ASSIGNMENT 1:______________________________________________________________

Introduction to Human Rights Issues and Discourse

READING
For Class 1, our reading was a series of excerpts from recent news articles and human rights reports on a
variety of subjects. I dont thin that any one of them is of particular importance to the course !and so wont
go through each in detail". #ather, theyre meant to highlight themes that $lston considers signficant%relevant
to the course, supposedly organi&ed in the following order'
1) SPEI!I H"MAN RIGHTS ISS"ES
a" () *efends *etention at $irports
i" +rigins of #ights' ,atural !inherent in all of us" vs. -ositive !recogni&ed by govts, which define
to whom and how far they go". () positivistic view clear in its policy toward nonciti&ens.
ii" .olders of #ights' $ll humans/ Citi&ens/ +nly those w%in governments 0jurisdiction/1
iii" #elationship between intl law and domestic law. .ow to get international standards into
domestic law/
b" .#2 #eport on 3nemy Combatants
i" 4alue of formal legal classifications !.# is about moving from general, normative statements to
the details of what they mean" 4). -roblem of the over5legali&ation of .#
ii" Importance of definitions' 2hat constitutes torture, cruelty, etc./ .# is about moving from grand
normative statements to fine details of exactly what they mean.
iii" *imension of globali&ation, resulting importance of establishing an intl legal regime.
iv" #ole of intl organi&ations
c" 6uantanamo to )tay, says Cheney
i" )entiment that fight against terrorism changes all rules
d" ,o Contractors 7et Face $bu 6hraib Charges
i" Issue of .# abuses by and impunity of private contractors
#) NATI$NA%&%E'E% P$%I( RESP$NSES
a" (8s policy toward nonciti&ens in aftermath of 9::; bombing
i" Counter5terrorism measures by 3( country violating basic .#' exclusion and deportation of non5
(8 citi&ens expressing 0extreme views in conflict with (8 culture of tolerance1
b" 3xpulsion illegal, (, tells Clare
i" .# discourse, in this case by (,, rebuffed by govt frustration with unbalanced focus on rights of
terrorists. ,otion that bombing victims .# more important than terrorists .#.
c" $fghan abuse sentence <lenient
i" +ccupied countrys frustration with effective immunity granted to occupying powers soldiers for
abusing detainees. Importance of proportionate punishment for .# violations.
d" China outlaws sexual harassment
i" 6rowing acceptance of intl .# norms throughout world
ii" =udicial enforcement of intl .# norms in domestic courts
iii" >aw vs. 4alues
e" Court in .ong 8ong Invalidates $nti5)odomy >aw from ?ritish 3ra
i" Courts role in .# movement
ii" 3xtent of cultural change which .# demands
f" )ecular Ira@is )ay ,ew Charter Aay Curb #ights
i" .ow far are intl .# standards transplanted
ii" .ow far can charter go and what techni@ues are used to signal absolute dramatic change
g" )addam tribunal struggles for credibility
i" ,ational attempts to adopt intl .# standards. !relevant to prior 9 articles"
ii" .ow far should intl community push/ 2hen is the best the enemy of the good/
iii" 2hen to mae concessions in the .# area/
h" #eport $dds to Criticism of Colombian *isarmament >aw
i" )hould%can intl community change what society decides democratically to do/
)) *I&%ATERA% SANTI$NS
a" Israeli )oldiers #eport #eprisal 8illings of -alestinians
i" #eprisals B sometimes +8/ ,ot at all/ 2hats the test/ !3mpirical vs. ,ormative"
b" () Faults C $llies +ver Forced >abor
i" 2illingness to critici&e allies over some .# issues, but unwillingness to levy sanctions.
c" #obertson )uggests () 8ill 4ene&uelas >eader
i" Dargeted assassinations.
+) R$%E $! INT,% $RGS
a" )tatement by 6haddafi to $frican (nion
i" *emonstration of belief that .# is really just a way to screw wea countries
b" -utin -ledges to Improve #ussias .# #ecord
i" #ole of regional orgs in inducing compliance by countries
ii" ,ature of problem' institutional culture%mentality vs. practical
c" IC6 #eport on Eimbabwes +peration #estore +rder
i" Importance of overt international pressure for constructive change in solving governance and .#
problems
d" China will <protect Augabe at (,
i" Inefficacy of (, system. Illegitimacy of )ec. Council.
ii" 3xample of a thorough ,6+ report and a (, special envoy on a certain .# situation of concern,
but their efforts are handicapped by a )ec. Council member.
e" #ights $gency (rges () ,ot to *eport $I*) -atient
i" Ignorance of regional .# bodies !in this case, the Inter5$merican Commission on .#"
f" $ngola Aust Comply w%(, Freedom of 3xpression #uling
i" #ole of ,6+s in .# movement B here, following up on .# Committees decisions.
g" () <Dhumbs Its ,ose at #ights, $mnesty )ays
i" International bodies expanding their reach into domestic issues b%c of gaps in Const
h" #ights 6roup *efends Chastising of ()
i" (nresponsiveness of govts to ,6+ reports on their .# abuses.
ii" -roblem of over5stating issues, losing credibility. Important t read .# docs w%a critical eye.
i" Dony 3vans, Intl .# >aw as -ower%8nowledge
i" Intl .# law privileges one concept of human rights !free maret, democracy" over others, but
theres no consensus that that concept is superior. $lso, focusing on law means redress of
conse@uences, but no solution to causes of .# violations. Intl .# law as part of prob.
N$TES - INTR$ T$ $"RSE
1" -aradox of .# regime, which gives us many reasons for optimism, but also faces many challenges
a" #easons for +ptimism
i" )ubstantive )hift in Focus of Intl >aw
!1" -re522II, total deference to state sovereignty, no interest in%right to focus on what states
were doing to their populations. -ost522II, that has completely changed.
ii" Creation of .# *iscourse
!1" (p through F:s%G:s, .# law was still largely disregarded by state actors.
!9" ,ow, even the most powerful countries mae an effort to appear as if their policies comport
with .# norms and have adopted .# as part of their discourse.
!a" () claims not to be violating .# in 6uantanamo, $fghanistan, Ira@
iii" Impact on *omestic >evel
!1" -art of () domestic decisions
!9" Aany countries have included it in their constitutions
b" .ighlighted Challenges
i" Inherent challenge' .# law is designed to constrain govts ?(D they design and run it.
ii" Current challenge' argument that 0old1 .# regime isnt meaningful w%r%t intl terrorism
iii" intl human rights system is incompatible w%necessary domestic%cultural%social standards
iv" pretentions of intl organi&ations to reach inside country and say, not do something
9" Course will focus on'
a" () actions in .# field
b" Intl institutional arrangements
c" (, .# system
d" 2omens rights
e" 3conomic and social rights
f" ,on5state actors
g" Criti@ues of I.#
ASSIGNMENT #:___________________________________________________________
!rom Death Ro. to E/ecution: The G0o1a0 !rame.or2 3or ontem4orar5 Human
Rights Discourse
P. 18-54 and the short article
I. International )tatus of the *eath -enalty !*-"' intl law is fairly ambivalent
a. $mnesty Intl' if you believe in human rights !.#", you cant believe in the *-
i. ?(D' more countries retain the *- than have abolished it
ii. $,*' some countries, e.g. China, thin its crucial to the justice system
b. ICC-#' $rt. H permits the *- for the most serious crimes in states that currently have it !I 9",
but urges its abolition !I H"
i. 9nd -rotocol re@uires abolition of the *- !C. J 2. 3urope have done so"
c. (, Commission on .#' calls on states to abolish the *-
d. (, )ecurity Council' genocide in 7ugoslavia J #wanda not punishable by death
e. (.).' Gregg v. Georgia permits the *-, but individuali&ed sentencing is re@uired
f. Dhe main @uestion' is HR 0a. on a 4ar .ith domestic 0a. or o6erarching to it7
II. Catholic Comm. for Justice & Peace in Zima!e v. ". G., Eimbabwe ). Ct. !1KKL"
a. Facts' C men awaited execution with H5year delay and degrading prison conditions
b. Issue' Is the delay inhuman%degrading punishment under Eimbabwe Constitution/
c. #easoning' 8udge dra.s on int,0 9udicia0 and academic discourse as .e00 as
contem4orar5 norms o3 the 4eo40e o3 :im1a1.e !note that intl .# can be a cohesive
common ground from which judges can develop law"'
i. India' G year delay from date of sentence forward could be mental torture
ii. )ome (.). state courts' *elay is per se ground for constitutional attacM holding *
accountable for appellate delay penali&es the exercise of legal rights !however the
)upreme Court hasnt decided the issue"
iii. (.8. dissent' *elay could mae the *- inhuman
iv. 3uropean Court' 3xtradition to (.). violates prohibition on torture because * would
be subject to long delay !H5G years" awaiting death
v. Eimbabweans would be disturbed by the long delay and agony
d. .olding' Imprisoning someone on death row violates the Eimbabwe Constitutions
prohibition on inhuman treatment. >ife imprisonment imposed.
e. +bservations' #ather unconvincing collection of only supportive opinions that purports to
examine intl consensus, even though anti5*- isnt the intl consensus
i. )elective opinion' seems to have decided the case, then justified it
ii. +pinion doesnt mention ICC-#, though Eimbabwe has ratified it
iii. 4ery brief as to why Eimbabweans would be 0shoced1
1. thus the opinion has a heavy focus on intl opinion rather than domestic law
!many (.). judges are against such an approach"
9. judge has to be careful citing domestic opinion, because often national
consensus favors the *- !e.g. China"
a. #3->7' nobody in the general public nows how the *- is actually
imposed !e.g. how often, how accurately"M relying on domestic public
opinion isnt justified in legal opinions
iv. .olds the delay unconstitutionalM sirts issue of *-s constitutionality
1. a common approach, since many courts thin arguments against the *- itself
are difficult to mae
9. relies most heavily on the mental anguish of awaiting death
a. ?(D' does this imply immediate executions would be o/
v. *ecision goes to core of .#' nobody ever forfeits their .#, so courts must consider
the elements of imprisonment, and balance it with victims rights
III. Dwo Conflicting $pproaches
a. Pratt v. ". G. for Jamaica, (8 -rivy Council !1KKL"
i. .olding' $ny delay of more than ; years is a strong case for inhuman punishment, so
states must ensure swift executions
ii. +bservations' Dhe ; year line seems arbitrary and may just create an incentive for
governments to execute faster
1. #efuses to hold * responsible for delay caused by appeals
9. $ssumes life is better than death from a .# perspective
a. Dhis way, those who prefer death can just stop appealing
b. #rrol Johnson v. Jamaica, .uman #ights Committee !1KKH"
i. .olding' *etention alone for any given period of time doesnt violate the ICC-# !$rt.
F" prohibition on inhuman punishment
ii. +bservations' Concern was that encouraging speedier executions N more executions,
which is contrary to the ICC-# goal to abolish the *- !$rt. H"
1. $nomalous results' ICC-# would permit only @uic executions, so appellate
protections could be greatly reduced
c. ;hich a44roach is 1etter' ultimately we must admit that there are some issues that arent
susceptible to a definitive .# analysis !both approaches are justifiable"
i. Aany ,6+s, however, would argue that humaneness must prevail
I4. $tate v. %a&!anyane, )outh $frican Constitutional Court !1KK;"
a. Issue' Is the *- permitted under the transitional constitution ending apartheid/
b. *ecision -rocess' Considers intl law and comparable foreign case law !an approach contrary
to the isolationist dissenters in 'o(er v. $immons"
i. Dreats foreign case law as useful guidance, but not mandatoryM if youre at odds with
other countries in the same circumstances, must examine why
ii. #eads clauses prohibiting inhuman punishment in conjunction with those granting the
rights to life, dignity, and e@ual protection !3-"
1. 6ermany and Canada have interpreted 0dignity1 to oppose the *-M ICC-#
disallows extradition to countries with the *-
9. 3-' death is different, so extra procedural safeguards are re@uired to prevent
arbitrary decisions, but this leads to delay and expense
L. -ublic opinion is irrelevant' court must interpret without fear
c. .olding' *- destroys life and liberty, is arbitrary and final, and thus its cruel and unusual, in
violation of the constitution. Further, the *- is unreasonable !no proof that death is a greater
deterrent than life" and unnecessary !life imprisonment is sufficient for retribution and to
express moral outrage".
4. $ (tilitarian $pproach
a. From a utilitarian perspective, .# doesnt have much future, because it involves looing at
empirical data to determine whether a right creates more harm or good
b. )o if evidence saying executions save lives is correct, *- is obligatory
c. $nd many .# guarantees may create less optimal empirical results than desirable
d. Dhus, its problematic to analy&e the right to life from only a utilitarian standpoint
i. I.e. there must be some invocation of natural law or something elseO
ASSIGNMENT ):___________________________________________________________
%a.s o3 ;ar and ustomar5 Internationa0 %a.
-. ;H B G1
ha4ter #: "4 to Nurem1erg: *ac2ground o3 the Human Rights Mo6ement
Intro !p.;H5;K" $tatute of the )nternational Court of Justice *)CJ+ '
1. created by (, Charter, the judicial organ of the (,. )imilar to the Court created by the >eague of
,ations.
9. $rticle LG is the general leaping off point for discussions about sources of international law. It says
that international decisional law comes from'
a. International conventions
b. International custom
c. 6eneral principles of law recogni&ed by civili&ed nations
d. *omestic judicial decisions and teachings !which are instructive, but not binding"
L. Its influence is felt among other courts J tribunals.
A< %a.s o3 ;ar and ustomar5 Internationa0 %a. !p. ;K5G1"
1. The Paquete Habana !() )upreme Court, 1K::" !p.;K"
a. Issue' fishing boats condemned as a pri&e of war. *oes international law prohibit the capture
of innocent 0enemy1 fishing boats during war/
b. .olding' Fishing vessels cannot be pri&es of war.
c. #easoning' !Dhis is the point of this case" Dhere is no formal law governing. >oos to both
international humanitarian law and to customary law of 0civili&ed nations1 through the
writings of jurists and prior decisions by other countries on this issue. Dhere is a sense of
reciprocal advantage here regarding the adoption of international law !it is not altruistic".
,ote that the world community considered here is fairly small J cohesive.
d. *issent' highlights the same concerns with international customary law raised today. )tates
that there is no reason to adopt rules of other nations !except 3ngland" that the legislature and
executive havent explicitly adopted. )trong deference to the executive, especially in times of
war.
,. Comment on the Humanitarian Law of War !p.HF"
a. International .umanitarian >aw of 2ar is comprised of
i. Custom
ii. Dreaties J Aultilateral *eclarations, including
1. -ague Conventions
,. C Geneva Conventions' comprehensive, principal regulation of .us in ello
/. and several discrete treaties since 2orld 2ar II.
b. *ilemma' International .umanitarian >aws of 2ar allows mass illing, but tries to protect
civilians. It is based primarily on the practices of a small number of nations.
c. Class discussion' .umanitarian >aw of 2ar was one of the places where there was implicit
use of human rights norms prior to 1KC;. Dhere are some conflicts between these two types
of law though, discussed later in class !when we taled about <war on terror" J in the point
above.
/. Comment on the Role of Custom !p. HK"
a. *efinitions of Customary International >aw !CI>"'
i. ?oos *efinition' 0conduct, or the conscious abtention from certain conduct, of states
that becomes in some measure a part of international legal order.1 #esults in legal
duties%obligations.
ii. IC= $rticle LG!1"!b"' very confusing J contesteddefinition !says the boo".
iii. #estatement !Dhird" Foreign #elations >aw of the () I 1:9' 0results from a general,
consistent practice of states follwed by them from a sense of legal obligation.1 $ll the
terms of defined. $lso addresses the legal obligation !o(inion .uris"' states cant see it
as discretionary, it does not have to be explicit, and states created after the rule are
bound by it. >oo to the actions of states and reactions of other states for evidence of
international customary law.
b. #elationships between Dreaties and Custom'
i. Custom before treaty' Issue of whether treaties should be seen as declaratory of
existing norms !J so should be read in light of customary law" or as an attempt to
change these norms !and thus not support customary law"
ii. Dreaties before custom' treaty may give rise to customary law, binding more states
than the actual states parties. Dhis unclarity gives rise to arguments. 4ienna
Convention doesnt resolve this, just reiterating the dilemma. ?roadly ratified
multilateral treaties are more liely to become customary international law than
bilateral treaties.
c. Class discussion' Courts often mae note of CI> in their decisions !i.e. law of the sea
developed in the 1KH:s J F:s" J the same counterarguments enunciated in the Pa0uette
-aana dissent are raised in opposition. CI> is receding in significance, as more treaties are
signed by more parties. For instance, the (niversal *eclaration had only CI> to rely on,
whereas current human rights treaties are signed by a large number of parties and relying on
earlier treaties.
4. Akehursts Modern Introduction to International Law !1KKF" !p. F9"
a. *evelops issues in the above Comment.
b. 3vidence of Customary Interl >aw' found in state practice, published materials, states laws,
judicial opinions, writings of international lawyers, treaties !great care must be taen when
inferring CI> from treaties, especially bilateral ones".
c. #epetition' Aajor inconsistencies in state practice prevent the creation of CI>. 06eneral
practice1 does create CI>. Dhis is still unclear, but it is clear that it doesnt re@uire unanimous
state practice. )tates must, however, be aware of the new rule.
d. 2hat states say J what states do' state practice consists of both of these.
e. -sychological element ! o(inio iuris "' a conviction felt by states that a certain form of conduct
is re@uired by international law. >oo again to state practice, since states dont have a mind.
If states are divided there is no o(inio iuris. )peed of change occurs depending on the degree
of agreement among states.
f. Instant customary law ! diritto s(ontaneo "' argues that this doesnt exist b%c custom implies a
time element for it to emerge
g. (niversality J the Consensual Dheory of International >aw' the practice of a few states is
enough to establish CI>, if there is no opposition. IC= says that state using CI> must show
that it is binding on the defendant state, lie that they recogni&e the principle in their own
practice or that they have not explicitly rejected the rule. Dhe problem of the 4ersistent
o19ector P,ote' emphasi&ed in classQ emerges' can one persistently objecting state undermine
the entire rule or its application to itself/ 3xample from class' () resistance to Aillennium
*evelopment 6oals. ,ote also that this is more a theoretical problem, since currently only
the () has the ability to be a persistent objector. Dhis is obviously problematic. *octrinal
split' positivists say that consent is necessary, while natural law is more flexible, allowing for
non5universal acceptance.
h. Ius Coens' P,ote' emphasi&ed in class, so Ive incorporated that discussionQ 0-eremptory
norms of general international law.1 Dhese are metanorms, which trump all other norms.
$rticle ;L of Convention on the >aw of Dreaties !4ienna Convention" states that treaty is void
if it conflicts with peremptory norms that are recogni&ed by community as a whole. P$lston'
this is a circular definition.Q $cceptance of the overwhelming majority of states re@uired to
establish ius cogens. 4ery few rules pass this test !slavery, genocide, racial discrimination,
etc." -roblem that peremptory norms have not really been defined anywhere. 2hile they
have been used by international criminal tribunals, usually they are not relied upon J binding
rules are focused on instead, so there is not a lot of practical significance.
5. Martti !oskenniemi" The Pull of the Mainstream !1KK:" !p.FG"
a. Dhis is a boo review of a boo by -rofessor Aeron, an authority on humanitarian law.
Aerons boo uses empirical analysis to support the use of customary international law.
b. 8osenniemis criti@ue' Dhere is no real empirical evidence of Aerons point. Instead, states
tend to disregard what is regarded as customary international law in practice. .uman rights
lawyers !lie Aeron" rely on what states assert rather than what their actual practice is.
Instead of relying on faulty empirical analysis, human rights advocates are really relying on
what we thin%now is right or wrong innately. .e says that we should rely on this shared
understanding of right J wrong.
c. -roblem' he focuses on the individual mind, which cannot be imputed onto the state, leaving
us with no basis for agreement on what the norms actually are.
*< State Res4onsi1i0ities= Genera0 Princi40es= and Natura0 %a. p. G1
1. Im#ortant Predecessor to HR law was state reconi$ed state res#onsibilit% for in&ur% inflicted on
aliens
a. 3.g., if citi&en of state R imprisoned in state 7 without hearing, citi&en of R first tries to see
local remedy through state 7s system. If this fails, then turns to own government !R" for
diplomatic protection. +nce it enters this phase, then becomes a dispute between 9 states
i. Ma6rommatis Pa0estine oncessions -=IC !1K9C" p. G9 B 0by taing up the case of
one of its subjects and by resorting to diplomatic action or international judicial
proceedings on his behalf, a )tate is in reality asserting his own rights B its right to
ensure, in the person of its subjects, respect for the rules of international law1
b. "<S< >*<E< hattin) 6s< "nited Me/ican States p. G;
?acground B decided under a 1K9L 6eneral Claims Convention between (.). and
Aexico, which set up a L member commission !one Aexican, one $merican, one
mutually agreed upon" for torts inflicted by Aexican government on (.). citi&ens !and
vice versa"
Facts B Chattin, a (.). citi&en, was ## conducter in Aexico, arrested for
embe&&lement. Convicted and sentenced in Aexico for 9 yrs. 3scapes. In asserting
Chattins claims, (.). argues that !1" he was mistreated while in prison !9" his trial
was unreasonably delayed !L" there were irregularities in his trial, and !C" he suffered
injuries worth S;:,::: in compensation.
.olding
Dhis criminal trial fell far below international standards of civili&ation B only
lasted ; minutes, no oral or cross exam, etc.
?ut record is sufficient to warrant conviction. ?ut b%c proceedings insufficient,
Chattin should be awarded S;,:::
Concurrence
Compares Aexican procedure to other countries using civil law
+ther civil law countries do give judges broad powers, but unlie what
happened in Aexico, after proceedings before investigative judge, the case is
taen over by another judge to do actual trial
Intl law re@uires defendant to be informed of chares against him and
opportunity to defend himself B none of that happened here
*issent !Aexican Commissioner"
; minute criti@ue disengenious
o (nlie $nglo5)axon law, Aexican criminal procedure has two parts B
plenary and summary. -lenary is where all the fact5gathering, cross
exam, etc. happens, summary is just a formality where written docs are
confirmed. Court was just referencing this latter part to say whole
hearing was ; minT
*efects in this case did not rise to the level of I.# violations
o )light delaysM laying aside some evidence when there is other evidence
that proves the fact is not a big deal
o I.# violations would only occur if accused prevented from defending
himself, sentenced w%o evidence, impose disproportionate penalties B
none of this happened here
,+D3 B today, a dispute lie Chattin could draw on the ICC-# B $rticle 1C says 0O
everybody shall be entitled to a fair and public hearing by impartial tribunal1
2. Alston discussion
a. Chattin shows evolution of .# norms initially under guise of rights of states
i. Focus on Chattin not about the .# of individual citi&en, but about the fact that states
are entitled to protect their own
ii. 3mphasis on the state as the on05 40a5er B actions done not in the name of individual
rights or dignity, but through prism of inter5state relations
b. Chattin has parallels today
i. i.e. (.). going to #wanda and dictating exactly how to do their trials B right down to
the robes they should wear
ii. ?ut flip side B sometimes its +8 to say people are acting barbarically
c. )tate responsibility has evolved dramatically over last 1:51; years
i. )tates are now communit5 actors
1. responsible not only to protect their nationals, but also for acts and omissions
,. obligations are owed to all states, not just one state through a bilateral treaty
8. 'scar (chacter" International Law in Theor% and Practice (. 34
a. Five general principles that have been invoed in intl law discourse
i. Aunicipal law principles 0recogni&ed by civili&ed nations1
1. but these national laws must be suitable for intl application
ii. 6eneral principles of law 0derived from the specific nature of the international
community1
1. necessary principles for co5existence B non5intervention, territorial integrity,
self5defense, legal e@uality of states
iii. -rinciples 0intrinsic to the idea of law and basic to all legal systems1 !natural law"
iv. -rinciples 0valid through all inds of societies in relationships of hierarchy and
coordination1
v. -rinciples of justice founded on 0the very nature of man as a rational social being1
1. minimal standards of decency and respect for human beings, spelled out in all
the human rights instruments and documents
ASSIGNMENT +:___________________________________________________________
Inter.ar Minorities Regime and the Ro0e o3 Treaties
Dhe goal of total identification of a state with a nation can not be reali&ed. Dhere is too much
complexity and history for such a precise correlation. Dhe @uestion this assignment raises is the @uestion of
self determination !)*". )* is a principle in international law that a people ought to be able to determine
their own governmental forms and structure free from outside influence. 2ith this is the idea that state
boundaries should e@uate with the boundaries of nations. Dhe notion of self determination that was generally
adopted included with it the principal of minority rights. ?ut note the problems that come with thisUwhat
exactly constitutes a 0national minority/1 Doday this old notion of self determination is no longer popular.
For the most part we say, 0,o you cant have your own territory just b%c of your ethnic bacground.1 Dhis is
a change from what we had before. Dhis is change that too place after 22II.
Ainorities and Dreaties DodayU %inority $chools in "lania in context
Doday you set up an institution to oversee a treaty and you set up procedures for people to vindicate
their rights' !2e set up treaties, institutions, and procedures". 2ith this comes' !1" the right to petition, !9"
the right for that to be reviewed, and !L" ultimately it can be taen to a court. Dhere is however the @uestion
of why would states bind themselves in this way, especially if these states are not good peopleUthe "lania
case is an example that they were told by the 4ictorian #egime that they needed to sign on. $nother issue is
the individual verse collective idea of rights' our concern is to protect the rights of minorities, collectives, all
of the 6rees living in $lbania. .owever, note that we are not taling about collective rights, we are not
taling about group rights, we are taling about individual rights. Dhis is a paradox. 2hile there is a desire
to promote collective rights, the insistence is to say <no this is not collective b%c any dictatorship can start
taling about <the rights of the soviet people. )o instead we discuss it in terms of the rights of individuals.
In the %inority $chools in "lania case, members of the 6ree5speaing Christian minority in
Auslim $lbania were citi&ens of $lbania. Dhe case has to do with $rticle ; of the *eclaration that $lbania
had to submit in order to become part of the >eague of ,ations. Dhe @uestion was whether there was a
violation of the declaration. Dhe $lbanian government had abolished all private schools as a general
measure !applicable to both the majority and minority" resulting in the closing of private Christian schools.
Dhe court held that in order to ensure an e@uitable outcome particular situations sometimes warrant minority
and majority groups to be treated differently. !,ote that today this issue is addressed in the 1KH: (,3)C+
Convention against discrimination in 3ducation".
Dreaty characteristics
$ treaty is formed by the express consent of its parties. ?ut expanding complexities of treaties allows
for flexibility in the form of reservations where a country can exclude certain provisions of the treaty in their
application to their state. $nd very often along side the formation of a treaty includes the formation of an
organi&ation along side the treaty.
.ow to analy&e%interpret Dreaty law
Dreaty lawUif you tae a text, even a human rights text, and interpret it strictly in a positivistic
fashion, its possible you will get a result that is not favorable to .#. $s a result, what .# lawyers do is put
up legal theories. For example they will put forward ideas lie, 0this provision has to be seen in light of the
purpose of .#s and so there is an element of creativity that must be used.1 Aoreover, there is the argument
that .# treaties are different, and that while commercial treaties can be read narrowly, with a .# treaty we
now there is an overriding humanitarian set of objectives. !?ut not that there is the argument that even in
commercial treaties you have the context of trying to promote trade, etc, but in .# there is a much more
willingness to accept the idea that context is important". 6enerally the .# mentality is we are not prepared to
mae such a great concession to sovereignty. Dhe flip side is we cant completely dismiss and brea down
sovereignty. Dhe @uestion is how far do we go in breaing down sovereignty.

#ole of Dreaties in the .#
Auch of .# law revolves around treaties. Dreaties have very much taen over areas of customary
law. $lthough treaties are somewhat less satisfactory b%c of their rigidity, treaties are very much the essence
today. ?ut note that it is a circus in many waysUcountries sign on to a lot of treaties, but they dont amend
their domestic institutions to account for these treaties. 7ou only have a superimposition of the treaty regime
on nations.
ASSIGNMENT ?:___________________________________________________________
i6i0 and Po0itica0 Rights
%ecture
5 (*.#' #esult of a political negotiation. $frica and much of $sia was left out of the drafting process.
,onetheless, many post5colonial states incorporated the (*.# into their constitutions. Dext tried to
reflect natural rights foundations !e.g. 0inherent dignity1 language". ?ut was an uneasy hybrid w%
positive law concepts !e.g. Aember )tates, 6eneral $ssembly". )peas of <*uties' Individual duties
5 $rt. 9K 0everyone has duties to the community,1 and trying to impose limits on govts authority to
impose duties. Dhough not binding, argument that it is invoed so often by natl govts and internl
orgs. that it is a part of customary law
5 ICC-#' $bsolute nature of .#' inalienable rights. $rt. C' 3ven though .# may be subject to
limitations, those limitations must be determined by law, compatible w% the nature of the rights. Dhus,
some rights are derogable but solely for the purpose of general welfare !not the welfare of a particular
group" in a democratic society.
5 .ierarchy of #ights' +nce you set up a hierarchy, illed off some rights. $ll rights are interrelated
!e.g. cant say right to life is more important than a functioning political system, b%c if you didnt
have the latter so that instead you had a dictatorial regime, you would effectively lose the former."
5 ,atural rights v. -ositive rights' Its not helpful to only thin about .# as positivist thingsUwe still
need to have the natural law bacground, even though we want them to be codified and binding.
5 Customary .# law' $ccording to the ()s #estatement L
rd
, no economic and social rights are
customary law, but $lston thins some economic and social rights are.
Readings
Comment on the )* Charter and 'riins of the HR Mo+ement !p. 1LF"
5 Charter' First gave formal and authoritative expression to the human rights movement. ?efore the
Charter international law just focused on rules regulating the conduct of war !jus in bello" rather than
the justice or legality of waging war !jus ad bellum"' $rticle 9!C"' (, members shall refrain from the
threat or use of force against another stateM Vualified by $rticle ;1' nothing in the Charter shall
impair the right of self5defense. #eferences to .uman #ights are scattered and cryptic' -reamble,
$rticle 1!L", 1L!1"!b", ;; and ;H, H9!9" and HGM none are in the language of an obligationM +nly one
substantive human rights receives direct mention' 3@ual protection.
5 (niversal *eclaration of .uman #ights !(*.#"' $ <Charter5based organM Constitution of the .#
movementM 0*eclaration1' a recommendation by the 6eneral $ssembly to Aember )tates that would
exert a moral and political influence on states rather than constitute a legally binding instrument.
Comment on Relationshi#s b,w the )-HR and ICCPR !p. 1C9"
5 ,ature of the obligations arising from the instrument' Dhe (*.# is recommendatory, whereas the
ICC-#, which re@uires ratification !and thus is subject to formal matters such as reservations", is
legally binding. ,onetheless, @uestions of interpretation and enforcement of the ICC-# compromise
its <binding nature. (*.# has become to be seen as a legally binding instrument creating
obligations of states, as a matter of customary international law or as an authoritative interpretation of
the (, Charter
5 Institutional power' $ recommendation by the 6eneral $ssembly !(*.#" or customary international
law cant create an international institution with defined membership, structure and powersM whereas
a treaty !ICC-#" can. ICC-# creates an ongoing institution, a <Dreaty5based organ' .uman #ights
Committee, which imposes on states parties formal obligations !e.g. the submission of periodic
reports".
5 Individual v. 6roup #ights' ?oth focus on individual rightsM group or collective rights are rare.
ICC-# $rt. 1 !self5determination of peoples" and 9F !survival of cultures"M (*.# doesnt have
similar provisions. ?oth refer to the <family as the fundamental unite of society. )ome rights cast in
terms of the individual have an inherent group character, e.g. right to e@ual protection !identity at
issue in denials of e@ual protection is a group identity B race, gender, etc." or right to practice ones
religion !right that is generally practiced in a community with others".
5 #emedial structure' (*.#' states agree to provide judicial remedy. ICC-#' states agree to institute
legislative reform and provide judicial remedy.
5 -rovisions in the ICC-# limiting states obligations' -ermits temporary derogation of many rights if
there is a public emergency. )ome articles have limitation clauses B a given right is not absolute but
must be adapted to meet a states interest in protecting public safety, order, health or morals, or
national security.
5 Classification of #ights under the ICC-#' !see list on p. 1C; B In order from rights on which there is
broad formal5verbal consensus among states to rights whose meanings and validity are formally
disputed."
Lauter#acht !p. 1CF"
5 )ubjects of Internl law' .# law maes individuals direct subjects of internl law, removing the
sovereign state as a barrier in b%w, so that fundamental .# are superior to the law of sovereignty.
5 ,atural rights' ,atural rights are an expression of moral claims, which can be the basis for legal
rightsM even after .# become a part of positive law, natural law underlies themM Criticism of using
natural law to justify .# is that law of sovereignty also arose from natural law conflicting laws.
5 (.*#' #ights werent described as being grounded in natural law b%c states refused to acnowledge
them as binding lawM 2ont be viewed by tribunals as an authoritative interpretation of the .#
obligations stated in the Charter b%c wont interpret a non5legally binding instrument as an
authoritative interpretation of a legally5binding instrumentM *oesnt embody customary law but what
in time ought to become customary lawM Its authority is dependent on )tates commitmentM Flawed
conceptually b%c recogni&es individual rights but not )tate duties, but cant have rights unless they are
also accompanied by remedies, which are )tate duties.
.lendon !,ote p. 1;9"
5 (*.#s <everyone isnt an isolated individual but a person who is constituted through relationships
w% others .elps to resolve the seeming inconsistency b%w the freedom of speech and the protection
from hate speech.
Mc.oldrick !,ote p. 1;L"
5 -rogressive or immediate character of the states obligations under the ICC-#' )omewhere in b%w
allowing time for new states to build up their body of legislation and avoiding excessive delays and
the notion of progressiveness found in the IC3)C# Implicit in $rt. 9 is the notion of
implementation at the earliest possible moment and the reporting re@uirement would serve as an
effective curb on undue delay.
Hierarch5 o3 Rights
5 /an 0o+en !p. 1;C"' Dhere are some fundamental .# whose validity is not dependent on their
acceptance by the states but which are the foundation of the internl community !e.g. prohibition of
racial discrimination is in the Charter, so states are bound to it even if not a party to the ICC-#,
C3#*, etc.". ,o derogation is permitted from these fundamental .#, even in times of armed conflict
or other public emergencies. ICC-# $rt. C enumerates which rights are non5derogable.
5 Meron !,ote p. 1;;"' Cant say some .# are fundamental, b%c maes it seem lie the .# that arent
!which are the majority of them" are inferior rights.
5 Illustration of Aerons point !p. 1;H"' .# Committee rejected a proposal to add $rt. K W Ls rights to
the list of non5derogable rights b%c ris that such an optional protocol would implicitly invite states
parties to feel free to derogate from those provisions if it didnt ratify the optional protocol.
;@dra.ing 3rom the IPR
5 HR Committee .en1 Comment 23 !,ote p. 1;F"' Cant w%draw from the ICC-# b%c the rights in the
ICC-# belong to the people living in the territory of the )tate partyM once they are accorded the
protection of the rights under the ICC-#, they continue to belong to them notwithstanding change in
govt.
ustomar5 Internationa0 %a. and Human Rights
5 *espite the multitude of .# treaties, custom occupies a central role in legal .# arguments, e.g.
interpretation of the subject matter jurisdiction of the ICD7 and ICD#
'##enheim !p. 99C"
5 Jus cogens !peremptory norms of general internl law"' norms accepted and recogni&ed by the
internl community as a norm from which no derogation is permitted and which can be modified only
by a subse@uent norm of general internl law having the same character
5 Dhere is no general agreement as to which .# norms have this characterM to be wored out by state
practice and the jurisprudence of internl tribunals.
(chachter !p. 99H"
5 6eneral $ssembly !6$" resolutions are not a formal source of law' are expressions of the <general
will of the internl communityM transform 6$ resolutions into law by using them as a basis for the
preparation of a treaty
5 >egal uncertainty when they try to assert law w%o first becoming treaty' !1" 2hen they are
interpreting principles of the Charter and agreed by all member states, then become a source of law
b%c the Charter isM !9" 2hen they purport to state the law independently of any Charter rule and are
agreed by all member states, become a source of law expressing o(inio .uris communis
5 ,eed customary .# law b%c' !1" )tates that havent ratified certain treaties and thus, arent bound by
them, can determine their obligations and rights under customary lawM !9" $llows treaty parties and
non5parties to have recourse to internl law remedies not provided for in the treaties
5 Customary .# law relies on evidence different from general internl law, including' !1" incorporation
of .# provisions in natl constitutions and lawsM !9" fre@uent references in (, resolutions and
declarations to the <duty of all states to observe the (*.#M !L" resolutions of the (, and other
internl bodies condemning specific .# violations as violating internl lawM !C" statements by natl
officials critici&ing other )tates for .# violationsM !;" IC= dictum that obligations erga omnes in
internl law include those derived from .# principlesM !H" decisions in natl courts refereeing to the
(*.# as a source of standards for judicial decision #e@uire a measure of confirmation in actual
behavior
5 #easons for treating the (*.# as law' !1" its principles have been introduced in many natl
constitutions and laws, thus regarded as customary internl lawM !9" spells out the .# obligations
recogni&ed in the Charter ?ut neither govts nor courts have accepted the (*.# as law !an
instrument w% obligatory force"M although some .# principles included in the (*.# are customary
law
5 Find customary .# law by looing at <practice and o(inio .uris in internl forums !e.g. (, organs"
rather than in states, evaluating those actions and their effects on )tate conduct
5 >ist of .# seen as customary law increased significantly in the past decade !see p. 9L:"
5 .# have penetrated deeply in to the consciousness of peoples
Hiins !p. 9L9"
5 Customary .# norms dont die just b%c widely abused by statesM for such norms to die need states to
both engage in contrary practice and w%draw their o(inio .uris. 3.g. -rohibition against torture is still
a customary norm even though widely abused b%c is still the o(inio .uris communis that it is a
fundamental .#.
Restatement !L
rd
" !p. 9LL"
5 Customary .# law' peremptory norms !genocide, slavery, murder or disappearance of individuals,
torture or other cruel, inhuman, or degrading treatment, prolonged arbitrary detention, systematic
racial discrimination", constituent pattern of gross violations of .#, and perhaps gender
discrimination as state policy
5 4iolations of customary .# law only if practiced or condoned by govt of a state as official policyM
can be presumed to have encouraged or condoned acts if such acts have been repeated and no steps
have been taen to prevent them or punish the perpetratorsM are violations of obligation to all other
states !erga omnes" and any state may invoe ordinary remedies available under customary law.
Henkin !,ote p. 9L;"
5 Customary .# law developed similar to .us cogens !even though not all .# is .us cogens"' doesnt
reflect traditional natural law, hasnt been built by state practice, doesnt re@uire consent of every
state even though it is binding on all states It just reflects <general consensus.
ASSIGNMENT A:___________________________________________________________
Torture : Prohi1ition 6ersus Necessit57
hen (unsheng !-.1" lists situations of torture nown to have happened in China in the 1KK:s. $lston says
most methods listed were used in $bu 6hraib, add >1) woman straddling Auslim man, wiping menstrual
fluid, >#) desecration of 8oran.
Richard *ernstein article !-.95L". Dicing time bomb situation wherein german idnapping victim is
believed to be facing imminent death and 6erman police threaten to torture idnapper in order to extract
info. 6erman law forbids torture or threat thereof. ?ut there is also a provision to Xa life5threatening danger,X
when the police can Xoverstep the legally protected interests of the person affected.X
- Bidna44er. =udge denied defense motion to dismiss the case but declared info obtained via threat
inadmissible
- 0ass Notes' )omeone !cop/" got sentencedd to minimum security prison, doubtful that hell serve
time.
- Dhe most insidious aspect of the introduction of torture in a criminal case is not that it will crush its
victims,X Aichael -awli, a law professor in #ostoc, said. XItYs that the nowledge it might be used
threatens to destroy confidence in the integrity of the rule of law.X
Haro0d Boh %ecture posits that' >1) torture and cruel % inhuman treatment is illegal and abhorrent to our
values % constitution and >#) the presidents constitutional powers do not allow him to authori&e torture as
Comm in Chief.
>1) Dorture and cruel % inhuman treatment is illegal and abhorrent to our values % constitution
- #ecogni&ed by Eighth Amendment' Xnor PshallQ cruel and unusual punishments PbeQ inflicted,X !i3th
AmendmentCs *ue -rocess Clause, !forbidding interrogation techni@ues that Xshoc2 the
conscience.X"
- Dhe () has ratified the (niversal *eclaration of .uman #ights !(*.#" which 1ars torture >art< ?)
and Convention $gainst Dorture which allows no 0exceptional circumstances1 to justify its use.
- () $rmy field manuals include L
rd
Z C
th
6eneva Conv. B barring physical%mental torture to -+2s %
civilians.
>#) Dhe presidents constitutional powers do not allow him to authori&e torture as Comm in Chief.
Boh' Dhe announced policy of ?ush $dministration is commitment to 0worldwide elimination of torture.1
*51ee $4inion' whether (.). officials can use tactics tantamount to torture against suspected terrorists,
without being held liable under a federal statute that criminali&es torture. Ans.er D (ES<
#easoning of ?ybee Z 8ohs Criti@ues'
>1) De3ines EtortureE narro.05 as to re@uire that the interrogator have the precise objective of inflicting
Xphysical
pain ... e@uivalent in intensity to the pain accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death.X
B$H' *efinition flies in the face of the 40ain meaning of the term.
>#) Daes 1road 6ie. o3 PresidentCs constitutiona0 4o.er to order torture, asserting >a) criminal
prohibitions against
torture do Xnot apply to the -residentYs detention and interrogation of enemy combatants pursuant to his
Commander5in5Chief authorityX and >1) Xany effort by Congress to regulate the interrogation of
battlefield
combatants would violate the ConstitutionYs sole vesting of the Commander5in5Chief authority in the
-resident.X
B$H' +pinion asserts that -resident has inherent swee#in constitutional powers in wartime. Dhis
despite any
exemption for the president from the ;
th
% G
th
amendments during ties of war, longstanding statutes
regulating
use of military and case law limiting presidents wartime powers !4ounstown (heet 5 Tube +1 (aw%er".
>)) )uggests that e/ecuti6e o33icia0s can esca4e 4rosecution for torture on the ground that Xthey were
carrying
out -residentYs Commander5in5Chief powers,X reasoning that orders 4rec0ude a440ication o3 6a0id
3edera0
crimina0 statute Xto punish officials for aiding the -resident in exercising his exclusive constitutional
authorities.X
B$H: >ogic undermines principles of individual criminal responsibility set forth in *urembur.

8oh also argues'
- Dhat the opinion begins without a word about the legal and historical context in which it is being
written.
- 2hile conceding that torture !defined in an absurdly narrow manner" is criminal behavior, the
+pinion nevertheless suggests that, for () +fficials, there is some &one of cruel, inhuman or
degrading treatment that is allowed by the Convention $gainst Dorture in interrogation. In effect, the
+pinion gives executive officials a license to dehumani&e, degrade, and act cruelly.
Boh,s suggestions to a6oid 3uture disasters. >1) -ublicly publish written legal opinions >#) Consult other
govt agencies and directly relevant regulations !e.g. legislature or the leading )upreme Court case"
Dersho.itF )everal important values are pitted against each other in the torture debate. P .is arg stresses
!1"Z!L" Q
>1) Sa3et5 and securit5 of a nationYs citi&ens. >#) Dhe 4reser6ation o3 ci6i0 0i1erties and human rights. Dhis
value re@uires that we not accept torture as a legitimate part of our legal system B XIn a democracy
sometimes it is necessary to do things off the boos and below the radar screen.X Cf. >)) $4en
accounta1i0it5 and visibility in a democracy. XCiti&ens cannot approve or disapprove of governmental
actions of which they are unaware.1
*ershowit& is against torture as a normati6e matter, Z would lie to see its use minimi&ed. *"T, he thins
that in a 0ticing time bomb situation1 we would use torture, !even lethal torture", and the public would favor
its use. Dhat is his em4irica0 conc0usion. It is either true or false, and time will probably tell.
*ershowit& has a Gconditiona0H normati6e 4osition. If torture is in fact being used and%or would in fact be
used in an actual ticing bomb mass terrorism case, it would be normatively better to have torture regu0ated
15 some 2ind o3 .arrant, with accountability, record5eeping, standards, and limitations.
Dhus we have a triangular conflict uni@ue to democratic societies'
>A) If horrible practices operate below the radar screen of accountability, there is no legitimation, but
there is expanding employment of the practice.
>*) If we use ;arrants.
!1" *emand accounta1i0it5,
!9" $dd a degree of 0egitimac5 to practice of torture
o?ut better to legitimate and control a specific practice that will occur, than to legitimate a
general practice of tolerating extra5legal actions, so long as they operate under the table of
scrutiny and beneath the radar screen of accountability.
o3< 8oh' >aw should never preauthori&e such a presidential decision. If the -resident felt
morally compelled to order torture in an extreme case, she should do so with full awareness
that she was facing potential criminal liability. $ prosecutor would then have to decide after
the fact whether the circumstances that led to the decision were so dire that the -resident
should not, as a matter of prosecutorial discretion, be prosecuted.
o3< Aichael -awli, X threatens to destroy confidence in the integrity of the rule of law.X
!L" #educing 3reIuenc5 and severity of practice.
o$ warrant re@uirement simply imposes an additional level of prior review !*ershowit& maes
analogy w% wiretaps in the H:s and subse@uent regulation"
oCf1 -+),3# and =. =$C8)+,, 5orematsu' )ome officials are bound to want to explore the
outer bounds of the rules. Dhe 4ractice .i00 1ecome regu0ar, not less frequent.
oCf1 !$trauss, -H" Xa warrant procedure liely would be an invitation to increasin use of
torture.X
!C" Forces democratic country to confront 0issues of evil1 in an open way.
o*ershowit& says that Israe0 was able to confront the issue Z end it because it was openly
addressed due to legali&ation under >andau Commision 1KGF.
A0ston' ?ut Israel still practices torture now, covertly, and has essentially joined the rans of
other countries that torture w%out acnowledging.
>) If we do nothing, and a preventable act of nuclear terrorism occurs, then the public will demand
that
we constrain liberty even more. Dhere is no easy answer.
'n (#ectrum of Torture.!e.g. truth serum v. beatings"
- Dorture has been treated in a way that there is ,+ )-3CD#(A. +nce you cross the threshold of
pain, you have infringed on human rights
- $lston !in class"' 2hy is torture iconic/ 2hy should it not be treated in that way/
- (trauss" Posner" (il+erlate B decision whether to employ torture Xmay turn on the definition of
torture.X
- -ershowit$s point is to institutionali&e these preferences and debate and decide them openly and
with accountability, rather than by often emotional personal biases.
- !oh B $gainst it, constitution is against it as well as intl law.
Torture as a necessar5 4o0ic57
7 Z Aore truthful info gained attacs stopped more lives saved !8oh' this chain of proof not
established" .
, Z ,o valuable info attained B fols tal to stop torture, not b%c its the truth.
Z #is of () )oldiers being tortured abroad.
Z Dicing Dime ?omb )cenario is atypical, torture is mostly used to control societies, not save lives
ASSIGNMENT J:___________________________________________________________
EDA;: The on6ention and the ommittee
-art I !p.1;G51G;"
Class
3liminating gender discrimination was an important consideration when the (, Charter and (*.# were
written. ?ut during the 1KH:s and F:s, little was done on this front. Dhere was some focus on the political
participation of women !right to vote", nationality of women !b%c men wanted their foreign wives to get
citi&enship", and the minimum age of marriage. >ater, the attitude was paternalistic women shouldnt be
allowed to wor at night. -rof the serious promotion of womens rights needs to deal with areas of power
Ueconomic, social, cultural and religious. Dhis is difficult b%c so many complex relationships are at stae.
The on6ention on the E0imination o3 A00 !orms o3 Discrimination against ;omen >EDA;)
55effective 1KG1, 1H; states parties in Aarch 9:::
55)ee $nnex to textboo, p.1C:951C:K
$rt. 1G of C3*$2 re@uires states parties to submit periodic reports on 0measures which they have adopted
to give effect1 to C3*$2s provisions.
Re4ort o3 Guatema0a to the EDA; ommittee= A4ri0 1KK1 >4< 1AL):
Dhe textboo includes excerpts of the report addressing $rticles ; and 1H.
Art< ? !in my words"' )tates should tae all appropriate measures to modify social and cultural practices with
a view to ending practices based on the idea of female inferiority.
Art< 1A !in my words"' )tates should tae measures to eliminate discrimination against women in matters
relating to marriage and the family.
Dhe 6uatemalan report goes into a lot of detail about the cultural%structural reasons that patriarchal practices
still exist in 6uatemala. It appears to be a thorough account of existing discrimination against women.
Class
-rofUthe 6uatemala excerpt is there to emphasi&e the need to analy&e the situation of women from a
deeper, more cultural%structural perspective.
?ut class comments emphasi&ed the aberrational nature of report. In a country that has such a terrible
trac record, we get this dramatic !fae5sounding" self5impeachment.
#eports to C3*$2'
o 6enerally list everything the country is doing well. Dhen include 1 or 9 areas in which the
situation could be improved.
o +ften are written by an ,6+ or consultant that is hired by the country.
omment on ;omen,s Socia0 and Economic onditions >4<1A))
2omen fare worse than men in almost all indicators of social well5being and status, including
political participation, access to economic resources and employment, health care and literacy. )ee
(,*-s .uman *evelopment #eport for 1KKL !p.1HL".
3mployment outside the home provides women with increased income and social status. ?ut women
overwhelmingly occupy lower status and lower wage jobs $,* bear the burden of child care and
household responsibilities.
Dhe well5being of women may be at ris !rather than advanced" through development programs,
including economic globali&ation and restructuring. #eform efforts usually include the privati&ation
of government services, economic deregulation and reduction in social service spending. Cutbacs in
health, education and social services disproportionately affect women and children.
Amart5a Sen= GMore than 1LL Mi00ion ;omen Are Missing=H 1KKL= >4<1A?):
In )outh $sia, 2est $sia, and China, the ratio of women to menU.KCUis lower than it is in 3urope
or ,orth $mericaU1.:;.
)implistic explanations' 2estern civili&ation is less sexist that 3asternM these countries are poor
)ens argument Dhe important variables are female employment and female literacy.
o 2omen get a more favorable division of family benefits if' they earn outside the homeM their
wor is recogni&ed as productiveM they own some economic resources or hold economic
rightsM there is an understanding of ways in which women are deprivedM
o +utside wor helps women gain an education in the outside world.
o Female literacy high in 8erala !in India". #atio of women to men is 1.:9.
Class' -rof argument of article regarded as true today.
,6+ #3-+#D) dealing exclusively with womens rights were rare before the 1KK:s
Class
-ublic%private distinction is still significantM the 0private1 still blocs out a wide range of situations in which
women are subject to violence.
Amnest5 Internationa0= Re4ort on Ra4e in Detention= 1KK# >4<1AM)
6overnment agents use rape and sexual abuse to coerce, humiliate, punish and intimidate women. -regnant
women and indigenous peoples are particularly targeted. -oliceUuse custodial rape as an interrogation
tactic. )oldiersUuse rape in counter5insurgency operations. )ome governments charge rape victims with
criminal offensesM under -aistans .udood +rdinance, a woman convicted of extra5marital sexual relations,
including rape, can be sentenced to public whipping.
Class !9 issues"
1. *o we call this ind of sexual violence against women torture/
55$rgument forU#ape is high on the list things one doesnt want done to oneself
55$rgument againstUDhere is a huge international prohibition on hard core torture. 2e want to be able to
single out torture as something with specific meaning. If you bring in rape and other forms of sexual
violence, where do you draw the line/ Is domestic violence torture/ $lso, could argue e@uating rape and
torture undervalues rape because rape often includes other sadistic, emotional and personal factors.
9. )hould we adopt a gender5neutral anti5discrimination focus/
55$rgument forU)exual violence against men and women is of e@ual concern. )exual violence against men
is also underreported.
55$rgument againstUwomens experiences of sexual violence are different and more worrying.
Americas ;atch Re4ort on *raFi0= 1KK# >4 1J1)
$mericas 2atch and 2omens #ights -roject of .uman #ights 2atch went to ?ra&il to assess the
governments response to domestic violence.
*omestic violence is perceived as a private, family problemM abusers are rarely punished.
Dhe law is part of the problem rape is a crime against custom, not the individualM the individual,
not the state, must initiate the prosecution.
Dhe 2omens Aovement has pressed for change it has established womens police stations,
secured ?ra&ils adoption of C3*$2, and made demands reflected in the new 1KGG Constitution.
Class
553arly example of ,6+s taling about the private sphere. Aany still felt that having government in the
home was worse than having violence in the home, felt human rights must have limits.
55*ouble victimi&ation%terror%ostraci&ation felt by women who prosecute their rapists !even in international
law".
har0es.orth and hin2in= The Gender o3 8us ogens= 1KK) >4< 1J))
Dhe concept of .us cogensUrights having normative superiority and universalityUare ,+D universalM they
are male5centric. 3xamples'
-rimacy of civil%political rights over economic%social rights
#acial discrimination included, sex discrimination is not
#ight to life !$rt. H of ICC-#" refers to deprivation of life through public actionM it does not address
the numerous ways in which womens lives are threatened !often in the private sphere". )ame goes
for prohibition against !public" torture.
Dhe 0collective1 right to self5determination has overshadowed womens rights.
Class
Feminist rethining of .us cogens might prioriti&e different human rights, such as the right to sexual e@uality,
to food, to be free from fear of violence, and to peace.
Dhe eIua0 4rotection of women is stressed in the (, Charter and International ?ill of #ights !p. 1FH". ?ut
these instruments are critici&ed by feminists.
.olmes Dhe protection of the family !$rt. 1H, (*.#" amounts to a defense of patriarchy and hierarchy.
#eanda Dheres been a ghettoi&ation of womens rights to structures !(, Commission on the )tatus of
2omen and the C3*$2 Committee" that have less power and resources than the general human rights
structures !(, Commission on .# or ICC-# .# Committee".
EDA;,s Su1stanti6e Pro6isions >4< 1JK)
Class and #eading
-reambleUnonbinding, provides philosophy underlying the treaty and legislative bacground !@uotes
the (, charter, (*.#, International Covenants"
$rt. 1Ugives comprehensive definition of discrimination against women. #efers to 0effect1
!conse@uences" as well as 0purpose1 !intentions" of govt measures.
$rt. 9Ulists all the traditional things state parties must do to condemn discrimination against women.
?ut see the importance of drafting language'
o -rof says treaty language is weasel language' 0)tatesOagree to pursue by all appropriate
means and !6o delay1 IA-+))I?>3T
o +n the other hand, rightfully pressuring states to start w%o delay.
$rt. ;U)tates should tae all appropriate measures to modify cultural conduct of men and womenO
o Isnt this utopian/ -atterns of sex are strongly reinforced by culture.
o 2here do you draw the line/ 3nd 0Aiss $merica1 pageant/
o Is this uselessly general/heavy5handed, impossible.
o +r usefully general/ gives countries flexibility in a touchy area and depicts the universality
of prejudice against women.
Aore reservations to C3*$2 than to any other .# treaty.
omment on T54es o3 State -uties Im4osed 15 HR Treaties >4< 1ML)
55,ote the difference between so5called negative rights !where the state has a duty of non5interference" and
positive rights !where the state has an affirmative duty to provide". ,egative rights are associated with
civil%political rights and positive rights with economic%social rights.
55Dhe usefulness of the categori&ation of positive%negative rights is debatableM see the five types of state
duties !derived from writings by )hue, van .oof" !p.1G95GC"'
1. #espect #ights of +thers
9. Create Institutional Aachinery 3ssential to #eali&ation of #ights
L. -rotect #ights%-revent 4iolations
C. -rovide 6oods and )ervices to )atisfy #ights
;. -romote #ights
55$ll five are arguably negative and positive. Draditional arguments !Cranston, p. 1G;" that civil%political
rights are easier to institute, and therefore more genuine, seem invalid.
-art II !p.1G;5919"
Ta2e a.a5 4oints
2e should @uestion the C3*$2 Committees all5female composition
o -uts womens concerns at the forefront/ >imits womens (, participation/ )uggests men
have no stae in womens rights/ Fails to provide a realistic cross5section/
Vuestions of prioriti&ation of rights arise when looing at C3*$2 and the C3*$2 Committees
reports
Cultural norms can be used to justify gender5based discrimination and violence
3ven strong recommendations to states are suggestions couched in diplomatic language
Concern about states governing private life a hindrance to C3*$2 ratification
Rights as Duties
p. 1G; ,icels -o! -uman 'ights Generate 7uties to Protect and Provide, 1KKL
-ractical advantages of emphasi&ing duties connected with rights
o Aoves the debate in the direction of implementation
o -olitical discussions can include prioriti&ation of rights
o 3mphasi&es the inade@uacies of the current internatl political and economic order
Identifies 0secondary addressees1 who must create and maintain a political systems that respect and
protect fundamental rights
o -eople of a country
o Internatl institutions
EDA; ommittee
p. 1GG ?yrnes 8he Committee on the #limination of 7iscrimination "gainst 9omen
)uggests that men serve on the C3*$2 committee, because, as humans, they also have a stae in
womens rights
Committee now provides general recommendations in addition to hearing states reports
o #ecommendations have begun to influence law5maing, policy5maing, judicial decisions,
and womens rights advocates
p. 1K1 C3*$2 Committees Concluding :servations on 8hird and ;ourth Periodic 'e(orts on China,
1KKK
Finds Chinas report on meeting C3*$2s goals insufficient
Dhough the Committee praises China for submitting a report and uses diplomatic language, -rof.
$lston thins suggestions as strong as these would be laughable if directed at a country lie the (.).
+bservations include' evidence of continued male superiority, failure to empower women,
identification of women with children, failure to legally define discrimination against women, failure
to decriminali&e prostitution, disparity in male%female birth ratio
o -rof. $lston notes that there is no rights prioriti&ation here
p. 1K;59:9 C3*$2s General 'ecommendations
[9L -olitical and -ublic >ife
o #ecommendations include' allowing women to participate in public life, closing the gap b%w
de jure and de facto inclusion of women, having women broadly represented in the top levels
of govt !L:5L;\", increased opportunities for women to participate in law5maing, unions,
boards, ,6+s, diplomacy, etc.
o $gain, the document does not prioriti&e
[ 1K 4iolence $gainst 2omen
o *escribes gender5based violence as a form of discrimination that prevents women from
enjoying rights to life, not to be tortured, to liberty and security of person, to health etc.
o )exual harassment prevents e@uality in the worplace
o )tates should ensure that laws give women ade@uate protection, support services and safe
medical treatment are available, media respect women, etc.
'io0ence Against ;omen
p. 9:C )pecial #apporteurs <iolence "gainst 9omen= Preliminary 'e(ort, 1KKC
6ender5based violence reinforces ine@uality and female subordination
Familial and cultural tradition can be used to justify and mas violence
Im40ementing EDA;,s Goa0s
p. 9:F Comment on #fforts 8o!ards >.$. 'atification of C#7"9
)enate Committee on Foreign #elations recommended ratification with numerous reservations
stemming from (.). commitment to 0individual privacy and freedom from govtl interference1
Convention never reached )enate floor
p. 9:K <ienna 7eclaration and Programme of "ction, 1KKL
-roduct of the (, Conference on .uman #ights
*eclares that
o 3@ual status of women should be integrated into mainstream (, activity
o )tates are urged to withdraw reservations
o 2oman have a right to accessible and ade@uate health care and education
o 6overnments and organi&ations should ensure greater participation by women in decision5
maing
ASSIGNMENT M:___________________________________________________________
Economic and Socia0 Rights
Dextboo pp. 9LF5KK and handout
A1 (ocio6economic conte7t and historical backround8 #129:6
1< Introduction: 44< #)J&M
Dogether, the ICC-# and IC3)C# 0constitute the bedroc of the international normative regime1
$33icia0 4osition that the two sets of standards are 0universal, indivisible, interdependent and
interrelated. Dhe international community must treat human rights globally in a fair and e@ual
manner, on the same footing, and with the same emphasis.1 !4ienna *eclaration, para P;Q"
o Disagreement a1out status' whether C-# are superior in value or logically%chronologically
prior to C3)#, one inimical to reali&ation of other, or vice5versa
o Aost go6ernments have taen intermediate 4osition= at least officially
o In practice, typical response involves support for e@ual status but failure to implement
o Ideological baggage, lac of clarity of thought, Cold 2ar, north5south divide
o -er 3)C# Committee statement to 4ienna 2orld Conference, 1KKL, breaches of C-# on
similar scale to ongoing 3)C# breaches would provoe outrage
BE( ISS"ES
;H( G$'ERNMENTA% AM*I'A%ENE7
;HAT AN *E D$NE A*$"T IT7
H$; T$ SE"RE IMP%EMENTATI$N AND A$"NTA*I%IT( - 9usticia1i0it5= remedies
and en3orcement
#< Sca0e o3 4ro10em: 44< #)K&#+1
4arious statistics on denial of 3)C#: e<g< )LN of worlds population on less than S1%day in 1KKL
)< omment on historica0 origins o3 ESR: 44< #+#&?
$rigins' religious doctrine, philosophy and political theory, political precedents, constitutional
precedents
o Creation of I%$ 0to guarantee fair and humane conditions of labor1 in 1K1K after 221
o 1KL:s, Great De4ression= need for full employment and social protection stressed
Commitment in "N harter Art< ??>a) to 0promote higher standards of living, full employment,
conditions of economic and social progress and development1, but no means of enforcement
specified, on basis of () concerns over sovereignty
o $t this stage, approach did not imply outright () hostility' per !DR,s So" address 1KCC,
0necessitous men are not free men.1
o 1KCC $>I committees Dra3t Internationa0 *i00 o3 Rights reflected this concern, including
3)C# as well as traditional C-# in one document
o *raft of (*.#, $rts. 9959G, supported by many states but opposed inter alia because
0condition for existence does not constitute a fundamental human right merely because it is
eminently desirable for the fullest realisation of all human potentialitiesO Pto reali&e fully
would re@uireQ more or less totalitarian control of the economic life of the country.1 !)outh
$frican objection"
o $rts. 9959G translated into IC3)C# by 1KHH, delay owing to Cold 2ar, () oppositionM
IC3)C# and ICC-# ado4ted se4arate05 3or 4o0itica0 and not normati6e reasons, though
distinctions drawn by 2estern dominated .# Committee not uncontroversial !e.g.
enforceability, justiciability, legal v. political status, programmatic nature".
+< The IESR: 44< #+?&K= 44< 1)K?&1+L1
3ntry into force on 1%L%1KFH
-art I' self5determinationM -art II' general nature of obligationsM -art III' specific substantive rightsM
-art I4' international implementationM -art 4' final provisionsM rights contained very expansive
Di33erences 1et.een the IPR and IESR
o $rt. 9!1"' obligation of states parties to implement subject to a6ai0a1i0it5 o3 resources, and to
4rogressi6e rea0iFation
o -recise international constraints on government behaviour not therefore possible,
programmatic nature of the reali&ation enterprise means difficult to determine when
obligations have been met
#ights contained in covenants interde4endent= however
No distinction drawn between economic social and cultural rights
6overnments must adopt Ga00 a44ro4riate meansH of enforcement B presumably including
legislative and judicial remedies
IESR ommittee established 1KGF to monitor compliance, reports initially within 9 years then at
; yearly intervalsM 1G members, elected by 3C+)+C for ; year terms and representing e@uitable
geographic distribution, concluding observations, general comments
01 Challenes to ;conomic and (ocial Rihts8 ##1 2<=6
1< omment on go6ernmenta0 am1i6a0ence: 44<#+K&#?1
Dhough only openly hosti0e government is "S, most other governments have been eener in word
than deedM () position has varied with color and ideology of administration
Dhis despite the observations of >ouis .enin, writing in 1KGC, who considered that, in practice, the
welfare state had constitutional legal status in the ()
hinese are in favour, but a 0cheap exercise1 in that no enforcement is considered necessaryM
Euro4eans are in favor both of 3)# and enforcement
#< omment on the -e(hane% ase: 44< #?#&#?+
0$ suggestive decision1 of the () )C in relation to the complexity of the issues that arise
.eld H5L, per #ehn@uist C=, that due&4rocess clause re@uirements in relation to state denials of right
to life did not a4405 to a states omission to intervene to prevent the severe physical injury of a boy
who had been repeatedly beaten by his father and who had been rendered mentally retarded
#elationship between 4ositi6e versus negati6e duties ey
)< *eetham= ;hat 3uture 3or ESR7 44< #??&#?A
In favour of 3)#
Dypically argued that rights must be fundamental and universal, definable in justiciable form, clarity
as to who bears duty, duty5bearer should have capacity to fulfil obligationO not satisfied by 3)#, as
as(irations rather than rights
$lso -aternalist and bureaucratic apparatus to reali&e would interfere with right to freedom
?ut the rights do meet test of being fundamental and universal, in that they secure the basic means of
human agency )pecificity through concept of minimum core5contentM inevitable that some
arbitrariness will obtain but significant thresholds are clear and many violations will not present this
difficulty, e.g. discriminatory access to education
+< Be00e5= A 0i3e o3 one,s o.n: indi6idua0 rights and the .e03are state: 44< #?J&AL
0Dhe world does not owe us a living.1 $gainst 3)#. #ecounts distinctions between two categories of
rights.
2elfare rights are rights to goods, not to freedom from inaction as with the classical 3nlightenment
C-#M processes versus outcomes, interaction versus success, individual duty bearers versus society as
a whole, activist government, level of implementation historically relative
0In short, liberty rights reflect an individualist political philosophy that pri&es freedom, welfare rights
a communitarian or collectivist one that is willing to sacrifice freedomO.1
Vuery how this establishes that the rights are not really rights, as opposed to their having a political
and substantive content with which the author disagrees/
?< Sunstein and Ho0mes= The ost o3 Rights: ;h5 0i1ert5 de4ends on ta/es: 44< #AL&1
-ositive%negative distinction !elaborated in detail" inadeIuate. $ll legally enforced rights are
necessarily positive rights because government intervention always necessary to vindicate
Remedies are cost05, therefore rights are also costly
#ights are 4u10ic goods' rights as taxpayer funded and government managed social services designed
to improve collective and individual well5being.
$ll rights are positive rights.
ESR PR omment
4ague and imprecise )pecificity C-# subject to several hundred
years of adjudication and
interpretation, so impression is
that they are more specific than
they actually are on their face
,on5justiciable =usticiability
-ositive ,egative $ny C-# will always have
positive implications
#esource issue ,o resource issue Dhis is misleading, e.g. prison
conditions expected of )weden
higher than Chad
-rogressive Immediate
Collective Individual $rgument that 3)# are not
capable of individual litigation
and vindication as result
,on self5executing )elf5executing
< The 0earer and *ature of the -uties under the IC;(CR8 ##1 23>623?
1< P4< #A#&#A?: duties are mora0 and 4hi0oso4hica0 in nature
#< Minimum core content o3 o10igations: Genera0 omment No<)= ESR ommittee >1KKL)
$rt. 9 contains o10igations o3 conduct and o10igations o3 resu0tM some rights are subject to
progressive reali&ation but some obligations are of immediate effect, e.g. obligation to guarantee
rights without discrimination
)imilarly, $rt. 9!1" obligation to 0ta2e ste4s1 towards reali&ation' states cannot rely on progressivity
to justify complete inactionM 0to maximum extent of available resources1 re@uires demonstration that
no more resources available
Dhe full reali&ation of the rights might tae time, but intention of overall objective c0ear
Minimum core content is to guarantee at least the minimum essential features of particular rights
incumbent upon each state in relation to a particular fact pattern
Aoreover, obligations to monitor are not removed as result of resource constraintsM adoption of
relatively low5cost targeted programmes to eliminate the acute suffering of the worst off in relation to
a particular right always possible
)< Genera0 omment No< 1# >1KKK)
*emonstrates how a right which is seemingly im4recise can be given su1stance and meaning
*istinctions drawn between o10igations to res4ect= 4rotect and to 3u03i0. +bligation to fulfil
includes obligation to facilitate and to provide, in context of right to food.
Res4ect' states parties obliged not to tae steps preventing access
Protect' states must 4re6ent third 4arties 3rom im4inging on rights
!u03i0' !facilitate" B proactive engagement in activities intended to strengthen access to and utili&ation
of resourcesM fulfil !provide" B direct provision of right where unable to be enjoyed autonomously
Dhese are all ways in which 3)# can be rendered more precise and thus enforceable
-1 Relationshi# between two sets of rihts8 ##1 23?6:@
#hetoric of indivisibility gives way to clear priority being accorded to C-# in rights discourseM e.g. historical
lac of interest in violations by ,6+s. $rgument of the section is that both sets of rights appear to be
inextricably lined' where one set of rights is not secure, the other will not be either. ,ot coincidental later
on that two of the substantive examples which are considered in the materials, )outh $frica and ,orthern
Ireland, were places of extensive C-# as well as 3)# violations.
;1 Austiciabilit% and the role of courts in de+elo#in ;conomic and (ocial Rihts8 ##1 2:@6
)ection examines assumption that traditional legal remedies are either inappropriate or impracticable.
8usticia1i0it5 need not be an indispensable characteristic of a human right. -aths and strategies distinct from
the formal legal system need to be pursued. 4arious issues arise from readings'
1< Genera0 omment No<K= ESR ommittee >1KKM): 44< #JA&J
?oth a 9udicia0 and an administrati6e approach towards vindication will be appropriate, but judicial
remedies are often taen to be inappropriate
Dhis is not warranted by the nature of the rights or the relevant provisions of the Covenant
)ome rights are capable of immediate implementation, e.g. $rts. L and F!a"!i"M therefore distinction
between justiciability and self5execution of norms must be made
Dhere is moreover no right in the Covenant which could not be capable of having some significant
justiciable dimensions >Precision issue)
Courts are already involved in matters which have significant resource implications, so on its own,
this is not an argument for non5intervention by the judiciaryM adoption of rigid distinction would be
arbitrary and incompatible with notion of indivisibility
#< !a1re= onstitutiona0iFing Socia0 Rights: 44< #JM&ML
Dhe constitutionali&ation of social rights raises the @uestion of the proper role of the judges in a
democracy, on grounds of democratic legitimacy and relative institutional competence
?oth of these concerns can be overcome, and on their own they are not decisive
>%egitimac5 issue): argued that judiciary should enforce duty but not means of fulfilling duty= and
that judiciary should adjudicate conflicts between social rights and choose between conflicting
resource allocations, because they already do so in the negative rights sphere
>om4etence issue): judges do in practice adjudicate @uestions of resource allocations in
administrative law and @uestions of polycentricity imply improved training and information, expert
testimony, not non5justiciability of the claim
$bility of judges to decide on violations might be limited in some cases but not in others
)< Sunstein= Against Positi6e Rights= 44< #ML&#M#
In specific relation to the catalogue of social and economic rights in the actual and proposed
constitutions of the ex5communist 3astern 3uropean countries, )unstein argues that the inclusion of a
0da&&ling array of social and economic rights1 is misguided >conte/t issue)
$rgument applies to countries which are in transition from socialist to maret economy
6overnments should not be compelled to interfere with free marets
Aany positive rights are unenforceable by the courts B overly aspirational economic and social rights
statements may serve therefore to bring the law into disrepute
Inclusion of positive rights could wor against general current effort to diminish sense of entitlement
to state protection and encourage individual initiative
+< ase stud5: India and Directi6e Princi40es o3 State Po0ic5 >DPSPs): 44< #M)&K)
(nder Indian Constn., *-)-s are usually considered to be inferior in status to C-#, in that not fully
judiciali&ed
)ee p. 9GC for full example of what a *-)- is
)ee ?axi, p. 9G;, for example of ways in which Indian )C has sought to mae its jurisdiction result in
concrete improvements for 3)# of litigants
In particular, remedial focus, adoption of rigorous post5judgment oversight, and dialogic nature of the
litigation and enforcement process' c3 to SA e/am40e= 1ut N* 4er A0ston Indian a44roach ad hoc
and not su33icient05 conce4tua0iFed
:lga 8ellis case' $rt. 91 Indian Constitution guaranteeing right to 0i3e inc0udes right to 0i6e0ihood,
therefore the e6iction of slum and pavement dwellers in ?ombay from their homes without the
provision of alternative accommodation was not constitutiona0 because it would deprive the
applicants of their livelihood, and thus their right to life, in the absence of procedures established by
law
Court thus got around the non&en3orcea10e nature o3 the DPSP conce4t' a *-)- may not by
affirmative action be compelled upon an authority, but any person who is deprived of his right to
livelihood except according to a just and fair procedure according to law was held enforceable as
offending $rt. 91
02ithout notice1 procedure for eviction had to be construed in accordance with the re@uirements of
9ustice and 3air 40a5M thus the discretion granted as to whether to give notice of eviction or not fell
foul of the re@uirements of the Constitution
Court went on to decide the substantive merits of the case, in a step it itself regarded as exceptional
?< South A3rican 9uris4rudence: 44< #K)&KK 40us handout
$ooramoney' ) suffered from a number of ailments, including idney failure which was diagnosed
as irreversible. 8idney dialysis treatment .as re3used on 1asis o3 0ac2 o3 resources. .eld per )$
Constitutional Court, Chasalson -, that the right to hea0thcare .as not un0imited but was rather
de4endent on the amount o3 resources a6ai0a10eM only immediate emergency treatment was
available as of right. )s condition could not be considered an emergency as it was of chronic
duration. Dhe issue was political and was inappropriate for resolution by the court.
)o long as the decision to deny care was taen rationa005 and in good 3aith !here in accordance with
a published health policy which allowed the benefits of the e@uipment to be spread as widely as
possible", having regard to the needs of society as a whole as well as the individual, a denial of care
was not unconstitutional sections 9H and 9F of the )$ Constitution, providing for constitutional
adjudication of certain 3)#s, are dependent on the access to resources for such purposes and are
therefore not unlimited in scope
Grootoom: !handout" the residents of a slum had no basic services and lived in extreme poverty. Dhe
residents moved onto an adjacent plot of land. Dhe private owner of the land applied for eviction.
.eld by the Constitutional Court that the state had breached its s. 9H obligations
$ reasona10eness reIuirement had to 1e read into s< #A>#)M thus the housing plan as established
fell short of the !minimum core" obligation to provide relief to people in desperate needM a reasonable
part of the budget was therefore re@uired to be devoted to such relief !see para PC1Q", cf 6eneral
Comment ,o. L, because no government could not afford to provide basic shelter and clean drining
water
.as been argued that this represents a 0o.ering o3 the high thresho0d to relief in $ooramoney, in
that the reasonableness criterion grants a court a wider discretion in deciding the substance in a given
case
Grootoom has been criticiFed, however' the judgment has proved virtually unen3orcea10e, as no
remedy was specified. )ee further ?erat, L I.C+, LK !9::;", who argues that the )$ CC has been
most unsuccessful in developing a meaningful approach to these issues.
Aention in passing of the 8reatment "ction Cam(aign !access to anti5retroviral drugs for .I4Z
mothers in labor" and 5hosa as decisions where the court both 0o.ered the standard o3 re6ie. again
and elaborated on the minimum core content which was applicable
A< McBee6er and Ni Ao0ain: su440ementar5 materia0s on 9usticia1i0it5 o3 ESR >handout)
3nforcement can be viewed in imaginative and non linear ways' e.g. reporting mechanisms
considered 0enforcement1
=udicial enforcement can operate as means of successful rights enjoyment, but on its own may not be
sufficient, in failing to address the underlying structural causes that give rise to social and economic
rights violations
2hat is re@uired therefore is a 04rogrammatic1 model, involving legislatures, public bodies and
judicial branches
+utlines minimum enforcement and substantive enforcement models of judicial adjudication of 3)#'
due5process versus enforcement of a set of social and economic rights protections
3ither, in combination with programmatic model, results in benefits as regards the enforcement and
protection of rightsM programmatic model defined as pro5active development of strategies serving to
embed 3)# in policy and practiceM $rgument supported by reference to experiences in ,orthern
Ireland
ASSIGNMENT K:___________________________________________________________
Economic and Socia0 Rights II: The 8usticia1i0it5 o3 Economic and Socia0 Rights
$. .o+ernment of (outh Africa +1 .rootbloom= >South A3rican onstitutiona0 t= #LLL)
a. Case represents'
i. move to a reasonableness test in evaluating government protection of economic and
social rights
ii. minimum core concept notion in practice
b. Facts
i. #espondents shacs, which had been set up on vacant privately owned land earmared
for low5cost housing, were bulldo&ed pursuant to court order, and respondents were
evicted.
c. .eld' )tate must tae reasonable measures to provide relief for people with no access to land
and living in intolerable conditions'
i. ILK of Constitution re@uires consideration of international law
1. Covenant B right to ade@uate standard of living
9. -ara. 1: of 6eneral Comment L B minimum core obligation of states'
a. 3ach right has minimum essential level that must be satisfied
b. *etermine the minimum core obligation by looing to needs of the most
vulnerable group entitled to protection
ii. #easonableness'
1. )tate must create conditions for access to ade@uate housing for people at all
economic levels B must 0unloc1 the system for the poor
9. )tates obligation depends on context' may differ depending on city, urban%rural,
person to person
L. Aust move to progressive reali&ation of the right
C. -recise contours of the program are matter for the legislature and the executive B
but court will evaluate'
a. 2hether more desirable methods could have been adopted
b. 2hether public money could have been better spent
c. ,ote' many programmes may meet the re@uirement of reasonableness
;. 3ven if the measures are statistically successful but fail to respond to the needs
of the most desperate, they may not pass the test
H. $vailability of resources will be considered B important factor.
?. Minister of Health +1 Treatment Action Cam#ain" >South A3rican onst< t= #LL#)
a. .eightened reasonableness test in practice
b. Facts' D$C brings case a%g Ainister of .ealth for failing to mae the drug ,evirapine available
to pregnant women with .I4 B drug was available free of charge to the govt from drug
companies.
c. *ecision'
i. ?ill of #ights guarantees access to health careM specifically protects childrens rights
ii. 6ovt is constitutionally obliged to plan a progressive program for reali&ation of the
right, with reference to the 0minimum core1 obligation B but note that the minimum core
standard is but one consideration for reasonableness, not a stand5alone test
iii. 6ovts actions are not reasonable'
1. the drug will save lives
9. prospects of the child suffering are so slim that they do not outweigh benefits of
the drug
L. confining the drug to research and training sights fails to address needs of
mothers J children who dont have access to the sites
a. just because the drug is available in this context does not mae the
program sufficient
C. .I4 a great threat to public health B despite the difficulties in confronting the
problem, it is a constitutional obligation to do so
< ritiIues o3 Greasona10enessH scrutin5 >c0ass notes)
a. -otential problem of a court imposing unrealistically high standards on a government with little
resources
i. Counters'
1. financial resources can and should be taen into account, per Grootloom
9. resources were out of the picture in %inister of -ealth= so the decision should
have been scrutini&ed heavily
b. Dhe )outh $frican cases have not had as great of an impact as hopedM the courts provided little
guidance as to implementation, and there is insufficient judicial follow5up
c. 4irtual abandonment of 0minimum core content1 not helpfulM can probably still be given
meaning at national level !$lston"
d. Institutional competence problems' court not democratically accountable B should not have
power to issue these injunctions and scrutini&e reasonableness
1. Counter' justiciability of economic and social rights depends on scrutini&ing
reasonableness, particularly when a constitutional provision guarantees the
economic and social rights !as in )outh $frican cases"
a. also, process arg B court should protect minorities when political process
fails, or in the wae of apartheid
D< McBee6er and Ni Ao0ain= GThin2ing G0o1a005= Acting %oca005: En3orcing Socio Economic Rights
in Northern Ire0andH
a. 3nforcement of economic and social rights 0has to be viewed in imaginative and not linear
ways1 B not in the way civil and political rights are enforced
b. -roposes programmatic model B legislatures, public bodies, and judicial branches all play role
in protecting econ J social rights
c. $cnowledges judicial hostility to econ J social rights
i. 3)# thought of as not rights at all, but political preferences
ii. =udges wary to enter into redistribution
1. counter' authors argue that judges routinely mae choices that have strong
financial implications for litigantsM when language of rights is part of the context
of deliberation, should be able to mae large5scale financial decisions related to
rights
iii. 6eneral modes of judicial enforcement of 3)#' minimum enforcement model +#
substantive enforcement model
1. minimum enforcement' sets up minimal plane of justiciability for 3)#M gives
courts legal capacity to decide whether access to svcs is fair, impartial, non5
discriminatory, and subject to procedural protections.
a. ?enefits' avoids claims of judicial overreachM indirectly operates to affect
the substantive provisions of these rights
9. substantive enforcement'sees to define and enforce a set of rights protections
a. many variations on this model
b. eg, right to education in Irish Constitution, right to fair housing in )outh
$frican constitution
c. benefits' 3)# given formal legal status on par with civil and political
rights
d. cons' older constitutions do not have these provisions, and the
amendment process can be cumbersome
iv. $uthors say that the judicial role can be substantially augmented if it wors in tandem
with the programmatic model
d. -rogrammatic model'
i. -ro5active development of strategies
ii. #egulatory mechanisms aimed at modifying admin actions of state and large private
sector organi&ations
iii. ,o exclusive reliance on judicial remedies B legislation, policy, and practice a focus
iv. $cnowledgement that poverty and social exclusion are not contexts B need continuous
monitoring and review
v. Identify areas of deprivation and target resources to those areas
vi. Aay use sample survey of general public to decide what basic necessities of life are 5
used to define indicators of deprivation
vii. Aae the legislation subject to same scrutiny as policies of public authorities
ASSIGNMENT 1L:__________________________________________________________
The ha00enges o3 Re0ati6ism
!pp. L9L5L:M LLL5LGM LHH5F;M LGK5KGM C:L5LG"
$lston !class"'
?y the close of the Cold 2ar up through beginning of 1KK:s, we had the beginnings of state5applied
sanctions. Aore interference in governments sphere, less sovereign independence.
o #eaction to this was defense of cultural relativism
#ights, *uties, and Cultural #elativism
$>)D+, !class"'
.uman rights vs. natural rights
o ?egan with 3nlightenment
o ?y 1Gth%1Kth Century' septicism.
o Dheological and naturalist approaches
THE N$TI$N $! PRIGHTS,: $RIGINS AND RE%ATI$N T$ PD"TIESH
-uman 'ights !?urns ;eston"
Ptae5away' natural rights evolve into human rightsQ
Dhe term 0human rights1 is relatively new, replacing 0natural rights1 which had evolved out of
conceptions of natural law through 1Fth%1Gth centuries !i.e. >oces state of nature that humans chose to
leave behind to enter into social contract he argued that certain rights self5evidently pertain to individual
human beings and that we surrender the enforcement of these rights to the state". Dhe term natural rights
began to fall into disfavor because the rights were conceived of in absolutist terms !0inalterable1, 0eternal1"
and therefore in conflict with one another. $ttac intensified and broadened during the 1Kth%9:th century.
$fter decline of 0natural rights1, there were still ideas about rights of people out there !manifested by
abolition of slavery, unionism, education etc" even though the term 0human rights1 didnt really gain
currency until after ,a&i 6ermany.
Contem(orary 'einter(retation of the Conce(t of -uman 'ights !*avid Sidors25"
Ptae5away' natural rights bled into human rights on a continuum5lie dealQ
(niversal human rights assert universal norms or standards applicable to all human societiesM while
human rights is more about individuals who have moral rights just by virtue of being human, which no
society may deny.
Dhe theory of natural rights5 influenced political development in 2estern society and there is a
continuity between that tradition and todays formulations of human rights, which is evidenced by the
following things that both 0natural rights1 and 0human rights1 have in common' development a list of
specific rightsM ascribed to human beings by virtue of being humanM based in peoples rational choice that
should not be subject to arbitrary incursionM are comprised more in terms of negative freedoms rather than
positive liberties, and are held to be rationally self5evident, or universal not relative.
$>)D+, !class"'
-ost5modern criti@ues of rights
o *ifferent arguments about rights. #ights have some value but as soon as you play the 0rights
trump1 card, everything else is done.
o #ights provide some framewor for analysis5 criti@ues are relevantand important but do not
undermine the relevance of rights.
,o compelling alternative.
Call for more discourse%conversationM signal us to tae care with a pure reliance on
formalistic or positivist discourse. =ust saying that the treaty has been signed isnt
enough to resolve complexities
-uman 'ights= Peo(les? 'ights !3ugene Bamen2a"
Ptae5away' rights are dependent on enforcement by a )ystemQ
*istinguishes claims of rights from other types of claims. Dhe success of rights is bound up in the
social context and is dependent on endorsement by a government or legal system to grant and protect. 3ven
though no longer couched in terms of natural law or god, human rights still claim a form of endorsement that
transcends specific historical institutions and traditions and asserts its own moral logic. Dhat conception
ignores specific historical circumstances in which the claims of rights arise.
'ights and 8heir Critics !Cass Sustein"
Ptae5away' criti@ues of rights have partial truth but rights are still the bestQ
#esponding to broad 0criti@ue of rights1 that he deems partially true but ultimately failing to
undermine the validity of a rights regime. .e lists categories of charges against rights' $" rights are
essentially social and collective in character !not individualistic as often cast" and depend on collective
institutions and communal supportM ?" rights are strident and absolutist in character and do not admit
compromiseM C" rights are too indeterminate and thus unhelpfulM *"rights are excessively individualistic and
neglect eh moral and social dimensions of important problemsM 3"rights may be excessively conservative and
antidemocratic force, protecting existing distributionsM F" rights crowd out the issue of responsibilities and
duties people owe each other.
"NI'ERSA%ISM AND "%T"RA% RE%ATI'ISM
@ote from the boo on the (niversalist5#elativist *ebate'
Ptae5away' universalism vs. cultural relativism explained. (, is mainly universalistQ
.uman rights are understood in different but related ways' relativism !contingent rights, or self5
determination of peoples" versus univeralism !absolute rights or imperialism in imposing rights".
(niversalism insists that human rights must be the same everywhere !may allow for culturally influenced
forms of implementation or reali&ation". .uman rights instruments are located on this side of the debate
!(niversal *ecl., etc". Dhere are no concessions to cultural variations in the two Covenants. Cultural
relativism insists that rights depend on cultural contexts and rights will different throughout the world. Do
relativist, human rights instruments may represent the cultural imperialism of the 2est, destroy diversity of
culture, and lead to cultural homogeni&ation. Dhe strong relativist position goes on to suggest that there are
no transcendent ideas of rights that can be agreed on and hence no culture or state is justified in attempting to
impose their ideas on others. Dhe debate is less important post5Cold 2ar but is now more of a ,orth5)outh
or 2est5Islam framewor.
Dhe following articles come out of anthropology literature on cultural relativism. $nthropology is
relevant to relativism b%c they were thining about all this before human rights were even around'
$>)D+, !class"' anthropologys relativism different from philosophical relativism. )ocial
sciences didnt tal about human rights until 1KK:s
Culture and %oralityA 8he 'elativity of <alues in "nthro(ology !3lvin Hatch"
Ptae5away' ethical relativism respects moral principles of every culture but has fallen into disregard because
today people believe that there are general universal principlesQ
$ll societies have moral systems. 3thical relativism' the position that the content of moral principles
varies among human beings !opposite of absolutism' universal moral principles". Dwo versions of ethical
relativism' the 0?oasian1 call for tolerance of other societies moral systems and implies that we ought to
respect other ways of life. Criti@ues argue that there are moral values that ought not be respected !i.e.
intolerance of other cultures"M and the ?oasian way is too committed to the status @uo !allows genocideO".
#elativism has fallen into disfavor because non52estern peoples want to change some $,* most
people believe in general values ought be applied throughout world.
American Anthro4o0ogica0 Association, $tatement on -uman 'ights
!2ritten to the Commission on .uman #ights in order to influence the drafting of (*"
Ptae5away' anthropologists were down with relativism in the (*.#M have moved from objectivity to
activist roleQ
$>)D+, !class"' this is a call for complexity, acnowledging the difficulty. Aay also be read as a call
for relativism.
#espect for the personality of the individual and respect for cultures of different human groups are
both e@ually important. .ow do we draft a (niversal *eclaration that does that/ #espect for the individual
differences entails a respect for cultural differences because people are products of their culture.
In 1KKH, the $$$ too an activist stand against the destruction of a )ri >anan culture !reported in
the ,7Dimes" which shows that the profession of anthropology has moved away from professional
objectivity and many now feel that they have a responsibility to protect those groups whose cultures are
under assault.
$>)D+, !class"' following are practical application stances
-uman 'ights in the %uslim 9orld !$bdullah $hmed An&Na,im"
Ptae5away' in order to get Auslim world on board in human rights, you should couch it in the framewor of
IslamQ
$>)D+, !class"' Islam and human rights. If you are going to bring about change w%in any
setting, you cant just impose it from the outside. 7ou have to wor from within. Dhere is nothing inherently
incompatible between the two. !you can apply this analysis to other religionsUsame arguments"
)haria, historical formulation of Islamic religious law, influences individual and collective behavior
in Auslim countries through sociali&ation even though it contains no enacted legal code. .uman rights
activists should struggle to have new, .#5friendly interpretations of religious texts adopted for contemporary
world. Dhat would give human rights a cultural legitimacy that it lacs today. Dhat illegitimacy stems from
the historical non5participation in the creation of human rights instruments.
)haria addresses conscience of individual Auslims, not the state or society. Instead, )haria should
be adopted as a formal legal system that is consistent with current standards of human rights.
Auslim scholars woring from primary sources may shift emphasis and reinterpret texts in ways
consistent with a new understanding of what is believed to be the intent and purpose of the sources, which
would be informed by contemporary social, economic, and political circumstances. For example, @awama
!general principles governing womens status" could be reinterpreted to support human rights for women.
Dhe ultimate test of legitimacy and efficacy is, of course, acceptance and implementation by
Auslims.
Conflicting Draditions and #ights' Illustrations
$lston !class"' F6A illustrations'
debate'
a. 2hat is culture/ $lways changingM we cant free&e it.
b. *ont forget wor being done locally.
i. 3ssential 1st step from outside' put the issue on the table.
c. @uestion of double standards'
i. 8eep things in perspective. ?ig campaigns against F6A but we dont do anything
about those same children dying of preventable diseases.
human rights is all about getting cultures to change anyway
GENDER: "ST$M AND "%T"RE
@ote from boo on Custom and Culture
Dhere is a significant potential for conflict between the objectives of human rights treaties versus
customary law and practices !and religious beliefs". 6ender5related issues are a big example. Aany
customary practices conflict with C3*$2, so what do you do/
"nti-#ssentialism= 'elativism= and -uman 'ights !Dracy Higgins"
Ptae5away' feminism must tae cultural practices into consideration when struggling for international
womens movementQ
In the face of profound cultural differences among women, how can feminists maintain a global
political movement yet avoid charges of cultural imperialism/ Dhere is a tension within feminism itself
!basing political action in womens collective experiences v. respecting differences". .ere, .iggins argues
that feminism must tae cultural defenses, especially those articulated by women, seriously.
.iggins concludes that simple tolerance of cultural difference is too broad while objective
condemnation of cultural practices is too narrow. 0Forging a combined strategy that respects both
commonality and difference re@uires feminists to acnowledge that we cannot eliminate the ris of coercion,
but the ris of inaction is also ever present.1
<ie!s of Commentators aout ;emale Circumcision6Genital %utilation !2orld .ealth +rgani&ation
Chronicle"
Ptae5away' 3fforts to ban F6A are ineffectualM there is a need to address underlying need for social status of
women and girlsQ
;emale CircumcisionA Challenges to the Practice as a -uman 'ights <iolation !8ay *ou0.are&
Mi00er"
Ptae5away' framing female circumcision as a violation of childrens rights may alienate the population that
an activist hopes to influenceQ
Do say that female circumcision is a violation of the rights of children has a number of problems.
First, positions the parent as incompetent and abusive, so any parent will reject the argument. -arents want to
raise their children independently and believe they now what is in their childs best interests. It only sees
the physical harm and ignores the positive feelings that may have as a circumcised woman with social and
economic benefits. )tigma such that young girls want the operation.
Dhe right to health argument is more liely to be accepted and integrates into pre5existing values and
priorities.
"rrogant Perce(tions= 9orld 8raveling and %ulticultural ;eminismA the Case of ;emale Genital
$urgeries !Isabelle Gunning"
Ptae5away' through the process of dialogue, we can agree on some shared values with respect to cultural
diversityQ
+ne is not stuc between choosing 0universal standards1 and 0everything is relative1. It is not that
there are universals out there waiting to be discovered. ?ut through dialogue, shared values can become
universal and be safeguarded. Dhe process by which these universal standards are created is important. $
dialogue with a tone that respects cultural diversity, is essential. From that dialogue a consensus may be
reached, understanding that as people and cultures interact they do change and learn.
C3*$2, Female Circumcision !6eneral #ecommendations 1KK:"
C3*$2 Committee recommends measures to eradicate female circumcision including information,
support of womens organi&ations, cooperation by leaders in influencing attitudes, etc.
;emale CircumcisionB)s 8here a Cegal $olution/ !8. Ha5ter"
Ptae5away' legal prohibition for adult consenting women is paternalistic and imposition of majority valuesM
but may be justified for women in acute states of dependence.Q
Aoral indignation in (8 lead to bill prohibiting female circumcision. ?ut does that justify legal
intervention prohibiting a consensual act performed on an adult women in accordance with cultural practice/
)uggests it is imposition of moral values of majority onto minority groups that is inappropriate in
multicultural society. )uch a prohibition denies women the right to self5determination.
>egal intervention is justified to prevent a child or someone in mind or state of particular physical or
economic dependency. Cloistered lifestyle and acute economic dependence of women practicing female
circumcision may justify the paternalism.
" $tatement on Genital %utilation !$ssociation of $frican 2omen for #esearch and *evelopment
!AA;$RD""
Ptae5away' F6A is a problem, but why the big fuss/ Dhere are other problems. F6A rucus is a result of
racism and imperialism and should be dealt with by $frican womenQ
Dhe 2est is on a crusade led by morals of =udeo5Christian society dependent on sensationalism and
insensitive to the dignity of the women they want to save. $$2+#* firmly condemns genital mutilation.
.owever, the fight should not tae on such proportions that the wood cannot be seen for the trees. Aust be
put in context and should be taen on by $frican women who are familiar with that social context.
Det!een E)rua? and E;emale Genital %utilation? !.ope >ewis"
$frican feminists see to recapture the representations of own cultural heritage away from
sensationalism. 3mphasi&e the importance of cultural context in F6A.
" >ganda 8rie ;ights Genital Cutting !?arbara rossette in ,7Dimes"
Ptae5away' see how fast cultural norms can change/Q
)abiny people in (ganda have a campaign to abolish F6A and replace it with a symbolic ritual
declaring the girl a woman. +nly a decade ago, they were all into it, but then in 1KK9 the 3lders $ssociation
decided it was harmful and told parents to stop.
@F8imes Cetter to #ditor !Mer.ine"
From the $frican viewpoint, F6A can be an affirmation of the value of women. It is ethnocentric to
demand change a tradition.
-ands :ff Clitoridectomy !7ael Tamir"
Ptae5away' all societies have oppressive stuff. 2estern beauty standards are also harmful. 2est is smug
about it and ignores its own deficienciesQ
2e should be suspicious about the role clitoridectomy is playing in the current political debate.
Conceptions of beauty are cultural and 2estern women do a lot of painful, medically unnecessary and
potentially dangerous things for beauty. If you say that it is oay because women consent, then what about
life5threatening eating disorders imposed on minors by cultural beauty standards/ $ttention given to it is
disproportionate
"ST$M AND "%T"RE: $THER ASE EQAMP%ES
)tate #esponsibility (nder International .uman #ights >aw to Change #eligious and Customary
>aw !$bdullahi $hmed An&Na,im"
Ptae5away' changing cultural or religious practices should not come from the state but through persuading
the people of the validity of the changeQ
$ states responsibility for conforming its domestic laws and practices to international law obligations
extends to religious and customary practices as well. Dhere is a need for a moral and political overlapping
consensus. Change to traditional or religious practices should not come from outside or from the structures
of the state. It should be through persuading the people that the change is valid. Dhat is the transformation
of popular beliefs and attitudes. )hould also provide an alternative to the discredited traditional practice.
Aust draw authority from the same source on which the original source was founded. +therwise, previous
practice will continue off the boos.
#(hrahim v. Pastory !TanFania High ourt, 1KK:"
P.eld' customary law regarding rules of inheritance was discriminatory was invalid and modifiedQ
2oman sold landM claim to hold sale invalid because under customary law women cannot sell land.
Court observed that womens liberation was high on the agenda and that any court would be ashamed to
follow. Dan&anian Constitution said that courts should construe customary law with such modifications as to
conform with rights. Court held that the custom was discriminatory and unconstitutionalM and therefore that
the customary law was thereby modified. )ale valid.
%agaya v. %agaya !Su4reme ourt o3 :im1a1.e, 1KKK"
P.eld' daughter may not inherit land. (pheld discriminatory customary law and advocated for gradual
change rather than revolution initiated by the courtsQ
3ldest daughter tired to tae fathers estateM action holding that possession invalid under customary
law. Court upheld customary law because the patrilineal nature of the $frican society. 2hile judge supports
the advancement of gender e@uality, he believes that great care must be taen with $frican customary lawM it
will not be abandoned by the people. ?etter to pursue gradual change that will win long5term support by the
people instead of a legal revolution initiated by the courts.
8esting the Cimits of 8olerance as Cultures %iG !?arbara rossette, ,7Dimes"
Ptae5away' with more and more immigration, () society struggles with acceptance of immigrant activists
versus ideas of progress and violations of human rights.
ASSIGNMENT 11:__________________________________________________________
Institutions= En3orcement= R the "N Human Rights Regime
.enin !pp.;KC5H"' discusses reasons why states comply with intl law !developed habit%commitment to
orderM system has developed culture of complianceM 0hori&ontal enforcement1 mechanisms" Bthese
inducements do not wor in the same way for human rights5
compliance with human rights obligations is more responsive to domestic forces5 b%c the causes of
human rights violations are cultural, political, close to home5
human rights law promotes human values rather than state values !beneficiaries of human rights are
not states themselves but inhabitants of states"5 states dont have strong interest in pursuing remedies
for violation of human rights of their inhabitants5
principal element of hori&ontal deterrence present in international law !fear of retaliation by another
state" is not present in human rights law5 retaliation would itself violate human rights
$lston' foundation of intl legal order is idea of sovereign e@uality of states5 in a way, this is what human
rights regime is designed to interfere with5 so you have the gradual woring out of expanding limits of
permissible interference with state sovereignty. Daling about enforcement always raises issues of
reciprocity5 the @uestion of whether a state truly wants the norm to be enforceable against them as well5
(,s .# machinery consists of 0two5trac1 approach5 charter&1ased and treat5&1ased organs. Dhe focus
in these readings is on charter5based organs. $lston emphasi&ed that these two approaches must be
contrasted'
charter5based cover all states, regardless of treaty obligations !whereas with treaty5based, only those
state parties who ratify specific treaty are covered"
charter5based cover all norms5 any human right can be taen up by 6eneral $ssembly or Commission
on .uman #ights !whereas treaty5based depend entirely on specific treaty norms"
charter5based are run by governments !whereas treaty5based are run by experts"
with charter5based organs, enforcement runs all the way up to )ecurity Council sanctions !whereas
with treaty5based no formal body for enforcement5 simply moral and political pressure"
Dhree features of institutions highlighted by readings'
concern of most (, organs is with civil%political rights5 not economic%social
emphasis on responding to relatively discrete but gross and noticeable violations
organs give little attention to consciousness5raising through education or promotional activities that
many would identify as indispensable components
Comment on .ierarchy of Charter +rgans !pp.;KF5H:9, including chart on (, structure p.;KG"' charter5
based organs are those whose creation is directly mandated by (, Charter !6eneral $ssemblyM 3C+)+C" or
those authori&ed by one of those bodies !Commission on the )tatus of 2omen"
principal organs5 )ecurity Council, 6eneral $ssembly, International Court of =ustice, 3conomic and
)ocial Council !3C+)+C"5 supposedly all at the same high level5 but $lston stressed that this
formalism is very much out of step with reality
Securit5 ounci0 >S) is pre5eminent organ, whatever its legal position5 still exercises the most
power5 able to execute its own decisions
Internationa0 ourt o3 8ustice >I8): although number of cases has grown substantially,
jurisprudence that IC= has generated has had only limited impact on normative underpinnings of
international human rights regime
E$S$ once played major role as intermediary between 6eneral $ssembly and Commission on
.uman #ights5 but now out of the picture.
o in formal terms, "N ommission on Human Rights !C.#" reports to 3C+)+C
o C.# membership of ;L govts !as opposed to universal membership in 6eneral $ssembly"5
attempts geographic balance through regional groupings
frustration with C.# led to recent decision to abolish it% set up .uman #ights Council
.# Council will presumably be up near )C and 6$ in the hierarchy5
Genera0 Assem105 >GA) is more a 0taling shop15 adopting resolutions5 but b%c of universal
membership, retains important place in discussions5
Secretariat is run by Secretar5&Genera0 !appointed for five years by 6eneral $ssembly on the
recommendation of )ecurity Council"
under )ecretary 6eneral is High ommissioner 3or Human Rights& (, official with main
responsibility for human rights5 subject to direction and authority of )ec56en, and acts with within
mandate given by policy organs !6$, 3C+)+C, (, Commission on .#"
Su1&ommission on Promotion and Protection o3 Human Rights& not governmental reps, lie
Commission on .uman #ights B rather, composed of 9H independent experts, elected by
governments& and their independence varies widely5
Fact5Finding' depends for credibility and potential impact upon extent to which perceived to have been
thorough, politically objective and procedurally fair
$lston' highly constrained and thus flawed5 !assignment [19 also addresses this" nothing to enable
rapporteur to demand specific documentation !governments always able to invoe national security"M
often no access to certain regions, particular places !ie. primary schools used for torture"M constrained
by very limited funding and limited time in countryM issues about standard of proof.
impact of fax%phone%internet' instant diffusion and more efficient databasesB mae it almost
impossible to prevent flow of information about new, serious human rights violations B but may not
help with accuracy concerns or with problems of verification
,icholas 4aliticos !p.H:L5C"5 urges flexible approaches !not always possible to transpose internal
judicial procedures in full"M procedural safeguards !state should have opportunity for comment, must
ensure safety of witnesses, guard against reprisals"M entrust process to independent and impartial
actors.
excerpt from $nnual Country #eports by (.). *ept of )tate !p.H:;" emphasi&es difficulty of getting
to the truth of the matter' rely heavily on ,6+ reports, but often difficult to evaluate credibility5 few
eyewitnesses to specific abuses, and they are often intimidated or prevented from reportingM groups
opposed to particular govt sometimes have powerful incentives to exaggerate or fabricate abusesM
govts have incentives to distort abuses attributed to opposition groups.
Aemorandum of (nderstanding with 6ovt of Chile !pp.H:;5H:G" B (, drew up detailed set of rules
for a precedent5setting mission in Chile in 1KFG5 (, has never agreed on a set of model rules to
govern fact5finding, so this is important example.
o addresses freedom of movementM freedom of investigationM assurances by Chilean government
of non5retaliation against witnesses and security of fact5findersM providing government with
6roups views to allow state to commentM importance of weighing evidentiary value of all
information received.
International >aw $ssociation, Dhe ?elgrade Ainimum #ules of -rocedure for International .uman
#ights Fact5Finding Aissions !pp.H:G5H:K"' I>$ is an ,6+ whose rules are not legally binding% have
no formal weight, but are taen seriously by international community.
o suggestions on selection of fact5finders !impartiality, objectivityM governments should be
consulted if possible"M collection of evidence !sufficient staff to allow independent collection
of dataM mission should insist state provide guarantee of non5retaliation against witnesses"M
insisting on interviewing any person deemed necessary, even those incarceratedM preliminary
findings presented to state for comment.
"N ommission on Human Rights, >HR) three main 4rocedures 3or res4onding to 6io0ations:
in practice, all three have significant overlap
both 19L; J 1;:L procedures grew out of influx of new members in 3C+)+C in mid51KH:s !mainly
newly independent $frican and $sian states, supported by 3astern 3uropeans"5 pressed for general,
non5treaty5based, communications5type procedures as additional means by which to pursue struggle
against racist and colonist policies, particularly in )outhern $frica5
confidential 1;:L -rocedure !1KF:"' created by 3C+)+C #esolution 1;:L !p.H1L"5 allows C.# to
examine complaints pertaining to 0situations which appear to reveal a consistent pattern of gross and
reliably attested violations of human rights1
o $lston' big breathrough in principle5 official repudiation of earlier doctrine that no specific
complaints would be examined !C.#s official position from their beginning in 1KCH was that
function would be to discuss issues of human rights generally and draft standardsU(*.#,
ICC-#, IC3)C#Ubut not to address any specific country abuses"
o 1;:L procedure was adopted after 19L; procedure but has developed more rapidly and is
often used as precursor to action under 19L;
o $lston' problems what is 0gross1/ discrimination against women/ or only bloodshed/
o )ub5Commission #esolution 1 !1KF1" !p.H1C"' procedures re' what is admissible in the 1;:L
procedure !second5hand nowledge admissible if accompanied by other evidenceM anonymous
communications not admissibleM communications inadmissible if essentially abusive, if has
manifestly political motivations, or if based exclusively on reports disseminated by mass
media"
o time5consuming and tedious5 b%c procedure carefully designed to ensure that governments
would not lightly be accused of violations and b%c not concerned with individual cases but
with 0situations1
o entire process shrouded in secrecy5 only public statement is annual list of countries which are
under consideration and those which have been discontinued5
but details are often leaed to the media !as with )audi $rabia case study"
o $lston' case study on )audi $rabia !p.H1F" shows that procedure is often a fa]ade5 once )audi
governments abuses were before C.#, complaint was disposed of in about one hour5 all
these governments welcoming )audi governments cooperative attitude5 () rep silent
throughout
public 19L; -rocedure' can discuss human rights violations 0wherever they may occur15 public
debate that leads to appointment of )pecial #apporteur or )pecial #ep. of )ecretary5 6eneral, or
some other designated individual or group to investigate a situation
designation of 0thematic1 rapporteur or 2oring 6roup to consider violations anywhere relating to a
specific theme !disappearances, torture, etc."
o $lston5 introduced around 1KG:5 these thematic reports satisfied new push of addressing
issues other than $partheid and Israel without having to single out specific countries !which
was huge stumbling bloc in C.#, where you were not able to mention any country by name"
o $lston emphasi&ed that this system is pretty chaotic5 amateurs, unsupported by any serious
funding and minimal staff in 6eneva to bac up mandates5
o also problematic b%c we retain a policy that says that countries must invite woring groups in
ASSIGNMENT 1#:__________________________________________________________
Institutions= En3orcement and the "<N< Human Rights Regime II
Readings: >1) $mnesty International, (nited ,ations )pecial -rocedures' ?uilding on a cornerstone of
human rights protection !+ctober 9::;"
>#) Civil and -olitical #ights, Including the Vuestion of *isappearances and )ummary
3xecutions, #eport of the )pecial #apporteur, $ddendum' Aission to =amaica
#eading !1" B $mnesty International
I. Introduction
a. S4ecia0 4rocedures >SP)' term used to describe the special rapporteurs, special
representatives, independent experts and woring groups established by the Commission on
.uman #ights. !also nown as 0extra conventional mechanisms1 or 0charter5based
mechanisms1" ,ote' there is an appendix to this reading, listing all thematic and country
mechanisms.
i. Thematic mechanisms' )- that are mandated to review a particular violation on a
global scale. Currently 9G thematic mechanisms.
ii. ountr5 mechanisms' )- that are mandated to review one country or territory.
Currently 1L country mechanisms.
iii. First )-' 2oring 6roup of 3xperts to investigate the charges of torture and ill5
treatment of prisoners, detainees or persons in police custody in )outh $frica in 1KHF.
iv. Dhis year, the Commission on .uman #ights !C.#" ased the +ffice of the .igh
Commissioner on .uman #ights !+.C.#" to tae steps to enhance the )pecial
-rocures.
b. Human Rights ounci0
i. ,ew body created to replace the C.#.
ii. )- will remain in place, and $mnesty argues that the creation of the new body is an
opportunity to improve the )- system.
II. *ac2ground' e6o0ution o3 S4ecia0 Procedures
a. .as happened hapha&ardly, without overall institutional framewor
i. >ac of coherent 0system1 leads to problems with coordination, consistency and
overlap.
b. $lso undermined by' chronic under5funding, lac of cooperation from states, marginali&ation
by the C.#, and variable @uality of wor product.
c. $ttempts to solve these problems.
i. Dhe )ecretary 6eneral too measures to improve the @uality of the reports of the )-
and to increase 0support1 for their functions.
ii. )- themselves have annual meeting to try to improve their operation.
d. Good things
i. )- are among the most innovative, responsive and flexible tools of the human rights
machinery.
ii. )- can help the new .#C minimi&e criticisms that have plagued the C.#, such as'
double standards, selectivity and excessive politici&ation. !,ote' they have been too
marginali&ed to be very effective in this capacity in the past."
III. Ro0e and 3unctions o3 the S4ecia0 Procedures
a. Aain role'
i. #ender the international norms that have been developed more operative
ii. )trive to enter constructive dialogues with 6overnments and to see their cooperation
as regards concrete situations, incidents and cases
iii. )tudy and investigateUtry to understand situations
iv. #ecommend to governments solutions to overcome the problem of securing respect
for human rights
b. Functions of both thematic and country mechanisms
i. $ct urgently on information that suggests that a human rights violation is about to
happen, or is already occurring.
ii. #espond to allegations that a violation has already taen place
iii. (ndertae fact5finding missions
iv. 3xamine the global phenomenon of a type of violation through studies
v. Clarify the applicable international legal framewor to address a particular violation.
vi. -resent annual reports to the Commission
c. Recommendations: Ro0e and !unctions o3 S4ecia0 Procedures
i. )- should be preserved and strengthened in the new .#C, especially in their ability to
perform core functions of'
1. issuing urgent appeals
9. transmitting allegations
L. fact5finding missions
C. studies
;. clarifying international law
H. preparing annual and other reports with recommendations
ii. .#C should be alert to warnings from )- regarding human rights violations and
should act on those warnings.
iii. .#C should fully integrate information and analysis from the )-.
iv. Information from )- should be made readily available throughout the year.
v. .#C should provide for routine, substantive interactive discussion with the )- to hear
findings and recommendations.
d. A44ointment o3 Mandate&ho0ders
i. ,ominations come from states, ,6+s in consultative status with 3C+)+C and other
0appropriate sources1.
ii. (sually selected by the Chairperson of the Commission on the basis of consultations
with the ?ureau of the Commission and the representative of each regional group.
iii. )ome appointed mandate5holders have simultaneously held positions within their
national government.
iv. Dhe process is not usually publici&ed or subject to broad consultation.
v. 6ender imbalance' only 1H out of ;; mandate5holders are women.
vi. $dvisory -anel' proposal of the +.C.#. 2ould include individuals from all regions
and belonging to all constituencies !(, system, ,6+s, national institutions and
mandate5holders". -urpose' to broaden list of possible candidates, redress gender
imbalance, and improve geographic representation. 2ould review candidates and
mae suggestions to the Chair of the .#C.
vii. Recommendations
1. .igh Commissioner should pursue plans to form $dvisory -anel with
individuals of all constituencies.
9. -rocess of choosing candidates should be more transparent and involve broad
consultation at the national level.
a. characteristics sought should be' independence, impartiality, sill and
expertise
b. should see to redress the current gender imbalance
L. $dvisory -anel should re@uest details of nomination process and should come
up with 0profile1 for each mandate.
C. +ffice of the .igh Commissioner should continue to maintain and update
roster of suitable candidates.
;. C4s of all )- mandate5holders should be available on the +ffice of the .igh
Commissioners website.
H. )teps should be taen to remove practical barriers to suitable candidates.
F. Derms
a. Dhematic mandate5holders' two three5year terms
b. Country mandate5holders' one year appointment, maximum period of
six years
e. Managing Gro.th o3 S4ecia0 Procedures
i. )ince 1KKF, the number of )- has increased from 9K to the current level of C1.
ii. Dhe C.# has prematurely terminated several country mandates, despite clear evidence
of a continuing serious human rights situation in the country concerned.
iii. Dhere is some concern about overlapping mandates.
iv. Recommendations
1. Dhe .#C should consider the creation of new country or thematic mandates in
response to serious situations of human rights violations.
9. $ll new country mandates should be established for an initial renewable period
of three years.
L. Dhe .#C should be re@uired to tae an explicit decision in order to terminate a
thematic mandate.
f. ;or2ing Methods o3 Mandate&ho0ders
i. )ome elements of the )- woring methods are common to all the mandates
1. Dhese have been compiled into %anual for $(ecial
'a((orteurs6'e(resentatives6#G(erts and Chair(ersons of 9or&ing Grou(s of
the s(ecial (rocedures of the Commission on -uman 'ights and of the
advisory services (rogramme !the Aanual"
9. Manua0 deals with'
a. )ources of information
b. $dmissibility
c. Communications government
d. Aissions
e. Recommendation 3or $4erations Manua0' should be revised so it
reflects best current practice, should be publicly available, should be
regularly updated, and should be used as the basis for training new
appointees.
L. ommunications
a. #e@uests by individuals or their representatives, seeing action to
protect their human rights.
b. If the mandate5holder thins a communication is credible, she
communicates with the relevant government.
c. +ver ;:\ of communications to governments are signed by two or
more )- as part of efforts to coorinate activities.
d. In 9::C )-sent 1,L;H communications to 1C9 states, addressing C,CCG
individual cases.
e. #esponsibility of mandate5holder to assess reliability of information'
i. Credibility of source
ii. Consistency of allegations
iii. -recision of factual details
f. *omestic #emedies' domestic remedies do not have to be exhausted
for )- to act !unlie individual communications procedures of
international human rights treaties".
g. Aodel @uestionnaires describe the information sought by )- for each
complaint.
h. 2oring 6roup on $rbitrary *etention !26$*"' only )- with an
explicit mandate to consider individual cases.
i. 6overnment cooperation with )- communications'
i. C.# adopts biennial resolution calling on states to cooperate
with the )-, but there is a general lac of compliance by many
governments.
ii. 3x. )pecial #app on Dorture' from *ec 9::1 to ,ov 9::C, rate
of response to urgent appeals was only C1\ and LL
governments had never responded to these appeals at all.
j. Vuic #esponse *es' developed thematic database for processing,
sending and filing communications.
. Recommendations 3or ommunications
i. )- should continue to try to establish dialogue about allegations
of human rights violations with governments.
ii. Aodel @uestionnaires should be developed for all mandates and
should be online.
iii. Communications should be shared with the source, including
responses from governments.
iv. Information about cases and government responses should be
publicly available as long as there is no threat to the source.
v. Information about communications, especially non5responsive
governments should be regularly considered by the .#C.
vi. .#C should review states willingness to respond, should tae
steps to encourage responsiveness.
vii. In considering candidates for election to the .#C, governments
should tae account of each candidate states cooperation with
the )pecial -rocedures.
C. "rgent A44ea0s
a. #apid response mechanism developed by 263I* to deal with the
threat of serious violations in order to avoid irreparable harmat the
core of the )-.
b. ,ot accusatory, aimed at preventive measures
c. (sually directed to ministry of foreign affairs of relevant state, but can
also be issued by public statement.
d. (sually deal with individuals or groups, but sometimes deal with
negative institutional developments.
e. Recommendations 3or "rgent A44ea0s
i. Aust be preserved in .#C
ii. )- should continue to issue urgent appeals through public
statements when appropriate.
iii. 2hen governments do not respond to urgent appeals, situation
should be brought to the attention of the .#C.
;. Su1stanti6e Re4orts
a. $ll )- present an annual report to the C.#. )ome are mandated to
provide interim reports.
b. >ength restrictions' annual reports are limited to 9: pages.
c. Recommendations'
i. )- should continue to produce comprehensive and focused
reports to provide in5depth analysis on aspects of their
mandates<
ii. .#C should tae account of their findings and encourage states
to act on the recommendations contained in those reports.
iii. .#C should consider measures to compensate for the
detrimental effect on content by the current limitations on
length.
H. !act&3inding missions
a. Create a space for public discourse inform policymaers and
opinion formers.
b. $llow )- to meet with victims and families and to mae firsthand
observations of the situation.
c. )-s recommendations following a visit can provide blueprint for
legislative, administrative and policy levels.
d. )- have resources to do 9 or L missions per year
e. Invitations%6overnment Cooperation'
i. 4isit can only tae place if state issues invitation and then
facilitates mission according to guidelines.
ii. ;9 states have issued standing invitations !F;\ of members
have not"
iii. Aany re@uests for visits have been ignored for years. 3xample'
)pecial #app on torture has been waiting for response from
India and Indonesia since 1KKL.
iv. $ few states have denied re@uests by country )-.
v. )tates who agree to visit can still impede the objectives of a
mission, for example through restricting timing or access to
certain regions or people.
vi. 3ven when the mission is carried out satisfactorily, states often
do not comply with the )-s subse@uent recommendations.
vii. Individuals who meet with )- during a visit are often subjected
to intimidation and reprisals, and sometimes death.
f. Derms of #eference' minimum standards expected of host governments
g. #eports of missions are published as special addenda to annual reports
of )-. *elay in publication is common
h. Recommendations 3or 3act&3inding missions
i. $ll member states should issue standing invitation to )- and
facilitate their re@uests to go on missions.
ii. Information about status of mission re@uests should be
examined regularly by the .#C.
iii. Aission reports should be published separately from mandate5
holders main report and should be made publicly available.
iv. .#C should develop procedure so that states who ignore visit
re@uests are held accountable.
v. )tates should provide detailed response to recommendations
arising from )- fact5finding missions.
vi. )tates should ensure that acts of intimidation or reprisal are not
carried out against those who meet or cooperate with the )- and
that any such acts are investigated and perpetrators held
accountable. .#C should tae particular interest in specific
acts of intimidation or reprisal.
F. !o00o.&"4 to the .or2 o3 mandate&ho0ders
a. Follow5up' the variety of measures taen to encourage, facilitate and
monitor implementation of recommendations by the )-. (ltimate
objective' to ensure state compliance.
b. C.# has been undermines by its failure to follow up on its own
resolutions and decisions and the recommendations of its )-.
c. Increasing number of )- are beginning to develop follow5up
procedures, primarily in relation to country missions.
d. )- $nnual Aeeting produced agreement on recommendations to
improve follow5up by mandate5holders.
e. Recommendations 3or 3o00o.&u4
i. Dhe +.C.# should better integrate )- recommendations.
ii. )- should help facilitate and monitor follow5up.
iii. Communications should remain pending until they have been
ade@uately addressed.
iv. #ecommendations agreed to at )- $nnual Aeeting should be
implemented.
v. .#C should incorporate follow5up across its activities.
G. Resources
a. Chronic under5funding of )-.
b. 9::; annual report showed funding from the regular budget at less than
SLC,::: per mandate per year.
c. Aandate5holders are unpaid.
d. +ne implication of the lac of funding for )- is that they are not able to
recruit the best possible staff.
e. #ecent 2orld )ummit member states agreed to strengthen +.C.#
by doubling regular budget contributions, from amount which is
currently less than 9\ of (,s #egular budget.
f. Recommendations
i. )tates should ensure that commitments to increase regular
funding for the human rights program are honored in their
negotiations during session of 6eneral $ssembly.
ii. )- budget should be increased significantly to enable +.C.#
to retain and recruit @ualified and sufficient staff to support
mandate5holders.
I4. $ppendix 1' list of thematic and country mechanisms
4. $ppendix 9' =oint ,6+ )tatement
a. )pecial -rocedures, Informal Consultation in #esponse to *ecision 11L of the H1
st
)ession of
the (, Commission on .uman #ights
b. In order to strengthen and improve the )- system, the following measures are necessary'
i. Increased capacity of the )- to address and respond to emerging situations of serious
human rights violations.
ii. $ right of access of the )- to all countries and territories !without having to negotiate
for specific invitations".
iii. Increased willingness and action by all states to cooperate with the )- in following up
on their recommendations.
iv. #egular publication of summaries of communications in respect of individual cases
throughout the year, including state responses, and the publication of mission reports
as soon as they have been finali&ed.
v. Improved identification and selection process for mandate5holders.
vi. 3xpanded interactive dialogue.
vii. 3nhanced capacity to encourage active engagement of civil society.
viii. )ubstantial increase in regular funding to meet re@uirements of the +ffice of the .igh
Commissioner to support the )-.
#eading !9" B #eport of )pecial #apporteur on extrajudicial, summary or arbitrary executions'
=amaica visit, February 9F, 9::L
I. 4isit prompted by several reports over the years citing allegations of extrajudicial executions by
=amaican security and police forces, as well as information received regarding =amaica and the
international standards on safeguards and restrictions relating to the imposition of capital
punishment.
II. Dhe )pecial #app met with government ministers and officials, including police, security forces
and the judiciary, civil society organi&ations and community representatives. 4isited sites of
allegations and met with witnesses and family members of victims.
III. Following visit, )pecial #app believed that extrajudicial executions had taen place.
I4. )pecial #app is not mandated to pronounce guilt or innocence of individuals. Dhis should happen
through due process of law, but =amaican legal system is not e@uipped to undertae these cases.
4. #ecommends, inter alia, that =amaican government tae measures to streamline criminal justice
system.
4I. $uthorities in =amaica need to mae stronger efforts to condemn all forms of misuse of force by
the security forces and no attempt should be made to protect those accused of extrajudicial
executions.
4II. >aw enforcement officials should be discouraged from using lethal force except when it is
unavoidable to protect life.
4III. -ublic -olice Complaints $uthority should be better resourced and should undertae to monitor
all incidents of police illings and publish the results of the in@uiries, investigations or trials in
such cases.
IR. Capital punishment should not be imposed on minors or the mentally ill. Investigation should be
undertaen to ensure compliance with international safeguards and restrictions.
Session 1#: Institutions= En3orcement and the "<N< Human Rights Regime ontinued
#eading' $mnesty International, (nited ,ations )pecial -rocedures' ?uilding on a cornerstone of human
rights protection !+ctober 9::;"
S4ecia0 Procedures' special rapporteurs, special representatives, independent experts and woring groups
established by the Commission on .uman #ights. Can be theme or country focused.
Negati6es' )- evolved hapha&ardly, without overall institutional framewor. Dhe lac of a coherent
0system1 leads to problems with coordination, consistency and overlap. )- are also undermined by' chronic
under5funding, lac of cooperation from states, marginali&ation by the Commission, and variable @uality of
wor product.
Positi6es' )- are innovative, responsive and flexible tools of the human rights machinery. )- can help the
new .#C minimi&e criticisms that have plagued the C.#, such as' double standards, selectivity and
excessive politici&ation. !,ote' they have been too marginali&ed to be very effective in this capacity in the
past."
Ro0e and 3unctions o3 the S4ecia0 Procedures
#ender the international norms that have been developed more operative. )trive to enter constructive
dialogues with 6overnments and to see their cooperation as regards concrete situations, incidents and cases.
)tudy and investigateUtry to understand situations. #ecommend to governments solutions to overcome the
problem of securing respect for human rights. $ct urgently on information that suggests that a human rights
violation is about to happen, or is already occurring. #espond to allegations that a violation has already
taen place. (ndertae fact5finding missions. 3xamine the global phenomenon of a type of violation
through studies. Clarify the applicable international legal framewor to address a particular violation.
-resent annual reports to the Commission
Recommendations
$mnesty maes recommendations for how the )- can be improved through the new .uman #ights Council.
$reas for improvement' role and functions, appointment of mandate5holders !getting the most @ualified and
independent people, addressing gender and geographic imbalances", managing growth of )-, woring
methods !improving operations manual, communications procedures, urgent appeals, , substantive reports,
fact5finding missions, and follow5up worensuring that governments comply with recommendations, and
resources."
8oint NG$ statement
In order to strengthen and improve )- system, the following measures are necessary' increased capacity of
the )- to address and respond to emerging situations of serious human rights violations, a right of access of
the )- to all countries and territories !without having to negotiate for specific invitations", increased
willingness and action by all states to cooperate with the )- in following up on their recommendations,
regular publication of summaries of communications in respect of individual cases throughout the year,
including state responses, and the publication of mission reports as soon as they have been finali&ed,
improved identification and selection process for mandate5holders, expanded interactive dialogue, enhanced
capacity to encourage active engagement of civil society, substantial increase in regular funding to meet
re@uirements of the +ffice of the .igh Commissioner to support the )-.
Reading >#) - Re4ort o3 S4ecia0 Ra44orteur on e/tra9udicia0= summar5 or ar1itrar5 e/ecutions:
8amaica 6isit= !e1ruar5 #J= #LL)
Reasons 3or 3act&3inding in 8amaica'
)everal reports over the years citing allegations of extrajudicial executions by =amaican security and police
forces, as well as information received regarding =amaica and the international standards on safeguards and
restrictions relating to the imposition of capital punishment.
Meetings'
Dhe )pecial #app met with government ministers and officials, including police, security forces and the
judiciary, civil society organi&ations and community representatives. 4isited sites of allegations and met
with witnesses and family members of victims.
!indings'
Following visit, )pecial #app believed that extrajudicial executions had taen place, ?(D )pecial #app is
not mandated to pronounce guilt or innocence of individuals. Dhis should happen through due process of
law. -roblem' =amaican legal system is not e@uipped to undertae these cases.
Recommendations'
=amaican government should tae measures to streamline criminal justice system. $uthorities in =amaica
need to mae stronger efforts to condemn all forms of misuse of force by the security forces and no attempt
should be made to protect those accused of extrajudicial executions. >aw enforcement officials should be
discouraged from using lethal force except when it is unavoidable to protect life. -ublic -olice Complaints
$uthority should be better resourced and should undertae to monitor all incidents of police illings and
publish the results of the in@uiries, investigations or trials in such cases. Capital punishment should not be
imposed on minors or the mentally ill. Investigation should be undertaen to ensure compliance with
international safeguards and restrictions.
Pro3< A0ston in 0ass'
5 ?eginning' +nly two big issues considered by commission )outh $frica and Israel !all other .#
abuse ignored, e.g. Cambodia, (ganda, )outh $mericaUseveral countries". 2estern countries slow
to join effort to address these, didnt want to tal about race.
5 Dhen ()5assisted overthrow of $llende is Chile was next big issue. >atin $merica, communist
countries and a few 2estern 3uropean countries were outraged at () involvement. $fter this, there
was a flood of complaints. ?ut at this stage you still couldnt mention countries by name !=immy
Carter wored to change that".
Dhematic Aechanisms
1KG:' beginning of thematic reports, partially brought about by $rgentine diplomat who ept blocing
country5specific action on disappearances. #esulting 2oring 6roup was beginning of )pecial -rocedures
system. 2oring 6roups' composed of ; people from different geographic regions. Dhere is a list of all the
thematic mechanisms in appendix to $mnesty reading.
Fact Finding'
5 Dhe missions are, by definition, highly constrained, and thus, flawed.
5 >ac of resourcesNbig problem, documentation is difficult so focus is on interviews and observations.
)tandard of proof is another difficult issue.
5 3ssentials for successful mission' access to civil society, access to all regions and places.
5 4isits are only set up when prima facie evidence is strong$lston cant remember a report that
didnt find evidence of some culpability during the visit.
5 3ach )- now does 95L visits per year and can choose where they will go !as long as they have an
invitation".
5 $lthough countries are often reluctant, access usually granted b%c of political pressure. ?ut they get
the reports before theyre publicly releasedtime to respond and 0spin1
5 =amaica report is typical. #apporteurs usually go b%c of allegations, but sometimes go on fishing
expeditions. Aandates can be more friendly sometimes focus on efforts to improve rather than on
violations. #ecommendations can be very universal or specific to one country.
5 ,ot as effective as they could be b%c 0state sovereignty1 still re@uires invitations, lac of funding and
support, minimal staff and many amateur mandate5holders.
Formalities' C3)C# resolutions 19L; and 1;:L.
o 19L;, Item K' C.# can discuss violations wherever they occur theory is that discussion leads to
decision about a country !a resolution" but thats not what happens. #epresentatives come to discussion
nowing what resolution they want.
o 1;:L complaints procedure !official repudiation of 1KCF doctrine that no violations would be examined"'
confidential. Dhis is a joe because there are so many loopholes. China still asserts that individual
countries shouldnt be singled out. Dhis procedure is now just a fa]ade.
$udience
>anguage has to be fairly subtle and diplomatic. Dhin about for whom reports are intended' host
government, other governments, civil society, Commission, () and 3( !to encourage isolation". In
democratic countries, its important to address the government, but you also have to focus on riling up civil
society to bring about change.
#apporteurs'
+ccupy weird ambiguous position !Dhis is what governments wantUto perpetuate amateur nature of the
system. Contrast with 6erman judge who was sent to )yria". Dheyre not really (, officials, but are clearly
exercising its authority.
Future'
#apporteur system should be more professionali&ed. ,ew Commissioner may do thisUseems unhappy with
system the way it is, doesnt lie the messiness.
>egal'
Dhings to thin about' should determinations of guilt be deferred until domestic remedies are exhausted/
2hat is the standard of proof/ .ow strong should conclusions of fact5finding be stated/ #ecommendations
can be very broad or highly specificUeither way, theyre useless on paper need to be taen more seriously,
if not by governments, then by civil society.
,6+s
)- are highly valued by ,6+s, which $lston thins is funny because reports of ,6+s are so much more
professional.
Daeaway' the )- system is currently chaotic, unprofessional and lacing in funding%support. It has the
potential to be effective but governments dont really want it tothey want to perpetuate those weanesses.
6overnments also want these procedures to be run by representatives of governments rather than
expertsthis way they believe they can continue to exploit the national, regional, cultural, etc. loyalties of
mandate5holders.
ASSIGNMENT 1):__________________________________________________________
Institutions= En3orcement R the "nited Nations Human Rights Regime
$33ice o3 the High ommissioner 3or Human RightsO Humanitarian Inter6ention
A0ston >c0ass 1L@#?&#M):
5 Aetaphor of elephant, mouse, spider web, i.e., a big humanitarian crisis leads to creation of relatively
powerless body%procedures, but these ad hoc procedures tend to have unintended conse@uences that
strengthen human rights !.#" standards and procedures over time
5 #ole of (, )ecretary 6eneral with respect to human rights'
o )uccessive )6s preferred to use more traditional political bodies and persuasion
o -ost Cold 2ar' calls for a high commissioner for .#M 1KKL 4ienna 2orld Conference on
.uman #ights led to creation of (, .igh Commissioner for .# !supported by Clinton
administration"
o )ignificant strengthening of +.C.# under 8ofi $nnan
5 +ffice of the .igh Commissioner for .uman #ights'
o )ubject to direction by the )ecretary 6eneral and acts within the mandate given by the (,
policy organs !6$, 3C+)+C and (, Commission on .#"
o )taff of ;G:M +.C.# budget 9::C was SGHmil., most of this comes from voluntary
contributions !only SLL.Gm from regular (, budget B unwillingness of state govts to mae it
a strong enforcement mech."
4oluntary budget contributions let countries exert pressure on agenda
5 #eflections on Aaterials' 3volution of the role of )6 !)ecretary 6eneral "and +.C.#
o #ange of initiatives taen by )6 in his own name and by the .C B seen as increasingly
independent actors
o Country offices' note date of ,epal agreement B .C clearly threatened to have Commission
on .# condemn the govt or impose rapporteurM ,epal accepted alternative of country office
and technical assistance
o #ole of )6 illustrated by the 0-rogram to -revent 6enocide1
$nnans plan is dramatic b%c it is in contrast to former inaction of )6s re' human
rights !when )C too action against ).$frica it was on the basis of threat to intl
security not violation of .#"
$nnan has appointed special advisor on prevention of genocide B not a large staff, but
in principle the guaranteed access of the advisor and the .C to the )ecurity Council is
important
o *octrinal development of idea of 0responsibility to protect1, *raft +utcome *oc. 9::;
-hilosophical idea of sovereignty involving a duty to protect state populationM if you
are not protecting your own people, someone else must do it for you
-roposal' where there are massive .# violations !ie genocide, war crimes,
ethnic cleansing and crimes vs. humanity" the five permanent members will
refrain from exercising a veto
#e@uirements suggested by commission, ie that states act out of pure motives and that
all other options be exhausted before force is used could be used to delay intervention
by resistant states
Dhis document is an attempt to move beyond rhetoric of .# and soft mechanisms for
enforcement but in limited situations of egregious .# violations !reassures states that
it would be used only in extreme cases
-roblems with intervention' can be reasonably viewed as hypocritical, self5serving
action of large, rich states vs. small developing states
o *arfur materials'
$lston would lie to see this techni@ue being used more often. Commission on .#
would mae a referral then an expert group would mae careful legal analysis of
situation as a foundation for action if the )C wants to tae it B here the report led to
referral to the ICC
Materia0s: S ^ N discussed in classQ
,ote on the +.C.#
5 )tand alone offices' ?urundi, *# Congo, Colombia, Cambodia, ?osnia and .er&egovina, )erbia and
Aontenegro
o ?ased on memos of understanding with host governments
5 $dditional activities of +.C.#
o )ubstantive human rights activities in $fghanistan, $ngola, *arfur and Ira@M commissions of
in@uiry in Cote dIvoire and )udan !see later report"
o )upport to )ierra >eone truth and reconciliation commission
-lan of $ction submitted by the (, .igh Commissioner for .#, as called for by )6, 9H Aay 9::;
5 ;G: staffM budget GHmM mostly voluntary contributions
o -$' this is low budget, not a huge staff
6eneral $ssembly )ummit, *raft +utcome *ocument, 1L )ept. 9::;
5 #esolve to strengthen (, .uman #ights machinery
5 #esolve to strengthen the +.C.#, doubling its regular budget over next five yearsM support closer
cooperation with (, bodies including 6$ and 3C+)+C
^ #eport of the .C.# on the human rights situation and the activities of +ffice in ,epal
5 #epresentative of .C and 1: human rights officers staff the stand5alone office in ,epal pursuant to
agreement with government
5 +.C.#5,epal received reports of violations by both government and rebel Aaoist forces
5 *escribes violations, including extrajudicial executions, illing of civilians, disappearances, torture,
recruitment of childrenM no significant disciplinary actions by either side reported. Dhere is also
concern about adverse effects of armed conflict on economic and social rights.
5 +nce fully established, +.C.#5,epal will consist of ;: staff with five regional officesM it will
investigate, report an and assist the ,ational .# Commission !,epalese organi&ation" and civil
society
^ (, )6 8ofi $nnans $ction -lan to -revent 6enocide, F $pril 9::C
5 Intro' $cnowledges responsibility for failure to tae effective action to prevent and stop #wandan
genocide in 1KKCM collective failure of intl community
5 ;irst, preventing armed conflict
5 $econd, protection of civilians in armed conflict
5 8hird, ending impunity
5 ;ourth, early and clear warning
o Creation of post of )pecial $dvisor on the -revention of 6enocide, who will report through
me to the )ecurity Council and the 6$ as well as to .# Commission
5 ;ifth, need for swift and decisive action when genocide is or is about to occur
^ #esponsibility to -rotect' #eport of the International Commission on Intervention and )tate )overeignty,
*ec. 9::1
5 Dhe responsibility to protect' core principles
o Foundation in idea of state sovereigntyM principle of non5intervention yields to international
responsibility to protect
o #esponsibility to (revent= responsibility to react, responsibility to reuild
5 -rinciples for military intervention
o =ust Cause Dhreshold, -recautionary -rinciples !#ight intention, last resort, proportionality,
reasonable chance of success"M #ight $uthority !(, )ecurity Council"
$ Aore )ecure 2orld' +ur )hared #esponsibility, #eport of the .igh5>evel -anel on Dhreats, Challenges
and Change, 9::C
5 >egality' (, Charter prohibits member states from using force with two exceptions
o )elf defense under $rt ;1
o Ailitary measures authori&ed by the )C under Ch. 4II in response to threat to peace
)tate can tae military action if threatened attac is imminent, no other means would
protect it and the action is proportionate
)C can authori&e preventive military action against a non5imminent threat
5 3ndorses 0emerging norm1 of international responsibility to protect
5 In considering whether to authori&e or endorse the use of military force the )C should always address
the following five criteria of legitimacy
o )eriousness of threat
o -roper purpose
o >ast resort
o -roportional means
o ?alance of conse@uences
^ #eport of the International Commission of In@uiry on *arfur to the (, )6, 9::;
5 4iolations of international human rights law and international humanitarian law
o 6ovt of )udan and the =anjaweed are responsible for serious violations of international .#
amounting to crimes under international lawM acts conducted on a widespread and systematic
basis and may amount to crimes against humanity, war crimes
5 .ave acts of genocide occurred/
o 6ovt of the )udan has ,+D pursued a policy of genocide, genocidal intent appears to be
missing
5 Identification of perpetrators
o )ealed list of those against whom there is evidence of perpetration, joint criminal
responsibility, aiding and abetting, command responsibility
o Commission recommends that the file be handed over to the -rosecutor of the ICC
5 $ccountability Aechanisms
o In@uiry commission recommends that the )C refer the situation of *arfur to the ICC pursuant
to 1L!b" of ICC statute
o $lleged crimes meet the thresholds of $rts. F!1", G!1", G!f"M )udanese justice system is unable
and unwilling to address the situation
o Compensation commission recommended for victims
o #ecommendation of exercise of universal jurisdiction by other statesM re5establishment of
)pecial #apporteur on .uman #ights in )udan, and .C.# reports
-hilip $lston, <Dhe *arfur Commission as a Aodel for Future #esponses to Crisis )ituations
5 Dhe Commission is a departure from less effective previous commissionsM the model should be used
again, particularly the legal analysis
^ *raft +utcome *ocument, 1L )ept. 9::;
5 3ach state has the responsibility to protect its populations from genocide= !ar crimes= ethnic
cleansing and crimes against humanity !W 1LG"
5 Dhe international community, through the (,, also has the responsibility to use appropriate
diplomatic, humanitarian and other peaceful means, in accordance with Ch 4I and 4III fo the Charter
to help protect populations from Pthe above crimesQ. In this context !e are (re(ared to ta&e
collective action= in a timely and decisive manner= through the $ecurity Council in accordance !ith
the >@ Charter= including Ch. <))Oshould peaceful means be inade@uate and national authorities
manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes
against humanityO !W 1LK"
ASSIGNMENT 1+:__________________________________________________________
The "N Human Rights ommittee >"NHR): State Re4orts R Genera0 omments
The IPR established the (,.#C to ensure that states comply with obligations they assume by ratifying
the treaty. )ee $rticles 9G5C;
Dhe .#C consists of 1G members nominated and elected by )tate -arties but serve in their individual
capacities !0experts1" rather than as state representatives.
o Independence relative' depends on nature of country, whether person has gov post etc
Ma9or 3unctions: re4orting= com40aints= and ado4tion o3 genera0 comments
Genera005:
In (,.#C met for first time in 1KFF and until 1KK1 was pretty wea' treated states with id gloves
regardless of .# record' clearly colored by Cold 2ar and fact that political reality that )tates lie ()
wouldnt have signed on much more intrusive covenant.
?ut then with 1KK:5 3,* of Cold 2ar.
,ow as reflected in both the Concluding +bservations and 6eneral Comments !discussed below" a lot more
honest, even handed and in@uisitorial in style.
?ecause historically, states have not seem Aandatory reporting as threatening their sovereignty, freedom
of action, etc and have thus complied%$c@uiesced, allowing for the (,.#C to develop it procedures
over time, gaining weight
State Re4orts
$rt C: !1" of ICC-#' re@uires .#C to examine the reports all )tate -arties are re@uired to submit 0on the
measures they have adopted which give effect to the rights recogni&edOPin the CovenantQ and on the
progress made in the enjoyment of these rights.
Covenant re@uires all )tate -arties to submit initial report w%in one year of entry into covenant and
thereafter whenever Committee re@uires.!usually every ; yrs"
+nce received, it is studied by a country rapportuer J a small woring group which prepares @uestions
for .#C to as )tate' $lso relies on ,6+ info, thematic (, rap. 3tc.
.#C then examines )tates answers in -ublic )ession which involves oral presentation by )tate rep J
@uestion and answer period from .#C members. ,ext there is one or more days of public examination
and finally, the Committee meets in private and adopts its onc0uding $1ser6ations5 a form of
Committee =urisprudence interpreting the obligations of state parties under the Covenant' )ee
illustrations on F1C5F9F
Dhese are included in .#Cs annual report to 6eneral $ssembly
?oth Concluding +bservations !C.+." and 6eneral Comments are currently established by consensus.
(ntil 1KK9 individual members voice own views of state reports5with ,o +fficial recommendations' ?ut
in1KK95 .#C chuced individual assessments for current C.+. format"
$dv of consensus' avoids factional battles which dominate (, Commission, encourages compromise.
,eg.' failure to tae bolder steps, blunting of positions, minorities view pushed toward dominant trends.
Pro10ems:
)tate reports themselves' incomplete coverage, abstraction and formality rather than realistic descriptions
of practices, and biggest problem great delays in filing5 especially by those with greatest .# abuses
.owever, since (,.#C only meet L times a year for L w sessions, wouldnt be able to evaluate more
that ;5H reports a session even if all came on time. )erious (nderfunding
Genera0 omments >G):
$ type of @uasi judicial instrument in which the Committee spells out its interpretation of different
provisions of the covenant.
In initial conception of Committee role, no anticipation that they would produce a document, rather it
was expected that its conclusions would be non5specific
Instead it has been used to adopt jurisprudential statements5 +riginal rationale was that the comments
would be based on the experience of the committee through the state reporting process and individual
complaints.
.owever, the 6.C are now general reflections raised by any provision of the Covenant.
o $lston' (nlie a court, which must address only the facts before it, the .# documents are
more powerful in that they can be more expansive, covering relevant issues as they deem fit.
2hile the first few comments were rather wea, in the post cold war era these comments have become
detailed, semi5authoritative jurisprudential formulations of how a particular part of the covenant should
be interpreted 0real norm5generating, rule5generating1
$lston' >egitimacy of each of these committees ultimately depends on government acceptance and
abidance to its recommendations'
2ith 6.C. govs actually ac@uiesced to their developments and with objection and the 6.C. standing over
time in conjunction with the invocation of the 6.C. in domestic and international political discussions,
etc. B you have a document with real weight5
2eight of these type of documents depends on how compelling% well argued they are5 and how close to
the accepted law in the international realm !or radically depart5less effective"
.# Committee maes effort to stay within legalistic framewor, within Covenant5 and argue in a careful,
legal manner maing it more legitimate to states
*ifferent committees are more expansive and less legalistic than .# Committee5 which may mae them
less useful in changing state policy
o Dhe $ctual >egal force of 6.C. is unclear' whether they are binding, whether they raise to the
level of 0soft law15 which could become part of customary international law and therefore
binding/
Genera0 omment No< #+: Reser6ations $4tion >1KK+)
(nlie prior comments both 9C and 9H raised flags for many states5very controversial !Formally objected to
by (), (8, France and 6ermany"
#eservations 6enerally'
-urpose is encourage states to sign on by allowing them to refrain to sign on to particular provision of treaty.
!wors well for laws of sear or commercial treaties"
#eservations pose difficult @uestions in .# realm' 1. )hould there be reservations at all in .#/ ?ut the
reality is we need to get states to sign on.
?acground note' ICC-# and IC3)C# have the least reservations
-rimary reason was that they were adopted early5 1KHH, and while states started lodging
reservations%objections, they didnt tae such treaties very seriously and were pretty unconcerned if there
reservations were noted.
C3*$2 B adopted in 1KFK5 at the time of Islamic revolution in Iran
o so as states with significant Auslim populations started to consider ratification, we accept all
of the provisions insofar as they are compatible, ?angladesh B we accept the treaty but we
adopt a reservation to $rt. 9 5outlawing discrimination
)o issue facing committees was that as guardians of treaties, they were confronted with governments
saying that they will not report on certain aspects of human rights abuses, b%c they reserved from
those parts of the treaty and arent bound by them5
In .#' there exists a 0imitation to reser6ation o4tion: reservation must be com4ati10e .ith the o19ect and
4ur4ose of the treaty
?ut who gets to decide whether they are compatible/ ,o provision in ICC-# for this.
6C ,o. 9C5 1KKC is 6Cs response !political impetus ?ush I ratification with numerous reservations"
Princi40e Ideas:
para. 1G5 It falls to committee to determine whether a specific reservation is compatible with the
object and purpose of treaty5
o Dhis is b%c it is inappropriate tas for states
o )ays that in part also b%c committee cant avoid this
although this is not totally true, $lston says5 they can avoid it
)everability5 if there is an unacceptable reservation the effect is ,+D that the covenant will not be in
effect at all5 rather, the covenant will be operative for the signing party without the benefit of the
reservation.
o )o reservation will be noted but ineffective because you ratified the treaty
o the countrys response will be that they only ratified based on the ability to mae this
reservation to this one provision
-ara 1F and 1G also addresses 4ienna Convention on >aw of Dreaties
-rovides that if a government feels that a reservation made by another government I) incompatible with the
objective of the treaty, they can lodge a complaint5 !few bother"
In addition to ineffectiveness5Comment also states that this method is inappropriate to .#' these are
not a web of inter5)tate exchanges of mutual obligations
o rather, 0concern the endowment of individuals with rights15
o the principle of inter5state reciprocity has no place in human rights treaties
$dditional general principle' theoretical if these are rights of (eo(le5 and thus the state cannot
reserve and say that this provision is not applicable B
#emains to be seen how this plays out' in legal terms, situation remains that all a committee can do is say
there piece' states may still tell them to go to hell
G No< #A: ontinuit5 o3 $10igations >1KKJ)
Cant denounce ICC-# treaty obligations' (nlie some other .# treaties, ICC-# does not contain
any provision regarding its termination
3xpresio (nius argument' para 9 notes that $rt. C1!9" a provision does allow state to withdraw its
acceptance of competence of the .#C to examine inter5state comm., etc.
$lso addresses fact that along with (*.# and C3))C#5 it is an international bill of rights5 not
temporary in nature
+n basis of 4ienna Convention, you can only denounce a treaty you have signed if it is clear from the
treaty that it allows for this
*ac2ground: ,orth 8orea had said it would withdraw, China had not ratified covenant but was about to
reac@uire .ong 8ong5 which as a colonial territory had the rights5 so the committee !mostly concerned with
.ong 8ong" wanted to argue that once a people have been accorded the protection of these rights, they
belong to the people5 ,+D dependent on the territory5 and thus it is not possible to remove these rights by
the state denouncing the treaty
Genera0 omment )1: The Nature o3 the Genera0 $10igation Im4osed on State Parties to the
o6enant: March #LL+ >?asically interpreting $rt 9. obligations. +n states..made this brief"
1. 3ncourages states to use interstate communications, as well as forms outside of committee to
encourage other states abeyance with covenant
9. ,o reservations to $rt 9 permitted
L. $pplies to all parts of government5 )tate -arty as whole
C. Aust adopt domestic laws commensurate with obligations of treaty !this one is a big deal5 $rt 1L"
;. Aust ensure that remedies exist, investigate violations, provide reparations, prevent recurrent
violations, bring those responsible to justice
H. #eport on obstacles to effective remedies in )tate #eports.
Inter&State ommunications: optional remedy which is pretty much dead5 not enough government support.
govt charge another5usually a neighbor5 with violation of treaty5 gov has time to respond if can
resolve5 goes to .#C. Failed b%c'
o 6ovs will do this instead in political contexts
o (sed as tit for tat' as soon as you mae complaint, other state counter5complain
o .#C just maes non5binding findings..though can note failure to agree in annual report
final element is idea of individual complaints5 next session
ASSIGNMENT 1?:__________________________________________________________
The "N Human Rights ommittee: The $4tiona0 Protoco0 com40aints 4rocedure
Readings: caseboo pp.FLG5FC;, handout [1;
%ecture 5 session 1; was covered during the second half of the ,ov 1 class only
Reading Summaries:
ase1oo2 44<J)M&J+?
$s of 9:::, K; of the 1CC states parties to the ICC-# were also parties to the 1
st
+ptional -rotocol under
which the Committee can receive 0communications1 from individuals claiming to be victims of violations
by state parties. Dhis is one of only L .# treaties that provide an individual remedy at the intl level. ?ut
because of the ambiguity of the provisions and the Committees procedural rules the proceedings are not a
continuation or appeal from judicial proceedingsM communications dont have to allege the violation is
systemic, rather an isolated violation sufficesM there is no independent fact5findingM and the 0views1 arent
binding and lac follow5up mechanisms and resources. Furthermore, the communications provision may be
underused in the countries with the most violations, since almost half the Committees cases have come
from states that already enjoy the rule of law and legal protections.
Points 3rom 0ecture:
)urprisingly low number of complaints are brought every year !about 1H:", the system has 0not captured the
imagination of the public1 in a way that its critics feared and its champions hoped
Aain clash is between the .#C, which wants is wor to be as meaningful as possible and is constantly
pushing the limits of what it was intended to do, and the states parties, which are not willing to concede to
the .#C the power that it is seeing
)tates arent ready for a truly binding international arbitration body, and would have designed the
.#C much more carefully and with more protections if it had been intended as such both .#Cs
authority and procedures are seen as inade@uate in this regard
Dhe system is not well resourced, the opinions are not of the highest @uality, and the system as a whole is
not mature or sophisticated enough to provide binding judgments
(ltimately, .#C is important in that it plays into domestic and international public opinion and civil
societyM its source of power lies in its potential to bring disrepute to countries
Handout:
0aban +1 Australia B3Auust 2CC9D
Dhe author of the communication !a member of the -atriotic (nion of 8urdistan in Ira@" and his
infant son were held in state custody !)ydney" according to $ustralias policy of mandatory detention for
unlawful immigrants. *uring his detention, ?aban applied for refugee status and was rejected. .is appeal
was also rejected. $fter approximately a year of detention, he participated in a hunger strie. Dhree days
later he and his son were transferred to another detention facility in 2estern $ustralia. $pproximately two
wees later, they were returned to 4illawood *etention Centre in )ydney. +ne year later, they escaped
detention and at the time of the hearing their whereabouts were unnown. ?aban claims that his treatment
while on hunger strie, his forced removal and the failure to provide his son with food upon arrival in
2estern $ustralia violated article F of the Covenant. .e further argues that mandatory detention upon
arrival is a violation of article K, paragraphs 1 and C of the Covenant. Dhe .uman #ights Committee found
that the author failed to substantiate his first claim. Dhe Committee noted ?abans failure to dispute the
explanations given by the state for his alleged mistreatment. 2ith respect to the second claim, the
Committee observed that the )tate failed to demonstrate that ?aban deserved continued detention in light of
the passage of time and intervening circumstances such as the hardship of prolonged detention for his son or
the fact that during the period under review, the )tate -arty did not remove Ira@is from $ustralia.
Furthermore the )tate failed to demonstrate there were not less invasive means of achieving compliance
with its immigration policies by the imposition of reporting obligations, sureties or other conditions. >astly,
the author and his son were held in detention for almost two years without individual justification and
without any chance of substantive judicial review of the continued compatibility of their detention with the
Covenant. Committee held that the rights of both the author and his son were violated under article K
paragraphs 1 and C of the Covenant. Dhe state party was ordered to provide plaintiff with an effective
remedy, including compensation.
'uth 9edg!ood?s 7issent
Dhe competence of parliament does not preclude some limit in the length of time asylum5seeers can be
detained. ,or does it preclude some reasonable time limit on the decision of appeals. ?ut the author does
not present such facts. $s such we must recogni&e that states have a right to control entry into their own
countries and may use reasonable legislative judgments to that end.
Points 3rom 0ecture:
2edgwood is one of the most prominent defenders of most of ?ushs decisions
her main point is that we should defer to governments discretion when dealing with complex problems, as
courts of this ind should not be the ones maing policy decisions regarding difficult @uestions
.er dissent is significant in that in encapsulates the dilemma B it undermines a great deal of .# law because
the system is about second guessing state policy
4oun +1 Australia B3 Auust 2CC9D
!this case was barely mentioned in class"
)ummary' $uthor of the communication is an $ustralian citi&en, claiming to have been a victim of a
violation by $ustralia of $rticle 9H of the covenant. .#C found $ustralia to be in violation of $rticle 9H,
and concluded that 7oung was entitled to a remedy, and that $ustralia was under an obligation to ensure that
similar violations would not occur in the future.
7oung was in a LG5year long same5sex relationship with Ar. C. (pon Ar Cs death, 7oung applied
for a pension as a veterans dependent, under section 1L of the 4eterans 3ntitlement $ct. .is application
was denied because he did not meet the definition of a 0dependant1 as defined by the 43$. 7oung claimed
that the $ustralias refusal to grant him a pension on the ground that he does not meet the definition of
0dependant1, amounted to a violation of article 9H.
Dhe )tate set forth several reasons why this did not amount to a violation of the covenant. Dhey
challenged the admissibility of the action on the grounds that !1" 7oung was not a victim of a violation
because he had not establishes a prima facie entitlement to a pension, so his sexual orientation was not
determinative of the issue and !9" that 7oung hadnt exhausted all domestic remedies before submitting his
complaint. Dhe state further argued that 7oung had not presented sufficient evidence to show he was Ar.Cs
partner, or that Ar.Cs death was war5caused.
Dhe .#C found 7oungs case to be admissible as!1" !for at least those domestic bodies sei&ed of the
issue" his sexual orientation was determinative of lac of entitlement, !9" domestic remedies need not be
exhausted if they objectively have no prospect of success !as was the case here". Finally, the Committee
found that the state party had not provided arguments as to how the distinction between same5sex partners,
who are excluded from pension benefits, and unmarried heterosexual partners, who are granted such
benefits, is reasonable and objective, and no evidence which would point to the existence of factors
justifying such a distinction. It therefore found the denying a pension to Ar. 7oung under the 43$, on the
grounds that he was of the same sex as the deceased Ar. C, amounted to a violation of $rticle 9H of the
Covenant.
ASSIGNMENT 1A:_________________________________________________________
ounter&terrorism measures and human rights
*ottom %ine: advocates of more stringent counterterrorism procedures argue that however desirable human
rights norms may be, they have created opportunities for terrorists to advance their goals, and should
therefore be restricted where necessary to further the larger aim of security. -roponents of human rights
counter that security bought at the cost of human dignity is no security at allUthat human rights norms
should be abrogated, if at all, then only in times of extreme urgency and only to the extent necessary for
achieving certain legitimate goals. Do do otherwise, they argue, will open the door to insecurity in the form
of abuse of power and will erode the bedroc of human dignity that underlies a more meaningful concept of
security.
Whats At Stake
E/am40eTThe *ritish Di0emma: In the wae of the >ondon attacs, ?lairs government introduced new
measures designed to mae it easier for the government to exclude individuals who 0foster hatred1 or
0advocatPeQ violence to further a persons beliefs.1 )ome of the more controversial measures include new
grounds for deportation and powers to strip citi&enship from those who actions contradict national interests.
.owever, much of ?lairs speech was peppered with recognition of the broad criticism such measures face
from those concerned that they erode longstanding human rights protections. Prime %inister 8ony Dlair=
Press Conference= "ug. 5= ,445.
A0ston on The *ritish Di0emma: Dheres something to be said for the need to counter new threats with new
rulesUor at least a new application of existing rules. $ustralians, for example, have ceded more police
power to the state willingly because they dont fear that power being used !or abused" against law5abiding
citi&ens. +n the other hand, any such changes must be ept in chec by the following considerations'
Dhe threat should be really and truly 0new1Uand the changes should really be necessary to meet it.
Care must be taen to ensure that the measures dont get abusedUonce you hitch new powers to
something as vague as 0terrorism1, you run the ris of having the concept !and thus the powers"
expand well beyond its original context.
Striking a Balance
Derogations During a State o3 Emergenc5: in this document, the .uman #ights Committee !.#C" set
forth the conditions under which states should be allowed to derogate from the International Convention on
Civil and -olitical #ights !ICC-#" in times of emergency. 6enerally speaing, these conditions included the
following'
Dhere must be a public emergency that threatens the life of the nation
Dhe state of emergency and the attendant derogations must be publicly proclaimed
Dhe state may only tae those measures or mae those derogations that are strictly re@uired by the
exigency of the situation
$ny such measures or derogations must not be inconsistent with other international obligations
Aoreover, such measures may not involve discrimination or other critical, non5derogable, provisions
of the ICC-# !see $rt. C, W 9 ICC-#".
-uman 'ights Committee= General Comment @o. ,3 *,441+
A0ston on HR !ormu0a: the .#C recommendations, though critici&ed as being so restrictive as to be
unrealistic, provide an important example of an attempt to balance the need to mae extraordinary exceptions
in human rights rules in extraordinary circumstances with the need to prevent such exceptions from negating
the goals of the rules themselves. Dhere is, moreover, a need to ensure that states dont proclaim a state of
emergency simply in order to lower expectations for respect for human rights, and to decide which
fundamental rights should never be withheld. Dhe important factors to eep your eyes on are necessity and
proportionality.
Ro0e o3 Humanitarian %a.: some people argue that humanitarian law, as distinct from human rights law,
has an important role to play vis5_5vis terrorists !humanitarian law being the body of law governing the
actions of military forces in the conduct of armed hostilities". +n this theory, humanitarian normsU
modified, if necessary, to the exigencies of the conflictUserve to protect both the lives and dignity of
civilians as well as certain fundamental rights of all combatants, whether regular or not. Gerald C. @e!man=
#ur. J. )nt?l C.= ,44/ Pnote that $lston did not address this topic in detailQ
A0ston on "N Res4onse to Terror: -rior to )eptember 11
th
, the (, shied away from engaging terrorismU
difficulties in defining what constituted terrorism made such actions controversial. .owever, in the wae of
that event, the 6eneral $ssembly passed #esolution 1LFL, calling on states to fight terrorism and setting
forth measures available to them for doing so. Dhe (, soon ran into trouble, though, when states protested
that some of those measures intruded on common police practices of many states, including democratic ones.
,evertheless, the Counterterrorism Committee was established to ensure that states comply with the
demands of #es. 1LFL, complete with a compliance5verification structure that closely parallels that of the
human rights organs. Dhe jurys still out on whether it will be any more successful.
ASSIGNMENT 1J:_________________________________________________________
ounter&terrorism measures and human rights: the "N res4onse

I< Go0dman Re4ort: GProtection o3 human rights and 3undamenta0 3reedoms .hi0e countering
terrorismH >L#@LJ@#LL?):
Class'
5 () and other developed countries opposed appointing a special rapporteur on counter5terrorism and
human rights bc these are security matters before the )C. Dhe compromise was 6oldman, an
independent expert to assist the .igh Commissioner on her mandate on counter5terrorism. $ppointed
for 1 yr.
5 $lston Criti@ue' 6oldman saw his goal as establishing a clear (, legal framewor. ?ut governments
will not find this abstract and de5contextuali&ed report particularly helpful in dealing with actual,
complex terrorist situations.
5 Dreats the entire international human rights system as one !see p. ;"' the 0framewor of international
human rights law1 includes decisions, general comments, and concluding observations of the .uman
#ights CommitteeM the wor product of other (, treaty bodies and special proceduresM jurisprudence
and reports of various regional human rights bodies. Dhis 0framewor1 is part of customary law that
informs treaty obligations.
#eading'
Introduction'
5 Derrorism is in itself a threat to human rights. Combating it re@uires greater international cooperation,
but the rule of law must always be upheld !W C".
5 )C #es. 1LFL !9::1"' contained no reference to state duty to respect human rights in their counter5
terrorism operations !W H".
5 )C #es. 1C;H !9::L"' declares that states must ensure that their counter5terrorism measures comply
with their obligations under international human rights, refugee, and humanitarian law !W H".
Conclusions J #ecommendations'
5 Dhe existing human rights treaty body system does not provide for universal, comprehensive, and
timely monitoring of counter5terrorism measures and their compatibility with international human
rights because !W GC"'
1" >ac of universal application' they can only monitor states that are parties to their
respective treaty !W FK5G:"M
9" >ac of judicial scrutiny' @uasi5judicial monitoring !if it exists at all under the treaty" is
limited to states that have accepted the complaint procedure !W FK5G:"M
L" Dhe #eporting )ystem' effectiveness is undermined by the periodic nature of t reporting
and the baclog and delays in state reporting !W G9".
5 )pecial procedures of the Commission on .uman #ights provide a diffuse and non5comprehensive
system of monitoring of counter5terrorism !W GF" because'
1" Dhe mandate holder can only evaluate those aspects of counter5terrorism relevant to her
mandate !W GH"M
9" Aany fundamental human rights affected by counter5terrorism are not covered by a
mandate !W GH".
5 #ecommendation' 6iven the current gaps in monitoring systems, the Commission should consider
the creation of a special procedure to monitor states counter5terrorism measures compatibility with
international human rights law #ecommendation' 6iven the current gaps in monitoring systems, the
Commission should consider the creation of a special procedure to monitor states counter5terrorism
measures compatibility with international human rights law !W K1"' should encompass all
international human rightsM apply universally to all states, etc !for specifics, see W K1.
+utline of the Aajor -oints of the #eport'
$. (pholding the rule of law while confronting terrorism' human rights protection during emergency
situations'
5 $rt. C ICC-# allows states to derogate from their obligations under limited conditions, regulated by
principles of proportionality, necessity, and non5discrimination !W G51:" J also includes a list of non-
derogale rights !W 1:".
5 6en. Comment ,o. 9K !9::1"' clarifies art. C, identifying further non5derogable provisions !W 11".
7erogations are al!ays eGce(tional and tem(orary !W 19".
?. Dhe role of the civilian judiciary in supervising national counter5terrorism measures'
5 Importance of 9udicia0 re6ie. by civilian courts !W 1C51;" .
C. Dhe applicability and relevance of international humanitarian law when confronting terrorism involves
armed conflict'
5 $cts of terrorism cannot be conflated with acts of warB when terrorist acts occur in peacetime, then
human rights law applies !W 1F". International humanitarian law applies only if an actual armed conflict is
triggered !W 1G".
5 0Dhere is no circumstance in which any person, however classified, can legally be placed beyond the
protection of international humanitarian law in any armed conflict.1 !W 91".
5 International humanitarian law is capable of dealing with issues of terrorism in armed conflict !W 99".
*. Dhe relationship between international human rights and international humanitarian law during armed
conflicts'
5 .uman rights law applies cumulatively with international humanitarian law in armed conflicts !W 9L". Dhe
IC= has recogni&ed this in 9 cases !W 9H59F" J has also recogni&ed that human rights treaties apply
extraterritorially !W 9G".
5 Dhere is no common approach on the relationship between human rights and international humanitarian
law in armed conflict !W 9K5L1".
3. Dhe principle of nullum crimen sine lege and definitions of terrorism and terrorist5related offences'
F. #ight to liberty and security of persons'
5 $t all time, states must refrain from indefinite or prolonged detention and must provide access to legal
counsel and to the courts or other appropriate tribunals for protection of non5derogable rights !W LF".
)ecret detentions are prohibited !W C9".
6. #ights of detained children'
5 Dhe Convention on the #ights of the Child does not include a derogation clause, and applies in
emergency situations !W CL".
.. #ights to due process and to a fair trial'
I. Ailitary tribunals'
5 #arely satisfy the minimum re@uirements of human rights law !W CF".
5 Fundamental due process protections under international humanitarian law apply to all, including
unprivileged combatants !W CF".
=. #ight to .umane Dreatment'
5 .uman rights law and international humanitarian law prohibit torture absolutely !W CK5;1".
8. Dhe principle of non5refoulement and the inter5state transfer of persons'
5 1K;1 Convention relating to the )tatus of #efugees art LL !1"' non5derogable !W ;9".
>. Dransfer, including 0rendition,1 of terrorist suspects.
A. *iplomatic $ssurances
,. #ight to property' compilation of lists and free&ing the assets of terrorist persons
+. #ight to privacy' information collection and sharing
-. Dhe principle of non5discrimination and techni@ues to screen terrorist suspects
II. Case of 'calan +1 Turke% !3C.#, 19 Aay 9::;"'
5 ^ ,ot discussed in class.
5 $llegations' >eader of the -88 alleges that'
1" .e was not tried by an independent and impartial tribunal, in violation of $rt. H I 1 of the 3uropean
Convention on .uman #ights because a military judge sat on the bench until 1 wee before the
conviction.
9" Dhe proceedings in the )tate )ecurity Court were not fair, in violation of $rt. H II 1, 9, J L because
of the restrictions he had encountered in securing assistance from his lawyersM in gaining access to his
case file, calling defense witnesses, and securing access to the prosecutions informationM media
influence over the judges.
5 Court'
1" Dhe tribunal was not independent and impartial !violation of $rt. H I 1"' $s the defendant was
charged with offences relating to national security, the presence of a military judge on the bench
made the courts impartiality and independence from the executive @uestionable. Dhe replacement of
the military judge 1 wee before conviction did not render the court impartial.
9" Dhe applicants trial was unfair !violation of $rt. H II 1 and L!b" J !c""' he had no assistance from his
lawyers during @uestioning in police custodyM was unable to communicate privately with his lawyersM
unable to gain direct access to the extensive case file !1F,::: pages" until only 9 wees before the
trial beganM restrictions were imposed on the number and length of his lawyers visits.
ASSIGNMENT 1M:_________________________________________________________
Non&state actors >inc0uding cor4orations) and human rights
omment= ounterterrorist $4erations and the Ru0e o3 %a.
1; 3uropean =ournal of International >aw !9::C" 1:1K
6erald >. ,euman
$rgument )ummary' Dhe application of a 0military model1 of law enforcement to counterterrorism will
pose threats to basic human rights to life and physical integrity. 2e need a new model.

$l5Vaeda and the 0war on terror1 present novel issues to () that cant be fit into the framewor of
international humanitarian law !I.>" or the law of armed conflicts. () has felt compelled to substitute
0counterterrorist1 measures and labels to criminal law to address these issues. .uman #ights treaties cannot
!and do not" apply to armed conflicts B usually this is where I.> taes over. 3xamples of these measures
include the use of military tribunals to try civilians. Dhese tribunals are re@uired by $rticle ;!C" of the
3uropean Convention to be under the scrutiny of judicial oversight to ensure humane treatment, timely
proceedings, etc. In () where the 3C obviously does not apply, the access to courts for judicial review has
been lacing !Ira@ abuse scandal, detained persons, etc.". ,euman tals about the importance of the habeas
corpus remedy as one such chec on the broad powers of military measures. $ccording the (, .#
Committee the right to judicial oversight for purposes of @uestioning whether detention is lawful is non5
derogable. ,euman raises the @uestion of whether this judicial oversight may be provided by military courts,
in effect the military overseeing itself.
Targeted Bi00ing o3 Sus4ected Terrorists - E/tra&8udicia0 E/ecutions or %egitimate Means o3 De3ence7
1H 3uropean =ournal of International >aw !9::;" 1F1.
*avid 8ret&mer
Against' .uman #ights ,6+s, (, .# Committee, most of the world.
-osition' targeted assassinations are an example of extra5judicial executions and should not be
tolerated.
)hould be judged through regular norms of law enforcement and .# regime
!or' ()$ and Israel
-osition' D$s are legitimate acts of war and part of a states inherent right to self5defense.
)hould be judged on the basis of the laws of armed conflict.
8ret&mer rejects both these models as insufficient and proposes a new framewor.
#ejects the law enforcement model
o *ue process is impractical when dealing with an imminent terrorist threat.
o *eterrent effect of legal sanctions ineffective to would5be terrorists
o Aost times, the perpetrator is in another countrys jurisdiction so arrest is not an option.
o -roblem of jurisdiction under .# regime B under ICC-# a state is obligated to protect the
rights of an individual within its jurisdiction !and to its agents wherever they go/". Dhis
doesnt neatly apply to transnational terror.
#ejects the international humanitarian law model
o $n armed struggle between a victim state and a terrorist group in another state does not
always amount to an armed struggle between two states so as to implicate I.>.
o I.> maes a hard distinction between combatants and civilians B international terrorist do not
generally meet the @ualifications of combatants under C!$"!9" of the 6eneva Conventions.
o If terrorists are civilians they may only be met with lethal force while in the process of
carrying out a hostile act. Dargeted assassinations fall outside this condition.
o *eeming international terrorists as 0combatants1 for purposes of invoing I.> creates a
slippery slope that would mae it easy for a state to call anyone an enemy combatant and
justify illing them as a legitimate act of war.
-roposes new model
o *raws a parallel to states right to self5defence under art. ;1 of (, charter
o 9 re@uirements for justified use of D$
Necessit5 B not unless it has no other means of defending itself
Pro4ortiona0it5 B balance the threat the terrorists activities pose to civilian life and
the chance that civilians will be injured during D$.
o )hould be followed5up with an independent investigation.
$pplies model to () and Israeli cases
o () use of a targeted assassination in 7emen B does not meet the re@uirements because it was
retributive rather than preventative, not absolutely necessary to prevent further loss of life.
o Israel B complicated by whether one considers the occupied territories a foreign state or a part
of Israel !esp. considering Israel is in control". If they are not an independent state, then Israel
should always have another option !arrest, trial, detention". If the occupied territories are an
independent state and the terrorists are therefore combatants in an international armed
struggle, Israel may be justified is using lethal force !if the above re@uirements are met" but
then should conse@uently afford captured -alestinians -+2 status, not prosecute them in
civilian trials if they have attaced I*F soldiers, etc. $ccording to 8ret&mer, Israels use of
targeted assassinations does not meet the proportionality test even where targets have been
legitimate because of the fre@uent loss of civilian life during these operations.
$dditional notes from class'
CeG s(ecialis B special set of laws that is applicable in particular circumstances, so that the .# regime law is
the general law but in certain circumstances I.> will ic in.
.# law starting point' attempt to restrain governments and regulate what they can do to their citi&ens.
$pplicable all the time, not just during peacetime.
I.> law starting point' legitimate to ill a whole range of people because during war youre not going to sit
around and tal about rules, youre going to fight bac. )till, there are certain things that dont need to be
done in order to fight a war lie arbitrary detention and torture. I.> sees to impose limits of what states
can do during war in an attempt to humani&e war.
.ow do we move from .# law and into I.>/
7ou have to begin with a factual analysis B start with the assumption that .# law applies in all
circumstances.
Dhen, the option of derogation in the interests of welfare of society and national security. 2hen do
you get to derogate/ 6eneva Convention has some answer for when a state can call its situation a
0war1.
IC=s stance on which law applies' the more precise law should apply in a given situation but the
court does not provide much guidance to determine which law is more precise.
ASSIGNMENT 1K:_________________________________________________________
Non&state Actors >inc0uding cor4orations) and human rights
Aain non5state actors' Corporations, ,6+s, Intl +rgs !(,, 2orld ?an", Derrorist 6roups.
6ovt / individual N vertical effect
Individual / individual N hori&ontal effect
Human Rights Genera0 ommittee omment' ICC-# does not have direct hori&ontal effect !private actor
to private actor", as a matter of intl law. Dhere are specific provisions where state has positive obligation
against private actors B torture prevention and housing discrimination are given as examples.
The Pu10ic&Pri6ate Di6ide' Common associations' private B home, domestic life, family. -ublic B woring
life, marets, 0outside.1
'e0UsIueF RodrigueF ase' 4, .onduran, was disappeared, tortured by national security units of .onduran
govt. I5$mer Court of .# said .onduras had violated the convention. $ny impairment of 4elas@ue&s
rights that was attributable to action or omission of govt. was violation of convention !0to respect the rights
and freedoms Precogni&ed by conventionQ1". Dhe state can still be responsible even if it didnt directly act, if
it failed to exercise 0due diligence to prevent the violation or to respond to it as re@uired by the convention.1
)tate has a duty to carry out investigation of human rights violations. ,ote that a violation doesnt mae a
prima facie case of state failure to tae measures. $lso note that on the boos procedures to investigate
dont exonerate the state, if 0theoretically ade@uate1 measures arent actually put into action.
8heodore %eron, HR %a. Ma2ing in the "N. Dhe C3*$2 provisions that seem to allow for hori&ontal
application of the convention protections 0may violate the privacy and associational rights of the individual
and conflict with the principles of freedom of opinion, expression and belief.1 )tate action could be limited
to educational measures !i.e., not hori&ontal", and this would solve that problem
ase o3 A440e15 and $thers 6< "B' 3uropean Ct of .# decided that where a the private owners of the
town center prevented activists from petitioning to stop a college from building on the only playing field in
the area. +ther groups were allowed to express political opinions on the private property. Dhe court
examines domestic law, particularly () and Canadian law, for instances where courts have acnowledged
some right of expression%association on private property, if that property owner has extended an implied
invitation. () B ). Ct. says no, but some states say yes. Canada B unclear what law is at present. $s to the
alleged violation of article 1: of ICC-#, the plaintiffs claim that government has a positive obligation to
ensure it is not violated within the private property. 6ovt. says, no, its private property. Court says, have to
balance interests of the community and the individual. Court notes that property owner did not prevent
lessees from letting activists petition, so there was not total interference with freedom. $lso freedom of
association isnt unlimited. +n balance, govt. had no positive duty here. *issent !also something $lston was
very concerned about in class"' ?ecause of privati&ation, much of public space could be restricted, and
public authorities shouldnt so easily be able to divest of their duties to protect .#. 5 Class' Is a shopping
mall public or private/ Dhese @uestions arise in (), (8, elsewhere in light of state retrenchment and
privati&ation of public services. () privati&ation of military forces is not financial, howeverM it is to cut the
political costs of the Ira@ war.
5 -ossible test' alternative means !to practice free speech, etc."' this is a dangerous test to apply, because
different people have different means.
5 3veryone in class 0agreed1 that there should be a private sphere to which .# doesnt run. !V' Is this true/"
5 Dhree tests' 1" .# runs hori&ontally always. ,ot accepted. 9" ,ever hori&ontal. Aaes .# law ineffective.
L" Intermediate test B due diligence, loos at actual impact, actual government role, government inaction, or
public function being performed by private actor. Dhese tests will put some .# obligations on states
w%regard to private parties.
P.9. $inger, $utsourcing ;ar< -rivate Ailitary Force N -AF. Dhey are the corporate evolution of
mercenaries. () is incredibly reliant on -AFs, as are others. Its big money. Dhey do everything from
security guard wor to cooing for troops. Controversial b%c of claims of profiteering and abuse of
prisoners. Five @uestions' Is profit o in military context B note that their need to watch out for the bottom
line puts them outside of the military chain of command/ )hould there be more regulation B given that they
are often implicated in bad things, including prison abuse and being used by dictators for non5democratic
ends/ *o they let governments do things that they otherwise couldnt do B lie (), which has lowered
political cost of war by limiting military casualties/ 2hat is their legal standing B they are in a grey area,
since they arent soldiers, or civiliansM they loo most lie 0enemy combatants1 legally speaing/ *o they
threaten the uni@ueness of the military as a professional identity free from maret pressures/
,otes on the legal issues brought up by -AFs' Dhey are not civilians, because they interrogate prisoners,
carry and use weapons, load bombs and perform other critical military roles. Dhey often operate in places
without well5established courts !lie Ira@", but it is often difficult to prosecute them in their home country,
too, because of jurisdiction issues. )uggestions for amelioration' 1" >ift the veil of secrecy. +penness about
money spent, numbers of contractors woring for the pentagon, and their casualties. 9" +pen dialogue about
what should and shouldnt be contracted out by the govt. L" -rivati&e only if it will save money or raise
@uality. C" Improve legal accountability. Fill loopholes. Create a (, body to sanction them, eventually, but
that will tae too long, so push new domestic laws.
Caroline -olm0vist, Pri6ate Securit5 om4anies: The ase 3or Regu0ation
)ome say there should be a total ban on -AFs. Dhis is unrealistic. Cant enforce it and would wor against
transparency. )ome say that maret will cure all. ?ut it hasnt happened yet, and couldnt address
accountability issues. )o realistically, we should regulate it.
Dhree issues need to be addressed' 1" accountability. 9" legitimacy. L" practical issues such as -AF
interaction with states, legal regimes etc.
International >egal Instruments are inade@uate. -AFs are not covered by (, +$(%$( conventions on
mercenaries, and those conventions are not too powerless to get anything done anyways !Convention
$gainst Draining, etc. of Aercenaries has only 99 states parties in 19 years, no big players". $mending them
to fit -AFs in wont happen. -rosecution in ICC wont affect the industry at large. ,ational legislation
might be more effective in the short term. ?ut regulatory instruments should also be considered.
(, regulation. 1" (, could tae an official stand, that would have important normative weight. Dhis could
be regarding only its own use of -AFs, in support of peace ops. 9" Could develop public standards,
including lists of current contracts, rules of engagement, etc.
)elf5regulation. 1" ,on5binding option' Could be lie codes of conduct, allowing clients to choose based on
behavior of specific company. Could be drawn up by -AFs, creating 0race to the top.1 )ome of this has
already happened. )tates should sanction such codes of conduct, to give companies incentives. 9" Could be
binding at state level, such as 8imberley Certification -rocess, dealing with rough diamonds. L" ,6+s
could regulate, using voluntary principles and monitoring mechanisms.
Cost%benefits of self5regulation. (ps' non5exclusive, could be tried in tandem. Aaret could drive bad
apples out of business. Increases legitimacy of -AFs. *owns' -laces cost on private actors themselves.
Could drive down possibility of legally binding mechanisms. Could further marginali&e the state.
,ational >egislation' 1" () B Internation Draffic in $rms #egulations. >icensing scheme, but no provisions
once licenses are gotten. 9" )outh $frica B #egulation of Foreign Ailitary assistance. ?ans mercenary
activity, and regulates military assistance abroad. $ny )$ firms must get govt. approval to tae a foreign
contract. $uthor says it has constitutional probs, limiting freedom of contract, etc. L" (8 B proposed B
licensing scheme.
5 none of these options have real oversight or control.
5 -)Cs can easily evade national legislation, b%c they can just move to
new country. -lus have two systems to regulate in B home country of -AF,
and colony, I mean country, in which they are operating abroad.
5 from Class' this raises the @uestion, with transnational corporations'
which government has the responsibility to act/ 3xample is )hell +il
doing terrible things in ,igeria. 6ovt. says, theyre too big and too
important. 2e cant do anything about the thugs they hire to beat and
ill people.
2hat does .# movement do about this/ Codes of conduct. 6lobal Compact.
?oth ineffective. ,ew norms were drafted. +n the new norms that were drafted' 1" Dhe same old people
were put in charge of the drafting, so will things really be different/ 9" ?axis criti@ue B doesnt this just
create more unrealistic human rights discourse that wont be enforced, and might serve a legitimating
function/ It would be better to have more practical proposals for things that actually be done to limit .#
abuses by intl corporations. Aost ppl didnt lie this article b%c it was pretentious and confusing.
ASSIGNMENT #L:_________________________________________________________
Human Rights and De6e0o4ment
Transnationa0 or4orations
Readings
,orms on the #esponsibilities of Dransnational Corporations and +ther ?usiness 3nterprises with #egard to
.uman #ights !9::L"
5 -reamble invoes the authority of a huge list of .# conventions, declarations, intl industry codes,
regional conventions
5 6eneral obligations' Corporations have a general obligation to promote, secure, respect, and ensure
protection of human rights.
5 )pecific rights that are discussed' right to e@uality and non5discriminationM right to security of personsM
rights of worersM respect for national sovereigntyM consumer protectionM environmental protection.
5 Implementation provisions' Corporate rules and self5reportingM monitoring by the (,M )tates establish
legal and regulatory framewor
5 Dransnational corps and 0other business enterprises1 are defined broadly to include any business that is
0not entirely local.1
#eport of the (, .igh Commissioner on .uman #ights !9::;"
5 3xisting initiatives and standards on .# responsibilities of corporations include' International
instruments, national laws, certification schemes with independent monitoring, voluntary initiatives,
mainstream financial indices, trainings and meetings.
5 Dhese initiatives differ in the source, scope of human rights, territory and company coverage, and in
implementation. Aost are non5binding. ,ational laws on binding on companies. International treaties
are binding on )tates parties. !#eport goes on to compare I>+ Dripartite *eclaration, +3C* 6uidelinesM
(, 6lobal Compact, and the draft ,orms".
5 *raft ,orms' Dries to articulate direct responsibilities of corporations. 4ariety of implementation
mechanisms. $rguments for and against the ,orms.
5 +utstanding issues for the .# Commission'
o 2hat are the responsibilities of business/
o 2hat inds of businesses are bound, and whats the scope of the responsibilities/ .ow to define
0spheres of influence and activity1/
o 2hich human rights are businesses responsible for/
o .ow to guarantee that businesses comply/
o Is there need for a (, statement of universal standards/
o 2hat would the legal nature of those responsibilities be/
(pendra ?axi, %ar&et ;undamentalismsA Dusiness #thics at the "ltar of -uman 'ights, !9::;"
5 Dhe ,orms represent a full reassertion of the (*.# paradigm against the emergent maret5friendly
paradigm of .#.
5 Dhe ,orms are extremely bold' it proclaims a &ero5tolerance, universal approach to the responsibilities
of businesses for .#.
5 ?axi maes C criti@ues
o *ense intertexuality of the norms' Dhe ,orms exemplify tendency of .# system to build soft
law upon soft law. #educes the intelligibility of the normsM the norms because meaningless,
confusing.
o Dhe ,orms offer a 0networ conception1 of corporate activity such that all human rights norms
apply to all types of businesses. Dhis pragmatically reflects how business wors in globali&ed
economy, but it may be inappropriate to not differentiate between different types of businesses,
or between businesses and )tates.
o Dhe ,orms fail to specify clearly the obligations of businesses. It doesnt define 0spheres of
influence and activity.1
o Dhe ,orms dont address, or presume the answer to the complex @uestion of what the ethical
obligations of businesses are exactly. Dhe ,orms extend all human rights obligations to all
businesses. ?ut the ethical @uestion remains' which approach should we use to articulate these
obligations
0ass Discussion= No6< 1M
5 .# response to transnational corporations has been forced into 9 directions
1. Codes of conductM voluntary, self5imposed 55 so not really a Xhuman rightsX paradigm.
6rows out of more maret5oriented view !Friedman"
9. 6lobal Compact, 8ofi $nnanYs initiative' *ialogue format. Companies that have signed on
report bac voluntarily. ,o monitoring.
5 *raft ,orms on the #esponsibilities of Dransnational Corps and +ther ?usiness 3nterprises
1. )trongly supported by .# groups, opposed by developed countries and corporations
9. Compromise' appointment of former head of 6lobal Compact as )pecial #apporteur, who
promised to adopt .# starting assumptions, but has privately said that the ,orms are
unworable.
5 (pendra ?axis article, Aaret Fundamentalisms
1. $ddresses ey @uestion of clash between .# and maret paradigms
9. ,orms are ill5conceivedM it ignores all the complexities of private actor, state responsibility,
etc.
L. 7ou cannot eep building soft law on soft law. Dhe foundation is lacing.
C. In his boo Future of .uman #ights, he suggests a solution in the form of much more limited
obligations for corporations.
ASSIGNMENT #1:_________________________________________________________
E6a0uating critiIues o3 the internationa0 human rights regime
#3$*I,6)' #yan 6oodman and *ere =ins, .ow to Influence )tates' )ociali&ation and International
.uman #ights >aw
Introduction5 article uses a sociological approach to critici&e the focus on coercion and persuasion and
to advocate for acculturation
o Dhree specific mechanism for influencing state practice5 coercion, persuasion, and
acculturation !acc"
o (sing empirical legal studies to clarify mechanics of laws influence
Dhree mechanisms of social influence5 L
o )tate of field !bacground"5 rationalists versus constructivists
'ationalists5 military5economic power and global material structure !coercion"
Constructivists5 norms and global ideational structure !persuasion, which often includes
acc"
o 1" coercion& influence other states by escalating benefits of conformity or costs of
nonconformity through material rewards and punishments ;
ex' () Foreign $ssistance $ct
o 9" 4ersuasion5 through social learning and other forms of info conveyance, actors are
consciously convinced of the truth, validity or appropriateness of a norm, belief or practice5
they change their minds5 ;
two factors that determine persuasiveness of messages
framing5 framed to resonate w% already accepted norms
cuing5 target audiences to thin harder about merits
o L" accu0turation& general process of adopting beliefs and behavioral patterns of the
surrounding cultureM induce change through pressures to assimilate5 H
microprocesses5
cognitive (ressures5 social5psychological costs of nonconformity or benefits of
conformity
social (ressures5 shaming, shunning, public approval
acc as incomplete internali&ation5 acc can result in outward conformity with a social
convention without private acceptance or corresponding changes in private practices
social sanctions and rewards !different from in coercion"
social, not material costs, will influence thought and action
acc and the state5 @uestion whether states are amenable to acc
acc predicts that sociali&ation processes will press organi&ations toward
increasing isomor(hism !structural similarity across organi&ations"
structural attributes and official goals of the state correlate with other states in
the world !womens rights, suffrage"
three regime design problems in human rights law
o conditiona0 mem1ershi45195 .# regimes must decide whether to have an inclusive or
restrictive membership !conditional on .# performance"
coercion analysis' 1L
inclusive5 more interactionsN get more information, lower transaction costs for
cooperation
restrictive5 information5forcing effect, more cooperation among regime
participants
(ersuasion analysis' 1;
inclusive5 generally favors this approach b%c lower transaction costs and more
dialogueM more community pressure
restrictive5 exclusion can mobili&e social movements
acculturation analysis' 1;
inclusive5 social effects on insiders, no subculture of outsiders, message of
universality
restrictive5 membership can serve as affirmation or censure, greater affinity
among insiders, small groupsN more acc
on balance, supports inclusive membership
o 4recision o3 o10igations5 1K5 how precise should obligations be
coercive analysis5 1K
precision5 discourages free riding, defines what counts as cooperative behavior
ambiguity5 facilitates agreement in the drafting stage
(ersuasion analysis5 9:
precision5 !favored"5 content of rule is assessed and ideally internali&ed
ambiguity5 facilitates agreement, need for subse@uent discussions propels
communication process
acculturation analysis5 91
precision5 broader &one of agreement b%c of social pressures and shared global
culture
ambiguity5 better for institutionali&ing effects
o im40ementation' monitoring and enforcement5 9L
spectrum5 soft to hard techni@ues !publishing best practices, monitoring and reporting,
critici&ing bad actors, binding decisions and material sanctions"
coercion approach5 values hard techni@ues5 lin .# performances to financial and
military interests
persuasion approach5 uses managerialism5 engage govts in discussion about practices,
monitoring and reporting also helpful
acculturation approach5 publishing best practices is valued, external
surveillance%reporting important
toward an integrated model5 should tae processes of acc seriously, account for negative interactions
among the L mechanisms, consider se@uencing effects
conclusion5 central problem for .# regimes is how best to sociali&e bad actors to incorporate globally
legitimated models of state behavior and how to get good actors to perform better
C>$)) *I)C())I+,
Influencing states5 article on acculturation
+bsession in article to classify everything into sociological terms
Focus on 0empirical15 is that appropriate for .# discourse/ )ocial science obsession w% justification
through empiricism
)eems as though they thin there are some good states5 who are they taling about
$cc taes us bac to the challenge of trying to change culturesM essence of .#
3mpiricism5 .# proponents tend to be more faith5basedM they see .# more as a faith, not up for
careful scrutiny
o Dhere have been some studies doneM especially in relation to treaty regimes5
.ein& and 4illgen5 impact of (, .# Dreaties on the domestic level
Came up with measures which they suggest can help us loo at the impact of
intl treaties !policy development, judicial decisions, legislative reform"
6oldsmith and -osner5 dont lie .# regime, say it doesnt mae difference in
domestic orderM only in 3urope
+ther criti@ues
*avid 8ennedy !.arvard"5 the intl .# movement as part of the problem/ .e says that
movement has been highly problematic in terms of its overall impact
+ne of the major external criti@ues of .# is that its a convenient cover to promote liberal
maret conventions5 maret freedoms
if you want to challenge%criti@ue the way in which societies operate, you must use .#, but there
are other lenses, but .# has played a hegemonic role and pushed out other discourses
o .# views problem and solution too narrowly
.# promises more than it can deliverM does more to produce violatios5 strong criti@ue
^ the rest of lecture was general closing comments for the course !last day of class" and arent included here