Untitled Flashcards Set

• State has the positive obligation to take reasonable to secure applicant’s rights

  • Meaning state req to take active steps or positive actions to fulfill a partic duty

• Must take positive action to safeguard life + livelihood

• Must have legislative structure to safeguard rights
  

Challenges of climate change cases:

Admissibility

• Victim Status

  • Must prove the state/defendant is causing the issue

  • Must prove applicants are being harmed as a result of the defendant’s actions/ inactions

• Many cases allege future/potential struggles

  • Can’t point to past or current events that are happening, they also have to prove the trajectory of events in their direction

• Exhaustion Rule

  • Defendants must exhaust all other options before seeking a remedy before an international court

• Extraterritorial Jurisdiction 

  • Some cases sue multiple states for large-scale violations 

  • If multiple states are bad actors, then all of them are responsible for bad actions and obligated to provide solutions 

Most climate change cases deal w ECvHR right to life; No cruel, inhuman, or degrading treatment; Right to respect for private and family life; Right to an effective remedy

• But enviro itself not protected by the Convention, Damage to the environment must cause infringement on personal rights of humans
  

13: Tribunals, International Criminal Law and the Global Legal Order 

Other key point: backlash

• international tribunals

  • courts established to address serious international crimes

    • war crimes, genocide

• 30+ internat court → shift from state-centered system to international oversight

• Types of tribunals

  • Permanent – ex ICC

  • Ad hoc – temporary, dissolved when main perps tried; only try crimes in specific time prd/loc

    • More reactive > preventative

  • Hybrid – internal/nat judges, staff laws blended. Less backlash bc local actors.

• theories : drivers of backlash

  • Realist perspective

    • more powerful states may have more backlash than less powerful states abt tribunals

  • institutionalist perspective

    • cost-benefit analysis of cooperation

  • constructivist

    • role of social norms and global expectations

  • liberal IR theory

    • impact of domestic politics and elite preferences on tribunal support

• development

  • key trials

    • Nuremberg trials

    • Yugoslav trials

      • The Yugoslav Trials refer to the prosecutions conducted by the International Criminal Tribunal for the former Yugoslavia (ICTY), established by the UN in 1993 to address atrocities committed during the Yugoslav Wars (1991–2001). The ICTY prosecuted individuals for war crimes, genocide, and crimes against humanity. The tribunal set important legal precedents, particularly regarding individual criminal responsibility, and contributed to the development of international criminal law. However, it faced criticism for perceived bias, delayed justice, and limited impact on reconciliation in the Balkans. The ICTY completed its mandate in 2017, with remaining cases transferred to the Mechanism for International Criminal Tribunals (MICT).

      • Serbia saw tribunal as anti serb/tool of the west. 

        • us/eu had to give aid in exchange for cooperation

    • Lebanon

      • Tribunal set up by UN but domestic support divided – limited cooperation

    • Rwanda

      • a couple people still at large

      • still wrapping up

  • key points

    • established physical custody over everyone involved

  • Other key trials (by jenni)

    • S Af + ICC

      • South Africa’s refusal to arrest al-Bashir highlighted the ongoing debate over the ICC’s credibility and the politicization of international justice, particularly in its treatment of African leaders.

      • The dispute raised tensions between international law, which mandates cooperation with the ICC, and regional politics, where many African nations, including South Africa, have expressed frustrations about perceived bias and unfair targeting of African leaders by the ICC.

      • S Af tried to withdraw from ICC but d/n work

    • Serbia 

• perception/backlash – why backlash to internat crim tribunals is bad!

  • important to create trust in international tribunals

  • difficult to enforce rulings if no one trusts your judgement

  • legitimacy is important

  • each case is complicated, each has its own issues

  •  backlash erodes legitimacy, hinders justices and harms rep of ICCs – lowers enforcement w internat norms

14: Prosecuting Crimes Against  Humanity and War Crimes 

• crimes against humanity – DEF

  • absence of armed conflict

  • against civilians

  • can be a single victim

  • prohibited acts (crimes against humanity)

    • murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution, enforced disappearance, Apartheid

• war crimes – DEF

  • used to regulate armed conflict

  • against civilians or government officials/army personal

  • large body of victims

  • serious violation of international humanitarian law

• four principles of doing good war 

  • noncombatants are to be spared from harm

  • only attacking military objects

  • principle of proportionality (don’t use nukes if someone shoots a pellet gun)

  • respect for humanitarian principles

• challenges

  • How can you tell if there was an effort to maintain proportionality and human dignity?

  • violations must be serious to be noticed

  • violators must have individual criminal responsibility

    • perpetrator of genocide needs to specifically intend to genocide

      • premeditation, intent

• war crimes in internal conflict

  • must prove it was violated and there was intent to violate

• high margin of appreciation for proportionally

  • how can you litigate if you have no experience with military

  • fog of war, hindsight bias

• what is armed conflict ?

  • is the war on terror armed conflict?

  • who is fighting who? is terror more of a concept?

  • war on terror is across the whole world

    • normal wars have the theater of war - absent in the war on terror

• If you occupy, you cannot annex it

• Israel/Gaza conflict

  • proportionality

    • if you know there are civilians and enemy forces in the same area, when is it appropriate to strike ?

    • if there will be civilian loss of life, you need to prove there will be a military advantage

      • must be preemptive and imperative for your military goals

  • principle of humanity

    • if you’re not sure what to do, don’t do it

    • the loss of life will be too devastating

• how to address the challenges in prosecuting perpetrators of sexual violence

  • access to survivors and testimonies

  • witness protection and retribution

  • social and cultural barriers

    • what is difference between seeing and secondhand story

    • different cultures have different perceptions of who saw what

    • the further you are from the crime scene, the more difficult it is to prosecute

      • who is responsible for mass sexual violence? soldiers? middle? higher?

  • gendered perceptions and secondary crime

  • need to prove criminal design/enterprise

    • soldiers are perpetrating crimes

15: Global Deterrence and Human Rights Prosecutions

Sikkink The Justice Cascade

• showing that human rights prosecutions makes people more likely to commit same or similar acts

  • deters dictators

  • helps people not fall for genocidal language

• methodology

  • integrating normative side of human rights regime

  • do human rights prosecutions contribute to or worsen democratization and transition to justice

• propositions:

  • human rights prosecutions are associated with improvements in human rights

    • increase in probability of punishment, decrease in violations

  • prosecutions lead to improvements in human rights practices both through punishment (deterrence) and by communication of norms (socialization)

    • increase in probability of punishment, decrease in violations

    • increase in severity of punishment DOES NOT decrease violations

      • not heavily correlated with deterrence

    • socialization

      • less collective action toward the bad behavior

        • if you prosecute and say that was bad behavior, people are more aware that they’re not supposed to do it and the collective society will move away from it

      • “Adolf Eichman wasn’t a thoughtless. man who couldn’t tell right from wrong. Rather, “his conscience spoke with a respectable voice, with the voice of respectable society around him.” Since respectable society in Nazi Germany supported the Final Solution, his conscience was at ease”

  • human rights prosecutions lead to deterrence across borders

    • especially in cohesive political and cultural regions

  • prosecutions during civil and internal wars exacerbate human rights practices

    • you might want to continue to be an authoritarian leader as long as possible

      • if you’ve already committed crimes that are going to be prosecuted, you want to avoid that as long as possible

• Conclusion:

  • collecting evidence and prosecuting people is extremely important in reducing human rights violations

16: Left Behind: Poverty, Inequality and the Limits of International Human Rights Law

• three perspectives

  • liberal

    • focus on global multilateral institutions

      • operating extraterritorially

      • complain and corporate social responsibility

    • capitalist/market oriented world society

      • liked with profit

        • How to profit?

          • unethically

          • monopoly

          • exploitation

    • preference for liberal democratic states (rule enforcement)

      • brussels effect

        • if the EU does a regulation, global companies usually follow

        • using trade to increase labor and environmental standards in other countries

    • consumers

      • require some regulatory frameworks to protect consumers

    • majority of current trade in services, not goods

  • social

    • recent empirical trend: decreasing material inequality between nations, but increasing inequality within countries

      • most countries follow the same trends

    • problem of extreme poverty in world society

    • basic necessities in terms of income, health, education, food, and employment

    • elimination of extreme poverty is a priority in the human rights struggle

    • global financial redistribution ?

  • marxist

    • everyone is stuck in capitalist society against their will and it determines their entire lives

      • can't choose if you’re a worker or an owner

      • profit over everything else

    • separation between workers and those who own the modes of production

      • creates a legal and social structure over time

      • society is inherently exploitative

    • your class determines everything else about your life

    • leads to class struggle and revolution

Solomon article

• basic life and dignity v living in equality

• not a problem of having resources, problem of not distributing the resources in an equitable way

• human rights law could help distribute resources more equitably

  • equitable distribution important for human rights law

  • third generation of human rights

    • meeting basic needs of people

• extreme poverty standards

  • sanitation

  • electricity

  • clean water

• not talking about making massive improvements

  • very basic human needs

  • impossible for people to bring themselves out by themselves

    • Maslow’s hierarchy - need to meet basic needs first

• poverty in america

  • hard for some people to observe

  • lack of mental health resources

  • lack of resources to help the homeless

17: The Genealogy of Human Rights and the Problem of Universal Validity in a Global Plurality of Cultures 

Mutua: Savages, Victims and Saviors – Summary

• questions neutrality and universality of HR project, calls for the construction of a truly universal human rights corpus, one that is multicultural, inclusive, and deeply political

• INGOs only care abt 3rd word civ rights violations — not violations in the west

• article is critique of dominant narrative of international HR. He argues that the human rights discourse is constructed around a tripartite metaphor: savages, victims, saviours

  • Mutua asserts that human rights campaigns often portray states or non-Western cultures as savages who oppress individuals or groups.

  • The oppressed individuals or groups become the victims, seen as powerless, voiceless, and in need of rescue.

  • Western states, NGOs, or international institutions are cast as the saviors, coming to the aid of victims by enforcing human rights norms.

This model based on othering, civilizing, Eurocentric, racial hierarchy, manifest destiny, imperialism, colonialism 

2. Colonial and Cultural Bias:

   - The SVS metaphor echoes colonial narratives, where the West viewed itself as a civilizing force for "barbaric" non-Western societies.

   - This framing marginalizes non-Western voices and erases indigenous efforts and conceptions of justice and human dignity.

3. Universalism vs. Relativism:

   - Mutua critiques the universalist approach of human rights, which he argues imposes Western ideals onto diverse cultures without considering their unique values and systems.

4. Power Dynamics:

   - The SVS framework reinforces global hierarchies, with the West positioned as morally superior and politically dominant.

   - It undermines the agency of non-Western societies, framing them as incapable of addressing their issues without Western intervention.

5. A Call for Reimagining Human Rights:

   - Mutua advocates for a decolonized, pluralistic approach to human rights that respects cultural diversity and promotes collaboration rather than imposition.

   - He stresses the importance of recognizing the agency and voices of those in the Global South in shaping human rights discourse.

Debour: critiqes

• savages - victims - saviors approach

  • easy way to break things down to easily understand

  • very little nuance

• savage

  • black and white, good v evil

  • state is the conventional savage

    • predator that must be contained

    • liberal understanding of social contract

      • government meant to protect rights, not take them away

  • culture of society can also be a savage

  • ‘state is an empty vessel’

    • state can change

    • rights violated by leaders and culture

  • culture:

    • ‘a people’s wisdom and their identity. it is real and without it a people is without a name, rudderless, and torn from its moorings’

• victim

  • human being whose “dignity and worth” have been violated

  • engine of human rights movements

    • need to define the victim to have the savage or the savior

  • most humanized of the three

  • powerless, helpless innocent whose naturalist attributes have lead to some form of discrimination

  • not the best portrayal of the people experiencing abuses

• savior

  • europeans/western society

  • linked with the civilizing mission

  • imposing their legal structures and norms

    • claiming its legal to intervene and punish the savages

      • can ‘save’ the savage by assimilating them into widely accented norms

    • saving the victims

  • universal v relativist

    • uses cultural relative norms to distinguish the savior from the other

• grand narrative of human rights

  • started with anti-slavery campaigns

    • not very visible bc its not western narrative

• civilizing mission

  • colonialism

  • began the modern human rights movement

  • legally justifying colonialism

    • early human rights law origins

  • manifest destiny, Monroe doctrine

• Hitler/Germany

  • another main beginning point of the human rights movement

• international law founded on european biases

  • geographic Europe as a center

  • Christianity

  • mercantile economics

  • political imperialism as superior paradigms

• After WWII

  • UN and UDHR main drivers

  • first world/third world dichotomy

• former imperialized countries

  • newly independent states are not self sufficient

  • cannot restore the (potentially functioning) societies they had before imperialism

  • unable to produce/complete economically

• justifies individualism, overconsumption, etc

• religion used to create legal relations

  • natives will understand contracts, cede land to king voluntarily

  • those who convert to christianity are civilized, cannot kill them

• predicts clash between european cultures and others

  • victims + saviors v savages

  • other cultures will always be considered the savages

  • NGOs + Western states other some cultural practices

    • especially dealing with women’s rights

• human rights is a european ideological project

  • enshrines norms of european american culture

universalism v relativism matrix

So universalism means putting W. ideals onto everyone whereas relativism is considering how diff cultures have diff standards 

18: A Journey into the Unknown – The End of Western Hegemony and the Uncertain Future of Human Rights in a Multipolar World: 

• shift to multipolarity - american influence weakened

• main issues:

  • religious freedoms/societal beliefs

    • gender roles

    • abortion/birth control

    • same sex marriage

  • some countries/religious right concerned UN would interfere with these issues on a greater international level

• democratic values/general measurements of democracy declining

• case study: SRI LANKA

  • civil war with human rights concerns

    • sovereignty politics - wanted to handle their issues internally

    • felt they were unjustly criticized

    • refused to allow human rights investigators

      • said they would investigate themselves

  • faced pressure from Americans/west

  • gained funding from china, defeated rebel group in civil war

    • China didn’t allow further investigations to be pushed at UN Security Council

• case study: CAMBODIA

  • Cambodians wanted a trial, but just to move on

    • didn’t actually want to punish serious crimes

    • utilizing trials to achieve political goals

  • limited trials

    • limited mandate - may reflect not wanting trials

  • intricate interactions between international and domestic actors

• competing norms + authority

  • different cultures have different norms

    • moving toward multipolarity

• religion

  • Europe is secularizing

  • less christians in general

  • majority of christians now live outside of Europe

  • increasing percentage of religious people

    • religious families tend to have more children

• religious leaders impacting policies - moving them further to the right

• traditional religious values

  • used by people in power to justify remaining in power

  • human rights movements trying to convince people who benefit from the status quo that it is problematic

    • ineffective

• contentious topics

  • decisive use of women and girls as battle for human rights concerns

    • intimate and traumatizing issue

    • how do you protect people from feeling threatened by talking about these issues?

  • law may empower and protect, also may feel divisive threatening, exposing things you don’t want

• multipolarity

  • if a P5 member isn’t agreeing with something, theres not much you can do

  • Russia and China favoring sovereignty over human rights

• current international situation

  • general awareness of human rights violations

    • not in the best interest of the US and other powers to investigate or prosecute

  • how do different cultures see human rights concerns

  • high nationalism

    • based on resentment

    • external

  • feedback loop

    • west not bringing in other people in, other people no longer want in

  • people citing US Supreme Court decisions less

    • no longer represents what democracy stands for

  • personalities leading more than countries or blocs

  • deconstruction of current norms and working world order