106 SUBJECTS & OBJECTS OF INTERNATIONAL Pt. 2
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Bederman, David. (2010). Human Rights. In International
law frameworks. New York: Foundation Press.
Edited by B. Kardaras
Human Rights
Fully explicating the international law of human rights would take its own book. Indeed, human rights law has defined itself as a special aspect of international law—something more than a subdiscipline, but not quite a complete body of law in its own right. Heavily influenced by domestic principles of constitutionalism and civil rights, international human rights offers unique perspectives. The study of individuals’ rights as against their own States of nationality is not, however, separate and apart from the wider sweep of international law. Basic elements of State identity and sovereignty, international organization, and the incorporation of international law into domestic law all factor into the practice of human rights. And, indeed, the best practitioners and advocates of international human rights are those with the strongest grounding in the “traditional” teachings of public international law.
A. Substantive Aspects of Human Rights Law
The first authentic human rights regime was established by the Treaty of Versailles, which ended the First World War in 1919. Under the Treaty, the boundaries of Europe were extensively redrawn and substantial minority populations were displaced or found themselves under unfamiliar sovereigns. For example, the recreation of the State of Poland left millions of ethnic Germans residing in its territory. New States created in the Balkans (including Yugoslavia and Hungary) also had substantial populations of people who did not share linguistic or ethnic identity with the dominant group. At the same time, it was recognized that a government’s mistreatment of minorities could result in strife and be a potential cause for war. Needless to say, the minorities situation was a recipe for disaster.
The solution adopted in the Treaty of Versailles, and then subsequently enforced by the League of Nations and the Permanent Court of International Justice, was a series of guarantees entered into by States in central and eastern
Europe to protect the rights of minority groups resident in their countries. Poland, Lithuania and Romania were particularly required to respect the rights of their respective German and Hungarian minority populations. In a broad sense, these agreements recognized and validated human rights, but only as exercised through groups and collectives. The rights guaranteed were those to educate minority children in special schools, or to continue to use the minority language, or to exercise special forms of political autonomy.
Predictably, these were incredibly contentious issues during the inter-War years, as “majority” groups chafed at what were perceived to be special rights granted to economically-affluent minorities. At the same time, Germany aggressively sought to protect the rights of its “diaspora” peoples. Nearly a third of all the litigation before the World Court between 1920 and 1939 involved some aspect of the protection of minority rights in Europe, with Germany suing Poland nearly a dozen times. Yet, despite the concern and involvement of the international community, the minorities issue was, of course, the ultimate ground cited by Nazi Germany for its invasion of Poland on September 1, 1939—the event that sparked World War Il in Europe.
As already discussed, the Second World War marked the ultimate transition of international law from a system dedicated to State sovereignty to one also devoted to the protection of human dignity. This new paradigm was recognized in the Charter of the United Nations, signed by the victorious Allied powers in 1945. For the first time, an international agreement linked human rights with world order. Charter Article 55(c) called for “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex,
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language or religion.” The following article vested the U.N. with the power to “take joint and separate action” to accomplish that objective.
Articles 55 and 56 of the U.N. Charter have been regarded as “enabling” provisions, authorizing the Organization to proceed with developing human rights norms. The U.N. Charter has not itself been viewed as prescribing specific rules that States must follow in the treatment of their own citizens. For example, the Supreme Court of California concluded in 1952 1 that the Charter provisions lacked the necessary mandatory quality and definiteness that would indicate an intent to create enforceable rights in the United States. (That Court nevertheless struck down the state law at issue—prohibiting land ownership by aliens—on other grounds.) This interpretation of the Charter’s human rights provisions has, at least implicitly, been endorsed by the U.S. Supreme Court.2
Shortly after 1945, the United Nations faced the task of pronouncing human rights norms. Its first effort produced one of the great documents of international law: the 1948 Universal Declaration of Human Rights. Drafted by a blue-ribbon panel of intellectuals and advocates (led by Eleanor Roosevelt), and with the input of national delegations, the Declaration is lucidly worded. Each provision rings with authority and certainty. Article 1 proclaims: ‘ ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Article 3 says simply and unqualifiedly: “Everyone has a right to life, liberty and security of person.
The thrust of the Universal Declaration was primarily the enunciation of civil and political rights—those freedoms necessary for individuals to operate within a
1. See Fujii v. California, 38 Cal.2d 718 (1952). 2. See Oyama v. California, 332 U.S, 633 (1948).
polity. The Declaration proclaims such civil liberties as freedom from slavery and torture, the right to recognition and equality before the law, freedom from arbitrary arrest and the guarantee of fair criminal procedures, and respect for rights of worship and expression. Also included are rights of participation in the political process. In addition to these “first generation” of civil and political rights, the Declaration also prescribes some “second generation” economic and social rights. These include the right to work, to rest and leisure, to education, and to participation in cultural life. Article 23(2) further mentions the right of everyone for “equal pay for equal work,” the first mention of that concept in any document.
The reason that the Declaration could be adopted by consensus, despite controversial provisions, was that it was understood by all that it was not a binding legal instrument. Perhaps the first recorded example of a multilateral “soft” law instrument, the Declaration specifically indicated in its preamble that it was ‘C a common standard of achievement,” something to be “strive[d]” for by national governments through “progressive measures,” The United States issued a statement after the Declaration’s adoption which noted: “It is not a treaty; it is not an international agreement. It does not purport to be a statement of law or legal obligation.” 3
As already noted, “soft” law has a tendency, over time, to harden into international legal obligation. Over fifty years later, virtually all of the provisions of the Universal Declaration concerning civil and political rights have come to be recognized as human rights norms in customary international law or in other multilateral instruments. Perhaps just as importantly, the high tone and moral authority of the Universal Declaration set an important benchmark in subsequent international discussions and negotiations about human rights.
3. 19 DEP’T STATE BULL. 751 (1948).
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It still remained, however, to turn the aspirations of the Universal Declaration into ‘ ‘real” and “binding” legal instruments. This process developed on two fronts: through global treaties establishing universal norms and through narrower regional regimes. Considering first the universal human rights treaties, the next major landmarks are the 1967 International Covenants. Certain authoritarian and totalitarian regimes…were opposed to the binding rules granting enforceable civil and political rights to their nationals. This “first generation” of human rights was regarded as threatening to these countries. By the same token, some Western nations, particularly the United States, were wary of the “second generation” economic, social and cultural rights. This requires some explanation. In the constitutional culture of the United States, the prevailing attitude was (and still is) that the purpose of rights is to insulate and protect people from government power. The only right that makes sense is one that places restrictions on government action against individuals. Second generation rights are, in essence, requirements that government provide certain benefits and services to the public (such as education, work, social security, or culture), and this was deemed incompatible with a system of ordered liberty. Governments might (as a political necessity) provide such public goods, but they are not legally required to do so.
So it was that in 1967 the United Nations adopted two instruments: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The decision to bifurcate these multilateral human rights instruments was fateful. The ICCPR has approximately 152 parties today; the ICESCR about 149. Even so, the record of observance and enforcement of these agreements has been mixed. The ICCPR has been regarded as the more specific in its obligations and the more burdensome for governments.
It took the United States until 1992 to complete ratification of the ICCPR. A number of provisions in the ICCPR were regarded as intensely controversial by subsequent administrations and the U.S. Senate (the role of which in the ratification process is discussed in Chapter 15). The United States thus took reservations to a number of provisions in the ICCPR.4 Article 6(5)’s prohibition of the death penalty for those who commit crimes as juveniles was one such clause. (The U.S. Supreme Court recently struck-down the death penalty for juveniles.5
All of this suggests that universal human rights standards are rather precarious when it comes to their incorporation into domestic legal systems. Those nations that have no intention of being legally bound to protect the rights of their nationals will simply not sign such treaties as the ICCPR. Those that have well-established legal cultures for protections of civil rights will recognize international duties, but only to a comfortable limit. Given the objections of the United States to the ICCPR, it is no wonder that it has categorically refused to ratify the ICESCR, what with its provisions enshrining the right to work (Articles 6 and 7), unionization (Article 8), social security (Article 9), and maternity leave (Article 10(2)).
In addition to the Covenants, there is also a body of universal human rights instruments dedicated to specific issues. The topic areas include the abolition of genocide, racial discrimination (including slavery and apartheid) and torture, forced labor and exploitation, the status of refugees, and the rights of women and children. These subject-matter conventions in essence overlap with the broader protections granted by the ICCPR. Thus many countries that have chosen not to become a party to ICCPR have consented to be bound to these specific treaties. By contrast, the United States has only ratified a handful of these instruments: the 1948 Genocide Convention, the
4. See 138 CONG. REC. S4781 (April 2, 1992). 5. Roper v. Simmons, 543 U.S. 551 (2005).
1926 Slavery Convention and its Protocols, the 1968 Status of Refugees Protocol, the 1984 Torture Convention (much in the news recently with accusations of U.S. mistreatment of terrorist suspects in Iraq, Afghanistan, Guantanamo Bay, and elsewhere), and the 1979 Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). In addition to this list, the United States has ratified a number of treaties involving labor rights and practices, negotiated by the International Labor Organization (ILO), a U.N. specialized agency based in Geneva.
In all of this discussion of universal human rights treaties, it is easy to assume that customary international law has receded in significance. To do so would be a mistake. As already noted, many countries fail to ratify human rights instruments or take decades to do so. It has come to be regarded that those States which have engaged in a systematic policy of abusing the rights of their citizens—including genocide, extrajudicial killing, enslavement, torture, prolonged or arbitrary detention, or racial or gender discrimination—have committed a violation of customary international law norms. Likewise, as was discussed in Chapter 3, certain customary human rights norms (such as the prohibition against genocide, slavery and torture) have become jus cogens obligations which cannot be derogated by treaty.
These difficulties have only been partially resolved in regional human rights systems. Just as the end of the Second World War saw the advent of interest in universal human rights, so too were regional human rights bodies developed. The first of these was in Europe, with the creation of the Council of Europe in the late 1940’s- The Council included as members all countries in Western Europe (even such micro-States as San Marino and Monaco). As the Cold War abated, the Council’s membership came to embrace all of central and eastern Europe, the former Soviet Union (including some central Asian nations), and Turkey. In the Western Hemisphere, the Organization of American States (OAS), headquartered in Washington, D.C., developed a human rights regime starting in the 1950’s. Last on the scene, the Organization for African Unity (OAU), now the African Union, fashioned a regional human rights system in the early 1980’s.
The first and most obvious points about regional human rights systems is that they are only as strong and effective as the region’s underlying unity and commitment to democracy and individual rights. Although international law (in general) and human rights (in particular) need not be tied to a particular political system, the reality is that human rights regimes can only flourish in representative democracies.
It would be mistaken to believe that regional human rights systems “compete” in some fashion with universal human rights norms. Nations that adhere to a regional system are more likely to ratify universal instruments, and, in a very concrete way, the two systems are mutually-enforcing. Regional human rights conventions can describe some human rights with a greater particularity and specificity than universal instruments. This is partly attributable to a more achievable consensus on regional values (think of the problem of canvassing general practices accepted by “civilized nations.”
Protocol 6 to the European Convention bans the death penalty, except during times of war (that exclusion was eliminated in a 2002 Protocol to the European Convention). Virtually all European nations have ratified that Protocol, the exceptions being the United Kingdom and Turkey (both of which are fighting insurgency movements and thus desire to reserve the right to impose death sentences against convicted terrorists). The jurisprudence of the European Court of Human Rights has tended to expand even further the ambit of rights granted under the treaty. A decision in one case graphically illustrated the conflict between different regional standards of human rights. In the Soering Case, 6 the petitioner was a German national who had been a college student in the United States. Jens Soering was suspected of aiding his
6. Soering v. United Kingdom, 11 Eur-H.R. Rep. 439 (1989).
girlfriend in murdering her parents in Virginia. They fled to England, were arrested on unrelated charges, and were sought for extradition by the Commonwealth of Virginia- The Commonwealth indicated that it would seek the death penalty for Soering. After futilely attempting to avoid extradition to Virginia by petitioning British authorities, Soering invoked the European Convention on Human Rights.
His argument was strikingly novel. He submitted that if he were extradited to Virginia, he would be subjected to “degrading treatment,” prohibited under Article 3 of the Convention. The treatment Soering feared was not the carrying-out of a sentence of death. After all, Britain had never agreed to Protocol6 , so if the U.K. could have executed Soering for some crime, it could not be faulted for sending him somewhere he could be. Rather, the Court ruled that Soering would be subjected to the psychological debilitation (that is, “degrading treatment”) of incarceration on Virginia’s death row, waiting many years for his sentence to be carried out. The Court ruled that Britain was under an obligation not to remove an individual from the “protective zone” of the European Convention and not to send him somewhere he would be ill-treated in violation of the treaty. Britain was thus forced to choose between its participation in the European Convention and its bilateral extradition treaty with the U.S. (This was ultimately resolved by Virginia later indicating that it would not seek the death penalty in Soering’s case.) Nevertheless, a signal strength of human rights law is the regional human rights systems. The extensive jurisprudence generated by both the European and Inter—American institutions gives substantial content to the general language of the human rights treaties. This is particularly so in very high-profile cases (such as Soering), and in response to developments that are antithetical to democratic values and human dignity. The Inter—American Court took a strong stand against the use of “death squads” and the supposed impunity of authoritarian regimes during a dark time in that region’s history.7
At the same time, many regional institutions have been moving towards recognition of new classes of human rights. Among these are “third generation” rights to peace, development and environment—all recognized in the 1982 African Convention (Banjul Charter). In addition are ‘ ‘new” kinds of rights held by groups, and not individuals. Suggested protections for distinct ethnic groups and indigenous peoples harken back to the “minorities” conventions of the inter-War period in Europe.
B. Enforcement of Human Rights Norms
International law has been quite successful in enunciating a large body of rules for how States should treat their own citizens. It has been rather less fortunate in developing truly effective enforcement of those norms. Nonetheless, substantial attempts have been made to fashion different sorts of enforcement mechanisms for human rights. It is worthwhile to review these models of human rights enforcement.
Model #1—The Slavery Conventions. Beginning in the 1820’s, and culminating in the 1926 Convention, the international commu nity banned slavery and the slave trade. The enforcement method selected in these multilateral instruments was to require all States to take measures to suppress slavery and slave institutions, to release persons found in bondage, and to prosecute those found to be engaged in these activities. In essence, these treaties imposed an international duty on all States and, at the same time, prescribed universal jurisdiction allowing
7. See Velazquez—Rodriguez Case, In- (1988), reprinted in 28 1-L.M. 291 Inter-Am. C.H.R., OENser.C./ Case 4 (1989).
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any State to prosecute any individual suspected of being engaged in the slave trade, even if that person is a national of another State. This model, repeated for a handful of other offenses involving human rights obligations, depended solely on the commitment of States Parties to these conventions.
Model #2—The Genocide Convention. The 1948 Genocide Convention was the first multilateral human rights treaty concluded after the Second World War. Negotiated in the shadow of the Holocaust, it recognized
that State sovereignty and State power could be perverted to the ultimate evil: the wholesale murder and destruction of entire ethnic, linguistic or religious groups. The Genocide Convention replicated the formula of the slavery conventions by making genocide an international crime within a form of universal jurisdiction. States Parties to the Genocide Convention are required to pass domestic laws that will punish offenders. Some have done so irrespective of the perpetrator’s country of nationality or the place where the crimes occurred. (The United States’ implementation of the Genocide Convention8 is limited to offenses occurring in the U.S. or the conduct of U.S. nationals.)
The Genocide Convention went on to specify two other mechanisms for enforcement. Recognizing that acts of genocide could be part of a broader pattern of aggressive conduct by States, or (at a minimum) indicative of a breakdown of international peace and security, Article 8 of the Convention allows for the referral of suspicions of genocide to the U.N. Security Council. The Council can then take whatever enforcement action (under Chapters 6 and 7 of the U.N. Charter) it deems best. The Genocide Convention’s model of enforcement, to the vast extent that it depends on Security Council action or an ICJ ruling, requires an extraordinary degree of international
8. 18 U.S.C. s 1091.
consensus in the face of genocidal conduct by other States. Model #3—The International Civil and Political Rights Covenant. The 1967 ICCPR inaugurated a number of new approaches to the enforcement of human rights norms. One of these was Article 40’s requirement that States Parties submit to the United Nations Human Rights Committee regular reports of their compliance with the Covenant. This not only promotes “transparency” of what States are doing to protect human rights, but also provides an opportunity for what human rights advocates call the “mobilization of shame”—the systematic spotlighting of certain countries’ human rights abuses, so as to pressure them to change.
Model #4—European Convention on Human Rights. The European Convention has evolved the most sophisticated procedural mechanisms for adjudication of human rights disputes, at least under an international scheme. When created in 1950, the Convention institutions included (1) a Council of Ministers (a political body that conciliated disputes); (2) a Human Rights Commission (which served as an investigator and filter for human rights complaints); and (3) a Court of Human Rights (which actually adjudicated human rights cases). This structure has recently been streamlined to accelerate proceedings and to lessen the role of the Commission.
The European Convention institutions were given the power to hear inter-State complaints, as well as those brought by individuals against their own States of nationality. Unlike the experience under the ICCPR, inter-State complaints in the European system have been quite
common, with a long-running series of cases (from the 1950’s to 1970’s) pitting Ireland and the United Kingdom in matters regarding human rights questions arising from Ulster. As a consequence, the case law of the European Court of Human Rights is vast, amounting to over a thousand decisions to date. The Court has explored
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virtually every aspect of criminal procedure in every European nation and has issued opinions on contentious
issues of linguistic and ethnic rights, as well as privacy and free speech.
Model #5—Enforcement in National Courts. With all of this discussion of international and regional human rights institutions, it is easy to forget that the primary means of enforcing any human rights norm has to be through domestic legal institutions. To a surprising degree, many States have been slow to incorporate international human rights standards into their domestic law.
The United States has a mixed record on this score. Relying on its own domestic constitutional culture, the U.S. rarely acknowledges international law influences. One exception might be the tacit adoption of the United Nations’ 1955 Standard Minimum Rules for the Treatment of Prisoners, which is sometimes cited in prisoners’ rights litigation. In the same manner, the 1968 Protocol on the Status of Refugees has been invoked as part of U.S. immigration law.
Yet, despite this reluctance to use international human rights standards, the United States is the leading venue for private human rights litigation in the world. The vehicle for this is an obscure statute, passed by the First Congress in 1789, which provided that U.S. courts would have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 9 This is known as the Alien Tort Claims Act, or (more simply) the Alien Tort Statute (ATS). This statute has been held to apply not only to violations of customary international law, but also treaties to which the United States is a party without reservation.
9. 28 U.S.C. 1350.
After lying dormant for nearly 200 years, in a landmark case— Filartiga v.Pena-Irala10 it was interpreted to mean that if a foreign plaintiff can show an injury caused by a tort “committed in violation of the law of nations,” then U.S. courts could provide relief. The plaintiffs in that case had been victims of State-sponsored torture in Paraguay. They fled from that country, settled in the United States, and later found their torturer as an illegal alien in America. In a bold gambit, the Filartigas’ lawyers argued that because torture was recognized as a violation of international law, jurisdiction was proper in U.S. courts. The Filartigas later recovered civil damages from their tormentor.
Filartiga has spawned a wide body of human rights litigation in the United States, involving disputes as varied as Ferdinand Marcos’ political abuses as former president of the Philippines, mass rapes committed by Bosnian—Serb forces
in the former Yugoslavia, genocides in Rwanda, political oppression in Ethiopia, and arbitrary detentions of individuals in Bolivia and Haiti- What these all had in common was a showing that the underlying conduct violated international law. In a significant 2004 decision, Sosa v. Alvarez—Machain,11 the U.S. Supreme Court upheld the application of the ATS in human rights cases, but with some vital caveats. The Court required that the alleged norm of international law violated by the defendant had to be shown as sufficiently definite and established, and not speculative. (In this case, an arbitrary detention, lasting less than a day, was held to be an insufficient violation of the law of nations.) So long as personal jurisdiction can be acquired over the defendant, these human rights cases can proceed in U.S. courts.
There have been suggestions, though, that the United States is not an appropriate forum for these human rights cases occurring in other countries, owing to domestic
10. 630 F .2d 876 (2 Cir. 1980).
11. 542 U.S.692 (2004).
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constitutional limitations on such litigation or because of American “arrogance” in applying its own standards to such cases. Nevertheless, the trend has been toward other countries opening their courts as well to such matters. In Europe, the approach adopted has been to allow criminal prosecutions for human rights abuses. (Belgium had, until 2003, a statute that permitted the exercise of universal jurisdiction for human rights abuses anywhere in the world, and Spain has allowed
for similar prosecutions in cases involving Spanish victims.) The recent, well-publicized case brought by Spanish prosecutors against former Chilean head-of-State, Augusto Pinochet, was of this sort. In a very significant decision,12 the British House of Lords ruled that Pinochet had no immunity from extradition and subsequent prosecution for human rights abuses committed by his government after Chile had agreed to be bound to particular human rights norms. (The British government later declined to extradite Pinochet to Spain, ostensibly on grounds of his ill-health.)
All indications are that domestic enforcement of human rights norms—even for conduct occurring outside the forum State and not otherwise involving its nationals—will increase. This enforcement model, combined with international criminal institutions (such as the Yugoslav and Rwanda War Crimes Tribunals, as well as the new International Criminal Court will have a deep impact on the vindication of human rights norms.
Model #6—Direct Action by States. Before leaving this subject, it is worth remembering that States unilaterally and collectively punish other countries involved in human rights abuses, often without recourse to international law institutions. This raises, of course, a key tension in international law: between enforcing human rights and protecting State sovereignty.
12. R. v. Bow Street Magistrate, Ex W.L.R. 827 (H.L.) (U.K.).Parte Pinochet Ugarte (No- 3), [1999] 2
Some examples of unilateral human rights enforcement actions undertaken by States are fairly innocuous. A nation might decide to break-off diplomatic relations with a human rights offender, and periodically the United States has pursued such human rights “public diplomacy.” Financial and economic restrictions might also be involved in these
situations, including the nearly decade-long period when the U.S. imposed trade sanctions against the white dominated government of South Africa.
But the real collision between a world public order based on human rights and one premised on State sovereignty arises with the phenomenon of humanitarian interventions. A humanitarian intervention occurs when one nation (or a group) unilaterally invades another country in order to alleviate or stop human rights abuses by that government.
How this ultimate enforcement mechanism of human rights norms (the physical invasion of the offending State and the removal of an abusive government) can be reconciled with other international law rules promoting international peace and security is perhaps an unsolvable riddle in international law today. Whether a doctrine of humanitarian intervention can be substantively defined (exactly how bad does the human rights situation have to be to warrant invasion?), whether it can be effectively limited to United Nations political action, and whether it actually produces favorable human rights conditions, remains to be seen.
What is certainly true is that, in very recent years, a “critical mass” of human rights enforcement models, along with a new international consensus on the need for effective implementation, may have finally created a favorable climate for human rights protections. It may be a combination of more effective international human rights institutions, more timely complaint processes, more vigorous domestic human rights litigation, or more muscular and forcible international insistence that States respect human dignity. Only time will tell.
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