MA in Theory and Practice of Human Rights

LW990

Law Core Course

Discussion Groups

2013-2014

Module Director: JudithBueno de Mesquita

Module Coordinator: Daragh Murray

This document contains the topics of discussion as well as the outline and reading list for the discussion groups. The Discussions are designed to further enhance your ability to critically examine human rights issues by way of role-play exercises and discussions in smaller groups. You should come to the discussion groups ready to discuss the concepts and ideas covered in the lecture and the readings. During the discussion groups you are all expected to participate in general discussions, role-play exercises, and presentations. Please make sure that you do the essential reading for the discussion group and prepare the assigned exercise.

Please take care to find out which group you are assigned to and make a careful note of the time and dates of the meetings.

Group 1 meets in every other week, Thursdays 4:00-6:00 in TC1.6(starting from 24th October)

Group 2 meets in every other week, Thursdays 4:00-6:00 in TC1.6 (starting from 31stOctober)

Please note that once you have been assigned to a group, you will not be allowed to move to another one unless you are experiencing a clash with another course. We regret we cannot accommodate changes for other reasons.

Discussion Group 1: Week 4 (Group 1)

Week 5 (Group 2)

PUBLIC INTERNATIONAL LAW: CUSTOMARY INTERNATIONAL LAW

This discussion group is an opportunity to review weeks 2 “General Introduction to International Law” and 3 “The Sources of International Law” and answer questions on these topics.

Carefully read the following paragraph of the Inter-American Court on Human Rights Advisory Opinion 18 on the Juridical Condition and Rights of the Undocumented Migrants, and answer the questions below.

  1. “101. Accordingly, this Court considers that the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws. Nowadays, no legal act that is in conflict with this fundamental principle is acceptable, and discriminatory treatment of any person, owing to gender, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, nationality, age, economic situation, property, civil status, birth or any other status is unacceptable. This principle (equality and non-discrimination) forms part of general international law. At the existing stage of the development of international law, the fundamental principle of equality and non-discrimination has entered the realm of jus cogens.”
    Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, September 17, 2003, Inter-Am. Ct. H.R. (Ser. A) No. 18 (2003).
  1. What is jus cogens?
  2. What is general international law?
  3. Is an advisory opinion a source of international law?
  4. Do you consider that all the grounds of non-discrimination mentioned in the advisory opinion have the same status under international law? If not, why? How would you prove that something is custom under international law?
  5. Assume you are a lawyer working for an NGO which is considering using Advisory Opinion 18 of the Inter-American Court to support the view that discrimination based on sexual orientation is prohibited under international law and that such a prohibition has customary international law status. The NGO you are working for is currently defending a man who has been denied inheritance rights in relation to his male partner with whom he has been living for over 20 years before his death. You are consulted by the NGO. In particular the NGO asks two questions and for a piece of advice:
  6. What is the legal force of the Advisory Opinion?
  7. Is what it says an accurate reflection of international law or only of regional custom?
  8. The NGO would like to know how to prove that, under international law, the prohibition of discrimination on the ground of sexual orientation has customary law status.

Read the following statement by Philip Alston in an article he wrote for the Human Rights Quarterly:

  1. “[…] At first glance it would seem relatively easy to make the case that the aim of ensuring that the MDGs (Millennium Development Goals) are met within their respective time frames has assumed the status of a binding obligation upon governments by virtue of the fact that they have reiterated the commitment so frequently and on so many solemn occasions.”

Answer the following questions:

  1. What are the arguments for and against considering that the MDGs reflect parts of customary international law?
  2. Which parts of the MDGs can or should be considered customary international law?
  3. Compare and contrast the MDGs with the Universal Declaration of Human Rights (UDHR).
  4. Which parts of the UDHR are customary international law?
  5. Why, in your opinion, has it been less controversial to consider the MDGs as customary international law than it is to consider the UDHR as such?

Readings:

The UN Millennium Development Goals, available online

Universal Declaration of Human Rights

Alston, P., ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen Through the Lens of the Millennium Development Goals’, Human Rights Quarterly 27 (2005), 755-829 – read with particular attention to pages 771-775

Rodley, N., ‘Soft Law, Tough Standards: Non-Treaty Instruments Relevant to the Protection of the Rights to Life and Humane Treatment’, Interrights Bulletin, (1993) Vol.7, No.3, pp.43-46 – this article is available in the LW990 reading pack.

Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, September 17, 2003, Inter-Am. Ct. H.R. (Ser. A) No. 18 (2003)

Further readings:

Nankani, G., Page, J., and Judge, L., ‘Human Rights and Poverty Reduction Strategies: Moving Towards Convergence?, in Alston, P., and Robinson, M. (eds.), Human Rights and Development: Towards Mutual Reinforcement (Oxford, Oxford University Press: 2005)

Discussion Group 2: Week 6 (Group 1)

Week 7 (Group 2)

PUBLIC INTERNATIONAL LAW: NON-STATE ACTORS, IMMUNITIES, JURISDICTION and STATE RESPONSIBILITY

At the end of the first DG, each class will be divided into three groups, A, B, and C. Each group will take responsibility for preparing the correspondingquestion below (ie. Group A will prepare question A, Group B will prepare question B, and Group C will prepare question C). You will present your advice in the DG session. Each group will also read and discuss the other two questions for the purpose of your own learning and for discussion during the seminar.

A. Owing to serious disturbances in Arcadia, the government has declared a state of emergency. The government of Arcadia has hired a private security company incorporated in Bognia to provide security around government buildings. During the course of a peaceful demonstration outside the Ministry of Defence, an employee of the company opened fire without any provocation and killed Fred, a by-stander who was not even taking part in the demonstration.

After Fred’s killing, his widow (Flossie) and children left Arcadia and went to live in Cornucopia. Whilst in Cornucopia, they sought to institute civil proceedings before the courts of Cornucopia against the company for the death of Fred. The company asserted that it was entitled to sovereign immunity.

Advise the Court as to whether the company is entitled to rely on sovereign immunity.

B. Fred’s widow, worried that she may not be able to recover compensation from the courts in Cornucopia, wants to bring a human rights complaint before the Human Rights Committee. Arcadia has ratified both the ICCPR and the first Protocol. Her complaint is that Arcadia is either responsible for killing Fred or that it failed to protect his right to life. She is worried that Arcadia will argue that the private security company was completely independent of the government and that they are therefore not responsible for Fred’s death.

Advise Flossie

  1. whether Arcadia is directly responsible for the killing of Fred, AND
  2. whether Arcadia is indirectly responsible, not for the killing itself but for the failure to protect the right to life of Fred.

C. Flossie also wants the individual who shot Fred to be prosecuted. The killing, along with many other killings, acts of torture and disappearances, has not been properly investigated by the Arcadian authorities. They have simply opened an investigation file. It is clear that there is no prospect of the killer being tried in Arcadia.

Assume for the purposes of this question that a. the situation in Arcadia constitutes a non-international armed conflict and b. the evidence strongly suggests that the perpetrator intentionally and knowingly shot dead an innocent civilian. The intentional killing of a civilian in a non-international armed conflict is both a war crime and an international crime.

Flossie wants to know whether there is any prospect of getting Bognia or Cornucopia to try the individual. Both States have extradition treaties with Arcadia. The suspected perpetrator is a Bognian national.

What information do you need to know about the domestic law in Bognia and Cornucopia in order to know whether there is any prospect of the suspected killer being tried in those courts?

Discussion Group 3: Week 8 (Group 1)

Week 9 (Group 2)

HOW CAN THE UN, IN PARTICULAR THE HUMAN RIGHTS COUNCIL AND ITS SPECIAL PROCEDURES, RESPOND TO GROSS OR WIDESPREAD HUMAN RIGHTS VIOLATIONS?

Hegemonia is a country consisting of various linguistic, religious and ethnic groups. It is a federated State, and is federated into eight provinces, each of which has a majority of one of these groups and substantial minorities from the other groups. For fifty years the federal state and the provinces were under the control of a single political party, backed up by a powerful military. One of the provinces, Separatia, declares its independence as a sovereign state. Five others follow Separatia with unilateral declarations of independence. The federal government refuses to accept these declarations, brands the provincial leaders as traitors, arrests them, and threatens to arrest and prosecute as traitors any citizen of Hegemonia supporting the attempted secessions. Armed groups, supported by the police in the secessionist provinces, spring up in those provinces and attack violently federal property and personnel, military and civilian alike.

By way of reaction, the federal military round up anyone they suspect of supporting the secessions and especially the pro-secessionist armed groups. Some of those arrested are detained in camps, some “disappear”, others are murdered and most are tortured for the purpose of extracting information and confessions, or by way of general intimidation of the populations of the secessionist provinces.

A number of governments in neighbouring states, some of which are being compelled to receive thousands of refugees, decide to bring the matter to the United Nations. What are the options? In particular, some seek a special session of the UN Human Rights Council, sixteen of whose members agree to the session. At such a session, what might take place?

Hegemonia has secured influence over a number of allied States that are Members of the Human Rights Council. These States have promised to vote on the basis of Hegemonia’s position.

Shortly before the Commission on Human Rights was replaced by the Human Rights Council, the Commission established a country specific Special Rapporteur on Hegemonia. This Rapporteur, however, has not yet visited Hegemonia. The Government of Hegemonia has said that the Rapporteur is welcome to visit but has declined to find a convenient time for the mission to take place.Hegemonia, not a member state of the Human Rights Council, is also scheduled to present its universal periodic review to the Council during the next session of the UPR mechanism in 2013.

At the end of the second DG, the following roles will be assigned to be played at a special session of the Human Rights Council:

  1. Hegemonia. (2 people)
  2. The secessionist provinces (members to clarify how they can participate in the negotiation?) (2 people)
  3. Neighbouring countrieswho are concerned by the refugee problem and wish to ensure a speedy resolution to the conflict. (2/3+ people)
  4. Countries whose priority is to protect Hegemonia’s territorial integrity and/or who fear creating a “dangerous precedent”. (2/3+ people)
  5. Allies of Hegemonia (2 people)
  6. International human rights NGOs. (Human Rights Watch; International Commission of Jurists and the Minority Rights Group – 1 person per organisation)
  7. The UN High Commissioner for Human Rights. (1 person)
  8. The UN High Commissioner for Refugees. (1 person)
  9. The Special Rapporteur on Hegemonia. (1 person)

2 days before the DG is due to take place, representatives from the first group of neighbouring countries and representatives from the second group of States seeking to protect Hegemonia’s territorial integrity should each prepare and circulate a draft resolution from their group (i.e. one resolution from each of the two groups) to ALL the people identified above. In order to ensure that there is adequate time for negotiation and discussion in the seminar, please limit your resolutions to four preambular paragraphs and six operative paragraphs.

All participants in the special session should prepare a one-page written statement setting out their positions on the issue and on the resolutions. The NGOs (group 5) should prepare a joint-statement. Statements should be circulated in advance. The DG will start with the initial statements from all parties: each group has a maximum of 2 minutes to present key points.

Groups will then begin a period of negotiation and lobbying on the basis of the draft resolutions. During your preparation, one of your tasks will be to establish whether your group can vote, or take the floor of the Council during drafting of the resolution. If you are not able to do so, please consider how you might influence the outcome of the resolution before the DG, or during discussion. The goal of the DG is to come up with a resolution acceptable to all the members of the Human Rights Council present. Explanations of votes may be made at the end of class, during voting on the final resolution.

Readings:

Go to the website of OHCHR, click on the Human Rights Council, click on the special sessions (19 in total between July 2006 and September 2012) that the Council has convened since it was established. Look particularly at the resolutions of the ninth special session (January 2009 on the occupied Palestinian Territories), the fourth specialsession (December 2006 on Darfur), the eleventh special session (May 2009 on Sri Lanka), the fifteenth special session (February 2011 on Libya) and the seventeenth special session (August 2011 on Syria).

Information is available online:

Look at the UPR website and States reports:

Discussion Group 4: Week 10(Group 1)

Week 11 (Group 2)

UN TREATY MONITORING BODIES

The following case deals with the situation in the state of Minos. The creation of a suitable action plan to be implemented before the UN treaty monitoring bodies will be discussed in plenary during the Discussion Group. The class will be divided into four groups, and it is your job to prepare for this discussion prior to class.

The case of the state of Minos

Minos is a state in the region of Legoland, member of the United Nations and party to the ICCPR and its first Optional Protocol, ICESCR, CAT and its Optional Protocol, CERD, CRC, CEDAW and its Optional Protocol and the ICRMW. All of these instruments were ratified before the facts of this case took place.

The population of Minos is made up of two ethnic groups – the Minervas who are non white (30%) and the Eras (70%) who are white. The government of Minos, which has been in power for 7 years, is entirely comprised of Minervas. Persons belonging to the Era group are not allowed to occupy any public position as domestic law 15/2004, prohibits their recruitment by any state institution.

2 years ago, the Eras, who live in the western province of Solfeo, formed the Solfeo Liberation Army (SLA). The SLA was established to fight for Eras’ right to self-determination in Solfeo. Since the SLA commenced operations a brutal internal armed conflict has raged between the Minos government and the SLA. Reports indicate that both sides have used tactics that violate international humanitarian law and that Minos is engaged in serious human rights violations.

Alongside Minos governmental forces, a militia, known as the Itacas has formed in opposition to the SLA. The Itacas are actively fighting the SLA in Solfeo. The government of Minos denies that it has any connections with the Itacas.

In addition to the discrimination described above, press reports have indicated over the past years that governmental forces and the Itacas have engaged in a campaign of terror, disappearances, torture, arbitrary killings and arbitrary detention of Eras. Indeed, during the last year, it is alleged that more than 2,000 persons in the region have disappeared while there are more than 500 complaints of torture under detention.