POL S 368 Midterm #1 Study Guide
15. Why did civil rights organizations in the United States support the development of international human rights law? Please refer to Gay McDougall's article "Toward a Meaningful International Regime."
(from McDougall reading) Du Bois: in order to handle racism domestically, we must have consultation and cooperation with the whole civilized world -achilles heel of America -development of human rights law provides an international consensus of what is just and how all humans should be treated -new human rights provisions in charter could be source of new rights for African Americans -can create a "compelling law" on domestic policy -attaching domestic cause to international one keeps the US accountability as the eyes of the world watch their practices -article 7 of UN charter says where discrimination on a national level occurs and natl. govt. won't offer protection, the UN is within jurisdiction
7. What are examples of practices that some people condemn as violations of human rights and that other people defend as legitimate expression of culture?
-segregation of men and women -female genital mutilation -laws against blasphemy or apostasy (leaving a religion) -"Asian values" -death penalty
2. How did the Universal Declaration of Human Rights come into being? Please describe both the historical motivation and the institutional process that led to its creation. Be sure to study the assigned excerpt from Micheline Ishay, The History of Human Rights.
-1940's -human rights commission -drafted by Eleanor Roosevelt, John Humphrey among others -UDHR adopted unanimously (8 absentions) by the GA -recognizes the rights to security, due process, freedom, political participation, and social security -many of its provisions have become part of customary international law -widely copied in international human rights treaties -treaties are law, so UDHR is influencing law *THEMES* -unity of human rights (right to education makes you aware of other rights) -harmony of human rights (do not conflict) -need for legal backing *OTHER* -says yes to socioeconomic rights --right to work, unionize, rest, adequate standard of living *MICHELLE ISHAY* overview -NGOs asked human rights to be central part -human rights commission -states as final authority -prevention and punishment of genocide -Roosevelt convinced Truman to include clauses on socioeconomics -in 1966, states were no longer able to claim that human rights remained under their domestic jurisdictions HISTORICAL MOTIVATION --welfare state post WWII --essential human freedoms --commitment to property rights, economic growth, social justice INSTITUTIONAL PROCESS -established a commission made of up of dif. countries -team to draft UDHR -adopted by General Assembly
1. You should have a good command of the rights provisions in the U.S. Constitution as they were added over time. What human rights are asserted in the original articles (1787) of the U.S. Constitution? What rights are asserted in the 1791 Bill of Rights (first ten amendments)? What rights are asserted in the "Civil War amendments" and the Nineteenth Amendment?
-US Constitution creates framework for protecting individual rights 1) habeas corpus may not be suspended unless for the public safety --right of the detained individual to. challenge their detention in court; to ensure that govt. foes not throw people in jail in violation of the law 2) no ex post facto laws --retroactive punishment, punishing a crime that was legal when committed 3) no bills of attainder --law passed by congress that convicts an individual of a crime 4) trial by jury 5) no titles of nobility 6) Congress (not Pres.) has power to declare war 7) Republican form of government guaranteed to all states --govt. by popular rule 8) limited definition of treason, necessary proof spelled out --treason only in levying war against US, or adhering to enemies --no personal will be convicted unless on testimony of 2 witnesses or confession in open court 9) no religious tests for public office 1791 Bill of Rights (first 10 amendments) (1) freedom of religion, press, right of people to peacefully assemble, petition government (2) well regulated militia, right to bear arms (3) no solider quartering in times of peace (4) right to be secure in own homes/no unreasonable searches/seizures without probable cause (5) rights of individuals convicted of a crime - no coerced confessions, no double jeopardy (cannot try same individual more than once for same crime), cannot deprive of life, liberty, and property (6) right to fair and speedy trial, impartial jury, trial in locality where crime has been committed, right to be informed of nature of accusations, right to see witnesses summoning against you, right to summon your own witnesses, right to lawyer (7) right to civil trial (legal dispute) (8) no excessive bail, fines, cruel/unusual punishment (9) the enumeration of the Constitution not be construed to deny or disparage others -have certain rights not explicitly stated (10) powers not delegated by the Constitution or prohibited by it to the States are reserved the people Civil War Amendments 13 - abolishes slavery --exception clause "except as punishment for crime whereof the party shall have been duly convicted" 14 - requires individual states to give people equal protection of the law and cannot deny people the rights without due process of law --cannot deny anyone of life, liberty, and property 15 - black men right to vote --southern states figured out ways to deny this right 19 - right of citizens to vote shall not be denied on account of sex
16. What human rights violations (if any) are associated with the U.S. criminal legal system?
-disproportionately puts POC in prison -impact on poor people -African Americans are most likely to have contact with police (police sent to certain neighborhoods, more likely to be stopped and search, 2x more likely to be arrested) -2x to get a sentence with a mandatory minimum sentence -post prison, they experience loss of employment, housing, right to vote -cycle of poverty and incarceration HR VIOLATIONS -disparities in arrests and sentencing violate CERD Articles 1 and 5 --1: any DISTINCTION, RESTRICTION BASED ON RACE ... PURPOSE OF IMPAIRING the recognition of human rights on an equal footing --5: equal treatment before organs administering justice, security of person by the State against violence, whether inflicted by gov. officials, etc. --5: economic, social rights, right to work/free choice of employment, housing
9. What is customary international law? How do we determine whether a norm has the status of customary international law?
2 elements -general practices of states -sense of legal obligation (opinio juris) -not necessarily written down, just an understanding that some things are prohibited and not, and reflected in behavior of states DETERMINE -more of an art than scientific method (Janis) -can reject/not recognize something as CIL persistently EX. Paquete Habana case said that coast fishing vessels pursuing their vocation of catching and bringing in fresh fish makes them exempt from being captured for war --Spanish American War Cuban struggle
12. Make yourself familiar with Articles 1 through 7 of the 1965 Convention on the Elimination of All Forms of Racial Discrimination (CERD). How does the CERD define and understand racial discrimination? What negative and positive obligations does the CERD assign to individual states? That is, what are states forbidden to do, and what are they required to do?
Article 1: defines racial discrimination as any distinction, exclusion, restriction, or preference based on race, colour, descent, or national or ethnic origin that has the effect of impairing or nullifying equal footing of human rights Articles 2-7: states must condemn and prohibit any form of racial discrimination -states are prohibited from engaging in racial discrimination (negative, 2) -take measures to rescind laws that have the effect of perpetuating racial discrimination (positive, 2) -prohibit discrimination from nonstate actors like groups, organizations, persons (article 2, negative) -must criminalize speech that incites racial discrimination (positive, 4) -must guarantee the equal enjoyment of a wide range of civil, political, legal, economic, and social rights without discrimination based on race (positive, 5) -must combat racial discrimination through education (positive, 7)
3. You should acquire a detailed knowledge of the U.S. Bill of Rights (1791), the U.S. Civil War amendments (1865-70), and the Universal Declaration of Human Rights (1948). What rights are asserted in each of these documents? Advice: since these documents assert a great many rights, the best way to attack this question is to organize the various rights into different categories, and then learn the rights in each category. (Note: you don't need to remember article numbers in the Universal Declaration of Human Rights, but you should, if possible, know which rights correspond to which amendments of the U.S. Constitution.) With these three documents as a point of reference, how has the conception of human rights changed over time?
BOTHHHHH LIFE LIBERTY: -UDHR: article 3 -Constitution: preamble DISCRIMINATION -UDHR: article 2 -C: article 14 SLAVERY -UDHR: 4 -C: 13 TORTURE/PUNISHMENT -UDHR: 5 -C: 8 EQUAL PROTECTION -UDHR: 5 -C: 14 RIGHT TO JUSTICE (monetary) FROM LAW: -UDHR: 8 -C: 6 ARBITRARY DETENTION -UDHR: 9 -C: 4 JURY/DUE PROCESS -UDHR: 10 -C: 6 ASSUMED INNOCENT -UDHR: 11 -C: 5 NO EX POST FACTO -11 RIGHT TO PRIVACY -12 -4 RIGHT TO NATIONALITY -15 -grants citizenship to all persons born or naturalized in US in article 14 RIGHT TO MARRY -C: same as ^ articles RIGHT TO PROPERTY -C: article 4 FREEDOM OF THOUGHT -1 FREEDOM OF RELIGION -1 FREEDOM OF OPINION -1 FREEDOM OF EXPRESSION -1 FREEDOM OF ASSEMBLY -1 RIGHT TO PETITION -1 BASIC NECESSITIES OF LIFE -preamble DEMOCRACY -articles JUST UDHR FREEDOM OF MOVEMENT -12 -? RIGHT TO SEEK ASYLUM -14 SOCIAL SECURITY -22 RIGHT TO WORK -23 RIGHT TO JUST, EQUAL PAY -23 UNIONIZE -23 LEISURE -24 RIGHT TO EDUCATION -26 CULTURE'-27 INTELLECTUAL PROPERTY -27 WORLD PEACE -28 COMMUNITY DUTIES -29 RIGHT TO LEGAL ORDER -29
14. How does the CERD relate to the US Constitution and the Universal Declaration of Human Rights? Does it extend or revise ideas contained in the earlier documents, or both? What is the relation of discrimination to human rights?
CERD & UDHR -UDHR recognizes the rights to security, due process, social security, political participation and extends -CERD extends this to all races, ethnicities -UDHR includes socioeconomic rights -CERD also upholds what are considered socioeconomic rights like right to education CERD & Constitution -CERD revises the idea of freedom of speech -CERD outlaws any dissemination of ideas that are based on racial superiority -Constitution protects hate speech unless it a time specific/direct threat to another individual -divergences from CERD in that the Constitution does not have affirmative action -14th Amendment requires discriminatory intent to prove an action was racial discrimination
6. Why do cultural relativists object to the idea of universal human rights, as expressed, for example, in the Universal Declaration of Human Rights? How do human rights universalists respond to the cultural relativist critique? What are the strongest arguments on each side? Which position do you find most persuasive, and why? Does the human rights movement represent an illegitimate attempt to impose Western values on non-Western societies? Please refer, as relevant, to the American Anthropological Association's 1947 "Statement on Human Rights," Jamie Mayerfeld's "The Relativist Challenge," Makau Mutua's article "Savages, Victims, and Saviors," and China's Charter 08.
CLAIM BY CULTURAL RELATIVISTS: -human rights are not universal, and vary from culture to culture -practices one culture may see as a violation of human rights may be defended by another in the name of culture --segregation of genders, "Asian Values" thesis that reject universal human rights bc it puts the group over an individual AGAINST CULTURAL RELATIVISM -no culture is perfect, so it shouldn't be immune from discrimination -cultures are diverse and can change over time -human rights is not new Western imperialism when not distorted --imperialism violates one's right to autonomy w/ violence, slavery, etc. while universal human rights promote this STATEMENT ON HUMAN RIGHTS -how can the statement of human rights be in terms of value in all countries besides Western ones -must be of worldwide applicability and embrace many ways of life -individual realizes his personality through his culture -view has changed RELATIVIST CHALLENGE -idea of universal human rights is undermined by cultural relativism -cultures are flawed and can be changed -internal criticism of a culture is what sparks reform -individuals can be influenced by other groups and cultures -human rights aren't a blueprint; can be open and work with a range of blueprints -human rights prevent the imposition of people's values on others, not vice versa MUTUA -human rights movement is imperialistic -Western saviors rescue non-Western victims -member of one culture cannot judge practices of another -questions whether things like freedom of expression, participation should be included because these ideals a "Western style liberal democracy" CHINA CHARTER 08 -counters Mutua claims -Dec. 2008 - over 300 Chinese citizens calling for creation of new system of government founded on democracy, separation of powers, human rights -learned from experience to cherish universal human rights -NOT from W. influence
13. (Same subject, continued.) What does the CERD say regarding racist hate speech? What does it say regarding access to transportation, hotels, and other public accommodations? What does it say regarding measures intended to secure the "adequate advancement" of historically oppressed racial and ethnic groups?
HATE SPEECH -article 4 -an offense punishable by law -dissemination of ideas based on racial superiority, incitement to racial discrimination / violent acts against a race -organizations and other propaganda activities that promote and incite racial discrimination are prohibited ACCESS -article 5 -equal access to any public service -any place or service intended for use by the general public, such as hotels, restaurants, cafes, theaters, parks ADVANCEMENT -Article 1 -special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic rights -affirmative action to correct historical oppression of a group
10. Take the time to study Judge Kaufman's opinion in Filártiga v. Peña-Irala. What international law question faced Judge Kaufman in Filártiga? What answer did he give, and what argument did he use to support his answer?
QUESTION KAUFMAN FACED -was the torture of Joelito Filartiga a violation of the law of nations? ANSWER -Yes: prohibition of torture is supported by an international consensus, aka it is customary law -evidence found in UN Charter, UDHR, treaties, constitutions from world, looking at different judicial opinions -so, torture is prohibited by the law of nations -the case was originally brought to court by the Alien Tort Statute (district courts have jurisdiction over any civil action of a non-citizen for a harmful act where they can receive compensation -could be heard in court bc of this statute, then was determined to be a violation of the law of nation due to customary law PROHIBITION OF TORTURE IS SUPPORTED BY AN INTERNATIONAL CONSENSUS "having examined the sources from which customary international law applies"
5. Do human rights include socio-economic rights? What are the best arguments on each side? Which view is more persuasive, and why? Please refer to the arguments of Cranston and Mayerfeld as appropriate.
The UDHR says yes -right to work -unionize -rest -adequate standard of living FOR: socioeconomic rights protect the same fundamental rights as civil political rights -essential value of autonomy is undermined without them -so human rights are not violated if children are denied education (Mayerfeld) -letting people go hungry, permitting deterioration from disease, refuse shelter, etc. is to deny basic dignity AGAINST -not human rights because they imply positive duties -have to take actions in order to guarantee, impossible to universally guarantee -they do not assign duties to individuals, but rather to society -are not clear and specific and how to be upheld -Western norms being imposed on others -not our duty to uphold what is physically impossible (Cranston) -traditional political and civil rights can be upheld by legislation (Cranston) -humans rights are supposed to relieve stress, not give pleasure (Cranston) -socioeconomic rights are govt. rights, not human rights (Cranston) -difficult to universally enforce socioeconomic rights because's everyone's morality is different depending on culture, and different states have different resources (Cranston)
17. Is the U.S. criminal legal system in compliance with the substantive obligations contained in the Convention on the Elimination of All Forms of Racial Discrimination? Please discuss with reference to the Sentencing Project's Report Regarding Racial Disparities in the United States Criminal Justice System.
same as above?
4. What is the significance of the UN Charter to international law? What is its significance for human rights? How is it a source of international human rights law? Please explain. Which features of the United Nations and which provisions of the UN Charter may inhibit the promotion of human rights?
UN CHARTER -purposes of UN -maintaining international peace and security -promoting and encouraging respect for human rights SIGNIFICANCE FOR HUMAN RIGHTS -fundamental freedoms for all without distinction as to race, sex, language, etc. -members of UN have collective obligation to promote respect for human rights -fully realized human rights -human rights commission came later INT. LAW -establishes norms and standards to be followed -creates a reference in the process of applying customary law -human rights are specifically spelled out in it for member states to follow/promote INHIBITS -article 2, section 7 stresses importance of not interfering with state sovereignty -states can claim that it is a domestic matter --non intervention principle -lopsided power given to the 5 permanent members of Security Council --makes it easier for those states to evade accountability f --shield allies from accountabilty
18: Define the following terms: habeas corpus; opinio juris; jus cogens; pacta sunt servanda.
habeas corpus: "you have the body," the right of a detained individual to challenge their detention in court; a way on ensuring the govt. does not throw people in jail in violation of the law opinio juris: sense of legal obligation jus cogens: "compelling law," a norm so fundamental it overrides treaty law and customary law pacta sunt servanda: treaty is law
11. What stages make up the formation of treaty law?
spelled out in Vienna Convention on the Law of Treaties (1969) 1 - adoption of treaty text 2 - signature --country expressing intent to ratify 3 - ratification --"consent to be bound" --treaty is law as far as this country is concerned 4 - domestic implementation --some countries have to incorporate a treaty with separate legislation for it to become part of domestic law -monism (international and domestic law form an integrated whole) -dualism (international and domestic law 2 independent sources of authority)
8. You should be able to state and briefly define the principal sources of international law. In addition, you should be able to explain these definitions if asked.
treaties: formal, legally binding agreements between states international custom: general practice of states accompanied by a sense of legal obligation general principles of law: underlying principles of law recognized in the domestic legal system -ex post facto law: can't punish someone for a crime that wasn't illegal when committed jus cogens: "compelling law," norm so fundamental that it overrides treaty and customary law -prohibition of genocide; cannot create a "genocide authorization treaty"