POLS 3212 Study Set

Non-derogable Rights

Rights that cannot be suspended for any reason, including at times of public emergency

3 Types of International Law

1. Soft
2. Customary
3. Hard

Derogable Rights

Rights that can be suspended under some circumstances (public order; public emergency; martial law)

Protection of HR

Relates to negative rights (protections from harm)

Promotion of HR

Relates to positive rights (entitlements to things) - resources for minimum floor

Many rights have

both protection and promotion

Progressive Realization

UN constantly filling economic rights. improving constantly with maxmimum resources

Secretary General of the United Nations

Chief executive officer of the UN; elected, rotating position

General Assembly

Supreme deliberative assembly of the United Nations;
Parliament of Nations

Security Council

Creates judicial institutions as needed for promotion of peace and security, with the goal of prosecuting individuals who post a threat to international peace and security.

Authorized under UN Charter to create judicial institutions as needed for promotion of peace and security.

Permanent Members (P5): US, UK, France, People's Republic of China, Russia). These countries have veto power.

International Court of Justice (ICJ)

Settles state-to-state disputes (states bringing allegations against other states)

Economic and Social Council (ECOSOC)

Receives reports on state enforcement of all treaties, NOT just economic treaties

HR Council

Created in 2006 to replace HR Commission. Eyes and eras and human rights issues throughout the world and monitors HR via special procedures

Treaty Monitoring Committees

Every treaty had a monitoring body for enforcement, only applying to member states. States are required to report after ratifying

High Commissioner for HR

"Public face" of HR, created in 1993. Must remain above the fray of politics. CAN and SHOULD name and shame

HR Council monitoring mechanisms

ECOSOC Resolution 1235 (1967): country-level complaints; public debate. Embarrassing for those countries--they do not want to be called out

ECOSOC Resolution 1503 (1970): individual complaints; confidential debate (to protect individual). Must be representative of wider pattern of abuse with a lot of evidence. Very risky--must have exhausted all domestic remedies AND can only be submitted in one venue

HR Council Special Procedures

Fact-finding missions: MUST be independent experts; gather information for 1503 or 1235 procedures, which can be enriched by data. Does not have to be country-specific

Thematic mechanisms: investigate problems caused by HR violations on a global scale by "working groups" or "special rapporteurs."
Working groups = group of experts on specific issue
Special Rapporteurs =

Advisory services: offer education, information, and institutional strengthening. Sometimes countries don't know where to start... political will vs. political capacity

UN Reform

Argument that current system is antiquated--reflects post-WWII power structure (P5).

Goals:
- revise Security Council membership structure
- enhance efficiency/coordination across HR institutions
- make power structure more representative

International Labour Organization

Oldest UN agency--founded by League of Nations in 1919. Develops/produces conventions on different aspects of labor rights and monitors them.

Tripartite: government, business, and labor are represented and have a seat at the negotiating table
Business - through the International Organization of Employers
Labor - through the International Trade Union Confederation

Core labor rights

ILO Declaration on Fundamental Principles & Rights at Work, 1998
- freedom of association (cannot prevent unions)
- rights to organize (you should be allowed to create unions)
- collective bargaining
- abolition of forced labor
- equality of access and treatment
- minimum age

Regional Systems

Europe and the Americas (North/South/Central) have oldest regional HR systems.

Africa has a newer, but robust and well-developed, system.

Asia does not have a regional system. Strong economic coordination and policy, but NO overarching HR policy

Key Regional Institutions

- European Court of HR (1959); all EU states are members
- Inter-American Court of HR (1979)
- African Commission on Human and Peoples' Rights (1987)

All play a role in democratization of region.

Human Rights

A claim by someone, on someone, for something essential to human dignity

Treaty-Based Law

Legally binding international law. Includes treaties (conventions, covenants).

Can be bilateral or multilateral. Domestic legislation must reinforce the treaty.

After signing and ratification, optional protocols can be added.

Process of Treaty Ratification

- Representatives of a state sign a convention/treaty
- Passes to state legislature for ratification AND ensure that national laws do not conflict with obligations of convention
- Some are ratified with reservations, understandings, or declarations (opt-out language)

Treaties come into force

Depends on each treaty's terms. Commonly when the required number of states ratify them. This number differs.

Customary Law

Achieves the binding force of international law over time. Upheld through constant and uniform practice. Must be legally justified behavior.

Universal Declaration of Human Rights = example

Soft Law

Norms that do not meet the procedural test of law, but influence policymaking.

Ex: UN declarations, conference documents

UDHR

Universal Declaration of Human Rights (1948)

ICCPR

International Covenant on Civil and Political Rights (1976)

ICESCR

International Covenant on Economic, Social, and Cultural Rights (1976)

Universal Declaration of Human Rights

First authoritative interpretation of references to HR in UN Charter.

NOT a "theory" of HR

Customary Law

Does not have a monitoring bodies.

Includes both negative AND positive rights (protections "from" and entitlements "to")

UDHR (types of rights included)

- core rights paralleling natural rights (life, liberty, security of person)
- rule of law (e.g., to a fair trial)
- political rights (e.g., voting, standing for office)
- economic rights (e.g., equal access to work)
- of communities (i.e., self-determination)
- nondiscrimination

International Covenant on Civil and Political Rights

Adopted (opened for signature) in 1966, entered into force in 1976.

Monitored by HR Committee.

Nondiscrimination must be guaranteed.

Specifies non-derogable rights:
- Life
- Not to be tortured
- Against slavery
- Against imprisonment for failure to meet contractual obligations
- No retroactive justice
- Legal personhood
- Freedom of thought, conscience, and religion
THESE RIGHTS CAN NEVER BE SUSPENDED.

International Bill of Rights

Refers to UDHR, ICCPR, and ICESCR together.

These three agreements form the foundation of international human rights law and regime.

International Covenant on Economic, Social, and Cultural Rights

Opened for signature in 1966, entered into force in 1976.

Rights are to be progressively realized over time through international development cooperation.

Nondiscrimination must be immediately guaranteed -- states have a minimum obligation to guarantee and to use the maximum extent of their available resources to achieve economic rights.

Key Rights in ICESCR

- right to work (equal access and no forced labor)
- just and favorable conditions of work
- trade union rights
- social security with equal access
- adequate standard of living
- health
- education

Mechanics of ICESCR

No treaty monitoring body until 1985; Committee on Economic, Social, and Cultural Rights. Member states must report every 5 years.

Challenge: setting baselines for fulfillment of economic rights

NOT ratified by the United States

Humanitarian Law

Has historically delt with the protection of rights in times of war, beginning with the Geneva Conventions (1864; 1949). Complemented by international criminal law

Groups Protected by Geneva Conventions

- wounded/sick combatants
- prisoners of war
- civilians in times of war

UN Charter (1944), Article 55 and 56

First international treaty to explicitly mention human rights -- but does not define or specify types of rights to be protected/promoted

Chapter VII of UN Charter

Specifies UN's role in addressing threats to international peace and security

Nuremberg Charter (1945)

Established concept of "crimes against humanity"

Precursor to Genocide Convention (1948)

Genocide Convention

Made individuals responsible for prosecution if they try to destroy a national, ethnic, racial, or religious group

Key Institutions Set Up by Security Council

- International Criminal Tribunal for Former Yugoslavia
- International Criminal Tribunal for Rwanda
- "Special courts" for Sierra Leone, East Timor, Kosovo, Cambodia, Iraqi Trial of Saddam Hussein

Truth and Reconciliation Commissions

1980s to present. NOT set up by the UN. Any individual nation can choose to set up -- not trials. Organized to create collective record of the past

Challenge to international criminal law

Difficult to enforce in absence of international "police" force

International Criminal Court (ICC)

NOT part of the UN.
- States sign and ratify the "Rome Statue" (1998) to join
- Prosecutes individual people for:
1. genocide
2. crimes against humanity
3. war crimes
4. crimes of aggression
Includes:
- crimes that occurred within the territory of a State Party
- crimes that were committed by a national of a State Party, wherever the crime took place

Genocide

Intent to destroy, in whole or in part, a national, ethnic, religious, or racial group

Crimes Against Humanity

Widespread, systematic attacks; not random; include rape, murder, torture

War Crimes

Grave breaches of Geneva Conventions

Crimes of Aggression

"Aggressive war" (definition still under debate)
Includes launching of war outside of reasons for protecting state against threat of security/peace

ICC - Court of Last Resort

Only when national criminal justice systems are unwilling or unable to act would the ICC take up those cases.
- only used when domestic courts/military justice are not effective
- if too expensive for national courts to complete ad hoc tribunals through the UN
- relies on countries to try cases internally
- based on principle of complementarity
- members can only prosecute people from other member states
- only crimes after July 2002
- Security Council can refer emergency cases

Principle of Complementarity

- my justice compliments this international justice
- my legal officials are going to work, and the international community will only step up if this is impossible
- commitment to extradite

Transitional Justice

the pursuit of accountability for mass atrocities or former human rights abuse
- not overnight
- linked to quest for institutional reform that will address injustices of the past and prevent more abuses from taking place
- integral to transition from authoritarianism to democracy

ICC Challenges

- balancing peace with justice, and stability with punishment
- rejecting impunity
- balancing truth-telling with prosecution (negotiating amnesty)
- working out process of reconciliation--cannot just be decreed

Impunity

Freedom from punishment

UN System's Main Tasks

- protection of HR (negative rights)
- promotion of HR (positive rights)

UN Charter (1945) Created:

- Security General (at time of founding; rotating elected office)
- General Assembly
- Security Council
- International Court of Justice

Two Views on Obtaining Rights

1. there is a hierarchy
- first: civil/political
- second: economic
- third: collective
2. they should all be simultaneously strived for

First Generation of Rights

Civil and Political Rights
Championed by Western Nations

Purpose: ward off state interference in personal life--defense against the state

Second Generation Rights

Social, economic, and cultural rights -- rights enjoyed after sufficient level of development, ignoring progressive realization

Also involves the rights to employment, housing, healthcare, and education.

Championed by Soviet Union

Third Generation Rights

Collective (group) rights--such as peace or clean air.
Only enjoyed if people have the right to self-determination

Challenging Three Generations Concept

Notion of interdependence: rights cannot be divided neatly into three categories because they are INDIVISIBLE and INTER-RELATED

State obligation to

Respect, protect, and fulfill rights

Respect Rights

Neither the state nor its agents (police, military, et alia) should violate them directly. States have an affirmative obligation to protect from violation from non-state actors

Protect Rights

Ensure that private actors do not violate them

Fulfill Rights

Create an "enabling environment" in which rights can be realized

Capability Approach

Based on assessment of human "functionings" that people have (or should have) the capacity to exercise on their own or with help. Informs where shortfalls between respect, protect, fulfill are

Authors: Amartya Sen, Martha Nussbaum

Capability Approach Link to HR

we have a right to what we ought to have the capability to do

Nussbaum's List of Basic Capabilities

Life
Bodily health
Bodily integrity
Senses
Imagination and thought
Emotions
Practical reason
Affiliation
Relationships with other species
Control over ones own environment

Key Questions to Capability Approach

- which rights can we legitimately have? (if everything is a right, nothing is)
- does articulating a right mean we have it in practice?
- which group possess rights?
- how do we strike a balance between the rights of individual people and the groups to which they belong?

Needs & HR

Claimants of rights have legal standing, whereas people with needs must wait until someone with power exercises discretion to fulfill their needs -- needs vs. entitlements

Gewirth

Frames rights claims as:
"A has a right to object X against B by virtue of ground Y."

Group Rights

Standard framing of rights is in terms of individual claims. Group rights are possessed by groups as a whole -- don't make sense individually
E.g., right to self-determination; right to culture

Group-differentiated Rights

Individual people within groups can exercise the rights independently of the group (e.g., trade unionists' right to nondiscrimination)

Collective Individual Rights

Can be enjoyed by the individual, but specific policies and provisions granted "collectively" due to history of oppression or marginalization (e.g., women's rights)

Key Treaties and Protocols Ratified by the United States

1. ICCPR (though has not ratified Optional Protocol on elimination of death penalty)
2. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
3. Convention Against Torture or Other Cruel, Inhuman and Degrading Treatment or Punishment
4. Convention on the Rights of Persons with Disabilities (CPRD)

ICCPR General Comment 31

Guidance for states who are bound by the main body of the treaty, written by HR Committee. Clarifies state responsibility under the ICCPR

Soft law

ICCPR Paragraph 2

"State party is obligated to every other state party to comply"

"To draw attention to possible breaches of Covenant obligations...should, far from being regarded as an unfriendly act, be considered a reflection of legitimate community interest."

ICCPR Paragraph 4

All branches of government (executive, legislative, judicial) at multiple levels (national, regional, local) have a role to play in enforcement, with no limitations or exceptions to parties.

Also reminds of mutual obligation to respect, protect, fulfill

ICCPR Paragraph 6

Negative and positive obligations.

States must demonstrate the necessity of restrictions and take only proportionate measures -- there must be credible legal reasoning for limiting rights (proportionate and justified)

ICCPR Paragraph 8

ICCPR is NOT a substitute for domestic criminal or civil law.
- protect individuals from violations by state actors
- protect individuals from violations by private persons/entities
- obligation to prevent, punish, investigate, or redress harm caused by private persons/entities
- positive obligations entail providing effective remedies for those whose rights are violated by state or private actors

ICCPR Paragraph 9

Beneficiaries of ICCPR are individuals BUT some rights can be enjoyed in community with others (religion, association, minority rights).

Optional Protocol 1 covers individual complaints.
- state-to-state mechanism for accountability
- individuals able to say that they are representative of wider pattern of abuse

ICCPR Paragraph 10

ICCPR protections are not limited to citizens -- available to all individuals, regardless of nationality or statelessness who find themselves in the territory.
Also applies to people "within the power or effective control" of a state party's armed forced (e.g., peacekeepers)

ICCPR Other Provisions

12: covers limits on deportation
15: covers special remedies necessary for vulnerable groups, such as children
16: covers reparations to those whose rights are violated (restitution, rehabilitation, public memorials, etc.)
18: committee voices concern over continued impunity

Paves the way toward transitional justice -- gives state toolkit to protect civil and political rights, especially important when transitioning to democracy

Three Categories of Institutions

state, market, civil society

State

Entity with monopoly on legitimate use of force in a given territorial jurisdiction

Market

Sector in which products/services are bought and sold; for-profit sector

Civil Society

Social sector separated from state and market

Companies have a responsibility to:

1. "uphold rights...within their area of control and sphere of influence..."
2. "...whether in the context of their operations or in the communities in which they operate"

UN Global Compact

Membership organization adjacent to UN, launched in 1999. Companies who join must regularly disclose social and environmental practices.

UN does not audit, but would rather have regular disclosure than none at all.

Global Compact 10 Principles

1. businesses should support and respect the protection of internationally proclaimed HR
2. make sure that they are not complicit in HR abuses
3. uphold the freedom of association and effective recognition of the right to collective bargaining
4. elimination of all forms of forced/compulsory labor
5. effective abolition of child labor
6. elimination of discrimination in respect of employment and occupation
7. support a precautionary approach to environmental challenges
8. undertake initiatives to promote greater environmental responsibility
9. encourage the development and diffusion of environmentally friendly technologies
10. work against corruption in all its forms, including extortion and bribery

UN Global Compact Main Points

1. Do not contribute to abuse
2. Do not profit from it
3. Be aware of it
4. Avoid complicity in it

Criteria for Distinguishing Complicity from Direct Abuse

1. Proximity: how close is the company to the abuser or victim?
2. Knowledge and Awareness: did the company know? should they have? -- obligation to know ("know the chain")
3. Benefit: cannot benefit from abuse

UN Guiding Principles on Business and Human Rights

aka: Ruggie Principles

Ruggie Principles

Company's Responsibilities
1. While states are responsible for protecting HR, CORPORATIONS are responsible to RESPECT human rights by observing the law
- victims of business-related abuses have a right to remedy, which states and companies are jointly responsible for

Company Responsibilities for HR

Respect, Protect, Remedy

Company Responsibility Soft Law

- Organization for Economic Cooperation & Development (OECD) anti-bribery treaty (1997)
- OECD Guidelines for Multinational Enterprises (1976; updated 5 times--most recently in 2000)

Company Responsibility Hard Law

- ILO Conventions (200+)
- US Foreign Corrupt Practices Act (1977)