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
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