International Human Rights Law United Nations Charter pg 1 Human rights is up front in the preamble Art 2, 1 organization based

sed on the principle of the sovereign Art 2, 4. All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence. Art 2, 7. Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essential.state often quoted by the Chinese Chapter III Organs Chapter IV General Assembly may discuss, etc, no real grant of power Articles 41, 42 sanctions powers Chapter VIII Regional Arrangements Article 51: often quoted by the US Universal Declaration of Human Rights pg 41 the universality of HR is incredibly important Includes both negative and positive rights Article 17 right to own private property; interesting to countries like Russia and China CID Cruel, Inhumane, or Degrading treatment Sources of International Law: 3 documents (together called the International Bill of Rights) International Covenant on Civil/Political Rights ICCPR: International Covenant on Economic/Cultural/Social Rights Universal Declaration of Human Rights B. International Treaties and Institutions Relevant to Extraordinary Renditions Most nations have bilateral extradition treaties Extraordinary Renditions lacks due process; purposes is in emergency situations to extract information through enhanced interrogations techniques, torture, CID, etc. ICCPR International Covenant on Civil and Political Rights UNCAT Convention Against Torture Both ICCPR and CAT have treaty bodies Treaty Body: determine whether the countries that have ratified a treaty are complying with their legal obligations Elected: Human Rights experts are those elected 1) Review Country Reports reviews report on what the country has done to comply with the treaty and if they dont comply with some aspects, what they are trying to do to comply 2) General Comments comments and recommendations; sometimes controversial, but often treated as 3) Individual complaints not all countries allow individual complaints to be brought ; only if have accepted the optional clause eg) the U.S. NGOs etc. are also able to submit their own reports on whether or not a country is complying Torture is only defined in the UNCAT (not the ICCPR), pg 6 Torture is prohibited by the UNCAT and ICCPR neither allow any acceptations, these are nonderogable rights The US did file reservations and understanding RUDS to the torture declarations: pg 227, so far as prohibited by 5th, 8th, and or 14h amendment. Executing: As a matter of international law we are bound and thus if fail to follow

Non Self Executing: although bound by the treaty does not have any domestic effect of law in the US until it has been implemented by legislation adopted by congress Eg) pg 15 2/3 of the Senate has to ratify in order for a Treaty to be ratified in the U.S.; the Senate is also prone to lay down many RUDS in order to have US commitment (often not ratified)

Treaties can be of 2 types: Self executing: once the treaty has been ratified it literally becomes the law of the land in the sense that you claim rights & remedies Non-self executing: (MAJORITY) require additional congressional legislation to give them life in the US This ensures Congress has a say in it Also ensures that it does not conflict with laws already in place in US Non-refoulement rule: Article 3 of UNCAT pg 7: where there are substantial grounds believing that he would be in danger of torture Torture: Article 7 of ICCPR pg 59 statute: makes non derogable No one shall be subjected to torture or to CID treatment or punishment. General Comment No. 20 on Article 7: Need to put into place measure and laws that say this is banned General Comment No. 31 on Article 2 pg 9 dealing with not only the question of what is torture, but also who gets to claim individual rights ensure to all individuals within its territory and subject to its jurisdictions.should not allow extradition when there is substantial risk of torture; obligation of the US to carry out its obligation through its legislation to tell the bodies that might permit torture not to. Pg 10 UDHR Universal Declaration on Human Rights regarded as customary international law Pg 11 #5; European Court of Human Right courts that render decisions on HR; leading interpreter on distinction between torture and CID treatment: learn that they apply ; if it is normal within the way your criminal punishment system works then its ok objective eg) beating on the bottom of the feet had a purpose; relevant point is that in fact the comities will look at what the ECHR says Precedence Rules pg 13: 1. Lex posterior derogat legi priori provides that a later adopted (most recent) adopted treaty takes precedence over an earlier one with respect to states that are parties to both treaties 2. Lex specialis derogat legi generali provides that a specialized or subjectspecific rule takes precedence over a more general obligation 3. Applies the rule that is most favorable to individuals and that provides them with the greatest protection against government interference UNCAT is very specific about non-refolumont Inter-American court is good for disappearance

D. EXTRATERRITORIAL APPLICATION OF HUMAN RIGHTS TREATIES

determining whether a state party is responsible for treaty violations committed by its officials or private parties acting on their behalf when acting beyond the states boarders. Treaty Interpretation is by the Vienna Convention on the Law of Treaties Article 31 and 32. (pg 14)

Vienna Convention on the Law of Treaties pg 14 Article 31 and 32 intended to deal specifically with the interpretation of treaties Article 31 General Rule of Interpretation Article 32 Supplementary means of interpretation Preparatory work when interpretation leaves the meaning ambiguous Lopez Burgos v. Uruguay pg 15 Husband and wife from Uruguay leave and go to Argentina, he is detained in Argentina, then kidnapped and taken back to Uruguay aided by Argentinean parliamentary groups and tortured; wife filed suit on behalf of the husband to the Human Rights committee; Uruguay had an express clause that one could bring a suit against them, Uruguay had signed the ICCPRs Optional Protocol which allowed for the Human Rights committee to have jurisdiction over them Human Rights Committee ICCPR Article 2(1) can still be held accountable for violations upon the territory of another State whether with Uruguay was liable for actions its agents committed in Argentina b/c would be unconscionable to interpret the covenant that you can do things to one in another State that you cant do even on your own State Applies the #3 Interpretation Rule most favorable to the individual **U.N. Human Rights Comm. General Comment No 31. Pg 17** - State parties are required by article 1 to respect and to ensure the covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction Always look to General Comment No. 20 and No. 31 Reservation: a unilateral statement, made by a State when ratifying a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State Vienna Convention art. 2.1(d) (pg 37) Understanding: clarifies the meaning of an ambiguous treaty provision without however excluding or modifying its legal effect (pg 37) Declaration: announces a states policies or intentions concerning the treaty such as its status within domestic law or the acceptance of a treaty bodys competence to review complaints (pg 37) The U.S. ratification of UNCATs non-refoulment rule contains: the US understands the phrase where there are substantial grounds for believing that he would be in danger of being subjected to torture, as used in Art. 3 of the Convention, to mean, if it is more likely then not that he would be tortured. (pg 37) Self-Executing Treaties: when countries give immediate effect to international law; direct effect (pg 930) Non Self-Executing Treaties: when a country requires that international law be further implemented through domestic legislation before it may be given effect in the domestic legal system; indirect effect. (pg 930-32) In the U.S. Article III Section 2 defines the jx. of federal courts as extending to all casesarising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their Authority

Article II Sec, 2 of US Constitution provides that the President shall have Power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur (pg 929) The President may only make treaties by ratifying or acceding to the only after 2/3rds of the Senate has consented to a treaty The Senate may require that an agreement be modified before it will consent, or it may subject its consent to certain reservations, understandings, or declarations regarding the meaning of the treaty or the domestic operation of the treaty, such as a declaration that the treaty shall not be self-executing. Obligation of US if Non Self-Executing: if non-self executing the US is under an international obligation to adjust its laws and institutions as may be necessary to gibe effect to the agreement.

Legal Consequences of Israels building of a wall/barrier in the West Bank; occupied territory of Palestinian Territory - July 2004 International Court of Justice (ICJ) pg 18 Covers both individuals within the states territory and outside The wall violates the rights of Palestinians Uses Article 31 Preparatory work interpretation U.S. says the plain language means it has to be within its territory AND its jurisdiction, meaning both vs. the HRC and ICJ which says it means OR ICCPR doesnt have an object and purpose clause unlike many other treaties (which is how you generally are supposed to interpret treaties according to an object and purpose clause) U.S. interpretation of the non-refoulment obligation in Article 3 disagrees with interpretation that you cant transfer person if they will be tortured; US say, only if its more likely then not pg 37

E. Applying the Non-Refoulement Rule: Assessing the Risk of Torture in the Receiving State and the Role of Diplomatic Assurance Agiza v. Sweden Egyptian nationals convicted of being part of terrorist group; went to Sweden for asylum; Egypt negotiated to get them back with assurance to Sweden they wouldnt be tortured; They cut off their clothes, tied to a mattresses, put hoods over their hoods were tied up and bound, put sedatives up their rectum on a plane by masked Americans they eventually U.S. interest was specifically in the fact they considered them to be international terrorist and wanted them back in Egypt vs. Sweden to be questioned and tortured Complaint is not whether was torture, but whether or not there was Substantive Assessment there might be torture under Article 3 pg 28 13.2, 13.5 13.2 substantial grounds for believing that he or should would be in danger of being subjected to torture 13.3. Committee must evaluate additional grounds must exist that the individual concerned was personally at risk of torture 13.4 Committee days there is a consistent pattern of torture in Egypt, and Sweden was aware that there were other states were interested in his intelligence The procurement of diplomatic assurances that provided no mechanism for enforcement, is not sufficient to protect against this risk Sweden can only take steps to make sure this doesnt happen again

Sweden revised their guidelines for the expulsion of aliens. Pg 33

Alzery v. Sweden Because the HRC doesnt have an actual definition of torture or CID so they are instead focused on the Acts the US did on the ground of Sweden. Always look to General Comment No. 20 and No. 31

Libya Discussion Collective UN action with regard=d to anything that happens with reference to anything that happens in the world. To maintain international peace and security et. al Organs of the UN the carry out these functions: Security Council : powers under chapter 6 (peacekeeping) of charter to investigate any situation that may give raise to a dispute, art 34, and adjustment art. 36 Art. 39, maintain any action that is breach of peace Art. 41, non military actions or military actions under art 42 Difference b/t Security Council are binding on all members vs. General Assembly decisions are not binding. Member of Security Council: 5 Permanent: US, China, France, Russia, Great Britten; 10 elected members; 5 permanent members have veto power Article 2(4): pg 543 Al members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations eg) US should not have gone into Iraq. Kosovo War, NATO intervened after several peace attempts ; UN Security Council in essence accepted what NATO had done, having unilateral action post cold war; Not necessarily a good thing to do without UN Security Council because now things are working within UN Security Council Post Kosovo Kofi Annan Former Secretary General of the UN Agitated about ethnic cleansing in Rwanda wanted changes to Security Council 5 Criteria that should be applied by the Security Conical pg 553 Just-Cause Large Scale Loss of Life/ethnic cleansing Correct Intention halt or hurt human suffering The Last Resort Proportionality reasonable prospects of achieving success 1. UN intervention of Iraq in 1990 pg 535 - Iraq invaded Kuwait: Breach of Article 2: passed Resolution 678 authorized the collective use of force against Iraq b/c didnt just threaten one state but also international Iraqis were also slaughtering the Kurds 2. UN Intervention in Somalia -

LIBYA
Libyans began to protest Qadafi regime after Egypt, Tunisia, Syria revolutions etc.; Qadafi forces began shooting on rebels; UN has now brought about sanctions UN Security Council Resolution 1970, Libya Sanctions February 2011 1) Refers the situation to the International Criminal Court (ICC) 2) Imposes an arms embargo and other arms restrictions 3) Imposes targeted sanctions on key regime figures - Sanctions were specific and targeted specifically on members of the Qadafi regime (and not the people) 4) Provides for humanitarian assistance 5) Commits to review the measures Qadafi continues to bomb civilians etc; ramps up efforts against the rebels UN Security Council Resolution 1973, Libya Sanctions March 2011 No fly zone

All necessary measures to protect civilians China and Russia abstained, but did not veto (along with Brazil, Germany and India)

The argument is that this is international impact could become genocide Argument this is a Violation of the 60 Days Under the War Powers Act War Powers Act: came along during Vietnam, in order to continue military action past 60 days there has to be a Congressional declaration of war This is not a law but a joint resolution between house and senate; no President has ever signed but most have upheld it We are now after the 60 days General Assembly suspends Libya from acceptance; Kuwait has now been elected last Friday to the Human Rights Council w/ sterling Human Rights record Cte dIvoire Election in Fall and current President refused to step down for 6 months, but the newly elected President was backed by the UN Two sides were fighting The U.N.s perspective was that the difference between Libya and Cte dIvoire Cte dIvoire already had a peace keeping force on the ground there UN passed SC 1975 to use all necessary means to carry out the peace keeping force The UN and the French eventually made him leave via force Prosecutor in Libya Pre-Trial Chamber under ICC now looking to have specific charges against 3 members of Libya

5/27/11 Globalization of International Human Rights it applies to all people Internationalization of International Human Rights - it is accepted by nations

I. International Agreements

- International agreements between nations commonly known as treaties; primary way of developing international law of HR; International human rights law primarily customary law, treaties (primary source of international law), and the Universal Declaration of Human Rights that inspired them Restatement (third) of the foreign Relations Law of the United States pg 192 321 Binding Force of Agreement every international agreement in force is binding upon the parties to it and must be performed by them in good faith Binds those who have ratified it and agreed to be bound by it Pacta sunt servanda if youve agreed to the treaty you are bound to it even if it goes against your countrys law 102 Sources of international law pg 191 General Principles as Secondary source of law pg 197 Customary International Law pg 193 - Article 28(1)(b) a general practice accepted as law; rules that states implicitly accept as legally binging through their conduct Two elements: General practice; doesnt have to be that all states engage in the practice but it has to be most, and the states most affected Eg) right of free passage in the seas; You can only not be subject to customary international law if you continuously object during the formation of the law; otherwise you are subject to it Doesnt have to necessarily be in your Constitution but if you behave as if you recognize the practice you are subject to it A general practice of violating a rule consistently, will in fact change the customary practice Opino Juris Accepted as Law pg 195: mental attitude that a practice is followed out of a sense of legal obligation, because they should Jus Cogens norms pg 198; compelling or higher law; defines preemptory norms from which no derogation is permitted and is essentially a label placed on a principle whose perceived importance, based on certain values and interests, rises to a level that is acknowledged to be superior to another principle, norm or rule, thus overriding Article 53 of the Vienna Convention defines: a treaty is void if at the time of conclusion, it conflicts with preemptory norm of general international law pg 198 Difficult to determine which are but presumed to include genocide, crimes against humanity, war crimes, torture, aggression, piracy, and slavery as peremptory norms Erga omnes the rights and obligations in the Convention are the rights and obligations of everyone; not a preemptory norm; simply an international obligation that applies to all individuals to not engage in genocide pg 483 International Agreements in US - Non Self Executing - this requires involvement of Congress under Article 6 treaties require the advice and consent of 2/3 of all senators PRESENT 1st stage: you have a signature (pres can do this) 2nd stage: ratification (2/3 of senators present advice and consent) Treaty = law of the land President can only sign an agreement (not a treaty) w/o Congressional authorization where Congress has previously given him that authority

Promulgative Articulation way to prove Opino Juris that youve accepted this; requirement that objective claim of international legality be articulated in advance or concurrently with the act Peremptory norms of international law (jus cogens)- preemptory, permitting no derogations; prevail over and invalidate international agreements that conflict with them; can be established by international question;

B. Human Rights Agreements Under International Law pg 198

1. Human Rights Agreements and the Law of Treaties The US has not ratified the Vienna Convention and that is why we review the Restatement Reservations to Treaties: In General pg 199 313: state may enter into a reservation to a multilateral international agreement unless: (a) reservations are prohibited by the agreement the agreement provides that only specified reservations reservation is incompatible with the object and purpose Requirements: pg 199 Reservation: pg 200 Declaration and Understandings: pg 200 Reservations to Human Rights Agreements Prevention and Punishment of the Crime of Genocide small reservations are ok but major objects that go against the heart of the treaty are not permitted because they go against the object and purpose test of the agreement (From the ICJ) the Object and Purpose Test has become the standard of viewing reservations The International Court of Justice is the one who submits Advisory Opinions as to reservations Reservations: Notes on page 203-205 Derogation of a Treaty pg 207 Must be a public emergency and A declaration made Human Rights treaties create rights for individuals and not just the states and thus North Korea could not withdraw from the ICCPR International Convention on Civil and Political Rights (pg 217) Derogations from Human Rights Agreements pg 207 the 3 that protect civil and political rights allow state parties to suspend certain rights and freedoms during times of national emergency Example Art. 4 ICCPR Several limitations on states ability to derogates eg) ICCPR Art. 4 only applies to emergencies that threaten the life of the nation Withdrawal from HR Agreements pg 210 Some treaties allow for denunciation by countries w/in the treaty language and after a certain period ICCPR, ICESCR and CEDAW do not have such In 1997 when North Korea tried to denounce ICCPR the HRC adopted Gen. Comment No 26 that concluded ICCPR does not allow for denunciation or withdrawal Selected United Nations Human Rights Agreements pg 220

The Genocide Convention The Convention on Racial Discrimination (CRED) The Convention on the Elimination of Discrimination Against Women (CEDAW) The Convention Against Torture The Convention on the Rights of the Child (CRC) Other Recently Adopted United Nations Human Rights Conventions Restatement Customary International Law of Human Rights 702 pg 240 702 Customary International Law of Human Rights A state violates international law if as a matter of state policy it practices, encourages, or condones: (a) genocide (b) slavery or salve trade (c) the murder or causing the disappearance of individuals (d) torture or other cruel inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights The Right to Food pg 242 the question of holding global actors accountable under international law The Role of International NGOs with respect to antiterrorism laws post 9/11 pg 243 Nonbinding International Human Rights Norms pg 245, 246 Soft Law international norms that are not legally binding, can significantly influence behavior of the states. Two Categories primary and secondary: Primary normative texts not adopted in treaty form addressed to the international community eg) UN Standard Minimum Rules Treatment of Prisoners; Secondary- eg) General Comments; eg) Extraterritoriality Eg. Nonbinding human rights norms Helsinki Accord pg 247 The Human Rights of Women pg 247 The UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Did not gain much attention until the 1990s with the appointment of the Special Rapporteur on Violence Against Women until 1994 pg 250 Criticism of first treaties didnt think to put in things that affected women; Chinkin The Gender of Jus Cogens pg 251-252 Another issue is the focus on family which if you elevate the family, the human rights violations of women and children may be violated b/c of the hierarch in the family tradition Hilary Charlsworth/Chincken/Charlotte Bunch articles pg 252,53 Committee on the Rights of the Child Implementing Child Rights in Early Childhood pg 268 pg 271: children

Human Rights Refugees pg 276 Pg 277 rights of refuges originally not great; Chinese Exclusion Case 1967 Protocol; no real body in regards to refuges

INS v. Cardoza definition of a Refugee Refugee a person who has a valid objection to returning to his country of nationality and specified that fear based on reasonable grounds of persecution because of race, religion, nationality pg 279 Refugee Process Immigration Judges; can appeal to Board of Immigration Appeals, pg 280 Immigration and Naturalization Service v. Elias-Zaccarias : D came to US b/c guerillas came to parents house and he had to join; feared they would hurt his family; fled to US; Immigration Appeals said he failed to demonstrate that he meet the political persecution grounds; the Sup. Ct. upheld b/c held it was not political opinion b/c even if he showed he didnt want to show he wanted to join guerillas b/c of political belief, he hadnt showed that they would persecute him b/c of his political beliefs Dissent: You can state a political opinion by going with or not going with the guerrillas; thus the political opinion requirement was fulfilled; thus he could still have fear of being persecuted Majority: did not prove it was b/c of political opinion but b/c of fear K. v. Secretary of State for the Home Department pg 284: Article 10 - Reasons for persecution: I. Member states shall take the following elements into account when assessing the reasons for persecution. (d) a group shall be considered to form a particular social group where I particular: (i), (ii) pg 288 Sale v. Haitian Centers Council, Inc.: people were on boats on the high seas and hadnt touched US soil; government sent them directly back without determining the reasons/refugee status; the Supreme Court said this was ok; reasoning was b/c of overwhelming number of Haitians coming; govt. is intercepting them on the high seas b/c once they touch American soil they are then subject to the refugee process

5/31/11 Verdugo-Urquidez- US Supreme Court pg 305: addressed the question of extraterritorial rights of aliens; held the Warrant Clause of the 4th Amendment placed no restrictions on searches of property in a foreign country belonging to a foreign national not resident in the US. Kennedy, J. (3 factors relevant in determining the reach of the suspension clause): The citizenship and status of the detainee and the adequacy of the process through which that status determination was made the nature of the sites where apprehension and then detention took place and the practical obstacles inherent in resolving the prisoners entitlement to the writ. This is an extraterritorial application of rights to non- U.S. nationals (regarding the writ of Habeas Corpus in Guantanamo) Group Rights/Minority Rights/ Rights of Self-Determination Group Rights (pg 315) Although there is a preference for individual rights, there have been provisions for rights that seek to secure defined in reference to individuals belonging to certain minorities, such as ethnic, religious and linguistic minorities. Examples the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; Declaration on the Rights of Indigenous Peoples. Lovelace and Kitock cases o Post World War documents emphasize individual rights Adeno Addis- Individualism, Communitarianism, and the Rights of Ethnic Minorities pg 318 o Paternalistic Pluralism- protects the culture of minorities as the Other. Pg 320

o Critical Pluralism- objective is to provide the necessary resources and institutional structures for the cultures of the minorities to flourish. Robert Cullen-

o Arguing a neutrality. Individual rights, not collective rights. 3 different phases of Minority Rights (rights of self-determination):

Indigenous People and Self-Determination pg 329 - Lovelace, Kitok cases pg 337 o I. The Interwar Regime Each groups should get its own country. Minority rights treaties (period between WWI and WWII.) Polish Minorities Treaty detailed set of rules

Poland, Czechoslovakia, Rumania, Yugoslavia and Greece were required to sign on to this treaty with the League of Nations. o II. Post war regime Decolonization- Anti colonial but NO Secession (Katangese Peoples Org (case))- Zaire gained colonial independence from Belgium, but the Katangese Peoples Org was prevented from seceding from Zaire because it would disrupt the territorial integrity of Zaire. Decision of the African (council) De-colonization- to separate from the colonizing nation and become independent nations. Lovelace and Kitok- cases Lovelace- a Native American married a non Indian and wanted to just go back and live on her reservation with her husband, but she was stripped of her indian status according to the Indian Act. But because there were no economic implications of her claim, the Committee concluded that she was able to resume living on the reservation as it would not disrupt the preservation of that community and therefore is in line with the ends to which the Indian Act was created to be the sufficient means. Kitok- Wanted to hunt deer. Much greater impact on the economic integrity of the community, but still allowed to conduct activity as long as the economic impact on the community was not disruptive to the community. Committee squared these two cases as being consistent.

Apirana Mahuika at al. v. New Zealand- og 341Who is the representative of the minority? Saltwater test- if there was salt water between the colony and the country claiming independence, then the country claiming independence could secede from the colonizing country.

o Post Cold War (Internal Self determination) Decolonization due to the collapse of the Czech republic/ Soviet Union? Cessation resisted. Uti Possidetis

Quebec has internal self determination. I. Interwar Regime II. Post War Regime anti colonial but no succession (Katorna. III. Post War Protections of Minority Rights (Indigenous people) Ethnic Minorities Lovelace Case lost Indian status b/c according to Indian law if a woman married a non Indian, lost status; after marriage failed, tried to come back but older tribesman said no; she filed suit and won; Human Rights Committee said she should be allowed to return despite the Indian Act b/c she wanted to just live there, had no economic effect on the community pg 337 Kitok v. Sweden Swedish citizen of Sami ethnic origin wanted to reindeer breed but had done another profession for 3 years so his name had been removed from the village rolls; village refused to add him back on the rolls as legislation required to breed; Human Rights Committee said it was justified to limit Kitok from breeding b/c there is a greater impact economically on the community as a whole pg 338 Rule - you can be reintegrated to the community to the extent that there is no economic impact on the community Apirana Mahuika et al. v. New Zealand who gets to represent on behalf of the minority - No part time fishing allowed b/c of low fish stock; Mari relied on this to live; they set up a group and entered into negotiations w/ NZ govt., signed a Memorandum of understanding/treaty; gave up fishing rights in exchange for 50% of sea lords which controls the fishing quota; Other group protested under Article 27; pg 341 (All these cases so far are Human Right Committee, NOT the Human Rights Council) The UN Declaration on the Rights of Indigenous People pg 360; still not allowed to succeed from sovereign states art. 46(1)

Human Rights in the United Nations System Chart pg. 417 Charter Bodies Human Rights Council: 1. Engages in Special Procedures: Pg 420 list of what they can do Country Mandates: pg 423; undertake fact finding missions to countries

 Thematic Mandates: pg 423 1. 1503 Procedure The Confidential Complaint Mechanism pg- 432; adopted by the ECOSOC Resolution Confidential communications which reveal a consistent pattern of gross and reliably attested violations pg 432 1. UPR Universal Periodic Reports all members of the council must send them in; send them in every 4 years pg 438 Five Regional Groups - Group of African States; Asian States; Western European; Eastern European; Latin American and Caribbean pg 420 Assessing the Human Rights Councils first Few Years pg 440 Countries elected in groups; groups are weighted; WEOG (US) only has 7 countries Treaty Bodies ICCPR Human Rights Committee Engages in reports; the additional one due Reviews the reports; govt. reps are invited to attended Committee can also use other documents by NGOs shadow reports Focuses on factors and difficulties of countries implementations Since 1990 the committee can also request emergency reports if something severe happens in the country Reports submitted by Sudan pg 446; 449: two issues Abduction and Slavery: Sudan denies it Pre-trial detention Sudanese NGOs pg 449 Committee then makes Consideration of Reports Submitted; Concluding Observations eg. pg 451 The Petition System pg 455: A State communication can submit; or an Individual can submit alleging a breach; in order to submit the State must be that has ratified the Optional Protocol in order for individuals to submit Forwards its views to the State Party concerned and to the individual Verify the evidence; does not have any independent fact finding power; must rely on the evidence presented Bleier v. Uruguay: Mojica v. Dominican Republic (note: in this case is an outlier b/c there is no evidence, eye witness testimony submitted by the petitioner that he was actually abducted); The committee finds the State Party responsible b/c the State Party didnt respond; made inference that b/c they didnt respond they would responsible Boucherf v. Algerai: Interim Measures are compulsory pg 471 Economic Social and Cultural Rights Treaty - ESCR Committee treaty body will take State reports and individual complaints pg 473 Makes State Party take steps to achieve the full realization of rights 4185863418496311 The International Court of Justice ICJ pg 479 Two types of jurisdiction: Advisory Opinions pg 480 Contentious jx pertains only to disputes b/t states that have consented to its jx this is only state to state jx. The ICJ does allow for Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide etc; b/c it would rather have countries sign the treaty then not

 Doesnt allow reservations that go against the object and purpose of the treaty Erga omnes the rights and obligations in the Convention are the rights and obligations of everyone; not a preemptory norm; simply an international obligation that applies to all individuals to not engage in genocide pg 483 Jus cogens preemptory norms; binding on all states DRC; Congo v. Rwanda pg 483, 484 In 20001 ICJ decided orders under provisional measures under Art. 41 of the ICJ statute are legally binding; pg 488, 489 DRC; Congo v. Uganda: Ugandas forces on territory of Congo fighting other States; accusations of genocide; court concludes with regard to provisional measures: 1st need: probable jurisdiction on the merits; Court says BOTH parties must submit to the following measure; preliminary injunction pg 491 Court applied to both because Congo was also having political turmoil, infractions, and armed aggression In 2005 ICJ concluded Uganda had violated several treaties; HR violations and the provisional measures undertaken in 20001 pg 494 Bosnia v. Serbia: Standards of Proof and Fact Finding Relating to the Genocide Convention: pg 496; Bosnia had ICTY court records; these were good records for individual crimes because it has been accepted as fact that massacres had been committed from past cases; Proved that genocide was committed however what was not proven was the Serbia directed its agents to do this Court holds: Genocide will be considered as attributable to a State if: pg 501 Serbia had general control of the actors but not effective control Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Issue of extraterritoriality b/c the wall is on the side of Palestine not Israel; ICJ has jx to tell Israel to redo it b/c its on the territory of another states Consent of the State parties involved is not necessary to give an advisory opinion b/c an advisory opinion is not biding (this is not an actual contested case which would be binding only w/ respect to the parties) Court find Israel wall impedes liberty of movement etc; pg 516; 518

Enforcement by Coercive Measures The UN Security Council U.N. Secretary General: Appointment of the High Commissioner of Human Rights; Staffs all UNHCHR bodies Security Council: 5 permanent member, each has veto power Peacekeeping Powers: Chapter 6 Enforcement: Chapter 7 Art. 39, 41, 42, w/ respect to Libya General Assembly: elects the non-permanent members of the Security Council Has Resolutions: including UDHR (universal declaration on Human Rights); Resolution on Human Rights defenders (Resolutions) General Assembly: ECOSOS Economic and Social (Charter Body) Human Rights Council (HR Commission b/c the Council) (Charter Body) Wrote the ICCPR and the ICESCR (treaties) UPR Special Procedures 1503 Procedures ICJ International Court of Justice (reports to GA but is independent) Contentious and Advisory (know both and cases under this section) Know what is a Reservation, Understanding and a Declaration (treaties)

Treaty Bodies HRC Human Rights Committee ESCRC Economic Social Cultural CAT Committee against Torture under Convention Against Torture All: Reports Issue general comments May issue decisions w/ respect to individual petitions if and only if the State has joined the Optional Protocol UPR every 4 ICCPPR HRC every 5 International Law Commission is now the principle body in the UN that drafts multilateral and Human Rights Treaties

International Criminal Law pg 698 Unlike other human rights law and obligations this does not have to do with a state; this deals with individuals and individual responsibility liable for criminal punishment Started at the Trial of Major War Criminals at Nuremberg International Criminal Tribunal Nuremberg pg 700 Allies created International Military Tribunal (IMT) in Nuremberg to try leading Nazi war criminals Charter of the International Military Tribunal (Nuremberg Charter) pg 700 Issue of State Sovereignty arises in Article 6(c) Crimes Against Humanity whether or not in violation of the domestic law of the county where perpetrated; victors get to try even if not Victors Justice Criticism: Ex-Post Facto Law Issues w/ 6(c) 702 Allies adopted Control Council Law No. 10 to allow for tribunals against crimes against humanity even outside a war and in a civil war; delinging pg 702-703 Humanity pg 703 Becomes part of the IRCCPR via Article 15 pg 704; only guilty of crimes that are criminal in national or international law Contemporary International Tribunals Geneva Convention Relative to the Protection of Civilian Persons in Time of War pg 706 Jus In bello Article VI identifies courts that should try pg 706; but there was no international criminal court; nothing in place; became an issues with Yugoslavia The Security Council invoked Chapter 7 and created the International Criminal Tribunal for the former Yugoslavia ICTY; SC Rex. 827 pg 707 (ad hoc) Security Council created the International Criminal Tribunal for Rwanda ICTR pg 707 In 1998 a diplomatic conference established Rome Statute creates the International Criminal Court ICC: creating permanent international court for the prosecution of the most serious crimes of international concern pg 708; the Rome Statute Created the ICC (the Security Council only created the two ad hoc tribunals for Yugoslavia and Rwanda noted below) Can impose jx. on individuals if they are members of state parties; found in a state where ICC has jx; or Substantive Law in the Rome Statute pg 710-711

The ICC Statute recognizes individual criminal responsibility not only for principles who directly commit or attempted crimes; but also for other forms of participation such as.. Article 25-28 pg 712 The Crime of Genocide pg 712 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide; Bosnia and Herzegovina v. Serbia and Montenegro pg 712 (had already held Serbia the state was Genocide: Article 2 of Convention 186 pg 713 Ethnic Cleansing is a crime against humanity but is NOT Genocide Found VRS Bosnian Serb Army was guilty of Genocide in Srebrenica pg 717 Three matters relevant for group determination pg 716 Genocide w/in geographic area pg 716 Conclusion 718 State Responsibility Issue Rape (And Other Forms of Sexual Violence) B/c crime against humanity when committed against pg 722-23 Control Council Law No 10 expanded crimes against humanity found in the Nuremberg Charter to include rape 723 Seeing Rape as an outrage on personal dignity; honor or Torture pg 724 Should be seen as torture as violence against people

THE ICC BEGINS TO OPERATE STRUCTURE pg 730 ICC Institutions: The Prosecutor is elected for a nonrenewable 9 year term by the Assembly of State Parties The Security Council can refer situations involving non-party states w/o their consent by Chapter 7 The US sought greater political control over the prosecutor by requiring the affirmative permission of the Security Council to initiate prosecution Ultimately statute added this (US is still unsigned) First Investigations and Prosecutions pg 731 DRC Congo Uganda Central African Republic Sudan The United States and the ICC pg 733-36 US reversed and unsigned the Roma Statute under the Bush Administration The American Service members Protection Act of 2002 - US opposition to the ICC has been embodied by the passage of this act Objections to the ICC Jurisdiction pg 734 Freedom of Religion and Belief pg 1277 Jews and Italian Fascism; Communism of the Cold War pg 1278 UDHR and ICCPR add religion pg 1277 Karl Josef: There are 4 Different Types of relationships b/t State and Religion pg 1279 1. States where the civic community and the religious community are identical and law is based on and reflects religious beliefs - Middle East; Sudia Arabia 2. States where the state and the religious community are formally separated but where one creed dominates the public philosophy - Russia 3. States where the population belongs to more than one religion or confession (and some to none at all) and Religious freedom is fully recognized with the separation of state and religion a reality United States; most western Europe

4. States where atheism is the official policy but religion is more or less tolerated China; Dont want Conversion Sister Mary Joseph Case US State Department Bureau of Democracy Human Rights Labor International Freedom Report: pg 1280 Abuses of Totalitarian Authoritarian regimes which seek to control religious thought and expressions China Abuses of State Hostility toward minority or non-approved religions eg Russia when others try to leave orthodox church Abuses of States failure to address either societal discrimination or societal abuses against religious groups Egypt Christians v Muslims Abuses that occur when governments have enacted discriminatory legislation or policies that favor majority religions and disadvantage minority religions eg. Kosovo; Yugoslavia; Russia The practice of discriminating against certain religions by indentifying them as dangerous cults or sects is a common type of abuse even in countries where religious freedom is otherwise respected- eg. Scientology Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Art. 18) pg 1284 The right to freedom though concise and religion in art. 18.1 is Sister Immaculate Joseph v. Sri Lanka Case pg 1285: Sri Lanka didnt like the sisters going around helping others, maybe even convert to Catholicism; had article in their constitution that Buddhism had to be the 1st; she brought suit; they were trying to be incorporated (legal entity b/c separate so have limited liability); Sri Lanka said no; The Human Rights Committee says it is discrimination against religious community; Sri Lanka has violated their rights and they should be permitted to incorporate because the State hasnt given any rational basis paragraph. 7.4; Limits/Restrictions on religious freedom MUST be under Art. 18 by law and necessary for the protection of the rights and freedoms of others or for the protection of public safety, order, health or morals Wingrove v. United Kingdom pg 1288: sexualized religious video; govt. board denied it; Whether the interferes pursued a legitimate aim; - court said yes; Whether the interference was necessary in a democratic society freedom of expression; Ct sais if going to violate the freedom of religion of one person to protect another, it must be- Margin of Appreciation - Court says must say that the restriction is limited and that is it tailored to one specific point and its adequate to this one specific thing the larger end of scale; dominant group will be offended by it; balancing the rights and freedoms of others vs. the restrictions Note 7 pg 1296 Danish newspaper publication of political cartoons of Prophet Mohammad; resolution adopted by the Human Rights Council in 2007 only talks about Islam

Freedom to Manifest Religion or Belief: Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Art. 18) pg 1299: Doesnt restrict at all; restrictions that art. 18 should be prohibited and no other restrictions are allowed other then art. 18; freedom to manifest religion in public; prisoners if already restricted and its compatible with the nature of constraints its ok Conscious objection as long as it is a legitimate objection; good idea for military systems to permit it Singh Bhinder v. Canada pg 1301: petitioner from sheik religion required to wear turban but is a construction worker required to wear hard hat for his

protection but doesnt want to b/c of his religion; Committee says b/c its for your protection and not trying to discriminate against religion could find another job; no discrimination Yoon and Choi v. Republic of Korea pg 1302- 2 are Jehovah witness dont want to serve in the Korean military b/c of their religion; Committee says; Committee says if the conscious objection is actually legitimate the republic of Korea should create a system where it is able to make such a determination Employment Division, Department of Human Resources of Oregon v. Smith pg 1305 - smoked peyote but Native Americans use as part of church; they actually worked at drug rehabilitation; when fired they were denied unemployment benefits because were smoking; filed suit b/c 4th amend. Rights b/c; Supt. Ct. said cant let minorities violate the law just b/c of their religion Congress passes RIFRA in 1993 pg 1312 Leyla Sahin v. Turkey pg 1313 wanted to wear her headscarf to University; Turkey said legislation said she couldnt do it (new leadership says can); Turkey says 1. Inconsistent with secularism constitution 2. Not modern; symbol of political Islam; Court says its ok to ban because there is an interference b/c the Turkish society sees it as a genuine threat to their secular society; the dissent disagrees b/c says this doesnt harm other people Impunity those who have committed war crimes but are able to get away with impunity; when the international community hasnt brought them to justice Political Rights The Rights to Political Participation pg 1325 - UDHR; Article 25 of the ICCPR pg 1324: Every citizen shall have the rights and the opportunity.to take part in the Mathieu-Mohin and Clerfayt v. Belgium pg 1324: what really represents political participation; 3 major groups in Belgium, set up in 1988 a transitional way of governing b/c had French council and Dutch; French speaking legislators were elected; if took the oath in French had to be on French council and if took in Dutch had to be on Dutch and wouldnt be able to represent of be involved in the French; said this violates right enshrined in the European Convention; Court says that this is not perfect but 1) Its transitional, and 2) Its the best the Belgium can do to try and give representation to the various communities Reynolds v. Sims pg 1330: Alabama black voters filed suit; Alabama had apportioned the voting districts by giving more representatives to serve the counties that were predominantly white in order to control the AL legislature; AL argues that the Equal Protection clause doesnt require allocation according to numbers of people in allocated districts; Court sets down the principle One Person One Vote proportional representation Kramer v. Union Free School Dist. No 15 pg 1334 NY passed a law that says is per school district or in order to vote must own or least property etc; Court said it was not accessible and the distribution to the right to vote should be proportionate to who lives there Yumack and Sadak v. Turkey: had threshold The Right to Political Participation Under the ICCPR pg 1339 Bwalya v. Zambia pg 1339: Bwalya was running for a parliamentary seat and was young and popular w/ poor; there was a one party system; government saw this as wanting to overthrow the party; government fired him; lost his house; dad was kicked out; had to move; he was then arrested; never stated any grounds why arrested; Constitution says only 1 party; Committee says this is against Article 25 of the ICCPR Human Rights Committee General Comment 25: Right to Participate in Public Affairs, Voting Rightspg 1341: #17 as to one party voting pg 1343 Human Rights Committee has allowed for monarchy pg 1337

Right to vote of those convicted felons; Committee says lifetime bar to voting is bad pg 1352

Exclusion of Extremist Parties pg 1356 Dennis v. United States: Sup. Ct. upheld the leaders of the communist party for conviction of trying to overthrow the government of the US Question if not trying to overthrow US government by violent means should your extremist organization be banned pg 1357 France says cant get rid of the form of republican government by statute in 1901 pg 1357; gives President power to dissolve groups that 1-3 Militant Substantive Democracy in Germany pg 1358 Refah Partisi (The Welfare Party) v. Turkey pg 1361: Refah party is in power when the Principle State Council brings an action in the Court of Cassation to dissolve the party b/c its activities contrary to secularism; #11 had become largest political power; feared would become majority and impose non-secular views on the government; Step 1: Was there a legitimate aim for dissolving Court said Turkish states aim to protect the state from taking over and imposing Shria law is ok b/c their Constitution says the state is secular; Step 2: Is it necessary in a democratic society Court says yes it is ok because pg 1365 infringed on principles (a) plurality of legal systems would not be compatible (b) Sharia not compatible w/ fundamental principles of democracy (c) Sharia applies only to Muslims and more then just Muslims in Turkey (d) The possibility of recourse to force; Was effective; group reformed and has taken less violent, extreme nature

Economic and Social Rights The ESCR Committee (formerly ECOSOC) pg 1406 Has Optional Protocol that allows parties to ratify Unlike the ICCPR whose effects are immediate; this language suggests for it to take place progressively (misconception however, many take immediate effect) 1. Minimum Core Obligations Committee on Economic and Social and Cultural Rights General Comment No. 3, The Nature of States Parties Obligations pg 1408 Obligations of Conduct: for the legislature to put laws in place; or the appropriate means to; ; no discrimination; take steps #2 Obligations of Result: to enforce and use all appropriate means to make sure they are being done Paragraph 1 no discrimination, 2 take steps; some items are immediate Paragraph. 4: adoption of legislative measures are not exhaustive, must go beyond; f Paragraph 5: further judicial remedies to accomplish the goal (eg. South Africa case) #10 The committee is of the view that minimum core obligation to ensure the satisfaction ofThis for example a State party in which any significant number of individual Is deprived of essential foodstuffs. #13 and #14 A final element of Article 2(1) : maximum available resources is not just the State but also the international community to step in if the country doesnt have the resources itself This is part of the minimum core obligations of a country regardless of their resources and must make available to your population once they are available w/o discrimination Right to Health does not mean the right to be healthy

Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health (Article 12) pg - 1412 #12 (a) Availability, Accessibility/Affordability, Acceptability, Quality Article 12.2(c) The right to prevention, treatment and control of diseases: pg 1414 #30: General legal obligations: respect, protect, and fulfill #34 The obligation to respect #35 The obligation to protect #36, 37 The obligation to fulfill Core Obligations #43 a-f; #44 comparable priority #53 every state has a margin of discretion in assessing which measures are most suitable to meet its specific circumstances (seems like this is lessening the obligations by giving the State discretion) then says the covenant however clearly imposes a duty Remedies and accountability #59-62 2. Benchmarking and Progressive Realization pg 1423 main way nations can get more aid; the UN Development Program has also encouraged the use of benchmarks as a means of furthering human development w/in the human rights framework pg 1424 Office of the High Commissioner 3 types of indicators : structural, process and outcome pg 1425 C. The Right to Health 1. The Right to Health Under International Human Rights Instruments ICESCR Article 12 pg 1426 2. South Africa: pg 1424 Constitution itself provides for the right to health Includes limitations clause to the rights Soobramoney v. Minister of Health (KwaZulu , South Africa) pg 1429 41 yr old unemployed man w/ irreversible chronic renal failure and heart disease; wants dialysis; notes that if have heart disease not eligible for kidney transplant; will die; province of KwaZula Natal has made decision that b/c of limited resources w/ only x # dialysis machines there has to be a possibility that you will be healthy and eventually get off the machine; thus b/c have heart disease and will die anyway, not eligible; #29 a court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters Consistent w/ the Constitutions limitations on right to health Minister of Health v. Treatment Action Campaign pg 1434 Govt. had program that was limited b/c #42 provision was made in the protocol to reduce mother to child transmission of HIV Drug works but mother must not breastfeed so program training was focused on preventing this Govt. set up 18 pilot sites where they provided the drug and the personnel to train and bottled milk for alternative to breastfeeding Issue was the drug was given to govt. for free for 5 years and the pilot was only for 2 years at pilot site; others would not get the benefit; was very limited and most dont have access to the pilot sites Court said there was no cost to the SA government to have the drug since it was free; required every mother should have access to the drug Cite Minimum core pg 1436;

 Cite Grootboom case- negative obligation not to impose a burden that would mean a vast majority of women would not have access to the drug #57-65 why important to give to all mothers; #59 Exam Prep site correctly to cases in general eg. DR v. Congo, specific part of the charter and which specific charter take practice exam EMAIL THE EXAM to snyder@law.edu; write on exam or email what time it was downloaded; 3hours to submit from when opened Read the whole exam through first before writing\ 12 short answer questions 5 minutes each 3 short essays 15-30 minutes each Review Model Answer USE CASE EXAMPLES