International Human Rights Law

Transcription

1 International Human Rights Law by Douglas Lee Donoho (with contributions by James Wilets) Table of Contents DRAFT TABLE OF CONTENTS... 2 CONTENTS... 2 INTRODUCTION AND PREFACE FORMAT AND ORGANIZATION CHAPTER ONE: WHAT ARE INTERNATIONAL HUMAN RIGHTS? A. INTRODUCTION B. HISTORICAL ANTECEDENTS: WORLD WAR II & THE HOLOCAUST The Limited Scope of International Law Prior to World War II The Catalyst for Change: World War II Atrocities...20 a. Adolf Hitler to his Army commanders, August 22, 1939:...21 b. Testimony of Hermann Graebe at Nuremberg (German engineer with the Jung, A.G., Construction Company)...21 c. Visual Reminders of the Holocaust The Complex Nature of Rights As a Legal Concept...24 a. Western Liberal Premises...25 b. A Broader International Perspective on the Nature of Rights Putting It Together: The Founding Premises of International Human Rights The Grim Reality: Never Again Or Again and Again?...32

2 CHAPTER TWO: BASIC PRINCIPLES OF INTERNATIONAL LAW RELEVANT TO HUMAN RIGHTS A. INTRODUCTION B. GENERAL CHARACTERISTICS OF THE INTERNATIONAL LEGAL SYSTEM.. 35 C. SOURCES OF INTERNATIONAL LAW: TREATIES, CUSTOMARY INTERNATIONAL LAW AND GENERAL PRINCIPLES OF LAW Introduction and Overview Treaties ( Conventional Law )...39 a. General Characteristics...39 b. Rules on Formation Consent, Signature & Ratification...41 c. Reservations...43 d. Interpretation...49 e. Dispute Resolution and Remedies for Breach...53 f. Withdrawal, Termination or Denunciation...56 g. Derogation of Obligations Customary International Law...60 a. General Characteristics...60 b. Customary International Law & Human Rights: The Contested Modern View...61 c. Remedies for Violations of Customary Human Rights Obligations Jus Cogens...70 D. REVIEW QUESTIONS CHAPTER THREE: WHAT RIGHTS ARE HUMANS ENTITLED TO UNDER INTERNATIONAL LAW? A. INTRODUCTION & OVERVIEW B. TREATY BASED HUMAN RIGHTS U.N. Charter The International Bill of Rights...79 a. Universal Declaration of Human Rights: The Blueprint...79 b. The 1966 Covenants Post Covenant Developments: The Evolving Network of Global Human Rights Treaties...86 C. CUSTOMARY INTERNATIONAL HUMAN RIGHTS... 90

3 CHAPTER FOUR: INTERNATIONAL RIGHTS AS DOMESTIC OBLIGATIONS A. INTRODUCTION AND OVERVIEW Incorporation: Traditional Distinctions Between Monism and Dualism...95 B. THE CRITICAL ROLE OF INCORPORATION: DOMESTICATION OF INTERNATIONAL NORMS C. INCORPORATING HUMAN RIGHTS OBLIGATIONS INTO DOMESTIC LEGAL ORDERS: THE CONTRASTING EUROPEAN AND U.S. EXAMPLES The Shining European Example The Not So Shiny Example: The United States Failure to Domesticate International Obligations a. Constitutional Framework b. Doctrine of Self-Executing Treaties c. Legal Status of Treaties within the U.S. Hierarchy of Laws d. Self-Execution and Human Rights Treaties Ratified by the United States e. Growing Movement Toward Domestic Implementation by Other Nations? f. The Domestic Legal Status of Customary International Law g. The Interpretation Angle: The Charming Betsy Doctrine D. TREATIES WITHIN U.S. DOMESTIC LAW: CASE STUDY OF CAPITAL PUNISHMENT & THE VIENNA CONVENTION ON CONSULAR RELATIONS Interpretation of the 8 th Amendment and the Execution of Juveniles Violations of the Vienna Convention on Consular Relations CHAPTER FIVE: CIVIL LIABILITY AS A METHOD OF DOMESTIC ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS A. INTRODUCTION & OVERVIEW The Domestication Gap: U.S. Failure to Incorporate International Human Rights Treaties Invoking Customary International Human Rights in the United States Courts B. METHODS OF DOMESTIC ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS IN THE UNITED STATES GENERALLY Overview Civil Suits in American Courts for Foreign Human Rights Violations: ATS & TVPA Litigation against Individual Foreign Defendants a. Facts: CASO QUEMADOS...134

4 b. Statutory Resources c. Case Law: Suits against Foreign Government Actors for Violations of Human Rights The Corporate Alien Tort: ATS Litigation Against Multinational Corporations b. Kiobel, Extraterritoriality & ATS Claims: What Remains? c. Interpretation and Application of Kiobel d. Bucking the Kiobel Tide? e. Response of Legal Commentators to Kiobel f. Common Defenses to ATS and TVPA Claims f. Putting It All Together: The Aftermath of Sosa and Kiobel, Claims & Defenses Filartiga Style Actions Overseas: The Case against Henry Kissinger Domestic Enforcement of Human Rights against U.S. Government Actors a. Overview b. Civil Suits against U.S. Public Officials for Domestic Violations of Human Rights: A Shocking Lack of International Protections? c. The Case for Domestic Accountability of U.S. Officials for Actions Overseas d. Domestic Accountability for Human Rights Violations in the War on Terror? CHAPTER SIX: USING DOMESTIC CRIMINAL PROSECUTIONS TO ENFORCE INTERNATIONAL HUMAN RIGHTS A. INTRODUCTION AND OVERVIEW B. INTERNATIONAL LAW LIMITS ON DOMESTIC JURISDICTION AND THE RISE OF UNIVERSAL JURISDICTION C. PROSECUTING HUMAN RIGHTS CRIMES IN THE UNITED STATES Current U.S. Statutes Criminalizing International Human Rights Violations a. Genocide b. Torture c. Recruitment and Use of Child Soldiers d. War Crimes e. Human Trafficking Institutional Framework Case Study: U.S. v. Charles Taylor, Jr Potential Prosecution of American Actors for Human Rights Violations in the War on Terror a. The Case against Bush Administration Officials for Torture b. The War Crimes Case against the Obama Administration: Use of Targeted Drone Assassinations D. U.S. IMMIGRATION BASED CIVIL AND CRIMINAL ACTIONS AGAINST HUMAN RIGHTS VIOLATORS Civil Removal Proceedings...249

5 a. O.C. man linked to Guatemala massacre deported b. Six Nazis Who Will Probably Live Out Their Lives Free in America Immigration Related Criminal Prosecutions E. THE PINOCHET PARADIGM: USE AND LIMITS OF UNIVERSAL JURISDICTION TO PROSECUTE FOREIGN BASED HUMAN RIGHTS CRIMES UNRELATED TO THE FORUM Overview The Decision: Regina v. Pinochet Ugarte The Aftermath: Exportation of the Pinochet Paradigm Outside of Spain The Case of Henry Kissinger a. Henry and the Case for Universal Jurisdiction b. Henry s Response: The Pitfalls of Universal Jurisdiction, By Henry Kissinger, Foreign Affairs, July / August, c. Henry Could Be Wrong F. DOMESTIC PROSECUTIONS OUTSIDE OF THE UNITED STATES Overview Former Leader of Guatemala Is Guilty of Genocide against Mayan Group CHAPTER SEVEN: INTERNATIONAL PROMOTION AND ENFORCEMENT UNDER THE UNITED NATIONS CHARTER BASED SYSTEM A. INTRODUCTION & OVERVIEW B. HUMAN RIGHTS IN CHINA: THE SUPPRESSION OF UYGHUR & TIBETAN MINORITIES Generally Author Nurmuhemmet Yasin Professor Ilham Tohti China's Uighurs - Islamic extremists or oppressed minority? C. PRINCIPAL U.N. INSTITUTIONS AND THEIR ROLE IN THE PROTECTION OF HUMAN RIGHTS The United Nations Generally...298

6 2. Principal U.N. Institutions a. General Assembly b. U.N. Security Council c. Economic and Social Council d. International Court of Justice (a.k.a. World Court ) D. CHARTER BASED INSTITUTIONS AND MECHANISMS WITH DEDICATED HUMAN RIGHTS MANDATES Overview & Historical Evolution a. Thomas Buergenthal, The Evolving International Human Rights System, 100 A.J.I.L. 683 (2006) b. Organizational Structure of UN Human Rights Institutions Office of the High Commissioner for Human Rights Human Rights Council a. Specific Mechanisms & Procedures of the HRC E. CRITIQUING THE REVAMPED U.N. CHARTER BASED HUMAN RIGHTS SYSTEM: EVOLUTION, EXPEDIENCY OR JUST MORE OF THE SAME? Some Well Deserved Criticisms: Continuing Hypocrisy & Double Standards a. Tom Kuntz, Libya s Late, Great Rights Record, NY Times, March 5, b. Daily News, Editorial, UNseen Abuses: The Clownish United Nations Human Rights Council Hits New Heights of Absurdity c. Wonk d: Why the UN Human Rights Council Blows, blog Undiplomatic, March 8, d. Frida Ghitis, The Human Rights Council is a Tragic Joke, Miami Herald, 6/25/ e. Sudan s Election to ECOSOC f. The Anti-Israel Obsession Potential Light on the Horizon: A Glass Half Full? a. Patrick Stewart, The Human Rights Council: Give Credit Where Credit Is Due, Counsel on Foreign Relations, The Internationalist, June 1, CHAPTER EIGHT: INTERNATIONAL PROMOTION AND ENFORCEMENT OF RIGHT THROUGH THE U.N. TREATY BASED SYSTEM A. INTRODUCTION & OVERVIEW The Treaties The Treaty Based Mechanisms: General Characteristics Distinctions From Charter Based Mechanisms B. CASE STUDY: HUMAN RIGHTS, FREE SPEECH & THE JUDICIARY IN VENEZUELA General Human Rights Conditions in Venezuela...357

7 2. The Case of Judge Afiuni Treatment of Political Opposition Including Leopoldo Lopez C. HOW TREATY BASED PROCESSES FUNCTION Periodic State Reports a. Generally b. Report Exhaustion & Overlap: Efforts to Coordinate State Reporting c. Committee Evaluation of Reports, Concluding Observations & Reality d. Shadow Reports & NGO Participation e. Other Examples of NGO Shadow Reporting Consideration of individual complaints and communications a. Overview b. Treaty Based Complaint Procedures: The Process and How To c. Illustrative Committee Decisions d. Evaluating the Petition Process General Comments a. HRC General Comment b. Rawle Kennedy (represented by the London law firm Simons Muirhead & Burton) v. Trinidad and Tobago, Communication No. 845, U.N. Doc. CCPR/C/67/D/845/1999 (31 December 1999) c. GENERAL COMMENT d. ESCRC General Comment 15 and the Right to Water D. CRITIQUING THE UN TREATY BASED SYSTEM Is It Really Working to Alter State Behavior? Are There Problems with the Premises? E. UN HUMANITARIAN WORK AND HUMAN RIGHTS CHAPTER NINE: REGIONAL SYSTEMS FOR THE PROTECTION OF HUMAN RIGHTS: INTRODUCTION AND EXAMINATION OF THE EUROPEAN SYSTEM. 439 A. INTRODUCTION TO REGIONAL SYSTEMS OF HUMAN RIGHTS PROTECTION Overview James Wilets, Lessons from Kosovo: Towards a Multiple Track System of Human Rights Protection, 6 ILSA J. Int l & Comp. L B. SYSTEMS FOR THE PROTECTION OF HUMAN RIGHTS IN EUROPE Overview...447

8 2. Historical Evolution of the CoE European System Nuts & Bolts: How the ECtHR Works a. Problems with Expansion: The Russian Connection b. The European Roma Critical Jurisprudence: ECtHR Case Law a. Overview b. DUDGEON v. UK (Northern Ireland) Protocol 14 (entered into force June 1, 2010) C. THE INCREASING ROLE OF THE EUROPEAN UNION ( EU ) AS AN ENFORCER OF HUMAN RIGHTS NORMS Overview: Understanding the EU and its historical development culminating in Charter of Fundamental Rights Fundamental Rights Agency (FRA) D. SOMEWHERE BETWEEN INTERNATIONAL HUMAN RIGHTS LAW AND DOMESTIC INCORPORATION: THE FEDERALIZATION OF HUMAN RIGHTS LAW J. Wilets, The Thin Line between International Law and Federalism: a Comparative Legal and Historical Perspective on US Federalism and European Union Law E. OSCE: ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE & THE HUMAN DIMENSION CHAPTER 10: REGIONAL HUMAN RIGHTS SYSTEMS: THE INTER-AMERICAN AND AFRICAN SYSTEMS A. INTRODUCTION & OVERVIEW B. ABUSE AND EXPLOITATION OF CHILDREN: STREET CHILDREN, CHILD LABOR & CHILD SOLDIERS Overview Street Children a. Casa Alianza U.K. Network b. Video Clip Street Kids in Guatemala c. From Human Rights Watch: Easy Targets: Violence against Children World-Wide d. Sexual Exploitation of Children Child Soldiers a...499

9 b. Quotes from Child Soldiers (various sources reported at Child Soldiers.org and Trip Line, Origin Uncertain) c. Video Clips Exploitation of Child Labor C. THE INTER-AMERICAN HUMAN RIGHTS SYSTEM The OAS a. Overview b. Evolution of the OAS & Its Promotion of Democracy Overview of the Inter-American System for Human Rights a. Brief History of the Inter-American Human Rights System Inter-American Commission a. Overview of the Commission & Its Functions b. Petitioning the Commission Inter-American Court of Human Rights D. CRITIQUING THE INTER-AMERICAN SYSTEM E. AFRICAN SYSTEM FOR HUMAN RIGHTS PROTECTION Introduction and Overview Evolution of the African Union African Human Rights System a. Overview b. African Commission on Human and Peoples' Rights SPECIAL MECHANISMS c. African Court on Human and Peoples' Rights CHAPTER ELEVEN: INTERNATIONAL CRIMINAL LAW, HUMANITARIAN LAW & HUMAN RIGHTS A. INTRODUCTION & OVERVIEW B. HISTORICAL ANTECEDENTS: NUREMBERG & TOKYO TRIALS Nuremberg Trials The Nuremberg Charter Tokyo Trials...549

10 C. EVOLUTION OF INTERNATIONAL HUMANITARIAN LAW: THE GENEVA CONVENTIONS D. CONTEMPORARY INTERNATIONAL CRIMINAL PROCESSES INVOLVING HUMANITARIAN LAW AND HUMAN RIGHTS Ad Hoc International Criminal Tribunals a. International Criminal Tribunal for the former Yugoslavia (ICTY) b. International Criminal Tribunal for Rwanda (ICTR) c. Case Law From the Ad Hoc Tribunals c. Completion Strategy & Mechanism for International Criminal Tribunals D. INTERNATIONAL CRIMINAL COURT (ICC) Overview Statute of ICC Institutional Structure and Process Situations and Cases Under ICC Review Evaluating the ICC a. Worldwide Justice -- when it's convenient, by John Hagan, February 16, 2003, Chicago Tribune. All Rights Reserved b. The ICC is no kangaroo court, Tracy Gurd for the c. Can the International Criminal Court Play Fair in Africa? CHAPTER TWELVE: UNIVERSAL HUMAN RIGHTS, RELATIVISM & THE CHALLENGE OF DIVERSITY A. INTRODUCTION & OVERVIEW B. GLOBAL DIVERSITY: CAN THE MEANING OF RIGHTS BE RELATIVE TO CULTURE, SOCIAL OR RELIGIOUS CIRCUMSTANCES? Autonomy, Self-Governance, And the Margin of Appreciation: Developing A Jurisprudence of Diversity Within Universal Human Rights, Donoho, 15 Emory Int l L. J When Culture Collides with International Human Rights Norms: The Case of Sandra Lovelace v. Canada When Culture and International Rights Collide: Female Genital Mutilation a. Background b. Does FGM Violate International Human Rights: Perspective of Amnesty International c. Male Circumcision: Is a Gender Distinction Valid? CHAPTER THIRTEEN: GENDER RIGHTS AS HUMAN RIGHTS

11 A. INTRODUCTION & OVERVIEW B. THE CIRCUMSTANCES OF WOMEN THAT NECESSITATE GENDER BASED RIGHTS The Condition of Women World-Wide Education, Marriage, Family Practices: A Question of Culture? C. RELIGIOUS LAW & WOMEN S RIGHTS Nontract #10, Freedom From Religion Foundation, Inc Nicholas D. Kristof, Religion and Women, Opinion NY Times, January 9, Sharia Law a. What isn't wrong with Sharia law? Maryam Namazie, The Guardian, July b. Pakistan Hudood Laws Jewish Rabbinical Law a. Women, Religious Law and Religious Courts in Israel The Jewish Case, by Margit Cohn b D. CULTURAL PRACTICES Honor Killing E. HUMAN RIGHTS LAW: CONVENTION ON ELIMINATION OF DISCRIMINATION AGAINST WOMEN (CEDAW) The Women's Convention And Its Optional Protocol, Empowering Women To Claim Their Internationally Protected Rights, Laboni Amena Hoq F. RELATIVISM & THE PUBLIC-PRIVATE DISTINCTION: ARE WOMEN S ISSUES DIFFERENT FROM OTHER HUMAN RIGHTS ISSUES? CHAPTER FOURTEEN: GENDER IDENTITY AND SEXUAL ORIENTATION AS SUBSETS OF GENDER RIGHTS A. WILETS, CONCEPTUALIZING PRIVATE VIOLENCE AGAINST SEXUAL MINORITIES AS GENDERED VIOLENCE: AN INTERNATIONAL AND COMPARATIVE LAW PERSPECTIVE, 60 ALB. L. REV. 989 (1997) B. SEE UNHCHR-- ENDING VIOLENCE AND CRIMINAL SANCTIONS ON THE BASIS OF SEXUAL ORIENTATION AND GENDER IDENTITY

12 C. COMPARATIVE LAW IN THE INTERPRETATION OF THE INDIAN CONSTITUTION IN THE CONTEXT OF TRANSGENDERED PERSONS Professor Notes: In the Supreme Court of India, National Legal Services Authority v. Union of India...676