Human Rights Final Exam

Two Enforcement Techniques

1. Fact-Finding

2. Standard-Setting

Fact-Finding

investigating in a country; setting up interviews, witnessing situations, etc.

Criticisms: may be difficult to obtain data; bias (cultural, misogynist) can affect data

Standard Setting

forming treaties and policies to create affective enforcement techniques

Navi Pillay

High Commissioner for Human Rights;

jus cogens

non-derogable

Rafael Lemkin

coined the term “genocide”

Incitement to genocide

there are support and signs of genocide happening or about to happen

• Genocide vs. crimes against humanity

• 3 pillars

• 7 signs of genocide

• Stanton’s ten stages of genocide

Extraordinary rendition

• refers to covert transfer of prisoners by extrajudicial means; usually to places where they are in danger more

Ireland v. UK

• UK gov officials interned hundred of men in Northern Ireland; 24 of them taken to secret location to be interrogated

• European court of human rights identified five techniques used

• Irish government took case to European Commission on Human Rights; agreed they were legal definition of torture and referred case to European Court of HR, but rejected proposition that they were “torture” and instead “cruel and degrading”

El-Masri v. Albania

Boumedienne v. Bush

Selmouni v. France

• Arrested by French authorities on drug trafficking

• Held in Paris of three days of question

• Tortured him

• Police getting light sentences

• Violation of Article 3 and Article 6 of European Convention 

• Took it to European court; France said it was not torture

Aydin v. Turkey

• Aydin and her family abducted

• First time rape was identified as a form of torture in European Court of Human Rights

Siracusa principles/Emergency jurisprudence

international standards that interpret when and how human rights can be limited or suspended in a time of national emergency; proclamation of public emergency —> seems authoritative according to UNHRC

says that measures should be taken to protect population that limit people’s rights and freedoms must be “lawful, necessary, and proportionate”

European Convention on Human Rights; Article 15

during emergency (national emergency for example), articles may be broken in times of emergency

Common Article 3 (Geneva Conventions)

“bans all forms of cruel, inhuman or degrading treatment as well as torture”

Boumedienne v. Bush

ruled that “aliens detained as enemy combatants in Guantánamo have a constitutional right to challenge their detention in American courts”; right to use habeas corpus; Boumedienne was Algerian-born humanitarian aid worker detained at Guantanamo Bay, Cuba; challenged government’s right to hold people without due process

Arar v. Ashcroft

Syrian-born Canadian who was wrongly suspected of being a terrorist and connected with Al-Qaeda, arrested, then tortured; U.S. courts ruled that they can’t vote upon this in cases of national emergency

Soering v. UK

if someone commits murder and runs away, should they be extradited back and then executed?; argued it breached article 3 of ECHR; charged with capital murder; jailed in Virginia

Ius sanguinis

“right of blood”; legal principle where citizenship determined by nationality of one or both parents

Categorical vs. consequential reasoning

Categorical: certain right are absolute and non-derogable

Consequentialist: utilitarianism; judges actions based on results; if act is right and maximized overall good even if it means violating an article or law

Example: ticking bomb scenario

UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules)

international standards of how prisoners must be treated; ensures prisoners are treated humanely and fairly

Brown v. Plata

prison overcrowding in California; cruel and unusual punishment; lack of staff and equipment resulted in inadequate medical care; court ruled to reduce population of prisons

Basare Beccaria

utilitarian; against the death penalty because thought it wasn’t practical

Hugo Bedau

active in abolitionist groups to ban death penalty in 20th century

Kant

a just and necessary punishment

Lex talionis

Bible; an eye for an eye; punishment should mirror crime’s severity

Solitary confinement

isolating an inmate in their cell for most of the day; led to psychological effects

Philosophical perspectives that justify death penalty

• Bible: an eye for an eye

• Retribution - means punishing offenders because they deserve it

• Deterrence - preventing future crime by scaring them

• Rehabilitation - reform offenders through treatment

Kinds of punishments

• Hitching posts

• Shackles

• Overcrowding

Ford v. Wainwright (1986)

• While incarcerated developed illusions and that KKK needed him to commit suicide and his family members were getting hurt

• If people are on death row for a long time, can create mental illness

• Ford didn’t understand why he was being executed

• Three psychiatrists ruled that he was sane

Pinochet Case

Spain sought extradition of former Chilean dictator Pinochet for torture.
Significance: Landmark ruling that former heads of state are not immune from prosecution for international crimes like torture.

Positive vs. Negative Rights - False Dichotomy by Henry Shue

Positive Rights: rights that aren’t supposed to be interfered by other people

• Freedom of speech, freedom from torture

Negative Rights: rights that are supposed to be interfered by other people so that they could be provided

• Right to food, healthcare, education

Believes is false because all rights are supposed to be provided, whether they are supposed to be protected, trained, etc.

Maurice Cranston

• Questioned whether some rights are "ridiculous" because government lack means to pay for these; some rights are just aspirations (1983)

• A famous example: Article 23 of UDHR guarantees the right to paid vacation and meaningful rest and leisure. However, ILO adopted conventions that protect labor rights, including the right to holidays.

Homeomorphic equivalent

concept or practice in other cultures that performs same moral function as a human rights, even if it looks differently or grounded in different beliefs expressed in different ways; expressed by Panikkar

Ashwini K.P.

appointed in the UN as the 6th Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance in October 2022

Black Pete

• In Belgium and the Netherlands, instead of Santa Claus, Saint Nicholas delivers presents with help of Zwar Piet or Black Peter, who’s a slave

• Many Dutch people reject that Black Pete is a racist icon

• Controversy of banning Black Pete and everyone protesting resulted in UN condemnation, which regarded Swarte Piet as a racist symbol; sent letter to Dutch government saying it was a “living trace of past slavery” - UN Commissioner for Human Rights

• Support increased among Dutch to depict him as covered in soot reflecting his trip down chimneys in the country

Bhikhu Pare

attempted to create theories that offer greater protection to cultural rights 

• “A principle of dialogical consensus” (2002) - proposes having minority spokesperson who will engage in a dialogue with representative of the majority about cultural practices; duty of them to explain how tradition is authoritative, central to way of life, and desirable

Ballantyne, Davison and McIntyre v. Canada

• English-speaking people in Canada were upset because in Quebec, if you ran a business, the sign needed to be French ONLY

• Violated their human rights

• Human Rights Committee rejected the argument

• English people did win on the basis on ARticle 19, because right also applies to commercial sea

• Question: why didn’t they use the right to culture? 

  • Because they were not a minority in Canada as a whole

Cha’are Shalom Ve Tsedek v. France

• Orthodox Jewish group asked France to grant them authority for ritual slaughter of kosher meat; France refused

• they claimed discrimination against Article 9 on ECHR

• Found no violation, since they can still access ritually slaughtered meat from Belgium

Definition of minority in international human rights

people who are “numerically inferior”

Sandra Lovelace v. Canada (1981)

• Sandra married a guy who wasn’t Maliseet Indian, although she was

• After she got divorced, wanted to return to the reserve, but according to the Indian Act, if you marry someone outside of your tribe, as a woman, you are no longer considered to be an Maliseet Indian 

• For a man, he could still return

• Human Rights Committee ruled in her favor, saying women have the right to culture as well

• HOWEVER, she brought complaint against Canada - indigenous people who claim to be sovereign can’t participate in the UN system that’s why

Lautsi v. Italy

believed in discrimination of Article 9 of ECHR

SAS v. France (2014)

SAS, French muslim woman, claimed law violated rights to wear burqa

European Court of Human Rights ruled that French law banning full-face veils didn’t violate ECHR

ban was justified because separation of church and state

How is disability considered as?

not something that inheres in individuals; instead, interaction between person with condition and environment that limits participation in all aspects of social life

Botta v. Italy (1998)

• Botta wanted to enjoy seashore but couldn’t

• Private beaches at resort lacked ramp, wheelchairs, accessible bathroom; propose to drive car onto public beach without facilities, but was denied

• Argued that Italy violated right to privacy; Article 8 of ECHR

• says article wasn’t applicable because of distance; Court invoked margin of appreciation doctrine, give deference to Italian state to interpret what’s necessary for this case

Margin of Appreciation

doctrine; rule permits judges to postpone to national governments when they assert that their interpretation of human rights deserves contextual understanding

• Like it authorizes court to to take culturally relativistic approach to human rights

• Recognizing national differences in culture and religion 

X. v. Croatia (2008)

• Croatian national taken from her daughter without consent and placed in state-run instition

• had schizophrenia and was described as a “drug addict”

• says action violated Article 8 of ECHR, and court agreed

Y. United Republic of Tanzania

• Throughout Africa, people with Albinism were attacked

• Example: two boys abandoned for having albinim; an NGO Under the Same Sun took care of them

• Child filed complaint against the Tanzanian government for failing to protect them

• Significance: CRPD condemned ritual killing and oppression against children with albinism

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

provides international basis for defense of right of women and can be utilized in leal cases at national level

Optional Protocol: enables the committee to consider complaints from individuals; strengthens investigative and enforcement powers to effect positive social change

Public vs. Private Sphere in Women’s Rights

patriarchal concept

assigning men to politics/work (public)

women to home/family (private); has historically limited women's rights by excluding them from power

Gender Equity

moral imperative that could be subject to varied interpretations; running risk of being abused or misused for political/ideological purposes; some people say it’s “reverse discrimination”

for some, it means to achieve gender equality as described by UN Populations Fund

Intersectionality

concept formally introduced to academic world in 1989 by black feminist scholar Kimberlé Crenshaw

theoretical framework urges feminist scholars to go beyond experience of white middle-class women, and explore how various forms of social characteristics, may influence women’s experience with discrimination

Ato del Avellanal v. Peru (1986)

Peruvian woman submitted communication to HRC claiming she was denied right to litigate before courts because of her gender

Peruvian Civil Code: only husband entitled to present claims concerning matrimonial property

committee considered this a form of gender discrimination

General Recommendation No. 19

violence against woman is “violences directed against a woman because she is a woman or affects women disproportionately”; critical precursor to recognizing issue at the Vienna World Conference; CEDAW doesn’t explicitly mention violence towards women

ILO Convention No. 100, Equality Remuneration

equal remineration for men and women for work of equal value

Declaration on the Elimination of Violence against Women (1993)

first international instrument to specficially address the issue of violence

defines violence against women

Organization of American States

adopted world’s first binding international treaty to recognize violence against women constitutes violation of human rights

Prosecutor v. Akayesu (1998)

Jean-Paul Akayesu convicted of genocide for knowing, instigating, aiding, and abetting rape of and sexual violence against Tutsi women

Yogyakarta Principles

“confirm legal standards for how governments and other actors should end violence, abuse, and discrimination against lesbian, gay, bisexual, and transgender people, and ensure full equality”; adopted by meeting of experts in international law in Yogyakarta, Indonesia

Too Young to Wed

organization that envisions world where girls are free; have the right to not be married at a young age; started in Afghanistan

Girls not Brides

organization with partnership of over 1400 civil society organizations “working together to end child marriage so that girls can fulfill their potential”

Jersild v. Denmark

• Jersild was working as a journalist for Danish radio

• Interviewed group called “the Greenjackets” who were known for their xenophobic views

• Afterwards, three of them charged with violating code of hate speech

• Jersild’s lawyer argued he shouldn’t be subject to law because only documenting and interviewing them

• Court decided Denmark violated Article 10 - freedom of expression

Fatou Bensouda

international criminal justice, especially through the International Criminal Court (ICC); chief prosecutor of ICC up until 2021; first African American woman to do so

Will Kymlicka

Canadian scholar; believes cultural rights can be reconciled with liberalism; he was criticized for being too limited

advocates protection of cultural rights only in societies structured along liberal lines; original theory doesn’t provide cultural rights for immigrants who have chosen to move and give up their culture

only provides protection on some cultural rights

Pepe the Frog

meme in the 2010s, but was then seen in forms of hate speech (anti-semitism, ISIS, KKK, etc.); presents challenge for those seeking to regulate hate speech; difficultly of regulating hate speech online

Google v. Spain

Mario Costeja González complained that a Google search of his name returned links to a 1998 newspaper notice about a property auction related to old social security debts; although information was accurate and lawfully published, argued it was outdated and no longer relevant and harmed his privacy

Significance: “establishing the EU ‘right to be forgotten,’ holding that search engines are data controllers and must remove links to personal information that is outdated or irrelevant when privacy outweighs public interest”

“Death Row Phenomenon”

being on death row for a long time can cause severe psychological damage to the person

Nadia

born in Norway; Moroccan descent; arranged/forced marriage after parents suspect she was going farther away from their religion and culture

El-Masri v. the Former Yugoslav Republic of Macedonia (2012)

mistakenly detained while traveling in Macedonia; taken to Afghanistan; extraordinary rendition; German citizens with Lebanese descent; Macedonia found guilty of violating Article 3

A.W.R.A.P. v. Denmark

combining race and religion; member of Danish Parliament said statements outlawing corporal punishment that accused Muslim men of attacks agains their wives and children; AWRAP filed complain with CERD; religion and race combinatoin

Atala Riffo and Daughters v. Chile

Chile court treated sexual orientation as suspect classification; Court awarded custody to mother

Doe v. Nestle and Cargill

U.S. Supreme Court case with Malian citizens, alleging they were enslaved child laborers on Ivorian cocoa farms, sued Nestlé and Cargill under the Alien Tort Statute for aiding and abetting child slavery; supreme court later dismissed case

case later dismissed because didn’t reach all requirments for it to be part of Alien Tort

Glutkhin v. Russia (2023)

Russia violated Article 8 and 10 after peaceful protests about unfair imprisonment for peaceful protests

Claude Reyes et al. v. Chile

“where Chile was found to violate the right to freedom of expression (Article 13) and judicial protection (Article 25) by denying citizens access to information about a major forestry project, setting a precedent that the right to access state-held information is a fundamental human right, requiring transparency, justified refusals, and effective judicial recourse, leading Chile to enact stronger freedom of information laws”

Abdullahi v. Pfizer

testing of two antibiotics on children in Africa; sued pfizer;

Mossville Environmental Action Now v. U.S

“historic African-American community of Mossville, Louisiana, alleged that the U.S. government allowed pervasive chemical pollution from nearby petrochemical plants to violate their human rights, leading to severe health crises and cultural destruction; petition to the Inter-American Commission on Human Rights (IACHR) after domestic remedies failed, highlighting the inadequacy of U.S. law for environmental racism. The case, brought by the organization Mossville Environmental Action Now (MEAN), sought to hold the U.S. accountable for failing to protect residents' rights to life, health, and equality, demonstrating a pioneering effort to use international human rights law against the U.S. government”

Akiko Ito

UN Chief Secretariat for the Convention on the Rights of Persons with Disabilities and human rights attorney

Manuel Wackenheim

made living performing in “dwarf-tossing”; people say violated Article 3 of ECHR; Wackenheim v. France, but didn’t win

Hector Pieterson

killed by the police during 1976 protest in South Africa; first to die in protest about use of Afrikaans as primary language of instruction

David Kato

human rights activist, especially in LGBTQ+

Vasco Gargalo

made drawing about someone owning fashion using labor from third world countries

Stephanie Sinclair

photographer; focuses on human and gender rights issues