International Bill of Human Rights

International Bill of HR The Universal Declaration of HR Background: WWII Background: WWII US plays a key role. US represented by Eleanor Roosevelt US plays a key role. US represented by Eleanor Roosevelt UN general Assembly is not a law-making body. At most it adopts treaties. UN general Assembly is not a law-making body. At most it adopts treaties. UDHR: Adopted by votes 48 in favor and 8 abstaining (Saudi Arabia, South Africa, Soviet Union and satellites). UN membership in 1948 = 56 states. UDHR: Adopted by votes 48 in favor and 8 abstaining (Saudi Arabia, South Africa, Soviet Union and satellites). UN membership in 1948 = 56 states.

International Bill of HR The Universal Declaration of HR Have a look at provisions… Have a look at provisions…

International Bill of HR The Universal Declaration of HR The UDHR is a declaration NOT a treaty. The UDHR is a declaration NOT a treaty. The UDHR is not binding: does it matter? Does it matter anymore? The UDHR is not binding: does it matter? Does it matter anymore? Important because for more almost 30 years (until entry into force of ICCPR and ICESCR) it was the only agreed upon document. Important because for more almost 30 years (until entry into force of ICCPR and ICESCR) it was the only agreed upon document.

International Bill of HR The HR Covenants Need to have a legally binding instrument. UDHR not binding Need to have a legally binding instrument. UDHR not binding Ideological split between civil, political and social cultural and economic rights (West vs. East) Ideological split between civil, political and social cultural and economic rights (West vs. East) Adoption in 1966 of 2 separate treaties ICCPR and ICESCR. Adoption in 1966 of 2 separate treaties ICCPR and ICESCR.

International Bill of HR ICCPR ICCPR adopted in 1966, entered into force in ICCPR adopted in 1966, entered into force in As of 8 May ratifications As of 8 May ratifications US ratified (8 June 1992) US ratified (8 June 1992) Absences: Cuba, Pakistan, Syria, Saudi Arabia Absences: Cuba, Pakistan, Syria, Saudi Arabia

International Bill of HR ICCPR Have a look at provisions… Have a look at provisions…

International Bill of HR ICCPR Any right in the ICCPR that is not in the UDHR? Any right in the ICCPR that is not in the UDHR? What rights are missing from ICCPR that are listed in the UDHR? What rights are missing from ICCPR that are listed in the UDHR? Any rights worded differently? Any rights worded differently? The ICCPR was negotiated between the late 1940s and early 1960s. If you were to negotiate it nowadays, what would be included in it? The ICCPR was negotiated between the late 1940s and early 1960s. If you were to negotiate it nowadays, what would be included in it?

International Bill of HR ICCPR Protocols Protocol 1: Right of direct access to the HR Committee Protocol 1: Right of direct access to the HR Committee 105 ratifications. Notable absences: US, China, India, United Kingdom, Brazil… 105 ratifications. Notable absences: US, China, India, United Kingdom, Brazil…

International Bill of HR ICCPR Protocols Protocol 2: Abolition of death penalty Protocol 2: Abolition of death penalty 57 ratifications. Notable absences: The US, Russia, France, Brazil, India 57 ratifications. Notable absences: The US, Russia, France, Brazil, India Note: many countries that countries that have abolished death penalty have not ratified the second optional protocol. This is because they might have ratified other treaties requiring the same. Note: many countries that countries that have abolished death penalty have not ratified the second optional protocol. This is because they might have ratified other treaties requiring the same.

International Bill of HR ICCPR The ICCPR is a treaty, hence rules on laws of treaties apply to it. Yet, it is a special treaty, a cornerstone of the international bill of human rights. The ICCPR is a treaty, hence rules on laws of treaties apply to it. Yet, it is a special treaty, a cornerstone of the international bill of human rights. Is the ICCPR codification of customary international law? Yes, no, partially. Is the ICCPR codification of customary international law? Yes, no, partially. What about protocol 1 and 2? What about protocol 1 and 2? Are interpretations of the rights of the ICCPR done by the HR Committee relevant in answering this questions? Are interpretations of the rights of the ICCPR done by the HR Committee relevant in answering this questions? Are interpretations of the HR Committee binding? Do they have effects erga omnes? Are interpretations of the HR Committee binding? Do they have effects erga omnes? Can states withdraw from the ICCPR? Can states withdraw from the ICCPR?

International Bill of HR ICESCR ICESCR adopted in 1966, entered into force in ICESCR adopted in 1966, entered into force in As of 8 May ratifications As of 8 May ratifications US has NOT ratified US has NOT ratified Other notable absences: Cuba, Pakistan, Saudi Arabia, South Africa Other notable absences: Cuba, Pakistan, Saudi Arabia, South Africa

International Bill of HR ICESCR Have a look at provisions… Have a look at provisions…

International Bill of HR ICESCR Any right in the ICESCR that is not in the UDHR? Any right in the ICESCR that is not in the UDHR? What rights are missing from ICESCR that are listed in the UDHR? What rights are missing from ICESCR that are listed in the UDHR? Any rights worded differently? Any rights worded differently? The ICESCR was negotiated between the late 1940s and early 1960s. If you were to negotiate it nowadays, what would be included in it? The ICESCR was negotiated between the late 1940s and early 1960s. If you were to negotiate it nowadays, what would be included in it?

International Bill of HR ICESCR The US has not ratified: why? The US has not ratified: why? Johnson presidency (D): votes in UN GA in favor of adopting the covenant Johnson presidency (D): votes in UN GA in favor of adopting the covenant Nixon and Ford (R): do not oppose nor push for ratification Nixon and Ford (R): do not oppose nor push for ratification Carter (D): signs and sends to Senate. Senate takes no action Carter (D): signs and sends to Senate. Senate takes no action Reagan and Bush I (R): oppose. Reagan and Bush I (R): oppose. Clinton (D): Opposes inclusion of references to ESC rights in other treaties and declarations. Signals intention of trying to submit again, but congress is opposed (R). Clinton (D): Opposes inclusion of references to ESC rights in other treaties and declarations. Signals intention of trying to submit again, but congress is opposed (R). Implementing the ICCESR would involve interference in the domestic, economic and political affairs of the states of the union. Implementing the ICCESR would involve interference in the domestic, economic and political affairs of the states of the union. It requires the creation of a welfare state. “Big government”. It requires the creation of a welfare state. “Big government”. Do you think the US should or should not ratify the ICESCR? Do you think the US should or should not ratify the ICESCR?

International Bill of HR ICESCR Implementation of rights listed in the ICESCR is not an absolute duty but a relative duty. It is relative to states’ available resources. Yet, ICESCR says “to the maximum of” available resources. (art. 2.1) Implementation of rights listed in the ICESCR is not an absolute duty but a relative duty. It is relative to states’ available resources. Yet, ICESCR says “to the maximum of” available resources. (art. 2.1) Can you say that, the ICESCR as it is worded, implies that states have also the duty to help poorer states to achieve the goals of the ICESCR? Or is the scope of the ICESCR limited only to states’ duties towards their own citizens? Can you say that, the ICESCR as it is worded, implies that states have also the duty to help poorer states to achieve the goals of the ICESCR? Or is the scope of the ICESCR limited only to states’ duties towards their own citizens? The obligation is one of progressive realization “with a view to achieving progressively”. (art. 2.1) (programmatic rights) The obligation is one of progressive realization “with a view to achieving progressively”. (art. 2.1) (programmatic rights) Are rights listed in the ICESCR only programmatic? All of them? Are there any rights in the ICCPR that are also programmatic? Are rights listed in the ICESCR only programmatic? All of them? Are there any rights in the ICCPR that are also programmatic? What is the value of a programmatic rights/duties? Are they good for anything? Any examples of programmatic rights/duties in the U.S. legal system? What is the value of a programmatic rights/duties? Are they good for anything? Any examples of programmatic rights/duties in the U.S. legal system?

International Bill of HR ICESCR DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998 (1989) DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998 (1989) Plaintiff sues under federal statute (42 U.S.C. § 1983) for denial of constitutional right. The right is Fourteenth Amendment (due process clause) “No State … shall deprive any person of life, liberty or property, without due process of law” Plaintiff sues under federal statute (42 U.S.C. § 1983) for denial of constitutional right. The right is Fourteenth Amendment (due process clause) “No State … shall deprive any person of life, liberty or property, without due process of law” 6-3 claim rejected because “The clause is phrased as a limitation of the State’s power to act, not as a guarantee of certain minimal levels of safety and security. Its language cannot be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm thorough other means.. No affirmative rights to governmental aid, even when this aid might be necessary to secure life, liberty or property interests of which the government itself may not deprive the individual…” 6-3 claim rejected because “The clause is phrased as a limitation of the State’s power to act, not as a guarantee of certain minimal levels of safety and security. Its language cannot be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm thorough other means.. No affirmative rights to governmental aid, even when this aid might be necessary to secure life, liberty or property interests of which the government itself may not deprive the individual…” Dissenting Justice Brennan “inaction can be every bit as abusive of power as action…oppression can result when a state undertakes a vital duty and then ignores it”. Dissenting Justice Brennan “inaction can be every bit as abusive of power as action…oppression can result when a state undertakes a vital duty and then ignores it”. How would you have voted if you were a Supreme Court justice? How would you have voted if you were a Supreme Court justice?

International Bill of HR ICESCR Think about the “Katrina catastrophe” and the spectacular failure of government, at all levels from the city all the way up to the White House, to adequately protect, help and rescue the citizens of New Orleans. What would have a positive ruling in the DeShaney case implied? Think about the “Katrina catastrophe” and the spectacular failure of government, at all levels from the city all the way up to the White House, to adequately protect, help and rescue the citizens of New Orleans. What would have a positive ruling in the DeShaney case implied?