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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

universalism

relativism

good side

respect for common standards (caning is abhorrent)

respect for difference (caning is OK)

bad side

arrogance (caning is abhorrent)

indifference (caning is OK)

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