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International Human Rights - MAD

INTERNATIONAL HUMAN RIGHTS development of the individual and of the community mutually
condition each other. Human rights in this sense become the medium
for the process of self-realization of the individual in society, as well as
What are human rights? the articulation of social integrity through the individual.

 Those liberties, immunities and benefits, which all human beings What is the International Bill of Human Rights?
should be able to claim “as a right of the society in which they live –  It is a convenient designation of the three main instruments of human
Louis Henkin rights on the international plane, which are the:
How are the international human rights divided? o Universal Declaration of Human Rights
o International Covenant on Economic. Social and
 The said rights are divided into 3 generations, namely: Cultural Rights
o International Covenant on Civil and Political Rights
First generation: civil and political rights ( C P )
What is meant by the “internationalization” of human rights as a singular
o Embodied in International covenant on civil and
importance of the UN charter?
political rights
 The acceptance by the international community of the human rights
Second generation: economic, social and cultural rights ( E S C
“regulation” as provided in the UN has shifted matters or questions
)
from exclusive domestic jurisdiction of states to international legal
o Embodied in International covenant economic, social regulation.
and cultural rights  Firmed up trend in human rights in terms of binding obligations in
international law.
Third generation: Right to development, right to peace and  Decisions and actions of various UN organs and subsidiaries have
right to environment ( D P E ) deepened human rights observance in a broad field of state practice not
only in internal state mechanisms but as well as in diplomatic
o The third generation of human rights has remained
conferences and international bodies.
controversial in conceptual definition and as to
enforceability. Give other examples international conventions on human rights with
significant number of states parties
How are human rights classified?
1. Convention on the Prevention and Punishment of the Crime of
1. Individual rights
Genocide.
2. Collective rights (right to self‐determination of people; the permanent
2. Convention relating to the Status of Refugees
sovereignty over natural resources)
3. International Convention on the Elimination of All Forms of Racial
Are human rights divisible? Discrimination
4. International Convention on the Suppression and Punishment of
 Human rights and fundamental freedoms are indivisible and the full Apartheid
realization of civil and political rights without the enjoyment of
economic, social and cultural rights is impossible. And thus, the
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International Human Rights - MAD

Does the Universal Declaration of Human Rights bind the States as a 1. The Universal Declaration may be considered as an
treaty? expression of general principles of law recognized by
civilized nations in the terms of Art. 38 of the Statute
 No, the Declaration is not a treaty. It has no obligatory character of the International Court of Justice, since at least
because it was adopted by the UN General Assembly as Resolution certain fundamental rights propounded in the
217A. Declaration have been frequently applied by
 Art. 10 of the UN Charter provides that the General Assembly may make international standards in cases concerning the
recommendations to the members of the United Nations or to the treatment of aliens
Security Council or to both on any such questions or matters as within 2. It may be affirmed that the Declaration as such now
the scope of the UN Charter. has the force of law just as it has acquired the force of
What is the legal significance of the declaration? customary international law because the UN Gen.
Assembly Declarations provide the basis for a
The following are opinions of known publicists in international law subsequent concordant practice of States which will
regarding this matter: transform the resolution into customary international
law
 According to Sohn and Buergenthal
3. The Universal declaration may be considered as an
 Exercised a significant influence on national constitutions and
authoritative interpretation of the UN Charter, which
on municipal legislation and, in several cases, on court
is generally accepted and therefore has binding force.
decisions.
 In some instances, the text of the provisions of the Declaration
has been used in international instruments or national
legislation, and there are many instances of the use of the  According to Waldock
Declaration as a code of conduct and as a yard-stick to measure  It is not a legal instrument but as a statement of common
the degree of respect for and compliance with the international standards and objectives in regard to human rights.
standards of human rights.  To treat the Declaration itself as a legal instrument directly
 According to Brownlie ad Goodwin-Gill binding upon member states would be to run counter to the
 It is not a legally binding instrument. Nevertheless, some of its clear intention of the Assembly when it was drawn up and go
provisions either constitute general principles of law, or near to attributing a power of legislation to the majority in the
represent elementary considerations of humanity. Assembly.
 It has indirect legal effect, an authoritative guide.  Louis Sohn
 According to Juan Carillo Salcedo  The declaration is now considered to be an authoritative
 It constitutes evidence of the interpretation and application of interpretation of the phrase “human rights and fundamental
the relevant provisions of the UN Charter. freedoms” which member states agreed in the Charter to
promote and observe.
 If the declaration is now part of positive international law and
therefore binding on all States, it is because of the emergence  The declaration, as an authoritative listing of human rights, has
of the consensus evidence by the practice of States that the become a basic component of international customary law,
Declaration is now binding as part of international law. It is binding all states, not only members of the UN.
supported by the following arguments:
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International Human Rights - MAD

What are the rights guaranteed in the International Covenant on Economic, categories of rights distinctive content of each Covenant.
Social and Cultural Rights? described as the first
and second generations
1. Self‐determination of human rights
2. Work and accompanying rights The common provisions The covenants have some common provisions
3. Social Security and other Social rights of the Covenants are dealing with collective rights, namely, the right of
4. Adequate Standards of living not covered by the self-determination of peoples and the right of
5. Physical and Mental Health Declaration. peoples to “freely dispose of their natural wealth
6. Education and resources” and not to be “deprived of own
7. Take part in cultural life means of subsistence.
8. Enjoy the benefits of scientific progress and applications More rights are listed in
the CP Covenant
What are the explicit limitations to human rights proclaimed by the The following rights
Declaration? under the declaration
are not included in the
 In Art. 29(2) is a statement of limitations, thus: “In the exercise of his CP Covenant:
rights and freedoms everyone shall be subject only to such limitations  Right to own
as are determined by law solely for the purpose of securing due property and
recognition and respect for the rights and freedoms of others and of  Right to seek
meeting the just requirements of morality, public order and the general and enjoy in
welfare in a democratic society” other countries
 Art. 30 provides: “Nothing in this Declaration may be interpreted as asylum from
implying for any state, group or person any right to engage in any prosecution.
activity or to perform any act aimed at the destruction of any of the The following rights
under the ESC Covenant
righs and freedoms set forth herein.”
are not included in the
Declaration vs. International Covenant on Civil and Political Rights vs. Declaration:
International Covenant on Economic, Social and Cultural Rights  Right to health
 Right to strike
Declaration International International  Right to be free
Covenant on Civil and Covenant on from hunger
Political Rights Economic, Social and  Right to enjoy
Cultural Rights the benefits of
scientific
Not a treaty but a International International progress
resolution Conventions which are Conventions which are  Freedom for
binding on their binding on their scientific
respective States respective States research and
Parties Parties creativity
Embodies both The categories are separated in forming the
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International Human Rights - MAD

What are the core obligations of the States that are parties to the CP measures to derogate from their obligations to the extent strictly
Covenant? required by the exigencies of the situation.

1. To respect and to ensure to all individuals within their terrotry the XPN: There can be no derogation from the following:
rights recognized in the present Covenant without distinctions of any 1. Right to life
kind, such as race, color, sex, language, religion, political or other 2. Freedom from torture or cruel, inhuman or degrading
opinion, national or social origin, property, birth, or other status. punishment
2. To take the necessary steps to adopt such legislative or other measure 3. Freedom from slavery
as may be necessary to give effect to the rights recognized in the 4. Freedom from imprisonment for failure to fulfill a contractual
present Covenant. obligation
3. To ensure that any person whose rights or freedoms are violated shall 5. Freedom from ex post fact laws
have an effective remedy, notwithstanding that the violation has been 6. Right to recognition everywhere as a person before the law
committed by persons acting in official capacity. 7. Freedom of thought, conscience and religion
4. To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities or by other competent authority and that they shall enforce
such remedies when granted.

What are the principal obligations of States that are parties to the ESC
Covenant?

 They undertake to take steps to the maximum of its available resources


with a view to achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate means.

What is the difference between the undertakings of the parties under the
CP Covenant and that in the ESC Covenant?

ESC CP
The parties merely agrees to take Obligations immediately take effect;
steps to the maximum of its available the obligations are equally and
resources towards the progressive immediately enforceable by all
realization of the rights under the parties.
Covenant.

May parties derogate from their obligations?

 GR: In times of public emergency which threatens the life of the nation
and the existence of which is officially proclaimed, parties may take