LESSON #1 CONCEPTUAL APPROACH

LESSON "UNDERSTANDING HUMAN RIGHTS: CONCEPT AND

CHARACTERISTICS"

Defining Human Rights / Characteristics of Human Rights / Inalienability /

Universality / Indivisibility / Human Rights vs Fundamental Rights / Human
Rights in Legal Instruments / Human Rights in Legal Philosophy

1.1. DEFINING HUMAN RIGHTS

What are human rights?

Even though there is a lot of discussion regarding the definition of human rights, there isn’t a
concrete and single definition.

Article 1 of the universal declaration of Human rights says, “all human beings are born free
and equal in dignity and rights”.

Humans have created the idea that human rights belong only to humans. This allows us to
assert that “human beings” belong to the genre “humans” despite their nationality, race,
gender etc.

Our legal systems recognize two classifications: legal persons (corporations) and human
beings.

The expression “are born” means that individuals are endowed with human rights at birth and
which end with the death of the person. The period before birth has become a matter of
debate.

Although prima facie a person’s right begins and ends with birth and death this is being
challenged with deadbolts. A deadbolt is an artificial intelligence system that analyzes a
persons’ behavior throughout its life and creates a version of someone after death with the
same conduct and personality. This creates problems regarding what happens with the
person’s dignity after death.

At what moment is an embryo sufficiently fertilized to be considered as a person?

If we look into Roman law we can see how they distinguished between Roman citizens,
foreigners and slaves. Slaves were objects and not subjects.

We have not considered human beings equal since very recently. Even in our societies people
with disabilities are considered as pseudo persons and not equal persons.

This is because in order to be subject to human rights it’s not enough to be born but rather to
have some reason and conscience.
Human rights are basic rights and freedoms. What’s the difference between rights and
freedoms?

The reasons why legal theory makes a distinction is to have a limitation and control to the
exercise of governmental power. The first rights were enacted as freedoms. People wanted to
be free and not subdued by authorities. Rights also include positive and negative rights. Civil
and social rights. The notion of rights includes not only freedoms but the duties of states to
implement some action to recognize rights. They belong to every human being irrespective of
their status.

1.2. CHARACTERISTICS OF HUMAN RIGHTS

1. Inalienability

Inalienable cannot be taken away not even with our own consent. If the rights are given to
you by the mere fact of being alive, they cannot be taken away. They cannot be surrendered,
sold, transferred even by the individuals themselves. This is not absolute. You cannot consent
to sell your body, but you can sell your workforce. It is not always easy to determine when a
right can be sold or not.

2. Universality

Universal human rights apply to all people in all places and at all times. Human rights
challenge the mere notion of state sovereignty. For legal systems the territory (locus) where
the individual is has a lot of implications. According to most domestic systems, state
sovereignty means that they have jurisdiction and thus power. States have territorial
jurisdiction. All states exercise their jurisdiction within their territory and they are sovereign
within their territory.

3. Sovereignty
Sovereignty means that no one is above you in terms of power. The whole notion of classic
international law and IR lies in a Latin maxima “parem in parem non habet potestas”. Power
is divided in 3 branches: executive (police force),legislative (say the law) and judiciary (apply
the law).

Kelsen pyramid.
There is a tension because universality challenges directly the notion of state sovereignty to
the point that human right scholars defend that human rights pose a limit to state sovereignty.

Universality is challenged by cultural relativism. Human rights are being developed,

enforced, and created by western states and in some way they reflect the perspective of a part
of the world. This tension is a problem. Many regions claim that gender rights as created by
the UN and western countries do not apply to their regions. Muslim countries. Afghanistan or
Saudi Arabia. Gender apartheid. Women are left aside, treated differently and not able to
enjoy rights. The use of burqa in European schools has been a matter of analysis.

4. Indivisibility

Interdependent (indivisible) all humans are interrelated, interconnected and equally

Indivisibility

Human rights are interdependent and indivisible, meaning that all humans are interconnected,
and no single right is more important than another. The protection of one right depends on the
protection of others. This principle is enshrined in the Universal Declaration of Human
Rights (UDHR), which includes a comprehensive list of human rights. However, the UDHR,
adopted in 1948, is a declaration and therefore does not create binding obligations on states,
as it was not a treaty but a resolution passed by the United Nations General Assembly. Due to
its legal nature, it is considered a non-binding instrument. Nonetheless, many international
courts have recognized that the rights outlined in the UDHR reflect customary international
law, implying that they do carry legal weight.

The UDHR was created in 1948 in the aftermath of World War II, and it was originally
proposed by Eleanor Roosevelt. Recognizing its importance, the United Nations sought to
transform the declaration into a binding treaty. However, no significant progress was made
between 1948 and 1966, largely due to the Cold War.

During this period, the world was divided by the Warsaw Pact and the creation of NATO, and
the two major powers in the UN, the United States and the Soviet Union, were locked in a
conflict between capitalism and socialism. This ideological struggle resulted in the division
of human rights into two sets: civil and political rights (championed by capitalist states) and
social and economic rights (supported by socialist states). This led to the drafting of two
separate treaties—the International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR)—marking the
split between "first-generation" civil and political rights and "second-generation" social and
economic rights.

This division poses a challenge to the concept of interdependence, as the two categories of
rights are often treated separately, undermining the principle that all rights are equally
important and mutually reinforcing.

Human Rights vs Fundamental Rights

The concept of fundamental rights originated in the German constitution and has since been
adopted by various European nations. The key distinction lies in whether these rights require
acknowledgment by the domestic legal system. In human rights discourse, it is asserted that
human rights do not need such acknowledgment; rather, they are recognized as international
standards that do not require state recognition to be considered binding.

Fundamental rights, on the other hand, refer to a doctrine asserting that these rights are
human rights formally recognized by legal systems, primarily through constitutions. Most
constitutions acknowledge rights such as the right to life, the right to a remedy, the right to
property, freedom of speech, the right to a fair trial, and the right to punishment, among
others. The extent of rights recognition often depends on the age of the constitution; older
constitutions tend to include a broader recognition of rights.

There is a prevailing trend, particularly among states, to recognize only those human rights
that have been formally acknowledged by the state, thus elevating them to the status of
fundamental rights. In the European human rights system, particularly within the Council of
Europe, human rights are binding and create obligations for member states from the moment
they consent to join the organization.

Human Rights in Legal Instruments

Human Rights in Legal Philosophy

LESSON # 2 HISTORICAL APPROACH

LESSON "A BRIEF OVERVIEW OF THE HISTORY OF HUMAN RIGHTS"

Human rights in ancient thought – Carta Magna - slavery and colonization – The
Enlightenment –– British, French, and American revolutions – Constitutionalism and
positivism – The UN and the Human Rights Framework – Cultural and developmental
differences - Universality

LESSON # 2 HISTORICAL APPROACH

LESSON "A BRIEF OVERVIEW OF THE HISTORY OF HUMAN
RIGHTS"

The Eight Milestones:

 1. Ancient Thought - Greece
2. Roman Law
3. Christianity - Natural Law (Theist)
4. Magna Carta (1215)
5. The Enlightenment
6. Revolutions
7. Liberal Constitutionalism
8. The UN Charter (1945)

These milestones trace the progression from natural law to natural rights, and ultimately to
human rights. The most important points are highlighted below. The most important ones are
in bold letters.

1. HUMAN RIGHTS IN ANCIENT THOUGHT

1.1. ANCIENT THOUGHT - GREECE

Greek philosophers like Aristotle and Socrates played a crucial role in shaping early ideas
about justice and governance. Their works laid the groundwork for the evolution of legal and
political philosophy.

1.2. ROMAN LAW

Some scholars believe that the Romans made a clear distinction between ius civile and ius
gentium.

1. The *ius civile* was Roman domestic law, and the Romans were among the first to
codify human laws.
2. However, our focus is not on the *ius civile* but on the *ius gentium*, which
constituted the law governing interactions with non-citizens, such as foreigners and
slaves. The *ius gentium* was a more basic and practical set of laws designed to
apply universally to people who were not Roman citizens.

Essentially, Roman law was divided into two categories: one for Roman citizens and another
for those outside this group.

1.3. CHRISTIANITY AND NATURAL LAW (THEIST)

Due to the fall of the roman empire, Christianity assumed a greater role. This represents the
third milestone in the evolution of human law. The Pope and the Church played a crucial role
in developing the concept of natural law. Despite their different beliefs, many religions share
similar fundamental principles regarding natural law. law. This natural law had a theist
approach and it was derived from a natural order. The origin of natural law is Christian law.
There were arguments about the morality and content of these laws based on the bible and
other written pieces.
 - San Agustin and Santo Tomás de Aquino argued about the existence of natural law.
- Saint Augustine was particularly influential in this regard, advocating for the
existence of natural law, which he described as the law of God.

2. MAGNA CARTA (1215)

This marked the first time a written document addressed legal aspects concerning human
rights. The Magna Carta, adopted in England in 1215, aimed to limit the king's power. During
the Middle Ages (1100s–1200s), Europe consisted of various kingdoms where kings had a
direct relationship with the Church and the Pope. Kings were seen as representatives of God
on Earth, bound to divine authority and not to be challenged. Their power was largely
unchecked and arbitrary. The Magna Carta represented the first significant limitation on royal
authority, driven by the demands of land-owning lords who opposed King John's abusive
practices, such as arbitrary taxation.

The Magna Carta, while containing relatively few provisions, acknowledged several
important principles:

1. The Rule of Law: The idea that everyone, including the king (even the ruler), is subject to
the law. The rule of law remains an important principle today. The Council of Europe relies in
3 basic pillars: human rights, rule of law and democracy.

2. Due Process: Ensuring fair treatment under the law, including a citizen's right to be
informed of charges and to have a hearing before an impartial judge.

3. Protection of Property: Providing certainty in property rights and fair treatment within the
legal system.

4. Habeas Corpus: A legal guarantee protecting individuals from unlawful detention. If a

person is detained without a legitimate reason, they can request prompt legal recourse to
challenge the detention. Habeas Corpus exists today in most of our legal systems.

For the first time we have rights to protection of poverty. These were specially claimed by the
lords who wanted some certainty over property.

3. SLAVERY AND COLONIZATION

4. THE ENLIGHTENMENT
This was a period in human history marked by a flourishing of legal thought, which set the stage for
Europe's revolutionary transformations. When the revolutions occurred, they impacted various fields,
including philosophy, art, industry, and science. During the Enlightenment, the Industrial and
Scientific Revolutions unfolded simultaneously and were interconnected, with one enabling the other.
These changes were largely technological, leading to significant advancements in science and the
economy, particularly in modes of production. Europe, which had been predominantly agrarian, saw a
shift in power dynamics as kings and territories began to diverge. This scientific and economic
transformation also influenced art, but its most profound impact was on philosophy.

The Enlightenment produced influential philosophers whose ideas laid the foundation for our modern
political and legal systems. The movement had two primary purposes:

1. **Secularization**: The goal was to separate religion from state power. Enlightenment thinkers,
relying on science, aimed not to limit monarchical power but to remove religious influence from
governance.

2. **The Rights of Humanism**: This philosophical movement emphasized a human-centered

approach, placing the individual at the heart of political organization. The most notable philosopher
was Immanuel Kant, who redefined the concept of human dignity. He proposed that rational human
beings should be treated as ends in themselves, not as means to an end. Kant’s ideas signaled a shift
from natural law to natural rights.

Enlightenment thinkers still upheld natural law, but their focus on natural rights implied a rethinking
of its basis. If natural law had once relied on God's will, Enlightenment philosophers argued that it
derived from human reason, which could lead to just, immutable, and universal solutions.

Other key philosophers included Rousseau, Hobbes, and Locke, who were known as contractualists.
They developed a new way to justify state power beyond kings and kingdoms: the social contract.
According to this theory, at a certain point in history, individuals agreed to form a state through a
social contract. Hobbes, in particular, argued that in the state of nature, humans would destroy each
other—famously stating, "man is a wolf to another man"—and the only way to prevent this was by
establishing a society through a social contract. This idea laid the groundwork for constitutional
systems, where society is governed by mutual agreements among people.

Another important Enlightenment thinker, Montesquieu, introduced the idea of the separation of
powers. Before the Enlightenment, kings held all powers—to legislate, execute, and judge laws.
Montesquieu sought to create a republic that not only limited monarchical power and secularized
government but also divided power. He believed that power should not be concentrated in the hands
of one ruler, and this principle remains relevant today. It is embedded in modern constitutions, where
the separation of powers ensures a system of checks and balances. The legislative branch can limit the
executive, the executive can veto the legislature, and judicial bodies can declare laws unconstitutional.
This balance prevents the abuse of power.

The enlightenment was the most significant change in human law.

5. BRITISH, FRENCH, AND AMERICAN REVOLUTIONS

The three major revolutions served as practical applications of Enlightenment ideas, laying
the groundwork for modern constitutional governance. They all achieved some sort of a
written piece which acknowledges the propositions from the enlightenment. Recognized
some basic rights and established forms to control government and power:

● English Revolution (1642): The English revolution did not throw out the king, it led
to a parliamentary monarchy with a strong parliament to control the king's power.
They established the basis of what is now called the parliamentary monarchies
(Spanish and Uk). This parliament would be a powerful one, not only with division of
power but composed of a strong and powerful body.
● French Revolution (1789): Overthrew the monarchy and established a republic,
aiming to replace kingly rule with popular sovereignty.
● American Revolution (1775): Influenced by European thinkers, it established a
republic grounded in Enlightenment principles. Built a constitutional system
influenced by European Enlightenment thinkers like Thomas Paine

6. CONSTITUTIONALISM AND POSITIVISM

Many nations in the Americas declared independence from European kings to reject
monarchic rule and establish republics based on social contracts. This is why there is a strong
aversion to royal bloodlines and noble titles in the Americas. Power is not recognized through
lineage; instead, everyone is subject to the rule of law, and anyone can participate in
governance—there are no inherited titles of nobility.

These liberal constitutions, emerging from the early 1800s onwards, were essentially social
contracts. They represented the foundation of new societies, states, flags, and principles,
marking a complete break from Europe and its monarchies. These nations were built from
scratch, establishing sovereign republics. These constitutions are significant in the history of
human rights because they enshrined many of the basic rights we recognize today. They
outlined liberal rights, particularly civil and political rights, such as due process, property
protection, habeas corpus, and the right to life and personal integrity.

While these rights were not entirely new, having roots as far back as the Magna Carta, they
were formally codified in these constitutions. However, they were only granted to the citizens
of these new states, meaning they were not truly "human rights" in the broad sense. The
content of these rights mirrored those proposed during the Enlightenment, but their
application was limited to the nation-state rather than extended to all humanity. Therefore,
while these constitutions recognized important liberal rights, they did not offer universal
protection beyond their specific national borders.
 7. THE UN CHARTER (1945) AND THE HUMAN RIGHTS FRAMEWORK

While it may not represent significant progress in terms of human evolution, the evolution of
the international order is a major milestone. This is particularly important for international
law and relations, as it fundamentally changed the paradigm of the international system.
Before the United Nations (UN), the Westphalian model dominated, marking the start of
international law in a rudimentary form. For the first time, nations discussed international
affairs, historically focusing on trade and war. While trade had laws to regulate it, war was far
more complicated to manage. The Westphalian model, rooted in the principle in pares non
potest (among equals, there is no power), aimed to achieve peace through a balance of power,
ensuring no nation became dominant. This system relied on the equilibrium of power as a
way to maintain peace. However, while this balance of power worked in theory, it failed in
practice and did not prevent wars.

In 1945, the UN introduced a new system—collective security—entrusting the Security

Council with the responsibility of maintaining peace, as outlined in Chapter 7 of the UN
Charter. This system marked a significant shift in international relations. From 1945 onwards,
the UN system prohibited the use of force as a legitimate means to resolve state conflicts.
Before the UN, countries could resort to war to settle disputes if diplomacy failed, as
exemplified by Hitler’s actions leading up to World War II. The UN Charter established a
new collective security system that placed responsibility on the Security Council, preventing
the use of force except in specific, authorized situations. However, this system's effectiveness
is often undermined by the politics surrounding it, particularly the veto power held by the five
permanent members of the Security Council.

The Cold War, which emerged soon after the creation of the UN, further complicated its role.
The two major powers—Russia (formerly the Soviet Union) and the United
States—frequently used their vetoes to block each other’s actions, stalling the UN’s ability to
intervene in critical conflicts. This dynamic persists today, as seen in the Security Council’s
inability to act effectively in conflicts like those in Ukraine or Palestine due to reciprocal
vetoes and political deadlock.

The UN Charter, adopted in 1945 at the Treaty of San Francisco, is also crucial for human
rights, as it contains numerous references to peace and security. The UN was born out of the
devastation of World War II, at a time when the world was in disarray. The Charter, filled
with references to peace and security, emphasizes the importance of respecting human rights,
especially in Article 2, which sets out the key principles of the UN. This article represents the
most important reference to human rights within the Charter, although the direct mentions of
rights are limited.

In 1948, the Universal Declaration of Human Rights was adopted—the first written
international document to formally recognize universal human rights. Although this was a
late milestone in the history of rights, it marked the first global recognition of basic human
rights. Many of these rights had already been acknowledged as natural rights in various
countries, making it easier to adopt and accept the Declaration on a global scale. At that time,
the UN had only about 45 member states, primarily European and American nations, many of
which had already recognized similar rights in their own legal systems.

However, from 1948 onwards, the situation became more complicated due to the onset of the
Cold War, which opened a new chapter of conflict. This division led to the Universal
Declaration of Human Rights being effectively split into two main categories of rights:

(a) international civil and political rights, and

(b) economic, social, and cultural rights.

This partition reflected the ideological divide between the capitalist West and the socialist
East, further complicating the development and application of universal human rights.

8. Cultural and developmental differences

9. Universality

LESSON # 3 HUMAN DIGNITY, HUMAN DIGNITY AS THE

CORNERSTONE OF HUMAN RIGHTS
Liberty, equality and human dignity – dignity in ancient thought – the Kantian approach – dignity and
human rights – the relationship between dignity, human agency and capacity – dignity, and
personhood – dignity and groups in situations of vulnerability – dignity, and transhumanism

1. LIBERTY, EQUALITY AND HUMAN DIGNITY

2. DIGNITY IN ANCIENT THOUGHT
Dignitas meant two things:

a) Worthiness.
b) Honor.
Stoicism emphasized the rationality of all humans and put our virtue. Virtue denoted
something that you would achieve through your living experiences. It was not something that
you were awarded with but something that you had to gain and depended on your actions.
Even though philosophers defended the innate worthiness of humans as opposed to animals
and thought about reason as one of the main characteristics of humans’ existence, the
emphasis was not on something that you would simply acquire by the mere fact of being
human.

3. THE KANTIAN APPROACH

Things started to change with the enlightenment. The two main characteristics of the
enlightenment were secularization and humanism. Kant is a key thinker for the notion of
dignity. Kant refrained dignity in secular terms. Whereas the Roman and ancient Greek
associated Dignitas by virtue, that really changed with Christianity in the Middle Ages. The
notion of dignity would be much related with religious achievements. Kant refrained the
notion of dignity in secular terms. He argues that dignity arises from the human capacity for
rational, moral, decision-making and autonomy. If you were a human being capable of these
things then you would have dignity. According to Kant, we did not acquire dignity because
we already had dignity.

Kantian imperative: “individuals should always be treated as ends in themselves, never as

means to an end, because of their intrinsic moral worth”. On one hand, he states that humans
should be treated with dignity because of their innate moral worth but on the other hand he is
saying that dignity arises from the human capacity to make moral, rational decisions with
autonomy.

In his theory there are some contradictions. According to the Kantian notion of dignity, parts
of humanity are excluded.

4. DIGNITY AND HUMAN RIGHTS

From birth until adulthood, children lack what law calls “legal capacity”, they are deprived of
making decisions with legal consequences. They still have rights but the legal system adopts
this fiction to distinguish between having rights and exercising those rights. Most legal
systems award this exercise of the rights to their parents. They make decisions on behalf of
their children. Do they have dignity? Besides children we have persons with disabilities.
What happens with these people? This is quite contested even by modern neuroscience. This
least one has revealed that we do not make decisions rationally. When we reach a certain age
we become rational beings with the capacity to make moral decisions.

The enlightenment composes the background of most of our legal systems. This is why we
had quite strict rules to determine when a human had capacity to make decisions and which
didn’t.

In the case of children, the method that law has adopted is a sort of black and white approach
to capacity. Either you have or have no capacity, there are no shadows of grey. Science
showed that the age at which the brain is fully developed is around 18 years old, this is where
adulthood starts. This system was quite rigid. The same thing happens with persons with
disabilities. The problem would arise when they turned adults, but they still didn’t have full
capacities to exercise their rights. Many systems created a system to incapacitate people or to
award guardianship. This was standing from the status of childhood to the adult life of
someone with disabilities.

Both status, those of children and disabled people, were critiqued over dignity. If we look at
the universal declaration which talks about dignity also speaks about rationality. It seems like
we humans need not just biological humanity but also to have some sort of rational
capabilities to make decisions. Dignity may be perhaps an important argument for euthanasia.
You cannot kill someone for human dignity reasons but on the other hand people ask for
euthanasia as they are not able to live a dignified life.

We tie the notion of human dignity to having some sort of autonomy and capabilities to
interact and engage with the environment and other humans.

5. THE RELATIONSHIP BETWEEN DIGNITY, HUMAN AGENCY AND

CAPACITY
6. DIGNITY, AND PERSONHOOD
7. DIGNITY AND GROUPS IN SITUATIONS OF VULNERABILITY

This contradiction has been explored by both philosophy and law through the differentiation
between human agency and personhood.

- Personhood refers to the legal recognition of an individual as a person, which entails

the possession of rights. It is through personhood that dignity typically begins. At
birth, an individual is granted personhood and becomes entitled to rights,
distinguishing them from non-persons. In legal terms, only persons can possess rights
and obligations. There are two types of persons in law: natural persons (individual
human beings) and legal persons (entities such as corporations). Non-persons,
according to the law, are treated as things. Unlike persons, things do not have rights
but can be subject to appropriation.

- **Human agency** is the capacity of individuals to act independently and make their
own free choices. While one may possess personhood, they may lack human agency,
which often requires a certain level of maturity. Not everyone inherently possesses
agency as they do personhood.

- **Dignity** is also closely related to agency. If agency is defined as the capacity to

make rational decisions, and according to Kant, it correlates with levels of autonomy,
a question arises: How do personhood, agency, and dignity interrelate?

Historically, the relationship with dignity has evolved, particularly regarding issues such as
pregnancy. The moral implications of pregnancy interruption have raised significant
questions, especially from conception to birth, and in the context of assisted reproductive
technologies.

From a human rights perspective, an embryo is not considered a person. This view has
implications for discussions surrounding surrogacy and genetic manipulation.

Furthermore, even after death, individuals retain a certain degree of legal protection
concerning their dignity. The concept of "deadbolt" refers to this legal safeguard that persists
beyond life.

8. DIGNITY, AND TRANSHUMANISM

Transhumanism is a way of thinking that analyzes the relationship between humanity and
technology. How has technology affected humanity and our human nature? Through genetic
engineering and neurotechnology we have the possibility of human enhancement.
Manipulating either the brain or the genetic structure of humans in order to make it stronger.
In 2018 a Chinese scientist performed a genetic modification in two embryos to create
resistance to HIV. If human nature is being altered, where does that leave dignity?

LESSON # 4 INTERNATIONAL PROTECTION OF HUMAN RIGHTS, THE

PROTECTION OF INDIVIDUALS IN A SOVEREIGN WORLD

Protection of individuals before and after the UN Charter – the evolution of human rights in the UN
system – conventional and extra-conventional frameworks – individual locus standi before
supranational organs - regional human rights protection systems – civil society and universal
human rights advocacy

1. PROTECTION OF INDIVIDUALS BEFORE AND AFTER THE UN

CHARTER
This system of protection is based on the UN system. As many international organizations as
there may be, the UN sets the basis for international relations.

Whereas in the UN Charter, several references to peace and security are made, there are few
mentions to human rights. The UN “failed” to address human rights broadly because at the
time it was created our international order only considered the State as a subject of
international relations. The individual was not entitled to rights and obligations under
international rules. The only way through which states would protect the individual was
diplomatic relations.

When a State protects individuals through consular and diplomatic law, they do it relying on
the State’s willingness to embrace such action. Individuals did not have subjectivity until the
UN was created.

2. THE EVOLUTION OF HUMAN RIGHTS IN THE UN SYSTEM

The key event that defined the start of subjectivity and the recognition of human rights was
the Nuremberg trials. This UN system developed gradually and little by little recognised
individual rights at an international level.

Everytime we deal with a system, it is necessary to consider the following elements:

1. Legal Source (What?)

A legal source is always needed. The two more important sources are treaties
(conventions/conventional law) and costume (customary law). The legal source establishes
the legal obligation to respect human rights.

2. Organ (Who?)
We need a system to control the fulfillment of rules, a system that revises the compliance of
obligations. The organ will be in charge of controlling the mechanism.

3. Procedure (How?).
A procedure will be needed to organize and order the system. It is a formal design of how the
system will work.

3. CONVENTIONAL AND EXTRA-CONVENTIONAL FRAMEWORKS

When we address the rights protection system referring to the international dimension, we
need to bear in mind the following structure. Two different systems within the UN are
distinguished:

1. Charter based system

There is an international HR protection system that is charter-based:
 1. What is the legal source? Article 55 and 56 of the UN Charter. It states a
general obligation to all Members pertaining to the UN and ratifying the
Charter to protect and ensure human rights.

2. Who? Which is the organ which is in charge of this system? Human Rights
Council (Former HR Commission until 2006). It is the organ within the UN
which deals with human rights issues. In 2006, the former secretary of the UN
(Kofi Annan) made an unsuccessful attempt to reform the UN Charter. His
idea proposed 3 pillars (key elements) that built international relations:
a. Peace: Security Council
b. Development: Economic and Social Council
c. Human rights: We didn’t have one. Now we have HRC. Kofi Annan
proposed to give the HRC a superior status, placing this organ at the
top of the UN structure as a main organ. However, he was unsuccessful
in his enterprise. The HR Council is a political organ. It is composed
by diplomatic representatives of each member state, receiving direct
indications from the government of the States. The HRC, for this
reason, is notably biassed, as they decide where to investigate human
right violations, leaving powerful countries out of these investigations.

3. How? They usually have two basic procedures:

a. Universal periodic review: The council does this periodically
addressing the situation of HR in the world. It is a sort of a report.
b. Special procedures: they are created by the HRC. The HRC decides to
create what is called a mandate. This acknowledges the need to
recognise a specific issue that affects human rights (access to water,
violence against women, arbitrary executions….) The council
identifies this problem and creates a mandate which will create the
conditions for this topic to be addressed. They would usually appoint
an individual which is known as a “rapporteur” (appointed for 5 years,
he/she has to elaborate an annual report on the issue that is entitled to
him or her). They decide which mandates should be created through
voting, so it really depends on the likes of the member states. All of
these are not binding, they are not legal sources. If a rapporteur states
anything in a report, it does not constitute any obligation, it is just a
source of soft law. These procedures can be:
i. Thematic.
ii. Geographic: This will be more difficult to elaborate. This is
very unlikely to happen in powerful nations, it is usually
carried out in developing countries.

2. Conventional based system

Everytime we refer to conventional law, we are referring to treaty based law. It is more
effective than the Charter-based system.

1. What is the legal source? Several treaties form its source. Some of the sources
include (core human rights treaties):

a. ICCPR 1966
b. ICESCR 1966
c. CERD 1965
d. CEDAW 1979
e. CAT 1984
f. CRC 1986
g. CRMW 1990
h. CRPD 2006

These treaties recognise different kinds of human rights (life, liberty, freedom of thought,
access to health, education, employment, etc). Treaties generally have two distinctive parts:
one which is about rights and obligations and another part that creates an organ. Treaties do
not only create rights and subsequent obligations but also organs to supervise that these
obligations are complied with.

2. Organ. The organ that controls these treaties is not singular. There is a supervising
organ per treaty. All of them are UN Committees. All Committees are analogous to
the Treaty they oversee (UN committee on HIV, UN Committee on the rights of
children, UN committee on the rights of people with disability…). When states ratify
the treaty, they automatically accept the jurisdiction of the committee to perform a
control over the compliance of obligations. These organs are not political, they are
composed by independent experts that are selected by state parties. Once they are
elected, they do not respond to the states (they are independent). They do not
represent the state, they should be apolitical (they are elected based on their
knowledge and expertise). They are normally formed by 10-12 experts. They are not
constantly working, they gather 2 or 3 times a year.

3. Procedure. There are several procedures, however the focus will be placed on the
following procedures. Monitoring systems: how do committees supervise that states
fulfil their obligation:

a. Periodic country reviews: Countries become a part of a treaty by ratification of

the treaty. Ratification is a unilateral act: states manifest their consent to be
part of a treaty. When countries agree to become part of a treaty, they must
submit every 5 years (on average, it depends on the treaty) a country report.
Countries need to inform what they have done in order to enhance that specific
right in their territory. The first report is extensive, the following ones (every
five years) are mainly only to review the situation. The State communicates
 what have been the domestic measures adopted in order to improve the
situation related to a specific right. The Committee gives the country feedback
with a list of issues, asking for some clarifications in relation to some specific
topic regarding the report. The procedure works as follows: the country
presents the report and the Committee delivers the list of issues and then they
gather a hearing. In the last 20 years a new step has been adopted in the
procedure- calling civil society and NGOs to bring shadow reports. When
countries issue the report, it is up to the government what to include in the
report. What the Committee realized is that States would omit relevant
information, even including misleading information which could not be
proven. That is the reason why the Committee allowed NGOs to submit
shadow reports on the country’s situation concerning human rights. These
reports often reveal important information that countries have tried to
overlook. The Committee does not need to adhere to these reports. Concluding
observations of the Committee do not create obligations for the States, they
are just recommendations- it’s a soft procedure. This is the most important
procedure.

b. The General Comments or General Observations. They consist of legal

interpretations laid out on provisions- it breaks down the provision and
interprets each paragraph. There are authoritative observations ,these
comments are usually non-binding for States (TS jurisprudence), however they
should be taken as authoritative interpretations of the treaty.
c. Individual complaints. This procedure is not allowed in every committee (in
most of them it is allowed). The individual can file a complaint to the
committee alleging a violation of a human right. Any individual who is within
the jurisdiction of a State party and alleges a violation of his/her human rights
can present this complaint before the Committee. Individuals can actually file
complaints to the international organ without the permission of the state. There
is a principle in IL which is called “exhaustion of domestic remedies”. Every
individual can present this sort of complains, but only when he/she has already
exhausted all domestic remedies (all the domestic law stances ), if you have no
further steps to follow in your domestic system (normally the last ones in
Spain would be Tribunal Constitucional or Supremo), you can file a complaint
to the committee, which will hear it. Organs usually first attempt to mediate
between the State and the individual in order to reach a friendly solution.
International organs do not usually act like judges because their power is
weak. International organs usually search for diplomatic solutions. If this is
not possible, they open a hearing and then the Committee adopts a
“communication”, which will deliver a conclusion on whether the country has
violated human rights.We could say that the committee is somehow binding,
but this is not a jurisdictional procedure but a administrative one, so states are
not legally forced to comply with it, although they normally do.
Then, what is the purpose of all these procedures if they are not legally binding? In reality,
the only instrument they rely on to be effective is “public shame”. All these procedures are
public, and states do not want to be publicly indicated as human rights violators. States try to
avoid “bad press”; however, it is important to recall that these procedures are not legally
binding.

In order for the Committee to have jurisdiction to analyze individual complaints, it is not
enough that the country has ratified the country. The complaint procedures need the
ratification of another treaty. Treaties on human rights usually have additional or optional
protocols.

- Optional protocol: Optional protocols are usually about individual complaints. The
State allows the committee to analyse individual complaints. This function needs to
be explicitly accepted by the State party through the signing of this protocol.

Protocol = A treaty which is related to the subject of a main treaty.

REGIONAL HUMAN RIGHTS PROTECTION SYSTEMS

We do not only have a universal protection system, but also 4 regional systems are in charge
of protecting human rights:

European protection rights system

It is a complex system; for instance, in a country like Spain, or any other EU member State,
there are 3 organs which have jurisdiction over the protection of HR.
- CoE: human rights focused system. The CoE comprises many more members than the
EU.
- The EU: The EU has jurisdiction over HR and the European constitution includes
very important provisions on the protection of HR.

Council of Europe

1. Legal source: European Convention on Human Rights (1950). It is a binding

document and the main treaty in the CoE. There are additional protocols to this
Convention.
2. Organ: At the beginning it was composed of two organs, that changed 2 decades ago,
now the most important organ to control the fulfilment of the obligations of the ECHR
is the European Court of HR, which is located in Strasbourg. It is a multi chamber
organ and, unlike the EU organs, they are courts, not administrative organs- this is
very important, because rulings issued by the ECHR are binding. European rulings
enforceable through domestic courts, however the consequence is usually pecuniary.
3. Procedure. The ECHR acts as a proper, real court.

INDIVIDUAL LOCUS STANDI BEFORE SUPRANATIONAL ORGANS

CIVIL SOCIETY AND UNIVERSAL HUMAN RIGHTS ADVOCACY

Lesson # 5 Civil and Political Rights, Global Imperatives: An Overview of

International Civil and Political Rights

Liberalism, positivism and the recognition of civil and political rights. Liberal Constitutionalism. Civil
liberties and civil rights. Political rights and democratic states. The recognition of civil and political
rights in multilateral international treaties. UN Covenant of 1966. Regional conventions on human
rights. ECHR of 1950 and the IACHR of 1969. Distinction between civil and political rights.
Characteristics and content of civil and political rights.

LIBERALISM, POSITIVISM AND THE RECOGNITION OF CIVIL AND

POLITICAL RIGHTS.
LIBERAL CONSTITUTIONALISM. -> LESSON 2
UN COVENANT OF 1966.

THE RECOGNITION OF CIVIL AND POLITICAL RIGHTS IN MULTILATERAL

INTERNATIONAL TREATIES.

Instruments for the protection of civil and political rights

- Universal Declaration of Human Rights (1948): it is not a binding instrument

(declaration). This instrument is the only one that comprises both civil, political,
social, economic and cultural rights.
- ICCPR (1966): civil and political rights.
- ICESCR: economic, social and cultural rights.

The ICCPR and the ICESCR are international treaties, which means that they are binding for
the signatory parts. It is not clear why it was necessary to distinguish between two sets of
rights. The main reason why this happened is the Cold War. The UN included both the US
and the USSR among its members. In the context of the Cold War and the divisions derived
from the rivalry between the US and USSR, the two sets of rights tried to capture both visions
of civil and political rights. Afterwards, another treaty was created addressing economic,
cultural and social rights.

Civil and political rights = Set of rights which recognize and protect individual liberties and
political participation.

ICCPR (1966)
Adopted by all members of the UN - the most adopted HR treaty -. Key points:
 - No discrimination: States should apply these rights with no discrimination regarding
race, gender, ideology or religion. It is a principle to apply and interpret. This
principle reflects on the rest of rights of the treaty. As this principle has been
acknowledged by the ICJ as ius cogens (rules and obligations of IL which cannot be
derogated by neutral consensus, parties cannot agree to violate these principles). Ius
cogens is the exception, as States can generally decide which treaties to adopt.

- Duty to ensure and protect: The Convention established in Article 1 a duty to

ensure and protect HR within their jurisdiction. When we mention jurisdiction in IL
we refer to power to enforce, create and apply the law. It covers the territorial spaces,
air spaces, time and some other places that under IL are considered as part of State’s
jurisdiction (e.g. embassies, rigid regime). The ICJ has stated that the occupation of
other nations is not justified if it is not the territory owned, nor the sake of the
protection of HR.

- Ex: Israel exercises military power over another territory, which raises the
duty to protect and ensure human rights.

- Limitations: There are certain rights that can be restricted, while there are others that
can never be subject to limitations - right to life or to be protected from torture -. In
some cases, States may limit certain rights in exceptional occasions, usually in a state
of emergency. Ex: Ukraine could limit some rights because they are currently in a
war; States restricted civil and political rights during the pandemic (right to liberty).

- Monitoring: Supervision organ - UN Committee on Human Rights -.

3. CIVIL LIBERTIES AND CIVIL RIGHTS.

Content of the ICCPR

● Individual liberties:

The notion of civil rights in this case will match with individual liberties. These are the basic
rights enshrined by human rights historically. The rights recognised in the Bill of Rights
consisted of liberties that intended to limit the power of State. Besides this jurisdiction we
mentioned, States have what is called the monopoly of the force. States deprive citizens of
their capacities to solve legal issues by themselves - ex. By using violence -.

Within this monopoly of the use of force, the most serious expression is the ius puniendi
(power to punish legally). Punishment varies from economic sanctions to the most extreme
punishments, which is death. Another form of punishment is deprivation of liberty. As this
power is so serious, many individual liberties will aim to control the State’s power.
 - Rights contained in the ICCPR
- Right to life and personal integrity (art.6): covers force and interferences with life and
personal integrity (body and mind)
- Freedom from torture and degrading treatment (art.7): it is correlated to protecting
someone’s integrity.
- Right to privacy and family life (art. 17)
- Freedom from slavery or servitude (art. 8)
- Freedom of movement: duty to move freely within a country (art. 45)
- Freedom of thought, conscience and religion (art. 10)

In relation to civil rights, the ones focused on fair trial and just legal systems, we find:

- Right to a fair trial (art. 14): right not to declare against yourself, right for double
instance, nulla poena sine lege (no hay pena sin ley).

- Freedom from arbitrary detention and arrest: important guarantee of civil rights in the
field of justice system. We cannot be arrested or detained unless there is a judicial
order or very exceptionally by police forces (only in very exceptional circumstances).
The capability of the police to arrest someone is heavily regulated under HR
standards. These guarantees are so important that many constitutional systems have a
constitutional remedy to protect individuals from arbitrary detention (habeas corpus).

POLITICAL RIGHTS AND DEMOCRATIC STATES.

Purpose of allowing individuals to participate in political processes, and exercise power

through democratic channels - basic democratic rule needed-. Series of political rights:
Article 25:

- Right to vote (passive dimension): Participation in the electoral process - autocratic

regimes usually try to follow an “election” scenario which seems to be democratic -.
- Right to be elected (active dimension).
- Right to be part of public affairs. Political processes need to be open to society. This is
the reason why declarations should be public to individuals. This is a very important
rule for controlling democratic processes. It includes the right to access public
information.

Article 21 & 22:

- Freedom of assembly and association: these rights allow people to gather freely. The
most common representations are political parties, but it also includes unions.
Repressive regimes usually forbid free association as a first measure.

Article 15:
 - Right to a nationality. Every person has the right to a nationality within a jurisdiction.
This is a domestic issue, States do not want others to decide whether citizens are
national or not. Nationality is important because it grants the right to vote to the
citizens of States, it can restrict individual liberties within a territory.

Article 19:
- Freedom of expression, without it you cannot participate in debates or public
discussions. It can be interpreted as a political right but also as an individual liberty.

DISTINCTION BETWEEN CIVIL AND POLITICAL RIGHTS.

CHARACTERISTICS AND CONTENT OF CIVIL AND POLITICAL RIGHTS.

The main reason for the distinction was a historical and political reason; however, there is
also a normative, legal reason why it is important to distinguish between these two sets of
rights.

Civil and political rights are generally referred to as “negative” rights. In order to fulfil or
ensure these rights, the State has to refrain from doing something, this is why they are given
this name. They impose the duty to the State not to do something. Ex: right to life, the State
must not deprive from life. Right to move freely, the State must not forbid me from
circulating freely, etc.

As it was mentioned above, the Bill of Rights limited the power of the State, that is, it limited
the power of the King imposing a duty not to do something.

States should ensure and protect these rights immediately. The term immediately refers to an
immediate realisation after the State has signed the treaty. If the obligation of the State is to
refrain from doing something, it can be done right away. These realisations are often referred
to as “cheap rights”, because the State does not need to deploy any resources. The distinction
between “civil and social”, “negative and positive” is progressively diminishing due to
interdependence and interrelation between the two covenants.

Rights contained in the ICCPR are negative rights of immediate realisation and States
who ratify this Convention must ensure these rights immediately.

Social rights, on the contrary, are called “positive” rights. In this case, States need to do
something, they need to deploy resources, usually monetary resources, to endure these rights.
Ex: in order to implement a health system, the State must build hospitals, hire medical stuff,
ensure drugs that will be used. These positive rights are said to be of “progressive”
realisation, conversely to civil rights. States need time and resources to ensure these rights,
which is why they are called “expensive” rights.
REGIONAL CONVENTIONS ON HUMAN RIGHTS.
The system of protection that has just been addressed is a universal system of protection.
Regional human rights frameworks are also relevant. There are 4 regional HR systems:
Africa, Asia, Europe and America (we will focus on the European regional system → COE).

The Council of Europe:

1. Source: The European Convention on Human Rights (1950). This system is prior to
the universal conventional system.
2. Organ: European Court of Human Rights, which is based in Strasbourg.
3. Procedure: Jurisdictional process. The members are called judges in jurisdictional
programmes. From IL perspective, the difference between jurisdictional process and
the administrative one is that the last one is not binding.

The State must previously accept the jurisdiction of the regulatory body, as there is no
judicial body above the supremacy of the State. Because of the EU, most States have
acknowledged the European Community jurisdiction. States cannot be forced to
submit a case before an international court/ tribunal, they must accept it willingly. IL
is quite rigid on handling the submission of cases before tribunals, so when the State
has accepted the jurisdiction, it accepts that the judgement of that tribunal is totally
binding.

ECHR of 1950 and the IACHR of 1969.

Besides the Cold War, there is a normative argument in favour of distinguishing two sets of
rights. There is an argument that emanates from the IL on why it is important to distinguish
between civil and social rights. Only civil and political rights can be brought to justice at the
international level, only these rights are foreseeable under IL. The ECHR protects human
rights in Europe and they have enforcement mechanisms; however, it only addresses civil and
political rights. The same goes for the UN Committee on HR, which has an additional
protocol that allows the committee to hear complaints of an individual against a State.

LESSON 6. ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The rise of the Welfare State and Social Constitutionalism. Second Generation Rights. The
international protection of the right to work and employment (the ILO). The social aspect in the
UDHR of 1948. The Cold War, and the impact on the human rights discourse. The adoption of the
International Covenant of Economic, Social and Cultural Rights of 1966. The principle of
progressive realization

THE RISE OF THE WELFARE STATE AND SOCIAL CONSTITUTIONALISM.

SECOND GENERATION RIGHTS.
Welfare State: The concepts of social security, public services, wealth redistribution, and
economic regulation form the foundation of the welfare state. From a historical perspective,
these rights began to emerge in the early 20th century, particularly during the period between
the two World Wars. This is one reason why they are referred to as second-generation rights;
they follow civil and political rights. Specifically, civil rights were recognized in the 18th
century, political rights in the 19th century, and social rights emerged in the 20th century.
These three milestones are interconnected.

The welfare state represents a significant paradigm shift in the traditional notion of state
duties regarding social protection. From a liberal perspective, civil and political rights impose
negative obligations on the state, meaning that the state must refrain from intervening or
adopting certain measures. However, at the beginning of the 20th century, states began to
embrace the idea of a welfare state, which emphasizes positive obligations for the state to
ensure social protection. This transition was notably influenced by socialism, particularly in
light of the Russian Revolution and the emergence of Soviet states that embraced core
elements of the welfare state.

The welfare state is grounded in four key ideas:

1. Social Security: This aspect provides social insurance for individuals against
economic risks, addressing issues such as unemployment and pensions. The context
of the industrial revolution, characterized by migration from farms to factories and the
availability of cheap labor, highlighted the need for social protection. While hard
work could lead to financial gain, those who were old, sick, or injured faced economic
vulnerability, necessitating the establishment of social security.
2. Public Services: Under the social welfare state, there is a responsibility to ensure a
minimum level of public services, including healthcare, education, and access to food.
The state must ensure the bare minimum of these essential services for all citizens.
3. Redistribution of Wealth: This principle involves the state actively engaging in
wealth redistribution to address the gap between capitalists and the workforce. The
state plays a crucial role in redistributing wealth through taxation, which is viewed as
an effective tool for achieving this aim, including food taxation.
4. Economic Regulation: The welfare state must also intervene in regulating the
economy to ensure social protection and a minimum standard of rights for all citizens.
This intervention is crucial for maintaining social stability and protecting the most
vulnerable members of society.

These developments signify a shift from a purely liberal state to a social state, recognizing the
importance of social rights alongside civil and political rights, and marking a pivotal moment
in the evolution of human rights.

Social Constitutionalism
The concept of the welfare state has been enshrined in various constitutions. While initially
theoretical, it became a reality in some significant constitutions, including the Soviet,
Mexican, and Weimar constitutions. The idea of a welfare state was theoretical; however, it
materialized through the incorporation of these principles in various constitutions.

The Weimar Constitution, in particular, was notable for its progressive elements and is
considered to be a great tool for social recognition. However, its eventual outcome was the
rise of the Nazi regime. This shift was not directly due to the welfare state provisions but
rather the consequences of the agreements made after World War I, which left Germany in a
weakened financial state following its defeat by the Allied powers. Some liberals would
indeed blame the welfare state and socialist notions for the failure of the Weimar
Constitution, especially considering the significant inflation that occurred in Germany in
1929.

THE INTERNATIONAL PROTECTION OF THE RIGHT TO WORK AND

EMPLOYMENT (THE ILO). Labor movement -> ILO

The labor movement gave rise to the International Labour Organization (ILO), which was
established in 1919 during a time of extreme capitalism that often left workers in precarious
situations, facing long hours and no vacation time. Factories deployed workers under harsh
conditions, with little regard for their well-being. This period saw the emergence of labor
unions, where workers banded together to advocate for their rights. By the beginning of the
20th century, labor unions were forming, and this development was also recognized at the
international level with the creation of the ILO. The establishment of the ILO marked the
internationalization of these labor rights.

Although the ILO was founded before the establishment of the United Nations, it operates
within the UN framework today. It represents one of the first attempts to create a legal
international organization, even though earlier efforts had failed. The ILO was indeed one of
the main legal organs of the League of Nations and has been crucial for the development of
social rights. It focuses on legal rights and promotes numerous international treaties, known
as ILO Conventions and protocols, aimed at protecting workers and improving their
conditions of employment.

While it is true that social rights were heavily influenced by socialist countries, it is important
to recognize that social rights and those associated with the welfare state also developed
within capitalist contexts. These three elements—the welfare state, social constitutionalism,
and the labor movement—are the milestones that made social rights possible. For instance,
the concept of the "New Deal" in the United States reflects this development. In Europe,
many post-World War II reforms were grounded in the notion of the social state, which, while
initially seen as socialist, was also embraced by capitalist governments.

At this point, international recognition of labor rights has been limited, primarily manifesting
at the domestic level through national constitutions. It wasn't until the adoption of the
Universal Declaration of Human Rights (UDHR) in 1948 that a broader international
acknowledgment of these rights began to take shape. There was a significant discussion
within the UN regarding whether to include social rights in the Declaration, reflecting the
global tensions of the time as the world was becoming increasingly bipolar. The Bretton
Woods Agreement introduced the basis for the new financial model that would govern the
world, with the American perspective relying on pure capitalism and free markets, while the
British proposal aimed to incorporate notions of the welfare state.

THE SOCIAL ASPECT IN THE UDHR OF 1948.

The inclusion of social rights in the Universal Declaration of Human Rights (UDHR) was a
significant development, as the Western capitalist bloc agreed on incorporating these rights.
However, this decision came amid the Bretton Woods agreements, which established the
foundation for the international financial system. A key point of debate arose between two
models: the British model, which advocated for welfare state principles, and the American
model, which leaned toward a more liberal, free-market approach.

This created a political dilemma; while the importance of social protection was recognized in
various national constitutions, there was reluctance to fully acknowledge the significance of
social rights in relation to the opposing bloc, particularly the socialist states. Two decades
after the adoption of the UDHR, a distinction remained between social and political rights, as
well as between economic and civil rights.

The UN Declaration on Human Rights, adopted in 1948, encompasses a comprehensive

catalogue of human rights. Within the UN, there was extensive debate over the inclusion of
social rights in the Declaration. As the world was increasingly divided into bipolar spheres of
influence, the Bretton Woods Agreement laid the groundwork for a new global financial
model. The American perspective emphasized pure capitalism and free markets, while the
British proposal sought to integrate welfare state concepts.

THE COLD WAR, AND THE IMPACT ON THE HUMAN RIGHTS DISCOURSE.

THE ADOPTION OF THE INTERNATIONAL COVENANT OF ECONOMIC,

SOCIAL AND CULTURAL RIGHTS OF 1966. ICESCR

The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes
and expands the acknowledgment of social rights. Two decades after the adoption of the
Universal Declaration of Human Rights (UDHR), the ICESCR was adopted in 1966,
broadening the scope of rights recognized in the UDHR. The basic social rights outlined in
the Covenant include:
 1. Right to Work (Articles 6 and 7):
Article 6 acknowledges the right of any individual to gain their living by work that
they freely choose and accept. It emphasizes ensuring that individuals can consent
freely to an employment agreement. However, during periods of intense capitalism,
the real options available to workers were often limited, leading to conditions that
resembled exploitation rather than genuine employment agreements. Article 7
addresses working conditions, mandating fair wages, equal pay for equal work, safe
and healthy working environments, and the right to rest, leisure, and reasonable
working hours.
2. Right to Social Security (Article 9):
Article 9 recognizes the right to social security, which includes social insurance and
protections against unemployment, sickness, disability, and old age. Workers are
assured of support when they are unable to work due to injury, illness, pregnancy, or
age, with contributions from individuals typically funding this universal safety net.
3. Right to an Adequate Standard of Living (Article 11):
Article 11 guarantees every individual the right to an adequate standard of living,
encompassing essential needs such as food, clothing, and housing. States are obligated
to ensure this minimum level of protection is met.
4. Right to Health (Article 12):
Article 12 articulates the right to the highest attainable standard of physical and
mental health. This aspiration goes beyond merely avoiding illness; it encompasses
various measures related to achieving high standards, including access to medical
treatment, food, and adequate sanitation conditions.
5. Right to Education (Article 13):
Article 13 emphasizes that primary education must be free and compulsory. All state
parties to the Covenant are required to ensure access to education, promoting equal
opportunities for all individuals. In relation to secondary and higher education, the
obligation for states is to ensure equal access for everyone.
6. Right to Cultural Life (Article 15):
Article 15 affirms the right to participate in cultural life, to benefit from scientific
progress, and to receive protection for intellectual property. This includes social and
cultural rights related to the liberal conception of property.

The ICESCR has led to the recognition of additional rights, such as the right to food and the
right to housing. These rights are categorized into economic, social, and cultural rights.
However, distinguishing between civil and political rights can be more complex, as some
rights may not easily fit into a single classification.

Typical questions in exams may involve providing a catalogue of rights and distinguishing
whether they are social or political rights, or asking for three examples from each set of
rights.
Pregunta de examen -> Catalog of rights and ask if they belong to civil or social rights give
me 5 examples of social rights and 3 examples of civil and political rights.

THE PRINCIPLE OF PROGRESSIVE REALIZATION

Civil and political rights impose negative obligations and are often considered "cheap rights"
that can be realized immediately. States can comply with these obligations as soon as they
ratify the treaty. In contrast, social rights are positive rights, meaning that their realization
requires active obligations from states. To ensure these rights, states must take proactive
measures. Unlike civil and political rights, social rights are subject to the principle of
progressive realization.

According to Article 2.1 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR), each state party to the covenant must take individual steps to progressively
achieve the realization of these rights. This obligation requires states to utilize the maximum
of their available resources to work towards this goal. States must take measures in relation to
available resources and progressively. Essentially, the duty to ensure social rights is subject to
two conditions: availability of resources and progressive realization of the rights. This aspect
has been highly criticized by many scholars because the principle of progressive realization
can weaken the assurance of social rights, allowing states to evade their obligations by
claiming insufficient resources.

To address these concerns, the UN committee has adopted general comments indicating that
the principle of progressive realization has certain limitations:

1. Principle of Non-Discrimination: This principle is subject to immediate realization.

States cannot delay fulfilling rights based on discrimination. Even if states can ensure
rights progressively, they must immediately apply available resources in a
non-discriminatory manner.
2. Minimum Core Obligations: The committee emphasizes that there must be
minimum levels of rights ensured in areas such as healthcare, primary education, and
food. The Committee stated that states party to the Convention have an immediate
obligation to ensure a minimum protection of these essential human rights.
3. Duty to Take Steps: While the notion of progressive realization suggests a gradual
approach, it underscores that states must take concrete measures. Even if they cannot
fulfill all obligations immediately, they must demonstrate that they are actively
working towards the recognition and realization of these rights.

Another important element relates to the idea of available resources. The committee clarifies
that "available resources" refers to all resources at a state's disposal, not just those specifically
allocated for economic or social rights. This means that states may need to reallocate
resources, potentially cutting expenses in other areas to invest in social rights within their
GDP. This approach has historical precedent; for example, European countries in the last
century, having achieved peace, began to cut military expenditures and increase budgets for
social protection. Less developed countries argue that powerful states have a duty to assist
them in protecting social rights. However, there is no obligation for wealthy countries to
provide cooperation and assistance.

4. Provision Against Retrogression: There is a general understanding that social rights,

even though they take time to be recognized, cannot be revoked once established.
This principle does not allow states to reduce social rights unless under exceptional
circumstances. Once these rights are acknowledged, there is an expectation that they
will improve over time. Legally speaking, once a social benefit has been
granted—whether as law or a social right—it is very challenging to retract or reverse
that benefit. States are expected to progressively enhance the recognition and
implementation of social rights, ensuring that they become better recognized and
more robust over time.

MONITORING SOCIAL RIGHTS - JUSTICIABILITY

These rights can be enforced or claimed in various ways. At the domestic level, if social
rights are recognized in constitutions, they can be subject to judicial claims. However, social
provisions in constitutions often have weaker remedies and legal resources for individuals
seeking to assert their rights in court, making it more complicated to claim social rights. This
limitation affects the international level as well. The justiciability of social rights is a question
open to debate, particularly regarding whether these rights can be enforced in courts.

Another key element in distinguishing social rights from civil and political rights is
justiciability. The jurisdictional mechanisms available in regional legal systems—such as the
African Court of Human Rights, the Inter-American Court of Human Rights, and the
European Court of Human Rights—primarily address civil and political rights. All judicial
protection mechanisms in these regions focus solely on political rights. While there is a treaty
for social rights, namely the European Social Charter, these rights cannot be directly claimed
before the courts.

On an international scale, it is generally not possible to bring claims for the protection of
social rights in international courts, with the exception of the monitoring body of the
International Covenant on Economic, Social and Cultural Rights (ICESCR), which is the UN
Committee on Economic, Social and Cultural Rights. The Committee has various functions
for oversight and monitoring tasks. In 2008, it adopted an Optional Protocol to the ICESCR,
which is a treaty that allows the UN Committee to receive individual complaints. This means
that individuals can bring a case before the UN Committee for a violation of their social
rights. However, this procedure is not judicial in nature; the committee members are not
judges or lawyers but rather experts, and their findings are not binding on states. This
mechanism is not jurisdictional, indicating that justiciability remains a significant challenge
for the enforcement of human rights, particularly social rights.
Additionally, the Optional Protocol has been ratified by only a handful of states, underscoring
that justiciability is still a problem to address in the context of social rights.

7. Democracy and Self-Determination

Democracy in ancient Greece. The origin of modern forms of democracy. The rule of
law and the division of powers. Republic vs. Monarchy. Liberal constitutionalism and
the recognition of political rights. Core elements of modern democracies. Equality;
Participation; Majority rule & Minority rights; Rule of law and fair trial; Commitment
to human rights; Political pluralism; Free and fair elections; Division of powers.
Democratic clause and human rights recognition in Integration Processes. The
relationship between democracy, self-determination and human rights

8. Women's Rights
Gender biological differences and historical discrimination. The notion of “pater
familias” and the impact in civil law and society. The feminist movement. The
gender-based fight for the recognition of political and labor rights. The UN gender
equality paradigm. The UN Convention on the Elimination of all forms of
Discrimination against Women (CEDAW) of 1979. The general principles and rights
recognition. The gender perspective towards sexual and reproductive health rights and
the protection against violence

9. The Rights of the Child

The notion of child.

The relationship between parenthood and children.

Children as individual rights holders.

The paradigm shift in children rights perspective.

The UN Declaration and the UN Convention on the Rights of the Child.

Children rights as specific human rights.

The principle of best interest of the child.

The right of children to be heard.

The protection of children from all forms of violence.

Child soldiers.

The sale of children.

10. Disability Rights

Disability from a historical perspective (disability models).

Disability within the context of the UN and in comparative law.

Disability and the situation of vulnerability.

The UN Standard Rules.

The 2006 UN Convention on the Rights of Persons with Disabilities.

Disability from a human rights perspective.

Equality and non-discrimination based on disability.

Inclusive equality and independent living.

The paradigm shift in freedom, integrity and supported decision-making

11. The Rights of Migrants and Refugees

The origin of “ius migrandi” and the displacement of persons.
The protection of civilian in armed conflicts.
Refugee Law.
The UN Convention on the Status of Refugees of 1951.
The right to seek asylum.
International displaced persons.
Migration and migrant workers.
The UN Convention on the Protection of All Migrant Workers and their families.
Victims of human smuggling and trafficking.
The principle of “non refoulement”.

12. Human Rights Violations

The Violation of Human Rights Obligations.
Responsibility of States for Internationally Wrongful Acts.
The Nature of Types of International Human Rights Obligations.
Systematic and Gross Human Rights Violations.
International Crimes and International Criminal Law.
Torture and cruel, Inhuman, and degrading treatments. Individual responsibility for
international crimes.
Transitional Justice. Terrorism and Human Rights.