International Human Rights Law


Professor Schnably
Fall 2012

Questions on Assignments

  Note: Typically we will focus on the questions at the beginning of each chapter of the casebook (or elsewhere in the text), but for some assignments I will post some additional questions.

 

 

Week of August 20, 2012:

  • Thursday, August 23:

    • We will go through the ESC Covenant. Make sure you are familiar with its major provisions, including
      • The nature of the obligations taken on;
      • The substance of the obligations (including in particular obligations regarding housing and medical care);
      • The presence (or absence) of a derogation clause (i.e., the ability to suspend the rights in time of emergency)
      • The means of enforcement and implementation
    • How does the ICCPR differ from the ESC Covenant, in terms of:
      • The nature of the obligations taken on;
      • The substance of the obligations
      • The presence (or absence) of a derogation clause (i.e., the ability to suspend the rights in time of emergency)
      • The means of enforcement and implementation
    • As for the other instruments listed (the Additional Protocol to the American Convention (TS 409-418), the European Social Charter (TS 465-469), and the Vienna Declaration and Programme of Action (TS 284-311), it’s sufficient to look through them just to see what ESC rights they cover.
    • We will go over Questions 1, 2, and 5 at CB 96-97. (We will cover the other questions next Tuesday.)
    • Please be prepared to discuss the Grootboom case (CB 105)
    • Do you think it would have been better if there had been one treaty on all human rights, rather than a treaty on civil and political rights and one on economic, social, and cultural rights?

Week of August 27, 2012:

  • Tuesday, August 28:

    Note: To some extent this will be a continuation of our discsussion last Thursday, but now with an emphasis on the U.S.

    • Do you think it would have been better if there had been one treaty on all human rights, rather than a treaty on civil and political rights and one on economic, social, and cultural rights?
    • How relevant is the ESC Covenant to the elimination of poverty, homelessness, and the like in an increasingly globalized world? Consider the readings at CB 166-170. What would you say to the argument that what international agencies such as the WTO, the IMF, the World Bank, and the like do has much more of an impact on the realization of ESC rights than compliance by individual states with obligations under the ESC Covenant?
    • Should the U.S. embrace the idea of ESC rights as rights? Would it be in accordance with U.S. tradition? A break with it?
    • What are the advantages and disadvantages for the U.S. from a foreign policy point of view in ratifying the Covenant? Does it matter that China has ratified the ESC Covenant?
    • If the U.S. were currently a party to the ESC Covenant, would we be in compliance with the following provisions:
      • Article 12 (TS 38). Background: Close to 50 million Americans lack health insurance. (If you want to read more, see Study: 86.7 Million Americans Uninsured Over Last Two Years, cnnhealth.com, March 4, 2009; National Coalition on Health Care, Health Insurance Coverage.) If the ACA goes into full effect, this number will be reduced by about 2/3.
      • Article 10 (TS 37). Background: Under the federal Family and Medical Leave Act, employers must give up to 12 weeks of unpaid leave a year to employees who have a serious illness, or to employees who have a newborn child or who need to care for relatives who are seriously ill. Small businesses (with fewer than 50 employees) are exempt.
      • Article 8 (TS 36-37). Background: Under current law, when a union asserts that a group of currently non-unionized workers would like the union to represent them, and presents cards signed by a majority of the workers to that effect, the employer has the option of insisting that there be a vote by secret ballot before it will recognize the union. Congress is currently considering the Employee Free Choice Act. This Act would give unions rather than the employer the choice of proceeding by ballot or card check. (There would still have to be an election if at least 30% of the employees requested one.) In addition, the union or the employer could request mandatory contract arbitration for the first contract if the newly-certified union and the employer were unable to reach agreement on a labor contract within 90 days. Supporters of the proposed Act say that employers frequently use the period leading up to an election to intimidate workers and fire employees active with the union, and that the arbitration provision is needed because employers often refuse to bargain seriously with newly certified unions, because failure to reach a contract after one year entitles the employer to call a new vote on unionization. Opponents of the bill say that elections by secret ballot are intrinsically the best way to determine what a group of workers prefers, that unions would intimidate workers, and that too much federal government regulation (including imposing arbitration of labor issues on employers) is wrong. See Alec MacGillis, The Employee Free Choice Bill Battle Is Joined, 44: The Obama Presidency (Blog), WashingtonPost.com, March 10, 2009
      • Article 11 (TS 38). Suppose homeless persons in a northern city are staying in the subway stops overnight during the winter. Suppose further that the number of shelters (run either by the municipal authorities or private charities) is inadequate to handle the number of homeless people. Would Article 11 be relevant to a decision by the transit authorities to start evicting homeless persons who were staying in the subway stops over night?
      • Consider also Question 7 at CB 159.
      For each of the above articles, consider whether there other articles in the ESC Covenant you would want to consider in reaching a conclusion. Consider also what facts or information you would need to reach a conclusion. Is it enough to look at the language of each of the articles cited above (Arts 8, 10, 11, and 12)? Are there other parts of the treaty you would need to consider?
    • Would the U.S. have an obligation to give foreign aid to developing or poor nations if it ratified the ESC Covenant? Would it have any obligations to other countries under the covenant?

  • Thursday, August 30:

    • Make sure you under the process of treaty ratification, in terms of
      • International law -- what makes a treaty binding? If there is a question of how to interpret a treaty, what law governs? In this regard, familiarize yourself with the Vienna Convention on the Law of Treaties -- don’t just read the excerpts in the casebook, but look through it at TS 254-283. Note that the U.S. has not ratified it. What is the State Department’s position on it (according to the CB)? Substantively, look at not only Arts. 9, 11, 16, 18, and 27 (excerpted in CB 124-125), but also Arts. 2, 14, 31 (in the TS).
      • Domestic U.S. law -- how do we become a party to a treaty? What is the role of the Senate? The President? The House?
    • What, under international law (the Vienna Convention on the Law of Treaties), are reservations? Does international law define “declarations”? 8220;Understandings”? What do you think is the difference among them as far as the U.S. is concerned? In this regard, you should review the RUDs (Reservations, Understandings, and Declarations) the U.S. adotped in relation to the ICCPR (TS 488-490), as well as the proposed RUDs to the ESC Covenant (CB 160-162).
    • Is China’s reservation (CB 132) in keeping with international law? What is the effect if it is not? Suppose another party to the ESC Covenant objected to the reservation, but did not assert that it was inconsistent with the object and purpose of the treaty. What is the effect of the objection?
    • Do you think any or all of the proposed RUDs to the ESC Covenant (CB 160-162) are good as a matter of policy? Why or why not? Are there any that are inconsistent with international law?
    • What sorts of RUDs has the U.S. adopted with respect to other human rights treaties it has ratified?
    • Does the U.S. practice with regard to ratifying human rights treaties show that it
      • Does not take international human rights law seriously, at least as it concerns the United States’ treatment of its own citizens? or;
      • Takes international human rights law very seriously?
    • Who has authority under international law to decide whether a reservation is valid?
    • The ICCPR and the Optional Protocol to the ICCPR provide for three means of enforcement or implementation:
      • Periodic reporting by states to the U.N. Human Rights Committee regarding their implementation of the Covenant, with comments by the Committee on the state’s report (ICCPR art. 40, TS 55);
      • Inter-state complaints, where the state has recognized the competence of the Committee to hear such complaints (ICCPR art. 41, TS 56); and
      • Petitions filed by individuals alleging that a state party to the ICCPR that has accepted the jurisdiction of the Committee: The Committee reviews these petitions and the state’s response, and issues its views on whether the individual’s rights under the ICCPR have been violated. (Optional Protocol, TS 61)
      What method of enforcement or implementation does the ESC Covenant provide for? See Part IV, TS 40-42. What methods of enforcement does the new Optional Protocol to the ESC Covenant provide for? See TS 67-75 (or Supp. 21-26 -- same thing [I mistakenly thought the TS didn’t have it]. Make sure you understand the individual communications procedure of the Optional Protocol to the ESC; the inter-state procedure; and the inquiry procedure. Also, how is the Committee on Economic, Social and Cultural Rights constituted? Are its members individual experts acting as individual experts, or individuals acting as representatives of states?
    • If the US were to ratify the ESC Covenant, should it ratify the Optional Protocol to the ESC Covenant? Would ratification automatically make it subject to the individual communications procedure, the inter-state procedure, and the inquiry procedure?
    • If the US were to recognize the competence of the Committee on Economic, Social and Cultural Rights to undertake inquiry procedures, would such a procedure be merited in relation to the Articles 8, 10, or 12?
    • As we go through the course, think about this issue, which we will discuss somewhat on Tuesday. With each new treaty, a new specialized body has been created to oversee its implementation and enforcement. These include the U.N. Human Rights Committee (for the ICCPR), the Committee Against Torture (for the CAT), the Committee on the Elimination of Racial Discrimination (for CERD), the Committee on the Elimination of Discrimination Against Women (for CEDAW), among others. Would it be better for one body to oversee all the treaties? Or, less ambitiously, would it have been better to write the Optional Protocol to the ESC Covenant to give oversight to the U.N. Human Rights Committee? What factors would you need to consider in deciding this question?

Week of September 3, 2012:

  • Tuesday, September 4:

    • What, in practice, does it mean to prohibit torture? What does the Human Rights Committee have to say about this? See CB 194 (the Committee’s 1982 General Comment) and Supp. 27 (the Committee’s 1992 General Comment, which replaced the 1982 Comment). What steps would a state have to take to show compliance with Article 7 of the ICCPR (TS 46)? Where do these duties come from? The text of Article 7? Something else? Would it be legitimate under international law to consider what the Convention Against Torture (CAT) (TS 107) proviedes? In considering this, take a look at Arts. 31-32 of the Vienna Convention on the Law of Treaties (TS 265-266). What does the Committee’s position say about the distinctions frequently between civil and political (CPR) rights and economic, social and cultural (ESC) rights?
    • Is torture a violation of U.S. law? If so, how?
    • What is the difference if any between acts that are “torture” and acts that are cruel, inhuman, or degrading? Consider the Declaration at CB 207, and CAT (TS 107). Would a mock execution (where the authorities tell the individual he will be executed, and go through the steps right up to the point of execution, at which point they desist) be torture?
    • Was the UK guilty of torture, according to the European Commission? According to the European Court? Why was France guilty of torture, but not the UK? How do you think the European Court would rule on the U.S. interrogation techniques described at Supp. 1-3?
    • Is corporal punishment a violation of Article 7 of the ICCPR (TS 46)? Does it depend on how or where the corporal punishment is administered?
    • Is solitary confinement a violation of Article 7 of the ICCPR or the CAT?

  • Thursday, September 6:

    • Is the very idea of human rights a Western one?
    • Does any theory (natural rights, positivism, CLS, feminist critiques) adequately ground human rights law? Which of the approaches discussed in the casebook seem most useful to you?
    • What is “culture”? Consider Donnelly (CB 247) and Ghai (Supp. 42).
    • Is it meaningful to talk about what Islam says about human rights? To the extent that it is, what is the relation of Islam to human rights?
    • We will discuss the questions at Supp. 57. New: In addition, consider whether FGM is consistent with the Universal Declaration of Human Rights (TS 29). Also, is ICCPR art. 1(1) (TS 44) relevant?
    • Do the surgeries described by Crowley (Supp. 57) violate the U.S. FGM statute (18 U.S.C. § 116)?

Week of September 10, 2012:

  • Tuesday, September 11:

  • Thursday, September 13:

    • How do the individual petition systems under CEDAW and the ICCPR work?
      • Make sure you understand how the two committees are composed.
      • If you represented the petitioner in the Huamán case before the HRC (CB 263), what substantive and procedural matters would you cover in the petition? How might the procedural requirements be different before the CEDAW Committee?
      • We will use the case of A.T. v. Hungary (CB 271) to take a closer look at the CEDAW Committee and its processes.
    • Should the U.S. should ratify CEDAW, and if so, with what if any RUDs?
    • Would ratification of CEDAW require a reversal of the Grutter case?

Week of September 17, 2012:

  • Tuesday, September 18:

  • Thursday, September 20:

    • Make sure you understand the origin, legal basis, composition, jurisdiction, and functions of the Inter-American Commission. Note the fact that the Commission was first established before the American Convention on Human Rights was formulated, so it is not solely a treaty-based body. Be familiar with the procedural requirements under the Convention for bringing an individual petition before the Commission.
    • Be familiar with the basic provisions of the American Declaration of the Rights and Duties of Man.
    • Does the American Declaration apply to the U.S. as binding international law? We will discuss the Baby Boy case in this regard. There are excerpts at Supp. 74-77. (The case is also briefly discussed in the CB at 760-762, but I thought a fuller set of excerpts would be useful.)
    • We will go over the procedural and substantive aspects of Case 11.654 (CB 770).
    • We will then discuss the Inter-American Court of Human Rights. Make sure you understand its origin, legal basis, composition, jurisdiction, and functions.

Week of September 24, 2012:

  • Tuesday, September 25:

    • We will cover the material through the lens of the Martinez case, in terms of a petition filed by Martinez against the U.S. in the Inter-American Commission. First, we will discuss the facts that gave rise to the alleged violation, and then discuss the Tenth Circuit case. Then we will discuss the procedural aspects of the petition (including the who the parties would be). (As discussed in class, for the procedural requirements, look to the American Convention, even though technically it would be the Commission’s statute that governs.) Then we will discuss the substantive claims and defenses. Make sure you thoroughly consider all the relevant international instruments and other sources. Finally, could the Martinez case be taken before the Inter-American Court?

  • Thursday, September 27:

    • We will begin our examination of the European system for protecting human rights.
    • Be familiar with the state of emergency/derogation provisions in the European Convention. Compare them to those in the ICCPR, art. 4 (TS 45). Note that the African Charter (TS 352) has no derogation provision. Is that a better choice?
    • Next, we’ll go over the Lawless case in detail.
      • What rights did Lawless say had been violated by his detention?
      • What defenses might the Irish government make?
        • In light of Art. 17 of the Convention (TS 440), could Ireland claim that Lawless’s admitted membership in the IRA deprived him of protection under the Convention?
        • Carefully consider what defense (other than derogation) Ireland might have to the claim of the Article 5 violation -- See Art. 5(1)(c) (TS 436)
        • Would the Irish government have any defense (other than derogation) to the claim of an Article 6 (TS 437) violation?
      • Was there a public emergency “threatening the life” of Ireland? What evidence does the Court cite for the existence of such an emergency?
      • Were the derogation measures strictly required? What alternatives did Lawless suggest? What did the Court say about them? What other factors did the Court consider in upholding the measures?
      • Were the procedural requirements of Art. 15 fully satisfied in this case? Consider the exact dates (at CB 794-795) of:
        • his detention in 1957; and
        • the government’s Proclamation; its publication; and the notification to the Council of Europe.
      • Note that while the edited version of the case does not include it, in Lawless the Court did invoke the “margin of appreciation” doctrine discussed at CB 808-809. How deferential do you think the Court should in evaluating the validity and scope of a derogation under Art. 15?
    • We will next discuss Brogan.
      • There was no derogation in effect at the time of the individuals’ arrest. Did that make the existence of the IRA campaign irrelevant to the Court’s decision? Should it have?
      • On what basis did the Court find a violation of Art. 5(3)? Is the decision consistent with Lawless?
    • Next we will discuss Sakik.
      • What there a violation of Art. 5(3)? What would Brogan suggest?
      • In this case, Turkey had filed a derogation notice with the Council of Europe. Why was that not sufficient to secure a ruling in its favor?
    • Should there be an international convention defining terrorism and outlawing it? (Note that the draft convention referred to at CB 809 note 3 is still unfinished.) What agreements have been approved? What actions has the U.N. Security Council taken? What should happen if the UN takes action under Chapter VII of the UN Charter (TS 13-15) requiring states to take certain measures to combat terrorism, and the measures appear to conflict with human rights protected by the European Convention or the ICCPR? Note that under Art. 48 of the UN Charter (TS 15), UN members are obligated to carry out Security Council resolutions. What impact might UN Charter Art. 103 (TS 26) have on your answer to this question?

Week of October 1, 2012:

  • Tuesday, October 2:

    • What are the procedural requirements for bringing a case under the European Convention? See Art. 35 of the Convention (TS 443)
    • We have a brief discussion of the Kaya case (CB 823). If the Court had concluded that the security forces had in fact deliberately killed the applicant’s brother, what provision or provisions of the European Convention would have been violated? While the excerpt does not make it clear, the Court did find that Turkey conducted no independent investigation of the killing; it just took the security forces’ word that Kaya was a terrorist and had been killed in a gun battle. What violation(s) might that failure give rise to? Should the Court have applied a standard of “beyond reasonable doubt” in determining what happened?
    • Next we will discuss the McCann case (CB 813), going over the facts in detail. What provisions of the European Convention did the UK violate? Suppose the UK had done nothing to stop what it thought was a planned terrorist action. Would its inaction have put it in violation of the Convention?
    • Next we will discuss Jordan v. UK (CB 826). We will go over the facts in detail, and then discuss the holding regarding Article 2. In interpreting Article 2, what non-Convention sources does the Court look to? On what basis?
    • What provisions does the Convention have for relief where a violation is found? See ECHR, Art. 41 (TS 444) (or CB 839). What relief was awarded in each of the European cases we have discussed. Also, compare ECHR Art. 41 to Art. 63(1) of the Inter-American Convention (TS 400 or CB 844); what kinds of relief has the Inter-American Court ordered? What enforcement provisions are there for judgments of the European Court? The Inter-American Court?

  • Thursday, October 4:

Week of October 15, 2012:

  • Tuesday, October 16:

    • We will go over the facts and the holding of the Hoffman case.
    • What issues regarding the rights and protections available to undocumented aliens did Hoffman leave unresolved?
    • What international avenues of “review” of the issues were available? Who pursued them? How? What did the Inter-American Court, the ILO Committee, and the HRC say about the rights of undocumented aliens? About U.S. compliance with international law?
    • We will also examine the sources of international law:
      • Treaties
      • Customary international law -- in particular, consider the Paquete Habana (Supp. 89), focusing for now on how the Supreme Court determined that there was a customary norm of international law (as opposed to the role of international law in U.S. law, which we will cover Thursday)
      • Peremptory norms

  • Thursday, October 18:

    • We will discuss the problem at CB 870-871 in light of materials assigned for Tuesday and today.

Week of October 29, 2012:

  • Tuesday, October 30:

  • Thursday, November 1:

    • We will briefly review Problem 4.
    • On genocide, what is the definition of genocide under the Convention? What are the elements of it?
    • What kind of groups are protected?
    • What sorts of acts might qualify as genocide?
    • Consider the case of Bosnia during the wars following the breakup of Yugoslavia. Would an attack on Bosnian Muslims in a particular city, intended to eliminate all Muslims from that city, constitute genocide if it involved killing some of them?
    • What about killing a particular individual based on hatred of her ethnic group?
    • On whom do the Convention’s obligations to refrain from or protect against fall: states? individuals?
    • Under the Convention, what defenses to a charge of genocide might an individual mount if prosecuted. Could it include head of state immunity? Sovereign immunity? What about superior orders? Might the Vienna Convention on the Law of Treaties, Art. 31 (TS 265) help in answering this question?
    • Under the Vienna Convention (Art. 31) would the Rome Statute of the Intenational Criminal Court (Supp. 195) be relevant to interpreting the Genocide Convention? Why or why not? How would it bear on the interpretatiion if it does?
    • How far, territorially, do the obligations of a state regarding genocide extend? Consider ICCPR art. 2 (TS 44) as well as the provisions of the Genocide Convention.
    • Does the Genocide Convention require other countries to intervene militarily to prevent or stop genocide? To impose sanctions?
    • Did genocide take place in Darfur?
    • Why might it matter whether what took place there was “genocide” versus (say) a “crime against humanity”? Does it, in your view?