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Intro To Human Rights Notes

GDL Law Notes > GDL Constitutional and Administrative Law Notes

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Con & Ad: Introduction to Human Rights Introduction - The Idea of Human Rights

modern idea: protecting human rights through the law.

- Philosophical explanation: humans have rights just by virtue of being human. vs. other bases for rights: citizenship, membership of racial or social group.

- Source of human rights uncertain. debate: religious teachings vs. humanist/philosophical traditions. but does not matter: no need for formalistic authority as justification - rights derive from humanity, not appeal to any historical process.

- Historical development as legal concept.

1. Natural Law and International Law: Enlightenment attempt to explain legal obligations. Natural Law: innate canon of legal values ('rights of man') - superior to any national legal rule (e.g. Hobbes, Locke, Paine, Rousseau). vs. idea of (regnal) authority: validity of laws from sanction of ruler.
? International Law: philosophical basis from Natural Law (no international king) + principle that superior to national law in obligation. mid-17C - 20C: evolution of international law ? most states accept superiority.
? international law of human rights as well as domestic liberties/rights. BUT: national law still dominates - inertia.

2. 18C Radicalism in National Legal Orders: Revolutions. USA (1776) + French (1789) revolutions ? declarations of rights.

France: revolutionary settlement did not last long. US Constitution: comprehensive statement of rights + judicial mechanism of protection. background: 1776 - Declaration of Independence (inc. individual human rights) ? 1787 - Constitution ? Bill of Rights: first 10 amendments to the US Constitution. enforcement: dev. of judicial principles for using HR by US courts ? wider influence.

3. 1945 and beyond. before 1945: some attempts beyond USA to protect rights, but not comprehensive. mid-19C abolition of slavery: trend towards humanising function of rights - but driven by international law (treaties) ? not much dev. of domestic rights. League of Nations: failure - no viable institution to promote universal rights. 1945: United Nations (UN) - founded to provide mechanism for resolution of int'l disputes. 1948: Universal Declaration of Human Rights (UDHR): only resolution of General Assembly (not 'law') - but: universal acceptance ? binding as customary int'l law?
plan for expansion: UDHR as base for binding human rights treaties - slow. 1948: Genocide Convention. 1966: International Covenant on Civil and Political Rights (ICCPR) + International Covenant on Economic, Social and Cultural Rights (ICESCR) - both: inc. reporting + complaint mechanisms. ideal: universal, judicial system of rights protection - so far, modest results. but success: inspiration for more effective regional mechanism.
- Regional arrangements. problem - cultural relativism: varying social, ethical + religious traditions of different regions ? truly international standards of human rights difficult, but regional systems easier. Europe: most effective regional system - but: still some problems of cultural relativism.

Background to the ECHR and the need for the HRA

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