International Human Rights

It is impossible to talk about international human rights without

discussing international law.  As I mentioned in the first class, the
sources of international law are (1) bilateral treaties or agreements;
(2) multi-lateral treaties (sometimes known as conventions); (3)
customary international law (which arises out of the custom and
practice of international actors); and (4) universal norms (which are
a recognition of basic normative values to which (presumably) all
international actors agree, such as territorial sovereignty.  Human
rights largely fall into the norms categories to the extent that human
rights values have been recognized as those values that international
actors should respect.  The norms or values have become part of the
international political discussion and, to some extent, national
discussions, for example in American political discussions about
foreign policy and relationships with nations that historically have
had a poor human rights record.  But, part of the problem with norms
is that they are vague values.  For example, we all may recognize that
we should not kill, but we also recognize that certain killings are
justified, e.g., killing in self-defense, killing in war, the death
penalty.  Thus, without specific laws that define the parameters of
what is “murder” or “manslaughter,” i.e., criminalized killing, we
cannot identify what kinds of killing is outlawed and what is allowed.
Similarly, we may agree on universal human rights values, but we
cannot figure out what human rights violations are without some
specifics.  This is where multi-lateral agreements and conventions
come in.

One of the most effective ways of defining the abstract values
recognized in “universal” instruments is to codify them in regional
instruments.  After all, we, on a universal level, may not agree on
how to define and identify human rights (because we all have different
value systems and political ideologies), but the idea is that nations
of a particular region, which all share common histories and values
will have a better chance of making “hard law” out of human rights
values.  Regional conventions, however, also run into problems
because, as the world gets smaller, so increases the chance that
regional conventions may end up having effects outside the relevant
region.  Take a look at Bederman’s discussion of the Soering case for
how a regional convention could be used to affect international actors
not bound by that convention.

In addition to identifying specific human rights, another issue with
human rights in international law pertains to enforcement.  After all,
what good are human rights norms, if they cannot be enforced?  Indeed,
without enforcement mechanisms, recognition of human rights norms
would be nothing more than the recognition of abstract philosophy that
has no practical impact on the behavior of international actors.
Bederman identifies a number of techniques of enforcement:
(1)   Universal jurisdiction, whereby any state could prosecute any
individual for a violation of a particular human right as guaranteed
under an instrument recognizing that right.  For example, if the
Slavery Convention forbids slavery, any state could enforce the
convention by prosecuting for violations of the convention.  However,
the big problem with this is that enforcement is largely voluntary.
In other words, if states parties do not want to enforce, no
enforcement will occur.
(2)   Referral to the United Nations – under this mechanism, states
parties could refer potential violations to the United Nations to take
action.  This has proven to be ineffective because the UN itself lacks
enforcement power and often the political will to enforce.
(3)   International Court of Justice – presumably, states parties
could refer violations of a convention for decision by the ICJ.  The
problem with this is that jurisdiction before the ICJ is voluntary,
i.e., if a nation does not agree to be bound by the ICJ, then the
court cannot effectively be a venue for litigation.
(4)   UN Human Rights Committee – parties are required to submit
reports and parties may make complaints about human rights violations
by other parties.  In addition to logistical problems of how the
committee defines human rights violations for purposes of filing a
complaint, the major problem with the committee is that it is only as
good as its members.  Because most violators of human rights are not
parties, the committee really is not able to keep track of or deal
with human rights violations in those nations.
(5)   National courts – although the Constitution recognizes the law
of nations is a part of the law of “the land” in America, courts here
have largely been wary of relying on international law.  So, American
litigation of human rights violations tends to focus on violations
under the Constitution or other American law, although there are
mechanisms in American law for relying upon violations of treaties to
which America is a party.
(6)   Individual action by States – intervention and diplomatic
relations can be methods for one state to take action against another
where human rights violations may be occurring.  Think Bosnia.

In the modern world, where borders are becoming more porous and
distances are becoming shorter, what are the implications of the
precarious status of human rights under international law.  How do we
go about making this “soft” area of international law into a
well-defined mechanism?  Should we attempt to create a human rights
regime at all?  And, what are the implications of human rights
violations by non-state actors?

If the US is the guiding force on recognition of and protection of
human rights, how does America’s experience translate to the rest of
the international community?  Please discuss your insights and ideas
about the way international law works and what the impact of
international law’s limitations are on the development of cognizable
international human rights.

By admin in Essays on August 23, 2015