Part of law says you can’t do anything to him because he’s head of state, others might say he’s a prisoner of war

Before the IHR Revolution (pre-WWII)

• 
  Individuals were not “subjects” of international law
  
• 
  Law of state responsibility:
  
  • 
    States owed minimum standard of treatment (positive law) to aliens present within its territory
    
  • 
    Foreign nationals must accept the legal regime of the state in which they are in but if a state injures a forign national in a away that violates an international legal obligation- then the state may incur legal responsibility under international law (p. 407)
    
  • 
    State of nationality of the foreign national “espoused” individual’s claim: under traditional law of state responsibility, the responsibility o the state at issue does not extend directly to the injured foreign national- the foreign national’s state may in its own discretion decide to assert a claim against the state responsible for the injury, provided the injured national has first exhausted local remedies. By espousing the claim of its national, the offended state exercises its own right of diplomatic protection. State is under no responsibility to share compensation with injured national-p408 This comes from notion that only states were subjects of international law
    
  • 
    Aliens therefore had greater protection under int’l law than nationals
    
  • 
    Fiction: when a state mistreated an alien present within its territory, this was not an affront to the alien as an individual, but an affront to the sovereign state of that person’s nationality
    
  • 
    Only a nation can make a claim under doctrine of state responsibility
    
    • 
      Individual would make a claim to his own consul
      
    • 
      Consul might then decide not to upset relations with the other nation, decline to press the claim
      
    • 
      Individual has to convince own gov’t to champion the cause; this decision has always been a political one; sometimes nation will stand up, sometimes it won’t
      
• 
  Int’l law did not address a state’s treatment of its own nationals within its territory
  

International Human Rights (IHR)

• 
  Rights against the state (akin to civil rights)
  
  • 
    Your cause doesn’t have to be espoused by a sovereign, as under law of state responsibility
    
• 
  Positive rights (right to food, right to education, right to health care)
  
  • 
    “2^nd generation” of HR
    
• 
  Collective rights (e.g. right to self-determination, linguistic rights)
  
  • 
    “3^rd generation” of IHR
    
  • 
    Enjoyed not by individuals, but by groups
    
  • 
    Some have argued there’s a collective right to democracy
    
  • 
    Emerging right to live and work in an environment free of small arms: aimed at militias, warlords
    
  • 
    Right to live in an area free of land mines
    
  • 
    Constantly new areas
    

Americans tend to link any rights to words in the Constitution

With IHR, there’s no document to look to; rights not linked to any particular national culture

IHR attains everywhere; universal

From Book: p.408 -as early 17^th century states in Europe entered into treaties designed to confer limited protections on religious minorities in other states.

19^th century- states in Europe and eventually Americas worked to outlaw slavery and the international trade in slaves through international conventions.

After WWI- League of Nations minorities treaty system experiments in the international legal treatment of minority. After WWI victors imposed treaties on certain states in Eastern and Central Europe designed to guarantee fair treatment to members of ethnic, linguistic or religious minorities

International Labour Organization (ILO) formed in 1919 to improve the lot of workers

- these two things are limited and in large part most states continued to regard their treatment of their own nationals as largely their own affair.
WWII: p409- after WWII, the Allied Powers pledged to prosecute individuals responsible for atrocities committed during the war (it had become apparent that the doctrine of state responsibility wasn’t good enough because no state is going to prosecute itself)

Nuremberg and other related trials mark a turning point in the attitudes toward the individuals status in international law.

Nuremberg charter (see ch 9)- says individuals could be prosecuted for crimes against peace, war crimes and crimes against humanity (crimes against humanity was broad enough category to encompass certain crimes committed by a state against its own nationals).

UN Charter (to which almost all states are a party p. 411)

Starting point for IHR is the UN Charter

Charter: has tension

On one hand, Charter gives as purpose of UN promotion of human rights (411- but does not define what human rights means or identifies a philosophical basis for human rights, does not give human rights priority over the right of a state to be free)

On other hand, Article 2(7) prohibits intervention in matters which are essentially within the domestic jx of any state

You can get around 2.7 by saying that a violation of IHR is not within domestic jx
From Book: p. 409: After WWII, many call for the UN charter to have a bill of rights. It does not have one included bt it contains multiple references human rights.

Preamble states that the determination of the people of UN “to reaffirm faith in international human rights”

Art 55: commits UN members to promote “universal respect for and observance of human rights and the fundamental freedoms to all”

Art 56: requires UN member states to cooperate in promoting human rights

Art. 68: contemplates formation of a UN Commision on Human Rights to conduct research on human rights and to draft treaties and other instruments for promotion of Human rights (The Human Rights Commission formed in 1946).

Following years: states, UN organizations develop extensive body of human rights treaties, declarations and related instruments and a complex system of institutions designed to monitor and implement existing norm

(§1= application of universal instruments designed to protect fundamental liberty and personal security interest.

§2- disagreements over states’ freedom to limit the scope of their obligations under human rights treaties through reservations

§3 economic social and cultural rights)
§1 Protecting Political and Civil Rights
From Book: 410

- contemporary articulations of political and civil rights, as claims of individuals on their society and gov’t, are rooted in 17^th and 18^th century political philosophy. Ex: Locke: life, liberty and property. Rousseau- man is born free.

Issues: whether IHR have a coherent philosophical and jurisprudential basis, whethere state or societal interests should every be balanced against individual right to liberty, what role IHR norms should play in shapeing gov’t and private decisions, what could make IHR more effectively implemented.

Universal Declaration of Human Rights (UDHR) (1948), p. 414

• 
  Intended to be an international “bill of rights”
  
• 
  Intermediate step toward binding IHR treaties
  

It’s not a treaty, not binding, its an aspirational statemnt

Declaration of GA of UN; plurality of the membership (p.413- 48 adopt, 8 abstain- don’t like equal marriage, condemn apartheid, communist society doesn’t have tensions between classes)

Declarations of GA are non-binding, so formally the UDHR doesn’t have powerful legal status
Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood

This is like “All men are created equal” but gender-neutral and doesn’t imply the existence of a creator

Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status

Problem: US didn’t provide blacks equal rights in 1948

If this were a binding instrument, US never would have signed on
From book- p. 412-413- during drafting period, weren’t sure whether it should be a declaration of a treaty. Most preferred treaty (Australia and UK) as this is only way to be effective in preventing. Some states even want a court to adjudicate. SU wants declaration with no associated implementation system. US prefers declaration but was wiling to see a draft convention at some later time.

Human Rights Comission (Formed in 1946) goes with a non binding declaration.

Commission continues to work on a convention, adopted numerous human rights conventions and declarations to make up what is often called the International Bill of Rights (seep. 413 for more detail)

- UDHR articulates basic civil and political rights including rights to life, security of one’s person, fiar trial, nationality, freedom of movement, freedom of religion and expression, no one shall be subjected to arbitrary arrest, detention exile, no torture or cruel and unusual punishment.

- due to delays in conventions, UDHR is for many years the primary international human rights instrument (delays caused by disagreement on what rights to emphasize, cold war tensions, etc- 413 (Europe complete Council of Europe HR convention in 1950)