Henriette Sinding Aasen week 36 (10 hours, 5-9 September)

Introduction and overview

1. 5/9: 14.15-16.00 International human rights and the relationship between them. Normative
foundation and human dignity as the basic value. Conceptual framework and the UDHR model
Literature:
1. Donnelly, J. (2013) Universal Human Rights in Theory and Practice, pp. 1-72, 121-161.
Universality and relativity of human rights: Ideas, dilemmas and social change

2. 6/9: 14.15-16.00 Theories of universalism and cultural relativism. Culture, traditions and rights of
women
Literature:
1. Donnelly, J. (2013) Universal Human Rights in Theory and Practice, pp. 75-147, 235-254;
2. Otto, D. (2014) Womens rights, chapter 16 in Moeckli et al, International Human Rights Law, pp.
316-333

3. 7/9: 14.15-16.00 Human rights, equality and non-discrimination. CEDAW and conceptions of
substantive and transformative equality
Literature:
1. Donnelly, J. (2013) Universal Human Rights in Theory and Practice, pp. 55-75, 274-293;
2. Moeckli, D. (2014) Equality and non-discrimination, chapter 8 in Moeckli et al, International Human
Rights Law, pp. 157-174;
3. General Comment No. 20 (2009) on non-discrimination in economic, social and cultural rights
(Committee on economic, social and cultural rights).
Right to health

4. 8/9: 14.15-16.00 Codifications, relationship to other rights, content and state obligations. Core
obligations, progressive realization. AAAQ requirements. Domestic implementation. Case law
Literature:
1. Ssenyonjo, M. (2009) Economic, Social and Cultural Rights in International Law, pp. 313-355;
2. Moeckli, Shah & Sivakumaran, International Human Rights Law, pp. 75-174;
3. General Comment No. 14 (2000) on the right to the highest attainable standard of health (Committee
on economic, social and cultural rights)

5. 9/9: 14.15-16.00 Women and childrens right to health: Challenges of maternal and infant mortality,
gender based violence and harmful traditions. Sexual and reproductive health rights
Literature:
1. Ssenyonjo, M. (2009) Economic, Social and Cultural Rights in International Law, pp. 313-355;
2. Moeckli, D (2014) Equality and non-discrimination, chapter 8 in Moeckli et al, International Human
Rights Law, pp. 157-174;
3. General recommendation No. 24 (1999) on women and health (CEDAW Committee).

Week 36 (Aasen): Introduction and overview. International human rights and the relationship between them.
Normative foundation and human dignity. Conceptual framework and the UDHR model. Theories of
universalism and cultural relativism. Culture, traditions and rights of women. Equality and non-discrimination.
CEDAW and conceptions of substantive and transformative equality. The right to health, with special focus
on women and children
Week 37 (Eide): Sources and state obligations. Categories of rights and their interdependence. Freedom
from want and the right to an adequate standard of living. Rights to water, sanitation, housing. The right to
work and rights in work. The right to social security. The right to education. The rights of minorities and
indigenous peoples. Globalization and human rights. Conflict and human rights
Week 38 (Langford): Justiceability
Week 39 (Colombo): Special section on environment and health

International Bill of Human Rights

Universal Declaration of Human Rights (UDHR,1948)
International Covenant on Civil and Political Rights (ICCPR, 1966)
International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)
Human rights in international discourse
Growing recognition since the 1980s

The major global approach to social justice

Global civilization in terms of a worldwide normative agreement on basic values and principles

A basic universal normative standard

Recognized as a condition for social and economic development

No longer a Western concept (?)

NGOs around the world translate and frame global standards to local contexts

Vulnerable groups take up the idea and language of human rights to combat discrimination,
oppression and social injustices

Human rights: Definition

Rights and freedoms entitled all individuals, irrespective of race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status

All the rights protect human dignity

Rights held by all human beings just because they are humans

Human rights are normative, not descriptive

She has a right to basic health care this is a normative claim, not an empirical description of reality

Human rights to what?

Certain selected values, protected by a certain mechanism (the rights mechanism, with state
responsibility and obligations)

Rights are codified in international agreements (treaties)

 to life, fair treatment, liberty and security

a basic standard of health care and health determinants, housing, food, education
non-discrimination in relation to these goods
Instruments

Declarations (soft law) Not legally binding

Conventions/treaties/covenants (hard law) Legally binding after ratification

Vienna Convention on the Law of Treaties (1969)

What is a treaty?
an international agreement concluded between States in written form and governed by international law
(Vienna Conv art 2,a)
Art 2: Definitions
Art 18: Refrain from violations of the treaty
Art 26: Pacta sunt servanda: The treaty is binding
Art 31 (1): General rule of interpretation: A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose
Ratification
the international act so named whereby a State establishes on the international plane its consent to be
bound by a treaty (art 2, b)
Interpreting the treaties

General Comments of treaty bodies

General Recommendations of treaty bodies

Concluding observations and other communications with each ratifying state

Legal theory

Human rights: roots

The European Enlightenment

Scientific and political revolutions of the 18th century

The concept of human equality; feudalism and the previously uncontested divine rights of kings were
challenged

Secularism; a new secular language affirming a common humanity, used by revolutionaries in

England, America and France to fight aristocratic privileges and religious oppression

The notion of universality: Religious and cultural roots many human rights are resembled in the Bible, the
Old Testament, the Koran, in Buddhism
Ancient global origins

Around 2000 BC: The kings of Mesopotamia and Egypt insisted that caring for the poor, the orphan,
and the widow was a sacred duty, decreed by the sun gods Shamash and Re

The Code of Hammurabi (1760 BC, ancient Babylon): Progressive legal regulation based on
concepts of justice

Confucianism: Promoted mass education

Hinduism and Buddhism: The earliest defense of the ecosystem

Buddhism: Notions of human equality and compassion

The ancient Greeks and Romans: Endorsed natural laws and the capacity of every individual to
reason

Christianity and Islam: Emphasis on human solidarity and the duty of helping the sick and poor

Islam: Early notions of democratic rule and principles of justice

The evolution of human rights (not very accurate they existed together earlier)
18th century: Civil rights the classical liberal state
19th century: Political rights the democratic state
20th century: Social rights the welfare state
21th century: Group rights Indigenous peoples, minorities, environmental issues
Charter of the United Nations (1945)
We the Peoples of the United Nations Determined

to save succeeding generations from the scourge of war ...

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women ...

to promote social progress and better standards of life in larger freedom ...

Human Rights: Normative foundation, two competing concepts of justice:

Divine (revelational) justice, based on a divine authority

We have all been endowed by our Creator with certain inalienable rights (American Declaration
of Independence, 1776)
The Islamic perspective: All rights (and duties) are based on interpretations of the Koran

A social decision Rational (man-made) justice, based on rational efforts of human beings, by binding
social agreements, constitutions and laws
Justified by moral and political reasons

The standard justification of human rights today

A rational man-made agreement: Because humans are born with human dignity, they are entitled to
basic respect and human treatment

Human rights is a normative demand for social change and improvement, based on certain
humanistic values (a social project)

A global social contract?

The human being is considered unique among all living creatures

Human dignity is an inherent value of every person, irrespective of race, sex, social status, age,
physical and mental ability, political opinion,

Immanuel Kant (1724-1804)

German philosopher, central in modern philosophy

While everything has a given price, the human being has dignity and is otherwise priceless

Human dignity
1. Equal for all
2. Constant
3. Inalienable
4. Unconditional
5. Irreducible
Universal Declaration: 4 pillars
1. Human dignity, shared by all individuals regardless of race, religion, creed, nationality, social origin,
sex): Articles 1 and 2
2. Civil liberty rights (first generation), fought for during the Enlightenment (1620-1780): Articles 319 (life, liberty, security, fair trial, freedom of thought and expression, privacy, property rights)
3. Political, social and economic rights (second generation), championed during the Industrial
Revolution (1760-1840): Articles 20-26 (political participation, social security, work, rest and leisure,
adequate standard of living, food, housing, medical care, education)
4. Communal and cultural rights (third generation), advocated from late 19th and early 20th
century: Articles 27-28

Midzynarodowe Pakty Praw Czowieka zbiorcza nazwa dla dwch umw

midzynarodowych uchwalonych przez Zgromadzenie Oglne ONZ w dniu 16
grudnia 1966 roku:
Midzynarodowy Pakt Praw Obywatelskich i Politycznych
Midzynarodowy Pakt Praw Gospodarczych, Socjalnych i Kulturalnych ( The International
Covenant on Economic, Social and Cultural Rights (ICESCR) )

 Assertive exercise : the right is exercised (asserted, claimed, pressed), activating the
obligations of the duty-bearer, who then either respects the right or violates it (in which case
he is liable to enforcement action). 2. Active respect 2 : the duty-bearer takes the right into
account in determining how to behave, without the right-holder ever claiming it. The right has
been respected and enjoyed, even though it has not been actively exercised. Enforcement may
have been considered by the duty-bearer but is otherwise out of the picture. 3. Objective
enjoyment : rights apparently never enter the transaction, as in the example of buying a loaf
of bread; neither right-holder nor duty-bearer gives them any thought. The right or at least
the object of the right has been enjoyed. Ordinarily, though, we would not say that it has
been respected, and neither exercise nor enforcement is in any way involved.
Donnelly, Jack. Universal Human Rights in Theory and Practice. Ithaca, US: Cornell University
Press, 2013. ProQuest ebrary. Web. 1 December 2016.
Copyright 2013. Cornell University Press. All rights reserved.

Human rights are equal rights: one either is or is not a human being, and therefore has the
same human rights as everyone else (or none at all). Human rights also are inalienable rights:
one cannot stop being human, no matter how badly one behaves or how barbarously one is
treated. And they are universal rights, in the sense that today we consider all members of the
species Homo sapiens human beings and thus holders of human rights. Much of this book
explores the political implications of human rights being equal, inalienable, and universal. In
this section I stress the implications of their being rights (in the sense discussed above) and
their special role in enabling progressive political change.

Legal rights have the law as their source. Contracts create contractual rights. Human rights
would appear to have humanityhuman natureas their source. With legal rights, though,
we can point to statute or custom as the mechanism by which the right is created. With
contractual rights we have the act of contracting. How does being human give one rights?

Human rights are fundamentally about human dignity not human capabilities although it is
plausible to see human capabilities as also rooted in human dignity, although derived from it
by different means (Cf. Nussbaum

The source of human rights is mans moral nature, which is only loosely linked to scientifically
ascertainable needs and not adequately captured by the idea of human capabilities. The
human nature that grounds human rights is a prescriptive moral account of human
possibility. (Needs and capabilities are typically understood as descriptive.)

The Universal Declaration, like any list of human rights, specifies minimum conditions for a
dignified life, a life worthy of a human being. Even wealthy and powerful countries regularly fall
far short of these requirements. As we have seen, though, his is precisely when, and perhaps
even why, having human rights is so important: they demand, as a matter of entitlement

(rights), the social changes required to realize the underlying moral vision of human nature.
Human rights are at once a utopian ideal and a realistic practice for implementing that ideal.

Human rights seek to fuse moral vision and political practice. The relationship between human
nature, human rights, and political society is dialectical. Human rights shape political society,
so as to shape human beings, so as to realize the possibilities of human nature, which provided
the basis for these rights in the first place.

Nie jest prawem czowieka np prawo do dobrych, kochajcych rodzicw. Nie wszystko to co
dobre jest prawem czowieka.
As we saw above, human rights are not just abstract values such as liberty, equality, and
security. They are rights, particular social practices to realize those values.

Human rights are a) the minimum set of goods, services, opportunities, and protections that
are widely recognized today as essential prerequisites for a life of dignity, and b) a particular
set of practices to realize those goods, services, opportunities, and protections. No more. But
no less.

For the purposes of international action, human rights means roughly what is in the
Universal Declaration.

a world milestone in the long struggle for human rights