International Protection of Hunan Rights Outline
Professor Gregory Fox – Fall 2017
Introduction
International Law Generally
International Law is generally defined as the law governing relations between nation-states exclusively.
Only states are subject to rules.
Human beings were not deemed to have legal rights they were seen as objects rather than subjects.
Obligation to states whose nationality the person possessed.
Int’l legal system is not the legal system of any state
Is a horizontal legal system rather than a vertical one
No hierarchy
No world court
Look to where each particular norm originates for source of law
Much less enforcement capabilities
Int’l community is mostly made up of states
Int’l law emulates from int’l sources
Treaties
HR is a head on challenge to the state centric idea
HR treaties give rights to individuals against states
HR has one of the weakest levels of enforcement
Treaties
Treaties in int’l human rights law [106]
Different dimensions of treaties:
Contracts: discrete agreements (e.g. borders)
Legislation: permanent rules to govern conduct
Human rights: usually multilateral treaties, like legislation
Big advantage of treaties over custom: can create int’l institutions
Minorities Treaties
Post-WWI: rise of concept of self-determination but impossibility of giving each people their own state (nation-state) meant that another way of protecting minorities within a state had to be found
Compromise: USA didn’t care about extending this everywhere (not a colonial power), but Europeans did → minorities thus protected through int’l agreements confined to Europe
Common characteristics of treaties:
Everyone within state treated equally
Special guarantees to minorities (e.g. use of their language; right to establish social/religious institutions)
First step towards int’l law intruding into domestic sphere and establishing mechanisms by which this is done (e.g. minorities could petition League of Nations/ICJ)
History
New optimism after WWII
Modern era of HR begins when the UN comes into existence
Article 55 and 56 set forth the promotion of human rights.
Article 55(c) promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”
Shows human rights are internationalized and no longer a subject for domestic jurisdiction.
Not fulfilling obligation if in the practices amounting to “consistent pattern of gross violations.”
Use resolutions to stop states from practices and allow HR bodies to view allegations.
Still some state-centrism left but is much less than pre-WWII
Some HR innovations came about after WWI:
The mandate system
Creation of the Int’l Labor Organization
Minority rights treaties
Self-determination
Nuremburg trials
And the crimes that were established b/c of it
Treaty establishing court: revolutionary → imposing individual criminal responsibility for war crimes
Judgment [118]: tribunal found that individual Δ could be tried for war crimes (aggression, crimes against humanity)
Problem: ex post facto law → the treaty criminalized things that, while illegal, were not subject to criminal liability at the time
Tribunal’s moral versus legal arguments
Legal: points to treaties and custom outlawing war and certain war practices
BUT treaties didn’t provide for consequences; can you base criminal liability off of custom?; some treaties which states weren’t party to tribunal says were declaratory of custom
Moral: tribunal says that Δ must have known that what they were doing was wrong
Does it matter whether Δ knew what they were doing was: (1) illegal; (2) illegal w/ criminal liability; (3) immoral
UN Charter and the provisions on HR w/in it
Includes human rights as objective
BUT diplomats afraid of fundamentally altering int’l system → doesn’t specify human rights in Charter
Criticism: fundamental values should be included
BUT basic UN principles is non-interference in domestic affairs → inconsistent w/ human rights
Universal Declaration on HR (UDHR)
Non-binding R
w) to the Committeeàa written explanation
Violation does not have to be systematic, can be an isolated incident
Have to exhaust all domestic remedies before one can file a complaint w/ the Committee
Goals of the Committee:
Identify steps the state party can take
Offer individual relief
Stimulate general legal policy
No binding effect of the views of the Committee
Why the Committee gets to decide:
Objectivity
B/c there aren’t tangible benefits to compliance
International Covenant on Civil and Political Rights
Binding – not exclusively w/in domestic concern
Enables private parties claiming to be victims of a violation to file a communication or complaint w/ the HR Committee
Committee functions like a court
Not provided in the ICCPR but by an additional protocol
Addendum to the treaty
Meant to be non-political: independent experts; institutionalization of human rights proceedings
Real emphasis on domestic implementation
Alston: sovereignty versus int’l enforcement was big debate behind Committee → compromise left lots of issues unresolved which were to later filled in by Committee, leading to two competing perspectives:
State say “this is not what we agreed to”
Response: you can’t discern intent b/c you knew you were leaving things to future elaboration
Though majority vote, emphasis on consensus (watered down compromises?)
Four functions of Committee:
State reporting
State parties must submit reports on measures that they have adopted which gives effect on the measure they have adopted which gives effect to the rights recognized in the covenant and progress made on enjoyment of rights. (EVERY 4-5 YEARS)
