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					HUMAN RIGHTS
       Prof David K. Linnan
            USC LAW # 783
                     Unit 14
     COMPARISON
WESTERN (ANGLO-AMERICAN VS
 CONTINENTAL) VS ASIAN OR
 DEVELOPING COUNTRY VIEWS

 We do first a summary presentation on
 human rights mostly from US viewpoint

 Thereafter, please view Prof. Harkristuti
 Harkrisnowo for the Asian or developing
 country human rights viewpoint (asking
 yourself where the differences lie)
INDIVIDUAL RIGHTS
TRADITIONAL INT’L LAW VIEWS AS BACKGROUND

 1.   States as sole subjects, with personality

 2.   Mistreatment of foreigner considered “insult”
      of his/her state, so international law claim for
      injury to foreigner to his/her state derivatively
      NOT individually (diplomatic protection;
      “nationality” equates to standing here; but
      remember, juristic persons not covered)

 3.   Few international law rules directly applicable
      to individuals, however, such as jus in bello
      (no massacring civilians, enforced by military
      courts martial) or piracy/slavery as
      international law offenses
TRAD ALIEN PROTECTION
ALIEN PROTECTION STANDARDS AS
  SUBSTANTIVE BACKGROUND

 1. Denial of justice (vague general physical
    protection standards for foreigners)
 2. Economic protection standards
    (antidiscrimination, appropriate
    compensation for foreigners)
 3. Arguments re national versus
     international standards (from consular
     justice to arguments about consent to      local
 treatment re Calvo doctrine)
       POST WW II
TWO WW II WATERSHED EVENTS

 1. 1945 UN Charter stressing human
    rights (but following up Atlantic
    Charter arguably)

 2. 1946-47 Nuremberg & Tokyo trials
    stressing customary law re
    aggressive war & crimes against
    humanity more in human rights terms
HR THREE GENERATIONS
 1ST, 2ND & 3RD GENERATION RIGHTS

  1. Civil & Political (negative against
     state)

  2. Economic & Social (positive claims
     for support)

  3. Group rights as to development
     (issue of obligations between rich
     & poor states)
          US VIEWS
US RIGHTS VIEWS

 1. Strong proponent civil & political, view
    economic & social as merely aspirational,
    opposition to group rights traditionally

 2. US has been generally reluctant to enter
    into human rights treaties itself, but
    pursues other states as with State
    Department’s annual human rights
    reports, etc.

 3. US has resisted judicialization of human
    rights most recently as with ICC
        REALIZATION
CONCEPTS

 1.   Modern concept is that “normal” human rights
      are a domestic concern, but that “grave
      violations” rise to level of int’l concern

 2.   Modern arguments both on substance of
      rights and on their enforcement (quiet state-to-
      state vs embarassing ECOSOC vs loud int’l
      judicial proceedings like ICC)

 3.   Universal jurisdiction or similar enforcement
      before municipal courts (e.g., ATCA & now
      defunct Belgian statute)

 4.   Now regional courts & conventions as with
      European Human Rights Convention, Inter-
      American and now African systems
THEORETICAL BASIS I
WHAT IS THEORETICAL BASIS OF HUMAN
 RIGHTS LAW?

 1. Natural law claims/revival
    (jurisprudence plus secular versus
    religion issues)

 2. Positivist theory (constitutions, etc.)

 3. Cultural relativism theory (Western or
    modernist construction)
THEORETICAL BASIS II
WHAT IS THEORETICAL BASIS OF HUMAN
 RIGHTS LAW? (CONT’D)

 4. Positive/negative restraints on govt
    (political theory)

 5. Collective rights/duties
    (communitarianism theory, but issue
    whose rights)

 6. Dialectical theories (issue re Marxism,
    integralism & UUD 1945 in Indonesia)
SOURCES ISSUES
WHAT ARE SPECIFIC INT’L LAW SOURCE ISSUES?

 1.   Issues re sources doctrine, general principles
      versus customary law formation questions

 2.   Positivistic treaty claims (eg, UN Charter
      preamble “to reaffirm faith in fundamental
      human rights” plus article 55)

 3.   Re school of int’l law, NGO functional
      connection so who makes law issues in
      background
LEADING ISSUES I
CURRENT LEADING ISSUES IN HUMAN
 RIGHTS LAW

 1. Civil and political rights (defensive
    against state intrusion, ie no
    extrajudicial killings) versus
    economic and social rights (claims
    for state support, ie free public
    education)

 2. Universal standards versus regional
    or lower standards as for developing
    countries (cultural relativism
    arguments)
LEADING ISSUES II
CURRENT LEADING ISSUES IN HUMAN RIGHTS
 LAW (CONT’D)

 3. Group rights issues, often gender based,
    typically in context of differential
    treatment in different societies with
    communalism claims in background (eg,
    issues re women’s status in Islamic
    countries)

 4. Enforcement issues, meaning
    universal jurisdiction to enforce before
    domestic courts (eg, Belgian statute,
    Alien Tort Claims Act) plus ICC, not much
    on protocols re individual claims
LEADING INSTRUMENTS I
 LEADING HUMAN RIGHTS LAW INSTRUMENTS

 1. Universal Declaration of Human Rights (1948)
    (mixed)

 2. Covenant on Civil and Political Rights (1966)
    (so-called first generation rights)

 3. Covenant on Economic, Social and Cultural
    Rights (1966) (so-called second generation
    rights)
LEADING INSTRUMENTS II
 LEADING HUMAN RIGHTS LAW INSTRUMENTS
    (CONT’D)

 4.   Idea of group rights typically rooted in
      academic and UN conference activity (so-called
      third generation rights, often documented in
      something called a declaration with issues re
      customary/general principles law technically)

 5.   Now some regional instruments too, ie
      European Human Rights Convention, but also
      often with enforcing tribunal attached

 6.   Whole string of newer UN sponsored
      substantive treaties, often 2nd generation claims
      as Convention on the Rights of the Child (1989),
      Convention on the Elimination of All
      Discrimination Against Women (1979)
LEADING INSTRUMENTS III
LEADING HUMAN RIGHTS LAW INSTRUMENTS
   (CONT’D)

7.   Current arguments about “indigenous rights”,
     often mixing environment & human rights
     claims under new declarations as emerging law
     claims, remembering CIEL paper & unit 3
     sources arguments plus relative conservatism,
     for example of Supreme Court in Sosa case

IN PRACTICE, SEEMINGLY DECREASE IN
    UNIVERSAL RECOGNITION AS GO DOWN THE
    LIST, LINKED WITH CLAIM THERE WERE
    EARLIER HUMANITARIAN LAW INSTRUMENTS
    IN PARTICULAR PLUS MINORITY
    PROTECTION TREATIES REACHING BACK
    LONG BEFORE POST-WW II MODERN
    INSTRUMENTS
UN BILL OF RIGHTS I
LOOK TO SO-CALLED UN BILL OF RIGHTS
  (UNIVERSAL DECLARATION & TWO
  COVENANTS) TO PICK OUT SPECIFIC RIGHTS

 1.   What of more general question whether rights
      analysis is suitable to address int’l law
      problems like globalization, distributive
      justice, etc.?

 2.   Shadow focus on individuals getting away
      from traditional focus on law between states?

 3.   Shadow focus on int’l law as restraining
      govts within own states? But problem of
      excuse for intervention, as with much of
      world’s response to US removing human
      rights-violating dictator in Iraq
UN BILL OF RIGHTS II
LOOK TO SO-CALLED UN BILL OF RIGHTS
  (UNIVERSAL DECLARATION & TWO
  COVENANTS)

 Int’l Covenant Civil & Political Rights

     Art 6 Deprivation of life
     Art 7 Torture
     Art 8 Slavery
     Art 9 Liberty & personal security
     Art 10 Criminal justice (presumption of
                  innocence, etc.)
     Art 12 Liberty of movement
UN BILL OF RIGHTS III
LOOK TO SO-CALLED UN BILL OF RIGHTS
  (UNIVERSAL DECLARATION & TWO
  COVENANTS)(CONT’D)

 Int’l Covenant Civil & Political Rights (cont’d)

     Art 14-16 equality before law & crim pro
     Art 17 Privacy, family, home, honor
     Art 18 Freedom of thought, conscience &
                  religion
     Art 19 Freedom of expression
     Art 21 Peaceful assembly
     Art 22 Freedom of association
UN BILL OF RIGHTS IV
LOOK TO SO-CALLED UN BILL OF RIGHTS
  (UNIVERSAL DECLARATION & TWO
  COVENANTS)(CONT’D)

 Int’l Covenant Civil & Political Rights (cont’d)

     Art 22 Freedom of association
     Art 23 Family & marriage
     Art 24 Children
     Art 25-27 citizen participation, equality before
            law, minority protection
UN BILL OF RIGHTS V
LOOK TO SO-CALLED UN BILL OF RIGHTS
  (UNIVERSAL DECLARATION & TWO
  COVENANTS)

 Int’l Covenant Economic, Social & Cultural Rights

     Art 6 Right to work
     Art 7 Labor conditions
     Art 8 Unions
     Art 9 Social security & insurance
     Art 10 Family, children & motherhood
     Art 11 Adequate standard of living, etc.
     Art 12 Physical & mental health
     Art 13-14 Education
     Art 15 Science & culture
US VIEWS CUSTOMARY LAW
 US VIEWS OF (CUSTOMARY) HUMAN RIGHTS LAW

 Restatement (Third) Sec. 702
   1. genocide
   2. slavery
   3. murder/disappearance
   4. torture
   5. arbitrary detention
   6. systematic racial discrimination
   7. gross violations of internationally recognized
        human rights

 Are these first, second or third generation rights?

 FOREIGN POLICY EMPHASIS ON CIVIL SOCIETY,
   MEANING NGOSs PLUS, & DEMOCRATIZATION
REGIONAL LAW VIEWS
 REGIONAL HUMAN RIGHTS
  INSTRUMENTS/SYSTEMS

  1. European, Inter-American and African

  2. Why no Asian?

  3. Why US reluctance to participate in any
     international system?

  4. Indonesian views pre/post 1998?
  ENFORCEMENT I
HOW TO ENFORCE HUMAN RIGHTS AND
  CONTROVERSIES

1. Political versus legal enforcement

2. National versus international enforcement
   (courts)

3. Regional versus general international (courts)

4. In substantive law, ie Civil Law versus Common
   Law views re criminal procedure and new idea of
   int’l criminal law (eg, new ICC), linked with
   doctrinal approaches like Collision Theory of
   rights limiting themselves in conflict cases
 ENFORCEMENT II
HOW TO ENFORCE HUMAN RIGHTS AND
   CONTROVERSIES (CONT’D)

5.   UN human rights structure particularly on ECOSOC
     side with various reporters/high commissioner

6.   On human rights side, if looked at Int’l Covenant on
     Civil & Political Rights would see under art 40
     ECOSOC report of states parties, art 40 optional
     jurisdiction on state to state basis & art 1 optional
     protocol on individuals bringing claim against state
     a. Prob is state to state & optional protocol
        essentially deadletter, with claims more on a
        state to state basis and via UN rapprteurs
     b. Nothing comparable in scope to NAFTA
        Chapter 11 proceedings, instead with higher profile
        individual efforts typically under, for example, ATCA
        but there against individuals rather than state

				
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