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International Human Rights Law & Instruments
"No institution of government can now
afford to ignore the rest of the world."
US Supreme Court Justice Sandra Day O’Connor
instructed the American Law Institute (Associated Press)
Contents
It should be noted
that this resource is provided as a guide and is not definitive.
UN Charter
The UN Charter
is the constituting instrument of the United Nations (UN). The UN Charter
establishes the organs and bodies of the UN, lays out procedure and delineates
the rights and obligations of the member states. The UN was officially
established on 24 October 1945 by the ratification of 51 member states of the UN Charter.
According to the UN, as of 2003, there are 191 member states within the
organization.
The UN Charter sets forth the four stated
purposes of the UN:
- "To practice tolerance and live together
in peace with one another as good neighbours, and
- To unite our strength to maintain international
peace and security, and
- To ensure, by the acceptance of principles
and the institution of methods, that armed force shall not be used, save
in the common interest, and
- To employ international machinery for
the promotion of economic and social advancement of all peoples."
The United Nations Charter alongside
the Universal Declaration
of Human Rights, adopted by the General Assembly in 1948 forms the
basis of international human rights law. Since then, the UN has gradually
expanded human rights law to encompass specific standards for women, children,
disabled persons, minorities, migrant workers and other vulnerable groups.
The six principal organs of the UN are the: General
Assembly, Security
Council, Economic
and Social Council, Trusteeship
Council, International Court of
Justice (ICJ) and Secretariat.
The UN family, however, is much larger, encompassing 15 agencies and
several programmes and bodies. For more information on the UN please click here.
The International Court of Justice
The
International Court of Justice (ICJ), located in The Hague, satisfies
the judicial function of the UN. The ICJ resolves existing disputes between
States. Additionally, when international agencies pose questions of law
to the Court, the ICJ is entrusted to issue advisory opinions to the
Security Council and General Assembly.
The ICJ is composed of 15 judges from different
member nations who serve terms of a predetermined duration. With regards
to issues
of capital punishment and foreign nationals, the most pertinent current
case pending before the ICJ is Avena
and other Mexican Nationals (Mexico
v. United States of America). For an overview of the ICJ, please click here.
Statute
of the ICJ: Sources of International Law
Article 38 (1) of the Statute of the International
Court of Justice provides a list of the sources of international
law:
- International conventions, whether general or particular, establishing rules expressly recognized by the contesting states. (e.g. treaties)
- International custom, as evidence of general practice accepted as law.
- General principles of law recognized by civilized nations.
- Judicial decision and the teaching of the most highly qualified publicists of the various nations, as subsidiary means of determination of law.
This provision is usually accepted as constituting
a list of the sources of international law. Correspondingly, when arguing
international law, the sources are your guide.
Treaties
Treaties may also be referred
to as conventions or covenants. Treaties often codify rules of customary
law and are of growing importance. They are the major instrument of co-operation
in international relations and are often an instrument of change. Treaties,
once signed and ratified, are binding on the party. Upon signing an international
instrument, the party agrees to bind itself in good faith to ensure that
nothing is done which would defeat the object and purpose of the treaty,
pending a decision on ratification, if ratification is required. A signature
does not however, create an obligation to ratify but, once ratified, the
treaty becomes binding on the nation. The nation is considered to have
consented to be bound.
For example the UN
Charter is a treaty.
Other examples include:
Please click
here for ratification status of the principle human rights treaties.
Reservations
A reservation
can be made to a treaty. A reservation is a statement made by a nation,
when signing or ratifying a treaty, where is purports to exclude or modify
the legal effect of a certain provision of the treaty. For example, when
ratifying the ICCPR, the United States made a reservation to Article 6(5). Art.6(5) of the
ICCPR explicitly provides:
Sentence of death shall not be imposed for crimes committed
by persons below eighteen years of age and shall not be carried out against
pregnant women.
Upon ratification, the United States Senate
intended to reserve for the United
States the right "subject to its
Constitutional constraints, to impose capital punishment on any person...including
such punishment for crimes committed by persons below eighteen years of
age." The United States put forward this reservation in order to permit the
various states to continue to execute juvenile offenders. The validity
of this reservation is controversial. Please contact the IJP for
more information and see William A. Schabas, Invalid Reservations to
the International Covenant on Civil and Political Rights: Is the United States Still a Party? 21 Brook.J.Int'l.L.
277 (1995)
Treaties: Interpretation
and Application
The Vienna Convention
on the Law of Treaties is widely accepted as codifying the customary rules
relating to treaty interpretation and application and as the governing
international treaty on such matters. This treaty governs, for example,
the validity of reservations and the obligation of a state upon signing
a treaty to bind itself in good faith to ensure that nothing is done that
would defeat the treaty's "object and purpose," pending ratification.
Vienna Convention
on the Law of Treaties, 1155 U.N.T.S. 331, entered into force January
27, 1980.
It should be noted
that the US has signed but not ratified this treaty. In accordance
with the principles of international law and as stated above, the US is obliged
however, to bind itself in good faith. The U.S. Department of State has
taken the position that it is the authoritative guide to existing treaty
law and procedure. See also, Restatement
(Third) of Foreign Relations Law of the United
States, Sec. 313(1)(c)(1987).
Customary International Law
Custom is the second source of international law listed
in Article 38 of the Statute of the International Court of Justice. As
confirmed by the ICJ in Nicaragua v. USA (merits),
ICJ Rep, 1986, 14 at 97., custom is
constituted of two elements:
(i) The general practice of nations (objective)
(ii) ‘Accepted as law’ (opinio
juris) (subjective).
An international law norm must satisfy both
prongs in order to be deemed legally binding customary international law:
the norm must be adhered to in practice by most countries and, those countries
that follow the norm must do so because they feel obligated by a sense
of legal duty ("opinio juris").
Customary international law is binding on
a nation.
Sources of custom are numerous and include diplomatic
correspondence; opinions of official legal advisors; press releases from
the nation; international and national judicial decisions; treaties; and
resolutions.
For example the
prohibition against the execution of juveniles has arguably became a principle
of customary international law, and therefore, binding upon all nations. Please click here for
more information on juvenile offenders.
Persistent
Objector
As stated above,
customary international law is binding upon a nation. A nation-state may
however, avoid being bound by a rule of customary international law if
it has been a "persistent objector" to the norm or rule. Objection
to the norm must be "consistent" and, irrespective of disagreement
Resolutions
Resolutions are
non-binding, but are reflective of the acceptance of an international norm. Examples
of resolutions include the Universal Declaration of Human
Rights and Safeguards Guaranteeing Protection of the Rights of Those Facing
the Death Penalty.
Jus Cogens
Under Article
53 of the Vienna Convention on the Law of Treaties, a jus cogens norm
is:
"a
norm accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law
having the same character."
The
Restatement (Third) of the Foreign Relations Law agrees with this standard,
asserting that the norm is established where there is acceptance and recognition
by a "large majority" of states, even if over dissent by "a very small
number of states" (Restatement (Third) of Foreign Relations Law, §102,
and reporter’s note 6 (1986), citing Report of the Proceedings of the Committee
of the Whole, May 21, 1968, UN Doc. A/Conf. 39/11 at 471-72).
In other words,
the norm describes such a bare minimum of acceptable behavior that no nation
state may derogate from it. A nation therefore, cannot contract out of
this peremptory norm or assert persistent objector. It is argued by some
that the overwhelming application of the norm against executing juvenile
offenders has rendered it a jus cogens norm.
On 22
October 2002, the Inter American
Commission on Human Rights (IACHR) reviewed the case of Michael Domingues,
a juvenile offender sentenced to death in Nevada for a double homicide at the age of 16 years. In considering
the merits of the case, the IACHR concluded that the United States "has
acted contrary to an international law norm of jus cogens by sentencing Michael Domingues to
the death penalty for a crime that he committed when he was 16 years of
age". The IACHR considered the prohibition against the execution of juveniles
(under the age of 18 at the time of the offense) to be now of a sufficiently
indelible nature to constitute a norm of jus cogens. (Report No.
62/02, Case No. 12.285 Michael Domingues & United States)
As the IACHR explained norms of jus cogens "derive
their status from fundamental values held by the international community,
as violations of such peremptory norms are considered to shock the conscience
of humankind and therefore bind the international community as a whole,
irrespective of protest, recognition or acquiescence."
Regional Bodies
Organization
of American States
The United
States is one of the 35
members of the Organisation of American States (OAS), a regional
agency created within the meaning of Article 52 of the United Nations Charter.
The OAS is an international organization created to achieve an order of
peace and justice, promote solidarity and defend their sovereignty, their
territorial integrity and their independence (Article 1 of the OAS Charter).
The Charter of the OAS, which entered into force in 1951, reaffirms that
international law is the standard of conduct of States in their reciprocal
relations.
The
Inter-American human rights system encompasses the western hemisphere and
is one of the two regional systems to have adopted a convention abolishing
the death penalty (Additional Protocol to the American Convention on Human
Rights to Abolish the Death Penalty, see sub-section 2.1). The other regional
system (in Europe) has adopted
a similar convention.
The 35 American States have adopted numerous international
instruments that have become the foundation for the promotion and protection
of human rights. The Inter-American human rights system recognizes and
defines those rights and establishes binding rules of conduct to promote
and protect them, while creating organs to monitor their observance (see
next sub-section). A number of Latin American nations have abolished the
death penalty and the long-term worldwide trend is towards total abolition.
Conversely, the membership of the OAS also includes avid supporters of
the death penalty including, Jamaica, and the United States of America.
Inter-American Human
Rights Commission on Human Rights
One of the OAS bodies charged with furthering and ensuring
observation of the Inter-American human rights system is the Inter-American
Commission on Human Rights (IACHR). The United States upon ratifying the Charter of the OAS in 1951, accepted
the authority of the Commission.
It is important
for US litigators to use both the Inter-American Commission on Human
Rights of the OAS (which has jurisdiction to hear complaints against
the USA) and the International Court of Justice (where
the US has become the object of two complaints).
Many domestic
lawyers handling death penalty cases are unacquainted with the availability
of this and other international mechanisms or are unfamiliar with the rules
and procedures of the tribunals. Contact the International
Justice Project for more information, or the OAS directly.
In qualifying cases of extreme gravity and urgency,
the Commission issues precautionary measures when it becomes necessary
to avoid irreparable damage to persons in the matter before them. Upon
the issue of these precautionary measures, the Commission requests that
the United States preserve
the life of the person in question, pending their investigation of the
allegations forwarded in the relevant petition.
For further information on the Inter-American Commission
on Human Rights and inter-American system please click here.
Europe
European Union
The European Union (EU)
is a unique regional international institution. Although the EU is not a unified state, it has created
certain institutional bodies that will speak on behalf of the member nations
on areas of economic and/or human rights interests. These interests were
agreed upon by all members upon signing the EU formation treaties. The
principal objectives of the EU are: to establish European citizenship,
to ensure freedom, security and justice, to promote economic and social
progress, and to assert Europe's role in the world. One of the qualifications for
membership as an EU nation is a domestic abolition of the death penalty.
The European Union has also taken a strong stance against the use of the
death penalty in non-member nations. For more information on the EU please click here.
Council of Europe
The Council of Europe,
headquartered in Strasbourg, France, is Europe’s oldest political organization. Established in 1949
by the Treaty of London, it groups together 45 countries, has applications
from 2 more countries, and has granted observer status to 5 international
entities (the Holy See, the United
States, Canada, Japan, and Mexico). The Council of Europe was created in order to defend
human rights, parliamentary democracy, and the rule of law. It seeks to
develop continent-wide agreements (it has developed 192 legally binding
European treaties or conventions) to standardize member countries’ social
and legal practices, and also seeks to promote awareness of a European
identity based on shared values. Please click here for
more information.
Europe and the Death Penalty
Within Europe, Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental
Freedoms Concerning the Abolition of the Death Penalty, as amended by Protocol
No. 11 prohibits the imposition of the death penalty in peace time. Following
on from Protocol No. 6, Protocol No.13 abolishes the death penalty in all circumstances including crimes
committed at times of war and imminent danger. Further, abolition of the
death penalty is a prerequisite for joining the European Union.
International Instruments
The death penalty is not illegal under international
law, but it is the goal of the international community to abolish the death
penalty under all circumstances. Until that time, there are restrictions
on the categories of persons who can be executed. The application of international
law extends beyond capital punishment and can be articulated in both civil
and criminal legal arguments. Examples of international instruments follow.
Fundamental International Human Rights
Instruments
- UN Charter June
26, 1945, 59 Stat. 1031, T.S. 993,
3 Bevans 1153, entered into force Oct.
24, 1945
Fundamental Regional Human Rights Instruments
- [European] Convention
for the Protection of Human Rights and Fundamental Freedoms, (ETS
No. 5), 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended
by Protocols Nos 3, 5, 8, and 11 which entered into force on 21 September
1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively.
- American Convention
on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered
into force July 18, 1978, reprinted in Basic Documents Pertaining
to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6
rev.1 at 25 (1992).
- American Declaration of
the Rights and Duties of Man, O.A.S. Res. XXX, adopted by the Ninth
International Conference of American States (1948), reprinted in Basic
Documents Pertaining to Human Rights in the Inter-American System,
OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992).
Examples of International Human Rights
Instruments and Resources Organized by Topic.
Foreign Nationals
Under Article 36 of the Vienna Convention on Consular Relations, 1963 (VCCR), local authorities must notify all detained
foreigners "without delay" of their right to have their consulate
informed of their detention. At the request of the national, the authorities
must then notify the consulate without delay, facilitate unfettered consular
communication and grant consular access to the detainee. Consuls are empowered
to arrange for their nationals' legal representation and to provide a wide
range of humanitarian and other assistance, with the consent of the detainee.
As of 1 January 2000, at least 167 countries were parties to the VCCR.
The United States has
signed "The Optional Protocol to the Vienna Convention on Diplomatic
Relations, concerning the Compulsory Settlement of Disputes". By signing
the optional protocol the United
States is bound to World Court jurisdiction
in claims based on the VCCR.
On 27th June 2001, the International Court
of Justice (ICJ) issued a binding judgment in the LaGrand
case (Germany v USA) in
which the Court ruled on the interpretation and application of rights conferred
under Article 36 of the Vienna Convention on Consular Relations (VCCR)
The United
States has signed bilateral mandatory
notification treaties with over fifty countries. These treaties regulate
the rights of governments to provide consular services to their citizens.
Some of these agreements require that consular officials be notified of
the arrest and/or detention of one of their nationals regardless of whether
the national has made a request for assistance.
Please click
here for resources pertaining to foreign national offenders.
Juveniles
Article 4(5): Capital
punishment shall not be imposed upon persons who at the time the crime
was committed was under 18 years of age
Article 68: In any case
the death penalty may not be pronounced against a protected person who
was under 18 years of age at the time of the offense.
The implication of this treaty is that if
the parties do not believe that the execution of juveniles at times of
war is immoral it is certainly immoral at times of peace.
- International Covenant on Civil and Political Rights (ICCPR
-149 state parties), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16)
at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar.
23, 1976.
Signed by the United States: October
5, 1977, ratified: June
8, 1992.
Article 6(5): Sentences
of death shall not be imposed for crimes committed by persons below 18
years of age
The United States of America has reserved the right to continue to execute
juveniles. Eleven nations have filed complaints with the Human Rights Commission
(the Commission in charge of monitoring compliance with the terms of the
ICCPR). Theses objecting nations are among the closest allies of the US: France, Sweden, Belgium, Denmark, Finland, Germany, Italy, Netherlands, Norway, Portugal and Spain.
U.S. Reservations on
the ICCPR
- United Nations Commission
on Human Rights, The Question of the Death Penalty Resolution 2003/67
UN Doc. E/CN.4/RES/2003/67
- Safeguards Guaranteeing Protection of the Rights
of Those Facing the Death Penalty,
E.S.C. res. 1984/50, annex, 1984 U.N. ESCOR Supp. (No. 1) at 33, U.N.
Doc. E/1984/84 (1984).
- UN Convention on the Rights of the Child (191 State parties), G.A. res. 44/25, annex, 44
U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into
force Sept. 2, 1990.
Signed by the United States: February
16, 1995, rot ratified.
Article 37a: No child
shall be subjected to torture or other cruel, inhuman or degrading treatment
or punishment. Neither capital punishment nor life imprisonment without
possibility of release shall be imposed for offenses committed by persons
below eighteen years of age.
191 nations, except the United States and Somalia, have ratified this treaty. Somalia, until
recently had no recognizable government. However on May
9, 2002 Somalia signed
the CRC and announced its intentions to ratify.
- United Nations Commission
on Human Rights, Human Rights in the Administration of Justice, in
Particular Juvenile Justice Resolution 2002/47 UN Doc. E/CN.4/2002/47
- United Nations Commission
on Human Rights, Rights of the Child, Resolution 2003/86 UN Doc.E/CN.4/Res/2003/86
- United Nations General Assembly. Human Rights in Administration
of Justice, Resolution 56/161 UN Doc. A/Res/56/161
- United Nations Standard Minimum Rules for the Administration
of Juvenile Justice ("The Beijing Rules"), G.A. res. 40/33, annex, 40 U.N. GAOR Supp. (No.
53) at 207, U.N. Doc. A/40/53 (1985).
- United Nations Guidelines
for the Prevention of Juvenile Delinquency (The Riyadh Guidelines),
G.A. res. 45/112, annex, 45 U.N. GAOR Supp. (No. 49A) at 201, U.N. Doc.
A/45/49 (1990).
- United Nations Rules
for the Protection of Juveniles Deprived of their Liberty, G.A. res.
45/113, annex, 45 U.N. GAOR Supp. (No. 49A) at 205, U.N. Doc. A/45/49
(1990).
Please click
here for further information and resources pertaining to international
law and juvenile offenders.
Mental Retardation
- United Nations Economic and Social Council, Safeguards
Guaranteeing Protection of Rights of those Facing the Death Penalty, ECOSOC
Res. 1984/50, UN Doc E/1984/150 (1984)
- United Nations Economic and Social Council, Implementation
of the Safeguards Guaranteeing Protection of Rights of those Facing
the Death Penalty, ECOSOC Res. 1996/15, UN Doc E/CN.15/1996/15
(1996)
- United Nations General Assembly, Human Rights in
the Administration of Justice, GA Res. 39/118, UN Doc. A/39/700
(1984)
- United Nations General Assembly, Principles for
the Protection of Persons with Mental Illness and for the Improvement
of Mental Health Care, A/RES/46/119 (1991)
- United Nations General Assembly, Declaration on Rights of
Disabled Persons, UN Doc A/RES/33447 (XXX) (1975)
- United Nations General Assembly, Declaration on Rights of
Mentally Retarded Persons, GA Resolution 2856 (XXVI), UN Doc. A/8429
(1971)
- United Nations Commission on Crime prevention
and Criminal Justice, Report of the Secretary-General, Capital Punishment
and Implementation of the Safeguards Guaranteeing Protection of Those
Facing the Death penalty, UN Doc. E/CN.15/2001/10 (2001)
- Organization of American States, Inter-American
Commission on Human Rights, Recommendation of the IACHR for Promotion
and Protection of the Rights of the Mentally Ill
- United Nations General Assembly, Standard Rules on the Equalization
of Opportunities for Persons With Disabilities A/RES/48/96 (1995)
- Inter-American Convention
on the Elimination of All Forms of Discrimination Against Persons With
Disabilities, AG/RES. 1608, 7
June 1999.
- Americans with Disabilities
Act (ADA). Click here for the home page of the ADA
Treatment of
Prisoners
- Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment, G.A.
res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49
(1988).
- Basic Principles for
the Treatment of Prisoners, G.A. res. 45/111, annex, 45 U.N. GAOR
Supp. (No. 49A) at 200, U.N. Doc. A/45/49 (1990).
- Standard Minimum Rules
for the Treatment of Prisoners, adopted Aug.
30, 1955, by the First United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, U.N.
Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No.
1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N.
ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988 (1977).
Torture
Race
Law Enforcement Officers
Lawyers/Judiciary
- Basic Principles on
the Role of Lawyers, Eighth United Nations Congress on the Prevention
of Crime and the Treatment of Offenders, Havana, 27 August to 7 September
1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990).
Medical Ethics
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