Select Page

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

International Human Rights Outline

Fall 2012 Professor Melish

Human Rights- Henkin 2nd edition

Table of Contents

I. Death Penalty. 1

II. International Human Rights Movement 3

III. Women’s Rights and CEDAW… 11

IV. Torture. 14

V. Economic and Social Rights. 16

VI. The United Nations Human Rights System.. 19

VII. Treaty Bodies: ICCPR Human Rights Committee. 23

VIII. Regional Arrangements. 28

IX. International Humanitarian Law.. 35

X. International Criminal Court 39

XI. Anthropological Perspectives. 41

I. Death Penalty

a. Importance of death penalty: protects right to life → if we can’t agree on this right, how can we agree on any other human right?

b. Death Penalty Statistics [18]

i. Which countries execute?

1. Vast majority of executions (94%) take place in small # of countries (China, Iran, Saudi Arabia, USA)

2. Doesn’t seem to be a clear cultural divide btw death penalty and abolitionist states: e.g. Europe is abolitionist

a. American exceptionalism?

ii. International agreements

1. Several overlapping treaties dealing with death penalty

2. Why so many treaties?

a. Regional agreements → maybe easier/more palatable to have regional agreements as opposed to int’l?

b. Ratcheting effect: some protocols contain wartime exceptions, then peacetime, then total abolition

c. Why would states abolish the death penalty?

i. Growing perception that it is unacceptable

ii. Desire to gain legitimacy

iii. Reaction against past abuses (S. Africa)

iv. Thinking it doesn’t work anymore (p. 19: AI challenges deterrence argument)

v. Afraid of executing innocent people (p. 20: AI highlights risk)

d. Role of different organizations

i. International human rights bodies: UN Comm’n on Human Rights [22]

1. Non-binding resolutions, but political/moral significance

2. “Calls upon” states to move towards abolition

ii. NGOs/advocacy groups: Amensty Int’l

1. Is human rights law inherently advocacy work?

2. Change is inherent in human rights work: human rights law is largely aspirational

iii. Social organizations: churches [22]

1. Pope: urges American Catholics to work towards abolition

2. Islamic world: religious doctrine insists on death penalty

3. Institutions/movements overlapping states/int’l organizations

iv. Domestic courts: S. Africa [23] versus USA [35]

1. Formal domestic judicial decisions play relatively limited role in overall framework of int’l law → focus is on political institutions

2. Domestic courts may look at int’l/foreign law

a. Ginsburg: why not look at persuasive foreign courts?

b. S. Africa Constitution: “shall” look at int’l law, “may” look at comparative foreign law

e. State v. Makwanyane [CB 23]: post-apartheid S. Africa decision finding that death penalty is unconst.

i. Historical context: post-apartheid

1. Apartheid: executions used to kill blacks

2. Transitional const.: not sure what to do w/ death penalty → prohibits “cruel, inhuman, or degrading tx or punishment” and leaves it to courts to decide (example of political institution punting the ball)

3. Court: trying to make a clean break from apartheid (“It is a transitional const. but one which itself establishes a new order”)

4. If the historical context had been different, would this have come out the same way?

ii. Court interprets “cruel & unusual” in context of other rights protected by const.

1. Right to life

a. Notes that const. protects “without reservation”

2. Right to dignity

3. Right to equal protection

a. Notes arbitrariness of decisions: danger of same criminals getting different punishments based on race, judge, quality of prosecution, etc.

i. Why is arbitrariness of more concern in death penalty cases than w/ other parts of criminal justice system? → death penalty seen as different in-kind: irremediable and disproportional

iii. Int’l and foreign law: court refers to int’l law and foreign court decisions (incl. USA)

1. Const.: requires court to look at int’l law, and may look at foreign law

a. Why doest const. privilege int’l law? → framers coming out of apartheid: want to protect themselves from domestic abuses

2. Court distinguishes itself from foreign courts like USA that protect apartheid (e.g. “Our const. has unqualified right of life; USA does not”) → kind of like American exceptionalism

iv. Court says that death penalty isn’t important enough to punishment theories of deterrence and retribution to keep in light of its implications for right of life/dignity/equal protection

f. Roper v. Simmons [35]: USA decision finding that juvenile death penalty is cruel and unusual punishment

i. Evolving standards of decency: says that const. rights change over time

1. Growing patchwork of states prohibiting juvenile death penalty

2. Chipping away at death penalty

3. Recognized differences btw juveniles and adults:

a. Immature/impetuous

b. More vulnerable to peer pressure

c. Not fully formed character → capable of changing

ii. Influence of int’l law and foreign law

1. Looks at both int’l and foreign law, but says not controlling

2. Int’l law relevant to certain parts of domestic law?

a. Maybe interpreting cruel and unusual punishment requires looking at int’l opinions, while other rights don’t really lend themselves to this (O’Connor’s dissent)

3. Illegitimate b/c lack of consent? (Scalia’s dissent)

a. Foreign courts: obviously USA hasn’t consented to their laws

b. Int’l law: cites treat which USA has not ratified, saying

4. Picking out your friends from a crowd

g. Int’l law’s influence in domestic law: Scalia-Breyer debate [42]

i. Scalia: don’t use foreign law

1. American exceptionalism: we’re just different

2. Institutional competence: USA judges are co

i. Relativity: how you define generality depends on what you’re talking about (e.g. who are specially affected states for that rule?)

ii. Persistent objector: you could be bound by fiction of consent unless you persistently object

d. Jus cogens: norms so important you can’t derogate

3. Schachter [78]: power versus law

a. Is law subordinate to power politics? → questionable: states generally follow int’l law

i. Institutionalized habits

ii. Costs to breaching int’l law:

1. Reciprocity/retaliation

2. Loss of reputation

3. Remedies for victim state

b. Power politics relevant to idea of consent in custom: power matters if we say that law depends on the will of states (consent)

i. Pushing against this: custom can be formed absent universal consent

ii. BUT persistent objector

1. Alston: you have to be an elephant (e.g. USA) to take advantage of persistent objector option

4. Koskenniemi [82]: argument for a natural law approach

a. Custom as a stand-in for natural law: some things are so important (e.g. prohibition of genocide) that we don’t want to have to rely on consent (e.g. treaties) → positioning these rules in custom is a way to avoid the mushy nature of natural law

b. BUT this forces us to push important things into a mold that often doesn’t fit (e.g. what if no custom?) → also masks the real reasons why we want the rule (e.g. prohibit genocide not b/c that’s how states have acted, but b/c it’s right thing to do)

5. Articles of State Responsibility: classic example of custom [also discussed below in context of general principles]

a. Articles seen as too complicated to garner enough support as a treaty

b. Status as “draft” articles gave states wiggle room in accepting them as custom

iii. General principles

1. Schachter [94]: different categories of general principles

a. Principles of municipal law: effectively becomes something like custom → not int’l law unless recognized by states, and must be appropriate for application to int’l level

b. Principles derived from nature of int’l system (e.g. principles of co-existence)

c. Natural law-like principles: there is a unity of humanity that means there are certain universal principles → thought of as minimum standards of treatment

2. State responsibility for injuries to aliens: origins of state responsibility [later evolved into broader Articles]