Basic Concepts of Human Rights and Development, Study notes of Human Rights

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Basic Concepts of Human Rights and

Development

Stephen P. Marks, Harvard University Spencer Henson, University of Guelph

Thursday, July 5, 2018 10:30 am – 12:00 pm

Review of human rights: norms and processes

Modes of discourse: What is human rights talk?

Origin and sources of human rights: Where do they really come from?

How do human rights norms emerge in international law and politics?

What can be done to move from norm-creation to norm-enforcement?

Modes of human rights discourse: Does the Death Penalty Violate Human Rights?

Mode of discourse Example Source

Aspirational/ advocacy

“The death penalty is the ultimate denial of human rights” AI Human rights activism

Ethical/

philosophical/religious

Fails as deterrent, costly to the state and morally repugnant; required for security of citizens, rights of victims and moral law of retribution, Hud in the Qur’an

Ethics, values clarification, rights theory, theories of justice, religious doctrine

Legal/ political

Not prohibited in UDHR or the ICCPR (life, torture), but 2d OP to ICCPR, Prot. 6 ECHR, Proto. ACHR, statute ICTR, ICTY, ICC

International human rights law, humanitarian law

A thought from Baxi…

“Still, though not radically ameliorative of here-and- now suffering, international human rights standards and norms empower peoples’ movements and conscientious policy-makers everywhere to question political practices. That, to my mind, is an inestimable potential of human rights language, not readily available in previous centuries. Human rights languages are perhaps all that we have to interrogate the barbarism of power, even when these remain inadequate to humanize fully the barbaric practices of politics.”

Natural and positive law

Moral/Natural law

• Authority from divine will or metaphysical absolutes
• Appeal to a higher authority against realities of naked power
• BUT no empirical basis of claim to permanence or universality

Legal/Positive law

• Authority from norm-creating process
• Content of rights empirically discoverable
• Appeals to formal agreement over subjective judgment
• BUT must rely on officials to implement, overlooks structural injustice

Norm-creating process:

From informal expression of

concern to formal determination

of human rights violation

Sovereignty

Exclusive jurisdiction to

legislate, adjudicate and

enforce within territory and

over its permanent

population.

Thomas Hobbes Leviathan , (1651),

Ambiguous visions: Sovereignty, human

rights and the UN

DOMESTIC JURISDICTION

• Charter, Article 2(1): The Organization is based on the principle of the sovereign equality of all its Members.
• Article 2(7): Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll. - Article 1 (3): The Purposes of the United Nations are:...To achieve international co- operation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and - Articles 55-56: All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55. [including] ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Richard Falk: “Responsible sovereignty”

• “Sovereignty can no longer be reduced to territoriality; it now includes elements of normatively (human rights, humane governance, human dignity) and functionality (nonterritorial centers of authority and control).”
• “Sovereignty ... needs to be conceptualized ... as deference to established governmental authority in a state and .. as a possible basis for endorsing or repudiating intervention ... to serv[e] humanitarian goals.”

NATURE OF THE

INTERNATIONAL

SYSTEM Norms :^ rules governing what

states and other actors can do Processes: the structure of interactions among states and other entities Actors: the individuals and entities that influence the outcomes

International human

rights regime

• Norms: universal norms in UDHR, ICCPR, ICESCR; regional norms
• Institutions: OHCHR, IACHR, ECHR, AfCHR, SAs, INGOs, NHRIs
• Processes: standard-setting, investigation, adjudication,

Five phases of

socialization in PoHR

1. Repression
2. Denial
3. Tactical concession
4. Prescriptive Status
5. Rule-consistent behavior