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These notes are a summary of the course LAW459 ‘International Human Rights Law’ offered at Macquarie University. They include lecture notes and tutorial notes which provide answers to general and hypothetical questions.
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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 17th century writers began to question the relationship between citizens and the state. -1651: Hobbes, Leviathan He expressed the view that the power of the state should be exercised restrictively. -1690: 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. -1748: Montesquieu, The Spirit of Laws His work was focused on the separation of powers. -1762: 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. -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 20th 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). -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 1977. 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 15-18 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. -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. -1791- 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. -1926 Slavery Convention. Tutorial One: Historical development of international human
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