International Human Rights
Fall 2009, Knox
I. International Human Rights Law
A. Introduction to International Law
Development of International Human Rights after WWII
Modern Int. HR is a post WWII phenomenon.
Development can be attributed to the violations of human rights committed during the Hitler Era.
The end of WWII and Roosevelt’s vision of “the moral order” became a call to the nations who fought that Axis in the WWII and resulted in the founding of the United Nations. Winners of WWII want to codify human rights in international law to prevent abuses like those seen in WWII.
What is a human right?
A right is something that one is entitled to that is accompanied by a duty to not be interfered with. (Ex. Right to Property)
Rights are not always absolute and can be limited.
A human right is a right that one is entitled to simply on the basis of being human.
Human rights are based on civil, political, economic, social, and cultural influences.
Often human rights come from what humans want for themselves. We must recognize that al humans deserve the same equal treatment that we would desire for ourselves.
To call something a human rights makes a moral statement or claim.
Under Int. Human Rights Lawà governments/states are the duty holders, they have a duty to respect certain rights of the people
International Law Basics
Treatyà any international agreement between two ore more states that the states themselves intend to be legally binding
These international agreements are the building blocks of international law.
In USà treaties are the agreements sent to the Senate for a 2/3 vote
Bi-lateral Treatiesà between only 2 parties
Multi-lateral Treatiesà between more than 2 parties
International Law customs result from a general consensus and a consistent practice of by states because of a sense of legal obligation.
States comply with international law because they desire reciprocity with othe states.
International Organizations
United Nation
Purpose:
maintain international peace and security
develop friendly relations among nations
achieve international co-operation in solving international problems and encouraging respect for human rights
be a centre for harmonizing the actions of nations in the attainment of common ends
UN Charter requires party states to promote these goals, but does not specifically dictate how they are to do so.
Main Components of the UN:
General Assemblyà discuss any questions of matters within the scope of the Charter
Consists of all the members of the UN
Chap. 4 of Charter
Security Counselà maintain international peace and security, sanction counties,
Consists of 15 members of the UN, 5 permanent members (WWII winners- China, France, USSR, UK/Ireland, and US)- 2 year terms
Chap. 5
International Court of Justiceà judicial part of the UN
Chap. 14
Secretariatà appointed by the general assembly as the Chief Administrative Officer of the UN
Chap. 15
The 5 permanent members of the Security Counsel seem to have the most power in the UN.
Good Faith Requirementà Art. 2 Sec. 2 obligates party states to fulfill their obligations assumed by the Charter in good faith
Conflict between charter and other int. agreementsà Charter trumps other int. agreements
Vienna Convention on The Law of Treaties (1980)
A state enters into a treaty by establishing on an international plane its consent to be bound by a treaty. (Art. 2, Sec. 1(b))
Signing a Treatyà signature only binds a treaty is the treaty itself says that signing binds a state (Art. 12)
Most treaties do not state that consent to be bound is expressed by signature.
Process: Sign treatyà Return to state for approval
Legal significance of signatureà Art. 18, a state must refrain from acts that would undermine the purpose of the treaty
“Signatures” to a treaty and “Parties” to a treaty are not the same.
Reservationà a statement made by a state joining a treaty where it expresses a desire to exclude or modify the legal effect of a certain provision of the treaty
Hypos:
A party decides that it would benefit more from violating the treaty than compliance. The party is willing to pay whatever damages might be assessed by an international court for non-compliance.
Theory of Effective Breachà both parties benefit from a breach
In International Law, the ability to breach depends on the theory.
Pacta sunt servandaà every treaty in force is binding upon the parties to it and must be performed by them in good faith
The treaty requires the party to do something, but the party’s legislature enacts a later-in-time domestic law that precludes the party from doing so.
Art. 27à internal law cannot be used to justify failure to perform a treaty
Generally, when international v. domestic…provision that is later-in-time controls.
Another party breaches the treaty.
Non-breaching parties can suspend the treaty, bring a claim in an international court with jurisdiction, or bring a claim directly to the breaching state’s court.
B. International Bill of Rights
Precursors to the Universal Declaration of Human Rights
Declaration of the Rights of Man (French, 1789)
Bill of Rights and Later Amendments to the U.S. Constitution (1791)
1936 Constitution of the USSR
Universal Declaration of Human Rights (adopted by the UN General Assembly in 1948)
UDHR is the first comprehensive HR instrument to be proclaimed by a global international organization.
Praise from E. Roosevelt in her statement to the UN after adoption:
“This Universal Declaration of Human Rights may well become the international Magna Carta of all men everywhere.”
Justified?
Traces of Precursors
UDHR included many rights that were found in
cism by Maurice Cranston
ESC rights are not really rights at all. ESC fail to meet 3 criteria that rights should meet- practicable to institute, universal, of paramount importance. A human right, by definition is something that no one anywhere, may be deprived of without a grave affront to justice.
C. Human Rights Institutions
Human Rights Council (previously HR Commission, available to all UN General Ass.)
The UN Human Rights Commission was created in 1946 to draft HR instruments and to monitor and address HR violations.
Drafted the UDHR and ICCPR/ICESCR
Early on, the commission was never really able to act completely objectively, to address HR abuses. There ability was hampered by the difficulty of achieving a majority vote from countries which often were not primarily concerned with promoting universal compliance with human rights.
Beginning in the 1980’s, HR Commission began to use machinery to promote compliance with HR norms. (This time period was the Commissions high point.)
Country Rapporteurs
investigated HR violations in a particular country and reported back to the Commission
Thematic Rapporteurs
investigates problems of a certain type wherever they occur
ex. freedom of opinion, racism, arbitrary detention, torture, disappearances, and violence against women
Rapporteurs published reports drawing attention to violations and either improvements or declines in countries’ human rights records.
These reports were taken very seriously by countries because they brought attention to HR abuses.
Problems with HR Commission
Targets of resolutions fought hard to become members of the commission (which was debilitating to the work of the commission)
It became more difficult to obtain a majority
2005- UN proposed replacing the Commission with a NEW HR Council
Differences between Council and Commission
fewer members
meet more frequently
election on secret ballot
each member would be subject to a review of its own record of compliance with human rights obligations
2 year term w/o immediate re-election
US did not support this final proposal
NY Times: once promising reform proposal has been so watered down that it has become an ugly sham and adopting it would take off the heat for meaningful change
Arguments for proposal:
