OUTLINE Flashcards
Vienna Convention of the Law of Treaties (VCLT)
How Treaties are to be interpreted
- Ordinary meaning of text in light of the treaty’s original purpose.
- Contemporaneous instruments.
- Subsequent grievances and practices.
- Look at how it has been interpreted over time. = For example, article 37 in the UN Charter about concurrence.
- Negotiating history.
Widely ratified = used by states, international courts, NGOs
- Even for the states that have not ratified it, like the US, regard it as customary international law
Criticisms of International HR law
-
Sovereignty arg
- Limits states gov choices
- Doesn’t allow states to make their own choices
-
neo-colonialism
- About the west vs north or colonial powers asserting control over other countries
- Doesn’t respect cultural differences
-
Is too weak
- In the name of getting consensus, end up with weak norms
- Too politicized
-
It’s a distraction for more important questions
- From equality, poverty, race
-
Unrealistic
- Too overreaching
- Fantasy to expect states to abide by intl rules
Committee on the Elimin. Of Racial Discrimination (CERD) Report on US
Recommends to the US:
1. Create a permanent and effective coordinating mechanism, like a national human rights institution following the Paris Principles, to ensure Convention implementation and monitoring.
2. Basically to amend US constitution to combat racist hate crimes & hate speech effectively
1. “Consider withdrawing or narrowing the reservation to Article 4 and adopt measures to prevent, condemn, and combat racist hate speech, including online and by public figures.”
3. Strengthen legislative and policy measures to prevent and reduce gun violence.
4. Address the profound disparate impact of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization on women of racial & ethnic minorities & those with low incomes
key characteristics of minority regime
- Limited rights holders / rights
- Limited geographically
- Doesn’t apply to those within the victorious powers (applies only to the losers).
- Ethnic Italians who live in France don’t apply.
- Doesn’t apply at all to the colonies.
- Doesn’t apply to those within the victorious powers (applies only to the losers).
- Legal form - multilateral, unilateral, bilateral treaties & unilateral declarations
- Oversight
- Oversight by the League of Nations.
- States and individual minority groups could issue complaints. The Court of International Justice can review.
pros & cons of minority regime
pros = Acceptance of duties on state to its own citizens; Important area of concern; Accountability - complaints can go to court; Precursor to notions of Human dignity and non-discrim; Compared to before = Provides accountability regime
Cons =
1) Victor’s justice = rules set by winners = imposed from external powers
* Come from the outside (neo-colonialism)
* Weaklings don’t have to go along
2) Focus on ethnicity & “national” minorities
* Does nothing for minorities that aren’t “national” minorities
* Some are unprotected (ex: stateless)
* Does not protect majority
3) Related to above = the focus on minority rights makes that the nation where they are the majority makes
* What if concern for minorities leads to non-legal disputes?
* Motivations for war
4) Lack of uniformity - unequal duties
* Bc done thru mix of unilateral, bilateral agreements
5) Too limited = negative duties only (protection from harm, not about right to education per se)
6) Too focused on only interstate concerns (not individual)
Minority Schools In Albania, Permanent Court of International Justice Ser (1935)
rule
- equality must be interpreted in a way that does not render the concept illusory → must be equality “in fact”
decision
- The Court disagreed with the Albanian Government’s plea, determining that the right to maintain, establish, and control their own institutions, including schools and religious establishments, is conferred on minority nationals by the second sentence of Article 5, and that abolishing these institutions and replacing them with government ones would undermine equality of treatment.
- Abolishing these institutions and replacing them with government institutions would deprive the minority of the institutions appropriate to its needs, whereas the majority would continue to have them supplied in the institutions created by the State.
bg to IMT charter
- Cataclysm of WW2 → Holocaust caused the Allies to think of serious standards of conduct by govt towards its own people and not just towards minorities
- 1st/1st important time in world history that war winners tried war losers under IL - innovative criminal proceeding raises questions about legitimacy of IMT and questions about due process
IMT Charter = Article 6(a): Crimes Against Peace (CAP)
- crime of aggression (for starting WWII)
- Most controversial (had never been used before) and no other treaty had ever made starting an aggressive war a crime
- chief charge against the Nazis for starting WW2
IMT Charter Article 6(b): War Crimes (WC)
- violations of laws of war
- Illegal actions specified in earlier treaties (30 years before WW2) or customary international law
- Ex: mistreatment of prisoners of war, destruction of cities, deportation, or slave labor
- note → these were specified in earlier Hague Conventions
WC only covered civilians in occupied territories and battlefields
IMT Charter = Article 6(c): Crimes Against Humanity (CAH)
- large scale atrocities that affect civil pop (such as murder, slavery etc)
- before or during the war,
- in connection with the other crimes in tribunal (crimes against peace and war crimes)
Judgement of Nuremberg Trial, nternational Military Tribunal (1946)
CAP
1. Nullum crimen sine lege = principle of justice. The attackers knew what they were doing, knew it was wrong, knew aggression was wrong
2. Hague violations were crimes so even though the Hague Conventions were silent, certainly D’s violations were worse so also crimes
3. Law must adjust
4. Criminal trials needed to enforce international laws
5. Concerns about the violation of Ds’ rights are addressed through the argument that illegal + immoral + knowledge = criminal.
WC
WC only covered civilians in occupied territories and battlefields
CAH***
- before war (pre-1939)
- Tribunal decides CAH not applied to pre-war crimes, despite text’s wording
- CAH not sufficiently proven to be in service of WC ot CAP pre-war
- after war (post-1939)
- CAH as DOOR OPENER to cover crimes connected to war that happened domestically and not on the battlefield
progression to ICCPR
UN Charter Art. 55 → UDHR → ICCPR
- UDHR + ICCPR + ICESCR = International Bill of Human Rights which is the core of the universal human rights system
4 tiered human rights regime (excluding national laws and NGOs)
1) UN Charter (Art. 55)
2) UDHR (which is now CIL)
3) 2 principal covenants → ICCPR & ICESR
4) Multilateral human rights treaties (called conventions) + resolutions/declarations
customary international law
state practice + opinio juris
Opinio juris shaped by:
1. Domestic legislation
2. Constitutions
3. State to state conduct/communications
4. IO outputs (i.e. UN resolutions)
Evidence that states think UDHR is customary IL
Domestic leg that guarantee the rights mentioned in UDHR
- Includes constitutions
State-to-state conduct & communications
- If states say you are violating UDHR
- Imposing or receiving sanctions
IO outputs
- General assembly citing UDHR
- Recommendations
Different ways to categorize ICCPR:
1) Categories of rights:
1. Protection of individual’s physical integrity (eg. torture, arbitrary arrest, and arbitrary deprivation of life)
2. Procedural fairness when government deprives individual of liberty (eg. on arrest, trial procedure, conditions of imprisonment)
3. Equal protection norms defined in racial, religious, gender, and other terms
4. Freedoms of belief, speech, and associations (eg. political advocacy, practice religion, press freedom, etc.)
5. Right to political participation
2) Nonderrogable vs derrogable (limited + unlimit)
debate - UDHR
Mary Glendon argues against the critique that the UDHR is not universal, highlighting the diverse contributions in drafting and the endorsement and influence it has received.
On the other hand, Roland Burke discusses the division between developing countries and eastern organizations in their view of human rights, leading to alienation and rejection of the UDHR. He also points out the mutual divergence, conflict within the language, and conflict between human rights variants that have affected the normative power of human rights.
debate → show we do on immediate or progressive obligations on states?
Yes to immediate
- If do progressive - will get ppl who sign on without actually complying
No, pro progressive
- May have gotten more states if did progressive
- More anti-colonial
- Some states don’t have the resources to comply immediately
- More practical
debate → ranking of rights?
Indivisibility/non-subordination doctrine
all human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equitable manner, on the same footing, and with the same emphasis.
Banković & Others v. Belgium & Others (2001) ECtHR ✈️
facts
- NATO airstrike in Belgrade, 16 people killed, relatives and 1 injured person brought suit. Serbia was not a Council of Europe member at the time
holding
- fact that the applicants or their family members were adversely affected by the govts’ actions in the FRY does not establish a jurisdictional link between the applicants and the governments.
Extra-territorial jurisdiction is recognized when the respondent State:
- Exerts effective control over a foreign territory and its inhabitants due to military occupation.
- Exercises some or all of the public powers typically vested in the government of that territory, with the consent, invitation, or acquiescence of the foreign government.
Al-Skeini & Others v. UK (2011) ECtHR
facts
- suit brought by relatives of people killed while UK was in charge of occupying parts of Iraq
holding
- exceptions to the territorial principle applied, and Al-Skeini was within the UK’s jurisdiction.
- The court reasoned that the UK soldiers who were conducting security operations in Basrah had control over individuals who were killed during those operations.
rule
Criteria to exercise extraterritorial jurisdiction
- State agent authority and control
- effective control
Georgia v. Russia (II) (2021) ECtHR
facts
- Russia’s 2008 invasion and occupation of South Ossetia and of undisputed buffer-zone area. State-to-state case (case was not brought by an individual) - both Georgia and Russia were members of the Council of Europe.
- State to state case = Georgia sues Russia for HR violations
holding
- no jurisdiction bc no control
- Court reaffirmed Al-Skeini divisions → only effective control OR state agent authority
2 primary criteria for determining extraterritorial jurisdiction: - personal concept → “Effective control” by the State over an area (spatial concept of jurisdiction) OR
- spatial concept → “State agent authority and control” over individuals (personal concept of jurisdiction)
- note = Expanded state authority to look at proximity
- Proximity is now a new factor for exception to state agent authority and control→ suggests isolated + specific acts + proximity can confer jurx (e.g. bombing ≠ jurx)
Carter (LITVINENKO) v. Russian Fed. (ECtHR 2021)
Background
- exiled Russian is poisoned while in London
holding
- Administration of poison to Mr Litvinenko by Mr Lugovoy and Mr Kovtun amounted to the exercise of physical power and control over his life in a situation of proximate targeting.
- That being so, the Court considers that it was capable of falling within the jurisdiction of that State.
ECHR vs ICCPR on jurisdiction
A.S., D.I., O.I. and G.D. v. Italy (2021) (ICCPR HRC) ⛵
facts
- sinking of vessel in the Mediterranean Sea, with over 200 migrants dying
- relatives sued Malta (but court says didn’t exhaust domestic remedy) and Italy (complaint deemed admissible)
decision
- Committee finds that a special relationship of dependency existed between the individuals on the distressed vessel and Italy.
- This relationship is based on the initial contact with MRCC, proximity of an Italian navy ship, and MRCC involvement.
- Italy’s jurisdiction is further solidified by legal obligations under international law, including SOLAS and search and rescue cooperation agreements.
Admissibility:
- Jurisdiction if acts of states affect rights in a “reasonably foreseeable manner”
- “Special relationship of dependency” between victims and Italy - so that it was reasonably foreseeable that Italy would have the duty to rescue
why sanctions?
- has teeth, but for more likely to be used than force
- Not binding
- Can use these to change behavior
Military option - very remote possibility
- States can’t use for HR, only UNSC can, but likely won’t
- Only one entity allowed to use force against state for violating HR = UN security council
- And almost never does it (last time was 12 years ago and it was a disaster)
Why would states enforce HR against other states?
Idealism/philosophical disposition/principle bias
- Genuine care for HR
Realism:
- To assert influence in international politics, punish enemies, reward friends
- Enhance their own reputation
- Economic tool (eliminate competition)
Responsiveness
- who is encouraging the US to push sanctions?
- responding to domestic pressures
- eg. from NGOs, religious groups, diaspora groups, politicians
Prevent HR violations from spilling over into sanctioning state
Discussions around sanctions = 2 concepts
1) effectiveness = do they result in improvement to HR? = clay article
2) legitimacy = extent to which sanctions are done in good faith and have fair results
EU vs US sanctions
similarities
- do the same things = asset freezes, travel bans, ban on transfers
- both authorized by political bodies (EU = EU council, US = congress)
- both occasionally do country-wide sanction (ex: Russia, North Korea)
differences
- EU short + long list of violariona VS US shorter list (gross HR violations + corruption)
prob of selectivity of sanctions → illegit args
- sanctions, in general, are illegitimate due to consistency and motivation issues
- Impossible to disconnect national interests = just cant do sanctions
- (counter arg = better to sanction somebody than no one)
- (counter arg = should embrace selectivity, should go after our enemies)
Are sanctions per se permitted in IL? (generally, not looking at content of sanctions)
Depends on whether sanctions imposed by UN security council (UNSC)
1) If UNSC authorized ⇒ legal ✅
2) If non-UNSC sanctions (called autonomous) ⇒ depends on the Law of state responsibility 🤷🏼♂️
- what are states allowed to do when another state breaches HR law?
A) If sanctions are otherwise legal = no limits
B) If sanctions are otherwise illegal = strict limits (called countermeasures)
- Erga omnes duties = breach means injury to everyone
- uncertainty about the definition of an “injured state. “ This is relevant because some violations that U.S. and EU sanctions aim to address may not directly affect their citizens but still violate obligations that protect collective interests or international community rights. The ILC has not resolved this issue and defers it to future developments in international law.
- Arg for injury = obligations to international community as whole
- Counter arg = if we allow injury to be so broad, invite a bad effect
- Middle ground = harm our ally
Erga omnes duties
breach means injury to everyone
Are the particular sanctions illegal under ILHR? How do courts review?
What all 3 courts say (Chachko cases)
- They are not going to review the substance of the sanctions - defer to political actors on whether sanction is proportional
What they look at = the process by which state used on imposing them
Basic set of protections for due process
- Notification
- Evidence
- Opportunity to present your side
- Impartial review (not necessarily a court)
Why are reviewing courts reluctant to look at the substance of sanctions and only focus on the process?
Manageable standards given capacity of court - substantive review would require a lot of info and no standard to review it
- we have more standards to review due process
Fear of courts getting involved in political decisions
- Polticial calls
- Con to this = can’t consider consistency, motivation, unilateral vs multilateral
ICESCR vs ICCPR on securing rights
The ICESCR does not explicitly differentiate between economic, social, and cultural rights.
ESCR Commitee, The Right to Water, General Comment #15 (2002)
Speaks to a right not mentioned in treaty → both freedom from being prevented from accessing water (Art. 31) + freedom to have water (Art. 10)
Added duties - from ICESCR Art 2(1), 11(1), & 23
- Require states to recognize the role - duty to take joint and separation action to achieve the full realization of the right of water
- Extraterritorial obligations - refrain from actions that interfere
Why even distinguish between civpol & ESC?
- May be better to max ratification = split so ICESCR don’t force state to spend money in ways that are not ready
- If they were combined, would we have the same list as the ESCR? Probably not
- Interdependence: civpol cannot exist without achieving ESC first (indivisibility)
- ESC rights protrude more into the private sector → affects economies
Committee on Economic Social & Cultural Rights General Comment #3: The Nature of States Parties Obligations (1990)
some dutis to be immediate, some progressive realization
Minimal essential levels of the rights implies “minimum core obligation” (¶ 10)
- Burden of proof on state if minimum obligations are not met
- Way to get state to do something if not doing anything for particular right
- Criticism - min core obligation not in text
- Where does the Committee on ESCR get this? Objective and purpose in VLT
- Committee calls to “raison d’etre” = reasoning for being
Soobramoney v. Minister of Health (Kwazulu-Natal)(1997) (South Africa)🏥🫀
Facts = Soobramoney’s case revolved around his plea for dialysis treatment under South Africa’s constitution, given his life-threatening medical conditions and the resource constraints faced by the healthcare system.
Issue = Does a state have an obligation to provide free treatment for chronic illnesses to those who cannot afford it, if the state’s constitution recognizes the right to life and a duty to not deny emergency medical treatment? = ❌
Rule / Reasoning
- Court uses purposive approach to constitutional interpretation = Art 26 and 27 should be considered in context of available resources
- Court adopts reasonableness/good faith test: deferential to legislature
- Classic utilitarian approach: weighs costs and benefits and then deferring to state as to how it wants to use its resources
Applying = Soobramoney doesn’t meet criteria for program, program is reasonable, have to make difficult choices
Treatment Action Campaign v. Minister of Health (2002) (South Africa)💉💊
facts = The Minister of Health did not make a certain HIV medication available in public health sectors, limiting access for individuals of lower socioeconomic status.
Issue = Does the South African Constitution require the government to take reasonable measures to extend access to medical treatment to all individuals? = ✅
Rule / Reasoning:
- Court on minimum core
- Disagree with idea = rejects general comment 3 bc positive obligation is an unreasonable demand = return to reasonableness standard
- A purposive reading of sections 26 and 27 leads to the conclusion that immediate access to even a “core” service for everyone is impossible.
- courts are not equipped to determine the minimum core standards or decide how public revenues should be spent
result = Applying reasonableness standard = Ps wins. hospital unreasonable
Mazibuko v. City of Johannesburg (2009) (South Africa)💦
Facts = The City of Johannesburg implemented a Free Basic Water policy. Ps arguing for a higher standard of free-water availability based on constitutional rights.
issue = Is the government’s Free Basic Water policy reasonable and thus constitutional? ✅
rule / reasoning
- The government has an affirmative obligation to take reasonable steps to provide the necessities of life, including a basic amount of water.
- Rejected GC 3 - too rigid, need context to determine whether reasonable
- No freestanding right to a certain amount of water
Role for courts in progressive realization:
- Intervene when:
- (1) State is taking no steps towards progressive realization
- (2) Unreasonableness
- “Cannot exclude large segment of society”
- Public explanation
- Administrative convenience
- (3) Duty of continued review
Result = City’s water program is reasonable because the state justified the reasonableness of its actions (public explanation).
City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (2011) (South Africa)🏚️🦵🏼
Facts = Blue Moonlight Properties acquired a dilapidated property in Johannesburg and initiated eviction proceedings against over 80 occupiers. The city refused to provide temporary housing for private evictions but did for public evictions
Issue = Is the City’s housing policy, which differentiates between those relocated by the City & those evicted by private landowners, constitutional? ❌
Result/Reasoning = city’s approach is discriminatory & unconstitutional.
- unreasonable to differentiate within the category of emergencies between people relocated by the City and those evicted by private landowners.
- City only had a speculative rationale (no economic reason)
ESC litigation pros/cons
South African cases = courts apply reasonableness test for ESC rights
- Defer to political on reasonableness
- But not on everything
- Based on speculation or economic grounds
- But for most part = endorsing utilitarian calculation
Con to above -
- can argue that courts not able to adjudicate ESC rights
- Some argue that courts lack the tools to achieve broad social and economic transformation needed to benefit the poor.
Pro to above +
- Court respects separations of balances by not going to much into policy implications
- with creativity and supportive legal and political culture, courts can overcome some institutional limitations.
2016 Review and Advisory Opinion of Inter-American Court
Collective rights
- Court emphasized that international law, including ILO Convention No. 169 & the UN Declaration on the Rights of Indigenous Peoples (2007), recognizes the collective rights of both indigenous communities and their members.
Sawhoyamaxa Indigenous Community v. Paraguay (Inter-American Court of HR) (2006)🛬
IAC - more taken to inderdependence of ESR rights and civ pol
Property art 21 → violation
- Duty of state = restitution or conveyance of equal quality in agreement with IP
right to life art 4 → violation
- positive duty (not absolute) of state to adopt measures to prevent / mitigate risk to ROL (state did not do this)
- court is essentially saying by violating these ESR rights, ends up violating a civil and political right
African Commission on Human & Peoples’ Rights v. Republic of Kenya (African Court of HR)(2017)🌲
thinks ESR & civ pol are separate
rule
- rights recognized for indigenous peoples on their ancestral lands are not limited to ownership, but also include rights of possession, occupation, and land use
- However, restrictions may apply under Article 14 (property) if they are in the public interest and considered necessary and proportionate.
result
- Art 14 property = violation by expelling them from their ancestral lands without consultation and without meeting the conditions in the interest of public need. - not proportionate to the public interest’
- Art 2 discrimination = violation = Respondent’s failure to acknowledge the Ogieks as a separate tribe, thus denying them rights granted to other tribes, amounts to a form of discrimination based on ethnicity or other status as defined in Article 2 of the Charter.
- Art 4 right to life + integrity** = NO violation = Applicant has not provided evidence establishing a causal connection between the Ogieks’ evictions by the Respondent and the alleged deaths.
- ROL not the same for a right to a decent existence for a group
- also violates art 8 (consc), art 17 (cultural rights), art 1 (recognize rights)
domestic courts vs IL courts
-
Domestic courts are more deferential to state decision-making.
- This is justifiable based on domestic separation of powers. - Domestic courts pay more attention to resource constraints than international courts.
- This is because they are closer to the effects of resource allocations. - International courts show more concern about legitimacy, which means they are more concerned about balancing.
- This is justifiable because of the nature of international courts.
- However, a counter argument is that domestic courts are more concerned about legitimacy.
a) It is important to listen to the state’s argument.
b) Domestic courts also show respect to their own actors.
black letter law = when case involves state’s own actors, what is the duty?
absolute duty on state
State Obligations
- Embody the principle of equality in constitution and laws;
- Ensure practical realization of the principle of equality;
- Prohibit discrimination against women;
- Refrain from discrimination;
- Eliminate discrimination by any person, organization or enterprise;
- Modify or abolish laws, regulations, customs and practices that constitute discrimination; and
- Repeal discriminatory penal provisions.
CEDAW 5 duties on states → types of state duties imposed by HR treaties
1) Respect rights of others: treat persons equally, respect individual dignity/worth, not interfere with declared rights = State not violating right by conduct = not absolute ban
2) Create institutional machinery essential to realization of rights: or the practice of the right
3) Duty to protect against private rights violations = includes state expenditures = CEDAW 5(a): protect against private actors
4) Provide goods and services to satisfy rights: resources to the rights-bearer (eg. housing, money)
5) Promoting human rights: state bringing changes in public consciousness /perception/understanding about an issue
should states have duty to police private sphere?
imposing private actors’ duties on state vs individuals vs corporations
comparing treaties on reproductive issues = CEDAW, ICESCR, ICCPR, IAC
Are duty-based systems reconcilable with rights-focused systems?
comparing ECtHR & HRC approach to religion
ECtHR vs IAC on LGBT rights
pros vs cons of putting duties on corps
does EU draft (Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence (2022)) faithfully implement UNGPs?
table applying 1) spatial model 2) personal model 3) MM’s model
pro IHRL vs anti IHRL
