HUMAN RIGHTS OUTLINE
1. Pre-World War II
(a) Limited scope for International Law
(b) Rights of aliens in State Responsibility law
(c) Rights of minorities
(d) Self-determination
2. World War II – Significance of the Holocaust
3. The United Nations Charter
(a) The “Reserved Domain” cf. Human Rights
(b) Articles 1, 55 and 56
(c) Absence of a definition of Human Rights
4. The Universal Declaration of Human Rights of 1948
(a) Note “Universal” emphasis and the question of cultural relativism
(b) Role in defining rights
(c) General Assembly Resolution – not automatically binding
(d) Combines First and Second Generation human rights
(e) Status in politics and law – authoritative humanitarian statement
regarded by several States as customary international law
5. The ICCPR and the ICESCR
(a) Western perspective in favour of civil and political rights – 173 States
Parties today; St. Lucia and Cuba not in, but other Caribbean States are.
(b) East Bloc views in favour of economic, social and cultural rights; the
approach to rights taken in Article 2
(c) Development of Protocols – Note Jamaica and Trinidad and Tobago re
First Optional Protocol to the ICCPR
(d) Pryce v. Jamaica; Kennedy v. Trinidad and Tobago
(e) Second Optional Protocol on the Death Penalty
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6. Other multilateral treaties
(a) CERD;
(b) CEDAW;
(c) CRC;
(d) CAT;
(e) Persons on Persons with Disabilities;
(f) Migrant Workers Convention
7. Consider whether the treaties reflect customary international law
(a) Caribbean practice – States parties? Constitutional law
(b) US practice
(c) Elaboration of ICCPR, ICESCR?
(d) Opinio juris in State responses before the UNHRC
(e) Comments
(f) UPR
8. Regional Treaties
(a) Significance of the ECHR
(b) American Convention on Human Rights
(c) African Charter on Human and Peoples’ Rights
9. The Inter-American Human Rights System
(a) Jurisdictional questions
(b) Political reactions – Venezuela, Brazil, Dominican Republic, Caribbean
(c) Universality? Caribbean membership
(d) Location of headquarters of IACHR
(e) Precautionary Measures
(f) The Annual Report
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(g) Other areas of reform?
10. Commonwealth Caribbean perspectives on human rights –
mainstream?
11. The Death Penalty – Caribbean issues
(a) ICCPR – Articles 6 and 7; see Ng v. Canada on compatibility of different
forms of the death penalty with Article 7
(b) ACHR – Articles 4 and 5; note especially differences between Article 4,
American Convention and Article 6, ICCPR
(c) Pratt and Morgan v. AG of Jamaica
(d) Neville Lewis v. AG of Jamaica
(e) The time dilemma
(f) Withdrawal from First Optional Protocol; Kennedy v. Trinidad and Tobago
(g) Boyce and Joseph before the CCJ
(h) The mandatory death penalty: Reyes, Hughes, Fox, Charles Matthew,
Boyce and Joseph before the Privy Council; Lambert Watson
(i) The CCJ on the mandatory death penalty – Nervais and Severin v. R
(j) Trimmingham v. The State
(k) Political considerations: local perspectives, the London Group,
majoritarian views
(l) Customary law: European emphasis, Latin American positions; the
situation in the USA; China; the ICC; General Comments of the UNHR
Committee; parliamentary votes; Caribbean statements; persistent
dissent.
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ICCPR
Article 6
1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
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2. In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance with
the law in force at the time of the commission of the crime and not contrary
to the provisions of the present Covenant and to the Convention on the
Prevention and Punishment of the Crime of Genocide. This penalty can only
be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood
that nothing in this article shall authorize any State Party to the present
Covenant to derogate in any way from any obligation assumed under the
provisions of the Convention on the Prevention and Punishment of the Crime
of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of the
sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons
below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition
of capital punishment by any State Party to the present Covenant.
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without
his free consent to medical or scientific experimentation.
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General Comment No. 6 (1982) – UN Human Rights Committee
6. While it follows from article 6 (2) to (6) that States parties are not obliged
to abolish the death penalty totally they are obliged to limit its use and, in
particular, to abolish it for other than the “most serious crimes”.
Accordingly, they ought to consider reviewing their criminal laws in this light
and, in any event, are obliged to restrict the application of the death penalty
to the “most serious crimes”. The article also refers generally to abolition in
terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable.
The Committee concludes that all measures of abolition should be
considered as progress in the enjoyment of the right to life within the
meaning of article 40, and should as such be reported to the Committee. The
Committee notes that a number of States have already abolished the death
penalty or suspended its application. Nevertheless, States’ reports show that
progress made towards abolishing or limiting the application of the death
penalty is quite inadequate.
7. The Committee is of the opinion that the expression “most serious
crimes” must be read restrictively to mean that the death penalty should be
a quite exceptional measure. It also follows from the express terms of article
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6 that it can only be imposed in accordance with the law in force at the time
of the commission of the crime and not contrary to the Covenant. The
procedural guarantees therein prescribed must be observed, including the
right to a fair hearing by an independent tribunal, the presumption of
innocence, the minimum guarantees for the defence, and the right to review
by a higher tribunal. These rights are applicable in addition to the particular
right to seek pardon or commutation of the sentence.
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American Convention on Human Rights
Article 4. Right to Life
1. Every person has the right to have his life respected. This right shall be
protected by law and, in general, from the moment of conception. No one
shall be arbitrarily deprived of his life.
2. In countries that have not abolished the death penalty, it may be
imposed only for the most serious crimes and pursuant to a final judgment
rendered by a competent court and in accordance with a law establishing
such punishment, enacted prior to the commission of the crime. The
application of such punishment shall not be extended to crimes to which it
does not presently apply.
3. The death penalty shall not be reestablished in states that have
abolished it.
4. In no case shall capital punishment be inflicted for political offenses or
related common crimes.
5. Capital punishment shall not be imposed upon persons who, at the
time the crime was committed, were under 18 years of age or over 70 years
of age; nor shall it be applied to pregnant women.
6. Every person condemned to death shall have the right to apply for
amnesty, pardon, or commutation of sentence, which may be granted in all
cases. Capital punishment shall not be imposed while such a petition is
pending decision by the competent authority.
Article 5. Right to Humane Treatment
1. Every person has the right to have his physical, mental, and moral
integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All persons deprived of their liberty shall be
treated with respect for the inherent dignity of the human person.
3. Punishment shall not be extended to any person other than the
criminal.
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4. Accused persons shall, save in exceptional circumstances, be
segregated from convicted persons, and shall be subject to separate
treatment appropriate to their status as unconvicted persons.
5. Minors while subject to criminal proceedings shall be separated from
adults and brought before specialized tribunals, as speedily as possible, so
that they may be treated in accordance with their status as minors.
6. Punishments consisting of deprivation of liberty shall have as an
essential aim the reform and social readaptation of the prisoners.
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12. Abortion
(a) ICCPR – Article 6, no express provision; the problem of defining when “life”
begins
(b) American Convention on Human Rights – Article 4, life begins at conception,
“in general”; the Baby Boy Case re the USA; Inter-American Court of Human
Rights decision on IVF reviews legislative history of Article 4 in Artavia
Murillo v. Costa Rica
(c) National practice in various directions; uncertainty about customary
international law
(d) United Nations Human Rights Committee – General Comment No. 36 on the
Right to Life, paragraph 8 on the Voluntary Termination of Pregnancy (see
below for text)
(e) USA practice – Roe v. Wade – right to privacy; Planned Parenthood v. Casey;
Whole Woman’s Health v. Hellerstedt; June Medical Services v. Russo; “undue
burden”; the position of Republican-appointed judges; the position of
Democratic-appointed judges; right to life arguments; the right to choose.
(f) Caribbean States – Barbados’ Termination of Pregnancy Act (1983);
Guyana’s Termination of Pregnancy Act (1995); Jamaica’s Sections 72 and
73 of the Offences against the Person Act; Trinidad and Tobago’s Section 56,
OAPA; R v. Bourne; R v. Newton and Stungo; St. Lucia, Section 166 of the
Criminal Code
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General Comment No. 36 on the Right to Life (2018)
Paragraph 8 on Voluntary Termination of Pregnancy
8. Although States parties may adopt measures designed to regulate
voluntary terminations of pregnancy, such measures must not result in
violation of the right to life of a pregnant woman or girl, or her other rights
under the Covenant. Thus, restrictions on the ability of women or girls to
seek abortion must not, inter alia, jeopardize their lives, subject them to
physical or mental pain or suffering which violates article 7 (ICCPR),
discriminate against them or arbitrarily interfere with their privacy. States
parties must provide safe, legal and effective access to abortion where the life
and health of the pregnant woman or girl is at risk, or where carrying a
pregnancy to term would cause the pregnant woman or girl substantial pain
or suffering, most notably where the pregnancy is the result of rape or incest
or is not viable. In addition, States parties may not regulate pregnancy or
abortion in all other cases in a manner that runs contrary to their duty to
ensure that women and girls do not have to undertake unsafe abortions, and
they should revise their abortion laws accordingly. For example, they should
not take measures such as criminalizing pregnancies by unmarried women
or apply criminal sanctions against women and girls undergoing abortion or
against medical service providers assisting them in doing so, since taking
such measures compel women and girls to resort to unsafe abortion. States
parties should not introduce new barriers and should remove existing
barriers that deny effective access by women and girls to safe and legal
abortion, including barriers caused as a result of the exercise of
conscientious objection by individual medical providers. States parties
should also effectively protect the lives of women and girls against the
mental and physical health risks associated with unsafe abortions. In
particular, they should ensure access for women and men, and, especially,
girls and boys, to quality and evidence-based information and education
about sexual and reproductive health and to a wide range of affordable
contraceptive methods, and prevent the stigmatization of women and girls
seeking abortion. States parties should ensure the availability of, and
effective access to, quality prenatal and post-abortion health care for women
and girls, in all circumstances, and on a confidential basis.
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13. The International Criminal Court
(a) The Rome Statute – No impunity. 123 States Parties, 33 from Africa, 25
West European, 28 from Latin America and the Caribbean.
(b) The conceptual problem of “victor’s justice” – the Nuremberg precedent
(c) The sovereignty argument
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(d) Jurisdiction – War crimes, crimes against humanity, genocide,
aggression. Note severity of crimes. No inclusion of drug trafficking
(e) Complementarity
(f) U.S. position – the Clinton Administration’s signature, unsigning of the
Rome State, opposition to jurisdiction, reference to special position of the
USA, the Obama administration’s change of attitude, the Trump
administration’s sanction against the Chief Prosecutor
(g) Article 98 Agreements – threats of sanctions, exclusion of US from duty
to surrender persons to the ICC; US Service Members Protection Act
(h) Europe – generally supportive, but not Russia. Not China.
(i) Caribbean – States parties include Antigua and Barbuda, Barbados,
Belize, Dominica, Grenada, Guyana, St. Kitts-Nevis, St. Lucia, St.
Vincent and the Grenadines, Trinidad and Tobago, Suriname
(j) The Jamaican argument on Double Jeopardy
(k) Africa – the accusation of bias. Facts on the ground?
14. Refugee Issues
(a) Caribbean context – Location, size, open access
(b) Arrangements in Convention – Refugees Convention (1951) and Protocol
(1967); Eurocentric criticism; 146 parties to Convention; 147 parties to
Protocol; Madagascar and St. Kitts in Convention only; USA, Cape Verde
and Venezuela in Protocol only.
(c) Caribbean non-parties to Protocol include: Guyana, St. Lucia, Grenada,
Barbados, Cuba.
(d) Caribbean parties to Protocol include: Antigua and Barbuda, Dominica,
St. Vincent & the Grenadines, Bahamas, Trinidad and Tobago, Jamaica,
Haiti, Dominican Republic
(e) Definition of “refugee”; Article 1(A)(2); outside country; Convention
grounds – race, religion, social group, political opinion, nationality; “well-
founded fear of persecution – objective or subjective standard? State-
based only? Temporary? Economic considerations; persecution v.
prosecution
(f) Situational analysis: Haiti, Cuba, Venezuela, Myanmar, Africa to Europe;
Latin America to USA; Caribbean nationals re gay rights
(g) Non-refoulement (Article 33 (1))
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(h) Security (Article 33 (2)) – the “guns for drugs” argument; terrorism
(i) Convention rights – access to courts, respect for marital status, identity
papers
(j) Convention rights, national treatment: taxes, religion, elementary
education, public relief, labour legislation (including health-related
payments)
(k) Convention rights, mfn treatment: housing, property rights, employment,
professions, higher education, movement rights
(l) “Floodgates” – e.g. PM Eugenia Charles’ response to Congressman Rangel
(m) Reform? (1) Some suggest scrapping the treaty entirely. (2) Note
proposals that would broaden the definition of refugees, cf restrictions on
definition; allow economic migrants, persons fleeing environmental
problems, giving definition to “social groups”. (3) Clarify access to courts.
(4) Consider a cap on refugee numbers
(n) Customary law? (1) 147 States Parties as significant State Practice; but
46 States will argue they deliberately stayed out precisely to avoid the
treaty rules; (2) Consider opinio juris of States that have stayed out; (3)
Consider State Practice on particular provisions (e.g. non-refoulement; (4)
Consider regional custom; (5) persistent objection?