Human Rights

Critiques: Feminism

o Discrimination on the basis of sex has been a focus since the Charter o Sex discrimination was ignored for long periods o Human rights are gendered - women exist largely in the private sphere while men in the public sphere. Rights are largely concerned with the public sphere Ex. domestic violence: law deals with people being beaten up by the police vs. people being beaten in their own homes Human rights focused on what states are doing, not the private sphere

Hard vs. Soft Law

• Hard: real law, binding • Soft: not binding but is persuasive • Customary law is hard law

Korolev v. Russia:

*Admissibility case • Russian courts failed to pay Korolev all of the amount owed to him by domestic courts violation of Art. 6 rights of convention and Art 1 of Protocol No. 1 o Tiny, negligible amount of loss: 22.50 roubles (about 70 cents) • Court claimed he did not suffer a significant disadvantage o Yes there was a violation here, but it's a violation of 70 cents worth - court shouldn't have to invest mass sums in this case o Such a tiny amount owed o Subjective feeling did not rise to the requisite level • However, court may continue examination in absence of significant damage if respect for human rights requires o But they found that HR does not require further examination o The issue of Russia failing to enforce judgments is nothing new, and the court has already ruled on this • The case was found inadmissible even though he exhausted domestic remedies because no significant disadvantage and HR does not demand further review • Policy question: Should the court do this? Or should it hear every human rights case?

ICESCR: relevant provisions

2: State undertakes to take steps individually and through international assistance and cooperation. . . to the maximum of its available resources, with a view to achieving progressively the full realization of rights o Programmatic and promotional in nature - incremental, benchmarks o CESCR Gen. Comment N. 3, regarding Art 2 of the Covenant --> Include both obligations of conduct and of result --> Allow for progressive realization --> judicial remedies should be immediately applied --> Minimum core obligations exist, including a duty to assist 4: General limitations clause. o State may subject the rights only to such limitations as are determined by law only insofar as may be compatible with nature of the rights and solely for purpose of promoting general welfare in democratic society No express obligation for state to provide remedies (unlike ICCPR 2.3)

US Constitution and Human Rights

3 features of Constitution: federalism, separation of powers, individual rights Bill of Rights o Natural rights: freedom of speech and religion o Right to jury: not necessarily a natural right, but so necessary to protect natural rights Constitutional interpretation o Modern values/ evolutive interpretation/ Living Constitution: Constitution needs to keep up with the times Human rights law o To comply with human rights law you don't have to put it in the constitution State action doctrine: defines almost all constitutional rights as rights against misuses of government power but not purely private misconduct

S.A.S. v. France (Part II): facts and issues

Facts: • A French national and devout Muslim wants to wear a burqa and niqab in accordance with her faith • She was not pressured into wearing it by her family • Wanted the freedom to wear it when she wanted • French law prohibits anyone to conceal their faces in public places o The text is neutral - not explicitly targeted at religious practice What rights are involved in this case: • Manifesting religion (Art 9) and arbitrary interference with private life (Art 8) • The idea is that one has the freedom to practice religion and the freedom to dress freely as one chooses o Is this persuasive? Is Art 8 a good alternative?

Konaté v. Burkina Faso (African Ct. Human & People's Rights, 2014): holding

Admissibility - court found no jurisdiction defect o Naming error for the state is minor and not a ground for inadmissibility o Journalist status: Konate was arrested and convicted as a journalist for his journalistic work - not a ground for ruling inadmissible o Burkina Faso argued that the error in its name (application gave the wrong name of the country) is disparaging and insulting Disparaging language under Art 56 of Charter is language that pollutes the mind, casts aspersions on and weakens public confidence on the administration of justice Here, no proof that this naming amounts to this o Also argued no admissibility for failure to exhaust local remedies True, but country failed to prove there was sufficient internal laws that provided effective and sufficient remedies for victims Merits o Arts of Penal Code being challenged: 109: any allegation of fact that undermines the honor or image of a person or profession amounts to defamation 110: defamation committed against the Court's Tribunals, Armed Forces, or States officials shall be punished via imprisonments 178: Imprisonment when there is contempt for a public official in writing with the intent to tarnish image and honor o To see if there are violations of Art 9, look to see if there was a restriction provided by law, if it served a legit purpose, and if it was necessary to achieve the set objective o Provided by law: law must be clear HRC defines law as norms with sufficient clarity Here the laws are clear o Legit purpose: all rights shall be exercised in respect of the rights of others, collective security, morality, and common interest" Protecting the honor and reputation of a person or a profession perfectly fits within this legitimate objective o Necessary to achieve the set objective: requiring criminal sanctions is a disproportionate sanction in view of the interest that the state is meant to protect Proportionality an important consideration for the ICCPR, HRC, ECHR and IACHR Another important consideration is the status of the target of the defamation - is the person a public figure or not? Public figures are expected to have higher tolerance for public dissatisfaction - should not have more severe sanctions than any other person European Court and IAC - criminal sanctions should only be a last resort o Court holds that the laws violate Art 9 o Further, any custodial sentence relating to defamation is inconsistent with the Charter o Further, the fine and newspaper suspension were both sever and disproportionate to the aim of the government

Reservations and the European Convention:

Art 57 of the European Convention: Reservations of general character not allowed - can only do it to preserve laws you already have and you have to tell Europe what they are o Ex: Switzerland says it's not going to apply certain provisions under Art 6 relating to fair trial; didn't single out which particular laws were being preserved European Court said this wasn't okay Severing the reservation - state is still a party, but doesn't get the benefit it was hoping for Some thought this approach should be applied more generally to human rights

HR critiques: CLS

emphasizes the indeterminacy of law - law hides existing power structures o Reification: treating something as if it exists (taking away someone's rights is the same as taking away someone's car) o Imagined objects simplify the world and take away from a real conversation that can help the disadvantaged o Based on the neo-Marxist idea that we shouldn't care so much about little individual rights that are largely based in property, and care more about true bigger rights that liberate the individual

Kokkinakis v. Greece: holding and law

Holding: Majority finds that this provision is a violation of religious freedom - this is a regulation that openly targets religious conduct The Law: • Art 9 o Freedom of thought, conscience and religion o Freedom to practice in worship teaching and observance o Freedom to manifest limited only by law necessary to protect safety or rights and freedoms of others clawback clause in paragraph 2 - it can be necessary to restrict freedom to manifest one's religion in order to reconcile the interests of the various (religious) groups and ensure everyone's believes are respected • Art 9 conflicts with Greek constitution that proselytizing is prohibited - this is openly a regulation of religious conduct

HRC: states of emergency

o Art 4 of CCPR allows derogation from some human rights obligations in times of genuine public emergency, but also seeks to ensure the continued respect of core rights from which no derogation is permitted o CCPR applies during war o Derogation and clawback clauses

Special Procedures: notes

o Ad hoc appointments of experts and working groups to address thematic issues across countries as well as country-specific mandates o When council was created in 2006, announced intention to improve and rationalize system of special procedures; instead, proliferation of thematic special procedures

Universal Periodic Review: notes

Under GA mandate, run by Council - peer review o ¼ of member states reviewed each year under UN Charter, UDHR, and treaties to which it is a party Reviewed states submit national report Working group open to all member states; interactive dialogue with state before presentation of findings to plenary session During evaluation in plenary session in Council, report presented and state and NGOs have opportunity to comment o Addresses selectivity - all countries participate and are examined o Report at the end of UPR is a scribe's report on what happened HR Council doesn't adopt resolutions, or adopt/endorse any recommendations o Key advantage: universality - all countries reviewed o Disadvantages Little checks for dishonesty - opportunity for friends to congratulate even if you have a bad record Allows a state to puff itself up by saying it participated and accepted some recommendations Opportunity costs: money of UN, attention of HR Council, resources of HR Commissioner

Lautsi: concurrence and dissent

Concurrence: • Court cannot forget the history of a nation • A supranational court cannot unilaterally change a nation's history • Court cannot bully a nation into secularism • Separation of church and state is not mandated • A passive symbol does not amount to teaching Dissent: • No real democratic principle for this law - royal and fascist decrees • Must have state neutrality • Religious symbols are a part of the school environment

Critiques of HR

Cultural relativism, asian values debate, CLS, Feminism

Case study: MOVEMENT TO ABOLISH SLAVERY

Davis, The Problem of Slavery in the Age of Revolution • Slavery was a Christian institution - submission, faith, persistence • 19th Century secular traditions laid groundwork for abolition Anstey, Atlantic Slave Trade • French revolution paved way for anti-slavery movement Temperley, The Ideology of Antislavery • Slavery was foundation of economy and part of everyday life • Necessary to show that Britain and US territories prospered economically without use of the slave trade in order to compel abolition Miers, Slavery and the Slave Trade as International Issues • Britain banned slavery in 1807, so became international question • Brussels Act - anti-slavery agreement • League of Nations attempt to enforce just treatment of all native people • Slavery Convention of 1926 - states will work towards ending slavery

Demir and Baykara v. Turkey (European Court of HR, 2008): facts, issue, holding

Facts • Trade union Tum Bel Sen established to promote democratic trade unionism • Union entered into a collective agreement with the local municipal council • Council failed to adhere to certain aspects o Union sued, lost in court • Union claimed that the courts had denied them the right to form trade unions and enter into collective agreements Issue: Does a denial to enter into collective bargaining constitute a violation of Article 11 Holding: Annulment of the collective agreement was not necessary in a democratic society and thus there was a violation of Article 11.

Gonzales et al. v. Mexico (IA Court, 2009):

Facts: • Dealt with Mexico's non-investigation and ineffective protection of various Mexican women who had disappeared in Jaurez • 260-370 women were murdered in Juarez between 1993-2003 o Most women abducted and kept in captivity; bodies found in empty lots with signs of violence Holding: Violation of Arts 4, 5, 7 in conjunction with Art 1 and 2 of American convention • Irregularities occurred as regards to: the failure to ID the circumstances of the discovery of the bodies, the negligible rigor in the inspection and preservation of the crime scene by the authorities, the improper handling of some of the evidence collected, and the methods used were inadequate to preserve the chain of custody Reasoning • Disproportionality of women disappearances implies a climate of impunity (necessarily implicates the state to an extent) • State responsible for lack of response to prevent and to investigate or punish • Prevention violation somewhat confusing o State has broad duties to collect data, take measures to prevent violence o But duty to prevent violence between individuals is limited, unless the state has knowledge of a real and imminent danger towards an individual In this case, not sufficient awareness of these particular victims o But state is responsible for lack of action after victims reported missing -- needs to act within the first hours of missing report State here did not prove it had adopted norms or taken measures to ensure that the officials has the capacity to act immediately LACK OF DUE DILIGENCE! • Scope of required investigation increased here given specific issue of VAW and how bad the problem is in Juarez • Paragraph 299: Elaborate explanation of steps the police must take investigation killings as outlined in the Minnesota Protocol (soft law doc)

Rodriguez Vera et al. v. Columbia (Court): facts and holding

Facts: • Presumed forced disappearance of Rodriguez Vera and others during the retaking of the Palace of Justice in Bogota • Presumed disappearance of R-V, as well as presumed detention and torture of others, and to the alleged failure of the courts to clarify all these events and punish those responsible Holding: • Alleged violations of Article 4 (right to life), 5 (right to human treatment), and 7 (right to personal liberty) of the Inter-American Convention • Court finds violations of all based off a duty to "ensure" rights, so a violation of specific obligations "in conjunction with" Article 1(1), not Article 2's duty have a legislative framework • This is the origin of Inter-American Court's standard way of discussing violations regarding positive obligation

Opuz v. Turkey (European Court):

Facts: • Woman had complained about domestic violence but then withdrew complaint • Authorities didn't prosecute because Turkish statute prevents prosecution of a domestic violence act because the victim withdrew the complaint • Woman was later killed by abuser Holding: • Statute is a violation of the obligation to prevent o Art 2 of European Convention enjoins the state to take appropriate states to safeguard the lives of those within its jurisdiction • And even with the constraints of the statue, the passivity in this case is also a violation of due diligence Reasoning: • Not every claimed risk to life requires the state to take operational measures o For a positive obligation to arise, it must be established that the authorities knew or ought to have known of a real and immediate risk and that they failed to take measure to avoid the risk • Could the local authorities have foreseen a lethal attack from HO? Yes. o History of abuse by HO o Mother had submitted a petition, but police only responded by taking statements from HO • Did the authorities display due diligence to prevent the killing? No. o Local authorities did not consider the effects that HO's actions had on the mother and the children o HO resorted to violence and psychological pressure o Rejects Art 8 defense - intervention was necessary to prevent the seriousness of the risk • Not saying that all withdrawal of complaints and prosecution are violation -- might imagine a scenario where withdrawal appropriately ends state's obligation to prosecute o Might be concerns about woman losing a source of income if the man is prosecuted, autonomy and privacy concerns o There is a proper balance to be struck between the victim's Art 2 rights (right to life) and Art 8 rights (private and family life), but you have to at least consider countervailing concerns

Diallo: violations

In expelling Diallo, DRC violated Art 13 of ICCPR and Art 12 of the African Charter o Both articles say that an alien lawfully in the territory of a state party may be expelled only in pursuance of a decision reach in accordance with the law So expulsion must be in accordance with domestic law Guinea argues it's against domestic law for 3 reasons: (1) should have been signed by the Pres not the PM, (2) should have been preceded by consultation of the national immigration board, (3) should have indicated grounds for expulsion ICJ buys Guinea's 2nd and 3rd arguments but not the first Gives deference to DRC on Pres/PM because duties had recently been transferred DRC needed to follow its law regarding consultation with National Immigration Board, which had been done for other expulsions Court thinks DRC should have indicated grounds for expulsion, because otherwise doesn't meet law's requirement that expulsion decree be reasoned Other reasons why ICJ thinks there's an Art 13 violation: Diallo not given opportunity to submit a defense, no compelling reasons given as to why this is a national security case In arresting and detaining Diallo, DRC violated Art 9 of ICCPR and Art 6 of African Charter Article 9: Need to give reasons for detention Paragraph 2: outlines charges in criminal cases You need to be given reasons in all cases, but only charges in criminal cases Prompt hearing in front of a judge No excessive pretrial detention Can bring lawfulness of a detention to a court (habeus corpus) Compensation if unlawfully detained Detainment was not done as established by law No evidence that authorities sought to determine whether Diallo was likely to evade implementation of the expulsion decree Length of time exceeded max DRC showed no evidence that detention was reviewed every 48 hours as required by law Detainment was arbitrary Many serious irregularities in Diallo's detention and no convincing basis for why Diallo was detained DRC did not comply with req to inform Diallo of reasons for his detainment DRC didn't produce evidence that they complied with requirement at the time of either of Diallo's arrests Skeptical motive for detention Probably detained because his companies were trying to recover debts Detainment treatment - no food, wife had to bring food This was sufficient the court says to meet Art 9 Holding: DRC under obligation to make appropriate reparation, in the form of compensation to Guinea

Yatama v. Nicaragua (Court): issue and facts

Issue: • Commission present the application for the court to decide whether Nicaragua violated Art 8 (right to fair trial), 23 (right to participate in government), 25 (judicial protection) of the American Convention to the detriment of the candidates for mayors, deputy mayors and councilors presented by the indigenous regional political party Yamata Facts: • Commission alleged these Yatama candidates were excluded from participating in the municipal elections • Applicants filed several recourses, and Nicaragua Supreme Court declared the application filed inadmissible • Senate has not provided a recourse that would have protected the right of these candidates to participate and to be elected in the municipal elections of November 2000. Above all, it had not provided for the norms in the electoral law that would facilitate the political participation of the indigenous orgs in the electoral process of the regions in accordance with the customary law, values, practices and customs of the indigenous people who reside there

Differences between Declaration, ICCPR, and ICESCR

Loss of right to property o Reason: there's long been disputes over expropriation of property by foreign investors - issues over how to compensate for this Added minority protections, self-determination of peoples, right to health ICCPR: emergency provision -- during times of emergency, certain rights are derogable to the extent strictly required Presence of clawback clauses - right to something and then a part of it is taken back

Theoretical Approaches to Human Rights

Natural Law o First from Christianity, then from reason (Enlightenment) --> Dec of Independence, Dec of the Rights of Man --> Government exists to protect the rights of its citizens, government limited by its citizens' rights o Anaya, Indigenous Peoples in International Law --> Early international law theorists were willing to oppose government actions on the grounds of natural law -->Began to oppose government actions in the New World towards indigenous peoples Legal positivism o Focuses on the state as the relevant source of authority Structural/functional o Macklem, The Sovereignty of Human Rights: There is in fact some moral sense that comes to play with economic inequality

Yatama v. Nicaragua (Court): Obligation to guarantee the enjoyment of political rights and notes

Obligation to guarantee the enjoyment of political rights: • Arts 23, 24, 1, and 2 require the state to guarantee the enjoyment of political rights, in keeping with the principle of equality and non-discrimination, and should adopt the necessary measures to ensure their full exercise • The 2000 Electoral Act is unconstitutional because o Its requirement for the presentation of the signatures of 3% of voters in order to present candidates is a barrier to the exercise of political rights o The act only permits participation in electoral processes through political parties, a form of organization that is not characteristic of indigenous communities o This restriction was an impediment to the full exercise of the right to be elected o Undue limitation on the exercise of right o Any requirement for political participation designed for political parties cannot be fulfilled by groups with a different form of organization violates Art 23 and 24 Notes: • Mention of jus cogens -- very characteristic of IA Court o What is the consequence of the fact that the HR basis upon which the court relies is jus cogens? o When the court is talking about proportionality and less restrictive alternatives the court is trying to decide whether it is "differential treatment" or "discrimination" - once it's discrimination it moves into jus cogens territory where there is not clawback clause o Therefore, there is a limitation/restriction but it exists in determining whether something is discrimination o The rule whereby one decides whether something is discrimination or not is a jus cogens norm o Does the fact that this is a jus cogens norm have implications for states that are not part of OAS? The court is talking in global terms Most of the uses of these terms have been directed at other states in the system Discrimination across the board for any group is condemned - condemns discrimination in other states not before the court as well • In US Equal Protection two important differences o Different standards of review for regulations/statues that are more vs. less suspicious o Equal Protections clause deals with intentional or facial discrimination but not discrimination that occurs unintentionally because a law has differential impacts • Differences in international law system's equal protection o Normal standard is proportionality o Normal understanding of discrimination inn HR law has to do with both discriminatory impact and discriminatory laws

Demir and Baykara v. Turkey (European Court of HR, 2008): reasoning and dissent

Reasoning: • Turkey argues that the Court cannot interpret the ILO because it's not an HR treaty • Court says it needs to interpret Art 2 in light of all these other treaties -- even those treaties that Turkey is not party to --> Those treaties say the right to form unions is the right to collective bargaining --> This isn't unfair to Turkey because they chose to resolve this in the European Court and the EC can use whatever they want in interpreting a treaty --> Court is identifying a common European standard • Interpret the Convention as living, and as achieving the purposes it set out to accomplish --> Adopts an evoluative approach (this case is an extreme example of this) • It is not necessary for the government to have ratified the specific rights set out - it's sufficient that the international instruments denote a continuous evolution in the norms and principles applied to international law • The right to collective bargaining is protected by the ILO Convention • The right to collective bargaining has become one of the essential elements of the right to form and to join trade unions • The court's failure to maintain a dynamic and evolutive approach would risk preventing it from reforming or improving • In the light of developments in international and national law, the right to bargain collectively and to enter into collective agreements had become one of the essential elements of the right to form and join a trade union for the protection of members' interests under Article 11 of the ECHR Zagrebelsky opinion • Court has departed from its case law • Departure is a correction of its previous case law rather than an adaptation of caselaw to a real change in legislation or cultural ethos

Fitzpatrick reading:

SEE NOTES

THE UN SYSTEM READINGS

The United Nations and Human Rights • Roosevelt's 4 freedoms -- freedom of speech, religion, from want, from fear -- laid the bedrock for the UN Charter • The Charter of the UN o Among the main purposes of the UN is to achieve human rights o Various bodies within in the UN have the power to enforce human rights o Charter provides general obligations that all members must meet to preserve human rights Legal Consequences for States of the Continued Presence of South Africa in Namibia • South Africa's purpose in Namibia is to enforce a racist, Jim Crow-type regime Schwelb, The ICJ and the Human Rights Clauses of the Charter • Court found that South Africa's presence in Namibia was illegal and said it had to withdraw immediately • South Africa's defense was that the Court should have to show that SA's government was not acting in good faith towards promoting the well-being and progress of the inhabitants o Court did not buy this Schachter, The Carter and the Constitution • Some have argued that the provisions of the Charter are not legally binding - more like guidelines o UN Charter is a promise by states - intent by states to be bound? • How can UN enforce when it doesn't have the power to enforce? • UN Charter Art 2(7) is evidence that UN was supposed to have legal force, because it's a clawback clause from a general delegation of authority to UN

ICCPR vs. ICESCR

Why are these two separate? o Economic rights: focus of communist countries o Civil and Pol rights: high emphasis for capitalist countries o Want to insulate oneself from human rights violations (USSR violated ICCPR, US violated ICESCR) Unions protected in both (freedom of association means freedom of unions in ICCPR) ICCPR: negative rights, minority rights o Creates an independent body: Human Rights Committee (really the committee on civil and pol rights), acts like a court ICESCR: positive rights, right to participate in culture, expensive, can't be adopted right away o Members of ICESCR committee are states

Treaties

o CERD - bans racial discrimination in public and private spheres o CEDAW - prevent discrimination against women in public and private Monitoring, capacity to hear cases US not a party o CAT - bans torture Requires states to take action to train, implement anti-torture devices Sub-Committee for Prevention of Torture travels to observe US not a party o CRC - children's rights Most widely ratified (195 states), not US "Best interests of the child," child participation in decisions Optional Protocols: Armed Conflict, Child Pornography/Prostitution US not a party o CMW- migrant workers (only 51 states) o CRPD - people with disabilities (US not a party but almost joined in 2012) o CED - enforced disappearances Like CAT, "flanking measures" requiring States to take action

• SP Example: TransCanada Oil Pipeline Operation

o Canada constructed a pipeline through traditional Lubicon Lake Nation land without consent o Canada disputes that Dec of Indigenous Peoples' Rights is binding doc SR says it's a strong normative doc with which Canada should nonetheless attempt to comply o SR acknowledges some effort to address Lubicon concerns but questions the adequacy of the proceedings o SR reviews overall dire conditions of indigenous Lubicon community o Recommendations for resolution include returning to negotiations table, protection of Lubicon heath and rights, and overall improvements in the services offered to Lubicon people to address unmet needs for water, housing and other basics

• SP Example: Report of Special Rapporteur on Independence of Judges and Lawyers

o Chinese citizens allegedly denied counsel during trial o Chinese government submitted rebuttal saying ∆s had lawyers o SR requested more info about how much access the lawyers had to their clients and reminded China of its HR obligations

Communications Procedure: Communications procedure

o Comms brought by the victims/ family members o Focus on the facts of a specific situation o Procedure for these comms is through the optional protocol o Not supposed to be expensive, all in writing, don't need a lawyer o Secial Rapporteur For New Communications: tracks all the new comms, issues interim measures (similar to preliminary injunctions) to stop something before the committee can renew it Ex. execution of an author during an interim measures request is a major violation o DP is biggest example of interim measures (sending someone back to home country is other big ex) o When a communication comes in and it's not drafted very well, rapporteur might need to point to admissibility issues o Admissibility: need to exhaust all legal remedies within the home country If the legal remedy is not sufficient (i.e. knows that the home court won't even entertain x argument), may be admissible o Process of briefing: back and forth between author and state (new lims try to keep it to 2 back and forths) o Draft will be presented to the plenary (entire committee) which might change/amend draft or change ruling o Committee highlights that its decisions are authoritative but not binding Authoritative because it's from a body of experts Not authoritative in the same way Congress is bc Congress has the power to compel compliance

International Criminal Court (ICC): Rome Statute

o Created an International Criminal Court 3 categories of crimes: genocide, crimes against humanity, and war crimes Crimes against humanity: list of prohibited actions when they are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (murder, extermination, enslavement, deportation, etc.) o Recognizes criminal responsibility for those that directly commit the act, and other forms of participation (ordering, soliciting, inducing, aiding) o In military context, doctrine of command responsibility for failure to prevent or repress crimes within the commander's control applies

Roper Scalia dissent

o Disputes national consensus and argues that the majority let their own judgement influence whether juveniles were similar enough to adults o More apoplectically, angered at majority's use of international law and custom Disputes whether states that say they don't use the juvenile death penalty actually do Argues that U.S. reservations and non-ratifications prove no national consensus here Lots of things we do that are good which aren't international law: exclusionary rule, establishment clause, abortion jurisprudence Lots of things U.K specifically does differently: no bar on double jeopardy, no right to jury in criminal trial there

Garavito and McAdams, "A Human Rights Crisis?": HR critiques

o Lack of impact and efficacy Large number of quantitative studies have considered the impact of HR law on domestic practices, and in large part have found little if any effect (from both treaties and traditional naming and shaming) The structure of IHRL -- without a central enforcement law and with vague law -- means that HR has a lower priority to states than other commitments. Also structural critique based on increasing multipolarity -- conflicts between emerging powers will outshine efforts to improve HRs Inability to get local buy-in for HR norms by NGOs means that they cannot create change in actual communities o Response Not enough high-quality data to measure the effectiveness of IHRL, and the empirical critique does not take into account changing HR evaluation standards o Lack of legitimacy Lack of democratic accountability of unelected HR advocates and institutional -- instead just controlled by a professional elite Dominant role of global North inn funding, advocacy leads to insufficient southern buy-in and focus on northern concerns Just another form of imperialism pursued by the West over the global South Professional NGOs weaken grassroot orgs, marginalizing community output for foreign funding o Resource dependence Unintentional effect of dependence of South on northern funding is that governments can use the existence of foreign funding to bully local NGOs and decreases NGO autonomy o Unintended effects of HR advocacy Rights tunnel vision prevents advocates from seeing structural forces, like resource inequality, that most needs fixing o Over-legalization Resort to legal system abrogates the possibility of critiquing that system, which often ignores root causes Lawyers dominant role risks alienating grassroots activists and social movements o Overloading HR institutions can't deal with all of the cases - it is a victim of its own success bc it is drowned with cases due to excessive expectations Ever-spreading agenda of HRs makes it difficult to weigh between rights

HR critiques: Asian values debate

o Led by Singapore o Western freedom wasn't a part of Asian values o East Asian countries shouldn't be concerned about human rights because it isn't a part of their values o Vienna Conference: human rights are universal and it's the responsibility of the state to protect them regardless of social concerns o Sen, Human Rights & Asian Values Asia is heterogeneous; Buddhism (free choice and volition) and Confucianism (discipline) Invoking "Asian Values" is tool of dictators; no impassible line between Eastern and Western thought

Critiques of HR: Cultural relativism

o Normative assessments of human conduct occur in a cultural setting o Judgment of right vs. wrong depends on the culture in which they take place o No transcendent, objective wrongfulness Ex: slavery Is it wrong? There are some cultures in which slavery is okay Cultures where slavery is not okay might use coercive measures to convince society to change course • Would this be wrong? Wrong as defined by the culture (so it depends) • US not wrong to intervene if it is okay by its culture

• Summary Records of the consideration of the Fourth periodic report of the USA to the HR Committee

o Overarching theses of issues raised by committee members US failure to accept the extraterritorial applicability of the covenant • US responds by saying it still rejects extraterritorial application of the CCPR, but as a matter of policy aggress that there are some issues and that it is taking action - just does not believe it is obliged to under the covenant Federal government's limited possibilities to ensure implementation of CCPR at state and local levels Provisions of the covenant declared non-self-executing at time of ratification High number of US RUDs (reservations, understandings, declarations)

Special Procedures: Manual of Operations of Special Procedures of HR Council

o Principle function of SPs: Analyze, advise, alert (UN and HRC), advocate (for change on behalf of victims), activate (mobilize countries and world to act) o Special Procedure Mandate lasts no longer than 6 years o Candidates for SP Mandate-Holders can be nominated by governments, NGOs, international orgs, individuals President of the Council proposes appointments to the council and council votes to approve o Candidates cannot hold political office o Communications Fact-based and not accusatory Special Procedure actor may issue press statement o Country visits Fact-finding Governments may invite SP to country, or SP may initiate o Other activities Thematic studies can be undertaken Regular reporting to UNN HR Council and UNGA States should have opportunity to respond to SP reports and to collaborate on investigations

• DRC v. Congo (ICJ)

o Some rights may exclusively be matters of international humanitarian law, others may exclusively be matters of HR law, yet other may be matters of both In the latter cases, both branches must be taken into consideration o Extraterritoriality: Court concludes that IHR instruments are applicable when a state acts in the exercise of jurisdiction outside its own territory, especially occupied territories

• HR Committee: Concluding Observations on the Fourth Periodic Report of the USA

o Starts with positive aspects o Then goes into principal matters of concern and recommendations Extraterritorial applicability of covenant Accountability for past HR violations • Expressed concerns about the limited number of investigations, prosecution and convictions of members of the armed forces and other govt agents for unlawful killings and past uses of torture and degrading treatment Racial disparities in the crim system Target killings using drones Excessive use of force by law enforcement officials Guantanamo detainees NSA surveillance

Communications Procedure: State reporting process vs. communications process

o State rep: live dialogue - at the end there can be debate List of things being discussed, state can respond to each one Opportunity for real dialogue o Comm process: no live discussion o State rep: soft - expresses a tentative view of what the CCPR means, not an official statement of the CCPR's meaning by the committee

USA: self-execution

o Supremacy clause makes treaties the supreme law of the land (like federal statutes) and override state law o Doctrine: provisions can be self-executing or non-self-executing Judicially created doctrine If a treaty is non-self-executing, the courts will not enforce it BUT, Courts may interpret federal statutes in light of a non-self-executing treaty o This is a U.S. doctrine -- other countries have similar concepts, others don't, others require all treaties to be self-executing (U.K.) o Are there legitimate reasons why Congress might not want a treaty to be self-executing? The content of the treaty makes it such that we don't want judges to engage in judicial activism Future legislative flexibility Different ways exist to fulfill obligations than causes of action, like legislative action • Some might just have to be non-self-execution (e.g. treaty requires a crime be created) Want to allow smooth transition period o Some argue that taking a fully definite treaty and declaring it non-self-executing is unconstitutional

Confidential Complaint: notes

o System by which individuals and groups can lodge complaints of human rights abuse o Individual complaints not take up by global human rights powers until 1959 when Commission authorized to review summaries of communications received by UN Secretary-General but not to take action o In 1970, Econ and Social Council adopted resolution allowing Commission to examine individual communications in closed sessions

• Art 41

o When do actions justify Art 41 actions? When a state does something to violate the peace o Acheson vs. McDougal on Rhodesia Acheson: racist authoritarian government not a threat to the peace Question: influence state might have, or violent reaction it might provoke from other states, or peace within Rhodesia - do these all count as threats to peace? Severe HR violations create refugee crises and international tensions - thus it disturbs the peace and gives justification for Art 41 actions o Are sanctions effective? Sometimes - depends on the violation, the violating regime, whether other states will join these sanctions, how the sanctions are designed, geography o Do sanctions violate the HR of the citizens? Depends on the sanctions - does it violate access to food? Does it make food unaffordable? o Targeted sanctions Instead of targeting whole population, target specific people/companies • Targeted as non-state actors engaged in illegal non-state activities (e.g., terrorism) Argument that these might violate HR

• Human Rights Committee: States of Emergency (Art 4), General Comment No. 29

o The explicit list of non-derogable rights under Art 4(2) are not the only rights that are non-derogable in time of emergency o Art 4 cannot be used to justify acting violation of int'l humanitarian law or peremptory norms of international law/jus cogens o Other rights are non-derogable as a matter of substantive interpretation of the Covenant as a whole (i.e. habeus corpus is non-derogable because it is a procedural right necessary for the non-derogable rights of life and liberty)

SAS: necessary in a democratic society

o There needs to be balance between government aims and the fair treatment of people from minority groups o National authorities are naturally in a better place to evaluate local needs and concerns Affords the states a wide margin of appreciation o The Leyla Sahin case showed it impossible to create a universal standard for religion in society in Europe o Despite this, the margin of appreciation must still be accompanied by European supervision in re: principle and proportionality o The Court did not find bans on wearing religious symbols in schools were violations of Art 9 o The ECHR has found a violation in banning a cross around the neck of an airline employee o It is still important in a healthy democratic society to tolerate and sustain pluralism and diversity -- including religious expression o Bans on religious garbs in public places have not been previously established as necessary o No showing that religious clothing constituted a threat to public order in the Turkey case Ahmet Arslan - wearing of a turban, sirwal and a tunic o Still an important distinction in this case, where there is a full facial veil

Confidential Complaint: Human Rights Council Resolution 5/1

o When HR Council replaced Commission, complaint procedure was retained o Admissibility criteria Not politically motivated Factual description contained, including allegations of which rights were violated Non-abusive language Good faith submission by victims or advocates Not just based off of media reports Does not refer to a case already being dealt with in other human rights proceedings Domestic remedies have been exhausted, unless those remedies appear ineffective o Examination procedure Working group to do initial intake - Advisory Committee of Experts Second level working group - Working Group on Communications can recommend follow-up by Council itself o Confidential communications, to be followed up on regularly Council evaluates communications at least once a year Complaints to be considered by Council within 24 months of receipt o Complainant and State informed of proceedings at each stage o If complainant requests, her identity will not be disclosed to state o Measures Council may keep issue under review, drop the issue, appoint experts to monitor the situation, or recommend to High Commissioner that advisory assistance be given to the state to ensure compliance o Effective? 1989: 300,000 complaints received - too many to handle Dialogue between Working Groups Council and States amounts to political horse trading Procedure laid groundwork for other public procedures for handling individual grievances, but has not itself been very effective Now, states named in 1503 procedures is made public but content of complaints is not

SAS: application to this case

o With regards to the first aim, public safety - the ban in this case is proportionate only in a context there is a general threat to public safety o A blanket ban is not necessary to effectuate public safety; just ask women to show their face and identify themselves in cases where risks to public safety have been established Majority basically discards public safety argument bc it's disproportionate to the need and riddled with exceptions The law is obviously not designed to cover people who rob banks in Halloween masks o For the second aim, to protect the rights and freedoms of others (protect socialization), only a small number of women are concerned, and those women significantly impacted Do women wear these garments under the coercion of someone else? Cannot invoke gender equality to defend something opposed by women Can we defend this as a protection of women against being pressured to dress in a certain way? o Also clear that the law was influenced by Islamophobic legislators o This law mainly affects Muslim women o But, with the aim being social communication, it should be left to society to choose whether to permit the veil The Court will show a wide margin of appreciation in this case, and since there is no European consensus as to whether there should be a blanket ban, there is no violation of Art 8 or 9 • It is about religion and state and this is usually given wide deference There is no Art 14 violation (anti-discrimination) because the law has an objective and reasonable justification

Roper v. Simmons (SCT 2005):

• 17-year-old was tried as an adult and sentenced to death under Missouri state law • Majority of Supreme Court held that the juvenile (under 18) death penalty violated the 8th Amendment overruling Stanford v. Kentucky (1989) o Previous precedent had eliminated capital punishment for under 16s, but didn't go up to 18 because enough states retained it that there wasn't enough consensus to show changes in decency required to rule the punishment so disproportionate as to violate the 8th o Now, majority of states have eliminated the death penalty for juveniles o Juveniles are different than adults: (1) psychologically less mature; (2) more susceptible to influence; (3) character is less well formed o And (crucially for our purposes) court finds "confirmation" in its decision from international consensus against the juvenile death penalty Persuasive but not controlling -- the Court takes into account the international practice even under the assumption that the US isn't bound by it Article 37 of the UNCRC (Convention on Rights of Child) Article 6(5) of the ICCPR (ratified by U.S. with a reservation re: juvenile death penalty) U.K. had banned prior to treaty, relevant given similarity to U.S. systems

HUMAN RIGHTS COMMITTEE: general notes

• 18 independent experts o Nominated by their states, elected by party states, but serve independently • Sometimes members don't serve independently (e.g., Soviet bloc countries during Cold War) • Vast majority are lawyers with HR experience • Engages in 3 main activities: state reporting procedure, communications procedure, and issuance of general comments

ICCPR: Relevant provisions

• 2.1: Each state party...undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized 2.2: Requires states to undertake to take the necessary steps, to adopt laws or other measures to give effect to the rights o At the moment you become a party, state obliged to respect the rights (unlike ICESCR) 2.3: Any person whose rights violated shall have effective remedy • Generally civil-political rights (Art 1-21 UDHR), but does not include right to own and not be arbitrarily deprived of property, Art. 17 UDHR 20: Prohibits advocacy of national, racial or religious hatred that is incitement to discrimination, hostility or violence o Not consistent with US free speech laws - US expressed reservation when joining o Derogations Clause, 4: permitted "in time of public emergency which threatens the life of the nation." But no derogation from Arts. 6, 7, 8, 11, 15, 16, and 18. 7: Torture: No one to be subjected to torture/CID treatment/punishment o HRC comment 20 suggests no derogation permitted - absolute o No def'n/list of prohibited acts. Distinctions depends on nature, purpose and severity of treatment. (HRC GC 20) o HRC interprets Art. 7 as prohibiting non-refoulment. US does not agree, even within state's own territory

UN Sub-Commission on the Promotion and Protection of HR, Adverse Consequences of Econ Sanctions

• 4 points on sanctions o Should be limited in time o They most seriously affect the innocent population o They aggravate imbalances in income distribution o They generate illegal and unethical business practices • 2 basic types of econ sanctions: trade and financial • Other sanctions: travel, military, diplomatic, cultural (e.g., international sport competitions) • Limitations on sanctions o Charter Art. 1 Sanctions must be effective and in conformity with the principles of justice and international law Must respect the principle of equal rights and self-determination of peoples Can't cause undue hardships Must impose sanctions equally to violating nations o Art 55: Can't create sanctions that lower econ standards, create health problems, or are detrimental to the observance of HR o Can only impose when there is a threat of or actual breach of international peace and security o Must target proper parties, and goods or objects o Must be reasonably time-limited and effective

Jesner v. Arab Bank (SCT, 2018):

• Addressed issue of corporate liability under ATS -- held that foreign corporations could not be held liable under ATS • Kennedy plurality: absence of a clear rule of international law imposing liability on corporate entities, TVA imposes liability only on individual defendants, foreign policy consequences • Gorsuch: o Plaintiffs want to create a new cause of action for breaching international norms -- this is not the courts job, but the political branches job o Courts should not meddle in disputes between foreign citizens over international norms o Only Congress can create a cause of action, especially for foreign HR violations

What are the advantages and disadvantages of creating international institutions for the protection of human rights:

• Advantages: global standard, pooling of resources • Disadvantages: loss of national autonomy, risk that powerful nations will dominate, human rights at odd with development interests

Who is bound by customary law:

• All states - but there are refinements • Regional customary law: ex. your govt gets overthrown and you seek asylum in a friendly government's embassy • Persistent objectors: one or two states cannot prevent CL from coming into being, but they might be exempt from it • New states: bound by ICL, don't have the opportunity to object after the fact • If ICL is violated frequently and with an explicit insistence that it's not the law, a new rule may come into being that rejects the old rule - must be widespread

The Social and Economic Rights Action Center (SERAC) v. Nigeria (African Commission, 2001): facts

• Alleged violations of Arts 2, 4, 14, 16, 18, 21, 24 of the Charter (held that all these were violated) • Oil plant activity in Niger Delta by NNPC Shell Consortium led to oil spills that polluted and destroyed the homes of the Ogoni people

Sosa v. Alvarez-Machain (SCT, 2004): part 1

• Alvarez-Machain detained in Mexico and brought to US to face charges of torture. District Court grants Alvarez's motion for judgement of acquittal. Alvarez returns to Mexico and sues Sosa (and other who participated in his earlier detention) under the FTCA and the ATS. • Government, supporting Sosa, tries to argue that the ATS only vests federal courts with jurisdiction, but does not create or authorize the courts to recognize any particular right of action without further congressional action. • Court holds that although the ATS is in terms only jurisdictional, at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized as common law. But Alvarez's asserted right of action is not recognized. • Congress only intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations, particularly o Offenses against ambassadors o Violations of safe conduct o Individual actions arising out of proze captures and piracy

THE AMERICAN SYSTEM: general notes

• American Declaration sets out rights AND duties of individuals • American Convention on HR and Court created after the CCPR • Convention mainly focused on civil and political rights o Have interpreted some aspects (e.g., right to life) to include economic and political rights • Protects right to property o Under European Convention, corporations have right to property o Americas haven't given corporations this right -- instead extends property protections to individuals, indigenous peoples, trade organizations • Convention creates Court • Commission: older than the court, viewed the court as an unwelcome rival in its early days, broader powers for protection than European Commission o European Commission filtered cases; American Commission visits states, issues reports, investigates • Most Anglophone American countries not party to the convention • Court and Commission are both part-time, have different HQ • Cases must first be brought to the Commission o If cmssn doesn't process case or finds it inadmissible case is over and no recourse o If inadmissible and rejects on merits, no recourse o If a violation and state doesn't comply with recommendations, then commission can refer to court -- presumption that commission will refer (but not a hard rule) o Caseload of court is entirely composed of cases where the commission has already found a violation • Court makes about 20 judgments per year, 372 in total o Judgments don't equal case number -- some cases might have multiple judgments • Court can issue advisory opinions to interpret the convention and other HR treaties for the Americas o All HR treaties that OAS states are party and treaties that include HR provisions but are not specifically HR treaties o Any OAS member can request the court to issue an advisory opinion • Judgement and remedy of the court is binding • Court is the most activist and progressive of the regional courts • Procedure for interstate cases exists but it's rarely used

Procedural Aspects for the Commission:

• Any persons, group of persons, or nongovernmental or legally recognized in members state of the OAS may submit a petition to IACHR • Exhaustion of domestic remedies • 6 month rule post-exhaustion • Cannot consider a petition if the subject matter is pending settlement in another international governmental organization or has essentially already been examined or settled by another org • Can only make recommendations • Main objective of the commission was not to investigate isolated violations, but to document gross, systematic violations and exercise pressure to improve general condition of HR in the country concerned • Commission created a procedure to take cognizance of individual complaints and use them as a source of info about gross, systematic violations • Resolution XXII: allows Commission to examine isolated HR violations o Commission can only handle complaints if domestic remedies had been exhausted, which meant could not always swiftly react to violations o Made commission more dependent on govts for info o Even if commission did give its opinion and recommended actions, likely not followed o Commission interpreted Res XXII as granting Commission power to examine comms concerning individual violations of certain rights • The procedure to take cognizance of comms evolved and became the general case procedure and was later used in examining the general rights situation in a country o Could be started without checking whether comms met any admissibility req o Commission assumed a very active role o Commission could publicize its findings o Report resulting for investigation could be sent to political bodies of the OAS

Claude Reyes et al. v. Chile (Court): reparations

• Application of Art 63 of Convention • No pecuniary damages • Court notes that applicant doesn't need to prove a specific interest or direct involvement to get this info • State must provide a info or a justified explanation in newspaper within 6 months • State is obligated to adopt the leg and other measures necessary to make these rights and freedoms effective o Chile must adopt the necessary measures to guarantee the protection of the right of access to state-held info, and these should include a guarantee of the effectiveness of an appropriate administrative procedure • "Regarding their reimbursement, the Court must prudently assess their scope, which includes the expenses incurred before the authorities of the domestic jurisdiction, and also those resulting from the proceedings before the inter-American system, taking into account the circumstances of the specific case and the nature of the international jurisdiction for the protection of human rights." • Gives $10,000 for costs and expenses incurred by plaintiffs

Torture Victims Protection Act:

• Applies only to torture and extrajudicial killing, extends to victims who are not US citizens (US citizens can bring suit, too), applies only to actions taken under color of foreign law (does not apply to torture done by US officials), plaintiff must have exhausted domestic remedies or show what they aren't adequate, 10-year statute of limitations (10-year statute of limitations has been applied to many ATS cases, too). • Only applies to individuals -- not foreign entitites (e.g., corporations, states, cities)

International Law Association, Committee on the Enforcement of Human Rights Law Final Report on the Status of the UDHR (list of provisions considered to be CIL):

• Art 1, 2 and 7: express the fundamental right of equal treatment and non-discrimination. Although many countries do in fact discriminate, these can be considered part of customary law • Art 3: guaranteeing right to life, liberty and security of the person may be to general to county as an international norm, but the right to life is probably customary law • Art 5: prohibiting torture is def part of customary law • Art 6: right to recognition everywhere as a person before the law is probably customary law • Art 8: guarantee of effective remedy before domestic courts for human rights violations isn't customary law • Art 9: prohibiting arbitrary arrest or detention might be customary international law • Art 10&11: right to fair trail probably customary • Art 12: right to privacy not customary • Art 13: freedom of movement not customary • Art 14: right to seek asylum not customary • Art 15: right to nationality not customary law • Art 17: right to property probably customary • Art 18: freedom of thought, conscience and religion; Art 19: freedom of expression; Art 20: right to peaceful assembly; Art 21: right to participate in political life are not customary • Art 22 and 27: econ, social, and cultural rights unrecognized by the US and probably not customary • Art 29: reference to permissible restrictions on rights may be customary international law • Art 30: savings clause may be customary

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: organization

• Art 1-2: dignity of humanity, civil and political rights end with access to participation, also a positive role for government to protect these rights • Art 3-11, personal liberties • Art 22-27: Econ and social rights • Art 28: social and international order where rights can be realized • Art 29-30: rights are subject to limitations (only certain lims though), and rights shouldn't be abused

Structure of CESCR:

• Art 4: general limitation clause broad in how the rights can be limited but only so far as the limitations are compatible with the nature of these rights • There are minimum core obligations that must be met to the maximum possible extent of resources and must be met immediately o E.g., housing, edu o Widespread failure to meet this is a violation of the covenant (naming and shaming process) o Finding a minimum core is very important for an advocacy strategy o Is there a process to determine what the minimum core is??? • States that have resources must help states that don't have resources to realize the rights o International obligations: there needs to be wealth transfers to assist with the development of rights (draws on right to development to justify this)

Djazia and Bellili v. Spain (Committee on ESCR), notes

• Art. 8 of ICESCR Optional Protocol: Committee shall consider the reasonableness of the steps taken by the state party -- reasonableness standard • Why did post-eviction failure to give the family lodging together violate ICESCR o City got rid of public housing in the wake of 2008 - retrogressed o State didn't say enough on this issue and the committee may have jumped on this o Conclusion: retrogression needs to be justified and it wasn't justified here • These recommendations look a lot like concluding observations on a state report - looks more like state reporting process

SANCTIONS: general notes

• Unilateral Sanctions o UN Charter has no restrictions on the use of sanctions o Majority of states oppose unilateral sanctions • Unilateral vs. multilateral o Effect of unilateral sanctions may not be so great o Are unilateral sanctions unlawful? Does CESCR demand that countries send aid to suffering countries? UK places a sanction on a certain good - does the UK have an obligation under the CESCR to the people whose jobs are going to be affected? Does this violate customary law

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: articles

• Article 1 "In promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion" • Article 13 The General Assembly has the duty to initiate studies and make recommendations to help realize human rights • Article 2(7) "Nothing contained in the present Charter shall authorize the UN to intervene in matters which are of essential domestic jurisdiction of any state" • Article 55: fundamental freedoms regardless of sex, race, religion • Article 56: states vow to take independent and collective action to protect Art 55 rights o What is the obligation of states? Unclear.

Vienna Convention on the Law of Treaties (1969):

• Article 19: a state can formulate a reservation with some listed exceptions o Bilateral: "I won't agree unless we amend" - negotiation tactic o Multilateral: Pre-1950, All other parties must agree you can be excused from certain part in order for you to be able to join 1951: Genocide convention allowed disputes about reservations to go before ICJ for adjudication • Article 20: acceptance of and objection to reservations • Article 21: legal effects of reservations and of objections to reservations • Reservations are permitted unless a treaty prohibits them • Codifies generally accepted practices • Article 31: interpreted in good faith with ordinary meaning (but special meaning can be given) and in its context (agreements relating to the treaty, instruments, relation) in light of its object and purpose (i.e., inherently non-textualist) • What is the object and purpose of a treaty? o These are to be taken into account: if the parties enter into a later treaty that explains the context, any subsequent practice the parties use to interpret the treaty (note it's the practice of the states - not any committee's interpretation), don't want to interpret in vacuum or in isolation • Art 31: Can look to preparatory work (i.e. legislative history - travaux préparatoire) when language is ambiguous or unclear

Djazia and Bellili v. Spain (Committee on ESCR), facts

• Authors couldn't pay their rent, lived in Spain • Evicted by court order • Authors argue that Spain violated Art 11 of CESCR since they were evicted and did not have alternative accommodation and that the measure affected their minor children, who had the right to special protection • State argues that authors were evicted by a private party and that Madrid assisted the authors in different ways (including grants and temporary shelter for 10 days) o After staying in the short term residence, SAMUR told the authors that accommodation could be provided for Ms. Bellili and the children in a women's shelter and Mr. Bellili in a homeless shelter • Family had to sleep in a car for 4 days

Varna v. Turkey

• Background o It is understood that state must investigate disappearances pursuant to Art 2 (right to life) o Applicants claim that there is a violation of Art 46 here (abidance of the final judgement) because they refuse to conduct a prompt and effective investigation o But the court declines to order the investigation - states are free to choose how they implement court's judgment This becomes a discussion with committee of ministers o Court follows a division of power with committee of ministers for who follows up on implementation Committee of Ministers have to job to address the issues as to what may be required in practical terms by way of compliance Applicants want damages until the country conducts an investigation - rejects this • Some element of damages here - 12,000 Euros for the non-pecuniary damages of not knowing what happened to their relatives

Ginsburg's "A Decent Respect to the Opinions of [Human]kind":

• Basically just praised the role that nations can play in sharing norms and judicial customs/wisdom • History showed that the Founders and early SCOTUS believed international law could play a role • Concedes that i-law is not authoritative, but that shouldn't prevent us from using it to increase our own judicial knowledge

International Law Commission's Perspective on Reservations:

• Body created by UN o Codification and progressivation of international law o Basically an official international version of the ALI o Will sometimes issue texts that are not suitable for treaties and instead present to General Assembly - if GA approves, the text becomes influential in international law • If the reservation is invalid and treaty is silent, state is forced to choose: if you decide to remain a party to the treaty, the reservation is severed • Decisions about a reservation are not legally binding (e.g., if the HRC makes a decision about a reservation, it carries the same weight as other decisions and thus is not legally binding) • ILC Annual Report 2011 o Tacit acceptance: reservation accepted if no objection raised o A reservation is incompatible with a treat if it affects an essential element of a treaty that impairs the raison d'être of the treaty o A reservation should be worded in a way that its meaning is understood o Treaty monitoring body may assess the permissibility of a reservation • ICL Annual Report 1997 o Reservations are a fact of life, better for a state to accept part of a treaty than none of it

Medellin v. Texas 552 U.S. 491 (2008), dissent and notes

• Breyer dissents: says we need to look at broad indicia to determine self-execution question o Indicia include: text, drafting history, whether treaty addressed to judiciary, how specific and detailed rights obligations are, if there are new causes of action o He looks at these things and disagrees with majority, but book doesn't give that specific analysis CLASS NOTES • There's a judgement from the ICJ -- subsequent judgement from the SCT that the ICJ's interpretation is wrong • SCT opinion does not question that the US is bound to comply with the judgement • The question is how the state must comply with the judgment o State could voluntarily comply o Congress could pass a statute to force compliance o Can the courts or the president force compliance??? Court concludes that the president doesn't have power -- solution at the federal level can only come from Congress because none of the treaties are self-executing

Konaté v. Burkina Faso (African Ct. Human & People's Rights, 2014): facts

• Burkinabe newspaper published two articles by Konaté • The articles accuse a state prosecutor of corruption • Konate is hit with civil and criminal charges, sentenced a year in prison, two fines totaling $12,000, and is forced to shut down his newspaper for 6 months • Konate sues for violations of freedom of expression (Art 9 of African charter, Art 19 of ICCPR, Art 66 of Treaty of ECOWAS) o Art 9: "Every individual shall have the right to express and disseminate his opinions within the law"

ECONOMIC AND SOCIAL RIGHTS: general notes

• CESCR: didn't create an adjudicatory process, later create the Committee on ESCR • Are there major differences between ESCR and CPR? o Some argue that there cannot be ESCR o Some argue that only when CPR are adopted that ESCR can be implemented (and vice versa) o Appropriate means of enforcement?

Gonzales v. United States (American Commission):

• Commission found violation • Mother suspects father abducted kids, called the police multiple times and they did nothing o Later the police found the kids with the dad, and the kids die in a subsequent gun fight • SCOTUS holds that the government isn't required to protect citizens form violence against other citizens - state action doctrine • Commission holds that there is a violation - failure is a pattern to protect, failure to adequately investigate o Violation of Articles I (right to life), II (equality before the law), VII (children have special right to protection), and XVIII (right to fair trial) of American Declaration

Simmons, Mobilizing for Human Rights: International Law in Domestic Politics

• Commitment to treaties can have positive consequences • Treaties serve notice that governments are accountable from refraining from the abuses outlined in treaties • Under some conditions, international legal commitments have generally promoted the kinds of outcomes for which they were designed • Concern over too much international legalization - international adjudication is a step too far for most governments • Treaties alter politics - set goals for public policy that alter political coalitions • CLASS NOTES o What difference do treaties make? o Some argue that states come to an understanding of their interests through treaties/rules of international law o What are the domestic constituencies that push states to enter into and abide by treaties?

Fedotova v. Russian Federation: reasoning

• Committee finds communication admissible o Same matter not being examined under another procedure of international investigation o Author has used all ordinary appeals procedures available under state party's law o Not an abuse of the right of submission under Art 3 because raises substantive issues • HRC finds violation of Art 19 (freedom of expression) read in conjunction with Art 26 (non-discrimination) of covenant o Art 19 of Covenant provides for freedom of expression and par. 3 (clawback clause) lays out when restrictions of that right are permitted: for respect of the rights or reputations of others, (b) for protection of national security or of public order, or of public health or morals • Question is whether the law was permissible under Art 19 par. 3 o Dispute among the parties about whether Ryazan Region Law qualifies as provided by law because not federal law, but Committee dispenses with point, doesn't want to delve into a Russian constitutional law issue o Committee doesn't see an attempt to encourage sexual conduct among children; instead, they see a woman giving expression to her sexuality o Citing Toonen v. Australia committee notes that Art. 26 encompasses sexual orientation discrimination; says that because the law targets expression of sexuality for homosexuals only, the law is in violation of the freedoms of expression and non-discrimination read together o Why is the committee reading them in conjunction? Wants to avoid a discussion of whether sexual discussion can happen near a school at all; looking at them in conjunction reveals a violation that might not exist looking at Art. 19 in isolation • Remedy: reimbursement of fine and legal costs, compensation of Fedotova, obligation to prevent similar violations in the future, make domestic law compatible

Curtis Bradley, The Juvenile Death Penalty and IL:

• Congress is not required to comply with treaties or customary international law • Enforcement of the ban on juvenile DP would be unconstitutional because Congress approved the reservation -- this would be a substantial intervention in the US treaty process

Medellin v. Texas 552 U.S. 491 (2008), opinion

• Court holds that the I.C.J. decision is not binding because the relevant treaties (the Optional Protocol, ICJ Statute and UN Charter) are non-self-executing o Agreement to submit to ICJ's jurisdiction is distinct from agreeing to be bound by decisions - Optional Protocol is a bare grant of jurisdiction o Article 94 of UN Charter says states shall "undertake to comply" with the decisions of the ICJ - Court reads this as a promise of future action, not a directive to U.S. courts o Existence of a mechanism for Mexico and or the ICJ to go to the Security Council to enforce decisions (and possibility of a U.S. veto in response) prove no immediate effect US has retained a reservation by making the Security Council the vehicle for enforcing the ICJ which the US has a veto -- basically the US never has to comply (what?!?!?!) o Overall concerns with separation of powers (courts shouldn't do foreign affairs) and executive deference

Can the Court interpret the Declaration:

• Court says it can under Art 64 • The advisory power of the court is limited to treaties • SO the big question is whether the Declaration is a treaty? o Answer is no. o BUT because the Court interprets the OAS Charter (which is a treaty), Court can interpret the Declaration o The Declaration contains and defines HR obligations referred to in the Charter o The Charter cannot be interpreted and applied (with regards to HRs) without relating its norms to the corresponding provisions of the Declaration • The Convention also references the Declaration, so in interpreting the Convention the court might need to interpret the Declaration

Sosa v. Alvarez-Machain (SCT, 2004): part 2

• Courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms (see above) we have recognized. o The ATS is a jurisdictional statute, and it does not create a cause of action for violations of international law. For a claim to be recognized by a federal court, the international-law violation must be of the kind accepted and defined as specifically as those in the eighteenth century when the ATS was enacted, e.g., ambassadors' rights and piracy. • The determination whether a norm is sufficiently definite to support a cause of action should involve an element of judgement about the practical consequences of making that cause available to litigants in the federal courts. If the court were to recognize Alvarez's claim, it would support a cause of action in federal court for any arrest, anywhere in the world, unauthorized by the law of the jurisdiction in which it took place. • Five reasons for judicial caution when considering the kinds of claims that can be brought under the ATS: o Common law used to be (at time of passage of ATS) considered as something to be discovered; now it is something either made or created o Erie denied existence of any federal "general" common law o Decision to create a private right of action is one better left to the judgement of the legislature in the great majority of cases o Collateral consequences (foreign policy considerations) of making international rules privately actionable o No congressional mandate to seek out and define new and debatable violations of the law of nations.

US Con: Treaties

• Create binding legal obligations between parties to the treaty • President makes treaties, Senate advises (need 2/3 support) --> Very hard to get treaties ratified • Congressional-Executive agreements: passed the same way as a statute--> Another way to get international law • Sole executive agreements • All of the above are treaties in international law

The African Charter:

• Created Commission which can issue non-binding decisions • All States in Africa are members except Morocco • Fuller discussion of economic and social rights • Includes people's rights • Includes duties of individuals • Conscious efforts that includes regional values and commitments • African commission of human people's rights has grappled with the problem of the charter o Has problem that doesn't have any general limits on rights o Ct has used Art 27 and international law to limit this o Commission issues resolutions and guidelines, names general comments, appoints rapporteurs, engages in monitory, issues concluding observations o Commission also receives communications from individuals and NGOs o Commission has no power to issue binding judgments or remedies o If you think states shouldn't be bound then commission is a good structure • African court was then created to have power to bind o Commission tends to prefer negotiating settlements than adversarial process o There are complaints about commission not publishing certain court decision since commission decides when and where to publish o Serious concerns about pressure from African Union to control action of African Commission • Art 60 (unique) o Commission shall draw from various instruments in Africa on HR, UNDHR, the Charter of the UN, etc. to use in its interpretation of OAU Charter • Socio-economic rights are less prominent but are implicitly included under broader rights • Charter also recognizes peoples' rights -- i.e., all peoples have a right to be equal, existence and self-determination, and freely dispose of their wealth and natural resources • Charter recognizes duties, not solely rights • Charter allows complaints to be brought by individuals, NGOs, and states • There is reporting that allows for introspection (state, writing its own report, measures itself against the norms of the charter) and inspection (the Commission reading the report and measuring the success of the state in abiding by the Charter) • Commission has various special rapporteurs for a number of issues (e.g., AIDS, prisons, refugees)

USA: general notes

• Death Penalty for children o Prohibited under the convention for the rights of the child o Prohibited under ICCPR • US Constitution in light of international law o Some clauses in the Constitution call for references to international law Congress has the power to declare war Treaty clause The president has the power to recognize foreign states, receive ambassadors o Foreign legal practices have had a role in interpreting the constitution o Should the US Constitution be interpreted in light of IL? This is not always of benefit to individual rights -- there is not necessarily a connection between IL and individual rights o Longstanding canon that if a statute can be interpreted to not interfere with international law, then it should be interpreted that way (Charming Betsy principle) Courts should not make themselves responsible for US violation of IL -- let the political branches take responsibility

Schwelb, The Influence of the UDHR

• Declaration is used as a yardstick against which to measure the degree of respect for human rights by governments, regional orgs, and specialized agencies • International treaties and conventions sometimes make the Declaration part of their substantive and immediately applicable law o Declaration often cited in convention preambles, preambles introduce Declaration into national legal systems • Language from the Declaration is incorporated into national constitutions, municipal leg, and constitutional law

The American system: political rights

• Difference between political and civil rights o Civil refers to civil relations between people (right to contract, own housing, etc.) o Civil rights came before political rights - democratization of European states in 19th Century prompted birth of civil rights o Political rights are important and threatening to many governments (a government might not care about calls for juvenile housing, but would care about calls for free and fair elections) • Convention Art 23: right to participate in government (Art 25 of CCPR basically says the same thing) o Para. 2 gives strict categories of people that can be limited in these rights ("the law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings") • Art 23(b): right to vote and be elected in genuine periodic elections o Genuine = there needs to be real competition and voters need to be given a choice

Quality Control

• Different generations o 1st: includes civil and political rights o 2nd: Econ, social, and cultural rights o 3rd: Solidarity rights such as peace, development, self-determination, and the environment • Marks, Emerging Human Rights: A New Generation for the 1980s? o Should not be worried about a new generation • Robertson, Human Rights in the World o Expansion of human rights beyond the Universal Declaration and the two covenants being discussed o Difference between legal and moral rights o Human in human rights indicates that the rights under consideration are rights pertaining to human beings by virtue of their humanity o Are the human rights of the new generation actually rights? They're good social policy. Not legally enforceable claims • UN Gen Ass Res 41/120 o Asks member states in creating new rights to follow these guidelines Be consistent with existing body of rights Sufficiently precise Provide effective implementation machinery

CEDAW (Convention on the Elimination of all Forms of Discrimination against Women):

• Discrimination against women definition: includes gender-based violence, that is violence directed against a women because she is a woman or that affects women disproportionately o Includes violence within the family and by strangers • Arts 2 and 3: comprehensive obligation to eliminate discrim • Arts 2, 5, 10: traditional attitudes by which women are seen as subordinate to men or as having stereotyped roles perpetuate violence • Art 11: anti-sexual harassment • Art 12: equal access to health care • Art 14: rural women at risk because of traditional attitudes • Art 16: family violence and forced sterilization or abortion

UN Security Council:

• Dominated by great powers • 15 members: 5 permanent, 10 elected rotating seats • Resolution needs 9 yes votes and no "no" votes from permanent members o Can vote yes, no, or abstain • Chapter 7: strong actions to threats/breaches of peace and acts of aggression • When SC adopts a measure it's binding on UN • If there's a breach of peace o Art 41: non-force (e.g., econ sanctions) o Art 42: if non-force isn't effective, then can use force either by UN or by members o Art 51: nothing prohibits collective defense of an armed attack o Art 2 para 4: prohibits use of force against politically independent states Thus, except for defense, the UN has a monopoly on military force o Art 103: UN charter obligations trump all other obligations - super treaty

SAS dissent

• Doubtful that the blanket ban satisfies a necessary ban, and it is not necessary in a democratic society • Caselaw on what constitutes the rights and freedom of others is unclear • People's fear with the veil stem more from people's interpretations of the meaning of the veil • Freedom of expression is supposed to protect not just approved opinions, but shocking and offensive ones as well • Human interaction does not require the full face to be shown (e.g., skiing, costumes) • Values of tolerance can be interpreted to accept religious dress codes • France is employing a selective form of pluralism • Blanket ban is not appropriate - the burqa is closely associate with an intimate right to wear one's personality • HRC: expelling a student for wearing a hijab = violation of Art 18 of covenant • Should not be a margin of appreciation in this case • Criminal sanction is disproportionate consequence • There can always be less restrictive measures • Criminalization of full faced veils is disproportionate for the alleged goal of protecting the idea of living together

Taking a complaint to the European Court:

• ECHR requires an applicant to be a victim of the alleged violation, the court will not entertain in abstracto or general complaints about human rights • Art. 34: must be a victim to apply to court • Art 35: (1) the court will only deal with issues after all domestic remedies have been exhausted; (2) Court will not take anonymous or previously examined cases; (3) application must comply with protocols of ECHR; (4) the court can reject anything it considers not a significant disadvantage • Note more than 90% of all applications are dismissed for failure to exhaust domestic remedies

European vs. American court

• Europe: committee of ministers pursuing some of the remedial changes o The Court doesn't usually order the change, the committee is the one pressuring change • IA Court: the one pushing the change

Customary law and human rights:

• Ex. debate over apartheid: forum for expressing CIL and established CIL against racial discrimination • If a state says they're not doing something (i.e. torture), but they're actually doing it, it doesn't count as practice if you deny its going on • Some have argued that the criteria for HR CIL should be loosened to make it easier to go after violating states • Should the obligation of HR CIL be taken out of the hands of states? Who should it be given to?

Heinkin, Age of Rights

• Expansion has led to the balancing principle of weighing individual liberty against public interest when they inevitably conflict in order to determine limits of these rights • Economic & Social Rights: granted by Congress, so they face more political and budgetary restraints than constitutional rights. E.g. welfare programs (and the progressive taxation on which it relies), economic regulations face opposition from conservatives • De facto discrimination and poverty still exist, but civil/political and economic/social rights are still "alive and reasonably well" in the US • Note 1: Constitutional rights are not absolute despite the language of "Congress shall make no law..." They often contain limiting terms (e.g. excessive bail, cruel and unusual), although right to trial by jury is generally absolute (except for petty offenses)--> Bills of Attainder: bill that declares some person(s) guilty of a crime and punishing them w/o a trial; neither states nor US can use this • Note 2: Balancing of rights against public interest to determine whether discrimination is justified—raises questions about court's capacity to adequately assess relative weights of rights & interests. Should addition of new rights be done by constitutional amendment instead of judicial interpretation? • Note 3: Substantive Due Process - new rights that come from the idea that we should not deprive liberty w/o due process of law, comes from DP clauses of 5 and 14 amendments. • Note 4: Int'l Human rights do not require constitutional character, many individual rights are governed/protected by state laws & constitutions

Fedotova v. Russian Federation: facts

• Fedotova, Russian national, claims to be a victim of Russia; pro se victims before HRC don't have to say what rights were violated - committee will figure it out • She held up signs saying "homosexuality is normal" and "I am proud of my homosexuality" near a school inn Ryazan • Prosecuted under 3.10 of the Ryazan Region Law, punishing public aimed at propaganda of homosexuality among minors

Doctrine of Non-Self-Execution:

• Foster v. Nielson (1829) held that application of Article VI, Clause 2 depended on whether treaty provisions were non-self-executing or not • President attached to ICCPR reservations a "declaration" that ICCPR's substantive provisions were not self-executing - similar declarations get attached to other treaties (including International Convention on Elimination of All Forms of Racial Discrimination and the Covenant against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment) o Scholars have critiqued this on the ground that (1) declarations by the president don't supersede judicial role of interpreter and (2) declaration is contrary to object and purpose of Covenant • Sosa v. Alvarez-Machain (2004) SCOTUS held that ICCPR was non-self-executing o Dispute over whether the court had held that non-self-executing treaties could never form the basis for a judicial decision or whether non-self-executing treaties could form the basis of substantive decision-making but not support causes of action (though sweeping language encourage the former) o "Covenant does not 'itself create obligations enforceable in the federal courts' and hence could not 'establish the relevant and applicable rule of international law' for an action under the federal Alien Tort Statute" • White v. Paulsen (9th Cir. 1974) had previously declined to give weight to the non-self-execution declaration, but nonetheless held the treaty to be non-self-executing based on language of the treaty itself (e.g. does not purport to create rights of action, "agrees to" undertake implies further action rather than immediate self-execution)

Garavito and McAdams, "A Human Rights Crisis?": intro

• Four structural transformations pulling HR field in different directions o Rise of emerging powers in the global south fragment the political arena and with it control over the creation and implementation of HR standards Countries are learning new tactics on how to fight NGOs, and NGOs are gaining strength through access to social media o Range of actors and strategies is changing -- naming and shaming isn't working and is being replaced o Social networks have the potential to accelerate political change o Environmental degradation is a growing threat to HRs, facing HR against economic development

S.A.S. v. France (Part I):

• French national who lives in France is a devout Muslim who wears a niqab and says the French law prohibiting concealing of the face in pubic is discriminatory • Victim issues: she has never been apprehended by the state, she thinks she is a potential victim o Court find potential victims can bring a case o Also, she doesn't need to prove she's Muslim • France tried to argue she did not exhaust domestic remedies; however, there were cases brought in the past already covering the same issue and the French courts upheld the law, so she functionally exhausted all remedies. Court allowed her to bring the case • France also tried to argue that she was not a proper victim, court denied this claim for the similar reasons to the potential victim claim • She claimed Art. 3 (no degrading treatment) and Art 14 (enjoyment of rights and freedoms regardless of religion). o Court dismissed these claims because her suffering did not meet the min level of severity o Also dismissed Art 11 freedom of association claim • The court accepted her claims for Art 8 (private life), 9 (freedom to manifest religion), 10 (freedom of expression) taken separately and together with Art 14

Yatama v. Nicaragua (Court): Violation of Arts 23 and 24 of the American Convention

• Fundamental principle of equality and non-discrimination has entered realm of jus cogens • States are obliged not to introduce discriminatory regs into their laws • Art 24 prohibits any type of discrimination -- establishes a right that also entails obligations for the state to respect and ensure the principle of equality and non-discrimination in the safeguard of other rights and in all domestic laws that it adopts • Issue of whether Nicaragua restricted unduly the rights in Arts 23 and 24 • American convention promote strengthening of democracy • Art 23 also establishes right to take part in the conduct of public affairs, to vote and be elected, and to have access to public service • How does Art 23 relate to this case? o Art 23 begins with "every citizen" rather than every person which is unusual in HR law o Restrictions on any of these enumerated rights can only "be necessary to satisfy urgent public interest" and be "proportional"

Kokkinakis v. Greece: opinion

• Greece's sentencing (in the Lasithi Criminal Court and the Crete Court of Appeal) violates Article 9, UNLESS: (1) it is prescribed by law, (2) directed at one or more legitimate government aims in Article 9, para. 2, and (3) necessary in a democratic society • (1) Prescribed by law o Section 4 of the law against proselytism is vague, but that is necessary in order to keep pace with changing norms and circumstances. Criminal prohibitions on proselytism thus depend on practice, and national case law affirms that Kokkinakis' actions were prohibited by law. o Section 4's constitutionality is up to Greek courts in the first instance to decide which it upheld in Hadjianastassion v. Greece • (2) Legitimate aim o Greece: a democratic society has to ensure the peaceful enjoyment of the personal freedoms of all those living on its territory o Kokkinakis: religion cannot be excluded from public debate o Greece's aim is a legit aim under Article 9, para. 2, namely, to protect the rights and freedom of all religious groups • (3) Necessary in a democratic society o The woman in question that Kokkinakis was proselytizing was a cantor's wife o Plain facts of the case suggest that Kokkinakis violated the law by entering the woman's home on false pretext and tried to delude her Kokkinakis starts by saying "I have good news" and "you can be saved from hell" - argument is made that he misleads a naïve and susceptible woman o The ECHR constantly gives a "margin of appreciation" to assess the necessity of an interference o Difference between Christian witness and proselytism - latter is a corruption of the former o Greece has not shown how the conviction was justified by a pressing social need • Art 9 is also deemed to be violated if a statute that doesn't deal with religion directly but whose implementation infringes on freedom o Conscientious objection to military service: court finds it's prtotected

Diallo case: facts

• Guinea claimed it was harmed because its national (Diallo) was harmed; Guinea was engaged in diplomatic protection of Diallo, a businessman who had settled in DRC and founded 2 import-export companies • In reaching its decision, the court notes that it is not bound by HRC's interpretation of the ICCPR or by regional courts' interpretation of their instruments; but it takes it into account and uses it to interpret hard law (secondary soft law)

Dominguez v. Nevada (NV SCT 1999):

• Guy sues saying that he can't get the DP bc the US is a party to the ICCPR which prohibits the DP for minor • Court holds that the US had a legal reservation and that the death penalty for minors is legal • Rose dissent: Art 4 says no derogation of Art 6 (which includes no death for minors) so the reservation isn't legal o Question as to whether the US is even a party to the treaty • Should the courts even try to resolve this dispute? o Courts generally do not feel empowered to contradict the president and Congress on the validity of the reservation

Minister of Health et al. v. Treatment Action Campaign et al. (Constitutional Court of South Africa, 2002):

• HIV/AIDS epidemic in South Africa -- perceived shortcomings in its response to an aspect of the HIV challenge • Crux of the problem: what is going to happen to mothers and babies who cannot afford access to private healthcare and do not have access to research and training sites o Claims: Government (1) refused to make an antiretroviral drug available in the public health sector where the attending doctor considered it medically indicated and (2) did not set out a timeframe for national program to prevent mother-to-child transmission of HIV o Issue is over whether the restrictions are unreasonable against the constitution's command that the state afford the right to everyone to have access to public health care services and the right of children to be afforded special protection • Minister of Health said nine years later that Nevirapine would still not be made generally available -- each province was going to select to sites for further research, and use of the drug would be confined to such sites o What about mother who cannot afford access to private health care and do not have access to the research and training sites? • Court held this is not reasonable o State's obligation is to take reasonable measures progressively to eliminate or reduce the large areas of severe deprivation that afflict society -- must ensure that legislative and other measures taken are reasonable o To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavor to realize o To the extent that the government limits the supply of the drug to its research sites, it is the poor outside the catchment areas of these sties who will suffer There is a difference between those who can afford to pay the services and those who cannot o Children have a right to health care -- and a dose of the drug for the purpose of protecting the child is essential • Limit judicial review to reasonableness while exercising fact finding authority to decide what is reasonable o Court is also under the duty to ensure effective relief is granted • Orders o Government must devise and implement a program to ensure that mothers have access to health services to combat mother-to-child HIV transmission o Remove restrictions on nevirapine distribution

Cases on Religious Freedom and Art. 9

• Hasan and Chaush v. Bulgaria: violation of Art. 9 when Bulgaria recognized one Muslim leader and not another - govt must maintain neutrality and impartiality • Serif v. Greece: In the case of a schism, the role of the state is not to remove the cause of tension, but to ensure that competing groups tolerate each other • Cha'are Shalom Ve Tsededk v. France: France refused to grant Jewish association access to slaughterhouse; Court sided with Government bc it's in the government's interest to aviold unregulated slaughter carried out in conditions of doubtful hygiene • Wingrove v. United Kingdom: upheld blaspheme statute

Committee on ECSR: The Right to the Highest Attainable Standard of Health, Gen. Comment 14:

• Health: fundamental human right indispensable for the exercise of other human rights (Art 12) o Includes environmental and industrial hygiene • Human right to health recognized in numerous international instruments o Art 24.1 of UDHR: "everyone has the right to a standard of living adequate for the health of himself, and of his family, including food, clothing, housing, and medical care and necessary social services" o Art 12.1 of the CESCR: State parties recognized "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health" • Right to health closely related and dependent on realization of other HRs: right to food, housing, work, edu, etc. • Normative content of Art 12 o Right to health, not right to be healthy -- rights to health contains both freedoms and entitlements Freedoms: right to control one's health and body, including sexual and reproductive freedom, freedom form interference (torture, medical experimentation) Entitlement: right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health • "Highest attainable level" takes into account individual's biological and socio-economic preconditions and a state's available resources Elements • Availability of healthcare facilities • Accessibility -- without discrim, physical and economic (affordability) accessibility • Acceptability -- respectful of medical ethics and culturally appropriate • Quality • General legal obligations o State parties have immediate obligations in relation to the right to health o The progressive realization of the right to health over time should not be interpreted as depriving state parties' obligations of all meaningful content o Three types of obligations Respect: requires states to refrain from interfering directly or indirectly with the enjoyment of right to health Protect: take measures that prevent third parties from interfering (e.g., regulate food prices) Fulfill: adopt appropriate legislative, administrative, budgetary, judicial, promotional, and other measures • Facilitate: increase ability for people to enjoy rights on their own efforts • Provide: directly providing goods and services when individuals can't get them on their own • Promote: additional things the state can do (basically the same as the first 2) • Core obligations o Ensure right of access to health facilities, minimum essential food, basic shelter/water, essential drugs, equitable distribution of facilities/goods/services, adopt and implement national public health strategy

Velasquez Rodriguez v. Honduras (IA Court, 1988): notes

• Here the court employs iurit novit curia: the court knows the law o You tell us what happened, we'll tell you what laws were violated o Frequently used by international courts • Does the state always have the duty to investigate HR abuses? o This case makes it seem like there is o But is there a duty to punish the judges that didn't bring charges (since that's an HR violation)? Or a duty to punish the police that didn't investigate?

Velasquez Rodriguez v. Honduras (IA Court, 1988): holding

• Honduras defense: family failed to exhaust domestic remedies o Fails to give evidence on the merits • Court finds violations of all based off a duty to "ensure" rights, so a violation of specific obligations in conjunction with Art 1 (obligation to respect rights), not Art 2's duty to have a legislative framework o This is the origin of the IA Court's standard way of discussing violations regarding positive obligations o Any violation of rights recognized by the convention carried out by an act of public authority or persons who use their position of authority is imputable to the state o What is decisive is whether the violation has occurred with the support of the state, or whether the state has allowed the at to take place without taking measures to prevent it or to punish those responsible o State has a duty to prevent HR violations and investigate every situation • This case: No investigation was undertaken, failure to pay compensation and punish those responsible o We don't even know if he's dead - thus not sure that his right to life was violated, but failure to investigate amounts to failure to ensure life • What if they were non-state actors? o Court says still a violation because of a duty to prevent and investigate o Due diligence principle - this is what the state can be held liable for

UN POLITICAL MECHANISMS: general notes

• Human Rights Commission - dissolved in 2006, replaced by HR Council o Pol bodies made up of states HR Committee: created by CCPR - made up of experts and serves the interest of human rights, not states o A legal body

Readings on Reservations:

• Human Rights Committee, Issues Relation to Reservations to Article 41 (General Comment No. 24) o Art 41 deals with the competence of the Human Rights Committee to make decisions o Outlines varying things that cannot be reserved (customary international law, torture, slavery, etc.) o The committee must decide whether a specific reservation is compatible with the object and purpose of the covenant o Reservations must be specific • Human Rights Committee, Comments on the Report of the US o The US has only accepted those provisions which are already US law; reservations to Arts 6 & 7 are incompatible with the purpose of the covenant • Human Rights Committee, Continuity of Obligations o The ICCPR does not allow a state to denounce or withdraw from the treaty once the state has ratified the treaty

INTERNATIONAL COURT OF JUSTICE: general notes

• ICJ is the principal judicial organ of the UN (See UN Charter, Art 92) • Two types of jurisdiction o Advisory Article 65(1) of ICJ Statute says Court can issue advisory opinion on any legal question at the request of any body authorized by UN Charter to make such a request Article 96 of the UN Charter empowers the General Assembly, the Security Council, and other agencies so authorized by the General Assembly to make requests Only UN organs can get advisory opinions Not made binding Institutions generally comply with advisory opinions o Contentious Extends only to states that have consented to its jurisdiction States typically consent to ICJ jurisdiction in a treaty's compromissory clause providing for submission of disputes to the Court (for instance, Article IX of the Genocide Convention)

Self-executing treaties

• If treaties are not self-executing, it takes further action to make the treaty judicially enforceable o Ex. need to pass the leg to enforce a treaty (here the courts are actually enforcing a statute) o Don't always need new legislation - sometimes Congress may have already delegated authority to the executive via already existing statute • Why would a treaty not be self-executing? o There are certain treaties that can only be executed via statute --> Ex. treaties that create crimes - federal crimes are required to be enacted via statute o Senate doesn't want the treaty to be self-executing

African Sub-Regional Courts:

• In 1998, the African Court on Human and People's Rights is created via protocol to the African Charter • The Court came into force in 2004 • The Court can interpret the African Charter, the Protocol, or any other applicable African Human Rights instrument by the African Commission, a complainant state, or a respondent state • First judgment came in 2009; only 11 decisions so far • Court is creative in remedies similar to IACHR • There are two other regional courts: the Economic Community of West African States (ECOWAS), with 15 member states, has two courts; and the South African Development Community (SADC) has a court that covers 15 member states • African Ct's authorized powers are much broader than those allocated to European and IA court o Adjudicative and remedial - broad advisory jurisdictions, binding adjudications • States must agree to court's jurisdiction • For individuals or NGOs trying to bring a case, the state needs to agree to permit that special jurisdiction (9 states currently give their permission) • Court has decided 30 cases and has 146 pending

Djazia and Bellili v. Spain (Committee on ESCR), recommendations

• In respect of the authors o In the event that the authors do not have adequate accommodation, assess their current situation and grant them public housing o Award the authors financial compensation for the violations suffered o Reimburse the authors for the legal costs incurred • General recommendations o Adopt legislation so a judge in an eviction proceeding can consider the consequences of the eviction and its compatibility with the covenant o Adopt measures to resolve the lack of coordination between court decisions and actions of social services o Ensure that evictions involving persons without means of alternative housing are carried out only following genuine consultation o Create a plan to implement right to adequate low-income housing

Intersection of HR law and Humanitarian Law

• International Humanitarian Law (IHL) o Humanitarian definition: may include human rights, protection of civilians and soldiers during war, prohibition of certain weapons • Relationship between IHL and IHR o Some argue that IHL is lex specialis: a type of special law that is specific to war o US has argued that IHL is lex specialis - institutions should only look at these issues during war o "To respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant" (CCPR Art 2) US focuses on the "and" - says those individuals not dually within its territory and subject to its jurisdiction aren't covered (I.e. acts outside a country's borders don't count) Does this modify just "ensure," or does it include "respect" as well?

Hirst v. UK

• Issue of people voting while they're serving a prison sentence • Prisoner claims it's a violation of European Convention • Ct held that blanket denial of right to vote to all prisoners was disproportionate • This case turned into a major controversy among London newspapers. o British government dug in its heals and didn't want to comply • The court modified its caselaw somewhat - saying you needed to be convicted of something election/voting related in order to lose your right to vote • Brexit is about leaving EU, not Council of Europe • Committee of Ministers found a compromise: some narrow group of prisoners (e.g. minor crimes parolees) given right to vote

Statehood Solidarity Committee USA (Commission):

• Issue over DC statehood • Because citizens do not have the right to vote for a representative in their national legislature, they have been denied equal right under law (Art II) and right to participate in government (Article XX) under the American Declaration • A degree of deference should be given -- but this amounts to a violation of Art XX rights to participate in national legislature • Congress exercises significant power over DC yet DC has no say • Historical justifications for this have passed -- no viable present-day justification • No other country in the Western Hemisphere denies the residents of the capital city the right to vote • This doesn't mean that DC residents should be given the same means or degree of participation of state residents -- but they must have the opportunity to exercise a meaningful influence on those matters considered by their governing legislature • Is the Commission telling the US to change its Constitution? o Well, DC could become a state and this wouldn't require a change o They could shrink DC to a tiny area o Could give DC back to Maryland • US Response o Petition is inadmissible o Fails to state a claim under the Declaration o This matter is within the discretion of the US o The political system challenged is simply not appropriate for review by the Commission - better left to domestic political process • Dissent o Is of the view that the principle should prevail that states only acquire obligations under international law by their consent (except for customary law) o The US did not consent to obligate themselves in respect of political rights in such a way that it could be determined that they have violated those obligations by failing to reform their political systems o This type of issue should be dealt with by the commission and other organs of the OAS via their promotional functions rather than by deciding on a

Wesely Hofeld

• Legal relations • Defined rights and legal concepts in relational terms • Rights about relations between people --> I have a right to x, you don't, and you have an obligation to respect my right to x • Some legal traditions have never heard of this - can't assume that others are aware of it

Konaté v. Burkina Faso (African Ct. Human & People's Rights, 2014): notes

• Looks to HRC, European and IA courts o Art 60 suggest that court looks more generally to the body of HR adjudication • Court concludes that freedom of expression should be adjudicated according to European method o Restriction provided by law o Serves legitimate purpose o Necessary and proportional • May be a concern of looking to outside sources that do not align with African values and that states did not consent to be bound by o Is there too much discretion?

Sei Fujii v. State 38 Cal. 2d 713 (1952):

• Lower California court had in favor of Sei Fujii that Alien Land Law violated Articles 1, 55, 56 of UN Charter o Claim is that discriminatory land laws in California violate the rights of Japanese land owners under Article 53 of the UN Charter • California Supreme Court ruled that the Charter only declared general purposes and objectives of the United States and didn't purport to create legal obligations on individual nations or private rights in private persons o "Look to the intent of the signatory parties as manifested by the language of the instrument" o Court focuses on language of treaty, noting lack of "rights" defining language, noting Charter's general talk about obligations o Framed as promises of future action, neither mandatory nor definite • Wasn't appealed to Supreme Court, leaving some to think (probably unrealistically) that the question of the Charter's non-self-execution was still open to dispute

Honduras, 2009:

• Main example of the Democratic Charter • President was removed after trying to amend Constitution to allow president to serve more than 1 term - this freaked everyone out and they demanded his removal • Left-wing president, right-wing congress • Large contingency of nations angry, OAS got 2/3 of states to vote to suspend Honduras • Honduras not totally removed from OAS: still has the obligations of an OAS state but none of the rights • Only time this happened

Kokkinakis v. Greece: facts

• Minos Kokkinakis converts and becomes a Jehovah's Witness • He is then arrested more than 60 times for proselytism • Relevant Greek law consists of Greece's 1975 Constitution's Article 3, which establishes Greek Orthodox as dominant religion not to be contradicted; Article 13, which provides for freedom of conscience in religious matters • Greek Law no. 1363/1938 section 4 prohibits proselytism, defined in section 2 of Law no. 1672/1939 as: any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion - via inducement, or by fraudulent means, or by taking advantage of inexperience, trust, need, low intellect or naivety • Kokkinakis then sues, saying his arrests violate Article 9 of the Convention

CUSTOMARY INTERNATIONAL LAW: general notes

• Most customary rules say what the law is, absent a treat o What the rules are among states and states can come up with their own rules • Rules of diplomatic immunity: rules of state A to state B with regards to state B's diplomats • States can come up with their own rules • Customary law = practice + opinio juris --> Ex: customary law about flying aircraft over territories - Practice: seek permission to fly over - ask for this because they think they are legal binding; Opinio juris: what states think the law is: I'm doing x because I think it's the law The practice needs to be general - not just one state doing it, but many Pattern of repetition of action/inaction, accompanied by opinion that this is what the rule is = customary law

Universal Periodic Review: readings

• National Report Submitted in Accordance with Paragraph 5, USA o Intro starts with praise for commitment to human rights o Details challenges including civil rights and discriminatory policing, national security and counterterrorism concerns, Guantanamo Bay, as well as aspiration for the future • Compilation of Info Prepared by the Office of the UN High Commissioner, USA o Reiterates previous concerns about implementation of treaties like CERD o Addresses death penalty and other issues highlighted by Special rapporteurs of violence against women, extra judicial executions, etc. o Gradual suggestions for improvement - rather than abolishing death penalty due to unequal application based on race, for example, HR committee suggests strengthening safeguards against discrimination • Summary of Stakeholder Comments on US o From 47 international and national NGOs o Broader than the material contained in the US report - covering more issues or areas of improvement than in the compilation of information o Says which NGO raised each issue or recommended each change • US's Views on Conclusions, Voluntary Commitments and Replies o US supports some, supports others in part (and explains why), and states clearly that they disagree with others, such as those that call for the abolition of the death penalty

What is a human right:

• No definition - at its core it embraces a set of values involving human dignity, but where these values come from is mixed o Human dignity: an individual or group feels self-respect and self-worth o Fundamental entitlement that attaches to people by virtue of being human What makes something a human right o It is a right that belongs to someone inherently Where do human rights come from o Political philosophy and law o Also religion -- but in religion duty isn't owed to an individual, it's owed to God -->Thus, the commandment not to kill doesn't create a human right

Lautsi v. Italy: holding

• No violation of Art 2 of Protocol No. 1 and Art 9 of Convention (right to freedom of thought) o No evidence that the religious symbol has an influence on pupils o A crucifix on a wall is a passive symbol that does not have the kind of effect of didactic speech or participation in religious events o The presence of crucifixes is not associated with compulsory teaching about Christianity o Italy opens the school environment in parallel to other religions • Real focus in on Art 2: right of education o The state shall ensure a respect of parent to have an education that doesn't conflict with their religious principles • Here, the majority opinion writes in a highly formalistic and institutional way, while individual judges write more personally (just like the HR Committee) • Italy's argument: the cross is just hanging on the wall, it's not a curriculum • Margin of appreciation: deference doctrine in ECHR - should defer to policy makers within the state o There will not be an identical appreciation - there's a margin o There are some cases where the MoA is zero (e.g., torture) o Giving some room where the state understand some matters better than the court does • Court is looking at what is the practice in Europe o Is there a European

Public international law

• No world legislature • 3 sources of international law" o (1) Customary international law --> Not rules based on a treaty - rather they rise organically --> General practice accepted as law --> Earlier centuries mostly relied on customary law --> Ex. diplomatic immunity, rules of war and neutrality, rules about the use of the sea o (2) International agreements (treaties, protocols, covenants, etc.) --> Can be bilateral, multilateral, regional, universal --> Pacta sunt servanda: agreements are to be observed (A rule of customary and treaty law (instituted in the Vienna Convention on the Law of Treaties)) Treaties not binding to nonparty states (3) General principles When courts/other entities are in a dispute, certain issues come up (Ex. damages (how to calculate), country waited too long to sue)

Notes on CEDAW:

• Not a general gender non-discrimination treaty, just focuses on women • Is gender-based violence more serious that violence that happens to affect women? o No argument: violence is violence o Yes argument: patriarchal system so entrenched that we may need to do more • CEDAW faces the issue that it is a non-discrim treaty not a general HR treaty that includes a woman's general rights to physical/mental integrity • Whenever there is gender-based violence in a CEDAW party, is there a violation of the treaty? o Only states can violate the treaty o State's responsibility is not to 100% guarantee no gender-based violence, but rather to decrease the risk of violence o States commit violations, individuals commit abuses

The Social and Economic Rights Action Center (SERAC) v. Nigeria (African Commission, 2001): holding

• Obligation of states is to respect, promote, protect, and fulfill HRs o Respect: refrain from interfering At a socioeconomic level this means that the state is obliged to respect the free use of resources owned or at the disposal of the party o Protect: prevent interference from others Generally entails the creation and maintenance of an atmosphere or framework via laws and regulations o Promote: similar to protect, raise awareness and build infrastructures o Fulfill: affirmative obligations to provide institutions and mechanism for right's enjoyment • Claim that Nigeria's actions violate right to health under Arts 16 and 24 of Charter by contaminating Air, water and soil o Art 16: right to the best attainable physical and mental health o Art 24: general satisfactory environment - interpreted to prevent pollution • Government compliance with these articles requires at least independent scientific monitoring of threatened environments • Government also has the responsibility to protect against damaging acts perpetrated by private parties • Although the action was done by Shell, Nigeria facilitated the pollution by permitting the actors to pollute • Nigeria fell short of the minimum conduct required by Art 21 of the African Charter o Art 21: protecting against the depravation of people's wealth and natural resources • Also violated the right to housing/shelter, which is not an explicit right, but is created by the Charter via the right to property (Art 14), right to health (Art 16), and right to family life (Art 18) o The implied right to housing was violated by forced evictions of Ogoni from their homes • Right to food, implicit in right to life (art 4), health (Art 16), and right to econ and social development (Art 22) • Also an explicit violation of Art. 4 right to life via the killing of Ogoni people • International law and HR must be responsive to African circumstances

How Do Reservations Work:

• Old rule: everyone has to agree to a reservation • New rule: country proposes a reservation, other countries can object o If a country objects, the whole provision that the reservation pertains to goes away for the reserving state • Ex: US free trade - Canada objects to US reservation on wheat o Entire ag provision goes away for US any country can impose tariffs on US ag goods (and US can impose tariffs on them) • Some think this is too extreme for human rights treaties

THE EUROPEAN CONVENTION: general notes

• Oldest, most effective, largest caselaw • ECHR under the Council of Europe • European Convention is mostly civil and political rights • Subregion of EU states - EU has thicker HR caselaw • Post-Cold War: got rid of 2 stage process (where it went to a commission to decide admissibility, then to a court), and just went straight to court • European Court: 47 judges (one per state), registry of 400 employees, sit a max of 17 judges on any one case (called a Grand Chamber), some 3 or 1 judge panels (usually decide admissibility, whether cases are repetitive) • Individual and interstate cases (interstate cases infrequent, generally relate to armed conflict) • More effective at getting compliance than other bodies - states will almost always pay up

HRC, General Comment No. 31:

• Paragraph 6: obligation is both negative and positive • Paragraph 8: o Obligations are binding on states and do not, as such, have direct horizontal effect as a matter of international law Horizontal is between private parties while vertical is between states and victims/perpetrators o But, doesn't mean that only vertical abuses can amount to violations: states also must respond to acts committed by private persons or entities that would impair that enjoyment of covenant rights in so far as they are amenable to application between private persons or entities Leaves the door open to some rights that aren't applicable to parties • E.g. Art 9: due process reqs - state may have a job to stop arbitrary detention, but doesn't have an obligation to ensure that detention has due process • E.g. states not required to ensure private elections at schools, businesses, unions, etc. are fair Due diligence req • May be instances of violations where states as a result of permitting or failing to take appropriate measures or to exercise due diligence to prevent punish, investigate or redress the harm caused • Paragraph 15: failure to investigate is a separate breach • Paragraph 16: reparation may require brining abuser to justice

Strakohv v. Uzbekistan and Fayzullaev v. Uzbekistan: communications procedure, facts

• Parents of Strakov and Fayzullaev had filed individual petitions against Uzbekistan on behalf of their sons, who had both been executed by Uzbekistan following death sentences as co-defendants in a crim case • When communications to the HR Committee were first filed after the death sentences but prior to the executions, the Committee requested that the State Party not carry out the executions until the HRC examined the cases; Uz executed them anyways

Kiobel v. Royal Dutch Petroleum (SCOTUS, 2013):

• Petitioners are group of Nigerian nationals residing in US who file suit in federal court against Dutch, British, and Nigerian corporations under ATS alleging that the corporations aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria. • Question for the court: Can a claim under the ATS reach conduct occurring in the territory of a foreign sovereign? • Canon of presumption against extraterritorial application: when a statute gives no clear indication of an extraterritorial application, it has none. • Court (Roberts writing for the majority) finds that although the ATS does not directly regulate conduct or afford relief, the above canon should similarly constrain courts considering causes of action that may be brought under the ATS. • Court looks to legislative history, historical background against which the ATS was enacted, conclude that Congress did not expect causes of action to be brought under the ATS for violations of the law of nations occurring abroad. • No indication that ATS was passed to make the US a uniquely hospitable forum for the enforcement of international norms • Even where the claims touch and concern the territory of the US, they must do so with sufficient force to displace the presumption against extraterritorial application (mere corporate presence does not suffice) • Breyer, Ginsburg, Sotomayor, Kagan, concurring: o Would not invoke presumption against extraterritoriality o Would find jurisdiction under the ATS where The alleged tort occurs on American soil The defendant is an American national The defendant's conduct substantially and adversely affects an important American national interest, including interest in preventing the US from becoming a safe harbor for a torturer or other common enemy of mankind. • Notes o This doesn't fully eliminate HR claims -- TVA allows claims under color of foreing law

Soft law: general notes

• Soft law is not an official term • Soft law looks like hard law, but isn't because it isn't authorized • Primary soft law: made by states interacting with each other • Secondary soft law: made by institutions created by states • Soft law examples: UDHR, declarations • Declarations may be precursors to future treaties • Judgements/rules issued by regional courts may be soft law • Political agreements (Iran Nuclear Deal) are soft law bc they're not binding treaties • Soft law can provide guidance, focal points for pressure, can be codified as hard law later

Filartiga v. Pena-Irala (2d Cir. 1980):

• Plaintiffs file suit in Eastern District of NY, alleging that defendant kidnapped and tortured plaintiff's son while Inspector General of Police in Paraguay. District Court dismisses complaint on grounds that the law of nations excludes that law which governs a state's treatment of its own citizens. Plaintiffs appeal. o Both plaintiff and defendant live in the U.S. • 2d Cir. finds that torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties → is part of the law of nations; federal jurisdiction established • The law of nations may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law." US v. Smith (SCOTUS, 1820). • Requirement that a rule command the "general assent of civilized nations" to become binding upon them all is a stringent one. • Courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today. • Court looks to UN Charter, UDHR, Declaration on the Protection of All Persons from Being Subjected to Torture, American Convention on Human Rights, European Convention for the Protection of Human Rights and Fundamental Freedoms, to establish that ban on official torture is part of law of nations and that international law confers fundamental rights upon all people vis-a-vis their own governments o Treats UDHR as customary international law o Essentially goes through a long analysis of why torture violates international customary law • ATS can be brought against defendants found in US -- may be living there, vacationing o It could be that the principal isn't in the US, but someone that helped (e.g., aider and abettor) is in the US (e.g., a corporation) o Lawyers can put in-direct pressure on a foreign state by putting pressure on companies that do business with the state

Why have these (ICC) courts:

• Political will o Requires states to cooperate; doesn't function as a regular court (has very little power) so it requires states' help • Peace vs. justice o Will insistence on justice prolong conflict and encourage people to keep fighting? (there seems to be little evidence of this actually happening though) • Lack of universality o A lot of big and powerful countries are not members

Roth, "The Pushback Against the Populist Challenge":

• Populism in the US has led to a vacuum in the HR sphere taken advantage of by Chinese and Russian anti-rights agendas. The necessary response has been coalitions of small and medium-sized countries • Populism responds to real problems in the world but addresses them through scapegoating rather than by proposing genuine solutions. Responding requires both addressing the underlying grievance and reaffirming rejected HR principles • France: rather than adopting nativist positions in order to compete with populists, Macron embraced democratic principles. But, mixed record in practice. • USA: Broad rights affirming in response to Trump, but Trump still able to take regressive steps by executive action. Tillerson rejected promoting HR in foreign policy. But some officials and Congress have stopped Trump from completely abandoning HR principles • Germany: Although far-right party won some seats, elections showed that parties with principled confrontation did better than those with emulation • Poland and Hungary: public protest and pushback/threats from EU institutions have impeded populist movement • Venezuela: Maduro still oppresses and clings to power, but protests show a push by the Venezuelan people o Lack of response to populism • Where domestic resistance suppressed and international concern lacking, populists have succeeded more o See Turkey, Egypt, Saudi Arabia, Russia, China, Burma • But pushing back can work o Africa and the ICC: attempts at populist moves by African leaders to leave ICC, but only Burundi left, with civic groups persuading most countries to stay in o Series of nations able to force UN investigation into Saudi Arabian activity in Yemen despite lack of US, UK, France backing o Latin American countries joined pro-LGBT world, leading ot some pressure even inn oppressive countries like Russia

Responsibility to Protect:

• Prevention, use of force, and post-use of force • Primary responsibility is for the state to protect its own citizens - international community is secondary • Use of intervention, rebuild afterwards • Criteria (pgs. 1131-1132) o Just cause threshold o Precautionary principles • Just cause: large scale loss of life or ethnic cleansing is the threshold o Military intervention is only warranted if there is serious and irreparable harm occurring to human beings of the following kind: large scale loss of life, large scale ethnic cleansing • Precautionary principles: o (1) right intention: primary motive is to halt or subvert the killing (doesn't have to be the exclusive motive though) o (2) last resort o (3) proportionate means: minimum necessary scale and intention to achieve goal o (4) reasonable prospects: reasonable chance of success and making things better not worse • Right authority: SC usually necessary; if SC fails to act the GA might enact something with a 2/3 vote • Operational principles o Clear objectives, common military approach, acceptance of limitations, rules of engagement • Sec C. Res. 1674: endorsed R2P

Soft law: Shelton, Commentary and Conclusions

• Primary soft law: normative texts not adopted in treaty form that are addressed to the international community as a whole or to the entire membership of the adopting organization • Secondary soft law: created by institutions whose existence and jurisdiction is derived from a treaty who apply norms contained in the same treaty o Examples: general comments, jurisprudence of courts and commissions o When secondary soft law is the ultimate and authoritative determination of a legal question, it is often harder than primary soft law • Non-binding instruments: declarations that often precede UN treaties and set for the normative framework for those treaties. Used to conclude the global conferences convened by the UN. o Declarations are formal and solemn instruments suitable for rare occasions when principles of great and last importance are being enunciated o Recommendations are less formal • Whether norms are binding or nonbinding, compliance is linked to effective monitoring and independent supervision o The role of NGOs has been crucial, but without a forum to which to take the results of their investigations and the evidence they gather, they are limited in their effectiveness

Pros and cons to making human rights and important factor in government decisions:

• Pros o Protection of the individual, stronger moral high ground, presumably more governmental legitimacy, can allow corrections to disfunctions of democracy Cons o More rights = more claims on resources (allocation issues) o Certain rights to some groups might impinge on the rights of other people (cake bakers) o Religion: certain rights might not be what God wants o Loss of community? Do human rights breed excessive individualism?

Can we compile customary law and get data:

• Sometimes UN will send out questionnaires to get a sense of what the general practice is • Diplomatic conferences may resolve issues, and issue statements stating what CL is • Scholars can compile data • UN General Assembly o Not the world legislature o Might make a resolution, but is not state practice But the votes in favor or against are state practice and can be data points, thus they can be relevant • Pragmatic shortcuts o Judicial decisions that say something is CIL Ex. a judgment by ICJ - note that this isn't state practice, but it's the evidence that's probative o Domestic courts are an example of state practice o International criminal tribunals: trials based in CIL

Medellin v. Texas 552 U.S. 491 (2008), facts

• Question of whether ICJ judgments are binding on U.S. courts o Vienna Convention and Option Protocol to Vienna Convention, specifically Article 36 regarding consular relations requires that a state shall notify the relevant foreign consulate if they detain a foreign national This right is very important for U.S. citizens that have been arrested in nations with dictatorships This right does not apply to cases where the person arrested is a citizen of a country that is not a party to the treaty o Medellin and other Mexican nationals who were going to be executed had not been read their Vienna Convention rights o I.C.J. had ruled in Case Concerning Avena and Other Mexican Nationals that there had been a violation of Article 36 of the Vienna Convention

Committee on Economic, Social, and Cultural Rights, General Comment No. 3:

• Realization of relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant's entry into force for the states concern o There are immediate duties and rights that can be implemented immediately (some of these look a lot like CPR - right to edu, equal pay for equal work) o Need to take all appropriate steps • Article 2(1): "with a view to achieving progressively the full realization of the rights recognized" in the covenant - recognize not achieved in short time • Article 2(1): obligates each state to take the necessary steps "to the maximum of its available resources" - both domestic and international resources • Minimum core obligations: ensure the satisfaction of, at the very least, minimum essential levels of each of the rights incumbent upon every state party o Essential food, primary health care, basic shelter and housing, basic forms of education • Art 2: nondiscrimination immediate • Pro persona principle: HR treaties should be interpreted for the benefit of individuals not the states

Claude Reyes et al. v. Chile (Court): facts

• Refused to give all the info requested on the forestry company Trillium and Rio Condor Project that could be prejudicial to the environment and sustainable development of Chile • Commission stated that this refusal occurred without the state providing any valid justification under Chilean law • Alleged violation of Art 13 (freedom of expression): violates presumption of the maximum disclosure of info and the principles of proportionality and need imposed on restrictions to the right of freedom of expression • Under Art 13, right to seek and receive info and ideals of all kinds • Thus, Court finds that Art 13 protects the right of all individuals to request state-held info - positive obligation of state to provide this info • Regional consensus about importance of access to public info

Reparations (Court):

• Reparations: the court refers to the Alboetoe v. Suriname case o Killing and kidnapping of 6 young men and a 15 year old boy case of Sarmaka tribe o On behalf of the victim's families, the Commission sought indemnification for material and moral damages , based on resitutio in integrum , other nonmonetary reparations, and reimbursement of expenses and costs incurred by the victims' next of kin o Court had to decide which of the family members were entitled to compensation → had to choose between defining next of kin based on Suriname law, or on the Saramaka tribal customary law, which includes more expansive family. The court found that suriname's family law was not effective in the region and thus was not the local law for purposes of the case. As a result, the multiple wives and children of the victims were recognized by the ct. • Large-scale massacres o Ex: Rrio Negro Massacres v. Guatemala- series of massacres caused by Guatemalan army → due to the grave and massive scope of the massacres at issue, the Court was very expansive in the reparations granted

Lautsi v. Italy: facts

• Requirement in Italian law that crucifixes be displayed in classrooms does not violate the ECHHR • The State must take care that information or knowledge included in the curriculum is conveyed in an objective manner o Cannot indoctrinate children or fail to respect parents' religious beliefs

US reservations on the ICCPR

• Reservation on torture - lists what it considers torture (modifies what counts as torture) • Art 20 - free speech o Is there a legal problem here? Another country might object - what exactly is the US reserving? What exactly does 1st Amendment mean? Are we just tied to what the SCT says the 1st Amend is from time to time? What laws is this referring to? The constitution is not seen as a sacred doc by outside countries - its meaning changes from one generation to the next • Capital punishment o Prohibits CP for only the most serious crimes o Might object bc US is issuing a reservation of a non-derogable right (Art 6 is a non-derogable right) • US bound by Art. 7 to the extent that cruel, inhumane or degrading treatment or punishment means the punishment prohibited by the Constitution • Reserves right to treat youth as adults in exceptional circumstances

Djazia and Bellili v. Spain (Committee on ESCR), opinion

• Right to housing is essential to ICCPR -- all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment, and other threats o Forced eviction is incompatible with ICCPR o When eviction is justified, authorities must ensure that it is carried out in accordance with legislation that is compatible with the covenant • Though this is case between 2 private parties, the state has an obligation to ensure that eviction doesn't infringe on Art 11 o Obligation to protect these rights by adopting measures to prevent direct and indirect interference o The scope of the provisions of the Covenant extends to relations between individuals • Eviction can be justified when: the eviction is provided for by law, is carried out as a last resort, and the persons concerned have had prior access to an effective judicial remedy o Evictions should not render people homeless o State parties must take all appropriate measures to ensure adequate housing - any measures adopted must also be deliberate, specific and as straightforward as possible to fulfil this right as swiftly as possible o If a person is evicted and the state has not granted alternative accommodation, the state must prove that it took all reasonable measures to the maximum of its available resources • There were legitimate reasons for the court's eviction proceeding o BUT, the court ordered an eviction despite the fact that the authors did not have alternative housing • The state can set criterial that applicants must meet in order to receive social services -- but these conditions must be reasonable and carefully designed so as to prevent not only any stigmatization but also that the mere behavior of the person results in application denial o Author here met criteria yet was not given adequate housing -- violation o No evidence given that the state utilized its resources to the maximum possible extent

IA Democratic Charter:

• Soft law document • Spells out criteria to be used in the exercise of powers that already existed in the Charter • Gives clauses for the Court to interpret the Charter in context • Charter reaffirms that promotion and protections of HRs is a basic prereq for the existence of a democratic society • Art 3: essential elements of representative democracy include: respect for HR, etc. • Art 7: democracy is indispensable for the effective exercise of HR • Art 8: Any person who consider that their HRS have been violated may present claims to IA system • Art 9: elimination of all forms of discrimination • Art 10: workers rights

Claude Reyes et al. v. Chile (Court): holding

• State violated right to freedom of thought and expressions, failed to comply with general obligation to adopt domestic legal provisions arising from Art 1 and 2 of Convention o Art 1 Para. 2: tells states to observe rights o Art 2: states should implement legislation o This "in conjunction" language is common and is largely a pointless formalism • This extends right to seek information beyond those who are willing to give it now goes to those who are unwilling to provide it • Rare reference to regional consensus on right to freedom of information (gives no evidence on this) o Regional consensus rarely used -- focuses on the aspirational elements of soft law, the practices of European HR advancements, and doctrines it is the first to create

Procedural Aspects for Court:

• States must be members of convention and accepted judx of court • 3 parties have representation: the commission, the victim, the state • May order the violation to be remedied • Court has contentious and advisory judx o Contentious: court settles controversies about interpretation and application of American Convention through a special procedure o Advisory: court may interpret convention and any other treaty concerning HR in the American states; may give opinion on compatibility of domestic laws of any OAS member state with the reqs of the convention; may be set in motion by any OAS member state or organ

Steinhardt, Kiobel and the Multiple Futures of Corporate Liability for Human Rights Violations:

• Steinhardt thinks that Kiobel isn't a bar on foreign plaintiffs, as long as they o Show that the defendant has violated a Sosa-qualified norm (meaning a norm of international character accepted by the civilized world and defined with the specificity comparable to the features of the 18th century paradigms the Court has recognized), and o Show that their factual claims touch and concern the territory of the US with sufficient force to displace the presumption against extraterritoriality. Case by case / claim by claim basis • Essential problems, no clear guidance o What kind of allegations are necessary to satisfy the Kiobel test o Kiobel leaves open the possibility that the kinds of allegations that suffice to displace the presumption vary depending on whether the defendant is a corporation or an individual human being o What role international law will play (if any) in determining which claims touch and concern the US

The Social and Economic Rights Action Center (SERAC) v. Nigeria (African Commission, 2001): remedies

• Stop all attacks on Ogoni communities • Conduct an investigation into the HR violations of the NNPC • Ensure adequate compensation to victims • Ensure there are appropriate environmental and social impact assessments • Provide info on health and environmental risks

Jus Cogens:

• Subset of rules that can't be subset by a treaty - peremptory rules o Certain, fundamental, overriding principles of international law • A treaty trying to overturn a jus cogens is invalid • Exception to rule that all rules are equal to each other and need to be reconciled o Higher in the hierarchy • JC codified in the abstract in the Vienna Convention • Examples o Rule against aggressive war (can't invade for land or to get your way) o Prohibition of slavery, genocide, racial discrim, and torture • Some argue that human rights are JC • No persistent objector exception to JC o Persistent objector: a sovereign state which has consistently and clearly objected to a norm of customary international law since the norm's emergence, and considers itself not bound to observe the norm

Other Charter-Based Mechanisms:

• Subsidiary bodies of the ECOSOC, which issue reports and present findings o Commission on the Status of Women o Permanent Forum on Indigenous Issues Composed of experts - no formal procedure for active monitoring • Expert mechanism on the rights of indigenous peoples, a standing body with fixed membership that produces annual report • UN Secretary-General and High Commissioner on Human Rights have staff that support work of SPs, UN bodies, HR Council • For a provide opportunity for discussion between states and NGOs on thematic issues and may also issue recommendations or advice on conclusion of meetings

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: general notes

• Synthesis of civil-political rights and social-economic rights • Art 3-11, personal liberties; Art 22-27, economic/cultural rights • Aspirational document • Adopted as nonbinding statement of principles, now customary int'l law o Schwelb, Influence of UDHR on Int'l and Nat'l Law (1959): Declaration is benchmark against which to measure countries; Language incorporated into national constitutions, constitutional law, municipal legislation • Includes right to seek and enjoy asylum • Right to property • Created almost entirely from English-speaking sources, does not include provision providing protection of minorities

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: general notes

• Synthesis of civil-political rights and social-economic rights • Aspirational document • Adopted as nonbinding statement of principles, now customary int'l law • Includes right to seek and enjoy asylum • Right to property • Created almost entirely from English-speaking sources, does not include provision providing protection of minorities • Signed in 1948: general assembly resolution • GA doesn't have a lot of leg power - adoption of the dec didn't make it international law o Not a binding legal treaty • Starting point for many post-war constitutions • Decolonization and apartheid made human rights a focus for the UN in 1950s and 60s • Highly aspirational • Most of it has been embodied in treaties and absorbed in customary international law o But exactly how much of it and which provisions is up for debate o Prohibition of torture and slavery universally accepted • Idea that binding legal agreements would be made via treaties that would make the dec enforceable • Some thought dec was too generally worded to be effective as a treaty • Some wanted a mechanism for enforcement • Decolonization added new members to UN which introduced new interests to drafting process

ICC:

• Temporal jurisdiction solves the ex post facto problem • 4 categories of crimes: genocide, crimes against humanity, war crimes, and aggression o Crimes against humanity: list of prohibited actions when they are committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (murder, extermination, enslavement, deportation, etc.) o Con prosecute for aggression if Security Council refers case to ICC • Differences between ICC and ad hoc tribunals o Source of authority, territorial/personal jurisdiction, temporally jurisdiction (prospective rather than post facto), primacy/complementary (if a state investigates and prosecutes a case, ICC can't take the case - respects state sovereignty and functions as a back up court) • Is complementary in nature -- meaning that the ICC can only take cases if there isn't adequate treatment at domestic court o An example of negative complementary o Complementary is similar to subsidiarity

Rodriguez Vera et al. v. Columbia (Court): reparations

• The court establishes that the state must remove all the obstacles de facto and de jure, that maintain impunity in this case, and conduct the extensive, systematic and thorough investigations require to identify, try, and punish all those responsible for these forced disappearances • State must ensure the following o Pertinent investigations with due diligence o Must abstain from resorting the application of amnesty laws, or argue the statute of limitations, res judicata o Must conduct investigation ex officio o Perpetrators must be IDed and individualized o Full access and capacity to act to the victims or next of kin at all stages of investigation o 29 years have passed since disappearances, constitutes a measure of reparation • What if they were non-state actors? o Court says still a violation because of a duty to prevent and investigate o "Due diligence" principle

Burdov v. Russia

• This is a case about pilot judgments • Orders Russia to make reform and gives Committee of Ministers a mandate to oversee change in country's laws • Substitute of class action in system that doesn't have them -- this is the aim of pilot judgments • Some of the things that court addresses are very difficult to solve • It's a means towards making judgment more effective but not self-actuating

State Reporting Process

• Traditional state report process o Begins with state filing its report - shows how the state complies with each of the articles of CCPR o Committee prepares for a dialogue with the state about the report Creates a list of issues for discussion (prepared by a task force), interested parties (usually NGOs) submit things it thinks the committee should take into account o Secretariat compiles this info and other docs; rapporteur and secretariat get together and draft conclusions (concerns and recommendations - 2 paragraphs) • UPR vs. this process o UPR leads to lengthy list of recommendations that a state can accept or not o Here there's a collective opinion • US Report o US takes the review very seriously Prepares defenses for things it disagrees with Agrees with certain elements of the review and is committed to reform o Tone of the dialogue: confrontational (e.g., What is your policy on deciding who's an enemy combatant? Will you release torture info?)

UN Charter and Southern Rhodesia:

• UN Charter Art 39: Security Council has the authority to act when international peace is threatened • Art. 2(7): UN can't intervene in matters that are within the domestic judx of a state • White dominated government of Southern Rhodesia instituted the Unilateral Declaration of Independence o Condemned by UN • UN Sec Council passed a resolution which called on all states to impose an oil embargo on SR and sever all relations o Voluntary sanctions failed • Passed a mandatory sanctions resolution

Armed enforcement under Art 42:

• UN charter doesn't explicitly say that a country can unilaterally maintain action - but some argue it's implicit • Unilateral pros and cons o Might be disputes/lack of clarity about the facts o Problem of motivation Mixed motives? Is there a secondary benefit for the country to be involved? Are they acting in their self-interest (go in, save the people and get the oil; knock out an unfriendly government) • Problems if Sec Council authorizes o Might not be able to conjure up support of SC states - ex. US did not support Rwanda intervention o There might be greater moral authority, less risk of ulterior motives (but there might be shared motives, or logrolling)

Issue Specific Human Rights Treaties

• UN decided to use the treaty mechanism to put an international bill of rights into action • Kinds of treaties: racial discrimination, women, torture, children • The ILO o Focuses on human rights related to work and working conditions o Right to strike, free from slavery, form trade unions, safe and healthy working conditions, social security o Developed monitoring procedures Carried out by a Committee of Experts (20 independent experts) • UNESCO o Cultural rights - including right to education and rights in cultural property • WHO o Right to health - right to access to facilities, goods, services, and conditions necessary for highest attainable standard of health

ICCPR: general notes

• US is a party • Treaty body: Human Rights Committee. o 18 independent experts, serving in individual capacities. Apolitical, but elected by states

ICESCR: general notes

• US signed but not ratified Treaty Body: Committee on Economic, Social, and Cultural Rights - CESCR o Independent experts, serving in individual capacities. Apolitical Committee's 3-part framework o Respect, Protect, Fulfill Individual Petitions o Committee can decline to consider a communication where it does not show author suffered "clear disadvantage" o In examining communications, Committee can consult documents from other UN bodies and agencies and shall consider the reasonableness of steps taken by the State Party, bearing in mind that State Party may adopt a range of possible policy measures for the implementation of rights set forth in Covenant o Committee can transmit, with consent of State Party, its views or recommendations to UN agencies to provide technical advice or assistance; trust fund shall be established to help provide expert and technical advice; agencies shall help State Party figure out what international assistance/cooperation can help them achieve progress

ROLE OF CORPORATIONS: general notes

• Under existing IL can corporations violate the covenants? o No, only a state can violate (but corporations can commit abuses) • Why has this issue gotten a lot of attention recently? o Process of globalization, greater access of multinational corporations to countries, neoliberalism (corps viewed as more powerful as states) • Large range of options of what obligations for corporations: o Model 1: corps have same obligations as individuals Inadequate and ineffective bc corporations are so large But why not just let the state handle this then? Bc legal remedies ineffective, state might be unwilling to do anything, corp might be more powerful that the state o Model 2: corps within a sphere of influence have the same obligations as states (respect, protect, and fulfill) - this is the model of the draft norms that were rejected by states Argument that this is going too far, corps should not have these kinds of responsibilities and this takes pressure off of the states Also you'll be giving corps responsibility to decide how these things should be carried out - too much power Also "sphere of influence" is incoherent o Model 3: guiding principles - John Ruggie report

Strakohv v. Uzbekistan and Fayzullaev v. Uzbekistan: reasoning

• Uz contends that the executions of the victims in fact took place prior to the registration of the cases and the formulation of the Committee's requests; but Committee doesn't accept this argument bc state didn't submit sufficient evidence • Committee says that by adhering to the Optional Protocol, a State party to the CCPR recognizes the competence of the Committee to receive and consider communications from individuals and to cooperate with the Committee in good faith; incompatible for State Party to take any action to frustrate committee's consideration o Having been notified of the communications before the Committee in this case, Uz committed grave breach by executing alleged victims before Comm could consider the case and formulate views; especially inexcusable after Comm issued interim measures pursuant to rule 92 of its rules of procedure • Cannot admit certain evidence, admits other evidence • Uz failed to demonstrate that its authorities adequately addressed torture allegations advanced by the authors in a substantiated way, both in the context of the domestic crim proceedings and in the context of the present communication • There were issues the state did not address and that the author gave evidence for - give the author the benefit of the doubt • Death sentences violated Arts 6, 7 (ban on torture) and 14 (not compelled to testify against himself or confess guilt)

Venezuela Problems:

• Venezuela denounced the American Convention in 2012 • In 2015, opposition got a majority in national assembly • HR crisis due to drop in price of oil • Maduro re-elected in 2018 o National Assembly declared office of the President vacant o Trying to organize fair elections • Too many allies for Maduro in Latin America for 2/3 vote to suspend V's OAS status • US Called for free elections • In 2017, V denounced OAS charter (will take effect in 2019) o Once this takes effect, what will V's rights be vis a vis HR in IA system? OAS charter ceases to be enforced with respect to state when a state ceases to be party to the charter • What obligations must it deal with before withdrawal o The notion that the state is the state regardless of who is at the helm of the government o Obligations don't have to be renewed every time there is a new president • What are unfulfilled obligations V needs to resolve? o No country has ever left under Art 43 o Its unresolved HR obligations may be a reason why OAS may reject to recognize V's withdrawal • States have often left courts o Caselaw indicates that leaving is prospective o Violations that you have already committed stand o Pending cases stand and you must resolve before you leave and cases not yet resolved will go to completion • V is still subject to UN covenants which cannot be denounced

Velasquez Rodriguez v. Honduras (IA Court, 1988): facts

• Warrantless detention and interrogation of various Hondurans • Velasquez was violently detained and arrested o Tortured and harsh interrogation • Alleged violations of Article 4, 5, 7 of IA Convention

What is a reservation:

• Way for a state to become party to a treaty but doesn't like a certain part of a treaty and inputs its own language • Happens with multilateral treaties • If an understanding is trying to modify an obligation, it's a reservation

S.A.S. v. France (Part II): holding 1

• What are France's arguments o Public safety, living together • The HRC comments o Freedom to manifest religion in Art. 18 of ICCPR covers a broad range of activities o Art. 18 allows for limitations, but those must be prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others o Gen comment no. 28: regulations on clothing can violate ICCPR Arts 26 (non-discrimination), 9 (if women are arrested), 7 (if there is corporal punishment), 12 (if liberty of movement is subject to such a constraint), 17 (right to privacy without arbitrary interference), 18 and 19 (religion and self-expression), and 27 (right to culture) • Questions under Articles 8 (freedom of privacy) and 9 (expression) of European Convention: Has there been a limitation, has it been prescribed by law, is there a legit aim, and is the law necessary in a democratic society • (1) Limitation o The law limits the applicant's ability to wear clothing that covers her face, a direct limitation to her ability to practice her religion - obey the law or face criminal sanction • (2) Prescribed by law o Law of 11 October 2010 is an explicit prescription to the limit • (3) Legitimate aim o France: the law protects 2 legit aims: public safety and respect for the minimum set of values in an open and democratic society o Public safety is a legit aim under Arts 8 and 9 o Concealing the face can represent a danger for public safety in certain situations, could be dangerous for public safety o Therefore, public safety - a legit aim of the legislature when passing the law o In re: respect for the minimum set of values of an open and democratic society -- three specific values: respect for equality between men and women, respect for human dignity, and respect for the minimum requirements of life in society o These three do not correspond to the aims of Arts 8 and 9 - the only aim that the court deemed relevant was the protection of the rights and freedoms of others o First value (gender equality) cannot be invoked to ban a practice that women defend - not being compelled into the burqa by men o Second value (respect for human dignity) cannot be used to justify a blanket ban on wearing full-face veils -- the veil might be difficult for certain people to adjust to and accept, but it is an expression of identity that comes along with the pluralism and cultural expressions of a democratic society. The veil is not a sign of contempt to others o Third value (respect for minimum reqs of life in society) -- showing a face is an important aspect of communication. The court can accept this argument and state that veiling the face is a breach of others' right to live in a space of socialization

SAS notes

• What does this tell about the MoA informed by the "consensus" around Europe? o This methodology can push certain measures (e.g. same sex marriage) forward in a positive way o But at the same time the court is playing a realpolitik in trying to find a basis on which it can uphold what France has already determined it wants to do - this is why the HRC does not apply a margin of appreciation or a global consensus • Art 14 (prohibition of discrimination) o One of the issues they do not reach is the argument of discrimination o Is about equality under the rights of the convention so has to be applied in conjunction with other rights in the convention (e.g. 14 in conjunction with 8) o There have been additional treaties adding rights which do have general equality law but not all states are parties - one such treaty is Art 12 but not all states are parties to these articles

Introduction to Treaty Making

• What is a treaty? o Can be multilateral or bilateral, global or regional o Binding on the parties to treaty, but not on 3rd parties--> May have ripple effects on 3rd parties by establishing norms Supremacy clause o Constitution is the highest - everything must comply Statutes and treaties are equally legal o If they come into conflict, the newer one takes precedent o New statute can override an earlier treaty and vice versa o Afforded the same validity Protocols are like ancillary treaties, that states can join without being a part of the primary treaty General rule: all treaties are of equal status - no hierarchy of treaties o Human rights treaties are not "super treaties"

Functionality of the European Court:

• Why is ECHR the most effective o Dealing with the wealthiest region o Strong rule of law traditions, peace within the region, large number of states are within in the EU (which incentivizes states to be compliant with international law) • Court cares a lot about subsidiarity of its functions o Subsidiarity: secondary and helpful o Supplementary character that is a check o Has an ideology of supporting decisions at the lower level o Domestic remedies should be exhausted before bringing a case to Strasbourg • Admissibility o Exhaust domestic remedies, then only have 6 months to bring a case to court Going to be cut-down to 4 months o Much stricter than ICJ • What happens when you win? o The Eur Convention instructed the court that if someone was a victim of a violation they could request pecuniary compensation. BUT the European Court has been less innovative in its menu of remedies than other human rights bodies o In most cases, remedies are monetary Compensation and attorney's fees That money is almost always paid - in this sense it is successful o But given the recognition the HR violation • On occasion court began issuing decisions that set certain recommendations that are usually given by the Council Ministers (e.g. the prisoner should be released) • How should access to ECHR be structured o Are there some categories of cases that should not be heard only out of discretion? Or should jurisdiction be mandatory? o Does ECHR have to continue to process every case giving selective attention to a vast number of frivolous or repetitive cases?

Why should we have regional systems:

• Within a region there might be more cultural similarities where you can get more detailed treaties • Countries might trust regional orgs bc they understand the region more - countries thus more willing to submit to org's authority • Certain regions more willing to have deeper HR protections

Resolution 2004

• states issue statement inviting the court to be more specific about general measures that ought to be imposed o Court deals with non-enforcement by creating a new procedure measure - pilot judgment o Pilot judgment: court designates a case as a leading case and in that case it orders the state to make some reform and then puts all cases regarding same issue in dormancy until state rectifies

John Ruggie (first Special Rep on the Issue of HR & Corps.), "Protect, Respect, and Remedy" Framework for Business and Human Rights:

● 1. State duty to protect against human rights abuses by third parties o States must set clear expectations of HR respect for business in their jurisdiction or domiciled in their territory o Take appropriate steps to prevent, investigate, punish, and redress abuse through effective policies, legislation, regulations, and adjudication ● 2. Corporate responsibility to respect human rights o avoid/prevent adverse impacts HR through business relationships o Policy commitments, HR Due Diligence & Remediation processes o Standard for aiding and abetting: knowingly providing practical assistance or encouragement that has a substantial effect on the commission of crime ● 3. Need more access to remedy o States should protect HR through judicial/legislative/admin means o Non-state grievance mechanisms—adjudicative, dialogue-based processes

Corporations and Human Rights, UN Doc:

● 320 cases of alleged abuse reported in public domain between 02/2005 and 12/2007 o Most cases raise allegations re: labor-related rights; e.g., right to work, right to just remuneration, right to a safe work environment, right to rest/leisure; reports of corruption/covering up abuses o Non-labor impacts - right to physical/mental health (failure to provide medical insurance), implicates right to life/liberty/security and freedom from degrading treatment, right to education (in the case of child labor), environmental harms ● UN efforts - Global Compact (1999) to encourage responsible globalization among business leaders; Norms on the Responsibilities of Transnational Corporations (2003) adopted by Subcommission on Promotion and Protection of Human Rights o Subcommission thinks Draft Norms are binding b/c they apply HR law under ratified conventions to transnational corps and include measures for implementation - use "shall" rather than "should" o HR Commission says draft norms have no legal standing

Responsibilities of Transnational Corporations and Related Business Enterprises with Regard to Human Rights, Report of UN High Commissioner for Human Rights (2005):

● Scope of responsibilities vary with "sphere of influence," i.e. individuals in contractual/political/geographic/economic proximity ● Domestic state action should regulate business in areas of discrimination, worker's rights with court enforcement, while companies can build HR into contracts