7. HUMAN RIGHTS AND INTERNATIONAL LAW.

Introduction to HUMAN
RIGHTS/JURISDICTION/JUSTIFICATION

INTRODUCTION
Human rights have 2 different dimensions:
- Morality  grounding/justification of these
- Legal system: Positive Law, effectiveness. Moral claims are rules that are not codified,
they have to be part of the legal system to achieve effectiveness.
Human rights are universal (universal declaration of human rights) and unalienable (we
cannot renounce to our freedom, become slaves)
2 branches of international law affecting it
- International Human Rights Law, through treaties/conventions, applied in very
context
- International Humanitarian Law, applied only in armed conflicts (Genova convention)
When we need to justify Human Rights, we find the answer in morality.
A. HUMAN DIGNITY
Human dignity: traditionally thought as the last foundation of human rights --> only acceptable
with a specific connection to freedom. Distinction between:
- Human dignity: foundation of human rights, as it serves as a starting point for the
recognition of rights
- Dignified human life: the development of life in accordance to human dignity, the
objective to be achieved  this should be the last foundation of human rights, as
determining the characteristic of human dignity proves an unsolvable problem

Answers to the problem of determining the characteristics of human dignity:

- Not attached to human rights. In the middle ages, a person in a wheelchair/autistic
doesn´t have dignity, we exclude some individuals.
- Including the idea of fundamental rights: It is understood that certain feature of human
nature are to be highlighted because they are the one´s determining the dignity of human
beings. However, this could lead to
• Denying fundamental rights to those people to whom the characteristics that
define human dignity don´t apply
• The characteristic not deriving from the recognition, respect and protection of
human rights
The human dignity is the dignity that every human being possesses simply because they are a
human being. Therefore The ultimate foundation of fundamental rights lies in dignified
human life:
- In the development of a life according to what each person considers to be his own
dignity as a human being.
- Recognition, respect and protection of every person so that they may develop their
own conception of what constitutes their dignity according to their will.
 B. FREEDOM
Last ground of human rights  freedom, that means to have a dignified life.
Idea of moral agency: we have moral freedom  We can choose our life plans and make
decisions to make them reality. This is the last freedom, the definite freedom. The recognition,
respect and protection of the freedom/will of the individual to design their own life plans and
act to achieve its effective implementation. To get to moral freedom  we need legal
freedom.
2 types of freedom:
- Formal or Liberal Freedoms:
o Relates to the first type of rights: individual and civil rights. These rights can be
defined as a “sphere of autonomy” against other individuals. And the state secures
the absence of interferences in the free will and action of individuals.
o Ex: freedom of conscience, religious freedom, freedom of speech, freedom of
press, privacy, procedural warrants, universal suffrage, freedom of association
- Real Freedoms or material requirements for the exercise of real freedoms:
o Relate to the second types of right: Economic, Social and cultural Rights.
o Directly linked to the issue of equality, or real equality spheres. Examples: right to
work and to just and favourable conditions of work, right to social security and
health, right to education, right to housing. - cultural rights: related to language
and religion.
LEGAL FREEDOM/JURISDICTION
Free choice/free will is the final point achieved from the starting point (moral rights), achieved
through legal freedom.
When does the state have the justification/legitimation to limit our moral freedom/free will,
choice?
- Harm principle. When we are harming other parties or ourselves. Even though
someone will might be to do something (cross the bridge), the state must intervene to
achieve the individual real will (not to fall to the river)
- Paternalistic method  restricts our freedom, tells us how to behave  can be
justified or not. Ex. force us to use the seat belt, as it´s justified.
These limitations are justified by people being uninformed, incompetent in making
decisions  the states avoids them harm (Ex. drug addicts being forced to rehabilitate)
- Moral legalism: Restricting people´s moral freedom based on the idea that the use of
liberty can be harmful for society as a whole. Not justified by the human rights point
of view. Uses criminal law to restrict this. Ex. Criminalizing sodomy is restricting
behavior that doesn´t either harm other people or the perpetrators, but because is
bad for society (is against god).
Ex. euthanasia, two views
- Restrict on paternalistic grounds  harming yourself, or is wrong for society (moral
legalism)
- Not restrict  part of moral freedom, to choose your life plan, int this case end your
life , defended by human rights
 C. EQUALITY
Equality, a normative principle (we are not equal). We must be all considered equally free,
although we are different .Two great types:
- Formal or Liberal Equality:
- Equality before the law (formal equality, part of the liberal state). Law should be done
in a general way, without discriminating anyone
- Principle of non discrimination (liberal state). Laws may no establish different legal
consequences for persons belonging to any human group on irrelevant grounds/topics
(race, gender, religion). However, there are relevant differences that have different
treatment (people under 18).
- The obligation to recognize, respect and protect the development of a person’s life
plans compels us to
• Not to hinder this development (obligation not to interfering by the State or
an individual)
• Only requires us to act when the actions taken for this development involve
and illegitimate harm to the development of other people’s life plans.
• Consider all life plans are equally valuable and, therefore, a life plan cannot be
achieved at the expense of harming other life plans
It is necessary not only not interfering by the State or other individuals, but also ensure that
everyone could be in a situation of equal opportunities to meet their life plans.
There are socially disadvantaged groups /people in poverty  there´s not freedom, there is
not an ability to achieve one´s plan  we need cultural, economic and social rights that meet
the basic needs of those who cant  to warrant freedom and achieve material equality, equal
opportunity. Founded on the value of solidarity
-Real Equality or material requirements to be in equal conditions and for the exercise of real
freedoms. Idea of Material equality requires different dimensions: (welfare state)
- Prohibition of indirect discriminations. A neutral regulation applied to the generic
person, that because of not taking into account social disadvantages, at the end
produces discrimination. For example:
• High entrance marks for university. In theory is rational and justified, but in
most places social class determines the quality of education, and the ability to
get good grades  marginalized/poor people are discriminated.
• Work 8 hours, women have to feed their children, and have to make more
hours
- Reasonable accommodation. The necessary and appropriate modifications and
adaptations of the physical, social and attitudinal environment to suit the specific
needs of people with disabilities. They should not impose a disproportionate or unjust
burden
- Positive equalization (on individual grounds). Give privileges to people who don’t have
them. Not because they are on a discriminated group, but because of their individual
features makes them discriminated, and the state tries to balance their opportunities.
- Positive actions(on group grounds). Actions taken by the State giving benefits to
groups object to discrimination, therefore in a situation of social disadvantage
 D. SOLIDARITY
The community takes on a vital importance for the life of individuals:
 The individual has no real existence without the community
 The community is responsible to a large extent of the fact that individuals who belong
to it may or may not develop their plans in a satisfactory manner.
The recognition of the importance of the community needs to assume that the respect,
recognition and protection for other people’s life plans may, in certain occasions, require a
direct sacrifice of our compliance with life plans (empathy, redistribution….).

THE UNIVERSALITY OF HUMAN RIGHTS

The universality is a characteristic that is usually highlighted as being distinctive and
fundamental of the idea of rights. And it is referring to several issues (related but different):
1. The term “universality” is commonly employed to refer to the idea that the value of
human rights is not related to a particular culture.
2. It refers to the idea that all human beings are entitled to human rights. If we accept
human rights, we shall have to declare them universally without exception.
3. The universality in regards to owners is a formal feature of the definition of human
rights but equally a requirement of the principle of moral university since it would not
be justifiable that an individual was a human rights holder whilst another person who
belonged to the same group was not.
TOPIC 8: INTERNATIONAL LAW (II). HUMAN RIGHTS AND ECONOMICS:
GLOBALIZATION, DEVELOPMENT AND POVERTY

HUMAN RIGHTS - ECONOMICS

- Human rights  economic implications, since implementing them requires resources,

- Economic policies  massive impacts on human rights, especially on economic and social
rights.

Yet, human rights activists and scholars have neglected economics, and most economists are
not interested in human rights.

II: LIBERAL DEMOCRACY AND HUMANR RIGHTS

Towards the end of the cold war: victory of liberal democracy/capitalism over communism.

- Brought Globalization, both political and economical  which had influence in human
rights (political/civil rights and economical/cultural/social rights
- Many came to believe that human rights were better than ever
- Liberal democracy was established as the only legitimate government, since human rights
was an inherent part of it.

Characteristics of liberal democracies at the beginning of the 21st Century:

- Nation state, a self governing community defined by national sovereignty, the

territorial nation-state, self-determination and domestic jurisdiction.
- Accountability: represented by periodic elections creating a democratically elected
representative assembly possessing both the powers to approve all taxation and
legislation and the capability to scrutinize the actions of the executive branch of
government.
- Autonomy, including capabilities to pursue policies that further the interests of the
people using freely the material, social, economic and political assets of the
community.
- Democratic states act in the interests of the whole of the people, not in the interests
of particular national or global interests, trying to reconcile individual freedom
exercised in the pursuit of wealth with state intervention exercised as a necessary
condition for social order (or justice). Balance between free individual freedom and
the social order. Free market rules regulated to establish a more just system.

However, globalization has brought two main problems regarding the idea of democracy as
the protector of human rights

- The increasing power of Transnational Corporations (TNC´S)

- Neoliberal mainstream thought supported by International Organizations and
Financial Institutions upon which globalization (economical and political) has been
built

This has affected the nation state´s competences  it has decreased it´s autonomy over
decisions made from above 
Consequence? Crisis of the liberal democracy:

- This challenges the authority and legitimacy of the existing institutions of democracy,
which are perceived as no longer capable of promoting the interests of citizens or
protecting their human rights satisfactorily.
- Even though the state has an obligation to protect the human rights of its citizens 
The authority of transnational organizations and corporations weaken the state´s
ability to deliver on those rights, without capabilities to fulfill its obligations.

III: TRANSNATIONAL ORGANIZATIONS/ INTERNATIONAL FINANTIAL ORGANIZATIONS

These conditions of globalization affect directly to national democracies and their supposed
protection of human rights.

a. Transnational Corporations: The impact of these economic giants (whose annual budget is
greater than the Gross Domestic Product –GPD- of many countries) is affecting the taxing
power of the states and ,thus, the possibility to implement policies for the protection of
human rights, through these mechanisms:
- Market shares on taxes (ex. secret according’s), to pay as little as possible pressing the
states with leaving the country if it is not done
- Tax avoidance (legal, use the tax systems to one´s favor through the best lawers
- Tax havens, tax evasion (illegal) they keep a big part of their benefits not subjected
to tax, despite having been got in the territories of other states

Consequence: increase the tax pressure on the middle and lower classes, impoverishing
them, and making even more necessary the need for social policies to reduce inequalities,
despite having less incomes

Even if we think that public officials and political elites work in good faith for the national
interest and not for their own benefit (as it should be)  Revolving doors (entanglement
between TNC’s and political elites) cast doubt over that

b. International Financial Institutions and Organizations are supposed to be for the rights of
the workers, to narrow inequality across the world and to maintain world economy 
However, they follow practices that make very difficult to the states to fulfill social policies,
as they are embedded within the neoliberal economic orthodoxy supporting
- Austerity
- The reduction of public deficit
- The reduction of labor costs (usually the salary of the workers) and other practices

These make states under their “protection” very difficult to fulfil social policies for the
realization of economic and social rights. Ex. public debt crisis in Europe, where countries
were force to cut on health, education… even tough loans were given, but only to recue
banks (private financial institutions)

IV. FREE TRADE VS HUMAN RIGHTS

Regarding big corporation´s influence over poor (less developed) countries, independently if
they are democratic or not  the neoliberal consensus (upon which the practices of
globalization are built) defends that free trade and other neoliberal commitments take priority
before any moral or humanitarian issues (human rights)
Two arguments:

a. Pragmatic argument: applied to tyrannical regimes. Disrupting free trade over human
rights issues is not going to improve them.
- Under conditions of globalization, target countries have little difficulty in making
alternative arrangements for the supply of essential goods, either legally or illegally.
- Moreover, to be effective, sanctions must be carefully targeted on those groups
associated with tyrannical governments, rather than the wider population, and that is
very difficult
- the potential to “demonize” sanctioners offers a valuable propaganda opportunity,
stimulating nationalist fervor and a greater decision to resist external coercion and
helping tyranny to remain, rather than bring about its reform or demise.
- Finally, implementing sanctions may bring economic consequences for manufacturing
and service industries in the santioner’s own country and may harm the sanctioner’s
own interests.

b. Altruistic argument, free trade fosters education on human rights

- In countries that do not comply with internationally recognized human rights
standards there´s an inevitable exchange of moral values that parallels the social
contact generated by the exchange of goods and services  free trade has an
important educative role. It raises people’s awareness to their rights and increases the
demand for their recognition driving to democratic governments.
- Free trade is going to produce full developed economies, that will allow states to
protect social and economical rights

There has been a success of the neoliberal mainstream thought that has been reflected in
many international organizations and financial institutions

• Wide recognition of human rights, free markets and democracy as the prime focus for
policy objectives in all regions of the world
• However, it has accepted that groups might suffer high transition cost (violation of
socio-economic rights due to poverty on the short term)  an acceptable price for the
achieval of full economies in the long term

V. CIVIL/ POLITICAL RIGHTS VS SOCIAL/ECON./CULT. RIGHTS

The Cold War era in which the current global human rights regime emerged is often
characterized as the outcome of a struggle between:

- capitalist countries (prioritize civil and political rights)

- socialist and less developed countries (favored economic and social rights)

The end of the Cold War: resistance to the neoliberal approach seems to have vanished and
this approach has succeed in acknowledging formal parity between Civil and Political rights
and economic and social rights  however, while simultaneously promoting only civil and
political rights despite their equal weight on international law
The now unmatched dominance of civil and political rights derives from a set of principles that
emphasizes

- the freedom of individual action

- non-interference in the private sphere of economics
- the right to own and dispose property and the important principles of laissez-faire and
free trade.

The move to reduce state support for economic and social programmed in all western
countries during the last years, a trend that is now accepted as globally desirable  is
indicative of the predominance of the neoliberal approach to human rights. Economic, social
and cultural claims may be legitimate aspirations but they can never be rights.

Reasoning:

- Civil and political rights are “negative” rights requiring people to refrain from doing
anything that impairs the freedoms of other  These can be just guaranteed with
demands restraint through national laws, with are free of cost
- Economic and social rights are “positive” rights requiring others to provide material
means of life to those unable to provide for themselves  These demand
redistribution of resources (economic costs)

By promoting negative claims as the only true universal human rights

- Structural causes of violation of economic and social rights (poverty and deprivation of
basic needs) are rendered invisible
- Hammering human rights is legitimized
- Neoliberals provide a defense against critics who see the causes of many human rights
violations in the structures of the global economic order.

VI. REASONING AGAINST NEOLIBERAL THOUGHT

a. Negative rights only require restraint regarding the private, but not the state. If the state is
going to recognize, protect and guarantee these rights  not only restraint but positive action
is needed (the creation and maintenance of a legislature, police, a legal system, courts,
prisons) Thus, the superority of civil and political rights over social and economic rights is a
question of ideological choice.

b. Even if these countries get fully developed economies the satisfaction of basic needs can
also be in danger. Neoliberal policies in western countries have these negative effects:

- The deregulation of many structures of the economic sphere (specially the financial
institutions)  at the heart of the last world economic crisis.
- Decreasing the public deficit –through cuts in social and economic rights (decreasing
education, health- and workers’ salaries) justified as the best response to get out of
the crisis are:
o Not having the expected results
o Increasing the impoverishment of many citizens and the inequalities in society.
- In the most developed countries (understood accordingly to the neoliberal conception
of development ,GDP) we find lots of situations of poverty and inequality  a new
concept has coined (Fourth world) to refer to them. For that reason its better to use
the Human Development Index (HDI)
TOPIC 9. INTERNATIONAL LAW (III) HUMAN RIGHTS AND POLITICS: THE
WAR ON GLOBAL TERRORISM AND HUMAN RIGHTS

INTRODUCTION
Terrorism: deadly or otherwise serious violence with the purpose of spreading fear among a
society (provoking a state of terror) or compelling the authorities to do or to abstain of doing
something. Impact of terrorism:

- Impact to human rights  endangers/harms the right to life, liberty and physical integrity
of victims.
- Impact to society  It can destabilize Governments, undermine civil society, jeopardize
peace and security, and threaten social and economic development.

States therefore have an obligation to ensure the human rights (security) of their nationals and
others by taking positive measures to protect them against the threat of terrorist acts and
bringing the perpetrators of such acts to justice

However, measures adopted by States to counter terrorism have challenged rule of law, good
governance and human rights on the political grounds of achieving national security (ex.
limiting free speech)  We should respect human rights whether a person commits any crime,
and fights crimes with only the instruments of rule of law and international human rights

SPECIFIC CHALLENGES ON HUMAN RIGHTS IN THE CONTEXT OF COUNTER-TERRORISM

Focus on USA, where there is a triumph of politics over law, as considered in Nicholas
Machiavelli’s statement: “The end justify the means”. We are going to focus on:

1. Targeted killings (precision attacks)

Targeted killing is the premeditated killing of an individual by a state organization or institution

outside a judicial procedure or a battlefield. The goal is to eliminate specific individuals
(specially high value individuals, leaders of terrorist groups) as an alternative to arresting them
and bringing them to justice.

Justification of the USA to the killings

- The war on terrorism, not fight. The whole world has become a battlefield, where
those deaths are considered legitimate killings by the state´s force in international
human law
- It´s necessary: In this global war, enemies cannot be defeated by conventional
operations but only selective killings.
- New name: precision attacks, a way of fighting terrorism without collateral damage,
mainly the death of other civilians  However, lacking any judicial process and given
the secret nature of the operations, there is no guarantee neither of the guilt of the
persons who are murdered nor the real consequences of the attacks.

International Law doesn’t prohibit all use of deadly force (the right of the states to self-
defense), but subjects it to some limitations (principles) that turn this force into a “non-
arbitrary” one: (these limitations are not applied)
- The principle of last resort: lethal force only can be used when other alternative means have
failed, so, all measures to arrest a person must be exhausted and the opportunity to
surrender should be given (hardly ever alternative means are used before)
- The principle of necessity: force only must be used in a situation in which is necessary for
the self defiance of the State or the defiance of another persons. There must be a clear, real
and imminent risk (a vague risk to the public security is appealed)
- The principle of proportionality: the force used should be graduated to the risk that intent
to be avoided(seriality of the crime) and the incidental damages to civilian persons, loss of
lives, injuries etc should be taken into account

Conclusion of IHL: We are not in an armed conflict  these are “extrajudicial executions”
violating, among other rights, the right to life, the right to physical integrity and the procedural
warrants related with the right to a fair trial, the due process of law, presumption of
innocence, etc.

2. Torture and enhanced interrogation techniques:

Since the Enlightenment  the most profound violation of human dignity and civil rights

The prohibition of torture is absolute under international law

- It is a peremptory norm—or a norm of jus cogens (obligation of the state even if a treaty
on international human rights has not been signed)
- Non-derogable rule under international and regional human rights treaties  even in
states of emergency threatening the security of a nation. However, states have ignored
this and used torture to get information from terrorist suspects.

The US Government sees the traditional concept of torture as a limitation in the war on
terrorism (conventional ways don’t work, necessary to get information)  To avoid conflicts
with International Law:

- It has proposed a new concept of torture under the euphemism “enhanced interrogation
techniques”. However, “enhanced interrogation techniques” are clearly a case of torture
under international law, and a clear violation of the right to physical and mental integrity.

- Furthermore, they have even proposed a redefinition of the concept of torture by which
we only face torture when there is an imminent threat of death, organ failure or
impairment of body parts, prolonged mental harm and the infliction of severe pain is the
direct goal of the behavior, not taking it into account when it is ‘collateral damage’. These
are called the ‘TORTURE MEMOS’.

3. Extraordinary renditions (black sites):

States have an obligation to conduct any transfer of detainees in a manner which is

transparent and consistent with human rights and the rule of law, including
- The right to respect for a person’s inherent dignity
- The right of everyone to recognition before the law
- The right to due process.
Regarding detainees, International human rights legal framework requires that:
- Any deprivation of liberty should be based on grounds and procedures established by law
- Detainees should be informed of the reasons for their detention and promptly notified of
the charges against them
- They should be provided with access to legal counsel
- Prompt and effective oversight of detention by a judicial officer must be ensured to verify
the legality of the detention and to protect other fundamental rights of the detainee
(habeas corpus, monitored by judicial organs)

Even in a state of emergency, minimum access to legal counsel and limits on the length of
preventive detention remain mandatory. Moreover, national authorities have an obligation to
prevent human rights abuses by investigating those practices which might be occurring under
inconsistent manners.

However, since 11 September 2001, US Government has put in practice the illegal transfer of
prisoners : Extraordinary renditions.
These imply abducting persons suspected of terrorism and transferring them (without any
legal process) to US controlled sites (Black sites) in foreign countries  for torture by proxy
(the sites are controlled by CIA) and for “enhanced interrogation”  to get information for
these persons and, subsequently, subject them to trial. Ex. Guantanamo.

Black sites: Secret facilities used by a country's military as a prison and interrogation center,
whose existence isdenied by the government. located in foreign countries where federal and
international legal safeguards do not apply/there is lesser restriction on torture/there are at
war  where torture may be applied.

The logic of US: we are in a global war against terrorism  but combatants also have human
rights that have to be respected (Genova) it avoids that by saying they are unlawful
combatants.

This practice is a clear violation of international law for different reasons. The most important
ones are these:
1. “Enhanced interrogation techniques” actually held in US detention centers can be
considered as a clear case of torture, despite de new interpretation given by US
government to this concept.
2. To avoid the responsibility of torturing behaviors  the US uses Black sites. However, this
is also in violation of article 3 of the Convention against torture, which asserts in its first
paragraph that “No State Party shall expel or extradite a person to another State where
there are grounds for believing that there is danger of being subjected to torture”.
3. Evidence obtained by torture cannot be used in judicial proceedings according to the
principle of non admissibility of evidence extracted by torture.
4. Extraordinary renditions may also be considered, depending on the circumstances, a crime
of enforced disappearance (affecting the right to liberty)
5. The detention of suspects of terrorism in these centers also implies the violation of the
right of fair trial and due process right
4. Profiling of suspects of terrorism:

Generally speaking, profiling is a filtering process involving a single indicator or a cluster of

indicators that, when grouped together, present the characteristics of a high risk person ( it
can be a valid law enforcement tool) .

When law enforcement agents use broad profiles that reflect unexamined generalizations,
including for the purposes of countering terrorism, these practices may constitute
disproportionate interference with human rights. In particular, if one of the indicators on
which profiling is based is a person’s ethnic or national origin, race, colour or religion, it is
considered to be against the principle of non-discrimination and equality, central to human
rights
TOPIC 10: TRANSITIONAL JUSTICE
1. INTRODUCTION

What is Transitional Justice? Transitional justice refers to the ways countries emerging from
periods of conflict and repression address large-scale or systematic human rights violations so
numerous and so serious that the normal justice system will not be able to provide an
adequate response.

It consists of judicial and non-judicial measures implemented in order to redress systematic or

massive violation of human rights and to enhance opportunities for the transformation of
those conditions that may have been the root of the abuse.

There are two elements in transitional justice:

Transition, that is the context: societies undergoing transformation away of the traditional
abuse of human rights:

- Origin of the field: Passing from a Dictatorship to a democracy (Third wave of

democratization. Latin America and East Europe after communism)
- Widening of the field: Passing from armed conflict to a situation of peace (Post-conflicts)
and ongoing conflicts, common ground with social justice movements, historical memory…

Justice, that is the goals to achieve:

- Looking past: Justice for the victims of human rights abuses (specially grave violations of
IHRL, Genocide and Crimes Against Humanity and IHL –war crimes)

- Looking future: Building peace and democracy (reconciliation in post conflict situations)

2. INTERNATIONAL CRIMINAL LAW

INTERNATIONAL CRIMINAL LAW is a body of public international law designed to prohibit

certain categories of conduct commonly viewed as serious violations of IHRL and IHL and to
make perpetrators of such conduct criminally accountable for their perpetration. The core
crimes under international law are genocide, war crimes, crimes against humanity, and the
crime of aggression. The main source of ICL is the Rome Statute (1998) of the ICC
(International Criminal Court):

• Genocide. Any act committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group (IHRL)
• Crimes against humanity. Any act when committed as part of a widespread or
systematic attack directed against any civilian population, with knowledge of the
attack. (IHRL)
• War crimes. Any act against people or property protected under the provisions of the
Geneva Conventions of 12 August 1949. (IHL)

3. IMPLICATIONS WITH INTERNATIONAL LAW

The prosecution of these international crimes is an important component of transitional

justice, or the process of transforming societies into rights-respecting democracies and
addressing past human rights violations.
 As the field has expanded and diversified over the past twenty years, it has also developed an
important foundation in international law  creating four fundamental obligations of the
states in the area of human rights and applicable to the transitional process:

- To investigate the facts concerning the violations

- To punish perpetrators of the violations
- To repair the victims of the violations
- To take measures to avoid the recurrence of the violations

However, in the last years, Transitional Justice has become a field with a victim-centred
approach, talking more about rights of the victims than obligations of the states – right to
justice, right to truth, right to reparation and right to warrants of no recurrence – and have
been codified in 2 main texts of the United Nations.

4. MAIN MECHANISMS OF TRANSITIONAL JUSTICE

Because of the numbers of violations and context of societal fragility not every violation will be
dealt with as it might be in normal times. Traditionally a great deal of emphasis has been put
on four types of “approaches”, however, these should not be seen as alternatives for one
another, all of them aim to do something different. Related with the obligations of the states

A. CRIMINAL PROSECUTIONS OF THE PAST ABUSES:

Judicial investigations of those considered most responsible for massive or systematic crimes
against human rights. They can be either:

-DOMESTIC PROSECUTIONS : can be done within the criminal courts of the state where the
abuses occurred, but it may be difficult (or impossible) for several reasons:

- The lack of the judiciary (post-conflict situations)  reestablishment of rule of law

- The connection of the judiciary to the previous regime (post-dictatorship situations) 
purge
- Institutional and economic difficulties to process many people in the context of mass
atrocities or massive violations (both contexts of transitional justice)
- The possibility that these judgements threaten peace or democracy (both contexts)

If they can´t be domestic  At criminal courts of FOREIGN STATES (applicability of the

principle of universal jurisdiction)  whatever country may judge grave violations of
international law constituting international crimes independently of the ordinary rationality for
the jurisdiction of the state (crime on soil/ perpetrator or victim national of the state)

-INTERNATIONAL PROSECUTIONS: havetheir own specific courts (focused on the most

responsible people):

- Ad hoc International Courts: Stablished by the Security Council of United Nations 

violates the right to a natural judge
- Mixed or Hybrid Courts: with national and international judges. Stablished jointly by
national governments with the support of United Nations missions of Peace.
- Permanent: International Criminal Court (ICC). Created by International Treaty: Rome
Statute to be signed by different state parties. Complementarity Principle. Only crimes
occurred on the territory of the states that are part of the international treaty are
analyzed. China, USA… have no signed it. Only intervenes when the state doesn’t or isn’t
willing to start prosecutions
Rules of international law affecting criminal prosecutions:

- Imprescriptibly of international crimes: Criminal prosecutions of international crimes may

be done in whatever moment. It doesn`t matter how many time passed from the
violations
- Criminal prosecutions must respect the rights of due process of the perpetrators
- Blanket (general and unconditional) Amnesties are prohibited under International Law

B. TRUTH-SEEKING INITIATIVES AND MEMORIALIZATION

Processes that seek for facts into human rights violations by non-judicial bodies. These can be
varied but often look not only at events, but their causes and impacts. These are achieved by

- Redacting archives
- Making memorialization efforts (museums, monuments, celebration days)
- Truth Commissions (non judicial truth): They have become the dominant instrument in the
field of truth-seeking)

Truth commissions are ad hoc commissions of inquiry that have the primary purposes of
investigating and reporting on key periods of recent abuse. They map and document patterns
of past violence: this usually includes statements from victims and witnesses, thematic
research, the organization of public hearings, declassification of archives and the like, and
often make recommendations to remedy such abuse and to prevent its recurrence.

Phases of transitional justice:

- The primacy of judicial Truth (Nuremberg, Yugoslavia, Rwanda)

- The extrajudicial truth as an alternative to non-criminal prosecution (Argentina, CONADEP,
Chile, TRNC). Individuals tell the truth  get amnesty
- Truth Comissions as a paradigma (Southafrica and after, nearly every transitional process
creates a TRC)

Judicial truth (criminal prosecution)

PROS

- Fact-findings less disputable, due to probationary standards of legal process

- More warrants for perpetrators: due process warrants

CONS

- Fact-findings with fragmentary nature –limited to the prosecuted persons- (only focused
on criminal responsability not in other forms of responsability)
- More limited satisfaction of victims (probationary standards) and with possibilities of re-
victimizations (due to cross-examination) specially women in cases of sexual violence.
- Higher costs

Non-judicial truth (truth commissions)

PROS

- Fact finding with more holistic nature (not focused only on criminal responsability, but also
on other ways of responsability) (widening of the scope of the investigation to political and
social elements and other actors)
- Wider satisfaction of the victims (They can tell their stories in a victim-friendly
environment –restorative scenary-)
- Lower costs
- No limitation of probatory standards and easiar to re-build the truth

CONS:

- Warrants of due process don’t act here, and then, more disputable
- No punishment, and then may be less lasting peace

Conclusion: Complementarity of non-judicial and judicial truth (Contemporary view)

C. REPARATIONS

State-sponsored initiatives that aim to contribute to repairing, on a massive scale, the material
and moral consequences of past abuse experienced by certain classes of victims. They typically
distribute some mix of material and symbolic benefits to victims. There are four main types:

Restitution: to come back to the situation before the occurrence of the violation. For instance:

- Liberation of persons detained or imprisoned arbitrarily (without compliance of due

process rights)
- Annulment of judicial settlements ruled arbitrarily (without compliance of due process
rights)
- Return of confiscated property
- Return of job posts of civil servants arbitrarily accused

Compensation: Economic assessment and delivery of the moral and material damages and
losses of the victims

Rehabilitation: Free Access to medical services to allow the victim to heal.

Symbolic Satisfaction:

- Full and complete disclosure of truth

- Orders to stop violations of human rights
- Oficial Apologies
- Creation of Memorials remembering the facts (specially in places of violations of human
rights) (Monuments, Museums, National days, etc)
- Elimination of every signal prasing the perpetrators (monuments, Street names, etc.)

4. REFORMS & SPECIAL PROGRAMS

Wide-ranging programs to transform the military, police, judiciary, and related state
institutions from instruments of repression and corruption into instruments of public service
and integrity  Building of fair and equitable institutions as a safeguard . They embrace:

- Legal reforms - in the constitution and the laws of the country-

- Institutional reforms – vetting or lustration (evaluating the integrity of public officials and
civil servants that can result in their removal)
- Social reforms – in the education system
- Special programs for disarmament, demobilisation and reintegration (DDR) programmes
are important components of non-recurrence of violations
TOPIC SILVINA: Human Rights and Human Wrongs. Refugees and Migrants.
1. REFUGEE INTERNATIONAL LAW

There are a lot of international laws regarding refuges and migrants. However, the problem is
the responsibility the states take about it.

- The Convention Relating to the Status of Refugees:

- The Protocol Relating to the Status of Refugees

2. DEFINITIONS:

Migrants:

- “International migrant” to refer to any person outside the territory of the State of which
he or she is a national.
- “Stateless migrant” to refer to any person who is outside his or her State of birth or
habitual residence. –
- “Internal migrant” to refer to any person inside the territory of the State of which he or
she is a national but away from his or her place of birth or habitual residence
- “Migrant in an irregular situation” to refer to those migrants who have entered the
territory of a State of which they are not nationals without the necessary documentation
or have stayed past the time that they were authorized to stay. Better us that illegal
(recommended by the UN), as it reinforces the stereotype that migrants are criminal for
being in a irregular situation.

Refugees: A person who owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion, is outside the
country of his nationality or outside the country of habitual residence (without nationality) 
is unable / unwilling to return to it. A person is a refugee if it meets these requirements, before
any kind of official recognition of the refugee status.

Asylum seeker: Person who has requested recognition of his or her refugee status or condition
and whose petition has not yet been decided 

Complementary protection: Legal mechanisms used to protect and grant status to persons in
need of international protection but who do not meet the established requirements to be
granted refugee status  to not return them

(Stateless persons: Person who is not considered as a national by any State under the
operation of its law)

Smuggling of migrants: procurement, in order to obtain, directly or indirectly, a financial or

other material benefit, of the illegal entry of a person into a State Party of which the person is
not a national or a permanent resident

Trafficking in person: recruitment, transportation, transfer, harboring, or receipt of persons by

improper means (such as force, abduction, fraud, or coercion) for an improper purpose
including forced labor or sexual exploitation.

Unaccompanied child or adolescent: any child or adolescent who has been separated from
both parents and other relatives and is not being cared for by an adult who, by law or custom,
is responsible for doing so.
Separated child: any child or adolescent separated from both parents or his or her legal or
habitual guardians, but not necessarily from other relatives

Mixed migration flow: complex migratory population movements involving people on the
move for different reasons, some to escape political persecution or violence (asylum seekers
and refugees), some for economic reasons (economic migrants) and other migrants.

(The internally displaced person: persons who have been forced or obliged to flee or to leave
their homes or places of habitual residence (to avoid violations of human rights, violence,
armed conflict, disasters) who have not crossed an internationally recognized State border.)

3. REFUGEES AND HUMAN RIGHTS

Asylum seekers and refugees are entitled to all the rights and fundamental freedoms that are
spelled out in international human rights instruments. The protection of the refugee must
therefore be seen in the broader context of the protection of human rights.

Refugees are not only entitled to protection from refoulement. They have a range of other
rights under the 1951 Convention and International Human Rights Law  Asylum seekers and
refugees are entitled to all the rights and fundamental freedoms that are spelled out in
international human rights instruments. The protection of the refugee must therefore be seen
in the broader context of the protection of human rights.

In addition, many universally recognized human rights are directly applicable to refugees: right
to life, protection from torture and ill-treatment, the right to a nationality…

4. SOME CHALLENGES

There are more refugees in the world than at any time since the end of the Second World War.
Mostly though the underdeveloped world. More than half are children.

Contemporary refugee movements are different from those of the period immediately
following the SecondWorld War. Reasons for leaving are very often complex and not simply
the result of immediate persecution. Persons flee because of civil conflicts, massive violations
of their human rights, foreign aggression and occupation, poverty, famine, disease and
ecological disasters. Many do not qualify as refugees on the basis of the United Nations
definition  it must be a political refugee  from a human rights perspective, great concern --
 every person is entitled to minimum human rights

In certain countries and regions, access to asylum is restricted, with borders closing, detention
on the increase and legal and procedural impediments blocking access to protection

Some governments have responded by closing their doors, pursuing arrangements that
‘outsource’ refugee protection elsewhere, and allowing the rhetoric of xenophobia and
nationalism to go unchecked  in part due to anxiety about international terrorism

Mixed flows of people on the move  dangerous routes or means or travel (smuggling
networks , particular challenges to protection --> risk of being trafficked

Across the globe, asylum-seekers, refugees and people on the move for many different
reasons are undertaking journeys by sea that put their lives at risk. States should facilitate
embarkation in the shores  based on Conventions on the Law on the Sea, but those are
usually not compelled
Nowadays, some deportation or expulsion measures adopted by States regarding irregular
migration movements (as collective expulsions, summary expulsions or “hot returns” or “push-
backs” “devoluciones en caliente”) do not ensure the effective access to asylum procedure

Moreover, the national laws of several countries provide for the detention of asylum seekers
during the adjudication of their claims

In some cases families are separated at the border

Alarming criminalization of solidarity and the defense of the rights of migrants

Compliance to agreements of the European Union in regard to relocating refugees is very low
(18%)

EU-Turkey agreement  irregular asylum seekers and refugees on Green islands  go to

Turkey, and stay there until the number would lower  transfer to European Countries. BUT ,
turkey was not a safe place for refugees, did not protect them

TOPIC 11: EUROPEAN UNION AND EUROPEAN INSTITUTIONS

INTRODUCTION

1957: Foundation of EU. First a economic union, then political.

The EU is a unique economic and political partnership between 28 European countries that
together cover much of the continent

Created after 2WW. The first steps were to foster economic cooperation: the idea that
countries that trade with one another become economically interdependent and so more
likely to avoid conflict

-The EU is based on the rule of law: everything is based on treaties

1. EU TREATIES: EVOLUTION:

- Treaty of Rome:
- Schengen Treaty
- Maastrich Treaty
- Creation of an Economic and Monetary Union
- Common Foreign and Security Policy

2. LAW MAKING

3. EUROPEAN COMISSION

- 28 commissioners, one for each EU country, provide the Commission’s political leadership
during their 5 year term.
- What they do:
• It has the right of initiative: propose new laws to protect the interests of the EU
and its citizens. It does this only on issues that cannot be dealt with effectively at
national, regional or local level (subsidiarity principle)
• The Commission’s departments produce a draft of the proposed new law. If 14 out
of 28 commissioner’s agree with it, the draft is then sent to the Council and
Parliament.
• It sets broad long-term spending priorities for the EU in the EU financial
framework with the Council and Parliament
• It draws up an annual budget for approval by Parliament and the Council, and
supervises how EU funds are spent
• As “guardian of the Treaties”, the Commission checks that each member country is
applying EU law properly. If not, the Commission first sends and official letter
asking to correct the problem  if not, it refers the issue to the Court of Justice.
The court can impose penalties, and its decisions are binding on EU countries and
institutions
• It speaks on behalf of all EU countries

4. COUNCIL OF THE EUROPEAN UNION

- Decisions in the Council of the EU are taken by qualified majority as a general rule. The
bigger a country´s population, the more votes it has.
- Two types of Qualified Majority
• Standard Qualified Majority: At least %55 of member states/of the
population  to approve ordinary laws proposed by the Comissions
• Reinforced Qualified Majority: At least %72 of member states/of the population 
to elect key posts
- Member of the European Parliament (MEPs): Directly elected by EU votes every 5 years,
they represent the people.
- Parliament is one of the EU´s main law making institutions

5. APLLICATION OF EU LAW

- EU law = same force as national law.

- The authorities in each member country are responsible for implementing EU legislation in
national law and enforcing it correctly
- EU legislation takes the form of
• Treaties establishing EU and governing the way it works  International treaties
(constitution)
• EU regulations, directives and decisions – with a direct ot indirect effect on EU
member states (general laws for every state)
• Regulations
• Directives: sets goals that must achieved by every state, but every states is
free to pursue different paths to it
• Decisions:
• EU case-law is made up from judgements from the EU´s court of Justice

6. EUROPEAN UNION AND HUMAN RIGHTS

- At first, economic union  no reference to them. Founded in the value of the rule of law
 human rights are included in it
- Then the European Unions Court of Justice recognized the adherence of EU to human
rights
- Treaty of Lisbon on human rights:
• Establish the binging (they have to be followed nature of the Charter of
Fundamental Rights of the EU
• Establish the obligation of the member states to accede the The European
Convention of Human rights (Council of Europe)

7. COUNCIL OF EUROPE

Founded in 1949, the regional European System for Protection of Human rights. It is
responsible of
- European Convention of Human rights (ECHR) European Committee of Social Right (ECSR),
monitoring organ. Originally civil and political rights. However, it has evolved though 2
different instruments:
• Protocols
• The Case-law of the European Court of Human rights:
• Not only nationals, everyone under the jurisdiction
• Commission:
• Admissibility: Cases can only be brought to the Court after domestic
remedies have been exhausted
• Binging effect of the judgments

- Not obligatory: European Social Charter (ESC) and

• Established to support the ECHR and to broaden the scoped of fundamental
rights to include social and economic rights. It also guarantees positive rights
• Composition and Functioning
• The ECSR is composed of 15 independent members who are elected by
the Council of Europe´s Committees of Ministers for a period of 6
years
• ECSR implements the compliance of member states with the European
Social Charter, mainly though:
• Reports (Annual reports
• Collective Complaints