International Protection of Hunan Rights Outline
Professor Greg Fox
Winter 2011
I. Introduction (pgs. 1-5)
a. International Law Generally
i. Int’l legal system is not the legal system of any state
1. Is a horizontal legal system rather than a vertical one
a. No hierarchy
b. No world court
c. Look to where each particular norm originates for source of law
d. Much less enforcement capabilities
2. Int’l community is mostly made up of states
ii. Int’l law emulates from int’l sources
1. Treaties
iii. HR is a head on challenge to the state centric idea
iv. HR treaties give rights to individuals against states
v. HR has one of the weakest levels of enforcement
b. History
i. New optimism after WWII
ii. Modern era of HR begins when the UN comes into existence
iii. Still some state-centrism left but is much less than pre-WWII
iv. Some HR innovations came about after WWI:
1. The mandate system
2. Creation of the Int’l Labor Organization
3. Minority rights treaties
a. Self-determination
v. Nuremburg trials
1. And the crimes that were established b/c of it
vi. UN Charter and the provisions on HR w/in it
vii. Universal Declaration on HR (UDHR)
1. Resolution of the GA
2. When any UN body wants to make a decision regarding HR it refers to this
3. Customary int’l law?
4. Covers the whole spectrum of HR
viii. Evolution of binding principles, 3 categories:
1. General HR treaties at the global level
2. Subject specific treaties at the global level
3. Regional level
ix. HR treaties:
1. Differ w/ other int’l law treaties in that they are non-reciprocal
2. Agreeing to treat its own citizens in accordance w/ the principles set out in the treaty
3. Citizens are the primary beneficiaries
4. The operation of these treaties is completely different than other treaties in the int’l legal system
x. Series of HR treaties
xi. Jus ad bellum provisions
II. The Structure of Human Rights Treaty Obligations (pgs. 5-12)
a. Text, Reporting, Judgment
i. The ICCPR creates a committee that serves as an overseer
ii. State reporting
1. States are obligated to file reports about their compliance
2. Increasing role of NGOs
3. Problem of lack of information
iii. The committee has no sanctioning authority, no ability to punish violators
iv. States accused of substantial non-compliance will be referred to the SC and the SC will impose sanctions
v. Individuals alleging violations can submit a communication (see ICCPR below) to the Committeeàa written explanation
1. Violation does not have to be systematic, can be an isolated incident
vi. Have to exhaust all domestic remedies before one can file a complaint w/ the Committee
vii. Goals of the Committee:
1. Identify steps the state party can take
2. Offer individual relief
3. Stimulate general legal policy
viii. No binding effect of the views of the Committee
ix. Why the Committee gets to decide:
1. Objectivity
2. B/c there aren’t tangible benefits to compliance
b. International Covenant on Civil and Political Rights
i. Enables private parties claiming to be victims of a violation to file a communication or complaint w/ the HR Committee
ii. Committee functions like a court
1. Not provided in the ICCPR but by an additional protocol
2. Addendum to the treaty
iii. Complaints can only be filed against state parties
iv. Most of the rights are phrased in general terms; some are group rights, some are individual rights
v. Contains certain specific provisions for limitation (Art. 19)
1. Approaches to use of exceptions:
a. Against: if specify exceptions then it’s an invitation to use them; if only have rights then there’s a broader range of coverage
b. For: better to specify exceptions for an instrument that is to be applied in different countries
vi. Derogation from HR covenant: the idea that rights may be suspended
vii. **General Comment 24, pg. 1144
c. Reservations to Human Rights Treaties
i. Reservations are acceptable as long as they’re consistent w/ the object and purpose of the treaty (Vienna Convention, Art. 19)
1. Difficulty of figuring out what the object and purpose of an HR treaty is
ii. General Comment 24, pg. 1144
1. Prompted b/c of the number of reservations
2. Reservations that offend peremptory norms (jus cogens) are not acceptable
iii. Every HR treaty contains provisions that oblige the state to give effect to the rights under itàcan’t take a reservation to not have to adhere to the treaty
iv. Certain r
v. No oversight body
1. Universal jurisdiction to prosecute (requires state parties to criminal genocide), or
2. Send to ICJ
vi. Kinds of acts, pg. 13
b. Torture
i. Def: cruel, inhumane, and degrading treatment
ii. Things that are clearly understood as torture vs. “torture like” acts
1. Ludan article
iii. There still is no clear line
iv. Long term vs. short term effects: techniques causing long term harm may be more suspect than those that don’t
v. Idea of necessity: certain circumstances make it necessary to use torture
1. Can be raised as a defense
vi. Rationales for prohibiting torture, pg. 14
1. Utilitarian argument
2. Deontological argument
vii. Arguments for not adhering to an absolute prohibition, pg. 14
viii. Ticking time bomb scenario
ix. The idea that judges will act as an independent check is a fantasy (Ludan)
x. Torture in the US
1. Three sets of legal instruments
a. CAT
b. US reservations
c. Legislation
2. The US said is bound by Art. XVI as it relates to the 8th Amendment
3. Torture memos, Yoo argumentàbold and incorrect (pg. 15)
4. US has added the word “specifically” to its definition of torture, necessitating a showing of specific intent
5. OLC defined torture narrowly so as to allow for a broad range of methods/actions/intents
a. Construed it so that it had to be shown that the actual pain/harm had to be intended to be in violation of the statute
6. Three remaining issues regarding the torture memos (Ludan):
a. How one understands the phrase “severe physical or mental pain and suffering”
i. The way the definition was derived was clearly result oriented
b. Separation of powers argument
c. Necessity defense
i. Can’t raise the defense prospectively
