistent with the existing human rights standards. For example – Art 7 – reservation to implement the death sentence on those below the age of 18 were inconsistent both with international human rights convention as well as the international rights of the child. Art 2 (3) reference to the prohibition of all forms of racism, Zionism and foreign occupation and domination constituting an impediment to human dignity and a major barrier to existing fundamental rights of the people was indeed questionable and publicly denounced by the UN High Commissioner as the charter publicly equating Zionism with racism was not in conformity with the general assembly resolution that rejects Zionism as a form of racism and racial discrimination. 5. The rise of human rights in South East Asia ASEAN intergovernmental commission on human rights and the ASEAN human rights declaration. Has been denounced as allowing too much cultural relativism and having been drafted without input from civil society. The use/ benefit of comparative law in human rights See the following cases on the criminalization of euthanasia/ mercy killing in US – Washington v Glucksberg Uk – pretty v dpp, r v Nicklinson Canada – Rodrigues v AG of Canada
human rights as part of international law – on the path to achieving universalism
human rights are beyond simple bilateral or multilateral treaties. Human rights have eventually emerged as customary international law and then elevated itself to general principles of law. For example the prohibition of arbitrary arrest and detention under the Universal Declaration of Human Rights. Human rights have even established itself in the vertical hierarchy of international law. It has been stated that human rights should be treated as having a superior position in international law. There are two arguments posited in favour of this hierarchical placement of human rights in international law: (a) Art 103 of the UN charter states that in the event of conflict between provisions of the charter and obligations under other international agreements, obligations under the CHARTER shall prevail. (b) The Vienna Convention on the Law of Treaties states that any treaty which at the time is in violation of a peremptory norm (jus cogens) shall be considered void. A peremptory norm is a norm that enjoys a higher rank in the international hierarchy of human rights and is superior to any other treaty and even ordinary customary rules. The rule on the prohibition against torturous, inhumane and degrading treatment/ punishment is a peremptory norm.
Human rights as peremptory norm (jus cogens)
How do you recognize peremptory norms in international human rights law? Are they universal or regional? The Vienna convention refers to jus cogens being universal. However, there has been uncertainty of the list of human rights falling under this category. It has been accepted that rights such as prohibition of aggression, genocide, slavery, racial discrimination, denial of rights of self determination have acquired the status of jus cogens and are superior to other rights in the UN CHARTER / VIENNA CONVENTION. The problem however of relying more systematically on Jus Cogens is determining the exent of STATE LIABILITY – if human rights falling under jus cogens are breached. The breach of jus cogens rights should carry serious consequences on state responsibility. Jus cogens rights carrying Erga Omnes classification – binding on all member states and carrying universal condemnation should allow one state to take action against another and suspend the rules against extraterritorial jurisdiction of states. (see the rules under prohibition of torturous, inhumane and degrading treatment See also the issue of STATE IMMUNITY - see the case of AL – Adsani v UK (2001) – at para 66 – p/ 103 in Olivier De Schutter (3rd edition) “while the court noting the growing recognition of the overriding importance of the prohibition of torture, does not accordingly find it established that there is yet acceptance in international law of the proposition that states are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum state. The UK Act granting immunity to states in respect of personal injury claims unless the damages were caused within the UK was not inconsistent with those limitations generally accepted by the community of Nations as part of the doctrine of state immunity.
