HUMAN RIGHTS

Habib ullah Durrazai Baloch.

Basics.
There are several sources of human rights.

Bilateral agreements establishing substantive human rights.

Bilateral agreements establishing procedural human rights (how to enforce the substantive
rights).
Multilateral conventions establishing substantive human rights.
Multilateral conventions establishing procedural human rights.
Some provisions of these conventions and treaties (especially those which are fundamental
norms) are also customary international law. So even if a state isn’t a signatory to a certain
treaty it may still be obliged to abide by its provisions.

First look to see if there is a bilateral agreement. There may be diplomatic protection of
nationals, there may be human rights protections.
If that isn’t adequate, look to see if the states signed on to a multilateral convention that
deals with the rights at stake.

What you think people are entitled to is not necessarily the same as what international law
says people are entitled to.

When the government is involved in violence, torture, etc., rather than mere individual evils,
it is a higher level of evil.
It corrupts the whole state, by creating a bureaucracy to administer it and to inflict it.
Corrupts even innocent people.
The exact same evils committed by the Nazi state are still being done worldwide.

Human rights are not bestowed by individual states on their people.

States cannot dictate what human rights their people have and don’t have.
The Universal Declaration of Human Rights states that every human being is born with
rights. Nobody gives them to you.

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Also the International Covenant of Civil and Criminal Rights.
The rights derive from the dignity of the human person.
Law is what makes the difference between the despot’s whims and justice.

“Universal,” by the way, means “universal.”

Once, there was a time when countries could say “don’t impose your western ideals on us.”
But that was before practically everybody got together and agreed to these human rights.
Now if a country says “don’t impose your western morals on us,” you point to the Universal
Declaration of Human Rights and respond “you signed this beforehand. You helped write it.
These aren’t ‘western’ ideals, these are universal. So obey them.”
These rights have been articulated in convention after convention after convention, by
almost every country. Many states have been cajoled or compelled into agreeing to these
conventions, and there still remain a small handful of renegade states.

Not every bad thing is a violation of international law. You need to know whether a
particular evil is covered by customary international law, or by a bilateral/multilateral
agreement.
You also need to know what the law provides.

Some U.S. Mechanisms Related to Human Rights.

22 U.S.C. § 1732 — Release of U.S. Citizens Imprisoned in Foreign Countries.
When U.S. citizen is imprisoned abroad, the President (State Department) must demand
the reasons for that imprisonment.
If the reasons are unjust, he must request the release of the citizen.
If that demand is not met, then he should try to get him out, preferably by means other
than an act of war.
The President is only required, however, to inquire.
Often a single source of information is not enough.
America is not required to come to your aid.
We do it a lot anyway, but many other countries couldn’t care less about the fate of their
citizens abroad.
Some governments are notorious for not caring about the treatment of their citizens
abroad.
But the United States will at the very least inquire as to the reasons for your imprisonment.

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To sue for a remedy in a U.S. court for human rights violations, the best basis is the Alien
Tort Statute.
Oldie but goodie, but only applies to non-nationals, remember. Aliens hurting aliens.
You sue the torturer as an individual.
If you don’t know who the torturer was, you’re out of luck.
You cannot sue a foreign state in U.S. courts for human rights violations. The Foreign
Sovereign Immunities Act prevents that. There is no exception for torture, only for
commercial activities.

Torture Victim Protection Act.

Anybody can sue under this one. Citizens too.
The torturer is liable for civil damages.
Don’t forget about international agreements, which set further protections and rights.
The United States is party to a lot of bilateral agreements that do this.
Treaties of Friendship, of Navigation, and of Commerce are usually what establish certain
guaranteed rights and the enforcement procedures.
When you draft such a treaty, do make sure you include both substantive and procedural
rights.
Corporations really need such treaties, to protect their rights. Especially property rights.
Their property rights are often at risk in foreign countries.

Responsibility for Injury to Aliens.

Property rights have never really been codified in any human rights conventions. (Because
the world cannot agree on what are and are not property rights.)
So a corporation should get the United States to make an agreement with the foreign
country, ensuring the protection of your property rights.
Make sure this is a bilateral agreement between the two governments. Merely putting such
a clause in a contract between your company and the foreign state is not enough to protect
you.
It’s not an international agreement, recall, unless both parties are states.
Otherwise, you wind up suffering through the cold reality of litigating disputes in a foreign
court, and all the U.S. can do on your behalf is whine a bit.

Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States v. Italy) (I.C.J.
1989).

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Raytheon’s assets were seized by Italy. Raytheon now couldn’t pay off its creditors, and it
requested United States diplomatic protection.
It just so happened that there was a treaty between the United States and Italy
protecting the property rights of corporations doing business in these countries.
Procedural Point — Before you even go into the tribunal, you must show that you
have exhausted all local remedies.
Otherwise, your case is going to get thrown out of court. Not ripe enough.
A good lawyer will make sure that you did exhaust your remedies. Good lawyers know the
procedural requirements.
There are a couple of exceptions to this rule.
The burden is on the defendant state, however, to show that there were remedies that you
failed to employ.
You also must have made a good-faith effort to comply with the law.
Raytheon’s lawyers did attempt to litigate the matter in the local Italian courts. Of course,
the local jurists ruled against them, so they then went on to the international level.
They asked the United States to sue Italy on their behalf, for violating the agreement.
Italy claimed that local remedies had not been exhausted; Raytheon could have appealed, in
some arcane fashion. Raytheon responded that this was ludicrous. How many courts did
they have to look for?
The I.C.J. ruled that, once Raytheon made the attempt to use local remedies, the burden
was on Italy to show that there was another remedy available. And Italy did not do that to
the satisfaction of the court (it really was pretty arcane).
Claim of Finnish Shipowners (Finland v. Great Britain) (Arbitration 1934).
Ships, owned by Finnish nationals, were used by Great Britain during war. Some of the ships
were lost, and Great Britain never compensated the Finnish owners.
Finland, the state, sued in British courts and lost.
Then Finland took the claims to an independent sole arbitrator, claiming that the local
remedies had been exhausted.
Britain argued that arbitration was precluded, because Finland could have appealed. Finland
replied that an appeal would not be a true recourse, because the issue would no longer be an
issue of fact but of law. So an appeal would not be an effective remedy in itself.
The arbitrator held that there is no obligation to exhaust local remedies if, as here, they
would be ineffective or illusory.
This is still the rule. And it’s important, since the U.S. has the same legal system.
If your “opportunity to be heard” means you’ll be dead if you show up, then the local remedy
would be illusory, so you aren’t required to use it before going to the international courts.

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If the machinery simply doesn’t exist to handle your case, then local remedies would be
ineffective, so go international. You are exempt from the requirement to exhaust local
remedies.
If it would be pointless to use local remedies, then go international.
If the local courts say they don’t have jurisdiction, then go international.

The Calvo Doctrine (Latin American view on responsibility for injury to aliens).
Like much of the world, Latin American countries have a deep-seated feeling that
foreigners only have as many rights as locals.
So corporations are made to sign contracts where the corporation waives diplomatic
protection.
This is odd, as it is the corporation’s state, rather than the corporation, that has the right
to assert diplomatic protection.
So usually such provisions will not be given much weight by international tribunals.

However, when the corporation didn’t make good-faith efforts to obey local law, then the
international tribunal is likely to rule against the corporation.

Standing for Diplomatic Protection.

You need to be a national of the country asserting diplomatic protection.
Use the Nottebohm standard to determine whether one is a national or not. (Genuine
intent, etc.)

In pleadings for a human-rights case, you must attribute the violation to the state, not an
individual.
Any state official counts. His acts may be attributable to the state.

Was The State Involved?

For there to be a human-rights violation, the harm must have been inflicted by the state.
Getting mugged in an alley doesn’t count.
Government conduct frequently can hurt you without being considered a human-rights
violation. Taxes, bureaucratic nit wittery, currency devaluations, conduct reasonably
necessary in an emergency, etc.
However, even conduct that would not ordinarily be illegal will still be a violation if it
involves unreasonable discrimination.

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William T. Way Claim (United States v. Mexico) (General Claims Commission 1928).
A local Mexican sheriff issued a bad warrant, for the arrest of an American (warrant was
facially void under Mexican law for failure to state a charge). The bad warrant was based
on a personal grievance he had against the American, and directed the armed officers to
use “suitable” means to bring him in. The American was shot and killed during the arrest.
The United States sued Mexico on behalf of the American’s family.
Even this personal vendetta by the sheriff was considered conduct attributable to the
state. Even a lowly official is still an official.
Gross mistreatment in connection with arrest & imprisonment is not tolerated under
international law.
The United States always immediately accepts responsibility for the actions/inaction of
local officials, in order to maintain this precedent.

Substantive Bases of Responsibility.

Restatement (Third) § 711: State Responsibility for Injury to Nationals of Other States —
A state is responsible for injury to a national of another state caused by an official act or
omission that violates:
A human right that a state is obliged to respect for all persons subject to its authority.
A personal right that a state is obliged to respect for foreigners.
A right to property or another economic interest that a state must respect for any persons.

B.E. Chattin Claim (United States v. Mexico) (Claims Commission 1927) — An American
was subjected to a Mexican kangaroo court. He was seized without being notified of the
charges, neither his family nor anybody else was told of this, there was no habeas corpus, no
opportunity to confront his accuser, no opportunity to interview the witnesses against him,
no oaths were taken. He was given a 5-minute hearing (the court merely read the
paperwork), and was sentenced to two years in a Mexican prison. (He escaped after 11
months.)
International standards weren’t violated by any of this, however. Such standards didn’t
exist yet.
So this case held that certain proceedings had to be required:
Regularity of court proceedings.
Proper investigations.
Confrontation.
Informing the accused of all charges against him.
No undue delay.

Hearings in open court must be more than a mere formality.

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There was direct governmental responsibility for the injury to the American, so he was
awarded $5,000.
(The U.S. had claimed $50,000 on his behalf, but because he was able to escape the
damages were reduced.)

Before WWII, nobody could sue their own country for violations of human rights. Only
after Hitler’s Germany did the nations realize that there was a need for universal rights in
addition to diplomatic protection. The real full-blown recognition came with the Nuremburg
Charter.
The Nuremburg Charter was not the victors beating up on the losers. It was the result of
the nations of the world agreeing that certain acts are crimes against humanity, and cannot
be tolerated.
The definition of these crimes against humanity, enumerated in the Nuremburg Charter, are
what led to the creation of the U.N.

SUBSTANTIVE HUMAN RIGHTS.

U.N. Charter Article 55 — The U.N. shall promote:
Higher standards of living, full employment, and conditions of economic and social progress
and development.
Solutions of international economic, social, health, and related problems.
International cultural and educational cooperation.
Universal respect for, and observance of, human rights and fundamental freedoms for all,
without distinction as to race, sex, language, or religion.
Great, but that’s just a goal, not an obligation. Furthermore, it’s really vague.

This isn’t really a binding obligation.

Universal Declaration on Human Rights.

Merely a non-binding declaration when the U.N. passed it in 1948, over time this has
acquired the status of law.
Need to be specific about this. At first this was just a bunch of goals, not rights. They
only became legal rights over time.
There is a division between civil/political rights on the one hand, and
economic/social/cultural rights on the other hand.
Even today, the economic/social/cultural rights are still only goals. They are not obligations.
All we’re concerned with here, then, are the civil/political rights.
Civil & Political Rights.
Codified in the Covenant on Civil and Political Rights, to which almost every state is a
signatory.

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China, Singapore, and a couple others are conspicuously absent.
Two of the U.D.H.R. rights did not get codified:
Property rights (Art. 17).
Right to asylum in other countries, from persecution (Art. 14).
The civil/political rights no longer apply only to signatories of the U.D.H.R. They are not
customary norms of international law.
Rights apply to all human beings, without regard to race, sex, religion, language, place of
origin, property, etc.
Right to life, liberty & security of person.
No slavery or servitude.
No torture.
No cruel, inhuman, or degrading treatment or punishment.
Right to recognition everywhere as a person before the law.
Right to equal protection of the law, including equal protection against discrimination.
Right to effective remedy by competent tribunals for acts violating the fundamental rights
granted
by constitution or by law.
No arbitrary arrest, detention, or exile.
Right to a fair and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge against him.
Right of accused to be presumed innocent until proved guilt according to law, in a public trial
at which he has had all the guarantees necessary for his defense.
Cannot find you guilty for something that wasn’t a crime when you did it. Can’t impose
greater penalties than were applicable at the time you committed the offense.

No arbitrary interference with privacy, family, home, or correspondence.

No attacks upon honor and reputation, and Right to state protection against such attacks.
(The U.S. hasn’t gone along with this, because of 1st Amendment.)
Right to freedom of movement and residence anywhere in the state.
Rights to leave any country, including one’s own, and to return to one’s own country.
Right to a nationality.
No arbitrary deprivation of nationality, nor denial of the right to change nationality.
Right to marry and start a family without limitation due to race, nationality, or religion.
No marriage without free and full consent of the spouses.
Right to state protection of the family as the fundamental group unit of society.

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Right to free thought, conscience, and religion. This includes freedom to change religions,
and freedom either alone or with others, in public or private, to manifest one’s religion in
teaching, practice, worships, and observance.
Right to freedom of opinion and expression. This includes freedom to hold opinions without
interference, and to seek, receive, and impart information and ideas through any media and
regardless of frontiers.
Right to peaceful assembly and association.
Can’t compel someone to belong to an association.

Right to take part in the government of his country, directly or through freely-chosen
representatives.
Right to equal access to public service in one’s country.
Right to expression of the people’s will as the basis of authority of government, expressed
in periodic and genuine elections with universal suffrage and secret ballot or other free
voting method.
States who argue that this is “eurocentric hooey" are wrong. Everybody voted on the
U.D.H.R., except for 8 states. And none of the 8 states that abstained are around any
more, except Saudi Arabia. Every corner of the globe was represented and had a say in the
formulation of these rights. This is truly a universal declaration.
International Convention on Civil and Political Rights — Realistic, designed for application
in the real world.
If a country declares a state of emergency, then it must tell other countries (Art. 4). And
even in a state of emergency certain rights are still inviolable (Art. 7).
This is not just a rule of customary international law. These are fundamental norms of
international law.
Even dissenting states are bound by these norms.
There are no exemptions.

Torture is a violation of fundamental norms.

“Cruel, inhuman, and degrading,” however, are open to local variation. Cases are still
developing the standard.
Tyrer , 26 Eur. Ct. H.R. 14-17 (1978)— A 15-year-old British citizen living on the Isle of
Man assaulted a schoolmate. Under Manx law, he was sentenced to 3 strokes of a birch
branch on his ass. He was sore, but not cut. (This wasn’t caning, which can cripple,
disfigure, or kill, and which often results in genital mutilation.) The state was involved in
the beating.
The U.K. was party to the European Convention of Fundamental Rights and Procedure, which
said no torture, cruel/ inhuman, or degrading treatment.
This wasn’t torture, nor was it cruel or unusual treatment.

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Was it degrading? The state was involved, there was a six-month delay between the
sentence and its imposition, it was public in nature, it was govt-imposed assault by one
person on another, it was done via official procedures. So yes, it was degrading.
Parents can do it, but strangers cannot. Especially not in the name of the state.
This is not new. It was 1978. Wasn't even brought up during the debate over the caning of
that kid in Singapore back in the early 1990s. The civilized countries of the world had
already long since gotten together and said this was a human rights violation.

Ireland v. United Kingdom, 25 Eur. Ct. H.R. 65-67 (1978)— England was going all-out to get
information from the IRA, and the police were using severe interrogation techniques,
including sleep deprivation, food deprivation, white noise, always-standing, always-hooded,
etc.
This wasn’t torture — torture is aggravated and deliberate — but it was certainly degrading
treatment.

Soering v. United States, 161 Eur. Ct. H.R. 11 (1987) — This is the case of Jens Soering, a
German citizen and U.Va. Student, who with his girlfriend killed her parents, Soering fled
to the U.K., and the U.S. asked for extradition.
You cannot extradite to a country that subjects people to torture or to cruel, inhuman or
degrading treatment.
He could have gone to death row in Virginia, so the U.K. refused.
The problem wasn’t the fact that he was subject to the death penalty. Both the U.S. and
the U.K. had the death penalty. The problem was Virginia’s Mecklenburg death-row facility
(a favorite target of the ACLU), where it takes 6 - 8 years to await punishment.
The Commission held that the wait on death row was unacceptable. Confinement itself is
bad enough, but the psychological effects and contact with other death-row types would be
too degrading for this kid, so the U.K. was not required to extradite him to the U.S.

The price people are willing to pay for law & order varies from state to state. Some are
more tolerant of pain and degradation than others.
Torture is always too far, though.

The deterrent effect of a certain treatment cannot be the only determining factor.
Dignity of life is also important.

Art. 6 leaves open the possibility of a death penalty.

You just can’t arbitrarily be deprived of life, that’s all.
Article 8, can’t be held in slavery.

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Article 11, can’t go to jail for debt/contractual breach.
The biggies of Art. 14 are the fundamental rights enumerated in the next section.
Without these, is breaks down.

FUNDAMENTAL HUMAN-RIGHTS VIOLATIONS.

According to Restatement (Third) § 702, these are:
Genocide.
Slavery & slave trade.
Murdering or “disappearing” individuals.
Torture.
Cruel, inhuman or degrading treatment or punishment.
Prolonged arbitrary detention.
Systematic racial discrimination.

Consistent patterns of gross violations of internationally-recognized human rights.

More and more conventions are out there, precisely defining these terms and specifying how
to enforce them.

Human Rights Procedure:

Is the country a party to the International Covenant on Civil and Politic Rights?
Are they a party to the covenant, or are they merely signatories?
If merely a signatory, then the country is required only to submit progress reports on
compliance every 5 years, to the International Human Rights Committee. (“Committee,” not
“commission.”)
All parties to the covenant can complain to the Committee about the practices of a party
country.
You can complain, not only on behalf of your own nationals, but even on behalf of citizens of
the other country.

All parties can assert claims on behalf of victims.

If the state signed Optional Protocol # 1, then individuals within its jurisdiction can petition
the Committee, regardless of their nationality.
This is a big deal.
The highest court of a country is no longer your last resort. In fact, you can even bypass
the local courts and go straight to the Committee for redress of human-rights grievances.
What do you do if an American is tortured by a foreign government?
Is there a treaty on point between the United States and the other country?

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If yes, then look to see what substantive rights are defined. If such rights were violated,
then look for procedural mechanisms in the treaty to enforce them.
If no treaty between us and them, you now can intervene with a U.N. force for humanitarian
reasons. More on that under Use of Force below.
For a long time, if there was no treaty, then you couldn’t do anything.
And a foreigner being tortured by his own country had no recourse at all.
After WWII, the U.D.H.R. spelled out human rights, which were later codified in the
I.C.C.P.R., which has been implemented by local conventions. These provide substantive and
procedural rights.
Article 40 — All states must make reports on their compliance.
No state wants to look bad on human rights, no matter how tough they act.
If they’re bothered enough, they’ll quit the violations just to stop the pickets and protests.
True.
Publicity is the first step towards correction. Publicity is the bane of human-rights-
violating countries.
Article 41 — Experts sit on a committee. Any country can take up the case of an Iranian
being tortured by the Iranian government, for example, and bring the case before the
committee.
But that is only if Iran had already made the Article 41 declaration.
If a state has signed Optional Protocol # 1, then the individual himself could sue the
sovereign for human rights violations.

You need to look at each human-rights convention you’re concerned about to see what
procedural mechanisms it establishes.
If it merely defines rights, that’s not much help if it doesn’t say how those rights are to be
enforced.
So you have a 2-pronged search. Look for substantive definitions, and then look for the
procedures which make them real.

U.N. procedures may be available to both the U.S. citizen being tortured in Iran, as well as
to the Iranian citizen being tortured there.
In the Economic and Social Council of the U.N. [ECOSOC], there is a Commission (not a
committee) that reports on human-rights violations.
ECOSOC and the Human Rights Commission have provisions for individuals to request the
U.N. to investigate individual human rights violations, under Resolution 1503.
Or, if there are widespread & systematic violations, you can have a Resolution 1235 hearing,
where the violating country is made to suffer by all other countries by a vote of disapproval.

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If the violating country has signed Article 41, then the U.N. can make on-site investigations.
Iran has never signed Article 41, so all that can happen is that the other member states
vote their disapproval.
China is a signatory, but every year it pours a staggering amount of resources into avoiding
on-site investigations.
Tyrants do fear them. Following on-site investigations, governments have been known to fall
and be replaced. On more than one occasion.
Again, the violating country cannot argue that its treatment of people is a cultural or
religious thing, and should therefore be respected and left alone. These are universal
norms, codified and signed by all sorts of countries of all cultures and religions. This is not
just “western” idealism.
The rights themselves are evolving, as are the enforcement procedures that make them
real.
Now that the United States is a party to the I.C.C.P.R., we may start to see charges against
us brought before the Commission. It already happened to Canada in the Lovelace case.
Suspension of Human Rights.
Lawless Case (Eur. Ct. of Hum. R. 1961) — Talks about how certain rights can be suspended.
This includes due process & fair trial rights.
The concepts of “due process” and “fair trial” are still evolving.
The sorts of permissible restrictions on such rights, however, are limited.
When you suspend human rights, you can’t just wash your hands of the rights.
And some rights can never be suspended or derogated.
Freedom from torture, and the other fundamental jus cogens rights, can never be
suspended.

Duplication of Claims.
You can’t simultaneously appeal to the European Court of Human Rights, and to the
Commission, or to someone else. You can only bring your claim before a single tribunal.
If there is duplication, then all of the courts will throw your case out.
You’d better choose wisely, because the rights and procedures are different in each
tribunal.

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