[CONCEPTS AND DISCOURSE]

4/27/2014 8:30:00 AM

IC
I. WHAT ARE INTERNATIONAL HUMAN RIGHTS?

International
o universal entitlement; Does not depend on nationality, culture, traditions,
religion
o Not just rights as a citizen or member of an org. claiming there are certain
rights which transcend national boundaries.
o Give rise to certain obligations (obligations erga omnes)

Human
o Rights that humans are entitled to solely by virtue of their humanity

Richard rotyno such thing as human rights. Being Human does not
imply rights.
Peter SingerHR is like racism or sexism; speciesism. calling them
human rights is a moral flaw by excluding animals.
o Rights that are intimately connected to being human
o What it means to be human changes over time
17-18c: negative rights characterized by freedom. Autonomy over
authority. Individualistic
19c: welfare rights; society and the state that rep society must provide

certain things. Affirmative rights

20c: syntheses of both trends. Two branches of rightscivil and
ethical rights, and economic social cultural rights
universal declaration of human rights

GA resolution and not binding. Aspirational statement

International covenant of civil and political rights
International covenant of social and cultural rights

All 3 are Referred to collectively as the International

Bill of Rights

Rights
o Entitlement. Not a matter of kindness
o If A kills B, its normally just a crime. When the murder is committed by the
govt or because of discrimination, it beings to be regarded in terms of human
rights.
o Not a matter of kindness, entitlement someone has out of right. Entitlements.

II. THE NATURE AND LOGIC OF RIGHTS

A. Hohfeld rights as lowest common denominator of law. All rights are relational. If you
have a right, you are implying someone else has a corresponding obligation to that right
B. The term Rights is ambiguous and can mean different things including:
a. Claim Rights (rights stricta sensa) (strongest right)
i. the correlative obligation is a duty
1. eg A and B sign a contract stating that A performs a service and be
paid $10. A has a claim right to be paid, and B has a correlative duty to
pay.
a. In personam rights. These rights do not extend beyond this
contract
2. Contract to pay $100 if you do not walk across the BK bridge for a
year. In personam bc it only applies btw the parties. If you OWN the
bk and say no one can walk across it, it is a right in rem
a. Rights in Remrights against the whole world that do not
depend on any specific relationship.
b. Duty affects large numbers of people who are not party to the
contract
3. If I have a right to live, you have an obligation not to kill me
b.

Privilege (liberty)
i. you can do something if you wish because you owe no obligation to do it, or
refrain from doing it,
1. eg: freedom of speech. Congress cant stop me but they dont need to
give me a megaphone.
2. most human rights are privileges

c. Power (authority)
i. Power to change someone elses legal status
ii. Correlative is a liability
1. Youre vulnerable to someone elses exercise of power that can change
your legal status
a. Eg: if you own land, you have the power to gift it to B, and
change Bs status into a land owner
d. Immunity
i. Your status cannot be changed
ii. Correlative is disability
1. B contracts to pay A $100 on As making a demand in writing.
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a. Before A makes a demand, A has a power and B has a liability

b. When A makes a demand, B has affirmative duty to pay, and A
has a claim right to be paid.
C. Types of corresponding duties for states in HR
a. Respect
i. Dont infringe
b. Protect
i. protect people against violations by others
ii. R2P (responsibility to protect) intl community has an affirmative
obligation to intervene if a particular govt is unable or unwilling to prevent
terrible things happening.
1. New doctrine broadening the usual responsibility to protect which was
only a liberty to an obligation
2. Usually SC but sometimes regional arrangements
c. Promote
i. create institutions and structures which are conducive to the health of human
rights.
D. 3 levels to SC intervention if there is a threat to international peace and security
a. peaceful
b. coercive
i. not military force. Sanctions
ii. ICC
iii. Set up ad hoc tribunals which can try people for crimes against humanity, war
crimes, etc.
c. Military force

[GLOBAL FRAMEWORKS, DEATH PENALTY, AND AMERICAN

EXCEPTIONALISM]
Death Penalty

amnesty report
South African case
United States
o Atkins
o Roper
Exceptionalism

Rubenfeld

Steiner

I. DEATH PENALTY
1) Global Trends (18)

Different Death Penalty policies:

o Retain the DP
o Abolish for all crimes
o Abolish for ordinary crimes only
o Abolish in practice, but not by law

intl treaties in force prohibiting it

2) South African case

State v. Makwanyane (23)-- Constitutionality of the death penalty in South Africa.
A) Fundamental Rights Arg

Can often be arbitrary. Depends on how lucky, wealthy, what means you have
o Quotes Soering v. UK could US national be extradited from UK when he
would face the DP in the US? Court says although DP hasnt been abolished
under IL, its impossible to administer DP humanely. death row
phenomenonwaiting on death row for a prolonged period of time is
tantamount to psychological torture. US requires due process with lots of
appeals and procedural requirements. In order to comply with due process, its
impossible to avoid the death row phenomenon.

Const has right to life, right to dignity, and against cruel inhumane or degrading
punishment

ICCPR
B) Policy Considerations
C) Reasoning and the Legal Material Relied Upon

Its sometimes necessary and required to look at comparable experiences of foreign

countries

II) EXCEPTIONALISM
1. Roper v. Simmons
a. Majority of SC
i. you can refer to experience of other countries including IL.
1. Can look outside US when interpreting US const
ii. IL can be persuasive.
1. Not following because its biding, follow because you agree with
the reasoning
b. Dissenting Opinions (Scalia, Roberts, Thomas)
i. Cannot look outside the US. Dont need to look to other people to interpret
our own const and own values.
ii. Majority is disingenuous. Court will only look to foreign law when they
think it will help their argument and ignore it when they think it will hurt
1. Courts often look to non-legal sources.
2. The Claim
a. We recognize IHR but we are already doing better and the IL standard is lower
than what we have
i. Freedom of Speech is interpreted expansively in the US. In IL freedom of
expression has certain limitations (eg hate speech).
b. DP is an exceptional kind of thing that does not play by the same rules as other
countries
3. Tension: International Human Rights is primarily an American invention. Nevertheless,
the US has exempt itself from its reach from time to time
a. Even when US is a party to a convention, they impose a RUD that says when it
comes to freedom of expression it will be understood as through US
jurisprudence.
b. Also says the treaty is non-self executing. Means that you cant sue based on the
provision of the treaty
i. (tangent) Dualism v. monism
1. dualismIL and domestic law are two separate and distinct
systems
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ICCPR
2. MonismIL and domestic law are part of a unitary system. IL is
treated as superior when there is a conflict with domestic
legislation.
3. Treaties
a. strict dualism (british tradition)a treaty does not have any
domestic significance until parliament or domestic
legislature has given it that effect.
b. Modified dualism (or modified monism)US Approach.
Some treaties are intended to be automatically part of
domestic legislation, and some are not and need special
legislation.
c. US more suspicious of HR treaties than economic or other kinds of treaties.
Feeling that HR treaties go to the heart of const. system so there is a greater worry
4. The Phenomenon
a. Unilateralism v. Universalism
b. Nationalism v. Bureaucratic Elitism
i. Greater deference to US citizens so you tend to listen to them more. Other
countries have elites running things and they are not as responsive to
popular opinion
ii. Criminal law populism in US which accounts for attitudes towards the DP
iii. Freedom of speechdif btw Europe and US attributed to history. Europe
more hesitant to subscribe to the same degree of freedom of expression
after its history of the holocaust and ethnic cleansing
c. Democratic v. International
i. National courts are government institutions
ii. In an international court there is no judicial review and the judiciary isnt
embedded in a larger national (democratic) political framework

CIVIL AND POLITICAL RIGHTS: ICCPR AND NON-TREATY SOURCES

Sources:
1. Customary International Law
a. The Paquet Habana and Laws of War
2. General Principles of Law and State Responsibility
a. Chattinprotection of foreign nationals. US national allegedly mistreated in Mexico.
No treaty so it was est that mexico owed US a duty not to mistreat a US national as an
established CIL. Issue is what constitutes mistreatment?
i. What happens when there is a divergence in domestic legal systems? At the time
of the case there were no uniform standards so had to fall back on principles such
as natural law
ii. Mexico has a civil law system, and US has a common law system.
iii. General principle of due process and fair trial, but it Means different things in
different systems
1. Civil law system judges are more active as opposed to neutrality in a
common law system
iv. In chattin it was only btw states. Post 1945 we recognize that IL can also involve
individuals.
3. Treaties and the Inter-War Minorities Regime
a. Minorities Regime (99)
i. Substantive norms for interwar protection of minorities
i. First, protect life and liberty of all people within your boundaries without
discrimination
ii. Guarantee nationals the usual civil and political rights without
discrimination
iii. Minority (ethnic or religious). Not simply protected against violations of
the traditional kind, but there were areas like using there own lang and est
their own social and religious institutions
ii. Albania eliminated private schools for everyone (arguing no discrimination).
iii. Permanent Court of International Justice declared this illegal.
iv. Although equal in fact, not equal in practice.
1. to satisfy the requirement of equality in fact as well as in law,
minorities must be on a footing of perfect equality with other
nationals and they must have available to them suitable means,
which included their separate institutions, for the preservation of
the traditions and characteristics of their minority group; Albanian
nationals belonging to the minority groups in question thus had the

right under the declaration to maintain, manage, and establish their

own charitable, religious, social, and educational institutions, and
therein freely to use their own language and exercise their religion.
iv. Modern human rights legal situation tends to talk in terms of individuals.
Everyone rather than groups. Dont have the same kind of minorities regime like
we had under the interwar dispensation.
b. Treaties
i. What makes treaties binding?
1. Pacta sunt serandaagreements must be honored.
2. Some say principle of CIL
3. Some say its more basic. Maybe natural law? Anyone on the street will
say that people should honor their promises.
4. Prudent. system wouldnt work without out. Plus we think it is right.
ii. Whenever faced with a treaty, looks to the Vienna Convention on the Law of
Treaties, which is the definitive treaty that defines all aspect of treaties that are
important.
iii. Peace treaties are an exception to the typical notion of consent in treaties.
Usually the victor imposes or coerces the treaty on the vanquished.
1. Hankin suggests when this happened war was legal. since use of force is
now unlawful, these kinds of peace treaties would not be legal bc there is
no consent and there is coercion.
2. Suggests if the vanquished was the aggressor, maybe the treaty would be
valid bc the losers use of force was a violation under the charter
Sources
CIL

Content
Jus in bello

Structure
Civilian non
combatants

Chattin

General Principles

(Natural law)
Due Process

State v. state

Interwar
Minorities
Regime

Treaties

Rights of
Inhabitants,
nationals,
minorities

Groups

Paquete
Habana

Then and Now

Post 1945still
have jus in bello.
(Geneva
Convention)
Now articulated in
specific
instruments*.
Structure: now
indiv are bearers of
rights
Non discrimination
is now a fund
principle w/
individualistic tone

*instrument is broad terms for treaties as well as non treaties (like the decleration of
human rights)
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4. JUDGMENT AT NUREMBERG AND THE BIRTH OF THE MODERN HUMAN RIGHTS MOVEMENT
1) Nuremberg
a. Est for the first time that how a state treats its own people is a matter of international
concern
i. Subsequently we have set up ad-hoc tribunals.
ii. Now since the Rome Statute there is an International Criminal Court.
b. Prior to N, intl criminal law consisted only of limited crimes (genocide, piracy, etc)
and was tried in domestic courts under universal jurisdiction.
i. Now we have a tribunal set up by the victors who sat down and made a treaty
and made provisions for this process. Decided to try leading members of the
axis powers for certain crimes which they set out in the statute.
c. Creates and defines substantive crimes (116)
i. Crimes Against Peace
ii. War Crimes
iii. Crimes Against Humanity
1. Restricted only to the outbreak of hostilities so it looks more like war
crimes instead of jus in bellum
2. Subsequently broadened by rome statute to apply even in times when
there is no war
d. Issues
i. Retrospective application. Punishing for a crime that was not a crime when the
alleged conduct took place.
ii. Defenses:
1. citing the Kellogg-Briand Pact saying states have renounced the use of
force and so if you do it you are committing a crime.
2. Hague Convention describes jus in bello and nuremberg transitions it to
jus in bellum.
a. Makes an A fortiori argumentwith all the more reason.
b. Doing certain things in the conduct of war is prohibited under the
hague convention as well as previous laws of war. If they are
prohibited, waging war of operation is even worse. If that is
prohibited that surely something of the same kind but worse is
also prohibited
3. CIL-- Principles of justice that are well established
a. Henkin: When citing CIL, always a danger of engaging in
retrospecitive reasoning and punishing ppl for something they did
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not know was illegal at the time. CIL is Still a reason for judicial
lawmaking
2) Birth of the Modern Human Rights Movement
a. Pre WWII
i. Initially mostly religious orders dictating human rights. Then there was the
thirty years war (1618-1648) which ended up virtually with the overthrow of the
church and secular law emerging. Treaty of Westphalia as the birth of the
modern internal law system. This system was created by Grotius derived from
principles of natural law. Heart of IL is sovereign states with complete
autonomy. In effect until the eve of WWII.
ii. WWII created the Zeitgeist (spirit of the time) which made possible the human
rights movement
b. Post WWII
i. Regional systems
1. European convention
2. American convention
3. African convention
ii. Global system
1. Largely UN based
2. Consists both of substantive rules and institutions and mechanisms.
3. Institutions divided into
i. Charter institutions and mechanisms
a. GA, SC, UN secretariat
ii. Treaty institutions and mechanisms
a. Own treaty bodies that administer that treaty in a variety of
ways
i. Eg ICCPR has the human rights committee dealing
with disputes btw individuals, interpretations
iii. Difference btw charter and treaty:
a. Charter binds the entire global community
b. GA treaties start as nonbinding resolution (just statement of
general principles then be adopted by treaty known as
either a
i. Covenant
ii. Convention
c. Treaty mechanisms affect only the parties to the treaty
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2) Institutions:
a. UN Charter
1. Only general references to human rights
2. Art 1one of the purposes of the UN is to promote human rights
i. Contains the Principle of non-discrimination
ii. No distinction as to race, sex, language or religion
3. Art 56members pledging to the promotion of human rights
4. Art 68makes it possible for the creation of the UN Human Rights
Commission
i. Human Rights Commission tasked with drafting of a declaration
and then there was supposed to be a treaty creating substantive
binding norms and then implementation mechanisms.
ii. Superseded by the Human Rights Council (not to be confused with
the Human Rights Committee)
5. Henkin--The charter and how the system is set up was revolutionary.
Penetrated the armor of state sovereignty which was supposed to be
sacrosanct. States didnt know what they were signing up for.
i. How did states come to accept this radical interference with their
own national foreign affairs which the human rights movement
entailed? Charter has different sets of values. Charter takes State
Values (autonomy, sovereignty, equality, peace and security) and
links them to human values. Shows there is a symbiotic relationship
if you wish.
ii. Henkin is pointing out the charter links human rights and treats that
value as self evident and links it to state values. This is how states
came to accept it.
b. Universal Declaration of Human Rights
1. Adopted in 1948 by the general assembly. (only a resolution-- not
binding)
2. Synthesis of civil and political rights and economic social and cultural
rights.
3. Understood that this would be followed by legally binding treaty and
methods for implementing this
c. ICCPR (and protocols) and ICESCR
1. Took 18 years for the ICCPR and ICESCR to be written and adopted, and
then another 10 years to be ratified and entered into force
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2. Why did it take so long, and why 2 treaties instead of one?

i. Cold war happened. Wartime alliances suddenly fell apart and the
world was on the brink of nuclear disaster. The covenants become
contention
ii. The compromise was lets have two treaties. If you want to
subscribe to one and not the other, states can do so.
3) Similarities btw UDHR and ICCPR
a. Universality
i. No relativism and no exceptions
3) Contrasts
ICCPR
Treaty
more precise
binding
create institutions
protocol Iprovides for individual
complaints
includes few group rights

UDHR
Declaration
broad
may be binding as (1) CIL or (2)
authoritative interp of the charter
(which is a treaty) or (3) Soft Law
(somewhere in btw law and not
law).
Cannot create institutions. Must
rely on charter based institutions
Individual rights

Derogation and Clawbacks

Art 4limits
1. Substantive Provisions
b. Sovereignty of natural resources
c. Protocol IIabolishes the death penalty. Subscribe to by 100+ states
d. 5 classes of rights
i. protection of the individuals physical integrity
ii. procedural fairness
iii. equal protection
iv. freedom of belief, speech and association
v. Right to political participation
2. Derogation and Clawbacks
e. Derogations (art 4)-- Permits states to suspend obligations under the covenant in
situation of emergency threatening the very life of the state
f. Clawbacks(art 18,19)

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Roadmap:
1) ICCPR: general structure and provisions
2) Work/output the ICCPR treaty body: the human rights alter

comment on state reports

general comments
o became more substantive after the cold war
o litigation: select cases
baban v australia
singarasa
KNLH v. Peru

Toonen v. Australian

3) non treaty norms

restatement foreign relations p 172
soft law: alvarez exception p 871
4) CEDAW and Womens Rights

CIVIL AND POLITICAL RIGHTS

1. ICCPR: general structure and provisions
a. Creates the ICCPR Committee (Human Rights Committee)
b. General Comments
i. 4 phases
c. 2 Optional Protocol
2. ICCPR Committee
a. Functions: (art 40-1 and first Optional Protocol)
i. Consideration of states reports
1. States must submit reports on the measures they have adopted which
give effect to the rights recognized herein and on the progress made in
the enjoyment of those rights
2. Procedure for examining reports
a. Task force-- Appointment of a country report task force of 4-6
members. One is appointed country rapporteur and prepares a
list of issues to be sent to the state party.
i. NGOs can also submit reports
b. Constructive dialogue
c. Task for defats concluding observations
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d. Observations are debated in private, adopted, and usually

released at the end of the session
e. Gvmts encouraged to inform of measures taken in response to
the observation
ii. The adoption of general comments
iii. The examination of communications from individuals claiming to be vistims
of violations by states parties of the covenant
iv. An interstate complaints procedure (art 21)
3. General Comments:
a. Phase 3 (1989-1999)(Page 881) GC18-- non discrimination/ Equality
i. Grounds now expanding from those stated in the covenant (marital status,
homosexuality, disability).
ii. Purpose/effect, intentional/non-intentional, direct/indirect
iii. Equality
1. Formal equality (starting point: treat likes alike. Dont disc in
treatment)
2. Substantive equality
3. Equality of opportunity
a. people are given the same opportunity (eg: eliminating
historical handicaps) and same starting point. May still not be
enough
4. outcomelook at certain outcomes and see if equality of opportunity
is not enough
iv. Discrimination provisions
1. Subordinate
2. Autonomous
a. Brocks v. Netherlandsprohibits disc not just in the provision
in this particular document but any inequality before the law.
May come froma idff covenant or against intl law
b. Phase 4 (2000-present)-- General Comment 28equality between men and women
4. Legitimacy
a. In-put oriented legitimacy
i. Democracyparticipation. People are elected and then they represent you
b. Out-put oriented legitimacy
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i. Quality of their output

1. May have an unelected body but if you look at its substantive output it
may in fact be impeccable. So in fact you may overlook input legit if
the output is good
a. Eg: restatementgroup of experts that meet and sit down and
come out with these things and lo and behold courts bring it up.
What gives them legit is not how they came to be constituted
rather the substantive output
5. Litigation
a. Baban v. Australia (900)
i. Father and son seeking asylum in austalia. Are detained for a 2 years with no
access to courts.
ii. Argue 1) prolonged detention is violation of rights under the cov. Principally
art 9 which talks about circumstances relating to arrest and detention and
proceedings before a court and 2) there was not a necessity for detaining them.
iii. Maj of committee says yes, there was a violation. Prolonged detention when
they could have found other alternatives was a violation of their rights under
proper procedures. Restricted ability to challenge in court was also a violation
iv. dissentProf Ruth Wedgwood: Australian parliament passed a law and it is
no business of the human rights committee to second guess. The way this was
set up as within the competence of the legislature and although there may be
issues under the convenient there is too much second guessing
b. Singarasa v. Sri Lanka (902)
i. Someone was rounded up and forced to make a confession that he was in a
conspiracy with other people seeking to overthrow the govt. torture marks on
his body that ultimately sri Lankan supreme court held inadmissible
reasoning that If he was tortured why didnt he complain before? It was up to
him to prove the confession was forced
ii. HMC found a violation
iii. Supreme court says HMC has no basis for second guessing the supreme court
and decision is counter to their constitution
1. Sri lanka party to the covenant
c. Take away
i. Subsidiarity (Margin of appreciation)disputes should be left to be
resolved as close as to where the facts arose as possible. Intl bodies should

15

step in only as a last resort. If the domestic system has anyway of resolving it
internally, HRC should not intervene.
ii. Exhaustion of Local Remediesbefore you go to international bodies, should
seek to exhaust local remedies.
1. If local remedies are illusory (Singarasa) you dont need to actually
resort to them.
d. KNLH v. Peru (906)
i. 17 yr old gets pregnant and it is clear that the fetus is not viable. No one wants
to help her get an abortion. Gives birth and baby dies as was expected.
ii. Violations
1. nondiscrimination gender grounds (art 2 and 3)
2. Art 6right to life (refusal to grant abortion was a threat to her life bc
she might be forced to resort to clandestine backyard abortions that
could have perhaps killed her)
3. Art 7cruel inhuman and degrading treatment
4. Art 24protection of minors
iii. Committee says there was no discrimination based on gender whether in terms
of subordinate like art 3 or autonomous provisions like 26
1. Doesnt talk about art 6 bc find violation of art 7
2. Violation of art 2 in conjunction with cruel treatment, privacy, and
protection of a minor
iv. Dissent: should have also found violation of art 6
6. Abortion under ICCPR
a. possibilities for right to abortion
i. prohibition
1. criminal
2. denial of available resources
ii. liberty
1. states says you can have an abortion in certain circumstances but we
are no obliged to help you. If you can afford it, you can have it
iii. affirmative/positive right
1. you are entitled to facilities that can help you (art 4 suggests this)
7. Toonen v. Austalia

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NON-TREATY NORMS
Restatement (172)
702. Customary International Law of Human Rights
A state violates international law if, as a matter of state policy, it practices, encourages, or
condones
a. Genocide
b. Slavery or slave trade
c. The murder or causing the disappearance of individuals
d.
e.
f.
g.

Torture or other cruel, inhuman, or degrading treatment or punishment

Prolonged arbitrary detention
Systematic racial discrimination, or
A consistent pattern of gross violations of internationally recognized human rights

SOFT LAW
1) Sources Thesis: What makes law?
a. Dist btw hard law and soft law is predicated on legal positivism. Assuming there
is a sharp difference btw law and not law. Not always true that you can draw that
distinction
b. Legal positivism-- sharp division btw what is law and what is not law
i. Austin--Command of the sovereign
1. Backed by sanction
ii. Keelson--Hierarchy of norms buttressed by apex norm (grundnorm
which in our system is our constitution)
1. Every norm has one above it that validates it until you get to the
apex norm (const)
iii. HLA Hart-- Union of primary and secondary rules
1. Primary rulesrules of conduct
2. Secondary rules
a. Rules of recognition
b. Rules of change
c. Adjudication

CHARTER BASED BODIES

c. Dworkinlaw consists of both laws and principles. What matters for rules is
whether they are valid (passed in the correct way) whereas with principles what
matters is weight
i. Rulesspeed limit
ii. Principlespeople should have a right not to be discriminated against
1. Whats important is the weight. Principles weighed against another
2) Two theories of categorization
a. Classical
i. Necessary and sufficient conditions
1. Uses elements to define laws
b. Prototype
i. Categorize based on Goodness of example
ii. Have core which is the best example of that category, and then other
examples that are less good
1. Egwhat is a bird?
a. Nec and sufit should have feathers and wings. But then is
an ostrich a bird? Is it more of a bird than a sparrow?
2. Is the pope a bachelor?
a. Classicalno. bachelor is an 1) adult 2)unmarried 3) male.
If one is missing, you do not have a bachelor.
b. Sounds weird bc the pope is not the best example of a
bachelor.
iii. This is why we have so many debates over definitions in law bc we have
something and then say yeah but its not really the same
iv. Womencan say that the classical category is to treat them the same. But
sometimes treating them the same can result in terrible consequenses. May
be better to be prototypical
3) Creation of Norms
a. At the first state in the life cycle model, morns emerge through persuasion by
norm entrepreneurs who reframe state and public perceptions. They are
successful when the new frames resonate with broader public understanding and
are adopted as new ways of talking about and understanding uses.
b. The tipping point comes when a critical mass adopts the norm, leading to the
second stage, when norms cascade through combined coercion and persuasion.

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CHARTER BASED BODIES

c. The final state of normative internalization occurs when norms acquire a takenfor-granted quality and are no longer a matter of broad public policy
4) TAKE AWAY-- While IHR is positivistic in the sense that we talk about sources and
starting points, Nevertheless it would be a mistake to stop and think everything is settled
by figuring out whether this legislation was passed or isnt.

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WOMENS HUMAN RIGHTS

CEDAW: only need to know articles on page 183-4
Phase I: immediate post-WWII dispensation

UN charter
UDHR
ICCPR
o All include sex discrimination
o Problem: looks only at state public action
Phase II: CEDAW
Pase III: Post CEDAW developments
1968Tehran
1994Vienna
first time womens activists took this seriously and talked about how IL is actually
discriminatory
1. Critiques of women status in IHR
a. Charlesworth, Chinkin & Wright (1991) (handout)
i. Look objective but if you look below the surface IL is in fact biased
1. Structure
a. principle agent is the state which is a patriarchal structure.
Projected into the Intl legal system
b. no women in policy or important positions in IL
2. Substantive provisions
a. jus cogens traditional human rights tend to only deal
with rights related to men in the public sphere. Hardly
anything dealing with the actual situation of women
b. Amartya Sen180-182: disconnect in statistics. More males than females
because of gender discrimination
2. Kenya Polygamy Law- new proposed law in Kenya legislature. Men can have as many
wives as they wish and can do so without informing their spouses. Women can have only
one husband.
a. Pre-CEDAW
i. Must use the Charter grounds for non discrimination, which includes
sex.

CHARTER BASED BODIES

ii. Discrimination on the grounds of gender: Can says its discriminatory bc it
provides a benefit to men that is not equally available to women
1. Counterarguments and response:
a. Majority aspectit was passed by the majority
i. If this is discrimination based on gender it is a
human rights issue. If it is a human rights issue
majoritarianism is irrelevant. Minorities need HR
protection
b. Cultural aspectin African culture men can do what they
wish and its not something that women can do
i. Never take cultural args at face value
1. Is it true?
a. The culture typically allows for
women to consent. This is just men
passing a rule thats favorable to
them
2. How is the cultural norms established?
a. If men run the show and have all the
resources and make the rules, how is

3.

that a genuine expression of the

culture if it excludes half the
population? Who is to sya what the
culture is?
Does it matter?
a. Is/ought. Saying what something is is
just stating a fact. It does not tell us
how something sometihng ought to
be. Doesnt mean therefore theyre
right. To know is something is right,
you need an intermediate old
premise
b. eg: slavery is a fact. In order to show
that slavery therefore is justified, you
need to show there is an intermediate
premise. Must show the cultural
practice is also good

21

CHARTER BASED BODIES

c. There is a new broadway show
(fact), you really ought to see
(ought). Deriving an ought from an
is. Intermediate premise is unstated
but implying if a show is new and
good, its something people ought to
see.
b. Post- CEDAW
i. Gives us broader basis of discrimination. Says specific cultural practices
contrary to womens rights. Talks about embedded discrimination
ii. Points out if you have a male dominated system it will produce male
dominated norms
Womens Human Rights
1. pre-1945 ie pre-modern international human law
women need to be protected.
Mothers and wives. Very little autonomy
2. post-1945 but pre-CEDAW

non-discrimination

not nothing. Quite dramatic in many ways. Just meant that you had a number of
protections (freedom of movement, protection, civil and political rights). Fact that
you have a change. Women should be treated the same as men. De jure (legal)
equality as distinct from de facto equality. Everybody gets treated the same

criticisms by ppl like charlesworth saying its facially neutral, objective, universal
but in fact human rights principles are gendered.

Charlesworth Crit:
o Looked at substantive norms and institutions and personnel.
o substantive norms Traditional basis of HR norms. (eg torture: only
extends to official torture by the govt and not domestic violence or torture
in the home. Politicians are men and only think of circumstances
concerning men)

o institutions and personnel no women in an capacity involved in making

important decisions
3. CEDAW approach

Provides a richer, comprehensive and more robust understanding of

discrimination and womens equality
22

CHARTER BASED BODIES

o Effect or purpose. Not everyone needs to be treated equal, rather on the
basis of equality between men and women
1. Now seeping into other areas of human rights. Creating a different
understanding of HR in relation to these things
o Robust in 4 ways. Prohibits
Direct (treatment)
Indirect (outcome of the conduct)
Intended (purposive)
Unintended (effect)
o Sex, marital status, pregnancy and maternity
o All fields public or private
o Also talks about state parties to exercise diligence to ensure private parties
dont violate the convention.
moving from the direction regarding private acts being HR violations
which ordinarily we see as normal crimes.

Provides for special temporary and permanent measures to combat institutionalized

historical discrimination and reproductive function
o Art 4(1): talks about temp measures. Affirmative action
o 4(2) perm measures intended to accommodate for differences based on
womens biological differences are not considered discriminatory
o Charlesworth- paradox of womens rights: you are torn btw saying lets have
the same standard for everybody, and on the other hand reflecting that
sometimes womens situations are different and need different protection and
treatment

Promotion of social change

o Unlike previous instruments. not looking at one-on-one instances. Looking at
discrimination against women as deeply embedded in cultures and practices.
o 5(a) elimination of prejudices and cultural and other practices based on
implied inferiority of women
o 5(b) change in sex stereotyped attitudes and upbringing in families.

Limitations:
o on the basis of equality between man and womenstill have man as the
reference when talking about equality. Men as the comparator.
eg: talking about provision regarding contraception or abortion.
Applies differently to males and females. Problem is when it comes to

23

CHARTER BASED BODIES

freestanding rights that females should have that dont have an
equivalent on the male side.
o Doesnt mention violence against women. 1979 when CEDAW came into
existence, domestic violence wasnt yet regarded as an obvious norm so
CEDAW is silent about it. Has since been remedied to a certain extent.
o IntersectionalityCEDAW has an unstated assumption that for instance
marriage is heterosexualdoesnt take into account the fact u can have larger
forms of discrimination esp if there is a same sex relationship
4. Post-CEDAW ie current position. Gender Mainstreaming

Institutions: Not enough to not discrimination. Important for women to have a

seat at the table. Cannot have an international body that does not have an adequate
representation of women.

Instruments: feminization of ICCPR. Committees that interpret mainstream

instruments must have women. Take CEDAW values and infuse them into the
mainstream instruments

24

ECONOMIC SOCIAL AND CULTURAL RIGHTS

Inspiration
Indivisibility and interdependence
Substantive provisions
Udhr
Icescr
Other
Nature of rights

Who

What
Nature of obligations

Who: subsidiary: aw2 of the ICESCR

What
o Progressive realization
o Immediate obligation

Nature of rights
How are ECSCR different from ICCPR?
Not always affirmative. Some are neg.
Workers rights:

Affirmative-- right to join a trade union, equal pay for equal work, safe and healthy
working conditions.

Negativefreedom from forced labor

Negativeconsent to marry, protection of children from economic exploitation

Access to health facilities

Making sure pharmaceuticals are safe

Family
Health

Sources:
1. UDHR

Preamble paragraph 2
Art 22social security
Art 25adequate standard of living. Deals mainly with food, housing and health

Art 26right to education

Art 27right freely to participate in the cultural life of the community

2. ICESCR

Rights
o Who:
o Individual
o What:
o Work
o Standard of living
o Health
o Education

Duty/Obligation
o Who:
o subsidiarityif indiv can provide they should do it for themselves and their
family. If thats not the case the govt should provide and if not, the intl
community may have the obligation
o What:
o Progressive Realization
Not found in civil and political rights
ESCR are programmatic
o State Obligationspage 9 of handout
o People say theses are policies, not rights.
Some are programmatic, some are immediate (eg

Human rights obligations in general using the example of the right to work, right to
clean water, right to health
o Respect
State must avoid violating the right itself
State cant use forced labor, or deny political opponents access to work
State Should not disconnect clean water supply without due process
Govt cannot discriminate in providing access on grounds of race, age,
disability, gender,
26

o Protect
Must protect people from violations by third parties
Unsafe place of work, govt has obligation to enforce regulations to
ensure people arent put in danger; livable wages; private indiv are
doing things to hurt people
Water controlled by private company. Govt may require comp doesnt
discriminate
Est quality for medicine
o Fulfill
Must create an environment that facilitates

More programmatic
Infrastructure; training programs; information
Providing facilities for clean water
Health programs like vaccine, information

ESCR depend on if there are facilities

Immediate Obligations
o Many have a component that is progressive based on extent of avail resources.
Many immediate obligations states are required to undertake
Non discrimination

Freedom of association (freedom to join a trade union)

Obligation to respect the liberty of parents to choose the nature of their
childrens education
Equal remuneration for equal work
Obligation to take steps (doesnt define what the steps are)
Steps Must be
Deliberate
Concrete
Targeted
Depend on resources. At least should be making good faith
effort to meet these obligations
Obligation not to retrogress
If you are at a certain level you should be able to maintain that
aspect and not slide back

27

Summary of obligations under ESCR: Whole range of categories, some are affirmative, some
look more the civil and political rights. Others are more progressive depending on the resources
one has
Lately looking at corruption. Cant say progressive realization when the govt is stealing the
money that would normally be used to provide these things.
3. Other treaties also have provisions pertaining to esc rights

28

Critiques of ESC rights

4/27/2014 8:30:00 AM

Critiques of Economic, Social and Cultural Rights

Aryeh Neier

Process: ESC rights are policy and should be left to the democratic process. CR
rights are fundamental, and you should be able to go to court and have your rights
vindicated. Shouldnt have to deal with compromises

Trumps: if you have a conflict btw rights and policies, policies should give way to
rights. Rights are trumps and policies can have negotiation and compromises
o Difficulty to apply the methodology of violation, violator, and remedy to
ESCR
Implying that Courts are the center of human rights. If you cant go to

court and identify the violation, violator and remedy the cause is not
worthy of being a HR
Roscoe Poundat bottom everything is claims. If you are going to
compare two interests turn them into the same form and compare
against eachother

Universality: CP rights are the same everywhere. Doesnt matter if you are a rich or
poor country, you shouldnt be torturing people. BUT if you can provide health care
of provide food, it depends on resources. If we admit ESCR into the HR universe we
water down HR bc ESCR are relative and depend on wealth and CPR do not
o Cost: CPR do not require any outlay of resources. Govt has obligation not to
get in your business. ESCR are costly. Setting up health care system, shelter,
giving people food.
Are CPR really costless? Prisons, courts, process all very expensive.
Neier says they are incidental and not the same as the broad costs of
paying for healthcare or food. May or may not be true. Costs could be
the same
Ken RothHR organizations even in CPR take into account a
countries resources. Eg: Lower standards for courts in Rwanda given
their resources. HR Orgs use their discretion in assessing a violation
and take into account a states ability to do something about it

Justiciability: (trade-off). Compromises are not amenable to litigation. Violations are

best suited through legislation

Ken Roth

When it comes to rights, you Need to find out with clarity whether there was
o 1. Violation

o 2. Violator
o 3. Remedy

only when ESCR is linked with discrimination and is arbitrary (and now corruption),
then you can say there was a violation of HR
o discrimination is almost always lurking
o Arbitrary:
Eg; funding education based on school fees is discriminating against
poor children.
AIDS victims in Kenya. Ppl were denied AIDS meds even though it
was available
o (emerging concept of) Corruption: people are stealing govt resources and
there is not enough to provide economic well being for the people

David Brooks
Seinstein and co
Human Rights and the Holistic Turn: Are HR conceptions or constructions of
humanity?
human aspect of HR.

Essentialismbeing human is the grounds for HR

CPRgive you an idea of what it means to be human. Emphasizes autonomy,
individualism, atomistic

ESCRaffirmative, certain degree of solidarity rights (my brothers keeper. Rest of

society owes its members certain basic obligations)
o External things. More recent perspective opening up eyes and talking about
what makes you happy or what makes you better
Paternalism

Coming from an interesting understanding of what makes us Human

UDHRdignitarian. Combines the two. Emphasis on autonomy but recognizes

ESCR

DworkinJustice for Hedgehogs

What does good life mean? Not usually what you find in legal scholarship
o Outer ringpolitical morality/ lawbetter to express this morality in terms of
rights. Special sphere bc govts are coercive.
30

Morality
Inner ring-- Ethicsobligation to take your life seriously, and
obligation to choose how to live that life.

Take awayholistic measure. Used to be a guy who would talk about politics and
law, and now hes talking about the meaning of life.

Sen, The Capabilities Approach

Won a nobel prize in economics

Saying Gross Domestic Product (GDP) is not a good model to measure happiness
Came up with capabilities approachlook at what we need in order to live the kind
of life we have reason to desire.

Just knowing GDP doesnt tell you much about actual lived experience of people.
Economics assumed if we provide external things everything else will be fine. Goes
deeper. Says these numbers dont tell us much and need something more granular to
find out whats happening on the ground.

What kind of things do you need to live your life with dignity and the best life you
can have?
o May need welfare, access to health, not to be discriminated against,

Says lets look at what will change peoples well-being. In some areas freedom and
autonomy are very important. Eg; If you have a democratic system where ppl can
express their opinions its very unlikely you will have starvation. You tend to have
starvation in places there is not that sort of freedom.

Does not separate economic rights with civil rights

Point: holistic. Looks at totality of ones circumstances. Changing field.

Kahneman: Well Being

Father of behavioral economics.

Instead of talking about rights and econ and rights, we have enough studies to go
directly to the source of what makes people happy. Until recently, ESCR was a proxy
for what we think would make people happy. Now we can measure internal things
that make people happy

Found that there are two distinct forms of happiness. 2 selves: experiencing self and
remembering self. Which one actually counts as happiness? Very hard to measure.

Sens critique on Kahneman

31

o People who are suffering or in bad situations may adapt to those situations.
When we adapt, the situation is no longer as painful as it used to be. Sen
doesnt think that the fact that people can adapt to bad situation and therefore
may not be unhappy should be a basis for tolerating those situations. Feels that
would still be an injustice.
Henkin
18 century thesis
natural law natural rights
19 century antithesis
20 synthesis UDHR etc.

2 types of rights:
o civil and political
o economic social and cultural rights

32

Universality of HR

11/15/2014 4:54:00 PM

Universality (139)
Covenants talk in terms of everyone or no one. Individualistic approach. Resulted in whether
in fact these covenants are culturally specific to the west and in conflict with more
communitarian approaches to things normally attributed to the non western world.

2 principle views. Glendon argues for universality (dignitarian) and Mutua argues
against (individualism)

Glendon (141)
It is universal and not nec individualist. More dignitarian in a way that other cultures would
understand it. (as opposed to western views as expressed by john locke and hobbes)

Hobbes and Locke changed the view from natural law to natural rights and that those
rights are supposed to be supported by the law

Individualism: Lockelife, liberty and property. Declaration of Independencelife,

liberty and the pursuit of happiness. Negative rights. Emphasis on autonomy (govt
doesnt owe you anything but they cannot take away life lib or prop).
o Created out of the construct of social contract. We assume we start with the
original position that individuals in the state of nature were free to do what
they wish. Then they come together and form a contract, which is what the
state and government is. (society is based on the individual)

Communitarianmany non western societies are closer to communitarian view

rather than individualistic
o start with society and then determine what rights people have.
o Says individualism is false. Indiv did not start in the wilderness and then form
society. Indiv look at human beings as unencumbered selves and take the
views of human beings as atomistic. Says everyone born into the world is
encumbered by relationships and already situated (situated self).
o Indiv-- Society exists for the sake of individuals. Comm-- Individuals are

already situated. Nobody is born in the original position, and it is not even
desirable.
Glendon says UDHR not entirely comm and not entirely indiv. People have rights and they are
not nec dictated by society.

UDHR and body of principles it gives rise to is not purely indiv rather more
dignitarian which implies social aspects as well

Matua
Communitarian
Self serving

Very often the challenge to rights are by rulers/dictators who want to make
themselves immune.
Makau Mutua

Founder of TWAIL: Third Approaches to International Law

Says exposing supposed neutrality of IHR
Lang of GR Sounds nice but can actually be used to subjugate

Mutua makes 2 args

o Not universal because of participants of its creation. Put together by western
powers rather than universal. Axis powers did not participate
Glendonarchitects of the movement seem to be very diverse and
represent vie of different cultures.
Many third world countries have subsequently adopted HR norms
because of colonialism
o Substance is biased
HR instruments talk in terms of individuals, not groups. Does this

mean that they are individualistic? Yes the indiv is valuable but the
declaration is more attenuated. Shows many indiv rights are limited.
Most articles contain clawback provisions limiting the rights in certain
circumstances.
It is true it is individualistic but not in the extreme way of the anglo
American tradition.

Background: Modernismlooks at law and human rights as objective, neutral,

universal and so on. Rights and equality and neutral and apply to everyone.
Postmodernismchallenged law itself, including human rights, as being a fraud.
Lawyers indeterminate incoherent and basically a sham. No objectivity in the law, its
all politics. What looks like neutral and objective is in fact hiding particular political
interests. Notions like fundamental rights all mask concrete interests that are hidden
behind this facade of neutrality. Within the postmodern movement came a number of
groups that have been historically disadvantaged saying this is actually an elitist
movement and only privileged people can play this game. Minorities need rights to
protect them against the powerful. Challenge the movement from within in.
o Critical race theory
34

o Fem crits
edifice of IL is in fact gender. Got a hidden bias that it looks objective
and neutral but in fact is hiding certain sexist notions.
o Lat crits
o TWAIL

people accused of HR violations quickly rely on if HR are universal or not

gender and sexuality tend to evoke most controversy over universality

normally is there is a violation (like torture or race discrim) the country accused
doesnt say our culture allows it, they just say we are not doing it. however when it
comes to gender discrim or sexuality you get express dissent saying we dont accept
the norms and its against our culture. Dont deny that they are discriminating

example of when state claims cultural relativism etc:

Uganda anti-gay bill introduced and signed into law on the basis that it is part of their culture.

Proscribes forms of punishment for various homosexual acts, including life

imprisionment

Talks about an offense of promotion of homosexuality and recruitment

Issue: premise of the bill that homosexuality is un-african

Is it true that homosexuality is un-african?

What does it mean to say it is African or un-african?
What if it is un-african? So what?

Debate:
Un-african

African

Compromising population growth

Contrary to value of procreation and clan
Forbidden by Koran

Homosexuality has always existed

Homophobia is un-africanbreeds hate and prejudice
British colonialism brought in homophobia. Before the british no one persecuted
homosexuality
Interview with Pres of Uganda:
35

1- Homosexuality is a human right but not in Uganda

makes no sense. Profound misunderstanding of what HR are
2. unnatural therefore cannot be a human right
3. science: is not genetic and therefore cannot be a human right
4- its not the state; its society These Ugandans
5- Respect Africa values just like we respect yours
how to respond to that is disgusting

when people are responding to disgust they are responding to an emotional part of
their brain which doesnt respond to rationalism

when politicians say its disgusting as a form of argument they are saying at a visceral
level I hate them same arg they made for racism. Contamination. Think gays with
contaminate

need to understand the symbols people are employing (un-african) and who is control
of that symbolism. Why can bahadi dictate which symbpls are ok. Dont take at face
value

need to go deeper than what you get at face valu

36

CHARTER BASED BODIES

1. Generally
a. Process:
i. EnunciationDeclaration of General Principles (aspirational)
1. Eg UDHR
2. 1945- 1970
ii. Legalizationlegal articulation in more precise terms the principles declared
and pronounced in nonbinding terms in the enunciation level
1. Includes treaties
2. 1970-1990s
a. International Bill of rights concluded 1966 but entered into
force 1976
iii. Implementationinstitutions, procedures and so on
1. UNHCARE
iv. Criminalizationno simply implementing rights but imposing binding
sanctions
1. Permanent ICC
b. Bodies
i. Bodies are no longer distinct, rather becoming more intertwined.
ii. UN Charter Based Bodies:
1. UN human Rights Council
a. not to be confused with predecessor Human Rights
Commission, or Human Rights committee which is the body
that implements the ICCPR
2. UN Security Council
2.

UN Human Rights Council

a. Requirement that if someone wants to sit on the body their country must have a good
record of human rights
b. Set up by GA resolution in 2006
c. Procedures: Two ways an investigation can start:
i. Universal periodic reviews of member states
1. Scrutinizes HR situation of member states on a periodic basis
2. Once a procedure is in place, other human rights organizations can
take action and submit information that are relevant to the reviews of
each country
ii. Complaint System
37

CHARTER BASED BODIES

1. Communications can be submitted by individuals, groups, or NGOs
claiming to be victims of human rights violations or that have direct,
reliable knowledge of such violations.
2. Must have exhausted domestic remedies
d. Special Procedures
i. Thematic procedures
1. Can have experts or special rapporteurs investigate certain things
ii. Country Mandates
1. Adopt report and refer to Security Council
a. Eg North Korea. Commission of experts set up which did
extensive work in North Korea on behalf of the HMC and
presented its report. (at presentation human rights watch
supplemented the report with a video to bolster what the
council was saying). Now the council has referred the case to
the UN Security Council. UNSC can take steps that can be
coercive.
3. Intervention by The Security Council:
a. Legal Framework
i. General purposesArt 1, 24
ii. Chapter VIpacific settlement
1. Art 34: SC investigates to determine if the situation might lead to
international friction or give rise to a dispute or sitation that is likely to
endanger the maintenance of international peace and security
a. SC taking role of mediator and trying to get parties to resolve
their differences
iii. Chapter VII
1. Art 39: Determines whether a situation or dispute constitutes or results
in the threat to international security. If they determine there is a
threat:
2. Art 41: measures that are coercive but non-militant
a. Sanctions, travel bans, complete or partial interruption of
diplomatic relations, Tribunals
3. Art 42: military
a. if measures in 41 are inadequate can take measures by land,
sea, or airforces.

38

CHARTER BASED BODIES

b. SC role is exclusive. Once they are handling the sitch no other
body has any right
c. Can authorize other parties to do any number of things (use
their military)
b. Instances
i. Pre- End of Cold War
1. SC used its power in 3 principle interventions:
a. 1950: Korean WarNK invaded SK. Basis of intervention:
Illegal use of force threatening peace and security
b. 1966: South RhodesiaSC authorized sanctions on S.
Rhodesia. Basis: said treat to peace and security. more
territorial issues more than human rights.
i. 1977: South Africaimposed ban on arms
c. to the regime. Basis: threat to peace and security.
2. Instances where SC took No Action despite the fact people were being
slaughtered
a. Sudan in the 60s
b. East Pakistan
c. Burundi
d. Uganda 1971
e. Cambodia
f. Syria
i. Why no action? All occurred during cold war. Human
rights subordinated to the cold war. SC couldnt
act bc there was always the threat of the veto.
ii. Post-Cold War (after 1990)
1. Rwanda (half hearted intervention. Left in the middle with millions of
people being slaughtered)
2. Haiti: basisintervention was to restore democracy. Difficult to point
to obvious threat to peace and security as one might except
3. Somalia: basis mass starvation. Interp as reflecting threat to peace
and security. Creative interpretation
4. East Timor
5. Libya

39

CHARTER BASED BODIES

c. Post cold war seen very active SC. Some worry SC given there is the permanent 5
with veto could lead to abuse. Some think they are still representative of major
powers and how can we trust they will do the right thing.
i. What you are seeing now is the SC doing a great deal of this. Being helped by
organs like human rights council doing studies that make things fit into the
legal framework making intervention possible
d. Responsibility to Protect:
i. Interesting norm evolving. If norm is accepted Inl community has duty to
intervene when a state is unwilling or unable to protect its people from mass
atrocity or mass danger.
ii. Could be slavery or genocide or even a natural disaster
iii. Convergence btw SC creatively interp mandate to intervene, and now with r2p
even broader basis for SC to intervene. In Libya they didnt even try. Basis for
intervention was to protect civilians. No pretense that it was intended to stop
international peace and security

40