International Human Rights Law

 

Assignments for the week of August 17, 2009: Tuesday, August 18: Please read Section I of the Assignment Sheet. For anyone who is interested, you can take a look at the Bush Administration memos referred to in the Assignment if you’d like, but it’s not part of the assignment -- it’s simply for your interest. Memorandum for John A. Rizzo, August 1, 2002 Memorandum for John A. Rizzo, May 10, 2005-Part I Memorandum for John A. Rizzo, May 10, 2005-Part II Memorandum for John A. Rizzo, May 10, 2005 Memorandum for John A. Rizzo, May 30, 2005-Part I Memorandum for John A. Rizzo, May 30, 2005-Part II Thursday, August 20: Please read Section II.A.1. of the Assignment Sheet.

Assignments for the week of August 24, 2009: Tuesday, August 25: Please read II.A.2 on the Assignment Sheet. Why did the U.N. Commission on Human Rights draft three separate documents -- the Universal Declaration, the ICCPR, and the ESC Covenant -- instead of one? Do you agree with Melish (SR 49-55) that it would have been better if there had been one treaty on all human rights? What harms does she see from the separation? How well does the Optional Protocol to the ESC Covenant address those harms? As you can see from the Table in the Document Supplement, “Ratification of International Human Rights Treaties -- U.S.” (DS 20), President Carter signed the ESC Covenant in October 1977, at the same time he signed the ICCPR. The Senate ratified the ICCPR in 1992; the U.S. has not ratified the ESC Covenant. Should the U.S. ratify 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 (DS 108). Background: An estimated 46 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.) Article 10 (DS 107). 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 (DS 106). 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 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. 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, DS 92); Inter-state complaints, where the state has recognized the competence of the Committee to hear such complaints (ICCPR art. 41, DS 92); 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) What method of enforcement or implementation does the ESC Covenant provide for? See Part IV, DS 109-111. What methods of enforcement does the new Optional Protocol to the ESC Covenant provide for? See DS 114-119. Make sure you understand the individual communications procedure; the inter-state procedure; and the inquiry procedure. Also, how is the Committee on Economic, Social and Cultural Rights constituted (see SR 51)? If the US were to ratify the ESC Covenant, should it ratify the Optional Protocol thereto? 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? 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? Thursday, August 27: Please read II.A.3 on the Assignment Sheet. Consider: For the materials in Supplementary Readings, focus on the questions in that reading. Consider, also, what specific articles of the Universal Declaration (DS 77) might be violated by FGM. Is FGM “torture” under Art. 1(1) of the CAT (DS 257)? What is the relevance to this question of Art. 2(1) of the CAT? Of the excerpt by Charlesworth, Chinkin, and Wright (CB 956)? What is the relevance of ICCPR Art. 1(1) (DS 83)? For the materials in the casebook, consider: Is there a single “cultural relativist” take on human rights, or different types or positions of cultural relativism? Is Ghai persuasive that the “cultural relativism versus universalism” debate is largely sterile, or are there genuine differences in approach? What ambiguities does Ghai identify in the concepts of culture and tradition? What light do they throw on the debate? Do you agree with Ghai that “the threat to culture from rights may be exaggerated”? Is the concept of rights intrinsically bound up with Western philosophy? In thinking about this question, consider Ghai and the earlier reading by Raphael (SR 37-42). Are rights more important in multicultural societies than in homogeneous societies, as Ghai suggests? What is your evaluation of An-Na’im’s conclusion that “human rights advocates in the Muslim world must work within the framework of Islam to be effective”? In this regard consider his analysis of the notion of qawama. What methodology does he advocate? Is An-Na’im’s approach better cast as abandoning universal human rights in favor of Shari’a (reinterpreted) or as refusing to abandon Shari’a to Muslim fundamentalists? How does his strategy compare to the position the Iranian delegate took before the UN Human Rights Committee (SR 65)? What do you think An-Na’im would say about assertions that the practice of FGM is customary in some societies? Note: if you’re interested, you can read an article about An-Na’im in the New Yorker: George Packer, The Moderate Martyr: A Radically Peaceful Vision of Islam, The New Yorker, September 11, 2006 (optional).

Assignments for the week of August 31, 2009: Tuesday, September 1: We will complete our discussion of the materials in II.A.3, focusing on the questions at SR 66. In addition, please read II.B.1.a & II.B.1.b.i (“General”) on the Assignment Sheet. In connection with the readings, consider the following: What are the sources of international law as identified by the Restatement (SR 67-76)? After reviewing the Restatement, do you agree with its assertion that “[i]nternational law has the character and qualities of law, and serves the functions and purposes of law, providing restraints against arbitrary state action and guidance in international relations” (SR 67)? What advantages or disadvantages are there in dealing with the law of treaties (or any other area of international law) through a treaty rather than through customary law? To which are treaties more analogous -- contracts or legislation? General questions about the Vienna Convention (DS 76)and treaties: Who may legally enter into treaties? States? The Vatican? Florida? The U.N.? Does the Vienna Convention determine your answer to this question? What is a treaty? Would an Executive Agreement reached between the President of the United States (with no Senate ratification) and the President of Kyrgyzstan be a treaty? At what point does a treaty become binding for a state? Signature? Ratification? At what point did the Vienna Convention become binding for any party? In interpreting treaties what besides the text is relevant? How are treaties amended? Could the Vienna Convention be amended? The ICCPR? What if a party to one or the other did not want it amended, but the other states did? Are there circumstances or actions that might validly free a state from the obligations to which agreed in a treaty when it became a party? Are there circumstances which would render a treaty void from the start? Is the American Declaration of the Rights and Duties of Man a “treaty”? What did the Inter-American Court say about this (Interpretation of the American Declaration ..., CB 271). Note that Article 64 of the American Convention on Human Rights (see DS 187) gives the Court the power to render an advisory opinion concerning the interpretation of the American Convention (a treaty) “or of other treaties concerning the protection of human rights in the American states” (emphasis added). If the American Declaration is not a treaty, on what basis could the Court conclude that it was authorized to give advisory opinions concerning its interpretation? Consider Art. 29(d) of the American Convention (DS 179); the Charter of the OAS (referred to at CB 274); the Statute of the Inter-American Commission on Human Rights (referred to at CB 274); and the OAS General Assembly resolutions referred to in the first paragraph of CB 275. Problem 1: What is the status of the “Reservations, Declarations, and Understandings” to the U.S. ratification of the ICCPR (CB 26-28, or DS 101-103)? Do other countries have any say in whether the U.S. may take these reservations? Are these reservations valid under international law? (Review the ICCPR as well as the Vienna Convention for this question.) If any of the RDU’s are not valid, is the treaty binding on the U.S.? Binding with the articles as to which the reservation was taken? Binding without those articles? In considering these questions you might want to focus particularly on the U.S. reservation permitting execution of individuals who were juveniles at the time of their offense. Problem 2: In 1972 the U.S. and the Soviet Union entered into a Treaty on the Limitation of Anti-Ballistic Missile Systems (The ABM Treaty). ABMs are missiles that are designed to intercept incoming ballistic missiles carrying nuclear warheads and to destroy them before they strike. Their development was viewed as fundamentally inconsistent with the strategy of Mutually Assured Destruction (MAD) that dominated cold-war relations. In essence, under MAD, neither side had an incentive to engage in a first nuclear strike, because both sides had such huge nuclear capacity that a first strike would inevitably fail to destroy all the other side’s arsenal, meaning that retaliation was inevitable, leaving both countries in ruins. If one country developed an effective ABM system, however, it would now have a first-strike capability, because it could launch an attack knowing that its ABM system would protect it from the inevitable retaliation. That, in turn, would produce a huge incentive on the other side to launch a preemptive strike on the other country if it appeared that the other country was on the verge of deploying an effective ABM system. Article I(2) of the ABM Treaty provided: “Each Party undertakes not to deploy ABM systems for a defense of the territory of its country and not to provide a base for such a defense, and not to deploy ABM systems for defense of an individual region . . . [except the national capital].” Article XV provided: “1. This Treaty shall be of unlimited duration. “2. Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to the other Party six months prior to withdrawal from the Treaty. Such notice shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests.” In 1983, President Reagan proposed a Strategic Defense Initiative (SDI -- more commonly known as “Star Wars”). The SDI was a program for research, testing, and developing a missile system designed to intercept incoming ballistic missiles carrying nuclear weapons and destroy them before they struck. Consider: If you were a U.S. State Department lawyer, what argument would you make for the consistency of the SDI with the ABM Treaty? What information would you need to interpret the treaty under Article 31 of the Vienna Convention (DS 59)? The U.S. has continued research and testing on anti-missile systems since 1983. With the breakup of the Soviet Union, Russia and the U.S. generally treated Russia as the successor state to the Soviet Union’s obligations. In May 2001, the Bush administration announced that it intended to deploy anti-missile systems to protect the U.S. from so-called rogue states:       “President Bush’s speech on May 2 stressed the change of circumstances from the height of the cold war in 1972 to the present post-cold war era. He said that in 1972, the threat from the Soviet Union was “real and vivid.” Few other countries had nuclear weapons, and “most of those who did were responsible allies.” Any threat from other countries “was mostly a distant threat, not yet a reality.” Today, he said, it is a vastly different world. Russia is not the enemy of the United States. The Iron Curtain no longer exists. More nations have nuclear weapons, and still more aspire to them. Some have ballistic missile technology. And, he said, “the list of these countries includes some of the world’s least responsible states.” The threat, he continued, emanates today from a small number of missiles in the hands of these states. The Treaty “enshrines the past. No treaty that prevents us from addressing today’s threats, that prohibits us from pursuing promising technology to defend ourselves, our friends and our allies, is in our interests or in the interests of world peace.” (From Frederic L. Kirgis, Proposed Missile Defenses and the ABM Treaty, ASIL Insights, May 2001.) Consider: Would these factors support an argument that a fundamental change of circumstances argument had taken place? What merits such a determination under Article 62 of the Vienna Convention (DS 67-68)? What would be the effect on the ABM treaty of such a determination? See Section 5 of the Vienna Convention (DS 69-71). On December 2001, the U.S. sent the following note to Russia: “ . . . Since the Treaty entered into force in 1972, a number of state and non-state entities have acquired or are actively seeking to acquire weapons of mass destruction. It is clear, and has recently been demonstrated, that some of these entities are prepared to employ these weapons against the United States. Moreover, a number of states are developing ballistic missiles, including long-range ballistic missiles, as a means of delivering weapons of mass destruction. These events pose a direct threat to the territory and security of the United States and jeopardize its supreme interests. As a result, the United States has concluded that it must develop, test, and deploy anti-ballistic missile systems for the defense of its national territory, of its forces outside the United States, and of its friends and allies. “Pursuant to Article XV, paragraph 2, the United States has decided that extraordinary events related to the subject matter of the Treaty have jeopardized its supreme interests. Therefore, in the exercise of the right to withdraw from the Treaty provided in Article XV, paragraph 2, the United States hereby gives notice of its withdrawal from the Treaty. In accordance with the terms of the Treaty, withdrawal will be effective six months from the date of this notice.” Consider: Suppose Russia had formally objected to the notice on the ground that the developments cited did not constitute “extraordinary events.” Would the treaty still be in force today? Thursday, Sept. 3: We will complete our discussion of the material in II.B.1.b.i (see above). In addition, please read II.B.ii.a. on the Assignment Sheet, except for SR 87-102, which we will not get to until next week. Pay close attention to the way the Inter-American Court approached the interpretation of Article 64 of the American Convention in the “Other Treaties” Case (CB 48), and compare its approach to the Vienna Convention. Among other things, consider: Make sure you understand scope of the advisory opinion jurisdiction as determined by the Court: Are all treaties promulgated under the auspices of the OAS included in Article 64? Are any treaties concluded solely between members of the OAS but not under the auspices of the OAS, included in Article 64? Are any treaties concluded among OAS members and non-OAS members included in Article 64? Are any treaties whose primary purpose is something other than the protection of human rights included in Article 64? What is the object and purpose of the American Convention, according to the Court, and how does a consideration of it aid in determining whether the Court’s advisory jurisdiction is limited to treaties concluded under the auspices or the OAS or to which only American states are parties? What portions of the text of the Convention besides Article 64 did the Court find especially relevant? Why? According to the Court, what preliminary inquiry must it make before it can take into account the preparatory work of the Convention? See ¶ 45 of the opinion. What did the history of the drafting of the Convention indicate? Argentina, the U.S., and Britain are parties to the ICCPR. Argentina is a party to the American Convention; Britain and the U.S. are not. Suppose Argentina sought an advisory opinion on whether Britain had violated the ICCPR in its treatment of terror suspects of Argentinian nationality? Would that fall within Article 64 as interpreted by the Court? What if Argentina sought an advisory opinion on whether U.S. treatment of terror suspects of Argentinian nationality was compatible with U.S. obligations under the ICCPR? What if the U.S. sought an advisory opinion on whether its treatment of terror suspects was compatible with U.S. obligations under the American Declaration of the Rights and Duties of Man and the ICCPR? What does the Court say about the prospect of differing interpretations of some treaties by different international bodies -- e.g., an interpretation of the ICCPR by the Inter-American Court at variance with an interpretation of that treaty by the U.N. Human Rights Committee? Is interpretation of human rights treaties different from interpretation of other treaties? Should it be? What does Mahoney suggest (CB 54)? Consider: Do we know what the original intent of the state parties was in ratifying a human rights treaty? Should that intent bind subsequent interpretations? What does the use of a phrase like “necessary in a democratic society” suggest? Consider Mahoney’s remark that “the circumstances would have to be highly exceptional for the European Court to declare a common practice or legislative policy of the Contracting States to be contrary to the Convention” (CB 56). How much should current consensus or widespread practice among European states guide interpretation of the European Convention? What are factors that would make current consensus or widespread practice attractive to the Court as a guide to interpretation of the Convention? What factors would make such reliance problematic? The Helfer excerpt (CB 56-68) gives a fairly detailed account of the “margin of appreciation” doctrine. This will be helpful for later cases we read; at this point you needn’t worry about the details of the doctrine -- just make sure you generally understand what it is and how it has developed. Does the European Court of Human Rights’ “margin of appreciation” doctrine derive from the text of, or an interpretation of the text of, the European Convention? Or is it something grafted onto the treaty to allow the Court to engage in thoughtful balancing of individual rights and state interests? A reflection of changing state consensus? Would either of the latter two explanations be consistent with the Vienna Convention? How much should the Court respect experimentation among member states (see CB 65)? Do you think the Court should be more systematic in its balancing of deference to states with protection of individual rights, as Helfer suggests (CB 62-67)? What benefits does Helfer see in such an attempt? How well does he respond to objections to such an attempt (CB 67-68)? What is your view of the suggestion in CB 68-69 (note 2) that the margin of appreciation doctrine should be discarded as to states that do not provide for enforcement of the Convention by their own domestic courts? Did the Court properly interpret section 5(1) of the European Convention in Litwa (SR 77)? What is Litwa’s best argument that his Article 5 rights were violated? What is the Government’s best argument that Litwa’s Article 5 rights were not violated? Take into account: Whether or not the list in (a) through (f) is exhaustive; Any relevant general principles of interpretation in dealing with a human rights treaty; The meaning of “l’alcoolisme” in French, according to the Court; The drafting history of Article 5; The practicality of alternative interpretations of “alcoholics”; The interests or rights of others. Is the Court’s approach to the interpretation of the term “alcoholics” dangerous, as Judge Bonello suggests? Has it added a new exception to Article 5(1)? Why or why not? Is the Court’s ruling on the interpretation of Article 5(1)(e) consistent with its finding of a violation? How much deference does the Court gives to the Polish authorities’ handling of the situation?

Assignments for the week of September 8, 2009: Tuesday, September 8: We will complete our discussion of the material in II.B.1.b.ii.a. (“Treaty Interpretation”). (Make sure you read the remainder of that material, including the ICJ case). In addition, please read II.B.1.b.ii.b)(i) (“Sexual Orientation”). With respect to the ICJ Case (SR 95), consider: What did the Court hold as to whether each of the following treaties was applicable to Israel’s occupation of the Palestinian territories, and on what basis? The Fourth Geneva Convention The International Covenant on Civil and Political Rights The Convention on the Rights of the Child The International Covenant on Economic, Social and Cultural Rights Do you agree with the Court’s conclusion on the applicability of the treaties? Why or why not? Do you agree with Judge Higgins that it’s not useful for the Court to give advisory opinions on human rights treaties for which specific monitoring bodies exist (the ICCPR, ICESCR, and the Children’s Rights Convention)? With respect to the material in II.B.1.b.ii.b)(i) (“Sexual Orientation”), consider: What provisions of the ICCPR might the Tasmanian statute at issue in Toonen arguably violate? Be comprehensive in your answer. Suppose you are Toonen’s lawyer, and you are preparing a petition to the U.N. Human Rights Committee. Under the Optional Protocol to the ICCPR (DS 96), what do you need to show in the petition (or “communication”) to establish the competence of the Committee to consider his petition? Consider Articles 1-5 of the Optional Protocol. The statute to which Toonen objected was part of the Tasmanian criminal code; Tasmanian is a state within Australia. Why was Australia, rather than Tasmania, the defendant? In this regard, consider Optional Protocol, Art. 1, and ICCPR, Art. 50 (DS 95). Suppose Australia were to tell the Committee that the national government had no power under Australia’s federal system to force a state to change its laws. Would that fact provide a legally sufficient reason for not finding Australia to be in violation of the ICCPR if the Committee were to conclude that laws banning all forms of same-sex sexual relations are incompatible with the Covenant? In this regard, consider ICCPR, Art. 50, and Vienna Convention, Art. 27 (DS 58). Also, suppose that when Australia had ratified the Covenant, it had attached a statement identical to the “understanding” the U.S. attached to its ratification of the Covenant. What would be the effect on the Toonen case? Note: the U.S. statement was: “(5) That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant.” (DS 102-103). Is this a “reservation” under Vienna Convention Art. 2 (DS 51)? If it is, is it valid under Art. Section 2 of the Treaty (DS 55-57)? With regard to Article 17 of the ICCPR, what is “privacy”? Was there an “interference” with it? If so, was it “aribtrary” or “unlawful”? Neither Dudgeon (CB 690) nor Toonen reached the Article 26 (ICCPR; DS 89) or Article 14 (European Convention; DS 124) issue. Do you think Toonen had a valid Article 26 claim? Why or why not? Thursday, September 10: Please read II.B.1.b.ii.b)(ii) (“Abortion”). Consider: What provisions of the European Convention (DS 120) were at issue in Brüggemann (CB 724)? Consider all the articles that could be relevant. What is “privacy” under the Convention, according to the Commission? In Brüggemann did the Commission hold that: the applicants’ privacy was not implicated? the applicants’ privacy was implicated but not interfered with? the applicants’ privacy was implicated and intefered with, but the interference was consistent with the Convention? What difference does it make as to which of the three rationales is adopted? What is the relevance of the Commission’s observation that abortion is not banned in all possible circumstances in Germany? What is the relevance of the Commission’s observation that when the Convention entered into force, all member states had laws at least as restrictive as Germany’s? What were the applicant’s claims of a violation of the Convention in Paton? To what sources did the Commission look to determine whether “everyone” in Art. 2 of the Convention includes the fetus? Did Commission rule on the merits on the claim regarding Art. 2? As for the claim of the Article 8 violation, did the Commission find that the applicant’s privacy was not implicated? the applicant’s privacy was implicated but not interfered with? the applicant’s privacy was implicated and intefered with, but the interference was consistent with the Convention?

Assignments for the week of September 14, 2009: Tuesday, September 15: We will complete our discussion of the materials in II.B.1.b.ii.b)(ii) (“Abortion”). In addition, please read the material in II.B.1.c (“Customary International Law”). With regard to the remaining materials in II.B.1.b.ii.b)(ii) (“Abortion”), consider: Note that the Baby Boy case (CB 329; CB 727) is an example of the American Declaration being treated as binding on the U.S. Cf. Interpretation of the American Declaration ... (CB 271), which we read earlier (Section II.B.1.b.i of the Assignment Sheet). Notwithstanding the Commission’s remark in Baby Boy that it would be improper to impose any obligations on the U.S. under the American Convention (see ¶ 31, CB 331), is there a basis under the Vienna Convention on the Law of Treaties for attributing some obligation to the U.S. under the Convention? See Vienna Convention, art. 18 (DS 55); see Table on status of American Convention, DS 18, under “United States.” What articles of the American Declaration did the petitioners in Baby Boy say the U.S. was violating? Do you see any “standing” issues in Baby Boy? Take a look at Art. 44 of the American Convention (DS 181). What does that Article have to say about them? How is it different from the Optional Protocol to the ICCPR, art. 1 (DS 96)? Do you see any “state action” issues in the Baby Boy case? To what did the Commission look in deciding the merits of the petitioners’ claim that the U.S. had violated the American Declaration? Note that it doesn’t focus much on the text. What arguments could you make based on the text alone? Also, how persuasive is the Commission’s argument about the travaux préparatoires of the Declaration? What does Article 29 of the American Convention (DS 178-179) have to say about the use to which it might be put in interpreting the American Declaration? With regard to Vo v. France (CB 331), note that this is an opinion by the European Court, which is not bound by the rulings of the European Commission. Thus it revisited the question of the status of the fetus under Article 2 of the Convention. How is its approach different from the Commission’s? Stepping back from the details somewhat, the outcome of the cases we’ve seen is that international human rights law largely leaves abortion to the discretion of states, but takes a more interventionist approach to laws banning same-sex sexual activity. Do you think that’s right? Which approach would you want international human rights law to take in the case of same-sex marriage? With regard to the material in II.B.1.c (“Customary International Law”), consider: The U.S. Supreme Court said in Paquete Habana that there is “an ancient usage that gradually ripened into a rule of international law” that fishing boats bringing fish in are exempt from seizure in wartime. On what materials did it base that assertion? Did the Court conclude that there should be such a rule, or that there is a such a rule (or both)? Must there be universal agreement among states regarding a rule for it to be customary international law? Is there any counter-evidence to the materials that indicated the existence of such a rule? Should the following be considered evidence of a customary norm? Why or why not? Statements by states unaccompanied by acts U.N. General Assembly Resolutions Thursday, September 17: We will complete our discussion of the material in II.B.1.c (“Customary International Law”). In addition, please read the material in II.B.1.d (“Peremptory Norms”). With respect to the material in II.B.1.c, consider: If a customary rule is found to exist, what states does it bind? All states? Only those states that participated in making the rule? Is it enough, in seeking to establish the existence of a customary rule of international law, to show consistent state practice? What is the opinio juris element? If a general rule of customary international law is found to exist, might there nevertheless be some particular states that are not bound by it? Under what circumstances? Be prepared to discuss the question at SR 112: Using the approach to determining customary law set out in the Paquete Habana, is there a customary norm against torture? A Customary norm against requiring self-incrimination? A customary norm entitling individuals to at least a minimum level of subsistence or medical care? What evidence is relevant? What would Watson say as to whether there is a customary international law norm against torture? To what factors would he point in giving his answer? With respect to the material in II.B.1.d (“Peremptory Norms”), consider: Make sure you are familiar with Articles 53 and 64 of the Vienna Convention on the Law of Treaties. What is Martin’s test for whether a norm is a peremptory norm? How is the question of states of emergency relevant? How might the kinds of arguments that Shue makes about basic rights (SR 43-48) be relevant? On what basis did the Inter-American Court invalidate the treaty at issue in Aloeboetoe v. Suriname (CB 39)? Should it have invalidated the whole treaty or just the particular provision regarding slavery? With regard to the Judicial Guarantees case (CB 40), was the Inter-American Court’s interpretation of Article 27 of the American Convention correct, in your view? What implications might it have for using derogation clauses in treaties as a guide to what norms are peremptory norms?

Assignments for the week of September 21, 2009: Tuesday, September 22: We will complete our discussion of the materials in II.B.1.d (“Peremptory Norms”) -- we will briefly discuss the Aloeboetoe case and the use of peremptory norm arguments in Graham v. State. In addition, please read the material in II.C and be prepared to discuss the problem at SR 135. Thursday, September 24: Please read the material in II.D.1.

Assignments for the Week of September 28, 2009: Tuesday, September 29: Please read the material in II.D.2. On Tuesday, we will discuss the Medellín case. It will be helpful to have read the material in the casebook as well, but we will not specifically discuss those readings on Tuesday. In addition to discussing Medellín itself, we will also discuss whether the ICCPR and the CAT would be self-executing if the Senate had not attached declarations pronouncing them to be non-self-executing. Thursday, October 1: We will complete our discussion of the materials in II.D.2. We will begin by finishing our discussion of the Medellín case. We will focus particularly on the dissent’s proposed approach. We will also discuss what it means, under Medellín, for a treaty or treaty provision to be non-self-executing. Is it domestic law at all? What relevance, for example, does a non-self-executing treaty have to a state legislator who is considering how to vote on a proposed bill? As mentioned in class, ask yourself whether, given Medellín, a juvenile defendant being held in a prison facility with adults could base a challenge to his detention on Article 10 of the ICCPR if the Senate had not included a declaration of self-execution. Also, are there any circumstances under which Articles 11 and 12 of the ESC Covenant might be self-executing if the U.S. were to ratify that treaty without a declaration of non-self-execution? In addition, consider: Does the Senate have the power under Article VI to declare a treaty non-self-executing? Would the president have the power to withdraw a declaration of non-self-execution, or would he need the consent of the Senate? What should the criteria be for deciding whether a treaty should be self-executing, in your view? What role should the following factors play? Are there others that should be considered? The intent of the parties to the treaty Whether the treaty is intended to create or protect individual rights Whether judicial enforcement or implementation of the substantive provisions would require actions not normally undertaken by courts Whether judicial enforcement of the treaty without implementing legislation would violate the constitution. (Consider, for example, the requirement in the Convention Against Torture that individuals who commit torture be prosecuted. Could someone constitutionally be prosectuted on the basis of the treaty alone?) Should there be a presumption in favor of non-self-execution? What are Yoo’s arguments in favor of such a presumption in terms of the Framers’ intent (compare his account to Breyer’s at SR 151-152; also, compare his treatment of the Framers’ intent at CB 237-239 with his treatment of it at CB 243 [last paragraph]) democracy, separation of powers, and the role of the legislature vis-a-vis the executive bicameralism and the role of the House of Representatives federalism What should be the effect of a non-self-executing treaty? Should it matter whether: The treaty is being used as a “sword” (to create a private cause of action) or a “shield” (e.g., as a defense in a criminal action)? The treaty issue is being raised in federal court or state court? Is the Senate’s declaration of non-self-execution a “reservation” under the Vienna Convention on the Law of Treaties? If so, is it a valid reservation? What grounds for invalidity does Martin cite? If it is not valid, what effect does its invalidity have?

Assignments for the Week of October 5, 2009: Tuesday, October 6: Please read the material in II.D.3. We will discuss whether the U.S. should ratify CEDAW , and on what terms. Using the information you get in reading about reservations, declarations, and understandings in relation to CEDAW, and after reviewing the Convention on the Rights of the Child (CRC) consider also whether you think we should ratify the CRC and on what terms. Note: There is a new Assignment Sheet, available here. Thursday, October 8: Please read the material in II.D.4.a and II.D.4.b. Make sure you have Assignment Sheet No. 2.

Assignments for the Week of October 12, 2009: Tuesday, October 13: We will complete our discussion of the materials in II.D.4.b. In addition, please read the materials in II.D.4.c. Make sure you have the new Assignment Sheet. Regarding Abdullahi v. Pfizer, consider: For more information on the case, you might want to read (optional): Part 1 of the Washington Post Series, The Body Hunters (December 2000) Joe Stephens, Panel Faults Pfizer in ’96 Clinical Trial In Nigeria; Unapproved Drug Tested on Children, Wahington Post, May 7, 2006 What role should the doctrine of forum non conveniens play in Alien Tort Statute litigation? Who has the burden of proof on the forum non conveniens issue? What factors is a court to consider? How would the U.S. State Department’s description of Nigeria at SR 230-232 bear on the forum non conveniens issue? Why do you think Pfizer changed its mind about pressing the forum non conveniens defense when the case was before the Second Circuit the second time? On what main sources did the plaintiffs base their claim that a customary law norm prohibiting medical experimentation on non-consenting human subjects met the requirement of Sosa that norms recognized under the ATS be “sufficiently specific, universal, and obligatory”? Do you agree the majority’s conclusion that the Sosa requirements were met? With the dissent’s conclusion that they were not? In what ways do they differently define the issues? Consider the dissent’s critique as to the majority’s use of: The ICCPR; The European Convention on Human Rights and Biomedicine The WMA’s Declaration of Helsinki and the CIOMS Guidelines State laws banning non-consensual human medical experimentation The Nuremburg Code Do you think that non-consensual human experimentation are similar to those crimes subject to universal jurisdiction listed in section 404 of the Restatement (see Dissent, SR 224-225)? Are ethics in drug testing a matter of mutual state concern, or are they primarily internal matters? In what ways, according to the majority, does cross-border drug testing unregulated by international law threaten drug testing or otherwise hurt American interests? How the dissent reply? What is the “state action” requirement in the ATS? Was it met on these facts? To what facts does the majority look specifically? With regard to the Ratner reading (CB 132-147), consider: What factors might make a corporation liable under international law through state agency: a role as the agent of the state: how might this arise? complicity with the state: What does “complicity” mean? What are examples under international law? What does it take to show it in particular circumstances? For example, would it be enough that a corporation sold tanks to a government and the government then used those tanks to suppress demonstrators? What were the criteria of the South African Truth and Reconiliation Commission? command responsibility: under what circumstances might a corporation be said to have something like “command responsibility”? relationship to the population: does an American corporation owe less duties to foreign citizens with whom it deals than to American citizens? Should a multinational corporation that plays a major role in the economy of a smaller developing nation be judgged by a higher standard of care in dealing with citizens of that country than with others? What role does the distinction that Ratner draws between rights that only governments can infringe and rights that private actors could infringe directly play? How might there ever be any corporate liability with respect to the former? Should corporations that penalize public speech by employees critical of the company’s policies be subject to international human rights rules regarding freedom of expression? If so, should they be subject to those rules in the same way as governments? Will balancing provide adequate answers to such questions? Are there affirmative international human rights law-based duties directly applicable to corporations, or only negative ones? How might the answer vary depending on whether the norm at issue was torture or the right to form a family? How much should a corporation be responsible for the activities of related entities, such as: Wholly owned, separately incorporated subsidiaries Subcontractors Purchasers of a company’s goods and services. Should there be strict liability for corporations for human rights violations? Or should a fault standard (something like due diligence or negligence) be applied? Thursday, October 15: We will complete our discussion of the materials in II.D.4.c. In addition, please read the material in III.A.1 and III.A.2. Consider: Suppose Canadian law, following what was understood to be a traditional patrilineal definition of family among many Indian tribes in Canada, provided that if a female member married a man who was not Indian, her children would not be members of the tribe; whereas if a man married a non-Indian, his children would be considered members. (This is similar to the facts of Lovelace v. Canada, cited at CB 290 n.7.) What bodies could she petition if she wanted to object to this distinction? What procedural requirements would she need to meet? What rights might be violated by the law? What defenses might Canada make? (You can see what treaties Canada has ratified at DS 1-19.) How are the members of the Human Rights Committee (created by the ICCPR) chosen? What requirements does the ICCPR impose regarding membership? Would it be better if there were one body for hearing individual petitions instead of bodies associated exclusively with particular treaties? Why did the Committee reject the petition in Group of Associations v. Italy (CB 287)? Did it reject it on the merits? If such a petition had been filed before the Inter-American Commission on Human Rights under the American Convention, what would the Commission have done? What if someone filed a petition before the Human Rights Committee on behalf of his brother, whom he alleged the state had “disappeared”? Why have an exhaustion requirement? What purposes does it serve? What kinds of domestic remedies must be followed in order to exhaust? What if there is a previously decided, controlling case by a higher court that would require a domestic trial court to rule against the petitioner?

Assignments for the week of October 19, 2009: Tuesday, October 20: We will complete our discussion of the materials in III.A.2, focusing on the Velasquez Rodriguez and Exceptions cases, with a brief look at remedies. In addition, please read the materials in III.A.3. Make sure you have the new Assignment Sheet (No. 3). Note that there is a revision to the Assignment for III.A.3, so you need to have the most up-to-date Assignment Sheet. (In general, you can check “Casebook and Other Materials” above to make sure you have the most up to date materials.) With regard to the remaining material in III.A.2, consider: Regarding Velasquez Rodriguez (CB 291): Is the list of exceptions to exhaustion in Article 46(2) of the American Convention exhaustive or inclusive? Is waiver by the state mentioned in Article 46(2)? What if, in the course of international proceedings, the state fails to raise the issue of exhaustion of local remedies. Is that a waiver? Whose burden is it to raise the issue? How did the the Court deal with the fact that both the government and the Commission failed to raise the issue at first? What reasons does the Court give for holding that the issue of exhaustion may properly be joined to the merits? Under what circumstances is doing so appropriate? Regarding Exceptions to the Exhaustion of Domestic Remedies in Cases of Indigency ... (CB 295): Is there a duty to provide legal aid under the Convention? Is there no duty to exhaust local remedies if you’re indigent? If indigency per se isn’t an exception, what do you need to show? What if there is a general fear in the legal community of representing certain persons (e.g., those charged with being guerrillas)? What impact might that have on the duty exhaust? Does it matter whether the source of the fear is: Threats of violence from government military forces or police Threats of violence from private groups such as paramilitary forces or vigilante groups? Note the Court’s reference in para. 23 (CB 298) to the “duty to organize the governmental apparatus to create the structures necessary to guarantee human rights”? What does this say about the notion that civil rights (such as the right fair trial or legal representation) are negative rights? Consider the following issues regarding remedies: Are the decisions of the following bodies in cases where an individual has petitioned the body legally binding under international law? the Inter-American Court of Human Rights -- see American Convention, Ch. VII, sec. 3 (arts. 66-69) (DS 187) the Inter-American Commission on Human Rights -- see American Convention, Ch. VII, sec. 4 (arts. 48-51) (DS 183-184) the European Court of Human Rights -- see European Convention, arts. 49-54 (DS 130) the Human Rights Committee -- see ICCPR, Optional Protocol 1, Art. 5(4) (DS 97) Note: Compare Art. 94 of the UN Charter (DS 45-46) regarding the International Court of Justice To the extent that the decisions of a human rights body are not legally binding under international law, what does an individual gain by submitting a petition? What kinds of relief constitute “restitutio in integrum”? “Satisfaction”? “Indemnity”? Read Article 63 of the American Convention (DS 186). What kind of showing needs to be made to qualify for provisional measures? With regard to the material in III.A.3, consider: The creation of the Human Rights Council (SR 248-259): Review UN GA Resolution 60/251 (DS 655-657) (creating the Council). What criticisms were made of the former Commission on Human Rights? How did the procedures for election to membership in the Council differ from election to membership in the Commission? Also, in what ways was the ultimate set of rules for the Council that were adopted said to be weaker than those originally propsoed? What reasons did the Bush Administration give for the U.S. decision to oppose creation of the new Council -- and not to run for election to it when it was first created? What additional reasons might the U.S. have had for the decisions? Should countries with bad human rights records be permitted to serve on the Council? What advantages would such a rule have? What disadvantages would it have? What might the UN High Commissioner for Human Rights might have meant by her remark (see SR 258) that the Council should not be considered “the club of the virtuous”? Consider the list of members at SR 259. Are there states you would exclude if you could? For what reasons? The functions and processes of the Council: Individual petitions: (See SR 260-262) Current: What is the purpose of the individual petition mechanism of the Human Rights Council? How does it work? What criteria must a petition meet to be admissible? What is the process by which the petitions are examined? Past (See SR 265-270): Before the Council was created, the Commission on Human Rights had what was a called a “1503 Procedure.” Make sure you read Resolution (DS 648-650). Resolution 1503 of the Economic and Social Council authorized what was then called the “Sub-Commission on Prevention of Discrimination and Protection of Minorities” (later renamed the Sub-Commission on the Promotion and Protection of Human Rights” to reflect the scope of its work) to: examine complaints filed with the Commission on Human Rights by individuals pursuant to Resolution 728F (see DS 645-646); seek responses by the relevant governments to the petitions (without divulging the name of the petitioner, see Res. 728F); and determine whether the petitions and responses revealed the existence of “consistent pattern of gross and reliably attested violations of human rights requiring consideration by the Commmission.” In response to any situation referred to it by Sub-Commission, the Commission could decide to undertake a “thorough study” of the situation, and if the state so consented, carry out an investigation undertaken by an ad hoc committee of independent experts. See also Resolution 1235 (DS 647). You can see a list of the countries studied under this procedure at SR 266-269. The procedure was further refined in Resolution 2000/3 (DS 651-654). Note: The Commission on Human Rights, like the Human Rights Council, was a body with states as members. The Sub-Commission was a body with individuals serving as experts. Consider the following timeline revealed by the Resolutions: 1959: Resolution 728F (DS 645-646). The UN formally decides, for the first time, that an official UN body has the power to receive petitions from individuals claiming that their government has violated their human rights. The Commission’s power is limited to telling the petitioner that it has no power to take action (para. 2(d)) and to asking the government in question for its comments (paras. 2(e) and (f)). 1967: Resolution 1235 (DS 647): The UN formally decides that the Commission and Sub-Commission can use the petitions and other information as the basis for making “a thorough study of situations which reveal a consistent pattern of violations of human rights.” 1970: Resolution 1503 (DS 648-650): The UN formalizes the specific role of the Sub-Commission in the process, and authorizes the Commission to not only make a thorough study but also appoint an independent group of experts to investigate (with the state⁏s consent). 2000: Resolution 2000/3 (DS 651-654): The UN undertakes further refinements to the process designed to improve its functioning. 2006: With the abolition of the Commission on Human Rights and the creation of the Council, the UN decides to keep something very much like the 1503 procedure in place. What conclusions do you draw from the development of the procedure over time? The Universal Periodic Review mechanism: (See SR 270-273) What are its strengths? Its weaknesses? The Special Procedures: (See SR 273-274) What kinds of Special Procedures has the Council (or its predecessor, the Commission) established? What is the difference between the thematic mandates and the country-specific mandates? How are the various individuals who carry out these mandates selected? In what capacity do they serve? Human Rights Council Advisory Committee: (See SR 262-265) Who are its members? How are they chosen? In what capacity do they serve? What are its functions? In what functions does it assist the Human Rights Council? Accomplishments: What did the Council accomplish in its 11th Session (SR 274-277)? How valuable do you think those accomplishments are? Do you think the Obama administration made the right decision in having the U.S. run (successfully) for membership on the Council? The consultative role of NGOs: Review Resolution 1996/31 (DS 658-669). Note: you may skim this document just to get a sense of it. Thursday, October 22: We will complete our disucssion of the materials in III.A.3. In addition, please read the materials in III.B.1.a.i (“What Constitutes Torture?”) of Assignment Sheet No. 3. For this assignment, you will need to print out Part II of the Supplementary Readings (pp. 292-315). Regarding the readings in III.B.1.a.i, consider: What does it mean, in practical terms, to prohibit torture? What steps does the Human Rights Committee say a state must take? (See CB 326-329.) What is the source of the duties the Committee talks about? Can you find them in ICCPR art. 7 (DS 83)? Compare the CAT (DS 257). Is it permissible to use statements obtained by torture or by cruel, inhuman or degrading treatment or punishment in court? Consider: CAT, arts. 15 and 16. Human Rights Committee, General Comment No. 20, para. 12 (CB 328) Is it permissible to commit torture or cruel, inhuman or degrading treatment or punishment during a state of emergency? Consider: CAT, art. 2(2) (DS 257) ICCPR, art. 4(2) (DS 84) UN Declaration on Torture, art. 3 (DS 270) How is torture defined under: ICCPR art. 7 (DS 85) CAT art. 1 (DS 257) The UN Declaration art. 1 (DS 270) The Inter-American Convention to Prevent and Prohibit Torture, art. 2 (CB 313) Would a mock execution constitute torture? What about cutting off someone’s hand as punishment for a crime? Would it be permissible to extradite someone to a country with such a practice? What were the five techniques at issue in Ireland v. The United Kingdom? What did the Court hold regarding them? What did the Court hold regarding the “forced exercises”? On what bases do the various dissents differ? Which do you find the most persuasive? How do the think the European Court of Human Rights would rule on the techniques described at SR 1-3? Is long-term solitary confinement torture? Is it cruel, inhuman or degrading treatment or punishment? Neither? What difference does the label (“torture” versus “cruel, inhuman or degrading treatment or punishment”) make? Is it ever justified to commit torture?

Assignments for the week of October 26, 2009: Tuesday, October 27: We will complete our discussion of the materials in III.B.1.a.i, focusing on the issue of whether long-term solitary confinement constitutes torture under international law. In addition, please read the material in III.B.1.a.ii. (Criminal Liability for Torture: U.S. Law) and III.B.1.a.iii (Amnesties). Addition: Please also review these War Crimes Act-Related Statutes Thursday, October 29: Please read the material in III.B.1.b (Kidnapping) and III.B.1.c. (Enforced Disappearances). In addition, be prepared to go over exactly what you would need to include in a petition filed before the Inter-American Commission on Human Rights if you were the lawyer for Manfredo Velasquez (see Velasquez Rodriguez v. Honduras, CB 81). What would you need to allege under the American Convention to get the case admitted to the Commission? How would a case originally filed before the Commission end up at the Inter-American Court? What if, at the time you filed the petition with the Commission, you had substantial grounds for believing that several of your witnesses were in danger of being disappeared? Also, what sorts remedies would you request?

Assignments for the week of November 2, 2009: Tuesday, November 3: We will complete our discussion of the materials in III.B.1.c (Enforced Disappearances). In addition, please read the material in III.B.2.a,b&c. Thursday, November 5: Please read the material in III.B.3. and III.B.4. Note: You will need to print out the new Assignment Sheet (No. 4) for this reading.

Assignments for the week of November 9, 2009: Tuesday, November 10: Please read the material in III.B.4 and III.B.5 of the new Current Assignment Sheet (No. 5). Thursday, November 12: Please read the material in IV.A. of the new Current Assignment Sheet (No. 5) Note: You will need to print out Part III of the Supplementary Readings for this reading. Note: If you prefer you may pick up a copy for free at the Copy Center instead of printing it out. There will be no more supplementary readings; there may be one more addition to the Assignment Sheet, depending on how quickly we get through the material.