LSJ 368 midterm 1
China's Charter 08
-Called for a new system of gov't founded on democracy, separation of powers, rule of law, and human rights -Support for human rights in China derived from their lack of acknowledgement
Which rights are common to the US Bill of Rights and the UDHR?
-Freedom of speech -Freedom of religion -Right to life & liberty -No torture/cruel unusual punishment -Due process-Property rights (seizure laws) -Public Trial-Must have probable cause for arrest -Right to Privacy -Equal protection under the law (these rights listed extend to all no discrimination of rights based on race, color, servitude, sex)
What human rights are asserted in the original articles (1787) of the U.S. Constitution?
-Habeas Corpus -No ex post facto laws -no bills of attainder ( the act of declaring a person in guilty of a crime and punishing them w/o a trial ) - Trial by Jury -No titles of nobility - No religious test for public office
What are some examples of practices that some people condemn as violations of human rights and others defend as expression of culture?
-segregation/inequality of men and women, --female genital mutilation-forced marriages -hazing in indigenous cultures -laws against blasphemy & apostasy -discrimination against sexual minorities -death penalty -asian values (community over self/economic prosperity)
Makau Mutua, "Savages, victims. Add savior; the metaphor of human rights"
-Human rights movement is western imperialism in a new form -innately racist -narrative of Western saviors saving Non-Western victims from Non-Western savages -Degrading to non western cultures Mutua's faulty claims: -Human Rights organization does not criticize western governments -Members of non western societies do not support this movement -culture cannot be oppressive
How does the CERD relate to the US Constitution and the Universal Declaration of Human Rights?
Article 4 outlaws hate speech but US Constitution protects freedom of speechCERD expands on the equality and non-discrimination clause in the UDHR, but revises the previously stated right to free speech.CERD expands on the 14th amendment of the constitution (equality under the law), and revises the 1st amendment (freedom of speech)
What stages make up the formation of treaty law?
1. adoption of treaty text 2. Signature - express intention to join treaty 3. Ratification - consent to be bound by a treaty 4. Domestic implementation
Rights asserted in the Universal Declaration of Human Rights (1948)Civil & Political Rights
Civil & Political: -Right to life, liberty, & security of person -No slavery -No discrimination -No torture -Right of privacy -Right to education -Right to asylum -Right of movement -Right to nationality -Right to property -Freedom of thought, expression and opinion-Freedom of peaceful assembly -Right to participate in Gov't
Gay McDougall's article "Toward a Meaningful International Regime."
Civil right organizations in the United States supported the development of the international human rights law because they believed that to tackle racism domestically, in the US, we must cooperate and consult with others on an international level who are assumed to be civil or the world is civilized. To truly address racism in the Black community, we must focus on every Black person in this world and the racism they face. Racism is not just a Black American thing, but an issue for all colored races of the world. Supporting human rights on an international level can influence domestic law in different countries, therefore upholding these laws to be morally correct and make racism morally wrong.
Why did civil rights organizations in the United States support the development of international human rights law?
Civil right organizations in the United States supported the development of the international human rights law because they believed that to tackle racism domestically, in the US, we must cooperate and consult with others on an international level who are assumed to be civil or the world is civilized. To truly address racism in the Black community, we must focus on every Black person in this world and the racism they face. Racism is not just a Black American thing, but an issue for all colored races of the world. Supporting human rights on an international level can influence domestic law in different countries, therefore upholding these laws to be morally correct and make racism morally wrong.
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.
Historical: -Motivated largely in part to the World Wars, called for the necessity of the world's nations to recognize the legitimacy of unaliable human rights in order to avoid another WW arising -Goal was to prevent war, promote international cooperation, and develop a standard for human rights -hoped to reaffirm hope in humanity Institutional Process: -Human Rights Commission created (18 members) -from 1946-1948, various drafts of the UDHR were created by the UDHR Committee -December 10, 1948 it was unanimously adopted by the General assembly of the UN (vote: 48 to 0, 8 abstentions)
What is the relation of discrimination to human rights?
Discrimination implies that some groups of people are more "valuable" or dangerous than others. Contradicts equality, and idea that humans are born with natural rights.
Students for fair admissions v Harvard, US supreme court
Justice Roberts, writing for the majority, held that race-based affirmative action in college admissions is a form of racial discrimination that violates the equal protection clause of the 14th Amendment. That the 14th amendment which protects everyone to be equal in front of the law means race shouldn't be a factor when deciding educational accepatance
How do universalists say in response to cultural relative critiques?
No culture is perfect and should be immune to criticism People often identify flaws within their own culture Culture is not fixed Beliefs and values are not only determined by culture Jamie Mayerfield ''the Relacist Challenge' China Charter 08:-Called for a new system of gov't founded on democracy, separation of powers, rule of law, and human rights-Support for human rights in China derived from their lack of acknowledgement
Maurice Cranston "Human Rights, real and supposed"
Socio economic rights are not apart of human rights --> socio economic rights are more demaning and different composure to civil and political rights.
Jamie Mayerfeld "Socio economic rights"
Socio economic rights belong are included in human rights.
jus cogens
Refers to legal norms or principles that are considered fundamental, universally accepted, and holding special status. They cannot be violated or set aside by states through international agreements or treaties. EG: prohibition of slavery, genocide, torture, crimes against humanity.
What is the significance of the UN Charter to International Law? Significance for Human Rights?
International Law: Prohibited war, unless done in self defense in response to an armed attack. Done in response to damages done during WWII to prevent another atrocity from happening again. Laid down foundation for international customary law. Human Rights: Lays out and enforces Human Rights by defining them, and protecting them. Deemed as fundamental to all nations. Encourage respect for human rights and fundamental freedoms for all without discrimination of sex, color (etc). Seeks to also develop friendly relations among nations based off the respect for these principals. Many of the UN's functions serve to promote human rights.
Monism
International law is automaticaly incorporated into domestic law and overrues contrary domestic law provisions (e.g. Netherlands)
Dualism
International law isn't automatically incorporated into domestic law. Dualism allowes the possibility of unresolved conflict btw Domestic and International law.
pacta sunt servanda
Treaties are legally binding
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/convention: Formal, legally binding agreements between states Customary International Law: General practice of states accompanied by a sense of legal obligation Jus Cogen: "compelling law", a norm so fundamental that it overrides treaty law and customary (separate from customary law) seen as ETHICS OF THE WORLD (prohibit human trafficking, genocide) General Principles of Law: underlying principles of law recognized in the domestic legal system of most nations Judicial decisions : rulings in court, and the teaching of the most highly qualified scholars
International law question Kaufman faced in Filartiga V Pena? What was his answer & how did he get there?
Was the tourture of Joelito Filartiga by Pena a violation of the law of nations? Kaufman found the torture violated the law of nations because the prohibition of torture is supported by an international consensus. He came to this conclusion by examining sources such as the UN Charter, UDHR, other UN declarations, treaties, etc. that all supported his conclusion.
Do human rights include socio-economic rights? (Yes argument )
Socio-Economic Policy SHOULD be included in Human Rights: Socio-Economic rights protect the same fundamental interests as civil/political rights Waldron (2 sides of the coin): Substantive Rights -If people don't have the means to exercise their rights, there is no point in having a right -If we commit to civil/political rights, we should be also concerned with the conditions of a person's life that allows them to enjoy their civil liberties Holmes & Sustein (cost of rights): -No difference between civil/political and socio-economic rights because both must be legally enforced by state and impose costs on people -Negative rights exclude/ban government (ie: protect liberty) -Positive rights invite government intervention (ie: promoting equality)
Rights asserted in the Universal Declaration of Human Rights (1948)Socio-Political Rights
Socio-Political: -Right to marry/family -Right to social security -Right to work & choice of work -Right to rest & leisure -Right to standard of living -Right to participate in cultural life/community -Right to education
Do human rights include socio-economic rights? (No argument )
Socio-economic policy shouldn't be included in Human Rights: Not human rights because they imply positive (obligation to help) not negative duties They assign duties to individuals Do not lend themselves to legal enforcement Cranston (Real & supposed):-CP rights = legal rights-SE rights = moral rights -Detracts from other rights -Not always possible/enforceable so how can they be rights -there is no universal and equal way all societies can implement them, some states are limited by their capacity to implement -Socio-economic rights = luxury -Political/Civil = needs
What is the significance of the UN Charter to international law?
The UN Charter established an international organization that is dedicated to promoting and maintaining world peace, security, and protection of human rights. They play a big role in enforcing and implementing international law. They are there to prevent outbreaks, repeat wars, and resolve conflicts between nations. They facilitate peaceful resolutions and utilize sanctions anf force in order to maintain peace and security.
Sixth Amendment
The right to a fair, impartial, and speedy trial for all persons accused of a crime
opinio juris
a norm so fundamental it overrides treaty law & and customary law (separate from customary law) seen as ETHICS OF THE WORLD (prohibit human trafficking, genocide) Eg: diplomatic immunity
Micheline Ishay, The History of Human Rights.
historical motivation and the institutional process that led to its creation of UDHR and the UN
Eighth Amendment
prohibits cruel and unusual punishment to those accused of a crime
Fourth Amendment
protection against unreasonable searches and seizures
American Anthropological Association ; ""statement of human rights
1947 Statement of american anthropological association: -Individuals realize their personality through their culture, hence respect for individual differences call for a respect for cultural differences -should have right to live in terms of own traditions
What is customary international law? How do we determine whether a norm has the status of customary international law?
2 elements: - the general practice of states - oponio juris = sense of legal obligation Thus: Customary international law can be defined as a general practice of states accompanied by a sense of legal obligation
With the 3 documents (Bill of Rights, Civil War amendments, and UDHR) as a point of reference, how has the conception of human rights changed over time?
Overtime we see through the progression of the documents as time passes, Human Rights extend past the civil and political life, and include other portions of human existence & experience (socio-economic)
Seventh Amendment
Right to a trial by jury in many civil disputes
What does the CERD say regarding racist hate speech?
They can criminalize hate speech
What does it say regarding access to transportation, hotels, and other public accommodations?
Art. 5 (f): The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks.
What does it say regarding measures intended to secure the "adequate advancement" of historically oppressed racial and ethnic groups?
Article 1 (4) States that in order to adequately advance certain racial ethnic groups may be necessary in order to ensure they have the rights to a full equal enjoyment and access to fundamental human rights and it should not be deemed racial discrimination. Affirmative action, to benefit groups that were racially discriminated against in history and to help them advance in society, necessarily to be made equal.
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 exclusion, preference based on race, ethnicity, color, nationality, with the purpose of denying the enjoyment of equality and exercise of human rights in relation to political, economic, cultural public life."Article 2: State Parties condemn racial discrimination and undertake to pursue and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races.Art. 2 (1) (negative)States are prohibited from engaging in racial discriminationArt. 2 (1)(c) (positive)States must rescind laws and regulations that "have the effect" of creating or perpetuating racial discriminationArt. 2 (1)(d) (negative)States must prohibit racial discrimination by nonstate actors (persons, groups, organizations).Art. 4 (positive)States must criminalize speech that incites racial discrimination or hatred and participation in organizations that espouse such speech,Art. 5 (positive)States must guarantee the equal enjoyment of a wide range of civil, political, legal, economic, and social rights without discrimination based on race,Art. 7 (positive)States must combat racial discrimination through education,
Why do cultural relativist object to the idea of universal human rights?
Cultural relativists believe human rights are not universal and vary with different cultures. -Moral claims are products of certain cultures, and therefore can only be applied within those cultures -When there is a difference in beliefs, the dominant culture believes the minority cultures to be wrong 1947 Statement of american anthropological association:-Individuals realize their personality through their culture, hence respect for individual differences call for a respect for cultural differences-should have right to live in terms of own traditions Mutua (savage victims & saviors)-Human rights movement is western imperialism in a new form-innately racist-narrative of Western saviors saving Non-Western victims from Non-Western savages-Degrading to non western cultures Mutua's faulty claims:-Human Rights organization does not criticize western governments-Members of non western societies do not support this movement-culture cannot be oppressive 8. How do universalists say in response to cultural relative critiques?
What human rights are asserted in the 1791 Bill of rights (first 10 amendments)?
First Amendment: freedom of speech, religion, press, assembly Second Amendment: The right to bear arms Third Amendment: protection against the quartering of troops in private homes Fourth Amendment: protection against unreasonable searches and seizures Fifth Amendment: Protects citizens who are accused of a crime. Everyone is innocent until proven guilty Sixth Amendment: The right to a fair, impartial, and speedy trial for all persons accused of a crime Seventh Amendment: Right to a trial by jury in many civil disputes Eighth Amendment: prohibits cruel and unusual punishment to those accused of a crime Ninth Amendment: Protects additional individual rights not listed in the US Constitution Tenth Amendment: The powers not given to the federal government are reserved to the states (STATE RIGHTS)
Alien Tort Statute of 1789
If you are a foreigner and have faced unwrongful harm (done in violation of the law of nations or treaty of the US), you can bring it to the district court and sue-
Fifth Amendment
Protects citizens who are accused of a crime. Everyone is innocent until proven guilty
Which features of the UN and its provisions in its charter may inhibit the promotion of human rights?
State sovereignty in article 2 (7) of the UN charter, as it protects states from the intervention of the UN in cases of human rights violations (asserts all of the rights, but cannot actually intervene to enforce them) Veto power: the UN Security Council, the US, the UK, China, Russia, and France, hold veto power. A single veto can prevent the Security Council from taking action on human rights violations even when there is a clear need for intervention Regional politics: the UN is influenced by alliances, and states may protect each other even when human rights abuses occur Non - Democratic States: some countries that are members of the UN are not democratic and may resist efforts to promote HR for fear that it could be used to undermine their regime
habeas corpus
The legal principle and fundamental right that safeguards individuals against unlawful detention or imprisonment. The right to challenge the legality of your detainment in court.
What human rights are asserted in the Civil War amendments and the 19th amendment?
Thirteenth Amendment: Abolished Slavery This amendment abolished slavery in the US. No one is forced to work for anyone else for no pay, except as punishment for a crime in which the criminal has been convicted by a court of law Fourteenth Amendment: civil rights issues anyone born in the us is given citizenship it guarantees "equal protection under the law" which prohibits states from denying any persons within their jurisdiction the quality protection of the laws It prevents states from depriving individuals of life, liberty, or property without due process of law For any state that denies the right to vote (to males of 21 years of age or older) for any reason except rebellion or crime, that state will receive a reduction in its representation in the House of Representatives Fifteenth Amendment: Voting no longer denied due to race, color, or previous servitude. This amendment aimed to enfranchise African-American men Nineteenth Amendment: Voting no longer denied based on sex. Women can vote,