The Inter-American System
JU, SL

I. Background and Institutions

The Inter-American System of human rights consists principally of the General Assembly, the Meeting of Consultation of Ministers of Foreign Affairs, the Council, and the General Secretariat. It is guided by the American Declaration of the Rights and Duties of Man (adopted 1948) and the American Convention on Human Rights (adopted 1969). This section deals primarily with two of the system’s major institutions: The Inter-American Commission and Court. In terms of the rights recognized in the American Declaration and Charter, it is noteworthy that: (1) in addition to rights it outlines duties of the citizen; (2) 21 out of 26 of the rights outlined in the Convention are very similar to the ICCPR; (3) it contains a general provision [Article 26] to compensate for its lack of having separate treaties for economic, social, and cultural rights; (4) for the setting of standards it includes the Inter-American Council for Education, Science, and Culture, as well as an Economic and Social Council, and; (5) it obliges parties to adopt measures that reflect their ‘degree of development.’ Turning to the Commission and the Court, it is important to note that: (1) the Commission only ‘takes cognizance’ of individual cases due to its concern with the general condition of human rights in a country; (2) the Court may go beyond the Convention to issue rulings on any treaty pertaining to the protection of HR in the American states, and; (3) there are no legally binding means of enforcement for Court rulings, although it does rely on political pressure from member states of the OAS. It is also important to consider that two of the distinctive features of the Inter-American system are its frequent engagement of ‘gross’ violations of HR and the region’s lack of political cohesion. Finally, commenting the system’s present state of affairs, Tom Farer highlights its gradual shift from country reports to court cases (though positing the need for a continuance of reports) and the new challenges presented by a greater number of democratic states in OAS.

(1) How does the Inter-American system’s method of enforcement impact its efficacy?

II. The Court in Action

The text proceeds to describe one of the Court’s most commonly cited cases-the Velásquez Rodríguez case. While the details of the case-involving the disappearance and alleged abduction/murder of a man from Honduras-are important, the precedents set by it are even more crucial to consider. Essentially, the ruling on this case established that it is acceptable that “circumstantial evidence, indicia, and presumptions may be considered” in the absence of direct evidence “so long as they lead to conclusions consistent with the facts” and that there is evidence that information regarding the case has been concealed or destroyed.(884) The editors also draw attention to: (1) the length of the proceedings (from 1981 to 1988); (2) the active involvement of the Commission arguing on behalf of the individual seeking relief, and; (3) the participants ranging from witnesses to NGOs.(887)

(2) In its court decision, the Inter-American Court of Human Rights states the difference between international protection of human rights and criminal justice (see p.884). Considering the power provided to the Court by Article 63, do you agree with the Courts ruling? What would you have done differently?

III. Background on the Human Rights of Political Participation

The third section develops the fundamental theme of democracy within the field of human rights. Democracy is argued as having established itself as a global norm, however varying degrees of democracy exist, as signified in the distinction between the classical, more ‘minimal’ democracy and the more recent social, ‘positive’ democracies such as the modern welfare state. These different forms of democracy have become even more visible since the end of the Cold War and the entering into a supposedly ‘new’ era of globalization. Consequently, the relationship between democracy and human rights has intensified over the years, and one needs to ask the question whether HR necessarily require a democratic government and vice versa. Henry Steiner examines in 1988 the right to political participation, as stated in Article 25 of the ICCPR and Article 21 of the UDHR. He points out the lack of specificity in these articles, due to the by now well-known fact that a more detailed norm would have put “at risk the goal of achieving broad support for the human rights instruments as a whole.” (891) This vagueness can be found in the differentiation between the ‘elections’ and ‘take part’ clauses. While the ‘elections’ clause is fairly well defined and violations are ‘measurable’ (e.g. torture), the ‘take part’ clause is vague and thus leaves room for wide array of interpretations. Furthermore, he points out that electoral participation is seen by some as no longer sufficient in order to realize the democratic ideals; a more continual ‘taking part’ in politics is needed, as opposed to the periodic, one-time majority ‘elections.’ One form of greater political participation would be the decentralization of authority and greater involvement of citizens on a local level with the ultimate goal of ‘self-government’ and ‘self-realization.’ Consequently, he proposes that the right to political participation should be looked upon as a programmatic ‘positive’ right similar to the notion of social and economic rights. (p.899) He concludes by stressing the dormant potential towards a wider practice of political participation contained within the article, such as was we have seen through changing interpretations of the US Constitution and its Equal Protection Clause.

(3) Considering Steiner’s notion of a decentralized state based on popular local participation, what do you think the effect of this increase in ‘taking part’ on a local scale would mean for the human rights movements on a national or global scale?

KJ, SK. Group 9

This section opens with a detailed account of the Lustig- Prean and Beckett case that came before the European Court of Human Rights.

These two British nationals complained that investigations into their homosexuality their discharge from the Royal Navy on the sole ground that they are homosexual violated Article 8 of the European convention.
Article 8 reads:

1) Everyone has the right to respect for his private life…

2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security…for the prevention of disorder.

Lustig-Prean had been working in the Royal navy since 1982 and through various recommendations and evaluations were promoted to lieutenant commander. Early in 1994, the Royal Navy Special Investigation Branch had anonymously been given an allegation of his homosexuality. In December of the same year, Lustig-Prean was discharged on grounds of his sexual orientation.

A homosexuality Policy Assessment Team( HPAT) was established by the Ministry of defense to make an internal assessment of the armed forces policy. It was considered that any problems would lie in the difficulties which integration of declared homosexuals would pose to the military system which was largely staffed by heterosexuals. The assessment centered around the notion “that it was considered well established that the presence of known or strongly suspected homosexuals in the armed forces would produce certain behavioral and emotional responses and problems which would affect the morale and in turn significantly and negatively affect the fighting power of the armed forces.”

The matter was debated in the House of Commons and the majority rejected any change to the existing policy. ( 188 votes to 120)

Taking into consideration article 8, the Court could consider the investigation into the private lives of these two officials in the Royal navy justified if the second paragraph’s inferences of “in accordance with the law” and “ necessary in a democratic society” could be disputed.

The Government emphasized that this was indeed a special case as it was ultimately linked to the nation’s security. While not denying the member of the armed forces the right to the convention’s protection they claimed that stricter rules applied in this special case of national security. Furthermore, the government’s core argument in support of the policy was that the presence of open or suspected homosexuals in the armed forces would have a substantial or negative effect on morale and on the fighting power and effectiveness of the armed forces.
The court of the other hand noted the lack of concrete evidence to substantiate the alleged damage to morale and fighting power that any change in policy would entail. The Court found that neither the investigation conducted into the applicants sexual orientation, nor their discharge on the grounds of their homosexuality were justified under article 8 section 2.

Comment on blasphemy cases.

This section evaluates the issues of conflicts between the rights of freedom of expression found in Article 10 and the rights freedom of religion found in Article 9. The cases of Otto-Preminger-Institut v. Austria and Wingrove v. United Kingdom are used to illustrate the problems that arise. In both cases films were made that were considered religiously offensive by the state portraying biblical characters malign and sultry. In the first case the film was seized and forfeited by the state under claims that it infringed upon the rights of others to freedom of religion by disrespecting other’s religious feelings. The creators of the film argued that their rights to freedom of expression had been violated by the state. Similarly, the director of the other film in the second case claimed that his rights to freedom of expression had also been violated by the United Kingdom when they would not grant him a distribution certificate for his video. In both cases the Court decided that there was no violation of article 10 due to the fact that the states actions were merited and “necessary in a democratic society”. (note that in the first case three judges dissented due to the efforts of the association that created the film to prevent offence to viewers)

The margin of Appreciation:
“One analysis of the European court asserts that this concept lies at the heart of virtually all major cases.” Definitions of this concept and its impact of court decision varies.

The margin of appreciation as described by Paul Mahoney an interpretation tool that is needed to draw the line between what is properly a matter for each community to decide at a local level and what is so fundamental that it entails the same requirement for all countries whatever the variations in tradition and culture

Another view, by Franz Matscher is that the theory of the margin or appreciation is the expression of a realistic judicial self-restraint.
Questions:

1)Taking into consideration the special context of living conditions of Royal Navy members, should there be an exception of this type of discrimination based on sexual orientation. ( note comments made by Judge Loucdaides) pg 831.

2) If the Royal Navy was not allowed to discriminated based sexual orientation, and thus allowed homosexuals to be in the navy, is making special provisions as they do for women an option? How would implementing this plan of action be problematic?

3) Is the margin of appreciation a confusing concept that does not necessarily add to the court’s decision? Would it be better if the European court handled issues based on whether state-imposed limitations on the right of freedom can be viewed as “necessary in a democratic society, or is there a needed space for this concept?

Monday, October 27. Group 8: AT, AW, Yongho Kim
Response to the European Convention and the Case of Homosexuality

The European Convention for the Protection of Human Rights and Fundamental Freedoms System constitutes a model and a standard of its own in terms of effectiveness in enforcing Human Rights among its members. The Convention was signed in 1950 and entered into force in 1953. It gives the de facto unity between European members and the “common heritage of political traditions” as reasons for which a universal and effective enforcement of human rights is possible through the Convention. (1423)

Adequacy of a Regional System

The Convention is a place of convergence of several sources of tension in the international human rights movement. The UN was not fond of a competing organization, at least while the UN lacked a comparable treaty on Human Rights (ICCPR and ICESCR). Eastern European states are strongly opposed to the creation of regional systems on the basis that human rights cannot be “regionalized”, applied differently in distinct areas of the world, for it would betray the notion of universal human rights, and because the creation of an organization already being overseen by another – the UN Human Rights Commission – would create problems of consistency and inadequate use of financial resources (783). Western European states argue that a regional enterprise takes away energy from the two global covenants of higher importance.

Claude reflects in the issue pointing out that each problem should be considered to determine if it belongs to a regional or a global realm, but also warns that no single regional human rights issue may escape global impact. He also shows the sensible issue of delineating states into definite regional categories, which has the potential to surpass its purely administrative purpose to hold economic nuances in the geopolitical configuration of the region. The most pressing warning, however, is that regional states may closely collaborate to systematically ignore some specific human rights issue. (782) He concludes indicating that a global organization is always in the best position to mediate international conflicts and that, according to the UN Charter, the “United Nations should be supreme.”

Institutional Enforcement

Three regional organizations hold relationships with the monitoring and enforcement of the Convention. (789) The Council of Europe is the creator of the Convention and upholds democracy, the rule of law and human rights; states wishing to enjoy trade benefits through the European Union normally join the Council of Europe first. The European Union, which can be historically traced back to another economic treaty in 1952, has developed into a comprehensive political and economic unit which encompasses the abiding of human rights as one of its side concerns. The Organization for Security and Co-operation in Europe (OSCE) is a political organization created in the midst of cold war (1975) as a result of negotiations between the Soviet Union and the NATO bloc; its highlight is the High Commissioner on National Minorities who works on “issues of ethnic tensions that threaten peace and stability”. (793)

Section II of the Convention (Art. 19-51) establishes the European Court of Human Rights, which oversees and enforces cases of violations of human rights. ICCPR HRC and the Inter-American Court often refer to decisions of the European Court (808) and the Court itself recalls its own decisions in justifying rulings, indicating a high degree of authority enjoyed by the European Court.(810) The strongest support for the Convention comes from its binding force. Article 46, Paragraph 1 (not 53, as in p.809) states that “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” (1431). Additionally, the Convention fashions the highest authority in matters of human rights opinions, a highly developed judiciary, and the implicit benefit of economic and political integration as incentive.

Questions:

1. What are the overlapping (can they work hand in hand on a functional basis) and potentially conflicting (do they go against each other) areas between the national, regional and global legal systems?
2. If many Eastern European countries sign onto the ECHR as a ‘homework’ for joining the EU, what other incentives can be utilized in other regions of the world where the economic/ political motives are not applicable?

The issue of morals and homosexuality

Two related rulings throw light into the judicial proceedings of the European Court. One is the case of Handyside, in which the Court supported the decision of the UK Magistrate’s Court in censoring “The Little Red Schoolbook”, a reference book for children with liberally permissive contents on matters of sexual behavior, contraception and prevention of venereal diseases. Handyside claimed a breach of the right to Freedom of Expression (Art.10), to which the UK replied that it would “corrupt and deprave” children, appealing the protection of morals stated in Paragraph 2 of the same article. The European Court stated that it was not possible to find “a uniform European conception of morals”, and that therefore it was up to the state to settle the issue, bringing up the notion of “margin of appreciation”, an judicial space in which the state was to exercise discretion. (812)

The next case, Norris v. Ireland, has been presented along with the U.S. Supreme Court’s ruling on another similar case (Bowers v. Hardwick), and deserves close inspection.

Norris v. Ireland United States
Antecedent Ireland is party to the European Convention. Hardwick was arrested immediately after engaging in oral sex act by a surveilling police.
Relevant local legislation 1. Person Act (1861) sec.62: indecent assault upon a male person… subject to prison sentence not exceeding ten years
2. Criminal Law Amendment Act (1885) sec.11: act of gross indecency with another male… imprisonment not exceeding two years.
3. Constitution Art.29(6): no international agreement shall be part of the domestic law 1. Georgia statute: “any sex act involving the sex organs of one person and the mouth or anus of another” is a crime of sodomy.
2. US Constitution, Amendment 14: sec.1. …No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Accusation The law against homosexuality leads to: 1. Depression because of likely criminal persecution upon overt expression of sexuality. 2. Fear of prosecution. 3. Laws are no in accordance to the European Convention 1. Statute condemning oral or anal sex act is unconstitutional based on Due Process clause of the 14th amendment. (Prior decisions related to procreation, family and abortion relied on an implicit right of privacy)
Local ruling High Court: dismissed, although depression is possible. Accuser appealed directly to Supreme Court.

Supreme court ruling & reasons 1. Argument for European Convention rejected: Laws do not need to be in accordance. (Const.29)

2. Christian nature of Irish state is consistent with lack of privacy encompassing homosexuality, which is:

a. is against Christian teachings and nature. (moral) b. can lead to depression, despair and suicide. (psycho-clinical) c. has resulted in venereal diseases. (public health) 1. Constitution should not confer rights to homosexuals when many States are already involved in illegalizing it: a. Family and homosexual activity are unrelated. b. When the 14th Amendment was ratified, 86% of U.S. states had criminal sodomy laws. (Thus 14th Amendment was not understood as upholding homosexuality.) c. Law is based in morality. d. Court does not have time to bother with new interpretations of existing laws. (Justice White)
2. Traditions of western civilization, Christianity, and morals all have historically interfered with homosexuality. (Justice Burger)
Other legal recourse 1. European Convention Art.8. (1) Everyone has the right to respect to his private and family life … (2) except such as is in accordance with the law and is necessary in a democratic society with interests of national security, public safety or economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or …rights and freedoms of others.
2. EHRC ruling on Dudgeon Case (1981) Apparently no other legal recourse.

Reference – South African Constitution (1996) Art.9 (3): The State may not unfairly discriminate directly or indirectly … race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Support for Accusation European Court: 1. interference is in accordance with [local] law, but is not enough of a basis since there has not been a public demand for enforcement of anti-homosexual law. (39,40,41,46) 2. A similar case previously ruled in favor of private sexual practice in Dudgeon. (44) 3. The issue deals with a highly intimate portion of private life, thus arguments for interfering should be serious; arguments based merely in morals are not sufficient. (46) 1. Dissenting opinions (Justice Blackmun, Brennan, Marshall and Stevens): 1. Philosophy underlying the U.S. constitution is not grounded in morals, but in the interest of the individual; and sexuality is a matter of individual bonds. 2. A legislation failing to justify itself on non-religious grounds is either illegitimate or non-secular. 3. The public realm is not affected when homosexuality is practiced in private space.
2. The government should not have been able to know of Hardwick engaging in oral sex act in the first place. (Tribe)

Questions:

1. Is a “European (or other regional) moral system” impossible to define? If yes, is it conducive to giving the state ‘margin of appreciation’ ?

CH, JM. Discussion Group 7

What kinds of complaints are brought before the ICCPR? How does it differ from other treaty regimes?

One of the components of the ICCPR Human Rights Committee is an optional protocol (ratified by 95 of the 144 states as of March 2000), with a critical provision stating that communications must be ‘from individuals…who claim to be victims of a violation’ by a state party to the Protocol ‘of any rights set forth in the Covenant’. The Committee then evaluates these individual communications, granted that the matter is ‘not being examined under another procedure of international investigation or settlement’, in closed meetings that take all written information available into account. These proceedings are a) meant to be distinct from any current judicial proceedings in the state where the dispute originated, b) do not need to address systematic violations of human rights, c) are written only, d) are closed to the public, and e) the ‘views’ agreed upon, which are ultimately made available to each party involved, are not binding.

While the Committee often comes to the conclusion that specific human rights have been violated, and sometimes provides recommendations to the parties committing violations, the Committee has no binding legal jurisdiction. And while the Committee urges the State party to submit ‘information about the measures taken to give effect to the Committee’s view’ within ninety days after the ‘view’ is disclosed, the Protocol does not enforce this wish. Only about thirty percent of the replies received are considered satisfactory, and many states do not even submit information. Therefore, the case can be considered closed as soon as the report has been forwarded to the parties. The Committee also faces an increasing number of caseloads (due to rising public awareness of the procedure and more state parties involved) and dwindling resources. Thus, the committee can unfortunately only formulate about thirty ‘views’ per year.

Does the Committee seem to be effective? Some things to consider: 1) The fact that the concentration of complaints among states seems paradoxical, since aside from Uruguay and Jamaica (which comprise half of the cases about which the Committee submitted ‘views’) the states that the Committee is examining most often are also the states whose citizens seem to enjoy freedom under the rule of law and the protection of human rights. This discrepancy may be attributed to a citizen’s fear to submit information to the committee, a general lack of awareness of the existence of the Committee in some states, insufficient resources (a citizen in some states may not be able to contact or pay for a lawyer), or perhaps because the person thinks that submitting a report to the ICCPR Committee would be useless given the state of the government in which he/she lives. 2) The fact that some decisions are made by a process of consensus (which can maintain a cooperative approach and anonymity of decision, but can also limit and undermine separate opinions). 3) The fact that the monitoring of human rights violations through the Protocol becomes a secondary function, and that therefore a better alternative may be to build and strengthen regional complaints systems. 4) The nature of the Committee as a nonbinding international organization often means that the Committee’s desires are not meant. Some states, such as Sierra Leone and the United States (in the Breard case) have not responded to requests of the Committee, by not postpone sentences of capital punishment.

Many issues have arisen as to how the Committee should function. The second section details several of these issues of procedure. One of these concerns is centered on the issue of hate speech and the difficult choice between the right to freedom of speech and the right to not be threatened by this hate speech. This issue was brought up in the case of a Danish reporter who did a television program on white supremacist groups that included an interview with several members of an organization that expounded these views. The much-edited interview played on TV, and inspired wrath in the groups attacked by the views that were expressed. Does the media have the right to report on offensive groups and ideas or should it edit out hateful content? Is there a middle ground (i.e. a statement saying that these views are not socially acceptable or valid)? Does this middle ground take away from the media’s ability to be unbiased and non-judgmental? A case was also made that hate speech in the media is dangerous and should not be carefully guarded against by looking at Rwandan propaganda efforts by the media during the Rwandan genocide. This argument stated that the Rwandan media’s efforts led peasant Hutus to slaughter Tutsis. Does the extreme power and control of the expression of opinion possessed by the media make more stringent controls on hate speech necessary?

A second issue raised is the issue of the committee’s ability to challenge standards between different countries. The conflict portrayed was between the governments of the U.S. and Canada. Canada was asked by the U.S. to extradite a man who had committed a series of murders in California so that he could be tried and, if found guilty, possibly be put to death in the gas chamber. Canada does not have the institution of capital punishment, but interpreted the ICCPR as saying that unless death by gas asphyxiation had been declared a human rights offense by the international community, it was okay to extradite the man. The man challenged this choice, claiming that gas asphyxiation was a cruel form of capital punishment, so Canada could not extradite him. This raises issues of the ability of the committee to enforce standards on a very precise and contentious issue within various cultural and legal frameworks. Should the committee be allowed to decide what constitutes a humane form of capital punishment in a country that has democratically established criteria for what is humane and what is inhumane? Should an authoritarian-style government be treated differently?

The second section of the reading concludes with an opinion about the proper role of the Committee. The authors argue that the most important role for the committee is to provide an area of dialogue for the various actors in the human rights system rather than actually impose judgments on certain cases. To this end, the authors argue that the Committee’s procedures should be more open, with accessible, easy-to-read decisions and a discretionary jurisdiction (similar to the U.S. Supreme Court) rather than a mandatory jurisdiction. They feel this would allow the court to do a better job of solving the more contentious issues rather than focusing on individual cases. This raises a few simple questions. What should the role of the Committee be? Is a mandatory jurisdiction or discretionary jurisdiction better?

In addition to the ICCPR Committee, five other treaty bodies have been formed to implement the treaty or monitor state conduct. They are the Committee on Economic, Social and Cultural Rights, The Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, and the Committee on the Rights of the Child.
Primary activity is the consideration of states reports (many of these treaties function similarly, with similar rules to the ICCPR treaty)

The third section of the reading deals with the reporting and complaints structures of the various international human rights treaties. One of the major forms of this is the states’ reports. States have to file reports within the first two years of becoming party to a treaty and then every 5 years after that. These reports have caused certain problems to arise, which have effected certain reforms. One such reform is the practice of allowing states to send representatives to work with the Committee in processing the report. A second is the procedure of examining states who don’t file reports to make sure that the treaties are being followed. A third reform is the growing NGO involvement in the process, as they attempt to monitor governments. However, certain problems remain pressing to this day. For example, Non-reporting is still rampant, as is the practice of superficial reporting. Countries have also increasingly had problems with the many treaty bodies, finding it difficult to satisfy the many different criteria of each treaty body. Some possible solutions to this include reducing the number of treaty committees, filing a single report to all committees or breaking up the report process into individual reporting on specific issues. Are there any other solutions to these problems?

A second institution is that of on-site visits. The Convention against Torture provides a way in which the committee can ask for reports or even visit a country on a specific issue that has raised some concern outside of the normal report schedule. Other treaties include similar provisions for a more intrusive monitoring of participating countries. Do these visits conflict with national sovereignty? How so?

A third sections deals with the outdated practice of interstate complaints. This was originally intended to allow states to file complaints against other states that violated international norms. However, this process has never been used, and thus is not an important piece of the international human rights reporting procedures.

The reading also talks about individual complaints against a country. This allows individuals within countries a way to ensure that states do not break rules set by treaties. These complaints play an important part in ensuring that countries do not secretly break rules because individual citizens can make the international community aware of these violations.

CH, HM, AP. Group 6 Response

The UN currently has 6 treaty organs, which are distinguished from Charter organs in that they are not created under the UN charter, but are mandated by the 6 universal human rights treaties.

The ICCPR Human Rights Committee is a treaty organ created by Articles 28-45 of the International Covenant on Civil and Political Rights (1976). It has 3 dominant functions: 1. States submit reports to the ICCPR Committee on measures taken and progress made in meeting the rights stipulated by the Covenant, 2. The Committee must ‘transmit such general comments as it may consider appropriate’ back to these states, 3. The Committee is also authorized to receive communications from individuals claiming to be victims of violations by state parties, and to forward its views about these communications to the individuals and the states concerned.
The functions outlined for the Committee in the ICCPR Covenant took a long time to agree upon, particularly in light of the Cold War ideological conflicts and debates about protecting state sovereignty. The result is a compromise between those States who favored strong international measures and those who emphasized the primacy of national sovereignty, and therefore many issues about the functioning of the Committee were left unresolved by Covenant. Some recent developments in the Committee’s approach to reports are that the Committee may now request certain states to issue ‘emergency’ reports about a newly developed situations (eg Iraq, Yugoslavia), it now supports the suggestion that human rights bodies be able to bring violations directly to the attention of the Security Council, and finally, it may be possible for the Committee to send a ‘mission’ to certain states in cases where the Committee was unable to obtain required information.

The Committee is composed of 18 members, who must have ‘high moral character and recognized competence in the field of human rights’, and who represent an equitable geographical distribution. Most have some form of legal experience, and they are elected to serve in their personal capacity as experts, as opposed to as state ambassadors. The Committee meets 3 times a year, for 3 weeks each time. Most meetings are public, however only a few outsiders and representatives of NGOs tend to come. Decisions taken by the Committee should be by majority vote, but all decisions to date have actually been taken by consensus.

Two questions arise as a consequence of the structure of the Committee. First is the issue of to what extent the ‘experts’ really act independently of their government’s interests, considering that some come from authoritarian, single-party states, and most must continue to hold part-time jobs, often for their governments. Second, does the practice of decision by consensus cause undue compromise, blunting of positions and failure to take bold steps. Another more pressing problem is that of the reports: They are supposed to be presented by states every five years, to be prepared following Committee guidelines. However, the greatest weakness of the system, according to Thomas Buergenthal, is the failure of certain states to submit their reports on time. Furthermore, if all the states did submit their reports, the Committee would not have time to process them during their 3 yearly meetings. What are the benefits and liabilities of reporting systems?

The Concluding Observations of the Committee examine positive aspects, factors and difficulties affecting implementation of the Covenant, and principal areas of concern and recommendations for each country. In particular, the chapter examines Chile, Iraq, Israel, Japan, Poland, Senegal, Sudan and the United States of America, wherein it praises states which have eliminated the death penalty, and disapproves states which criminalize abortions and homosexual relations, discriminate against groups on the basis of religion, gender or ethnicity, operate under a government that lacks transparency and accountability, or permit torture, death penalty and police brutality.

What legal action can be taken to pressure states to follow recommendations? How much authority does the Committee hold? Despite sanctions, the committee expects Iraq to implement obligations under the Covenant, but Are there circumstances where might a state be excused from such obligations because of sanctions? If so, what other measures could be taken? States like the U.S. and Japan legally forbid discrimination but, in practice, gender and racial inequalities are very prevalent. The Covenant has only vague recommendations of “eliminating discriminatory attitudes.” What steps, beyond legal action, can be taken to eliminate discrimination, and is the state accountable for this?

Article 40 of the ICCPR states under section 4 that the Committee shall study states reports and “transmit its reports, and such general comments as it may consider appropriate, to the States Parties” (1389). This vague wording allows for various understandings of the purposes of the General Comments, and the Comments have so far taken on two distinct types. The first has the intention of chastising vague reports and outlining proper ways to report state’s steps towards fulfilling the requirements of the ICCPR. The second is concerned with clarifying the meanings of certain articles and providing detailed interpretations of the types of rights involved and corresponding government responsibilities. In an extreme case, a General Comment attempted to create a new article in the bold statement, advocating, “The production, testing, possession, deployment, and use of nuclear weapons should be prohibited and recognized as crimes against humanity” (735). It is obvious that General Comments are more specifically prescriptive than the original covenant. In this way the comments attempt to remedy the ambiguous nature of the ICCPR and lay down officially sanctioned interpretations and requirements. Do you feel that the more explicit nature of the Comments is a reasonable and effective method for increasing accountability? Do the Comments overstep their boundaries?

AG, RR, EO.

Thematic Mechanisms

Thematic Mechanisms have been in use since 1980. They were originally created in response to disappearances in Argentina. In order to preserve national integrity, avoid political embarrassment, and protect economic issues, they were created on an international level as opposed to an individual country level. The Commission used a ‘thematic’ mechanism to avoid a “country-specific inquiry”. They are only allowed to make ‘opinions’ not decisions and are allowed to make recommendations to the Commission. Different techniques include requests to governments for information that is case specific, and that the government take “immediate action” to remedy the situation, as well as on-site visits. How do thematic mechanisms interact with 1503 and 1235 procedures?

United Nations Security Council

The UNSC is comprised of 15 member states, 5 permanent members (US, UK, France, Russia, and China) and 10 rotating members elected by the GA every two years. Each member has one vote and the 5 permanent members have a “veto-power”. In order for a resolution or a substantive decision to be passed, it must have 9 affirmatives and all 5 members states must vote affirmative, if one abstains or dissents, that is the veto power and the resolution is not passed. The primary responsibility of the UNSC is to maintain international peace and security under the collective security system provided for in the UN Charter. They are empowered to investigate disputes and make recommendations regarding appropriate procedures such as sanctions or military intervention. The Security Council is arguably the most powerful UN organ with a “monopoly over the use of force”.

SC Humanitarian Intervention

Humanitarian intervention is the use of force justified by reference to an overriding humanitarian emergency, ranging from small scale relief operations to long-term military engagement. Its use requires consensus among the members of the Security Council, and within the discourse of intervention, the question of protecting sovereignty (from intervention) is raised time and time again by those who would seek to delay or to stop intervention. The Security Council thereby intervenes within a State in order to stop or prevent gross violations of human rights. Secondly, human rights themselves are used as a justification for intervention itself. Nonetheless, how do we justify intervening in the domestic affairs of a sovereign State when scholars like Michael Ignatieff argue that the sovereignty of the State is “the best guarantee of human rights that there is” (pg. 657).

Sanctions range from comprehensive embargos, to a more limited embargoes which freeze assets and halt arms trade. Multilateral sanctions would include the economic embargo against Iraq (prior to the War), freezing of assets of the Taliban, and unilateral US sanctions against Cuba and North Korea. They can be seen as either a violation of human rights or a form of humanitarian intervention. Sanctions almost always impact the rights outlined in the ICESCR by diminishing the ability of the impacted State to provide for their populations. If we follow Ignatieff’s argument, then how do we justify the imposition of economic sanctions against any State?

In the response to Kofi Annan’s speech on the events in Kosovo (pgs. 658 – 659), we are faced with the notion that the common interest so necessary for humanitarian intervention can itself be questioned. Who defines the common interest? Who should defend the common interest? How should the common interest be defended? With the events described in Kosovo, and the most recent events in Iraq, can the common interest be defined solely by any one State power, or a coalition of State powers, or is there some other mechanism by which the common interest can be defined?

JH, NE, RN. Group 4

The reading begins by discussing the problematic topic of enforcement in the realm of human rights. Serious questions are raised about the feasibility of consistent enforcement of human rights norms. It is relatively clear that some international enforcement is inevitable, regardless of it’s agreed upon desirability. However, the reading asserts that the degree of enforcement will vary depending on countries’ perspective of world order. Debates about state sovereignty and the effectiveness of local versus international implementation of rights make it difficult to establish a concrete method of enforcement. Only the Security Council, as per the UN charter, has the power to enforce its decisions. Status quo methods of enforcing international law include economic or other sanctions, and armed force. The international attempt to liberate ethnic minorities in Kosovo and East Timor highlights the use of force as a means of enforcing human rights. When small countries are in crisis, it seems that the global community can functionally enforce international law. In the current system are powerful nations accountable for their actions? Is there an underlying assumption in the structure of the UN that egregious violations of international law do not occur, or cannot be remedied in the ‘developed’ world?

The second part of the reading discusses the many institutions that make up the United Nations. The UN Charter in its text mandates the existence of specific enforcement organs. Treaties can also form organs to monitor the compliance of party states. Charter-organs are specifically discussed in the reading. The International Court of Justice, the Economic and Social Council, the Commission of the Status of Women, and the Commission of Human Rights along with the Sub-Commission on the Promotion and Protection of Human Right are all examples of charter-organs. These organs presumably, have the ability to promote and enforce the protection of human rights, because they represent the collective views of the General Assembly. The Assembly is composed of all UN member states, each of which has one vote regardless of population, wealth or other factors (Steiner and Alston 600). The Secretary-General leads the Secretariat, and has the principal authority over human rights followed closely by the High Commissioner on Human Rights.

The U.N. Commission uses three different procedures to address violations:

a) The 1503 Procedure: A group that seeks to examine communications pertaining to possible human rights violations. Communications must follow the U.N. charter and the Universal Declaration of Human Rights. It prioritizes a series of violations over individual incidents. The entire procedures are maintained in the strictest of confidence between the committee and the relevant parties. This leads to the question of whether this impedes the work of the commission in gathering relevant information. Also, if the public is not aware of the accusations being brought against the country, how does it affect accountability?
b) The 1235 Procedure: The Commission makes a thorough study of situations which reveal a consistent pattern of gross violations of human rights. This is done in a public debate and also involves investigation of particular complaints. Is this procedure more fair than 1503?
c) UN special rapporteurs that engage in specific fact finding in countries accused of human rights violations. The overall quality of the reports has been strong.

The last section describes the examination of Chinese human rights violations. It seems that through lobbying and bargaining, China has avoided a thorough investigation and accountability for its actions. Resolutions urging China to improve its human rights practices and criticism of ongoing violations of international standards floundered because of a lack of support from nations who wished to maintain cordial economic relationships. What justifies the prioritization of trade and economic gains over Human Rights abuses? The Chinese ambassador argued that because Western nations were also guilty of human rights violations, their accusations are unjustified. The question then becomes, does one country’s violations exempt it from the possibility for holding others accountable for similar violations?

SP, JP. October 8: Sovereignty

This section explores the development and role of international organizations, looking at the more developed and complex institutional arrangements between states than the treaty committees we have seen so far.

It is argued that international organizations have become important actors in the international system of sovereign states and have changed the nature of international law and life. These international organizations have been created by states, in order to ensure the respect of international norms such as Human Rights. Independently, states have no incentive to act against violators of Human Rights, these organization thus put more pressure on violators and help enforce international norms. Yet, this creates tensions: states create institutions which to a certain degree limit their scope of action, and influence their behavior.

Inis Claude argues that international organizations have emerged as a response to the modern state system and are a necessary part of the system. He talks about constitutional problems (problems caused by the establishment of the organizations) and substantive problems (the reasons why these organizations are established) and argues that these two classes cannot be divided, and states should balance their concern for these types of problems.

Ernst Haas brings up the issue of power imbalances within international organizations, and argues that international organizations do not have a substantial influence on foreign policy.

David Kennedy investigates the relationship between states and institutions, looking at historical developments such as the change in voting systems at the heart of international organizations. These changes, even though they keep bringing up similar arguments, show a maturity of the system.

There has been a cycle of enthusiasm and hopelessness regarding international organizations, the book presents an article comparing international human rights law to international environmental law. It is argued that environmental law is more flexible and dependent on cooperation; it also is directed towards the private rather than the public. Finally, Steiner critiques the basic structure of many Human Rights institutions, arguing that they do not correspond to state interests and thus are problematic.

Section B of the reading deals with the intersection between issues of state sovereignty and the human rights regime. First, it addresses definitions of the term sovereignty, essentially determining that while sovereignty is generally agreed to signify the independence and freedom of action of a state, in practice it has no clearly ascertainable meaning. Thus Koskenniemi argues that this lack of a fixed meaning makes it impossible to define the full extent of a state’s legitimate sphere of action or the areas in which restrictions on state action would be allowed. Next, Stephen Krasner expands this discussion of definitions by identifying four distinct uses the term sovereignty: domestic, interdependence, international legal, and Westphalian. Domestic sovereignty refers to the organization and effectiveness of political authority. Interdependence sovereignty deals with the individual state’s ability or inability to control the movement of commerce, people, and ideas across borders. While globalization is often said to entail a loss of state sovereignty, Krasner asserts that this is a loss only of interdependence sovereignty, or control, and not a problem of authority. The third category of sovereignty, international legal sovereignty, is defined as a state’s status in the international political system. It is mainly an issue of recognition and perceived authority, and does not necessarily correspond to the state’s ability to control either domestic or cross-border developments. Finally, Krasner identifies Westphalian sovereignty as dealing primarily with a state’s territoriality and freedom from the influence of external actors in structures of domestic authority. Under this conceptualization, a state’s sovereignty is violated anytime that an external force has coercive influence in domestic affairs, even if it was invited to do so, while international legal sovereignty can be violated only by intervention.

Richard Falk argues for a concept of “responsible sovereignty”, which views states not just as bearers of rights but also as the subjects of obligations, which may be legitimately enforced both by their own citizens and by external bodies. Both he and Margaret Keck and Kathryn Sikkink point out that state sovereignty is seen by many, especially in the post-colonial world, as an essential protection rather than simply a threat to human rights. These views complicate an investigation of the relationship between state sovereignty and human rights.

The next readings focus on ongoing political debates about state sovereignty within the United Nations in connection with UN peacekeeping activities. First, a number of views by government leaders are expressed on this topic. United Nations Secretary-General Kofi Annan saw a trend towards an understanding of the state as a servant of the people, along with an enhanced consciousness of individual sovereignty. Because of this, he believed that we must think more about how the UN will respond to political and humanitarian crises. Abdelaziz Bouteflika, the President of Algeria, raised important questions on where the line was to be drawn between the humanitarian, the political, and the economic, and questioned whether interference was valid only for weak or weakened States. Surin Pitsuwan, the Minister of Foreign Affairs commented on the emerging concept of “human security.” In a New York Times Article, Judith Miller discusses Kofi Annan’s view that the world can not let countries like Yugoslavia commit genocide and hide behind the UN charter that has traditionally protected national sovereignty, because the principle of sovereignty cannot provide “excuses for the inexcusable.” However, not all agree, as the Russian Foreign Minister states that “Human rights are no reason to interfere in the internal affairs of a state.” Finally, the last reading comments on how UN organs have systematically reduced the scope claimed for the domestic jurisdiction ‘defense.’ Although Article 2(7) states that nothing contained in the UN Charter can authorize the UN to intervene in matters that are essentially within the domestic jurisdiction of a State, this defense now rarely stands.

Discussion Questions:

1. Are international institutions necessary? What problems do unequal power balances present to these institutions?
2. According to Abi-Saab, the concept of state sovereignty arose in a particular historical context for a particular purpose. Is sovereignty still a valid concept in today’s circumstances? What purpose do assertions of state sovereignty serve today?
3. Which should be given priority: the protection of human rights or the principle of state sovereignty? At what threshold can state sovereignty be violated to protect human rights (if it can)? Who can decide?