HR Outline: Matua

I. Human Rights Generally
A. International Law as a Source for HR

International law is a regime of norms and standards that governs the conduct of states towards one another. The current corpus goes back to the 15th century and was developed by a handful of European states as a tool to make sure that states peacefully co-existed. Gradually these rules were extended to other parts of the globe and contributed to the form of the Modern State. Modern State means, an entity with rights and obligations to which the state must conform its conduct.

  1. Custom as a Source of International Law

In order for custom to rise to the level of an international norm, that custom must be consistent, general, and practiced by the states in Q out of a sense of legal obligation. The Latin expression for the development of norms by custom is opinio juris.

When a new country is born, it is bound by the custom that predates its birth. If original states were only 10 and now there are 186, why should all of these countries be bound to the customs of the original 10 states? It is actually beneficial b/c it provides a basis for statehood and being recognized by others.

  1. Treaties as a Source of International Law
  1. More recent than custom, treaties can be used to regulate any aspect of international relations.
  2. Treaties only bind those countries that agree to be bound by it, whereas everyone is bound to custom.
  3. Treaties are seen as more democratic.
  4. A series of treaties in the same issue may evolve into custom.
  1. Secondary Sources as a Source of International Law

Writings and views of highly recognized publicists and tribunal decisions have influences the formation of international law. The UN has a judicial system – the ICJ – that settles disputes from a legal perspective. Only states have standing before the ICJ.

B.How These Sources Are Used

  1. The Paquette Habana

Facts: Two fishing vessels from Cuba were on the coast of FL during the time when US (as a result of the Spanish American War) had placed a blockade on the coast. The Cuban fishing vessel was confiscated and sold off as a prize of war.

Significance of this case to HR:

  1. There is no mention of HR in this case – only duty of states to refrain from certain conduct during war.
  2. However, the spirit of the case is humanitarian. Exempting poor people, working people, from the course of war. War should not effect citizens simply trying to make a living. This concern for humanity is the antecedent for HR.
  3. Grows out of a large collection of practices and treaties throughout the 500-year period that coalesces into opinio juris.
  4. In reaching its decision, the Court cited to Calvo an argentine diplomat regarded as one of the pre-eminent scholars in international law to obtain where customary law originated.
  5. Dissent’s opinion that there is no written evidence that fishing vessels are exempt from war is disregarded.
  1. Chattin Case

Note:Serves a basis for humanitarian law but raises Qs of universality.

Facts: Chattin convicted of embezzling 4 pesos from a railroad in Mexico. Bandits broke into the jail, sets everyone free, Chattin escapes and challenges his incarceration. Chattin claims to the US that he was:

  1. Mistreated
  2. Denied a fair trial
  3. Trial was not speedy
  4. Incorrectly arrested

The argument is that there is a high degree of similarity between US due process and due process of international law by which Mexico is bound.

Issue #1 – Is it important that Chattin was not informed of the charges against him (under international law?

Issue #2 – Is it important that Ws were not sworn at the proceeding?

a.The tribunal makes it clear that Ws do not have to be sworn under Mexican and IL – Ws only have to promise.

b.The hearing lasted only 5 minutes and prior to the hearing, the investigation was bad. The longevity of the hearing against international standards was bad. US commissioner used scathe words to say the trial was not enough – they tried to equate CL (jury trial, panel of judges, lawyers on both sides, court is passive) with IL.

Mexican commissioner argued that in Mexico, trial proceedings are different. Mexico relies on the civil law system where the magistrate can participate in the pre-trial investigation, taking an active role. Mexico argues that this case was actually going on for months and the 5-minute trial was only a conclusion.

c.Holding – IL should not require a jury system as the US asserts. IL only requires:

  1. D be able to speak in his own defense
  2. D be informed of the charge against him
  3. Court be impartial and competent
  4. Trial not be unduly prolonged
  1. Minority Schools in Albania

Note: The history of the creation of HR norms has been greatly influenced by law relating to minorities that strikes at the core of the H enterprise (non-discrimination, EP).

Facts: In 1920, Albania joined the League of Nations on the condition that they sign the Minorities Treaty. However, in 1933 all private schools were shut down – including both Greek and Albanian schools. (Note: The Minorities Treaty was limited to life, liberty, and religion. It did not include freedom of ass’n, which allows for minorities to change their positions in society by voting).

The government contended that the proclamation was not discriminatory because:

  1. Both the majority and minority were denied the right to private schools.
  2. Treaties seek to give everyone complete and equal treatment. If you give minorities rights to establish private schools, you are giving them privileges over majorities.
  3. Albania voluntarily agreed to give up its sovereignty so they should be given the benefit of the doubt (weak argument).

Greeks argued:

Abolition of private schools destroys equality for the effect would be to deny minorities an institution for its needs and replace them w/those created by the state.

Holding:

  1. The purpose of the treaty is not equality – its liberty to establish and run its own schools according to its own culture.
  2. If every national is taught the same cirriculum, it would deny cultures and people their own identity.
  3. A regime of equality in law, treats majorities and minorities alike creates apparent legal and formal equality. It does not create a genuine, effective equality. We must allow minorities their own institutions. To have genuine equality you may need to treat groups differently to allow minorities to advance. In a way, discrimination is a good thing – discrimination w/reason.

4.Nuremburg Trials

The NT are known as the birth certificate of the HR movement. It held individuals criminally liable for international war crimes. It was no longer accepted to claim you are innocent as a soldier simply b/c you act under higher orders. NT defined 3 kinds of crimes:

  1. Crimes against peace – Planning or conspiracy of war crimes (jus od bellum)
  2. War crimes – Violations of laws of war.
  3. Crimes against humanity – Treatment on the basis of race, color, or other suspect classification.

The defense argued that you could not persecute D’s for acts that were not crimes under international law. In response, tribunal argued that the enormity of the crimes cried out for justice that they could not see how the D’s could go free. Instead, they argued that war crimes existed before the charter and sentenced the Ds to death. In 1948, the Genocide Convention was passed without opposition – US signed in 1988.

Note:The Allies were careful not to include their own conduct in the Charter that would have been covered in these sweeping definitions. Allies bombed cities and killed civilians, firebombed Japan. Mutua – HR is all about REDEMPTION.

C.Studying HR

The subject of HR can be studied as:

1. Comparative law – not effective because would have to get case histories of every nation.

  1. Practical Application (3 categories):
  1. Study of Norms – acting on the states anchored in international institutions.
  1. Study of Relationships between States and Civil Society – i.e. states and non-governmental institutions. The more space given to NGO’s, the more informed the state is on HR.
  1. State to State Relationships – Industrially developed countries see themselves as guardians of the HR discourse, particularly to help illiberal, non-democratic societies. Industrialized Nations often forgive those nations who have committed grave HR violations based on business interests.

Note: From the point of view of Industrialized Nations, the study of HR applies to only exotic societies. The problems of the W and the US consist ONLY of civil problems, not HR problems.

II. The UN Charter

The UN charter was born out of WWII where good triumphed over evil. The protection of HR could be soon in two areas of the UN Charter:

1. Article 55(c) “universal respect for HR”

  1. Preamble dictates that one of the principle purposes of the UN was to advance respect for HR.

All other HR actions that the UN carries out derive from these 2 sections. The Charter promises a better tomorrow. In order to make the idea realistic there had to be a lot of war, coupled with the development of norms that set standards and develop a definition against which HR violations will be judged.

In 1946, the UN charged the new Commission of HR (Art. 68) with the responsibility of spear-heading action in HR by creating a Bill of Rights, today known as the UDHR, finished in 1948. Soon other organizations began to develop, such as the ICCPR and the ICESCR. Coupled with the UDHR, the ICCPR and the ICESCR became the International Bill of Rights.

Humanity today - Have the promises of the UDHR been fulfilled?

  1. Despite the passage of the UDHR, there have been terrible problems:
  1. Oppressive regimes
  2. Cold war
  3. Racist regimes
  1. Mutua’s views of the past 50 years:
  1. The development of a unit that holds nations to particular standards.
  1. No nation takes public pride in the destruction of HB because of differences.
  1. States and individuals are at least trying to live up to the promise.
  1. The sovereign veil of the state has been pierced. Sovereignty is no longer a defense to misconduct. State conduct w/in its borders is now an international responsibility.
  1. We are still plagued with a parade of horribles, abominations, and cruelties to date. There is a constant struggle between HR and the breach of that promise.
  2. As long as states exist there will be violations.
  1. The reason for HR discourse is to restrain state discourse.

III. International Bill of Human Rights

Components of International Bill of Human Rights

  1. UDHR (1948)
  2. ICCPR (1966), (1976)
  3. ICESCR (1966), (1976)
  4. Optional Protocol (1976)

There are 2 distinct systems:

  1. Charter based:
  1. Those organs have legal authority in the UN charter (Commission on HR)
  2. Applicable to ALL states that are UN members
  1. Treaty-based:
  1. Authorized by particular treaties (i.e. ICCPR has a HR Committee)
  2. Treaties ONLY applicable to those state that have signed the treaty

Hierarchy:

a.UN

  1. UDHR
  2. Covenants (ICCPR, ICESCR)
  3. Conventions

Normative Content of HR Documents (Corpus)

  1. Universality – rejects relativism and seeks to embrace the entire universe.
  2. By virtue of being HB, we are all under its umbrella.
  3. No surrender to difference (regional or cultural). Can’t plead culture as a defense.
  4. PARADOX – at the same time, documents worship respect for differences.
  5. The individual is the starting point for everything, not the community or state. Rights are rarely vested in groups (exception – Art. 1 and 27 of the ICCPR).

Does the corpus express a world view we can identify?

It can be argued that the individual is not the natural starting point of the universe. This is inherent in the culture of the South.

1.Southern Culture:

Many societies in the South created social arrangements, advanced a state where the individual could not become part of the society. Individual could not become so wealthy as to overcome society. There is only so much property you can own. In societies such as Asia and Africa, the group society is stressed. “I am because we are”. I have no existence that is separate from society.

Where there is a clash between group and individual, the group will prevail. The individual cannot exist by himself (atomistic). Southern culture is not locked into the constant struggle with society for the redemption of rights. Disputes must be settled by negotiation – there is no creation of losers and winners. The state may suppress liberties and dissents in the name of the group. Elaborate mechanisms exist to check the power of the authorities. For example, a chief could not proceed without consulting other components. Otherwise the chief of that society would be destooling.

2.Western Culture:

In Western eyes (Marxist philosophy), the state is the embodiment of the will of the people. Because the state is an expression of the embodiment of the collective, whatever the state does is in the name of the people. The state does not exist for the people – it is the people.

In an ideal situation where every individual is asserting their rights, there will inevitably be conflict (Mutua argues that this is not possible). You want to balance rights with duties in order to halt this conflict. Rights cannot exist in a vacuum - your right to speak is someone else’s duty to listen. There needs to be a system of rights and duties that combines the 2 conceptions - Southern (group) and Western (emphasis of the individual) - need to bring the 2 together to create to create a system of freedoms that works. This can be seen in Art. 1 of both the ICCPR and the ICESCR which emphasizes the group right.

In colonialism, a class of local elite developed that worked within the secular economy to run the society. The civilized took on the culture of the settlers while the natives were left behind. Eventually, the local government also penetrated natives (i.e. black Frenchmen). There is this struggle between the two groups – natives are disappearing fast b/c they are no longer governed by their particular values. Are we all destined to become westernized?

Fundamentals of the ICCPR, ICESCRE and UDHR – HR corpus

  1. The HR corpus is based on a fundamental stress of equality – in fact this is the guts of the corpus – if equality was abandoned, the corpus would implode.
  2. Non-discrimination.
  3. Non-derogation or limitations of the rights provided in the corpus. For the most part, the rights are absolute. Where derogation of rights are permitted, it is stated specifically which ones and when. There are rights in the ICCPR that cannot be derogated even in the time of emergency. Many rights are universal, but not all rights are core rights (i.e. core rights are right to life, freedom from torture, right not to be subject to punishment). The whole corpus of HR has not raised to custom.
  4. Hierarchy of Rights – does the corpus favor one set of rights over another (i.e. UDHR)? Article III of the UDHR protects the family – but does it protect the primacy of the man as the head of the house? A lot of the context of these HR documents depend upon how you read it.
  5. The idea of rights has implications for social structures and deep stood biases so that once a society allows itself to become subject to these rights, it becomes difficult to keep the gate to change closed. It is easy to understand why the US has refused to sign some HR documents.
  6. The primary purpose of the corpus is to evade the state from controlling the individual. Today, it is accepted that bodies other than the state can be guilty of HR violations (i.e. religions).
  7. The idea of human freedom is expanding to include more groups and ideas that were not included 10 years ago (i.e. gay rights movement).

Views of Different Scholars

  1. Brownlee – Sovereignty is paramount, and fixed. HR is not able to penetrate sovereignty.
  2. Cassese – Moderate position – HR must effect sov. in some way, but cannot override.
  3. Steiner and Reisman – HR must be able to fundamentally influence society and determine its structure.

A. UDHR

The UDHR was the 1st comprehensive HR document. It is not a treaty – it was adopted by the UN General Assembly to have no force of law. Its purpose is to stand for common standard of achievement for all peoples and nations.

Dispute

  1. Everyone is in agreement that the UDHR is a normative instrument.
  2. The disagreement focuses on Q about whether the rights it proclaims are binding and under what circumstances.
  3. During the 18 years that the 2 covenants were being debated in the UN, the UDHR transformed from a hortatory document to a normative document. A disagreement arose as to whether the obligatory character derives from:
  1. The obligations in the UN Charter – the UN’s consistent reliance on the UDHR when applying HR provisions (Article 55© and 56) compels the conclusion that the UDHR has become an authoritative interpretation of these provisions.
  2. The UDHR’s status as customary law – Repeated reliance and resort on the UDHR has raised it to the status of customary law. However, a careful analysis uncovers that not all of the rights have acquired this status.
  3. Its status as general principle’s of law

The UDHR proclaims 2 broad categories of rights: