Basis For HR

Natural Law
De Vitoria
o Known as one of the founders
o Studied indigenous people in Europe
o States everyone has inherent worth and dignity
o Christian belief that we should be the one that governs for
their own good (because they dont know better)
o There should be a hierarchy for biblical reasons
Grotius
o Inherent worth and dignity but not because of god
o He believed this because of reason
Kant
o Humans are ends of themselves so they should be treated as
having an inherit worth or dignity
o Everything else is used for something
Locke
Social Contract Theory
Rousseau
o All men are born equal
o People are born in the state of nature
Free naturally
Brute (example of bear free to kill you)
o When we get into society we give up some of that freedom for
protection of a government
o We ask government to limit the freedoms that we naturally
have as little as possible.
Only limit the freedoms necessary to accomplish the
goal
Rawls
Legal Positivism
19/20th century legal positivism wins out over natural law.
Based on consent moving from higher power authorization
Based on state sovereignty
o States do whatever they want within their own borders
How is social contract not consent
Natural right
Freedom to participate vs freedom from restriction
Consent is not necessary
Innately understand
The state is who we enforce the rights against
The state is the one who determines these right but it is also enforced against

What are these rights based on

Why are we guaranteed some rights but not others?
The answer is there is no answer
Some say it is all about consent
Contract
God
Natural law
comes from God or Reason
dignity and worth of individuals
Not everyone believes freedom from is the basis of natural rights
Our westernized thinking makes us believe that we are a person born alone
Other societies start with the fact that we are a son, brother, or spouse.
Different things are fundamental in different societies
Question for next class: If we can agree on rights and treaties and mechanisms,
does it matter what we base them upon?
Class 2 August 27, 2013
Be able to recognize the theory of law that a treaty is using.
-Common Debates
-Sources of Intl Law
-UDHR
Pragmatic approach
Finding an absolute justification is not really successful. Practically intuition,
history (holocaust), consent is used to justify.
Practical approach is prevention, there are generally things that we do not
want to happen
Debates around IHL
Critical legal theory
Power/influence
Social factors: morality, media, desires greed, guilt, fear
Influences all forms of legal decision making; legislative drafting,
interpretation (e.g. Consent), punishment
Distinguished from traditional legal pluralism

Read:
http://www.salon.com/2013/08/17/chomsky_the_u_s_behaves_nothing_like_a_de
mocracy/
Determine what parts talk about Critical legal theory even though it does not use
those words
Universal v Cultural Relativism
Who is deciding
Sliding scale
Universal = what most societies and cultures would consider and natural human
right
Broad natural conception of good
Applicable to everyone
Cultural relativism = differs across cultures/states
Normative and descriptive
Descriptive= theoretically: step outside your own culture; politically: no such
thing as universal universal is just the name attached to the cultural values
promoted by most powerful cultures.
Whats relative and why?
Sex
o Women and homosexuality
Cultural oversimplification
Whos defining culture
How can we have generally accepted universally recognized rights and respect
cultural diversity as one of those rights
Public International Law
Between states states obligations to one another
Individual protections prior to UN:
o Grotius in exceptional circumstances
o Treaties on protecting civiliansa during wartime
o 1919 league of nations
Treaties
Vienna Convention on the Law if Treaties, article 2:
o An international agreement concluded between States in written form
and governed by international law; whether embodies in a single
instruments and whatever its particular designation

Signatories v. parties
o Are not bound by the treaty at this point but you can not do anything
to defeat the point of the treaty
You dont have to do positive things but you cant do negative
things
Reservations

Customary Law ICJ Statute 38(1)(b)

Widespread, consistent; and accompanied by opinion juris
All states bound except persistent objectors
Regional variations allowable
Some customs allow derogation by treaty, others jus cogens: universality; no
derogation (determined by treaty or persistent objection), only superseded
by another jus cogens norm
UN Charter Article 56
UDHR
Soft law Declaration, not Treaty
o However: refs to art 55 Charter and potentially customary law (some
argue)
Adopted without dissent by general Assembly 1948
o Some countries were still under colonial rule such as india so
everyone really didnt get their say
Civil, Social, economic and cultural rights addressed
Review
No because the fundamental theory is the answer to the question why do we
have universal human rights
Fundamental right is sort of a limit
Soft law and it is a declaration not a treaty
You cannot exercise these rights with out the others
European HR Mechanisms
Council of Europe
o High contracting parties + parliamentary assembly
o Secretary general
o Committee of ministers
o observer status: US sends delegates to Committee of Ministers and
may participate
Europian union
Osce
European court of human rights

European Convention for the Protective of Human Rights and Fundamental

Freedoms
14 protocols have been adopted since then
Protocol 1 added right to the convention (education etc.)
o Paying for religious education was a problem
Protocol 4 adds freedom of movement (possibility of derogation), no debtors
prisons, no collective expulsion of non nationals
o Colonies dont have to be treated the same as normal citizens
Protocol 7 delineates due process and equality between spouses
Protocol 11 and 14 are most important
Protocol 11
o Check website
o No more hr commission
Protocol 14 was enacted to limit protocol 11
o Add additional criteria
o Big part is has not suffered significant disadvantage
One judge decides this during the application process
European Union Institutions
European council (heads of state)
European parliament (directly elected)
Council of the European union (national ministers to the EU)
Commission of the EU
EU law relationship to states
Treaty on the functioning of the European Union
Treaty on the European union
Treaty provisions, regulations and directives enforceable in member states
courts (van gend en loos)
1. Supremacy doctrine
2. Direct and indirect application in national courts
EU law and human rights
No human rights constitutional-type protections in the Treaties.
ECJ decisions: human rights = general principle of law required to be
followed by the court using European community law
If you violate the European charter there are 3 things that can happen
1. Pre investigation refer you to the court of justice
2. commissioner can..
3. kicked out of the eu
OSCE
contentious objection to wars does not show up in any other charter

Class 5, Sept 17 2013

-

Intervention: case study, Syria

Peacekeeping missions/ working abroad

What can a Syian do?

- Syria not party to iccpr additional protocol 1
- Syria not party to rome statute ICC
- ICJ? ECHR? EU?
- UN Human Rights Council
What can the world do?
- International legal remedies
o Icj referral proof/evidence of non compliance with ratified treaty
o ICC referral breaches of humanitarian law
o UN mechanisms HRCouncil, ICCPR
- Sanctions
- Armed intervention
o Un sanctioned
o Unilateral
o Regional
- Suspension from regional bodies conferring benefits
International legal enforcement against Syria
1. What provisons is Syria required to uphold
2. Has it breached any of those provisions
3. What are the enforcement mechanisms to remedy that breach
a. What evidence do you need to support enforcement through those
mechanisms
Specific Obligations under HR law
- Syria not party to ICCPR Additional
De facto leader is the reason a combatant can be required to follow rules if the
treaty has been signed by that country
Norms of customary law is a way around retroactivity (see WWII)
Derogations and the war on terror
Extraterritorial Jurisdiction
-Customary international law
-Derogation clauses
Conflicts of an international character makes the Geneva kick in

US says war on terror does not count because they are not state parties so
article 2 doesnt apply
Article 3 does not apply because it is of international character

US Patriot Act
412 indefinite detentions of aliens
Under humanitarian law you were allowed to detain until the threat deceased but
the war on terror has no foreseeable end.
Issa and Others v turkey p. 681
Was not enough effective control
Essentially Iraq would still be on the hook because there were not enough
Turkish troops to consider them a de facto government
Ben El Mahi v Denmark p. 690
Offensive cartoons in newspaper
Thrown out on jurisdiction
Bankovic v Belgium p. 694 (referenced)
Behrami v france
Said UN was at fault and you cant sue the UN over their own treaties
Midterm Review

Sources of international law

The issues in cultural relativism
4 or 5 review questions in class 3
enforcement bodies know the man 3 documents
know the structure and jurisdiction of European courts (individual petition)
when can we go in (enforcement)
what are our legal arguments
what a derogation is
humanitarian law vs human rights law
Will aks what CAN we do on a exam

Alien tort statute

Intended to combat piracy
Intended to protect ambassadors
Blackstone
Crim law is not the subject of law of nation because crime is against the state
3 principle of
o violation of safe passage
o piracy

o infringement on the rights of ambassadors

filartiga
the un has now stated what happens inside a states borders is of
international concern
the law of nations = current law of nations
enemies of all mankind now includes tortue
requires you to serve on US soil
no new tort just tells us who has jurisdiction over who we have decided
torture requires state action/ under color of law
10/15/13
What rights do people have?
Who is liable for the violations?
What do we means by states?
Can other states intervene and how?
Check document and venue
What makes something customary law?
Know the rights under the Geneva convention common article 3?
Kinds of protections civilians get
When it applies
War time or peace time
Article 8 also applies to private military contractors
If someones rights are violated what types of recourse is there?
Depends on the document
Depends on the jurisdiction
Can they make a complaint to the Human Rights Council at the UN
Read Nuhanovic to contrast with behrami case
Supreme court says dutch and UN were responsible
Forms of Private Security Contractors
Fighting
Security for other military activities
Intelligence gathering, tech support to military operations
Military supplies food, vehicles, housing, medical
Development and reconstruction experts
Security for development and reconstruction experts

International criminal law

Subject: individual
Genocide, war crimes, piracy, slavery, safe passage, diplomacy, torture, war
crimes, crimes, crimes against humanity
Why do we call war crimes and slavery human rights crimes?
o Effective control/ under color of law
Torture
o You have to be acting under color of law
Venues: ICC, Special Tribunals, Special Courts, domestic
ICC

Rome statute jurisdiction and what crimes are covered

o 12 and 13 in respect to jurisdiction

ICTY
Article 7,8,9

ICTR
Not asking questions specific to ICR
Mixed tribunaals e.g. Sierra Leone
Set up in the place of atrocity happened
Domestic courts turned into mixed jurisdiction
Applied international and domestic law
Universal Jurisdiction
In order to have jurisdiction over case you normally need prescriptive
jurisdiction
Crimes against mankind are not limited to a territory
18 USC 2339b
o the only criminal statute the US has
o define and punish clause: Art 1, Section 8, Clause 10
IHRL in American Jurisprudence
Execution of treaties
518-520
know factors
o purposes of the treaty and objectives of the creators
o the existence of domestic implementing procedures already in place
o availability and feasibility of alternative enforcement methods
o immediate and long range,.
Medellin v texas
o Whether or not it was the intent of those who negotiated the treaty
for it to be self executing

o Does the text require legislative action

Would you consider this treaty to be self executing ? Possible exam question.
Use Medellin and the factors
Assignment: for next week.