International Human Rights

INTERNATIONAL HUMAN RIGHTS

COURSE OUTLINE

Fall 2010

International concern for the protection of human rights has its roots in humanitarian law and a few agencies created after World War I (1914-1918). The promotion and protection of human rights within the municipal legal systems of countries of the world gained momentum after World War II (1939-1945), and—as far as international law is concerned—in particular through the activities of the United Nations Organization, various regional organizations such as the Council of Europe and the Organization of American States, and a number of specialized agencies such as the International Labor Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO).

In this course we shall first of all attempt to define international human rights in view of the historical development of the human rights paradigm. In this conceptual part of the course, the problem of universality and relativity of human rights, and the right to self-determination of peoples, will require special attention.

In the second part of the course, we shall analyze the development of the promotion and protection of human rights within the international arena, deviding the same into three categories of organizations: the one operating in global perspective (The United Nations); regional organizations (the Council of Europe, the Organization of American States, and the African Union); and specialized agencies (with special emphasis on the ILO).

The United Nations has been instrumental in developing international norms for the promotion and protection of human rights on two distinct levels: through organs of the United Nations, in particular the Human Rights Council; and through committees established in term of a number of international human rights treaties, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. In dealing with those two categories, emphasis will be placed on enforcement mechanisms provided for in the concerned agencies for the promotion and protection of human rights; and as far as treaty-based promotion and protection of human rights are concerned, we shall concentrate on those international instruments ratified by the United States. We shall also deal with a selected number of substantive issues, notably international norms pertinent to Freedom of Religion or Belief and Rights of the Child.

As far as regional organizations are concerned, we shall deal briefly with the European system and in greater detail with the one obtaining in the Americas. Here, too, the emphasis will be on the position of the United States within the American system for the promotion and protection of human rights, with reference to opinions of the Inter-American Commission on Human Rights relevant to the human rights record of the United States.

Norm creation by specialized agencies in the area of human rights is a subject in its own right, and due to time constraints we shall only touch upon structures of the ILO and UNESCO for the promotion and protection of human rights.

Class attendance is mandatory. For grade purposes, students shall be given the option of either writing an essay on an approved subject (approximately 20 typed pages), or writing an in-class test (three hours); with this important proviso: students who do not attend all lectures (with only one or two exceptions for good reasons) and actively participate in class discussions will not be permitted to write an essay in lieu of the in-class test. Essay topics must be approved within three weeks of the beginning of lectures.

A. General Introduction

(August 24 and August 26)

1. Human rights defined

Johan D. van der Vyver, The Doctrine of Human Rights: Its Historical and Philosophical Foundation, Johan D. van der Vyver. The Binding Force of Economic and Social Rights Listed in the Universal Declaration of Human Rights.

(a) Historical/theoretical foundation.

(b) Legal foundation.

(c) Definition of “human rights”.

(d) Classification of rights.

2. Practical manifestations of the Theory of Human Rights

(a) Constitutional bills of rights.

(b) International norms for the promotion and protection of human rights:

(i) Before World War II.

(ii) After World War II.

3. Structures for the promotion and protection of human rights

(a) The global organization: The United Nations Organization.

(b) Regional organizations.

(c) Specialized agencies.

B. Universality and Relativity of International

Human Rights

(August 31, September 2)

Johan D. van der Vyver, Universality and Relativity of Human Rights: American Relativism, in 4 Buffalo Human Rights Law Review, pp. 43-78 (1998).

Pay special attention to: (a) The Criminal Code of Iran

(b) International human rights commitments of the United States.

C. The Right to Self-Determination of Peoples

(September 7 and September 9)

Johan D. van der Vyver, The Right to Self-Determination and Its Enforcement, in 10 ILSA Journal of International and Comparative Law, pp. 421-36 (2004).

United Nations Declaration on the Rights of Indigenous Peoples, 2007.

Pay special attention to: (a) The principle of self-determination as applied to the peoples of Quebec.

(b) Self-determination and the right to secession.

(c) The right to self-determination of religious communities, with special reference to the United States.

(d) Female genital mutilation and the right to self-determination.

D. The Promotion and Protection of Human Rights

in Global Perspective: The United Nations

(September 14, and September 16)

Charter of the United Nations Organization, Preamble and arts. 1, 13, 55, 56, 62, 68, 76.

Universal Declaration of Human Rights.

Sei Fujii v. California, 38 Cal.2d 713, 242 P.2d 617 (1952).

1.  The United Nations in General

(a) The Universal Declaration of Human Rights.

(b) U.N. Charter, in particular Articles 55 and 56.

(c) Sei Fujii v. California, 38 Cal.2d 713, 242 P.2d 617 (1952).

2. The Security Council

U.N. Charter, arts. 24, 25, 39-43.

Pay special attention to: (a) The question whether or not (i) the Universal Declaration of Human Rights and/or (ii) Articles 55 and 56 of the U.N. Charter entail binding obligations;

(b) The question whether or not the human rights provisions in the U.N. Charter are self-executing in the United States; and

(c) The function of the Security Council to impose sanctions against States whose human rights violations constitutes a threat to international peace and security.

E. The Promotion and Protection of Human Rights

in Global Perspective: The Human Rights Council

(September 21, and September 23)

ECOSOC Resolution 728 F (XXVIII) of 30 July 1959.

ECOSOC Resolution 1235 (XLII) of 6 June 1967.

ECOSOC Resolution 1503 (XLVIII) of 27 May 1970.

Sub-Commission on the Prevention of Discrimination and the Protection of Minorities Resolution .1 (XXIV) of 31 August 1971.

General Assembly Resolution 251 of 15 March 2006.

Judgment of the Israeli High Court in the case of Mara’abe et al. v. Prime Minister of Israel et al. (15 September 2005).

Pay special attention to: (a). In what respects the Human Rights Council differs from the Human Rights Commission;

(b) Responses of the Human Rights Council to the Violation of Human Rights in Palestine; and

(c) Israeli litigation in regard to the security wall under construction in the occupied territories..

F. The Promotion and Protection of Human Rights

in Global Perspective: U.N. Sponsored Treaties

(September 25 and September 30)

1. Covenants and Conventions ratified by the United States

(a) Convention on the Prevention and Punishment of the Crime of Genocide, 1948.

(b) Convention on the Elimination of All Forms of Racial Discrimination, 1965.

(c) Covenant on Civil and Political Rights, 1966.

(d) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

(e) Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 2000

1. Covenant and Conventions not ratified by the United States:

(a) Covenant on Economic, Social and Cultural Rights, 1966.

(b) Convention on the Suppression and Punishment of the Crime of Apartheid, 1973.

(c) Convention on the Elimination of All Forms of Discrimination Against Women, 1979.

Pay special attention to:

(a) Different enforcement mechanisms provided for in the human rights covenants and conventions;

(b) The distinction between enforcement mechanisms in treaties comprising criminal sanctions and the other;

(c) The enterprising provisions of the Torture Convention.

G. Freedom of Religion or Belief

(October 5)

Johan D. van der Vyver, Limitations of Freedom of Religion or Belief: International Law Perspectives, in 19 Emory International Law Review, pp. 499-537; Johan D. van der Vyver, Declaration of the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (unpublished).

Pay special attention to: (a) The distinction between the right to believe, and the right to manifest one’s religion or belief.

(b) The right to change one’s religion or belief.

H. International Protection of the Rights of the Child

(October 7)

Johan D. Van der Vyver, International Standards for the Promotion and Protection of Children’s Rights: American and South African Dimensions, in De Jure (2008–forthcoming).

Pay special attention to: (a) Equal protection and the best interests of the child.

(b) Religious rights of the child.

(c) International principles of juvenile justice.

I.  Freedom of Speech

(October 12)

HRC Communication No. 104/1981: J.R.T. & the W.G. Party v. Canada.

HRC.Communication No. 736/1997: Malcolm Ross v. Canada.

HRC Communication No. 550/1993: Robert Faurisson v. France.

Pay special attention to: (a) The distinction between international and American perceptions of freedom of speech

F. The Promotion and Protection of Human Rights

in Regional Perspective: The European System

(October 14, October 19, and October 21)

1. The Council of Europe

European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950;

The Sunday Times Case, 1979; Soering v. The United Kingdom, 1989; Ireland v. The United Kingdom, 1978.

Pay special attention to: (a) The procedures for the enforcement of human rights provisions under the European system; and

(b) Jurisprudence of the European Court of Human Rights pertaining to freedom of the press, cruel and inhuman treatment or punishment, and extradition constraints.

2. The Organization for Security and Cooperation in Europe

T. Jeremy Gunn, The Organization for Security and Co-operation in Europe and the Rights of Religion or Belief, in Protecting the Human Rights of Religious Minorities in Eastern Europe, 222-50 (eds.) Peter G. Danchin & Elizabeth A. Cole (2002).

Pay special attention to: (a) The political rather than the legal character of the OSCE’s human rights regime;

(b) The role of implementation and review meetings of the OSCE;

(c) The linkage of human rights and security; and

(d) The role of NGO’s

G. The Promotion and Protection of Human Rights

in Regional Perspective: The Inter-American System

(October 26 and October 28)

American Convention on Human Rights, 1969;

Advisory Opinion In Re the Death Penalty in Guatemala, 1983;

The Case of Willie L. Celestine, 1989;

The Case of James Terry Roach & Jay Pinkerton, 1987;

The Case of Michael Domingues, 2002;

The Case of Ramón Villareal, 2002;

Pay special attention to: (a) Jurisdiction of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights;

(b) The status of the United States within the Inter-American system; and

(c) Jurisprudence of the inter-American Commission on Human Rights pertaining to the United States, notably in regard to juvenile executions, racial discrimination, and application of the Vienna Convention on Consular Relations.

H. The Promotion and Protection of Human Rights in Regional Perspective:

The African Union and the Association of Southeastern Nations

(November 2)

Christof Heyns & Magnus Killander, The African Regional Human Rights System: The African Charter, in 108 Penn. State L. Rev. 679 (2004).

I.. The Promotion and Protection of Human Rights

Through Specialized Agencies

1. The International Labor Organization

(November 4)

Statute of the International Labor Organization;

Declaration Concerning the Aims and Purposes of the International Labor Organization;

List of Conventions and Protocols in force;

C 111 Discrimination (Employment and Occupation) Convention, 1958;

C 169 Indigenous and Tribal Peoples Convention, 1989;

C 189 Worst Forms of Child Labor Convention, 1999;

C 183 Maternity Protection Convention, 2000;

Pay special attention to: (a) The distinction between conventions and recommendations; and

(b) Procedures for the enforcement of labor-specific conventions.

2. UNESCO

(November 9)

Janusz Symonides & Vladimir Volodin, UNESCO and Human Rights, Introduction, v-xiii (1999).

Pay special attention to: (a) The relationship between human rights and tolerance;

(b) The protection of members of the intellectual community;

(c) The promotion of knowledge of human rights..

H. Enforcement of International Human Rights

1. Through municipal courts

(November 11)

Johan D. Van der Vyver, Prosecuting Offences Against the Law of Nations in the United States, in 20 Emory International Law Review, at 473-518 (2006);

The Genocide Accountability Act of 2007.

2. The International Court of Justice

(November 16)

Avena and Other Mexicans (Mexico v. United States of America), ICJ Judgment of March 31, 2004;

Avena and Other Mexicans (Mexico v. United States of America), Request for Provisional Measures, ICJ Judgment, 2008;

Goldwater v. Carter, 444 U.S. 996 (1979).

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006).

3. International criminal tribunals

(November 18)

Revision