Human Rights Law Outline

I. HUMAN RIGHTS BASICS

 Is international law really law?
• International Law is NOT law =>
 Positivist Position: Recognized lawgiver posits a norm that is backed up
by the state’s monopoly of the use of coercive force
o "if there's a right, there's a remedy - public international
law doesn't have a remedy” -> therefore, not international
law
• International Law IS law =>
 Has weight
 Materially affects the calculus of State decisions
 “Almost all nations observe almost all principles of international
law and almost all of their obligations almost all of the time.”
Louis Henkin
 IL creates norms, the violation of which brings with it sufficient
practical consequences that it has the potential of changing
behavior
 Reject proposition that only laws enforced by force/threat of force is law
 Definition of law is more broad
o Law is a set of norms that at least materially affects the
actions of states
 States care about reputation - could affect decision
making
 If states don't abide by agreements, other states
wouldn't want to work with them
 Reciprocity, reputational, practical disadvantages to not following
(international) law
 Issue with IHR Law - reciprocity does not work
o Can’t say “If you torture my citizens I’ll torture yours…”
 Basics of International Law
• Sources of International Law (Art. 38, Statute of ICJ)
• Treaties, conventions, etc.
 Treaty Formation
o Express consent by someone in the state who can give
consent
o Duress has been OK, but now Art. 52 of Vienna
Convention says treaty void if due to threat or use of
force in violation of principles of UN Charter
 E.g. China argues that treaties were signed after
Opium Wars were never valid due to duress - at the
time, it probably was, but wouldn't be if made today
 Reservations, Understandings, and Declarations (RUDs)
(MAIN TAKEAWAY)

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 o Reservations:
 When a state signs a treaty partially, but can express
reservations about other Articles that don't apply
 Goal - better for states to be subject to part
of the treaties then none of it
o Understandings (e.g. "wimpy reservations")
 E.g. We read x, but "understand" it to mean y
 Country is "on the hook" for their
interpretation
o Declarations
 Declarations point inward - it states the effect of the
treaty internally (at least in US)
 E.g. Treaties US accede to aren't
automatically added to domestic law
 Also, the Senate ATTACHES
DECLARATIONS THAT THE TREATY
DOESN'T APPLY IN DOMESTIC
COURTS
 There are consequences for signing treaties/not ratifying
o Can't undermine the "object and purpose" of the treaty if
you sign it (Art. 18 VCLT)
o Treaty doesn't apply in full unless there is full accession
 Violations and Changes
o Bilateral - material breach allows termination (Art. 60
VCLT), probably irrelevant in multilateral context
o Art. 62 states that fundamental change of circumstances
can get you out
 Interpretation
o Varies with purpose of the treaty
o Parallel problems with U.S. con law
 e.g. text > context> purpose> traveau preparatoires
 Multi-languages, see Eastern Airlines v.
Floyd
 Generativity
o Treaties create treaty monitoring bodies, these bodies hear
cases and develop further norms
o Generating further law based on the original treaty law
 Important Principle: Pacta sunt servanda (a state must abide by
their agreement)
 Treaties can codify custom, but they're both on the same plane
 See Vienna Convention on the Law of Treaties

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• Customary international law
 Two requirements
 Generality/General Practice (overwhelming majority of states),
o Number of Countries (Supermajority)
 About 110 out of 193 have rejected death penalty -
NOT ENOUGH
 BUT THERE'S NOT A MAGIC NUMBER
 But more is better
 There's no number because there's no
"World Supreme Court"
o The "formal rule" is that each nation is equal
 But sometimes there's reference to "large states" or
"states that actually are relevant to the issue"
o What you say is more important than what you do!
(This is what counts as practice)
 "The Civilizing Effect of Hypocrisy"
 Hypocrisy can lead to enlightenment
o Time/Consistency (long amount of time (although doesn't
necessarily have to be – Law of the Sea))
o Persistent timely objection
 This is how consent/lack thereof is given
 Have to object continually
 Refusing to sign a treaty doesn't count -
HAVE TO STATE IT
 Opinion juris (countries have followed this practice out of a sense
of moral obligation; generally inferred from generality)
o States act because of a sense of legal obligation
 Circular argument
 Trying to find a binding rule by seeing if
state's act like there's a binding rule
 Many lawyers just assume opinio juris when
there is general practice
• General principles of law (Don’t matter as much)
• Judicial decisions and opinions of scholars
 E.g. Restatement, Browerly (UK version), Grotius, etc.
 Concrete example: torture is prohibited (and cruel and unhuman
treatment)
o Is waterboarding torture? - Treaties/CIL doesn't say
o Judicial decisions helped decide (European Court of
Human Rights, Israeli Supreme Court decisions)
 E.g. Looking at other decisions helped develop
argument that waterboarding was torture
 While supplementary, it is critical!

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 • Soft law (e.g. Paris Agreements/UDHR)
 Non-binding agreements that States make
 Looks legal, but not "binding" and doesn't purport to be
 What good is it?
o It's because it's not "binding" that its comparatively
effective compared to binding international law
 Still enforced through sanctions, reputation, etc.
 Soft Law Can Add Pressure to nations
• Jus Cogens/Peremptory Norms
 "Think of it as CIL on steroids"
 To identify a norm as jus cogens, requires two things:
o Near consensus of the world on a particular matter (not just
a supermajority)
o Has a basis not just in state consent, but "natural law"
 Side Note: Bentham: Only states put forth law,
natural law is nonsense

HISTORY OF HUMAN RIGHTS

- Why does history matter?
o More knowledge is better (e.g. those who don't study history are doomed to repeat
it)
o One view is that human rights are universal - history can help either confirm or
deny
 Same sort of conflict appears in UDHR - imposition of Western values or
truly multi-cultural?
 One tool in the toolbox - can help w/ treaty interpretation
o Alston argues that studying history and looking for continuity would give it more
weight/establish its legitimacy
- Classical view of human rights history (Henkin)
o Ancient Antecedents
 1648 Peace of Westphalia (yay EU4) - origin of public international law
 States subjects and objects of the "Laws of Nations"
o Subject if you make the law (active agent that constructs
norm)
o Object - what the norm operates on (operates on states, but
doesn't address matters w/n a state)
 Analogy - States are like "billiard balls"
 Equal Territorial Sovereignty
o "Sovereigns" have complete control over what happens in
their state, doesn't matter about what other states think
o Gets rid of "religion" as a reason for war
 Exceptions
o Humanitarian intervention
o Treatment of foreigners
• Modern international human rights movement springs from the Enlightenment

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  Anglo-American tradition
 Locke, English Bill of Rights, American constitution
 Emphasizes negative rights (prohibitions on govt action)
• Continental tradition
 French Revolution, Marx, etc.
 Emphasizes affirmative rights (state owes a duty to give these rights)
• Rights are progressively enshrined in domestic constitutions
 Initially only negative rights, but then slowly positive rights as well
(though generally not justiciable until recently)
 But Westphalian territorial sovereignty (state system) prevails in
international law when it comes to human rights
• Since 1648, living with the state system (i.e. state sovereignty)
 States are not accountable under international law for how they treat
individuals under their jurisdiction
 This was a progressive idea in the aftermath of the 30 Years War
 Significant exceptions
o Humanitarian interventions
o Prohibition of slavery
o International Labour Organization
 Henkin is not naïve and recognizes that some of these exceptions
are driven by self interest
 Despite these exceptions, international law is still about sovereignty until
WW2
 World War II, Holocaust, Japanese atrocities in East Asia
• Challenge the notion that Westphalian sovereignty is adequate to deal with
prevention of the kind of carnage it was created for
• Leads to a transformation of international law, as states make human rights part
of international law
 Crisis => Response => Transformation
• Universalization of human rights
 Domestic
 Basic set of human rights adopted by national constitutions and
become more or less universal
 International
 Declaration of Human Rights (soft law)
o Later on, two binding covenants
 Regional human rights treaties and documents
• Story of enforcement? This chapter (robust enforcement of these norms) remains
to be written
- Views on Human Rights History
o Revisionist View (Moyn)
 Stark choice in the aftermath of WW2 between sovereignty and human
rights
 Human rights loses out, seen as impractical and almost not worth
the near impossible effort

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 o Impossibility of coming to human rights consensus with
half the world dominated by communism
o Moyn argues that American/Western scholars were
parochial (limited scope/perspective) and focused on their
own Western/negative-rights based understanding of
human rights
 IL scholars abandon human rights for 20-30 years
o Henkin’s first course in human rights wasn’t until 1971
 Big bang theory of human rights
 Sudden explosion of the field in 1977
 International human rights NGOs explode in 1977
 Election of President Carter, a supporter of human rights, leads to
signing of human rights documents
 What is it about 1977?
o Founding of Human Rights Watch (starts as Helsinki Watch)
o Jimmy Carter was president?
 One of first presidents to start signing/ratifying human
rights treaties (ICCPR, CAT, etc.)
 Wanted to get the US involved in international human
rights treaties
o Why the hiatus between Truman and Carter?
 The US was infringing the rights in the treaties (civil
rights movement, Cold War)
 Anti-discrimination was one of the foremost of rights at
the beginning
 When there's a system of apartheid (in US),
there's a disconnect/dissonance
 Henkin: US is a "flying buttress" - Supports IHR but
from the outside
o COLUMBIA LAW SCHOOL - a pioneer in international
human rights law
 And in general law schools are starting to take up
international human rights as a discipline
 Greenburg - Columbia Law Professor (and head of
NAACP) started program of sending students abroad
o Motivating Factors
 Developed in response to failure of socialism/other
previous "utopias"
 In 1977, the Civil Rights Movement was essentially
over
 What was the next best thing? - international
human rights
 Henkin/others were waiting for the end of
decolonialization

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  "They were nervous about being anticolonialist"
- Moyn
• Alston’s Response to Moyn
 Says both extremes (IHR has ALWAYS existed (Martinez) vs. it HASN'T
EXISTED - Moyn) are incorrect
 Most critique towards Moyn
o He leaves out events that don't fit his narrative
 Moyn is taking an "American-centric" view
 Labor movement, civil rights movements, European
Convention on Human Rights
 Regional declarations of human rights
 UN Mechanisms created after WWII to promote
human rights
o Much too narrow!
 Doesn't consider world developments
 Even as he analyzes American developments
 Eleanor Roosevelt - chair of Human Rights
Committee!
o Alston says it’s a post WWII phenomenon (1950s)
 Universalization of human rights - constitutions that
already existed and new constitutions started
including these rights
 Internationalization - creation of binding human
rights treaties
 Critique of the sources used by Moyn
 Focuses exclusively on just a handful of American law professors
 Many actors are neglected or ignored
o Great majority of non-American international lawyers
o Domestic lawyers working to ensure incorporation of
Universal Declaration into domestic constitutions
o Lawyers, activists and others working to develop the
substantive content of the human rights pantheon
o Antiracism movements in the US and elsewhere
o Minority rights regimes before and after WW2
o International labor movement with its emphasis on social
justice and extensive array of treaties in 1919
o Woman’s suffrage and rights movement
o Children’s rights movement with its landmark 1924 League
of Nations declaration on rights of child
• Critique of Moyn’s account of why human rights faltered after WW2
 Opposition to communists
 Moyn portrays positive rights as exclusively the realm of
communist bloc of states, which turned off negative rights-focused
Westerners

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  But Americans, inspired by Roosevelt/New Deal, began pushing
many of these positive rights in the 1930s
 Opposition to self-determination
 Little evidence of this; Henkin was not a proponent of colonialism
 Wilsonian tradition of self-determination since the 1910s
 Why the 30 year delay in teaching human rights?
 Because there was nothing to actually teach until the 1970s
 Little text, treaties, cases, etc. to publish in textbooks or read in
courses until then
• Critique of Moyn’s definition of human rights
 Moyn’s definition
 A powerful, unified international movement that is able to
contradict sovereign nation-states from above and outside
 This is too restrictive
 If this is your definition of human rights, then you won’t find it
until the late 1970s
 But human rights are much varied and diverse

HUMAN RIGHTS IN THEORY

- Why Study Rights?
o To find out what they are/should be (Duncan Kennedy)
 Gives us a baseline on which to critique the law
 Hypo - why LGBTQ+ law?
o Extends logic of other protected classes (there are
immutable traits that are used to disadvantage them and
they need to be protected)
 C.f. US Con Law
o To use as a basis of reform
 Comparing natural law w/ current reality
 What is the baseline?
o To strengthen commitment to human rights
 Lincoln's second inaugural speech - "not enough to fight for the
union/abolishing slavery"
 Essentially - God is against slavery
- Reasons why NOT to Study Rights
o Divisive
 There are "many paths to Rome"
 But when you look at different faith backgrounds, traditions, etc.,
there won't be consensus
o Ideological pathways, etc. - all sorts of way to be divisive
o Not much guidance anyway
 Rights—What is a right?
• Henkin => Defined, particular claims listed in international covenants and treaties
 Benefits deemed necessary for human well-being and fulfillment
 Not only negative immunity claims, but positive resource claims

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 • Flaherty => Presumptive trumps against state (or societal) action or a presumptive
claim upon state action
 Basic definition => special claims
 What is a Right?
• Presumptive trumps against otherwise lawful governmental activity (negative) OR
claims that must presumptively be filled by government or society (affirmative)
 Kennedy: Once you put rights on the table, they have the status of
"factoid" and you don't have to defend their existence - just have to deal
with repercussions of said right
• Negative v. Positive Distinction
 Negative rights - State shall not… (1st generation rights)
 Positive rights - Claim upon the State (right to healthcare, education, etc.)
 E.g. Social/Economic rights
 Who holds the right? Individual or state? Almost always INDIVIDUAL
 They apply to every individual => universal
 To call them “human” is to say that all humans have them
regardless—it is their humanity that makes them possible and they
are INALIENABLE
 There are some communitarian traditions
 Also, philosopher Rawls – doesn’t apply domestic theory
internationally, but his disciples who do say that rich countries
should be more accountable
o Are rights absolute?
 Some..
 E.g. torture, genocide, slavery
 Absolute/non-derogable rights
o BUT - Most human rights are not absolute
 Free speech - US Constitution/strict scrutiny
 Certain rights give rights, but claw backs - it then takes it away
 Art. 19(3) ICCPR
 Philosophical underpinnings of human rights
 LEGITIMACY: for enforcement
o Strengthen or weaken the commitment to them
 REFORM: If your only basis is the law, then you cannot persuade
others, necessarily—need an outside basis to strengthen it
 INTERPRETATION: How much slack do you cut a govt for not
complying with a treaty?
 Why not look at philosophy? Divisive, problematic—too many
traditions to get guidance
o Scientific natural law (Locke, Rousseau)
o Divine natural law (Aquinas, Judaism, Islam)
o Utilitarianism (Bentham)
o Non-western? (Confucius, Mencius, Gandhi, Latin
America, Islam, Africa)

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 o Problem is whether all these rights systems can be
consistent? Do we really believe that they can come to
agreement through revelation & reasons, or just pure
reason?
 Universalist vs. relativist
o Relativism itself, however, relies on universal claim –
respect for all other values and cultures equally
 How do we remedy violations of rights?
 Boycott – not exactly a typical legal remedy
 Sanctions
o WHO? UN? US?
 Sue government
o Tort suit – govt immunity an obvious problem but there are
ways you can sue court officials
 Criminal action
 Reparations – making people whole through damage awards
 Humanitarian intervention
o Should it be possible for countries to go in for regime
change?
o It’s the COERCIVE force behind general economic force
 Exposure and publicity – naming and shaming as done by HRW,
for example
 Critiques of International Human Rights
 Socially constructed, historical artifacts
 Critiques
o Duncan Kennedy - Mediation between facts and values
o Sunstein: (good overview of critiques of rights)
 Individualistic - does not sufficiently recognize collective entities
(families, society, states, etc.)
 But…are there not ways that individualistic rights protect
collective entities?
 For a number of rights, the protection of individuals
rights protects group rights
 No duties
 The mention of individual rights with no discussion of duties
create issues
 BUT…African Human Rights Charter - one of the only
charters to address "duties"
 Too general, too absolute (similar to Jamal Greene's argument - once
you say "right" it stops the conversation)
 What do you do when there are two competing rights?
 E.g. Religion vs. Equality
 One way - lessen "absoluteness" of rights - to
balance rights vs. each other and policy
considerations

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 o Klare: obsession with public power
o David Kennedy - "rights" talk sucks oxygen out of the room; excessively
rationalistic; too narrow
 Does pursuing rights through the courts take out the "oxygen" in the
room, which discredits other methods of solving issues?
 What are some other means?
 Political Mobilization - (e.g. Abortion in the U.K)
 If you want genuine social change, the more effective
way of doing it is through politics
Universalism vs. Cultural Relativism
- Universalism
o Rights are grounded in some foundation or transcendent source (e.g. God, natural
law, etc.)
o Consequences
 Authority, hierarchy, imperialism
 Lack of fit with local conditions
Cultural Relativism
- Who are we (Westerners) to say that another culture is wrong?
o Merits
 Cultural contingency of values
 No culture can be inherently better
Critiques of Cultural Relativism
 Status quo
• Nearly every country has accepted these “Western” values
• They have signed treaties and covenants, and incorporated these values into their
domestic constitutions and laws
 Cultural permeability
• Cannot speak of cultures as monolithic, coherent entities that never change
• Ongoing discussion and exchange between cultures
 Problem of conflating “is” with “ought”
• Just because there are all these different cultures, doesn’t mean we ought to treat
them as equally good or valid
 Source of the argument
• Cultural relativist critiques are most commonly made by oppressive elites
• The other source of criticism is unaccountable academics, arguably acting as
contrarians to advance their careers, who do not have any actual first-hand
dealings with these regimes

Ultimately, as lawyers we can retreat to the positivist position

- E.g. Have these countries signed treaties?

Drafting of Universal Declaration and the UNESCO Survey

- Basic Rights and Values recognized in most cultural/religious traditions
o Right to Live
• Right to Protection of Health
• Right to Work
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 • Right to Social Assistance in Cases of Need
• Right to Property
• Right to Rebel Against an Unjust Regime
• Right to Freedom of Speech, Assembly, Worship, etc.
 Ideological foundations of these rights were violently opposed however
• “We agree about the rights but on the condition that no one asks us why.”
• Goal of the UN not to achieve agreement on common speculative ideas, but on
common practical ideas

- Sources
o Fundamental tenet of human rights law is some commitment to universalism
 Irony that just as Universal Declaration of Human Rights is being written,
sources are emerging challenging the universalist argument
• Globalism
 When Locke was talking about “universal” rights, all he knew of the
world was Judeo-Christian cultures
 As the world gets smaller, learned/educated people start interacting with
and learning about radically different cultures
• Post-modernism
 Gives up on the project of trying to make universal claims
- Tenets
• Fundamental values (even and especially those with universalist claims) are
actually culturally contingent and not universal at all
 Philosophers of the late 18th century are writing down rights that they
think are universal, but they’re actually coming out of similar cultural and
historical contingencies
 Same with Henkin and 20th century scholars coming out of the New Deal
experience
• There is no universal baseline, as no cultural tradition is superior to the other
(anthropological view)
o Criticism of the charter
 Peoples living in non-Western nations or under colonial rule (especially
those in sub-Saharan Africa) were under-represented in the UN in 1948
• Most of the Declaration’s rights first appeared in Western documents
(constitutions, etc.)
 Elaboration of these universal concepts as “rights” is itself inherently
European

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II. CONTENT OF HUMAN RIGHTS LAW

Structure of Human Rights Law

 UN Charter
o Virtually every country has signed/ratified
o Contains a supremacy clause => the supreme international treaty and first source
of human rights law
o Human Rights
 Preamble
 WE THE PEOPLES OF THE UNITED NATIONS
DETERMINED….(similar to US Constitution)
o to save succeeding generations from the scourge of war,
which twice in our lifetime has brought untold sorrow to
mankind, and
o to reaffirm faith in fundamental human rights, in the dignity
and worth of the human person, in the equal rights of men
and women and of nations large and small, and
o to establish conditions under which justice and respect for
the obligations arising from treaties and other sources of
international law can be maintained, and
o to promote social progress and better standards of life in
larger freedom,
 Dominant theme is peace and security
 Mentions human rights, both as an end in themselves and a means
to the ultimate end of peace and security
 Article 1 (Purposes of the UN)
 “To maintain international peace and security, and to that end:
to take effective collective measures for the prevention and
removal of threats to the peace, and for the suppression of acts of
aggression or other breaches of the peace, and to bring about by
peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international
disputes or situations which might lead to a breach of the peace;
 To develop friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples, and
to take other appropriate measures to strengthen universal peace;
 To achieve international co-operation in solving international
problems of an economic, social, cultural, or humanitarian
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 character, and in promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as
to race, sex, language, or religion; and
 To be a centre for harmonizing the actions of nations in the
attainment of these common ends.
 Restates preambles commitment to human rights, both as an end
and a means”
 Summary
o Maintain peace and security
 Take collective measures for the prevention and
removal of threats to the peace…
 Develop friendly relations among nations…
 To achieve international cooperation in solving
international problems of an economic, social,
cultural, or humanitarian character…
 To be a center for harmonizing
 Article 55
 With a view to the creation of conditions of stability and well-
being which are necessary for peaceful and friendly relations
among nations based on respect for the principle of equal rights
and self-determination of peoples, the United Nations shall
promote:
o a. higher standards of living, full employment, and
conditions of economic and social progress and
development;
o b. solutions of international economic, social, health, and
related problems; and international cultural and educational
cooperation; and
o c. universal respect for, and observance of, human rights
and fundamental freedoms for all without distinction as
to race, sex, language, or religion.
 Summary
o UN shall promote universal respect for and observance
of fundamental human rights
o Contains a non-discrimination/equal protection
principle (though this is only attached to the observance
of “fundamental” human rights)
o “Fundamental human rights” is not defined however; no
specific rights are listed
 Article 56
 All members pledge themselves to take joint and separate action to
fulfill Article 55
 Seen as the beginning of the carve-out of Westphalian sovereignty
 Ultimately useful as a positivistic institution, but gives little
guidance in human rights cases

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 Universal Declaration of Human Rights
o Taken up by Economic and Social Council (EcoSoc)
o Task - enumerating what these human rights are that nations are supposed to
protect
 Status?
 Soft law - UN General Assembly Document (primary utility)
o Consciously meant to not be legally binding
 This is an aspirational document…BUT
o This document has had as much impact as "binding" law
 Does more than any other document
 Example: Malaysian Human Rights Council
establishes baseline w/ UDHR
 UDHR is evidence of customary international law
 Evidence of state practice
o Voted by General Assembly
 Opinio juris
 Content
 First half is negative rights (Art. 1 - 18)
 Second half is positive rights
o Aspirational, non-binding document
 Aim was to give guidance for what fundamental rights are
 Declaration of what to strive for, rather than legally binding (passed by
General Assembly which has no power to bind individual nations)
o Both negative/1st generation (1-21) and affirmative/2nd generation (22-30) rights
 Art. 5 – no one shall be subjected to torture or to cruel, inhuman or
degrading treatment
 Art. 12 – right to privacy
 Art. 23 and 24 – right to work and leisure
 Do rights like these undermine the document as a whole by being
things that are not really “fundamental”?
 Art. 29 – duties to the community
o Most powerful soft law human rights instrument
 Strong pedigree
 Short, concise, clear language
 Despite this, very broad and no binding instruments

 ICCPR and ICESCR

o Neither of these documents get into the specifics required to be useful
 Both are global in nature
 Anyone can sign them
 Combined they cover the gamut of human rights
 Specialized conventions
o Roughly a dozen
 Examples: Convention Against Torture, on the Elmination of All Forms of
Discrimination against Women, on the Rights of the Child

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 o Much more detailed than the provisions in the ICCPR and ICESCR
o All of these set up enforcement mechanisms
 Regional instruments
o Geographically narrower, though stronger in a legal sense
o Examples:
 European Convention on Human Rights
 Old-fashioned; only negative rights
 African Charter on Rights and Duties
 Primarily negative rights, but one provision serving as an omnibus
affirmative rights article
 American Convention on Human Rights
 No Asian Convention…
 Customary international/jus cogens
o So fundamental that even multilateral treaties violating it would be void
o Not just based on evolving custom, but on an older conception of natural law that
trumps positive law
 Genocide, slavery, torture, cruel/degrading treatment of prisoners,
extrajudicial killing, systematic human rights abuses

ICCPR (International Covenant on Civil and Political Rights)

- Purpose: Turning rights from UDHR into a binding treaty
o Human Rights Council decided to split UDHR into 2 separate treaties
 Fear that if you had negative rights (more Western) with affirmative rights
(more Communist regimes), nobody would sign
 Around same amount of signatories on both treaties
o BUT - Cold war elements remain today
 US signed/ratified ICCPR, but not ICESCR
 China signed/ratified ICESCR, but not ICCPR
- Content
o Negative rights example: No one shall be subjected to torture or to cruel,
inhuman, or degrading treatment or punishment. In particular, no one shall be
subjected without his free consent to medical or scientific experimentation.
 Very general, but somewhat more detailed than other examples in
domestic constitutions
o Affirmative obligations
 Art. (2)2: Where not already provided for by the existing legislative or
other measures, each State Party to the present Covenant undertakes to
take the necessary steps, in accordance with its constitutional processes
and with the provisions of the present Covenant, to adopt such laws or
other measures as may be necessary to give effect to the rights recognized
in the present Covenant.
 How can countries fulfil this requirement?
 Make torture illegal
 Train soldiers/police not to torture

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  Close facilities that invite torture! (e.g. Guantanamo Bay)
 US doesn't really have the concept of "affirmative" rights
- Clawbacks/Limitations
o Provisions give right, but then take away rights
o Art. 19 ICCPR
 Everyone shall have the right to hold opinions w/o interference, freedom
of expression
 BUT - rights carry with it special duties and responsibilities - may be
subject to certain restrictions, but these shall only be such as are provided
by law and are necessary:
 For respect of the rights or reputations of others
 For the protection of national security or of public or of public
health or morals
o This swallows up the whole right
o BUT…can't discriminate…could be a protection
o Should read exceptions narrowly however given purpose of
the treaty
 Ex: Hong Kong flag desecration ordinance case -
turned on public order idea
o Any legal text is malleable - depends on how broadly or narrowly you read it
 Treaty context is big on intent/purpose
- Institutions
o Human Rights Committee
 Institutions set up by ICCPR - somewhat of an enforcement mechanism
- Derogation: Art. 4
o Some rights are derogable in times of "emergency threatening life of the state" TO
THE EXTENT NECESSARY
 The provision specifies which rights you CAN'T DEROGATE FROM
 Some rights more important than others
o Right to life, torture, slavery, debtor's prison
 Non derogable rights tend to deal with access to criminal justice
procedures
o Also free speech
 This gives States incentives to file Declarations of Emergency
 Some States are in Emergency for YEARS
 Nothing clarifies what is sufficient to count as an emergency to the
state
o Emergencies are read broadly/deferential toward the State
 Jurisprudence on this topic comes from Europe
(particularly Northern Ireland)
- Evolution
o Case Study: LGBTQ rights
 Not a top down approach, but a grassroots/domestic approach
 Through these efforts, individual states start to decriminalize
LGBTQ acts

17
  Then regional courts/transnational courts & treaty bodies/UN Special
Rapporteurs begin to rule of cases/write reports (e.g. ECHR)
 Then UN Docs/Gen Assembly start to discuss LGBTQ issues
 Includes LGBTQ rights during discussions on Death Penalty (like
condemning the capital punishment of LGBTQ individuals for
being LGBTQ)
 For this process States take ownership (like Nordic countries)
o Normative Case
o Positivist Process
 National movement
 UN expert bodies and experts
 More general UN resolutions keyed to other rights
- Significant Articles
o Article I
 Right of self-determination
 Not strictly a negative right; more of a collective right, different from
Anglo-American traditions
o Article 2
 Prohibitions on government abuses (basic negative rights)
 But also sets forth affirmative obligations to ensure that these negative
rights are actually enforced
 States have to take affirmative steps to prevent citizen’s rights being
violated, by implementing legislation
 Create effective tort/civil rights remedies
 Government oversight
 Re-education of police, prison guards, etc.
 Contrary to US practice
 In international human rights law, affirmative duties (for the state)
come with negative rights (for its citizens)
o Article 4
 State of emergency provision (aka “derogation”)
 “In time of public emergency, which threatens the life of the nation
[substantive threshold], which has been officially proclaimed [procedural
threshold]…”
 To the “minimum extent necessary”
 States may derogate their obligations to only the extent necessary
 Exceptions: some rights a state cannot stop observing, even during a state
of emergency
 “Non-derogable rights”
o Essentially the jus cogens rights (ICCPR lists specific
rights articles)
 Right to life, torture, slavery, ex post facto, freedom
of religion, right of individual under law
 Seen as the core of the core
 Different from US constitution

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  No explicit emergency provision (except for suspension of habeas)
 But see cases like Korematsu
o Not being discriminated against based on race/ethnicity is a
fundamental right
o BUT through strict scrutiny, the court does an ends-means
analysis
 Strict scrutiny = compelling state interest, adopting
narrowly tailored means
 Rational relationship = legitimate purpose, adopting
rationally related means
 Margin of Appreciation Doctrine
 Judges give authorities significant deference when it comes to their
conclusion that there is an emergency threatening the life of the
nation, as they are not on the ground nor have the expertise to
decide the issue
o Article 19
 Right to hold opinions and freedom of expression
 But this binding right comes with certain duties, that allows the state to
restrict it if necessary (“claw-back provision”)
 Respect for the rights and reputations of others
 Protection of national security, public order, public health, morals

 Global trends in civil and political rights

o Human rights (like domestic fundamental rights) are not static, and do not always
move in one direction
o Some are progressive and ripe for expansion (LGBT rights), but other rights may
be shrinking (e.g. torture)
 Torture is never allowed
 UDHR condemns it
 Explicitly included as a non-derogable right
 Convention Against Torture
 Illegal under jus cogens
 Banned under Geneva Convention
 Opponents argue that 9/11 has changed this norm
 Advances in technology and sophistication (chemical, nuclear
devices, etc.) make terrorism more dangerous than it was when
these anti-torture documents were written
- Case Study: Northern Ireland (Report)
 Example of Permanent Emergency State
o Most nations have some legislation that allows "emergency states" - or "Junior
Varsity Criminal Justice protections"
 Easier to arrest, incommunicado detention, confessions made from
coercion, no jury trials
 Essentially - fewer due process rights
o Didn't focus on ICCPR first, BUT the ECHR

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  Regional systems tend to be more effective! HRC isn't as effective as
ECHR
 In case, said 4 days 6 hours was too long
 UK derogated after losing case - using "Emergency State"
excuse
 Same lawyer brought challenge to the "deference"
claim - ECHR said they give "margin of appreciation"
to the nations making the claim
 
o Expanding menu of human rights, evolution/devolution of human rights
Discussion
 The casebook draws on LGBTQ rights as a case study on "expansion"
of human rights (if we find rights "wanting")
 Hitch "newer right" onto older rights
 E.g. Death Penalty for LGBTQ+ acts
o Devolution
 Should we rethink the use of "torture" post 9/11?
 Should we torture one individual to save the lives of 1000's?
 Lots of things to consider
 You give countries an inch, they go a mile - over compensation
 Gross' solution - always prohibited, but if it truly is a
"ticking time bomb" situation, then there can be mitigation
 There has NOT been devolution in regards to torture - no exceptions!
 Also jus cogens norm

ICESCR (International Convenant on Economic Social and Cultural Rights)

- Preface
o "The law, in its majestic authority, forbids rich and poor alike to sleep under
bridges, to beg in the streets, and to steal their bread." - Anatole France
 Negative rights aren't helpful if you're starving!
 Arguable that these affirmative rights are more important than
negative rights since you can't do much if you're basic needs aren't
met!
- Overview of Affirmative Rights/ICESCR
o Legally binding (it’s a multilateral treaty)
 But what does it meant to be bound by this?
 Also, cannot take this as evidence of generality
 History
o Called "Second Generation" rights
 First Generation was Negative rights
 Second Gen was Affirmative
o Comparative Underenforcement
 Although UN says negative/affirmative rights are "equal," Second Gen are
much more underenforced
 Benign Reason: Easier to monitor negative rights

20
  Harder Reason: What is "enough?" How much progress is
"enough" progress?
 Darker Reason: Global South argues that Western affluent nations
don't need affirmative rights, and are content to really only focus
on negative rights
o Afraid of Affirmative Obligations on the State's Coffers to
provide for affirmative rights
 Generally affirmative rights are not justiciable, because it's hard for courts
to determine baselines / enough progress
 Criticisms
o Affirmative Rights are criticized by both extremes
 One side: not rights at all, but policy imperatives
 Other side: obligations are too much! Unrealistic for states
 International law tries for a "not too hot, not too cold" position
 Art. 2(1) ICESCR
 Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and cooperation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all
appropriate means, including particularly the adoption of the
legislative measures.
o Lot of leeway for a state
o Treaty body teases out idea of retrogression
o Sometimes this treaty body does lay out "core minimums"
that must be reached by certain date
 E.g. All states must provide free primary education
 Obligations
o Art. 2 says there is a need to legislate
 Each state undertakes to take steps to the maximum of its available
resources with a view to achieving progressively the ultimate full
realization of rights
 A lot of slack in this articulation of duties
 Stresses “particularly the adoption of legislative measures”
o Art 6.
 Right to work, including the right to the opportunity to gain a living by
work which one freely chooses or accepts
 Steps to be taken: technical and vocational guidance and training
programs, policies and techniques to achieve steady
economic/social/cultural development, and full and productive
employment under conditions safeguarding fundamental political and
economic freedoms to the individual
o Art 7.
 Right to enjoy just and favorable conditions of work
 Fair wages

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  Decent living for workers and their families
 Safe and healthy working conditions
 Rest, leisure and reasonable limitation of working hours and
holidays with pay plus public holidays
o Art 9. Right to social security and social insurance
o Art 11.
 Right to adequate standard of living
 Adequate food, clothing and housing
 Continuous improvement of living conditions
 Right to freedom from hunger
 Take steps to ensure such as improving methods of food
production
o Art 12. Right to highest attainable physical and mental health
o Art 13. Right of everyone to education
 Compulsory and free primary education
 Secondary education made generally available and accessible to all by
every appropriate means
 Higher education made equally accessible to all, on the basis of capacity,
by every appropriate means
o Art 15. Right of everyone to take part in cultural life
 Unlike economic or social rights, cultural rights have attracted relatively
little attention in ICESCR
 Tend to be dealt with in relation to ICCPR, under non-discrimination
clause (Art 2), minorities provision (Art 27) or specific rights such as
freedom of expression

Economic and Social Rights

 Arguably do not work without affirmative rights
• Do negative rights mean anything if you’re starving, chronically ill, have no
education, have nowhere to live, etc.?
• Henkin = “What good is free speech if you’re starving?”
 History of affirmative rights (second generation rights)
• Mainly a 19th century continental European development, separate from the
Anglo-American tradition
• During the post-war human rights development, stereotype is that West pushed
negative rights while Soviet Union pushed affirmative rights
 But affirmative rights were pushed by New Dealers and leading American
academics as well
 Not just an East v. West fight, until at least the 60s when New Dealers
began to lose their influence

New Generation of Rights

 Greater prominence of collective rights (the first two covenants are 99% individual
 rights against the state, with the one exception of right to self-determination)
• Third generation rights suggest that collectivities have rights

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 • Problem of defining a collectivity = peoples or states?
 Idea that development is necessary to realize the other two generations of rights
• Right to development = A right to an equitable share in the economic and social
well-being of the world
• 4/5 of the world’s population no longer accept that the remaining fifth should
continue to build its wealth on their poverty
 Content of the Right to Development
• Right of each people to freely choose its economic and social system and to
determine its own model of development without outside interference or
constraint of any kind
• State seeking development is entitled to demand that the international community
and international agents do not take away from it what belongs to it or deprive of
it its “due” in international trade
• State is entitled to a fair share of what belongs to all
 Themes
• Individual vs. Collective
• Developing state vs. Developed state
 Developing state under certain obligations = full and equitable
development for its people
 Developed states under obligations = refrain from economic imperialism
• Individual has a right against their own state
 Right to equitable development
• People have a collective right against developed state
 Philosophical foundations
• Post-colonialism
• Cultural collectivism
• Duties – domestic and transnational

UN Declaration on the Right to Development

 Article 2
o Human person is the central subject of development
o Right of self-determination (often manifested in part by statehood)
o All human begins have a responsibility for development, individually and
collectively, and taking into account for human rights and fundamental freedoms
(as well as duties to the community), should promote and protect appropriate
economic, social and political orders for development
 Article 3
o States have the primary responsibility for the creation of conditions
o States have duty of cooperating with each other to foster development
 Article 4
o States have the duty to take steps, individually and collectively, to formulate
international development policies
 Article 8
o States should undertake all necessary measures to ensure the equality for
opportunity of all in access to basic resources, education, health, food, housing,
employment and fair distribution of income

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 o Effective measures should be undertaken to ensure that women have an active
role in the development process
 What is right to development?
o Resources
o Environment
o Transparency and participation
 Problems with right to development
o Conservative critiques: these are not rights; to treat them as rights thins out the
rights already there and undermines them – much better to concentrate resources
on the real, fundamental problems
o Response: these rights speak to the reality of peoples of the world in far more
relevant/stronger way than 1st and 2d gen rights; can & have led to achievements
o Hasn’t progressed too far due to realpolitik: if transnational duties exist then
asking rich and powerful nations to give up even more of their sovereignty – not
likely

Millennium Development Goals

 Policy benchmarks that came out of 2000 World Development Conference
 Consciously not using law (ICESCR or development rights), but as a policy matter
marshal the world’s countries to reach certain development goals
o Goal-based rather than rights-based
 Benchmarks
o Eradicate extreme poverty and hunger
 Cut in half the number of people living on $1 a day
 Achieve decent employment for men, women and young people
 Cut in half the people who suffer from hunger (underweight children,
etc.)
o Achieve universal primary education for girls and boys
o Promote gender equality and empower women
o Reduce child mortality rates
 Are these goals being met?
o Not really, though there has been some success
 Greatest successes
 China (utterly unprecedented rates of lifting people out of poverty)
 Brazil (example of having civil and political rights while
facilitating development)
• MDG-based approaches are much more dominant than legal-based approaches to
addressing poverty, development, etc.
 Human Rights critiques of MDG
o MDGs can provide a fig leaf for authoritarian regimes
 Offers legitimacy to authoritarian regimes who are meeting goals
 Masks underlying inequalities and structural discrimination and
oppression, and de-oxygenates local emancipatory struggles
o MDGs emerged from a faulty process and are poorly specified

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  Hatched behind closed doors and shaped by special interests and the
proclivities of particular development agencies as much as by any
coherent conceptual design
o The definition of “feasible” progress is arbitrary and unambitious
 Moving the bar (which year to start from to compare drop in poverty) can
dramatically increase the number of poor people its deemed morally
acceptable to have in poverty
 As opposed to bright line HR rules
o MDGs are equity blind and may have exacerbated global and countrylevel
inequalities
 Because MDGs provide global assessment of development based upon
average outcomes, they can ignore marginalized populations (women,
children, indigenous peoples, minorities, persons with disabilities, etc.)
 Discrimination issues are not well reflected in the structure of the MDGs,
despite 70% of people living in poverty being women
o Certain MDGs might undermine IHR standards
 E.g. MDG2 calling for universal primary education omits the requirement
that it be free of charge
 Ignores right to housing when dealing with alleviating slum populations
o MDGs have been co-opted by growth and aid lobbies
 Dominated by implicit formula: faster economic growth + more foreign
aid + better governance = MDGs
 Fact that inequality has increased in the majority of countries is deemed
irrelevant or merely a passing phase

The right is "underdeveloped" (nice pun)

○ The declarations are vague, "word salad,"
- The current system looks at the "right to develop" as equal between Sweden and Haiti
○ BUT - does Sweden owe anything to Haiti?
Rawls - nah

25
III. GLOBAL IMPLEMENTATION: UNITED NATIONS
- Human rights works best when it is implemented and enforced by domestic legal
mechanisms
o This is the basic assumption of international human rights
o Statute of ICC, for example, assumes that domestic courts will put people on trial
for war crimes, and ICC will only get involved if the domestic courts fail to do so
- Order of Effectiveness
o UN is probably the least effective for implementing human rights
 Less effective because super politicized
 United Nations is essentially ineffective
 Int. Courts are "courts of last resort" - are in place for when
domestic systems fail
o Ordinarily, have to exhaust domestic remedies
o Regional implementation mechanisms are in between remedy that is better than
UN but weaker than domestic courts
o Role of NGOs and other groups as well (naming and shaming)
 Example of the “uselessness” of the United Nations
 Cao Shunli
o Human Rights Advocate in China (pre Xi Xinping)
 Had tickets to board a plane to Geneva, was going to
attend HRC meeting
 Stopped before boarding plane, detained, and was
"mistreated" in detention and died
 WHERE TF WAS THE UNITED NATIONS
 Increasing issue: countries trying to tamp down NGO
contributions to UN Human Rights system
o Also - "faux NGO's" who write glowing reviews of
authoritarian regimes

The United Nations

- Where does it come from?

26
- History
o Two visions of UN
 "World Police" -> UN Security Council
 Major world powers would continue to have common interests
after WWII
o They would serve as "police guarantors" to make sure
small conflicts don't become big conflicts
 Originally wanted a UN Army, but this doesn’t take off
o Way to get big nations in was to give them a UN
o Permanent members were the victors of WWII (US,
France, UK, China, Russia)
 "Woodrow" Wilsonian Vision -> General Assembly
 Pushed for international body - behind League of Nations
o Wanted a World Parliament, even if all they did was
discuss the World's issue
o Name came from what the allies called themselves during WWII
o A balance between realists and liberal idealists
 Realists stress the role of power in politics
 Liberals believed that law and ideas do matter
 One thing everyone agreed on was that some sort of international
organization was necessary
 Everyone believed failure of League of Nations had at least
something to do with onset of WW2
o Collective security (realist)
 Five great powers would act as world policemen, to ensure that small
conflicts did not escalate into large ones
 Vision manifested itself in the Security Council
 Only organization that has the power to authorize coercive
economic and military force
o Equal sovereignty (liberalism)
 A way to prevent further conflict is to allow all of the nations to sit at the
same table and exercise equal sovereignty for the furtherance of global
security
 Vision manifested itself in the General Assembly
- United Nations Charter (provisions of note for HR)
o Art 1.1 = real reason of the UN is to prevent “threats to peace”
 In Nuremberg the primary charges were of wars of aggression, not the
Holocaust
o Art. 1.3 introduces HR – non-discrimination as to the exercise of fundamental
rights
o Art. 2.7 reserves state sovereignty; UN cannot intervene in powers that are
essentially domestic juris
o Art. 55. With view to create friendly nation relations based on principle of self-
determination, UN promotes:

27
  Higher standards of living, full employment & conditions of eco/soc
progress
 Solutions of international economic, social and health problems and
international cultural educational cooperation; and
 Universal respect for human rights of all without distinction of race,
language or religion
o Art. 56. All members pledge themselves to take joint/separate action in
cooperation to achieve art 55
o States are "willingly" giving up some of their sovereignty in order to allow an
outside body to scrutinize how the states treat their own citizens
- UN Human Rights System
• Principles HR organs
 Trustee Council is now USELESS (for de-colonization)
 ECOSOC is not that important now because Human Rights Council was
created partly because they wanted to bypass ECOSOC & report directly
to General Assembly
 Has authority to give consulting status with UN to NGOs
 ICJ is relevant; adopted important judgments on interpreting international
HR regime
 Secretariat: led by Secretary-General, appointed by General Assembly on
SC recommendation
 Secretary General is chief administrative officer of UN
 High Commissioner for Human Rights (HCHR) is the UN official
with principal responsibility for human rights
 HCHR is appointed by Secretary General with approval of General
Assembly
 General Assembly
 Made up of all UN member states
 Resolutions are not binding but they reflect global feelings
 Duties: initiates studies, makes recommendations
 Human Rights Council (replaced Human Rights Commission)
 Commission on the Status of Women
 Permanent Forum of Indigenous Peoples
 Sub-Commission on the Promotion & Protection of Human Rights
• Big part of UN human rights work is not responding to gross violations (what it is
usually judged on)
 But instead longer term, structural dimensions of HR issues; standard
setting

Human Rights Council

- Evolved from a preparatory commission (CHR) created in 1945; became HRC in
- 2005
o For first 20 years of its existence, devoted itself largely to standard-setting and
drafting of UDHR and the two covenants
- Three distinct phases of responses to violations
- Phase 1: Standard Setting - '46 - '66

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 o HR Commission: 55 members sitting as representatives
 Large body: those who sit on the council act as representatives of their
States
 Different than treaty bodies/rapporteurs
 No power to take any action in regard to any complaints concerning
human rights
 UN officials warned that this approach would lower the prestige of both
the HRC and the UN
• Phase 2: (1967-1978)
 Commission changed as a result of de-colonization and new members
demanded responses to the problems associated with racism and
colonialism
 New procedures adopted (1235 and 1503) and strong measures were taken
against apartheid in particular (South Africa)
 But failed to act in response to horrendous violations elsewhere in the
world (Pol Pot, Argentina, Amin’s Uganda, etc.)
• Third phase (1979-2006) (descent of the Human Rights Commission)
 Evolved more effective procedures and tackled growing range of problems
 Procedures were effectively passed on to new Council in 2006
 Overtaken by alternatives
 Farcical situations
 US Out
 Failures
 Darfur
 Uzbekistan
 Chechnya
 By 2006, there is very little concern for maintaining Human Rights
Commission
- Problems with HRC
• Membership: Too many voting members, including flagrant HR abusers
• Huge and unwieldy (doesn’t meet often enough, hard to get such numbers to
agree
• Does nothing when emergency situations emerge (Uzbekistan)
• Overtaken by Alternatives: CAT, CRC committees (structurally they are more
sharply defined)
 Also regional bodies (IACHR and ECtHR)
- Special procedures system (the crown jewel of UN human rights system)
• 36 different mandates (called many things: working groups, special rapporteurs,
independent experts
 See page [x] for list (e.g. rights of children, role of lawyers & judges,
discrimination)
- Standard-setting
• Elaboration of ever-growing body of standards designed to flesh out the meaning
and implications of the relatively bare norms enunciated in the Universal
Declaration
• Since 2006 has adopted

29
  International Convention for the Protection of All Persons from Enforced
Disappearances
 Declaration on the Rights of Indigenous Peoples
 Guiding Principles on Business and Human Rights
- Features
o 47 members (regional)
o 3 year terms
o Human rights record sort of a criterion
 Members on the commission needed to have some level of adherence to
international human rights standards - BUT DIDN'T LAST
o Ten week, 4,3,3 + special
o Rotating presidency

Country Reports
- Countries are open to Scrutiny just by being a part of the UN Charter
 Art. 55 and 56
- As a practical matter, Human Rights Commission draw on treaty documents/CIL to
evaluate human rights abuses
 UPSIDE - HRC has jurisdiction over ALL countries
 DOWNSIDE - little enforcement mechanism
- Reporting on the human rights situation in individual countries constitutes an important
part of the work of the Council, though it remains controversial and contested
o Examples of Country Rapporteurs
 North Korea
 Cambodia
 Charlesworth v. Kirby
- Reports are prepared by country rapporteurs, thematic rapporteurs and ad hoc
commissions of inquiry
- Country Report Case Studies
 
Country Reports - Case Studies
 "Colville for the Defense" - Americas Watch report
o British QC who had been in the UK army - was appointed UN Special Rapporteur
for Guatemala in the 1980'a
o One of the things that caused Guatemala to be singled out was the torturing and
killing of civilians
o Colville goes on a week to two-week mission to see for himself
 Goes to villages to investigate, BUT GOES WITH GUATEMALAN
MILITARTY TO INVESTIGATE
 Writes a report that whitewashes situation
o The Point? Rapporteurs as agents of implementation are only as good as the
individuals themselves
 North Korea
 Cambodia
o Charlesworth v. Kirby

30
  Essence of debate - Rapporteur reports are worthless v. better than nothing
 Myanmar
 Israel - Goldstone
o Lots of scrutiny, but also very big (US) shield - always vetoes when a UNSC
solutions come through
o Report accuses Israel of engaging in ethnic cleansing (not said outright, but hints)

Thematic Reports, UPR, High Commissioners

- Thematic Reports (“one of the most effective mechanisms.”)
- What do they do?
o Push the ball forward on Standards and building on themes; Soft law
 E.g. the duty to consult indigenous people on issues related to them
o Country reports, especially when invited in, brings transparency
 Adds to the “drip-drip-drip” of change
- Selected
o Freedom of Religion
o Lawyers
o Torture
o Women
o Waste
o Expression
o Children
o Arbitrary Detention
- BUT also Country Specific
o Northern Ireland – lawyers and judges
o Alston on Kenya (report on police violence)
 Kenya's harrumph
 Hated Alston's report on Kenyan police violence
Issue: Regulatory Ritualism
 Example: report written about North Korea, North Korea denied allegations, nothing
changed, and 20 years later North Korea is still one of the worst violators of human
rights!
o What's the point of these reports?
o Are rapporteurs doing anything useful?

Universal Periodic Review

- Uses the reports from UN Experts among its sources
o Empowers domestic HR government agencies to raise a voice
o Makes somebody in the government read human rights documents in order to
write a report
o Energizes civil society

Office of the High Commissioner of Human Rights

- Serves as a coordinator and an advocate
o Coordinates: provides a common source of treaties, facts, and information

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 o Advocates: unlike Secretary General, the OHCHR is free to speak

Security Council
- Its original intent not intended to be human rights body
• But is actually the only body in the UN that can wield hard power to make a
difference
- Authorizing the use of coercion (economic or military)
• Does not have plenary discretion to do whatever it wants
• Requires a threat or breach of international peace
 Subset not of human rights law, but of the laws of war
 Jus ad bellum => law concerning when nation states may legitimately go
to war or use force
 Chapter 7 = any threat to peace, breach of peace or act of
aggression… take action to restore international peace and security
 Article 51 = self-defense
o What happens if genocide is occurring solely within one country?
 Requires broad interpretation
 Could say, for example, threat of conflict spreading beyond the state’s
borders
• Responsibility to protect (RTP)
 New doctrine offered by Kofi Annan as an interpretative supplement to
chapter 7 (part of interpreting threat to/breach of peace)
 Background in Grotius
 Trying to create basis for humanitarian intervention, in part by defining
the parameters for when that can take place
 Principles of R2P
 A state has a responsibility to protect its population from genocide,
war crimes, crimes against humanity and ethnic cleansing
 International community has a responsibility to assist the state to
fulfill its primary responsibility
 If state fails to protect its citizens from the above mass atrocities
and peaceful alternatives have failed, international community has
responsibility to intervene through coercive measures like
economic sanctions; military intervention as last resort
 Five restrictions on use of force in this context
 Seriousness
o Genocide, crimes against humanity, war crimes, ethnic
cleansing (jus cogens)
 Limited purpose
o Can’t wage war of conquest, iffy on whether regime change
is allowed (Libya)
o Can’t use for proxy-war
 Last resort
o Everything else given the time frame has been tried
 Proportionality

32
  Balance of consequences
o Are you going to do more good than harm?
 R2P both increases scope of Security Council to use coercive force, and
restricts it
 Stillborn?
 Libya
o Can you use R2P for regime change?
 Syria
o No intervention

IV. GLOBAL IMPLEMENTATION: TREATY BODIES

- Overview
o One of the most effective human rights bodies (second to rapporteurs)
o Starts to approach a judicial interpretation of human rights (vs. NGO-style naming
and shaming)
o ICCPR (committee) and ICESCR (does not create a treaty body, but ECOSOC
establishes a treaty implementation mechanism for the treaty); plus all the other
human rights treaties (Convention Against Torture, etc.)

- Treaty Body Basics

o Nominally charged with four things
 Receiving and critiquing country reports
 Accept individual communications from citizens of a state complaining
about violations of the state of that treaty
 General comments
 (Interstate complaints)
 Seen as the primary job when these committees were first devised
 But this has never actually happened, so you can ignore it
- Function of Treaty Bodies
 Individual applications
 Receive reports from the states about their implementation of a
given human rights treaty they are subject to
 Practice of assessing the report and grilling states
 General comments
 Issue general comments almost like advisory opinions
 Authoritative soft law interpretations of human rights treaties

33
  State reports
 Need an additional protocol to original human rights treaty
(addendum treaty) that allows individuals to go with complaints
(applications) alleging state violations of treaties
- ICCPR Human Rights Committee
o Oldest and most effective
o Composition art 28-39
o 18 members of "high moral character and recognized competence in the field of
human rights" to serve in their personal capacity
 True of most committees
 Do not represent their state
 Must recuse if a matter of their own state arises
o Secret ballot of state party
 Elected
 2/3 quorum to have election, top 18 vote getters by secret ballot
 State can nominate two
o Only one per state party
 High quality
 E.g., US: Lou Henkin, Ruth Wedgewood, Sarah Cleaveland
o Meetings; three for three weeks, 2 Geneva, 1 NY
- Country Reports
o Accept mandatory (for all countries who sign and ratify ICCPR) reports from the
state body due every five years in which the state party reports how well it’s
doing in observing the treaty
 Also one report due when you join
o Supposed to be the main way of implementation
 Bureaucrats from a country have to sit down and produce a report that is
going to state how the member state is adhering to treaty provisions
 Utility?
 Empowers foreign affairs ministry in the country for them to
immerse themselves in HR law
 If nothing else, you are educating within each government, so
someone will at least care about HR to some degree
 Valuable
 Civil society and NGOs will get together and start writing their
own reports in anticipation of the official report
 Keeps the government honest AND mobilizes civil society
o Process
 Two portions of country report
 Takes the form of a public hearing
o Country that did the report gives statement on the report in
UN committee
o Then the 18 committee members ask about the report
o If state says it does not torture, then members can ask “but
we have reports from NGOs saying you do”

34
  Critique of the country’s report by the members of the ICCPR HRs
Committee
o Strategy goes into this => seek to diplomatically engage
renegade states, while having the leeway to be more critical
of “good” states
 Remarks after hearing
o Important as states will spin the information
o This becomes the "neutral" assessment on how the state
needs to improve etc.
- Example of a Country Report
o US
 2006 vs. 2012
 2012 more engaging with the committee (Obama was president vs.
2006 Bush)
o More engaged and almost apologetic
 Not the same as a court but helpful
 What were some of the problems the US was being called out on?
o Limited level on state level practices
o US replied doing the best we can, convenient dodge in and
federal system
 Discussion on whether the ICCPR applies in the US
 Are individuals on US territory subject to ICCPR
 Two points
o Back and forth going on whether the ICCPR applies to
territories of a state
 In this context does the ICCPR apply at all to the
bases and Guantanamo ?
o Look at article 2
 Within its territory and subject to its jurisdiction
 Narrow reading
o These rights are only within the
borders
o US pushes narrow reading
 Broader reading
o Anywhere the US exercises control
o Human rights committee and most
internationally support this reading
 Issue of terrorism falling between human rights law
and the laws of war
- Individual Communications/Applications
o Overview (More effective Alternative to State Complaints – 111 Ratifications)
 Triggered by Protocol
 Requirement of Exhaustion of Domestic Remedies
 Exclusivity Requirement
 Process: On Paper

35
  Non-binding
o Generally not a function of a baseline treaty
 With ICCPR, for example, individual communications are part of the first
protocol, not the treaty itself (USA is not signatory to first protocol)
o Requirements
 Standing
 Relatively broad
 Either you or an NGO on your behalf can bring the case
 Must exhaust domestic remedies first
 Must litigate in domestic courts first and lose at every stage of
appeal, unless it’s dangerous or futile to do so
 Exclusivity
 Must use one international forum at a time
 Cannot go to treaty body and domestic court at the same time
 Individual must have suffered directly (can’t bring generic case)
 Committee process
 All written proceedings (no hearings, day in court, etc.)
 Party submits all his evidence and state responds, all in writing
 Unlike other committee processes (country reports, general
comments) individual communications are not consensus-based;
there can be dissents
o Kavanagh I Case Study
 Facts
 Robber in Ireland arrested, tried in special court (created as state of
emergency during the Troubles)
 Kavanagh argues that he should be tried in regular court (where
there are greater evidentiary, jury rights, etc.)
 Example of the leaching effect of the emergency system
 The prosecutor can really abuse the system by funneling a criminal
to the emergency court so they can get a conviction when they
know that they shouldn’t be there
 Two arguments
 Denial of fair trial (article 14)
o Court rejects this
o Emergency courts do not per se violate the ICCPR
o Being transferred to the emergency court was not an abuse
of discretion
 Right to equality before the law (article 26)
o Kavanagh does prevail on this
o Funneling him into the emergency court resulted in him
being discriminated against
o No justification for putting him into the emergency system,
while similar criminals are tried in the regular system
 Judgment
 No Article 14(1) violation on denial of fair trial

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  But Article 26 violation of equality before courts since: 
o Jury trials are the baseline for Irish criminal justice 
 Ireland gave no reason for switch 
o Concurrence and Dissent (Henkin et. al) 
o Also a violation of Art. 14(1)
o Kavanagh II
 Facts
 Judicial review brought before High Court in light of HRC
communication
 ICCPR not part of domestic law, but principles were as a matter of
customary law 
 High Court & Supreme Court denies
 L1,000 check from Minister for Justice > returned
 Claims violation of:
 Art. 2(3)(a) no effective remedy
 Art. 2(3)(b) remedy determined by effective authorities (as
opposed to ex gratia ministerial remedy)
 Judgment
 Complaint inadmissible
o No new info – other than he hasn’t yet gotten a remedy! –
therefore, nothing for HRC to do
o Can’t be an actio popularis
o ICESCR Committee
 General Comment, Art. 13 (Right to Education)
 General Comments specify articles in the treaty

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V. REGIONAL IMPLEMENTATION
 If you have a very good domestic judiciary that takes human rights seriously, then that’s
ideally how the system is supposed to work
 The further up you go (the more distant you go) the less effective it becomes
o Domestic courts > Regional mechanisms > Treaty body mechanisms > UN
mechanisms
o Within the UN system, what is effective?
 Rapporteurs (especially thematic and sometimes country rapporteurs)
o Outside of courts, also the press and NGOs (naming and shaming)
 On exam, go for the two or three most promising mechanisms

 Regional systems are offshoots of regional organizations with general purposes

o Americas => Organization of American States
o Europe => Council of Europe (EU having increasing mechanisms but still largely
an economic body)
 Integration of 2 constitutional systems – EU (Commerce Clause) and
ECHR (BOR)
 EU’s rights – freedom of movement, freedom from discrimination, due
process
 Council of Europe instituted after WWII for cohesion in Europe in light of
USSR
 Constructs the Eu. Convention on HR – one of oldest HR treaties
 Robust enforcement available – ECHR

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  Robust jurisprudence – probably the most so of all HR bodies –
and CASES – reads much more like judiciary we know
 Pros and Cons of Regional Mechanisms for Human Rights Implementation
o Cons
 Possibly imperils the universality of human rights law
 As a matter of legal positivism, the rights in these treaties are
universal rights
 Regional system threatens to have these rights interpreted and
implemented in a way that diverges from worldwide system
 No powerful hegemon state (i.e. US) pushing for HR
o Pros
 Practical reasons
 Regional focus allows for an easier method of implementing
human rights, for basic physical economics of scale reasons
 Greater credibility
 Many people simply don’t buy universality of human rights, and
find the imposition of these rights more credible when it is done by
regional, more accountable bodies
 Fewer players
 So less room for discord
 Less imperialistic

 Rodriguez Case
o Classic case of affirmative obligations attached to negative rights
o Involves disappearance (three of the worst human rights: arbitrary arrest and
detention, torture, extrajudicial killing) in 1980s Latin America
o Case deals with the worst of these three (right to life)
 Most obvious way for a state to abide by the right to life is to refrain from
extra judicially killing someone
 This would be enough in US; but IL has robust conception of affirmative
duties attached to negative rights (Article 2 of ICCPR)
o Where these is credible evidence of state involvement in deprivation of right to
life, states are under an affirmative duty to conduct an investigation
 An affirmative obligation to do something good, rather than just refraining
from doing bad
 Other possible responses: Providing remedies (tort mechanisms),
providing police training, etc.
o If there is a credible pattern of the human rights obligation, that has been attested
to by the press, NGOs, etc., then the burden shifts to the government to disprove
the allegation
 Then places the government under an affirmative duty to conduct an
investigation into the person’s disappearance
 Otherwise how else is the govt going to disprove what it now has a burden
to disprove?

39
European System
o History
 Council of Europe, formed before the EU
 Relationship: More nations than EU (e.g. Turkey, Romania)
o Results
 Extensive Jurisprudence
 Ireland v. UK
o UK troops were using 5 interrogation techniques against
Irish citizens, ECtHR held techniques weren't torture, but
still against treaty (against cruel and human degrading
treatment)
 Dungeon v. UK, Norris v. Ireland
o Cited by US Supreme Courts - laws prohibiting sodomy
were against right to privacy
 Turkish cases, e.g. Gezici v. Turkey
o Cases regarding enforced disappearances
 Soering v. UK
o Extradition case - US wanted to extradite UK citizen
involved in murder - BUT he would have been subject to
the death penalty
o ECtHR said would violate cruel and unusual punishment
due to US's death row practices
o BUT SEE Margin of Appreciation
 Deference to States on their views of what
constitutes a “national emergency”
o Adherence
 Generally good
 Created a long a rich history of jurisprudence, comparative to other
national systems
o European Charter on Human Rights
 Rights
o Civil and Political
o NB: European Social Charter
 Enforced by Committee
o Doesn’t include affirmative rights
 Derogation
o Art. 15
 War or public emergency
 Extent strictly required
 Brannigan & McBride, margin of appreciation
 Margin of Appreciation: Largely differ to state that it is
experiencing an emergency
o Non-derogable
 Life, torture, slavery, nullem crimen sine legas, ex post facto

40
 o Are there Clawbacks?
 Art. 9
 "Subject to limitations by law and are necessary in a
democratic society in the interests of public safety,
protection of public order, health, or morals, regarding
protecting the rights and freedoms of others."
 BUT! The ECtHR can interpret whether or not the
limitations "are necessary"
 Similar to protections in legal system
 Enforcement
o Old System (similar to InterAmerican system today)
 Commission
 Commission vetted admissibility of cases
 Then acted of a court of first instance, adjudicated
certain aspects that were important/admissible
 The State / Commission could then bring it to the
ECtHR
 Court
 Cumbersome, backlog
 In EVERY system - exhaust all domestic resources
o New System: Protocol 11
 State Complaints
 Used about 12 times, sometimes significantly
 Individual Complaints
 Standing - broad
 Exclusive
 Within 6 months of domestic exhaustion
 State Party intervention in regards to their own nationals
 Friendly Settlement
 Public
 These decisions are technically binding
 Advisory Opinions
o Case Study: Brogan
 Facts
 PTA Detention in Ireland, 4 Days and 6 hours
o Subject to "Extra-criminal" system in Ireland - "suspected
paramilitary activities with IRA"
o Not as many due process norms since "emergency
situation"
 No probable cause (rather, "reasonable suspicion")
o Can be held up to 5 days (rather than 48 hours like in US)
 Typical of "permanent emergency state"
 Judgment
 Violates Art. 5 of European Convention
o Prompt means prompt - Winning claim

41
  Violation of Art. 5 (3) - must be "promptly" before
a judge or other officer of a law
 4 - 7 days NOT PROMPT
 Govt. Argument: it's difficult to get evidence for
terrorist threats, need extra time to gather evidence :
4-7 days IS PROMPT
 Court doesn’t buy it - disagrees because of
interpretation of "prompt" -
o Analyzed plain meaning in French
and English and came to conclusion
that "promptly" does not equal 4
days
 After this case, the UK filed a derogation

Inter-American System
- American System
 Organization of American States (OAS)
o Created American Declaration of Human Rights (similar to UDHR)
 Then the treaty came - Inter American Convention on Human Rights (binding treaty,
similar to ICCPR)
o USA had signed, not ratified
 Could argue duty not to undermine purpose of the treaty
 Another argument is Commission has jurisdiction over USA (through
OAS)

 
 American Convention - Treaty
o Rights
 Civil and Political
 Longer list, more robust
 Social and Economic
 Only one "right"
 Progressive Realization bootstrap
 Exceptions
 Art. 27 Derogation
 More non-derogable rights
 Clawbacks
 
 Implementation
o Inter-American Commission (European Commission no longer exists; instead
courts expanded)
 Similar to Proactive NGOs/UN Treaty Body
 Very proactive institution
 Country Visits / Reports
 E.g. Venezuela

42
  Precautionary measures
 Rough analogy - Temporary Restraining Orders
o Also, complaints
 Deals with complaints confidentially first, but then makes recommendations
 If still pending, submit to Court
 Binding Recommendations
 And can publish
 Inter-American Court
o 7 Judges
o Only State Parties or Commissions may submit cases

- Case Study 1: Digna Ochoa

 Digna Ochoa was an international human rights lawyer investigating
Mexican criminal justice issues
 Repeatedly received death threats
 Took to the Commission regarding her situation
 Example of precautionary measures - court ordering
Mexico to protect Digna Ochoa
 Art. 62(3)
 August 2001 Order - order from the Court in San Jose to the
Mexican government to protect Digna Ochoa
 Court Lifts - she dies :(
 
 
 Case Study II: Velasquez Rodriguez
o Case regarding enforced disappearances
o Velasquez was arrested without a warrant - guys in plain clothes shoved
Velasquez into an unmarked van
 Evidence that Velasquez was tortured and killed by the government
 Arbitrary arrest, prolonged detention, torture, extrajudicial murder
o The Problem: trying to prove Honduras committed the crimes
 Asymmetry of information - govt. has all the information and the victim
(or kin) does not have information
 How the court dealt with issue: the Court shifts the burden to the
government because there was a specific pattern of individuals getting
abducted into white vans
 The Court shifts the burden of proof to the government
 Not a criminal proceeding! This is a situation where underfunded
individuals are going against the State
 The worst that happens is the State gets embarrassed (in
comparison to criminal prosecution - where the State goes
against individual)
 Court draws distinction between individuals vs. State in
human rights proceedings and criminal proceedings
 First case Inter-American Court handed down

43
  European Ct. of Justice cites this case as persuasive in dealing with
Turkey
 
- What is the Precedential Value of Court Cases in ECtHR, ACtHR, etc.?
 No stare decisis since these are international tribunals
o Stare decisis generally doesn't apply
 BUT - existing caselaw does have an effect
 Judges don't like to reinvent the wheel
 Admissibility issues - cases can get thrown out if
similar to previous cases thrown out (when dealing with
the same interpreting of the treaty)
o Generally - cases are very persuasive

- African System
 Rights
o Political
o Social
o Peoples
 Who holds the rights? Against Whom?
 How do you define peoples?
o Duties
 C.f. Art. 29
 Need to be patriotic for national stability?
 Duties to parents, families, nation, etc.
 Why is the African system different?
o Reflects post-colonial reality - states are fragile, need stability, cohesiveness
to survive
o Reflects collectivist cultures of Africa
o BUT
 States can use this to suppress dissent
 Authoritarian states help draft the document - too much nationalism
can be dangerous
 Peoples' rights and duties helps balance off individual rights -
can be good for dictators
 
 The African Commission
o Country visits
o Investigations/Reports
 Zimbabwe - eludes to the evictions against white farmers from the
regime
o Advisory Opinions
o Complaints
 Swaziland - the king would not stop being an absolute monarch
 
 Generally - the African system is too young to fully critique
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VI. EXTRA-JUDICIAL ADVOCACY

NGOs (probably the most effective human rights mechanism)

 NGOs serve several important functions
o Fact finding
o Reporting
o Standard-setting
o Overall promotion, implementation and enforcement of HR norms
 Operate much more freely that government bodies because they’re not political
o NGOs can campaign for the mobilization of public opinion and force government
action
 NGOs become more influential as they become:
o More visible and marketable
o Their strategies are more clearly mapped out
o Their level of technical expertise is greater, and
o Their funding more adequate.
 Often partner with governments to perform functions like HR education and delivery of
aid

45
 Problems:
o When NGOs speak truth to power, governments and news publications question
their legitimacy
 Go as far as to say that NGO publications lie about facts, without
supporting evidence, and present dangerous shift of power to unelected
and unaccountable special-interest groups
o NGOs take away independence of government institutions because government
bodies’ political stances can be changed or manipulated by NGOs bringing global
media attention to an issue with a bias
 Thus, opposition to NGOs and desire to create standards of accountability
for NGOs
 Argument against this fear and accountability is that NGOs have no
legitimate power or money compared to governments
o Anderson’s Critique of NGOs
 Anderson says NGOs can help with the lack of democracy in "democratic
nations"
 International civil society - Claim is that NGOs "locking hands
with one another" helps fill the gaps in democratic nations
 This transnational, grassroots movement, acts as a conduit for
worldviews to get to the process of becoming international law
 BUT lots of issues
 Are they legitimate?
o Anderson
 No oversight/lack of transparency
 Lack of funding
o Accept funding from biased sources (e.g. governments) and
disclose their work?
o Or be transparent, lose funding, and not be able to work
 Funding from biased groups
o Who are they accountable to?
 Lack of democratic processes/very elitist
o Who elected the NGOs to fill in the void of democratic
processes? What gives them a right?
o How can small NGOs represent large groups of people?
o Pretty elitist
 Lack of accountability
o Jacques
 NGOs are attempting to assuage this by increasing
transparency/accountability
 E.g. Accountability Charter
 Similar in business and human rights
 Nike example: Nike gets caught using child
labor
o Nike develops set of principles for its
company

46
 o If still pressure, group of companies
in industry concoct soft law
standards
o UN can step in and institute
additional soft law standards
 Imperialistic?
o If most Global NGOs are elite, highly educated,
Western/Northern, how do they represent peoples from the
South?
 Critique: Imposing views on rest of the world
 Negative bias
 State pushback (signs that NGOs are effective in their work)
o Foreign Funding Laws
 NGOs can't take foreign funds
o Foreign NGO Laws
 Limits outside funding, regulates and restricts foreign NGOs from
operating in the country
 For example, in China, NGOs have to register first w/ govt., elect
someone to help oversee compliance
 Keeping citizens from working with the UN
o Hong Kong National Security Law
 "Working with foreigners" is an offense in Hong Kong
 Chills work with outside groups
o @ UN
 Faux NGOs
 Some are just writing propaganda for the government…
 Restriction of Credentials
 Authoritarian States are trying to delegitimize credentials of NGOs
at the UN
o Certain groups are applying for credentials and are getting
denied
- Types of NGOs
o Global - the world is their arena
 Amnesty
 Began only focusing on political prisoners & death penalty, but
now has a more wide array of focuses
 They're a membership organization, 1,000,000 members
 Human Rights Watch - most established org, best sourced
 Founded by journalists
 More of a focus on reporting rather than legal analysis
 Human Rights First
 Started as Lawyers Committee for Human Rights
 Staff of about 100, based in New York -
 Hodgepodge of geographic/thematic issues
 General Features

47
  Non-grass roots (but see Amnesty)
 Foundation funded
 Write Reports
 Expert Testimony
 Lobbying
 Working with local NGOs
 Tend to be Elitist
o Thematic/Geographical - world as arena, but focused on very specific issues
 International Rescue Commission - refugees
 Human Rights in China - focused by geography
 US Committee on North Korea
o Local
 CAJ - Committee on the Administration of Justice (based in Belfast)
 Centro PRODH - Mexico City
 Example of Religious human rights group
 SUARAM - Malaysia Human Rights Group
 Have disproportionate representation of Chinese and Indians, not
representative of Malay population
 Features
 Small Size (grass-roots, underfunded)
 Key gateway for global work
o Important for larger orgs to work with smaller groups to
help define issues
 Some faux groups
o Some can be fronts for political agendas/parties
 False consciousness?
o "Just brainwashed by the West…" argument
 Dangerous for workers!
o Often enormous sacrifices
 Career wise - can lose opportunities when
addressing human rights
 Open to persecution, danger, targeted killing
o Official NGOs
 QUANGO, BINGO, RINGO, GONGO, ENGO (governments, business
interests, etc.)
 E.g. Human Rights Commissions
 Can range from great to terrible
Fact-Finding Missions
 Essential Elements of Fact-Finding Missions
o What is the relevant human rights law that is applicable in the Country in
question?
 What treaties have they signed?
 Which of those treaties have they ratified?
 What elements of customary international law are applicable if they
haven’t signed any on point?

48
  What elements of the treaties that they have not signed up for are they
nonetheless following?
 Opinio juris is important
 What regional human rights organizations/treaties are involved?
 What domestic law is applicable?
o What is the nature and scope of your fact-finding mission (choice/remit of the
fact-finding mission)?
 Where are you going to go to look?
 What is the scope of your fact finding mission
 These would appear to be similar to an informal inquiry
 Which areas are safe enough to go to always an important element
 Nobody wants to get shot in the face
o What is your budget?
 NGO missions tend to be very small and limited
o What local NGO support do you have?
 The most important aspect of any fact-finding mission
 Success of the mission is ultra-dependent on the support of local NGOs
 Just as important to avoid any sort of bias (political or otherwise)
when teaming up with local NGOs
o Obtain as much knowledge of the culture/history of the country in question as
possible
 By far the most challenging aspect of any fact-finding mission
 Over deference to culture is just as challenging as being culturally
insensitive
o Team composition is a critical aspect
 Do you bring women into a fact finding mission to Lahore?
 This reinforces the importance of cultural understanding when you
conduct these missions
 Also want to make sure you bring the right people, people with experience
as well as someone important enough (i.e retired federal judge) who will
get doors open that otherwise might be closed
o Assembling direct evidence
 Interviews
 The more the better; do not cross-examine and lose your
impartiality
 Keep all interviews off the record (or else risk reprisals, etc.
against your interview subjects)
 Physical visits to the scene
o Government response
 Always best to leave government as the last “witness” so that you can use
all of the other information you gathered against them
 Make sure you give the government a copy of final report to allow them
the opportunity to respond
o Dissemination of Report

49
- Preliminary Considerations
o Independence
o Selection of topic and place
o Selection of partner(s)
 Does the local populace want your help on a certain issue?
o Safety
o Possibility of reform
 Can your work actually make a difference?
o Composition of team
o Resources
o Preparation
o Reliance on international law
 Not going there only because something "morally stinks," or "they're not
doing it right," but to go to states to hold it to its human rights obligations
o Purpose
 Trying to build credible evidentiary base, but then have to refer to a
Human rights body (UN, States, etc.)
 Prima facie evidence deserves attention
- In Country/During Mission
o Time and place constraints
o Division of resources
o "Mapping" (in a different sense)
 What you do first is go to the locals - DON'T START WITH OFFICIALS
o Determination of relevant evidence
 Starts to be credible when there's a pattern
 Disparate people w/ little in common says same thing
o Interviewing and note taking
 People get nervous w/ tapes, but when it's just unthreatening students
taking notes, its less threatening
o Corroboration
o Anonymity
 HAVE TO TREAT AS SACRED - don't want people to be retaliated
against
o Documentation
- Post Mission
o Collation of evidence
o Draft and internal circulation
o Soliciting government response
o Layout
o Dissemination
o Publication
o Panels
o Lobbying
o Social Media

50
 o Repeat

VII. NATIONAL IMPLEMENTATION: UNITED STATES

International Agreements

Process Status

Treaties: President + 2/3 Senate(quorum) Self-executing vs. Non-self

executing
 Based on
intent of treaty
makers
 
Hierarchy (Constitution,
Laws, and Treaties)
 
Power Augmentation

51
 (TC + Necessary and Proper
----->)
(CC ----->I)
Congressional-Executive Agreements (like Trade Self-executing
Agreements): President + 1/2 + 1H + 1/2 + 1S
Legitimacy questioned
 But, the Supremacy Clause doesn't say
"the ONLY way to make treaties"
Sole Executive Agreements: ?? (e.g. SOFA's) Self-Executing for both
(Tied to express grant to President - used to enact
President's express Art. 2 powers)

Overview
 Treaties: P + 2/3 Senate(quorum) = could be self-executing or non-self-executing
 (Hierarchy = Constitution, Laws, Treaties)
o Constitution preempts self-executing treaties (Reid v. Covert)
 Why would Founding Fathers make it easier to ratify a treaty that could
circumvent the Constitution rather than amending the Constitution itself?
o BUT - if there is a law and treaty that conflicts, it's the last in time rule that
applies (later statute overcomes old treaty rule)
 Meaning Laws and Treaties are on an equal plane (arguably)
o Argument could be made that Treaties are above both Constitution and Laws
 Treaties DO NOT have to be "in pursuance of the Constitution" (as Laws
do)
 BUT - the phrase is meant to grandfather treaties made before
Constitution was ratified
 Congressional Executive Agreements: P + mere majority of H + mere majority of S =
"Self-executing" (made because it's made Bills are passed)
o Trade Agreements
 Sole Executive Agreements (tied to express grant to P) = "Self-executing"
o By custom, alliances, friendships, arms agreements go through the treaty route
o There are two Supreme Court cases that state that Executive Agreements apply
automatically at least to States
 Senate often tack on reservations that treaties are non-self-executing
 According to the Supremacy Clause, treaties SHOULD COME DOWN
AUTOMATICALLY
o Foster v. Neilson - John Marshall argues that if intent of treaty makers not to
be self-executing, then it doesn't automatically get applied in US law
 Why does US always attach non-self-executing reservations to human
rights treaties? - Probs Jim Crow
- The Supreme Court rarely adjudicates human rights treaties, but it did deal with Vienna
Consular Conventions
 Have to let Countries know when you hold the nationals of those nations

52
 o US v. Medillin - Senate did not attach reservation, ICJ ruled against US
- US v. Morrison
o Supreme Court considered the Constitutionality of the Violence against Women
Act (VAWA)
o The Court struck down the Statute for exceeding the Commerce Clause
 What about CEDAW?????

- CEDAW Hypothetical
o Congress reenacts VAWA after signing and ratifying CEDAW. Morrison struck
down VAWA since it doesn't involve economic activity. Constitutional or not?
 Pro argument (CEDAW is constitutional)
o Missouri v. Holland
 US and UK enter into an agreement to protect migratory birds
 Supreme Court assumes Congress power wouldn't reach birds
since not interstate commerce
 Holmes: Congress has power to make a Statute to
implement a treaty (Treaty Clause) through their
Necessary and Proper Clause
 If Missouri v. Holland is still good law, then Congress has the
ability to reenact VAWA to implement CEDAW
 
Jurisdiction of Treaties
o State party is responsible for human rights violations within its territory and
jurisdiction
 US has a very narrow definition of “territory and jurisdiction”
o Basically only responsible for HR violations occurring within US territory
 Human Rights Committee argues that “jurisdiction” is not just a synonym but adds
something
o Territory + area of effective control by the state party
o Spectrum of effective state control
 E.g. Guantanamo (not part of US territory, but in every sense US exercises
effective jurisdiction over Guantanamo)
 E.g. British troops in Southern Iraq (British zone of occupation) were
found by House of Lords to be “effective control” over the area
 Drones/extraordinary rendition
o Extraordinary rendition = use of deadly force outside of your own borders
constitutes an assertion of jurisdiction (possible argument)
o Dominant critique of drones is law of war

Constitution/Treaties
 Constitution is supreme in the United States (Reid v. Covert (1957))
 On the international plane, same set of rules for any nation state that has signed a treaty
o But does the fact that you as a state have international obligations mean anything
in the domestic legal system?

53
  International obligations can be used in domestic courts (monist)
 Other countries, international obligation has no meaning in domestic
system (dualist)
 US is presumptively monist (according to language of the constitution)
o However, very early on, SCOTUS develops doctrine that some treaties are not
self-executing; this is US only jargon, not international
 Self-executing treaty => monist treaty
 Non-self-executing treating => dualist treaty
 Basic rule in US = Deciding whether a treaty is self-executing or not depends on the
intent of the treaty makers, in particular the United States’ intent
o How do you discover intent? Look at the language; if it calls on states to take
efforts/actions, then probably non-self-executing
 Once a treaty is deemed self-executing, what are its relations to domestic law?
o Constitution is always supreme
o If at odds with Constitution, then treaty controls US obligations on the
international claim, but in US courts constitution is controlling
 E.g. ICCPR says hate speech/war propaganda is not protected (on the
contrary, countries are under an affirmative obligation to eliminate it)
 If US signed this without reservation, the Human Rights
Committee could criticize us, but in domestic courts the 1st
amendment would still prevail
 Note that in real life, the US did make a reservation regarding hate
speech

- NYC Bar Report

 Credible evidence that US is engaging in waterboarding at Guantanamo – legal?
o Didn't try to verify facts because lawyers in NYC had no way of verifying
 First Step - see what international obligations US has violated
o Has the US signed and ratified treaties related to the practice of water
boarding?
 Convention Against Torture
 ICCPR
 Perhaps American Declaration (not American Convention - haven't
acceded to)
o Organized based on relevance - CAT more relevant
 Has definition of torture
 CAT states you can NEVER engage in torture
 ICCPR says torture is a nonderogable right, but CAT is much
stronger
 Second Step - Are there any Reservations, Understandings, or Declarations?
o Issues w/ Art. 16 (reservation to cruel and unusual treatment) - US says it has
to conform to Eighth Amendment
 "We won't go beyond our duties given in the Constitution"
 They do this with cruel and unusual treatment
 Third Step - Have there been steps to bring down the treaty into domestic law?

54
 o The anti-torture Statute only brings down part of CAT - only prohibits torture,
not Cruel and Inhumane Treatment
 Arguments over definition of torture
 John Yoo - Torture Memos
 Justifies what happens in Guantanamo
 Most of the memos were statutory interpretation of
USC 2040 - 40A
 Pain required to rise to the level of torture
 John Yoo said level of pain required is
"incident to organ failure" as an attempt
to narrow the statute
 Outside CAT definition
 Because US was trying to bring incorporate
CAT, international lawyers can bring in CAT
treaty bodies to interpret meaning of the statute -
can counteract narrow definition
 Also, since US was at war, can bring in Geneva
Conventions (International Humanitarian Law)
 Fourth Step - Customary International Law?
 Fifth Step – Cases of foreign jurisdictions, or other publicists?

Customary International Law in United States

- Direct
o Court interpreting international law from Statute/Constitution
- Indirect
o Congress brings down customary international norm
- Sideways

Direct Incorporation - Can the Court apply Customary International Law directly without
a Statute?
o E.g. Fernandez v. Wilkinson - District Court did apply it, 11th Cir. Affirmed (but
on 8th Amendment)
o Short answer: Basically yes, but it's complicated
o "Originalist View"
 Paquete Habana (1900)
 Facts
o US Navy seized small fishing vessels during US Spanish
War
o Defense: Violated Customary International Law
 During a war, cannot seize non-belligerent ships
(e.g. fisherman)

55
 o Supreme Court upholds Customary International Law
Standard/accepts argument
 Looked at general practice of "civilized nations"
 Applied international law of nations
 Fiction was that judges would find these higher norms and apply
them in cases
 How can US Courts apply CIL/law of nations?
o Not in Constitution/no statute
o Courts state: "International law is our law and courts
can apply it."
o Post Erie View
 Banco Nacional de Cuba v. Sabbatino
 Post Erie, Paquete Habana view becomes a problem
o No real "ideal" to bring down CIL
o Federal law is narrowed
 Sabbatino involves nationalization by Castro of US corporate
assets
o Defense by Cuba: Act of State Doctrine - Courts of one
jdx. will accept the acts of another government in their own
jurisdiction and not double guess.
 Court agrees with Cuba's defense, but again there isn't a
Statute/Constitutional provision to apply CIL
o Court says it's not doing what it did in Paquete Habana
o Act of State is not CIL, but is derived from international
relations (non-binding)
o Erie didn't kill off all common law power
 Fed. Courts can fill gaps of Fed. Statutes
 Fed. Courts can look at CIL principles and bring
them down
 Professor Argument: If it's okay to bring
down principles that haven't quite ascended
to CIL, then it has to be okay for it to bring
down actual CIL principles
o Look up to CIL and international relations, can be inspired
by it, bring it down, but it in Federal Common Law "meat
grinder," then spit it out as binding
 Sabbatino affirms same sort of process as Paquete Habana
o Argument that this power comes from Art. 3 "judiciary
power"

Indirect CIL: Alien Torts Statute

- Overview (from class notes)
 ATS - aliens bringing cases regarding the violations against "the Law of Nations"

56
 o Statute: “District courts shall have original jurisdiction of any civil action by an
alien for a tort only, committed in violation of the law of nations or a treaty of the
United States.”
 Since 1980, courts have interpreted this statute to allow foreign citizens to
seek remedies in U.S. courts for human rights violations for conduct
committed outside the US
o Constitutional
o Statutory
 Weird Act passed by 1st Congress
 ATS disappears until 1979 - Filártiga v. Peña-Irala case
 Son was disappeared and killed in Paraguay, couple escapes to
Brooklyn
 Couple sees Military leader who killed their son, and brings case to
CCR
 Court argues that District Courts DO have the right to hear cases
regarding violations of the Law of Nations based on ATS
 Then corporations start getting sued…and the Supreme Court says no >:(
 Human rights only apply to State actions
 For ATS cases, have to apply to State action, and then may get
with "aiding and abetting" if they are coordinating with the State
 Much more aggressive and creative lawyering by Big Law firms
since these corporations can afford good council (in opposition to
Paraguayan Police Chiefs)
 ATS Civil Action Checklist
o Does the Court have the jurisdiction over the case?
 Subject Matter Jurisdiction?
 Constitutional basis for passing statute?
 Not diversity jurisdiction
 Not federal question (can be finessed)
 Personal Jurisdiction?
 Depends on the facts of the case
 Statutory
 District Courts shall have jurisdiction
 Cause of Action? (license to sue - someone has liability if they violate X
Statute)
 Defense in Sosa argues that the Statute doesn't provide cause of action
 Facts of Sosa
 Dr. Alvarez was a doctor who kept US DEA agent alive so
he could be tortured longer
 US DEA finds this guy in Mexico, kidnaps him in Mexico
and arrests
 Tried and acquitted in US, Dr. Alvarez then brings a ATS
suit against Mexican officials, and civil suit vs. US DEA
cases
 Claims arbitrary detention

57
  Defense claims "No Cause of Action" and Supreme Court
disagrees
 Court says Congress should make Cause of Action, but they also say for
the ATS, the Courts can provide the Cause of Action (using
history/background)
 Also - 24 hours of arbitrary detention doesn't cut it
- Sosa Argument - "No Cause of Action for ATS"
o But, if you look at the Statute, there IS a cause of action (although implied)
o Torture Victim Protection Act
 Sees issues w/ ATS and writes in "cause of action"
o This language is not in ATS
 Allows Sosa to argue that the Statute only establishes jurisdiction and does
not expressively give cause of action - w/o cause of action expressively
written, can't bring a case
 THERE HAS TO BE A STATUTE GIVING A CAUSE OF ACTION
 If this argument wins - everything ATS is eliminated
 How does the Supreme Court handle this?
o Pre-positivist era (CIL is law to be discovered)
 Federal Courts would use their common law power to develop cause of
action
 By giving them the ability to hear the case, the Congress expected
the Courts to look to CIL and use their common law making power
to supply the cause of action
 Rule that you need Congress to supply "cause of action" is
a 20th century idea
 Issue: We don't like judges having unlimited powers to
create laws - invitation for Courts to start supplying causes
of action?
 Upshot: Courts can make causes of actions, but is limited to actions similar to what the
First Congress would have thought of when creating causes of actions
o Piracy
o Safe Conduct (temporary one-time passport)
o Rights of Ambassadors
 Seen as a national security issue
 Court says these three things are united by specific and obligatory CIL - command a
consensus of all the States AND are relatively specific
o To fashion a Cause of Action under the ATS, the CIL must be
 Command a Consensus of All (or vast majority) of States
 Be relatively specific

- What about corporate companies?

o Merits
 Cause of Action Redux
 Aiding and Abetting for Corporate Companies
o Classic case - Kiobel

58
  Facts: Nigeria is committing human rights violations against its
citizens opposing pipeline - oil company is aiding and abetting
the torture/extrajudicial killing
 Human Rights Law has a State Action Requirement - can't
sue companies
 To get corporate actor, can say Company is aiding and
abetting State actor
 Issue: Where is the law "aiding and abetting"
coming from?
 Customary International Law?
 Federal Common Law (Henry Friendly
Style)
 Extraterritoriality
o Kiobel goes to SC, they turn it into an extraterritoriality issue (why is a
Nigeran citizen suing a company operating in Nigeria in the United
States?)
 Rule: Touch and Concern Rule: (ATS cases can only go
forward if they "touch and concern the territory of the
United States")
 Breyer argues US actions abroad should count
 Presumption against extraterritoriality - only if
Congress intends/in the Statute
 Doesn't apply to the ATS since the crimes being violated are
UNIVERSAL
o Jesner
 Court confronts corporate liability
o Rule: No liability for foreign corporations since it would
undermine US interests
 Undermine original understanding!
 Suits against East India Corporation
o Doe v. Nestle USA
 Sued for facilitating child labor in Cote d'Ivoire
o Throws out on the facts, but leaves open possibility of suing
DOMESTIC corporations
Sideways Incorporation
- Case: Cambodian immigrant (after committing manslaughter) can't be deported to
Cambodia even though he is Cambodia
o Category 1 - must be released within 90 days
o Category 2 - if committing aggravated felonies, may be detained beyond 90 days
 Gov. Position - can be detained indefinitely
 If arguing for the Cambodian - Beyond 90 days DOES NOT MEAN
INDEFINITELY
 Constitutional avoidance - want to avoid 8th amendment issues
 Also - CIL against prolonged arbitrary detention
 Charming Betsy Doctrine

59
 o Murray v. Schooner Charming Betsy, 6 US 64 (1904)
 When Court is confronted with an ambiguous
statute, they shouldn't construct the statute to be
in violation to CIL (if at all possible)
 "Canon of Construction"
-

Case Studies
 Filartiga
o Two Paraguayan citizens resident in US brought suit against former police chief
also living in the US, alleging torture and murder of their family, and argued that
US courts had jurisdiction over their suit under ATS
o Court held that ATS (which allowed jurisdiction in the federal courts over suit
between two aliens) was constitutional
 Law of nations has always been part of federal common law
 Contemporary law of nations had expanded to include prohibitions on
state-sanctioned torture
 Sosa
o First SCOTUS case addressing the ATS, from 2004
o ATS does not create a cause of action but instead merely furnishes jurisdiction for
a relatively modest set of actions alleging violations of the law of nations
 Such actions must rest on norm of international character accepted by
civilized world and defined with specificity comparable to features of the
18th-century
o In this case, a single illegal detention of less than a day, followed by the transfer
of custody to lawful authorities and a prompt arraignment, violates no norm of
CIL so well defined as to support the creation of a federal remedy
 Treaties
o Sosa repudiated the ICCPR as a source of law under ATS
o Similarly, courts have held that economic, social and cultural rights are too
indeterminate to satisfy the specificity requirement
 E.g. Right to life and to health are too indeterminate to constitute a cause
of action under the ATS
 What is okay?
o Torture; cruel, inhuman or degrading treatment; genocide; war crimes; crimes
against humanity; summary execution; prolonged arbitrary detention; forced
disappearance
 Kiobel
o PLs (Nigerians) argued that Royal Dutch Shell compelled its Nigerian subsidiary
to brutally crush peaceful resistance to aggressive oil development in Nigeria
river delta
o Court rules that there is a presumption against extraterritoriality in ATS
 Implausible that First Congress would have wanted to make the US a
uniquely hospitable forum for the enforcement of international norms

60
  Addressing ATS question on the Exam
o Is the human rights violation one that:
 Commands consensus of civilized world and
 Is specific
 Find this either in human rights instruments or their interpretation
o Presumption against extra-territoriality
 Presume that statute won’t apply abroad unless it touches and concerns the
territory of the United States

VIII. INTERNATIONAL HUMANITARIAN LAW

 Human Rights Law and Laws of War on opposite continuums

 Peace => Crime => Rioting => Emergency => Terrorism => Insurgency => Civil War =>
War
 [Criminal Justice] [Armed Conflict]
 Human Rights Law__________ _ _ _ _ _ _ _ _ _______Laws of War

 So who decides which model to apply to begin with?

o If you apply criminal justice, then human rights will limit what you do
o If you apply armed conflict, laws of war will limit what you do
o As a practical matter, the decision is the State’s
 Individual liability => unlike human rights (mostly state-focused), laws of war apply to
states and individuals

Introduction
- Humanitarian Law/Law of War is significantly older than Human Rights law
o Goes back to antiquity in many ways
o Born alongside modern international law with Treaty of Westphalia
 Why did it develop earlier than human rights law?
 Reciprocity => best way to ensure good treatment of your soldiers
is by treating the enemy’s soldiers well
 Laws of War traditionally broken down into two categories
o Jus in Bello
 Laws within a war; how to fight a war
 Deals with things like not targeting civilians, treatment of POWs, etc.
 Geneva Conventions
o Jus ad Bellum
 Laws against war; rules with regard to when a state can used armed force
against another state
 UN Charter (Article 2(4)), Art. 51
 Sources of the laws of war (aka humanitarian law)
o Customary international law

61
  The original source for laws of war in the 17th and 18th centuries
 Rested on two basis
o State behavior (reciprocity-driven rules)
o Reflection of natural law principles in state behavior
 Natural law piece of international law has dropped
out, except for jus cogens arguably
o Treaties
 The primary source today
 Seen largely as codifying customary humanitarian law
 Reciprocity still the foundation
 Primary six treaties
 Geneva Conventions of 1949
o Attempt to update and elaborate the laws of war after WW2
 Four Geneva Conventions
o (1) Wounded soldiers
o (2) Sailors and ship-wrecked at sea
o (3) POWs
o (4) Civilians
 Basically universally ratified
 Two protocols meant to update Geneva Conventions in 1977
 Protocol I
 Protocol II
o Regarding victims of non-international conflicts

o Core Principles of the Laws of War

 Humanity
 Is it “cruel or unusual?”
o Not cruel death (not gas/napalm)
 Necessity
 Speaks to the principle that you can only use the amount of force
necessary to achieve a legitimate military goal
 Proportionality
 Protocol I, Article 35 introduces the principle of proportionality
 Laws of war reflect the general commitment to proportional
responses
 Discrimination
 Idea of the laws of war is to render humane what is inherently
inhumane
 Discrimination is the principle that military forces should, as much
as possible, not target non-combatants, civilians, non-military
property
o Non-military property => hospitals, etc.
o However, this is not a strict liability rule
 Duty to take reasonable efforts to discriminate
 Reasonable efforts to target accurately
62
 o Reasonable efforts to use the types of weapons that permit
discrimination
o If the only way to attack an enemy position is by possibly
endangering a civilian position, then that’s okay
 E.g. Hezbollah putting rockets near a hospital and
firing them into Israel
 In this situation, it would be Hezbollah committing
the war crime, not the Israelis firing back
 Hypo: Drone Strikes in Yemen?

Case Study: Prisoners of War

 Who is a combatant vs. a non-combatant
 Wearing a uniform or identifying article
 Carrying arms openly
 Abiding by the laws of war
 Subject to a unified chain of command
 Incentive structure in the Geneva Conventions
 If you follow these rules, act as a combatant should, you are
protected if you are captured
 Given food, underwear, lodging, cigarettes, etc.

- Geneva III and "Global War on Terror"

o POWs
 Who? - soldier for a state actor (Art. 4)
 Armed forces/paramilitaries?
o If you're fighting with a State but not a part of the chain of
command, are they entitled?
 Militias? In order to qualify as a POW, you need to meet 4
conditions.
o Fixed chain of Command
o Fixed sign/insignia that distinguishes from civilian
population
o Open arms (guns)
o Follow laws of war
 Who's not?
o Spies and saboteurs since you cannot distinguish them
o What's the point? - Protecting the civilian population
- Process Protection (Art. 5)
o Under Geneva Convention, there's a process protection - there must be some sort
of neutral review/assessment of the person to see if they're a spy/not a spy (to
determine if they're eligible for POW rights)
- Protections for POWs
o Art. 17 - all information you have to give is name, rank, and serial number
o Art. 27 - Underwear

63
 o Art. 28 - Tobacco
o Art. 38 – Sports

- Hypos - which rights apply?

- IRA - human rights
o British Govt. does not want to concede that the IRA is "non-State actors"
o They're just "common criminals"
o States use their "emergency system," in order to derogate from human rights laws
- Al Qaeda - Common Art. 3 + human rights
o No GC, because they're a non-State actor and don't meet paramilitary
qualifications
Common Art. 3 - people who are "outside of combat" and "put down their arms"
get non-derogable rights (relating to non-international armed conflict)
 Can't be tortured, summarily executed, must be treated with a "minimum
amount of human dignity," and if put on trial, must be put on trial by a
court that employs due process protections
 BUT can be interrogated
 Preface of Common Art. 3 - in armed conflicts not international in nature
 Common Art. 3 didn't apply to 9/11 because it WAS
international…Bush argument in Hamdan v. Rumsfeld
o Essentially, Guantanamo was a law free zone
o This is egregiously wrong for an international lawyer:
international means BETWEEN STATES (Bentham,
who coined the term)
 What the Supreme Court said in Hamdan
- Taliban – probably POW, Genevan Convention
- Wehrmact – POW

What about the "right to life” in human rights law?

o Lex specialis - the more specific right applies when there's two conflicting bodies
of law

IX. INTERNATIONAL CRIMINAL LAW

Background and History

- Nullem Crimen Sine Lege Problem after WWII - (you cannot have a crime unless there is
law)
o Problem of ex-post facto statute

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  Some of the charges at the War Tribunals were NOT established as crimes
in criminal war
 For many, the primary charges were "waging wars of aggression" -
although not as much of a problem (Kellogg-Briand pact had
outlawed war)
o Responses to this issue
 Custom pre-exists (to prohibit crime against humanity/genocide)
 Domestic German Law as well
 International law categorically different?/demands of nullem
crimen sine lege isn't as strong as in domestic law
 Fundamental Justice as trump
 Two fundamental values - it seems fundamentally unjust to impose
ex-post facto laws BUT
 It's also unjust to COMMIT GENOCIDE AND CRIMES
AGAINST HUMANITY
- Nuremburg/Tokyo -> ICTY/ICTR -> ICC
o Desire to have a permanent court after not wanting to have to wait for terrible
crimes to happen in order to prosecute these laws
 Leads to the Rome Statute
 Codifies international criminal law

Substantive Crimes
- Genocide (Art. 6)
- Crimes Against Humanity (Art. 7)
- War Crimes (Art. 8)
- Crimes of Aggression (Art. 8 bis)

Genocide
- Article 6 of the Rome Statute defines genocide as:
o [A]ny of the following acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group, as such:
o (a) Killing members of the group; (b) Causing serious bodily or mental harm to
members of the group; (c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part; (d) Imposing
measures intended to prevent births within the group; (e) Forcibly transferring
children of the group to another group.

Crimes Against Humanity

- Article 7 of the Rome Statute defines crimes against humanity as:
o [A]ny of the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack;
o (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible
transfer of population;
o (e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery,
enforced prostitution, forced pregnancy, enforced sterilization, or any other form
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 of sexual violence of comparable gravity; (h) Persecution against any identifiable
group or collectivity on political, racial, national, ethnic, cultural, religious,
gender as defined in paragraph 3, or other grounds that are universally recognized
as impermissible under international law, in connection with any act referred to in
this paragraph or any crime within the jurisdiction of the Court; (i) Enforced
disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a
similar character intentionally causing great suffering, or serious injury to body or
to mental or physical health.

War Crimes
- Article 8 defines war crimes as breaches of the Geneva Conventions, the Hague
Conventions, Common Article 3 of the Geneva Conventions, and “[o]ther serious
violations of the laws and customs applicable in armed conflicts not of an international
character, within the established framework of international law.”

ICC
- Preconditions for Jurisdiction (art. 12(2))
o On territory of State Party
o State of the Accused
- How are Investigations Initiated?
o State Party Referral
o Security Council (but delay)
o Prosecutor (but State has to shield)
 Subject to Art. 17
 Prosecutor can only bring forth an investigation if the State below is
"unable or unwilling" to bring forward a proper investigation
(complementarity)
 That determination is left to the Pre-Trial Chambers
o On that ground, the US argues not enough protection for
their troops
Practice
- African Focus
o DRC, Uganda, Darfur/Sudan, CAR, Kenya, Libya, Cote d'Ivoire, Mali, CAR II,
Georgia, Burundi, State of Palestine, Bangladesh/Myanmar, Afghanistan,
Philippines, Venezuela

X. WOMEN’S RIGHTS

CEDAW is a departure from previous human rights approaches

 Has an aggressive, equality approach
 Pressure coming from US/Western Europe
o Imperialist issues?
 
Anti-discrimination is one of the main principles of human rights treaties

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  So why do we need CEDAW?
o Challenges in positions that women face as social construction/biological
functioning
o Bundle of challenges that face women simply because they're women
 Inequality in birth rates/abortions
 
CEDAW Overview
 Background
o Culmination of conferences and other instruments
o 1979 open/1981 effective
o Work dates back to 1946
 
General Themes
 Equality, not merely anti-discrimination
o "not discriminating based on Gender" is not the same of Equality
 Negative > Affirmative
o Greater emphasis on affirmative duties of States
 Must progressively improve in eliminating discrimination
 De facto vs. De jure, i.e. State's unintentional discrimination, or discriminatory effects of
its actions
 Public v. Private
o Both as to discrimination and equality
 Trying to deconstruct barrier between private and public sphere
 
Scope
 Representation Reinforcement
o Vote (7)
o Represent Countries (8)
 Nationality (9)
 Reproductive Rights
o Maternity (4, 5)
 Culture and "Private" Sphere
o Education (10)
o Employment (11)
o Health Care (12)
o Marriage (16)
 

CEDAW and Equality

 Discrimination (And Equality Defined) - Art. 1
o Discrimination is Any Distinction
 (1) That diminished Women's Equality
 (2) In Public or Private Sphere
o Civil and Political Obligations - Art. 2

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  To Promote Equality
 Constitutional Reform
 Legislative Reform
 Judicial Enforcement
 Refrain from Discrimination
 Eliminate Private Discrimination
 Repeal discriminatory penal laws
o Social and Economic Obligations - Art. 3
 Guarantee equality in political, social, economic, and cultural fields
o Affirmative Action - Art. 4
 Temporarily OK
 Short-term solution, but ultimately not the long-term goal
o "Culture Smasher" - Art. 5
 Culture can't be used as an excuse!
 
Focus - Marriage - Art. 16
 Most heavily reserved article
o No discrimination within marriage
o Consent
o Same rights during and on dissolution
o Same rights and duties as parents
o Same rights to decide spacing
o Same custody rights
o Same personal rights (e.g. name, profession)
o Same property rights

CEDAW Reception - "West vs. Rest"

 189 Ratifications
o But see Iran, Tonga, Palau, Sudan, Tonga, US
 But RUDS
o Arab World
o Latin America
 US Resistance - Constitutional or Cultural?
o Official Version: A-Cultural
 Proposed Federalism RUD
 I.e. Constitution refers family matters to States
 OR?
o American Culture: Outsiders undermining US family

Universalism/Cultural Relativism – Gender

- Challenges of Cultural Relativism are particularly salient in two areas
 Women's Rights
 Conflict between International Human Rights and Religion

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Foundational Debate
 Is Universalism imperialistic?
 Is Relativism repressive?
 
Higgins view: "my mini-imperialism is fine as long as I persuade others peacefully to join me"
 
Flaherty's view? This question is above my paygrade, I'm just a lawyer
 Positivist defense: Nations signed human rights treaties, they need to abide by them
o Can retreat to this in response to pushback against concept of universalism
 
Other basis for universal claims?
 Religion / Divine
 Positivism
 
Claims of Relativists - all universalist claims are social constructs and products of their
time/place
 Human Sacrifice/Aztecs? Who are we to say human sacrifice is wrong when we didn't
live in the Aztec's time period?
 Universalism is a Western concept
 
 Duty to listen to a multiplicity of women's voices but also putting forth universal norms
o Example: Significant support for FGC in West Africa
 
What universalist claims does FGP violate?
 Right to bodily autonomy
 Right against torture/cruel treatment
 Rights for children
 
But there is Cultural Support!
 Women "need" cutting culturally to get married
 Also, beauty standards
o Compares to nose rings, braces, ear piercings
 Who are we to define what's beautiful in another culture?
 Identity: This is a part of our cultural heritage. Who are you to tell us we're wrong?
 Also, trying to change norms can have unintended consequences
o Women's inheritance
 Inheritance generally goes to Husband's family, and family in turn takes
care of widow
 If you get rid of this practice, widows have no help, causing more
immediate harm
 
Where does this leave us? Should we not be concerned with FGM?
 We should!
o Coercion is coercion - just because its inside the culture doesn't make it bad

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The fact that something is so cultural embedding is enough to put pause on "going in guns a
blazing" to deal with cultural issues, like FGC.
 To solve issues, come up with more holistic strategies
o Need to look at all aspects when coming up with strategies
 
Cultural relevance critiques are helpful with implementation, not in assessing norms
 "Gun's a-blazing" technique is not helpful, particularly from outside influences
o "Who the hell are you to talk about my culture?"
 
Are human rights law/mechanisms the best way to diminish certain practices, or can there be
other lenses?
 Health
 Scientific facts
 Don't take cultural claims at face value - Study the Culture on the Ground
 Make sure individuals from the group you're aiming to assist are participating in the
conversation
o Local women participating in FGC conversation

XI. HUMAN RIGHTS AND BUSINESS

Corps. And Int. Law 

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  Modern Problem: e.g. Rana Plaza, Bangladesh 
o The building collapsed 
 1,134 deaths, 2,500 injured 
o Similar to the Triangle Shirtwaist Factory Fire in NYC 
 Hard to regulate labor laws 
o "Race to the Bottom" 
 If one State has strong labor laws, business will move
elsewhere 
 Problem Areas 
o Extractive industries 
 Forced labor 
o Garment industries 
 
Question: Powerful transnational actors that rival State actors in power 
 What if anything does international human rights law have to do with these
practices? 
o Issues: IHR law regards STATE action, not private action 
 One step removed 
 In Rana Plaza, Bangladesh would have to be the one
held accountable (which would make it difficult to
hold anyone accountable) 
 The Problem? : The Westphalian System 
 
 
CSR to Environmental Sustainability and Governance Standards to Human Rights ("thickest" if
one could apply IHR to corporations) 
 
Because of the issues with Westphalia, soft law has been the approach 
Attempts to Regulate 
 International Legal Organization Conventions 
o Widely ratified on forced labor, unionization, discrimination, child labor 
 Concentration on "core values" that command consensus 
o Poorly ratified on wages, conditions (health/safety) 
 Guidelines from Orgs. For Economic Cooperation and Development (rich nations) 
 UN Global Compact 
o Trying to get States/NGOs/others to develop 10 basic principles 
 Major point - corporate monitoring 
 
 
HRC - United Nation Basic Principles on Business and Human Rights 
  Ruggie in Depth  
 Three Pillars 
o State Responsibility to Protect Human Rights
o Corporate Responsibility 
 Due Diligence 
 Policy  

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 Impact 
Integration 
 Do no wrong 
 Levels of complicity 
 Remedies 
o Judicial and non-judicial 
o Company  
o Investors 
Does not define human rights violations 
 Doesn't read like law 
And Universities 
 Actors 
o Private v. Public 
 Are academic institutions businesses? 
 Greater or lesser responsibilities? 
 Faculty v. Administration 
 Students 
o Education Department/Ministries 
 Foreign/Domestic 
 The Problem(s) 
o "Offense" - duties on Universities as they partner abroad? 
 Yale in Singapore 
 Did not allow student political
protests/organization 
 NYU in China 
 Non-academic freedom issues 
 NYU in Abu Dhabi 
 Labor issues in the Gulf 
 Labor Rights violations as the
NYU in Abu Dhabi campus
was built 
o "Defense" - duties on Universities to ensure free speech on their own
campuses? 
 Confucius institutes  
 Mandarin and Chinese Studies 
 Institutes established by China all around the world
on various campuses 
 Trying to chill criticism of China's actions in China 
 Self-Censorship 
 Visa Denials 
 Possible Content of Code? - Flaherty's view 
o Due diligence 
 Use campus human rights institutes (HRI, SIPA, etc.) 
o Alternatives 
 Going to a different place with a better human rights record? 
o "Do no harm" 

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 o Promote human rights 
o Defend Victims 
 E.g. Academics in China being disappeared and tortured

XII. HUMAN RIGHTS AND DEVELOPMENT/TRANSNATIONAL DUTIES

Transnational Obligations? 

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  The Problem: Do rich first-world nations have an obligation to help other nations in
development? 
o Education: Sweden v. Haiti 
o The Westphalian System 
 The answer is no 
o The Development Approach 
 
 
 Theoretical Critique and Foundation 
- Rawls: Job of political theorists is to articulate a system "out of reach" but realistically
could be reached 
o The role of a "realistic utopia" 
o Rawls Theory of Justice 
 Justification for the Western welfare State 
 Nutshell: 
o Starts with the Original Position, where one is behind the
Veil of Ignorance 
 You don't know gender, race, intelligence, size, etc. 
 You are mildly and reasonably risk-adverse 
 Question: What kind of rules or principles do you
want prescribed in society? 
 Rawl's Assumption: Individuals would want
to come up with a society that is more fairly
distributed and comes up with two
principles 
 Equal Access to Liberty (non-discrimination
principle) 
 The Difference Principle: Any inequality
gap must benefit the least advantaged 
o If giving the 1% more means that the
99% makes less, then this violates
the principle 
 If the 1% wants to make a ton
of money, the 99%'s incomes
need to rise as well 
 
o Issue: Original Position Global or Westphalian? 
 Rawls Law of Peoples: Westphalian 
 Macedo: the moral benefit of self-government 
 Rawls assumes the original position should not be
ran globally, but took advantage of the fact that
States have boundaries 
 Beitz et al: 
 No reason not to go global  

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 No compelling reason to say where one is born
should determine something but race, gender, etc.
should not 

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