Lecture One: History of Human Rights. Assignments:

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1 Lecture One: History of Human Rights Assignments: Essay Questions: Human trafficking is a form of slavery and is inconsistent with international human rights law. Why has international law failed to bring about the abolition of human trafficking? In 2011, the French Government banned the wearing of the burqua in public places. Is the ban consistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms? -Recently French women have gone to the court about this, the decision will likely not be handed down in time however it is clear there is an issue. Annotated Bibliography: -Books, reports, government reports. -What is the agenda behind the piece? -Whether it is a piece written solely on somebody s opinion? -Don t just describe the context, talk about relevance and quality. Examination: -10 short answer questions and you will have to choose 5, 2 essays and you have to pick 1. -Short answer questions work limit is 300 words, essay question is 1000 words. -There is a practice exam on the ilearn page, however this was closed book, 3 hours exam and there is a problem question. Historical Development of International Human Rights Law: -We are focusing on western tradition. -In the 17 th century writers began to question the relationship between citizens and the state : Hobbes, Leviathan He expressed the view that the power of the state should be exercised restrictively : Locke, Two Treatises on Government Natural law thinking believes that each individual has a right to live and have property and government has a role to protect these rights : Montesquieu, The Spirit of Laws His work was focused on the separation of powers : Rousseau, Social Contract All government rested on a social contract, ruler and a government is not entitled to take away individual rights. All men are equal.

2 -Jeremy Bentham: Milestones: 1689: England, Bill of Rights -Prohibited torture, which was widely in, use in that time and still today. 1776: US, Declaration of Independence -Colonies declared independence from the UK. All men are created equal, that they are endowed by their creator with certain unalienable Rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. -In practice life, liberty and pursuit of happiness didn t apply to everyone, mainly men with property. -Slavery continued in the US for many years after the declaration of independence. -Women and slaves were excluded. 1789: France, Declaration of the Rights of Man -Went further then the US declaration. -Was a list of rights, Liberty is the freedom to do anything that does not injury others. 1789: Ratification of the US Constitution: US Bill of Rights -At this time human rights became a vision rather then a reality. -The human rights where there but there was no power given to the courts to enforce these rights (US is the exception). Australia -We did not go down this road; we don t have a bill of rights. Prior to 1948: Four key areas of early development: International law prior to World War II had nothing to say about how a country treats their own nationals. Treatment of foreign nationals: -The law of treatment of foreign nationals was well developed in the 20 th century, this is about how state B treats state A s citizens. -All states in international law are under an obligation not to treat foreign citizens badly. -A breach of the obligation may give rise to a claim by state A against state B (right to diplomatic protection).

3 -State A is not obliged to exercise that right and they may or may not do so. For example state A might be more concerned with its trade relationship with state B and they may not want to ruin this relationship. -There are preconditions to the exercise of diplomatic protection. -This provides some protection but it is limited. Abolition of Slavery: International Humanitarian law (IHL): (The law of war) -Battle of Solferino in Italy: Red Cross and Red Crescent: It is neutral it will help soldiers on each side. -IHL is relevant in times of armed conflict, whereas international human rights law runs all the time. -Customary international law AND -Treaty Law: Hague Regulations 1899, 1907, Four Geneva Conventions 1949, Two Additional Protocols Relationship between IHL & IHRL is complex: -Both apply in times of armed conflict. -Some rights are exclusive to each and some are common. -Both are concerned with preserving and protecting human dignity. -Moeckli et al Ch 23 + Law587 War Law -If you are trying to differentiate between the two laws you have to think which is a general law and which is the more specific rules. Rights of minorities: (protection of minorities) -Nation states had exclusive competence to determine matters within the territory and to conduct foreign relations with others states. -This changed; national borders redrawn following WWI: A number new states were created and some racial or ethnic minorities found themselves in foreign territory. (Eg. Emergence of Czechoslovakia). Declarations and Treaties -Obligations in general peace treaties imposed (Austria, Bulgaria, Hungry, Turkey). -Specific minority treaty arrangements (Czechoslovakia, Greece, Poland, Romania, Yugoslavia. Slavery: -Establishment of slave trade, over a million people were sold as slaves from Africa. -Slave trading increased over years, many countries funded expeditions to Africa to capture these slaves. -It is estimated that for every slave brought to America 5 other people died. -Once they arrived there life expectancy was 5-6 years.

4 -Humans were treated as property not lawful citizens and therefore they were not entitled to protections from the constitution. -They were often sold at auctions rebellion in Haiti and Haiti became independence 10 years later. This set off a chain reaction. -The prohibition of slavery did eventually emerge as international customary law from state practice. -First you get shifts in domestic law and then discussion and conferences in international law and then sometimes eventually you get multilateral treaty action Slavery Convention. Tutorial One: Historical development of international human rights law: Slavery Readings Optional reading: Mike Kaye, : Over 200 Years of Campaigning against Slavery (2005) Anti- Slavery International. See: United Nations Population Fund, State of the World Population 2006 (2006) UNFPA, Chapter 3 Selling Hope and Stealing Dreams: Trafficking in Women and the Exploitation of Domestic Workers. See: QUESTIONS What is the essence of slavery? Women and girls are often sold and resold and then re-trafficked to other destinations. [UNPF State of the World Population 2006] These words not only have legal implications but always deep implications on the people who are being referred to as property. Slavery is still very active today, the essay is about bringing your mind to this problem in the modern world, there is more slaves in the world today then in any other time in history. To what extent does slavery or servitude remain a reality today? Who is most affected by these continuing practices and why? Why has international law failed to bring about the abolition of slavery and

5 other forms of servitude in practice? -Individual complaints mechanisms are of no use to you -Visibility -Economic reasons -It s about changing the mindset of the whole country -Who is the actor? International law binds states however they are often not the actors. It s hard to get at these actors. -There is a lot of money involved. -Child soldiers -Forced marriage Lecture Two: Limitations of Human Rights Preview of Today: UDHR 1948; ICCPR 1966 Reservations to human rights treaties Derogations in times of public emergency Limitations on human rights obligations Denunciation and withdrawal In the Aftermath of WWII Deadliest military conflict in history 25 million military personnel died million civilians died State sanctioned atrocities committed 1945 International Military Tribunal for the Prosecution and Punishment of Major War Criminals of the European Axis Prosecuted individuals for war crimes (waging a war of aggression, crimes against humanity and crimes of genocide). Moeckli et al International Criminal Law Ch 24 Milestones in Human Rights in the UN 1945 Charter of the United Nations -Developed in response to the WWII Universal Declaration of Human Rights (UDHR) 1966 ICCPR and ICESCR open for signature 1976 ICCPR, ICESCR in force -Ratification of both covenants is widespread but it s not worldwide.

6 No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. -If a treaty does not prohibit reservations in this way they can be made. VCLT Article 19(c): States may not make reservations that are incompatible with the object and purpose of the treaty Object & purpose are broadly defined Views of monitoring bodies are influential Human Rights Committee: General Comment 24 Reservations: Legal Effect VCLT Article 20: legal effect of reservations: -The legal effect of a reservation is affected by what the other party does. 1. State A reserves, State B accepts à the treaty comes into force as modified by the reservation but remains unchanged for other parties. 2. State A reserves, State B objects à the treaty does come into force unless the objecting party states it does not. 3. State A reserves, State B ignores à the reservation is presumed to be accepted after 12 months. Reservations: Objections: Bahrain, Reservation (2006): The Government of the Kingdom of Bahrain interprets the Provisions of Article 3, 18 and 23 as not affecting in any way the prescriptions of the Islamic Shariah. Australia, Objection (2007): The Government of Australia considers that the reservation [of Bahrain] with respect to articles 3, 18 and 23 of the Covenant is a reservation incompatible with the object and purpose of the Covenant. The Government of Australia recalls that, according to customary international law as codified in the Vienna Convention on the Law of Treaties, a reservation incompatible with the object and purpose of a treaty is not permitted. Reservations: Australia Australia ratified ICCPR in 1980 More than 2 pages of reservations, declarations, understandings -There was a federal reservation, reservations to 7 provisions (eg.right to privacy). Many were broadly stated, vague & unclear No other States objected -The Netherlands did lodge a concern in relation to vagueness, it was not a formal objection just a statement. In 1984, Australia withdrew 6 reservations Reservations remain to Arts 10, 14, 20.

7 Australia Art 10: Art 10(2)(a) recognises the right of accused persons to be segregated from convicted persons; Art 10(2)(b) recognises the right of juvenile persons to be separated from adults. Australia s reservation to Article 10 "In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively. In relation to paragraph 2(b) and 3 (second sentence) the obligation to segregate is accepted only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned". -This reservation is necessary because of the cost of separating juveniles and adults, there is nowhere else to put these juveniles in remote areas of Australia. Trinidad and Tobago Curfew: -We all have a right to free movement however sometimes state want to put in place a curfew. State of emergency declared in Trinidad and Tobago in August 2011 in response to a rash of violent gang-related crime A nightly curfew was imposed from 9 pm to 5 am in major cities and towns Police were given broad powers of search and arrest Trinidad and Tobago is a party to the ICCPR Lock Down (State of Emergency) -NZ imposes a curfew after the earthquake, limited to the inner city because there were a lot of damaged buildings; they were trying to stop theft. Derogation: -The process of temporary disabling human rights in states of emergency. Article 4 ICCPR + GC 29 Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary- General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. Public emergency Proclamation and notification Necessity and proportionality

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