General Background on Human Rights
When you call something a human right, you elevate it to something higher. It acquires 3 elements:
1) Urgency: must be dealt with now
2) Timelessness: always been there
3) Universal Validity: the right is irrespective of race, religion, etc.
1) Savage: To control the savage, despotic state or a savage cultural practice.
2) Victim: To help the victim, whose attributes of human dignity have come under attack by the horrible cultural practices.
3) Savior: protects, vindicates, safeguards (norms of human rights movement; NGOs; state organizations, etc
Right: a coalescence of a claim into an entitlement.
Two basic principles of the human rights movement:
1. Equal Protection
The UN charter is the legal basis for human rights law. Human rights are central to the UN and the reason for the establishment of the UN.
Article 55 of the UN Charter: The UN shall promote (a) higher standards of living and conditions of economic and social progress; (b) solutions of international economic, social, health and related problems; and (c) universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Even sections (a) and (b) talk about human rights and not just economic rights. Certain standards of living are human rights (water cleanliness, employment, shelter, etc.). The entirety of Article 55 talks about human rights.
Before the Nuremberg trials, there was only some rhetoric of human rights without substance. After the war, you have the:
Geneva Convention on genocide
Universal Declaration of Human Rights (1948):
This is the first document that elaborates on what human rights are.
It is not a treaty or a law and hence it is not binding. A declaration is distinguishable from a treaty, a covenant, an agreement, a protocol or a pact. All of those are binding.
How can a document that is not binding on states become the most important legal document of its time?
i. The Declaration was adopted without opposition, yet with several abstentions.
ii. Many parts of the document have become customary international law. Even a declaration which is not binding can evolve into customary international law. Custom binds all states. Therefore, many parts of the declaration have become binding customary international law.
Have the aims of the international human rights movement been achieved? Are we more civilized today as a result?
Public consciousness has changed about what is right and what is wrong.
There is a sense of obligation and of guilt that is associated with human rights.
There has been a lifting of the veil of sovereignty that countries used to justify their actions.
Who is responsible for human rights violations?
State as the obligor for the human rights corpus
In order to call it a violation, you have to be able to relate it to the state
The distinction between private and public is a legal fiction.
International Covenant on Civil and Political Rights (ICCPR)
Preeminent human rights treaty
Creates obligations on states
All the rights which are included in the US Constitution are included in the ICCPR (due process, assembly, speech rights, etc.).
Art. 7: no one shall be subject to torture or cruel and inhuman treatment.
Art. 4: says what States may derogate from in the case of a public emergency (restrict movement, press, etc.). But, they cannot derogate from the prohibition against torture or taking someone’s life. It means that some of the articles in the Covenant are absolute.
There is NO prohibition against derogating from environmental standards.
There is a certain flexibility with regard to certain rights or violations of environmental standards. This doesn’t mean that there are no standards with regard to the environment or worker’s rights.
NOTE: The country with the most lax human rights standards will be an attractive haven for investors. But, a country with human rights standards, predictability in government, an honest government will attract more investors because of their stability. Hence, in the long run, companies will prefer to invest in countries with standards, but in the short run, companies will invest in countries with lax standards.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Seeks to bind countries to the establishment of a general welfare state or a social democracy.
The US is not a signatory of this covenant or CEDAW, but it is a signatory of the ICCPR.
Solutions to the Human Rights Violations of Nike and Vietnam
Vietnam can enforce its own laws to prevent Nike’s unhealthy workplace
The US can regulate its own corporations
Vietnam can be held to respect the covenants it signed.
INTERNATIONAL LAW vs. DOMESTIC LAW
On the international level, there are distinctions between the law-maker, interpreter, and enforcer.
What correlates to the different branches of government in international law?
LEGISLATURE: The UN, including all the institutions that are affiliated with it, is the one place where international law is made. It correlates to the legislature.
EXECUTIVE: The Secretary General of the UN is correlative to the executive branch. But, there are many executives, i.e. the heads of all of the different international organizations.
JUDICIAL: Arbitral processes in international law, between international entities or nations are similar to the judicial branch, as is the International Court of Justice.
History of International Law
The beginnings of international law are traced to the 1400s. A handful of European states, mostly maritime states, which called themselves the Society of Nations, developed an international legal order. They felt that such an order was the province of Christian nations only. This international legal order defined which societies deserved to be free (Christian and European) and which societies did not. Those that did not de
ver a period of time.
Major inconsistencies in the practice (a large amount of practice which goes against the rule in question) prevent the creation of a customary rule.
“General practice” includes the conduct of all states which can participate in the formulation of the rule or the interests of which are specifically affected, but a general practice does not have to be universally accepted.
A state may be bound by the general practice of other states even against its wishes if it does not protest against the emergence of the rule and continues persistently to do so (persistent objector).
How a State can Claim a Breach of Customary Law:
The claimant state which seeks to rely on a customary rule must prove that the rule has become binding on the defendant state. There are two ways of doing this:
Show that the defendant state has recognized the rule in its own state practice
Show that the rule is accepted by other states.
Article 52 of the Convention on the Law of Treaties: a treaty is void if it conflicts with the peremptory norms. A norm is accepted by the international community as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
§ Treaties are similar to contracts in domestic law, but they are between states and states or states and international bodies.
§ Pacta Sunt Servanda – if you enter into it freely, uncoerced, then the treaties are meant to be honored in good faith and not be breached.—goes with notion of freedom of contract
§ Only treaties can create and define the powers or jurisdiction of international institutions in which state parties participate and to which they may owe duties.
§ Whereas a statute is generally enacted by the majority of the legislature and it binds all members, the treaty is a consensual arrangement the binds only parties and requires the consent of all for alteration.
§ Duties Imposed by Treaty Law
A treaty embodies widespread recognition that commitments publicly, formally and voluntarily made by a nation should be honored.
§ Treaty Formation
o A treaty is formed by the express consent of its parties.
o It may be necessary to postpone the effectiveness of the agreement until a national legislative body has approved it and national executive authorities have ratified it. I