International Human Rights Law 4

Today we waxed philosophical about human rights, which is normal in this class. The question at issue turns on a fundamental difference between international human rights law and other international law.

Prior to the advent of international human rights law, international law was cleanly considered multilaterally enforceable in the sense that any state party to a treaty could enforce the treaty against another state party when that other party violated the treaty to the detriment of the first state.

Human rights do not inhere in states, however, but in individuals. This challenges the meta-law of treaties by departing from the traditional system of reciprocality. Now a nation seeking enforcement of an international human rights treaty does so not on its own behalf but on behalf of the people of the state allegedly in violation.

So what happens when a state party to a human rights treaty - say the Convention Against Torture - declares that it will not follow a particular provision of the treaty? This is called a reservation. In the old days, another state party might lodge an official objection, nullifying the treaty between those two states. Where a treaty created economic efficiencies between nations, for example, the threat of an objection would serve as a deterrent against reservations. But where the goal of states party is to encompass as many states as possible within treaty regimes, not exclude them, there exists no effective deterrent against reservations. Reciprocality crumbles as nations choose to adhere only to the portions of treaties they choose.

Why is this on my blog about John Yoo? Check out the United States's reservations to the Convention Against Torture, which President Reagan signed in 1988 and the Senate ratified in 1994:

I. The Senate's advice and consent is subject to the following reservations:

(1) That the United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment', only insofar as the term `cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.
(2) That pursuant to article 30 (2) the United States declares that it does not consider itself bound by Article 30 (1), but reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case.

II. The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:

(1) (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(b) That the United States understands that the definition of torture in article 1 is intended to apply only to acts directed against persons in the offender's custody or physical control.
(c) That with reference to article 1 of the Convention, the United States understands that `sanctions' includes judicially-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. Nonetheless, the United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.
(d) That with reference to article 1 of the Convention, the United States understands that the term `acquiescence' requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.
(e) That with reference to article 1 of the Convention, the Unites States understands that noncompliance with applicable legal procedural standards does not per se constitute torture.
(2) That the United States understands the phrase, `where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in article 3 of the Convention, to mean `if it is more likely than not that he would be tortured.'
(3) That it is the understanding of the United States that article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.
(4) That the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.
(5) That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfilment of the Convention.

III. The Senate's advice and consent is subject to the following declarations:

(1) That the United States declares that the provisions of articles 1 through 16 of the Convention are not self-executing.

This so-called reservation purports, more or less, to say that in regard to enforcement against the United States, the Convention Against Torture means whatever the United States wants it to mean. Other nations have made reservations to this treaty, but none so extensive.

Other nations filed reservations as well, but none nearly so substantive or extensive. So when you hear some Americans (like the object of this blog) say that international human rights law is not really binding, that's because we the U.S. have deliberately weakened the primary functionality of the law - reciprocality. In doing so we degrade the legitimacy of international human rights law itself, and when we speak out against other nations' violations of treaties that we say embody our highest ideals, the world laughs.

Class 4

This is the fourth class of Civil Procedure II with John Yoo.

Mondays and Wednesdays, Professor Yoo teaches me Civil Procedure.

Tuesdays and Thursdays, Professor Miller teaches me International Human Rights Law, where I learn why Professor Yoo might be a war criminal.

Friends have explained to me that this sort of synergy would make a natural blog topic, so I'm giving it a shot.

I'm not going to reproduce here any quotes or happenings within the classroom. It seems cheap to position myself as a tell-all reporter within what's supposed to be a learning environment. Instead, I'll be posting some more general musings.

This post will be short, since I'm supposed to be paying attention. I'll start just by saying that the man has a quirky sense of humor; he seems animated by the prospect of sitting on the fence between comedy and malice. And yet that can be charming. In others I would call it a biting wit, indicative of superior intellect. Is he actually being loose in front of this classroom, finding a sort of sanctuary here from legions of activists calling for his head? Or is his biweekly performance a tongue-in-cheek exercise, just one element of his standing proudly up to a society that can't understand him? He chose to teach in Berkeley for a reason, after all. He must have long wanted to challenge people to question their own impressions of him.

In the end I think it's both. Class is solace and purpose for this nearly-indicted war criminal. Salary too - who would hire him?