HUMAN RIGHTS

Prof David K. Linnan

USC LAW # 783

Unit 14

COMPARISONWESTERN (ANGLO-AMERICAN VS

CONTINENTAL) VS ASIAN OR DEVELOPING COUNTRY VIEWS

We do first a summary presentation on human rights mostly from US viewpoint

Thereafter, please view Prof. Harkristuti Harkrisnowo for the Asian or developing country human rights viewpoint (asking yourself where the differences lie)

INDIVIDUAL RIGHTSTRADITIONAL INT’L LAW VIEWS AS BACKGROUND

1. States as sole subjects, with personality

2. Mistreatment of foreigner considered “insult” of his/her state, so international law claim for injury to foreigner to his/her state derivatively NOT individually (diplomatic protection; “nationality” equates to standing here; but remember, juristic persons not covered)

3. 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

TRAD ALIEN PROTECTIONALIEN PROTECTION STANDARDS AS

SUBSTANTIVE BACKGROUND

1. Denial of justice (vague general physical protection standards for foreigners)

2. Economic protection standards (antidiscrimination, appropriate compensation for foreigners)

3. Arguments re national versus international standards (from consular justice to arguments about consent to local treatment re Calvo doctrine)

POST WW IITWO WW II WATERSHED EVENTS

1. 1945 UN Charter stressing human rights (but following up Atlantic Charter arguably)

2. 1946-47 Nuremberg & Tokyo trials stressing customary law re

aggressive war & crimes against humanity more in human rights terms

HR THREE GENERATIONS1ST, 2ND & 3RD GENERATION RIGHTS

1. Civil & Political (negative against state)

2. Economic & Social (positive claims for support)

3. Group rights as to development (issue of obligations between

rich & poor states)

US VIEWSUS RIGHTS VIEWS

1. Strong proponent civil & political, view economic & social as merely

aspirational, opposition to group rights traditionally

2. US has been generally reluctant to enter into human rights treaties itself, but pursues other states as with State

Department’s annual human rights reports, etc.

3. US has resisted judicialization of human rights most recently as with ICC

REALIZATIONCONCEPTS

1. Modern concept is that “normal” human rights are a domestic concern, but that “grave

violations” rise to level of int’l concern

2. Modern arguments both on substance of rights and on their enforcement (quiet state-to-state vs embarassing ECOSOC vs loud int’l judicial proceedings like ICC)

3. Universal jurisdiction or similar enforcement before municipal courts (e.g., ATCA &

now defunct Belgian statute)

4. Now regional courts & conventions as with European Human Rights Convention,

Inter-American and now African systems

THEORETICAL BASIS IWHAT IS THEORETICAL BASIS OF HUMAN

RIGHTS LAW?

1. Natural law claims/revival (jurisprudence plus secular versus religion issues)

2. Positivist theory (constitutions, etc.)

3. Cultural relativism theory (Western or modernist construction)

THEORETICAL BASIS IIWHAT IS THEORETICAL BASIS OF HUMAN

RIGHTS LAW? (CONT’D)

4. Positive/negative restraints on govt (political theory)

5. Collective rights/duties (communitarianism theory, but issue

whose rights)

6. Dialectical theories (issue re Marxism, integralism & UUD 1945 in Indonesia)

SOURCES ISSUESWHAT ARE SPECIFIC INT’L LAW SOURCE ISSUES?

1. Issues re sources doctrine, general principles versus customary law formation questions

2. Positivistic treaty claims (eg, UN Charter preamble “to reaffirm faith in fundamental human rights” plus article 55)

3. Re school of int’l law, NGO functional connection so who makes law issues in background

LEADING ISSUES ICURRENT LEADING ISSUES IN HUMAN

RIGHTS LAW

1. 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)

2. Universal standards versus regional or lower standards as for developing countries (cultural relativism arguments)

LEADING ISSUES IICURRENT LEADING ISSUES IN HUMAN

RIGHTS LAW (CONT’D)

3. 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)

4. Enforcement issues, meaning universal jurisdiction to enforce before domestic courts (eg, Belgian statute, Alien Tort Claims Act) plus ICC, not much on protocols re individual claims

LEADING INSTRUMENTS ILEADING HUMAN RIGHTS LAW INSTRUMENTS

1. Universal Declaration of Human Rights (1948)(mixed)

2. Covenant on Civil and Political Rights (1966)(so-called first generation rights)

3.Covenant on Economic, Social and Cultural Rights (1966) (so-called second generation rights)

LEADING INSTRUMENTS IILEADING HUMAN RIGHTS LAW INSTRUMENTS

(CONT’D)

4. 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)

5. Now some regional instruments too, ie European Human Rights Convention, but also often with enforcing tribunal attached

6. Whole string of newer UN sponsored substantive treaties, often 2nd generation claims as Convention on the Rights of the Child (1989), Convention on the Elimination of All Discrimination Against Women (1979)

LEADING INSTRUMENTS IIILEADING HUMAN RIGHTS LAW INSTRUMENTS

(CONT’D)

7. Current arguments about “indigenous rights”, often mixing environment & human rights claims under new declarations as emerging law claims, remembering CIEL paper & unit 3 sources arguments plus relative conservatism, for example of Supreme Court in Sosa case

IN PRACTICE, SEEMINGLY DECREASE IN UNIVERSAL RECOGNITION AS GO DOWN THE LIST, LINKED WITH CLAIM THERE WERE EARLIER HUMANITARIAN LAW INSTRUMENTS IN PARTICULAR PLUS MINORITY PROTECTION TREATIES REACHING BACK LONG BEFORE POST-WW II MODERN INSTRUMENTS

UN BILL OF RIGHTS ILOOK TO SO-CALLED UN BILL OF RIGHTS

(UNIVERSAL DECLARATION & TWO COVENANTS) TO PICK OUT SPECIFIC RIGHTS

1. What of more general question whether rights analysis is suitable to address int’l law

problems like globalization, distributive justice, etc.?

2. Shadow focus on individuals getting away from traditional focus on law between states?

3. 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

UN BILL OF RIGHTS IILOOK TO SO-CALLED UN BILL OF RIGHTS (UNIVERSAL

DECLARATION & TWO COVENANTS)

Int’l Covenant Civil & Political Rights

Art 6 Deprivation of lifeArt 7 TortureArt 8 SlaveryArt 9 Liberty & personal securityArt 10 Criminal justice (presumption of

innocence, etc.)Art 12 Liberty of movement

UN BILL OF RIGHTS IIILOOK 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 proArt 17 Privacy, family, home, honorArt 18 Freedom of thought, conscience &

religionArt 19 Freedom of expressionArt 21 Peaceful assemblyArt 22 Freedom of association

UN BILL OF RIGHTS IVLOOK 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 associationArt 23 Family & marriageArt 24 ChildrenArt 25-27 citizen participation, equality

before law, minority protection

UN BILL OF RIGHTS VLOOK TO SO-CALLED UN BILL OF RIGHTS

(UNIVERSAL DECLARATION & TWO COVENANTS)

Int’l Covenant Economic, Social & Cultural Rights

Art 6 Right to workArt 7 Labor conditionsArt 8 UnionsArt 9 Social security & insuranceArt 10 Family, children & motherhoodArt 11 Adequate standard of living, etc.Art 12 Physical & mental healthArt 13-14 EducationArt 15 Science & culture

US VIEWS CUSTOMARY LAWUS VIEWS OF (CUSTOMARY) HUMAN RIGHTS LAW

Restatement (Third) Sec. 7021. genocide2. slavery3. murder/disappearance4. torture5. arbitrary detention6. systematic racial discrimination7. gross violations of internationally recognized

human rights

Are these first, second or third generation rights?

FOREIGN POLICY EMPHASIS ON CIVIL SOCIETY, MEANING NGOSs PLUS, & DEMOCRATIZATION

REGIONAL LAW VIEWSREGIONAL HUMAN RIGHTS

INSTRUMENTS/SYSTEMS

1. European, Inter-American and African

2. Why no Asian?

3. Why US reluctance to participate in any international system?

4. Indonesian views pre/post 1998?

ENFORCEMENT IHOW TO ENFORCE HUMAN RIGHTS AND

CONTROVERSIES

1. Political versus legal enforcement

2. National versus international enforcement (courts)

3. Regional versus general international (courts)

4. 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

ENFORCEMENT IIHOW TO ENFORCE HUMAN RIGHTS AND CONTROVERSIES

(CONT’D)

5. UN human rights structure particularly on ECOSOC side with various reporters/high commissioner

6. On human rights side, if looked at Int’l Covenant on Civil & Political Rights would see under art 40 ECOSOC report of states parties, art 40 optional jurisdiction on state to state basis & art 1 optional protocol on individuals bringing claim against statea. Prob is state to state & optional protocol

essentially deadletter, with claims more on a state to state basis and via UN rapprteursb. Nothing comparable in scope to NAFTA

Chapter 11 proceedings, instead with higher profile individual efforts typically under, for example, ATCA but there against individuals rather than state