1 / 100
Marginalized groups
Click the card to flip 👆
Terms in this set (100)
• Many existent human rights treaties have provisions that imply protections for Indigenous peoples
• ICCPR Article 27 - Right to language
• ICESCR - Groups referred to throughout.
• Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities
• Rio Declaration on the Environment and Development
• Many other references in other pieces of international law
• Considered group rights.
• Why do you thin Rio Declaration on the Environment and Development is included?
This distinction is incredibly important in the discourse of women's rights. The current human rights discourse focuses on civil and political rights that benefit males working in the public sphere. Women are concentrated in the private sphere where economic and social rights need to be given much more attention
Nearly universal ratification (besides Somalia and the US). Defines children as those persons less than 18 years of age. They are not to be treated as possessions; they have the right to express their opinions and act on those opinions and the right to non-discrimination. Parents have rights but those rights must be adjusted according to the "evolution capacities of the child". Death penalty of children is prohibited.
• 1951 Convention relating to the Status of Refugees
• "has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group, or political opinion
• Is outside his/her country or origin
• Is unable or willing to avail him/herself of the protection of that country to return there
IDPs• We don't know how many people there are • they flee their house but do not go to another state • There are many reasons why people become IDPs o economic o political o religion • The state should protect them but they dontStateless People• have the hardest time • hard when they are not in a nice place • these people don't have papers (ID, passport) so they can't go to another state • The state they live in doesn't recognize them or count them as part of the population • Few states have signed and ratify the ConventionsConv. relating to the status of stateless persons• The implementation of this convention is significant because it marked the increased recognition of the problem of the great number of stateless people and the vulnerability of those people. • The convention defines a stateless person and the rights they have as well as the duty of the state they are in.Norris v. Ireland• Overturning criminalization of LGBT relationships • Norris prosecuted for committing homosexual activitiesDudgeon v. United Kingdom• Overturning criminalization of LGBT relationships • Article 8 in ECHR • Article 14 in ECHR • Examples of International Human rights laws have been incorporated into Domestic lawsLawrence v. TexasSupreme court decision that made same sex activity legal in the United States by invalidating the sodomy laws in Texas and in the United States and claiming that sexual conduct is considered part of the liberty protected by substantive due process under the 5th Amendment of the U.S. Constitution (due process) 14th Amendment of the U.S. Constitution (equal protections clause).Article 12 of the European Convention on HR• provides a right for women and men of marriageable age to marry and establish a familyCESCR General Comment 20• Provides a list of the explicitly prohibited grounds for discrimination, which includes membership in a group, race and color, sex, language, religion, political or other opinion, national or social origin, property, and birth.ReservationsTreaties protecting vulnerable groups are the treaties with the most reservations. • The United States has not ratified many treaties that protect vulnerable groups.UN Security Council Resolution 2118• adopted unanimously in september 2013 • Framework for Elimination of Syrian Chemical Weapons • Had until mid 2014 to destroy weapons5th Amendment of U.S. ConstitutionDue process14th Amendment of U.S. Constitution• addresses citizenship rights and equal protection of the lawCrosby v. National Foreign Trade Council (The Burma Law)o The Supreme Court decided that the Massachusetts Burma Law (which prohibited Massachusetts governmental agencies from buying goods and services from companies in Myanmar due to human rights violations) was unconstitutional because ultimately the decision regarding trade policies was federal government decisions.Right to return in the Gulf (Moodle)• localizing human rights • after Katrina and the destruction • Do those people have the right to return even though they lost everything • Human Rights claim to live where they want to live • Do they have some economic responsibilitiesAsylum• State obligations and ensure fulfillment of all human rights an individual enjoys under international law • an important aspect for political refugees • huse aspect for international lawNon-refoulement• Critically- no return to places where the refugees' lives could be threatened.14 Princeton Principles of Universal Jurisdiction (on Moodle)o Refers to crimes that are considered to fall under universal jurisdiction: piracy, slavery, war crimes, crimes against peace, crimes against humanity, genocide, torture. o Universal Jurisdiction is determined by the type of crime not by nationality or state. o These crimes are so heinous that they violate the laws of all states.Traditional Criteria for determining jurisdiction• Where the crime occurred • Where the people who committed the crime are from • What type of crime committed • Some places are both territorial and subject and some are one or the other • Authority to make laws, enforce laws, and adjudicate laws • Sovereignty entitles a state to exclusive jurisdiction within its borders • Extraterritorial Jurisdiction- usually seen as a violation of the principle of sovereignty and international lawExtradition• No duty to surrender an individual to another nation (although states can obviously chose it) • Requires bi-lateral or multi-lateral treaties or "irregular alternatives" -deportation, kidnappingEichmann• Adolf Eichmann job was to transport all the Jews to the concentration camps • Was found in Argentina by an Isrealian group who hunted Nazi • Prosecuted by Israel under the their Nazi Collaboration Punishment Law • Invoked Universal Jurisdiction because: o Not in territory o Not a national o Victims not nationalsPinochetArmy general and dictator if Chile. Arrested in UK under international arrest warrant issued by Spain. Determined he could be prosecuted by Spain because he violated the UN's defined crimes against humanity. However, he died before he was indicted.Ndombasi (DRC v. Belgium ICJ Case)President of DRC. Belgium attempted to prosecute under Universal Jurisdiction for encouraging the population to kill members of the rebellion (Tutsis). DRC argued against this claim and brought the case to the ICJ saying Belgium did not have jurisdiction under sovereign immunity. ICJ decision was in favor of the DRC because sovereign immunity constitutes as customary international lawAlien Tort Claims Act (ATCA) or ATSo Claims that foreigners can sue for violations of an international law norm. o 3-part test: The plaintiff must be an alien, must allege a tort, and must demonstrate that the defendant committed the tort in violations of the law of nations or of a treaty the US has signed and ratified. o Goal was to avoid conflict with other statesKadic v. KaradzicKaradzic was involved in ethnic cleansing in Bosnia-Herzegovina and was sued in NY court for brutal acts of rape, forced prostitution, force impregnation, and torture. District court initially claimed it had no jurisdiction due to defendant not being a government official at the time. 2nd Circuit ruled that it did have jurisdiction "especially when violations of customary international law are egregious, the ATCA confers federal subject matter jurisdiction even on private actors-that is individual persons." It set a precedent that private actors INCLUDING CORPORATIONS can fall under the ACTA.Sosa v. Alvarez-Machain• Upheld core of Filatriga: that foreigners could sue for violations of an international law norm uner the ACTA • Reinforced that the ACTA needs to legislative cause of action • Limits: Established 3 part for satisfaction under the ACTA o an alien o allege a tart o demonstrate that the defendant committed the tort in the violation of the law of nations or a treaty of the United StatesDoe v. Unocal• First American corporation sued for human rights abuses under the ATCA • 9th circuit determined corporations could be held accountable if they engaged in "practical assistance or encouragement" • Unocal settled which increased the incentive to take MNCs to courtFilatrga v. Pena-Irala: In 1976, Jose Filartiga was kidnapped and tortured to death by Irala. The case went nowhere in Paraguay (where the crime occurred and where the two parties were from). Two years later, Filartiga's sister came to America, learned of the Pena's presence in the United States, and then filed her case against Pena. Set precedent for US federal courts to punish non-American citizens for acts committed outside the US that were in violation of the law of nations or any other treaties of which the US is a party. • Empowered courts to prosecute government officials who committed state-sponsored violations of law of nations and led to the creation of the 1991 Torture Victims Protection Act (TVPA), which is a statute that allows for filing of civil suits in the United States against individuals acting in an official capacity for any foreign nation, violated law of nations. Statute requires a plaintiff to show exhaustion of local remedies in location of crime.Arms Trade Treaty• is a multilateral treaty which has not entered into force that regulates the international trade in conventional weapons • negotiated at a global conference under the United NationsEmergent Rightsare rights that are responses to current threats to human dignity (currently environmental rights) o There is not a clear-cut answer to the question, "Is there a human right to a clean environment?"Torture Victim Protections Act (TVPA)• Statute that allows for the filing of civil suits, in the United States, against individuals who, acting in an official capacity for any foreign nation, committed torture and/or extrajudicial killing • The statute requires a plaintiff to show exhaustion of local remedies in the location of the crime, to the extent that such remedies are "adequate and available." • Plaintiffs may be citizens or noncitizens.The Political Question DoctrineThe government can ask a judge to dismiss a case on the grounds that the judgment of the case would have a negative impact on the political relationship between two countries or because of national security issues. It is not always granted but the government is not shy in asking for this.Corporate Accountability• the idea that corporations should be held accountable for upholding certain standards.Corporate Complicitylegal term that is used to enforce human rights standards on corporations. Corporations can be held responsible for participating in a process that violates human rights even when they are not directly violating human rights.Kiobal v. Royal Dutch Petroleum(shell)• Brought by late wife of a member of the "Ogoni Nine" who were hanged by the Nigerian military junta in November 1995 • Shell was complicit according to allegations • 2nd Circuit in 2010 that corporations could not be held liable due to complicit actions because no clear obligations exist under international law • Supreme court upheld and went further: Unanimous decision in April 2013. That U.S only has jurisdiction in ATS cases when underlying the abuse must "touch and concern" the United States with "sufficient" forceBelgium v. Spain (ICJ case)Barcelona Traction, Light, Power Company (BTLP) was a Canadian utility company that operated light and power utilities in Spain. The Government of Spain under Franco in the 1960s placed restrictions on foreigners doing business in Spain. Belgian stockholders in Barcelona Traction lost $ and wanted to sue International Court of Justice (ICJ), but in court Judge ruled in favor of Spain, holding that only the state in which the corporation was incorporated (Canada) can sue. Significant because it determined that corporations are people separate from shareholders and have the right to be represented in international aw as members of native state.Nuremberg• Prosecuted Nazi leaders for war crimes • • War crimes tribunal initiated by the Allies immediately following WW2 • The Tribunal is celebrated for establishing that "[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." • Had lasting impacts on the formation of later treaties, such as the Geneva Convention. 12 sentenced to hanging • 7 imprisonedICTYo International Criminal Tribunals for Former Yugoslavia tried violators of human rights. Once tried by one of these tribunals, a defendant could not be tried by national courts. • ICTY did not go smoothly, contributed to escalation of conflictICTR• International Criminal Tribunal for Rwanda • Background o Deaths 500,000 - 800,000 Ethnic Tutsis o Jurisdiction similar to ICTY o Created by the Sec. Council o Shared Resources with ICTY (Judges and Prosecutors) o Has tried a smaller number of individuals than ICTY to date (around 50-60 cases). • Criticisms o Funding was severely limited, resources were constantly a problem. o Highlighted the world's emphasis on Europe.Types of Justice• Retributive Justice- punishment • Restorative Justice- getting over it • Reparative- getting compensation ex: receiving moneyTransitional Justice• The pursuit of accountability for mass atrocities or former human rights abuse • Linked to quest for institutional reform to address injustices of the past and prevent future abuses • Goal- to avoid another round of human rights abuses committed this time by those that were victims before • Integral to the transition from authoritarianism to democracyHybrid Courts• Truth commission and a court working together • Domestic and international judges • Key institutions of Transitional Justice • "Special Courts" • Sierra Leone • East Timor • Kosovo • Cambodia • Iraqi trial of Saddam HussienImpunity• Refers to the failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress. • Common in countries that lack a tradition of the rule of law, suffer from corruption or that have entrenched systems of patronage, or where the judiciary is weak or members of the security forces are protected by special jurisdictions or immunities.Truth Commissions• Viable Alternative to Trials • Famous Example o Truth and Reconciliation Commission for South Africa (TCR) • Advantages o No prosecutions leads to greater participation. o Not restricted by rules of evidence - A fuller picture of what happened. o Based on forgiveness helps population to move on. o Cathartic for victims. o Not as large an obstacle for peace. • Disadvantages o No punishment so many see no justice victims. o No 3rd party (judges) to determine what is the "real truth." o Not a deterrent for future atrocities.Truth and Reconciliation Commission (TRC)• Nature of Jurisdiction • Structure of the Court • Rules of evidence • Legal DoctrineRome Statute (key provisions)• How, when and where does the ICC have jurisdictionInternational Criminal Court (ICC)• Created by the Rome Statute in 1998 and began operations in 2002 • Key elements of RS: o nature of jurisdiction o the structure of the court o rules of evidence • Common Law o Adversarial (lawyers dominate) o Reliance on precedent o Mostly interpretive of relatively vague laws written in constitutions and statutes but always shifting based on judges decisionsSubject Matter Jurisdiction• Article 5 of the Rome Statute o Genocide o War Crimes o Crimes against Humanity o Crime of AggressionSecurity Council Referral (ICC)• The ICC is an independent judicial institution but Rome Statute recognizes a specific role for the Security Council • The Security Council regularly discusses issues and themes relevant to the mandate and activities of the Court • create judicial institutions in an ad hoc manner • Goal: Prosecute individual who pose a "threat to international peace & security"Common vs. Civil law• Civil Law law based on interpretations of statutes as written only, no reliance on precedent, and results in much more detailed legal codes and rules created by legislatures/constitutions. • Common Law Adversarial (lawyers dominate), reliance on precedent, mostly interpretive of relatively vague laws written in constitutions or statutes but always-shifting based on judges decisions.Enemy Combatant• is a term historically referring to persons who officially fight on behalf of an enemy or non- state actor • Prior to 2008 the definition was: " Any person in an armed conflict who could be properly detained under the laws and customs of war"The Office of the Prosecutor• Prosecutor can initiate indictments; doesn't have to come from the Security Council or a member state. • Decision making of the ICC • Who is going to have indictments • ProsectutionLord's Resistance Army• Notorious Uganda militant group infamous for recruiting child soldiers, run by Kony. • No ICC indictments • A criticism of judicial romanticism • Kony is never going to turn himself in... just prolonging the systemOmar Al-Bashir• Current head of state of Sudan • United States encouraged him not to come to the UN as he could be arrested • US was torn because they are bound by 1947 agreement to offer safe passage UN but also under intense pressureJus ad Bellum (Laws of war)• Latin word for "right to war", is a set of criteria that are to be consulted before engaging in war, in order to determine whether entering into war is permissible; that is, whether it is a just war. • War doctrine- under what is war justifiableCERD - Committee on the Elimination of Racial Discrimination• Adopted in 1965, entered into force Jan 4, 1969 • 87 signatories and 177 partiesUN Charter Article 2:4• All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United NationsForum non conveniensA case can be dismissed if the process of trying the case is inconvenient. For example, if someone from Paraguay is sued in the United States, they can argue that it is inconvenient to produce witnesses, etc... It questions Universal Jurisdiction.International Comity• Actions that states do out of etiquette - it's the idea that international law is NOT etiquette. • Etiquette: countries being nice to each other because that's just the way they do things • Separate from international lawRight to Development / Declaration on the Right to Developmentstates have sovereignty over resourcesKyoto Protocol (1997)the most well-known response to the global recognition that there is a problem - "it bound member states to act in the interests of human safety in the face of scientific uncertainty" in regards to the environment. o Goals: The ultimate goal was to stabilize greenhouse gas concentrations and put this responsibility on developed countries.ICESCR Articles 11 and 12imply the right to a clean environment. o Article 11 - "The continuous improvement of living conditions" o Article 12 - "The right to the highest attainable standard of physical and mental health"Complementary Jurisdiction• If the two sets of bodies do not have concurrent jurisdiction but as in the case of the International Criminal Court, the relationship is expressly based on the principle of complementarity, the international court is subsidiary or complementary to national courts, the difficulty is avoidedAmerican Exceptionalism• refers to the conception that America does not have to follow the rules.Naming and Shaming• tactic used by nations, organizations, groups, that points out a flaw (HR violation) and raises international awareness by shaming the group violating those rightsDomestic Enforcementplays a major role in the enforcement of international human rights law because there technically is no official international army/enforcement mechanism.Social Mobilization• Counties in the EU have open borders which allows citizens to freely move around • Causes problems because when refugees enter the EU they can easily move throughout the continent • usually a part of protests, social mobilization refers to the gathering of people within a specific locations most likely for political purposes, although this term has also been used to refer to revolutionary movements.Norm Development• an important process in coming into customary law and then maybe even hard law • idea that states will start to normalize some behaviors from law • ICSECR- even if some states havent signed and ratified, the states act in ways that develop into normsArticle 43 Arab Charter on Human Rightsidentifies that the court has no individual complaint mechanism and that the charter does not include rights of women, children or minorities.Stockholm Conferenceman has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well being and he bears a solemn responsibility to protect and improve the environment for present and future generations....[a clean environment] is essential to the enjoyment of basic human rights even the right to life itself."1982 World Charter for Natureclaimed that nature shall be respected and its essential processes shall not be impaired and that all areas of the earth should be subject to principles of conservation.Environmental Kuznet CurveMeasures when people start caring about the environment in relation to in their increase in wealth. o At a certain level of wealth, people can start worrying about the environment and when they reach that level their concern for the environment starts to go down.Intergenerational RightsFuture generations have the right - we owe it to them.Right to Self-Defenseclaims that nothing shall impair inherent right of individual or collective self-defense if an armed attack occurs against UN member until the Security Council has taken necessary measures.Article 51 of the UN charter• Presentation on ISIS • Individual self-defense • Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.Article 2(4) of the UN charter• Exceptions to the right of self-defense are laid out in the UN Charter Article 2:4, which are 1) when the use of force is carried out with the host state's consent and 2) when the use of force is in self-defense in response to an armed attack or imminent threat and the host state is unwilling or unable to take appropriate action.Responsibility to protect• The international community has the "responsibility to protect" our fellow human beings • "Hospitals have become quarantine zones for the dead and soon-to-be dead. Medicine is no longer even being used on people infected with Ebola. It is especially clear that the Liberia's government is incapable of managing a response; even elected officials have fled the nation. Doctors and nurses have either perished from Ebola or have left the country due to a lack of support and concern for their safety. The number of infected people is spiraling out of control." (CBS News) • Fails to apply • Not part of customary international law • rests with the government in sovereign statesICCPR Article 12• Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. • Everyone shall be free to leave any country, including his own. • The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. • No one shall be arbitrarily deprived of the right to enter his own country.International Health Regulations• Pertains to Ebola • Binding international law • Public Health as a Global Security Threat • Requirement for National Core Capacities under IHR o State Party is required to develop, strengthen, and main core public health capacities for surveillance and response by using existing national resources, such as the national resources, such as the national plans for influenza pandemic preparedness8th Amendment• Prohibits the government from excessive fines or cruel and unusual punishment including torture. • Related to the Prison DebateOptional Protocols to the ICCPR• Two OPs to the covenant • first, established an individual complaint mechanism, complained to HRC about violations - 114 parties • second, abolishment of the death penalty o reservations allowed the death penalty for the most serious crimes of a military nature, committed during wartime - 77 partiesDeterrencethe use of punishment as a threat to deter people from breaking the law. The concept of deterrence has two key assumptions: the first is that specific punishments imposed on offenders will "deter" or prevent them from committing further crimes; the second is that fear of punishment will prevent others from committing similar crimes. Does it actually work?Prison Industrial Complexthe idea that there is a demand created for more prisoners. Companies are being paid a certain amount of money per prisoner to hold them.Epistemicide• hard to argue that there is a genocide going on in North Korea • the idea to extinguish ideas • very powerful way to violate human rightsICCPR, ICESCR and Immigration...Right to Culture• The right of an individual to enjoy culture and to advance culture and science without interference from the state is a human right. • Under international human rights law governments also have an obligation to promote and conserve cultural activities and artefacts, particularly those of universal value.European Pact on Immigration and AsylumThe European Union, however, does not have the resources to decently receive all the migrants hoping to find a better life here. Poorly managed immigration may disrupt the social cohesion of the countries of destination. The organization of immigration must consequently take account of Europe's reception capacity in terms of its labor market, housing, and health, education and social services, and protect migrants against possible exploitation by criminal networks." And that it is "for each Member States to decide on the condition of admission of legal migrants to its territory and, where necessary, to set their number."Article 26 and 21 of the ICCPR• A26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. • A21:The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.Principle of Proportionality• Principle of proportionality does not apply to non-derogable rights • Ferguson o Use of force must be proportional to threat o Derogating from obligations to observe freedom of association must be consistent with the principle of proportionality • For example: protests must cause enough disruption to peace and safety of the community in order for police to justify violating the freedom of associationICCPR Article 4• In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin • No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision • Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogationNon-derogable rights• Rights that can never be overlooked • the right to life, the right to be free from torture and other inhumane or degrading treatment or punishment, the right to be free from slavery or servitude,