HUMAN RIGHTS WHAT THEY ARE AND WHAT THEY AREN T

Transcription

1 HUMAN RIGHTS WHAT THEY ARE AND WHAT THEY AREN T

2 TWO ELEMENTS To be human To have rights

3 WHY HUMAN? Why elements of being human generates rights? Intelligence? Emotion? DNA?

4 THE TURING TEST June 2014: Eugene Goostman becomes the first artificial being to pass the Turing Test

5 (NON)HUMAN RIGHTS? In 2000, New Zealand: human rights to chimpanzees and and other primates Spain followed suit in 2008 Basis: no measurable difference in emotional awareness (universality of suffering) Animal suffering: Koko is forced to read Twilight

6 WHY RIGHTS? Rights are legal They are not ethics, morals, norms, or values Fighting against injustice is not the same thing as fighting for human rights

7 WHAT ELSE YOU WILL NEED Enthusiasm Perseverance Perspective Grit Humor

8 EXAMPLES

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10 WHY HUMAN RIGHTS ARE COMPLICATED Individual rights Cultural rights Family rights Religious rights Can one right be more important than the others? IKWRO: INTERNATIONAL KURDISH WOMEN S RIGHTS ORGANISATION

11 INDIA India s Supreme court bans Islamic triple talaq (divorce) August 22, 2017

12 WOMEN AND CULTURE Case was brought by 5 Muslim women Constitutional law (human rights) Islamic law (communal law)

13 THE RULING Triple talaq is un- Islamic (is neither religious nor cultural) Therefore the constitution applies The practice violates family law and the rights of women FARAH FAIZ, ADVOCATE

14 THE POLITICS Supporters denounce as anti-islamic BJP (Narendra Modi) and Hindu nationalism

15 OUR SHARIA CANNOT BE CHANGED

16 IMMIGRATION AND CULTURE 1 August 16, 2018: Farah Alhajeh wins case in Swedish court Company: (1) gender equality and (2) shaking hands are part of Swedish culture Court: Religious rights and cultural equivalents

17 IMMIGRATION AND CULTURE 2 April 20, 2018: French court upholds denial of citizenship to Algerian immigrant Married a French citizen in 2010 Grounds: not assimilated into the French community

18 IMMIGRATION AND CULTURE 3 August 18, 2018: Switzerland denies citizenship to a Muslim couple from North Africa Grounds: failure to integrate (gender equality) No handshake, no citizenship

19 HUMAN RIGHTS Frustrating Complex Necessary

20 THE ARCHITECTURE OF HUMAN RIGHTS THE UNITED NATIONS AND BEYOND

21 The UN system General Assembly Security Council Issue-based organs Secretariat International Court of Justice (ICJ) Committees

22 Human Rights and the UN Universal Declaration of Human Rights (10 December 1948)

23 Human Rights Bodies 1: Charter-based Human Rights Council (2006): 47 members Commission on Human Rights (1946, replaced by the Council in 2006) Universal Periodic Review US with withdraws June 2018: cesspool of political bias

24 Human Rights Bodies 2: Treaty-based Each treaty generates a committee that monitors compliance for countries that have signed the treaty.

25 Shadow Report

26 War and Human Rights International Humanitarian Law Geneva Conventions (1949) Common Article 3

27 Generations of rights First generation: civil and political Second generation: economic and social Third generation: collective or people s rights Fourth generation: rights of well-being

28 GENERATING RIGHTS INTRODUCING THE ICCPR

29 Treaties: key questions Who signed it? When did they sign it (and ratify/accede)? Are there any optional protocols? Are public actors involved?

30 The treaty The International Covenant on Civil and Political Rights (ICCPR) Adopted 16 December 1966 Enters into force 23 March 1976

31 Optional Protocols Protocol One allows individual complaints Protocol Two abolishes the death penalty

32 The preamble Recognizing that these rights derive from the inherent dignity of the human person...

33 ICCPR: a few things Article 2(1): no derogation after accession Article 4: some derogation in emergencies Article 28: creates Human Rights Committee (HRC or CCPR)

34 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. ICCPR: the rights Article 1: right to selfdetermination 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self- Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

35 Self-Determination External Self- Determination (decolonization) Internal Self- Determination (democratization) Non-Justiciability under First Optional Protocol Gillot et al. v France 932/00 Facts: French residents in New Caledonia; complaint about denial of right to vote in self-determination referendum Holding: Restrictions not unreasonable

36 Noumea Accords 1998: Kanak self-determination New Caledonia

37 Article 6: Right to Life 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

38 KINDLER V CANADA 470/91 Canadian citizen convicted of murder in Pennsylvania in 1983 and sentenced to death Escaped from custody and returned to Canada Arrested in Canada in 1985 and US requested extradition Canada abolished the death penalty in 1976 Canada signed First Optional Protocol Kindler sued on grounds that extradition violated his Article 6 rights

39 HRC (CCPR) RULING Canada did not directly subject Kindler to execution US retains the death penalty in conformity with Article 6 (only for serious crimes) Kindler was over 18 when he committed the crime The trial in Pennsylvania conformed to human rights standards of a fair trial (so is not arbitrary deprivation of life) Refusal of extradition is not mandatory but optional Article 6 cannot be construed to provide a safe haven for those convicted of murder and serious crimes

40 Treatment and Dignity Article 7: prohibits cruel, inhumane, and degrading treatment or punishment Article 10: humane treatment in detention

41 NG V CANADA 469/91 Similar to Kindler case (involving extradition to the US to face the death penalty) Ng also claimed that the method of execution, in this case asphyxiation by cyanide gas, constitutes excessive suffering and cruelty Split committee: (1) majority ruled that extradition would breach Canada s Article 7 obligations; (2) minority ruled that gas asphyxiation was not exceptionally cruel, and that method of execution would have to be intentionally brutal

42 UPDATE In United States v. Burns (Canadian Supreme Court, 2001)overturned Kindler, saying that Optional Protocol 2 obligations in Canadian law are based on the fact that the death penalty is cruel and unusual Extradition still occurred (Burns and Rafay are serving life sentences without parole) but only with assurances of not seeking the death penalty in the US

43 August-September 2011: Information is released confirming that the US infected approximately 2,500 persons in Guatemala with STDs in the 1950s to study the effects of penicillin President of Guatemala (Alvaro Colom): These are human rights violations and crimes against humanity Legal issues: (1) Nullem crimen sine lege (2) Government approval

44 Reparations and slavery No collective punishment (within and across generations) Nullem crimen sine lege

45 More rights Article 8: no slavery or forced labor Article 12: freedom of movement (but only for legal movement)

46 Personhood Article 16: Everyone shall have the right to recognition everywhere as a person before the law.

47 Note on abortion No international cases so far Regional cases only Rulings: the unborn are not persons (legality versus biology) ONE VIEW, BUT NOT THE ONLY

48 Still more Article 17: right to privacy Article 18: Freedom of thought, conscience, and religion Singh Bhinder v. Canada (208/86) Facts: Singh Bhinder was a Sikh and as such was required to wear a turban; as a federal worker he was also obligate to wear a hard hat at his work site; argued that refusal to allow him to work was a violation of religious rights Holding: Public safety requirements are reasonable if they are not intentionally directed at a specific group or person and so is not a denial of a right to religion

49 LONDON METROPOLITAN POLICE

50 But wait there s more Article 19: freedom of expression Article 20: prohibition of hate speech Article 21 (freedom of assembly) and Article 22 (freedom of association)

51 Article Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

52 Article 20 Article Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

53 Defamation Libel (written) and slander (spoken) False statement of fact (not expression of opinion) Any reasonable person would believe Equal standard for all persons and groups

54 Incitement Brandenburg v. Ohio (1969): speech (1) intended to produce imminent lawless action and (2) likely to produce such action Hess v. Indiana (SCOTUS 1973): advocacy of illegal action at some indefinite future time is protected by First Amendment (not hate speech) NAACP v. Claiborne Hardware Co. (SCOTUS 1982): An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.

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56 Marriage and the Family Article The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

57 JOSLIN ET AL V NEW ZEALAND (902/99) Joslin et al. claimed that the right of men and women to marry and the articles of nondiscrimination confirm a right to same-sex marriage Committee ruled that men and women means only the union of a man and a woman in marriage as the natural unit of society

58 And then June 17, 2011: UN endorses gay, lesbian, and transgender rights for the first time ever Human Rights Council passes the Declaration 23 votes in favor to 19 votes against Motion introduced by South Africa Pakistan envoy: We are seriously concerned at the attempt to introduce to the United Nations some notions that have no legal foundation. Mauritania representative: This represents the attempt to replace the natural rights of a human being with an unnatural right.

59 And finally Article 24: protection of children Article of non-discrimination (Articles 2, 3, and 26) Article 27: Rights of minorities