国际人权法的渊源.ppt

1、CHAPTER 4 SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW,第四章 国际人权法的渊源 Law School, Hunan UniversityProfessor Nie, Zilu 湖南大学法学院聂资鲁教授,Overview,Definition of Human Rights The basic rights and freedoms to which all humans are entitled, often held to include the right to life and liberty, freedom of thought an

2、d expression, and equality before the law.,Overview(cont.),Historical Development of Human Rights First generation rights civil and political rights Freedom of speech, religion, fair trial Protection of persons against draconian states Second generation rights economic, social, and cultural rights R

3、ights to health, to work, security, education Third generation rightsgroup and collective rights Right to self-determination, development, control over resources, clean environment, a right to peace.,Characteristics of Human Rights Universal Internationally guaranteed Legally protected Protect indiv

4、iduals and groups Cannot be taken away Equal and indivisible Oblige States and State actors,Overview(cont.),the main content of article 38 of the Statute of the International Court of Justice “international conventions”国际协约; “international custom国际习惯(as evidence of a general practice accepted as law

5、)”; “general principles of law recognized by” the community of nations一般法律原则; “judicial decisions and the teachings of the most highly qualified publicists . As subsidiary means for the determination of rules of law”司法判例及公法学家之学说.,Overview(cont.),general international agreements （普遍性的国际文件） the Univer

6、sal Declaration of Human Rights(UDHR,1948)世界人权宣言 The International Covenant on Civil and Political Rights (ICPR,1966)公民权利与政治权利国际公约 The International Covenant on Economic, Social and Cultural Rights(ICESCR,1966)经济权利、社会权利和文化权利国际公约,Sources of International Human Rights,the Universal Declaration of Huma

7、n Rights世界人权宣言,In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. The Declaration enumerates civil, political, economic, social, and cultural rights, but the Declaration contains no provisions for monitoring or enforcement.,ICPR and ICESCR,In 1966, the General Assemb

8、ly adopted: The International Covenant on Civil and Political Rights The International Covenant on Economic, Social and Cultural Rights which, together with the UDHR, are now known as the International Bill of Human Rights,The International Covenant on Civil and Political Rights(ICPR): Prohibits dis

9、crimination on the basis of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” without regard to citizenship Prohibits torture and cruel, inhuman or degrading treatment or punishment (personal integrity) Prohibits slavery Li

10、mits the use of the death penalty in countries that allow it to the most serious crimes committed by persons over 18,The International Covenant on Civil and Political Rights (ICPR) (cont.): Prohibits arbitrary arrest or detention Protects freedom of movement and residence Protects the right to trial

11、, presumption of innocence, right to a lawyer, right to an appeal, freedom from self-incrimination, and freedom from double jeopardy Protects freedom of opinion and expression Protects freedom of association and assembly Public emergency exception (but torture, executions, and slavery are never perm

12、issible),The International Covenant on Economic, Social and Cultural Rights(ICESCR): Right of people to work and make a “decent living for themselves and their families” Right to safe and healthy working conditions Right to form trade unions with the right to strike Right of everyone to Social Secur

13、ity, including social insurance “widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society”,The International Covenant on Economic, Social and Cultural Rights(ICESCR) (cont.): Right to adequate food, clothing and housing an

14、d to the continuous improvement of living conditions Right to education Right to health care Economic rights are subject to each countrys ability to provide such rights progressively as its resources permit,Specialised international agreements（专门领域的国际法律文件） the Slavery Convention(1926)禁奴公约 The Forced

15、 Labour Convention(1930)禁止强迫劳动公约 The Genocide Convention(1948) 防止和惩治灭绝种族罪公约 the Convention on the Status of Refugees (1951)难民地位公约,Sources of International Human Rights,Specialised international agreements(cont.) The Convention on the Elimination of all Forms of Racial Discrimination(1966) 消除一切形式种族歧视

16、公约 The Convention on Elimination of all forms of Discrimination against Women (1979)消除对妇女一切形式歧视公约,Sources of International Human Rights,Specialised international agreements(cont.) The Convention against Torture and Other Cruel Inhuman or Degrading Treatment or punishment (1984) 禁止酷刑和其他残忍、不人道的或有辱人格的待

17、遇或处罚公约 The Convention on the Rights of the Child(1989) 儿童权利公约 the Convention on the Political Rights of Women(1952)妇女政治权利公约,Sources of International Human Rights,Specialised international agreements(cont.) the Convention on the Suppression and Punishment of the Crime of Apartheid(1973)禁止并惩治种族隔离罪行国际公

18、约 International Convention against the Taking of Hostages(1979) 反对劫持人质国际公约,Sources of International Human Rights,Regional agreements（区域性人权文件） European agreement（欧洲人权文件） the European Convention for the Protection of Human Rights and Fundamental Freedoms(ECHR,1950)保护人权及基本自由欧洲公约 The European Social Cha

19、rter(1961)欧洲社会宪章 The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment(1987)防止酷刑和非人道或有辱人格的待遇或处罚的欧洲公约,Sources of International Human Rights,Regional agreements(cont.) Other regional agreement（其他区域性人权保护文件） the American Declaration of the Rights and Duti

20、es of Man(1948)美洲人的权利与义务宣言 The Inter-American Convention on Human Rights(1969) )美洲人权公约 The African Charter on Human and Peoples Rights(1981) )非洲人权和民族权宪章 The Helsinki Declaration(1975) 赫尔辛基宣言,Sources of International Human Rights,Customary rules（习惯规则） The following practices constitute a violation of

21、 customary international law: Genocide种族灭绝; Slavery奴隶制; Murder or causing the disappearance of individuals (this would not include executions imposed following a fair trail)谋杀或消灭个人（这不包括基于公正审判而产生的结果）;,Sources of International Human Rights,Customary rules(cont.) Torture and other cruel, inhuman or deg

22、rading treatment酷刑及其他残忍、非人道或有辱人格的待遇; Prolonged arbitrary detention任意延长监禁时间; Systematic racial discrimination系统的种族歧视.,Sources of International Human Rights,Case Study: Filartiga V Pena-Irala(1980) The Filrtiga family contended that on 29 March 1976, their seventeen-year-old son Joelito Filrtiga was K

23、idnapped and tortured to death by Amrico Norberto Pea Irala. All parties were living in Paraguay at the time, and Pea was the Inspector General of Police in Asuncion. Later that same day, police brought Dolly Filrtiga (Joelitos sister) to see the body, which evidenced marks of severe torture. The Fi

24、lrtigas claimed that Joelito was tortured in retaliation for the political activities and beliefs of his father, Dr. Joel Filrtiga. versus,Sources of International Human Rights,Case Study: Filartiga V Pena-Irala(cont.) Dr. Filrtiga brought murder charges against Pea and the police in Paraguay, but t

25、he case went nowhere. Subsequently, the Filrtigas attorney was arrested, imprisoned, and threatened with death. He was later allegedly disbarred without just cause. In 1978, Dolly Filrtiga and (separately) Amrico Pea came to the United States. Dolly applied for political asylum, while Pea stayed und

26、er a visitors,Sources of International Human Rights,Case Study: Filartiga V Pena-Irala(cont.) visa. Dolly learned of Peas presence and reported it to the Immigration and Naturalization Service, who arrested and deported Pea for staying well past the expiration of his visa. When Pea was taken to the

27、Brooklyn Navy Yard pending deportation, Dolly lodged a civil complaint in U.S. courts for Joelitos wrongful death by torture, asking for damages in the amount of USD $10 million. The appellants argued that Peas actions had violated wrongful death statutes, the U.N. Charter, the Universal Declaration

28、 of Human,Sources of International Human Rights,Case Study: Filartiga V Pena-Irala(cont.) Rights, the American Declaration of the Rights and Duties of Man, and other customary international law. Petitioner claimed the U.S. courts had jurisdiction to hear the case under the Alien Tort Statute, which

29、grants district courts original jurisdiction to hear tort claims brought by an alien that have been committed in violation of the law of nations or a treaty of the United States. This case interpreted that statute to grant jurisdiction over claims for torts committed both within the United States an

30、d abroad.,Sources of International Human Rights,Case Study: Filartiga V Pena-Irala(cont.) Judgement The U.S. courts eventually ruled in favor of the Filrtigas, rewarding them roughly $10.4 million. Torture was clearly a violation of international law, and the U.S. did have jurisdiction over the case since the claim was lodged when both parties were inside the United States. Additionally, Pea had sought to dismiss the case based on forum non conveniens (saying that