PUBLIC INT’L LAW CLASS TWELVE HUMAN RIGHTS

1. PUBLIC INT’L LAW CLASS TWELVE HUMAN RIGHTS Prof David K. Linnan USC LAW # 783 11/04/03

2. HUMAN RIGHTS LAW TRADITIONAL INT’L LAW VIEWS • States as sole subjects, with personality • Mistreatment of foreigner considered “insult” of his/her state, so international law claim for injury to foreigner in his/her state NOT in individual (diplomatic protection) • Few international law rules directly applicable to individuals, however, such as jus in bello (no massacring civilians, enforced by military courts martial) or piracy/slavery as international law offenses

3. HUMAN RIGHTS LAW TRADITIONAL ALIEN PROTECTION STANDARDS • Denial of justice (vague general physical protection standards for foreigners) • Economic protection standards (antidiscrimination, appropriate compensation for foreigners) • Arguments re national versus international standards (from consular justice to arguments about consent to local treatment)

4. HUMAN RIGHTS LAW WHAT IS THEORETICAL BASIS OF HUMAN RIGHTS LAW? • Natural law claims/revival (jurisprudence plus secular versus religion issues) • Positivist theory (constitutions, etc.) • Cultural relativism theory (Western or modernist construction) • Positive/negative restraints on govt (political theory) • Collective rights/duties (communitarianism theory, but issue whose rights) • Dialectical theories (issue re Marxism, integralism & UUD 1945 in Indonesia)

5. HUMAN RIGHTS LAW WHAT ARE SPECIFIC INT’L LAW SOURCE ISSUES? • Issues re sources doctrine, general principles versus customary law formation questions • Positivistic treaty claims (eg, UN Charter preamble “to reaffirm faith in fundamental human rights” plus article 55) • Re school of int’l law, NGO functional connection so who makes law issues in background

6. HUMAN RIGHTS LAW CURRENT LEADING ISSUES IN HUMAN RIGHTS LAW • Civil and political rights (defensive against state intrusion, ie no extrajudicial killings) versus economic and social rights (claims for state support, ie free public education) • Universal standards versus regional or lower standards as for developing countries • Group rights issues, often gender based, typically in context of differential treatment in different societies with communalism claims in background (eg, issues re women’s status in Islamic countries) • Enforcement issues, meaning universal jurisdiction to enforce before domestic courts (eg, Belgian statute, Alien Tort Claims Act) plus ICC

7. HUMAN RIGHTS LAW LEADING HUMAN RIGHTS LAW INSTRUMENTS Universal Declaration of Human Rights (1948) (mixed) Covenant on Civil and Political Rights (1967) (so-called first generation rights) Covenant on Economic, Social and Cultural Rights (1967) (so-called second generation rights) Idea of group rights typically rooted in academic and UN conference activity (so-called third generation rights, often documented in something called a declaration with issues re customary/general principles law technically) Now some regional instruments too, ie European Human Rights Convention, but also often with enforcing tribunal attached

8. HUMAN RIGHTS LAW LOOK TO SO-CALLED UN BILL OF RIGHTS (UNIVERSAL DECLARATION & TWO COVENANTS) TO PICK OUT SPECIFIC RIGHTS What of more general question whether rights analysis is suitable to address int’l law problems like globalization, distributive justice, etc.? Shadow focus on individuals getting away from traditional focus on law between states? Shadow focus on int’l law as restraining govts within own states? But problem of excuse for intervention, as with much of world’s response to US removing human rights-violating dictator in Iraq

9. HUMAN RIGHTS LAW LOOK TO SO-CALLED UN BILL OF RIGHTS (UNIVERSAL DECLARATION & TWO COVENANTS) Int’l Covenant Civil & Political Rights Art 6 Deprivation of life Art 7 Torture Art 8 Slavery Art 9 Liberty & personal security Art 10 Criminal justice (presumption of innocence, etc.) Art 12 Liberty of movement

10. HUMAN RIGHTS LAW LOOK TO SO-CALLED UN BILL OF RIGHTS (UNIVERSAL DECLARATION & TWO COVENANTS)(CONT’D) Int’l Covenant Civil & Political Rights (cont’d) Art 14-16 equality before law & crim pro Art 17 Privacy, family, home, honor Art 18 Freedom of thought, conscience & religion Art 19 Freedom of expression Art 21 Peaceful assembly Art 22 Freedom of association

11. HUMAN RIGHTS LAW LOOK TO SO-CALLED UN BILL OF RIGHTS (UNIVERSAL DECLARATION & TWO COVENANTS)(CONT’D) Int’l Covenant Civil & Political Rights (cont’d) Art 22 Freedom of association Art 23 Family & marriage Art 24 Children Art 25-27 citizen participation, equality before law, minority protection

12. HUMAN RIGHTS LAW LOOK TO SO-CALLED UN BILL OF RIGHTS (UNIVERSAL DECLARATION & TWO COVENANTS) Int’l Covenant Economic, Social & Cultural Rights Art 6 Right to work Art 7 Labor conditions Art 8 Unions Art 9 Social security & insurance Art 10 Family, children & motherhood Art 11 Adequate standard of living, etc. Art 12 Physical & mental health Art 13-14 Education Art 15 Science & culture

13. HUMAN RIGHTS LAW US VIEWS OF (CUSTOMARY) HUMAN RIGHTS LAW • Restatement (Third) Sec. 702 • genocide • slavery • murder/disappearance • torture • arbitrary detention • systematic racial discrimination • gross violations of internationally recognized human rights Are these first, second or third generation rights? Foreign policy emphasis on civil society, meaning NGOs plus, and democratization

14. HUMAN RIGHTS LAW REGIONAL HUMAN RIGHTS INSTRUMENTS/SYSTEMS • European, Inter-American and African • Why no Asian? • Why US reluctance to participate in any international system? • Indonesian views pre/post 1998?

15. HUMAN RIGHTS LAW HOW TO ENFORCE HUMAN RIGHTS AND CONTROVERSIES • Political versus legal enforcement • National versus international enforcement (courts) • Regional versus general international (courts) • In substantive law, ie Civil Law versus Common Law views re criminal procedure and new idea of int’l criminal law (eg, new ICC), linked with doctrinal approaches like Collision Theory of rights limiting themselves in conflict cases • UN Committee structure particularly on ECOSOC side