PUBLIC INT’L LAW
CLASS TWELVE
HUMAN RIGHTS
Prof David K. Linnan
USC LAW # 783
11/04/03
HUMAN RIGHTS LAW
TRADITIONAL INT’L LAW VIEWS
• States as sole subjects, with personality
• Mistreatment of foreigner considered “insult” of his/her
state, so international law claim for injury to foreigner in
his/her state NOT in individual (diplomatic protection)
• Few international law rules directly applicable to
individuals, however, such as jus in bello (no
massacring civilians, enforced by military courts martial)
or piracy/slavery as international law offenses
HUMAN RIGHTS LAW
TRADITIONAL ALIEN PROTECTION STANDARDS
•
Denial of justice (vague general physical protection
standards for foreigners)
•
Economic protection standards (antidiscrimination,
appropriate compensation for foreigners)
•
Arguments re national versus international standards
(from consular justice to arguments about consent
to local treatment)
HUMAN RIGHTS LAW
WHAT IS THEORETICAL BASIS OF HUMAN RIGHTS
LAW?
• Natural law claims/revival (jurisprudence plus
secular versus religion issues)
• Positivist theory (constitutions, etc.)
• Cultural relativism theory (Western or modernist
construction)
• Positive/negative restraints on govt (political
theory)
• Collective
rights/duties
(communitarianism
theory, but
issue whose rights)
• Dialectical theories (issue re Marxism, integralism
& UUD
1945 in Indonesia)
HUMAN RIGHTS LAW
WHAT ARE SPECIFIC INT’L LAW SOURCE ISSUES?
• Issues re sources doctrine, general principles
versus customary law formation questions
• Positivistic treaty claims (eg, UN Charter
preamble “to reaffirm faith in fundamental human
rights” plus article 55)
• Re school of int’l law, NGO functional connection
so who makes law issues in background
HUMAN RIGHTS LAW
CURRENT LEADING ISSUES IN HUMAN RIGHTS LAW
•
Civil and political rights (defensive against state intrusion, ie
no extrajudicial killings) versus economic and social rights
(claims for state
support, ie free public education)
•
Universal standards versus regional or lower standards as for
developing countries
•
Group rights issues, often gender based, typically in context
of differential treatment in different societies with
communalism claims in background (eg, issues re women’s
status in Islamic countries)
•
Enforcement issues, meaning universal jurisdiction to enforce
before domestic courts (eg, Belgian statute, Alien Tort Claims
Act) plus ICC
HUMAN RIGHTS LAW
LEADING HUMAN RIGHTS LAW INSTRUMENTS
Universal Declaration of Human Rights (1948)
(mixed)
Covenant on Civil and Political Rights (1967)
(so-called first generation rights)
Covenant on Economic, Social and Cultural Rights (1967)
(so-called second generation rights)
Idea of group rights typically rooted in academic and UN conference
activity (so-called third generation rights, often documented in
something called a declaration with issues re customary/general
principles law technically)
Now some regional instruments too, ie European Human Rights
Convention, but also often with enforcing tribunal attached
HUMAN RIGHTS LAW
LOOK TO SO-CALLED UN BILL OF RIGHTS
(UNIVERSAL DECLARATION & TWO
COVENANTS) TO PICK OUT SPECIFIC RIGHTS
What of more general question whether rights
analysis is suitable to address int’l law problems
like globalization, distributive justice, etc.?
Shadow focus on individuals getting away from
traditional focus on law between states?
Shadow focus on int’l law as restraining govts
within own states? But problem of excuse for
intervention, as with much of world’s response to
US removing human rights-violating dictator in
Iraq
HUMAN RIGHTS LAW
LOOK TO SO-CALLED UN BILL OF RIGHTS
(UNIVERSAL DECLARATION & TWO
COVENANTS)
Int’l Covenant Civil & Political Rights
Art 6 Deprivation of life
Art 7 Torture
Art 8 Slavery
Art 9 Liberty & personal security
Art 10 Criminal justice (presumption of
innocence, etc.)
Art 12 Liberty of movement
HUMAN RIGHTS LAW
LOOK TO SO-CALLED UN BILL OF RIGHTS
(UNIVERSAL DECLARATION & TWO
COVENANTS)(CONT’D)
Int’l Covenant Civil & Political Rights (cont’d)
Art 14-16 equality before law & crim pro
Art 17 Privacy, family, home, honor
Art 18 Freedom of thought, conscience &
religion
Art 19 Freedom of expression
Art 21 Peaceful assembly
Art 22 Freedom of association
HUMAN RIGHTS LAW
LOOK TO SO-CALLED UN BILL OF RIGHTS
(UNIVERSAL DECLARATION & TWO
COVENANTS)(CONT’D)
Int’l Covenant Civil & Political Rights (cont’d)
Art 22 Freedom of association
Art 23 Family & marriage
Art 24 Children
Art 25-27 citizen participation, equality before
law, minority protection
HUMAN RIGHTS LAW
LOOK TO SO-CALLED UN BILL OF RIGHTS
(UNIVERSAL DECLARATION & TWO
COVENANTS)
Int’l Covenant Economic, Social & Cultural Rights
Art 6 Right to work
Art 7 Labor conditions
Art 8 Unions
Art 9 Social security & insurance
Art 10 Family, children & motherhood
Art 11 Adequate standard of living, etc.
Art 12 Physical & mental health
Art 13-14 Education
Art 15 Science & culture
HUMAN RIGHTS LAW
US VIEWS OF (CUSTOMARY) HUMAN RIGHTS LAW
•
•
•
•
•
•
•
•
Restatement (Third) Sec. 702
genocide
slavery
murder/disappearance
torture
arbitrary detention
systematic racial discrimination
gross violations of internationally
rights
recognized
human
Are these first, second or third generation rights?
Foreign policy emphasis on civil society, meaning NGOs plus,
and democratization
HUMAN RIGHTS LAW
REGIONAL HUMAN RIGHTS INSTRUMENTS/SYSTEMS
• European, Inter-American and African
• Why no Asian?
• Why US reluctance to participate in any international
system?
• Indonesian views pre/post 1998?
HUMAN RIGHTS LAW
HOW TO ENFORCE HUMAN RIGHTS AND CONTROVERSIES
•
Political versus legal enforcement
•
National versus international enforcement (courts)
•
Regional versus general international (courts)
•
In substantive law, ie Civil Law versus Common Law views re
criminal procedure and new idea of int’l criminal law (eg, new
ICC), linked with doctrinal approaches like Collision Theory of
rights limiting themselves in conflict cases
•
UN Committee structure particularly on ECOSOC side