This course offers a study of the role of authority in the decision-making processes of the world community, including both the basic constitutive process by which international law is made and applied and the public order established. Consideration is given to formal prescription and effective practice with respect to the participants in such processes (nation-states, international governmental organizations, multinational enterprises, and other private associations and individuals), arenas of interaction, bases of power (control over people, resources and institutions), practices, outcomes and effects. The principal emphasis is on the many roles of the nation-state. The materials used constitute parts of the advanced draft of a casebook written by Professor W. Michael Reisman of the Yale Law School, Dr. Mahnoush Arsanjani of the United Nations Secretariat, New York, and Professor Siegfried Wiessner of St. Thomas University School of Law.
INTRODUCTION TO HUMAN RIGHTS LAW
This introductory course on the International Law of Human Rights will provide an overview of standards, structures, and procedures designed to effectuate the international protection of human rights. It briefly presents the idea of human rights, its history, foundation, and its contemporary meaning within the realm of international law. The course mainly addresses the sources and processes of making international human rights law, encompassing universal and regional legal systems of human rights protection. The distinction between United Nations treaty bodies entrusted with monitoring and enforcing human rights obligations under various conventions, and United Nations Charter bodies, including the new Human Rights Council, addressing the promotion, implementation and enforcement of human rights will also be noted. An overview will be given of international criminal law, humanitarian law and their crossroads with the international law of human rights as well as the roles played by nation-state governments, non-governmental organizations and individual actors.
HUMAN RIGHTS AND RELIGION
The classroom component will include presentations by representatives of four faiths: Jewish, Roman Catholic Christian, Protestant Christian, and Muslim. These faiths have a great deal in common. First they are all monotheistic and recognize the early history recorded in the book of Genesis including in one form or another the creation story involving Adam and Eve and the Universal Flood that destroyed the world in which God saved Noah and his wife and three children and the wives of the three children. Second, they all recognize Abraham as a great prophet of God and claim descent, whether spiritual or directly, through him. Third, they all recognize Jesus Christ as a historic person but disagree as to his person and work. In listening to each presenter the student should consider the response of each speaker to the following topics:
(i) the validity of the human rights standards for religion as universal standards
(ii) the relationship of their faith to other faiths
(iii) the duty or right to proselytize others and the right to change your religion
(iv) the use of symbolism or special dress setting adherents of their faith apart in public
(v) the state=s right to restrain public criticism of religious persons, symbols, or truths.
(vi) the four models of state/church relations as follows:
(a) Separation Model
(b) Establishment Model
(c) The AMillet system used in Israeli
(d) Sharia Model
THE PROTECTION OF REFUGEES
The forced displacement of persons within and/or across national borders was one of the most tragic and persistent issues of the twentieth century, and it is likely to remain with us well into the twenty-first. The refugee phenomenon concerns flight across borders. While it is often associated and shares many characteristics with flight within nations, which gives rise to the phenomenon of internally displaced persons (IDPs), it is, unlike the latter, the object of a relatively well established, if in some respects fragmented, international regime. The international regime of IDPs is still in gestation, although significant progress has been made in recent years towards the identification of its principles and norms. The international refugee regime, on the other hand, started developing soon after the First World War within the context of the League of Nations and has evolved considerably since.
This course starts with an introduction to the concept of international protection of refugees and examines the various international attempts, since 1921, to meet the problem of forced movements of people across state borders due to persecution or armed conflict. This is followed by an introduction to the basics of international refugee law, including the gaps in this body of law. This leads to a comparative study of the refugee definitions as basis for the determination of refugee status (RSD), the issue of safe third countries, the problem of responsibility for determining an asylum claim, and other contentious issues relating to RSD.
Other themes include: the mandate and work of the Office of the United Nations High Commissioner for Refugees; refugee protection and human rights; asylum; non-refoulement under the 1951 Convention relating to the Status of Refugees and under general human rights law; temporary or time-limited protection and “subsidiary protection”; refugee detention and freedom of movement; refugee protection in armed conflict and complex emergencies; security of refugee camps and settlements; the protection of refugee women and the problem of sexual violence against refugees; the protection of refugee children; the solutions to the refugee problem, including the challenge of voluntary repatriation; and the future of international protection.
ETHICAL MOORINGS: PHILOSOPHICAL AND RELIGIOUS FOUNDATIONS OF HUMAN RIGHTS
This course explores the religious and philosophical roots of the development of human rights, ranging from natural law in the Aristotelian, Thomist and Kantian tradition to more pragmatic philosophies designed to bring about a public order of human dignity.
THE COVENANT ON CIVIL & POLITICAL RIGHTS: THE SCOPE OF THE RIGHTS AND THE ROLE OF THE HUMAN RIGHTS COMMITTEE
The civil and political rights as protected under the Covenant form the core of human rights protection on the international plane. The course seeks to demonstrate how this goal may be achieved.
Starting from the normative framework and its development after the adoption o the Universal declaration of Human Rights the scope of the Covenant rights as well as the duties of the States parties will be discussed. The monitoring role of the Human Rights Committee as major element in the implementation process will be closely examined.
The seminar will specifically focus on e State reporting system and the individual complaint procedure by carefully selected case studies. In conclusion, the legal consequences of violations of rights protected by the Covenant will be discussed.
HUMAN RIGHTS AND TERRORISM
This course seeks to explore and critically analyze the continuum of terror violence, its goals, its means, its perpetrators, and its intersection with all aspects of human rights. It will begin with a history of the phenomenon of terrorism, the rise of the human rights idea and the interrelationship between the two. Before, but especially after September 11, 2001, legal systems both domestic and international have responded to the unprecedented assault with a concerted global effort. This course will closely scrutinize the international legal issues arising in this context.
HUMAN RIGHTS LAWYERING
The purpose of this class is to introduce students to the assessment and analysis of a given human rights situation and the employment of human rights advocacy. Emphasis will be placed on client relationships, strategy building and an overview of useful tools in the practice of human rights lawyering.
JUSTICIABILITY OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Economic, social and cultural rights (“social rights”) have historically been viewed as distinct in nature and scope from civil and political rights. Rather than being viewed as judicially enforceable rights of immediate application, such rights have widely been considered non-justiciable programmatic goals to be achieved progressively within available resources, through political processes. This one-week intensive seminar seeks to provide the legal and analytical tools to understand why this dichotomy is false. The course will consider the international normative framework for the legal protection of social rights, the specific content of state obligations under treaties dealing with such rights, how the international social rights monitoring system functions, and the various obstacles and opportunities currently facing the judicial enforceability of social rights. The course will examine cutting-edge strategies for social rights enforcement in the legal and political spheres as well as detailed case studies on the right to health and the right to housing. It will conclude with an analysis of the procedures for bringing complaints based on social rights violations before international human rights bodies. This is a strategy-based course, focused on pragmatic approaches to promoting social rights as judicially-enforceable rights as undertaken by advocates around the world.
INTERNATIONAL CRIMINAL LAW
This course will examine selected topics and current issues in international criminal law: that is, the international aspects of criminal law and the criminal law as it bears upon international law. Accordingly, the course will treat the jurisdictional elements of domestic and international law over international criminal activities; the implications of international cooperation in criminal matters, such as extradition and mutual legal assistance; the extent to which the United States constitutional safeguards apply to law enforcement practices overseas; the substance of multilateral treaties involving war crimes and terrorism; the creation of International War Crimes Tribunals and their impact; and the international law questions posed by the granting of amnesty to war criminals.
REGIONAL SYSTEMS OF HUMAN RIGHTS PROTECTION:
1. THE INTER-AMERICAN SYSTEM
This course will explore the inter-American system for the protection of human rights. More specifically, we will closely examine and evaluate the inter-American human rights “regime”, i.e., the norms, principles, rules and regional institutions with decision-making authority that form the structure of this issue area in the Western hemisphere. The course is designed to provide students with a background in: the substantive norms of human rights; the diverse procedures available at the regional level for the defense and promotion of human rights; the direct and not-so-direct ways in which political and material interests influence the definition and enforcement of human rights, and the ways in which policymakers sometimes attempt to reconcile the demand for human rights enforcement with current domestic and/or foreign policy objectives.
2. THE AFRICAN SYSTEM
This course explores the work of the African Commission and the application of the African Charter for Human and Peoples’ Rights. It will give an overview of the historical background and general characteristics of the African charter; the organization of the Commission Mandate and Composition of the African Commission, as well as of the new African Court on Human and Peoples' Rights.
3. THE EUROPEAN SYSTEM
The European Convention on Human Rights of 4 November 1950 entered into force on 3 September 1953. Today it has been ratified by 41 of the 43 Member States of the Council of Europe. The Convention guarantees to everyone within jurisdiction of the Contracting States the most elementary human rights and fundamental freedoms. These are listed in the Convention and in 5 Protocols which have been added to it since 1952. With Russia, which became a Party to the Convention in 1996, its geographical scope ranges from the Atlantic to the Pacific and it protects more than 800 million people. The European Court of Human Rights, which was set up in 1959 and then, in 1998, put on a full-time footing, ensures that the Convention States fulfill their undertakings. In the 40 years of its existence the Court has delivered about 1800 judgments interpreting and applying all the substantive provisions of the Convention and certain of those of the additional Protocols.
HUMAN RIGHTS AND THE ENVIRONMENT
This one-week intensive course looks at the linkages between human rights and the environment, how such linkages can assist efforts to protect both human rights and the environment, and what further collaboration between these two fields might be pursued. This includes discussion of specific human rights that implicate the environment and the cases interpreting such rights, the use of the United Nations and regional human rights systems, as well as national courts, for enforcing human rights to protect environmental interests, and how human rights may be applied directly to corporations to protect the environment. Field trip to Florida’s Everglades.
INTERNATIONAL ECONOMIC LAW AND HUMAN RIGHTS
The principal objective of this course is to analyze the process of transformation of international economic law and to assess what has been achieved in light of ever more important concerns relating to the effective protection of human rights. Special emphasis will be put on the WTO, the World Bank, the IMF, the OECD, and the EU. Economic freedom such as freedom of establishment, movement of persons, goods, services, and capital will be discussed, just as the content and impact of economic, social, labor as well as civil and political rights.
WOMEN’S RIGHTS AND RIGHTS OF THE CHILD
While human rights law has become a staple in legal discourse, women’s human rights still lack this universal recognition. Human rights violations of women tend to be recognized only if such violations resemble those of men. Women who are tortured for their political beliefs are granted the same protections as men in the same position. However, if the abuse takes other, gender-specific forms, such as rape and forced impregnation, involves non-political, i.e., social and economic rights, or is inflicted by private rather than governmental actors, human rights protections are being disregarded. In part this is a function of the universal subjugation of women; in part it is a function of the current human rights system which values male-identified rights, i.e., political rights, above others and focuses on abuses by governmental actors.
Because of the general disregard of women’s rights it is important to highlight the particular issues women face which involve violations of human rights. Such violations occur in the United States as well as internationally. In some cases women are treated differently even though there is no justifiable gender-based reason; in others women are treated the same as men even though unequal treatment would be more appropriate; in a third group of cases women are treated (un)equally because of a perceived gender difference.
This course explores issues of humanitarian law faced by professionals of war, relief workers, humanitarian organizations and others working in complex emergencies. Students will explore and analyze emerging and controversial aspects of law and policy. With the proliferation of conflicts around the globe, humanitarian organizations are being forced into new and unfamiliar territory. Increasingly, humanitarian professionals are attempting to provide relief in settings of diminished security and are grappling with the growing involvement of non-state actors - from rebel groups to private corporations to humanitarian organizations themselves - in situations of armed conflict. This course provides prospective humanitarian and human rights professionals with an opportunity to consider the relevance of international humanitarian law in the present conflict-ridden global social process.
LL.M. IHR THESIS
The topic has to be related, in the broadest sense possible, to the field of human rights. If it relates to a societal problem addressed by the law, we suggest using the detailed problem- and policy-oriented analysis developed by policy-oriented jurisprudence. It consists of the following steps:
(1) Careful delimitation of the problem;
(2) Outlining of conflicting claims, claimants, their bases of power, identifications, values, etc.;
(3) Identification of past trends in decision and their conditioning factors (both pre-dispositional and environmental);
(4) Prediction of future decisions; and
(5) Discussion of alternative and selection of preferred solutions in the common interest of a public order of human dignity (approximating widest possible access to all things human beings value).
Other topics of a more jurisprudential mold, e.g. methodological critiques, have their own structures and organizational frameworks. Ultimately, the method chosen should be best suited to the topic addressed, and be worked out in conjunction with the thesis supervisor.