International Law Class 21: Human Rights

1. International LawClass 21: Human Rights POLS 363 Spring 2011

2. Part I: The Drug Trade

4. Easter Egg • USS Bob Marley slams into the Hendrix • 35 miles directly east of the main coast of Mexico • 20°16'50.76"N 86°44'51.59”W • Maps.google.com

5. Part II: Human Rights

6. Basics on HRs • Trad’l IL was concerned with legal relationship between states (excluding individuals or groups) • Prior to WWII, there was no systematic way to protect rights of human beings, except through domestic governance. • Human Rights (def’n): rts that attach to individuals by virtue of their personhood (innate to being human), or by virtue of their membership in a group (indigenous groups) • HRs and IL: the core concepts in human rts have become part of CIL (binding on all nations), even if some int’l agrs are not fully binding

7. Human Rights in UN System • UN Charter (1945): foundational treaty of the UN, and all UN members are bound by its articles. Furthermore, the Charter states that obligations to the UN prevail over all other treaty obligations. Most countries have now ratified the Charter. • UNDH--UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948): UN Dec of basic rights for all  NOT part of IL, but it is a powerful tool in applying diplomatic and moral pressure to governments that violate some or all of its articles • ICCPR: Int’l Covenant on Civil and political rights (1st gen rts) • ICESCR: Int’l Covenant on economic, social and cultural rights (2nd gen rts) • Interestingly, environmental rts, group rts (rt to development, humanitarian interv (3rd gen rts) • Both legally binding agreements

8. Uteevv. UzbekistanHRC: 91st Session • F: Plaintiff/author’s brother was convicted of murder and other heinous crimes and sentenced to death. She claims, however, that he was subjected to torture and other means of coercion to attain a confession, which is the primary evidence against him. She argues that under Uzbekistan’s legal code, this evidence is inadmissible. She files a ICCPR claim with the HRC. Afterward, Uzbekistan executes her brother. • I: Was there a tortured confession, and if so, is it a violation of ICCPR? • H/R: Yes (not denied by state party); Yes, it’s a violation of Art 7 and 14.3(g) See ICCPR. Execution violated Art 6. In accordance with article 2.3 (a) of the Covenant, the State party is under an obligation to provide Ms. Uteeva with an effective remedy, including compensation. The State party is also under an obligation to prevent similar violations in the future.

9. Llantoy Human v. PeruHRC, 13 Int’l HRs Rep 355 (2006) • F: Human, a pregnant minor, was told that her fetus had abnormalities, which threatened her life. Peruvian hospital gave her 2 options: terminate the pregnancy or continue it despite the risks. After choosing to terminate, the hospital director refused the operation saying it was unlawful (under Peruvian Criminal Code) to abort. Art 119 said that therapeutic abortion is permitted ONLY when termination would save the mother or avoid serious & permanent damage to her health. She had the baby with Anencephaly six months later, and the infant died 4 days later. • I: Did the physical and emotional harm from being force to carry a terminal fetus to term a violation of ICCPR? • H: Yes, violation of 2 in conjunction with Arts 7, 17 & 24. • R: see ICCPR. Interpret facts in light most favorable to author/plaintiff. Here, authorities were aware of the risk to the author's life, yet service was denied; no effective remedy was available to her to oppose that decision. Violation of Art 7 includes mental pain (in addition to physical). This amounts to interference with her personal/private life, violating Art 17. Also, a violation of Art 24 b/c she was a minor. • Peru’s non response: means “due weight” is given to “author’s” account. Take it as true on its face or in light most favorable to plaintiff.

10. Negusiev. Holder129 S.Ct. 1159 (2009) • F:Negusie is a dual national of Eritrea and Ethiopia. He was born and educated in Ethiopia and left for Eritrea at eighteen to get a job. He was in a movie theatre in Eritrea when he was taken into custody, forced into hard labor, and then conscripted into the army. After refusing to participate in a war against Ethiopia, and he was forced to be a prison guard. He was allegedly coerced into persecuting and mistreating prisoners. He escapes in a container on a ship to the US and seek asylum. US INS denies his application for asylum because of evidence that Negusie assisted in the persecution of prison inmates based on prisoners' Protestant religious beliefs (which is protected). • I: Is a foreign national barred absolutely from asylum if he/she engaged in persecuting prisoners? • H: NO. Reverse BIA (Bd of Immigration Appeals) and 5th Cir. Remanded back to the BIA to interpret the ambiguous provisions of the INA relative to Negusie. • R: Relying on Fedorenko, the 5th Cir erred in its evaluation of Negusie’sasylum petition, because they presumed it mandatory that an alien's coercion to persecute was immaterial when determining whether the "persecutor bar" applies (a strict reading of Fedorenko). The BIA’s decision was based on this mistaken legal premise and they failed to use their discretion in interpreting the INA (and Fedorenko). Fedorenkov US (449 US 490 (1981)): people who assisted in Nazi persecutions, whether voluntarily or involuntarily, were not eligible for visas to enter the United States.

11. Negusiev. HolderConcurring and Dissenting Ops • Concurring OP (Scalia & Alito): They would not have agreed to remandNegusie'scase had the majority prevented the BIA from reaching the same conclusion once again. • Concur and Dissent in part (Stevens & Breyer): They criticized the majority for failing to establish a standard for when the "persecutor bar" applies to an alien's asylum petition. Give Atty Gen discretion to determine guidelines of “involuntariness”. • Dissent (Thomas): He argued that coercion is irrelevant under the INA, and it precludes any inquiry into whether the persecutor acted voluntarily or was coerced.