Summary Ch. 1 - 6, 8 - 11, 13, 14,15,17

Summary Ch. 1 - 6, 8 - 11, 13, 14,15,17 International Human Rights Law and Practice Ilias Bantekas

9781009306379 

Cambridge University Press 4 th edition 2024

Pages book: 1043

This summary: 75

Reading time: 180 min. 1 / 4

Contents Chapter 1 - International human rights law and notions of human rights: foundations, achievements and challenges...................................................................................................................................................2 Chapter 2 - International human rights law: the normative framework.....................................................14 Chapter 3 – Human Rights in Practice......................................................................................................24 Chapter 4 – The United Nations Charter System......................................................................................26 Chapter 5 – The UN Human Rights Treaty System..................................................................................30 Chapter 6 – Regional Human Rights Treaty Systems...............................................................................34 Chapter 8 – Civil and Political Rights.......................................................................................................41 Chapter 9 – Economic, social and cultural rights......................................................................................51 Chapter 10 – Group Rights: Self-Determination, Minorities and Indigenous Peoples..............................53 Chapter 11 – The Human Rights of Women.............................................................................................57 Chapter 13 – The Right to Development, Poverty and Related Rights.....................................................60 Chapter 14 – Victims’ Rights and Reparation...........................................................................................62 Chapter 15 – The Application of Human Rights in Armed Conflict.........................................................68 Chapter 17 – Human Rights and Counter-Terrorism................................................................................73 Protection of Human Rights in International Law Chapter 1 - International human rights law and notions of human rights: foundations, achievements and challenges 1.1Introduction Human rights have an important dual function: they are claims based on particular values or principles and often also legal rights that entail entitlements and freedoms. Philosophical and political conceptions of human right are broader than international human rights law, which is essentially a normative term referring to rights validated in recognized sources. While the two spheres are closely intertwined, they do not necessarily share a causal or automatic relationship, that is that every claim must transform into a legally recognized right.

Theories of human rights abound, including:

•Substantive: based on moral values or foundational postulates;

•Formal: constructive, pragmatic, discourse;

•Subaltern: human rights as distinctive practices born out of struggle; and

•post modern approaches: such as political theories, and liberal or socialists notions of human rights.It is in particular the purported universality of human rights, that is their applicability to everyone, everywhere and anytime that has given rise to enduring debates. These debates may be seen as bewildering if not downright counterproductive, potentially undermining support for human rights at a time when much needs to be done to ensure their effective protection.However, downplaying or dismissing the importance of these debates may lead to a failure to answer satisfactorily the question of what we mean when we refer to human rights, which is critical in situations where the very idea is being challenged. It is perhaps inevitable that the notion of human rights is and will remain charged and will be used for differing if not contradictory ends. This does not mean that the notion is entirely open-ended, but it counsels against using it lightly without having considered its multiple dimensions.

1.2The Development of human rights and international human rights law The founding document of international human rights law, that is the Universal Declaration of 2 / 4

Human Rights (UDHR), refers in its preamble and article 1 to claims and freedoms that human beings enjoy by virtue of their humanity: that is, inherent rights. These rights are based on the principles of dignity, equality and liberty, and are underpinned by notions of solidarity.At the core of the human rights lie fundamental questions about the nature of human beings and their relationship with each other as members of societies, including the ''international society.'' In this context human rights address the relationship of individuals to others, in particular to those in a position of power (especially civil and political rights, equality and non-discrimination) and the relationships of groups and their members to others (minority rights, rights to self-determination and rights of indigenous peoples); the settlement of disputes and administration of justice (fair trial in modern parlance); rights to participate in the polis (particularly freedom of expression and related rights, including the right to vote); and the material conditions for a life of dignity and freedom (social, economic and cultural rights; the rights to development).

1.2.1.Foundations International human rights law is a rather late addition to the body of international law whose modern origins are commonly located in the seventeenth and eighteenth centuries.International law governed the relationship between states, which were recognized as its sole subjects. States were considered sovereign, which meant that the treatment of citizens and 3 / 4

other individuals on their territories fell within their exclusive prerogative. Individual and collective rights as understood today did not form part of the corpus of international law at that time. This explains why international human rights law, when emerging with considerable force following World War II, drew heavily on ethical imperatives, concepts of rights and historical sources, as well as national declarations and constitutions.Ancient and traditional cultures and societies, and the world's major religions, share a deep concern about human nature, ethics and justice. The major religions were faced with the task of constructing an ethical framework for the conduct of their members. This often took the form of commandments and the definition of desirable if not obligatory conduct, adherence to which would bring the rewards promised by each religion.While notions of individual autonomy and rights were known in some societies, the question of how human beings treat each other and how best to exercise power in a polis was frequently framed as a matter of virtuous conduct and justice in conformity with reason, religious or customary commands. The principal concern was therefore the creation of a harmonious and just society rather than the protection of the rights of individuals.

1.2.2The American and French declaration of rights The United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen were the outcome of political struggles that drew on natural law and liberal theories of rights. The American Declaration emphasized the right to life, liberty and the pursuit of happiness while the French Declaration stressed the right to liberty, property, security and resistance to oppression. However, the shortcomings of the declarations are readily apparent: the declarations speak of the rights of man: the rights granted are predominantly civil and political, reflecting and privileging certain class interests; and the documents failed to address a number of practices that violate fundamental rights. It is indeed a paradox that it was not seen as contradictory that these rights were declared while the American settlers were invading indigenous peoples' land, destroying their cultures and practicing slavery. At the same time, the French pursued a policy of imperialism and colonialism and large groups of individuals in their own societies, such as woman, were effectively excluded and barred from the enjoyment of rights.The industrial revolution in Europe was characterized by stark inequalities and the inhuman conditions in which a large number of children and adults had to work and live.Unsurprisingly, the nineteenth-century working class and labor movements had mixed views of the conceptions of rights embodied in the American and French declarations. Karl Marx (1818-1883) argued in his work that human rights as defined in the declarations, in particular the right to property, were used to secure the interests of the capitalist class. He saw human rights as antithetical to a communist society that would overcome the antagonism between the individual and the state by providing for everyone according to his or her needs. It is clear that Marx, and many other actors, have made important contributions to the development of human rights law, particularly in respect of the right to non-discrimination, political rights, economic, social and cultural rights, as well as collective rights.Notwithstanding these criticisms, the American and French declarations exerted symbolic significance and became important reference points as the language of rights and liberties was increasingly invoked to buttress demands for equality, freedom and self-determination.

1.2.3The struggle for rights in the nineteenth century The nineteenth century witnessed a growing struggle for rights which was often inspired by the language of the declarations. For example, feminists advocated for a declaration of the rights of women and another major movement evolved to call for the abolition of slavery, an ancient practice that had been transformed into a globalised commercial enterprise negating

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