Бакалавриат 2020/2021

Права человека в международном праве

Статус: Курс по выбору (Юриспруденция)

Направление: 40.03.01. Юриспруденция

Кто читает: Департамент международного права

Где читается: Факультет права

Когда читается: 2-й курс, 4 модуль

Формат изучения: без онлайн-курса

Преподаватели: Малкова Полина Юрьевна, Филатова Мария Анатольевна

Язык: английский

Кредиты: 6

Контактные часы: 40

Course Syllabus

Abstract

Firstly, the course “Human Rights in International Law” gives an overview of the international human rights treaties and main judicial and quasi-judicial human rights bodies at the universal (the UN Human Rights Council and a “family” of the UN Human Rights committees) and regional levels. However, an accent is made on the (European) Convention on Protection for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights. Secondly, the course comprises the list of basic human rights, which scope of application and content are analysed on the basis of human rights instruments and case-law of the relevant international bodies. The emphasis in this part is be also made on the practice of the European Court of Human Rights. Thirdly, the course is practice-oriented. Its participants are required to read and analyse relevant case law and are trained to compose applications, responses and judicial decisions applying International Human Rights Law.

Learning Objectives

• The main purpose of the course is to make students able to use norms of International Human Rights Law, make legal research and solve cases in this field.

Course Contents

• Main Sources of International Human Rights Law. International Human Rights Bodies.
  Nature of the basic rights. Problem of basic rights in contemporary legal science and philosophy. Human rights in history of political-legal thought. Structure of basic rights. Status negativus, positivus and activus. Interferences into basic rights and its justification. Limits of restriction of basic rights. Main stages of evolution of international human rights law. Generations of human rights. Problem of universality of human rights. «Cultural relativism». Sources of International Human Rights Law. «International Bill of Human Rights». Structure of international treaties on human rights. Derogation from obligations on human rights protection. Reservations to human rights treaties. Relationship between International Human Rights Law and national law. Relationship between International Human Rights Law and International Humanitarian Law. Responsibility for human rights violations. Responsibility of states. Individual criminal responsibility. Political-legal concept “responsibility to protect” (R2P). Protection of human rights by main UN bodies: the General Assembly, the Security Council, the ECOSOC and the ICJ. The UN Human Rights Council: history of creation, members, competence. Universal periodic review. Special procedures. The Advisory Committee. Expert Mechanism on the Rights of Indigenous Peoples. Forum on Minority Issues. Social Forum. Complaints procedure. UN treaty-based bodies on human rights: history of creation, members, competence. Human Rights Committee (CCPR). Committee on Economic, Social and Cultural Rights (CESCR). Committee on the Elimination of Racial Discrimination (CERD). Committee on the Elimination of Discrimination against Women (CEDAW). Committee against Torture (CAT). Subcommittee on Prevention of Torture (SPT). Committee on the Rights of the Child (CRC). Committee on Migrant Workers (CMW). Committee on the Rights of Persons with Disabilities (CRPD). Committee on Enforced Disappearances (CED). UN High Commissioner on Human Rights.
• The European Court of Human Rights (The ECtHR).
  The Convention on Protection of Human Rights and Fundamental Freedoms (the ECHR) and Protocols thereto: history of adoption, overview of the content. Interpretation of the ECHR: main tools and particularities (the Convention as «a living instrument», margin of appreciation, the ECtHR is not “a forth instance”, autonomous notions. Scope of application of the ECHR: territory, persons, time. Reservations to the ECHR and Protocols thereto. The ECtHR: structure and composition, competence. Subjects bringing cases before the Court: individual applications (individuals, NGOs, groups of individuals, legal persons), states. Notion of a “victim”. Direct, potential and indirect victims. Admissibility criteria: ratione materiae, ratione personae, ratione loci, ratione temporis; the exhaustion of local remedies; the 6-months period; a «significant disadvantage» and others. Interim measures. Case processing. Decisions on admissibility. Communication of the application. Friendly settlement. Judgment on Merits. Referral to the Grand Chamber. Judgment of the ECtHR: structure and content. Interpretation of the Judgement on request of one of the parties to the process. Legal force of judgments. “Pilot judgments”. Adherence to ECHR. Execution of judgments. Measures of individual and general character. Supervision on the execution of the ECTHR judgments. Place of the ECTHR and ECtHR judgments in Russian legal system.
• Right to Life
  Protection of Right to Life: general characteristics. Sources of International Law, dealing with protection of right to life. Content of the “right to life”. Beginning and end of right to life. Classification of obligations of states in respect of right to life. Negative and positive obligations of states in respect of protection of right to life. Content of the negative obligations. Deprivation of life during antiterrorist operations. Death in facilities in “hands of a state”. Unacknowledged detentions. Death penalty. Positive obligations. Procedural duties. Criteria of “effective investigation”. Environmental security. Medical services.
• Prohibition of Torture.
  Prohibition of torture, inhuman or degrading treatment or punishment in sources of International Law. Scope of notions «torture», «inhuman treatment», «degrading treatment» and their distinction. A torture: special purpose or general intent, intensiveness of suffering, physical and/or mental suffering. Inhuman treatment and punishment: physical interference, psychological pressure, conditions of detention and imprisonment, body punishments, extradition or deportation. Inhuman or degrading treatment or punishment: conditions of detention and imprisonment, solitary confinement, failure to provide medical treatment, coercive measures of medical character, discrimination.
• Right to liberty and security of person.
  Right to liberty and security in sources of International law. Prohibition of enforced disappearances. Structure of Article 5 of the ECHR. “Lawfulness” of the deprivation of liberty. Protection from arbitrariness as a general purpose of Art. 5. Legitimate grounds for deprivation of liberty. Right to be informed about reasons of the arrest. Right to be released pending trial. Trial within of a reasonable time. Guarantee of habeas corpus.
• Right to a Fair Trial. Right to an Effective Remedy
  Scope and structure of Art. 6 of the ECHR. Notions of “civil rights and obligations”, “dispute over right based in domestic law ”, “criminal charge”. Applicability of Art. 6 to pre-trial investigations, appeals, constitutional and other review proceedings. Res judicata principle. Enforcement of domestic judgments. “Fair” trial. Access to a court. An “independent and impartial tribunal, established by law” Principle of legal certainty. Procedural guarantees provided for by Art. 6 of the ECHR. Reasonable time of a trial. Right to an effective remedy.
• Right to Respect for Private and Family Life.
  Court’s approach to legal analysis of cases: concepts of “interference”, “pressing social need”, “margin of appreciation”, “legitimate aim”, “prescribed by law”. The concept of private life. Scope of private life under Art. 8 of the European Convention on human rights: beginning and end of life, personal autonomy, gender identity, right to a name and ethnic identity, the right to reputation, privacy, reproductive rights, and other rights under Art. 8. The concept of family life. Marriage. Cohabitation. Blood ties. Adopted children. The derogation clause. Taking children into public care. Prisoners. Surveillance measures. Positive obligation of the states in protecting private life. The right to know one’s own origin, the determination of legal ties, protection of healthy environment and providing information about health risks, preserving of family ties and protection of family life from external threats. Contemporary problems in protection of privacy and family: transformation of the notions of ‘family’, ‘privacy’, ‘home’. The right to privacy in modern age. The secrecy of correspondence. Internet and privacy. Social networks and privacy.
• Freedom of Thought, Conscience and Religion.
  Freedom of religion or belief: international norms and institutions. The nature and minimum standards of freedom of religion and belief under international law: UN and Council of Europe. Religious liberty and OSCE commitments. The scope of Art. 9 of the European Convention: ratione materiae. What is meant by “thought, conscience and religion”. Forum internum of the right to freedom of religion. Manifestation of religion. Individual and collective aspects of freedom of religion. Permissible restrictions on freedom of religion and belief. Conscientious objection. Proselytism. The right of religious groups to association. Visual signs of belonging to religion in public space. New religious movements. Religion in the workplace. Protection against gratuitous offence, incitement to violence and hatred against a religious community. Discrimination on religious grounds: Art. 9 in conjunction with Art. 14.
• Freedom of Expression.
  The meaning of ‘expression’ and ‘speech’. Freedom of expression and its limits in the Universal Declaration of Human Rights (Art.19), the International Covenant on Civil and Political Rights (Art. 19), the European Convention on human rights and fundamental freedoms (Art. 10). Case law of the UN Committee on Human Rights. Art. 10 of the ECHR: provisional grounds for restriction and their interpretation by the Court, ‘duties and responsibilities’ clause, ‘necessity in a democratic society’ clause. Press and political criticism. Public figure. Public servants. Authority and impartiality of judiciary. Censorship. Protection of reputation. Facts and opinions. Private and family life. Public morals. Hate speech. Holocaust Denial Cases in the UNCHR and the European Court of Human Rights. Artistic freedoms.
• Freedom of Assembly and Association.
  A role of freedom of association and peaceful assembly for democracy. UN, OSCE and Council of Europe instruments. OSCE Guidelines on peaceful assemblies and on NGOs. Freedom of peaceful assembly. Definition of ‘assembly’ and types of peaceful assemblies. General international principles in regulation of assemblies. Counter-demonstrations. ‘Hate audience’ response. Freedom of association. Rights of trade-unions. Case law of the ECtHR. The Venice Commission and its recommendations. Legitimate restrictions on freedom of assembly and associations.
• Prohibition of Discrimination.
  Equality and equal treatment in the theory of human rights. Discrimination: definition, types, protected grounds. Direct and indirect discrimination. Harassment and instruction to discriminate. Victimization. Affirmative action for vulnerable groups. Discrimination and differentiation. Legitimate restrictions of the right to equal treatment. International anti-discrimination law. UN and Council of Europe anti-discrimination standards. Methodology for proving discrimination under the European Convention of Human Rights and Protocol 12. Need for a comparator. Equal and unequal situation. Prohibition of discrimination on grounds of race, ethnicity, religion, language, gender, sex, disability, HIV-status, age and place of residence. Discrimination of disadvantaged groups and individuals in employment, medical care, housing, education and in access to fundamental rights. Citizenship and equality. The ECtHR case law on Art. 14.

Assessment Elements

• Classroom-based work. Online.
• Home tasks and oral presentation, online
  Provide an answer to the question: Does a politician enjoy a stronger protection under Art. 10 for damages to his or her reputation in case when this politician is criticized by journalists, that an ordinary person? Why?
• exam, online
  Answer the following questions: The Committee Against Torture: composition, competence, applicable law, legal force of decisions. Disclose criteria of a «deprivation of liberty» under the EConvHR. Describe a relationship between a derogation from human rights obligations and a limitation (restriction) of human rights. What is meant under status negativus in the International Human Rights Law? What decision was taken by the ECtHR in Finogenov and Others v. Russia?
• colloquium (Moot court), online

Interim Assessment

• Interim assessment (4 module)
  0.1 * Classroom-based work. Online. + 0.3 * colloquium (Moot court), online + 0.5 * exam, online + 0.1 * Home tasks and oral presentation, online

Bibliography

Recommended Core Bibliography

• Aaron Xavier Fellmeth. (2016). Paradigms of International Human Rights Law. Oxford University Press.
• Daniel Moeckli, Helen Keller, & Corina Heri. (2018). The Human Rights Covenants at 50 : Their Past, Present, and Future. OUP Oxford.
• The Human Rights Covenants at 50: Their Past, Present, and Future. (2018). Oxford University Press. https://doi.org/10.1093/oso/9780198825890.001.0001

Recommended Additional Bibliography

• Ebert, F. C., & Sijniensky, R. I. (2015). Preventing Violations of the Right to Life in the European and the Inter-American Human Rights Systems: From the Osman Test to a Coherent Doctrine on Risk Prevention? Human Rights Law Review, 15(2), 343–368. https://doi.org/10.1093/hrlr/ngv001
• The frontiers of human rights extraterritoriality and its challenges edited by Nehal Bhuta. (2016).