Intro To Human Rights Notes

• 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

  - Background: Council of Europe + ECHR.

  • 1949: Council of Europe founded – HQ in Strasbourg, composed of Member States.

    • rationale: post-WW2 need for int’l forum to promote democracy, rule of law + human rights.

  • 1950: Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, ‘the Convention’) adopted by Member States – influenced by UDHR (1948).

    • UK: 4 Nov 1950 – ratified; 3 Sept 1953 – came into force; 1966 – UK individuals given right to lodge complaints under ECHR after domestic remedies exhausted.

  • now 47 Member States: N.B. Council of Europe/ECHR not connected to EU (but: all 27 EU members first belonged to Council of Europe) – esp. growth after fall of communism.

  • since 1989: 3 main aims for Council of Europe.

    • 1. political anchor + human rights watchdog for post-communist democracies.

    • 2. assisting c. + e. European countries in reform (political, legal, constitutional, economic).

    • 3. providing know-how: human rights, local democracy, education, culture, environment.

  - Legal Status of the Convention in Member States

  • Convention – international law: designed to empower individuals (+ most states: right of petition) BUT: remains international, not domestic law.

  • most European states – monist system: international law binding on domestic legal system + superior to domestic law.

  • BUT UK – dualist system: 2 separate legal orders – international law binds state/government, but not directly binding on domestic law/courts international law only significant if:

    • 1. UK before international court: e.g. ECtHR – UK voluntarily placed itself in jurisdiction by signing Convention legal responsibility to comply with rulings under international law.

    • 2. enabling Act of Parliament incorporating international law into domestic system: UK courts obligated to uphold as any other domestic legislation Human Rights Act 1998.

  - Need for Human Rights Act 1998: competence, not intent.

  • 1950-1998: UK in contradictory position.

    • 1. worst ECHR offender in Europe: until 1990s (Italy, Turkey, Russia worse).

    • 2. BUT: followed judgments + recommendations of ECtHR: rectified identified failings promptly + fully.

  • need for HRA 1998: good faith of UK in meeting obligations, but: lack of competence of UK judges + UK parliament in developing laws.

• Structure of the European Convention of Human Rights

  - ECHR: 3 sections.

  • Section I: ECHR seeks to protect civil + political + some social rights.

    • Art 1: states must ‘secure to everyone within their jurisdiction’ the defined rights.

    • Arts 2-14: list of rights + freedoms.

      • Art 2: right to life.

        • exceptions: capital punishment; absolutely necessary use of force (defence from unlawful violence; to arrest fugitive; lawful action to quell riot/insurrection).

      • Art 3: prohibition of torture.

      • Art 4: prohibition of slavery + forced labour.

      • Art 5: right to liberty + security (inc. right to speedy trial when...

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