In Honour of Human Rights Day: Two New Scholarly Articles on International Human Rights Law

“All human beings are born free and equal in dignity and rights”  

Universal Declaration of Human Rights

“The most effective way to restrict democracy is to transfer decision-making from the public arena to unaccountable institutions: kings and princes, priestly castes, military juntas, party dictatorships, or modern corporations.” –Noam Chomsky, “Domestic Constituencies” Z Magazine, 1998

December 10th, 2009 is Human Rights Day marking the 61st anniversary of the United Nations General Assembly’s adoption of the Universal Declaration of Human Rights (UDHR), which together with the International Covenant on Civil and Political Rights and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights, form what is known colloquially as the International Bill of Human Rights.
There are two recent important contributions to international human rights scholarship which are must reads.
In “Rights Beyond Borders” Chimène I. Keitner (University of California, Hastings College of the Law) , the author provides a comparative constitutional synthesis of the concept of rights: constitution as compact; constitution as conscience, and constitution as code. Here is the SSRN abstract:
Burgeoning scholarly interest in comparative constitutional law, transnational criminal law, and national security law has generated surprisingly little synthesis among these fields. The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article addresses this gap by developing a conceptual framework for thinking about the extraterritorial application of domestic rights guarantees, with a focus on cases arising from the detention and interrogation of terrorism suspects. Part I identifies three modes of reasoning about rights beyond borders, which I label constitution as compact, constitution as conscience, and constitution as code. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her personal status and/or territorial presence. Conscience-based reasoning focuses the government’s mandate to act solely in accordance with a defined set of national values in all locations and circumstances. Code-based reasoning takes a strictly territorial approach to restrictions on government action outside the national territory, even vis-à-vis citizens.

Part II examines the evolving jurisprudence of extraterritorial rights in three jurisdictions in light of these models: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act. These three characterizations of ways of thinking about the extraterritorial application of domestic rights regimes (compact, conscience, and code) can provide a convenient vocabulary for describing how domestic courts reason about specific challenges to government action beyond national borders. They can also help us think more systematically about how courts and other actors should reason about rights beyond borders, as governments bring their coercive power to bear on individuals in a variety of extraterritorial circumstances. 

“On Rights and Responsibilities” by Pavlos Eleftheriadis (University of Oxford-Mansfield College- Faculty of Law), the author offers a cogent critique of the UK Government’s Green Paper and proposal for a British Bill of Rights and Responsibilities”, Oxford Legal Studies Research Paper No. 44/2009 . Here is the abstract:
The UK Government’s Green Paper Rights and Responsibilities: Developing our Constitutional Framework, outlines a new proposal for a British Bill of Rights and Responsibilities, which may replace the Human Rights Act as the main constitutional statement of human rights in the United Kingdom. The Green Paper does not address squarely the role that rights play in protecting liberty. It does not deal with the modern literature on justice, liberty and democracy. The failures are surprising, given the significance of what is being proposed. The experience of modern constitutional law teaches us that we need strong and independent judges and clear public laws, if rights are to be effective. The Green Paper fails to do justice to this long tradition. By making our rights conditional on someone’s (and mainly the government’s) view of our own virtue, the government’s proposal, at least as it stands today, threatens to undermine some of the most central safeguards of liberty. 

On this auspicious day, all lawyers need to reflect on the legal maxim: “For every right, there is a remedy.”

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