Académique Documents
Professionnel Documents
Culture Documents
ii. Antecedents:
1. Code of Hammurabi
2. Magna Carta
3. Habeas Corpus Act
4. Bill of Rights
5. French Declaration of the Right of Man and Citizen
6. US Constitution
7. Declaration of Independence
8. Nuremberg Charter
iii. Enlightenment thinkers had a lot to do with this too:
1. Hobbe
2. Locke
3. Montesqiue
4. Rosseau
5. Thomas Jefferson
2. Other Important Documents:
a. Genocide Convention of 1948
b. 4 Geneva Conventions relating to International Law
c. Covenants on Human Rights
d. CERD
e. CEDAW
f. Justifications and Critiques
i. Critiques:
1. Richard Roty no such thing as human rightsbeing Human does
not imply righs.
2. Peter Singer HR is like racism or sexism; this is specieism.
Calling them human rights is a moral flaw by excluding animals.
a. Realist
b. Utilitarian
c. Marxist
d. Particularist (cultural relativist)
e. Feminist
f. Post-Colonial Theoretical Perspectives
g. TWAIL Third World Approaches to International Law
(originated in Harvard but now all over the world)
h. Post-Modernism Critique how its not neutralits all
politics, and pretends to be universal and neutral. Basically
saying all law is politics.
ii. Justifications:
1. Religious v. Non-Religious
2. Prudential v. Objective
3. Sequentialist v. Non-Consequentialist
a. Instrumental v Inherent
b. Consequentialism egalitarianism
4. Equality
5. Dignity
e.
f.
g.
h.
i.
j.
k.
kind of right (claim liberty authority and immunity) has a correlative legal
consequence for others.
1. Claim rights have correlative legal duties.
2. Liberty rights correlate with an absence of claims.
3. Authority rights correlate with liabilities.
4. Immunities correlate with absence of authority.
c. Four Types of Rights
i. Lists the schema rights and legal consequences. P is party with right, Q is
person or group on whom the right has a legal effect, X is the object of the
right.
1. Claim Rights
a. Rights Relation: P has claim against Q to X.
b. Correlative Relation: Q has a duty to P to X.
2. Liberty Rights
a. Rights Relation: P has a liberty against Q to X.
b. Correlative Relation: Q has no claim against P to not-X.
3. Authority Rights
a. Rights Relation: P has authority over Q to X.
b. Correlative Relation: Q has a liability to P to X.
4. Immunity Rights
a. Rights Relation: P has an immunity against Q to X.
b. Correlative Relation: Q has a disability (no authority)
against P to not-X.
d. Moral and Legal Rights
i. Hohfeld was interested in legal rights, but we can extend his scheme to
moral rights.
ii. If I have a moral claim right to performance of a promise, you have
corresponding moral duty to perform.
iii. Of course many legal rights are identical to (or substantially the same as)
similar moral rights.
1. Contract, for example, create both moral and legal obligation.
2. Some moral rights, however, may not be reflected in the law.
a. Example: I may have moral obligation not to discriminate
on the basis of race when letting someone in my home, but
at the same time have a legal liberty right to engage in such
discrimination.
5. PRINCIPAL SUBSTANTIVE RIGHTS
a. Categories of Rights and the Principle of Equality, and Non-Discrimination
i. Categories of Rights
1. Economic, Social, Cultural Rights/Civil, Political Rights
a. Economic/Social/Cultural include rights to adequate
standard of living, education, and work.
b. Civil/Political include freedoms of thought, expression,
association, and assembly, and the rights to liberty and a
fair trial.
ii.
iii.
iv.
v.
vi. CRC
vii. ICRMW
c. The only international HR treaties without explicit nondiscrimination clauses are:
i. UNCAT
ii. CPED
3. Subordinate v Autonomous Norms
a. Subordinate norms are non-discrimination provisions only
in the enjoyment of rights and freedoms otherwise set forth
in the respective instrument.
b. Autonomous norms guarantee non-discrimination not only
in the context of other rights but in general.
4. Prohibited Grounds of Distinction
a. Obvious ones like gender, race, etcbut grounds such as
membership of a particular group, holding certain beliefs,
and national or social origin are outlawed by most human
rights treaties.
i. What is seen as unacceptable though can change
over time.
1. Discrimination may be
intersectionalbased on a combination of
characteristics that form an individuals
identity rather than a single ground.
b. Equality and non-discrimination norms vary widely in their
approach to defining the prohibited grounds of distinction.
i. A first type of norm provides for a general
guarantee of equality, without specifying any
particular prohibited grounds.
ii. A second category of norms uses a diametrically
opposed approach; these norms contain an
exhaustive list of prohibited grounds.
iii. A third category (middle ground) which contain a
list of prohibited grounds but one that is openended. (e.g. prohibited on any ground such as ____)
1. As a consequence, even distinctions made
on grounds that are not explicitly listed may
engage these provisions.
2. ECHR sometimes does not even find it
necessary to state the particular ground of
distinction involved when considering a case
under Article 14 ECHR.
5. Direct and Indirect Discrimination
a. Direct Discrimination means that a person is treated less
favorably than another in a comparable situation.
i. In other words, when a person on account of one or
more of the prohibited ground, is treated less
a. *Declaration of Principles on
Equality (an important but nonbinding document signed by
numerous HR and equality experts)
states that direct discrimination may
be permitted only very
exceptionally.
9. Evidence and Proof
a. According to established HR jurisprudence, it is up to the
individual complaining of discrimination to establish a
difference in treatment or outcome, the ground of
distinction, and the existence of comparably situated
groups. Having done so, the burden of proof shifts to the
state to show that there is a justification for the distinction.
b. Complainants may find it very difficult to prove that a
neutral measure has a disproportionate impact on particular
groups ---> therefore, ECHR has held that less strict
evidentiary rules should apply in these cases: statistics
which appear on critical examination to be reliable and
significant may be sufficient prima facie evidence of
indirect discrimination.
10. Positive Action
a. As with any other HR, right to equality and nondiscrimination entails state obligations of different types.
i. Obligation to respect requires states to refrain from
any discriminatory action and to ensure that all their
laws and practices comply with the right to nondiscrimination (according to jurisprudence of the
UN treaty bodies, this means that states must
introduce comprehensive legislation prohibiting
discrimination in fields such as employment,
education, healthcare, housing, and the provision of
goods and services.
1. Conclusion supported by various provisions
in the respective HR treaties themselves.
b. An exclusively prohibitory approach is severely limited in
that it focuses on discrimination understood as individual,
isolated events that can be remedied through penalizing the
perpetrators and compensating the victims (even though
discrimination is often the consequence of deeply
embedded patterns of disadvantage and exclusion that can
only be addressed through changes to social and
institutional structures).
i. Accordingly, it is now well established in IHR law
that it is not sufficient for states to have antidiscrimination legislation in placeinstead they