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International Human Rights (Fach) / 3rd Semester (Lektion)

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• What are the 3 sources of International Law? Customary International Law, International Treaties, General Principles of Law
• Who is entitled to a fair trial and how is this determined? Anyone who has been “charged” with a crime. Whether a person has been “charged” is determined autonomously, based on the “purpose and character” of the sanctions that might be imposed upon the person
• Which rights are non-derogable under the ICCPR? Freedom from Torture Freedom from Slavery Freedom of Thought Freedom of Religion Freedom of Conscience No ex post facto laws Right to Life Right to Non-Discrimination
• What is the overall purpose and goal of all of the various fair trial rights that were discussed in class? In other words, what is their unifying goal and how does that affect the interpretation of the rights? They all seek to guarantee the “fairness” of a criminal proceeding. As such, even if a fair trial right is technically not violated, the overall right to a fair proceeding might still be violated if the overall proceeding itself is not considered to be “fair”
• What does a Right to “Self-Determination” actually grant a “people”? Depending on the context, the right arguably covers the following things: The right of a people to independence and to determine its international status. The right of a State to determine its form of government and to participate therein. The right of a State to territorial integrity and to govern its own affairs without outside interference. The right of a minority (within or across State boundaries) to cultural and economic autonomy. The right of a State to cultural, economic and social development.
• How do Individual Complaints help enforce ICCPR rights? Similar to State Reports, a finding by the HRC that an individual’s rights have been infringed may publicly shame a State into compliance. Likewise, the HRC judgment may correct a State’s false understanding of a legal obligation (either the State at issue or other uninvolved States).
• What is the Universal Declaration of Human Rights and what legal effect does it have? the UDHR is a Resolution passed by the UN General Assembly in 1948 setting out a variety of human rights protections. As a UNGA Resolution, it is non-binding and has no legal effect.
• What is the difference between internal and external self-determination?  Internal – Refers to those aspects of the right that work within the territorial integrity of the State within which the “people” find themselves. External – Refers to those aspects that affect the international status of the people, and seek to rearrange the territorial integrity of the State.
• What duties does the Right to Life create for the State? Duty to Respect – State must refrain from arbitrarily depriving a person their life. Duty to Protect – State must take action to prevent private 3rd parties from infringing a person’s right to life Duty to Fulfill – State must take action to help the people enjoy the right to its fullest.
• What constitutes a “people” for the purposes of the Right to Self-Determination? Common features (ex. historical tradition, religion, ethnicity, language, etc…) A decent-sized group (not too small…) The group itself must self-identify as a group along these common lines. It should perhaps have some organizational or institutional representation of its interests.
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• How do State Reports help enforce ICCPR rights? Public shaming of those States that fail to comply may bring about compliance. Also, the creation of the Report requires States to actually analyze whether they are in compliance, which may lead to changes in their actions. Finally, reaction to the State Report itself by the HRC may help to correct any false understandings of the rights that the State may have.
• Why is the Right to Life considered at the top of the (nonexistent) hierarchy of human rights? For the most part, every other human rights would be worthless if the government does not have to protect a person’s right to live
• What are the three characteristics of “law”? Rules – What people are allowed to do. Positive Law – Rules created by the government. Collective Enforcement – Rules that are legally enforceable by the government.
• What are the limitations on a State’s ability under the ICCPR to suspend a right? Any suspension must be done in accordance with the ICCPR itself, and must be reported to the HRC publicly. Furthermore, it must then explain its emergency situation and justify its decision in its next State Report to the HRC. Finally, the suspension must be limited in time
• What three basic aspects does the Right to Examine Witnesses guarantee? Right to examine the witnesses against him – Thus, the right to question and confront a witness. Right to equality as to witnesses – Every defendant has the right to obtain and examine witnesses under the same conditions as the State. Right to any associated evidence – Defendants have the right to access all of the evidence and material related to the witness, so that their attorney may intelligently question and confront the witness.
• What is meant by the term “exhaustion of local remedies”? Generally speaking, international entities will not entertain an individual complaint until the individual has exhausted his options at the domestic level. In other words, international courts only hear a case after they are sure that the individual has no other option within their domestic system.
• Why are States hesitant to acknowledge the Right to Self-Determination for various different groups or peoples? Mainly because every State generally has its own “people” who wish to be recognized as having the right. Thus, the fear is that if they recognize some other group’s right, then another State might recognize their group’s right.
• What two rights make up the Right to “Equality before the Court”? What do these rights involve? Equal Access – Everyone is entitled to avail themselves of the court system on equal terms and the State may not impose any distinctions between people that are not justifiable as “objective and reasonable”. Equality of Arms – The court must treat both the State and the criminal defendant equally with respect to resources and acts. Distinctions may only be made if justifiable as “objective and reasonable”.
• What limitations exist on the death penalty? Any individual sentenced to death must be given a fair trial and must have the right to appeal for a pardon or commutation of the sentence. Juveniles (at the time of the crime) may not be subjected to the death penalty. Pregnant women may not be given the death penalty. The death penalty may only be given for the "most serious crimes". Furthermore, the imposition of the death penalty may not be contrary to any other ICCPR provisions. In the end, the HRC expects all States to at least start moving towards abolition of the death penalty, so there is arguably also a limitation against a State increasing its use of the death penalty.
• When figuring out whether a defendant has had enough time to prepare a defense, what elements of the case are considered? The complexity of the case The availability of resources on short notice Any specific problems that arise from the short notice Whether the attorney has actually been able to prepare a defense
• Aside from the death penalty, under what circumstances can a State actually deprive a person of their life? Where it is not “arbitrarily” doing so. In other words, where the deprivation of that life is both necessary and proportionate to the goal to be achieved.
• How does the existence of treaty reservations undermine the protection of human rights? Many States have taken reservations to various international human rights treaties, thereby exempting themselves from having to comply with different human rights within those treaty regimes. In this way, the protection of human rights is weakened
• The ICCPR sets up binding human rights. What mechanisms does it create to ensure that Member States comply with these human rights? Individual Complaints Inter-State Complaints General Comments State Reports
• May a State legalize euthanasia? And if so, what limitations exist in this regard? The HRC has given States the discretion to legalize euthanasia if they so choose. However, the State may not actively participate in the taking of a person’s life. The euthanasia must be done by a neutral 3rd party
• At what three levels are human rights enforced? Human rights are generally enforced at the international level (the HRC), the regional level (ECtHR), and the domestic level (local courts).

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