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Table of Contents
Human Rights in US Courts 2
Prosecuting Human Rights Violations in Domestic Criminal Courts 5
Human Rights Claims in Intergovernmental Organizations 6
European Systems for Human Rights Protections 9
Inter-American Human Rights System 10
African Human Rights System 12
Asian Regional Prospects 13
Multinational Corporations and Human Rights 14
International Criminal Tribunals 16
International Criminal Court 17
NGOs 18
Sources of International Law
· Multiple Treaties
· Customary International Law
o Places to look for custom
§ State practice
ú Ex- States don’t claim a right to torture
ú Domestic laws that prohibit the questioned action
§ Influential jurists from around the world
§ Inter-governmental declarations
§ Resolutions/Treaties
ú UN Declaration of Human Rights
ú ICCPR
· Has to be implemented directly into national law
ú African Charter on Human Rights
ú European Convention on Human Rights and Fundamental Freedoms
ú Common Article 3
· Comparative Law
o Common principles tied to an international agreement
· Judicial decisions for highest courts and writings of other countries
Responding to Skepticism that International Law is unenforceable
· Internalization- promoting a culture of compliance to combat violations
· Internationalization- mechanisms that serve as pressure points for enforcement
· Judicial domestication- using domestic courts to enforce IHR when other avenues fail
Human Rights in US Courts
· Alien Tort Statute
o Gives jurisdiction in Federal Court to tortious violations of the law of nations and treaties
§ Domestic law is not a defense to a breach of international law
ú But remember that a government mistreating its own citizens is not a violation of international law
§ There has to be enough state action to make something a violation of the law of nations
ú How to tie act to state action
· State ratification or authorization, authority to act, invocation of authority, nature of the job (is subject matter a state function?), compulsion to act?
ú Command Responsibility
o Transitory Tort Doctrine
§ If a person commits a tort in A, the obligation follows him to B. This means anywhere he can be found, the courts of that place should be able to try him for his tort
§ In the US, state courts have general jurisdiction, meaning their only jurisdictional limits are the ones the place on themselves
§ Federal courts only have the jurisdiction given to them by Congress
o How can Congress allow the use of International Law?
§ Incorporation- Paquete Habana case says international law is part of our law and must be administered
§ Interpretivism – interpreting a statute in light of international standards
o What is likely to be actionable under the ATS?
§ Must be “specific, universal, and obligatory”
§ Restatement- Genocide, slavery, kidnapping, torture, cruel/unusual/ degrading treatment, consistent pattern of international human rights violations
§ Other things in an international context- rape, terrorism, sexual abuse, war crimes, crimes against humanity
§ Torture Victims Protection Act- ensures people who are tortured have the same rights as US citizens.
ú Must exhaust local remedies first
ú And requires torture in an official capacity
§ Specific acts under Geneva (CA3)
· Foreign Sovereign Immunity Act
o You can't sue foreign governments for their actions unless an exception exists
o Individual officials are not eligible for sovereign immunity under the statute
o What to look for to see if a person has common law immunities
§ Official status/rank, Acting under color of law?, If there’s ratification of the act by the state, Chronology, Alternative remedy, International illegality
· Corporate Human Rights Cases
o In Karadzic, the court said that some wrongs are per se actionable and don’t require state action- piracy, slave trade, genocide, CA3 violations
o These cases usually involve aiding and abetting/acting in concert
§ Aiding and abetting- practical standard, encouragement, or moral support that has a substantial effect on the carrying out of a crime
o Sosa doesn’t bar actions against private actors, but its only allowed if international law allows it.
o Mens rea for aiding and abetting under Talisman is that there has to be a shared purpose to commit the tort.
§ Meaning must intend to commit the violations thru aiding and abetting
o Kiobel v. RDS- Corporations in general can't be held responsible for their human rights violations
· Treaty Enforcement in US Courts
o Non-self executing treaty must be implemented domestically by Congress
§ Test for whether a treaty is self-executing
ú Language of present action
· Obligatory and not aspirational
ú Congressional requirements (reservations, understandings)
ú Constitutional requirements
· Like spending which must be authorized by Congress and can't be overridden by treaties
o Uses of non-self executing treaty
§ Illustration of custom and can sometimes bind non-signatories
§ Used for interpretation
§ International obligation might allow alternative forms of enforcement
o Medellin v. Texas rule- Treaties must articulate that they are self-executing to be self-executing. This means most treaties can't pass the test
§ Lower courts read this to mean there’s a presumption that it’s not self executing
· Interpreting International Law Domestically
o Charming Betsy- Domestic statutes shouldn’t be construed in violation of customary international law if a saving interpretation is available
§ If Congress wants us to be in breach, it knows how to do it and otherwise we should stay within international obligations
§ If unavoidable conflict, use supremacy rules (first in time, etc.)
· International Law and the War on Terrorism
o US Nationals can bring Bivens actions or sue for due process violations
o Very little talk of human rights law in this area
o Geneva arguments- language of GC and relevant provisions are self-executing
§ CA3 protects plaintiffs
Prosecuting Human Rights Violations in Domestic Criminal Courts
· Jurisdiction to Proscribe vs. Jurisdiction to Enforce
o Proscribe- authority of the state to make its laws applicable to conduct and status of people
o Enforce- includes the process to carry the prosecution out (sanctions, administrative action)
§ Immunity doctrines may block this jurisdiction
o Can have one without the other- can criminalize conduct abroad without the ability to go over and make an arrest
· Universal Jurisdiction- State with no connection to human rights violator/victim can be involved in a prosecution
o Idea is that some wrongs are so egregious, each state has an interest in combatting it
§ But no standard for determining what is a serious crime in the first place
o Aut dedere- extradite or prosecute. Might be an indicator of universal jurisdiction
o Terrorism cases can't be grounded in universal jurisdiction because there is no international definition
§ Common resistance to using universal jurisdiction in US courts
o International Limits on universal jurisdiction
§ Immunity for incumbent/former ministers of state
ú Ways around this: Home officials waive the immunity, acts committed before/after their official job and charged after leaving office
§ Immunity while defendant is in office
§ Immunity for official acts even if no longer in office
§ Political constraints on its use
Human Rights Claims in Intergovernmental Organizations
· Petitions against Countries in the UN
o Individuals can bring petitions against signatories of conventions in a special committee
§ Members are usually independent experts in that subject
§ Committees require exhaustion of local remedies first.
§ No real enforcement mechanism for decisions
ú Possibly avoidance of shame is enough to motivate countries into action
ú Can ask the country to prepare a report
· Treaty Based Mechanism- State Reports
o States have to report on measures they are taking for implementation consistent with treaty obligations and submit them to the committees of the treaty bodies.
o Committees can ask questions of governments and ask for more information
§ Basically defending a report
o Committees try to encourage more reports on specific issues
§ Mostly because of NGO work
o Problems with this system
§ Overlap in human rights concerns between treaties
§ Alternative- forcing the state to public periodic reports to the Human Rights Council instead to streamline the process
o ECOSOC Commission on HR
§ Examines, monitors, and reports on world-wide HR and country rights
§ Can adopt resolutions, statements, and decisions that express the views of the international community on HR
· Charter-Based Mechanisms (Come from the UN Charter)
o International Court of Justice
§ Authority is to articulate principles that work across all of international law, filtering down to human rights
ú Court has never privileged human rights law over others
§ Only states can appear and are subject to the court, so many human rights cases are never heard here
o Security Council
§ The SC can authorize forcible and non-forcible measures to cure a threat/breach to the peace
§ Passed Resolution 1888- immediate and complete cessation of sexual violence in armed conflicts
ú Value of this? Certain political pressure
ú This is more about drawing attention to a problem than attacking the problem
o Human Rights Council (General Assembly Body)
§ Formerly HR Commission
§ Can create/extend mandates of special rapporteurs
§ Can issue reports (ex- Goldstone Report)
§ HR Council
ú Short term body
ú Membership elected by whole general assembly
ú Sets up Universal Periodic Review
· Reviews the human rights records of all member states by 2011 and then every 4 years after that
· Goal is to get to best practices, and not shame
· Equal opportunity to question the document and be transparent about human rights
ú Complaint Procedure
· Designed to address and inquire about consistent patterns of gross and reliably attested human rights violations
· Hard to represent a client here
o Not anonymous à maximum exposure for the complainant
o Can’t be based on exclusively media reports
o Must exhaust other options
ú Contains several working groups that deal with specific issues
· Working group on situations- brings issues to the council
· Working group on communications- gatekeeper to the WGS
· Each group has 5 members to advise the council who are appointed by regional groups
· Thematic Reporting Mechanisms
o Can help develop the law and bring light to abusers
o Can be used by human rights lawyers to exert UN pressure on governments to get them to address specific violations
o Collect and Archive Global Evidence
§ Reports give insight and promote development of combat strategy
§ Ways to change cultural norms
ú Education, Laws, Economic independence, Sanctions
o Types
§ Working Groups
§ Special Rapporteurs- given broad mandates to deal with specific issues
o Duties
§ Study the problem and report back
§ Can sometimes make recommendations based on those findings
§ Can ask governments to respond, seek invites for country visits, work with NGOs, comment/advise on domestic initiatives, make an annual report
o States under review in the UPR have been inviting these rapporteurs into their countries
o Constraints- resources, jurisdiction of the mechanism might be limited
o Domestic Violence as a violation of human rights
§ Early articulation of developing law understanding of state legal obligations
§ Under CEDAW, it might be discrimination
ú Objectively, it has disproportionate effects on women
ú Subjectively, violence reflects patriarchy
ú Due diligence obligation to investigate and punish violence against women
European Systems for Human Rights Protections
· Council of Europe- 47 Members
o Contains the European Court of Human Rights.
§ Almost universal compliance with these judgments
§ European Convention rights can be infringed if:
· Prescribed by law and not random
· Restriction must pursue a legitimate aim
· Necessary in a democratic society
§ Primary responsibility for enforcing the rights of the convention falls on the individual states
§ Individual victims of human rights can petition for redress under the convention
ú Individual petitions are mandatory
§ Remember “margin of appreciation”- deference to national authorities
o Membership is the gateway to the EU
· European Union- 27 Members.
o Deals primarily with economic issues like trade
o Treaty of Rome
§ Art 7- No discrimination among European citizens
§ Art 48- freedom of movement for workers in the community
§ Art 119- equal pay for equal work by men and women
o EU Charter outlines rights but is not binding law
§ Human rights is an essential element in foreign relations
o Contains the European Court of Justice
§ Frequently looks at human rights principles in resolving issues
§ The rights allowed are probably due process, non-discrimination, right to notice, right of participation
ú Rights that go beyond the Treaty of Rome
o Ways the EU can protect human rights
§ ECJ, Community Ombudsman (policing office to ensure compliance), Fundamental Rights Agency, Harmonization of domestic law, Preventative Diplomacy, Information gathering and dissemination
§ Contonou Agreement- pact with developing nations that if they fail to respect human rights, trade programs can be reduced
· Organization of Security and Cooperation in Europe- 56 members including US and Canada
o Forum for crisis management for post conflict reconciliation.
o Deals with political rather than judicial institutions
o Helsinki Final Act includes freedom of thought, religion, and speech
§ This is not a treaty and its status is open for speculation
§ Extensive human rights presence in Europe
o Human Dimension Mechanism
§ Commitment to full respect for human rights and fundamental freedoms, abide by rule of law, promote democracy by building and protecting democratic institutions, and promoting tolerance
o Institutional Structures
§ High Commissioner on National Minorities
§ Office for Democratic Institutions and Human Rights
§ Representative on Freedom of the Media
§ Office of Special Representative/Coordinator of Combating Trafficking in Human Beings
o Focus Areas