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Human Rights Law
SUNY Buffalo Law School
Melish, Tara J.

Professor Tara Melish – Fall 2012
Book: International Human Rights, Henkin et. al 2ND Edition
Study Guides
Thomas Burgenthal – Nutshell
US Restatement of Foreign Relations Law – on Lexis and WestLaw
Exam Info
2 questions weighted equally, there will be some choice
Both are policy
“statement” – evaluate
Write a concurrence or a dissent in a case we have read
How would you create an institution to deal with X problem
DOJ is going to make a law – evaluate
There may be a question that allow you to give your opinion
You will still to know and include law
Try to eliminate background knowledge – don’t need to know about specific country unless it is a country that we have really focused on.
What docs in Annex
Any treaty portion that is excerpted in course packet
ICCPR, Vienna Convention – just be familiar with them
Lose credit for incorrect information
Citations or references may be helpful – but form of citation doesn’t matter
Might want to know the level of the court
In US, doesn’t matter what jurisdiction it was in (7th v. 2nd)
2 Substantive Areas
Civil and Political Rights
Economic Social and Cultural Rights
2 Institutional Domains
Treaty System – nations can opt in and out at will
Charter System – Under UN charter
Suborgans of the UN
2 Dimensions of Change and Influence
Vertical – top down
International Body coming up with charters, etc. that fills down to nation
Horizontal – one state affects the practices of another
Introduction 1.1
Human rights movement was born out of the disasters of WWII
Human rights violations occur within individual states – studying violations requires looking at the context (historical, political, geographical, etc.)
Three principle themes crucial to an understanding of the human rights movement.
1. The Rapidly Changing Law on Capital Punishment
Think about these issues when reading Makwanyane and Simmons
Ways that they use foreign law?
Is there a world community developing?
Is it a genuine network or is it just window dressing?
Are there nations that are excluded?
Are they really being persuaded by the logic?  Or just by the cascade effect (magnitude of nations following a path)? Or not at all, just justifying an independent opinion?
What are the rationales and pitfalls of looking to foreign law?
Should it only be used in certain circumstances?
What to make of the patterns?
Are empirical patterns of decisions important?
Is the flow of nations significant?
What to make of the fact that it is a recent trend?
Decoupling – official decision doesn’t really reflect what is happening on the ground.
De facto abandonment even though DP is officially still an option in law
Or, the other way, extrajudicial killings when DP isn’t an option
Is referring to foreign law normatively desirable
Does it ever actually change the opinion in a case
Amnesty International, Facts and Figures on the Death Penalty (2006) 1.6
Death Penalty – countries
Completely abolished – 87
Abolished except for exceptional crimes – 11
Abolished in practice – 27
Retain and use DP – 71
Movement gaining momentum recently – 40 have abolished since 1990
Almost never reintroduced after abolished
China has by far the most – up to 8k
Only 60 executions in US in 2005
No convincing evidence that DP has any deterrent effect
Many international agreements to end DP 1.7
Second Optional Protocol to the International Covenant on Civil and Political Rights – 57 countries
Since 1973, 123 released from DP in US b/c found to be innocent
Abolitionist and Retentionist States
Abolitionist for all crimes
Abolitionist for ordinary crimes only (still for military and extraordinary crimes)
Abolitionist in practice
Retentionist (US here)
1 – Resolutions (HRC, Security Council) are not binding but can still have moral force
Pope JP II – urged countries to be “unconditionally pro-life”
International law arguments may be less convincing in the Islamic world
Justification of DP
Death Penalty – Current Trends
International Covenant on Civil and Political Rights – Article 6
Nothing is supposed to delay abolition of DP
DP, in countries that have not abolished it, should be used for only extreme crimes
Second Optional Protocol A.30
A large # of states have not signed up for the Second Optional Protocol, which bans the DP
No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction of a most serious crime of a military nature committed during wartime.
None of the International Criminal Courts have the DP today
Compare to Nuremburg, where whether or not the have DP was undebatable – even thought about just executing without trial
Saddam Hussein
Supposed to wind up work by 2008, but they have a # of defendants still on dock
Handing over defendants to Rwanda, but Rwanda does exercise DP
Many states have DP on the books, but don’t really practice it.
Compare to other countries which have abolished DP, but where there are extrajudicial killings. (Brazil)
Why would a country such as Brazil abolish the DP and then still practice other substitutes (extrajudicial killings)?
Benefits of signing up to these conventions – intl acceptance, avoiding sanctions, etc.
State v. Makwanyane (Const. Ct. of Rep. of South Africa, 1995) 1.10
2 convicted of murder under apartheid regime, hearings postponed and heard under new transitional constitution.
Transitional Constitution
§11(2) – prohibits “cruel, inhuman or degrading treatment or punishment”
§11(2) incorporates §8 (equal protection of the law), §9 (right to life), and §10 (dignity)
Section 35(1) of SA Constitution – “In interpreting the provisions of this Chapter… have regard to public international law applicable to the protection of the rights entrenched in this Chapter.”

ssibly international) terms.
Some say judicial borrowing shows that lawyers/judges care about international norms, at least to the extent that they feel a need to justify themselves
Or maybe they are just trying to justify the argument to an audience that care about international law
ICCPR is the best document we have for finding a norm, but the ICCPR does not mandate abolition.
Other, newer documents do call for absolute abolition, but they are not as prominent as the ICCPR
References in Makwanyane to Indian court (why) and dissents and concurring opinions in the European Criminal Court (not majority opinions)
If you just care about courts, why cite a dissent?
Lawrence v. Texas – looked not only to the number of states that had banned sodomy laws, but they showed rate of change, the trend.
Breyer makes the argument that we should use other countries’ laws b/c they are “laboratories of experimentation.”
3 Sources of International Law that influence decisions on death penalty
Foreign/Comparative law
Legislative action, judicial action, and de facto practice – all together 112 abolitionist states/
Justified by law or legal history, common present circumstances, common goals (including an interest in looking to international law.)
Foreign law may be used to follow a trend in results, adopt arguments that ar more persuasive, or test empirical propositions about consequences.
International law
3 provisions of ICCPR
Art 6 – permitting DP but regulating it
Art 7 – barring cruel, inhuman and degrading treatment
Art 10 – respect for the inherent dignity of the human person
Second Optional Protocol of the ICCPR – ratified by 50 states and signed by 7
Resolutions of Commission on Human Rights such as Res. 1999/61 calling for a moratorium as a step toward abolition (non-binding)
Precedent within international law
Nuremberg used executions, but all current tribunals do not.
*See other outline for consideration of DP for Saddam
The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer
Constitution is static, tied to what the founders intended
Bill of Rights created to prevent change
We have a different legal framework than the rest of the world
Examples: we are unique in exclusionary rule and permitting abortion
Decisions in foreign courts not binding, but should be considered
Using similar texts, similar human problems