The Over legalization of Human Rights Flashcards
Legalization, commitment and compliance
More legalization –> More commitment –> More compliance?
The more legalized a norm is, the more likely it is for the commitment to those norms to be meaningful, and for a higher level of compliance.
What is the legalization of an international norm/regime?
- Obligation
- Precision
- Delegation
The greater any of these dimensions are, the more legalized the norm is.
Which human rights regime is more legalized in terms of obligation? European vs American system
Ratification is mandatory in order to become a member of the European system, whereas you don’t need to ratify to become part of the American convention. So the European system is more legalized than inter-American in terms of obligation.
Which human rights regime is more legalized in terms of precision
Both have same level of precision. Usually not much difference.
Which human rights regime is more legalized in terms of delegation?
Even though the American Commission’s jurisdiction is compulsory, they can only issue recommendations, which are not legally binding. So delegation to a third party is limited compared to the European court, who can issue legally binding decisions.
Legalization and hard/soft law
The more legalized a particular rule of international law is, the more it will be classified as hard law. European system falls closer to hard law end of spectrum. Less legalized = soft law: American system.
Legalization and compliance
The higher the legalization, the higher the compliance, because it’s harder to get away with a violation. If you violate a human rights treaty but there is no third party to condemn you (delegation), it’s easier to get away with violations.
Legalization and commitment
The more legalized a treaty (the more precise) the less chance of commitment. Less legalized = more shallow commitment. More legalized = deeper commitment. Deeper commitment = more reluctant. Shallow commitment = less reluctant.
Overlegalization vs increasing legalization overtime
Increasing legalization overtime: Through different court decisions, the interpretation of a certain clause in a treaty become more restricted overtime. States have less capacity to interpret that treaty as they see fit.
Overlegalization is context dependent and depends on the sate in which it deems it over legalization. If the state’s optimal level of legalization was equally increased as the legalization was increased, there is no over legalization for THAT state. But, if the level of legalization is excessive compared to the optimal level of legislation for another sate, there would be over legalization for THAT state.
Overlegalization comes in 2 forms
- Overlegalization that changes the treaty bargains compared to that of the States’ current optimal level of legalization.
–>Imposing a level of commitment that the state is not willing to take.
–> E.g. turning a less obligatory norm into a more obligatory norm. - By bringing in changes to the regimes so that the regime will improve the visibility of non-compliance.
–> States who ratify a human rights treaty without necessarily the intention to comply with it, but they want to collect the benefits.
–> If the regime changes so that you can no longer so easily get away with treaty violations (norms become more prices, delegations become stronger).
Who can over legalize a human rights norm?
The main actors in charge of legalizing over time (which may result in over legalization) are those who interpret the norms. Courts, tribunals, domestic courts.
How can states react to the over legalization of human rights?
One way: Ignore the treaty (increase rate of non-compliance). But there is a cost that comes whit this because they will be violating intl law. If you are not willing to pay the costs, another option is to withdraw from treaties or the mechanism of delegation.
The human rights backlash in the Commonwealth Caribbean
Human rights protection in the Commonwealth Caribbean. Trinidad and Tobago: ICCPR (1st protocol) / ACHR (declaration on IACtHR). Jamaica: ICCPR (1st protocol) / ACHR. Highest court of appeals: Judicial Committee of the Privy Council (London).
1980s/1990s: Rise in crime rates and demands for death penalty.
The Pratt Case
Rise in crime rates and demands for death penalty. Earl Pratt is convicted of murder and sentenced to death (appealed). Pratt files a complaint against Jamaica with the IACHR –> rejected. Jamaica’s Court of Appeals finally issues its decision –> affirms decision. Pratt files a complaint against Jamaica with the HRC –> stay of execution. IACHR –> a four year decisional delay on death row is CIDT. HRC declared the complaint against Jamaica admissible. HRC found Jamaica in violation of the ICCPR (fair trial), but did not endorse the “death row phenomenon”. Pratt v. Attorney- General for Jamaica (privy council): Re-affirms the “death row phenomenon”. Jamaica commutes the death sentences of Pratt and 104 others. Similar reactions by Trinidad & Tobago and Barbados.
The “death row phenomenon”
“If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of five years, the fault is to be attributed to the appellate system that permits such deals and not to the prisoner who takes advantage of it.
The aftermath of the Pratt case
Jamaica: Denounces the ACCPR Protocol (1997)
Trinidad & Tobago: Denounces the ACHR (1998). Enters a reservation on ICCPR Protocol –> rejected (1999). Denounces the ICCPR (2000). The “death row phenomenon” and the over legalization of human rights.
