Introduction – (C) Kapok Tree Diplomacy, July 2010, All rights reserved. Jeff Dwiggins, author.
As international law extends beyond traditional state-to-state interactions into matters directly involving the rights and wrongs of individuals, its pervasive encroachment directly collides with domestic law on important issues of supremacy, customary norms, jurisdiction, human rights and sovereign immunity. Courts often struggle to navigate the chasm between the two realms of international and domestic law and produce cogent, universally accepted decisions that fall within uncontested limitations and clear jurisdictions.
This paper will explore the challenges, benefits and trade-offs of a non-traditional application of international law in cases involving individuals where the dynamics of tradition, jurisdiction and human rights interact in overlapping spheres of domestic and international law, producing a compelling tug of war between competing interests. I’ll begin by examining the issue of international and universal human rights.
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Section One – International Human Rights v. The Interests of States
The Preamble of the United Nations (UN) Charter calls upon member states to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,” while Articles 55 encourages member states to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (“Preamble” and “Chapter IX”). A thorough reading of the Charter, however, doesn’t uncover any definition or mandate for human rights which has complicated a universal embrace of uniform standards for human rights.
The UN’s affirmation of the importance of human rights is limited by its lack of a centralized legislature and authority to enact and enforce binding universal human rights laws. The UN did adopt the Universal Declaration of Human Rights (UDHR) in 1948, the International Covenant on Civil and Political Rights (ICCPR) in 1966, and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966, collectively “referred to as the International Bill of Rights” (Dunoff et. al. 447). The ICCPR alone has 150 reservations attached to it by its 127 member states (Dunoff et. al. 480), attesting to the challenge of aligning state interpretation with international aspiration.
States have added several reservations to these covenants to address the challenge of balancing their own interests against international human rights obligations by protecting domestic sovereignty while adhering to the core object and purpose of the conventions. Trinidad and Tobago entered such a reservation to the First Protocol of ICCPR in Kennedy v. Trinidad and Tobago (1999) in order to retain their right to impose the death penalty on a prisoner, although the Human Rights Committee rejected the action (Dunoff et. al. 484). The U.S. Supreme Court denied certiorari in Domingues v. State of Nevada (1999), citing the validity of the U.S. reservation to the death penalty (one of four U.S. reservations to ICCPR), but then effectively reversed itself in Roper v. Simmons (2005), referencing the international trend to abolish the death penalty for people under 18 years of age (Dunoff et. al. 487).
These examples illustrate the ongoing tug of war over states’ international human rights obligations and their domestic laws. In some cases individuals may benefit from broader protections under international law, but states would argue that such trade-offs have limitations when matters of national security and public safety are at stake. Most rights within the ICCPR may even be derogated during times of “public emergency” (Dunoff et. al. 475), meaning they’re not exactly guaranteed. Nowhere is this tradeoff more visible than within the controversy surrounding human rights prohibitions on torture.
The challenge with torture is defining it. Article 1 of the Convention Against Torture (CAT) uses words like “severe pain or suffering,” “intentionally inflicted,” and “intimidating or coercing” to define torture (Dunoff et. al. 450-451). The State of Israel asserts in the Landau Commission that a “moderate degree of pressure” is not torture (Dunoff et al. 455). In an Office of Legal Counsel (OLC) memorandum, the US further defined torture within parameters that included the “threat of imminent death” or “serious physical injury … death, organ failure, or permanent damage” (Dunoff et. al 466). In other OLC memorandums, the US explained that advanced interrogation techniques do not “rise to the level of an outrage upon personal dignity” (Dunoff et. al., Chap. 7 Update), and are therefore permitted. How do you enforce something no one can define?
The CAT should benefit individuals by preventing torture. However, such subjectivity surrounding the definition of torture makes it very difficult to ascertain what exactly is being prevented. There seem to be many exceptions to the CAT, but some exceptions are merely positioned as other valid definitions by the “offending” states. Flexible definitions of torture may benefit states like Israel who espouse the necessity or “ticking time bomb” argument, saying torture prevents terrorist attacks. But states cannot possibly determine who should be tortured.
Section Two – Inalienable Civil Rights vs. Economic, Social and Cultural Rights
When governments recognize inalienable rights, individuals benefit. Inalienable rights cannot be sold or transferred without consent and are not contingent upon culture, religion, laws or customs of a particular group or government. Some states cite religion and culture as reasons for not securing inalienable rights. As D’Amato and Abbassi point out, the concept of universal human rights “is widely accepted today by states and citizens alike. Yet the practice of universal rights continues to be subject to uneven government application and contentious debate” (101).
Despite this uneven application, the reach of international law into the individual matters has produced the gradual emergence of many customary norms that secure inalienable rights and provide “protections against slavery, arbitrary arrest, detention or exile, and inhuman or degrading treatment” (Dunoff et. al. 517). The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) helped define female genital mutilation (FGM) as “persecution,” paving the way for a decision like Abay v. Ashcroft which granted asylum to an Ethiopian mother and daughter escaping FGM (Dunoff et. al. 515).
The UN Human Rights Commission’s Special Rapporteur on Violence Against Women noted in its 1999 report, “no longer are human rights guarantees restricted solely to the public sphere. They likewise apply to the private realm, including within the family, and oblige the State to act with due diligence to prevent, investigate and punish violations therein” (Dunoff et. al. 510). Nonetheless, not every family wants international interference into its private affairs. States can also be wary of excessive international interference into private or family matters.
Universal acceptance of economic, social and cultural rights has its own set of challenges. While the ICESCR seeks to promote and enforce the rights to work, social security, rest and leisure, an adequate standard of living, and freedom from hunger, it is plagued by “persistent non-reporting” by member states (Dunoff et. al. 493). Moreover, while states can encourage and promote access to these rights, they certainly cannot guarantee them as core entitlements on the same level with inalienable rights. Economic, social and cultural rights, if they are rights at all, come within the boundaries of the social contract, requiring legislation, negotiation and economic tradeoffs to grant them.
Section Three – Universal v. Domestic Jurisdiction and the Litigation of Terrorism
Questions of jurisdiction frequently accompany the expansion of international law into individual matters in both criminal and tort law. In United States v. Pizzarusso, the “protective principle” was exercised to protect state sovereignty (Dunoff et. al. 379). In United States v. Bin Laden (200), the “passive personality principle” was exercised as “defendants were indicted, inter alia, for a conspiracy to kill U.S. nationals abroad” (Dunoff et. al. 380). In a very famous case, “universal jurisdiction” was exercised by Israel to convict Adolf Eichmann, the Nazi responsible for extraordinarily atrocious “crimes against humanity,” despite the fact it was outside Israel’s territorial jurisdiction. Even irregular renditions (Prosecutor v. Nikolic), i.e. kidnapping, don’t violate human rights or affect jurisdiction if appalling crimes of humanity are involved (Dunoff et. al. 414). Two wrongs don’t make a right, however, and this practice could result in prolonged detention of the accused and politicization of the process.
Obtaining civil remedies by litigating terrorism in U.S. courts has been a mixed bag. The Cicippio-Puleo v. Iran case ruled against a private right of action against a foreign government, while 18 U.S.C. § 2333 allows “any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism … to sue … in any appropriate district court … [and] recover threefold the damages he or she sustains” (Dunoff et. al 435). While such litigation may benefit individual victims of terrorism, it could backfire in the form of copycat lawsuits by other states as well as damage foreign relations.
This analysis of the expanding reach of international law into individual matters concludes that while a limited expansion of international law into the individual sphere has successfully produced some positive results in the sphere of human rights, its jurisdiction and impact ought to be tailored around constitutional principles in a way that respects national sovereignty while simultaneously legitimizing and reinforcing the universality of inalienable rights with respect for limited cultural variations.
D’Amato, A., & Abbassi, J. (2006). International Law Today: A Handbook. St. Paul, MN, USA: Thomson/West.
Dunoff, J. L., Ratner, S. R., & Wippman, D. (2006). International Law: Norms, Actors, Process: A Problem-Oriented Approach (2nd ed.). New York, NY, USA: Aspen Publishers, Inc.
The United Nations. (1945, June 26). Charter of the United Nations. Retrieved July 17, 2010, from UN.org: http://www.un.org/en/documents/charter/index.shtml