Emalus Library Online Documents
Collection - Customary Law
Discriminating Among Rights?: A Nation's Legislating a Hierarchy of Human
Rights in the Context of International Human Rights Customary Law
Kristin Nadasdy Wuerffel
Source: Valparaiso University Law Review, Fall, 1998 ; 3 Val. U.L.
... In 1948, the General Assembly of the United Nations adopted the Universal Declaration
of Human Rights, with forty-eight of its fifty-six members voting in favor. ... Thus,
plaintiffs could have used customary international law or treaty law to establish
jurisdiction under the statute. ... Underscoring religious freedom's status as an
internationally recognized human right, section 2 of the Bill cites Article 18 of the
Universal Declaration, and Article 18 of the Covenant on Civil and Political Rights. ...
The agreements representing the consensus of states, such as the Declaration, the ICCPR,
and the ICESCR, stress the interdependent and interrelated nature of human rights. ... The
Restatement provides that state practice in building customary law includes, "action
by states to conform their national law or practice to standards or principles declared by
international bodies, and the incorporation of human rights provisions, directly or by
reference, in national constitutions and laws; invocation of human rights principles in
national policy . . . ." As a national law, the IFRA would claim to adhere to the
principles of international consensus, but in fact, it fails because it promotes the
notion of a hierarchy. ... In so doing, it fails to contribute to the emerging customary
norm of religious freedom, and instead promotes a different understanding of the right and
will ultimately slow or alter its emergence into customary law. ...
Whereas, Member States have pledged themselves to achieve, in co-operation with
the United Nations, the promotion of universal respect for and observance of human rights
and fundamental freedoms,
Whereas, a common understanding of these rights and freedoms is of the greatest
importance for the full realization of this pledge . . . .
In 1948, the General Assembly of the United Nations adopted the Universal Declaration of
Human Rights, with forty-eight of its fifty-six members voting in favor. The Declaration, adopted
only three years after the United Nations Charter, was to clarify and specify the
"human rights and fundamental freedoms" which the Charter intended to protect. Though the Declaration
was a non-binding instrument, its adoption recognized that human rights were not only
deserving of international concern, but also of international protection. As the Declaration's
preamble states, members of the United Nations (U.N.) [*370] pledged
"co-operation," in the "promotion" of human rights. But how were over fifty
countries, each with its own form of government, cultures, religions, and languages, to
determine what constituted human rights and how those rights would be protected?
Though the answers to these questions were not evident when the Declaration was adopted,
the drafters provided a sort of guidepost, a curb to follow in the world's quest to
identify and protect human rights. Very simply, the Declaration calls for a "common
understanding" of rights and freedoms.
As the drafters intimated, without this common understanding, the promise of states to
promote respect for human rights would not be fully realized. International protection of
human rights, however, has not solely taken place under the auspices of the United
Nations. For this reason, not only does the Declaration call for a common understanding,
but it also states that the Declaration is to be the "common standard of achievement
for all peoples and all nations." Thus,
the Declaration serves both as a rallying point for a common understanding of human rights
and a guide for the common standard in international action.
In addition to participation in U.N. sponsored protection, states must act independently or may act on a regional
basis to protect human rights
on an international level. While independent action no doubt contributes to the
realization of human rights on an international level, this approach does not come without
its hazards. When a state acts independently, its methods of protection or lack of
international support [*371] may inhibit real
protection. Perhaps one of the greatest hazards of independent state action lies in a
state's own perception of human rights. Acting
independently, a state may choose which human rights deserve more protection than others,
or more specifically, which rights are more important than others. Respect for a
"common understanding" of human rights, for which the Declaration calls, may be
easily replaced with a state's own understanding. Thus, a state may create a hierarchy of
human rights, independent of international consensus and the United Nations.
While the debate regarding a hierarchy of human rights has been primarily a scholarly one,
an Act recently passed
by Congress and signed by the President illustrates how this theoretical concern has very
practical consequences. On October 27, 1998, President Clinton signed the International
Religious Freedom Act of 1998. As its
title denotes, the Act legislates a method to combat religious persecution in other
nations. In choosing a
particular right and developing a special [*372] method by which
to protect it, this Act perhaps unintentionally creates a hierarchy of human rights with
its preference for religious rights.
Because no international consensus exists regarding which rights are more important than
others, the United States, or any other state creating a hierarchy, does so in isolation. The U.N. Charter and
Declaration clearly stand for the international protection of human rights through the
cooperation of states, as embodied in the United Nations. This cooperation has
led to the emergence of a customary law of human rights.
States cannot act to protect human rights without recognizing that they act within the
context of an international effort. A state-created hierarchy has serious implications for
the protection of human rights on an international level. For a hierarchy undermines the
"common understanding" upon which the Universal Declaration of Human Rights
depends and instead promotes a different understanding based on subjectivity, thus
adversely affecting emerging international humanitarian customary norms.
Upon the passing of the fiftieth anniversary of the Declaration, it seems especially
appropriate that discussion take place regarding the understanding of human rights today.
Such discussion necessitates consideration of a hierarchy of human rights. This Note
begins its discussion with a brief introduction of the background of the United Nations
and its contribution to the development of human rights law. In Section III, this
Note examines the formation of the customary law of human rights. Section IV then
discusses the International Religious Freedom Act of 1998 and studies the debate regarding
the existence of a hierarchy of human rights.
Finally, Section V will address the Act's instituting of a hierarchy and its effects on
customary international law.
II. THE UNITED NATIONS' CONTRIBUTION TO THE PROTECTION OF INTERNATIONAL HUMAN
The concept of "human rights" has
roots in a variety of sources,
including religion, natural law, legal positivism, and Marxism. These influences have
worked together to create what we now consider "human rights," in other words,
the "rights one possesses by virtue of being human." Though theories
regarding human rights were integral [*374] to their
recognition and development, perhaps the event which most brought human rights to the
forefront of the world scene was the Second World War.
The reality of World War II and the atrocities suffered by millions awakened the world's
nations to the realization that human rights are central to humanity's very survival. As people around the
world [*375] watched war
criminals be convicted and punished for unspeakable wrongs, the international
community could no longer ignore that the denial of human rights caused the death of
millions. Not only did the War force people to face the past, but it also caused people to
look to the future and ask the question, "How can the world ensure that such crimes
against humanity will never happen again?" From this sentiment, a desire emerged for
the development of international standards for the protection of human rights.
A. The United Nations Charter
In the aftermath of the War, the creation of the United Nations represented the states'
intention to face certain challenges as an international community. One of these challenges
was the protection of human rights. In its
Charter, the United Nations pledges to promote "universal respect for, and observance
of human rights and fundamental freedoms for all without distinction as to race, sex,
language, and religion."
Though the Charter does not devote lengthy or specific discussion to human rights, one cannot minimize the
importance of the document in the development of human rights protection. For, in its
suggestion that human rights are of international concern, the Charter legitimized the
struggle for human rights. In taking
responsibility to protect [*376] human rights, the
Charter placed human rights on the world's agenda. Importantly, just as the United Nations
had an obligation to promote human rights, so too did each of the member states have the
duty to observe and protect human rights. Human
rights, then, were no longer abstract principles, but legitimate, tangible goals for which
the international community was to strive.
B. The Universal Declaration of Human Rights
Because the Charter did not have much to say specifically regarding human rights, there
was an obvious need to draft a document solely dedicated to a discussion of human rights. To respond to this need
and pursuant to Article 68 of the Charter,
the United Nations General Assembly created the Human Rights Commission in 1946 to make
reports and draft proposals for an "International Bill of Rights." In Commission
discussions, members voiced their concern for the form that the Bill of Rights was to
take, some fearing that a treaty form would legally bind their nations and infringe on
national sovereignty. For this reason, many
wanted the Bill of Rights to be in the form of a declaration. While not legally
binding on states, a declaration is a recommendation made by the General Assembly to
member states and is [*377] intended to exert
a moral and political influence. The
Commission chose the latter, and drafted the document to be non-binding on member states.
With forty-eight states voting in favor, the General Assembly adopted the Declaration in
1948. Though the Declaration
did not enunciate the rights with exacting specificity,
it did include those human rights widely accepted and agreed upon at the time, including
both civil and political rights, and economic and social rights. With its adoption, the
Declaration became the primary human rights instrument in the world, despite its
non-binding nature. The Declaration was the
first of three parts to the International Bill of Rights. Because the Declaration
outlined general principles of human rights, a second, more detailed and comprehensive
document was to be drafted after the [*378] Declaration. This
second instrument was to be a covenant, while the third was to provide for measures of
Upon completion of the first phase of the International Bill of Rights, the Commission
turned its sights to the second. With the Declaration as a "springboard," the Commission began
discussion regarding the covenant which was to follow the Declaration. It proved difficult for
the Commission to draft a single document which could adequately transform the broad
principles of the Declaration into a more specific listing. Recognizing this
difficulty, the Commission decided to divide the rights enumerated in the Declaration into
two categories: civil and political rights,
and economic and social rights. To
sufficiently treat these two groupings, the General Assembly, in 1952, decided to place
them into two different covenants, the International Covenant on Civil and Political
Rights, and the International Covenant on Economic, Social, and Cultural Rights.
C. The International Covenant on Civil and Political Rights (ICCPR)
Though the Commission completed its work on the two covenants in 1954, the General
Assembly did not approve the International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) until
1966. The United States
Senate, however, did not ratify the ICCPR until [*379] 1992. The United States'
ratification seems to have come especially late when one considers the rights at issue in
the ICCPR. For, many of the rights promoted in the ICCPR are rights often thought to be
Substantively, the ICCPR obligates a state party to treat individuals in a certain way. In Article 2 of the
ICCPR, the state party promises to "respect and ensure to all individuals" the
rights recognized in the Covenant, irrespective of "race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status." In its listing of
rights, the Covenant assigns different obligations to different rights. Those rights which
state parties are obligated to observe at all times are called non-derogable rights. Certain non-derogable
rights include: the "inherent right to life,"
the right to be free from torture,
freedom from slavery, and "freedom of
thought, conscience and religion."
Article 4(1) of the ICCPR, however, provides that state parties may derogate, or suspend,
some rights when a public emergency threatens the life of the state. Finally, states may
limit certain rights when "times of public emergency" threaten the very life of
To enforce these rights, the Covenant stipulates that where a state party's domestic law
does not afford the same protections, the state must adopt appropriate legislation to give
effect to the rights within the Covenant. In
addition to national implementation, the Covenant provides for international
implementation in Article 41. The ICCPR requires that
state parties present periodic reports on the enjoyment of rights recognized in the
Covenant and provides for a Human Rights Committee to hear complaints alleged by one state
against another for failure to comply with the Covenant's obligations.
D. The International Covenant on Economic, Social, and Cultural Rights (ICESCR)
In his famous State of the Union Address of 1941, President Franklin Roosevelt spoke of
the "four essential human freedoms," for which the [*381] world at that
time could only hope. President Roosevelt
called for the freedom of speech and expression, the freedom of religion, the freedom from
want, and finally, for the freedom from fear.
Specifying what "freedom from want" meant, he stated, "freedom from want,
which, translated into world terms, means economic understandings which will secure to
every nation a healthy peacetime life for its inhabitants everywhere in the world." Little did President
Roosevelt know that his notion of "freedom from want" would be fleshed out in
the International Covenant on Economic, Social, and Cultural Rights.
Among its provisions, the Covenant recognizes the right to work and the right to
favorable working conditions, and it also protects
the privacy of the family. Interestingly, the
Covenant not only promotes the right to education,
but also outlines the structure of education -- primary, secondary, and higher. Unlike the ICCPR,
states are not expected to begin implementing the provisions of the ICESCR upon
ratification of the document. Recognizing that some
states may not be in a position to realistically promote these rights, the Covenant allows
for their "progressive" realization.
In other words, the Covenant requires that states proceed down the road of realizing these
rights in a way suitable to their condition.
If the Charter worked to recognize human rights, the Declaration and two covenants
have worked to define them. Although the
Declaration was drafted as a non-binding instrument, the two Covenants were drafted as
treaties, and are therefore binding on the state parties. But the fact that the
Covenants created legal obligations only in their signatories presented a problem: How
were principles of international human rights to become binding on all states? The
emergence of a customary law of human rights has provided a promising answer.
III. HUMAN RIGHTS AS CUSTOMARY INTERNATIONAL LAW
A. Sources of International Law
International human rights operate within the context of international law. Thus, one must have a
working understanding of the processes of international law before examining human rights
in the context of international law more specifically.
For the purposes of this discussion, a short explanation of the primary sources of
international law, including treaty and custom, will provide an adequate background for
examining the development of human rights law.
Article 38 of the Statute of the International Court of Justice (ICJ) states the three
primary sources of international law -- "international conventions,"
"international custom," and "general principles of law." The first source,
"international conventions," refers to treaties that countries adhere to
voluntarily. In international law,
treaties create international
legal obligations with corresponding duties of compliance and remedies. In order for a document
to be a treaty, Article 2 of the [*383] Vienna Convention
on the Law of Treaties stipulates that sovereign states must be parties, that the treaty
must be in writing, and that the agreement be governed by international law. A "party" to
a treaty means a state which has consented to be bound.
A state party may accept a treaty, but may make a "reservation" to that treaty,
by qualifying particular provisions with which it disagrees. By so doing, the state party
limits the legal effect of the treaty when applied to that state.
The ICJ describes the second source of international law, customary law, as
"international custom, as evidence of a general practice accepted by law." Perhaps Section 102 of
the Restatement (Third) Foreign Relations Law of the United States clarifies this
description, providing in clause (2): "Customary international law results from a
general and consistent practice of states followed by them from a sense of legal
obligation." That is, customary law
develops from the consistent practice of states, coupled with the states' feeling of legal
obligation to so act. Importantly, customary law binds all states. If a state wishes not
to be bound, it must persistently object to the emerging international norm.
One scholar remarked that customary law seems as though it develops "by
mistake." For states must
"happen" to practice the conduct out of some understanding that it is legally
obligated to do so. Though customary law
may seem a bit nebulous, international law consisted primarily of customary rules until
recently. Generally, the [*384]
use of treaties to create international law has increased, thereby diminishing the
need to identify evolving customary rules in many areas of law. While customary law
develops from the daily practice of countries, the final source of law looks to the
principles and laws present in nations' domestic settings to determine the existence of an
The third source of international law as outlined by the ICJ is the "general
principles of law recognized by civil nations."
When examining general principles of law to find evidence of international law, one must
look to principles of private law found in domestic settings. General principles of
law are most often used in domestic and international courts when no international law
covers a particular point. A general principle of
law, then, is recognized by examining domestic settings and determining whether the
principle is widely held by enough states that the principle actually exists on an
While it may be easy to accept international law made by treaty, law which develops
through custom and recognition of general principles is often more difficult to bite one's
teeth into. Treaty law is
certainly a [*385] necessary source
of law in the development of international human rights standards. But, because treaties
only bind their state parties, treaty law by itself cannot ensure the protection of human
rights on a global level. For this reason, human
rights lawyers and advocates have looked to other sources of law for human rights'
protection. In recent years, customary law has emerged as a promising source of law for
the development of human rights standards and the protection of human rights on an
B. The Emergence of Customary Human Rights Law
Many scholars who comment on the emergence of a customary law of human rights make note of
its unique path to becoming custom.
Traditionally, customary law develops from the consistent practice of states and opinio
juris, that is, the state's sense of legal obligation to act in a certain way. Evidence of the state
practice in the human rights context, however, differs from the traditional notion of
state practice. Such evidence, for
example, includes the incorporation of human rights [*386] provisions in
national constitutions and laws, United Nations resolutions, statements by national
officials criticizing other states for serious human rights violations, and decisions in
national courts using the Declaration as a source for judicial decision. These evidences of
state practice are not "practice" at all, in that they are not deeds of
states, but words of states.
Professors Simma and Alston refer to this unique evidence of state practice as "paper
practice." By means of this paper
practice, customary human rights norms have emerged more deliberately than traditional
customary norms. For instead of relying on the consistent but arbitrary practice of a
norm, states have explicitly stated their adherence to human rights norms in such
Louis Henkin helps to distinguish between the traditional notion of state practice and the
type of state practice that has led to the formation of a customary law of human rights. Traditionally, state
practice has reflected the international norm.
Now, however, state practice is an activity designed to create the norm. In other words, though
a United Nations Resolution condemning a particular human rights violation may not be
formally binding on its parties, it is evidence of states' intention to create a norm to
protect this particular right. Thus, "state practice" has come to include not
only the works of states, but also their words and stated intentions. In this way, the
customary human rights norms emerge in a much less arbitrary manner when compared to the
traditional emergence of customary norms.
As a result of this unique [*387] sort of state
practice, a number of human rights norms have achieved status as customary law.
C. Content of Customary Law of Human Rights
Though some assert that the Declaration has achieved customary law status, no true
consensus exists on the customary nature of the Declaration in its entirety. Seventeen years after
the adoption of the Universal Declaration, Judge Humphrey Waldock asserted that the
document had achieved status as customary law.
Though Judge Waldock's statement came too early to be true, he foreshadowed the strong
influence the Declaration would have in affecting the formation of customary human rights
A long list of rights contained in the Declaration have attained customary law status. Norms which have
achieved customary law status, as recognized by United States courts, include prohibitions
against arbitrary detention,
summary execution or murder,
causing [*388] the disappearance
of individuals, cruel, inhuman or
degrading treatment, and genocide. This list along with
other classes of human rights, including the prohibition against slavery, systemic racial
discrimination, and a consistent pattern of gross violations of international human
rights, are considered customary law and purported as such in § 702 of the Restatement. The Restatement also
notes that systematic religious discrimination on the basis of state policy, the right to
property, and gender discrimination are emerging norms of customary law. In addition to the
rights considered custom, the [*389] prohibition
against torture has been recognized as achieving customary law status in United States
courts. A brief review of Filartiga
v. Pena, which recognized the
prohibition against torture as customary law, will provide a helpful example for
understanding how a United States court recognizes customary law.
In Filartiga v. Pena, the United States Court of Appeals for the Second Circuit
held that the prohibition against torture and other cruel and inhuman treatment is
recognized as customary law.
Brought under the Alien Tort Statute, Filartiga
involved an action brought by two Paraguayan plaintiffs against another Paraguayan citizen
for the torture and death of their son and brother.
The statute gives a United States District Court original jurisdiction over any civil tort
action brought by an alien and committed in violation of either the law of nations or a
treaty of the United States.
Thus, plaintiffs could have used customary international law or treaty law to establish
jurisdiction under the statute. Because the United States had not yet ratified the
International Covenant on Civil and Political Rights which explicitly prohibits torture, the plaintiffs relied
on customary law for a prohibition.
The court agreed with the plaintiffs and found that customary law prohibited torture. Quoting the United
States Supreme Court, the Filartiga court stated that the "law of nations
'may be ascertained by consulting the works of jurists, writing professedly on public law;
or by the general usage and practice of nations; or by judicial decisions recognizing and
enforcing the law.'" Beginning with the
United Nations Charter, the Filartiga
court then looked to various Declarations of the United Nations which prohibited
torture. The court examined [*390] the Universal
Declaration and the Declaration on
the Protection of All Persons from Being Subjected to Torture. The court also
reviewed international agreements, including the American Convention on Human Rights, the
International Covenant on Civil and Political Rights, and the European Convention for the
Protection of Human Rights and Fundamental Freedoms.
From an examination of these documents, the Court determined that the prohibition of
torture is "clear and unambiguous."
An examination of Filartiga is helpful when trying to understand a norm's
recognition as customary international law. As Filartiga illustrates, the court
reviews the relevant international documents in order to ascertain consensus regarding a
human rights norm. Without consensus, as
evidenced through such documents, a norm will not achieve status as a customary norm.
The importance of the emerging customary law of human rights cannot be underestimated.
Customary law binds all states to adhere to these human rights obligations, regardless of
whether they are parties to any treaty protecting these rights. States who act to
protect human rights inside or outside their borders operate against this backdrop of
emerging customary law of human rights. In other words, state action not only contributes
to the formation of custom, but also operates within custom. Individual state action in
the protection of human rights works within this context. Every state operates within this
context when it legislates in the area of internationally recognized norms. Thus, the
United States acts against the backdrop of an emerging customary law of human rights with
its introduction of the International Religious Freedom Act of 1998.
IV. THE INTERNATIONAL RELIGIOUS FREEDOM ACT AND ITS HIERARCHY OF HUMAN RIGHTS
The United States has contributed to the promotion of human rights through its
participation in the United Nations and
independent action. The U.S. has attempted the latter through its inclusion of human
rights in the baggage of considerations for foreign policy. Though the President
is the United States' representative in foreign relations and the ultimate determiner of
foreign policy, Congress has acted to
secure [*392] human rights
concerns in foreign policy by passing legislation requiring the President to consider
foreign states' human rights records in our dealings them. In the past, Congress
has enacted legislation which provides a general structure "within which the
Executive is to shape security and development programs." Not only has Congress
enacted laws of general applicability, but also country-specific legislation which aims to
address violations of human rights within a given country.
Most recently, Congress has passed and the President has signed the "International
Religious Freedom Act of 1998," in an effort to hinder the growth of religious
persecution on a global level. The
end goal of the Act -- the curbing of religious persecution -- certainly deserves
attention, admonition, and action. The means for achieving this goal, however, implicitly
place religious freedom above all other rights.
A. The Provisions of the Act
The International Religious Freedom Act (IRFA) begins by stating that the freedom of
religion is a "universal human right and fundamental freedom" and cites several
international agreements recognizing this right.
In order to remedy religious persecution, the [*393] Act establishes a
new "Office on International Religious Freedom" in the Department of State. The head of this
Office, the "Ambassador at Large," will work to identify and report violations
of religious freedom abroad, and make policy recommendations regarding the United States'
response to such violations. The
Act also creates the "United States Commission on International Religious
Freedom," as well as the position of a Special Adviser on International Religious
Freedom within the National Security Council.
While the Commission will review violations of religious freedom and make policy
recommendations to the President, the Secretary of State, and Congress, the Special
Adviser will exist as a resource for executive branch officials on the issue of religious
freedom violations, make policy recommendations, and act as a liason with the Ambassador,
the Commission, Congress, and nongovernmental organizations. Once it is determined
that a country has violated the right of religious freedom, either through tolerating or
engaging in such violations, the Act authorizes the President to take certain action in an
effort to promote religious freedom. With
these provisions, the Act [*394] creates a
specific system with which to handle violations of religious freedom.
No doubt, religious freedom is certainly recognized as an international human right. One scholar remarked,
"Freedom of [*395] religion is
indeed the oldest of the internationally recognized human freedoms and therefore the one
with which the international community has had the longest experience." Even still, religious
persecution remains a formidable foe on the world scene. For this reason, the
emerging customary norm of religious freedom represents an encouraging step in fighting
violations of this right. The International Religious Freedom Act seeks to contribute to
the protection of religious freedom, but
in its effort to make this contribution, the Act creates a preference for religious
freedom and institutes its own hierarchy of human rights.
B. A Legislated Hierarchy With Religious Freedom First
Though the Act does not expressly state that it places religious freedom at the top of a
hierarchy of human rights, the method by which the Act seeks to protect religious freedom
does just that. In a hearing of the House Committee on International Relations discussing
an initial version of a bill to address religious persecution, the Freedom From Religious
Persecution Act, Secretary John Shattuck remarked,
The [Freedom From Religious Persecution Act] would create a de facto hierarchy of human
rights violations under U.S. law that would severely damage our efforts to ensure that all
aspects of basic civil and political [*396] rights, including
religious freedom, are protected. It would differentiate between acts motivated by
religious discrimination and similar acts based on other forms of repression or bias, such
as denial of political freedom, or racial or ethnic hatred. In doing so, the bill would
legislate a hierarchy of human rights into our laws.
By creating an office to monitor religious persecution, establishing a Commission and a
position in the National Security Council, and specifically providing for action to be
taken in response to states' violations of religious freedom, the Act distinguishes among
human rights. In so doing, it establishes a hierarchy of human rights within U.S. law. As
Secretary Shattuck notes, legislating a hierarchy has an impact on national law. But a hierarchy, such
as that legislated by the IFRA, operates within an international context as well. Before
analyzing its place in the international context, though, it is important to examine the
problem regarding the existence of a hierarchy of human rights.
C. The Debate Regarding the Existence of a Hierarchy of Human Rights
1. Fundamental Rights vs. Ordinary Rights
The quest to identify a hierarchy of human rights often begins with an attempt to
distinguish between fundamental and ordinary human rights. The task of discerning
which rights are fundamental and which are not has proved to be a difficult one. An
examination of United Nations documents provides little help. As Professor Meron notes,
the terms "human rights," "freedoms," "fundamental human
rights," "fundamental freedoms," "rights and freedoms," and
"human rights and fundamental freedoms" are used interchangeably throughout U.N.
human rights instruments. The vocabulary and
language of these [*397] international
instruments make no distinction between ordinary human rights and fundamental human
Though this is true, the attempt to identify fundamental human rights continues. Comment M to § 703 of
the Restatement states that while all the rights of the Universal Declaration and the
Covenants are internationally recognized human rights, some rights are fundamental to
human dignity. Thus, when these
rights are consistently violated, a violation of customary international law has occurred.
Comment M lists the
rights it considers fundamental, but provides no guidelines for determining which rights
could be considered fundamental.
Furthermore, there is no international agreement regarding the listed rights as
fundamental in the Restatement.
One step towards determining whether a right constitutes a fundamental right may
involve examining the sort of obligations the right creates. In the Barcelona Traction
case, the International
Court of Justice (ICJ) stated in dictum that "basic [fundamental] rights" create
obligations erga omnes. If a
right has erga omnes status, all states have an interest and are obligated to
protect that right. In other words, any
state can bring action against the violators of such a right, regardless of whether the
victim is a citizen of the state.
Thus, the ICJ suggests that one can identify fundamental rights as those having erga
Though this presents a possible path to identify fundamental rights, Professor Meron notes
that since the Barcelona Traction case, a growing consensus views the erga
omnes character of human rights as not limited to basic or fundamental rights. In fact, the
Restatement provides that any state may pursue international remedies against any other
state (erga omnes obligations) simply for the violation of customary law. In this way, a right
may become customary law without being fundamental, yet still enjoy erga omnes
character. Due to the different notions regarding erga omnes obligations, this
principle lends little help in identifying fundamental rights.
Professor Meron comments that most would agree that the right to life from arbitrary
deprivation, protection from torture, egregious racial discrimination, and prolonged
arbitrary detention, are fundamental rights.
He also includes those rights which are non-derogable under the International Covenant on
Civil and Political Rights, the European [*399] Convention, and
the American Convention on Human Rights, such as the right to life and the prohibitions
of slavery, torture, and retroactive penal
measures. Though these seem the
most likely to be considered fundamental, neither consensus as to any additional
fundamental rights, nor criterion for ascertaining fundamental human rights exists.
No agreement exists because discerning between those rights which are fundamental and
those rights which are not involves the application of subjective standards. Professor
Meron maintains that characterizing some rights as fundamental "results largely from
. . . subjective perceptions of their importance."
He contends that while some view due process rights as fundamental, others believe that
the rights to food and other basic needs supersede due process rights.
A recent statement by the Premier of China, Jiang Zemin, serves as an excellent example of
the subjectivity involved in choosing fundamental rights. When asked about the many civil
and political rights refused to his country's citizens as well as the many political
prisoners within China, Premier Zemin responded by stating, "I believe [*400]
the most important, the most fundamental human right is how to ensure that the 1.2
billion Chinese people have adequate food and clothing." From Premier Zemin's
perspective, China must first address the welfare rights of China's citizens before
addressing civil and political rights, such as the freedom of speech. United States
citizens, whose history emphasizes other fundamental rights such as the right to free
speech, would likely disagree
with China's preference for economic rights. Thus, two versions of fundamental rights
Addressing the problem of subjectivity in determining those rights which are fundamental,
Professor Meron states, "it is fraught with personal, cultural and political bias,
and has not been addressed by the international community as a whole, perhaps because of
the improbability of reaching a meaningful consensus." Professor Donnelly
contends that states emphasize certain human rights because of their good track record of
observance. Thus, the United
States' support of personal rights abroad reflects its support of personal rights at home.
"comprehensive normative and empirical theory of human rights," basic rights may
be chosen on the basis of domestic "convenience" or "policy." While the
international community has agreed upon a listing of human rights in the Declaration,
prioritizing them according to their fundamental nature seems largely an exercise
controlled by national perceptions and morals. Though fundamental or basic rights may
exist, agreement regarding such a list is scarce. Because of the difficulty in assessing
fundamental rights, the principle of jus cogens exists as a possible method for
identifying the most important human rights.
2. Jus Cogens/Peremptory Norms
Norms defined as jus cogens, or peremptory norms, enjoy the highest status in
international law and trump both treaties and customary law. [*401]
A peremptory norm is only modified if a new peremptory norm emerges which requires
it to be modified. If an existing treaty
is in conflict with a new peremptory norm, that treaty becomes void and terminates. A new peremptory norm
can terminate such a treaty because derogation from peremptory norms is not permitted. Compared to the
formation of customary law, which requires that a norm be "generally practiced,"
Article 53 of the Vienna Convention provides that a peremptory norm is formed when the
norm is "accepted and recognized by the international community of States as a whole
. . . ." The Restatement
explains that acceptance by the whole international community means acceptance by a
"very large majority of states," even if a small minority of states dissents. Still, ascertaining
when a "large majority of states" has accepted the norm becomes difficult. While
the threshold for a peremptory norm seems higher than that for customary law, discerning
the appropriate line of recognition and acceptance by the "whole" of the
international community indeed seems a difficult task.
Perhaps as a result of the difficulty involved in ascertaining the threshold for
peremptory norms, lack of agreement exists regarding the content of jus cogens. Though the Vienna
Convention states the process for formation, it refrains from listing those rights it
considers jus cogens. The
drafters of the Restatement, however, state that those [*402] rights listed as
customary norms which are prohibitory in nature are jus cogens. In another work, the
drafters further assert that the Universal Declaration is "established customary law,
having the attributes of jus cogens."
Alfred Verdross, though, remarks that all "rules of general international law created
for a humanitarian purpose" constitute jus cogens. In sum, the full
content of jus cogens has yet to be determined.
Without consensus regarding fundamental rights and the difficulties associated in
identifying peremptory norms, it is clear that no common understanding of a hierarchy of
human rights exits. Cultural, economic, and political biases affect states' perceptions of
fundamental rights, thereby making a common understanding impossible at this point in
time. Similarly, no common
understanding exists as to those rights which may have status as jus cogens.
Presently, no standards for distinguishing between fundamental rights and ordinary rights
exist and peremptory norms have yet to be worked out. The future will hopefully help to
reconcile both. The international community must work to provide criteria for
differentiating among rights and
allow peremptory norms the time to develop.
In the mean time, when legislating human rights policy, every state must keep in mind that
no common understanding of a hierarchy of human rights exists.
D. What is the Common Understanding?
The only true international consensus regarding human rights lies in the listing of rights
in the Declaration. Though states cannot
agree on the prioritizing of these rights, states can and have agreed as to their status
as human rights. The Declaration stands
as proof of the ability of states to identify those rights belonging to every human. But,
at the [*403] same time, the
Declaration provides evidence of the international community's unwillingness to rank human
The ratification of the two Covenants, however, spurred inquiries into the relationship
between civil and political rights, and economic, social, and cultural rights. Many inquired whether
the rights protected under the International Covenant on Civil and Political Rights
(ICCPR) supersede the rights protected under the International Covenant on Economic,
Social, and Cultural Rights (ICESCR). The
differing nature of state party obligations under the two Covenants has contributed in
large part to this inquiry.
Once a state ratifies the ICCPR, the Covenant demands that the state ensure to all
individuals within its jurisdiction the rights recognized in the Covenant. Ratification of the
ICESCR, on the other hand, is less stringent and obligates the state to take the necessary
steps to maximize its resources in order to realize the rights within the Covenant. The stricter
obligations demanded by the ICCPR initially seem to suggest that the rights contained in
that Covenant are more valued than the rights within the ICESCR. However, the Preamble
of each Covenant [*404] addresses this
concern and states that in order to achieve the Declaration's vision for civil and
political freedom, as well the economic, social, and cultural freedom, states must create
an environment where both sets of rights are equally recognized. The Covenants, then,
assert the interdependent nature of these two sets of rights.
The U.N. General Assembly has reiterated in other forums its dedication to the
interdependence and interrelated nature of human rights. For example, when the
U.N. General Assembly endorsed the Proclamation of Teheran in 1977, the Assembly stated
its approach in resolution 32/130 for future human rights work within the U.N.:
All human rights and fundamental freedoms are indivisible and interdependent; equal
attention and urgent consideration should be given to the economic, social, and cultural
rights; The full realization of civil and political rights without the enjoyment of
economic, social and cultural rights is impossible; the achievement of lasting progress in
the implementation of human rights is dependent upon sound and effective national and
international policies of economic and social development . . . .
The Declaration and Covenants, as well as later statements from the U.N. General Assembly,
reveal that the common understanding of human rights maintains the interrelated nature of
Whenever a state acts unilaterally in the protection of human rights, it cannot ignore the
context within which it acts, for this context is the international community. The United States acts
to protect human [*405] rights inside and
outside its borders. The Declaration of Independence, with its listing of the inalienable
rights of "life, liberty, and the pursuit of happiness," and the Bill of Rights
have served as the sources for the United States' commitment to human rights on a domestic
level. The United States
commitment to the protection of human rights outside of its borders, however, derives from
its obligations as a Declaration signatory.
To ignore this fact is to ignore the basis upon which the struggle for human rights began
and the pledge which the member states took in their signing of the Universal Declaration:
full realization of human rights lies in a common understanding of them.
The common understanding of human rights asserts that all human rights are interdependent
and interrelated. In the International
Religious Freedom Act, however, the U.S. has taken a unilateral measure to institute a
hierarchy. Thus, the Act runs contrary to the very foundation of the international effort
to protect human rights. Such contradiction carries consequences.
V. HIERARCHY AND ITS IMPACT ON CUSTOMARY LAW
A. The International Religious Freedom Act and Its Two Principles
The IFRA begins by stating that "the right to freedom of religion undergirds the very
origin and existence of the United States," and cites several international
agreements and covenants asserting religious [*406] freedom as a
human right. Underscoring religious
freedom's status as an internationally recognized human right, section 2 of the Bill cites
Article 18 of the Universal Declaration, and
Article 18 of the Covenant on Civil and Political Rights. Governments, then,
have the responsibility to protect the fundamental right of religious freedom and
"pursue justice for all." With
the inclusion and citation to these international documents, the Act explicitly places
itself in the context of the international pursuit to protect religious freedom.
Upon first glance, the Act seemingly advances one principle -- that every human has the
right to choose his or her own religion or belief and not to be persecuted for that
choice. As the drafters of the Act state in section 2, international agreements strongly
support this principle and, as a right held by each human, religious freedom no doubt
deserves protection. The purpose of this
Act, the protection of religious freedom, is thus not only valid, but vital.
Certainly, the recent interest of Americans and their representatives in the denial of
religious rights around the world is encouraging and a sign that the protection of human
rights has become a matter of public concern.
The introduction of the IFRA represents a real and legitimate concern that violations of
religious freedom have gone largely unnoticed, [*407] and for this
reason, have escalated in number and severity.
Theodor Meron comments that when governments decide to act in the protection of a
particular right, they are usually concerned with the "egregious" nature of the
violation. Meron's comment
certainly rings true for the IFRA. For the Act exists as a response to the egregious
nature of violations of religious freedom.
Closer examination, however, reveals a second principle at work. The goal of the Act
clearly conforms with the cited international agreements, but the means to achieve it does
not. In order to influence the realization of religious freedom on the international
scene, the Act establishes an Office on International Religious Freedom, a Commission, and
a position of Special Adviser, and provides for presidential action in response to states'
violations of religious freedom. In so doing, the Act established a de facto
preference for religious rights. That is, the Act's method for the promotion of religious
freedom -- the establishment of a framework only for this right -- reflects the
principle of a hierarchy of human rights.
While Meron comments that governments act in response to "egregious" violations
of human rights, he asserts that governments do not concern themselves with questions
regarding the existence of a hierarchy. In
the IFRA's case, Meron is correct again. The IFRA intends to respond to the egregious
violations of religious rights with its [*408] first principle.
But it perhaps unknowingly asserts a hierarchy with its second principle.
These two principles do not function independently of one another. In fact, the method
instituted by the Act necessarily alters or skews the human right it seeks to protect.
Under the IFRA, the human right of religious freedom no longer exists on the same level as
other rights, such as political freedom or due process rights, and instead becomes the
highest human right. The Act asserts this in contrast to several U.N. documents that stand
for the indivisibility of rights. For
the Act, religious freedom is no longer one right among equals, but one above the rest.
The special protection afforded to religious freedom skews the nature of the right itself,
because religious freedom moves to the apex of a hierarchy of human rights. The IFRA's
hierarchy has significant impact on the emerging customary norm of religious freedom.
B. The Differing Nature of Humanitarian Norms of Customary Law
Human rights norms have emerged as customary law in a way different from traditional
customary law. In the traditional
sense, customary norms develop through a lengthy process of state practice that is
performed by states because of opinio juris. This state practice consists of the
daily action of states. This notion of state practice is arbitrary in that it does not
rely on states' cooperation to form a [*409] consensus on a
given norm. Instead, such practice
looks to the individual actions of states to discern whether a customary norm exists.
The formation of humanitarian customary norms, however, has depended upon a different
notion of "state practice." First, instead of "state practice"
referring to individual state action, the "state practice" of humanitarian
customary norms largely refers to the statements or intentions of states, or "paper
practice." In this different
understanding of state practice, states are much more deliberate in their advocacy of a
particular human right, because they express their support for and intention to observe
it. In this way, state practice leading to the formation of humanitarian customary norms
seems much less arbitrary than the traditional notion of state practice.
State practice in the development of humanitarian customary norms differs from the
traditional notion of state practice in a second way. Rather than individually asserting
their intentions and beliefs regarding the protection of human rights, states have acted
together to cooperatively assert their stance.
Customary human rights law, therefore, has its beginnings in states "teaming-up"
to express their shared intentions for the promotion of human rights. International
agreements made under the auspices of the United Nations or regional human rights
organizations provide evidence of such "teamwork." Thus, as opposed to
the traditional notion of state practice, humanitarian customary norms begin with a
consensus and follow with individual state action adhering to that consensus.
Humanitarian customary norms, therefore, emerge from a more concerted effort than
traditional customary norms. States express their intentions to observe human rights and
do so through forming a consensus with other states. The agreements representing the
consensus of states, such as the Declaration, the ICCPR, and the ICESCR, stress the
interdependent and interrelated nature of human rights.
When these documents are used as evidence of state practice regarding a particular human
right, they reveal the principle of the indivisibility of rights. In [*410]
summary, state practice contributing to the formation of humanitarian customary
norms consists of deliberate, cooperative efforts of states to express their support for
human rights and reveals the principle of the indivisibility of those rights.
C. The IFRA At Odds With Customary Human Rights Law
The emerging customary norm of religious freedom based on such a cooperative effort of
states to assert indivisible rights, does not include the implicit principle of a
hierarchy. Rather, the emerging customary norm of religious freedom explicitly asserts the
principle of the interrelatedness of rights.
The IFRA stands in contrast to the emerging custom of religious freedom and works to its
detriment in two ways.
First, the IFRA, by itself, cannot legitimately contribute to the emergence of this
customary norm of religious freedom. The emerging customary norm, based on the common
understanding of states, maintains the equality of all rights, and therefore, places
religious freedom on an equal level with all others. The IFRA, however, provides a special
method to protect religious freedom, thereby giving this right special status. The emergence of the
customary norm of religious freedom requires the common understanding of the
indivisibility of rights. Because the IFRA sets forth a hierarchy of rights, it fails to
contribute to the emerging customary norm of religious freedom. The Restatement provides
that state practice in building customary law includes, "action by states to conform
their national law or practice to standards or principles declared by international
bodies, and the incorporation of human rights provisions, directly or by reference, in
national constitutions and laws; invocation of human rights principles in national policy
. . . ." As a national law, the
IFRA would claim to adhere to the principles of international consensus, but in fact, it
fails because it promotes the notion of a hierarchy. As a result, the IFRA cannot
contribute to the emerging customary norm of religious freedom.
Second, in failing to contribute to the formation of this customary norm, the IFRA acts to
promote a different understanding of religious freedom. According to this understanding,
states may apply their own subjective standards and may give preference to one right.
Customary law of human rights, by contrast, relies on the teamwork and cooperation of
states as evidenced by international agreements to reveal [*411] consensus
regarding a particular right. In turn, states act in accordance with the customary norm.
In contrast, instead of acting in accordance with the consensus which maintains the
interrelated nature of rights, the IFRA acts unilaterally and applies its own subjective
notions regarding religious freedom.
Therefore, while the formation of humanitarian customs relies on teamwork and consensus,
the IFRA relies on unilateral action and the application of subjective standards.
In its failure to contribute to the emergence of this customary norm and its promotion of
a different understanding, the IFRA will slow the emergence of the customary norm of
religious freedom that asserts the indivisibility of rights. Instead of building momentum
for the emerging customary norm, the IFRA works to fragment the understanding of religious
freedom and its relationship with other rights.
While the IFRA is an important step in the right direction, standing on its own, it cannot
promote the interrelated nature of human rights. In order to be true to the indivisibility
of human rights, the United States must work to develop a comprehensive human rights
policy. Within the context of a policy which provides a system to practically deal with
human rights violations, the IFRA will not only achieve its goal of the protection of
religious freedom, but also honor the interdependent relationship of human rights.
The formation of the United Nations set the stage for universal cooperation, while the
Declaration has provided the script. Actual promotion and protection of human rights,
however, has depended upon the member states to be actors in this international effort.
Though the Declaration did not legally bind states to protect human rights within their
own borders or ensure that these rights were not violated in other states, its effect on
states' actions to protect human rights cannot be underestimated. Whether a state
participates in U.N. sponsored protection or acts on its own, the Declaration has served
as the foundation for the international understanding of human rights. Because of its
influence, some of the rights listed in the Declaration have become customary law, and
therefore, binding on all states. Put in another way, as a script, the Declaration has had
great influence on the words and actions of states.
The Declaration asserts the interdependent nature of human rights as does the
international consensus that forms international customary human rights law. By
legislating a hierarchy into its law with the International Religious Freedom Act, the
United States runs counter to the principle of indivisibility of rights found in customary
law. In so doing, it fails to contribute to the emerging customary norm of religious
freedom, and instead promotes a different understanding of the right and will ultimately
slow or alter its emergence into customary law. When legislating in the area of
internationally recognized human rights, the United States, like any nation, must remember
that it operates within this context and must work to contribute to the emerging
humanitarian customary norms rather than confusing them. To honor the interdependent
nature of human rights, the United States must legislate a way in which to deal with
violations of human rights and commit to the protection of all, instead of only one.
Declaration of Human Rights, Dec. 10, 1948, G.A. res. 217A (III), U.N. Doc. A/810,
preamble, para. 6, 7 (1948) [hereinafter Universal Declaration].
n2 HENRY J. STEINER
& PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 119
(1996). The eight countries not voting in favor of the Declaration abstained from the
vote. These eight countries were Saudi Arabia, South Africa, the Soviet Union, Belorussia,
Czechoslovakia, Poland, Ukraine, and Yugoslavia. M. G. Kaladharan Nayar, Human Rights:
The United Nations and United States Foreign Policy, 19 HARV. INT'L L.J. 813, 816
n.18 (1978). See also Louis B. Sohn, The New International Law: Protection of
the Rights of Individuals Rather than States, 32
AM. U. L. REV. 1, 15 (1982) [hereinafter The New International Law].
n3 U.N. CHARTER art.
1, para. 2. Specifically, the Charter hoped "to reaffirm faith in fundamental human
rights, in the dignity and worth of the human person, [and] in the equal rights of men and
women and of nations large and small . . . ." Id. The General Assembly
adopted the Universal Declaration on December 10, 1948, and for this reason, many
countries celebrate December 10th as Human Rights Day. JACK DONNELLY, INTERNATIONAL HUMAN
RIGHTS 7 (1993) [hereinafter DONNELLY, INTERNATIONAL HUMAN RIGHTS].
n4 See infra
notes 39-57 and accompanying text.
n5 Supra note
1 and accompanying text.
Declaration, supra note 1, at preamble, para. 7.
Declaration, supra note 1, at preamble, para. 8.
n8 In signing the U.N.
Charter, the member states "pledge themselves to take joint and separate action in
cooperation with the [United Nations]." U.N. CHARTER, supra note 3, at art.
55, 56. In promoting human rights on an international level, states may act independently
through their foreign policy, by providing remedies for victims of human rights abuses in
its courts, and through diplomatic pressure. BARRY E. CARTER & PHILLIP TRIMBLE,
INTERNATIONAL LAW 940-956 (1995). See infra notes 152-156 for discussion of state
protection of international human rights norms through foreign policy. See infra
notes 125-149 and accompanying text for discussion of domestic litigation. Informal
diplomatic pressure is also a means by which to attempt to change a government's treatment
of its citizens. See THE DIPLOMACY OF HUMAN RIGHTS 3-12 (David D. Newsom ed.,
n9 The primary human
rights regimes operate in the regions of Western Europe, the Americas, Africa, and the
Middle East. Burns H. Weston et. al., Regional Human Rights Regimes: A Comparison and
Appraisal, 20 VAND. J. TRANSNAT'L L. 585, 585-637 (1987). Though this Note will not
discuss the regional regimes, it is important to note that these regimes play an
increasing role in the protection of human rights. Id. at 637. See PAUL
GRAHAM TAYLOR, INTERNATIONAL ORGANIZATION IN THE MODERN WORLD: THE REGIONAL AND THE GLOBAL
PROCESS (1993); STEINER & ALSTON, supra note 2, at 567-569.
n10 See infra
notes 191-173 and accompanying text. See also U.S. RATIFICATION OF THE
INTERNATIONAL COVENANTS ON HUMAN RIGHTS 20-23 (Hurst Hannum & Dana D. Fischer eds.,
1993) [hereinafter U.S. RATIFICATION].
n11 Theodor Meron, State
Responsibility for Violations of Human Rights, 83 AM. SOC'Y INT'L L. 372, 384 (1989)
[hereinafter Meron, State Responsibility]. In a seminar at the American Society
of International Law Proceedings, Professor Meron was asked about the existence of a
hierarchy of human rights and whether the existence of such a hierarchy affected the use
of nonjudicial countermeasures against state violators. He remarked that while scholars
concern themselves with the existence of a hierarchy, governments normally do not.
Instead, governments are concerned with the gravity of the violations. Id.
Religious Freedom Act of 1998, Pub. L. No. 105-292, Stat.
. In May of 1997, Representative Frank Wolf (R-VA) and Senator Arlen
Specter (R-PA) introduced the first version of the Freedom From Religious Persecution Act
of 1997 (FFRP) in the House of Representatives and the Senate, laying the groundwork for
the ultimate passage of the International Religious Freedom Act of 1998. H.R. 1685, 105th
Cong. (1997). S. 772, 105th Cong. (1997). On September 8, 1998, a second version of the
FFRP was introduced in the House of Representatives. H.R. 2431, 105th Cong. (1997). In
March of 1998, Senator Don Nickles (R-OK) introduced the International Religious Freedom
Act of 1998. S. 1868, 105th Cong. (1998). This Senate Bill along with the second version
of the FFRP introduced in the House, would serve as the basis for the Act finally passed
by Congress and signed by the President. On May 14, 1998, the House of Representatives
passed the Freedom From Religious Persecution Act (H.R. 2431), with a vote of 375 -- 41.
On October 9, 1998, the Senate passed this Bill with a vote of 98-0. Importantly, though,
the Senate passed this Bill with an amendment proposed by Senator Don Nickles (D-OK) which
resembled the Bill (S. 1868) introduced by him earlier that year. S. Amdt. 3789. The House
agreed to the Senate's amendment and the Act was finally signed by the President on
October 27, 1998.
n13 Id. at §
n14 See infra
notes 241-242 and accompanying text.
n15 See infra
notes 172-213 and accompanying text.
n16 See supra
note 1 and accompanying text. One scholar notes that while the Declaration was not perfect
in enumerating human rights, it exists as a tremendous example of international
cooperation. PETER JONES, RIGHTS 85 (1991).
n17 See infra
notes 87-150 and accompanying text.
n18 See infra
notes 22-86 and accompanying text.
n19 See infra
notes 87-150 and accompanying text.
n20 See infra
notes 151-231 and accompanying text.
n21 See infra
notes 232-254 and accompanying text.
n22 The term
"human rights" is a relatively new term on the world scene and in many ways has
come to replace the term "natural rights." Jones, supra note 16, at 81.
Jerome J. Shestack, The Jurisprudence of Human Rights, in HUMAN RIGHTS IN
INTERNATIONAL LAW 74 (Theodor Meron ed., 1984); DONNELLY, INTERNATIONAL HUMAN RIGHTS, supra
note 3, at 21-28 (discussing a theory for human rights, including the influences of
Natural Law, Marxism, Utilitarianism, and Morality); U.S. RATIFICATION, supra
note 10, at 5-7 (briefly charting the historical development of human rights principles);
MOSES MOSKOWITZ, INTERNATIONAL CONCERN WITH HUMAN RIGHTS 9-12 (1974) (discussing the need
for a central theme to emerge from the many influences on the international concern for
human rights so that goals and objectives for the movement can be defined); see also
MICHAEL FREEDEN, RIGHTS 12-23 (1991) (surveying the most influential thinkers on rights
talk, including Thomas Hobbes, John Locke, Edmund Burke, Thomas Paine, Jeremy Bentham,
Thomas Hill Green, and Karl Marx).
n24 Shestack, supra
note 23, at 75-81. Religious doctrine (from the Judeo-Christian tradition as well as other
religions with a deistic foundation) has contributed to the development of human rights in
its views regarding the relationship between humans and God. Id. at 76. Believing
that humans are created in God's image, human rights come from a divine source and are
therefore inalienable. Id.
n25 Id. at
77. While theologians found authority for human rights in God, those adhering to a theory
of natural law found authority for human rights in "elementary principles of
justice." Id. In other words, natural law gives humans certain unchangeable
rights. Though natural law can be viewed as part of the law of God, as Thomas Aquinas
viewed it, the development of natural law was an effort to separate such rights from
religion. Id. Natural law emphasizes the autonomous nature of human beings. Id.
at 81. Natural law theory led to natural rights theory. John Locke was a champion of
natural rights theory, as evident in his view of the relationship between humans and
government. Id. at 78.
n26 If natural law was
the most popular theory of the seventeenth and eighteenth centuries, legal positivism has
enjoyed such status during the nineteenth and much of the twentieth centuries. For the
Positivist, the source of rights is found only in the enactments of the state. No higher
authority exists. Rights are rights because the state says so. Shestack, supra
note 23, at 79.
n27 Finally, Marxism
bases its view of rights on the belief that persons are "indivisible from the social
whole." Id. at 82. In other words, Marx believed that human rights,
specifically civil and political rights, separate one human from another, thus isolating
the human from the community. FREEDEN, supra note 23, at 21-22 (1991). Marxism
would later especially advance economic and social rights. See infra note 76 and
accompanying text. Another scholar notes that the concept of human rights had its
beginnings as a political concept, holding that the individual has a "sphere of
freedom" from the state. Theodore van Boven, Distinguishing Human Rights, in
1 THE INTERNATIONAL DIMENSIONS OF HUMAN RIGHTS 43, 49 (Karel Vasak ed., 1982).
n28 van Boven, supra
note 27, at 74. Another scholar notes the close relationship between the terms
"natural rights" and "human rights." Human rights may be thought of as
natural rights because they are rights everyone has, regardless of whether the state
recognizes them. In addition, human rights may be considered natural rights in that human
beings possess these rights in their "natural capacity," rather than as citizens
of any state. JONES, supra note 16, at 81-82. At the same time, however, human
rights differ from natural rights in important ways, including that natural rights are
often considered absolute while human rights are prima facie and that though new
natural rights cannot emerge, human rights are often said to come into being. J. Roland
Pennock, Rights, Natural Rights, and Human Rights -- A General View, in HUMAN
RIGHTS 7 (J. ROLAND PENNOCK & JOHN W. CHAPMAN eds., 1981). It is helpful to consider
what is meant by the word "right." Donnelly notes that the word
"right" has two meanings. First, "right" may refer to
"rectitude," or "something being right." JACK DONNELLY, UNIVERSAL
HUMAN RIGHTS IN THEORY OR PRACTICE 10 (1989) [hereinafter DONNELLY, UNIVERSAL HUMAN
RIGHTS]. Second, "right" may refer to entitlement, or "someone having a
right." Id. In human rights, "right" of course refers to having a
right, but at the same time may also have the connotation that it is right or correct to
have such a "right." DONNELLY, INTERNATIONAL HUMAN RIGHTS, supra note
3, at 20. See generally Shestack, supra note 23, at 70-74 (briefly
reviewing other notions of the word "right").
n29 While human rights
thought has its beginnings in the years prior to World War II, it was primarily a subject
only for national regulation. Richard B. Bilder, An Overview of International Human
Rights Law, in GUIDE TO INTERNATIONAL HUMAN RIGHTS PRACTICE 4 (Hurst Hannum ed.,
1984). Even though human rights were primarily internal, some events pushed human rights
onto the global scene prior to the Second World War as well. Id. The antislavery
movement of the nineteenth and twentieth centuries, beginning with the Treaty of Paris
(1814) and culminating in the adoption of the International Slavery Convention (1926),
brought the treatment of individuals and certain ethnic groups to the world's attention.
Burns Weston, Human Rights, in HUMAN RIGHTS IN THE WORLD COMMUNITY: ISSUES AND
ACTION 22 (Richard Pierre Claude & Burns Weston eds, 2d ed. 1992). Workers' rights
were recognized with the establishment of the International Labor Organization (ILO) in
1919. Bilder, supra at 5. In 1900, the Supreme Court of the United Stated
recognized the existence of an international law pertaining to prizes of war. The
Paquette Habana, 175 U.S. 677, 708 (1900). After reviewing the practice of nations,
the Supreme Court held that it is a rule of international law that a coastal fishing
vessel, honestly pursuing its "peaceful calling of catching and bringing in fresh
fish," is exempt from capture as a prize of war. Id. The Court's holding is
especially important in its recognition that the humane treatment of civilians in times of
war was of international concern. STEINER & ALSTON, supra note 2, at 69.
INTERNATIONAL HUMAN RIGHTS, supra note 3, at 6. Donnelly writes, "Often a
problem becomes a subject of international action only after a dramatic event crystallizes
awareness . . . The catalyst that made human rights an issue in world politics was the
Holocaust, the systematic murder of millions of innocent civilians by Germany during World
War II." Id. Not only did Hitler's atrocities act as a "catalyst,"
but so too the "unfettered sovereignty" which Germany asserted. FRANK NEWMAN
& DAVID WEISSBRODT, INTERNATIONAL HUMAN RIGHTS 1 (1990). Arguing that the treatment of
its citizens were not of international concern, Germany carried out its atrocities in the
face of a world reluctant to intervene. Id. World War II proved that human rights
cannot solely be a domestic issue and international protection is needed. Id.
n31 Sohn, supra
note 2, at 10. Professor Sohn notes that the Nazi party leaders and military officials on
trial for the atrocities committed during the War were not allowed to use the defense that
they acted for the state or merely followed orders. Id. Thus, international law
was concerned with both the acts of sovereigns and the acts of individuals. Id. See
STEINER & ALSTON, supra note 2, at 99-102; DONNELLY, INTERNATIONAL HUMAN
RIGHTS, supra note 3, at 7.
n32 Bilder, supra
note 29, at 5.
n33 See supra
text and accompanying note 16.
n34 Bilder, supra
note 29 at 5; DONNELLY, INTERNATIONAL HUMAN RIGHTS, supra note 3, at 7.
n35 U.N. CHARTER, supra
note 3, at art. 55(c).
n36 STEINER &
ALSTON, supra note 2, at 118. The phrase "human rights" occurs in the
following provisions of the U.N. Charter: preamble, para. 2; art. 1(3); art. 13(1)(b);
art. 55; art. 56; art. 62 (2); art. 68. See STEINER & ALSTON, supra
note 2, at 119.
n37 Professor Henkin
remarks that the end of the War brought acceptance of "human rights" in two
ways. On a national level, constitutions and laws incorporated human rights. On a
"transactional" level, human rights were either incorporated into or the actual
subject of international agreements. The UN Charter was one of these international
documents, stating and solidifying international concern for human rights. Louis Henkin, International
Human Rights as "Rights", in HUMAN RIGHTS, supra note 28, at 258.
n38 In Article 56,
members states "pledge themselves to take joint and separate action in cooperation
with the Organization for the achievement of the purposes set fort in Article 55."
U.N. CHARTER, art. 56. Article 55 states that the United Nations shall promote:
(a) higher standards of living, full employment, and conditions of economic and social
progress and development;
(b) solutions of international economic, social, health, and related problems; and
international cultural and educational co-operation; and
(c) universal respect for, and observance of, human rights and fundamental freedoms for
all without distinction as to race, sex, language, or religion.
U.N. CHARTER, supra note 3, at art. 55 (a)(b)(c).
n39 U.S. RATIFICATION,
supra note 10, at 7. In fact, when the states convened in San Francisco to sign
the U.N. Charter, the United States and several other countries proposed that a Bill of
Human Rights be included in the Charter. Though this proposal was unsuccessful, Article 68
of the Charter provides for the creation of a commission on human rights. Id.
n40 Article 68 states,
"The Economic and Social Council shall set up commissions in economic and social
fields and for the promotion of human rights. . ." U.N. CHARTER, supra note
3, at art. 68.
n41 STEINER &
ALSTON, supra note 2, at 119. The U.N. Commission on Human Rights first met in
early 1947 and consisted of representatives from member states. Id. Eleanor
Roosevelt, the representative from the United States, served as the chairperson of the
Commission. Tom J. Farer, The United Nations and Human Rights: More Than a Whimper,
Less Than a Roar, in HUMAN RIGHTS IN THE WORLD COMMUNITY: ISSUES AND ACTION 227, 228
(Richard Pierre Claude & Burns H. Weston eds., 2d ed., 1992).
n42 Farer, supra
note 41, at 229. See infra notes 91-95 and accompanying text for discussion of
n43 STEINER &
ALSTON, supra note 2, at 119.
n44 STEINER &
ALSTON, supra note 2, at 119.
n45 There was little
confusion regarding the non-binding nature of the Declaration. Before the General Assembly
cast its final vote, Eleanor Roosevelt stated:
In giving our approval to the declaration today, it is of primary importance that we
keep clearly in mind the basic character of the document. It is not a treaty; it is not an
international agreement. It is not and does not purport to be a statement of law or of
legal obligation. It is a declaration of basic principles of human rights and freedoms, to
be stamped with the approval of the General Assembly by formal vote of its members, and to
serve as a common standard of achievement for all peoples of all nations.
5 MARJORIE MILLACE WHITEMAN, DIGEST OF INTERNATIONAL LAW 243 (1965).
n46 See supra
n47 Arguably, the
drafters as well as the U.N. General Assembly were in no position to be too specific or
definite regarding the content of human rights. Drafted only three years after the U.N.
Charter created the United Nations, the Declaration had to elicit support from governments
and nations with very different ideologies and cultures. JONES, supra note 16, at
n48 Political and
civil rights provided for in the Declaration include: equality before the law, (Article
7); protection against arbitrary arrest (Article 9); the right to a fair trial (Article
10); freedom from ex post facto criminal laws (Article 11(2)); the right to own property
(Article 17); freedom of thought, conscience and religion (Article 18); freedom of opinion
and expression (Article 19); and freedom of peaceful assembly and association (Article
20). Economic and social rights provided for in the Declaration include: the right to work
and to choose one's work (Article 23(1)); the right to equal pay for equal work (Article
23(2)); the right to form and join trade unions (Article 23(3)); the right to rest and
leisure (Article 24); the right to an adequate standard of living (Article 25); and the
right to education (Article 26). Universal Declaration, supra note 1.
n49 See infra
n50 John P. Humphrey, The
International Law of Human Rights in the Middle Twentieth Century, in THE PRESENT
STATE OF INTERNATIONAL LAW AND OTHER ESSAYS 75, 85 (Maarten Bos ed., 1973).
n52 STEINER &
ALSTON, supra note 2, at 120.
n53 Humphrey, supra
note 50, at 85. The second instrument of the Bill of Rights was intended to be a treaty
which made the rights contained in the Declaration enforceable. Id.; see also
Sohn, supra note 2, at 19.
n54 Sohn, supra
note 2, at 19. Professor Sohn notes that it was difficult to treat the rights in a
"parallel manner." Id. Equal treatment of rights was especially
important due to the states' differing ideologies regarding rights. Humphrey, supra
note 50, at 82. With the emergence of the Cold War, differences in ideology split the
United Nations in half: the West often championed civil and political rights while the
East focused on economic and social rights. STEINER & ALSTON, supra note 2,
at 120. See U.S. RATIFICATION, supra note 10, at 7-8.
n55 See infra
notes 58-72 and accompanying text.
n56 See infra
notes 73-86 and accompanying text.
n57 Humphrey, supra
note 50, at 86. See STEINER & ALSTON, supra note 2, at 120; U.S.
RATIFICATION, supra note 10, at 7-8; Sohn, supra note 2, at 19. A
"covenant" is a treaty in that it binds the state parties according to its terms
and subject to reservations. STEINER & ALSTON, supra note 2, at 123. See infra
notes 91-95 and accompanying text for discussion of treaties.
n58 Humphrey, supra
note 50, at 86.
n59 U.S. RATIFICATION,
supra note 10, at 20. Though the United States ratified the ICCPR, it placed a
number of reservations on the treaty, thereby restricting its enforceability on the United
States. Id. at 269-289.
n60 Louis Henkin, The
Covenant on Civil and Political Rights, in U.S. RATIFICATION OF THE HUMAN RIGHTS
TREATIES: WITH OR WITHOUT RESERVATIONS? 20, 23 (Richard Lillich ed., 1981). Discussing the
reservations proposed by the Executive Branch to the ICCPR at the time, Professor Henkin
argues that the ICCPR would make little change in U.S. law. Id. at 22-23. In
fact, the ICCPR works to specify American rights. For the rights guaranteed in the ICCPR
are those championed in the American as well as the French Revolutions. Sohn, supra
note 2, at 17. In 1976, American colonists signed the Declaration of Independence,
maintaining that all persons have "'inalienable rights.'" Id. In 1789,
the French followed suit, writing the Declaration of the Rights of Man and of the Citizen.
Id. In this document, the French maintained the equality of man and held that
each man has "natural and imprescriptible rights." Id. The Western
nations' notion of rights, especially evident in the ideals of the American and French
revolutions, was founded on the belief that individuals are autonomous beings. Shestack, supra
note 23, at 82. See generally Louis Henkin, International Human Rights and
Rights in the United States, in 1 HUMAN RIGHTS IN INTERNATIONAL LAW: LEGAL AND POLICY
ISSUES 25 (Theodor Meron ed., 1984) (discussing the similarities as well as differences
between American and international conceptions of human rights) [hereinafter HUMAN RIGHTS
IN INTERNATIONAL LAW].
n61 Oscar M.
Garibaldi, Obligations Arising from the International Covenant on Civil and Political
Rights, in U.S. RATIFICATION, supra note 10, at 54. Garibaldi notes that the
ICCPR has two types of obligations, substantive and procedural, which work together to
achieve protection. Id. The ICCPR outlines the procedures for the international
oversight of individual states' adherence to the substantive obligations of the covenant. Id.
Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, art. 2(1)
[hereinafter ICCPR]. In this provision, the Covenant makes clear the "content of
obligation," the beneficiaries of the obligation, and underscores that the state
party is obliged to honor the rights of all individuals. Id. at 55.
n63 Id. at
n64 Id. at
n65 Id. at
n66 Id. at
n67 ICCPR, supra
note 62, at art. 18. The rest of the non-derogable rights in the ICCPR include: no
imprisonment based on failure to fulfill a contractual obligation (Article 11), the
nonapplicability of retroactive criminal laws (Article 15), and the right to recognition
as a person before the law (Article 16).
n68 ICCPR, supra
note 62, at art. 4(1). While the Covenant does not explicitly state which rights fit into
this category, Professor Sohn has made the following list: "freedom from compulsory
labor, right to liberty and security of person, right to humane treatment in prison, right
to certain minimum guarantees in criminal proceedings, and freedom from interference with
privacy, family, home . . ." Sohn, supra note 2, at 18.
n69 ICCPR, supra
note 62, at art. 4(1). Such rights include: the rights to liberty of movement and the
freedom to choose one's residence (Article 12), the right to a public hearing (Article
14), freedom to voice one's religious beliefs in public (Article 18(3)), freedom of
expression (Article 19 (2)(3)), right of peaceful assembly (Article 21), and freedom of
association (Article 22).
n70 Specifically, the
Where not already provided for by existing legislative or other measures, each State
Party to the present Covenant undertakes to take the necessary steps, in accordance with
its constitutional processes and with the provisions of the present Covenant, to adopt
such legislative or other measures as may be necessary to give effect to the rights
recognized in the present Covenant.
ICCPR, supra note 62, at art. 2(2).
n71 ICCPR, supra
note 62, at art. 41.
n72 ICCPR, supra
note 62, at art. 41; Sohn, supra note 2, at 22. The Human Rights Committee only
has jurisdiction over a state if it has consented to such jurisdiction. So, in order for a
state to bring a complaint against another, both states must have accepted the Committee's
Message to Congress, 77 CONG. REC. 44, 46-47 (daily ed. Jan. 6, 1941).
International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, 993
U.N.T.S. 3 [hereinafter ICESCR]. The rights of the ICESCR are often traced to the Russian
Revolution and the rise of the proletariat. Sohn, supra note 2, at 32-33. The
Russian Revolution embodied the Marxist notion that the individual is a part of a greater
whole. For this reason, the needs of the whole may take precedence over those of the
individual. Shestack, supra note 23, at 82. While the United States has signed
the ICESCR, it has not yet ratified the document and is therefore not a member of the
treaty. NEWMAN & WEISSBRODT, supra note 30, at 401.
n77 Importantly, the
right to work does not mean that a person has an obligation to work, because such a notion
would support forced labor. Sohn, supra note 2, at 45. Rather, the right to work
refers to an individual's free choice of occupation. Id.
n78 ICESCR, supra
note 76, at art. 7.
n79 ICESCR, supra
note 76, at art. 10.
n80 ICESCR, supra
note 76, at art. 13.
n81 ICESCR, supra
note 76, at art. 13. Though the Covenant outlines such a structure, it allows the state
parties to implement the right of education as they see fit, as long as the methods are
consistent with the right. ICESCR, supra note 76, at art. 14.
n82 ICESCR, supra
note 76, at art. 2(1).
n83 Though state
parties may wish to sign the Covenant, they may not be in the financial situation to
observe the rights as outlined in the Covenant. Sohn, supra note 2, at 39.
n85 Richard B.
Lillich, The Growing Importance of Customary International Law, 25 GA. J. INT'L
& COMP. L. 1, 1-2 (1996).
n86 Sohn, supra
note 2, at 20.
n87 STEINER &
ALSTON, supra note 2, at 26.
n89 Statute of the
International Court of Justice, art. 38(1). Article 38 also states "subsidiary"
sources for defining international law. Subsidiary means include "judicial decisions
and the teaching of the most highly qualified publicists of the various nations."
n90 RICHARD LILLICH
& HURST HANNUM, INTERNATIONAL HUMAN RIGHTS 93 (3d ed. 1995).
changes when discussing "treaties" in an international setting or in a United
States domestic setting. In international settings, all international agreements are
considered treaties. In the United States, however, the Constitution distinguishes between
international agreements and treaties. For the United States, treaties are agreements
"concluded by the President with the advice and consent, or approval, of two-thirds
of the Senate." International agreements, however, include those agreements the
President concludes on the basis of constitutional authority or a delegation of authority
by Congress. CARTER & TRIMBLE, supra note 8, at 109.
n93 Vienna Convention
on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331 (entered into
force Jan. 27, 1980) [hereinafter Vienna Convention]. The Vienna Convention sets forth a
set of rules for the formation, interpretation, and termination of treaties. CARTER &
TRIMBLE, supra note 8, at 110. While the United States is not one of the
sixty-five states who is party to the treaty, State Department officials have commented
that its provisions have attained customary law status and are therefore binding. Id.
n94 Vienna Convention,
supra note 93, at art. 2.
n95 Id. at
n96 Statute of the
International Court of Justice, supra note 89, at art. 38(1)(b).
(THIRD), FOREIGN RELATIONS LAW OF THE UNITED STATES § 102.2 (1986) [hereinafter
n99 In a class
discussion with Professor Richard Stith, Valparaiso University School of Law, he remarked
about the curious nature of customary rules and their seemingly haphazard way of becoming
law. (October 12, 1997).
n101 JOSEPH G. STARKE,
INTRODUCTION TO INTERNATIONAL LAW 34 (9th ed. 1984). Customary rules emerged due to a
"long historical process" which culminated in their recognition as customary
law. Id. An example of rules which became law by gaining status as customary
international law are the rules of the "law of the sea." CARTER & TRIMBLE, supra
note 8, at 978. Prior to the twentieth century, most of the law of the sea consisted of
customary law. The customary law which emerged was based on the notion of the freedom of
the sea. Id
n102 STARKE, supra
note 101, at 34. The International Law Commission has worked to codify much of customary
law through its drafting of treaties, such as the Vienna Convention on Diplomatic
Relations (April 18, 1961), the Vienna Convention on Consular Relations (April 24, 1963),
and the Vienna Convention on the Law of Treaties (May 22, 1969). Id. The law of
the sea, once primarily customary law, has also been codified in the United Nations
Convention on the Law of the Sea, December 10, 1982, 21 I.L.M. 1261. CARTER & TRIMBLE,
supra note 8, at 977. A number of factors influenced states' desire for the
codification of law of the sea. Concerns for fishing and the possibility of harvesting
other valuable resources from the sea were among the leading factors. Id. at 978.
n103 Statute of the
International Court of Justice, supra note 89, at art. 38(1)(c).
n104 LILLICH &
HANNUM, supra note 90, at 93. General principles of law have been used in the
areas of procedure, evidence, and "machinery of the judicial process," to
identify international law. MALCOLM N. SHAW, INTERNATIONAL LAW 82, 83 (2d ed. 1986). While
there are differing opinions regarding general principles of law, most agree that the
general principles of law "constitute a separate source of law." Id.
n105 LILLICH &
HANNUM, supra note 90, at 93. See e.g., the International Court of
Justice in Corfu Channel allowed the use of circumstantial evidence because it is
admitted in all systems of law and recognized by international decisions. Corfu Channel
Case (U.K. v. Alb.), 1949 I.C.J. 1 (holding that the British navy violated Albanian
sovereignty when it swept for mines within Albanian territorial waters).
n106 Paul L. Hoffman, The
Blank Stare Phenomenon: Proving Customary International Law in U.S. Courts, 25 GA. J.
INT'L & COMP. L. 181 (1995). A human rights litigator, Hoffman describes the reaction
of judges to the introduction of applicable customary law as a "blank stare." Id.
He states that the "judicial skepticism" exists as one of the "largest
obstacles" in the effort to use customary law in domestic jurisdictions. Id.
n107 The most obvious
limitation on treaties is that they only legally bind those states accepting them. Richard
J. Bilder, Rethinking International Human Rights: Some Basic Questions, 1969 WIS.
L. REV. 171, 206. Thus, states with human rights problems will likely not become parties. Id.
A second limitation of treaties is that they "reflect agreement" at the most
minimal level. Id. In other words, the treaties often represent the parties
lowest level of commitment, because the parties would not sign a treaty if they felt they
could not live up to its terms. Thirdly, because of the lack of effective enforcement
measures, the ratification of a treaty may not automatically equal the observance of it. Id.
Finally, a state may ratify a treaty, but may make reservations to that treaty.
Reservations to the treaty will limit the treaty's force in the domestic law of the state.
n108 Professor Meron
notes the valuable effect of a norm's customary character. First, once a norm becomes
custom, it is governed by international law. THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN
NORMS AS CUSTOMARY LAW 80 (1989) [hereinafter HUMANITARIAN NORMS]. Second, once a human
rights norm has obtained customary status, regional human rights organs and treaties
referring to the applicability of customary law will broaden the remedies available to
individuals and underscore the importance of customary law. Id.
n109 See generally
OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 86-88 (1991) (noting that that
the evidence of state practice does not conform to the "traditional criteria" of
evidence of custom); Bruno Simma & Philip Alston, The Sources of Human Rights Law:
Custom, Jus cogens, and General Principles, in HUMAN RIGHTS LAW 3, 9-11 (Philip
Alston ed., 1996) (contrasting the kind of state practice which has traditionally
contributed to emergence of custom with the kind of state practice contributing to the
customary norms of human rights).
n110 Simma &
Alston, supra note 109.
Professor Henkin purports that traditional, or "authentic," customary law was
never made "intentionally, purposefully." Customary law did not develop because
states deliberately acted to form new law. STEINER & ALSTON, supra note 2, at
n112 SCHACHTER, supra
note 109, at 88.
n113 Simma &
Alston, supra note 109, at 10. Rather than rely on patterns of state practice,
the development of a customary law of human rights relies on the "words, texts, [and]
votes" of diplomats and delegates to the United Nations. Id. Professor
Henkin also notes that General Assembly resolutions contribute to the efforts to
"create new customary law." STEINER & ALSTON, supra note 2, at 142.
n114 Simma &
Alston, supra note 109, at 10.
n115 STEINER &
ALSTON, supra note 2, at 142.
n118 In order to make
sense of this different notion of "state practice" and its relation to opinio
juris, Schachter asserts that to determine whether a certain practice is custom, one
must ask, "Is there a general conviction that particular conduct is internationally
unlawful?" SCHACHTER, supra note 109, at 89. Thus, Schachter addresses the
issue of state practice in his mention of "general conviction" and the issue of opinio
juris in the phrase "internationally unlawful." It is helpful to keep this
in mind when examining human rights obligations that are mentioned in the Declaration and
now considered customary international law.
n119 See supra
note 113 and accompanying text.
n120 See infra
notes 121-150 and accompanying text.
n121 Professor Sohn
states, "The Declaration, as an authoritative listing of human rights, has become a
basic component of international customary law, binding on all states, not only members of
the United Nations." Sohn, supra note 2, at 17. See Lillich, supra
note 85, at 2-3 (citing others who believe that the Declaration has become customary
international law). Others, however, maintain that while some rights have achieved status
as customary law, a "careful analysis of the relevant state practice" does not
support the notion that all rights have acquired customary status. THOMAS BUERGENTHAL,
INTERNATIONAL HUMAN RIGHTS IN A NUTSHELL 32 (1988). Though the Declaration has achieved a
"moral authority such that it has almost become legally binding," the
Declaration as a whole does not bind states. Imre Szabo, Historical Foundations of
Human Rights and Subsequent Developments, in 1 THE INTERNATIONAL DIMENSIONS OF HUMAN
RIGHTS 10, 33 (Karel Vasak & Philip Alston eds., 1982).
n122 Humphrey Waldock,
Human Rights in Contemporary International Law and the Significance of the European
Convention, in THE EUROPEAN CONVENTION ON HUMAN RIGHTS 1, 15 (INT'L & COMP. L.Q.
SUPP. No. 11, 1965).
n123 Just eleven years
after the Declaration's adoption, another scholar noted the important influence of the
Declaration, despite the fact that it was drafted as a non-binding instrument. Egon
Schwelb, The Influence of the Universal Declaration of Human Rights on International
and National Law, 53 AM. SOC'Y. INT'L. L. PROC. 217 (1959). First, the Declaration
was used as a "yardstick" by governments, international conferences, and others,
to gauge the observation of human rights. Id. at 219. Second, other treaties
referred to the Declaration, thereby noting its influence. Id. Thirdly, the
Declaration had an influence on "national constitutions . . . municipal legislation
and, in some instances, on court decisions." Id. at 222.
n124 See infra
notes 125-131 and accompanying text.
v. Wilkinson, 505 F. Supp. 787, 798 (D. Kan. 1980) (holding that the arbitrary
detention of a refugee is prohibited by customary international law."), aff'd sub
v. Wilkinson, 654 F. 2d 1382 (10th Cir. 1981). Like the Filartiga court, the
court in Fernandez looked to the Universal Declaration, the American Convention
on Human Rights, the European Convention, and the International Covenant on Civil and
Political Rights, as evidences of the customary norm against arbitrary detention. Fernandez,
505 F. Supp. at 796-98.
v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) (holding that summary execution or
murder by the state is violative of customary international law). The court dismissed the
plaintiff's cause of action, which alleged that causing the disappearance of a person
constituted a violation of customary international law for failure to state a claim. Id.
at 1543. The court reasoned that the elements needed to make a claim for causing the
disappearance of an individual were unclear. Id. The plaintiff then filed a
Motion for Reconsideration. See infra note 127.
v. Suarez-Mason, 694 F. Supp. 707 (N.D. Cal. 1988) (holding that the disappearance of
an individual violates customary international law). The court examined several statements
submitted by legal scholars, purporting that universal consensus did exist as to the
elements of "disappearance." Id.
at 709. The two elements of disappearance include abduction by the state and refusal
of the state to acknowledge the abduction. Id.
at 710. The court also looked to the Universal Declaration, the International Covenant
on Civil and Political Rights, statements of the General Assembly and the Organization of
American States, and the Restatement. Id.
v. Gramajo, 886 F. Supp. 162, 185-89 (D. Mass. 1995) (recognizing that the customary
law forbidding cruel, inhuman, or degrading treatment exists, but holding that the
plaintiff's constructive expulsion from his native Guatemala did not constitute a
violation of that norm).
v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (finding that genocide violates customary
international law, the court held that the defendant, leader of the Bosnian-Serbs,
violated customary international law when he ordered the murder, rape, forced
impregnation, and other forms of torture, of Bosnian Croats and Bosnian Muslims). The
court noted that the prohibition of genocide "quickly achieved" acceptance as
the law of nations following the atrocities of World War II. Id.
at 241. It looked to the Convention on the Prevention and Punishment of the Crime of
Genocide, noting that the norm applies to private individuals as well. Id.
n130 RESTATEMENT, supra
note 97, at § 702(b)(f)(g).
n131 Id. §
702 com. (j)(k)(l). While U.S. courts have limited their recognition of those norms now
considered custom to those listed in the Restatement, other rights have likely reached
status as general principles of law. Through examination of national laws, governmental
and scholarly statements, the United Nations Commission on Human Rights has cited the
right to self determination of peoples and the individual's right to leave and return to
one's country as norms which can now be considered general principles. SCHACHTER, supra
note 109, at 90. Specific to the emerging norm of religious freedom, Professor Meron notes
that a specific convention on the issue of religious freedom would aid in defining the
content of the right and in "expediting its passage into the general corpus of
customary law." MERON, HUMANITARIAN NORMS, supra note 108, at 95.
n132 See infra
notes 133-147 and accompanying text.
v. Pena, 630 F.2d 876 (2d Cir. 1980).
U.S.C. § 1350 (1994).
630 F.2d at 878-79.
at 880. Under the Alien Tort Statute, universal consensus must exist as to the binding
nature and content of the tort. Forti
v. Suarez-Mason, 694 F. Supp. 707 (N.D. Cal. 1988).
n138 See supra
v. Pena, 630 F.2d 876, 878-79 (2d Cir. 1980).
at 880 n. 2 (quoting United
States v. Smith, 18 U.S. 153, 160-161 (1820)).
630 F.2d at 881. The court stated that while the Charter did not define what was meant
by its phrase "human rights and fundamental freedoms," there was no dissent that
this phrase guaranteed, at a minimum, the right to be free from torture. Id.
630 F.2d at 882. The court explained its examination of the declarations by stating
that the declarations specify "with great precision the obligations of the member
nations under the Charter." Id.
at 883. It furthered stated that declarations create the expectation that states will
adhere to the rights provided for in the declarations. Id.
630 F.2d at 882. The court noted that the Declaration explicitly states, "no one
shall be subjected to torture." Id.
630 F.2d at 882-883. The court gave special attention to this instrument, which not
only provides that states cannot permit torture, but also defines torture and states that
any victim of torture should be given redress according to national laws. Id.
v. Pena, 630 F.2d 876, 883-84 (2d Cir. 1980).
n148 See supra
notes 109-120 and accompanying text.
n149 See supra
notes 109-120 and accompanying text.
n150 See supra
note 97 and accompanying text.
n151 In addition to
its signing of the U.N. Charter and its signing and ratifying of the Universal Declaration
and the ICCPR, the United States has become a member to a number of U.N. sponsored
treaties, including the following: Convention to Suppress the Slave Trade and Slavery, 46
Stat. 2183, 60 L.N.T.S. 253, (entered into force Dec. 7, 1927) (entered into force for
U.S. Mar. 21, 1929); Protocol Amending the Slavery Convention, 182 U.N.T.S. 51, (entered
into force Dec. 7, 1953) (entered into force for the U.S. Mar. 7, 1956); Supplementary
Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices
Similar to Slavery, 226 U.N.T.S. 3, (entered into force April 30, 1957) (entered into
force for U.S. Dec. 6, 1967); Convention on the Political Rights of Women, 193 U.N.T.S.
136, (entered into force July 7, 1954) (entered into force for the U.S. July 7, 1976);
Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, (entered into force Oct. 4,
1967) (entered into force for U.S. Nov. 1, 1968); Convention on the Prevention and
Punishment of the Crime of Genocide, 78 U.N.T.S. 277, (entered into force Jan. 12, 1951)
(entered into force for the U.S. Feb. 23, 1989); Four Geneva Conventions for the
Protection of Victims of Armed Conflict, adopted August 12, 1949, 75 U.N.T.S. 287,
(entered into force Oct. 21, 1950) (entered into force for U.S. Feb. 2, 1956).
n152 U.S. general
legislation affording human rights influence in formation of foreign policy includes:
Foreign Assistance Act of 1973 § 32, Pub. L. No. 93-189, 87 Stat. 714, 733 (1973)
(declared the "sense of Congress that the President should deny any economic or
military assistance to the government of any foreign country which practices the
internment or imprisonment of that country's citizens for political purposes,"
thereby expressing a more general human rights concern); Foreign Assistance Act of 1974 §
502B, Pub. L. No. 93-559, 88 Stat. 1795 (1974) (stating the "sense of Congress . . .
that, except in extraordinary circumstances, the President shall substantially reduce or
terminate security assistance to any government which engages in a consistent pattern of
gross violations of internationally recognized human rights); International Development
and Food Assistance Act of 1975, Pub. L. No. 94-161, 89 Stat. 849 (codified in scattered
sections 7, 22 of U.S.C.) (tying the receipt of economic assistance to a human rights
standard); International Security Assistance and Arms Export Control Act of 1976 § 502B,
Pub. L. No. 94329, 22
U.S.C. 2304 (1976) (declaring that a principal goal of the foreign policy of the
United States is to promote the increased observance of internationally recognized human
rights, instructing the President to formulate military aid programs to promote human
rights, providing for the termination or restriction of security assistance to any country
"engaging in a consistent pattern of gross violation of internationally recognized
human rights," requiring that the Administration report to Congress on the human
rights situation in each country receiving security assistance).
n153 For discussion
regarding the relationship between the Executive and Congress in making foreign policy
based on human rights concerns, see Stephen B. Cohen, Conditioning U.S. Security
Assistance on Human Rights Practices, 76
AM. J. INT'L L. 246; DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 28, at
242-246; DONNELLY, INTERNATIONAL HUMAN RIGHTS, supra note 3, at 99-117.
n154 Donald Fraser, Congress'
Role in the Making of International Human Rights Policy, in HUMAN RIGHTS AND AMERICAN
FOREIGN POLICY 247 (Donald P. Kommers & Gilburt D. Loescher eds., 1979).
Representative Fraser (D-Minn) was the first Chairman of the House Subcommittee on
International Operations and Human Rights. He remarks that Congress has a special role to
play in the protection of human rights, because it has the power to raise public awareness
as well as set standards for the Executive Branch to follow when using "the various
assistance programs for leverage in the promotion of human rights." Id.
at 248. Such legislation is called "general legislation," in that it gives
the Executive more breathing room, by only providing standards for the Executive to
follow. For examples of "general legislation," see supra note 152.
n156 Lawyers Committee
for Human Rights, Linking Security Assistance and Human Rights, in STEINER &
ALSTON, supra note 2, at 838. Country specific legislation can have some
advantages over general legislation. Country specific legislation can be tailored to the
specific set of circumstances in the "target" country. Id. Such
legislation also allows the possibility to reward the country with security assistance
based on the progress of its human rights record, instead of only punishing the country
for the violation. Id. An example of country specific legislation is Section 728
of the International Security and Development Cooperation Act of 1981. Id. This
piece of legislation applied to El Salvador in response to the government's killing of
thousands of civilians in 1981. Id. It required the President to certify on a
continual basis that El Salvador met four conditions, dealing with recognition of human
rights and treatment of citizens. Id.
Religious Freedom Act of 1998, Pub. L. No. 105-292, Stat.
n158 Id. at.
§ 2(a)(2). In Section 2, the bill cites to the following international agreements: the
Universal Declaration of Human Rights, the International Covenant on Civil and Political
Rights, the Helsinki Accords, the Declaration on the Elimination of All Forms of
Intolerance and Discrimination Based on Religion or Belief, the United Nations Charter,
and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Id.
at § 2(a)(2).
n159 Id. at
n160 Id. at
§ 101(c). Specifically, under the leadership of a President-appointed and Senate-approved
Ambassador at Large, the Office will assist the Secretary of State in preparing the
portions of the Human Rights Reports which address religious freedom. Id. at §
102(a). In addition, the Ambassador will aid the Secretary of State in preparing an Annual
Report on Religious Freedom to be transmitted to Congress which will supplement the Human
Rights Reports. Id. at § 102(b). The Ambassador will also fulfill advisory and
diplomatic roles, advising the President and Secretary of State on appropriate United
States response to religious freedom violations and using diplomatic means to address
violations abroad. Id. at § 101(c)(2)(3).
n161 Int'l Religious
Freedom Act, 1998, Pub. L. No. 105-242, Stat.
§§ 201, 301. The Commission consists of three
President-appointed members, three President-appointed members on the recommendation of
the Senate, and three members appointed by the Speaker of the House of Representatives. Id.
at § 202(b)(1)(B). None of these members can be officers or employees of the United
States. Id. The Ambassador at Large is also a member of the Commission, though
not a voting member. Id. at § 201(b)(1)(A).
Religious Freedom Act of 1998, Pub. L. No. 105-292, Stat.
§§ 202(a), 301.
n163 Id. at
§§ 401, 402, 403, 404, 405. With help from the Secretary of State, the Ambassador at
Large, the Special Adviser, and the Commission, the President shall determine the proper
action to be taken. Id. at § 401(b)(1). The Act provides the President a list of
possible actions, including the following:
(1) A private demarche; (2) An official public demarche; (3) A public condemnation; (4)
A public condemnation within one or more multilateral fora; (5) The delay or cancellation
of one or more scientific exchanges; (6) The delay or cancellation of one or more cultural
exchanges; (7) The denial of one or more working, official, or state visits; (8) The delay
or cancellation of one or more working, official, or state visits; (9) The withdrawal,
limitation, or suspension of United States development assistance in accordance with
section 116 of the Foreign Assistance Act of 1961; (10) Directing the Export-Import Bank
of the United States, the Overseas Private Investment Corporation, or the Trade and
Development Agency not to approve the issuance of any . . . guarantees, insurance,
extensions of credit, or participation in the extension of credit with respect to the
specific government, agency, instrumentality, or official found or determined by the
President to be responsible for violations under section 401 or 402; (11) The withdrawal,
limitation, or suspension of United States security assistance in accordance with section
502B of the Foreign Assistance Act of 1961; (12) Consistent with section 701 of the
International Financial Institutions Act of 1977, directing the United States executive
directors of international financial institutions to oppose and vote against loans
primarily benefiting the specific foreign government, agency, instrumentality, or official
found or determined by the President to be responsible for violations under section 401 or
402; (13) Ordering the heads of the appropriate United States agencies not to issue any .
. . specific licenses, and not to grant any other specific authority . . . to export any
goods or technology to the specific foreign government, agency, instrumentality, or
official found or determined by the president to be responsible for violations under
section 401 or 402 . . .; (14) Prohibiting any United States financial institution from
making loans or providing credits totaling more than $ 10,000,000 in any 12-month period
to the specific foreign government, agency, instrumentality, or official found or
determined by the President to be responsible for violations under section 401 or 402;
(15) Prohibiting the United States Government from procuring, or entering into any
contract for the procurement of, any goods or services from the foreign government,
entities, or officials found or determined by the President to be responsible for
violations under section 401 or 402.
Id. at § 405 (a)(1)-(15). The President may take commensurate action in
substitution for the specifically listed actions and must notify the Congress of such a
decision. Id. at § 405(b). In addition, the Act provides that the President may
enter into a binding agreement with the foreign state who violates religious freedom. Id.
at 405(c). If the President decides to take particular action, listed as actions (9)-(15)
of section 405(a) above, the President must consult with the foreign state's government
prior to taking such action. Id. at § 403(a), (b). Also prior to such action,
the President must report to Congress regarding the intention for such action. Id.
at § 404. The Act also provides for Presidential action responding to states'
particularly severe violations of religious freedom. Id. at § 402.
n164 Religious freedom
as a human right is recognized in the following United Nations documents: Universal
Declaration of Human Rights, supra note 1, at art. 2, 18, 26, and 29; Convention
on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277,
art. II (providing that the five acts constituting genocide are "committed with
intent to destroy, in whole, or in part, a national, ethnical, racial, or religious group,
as such . . . ."); the Geneva Conventions, supra note 151, at common art. 3,
art. 16, 34-37 of the Third Convention, and art. 27 of the Fourth Convention; the
International Covenant on Civil and Political Rights, supra note 50, at art. 18,
20, 27; the International Covenant on Economic, Social and Cultural Rights, supra
note 61, at art. 13(1), 2(2); the International Convention on the Elimination of All Forms
of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S.; the Declaration on the Elimination
of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Nov. 25,
1981, G.A. Res. 36/55, 36 U.N. GAOR Supp. No. 51, U.N.Doc. A/36/51 (existing as the most
important international instrument for religious rights) [hereinafter, Declaration Against
All Forms of Intolerance]. For excellent explanation of these documents and their role in
the international protection of religious rights, see generally Natan Lerner, Religious
Human Rights Under the United Nations, in 2 RELIGIOUS HUMAN RIGHTS IN GLOBAL
PERSPECTIVE: LEGAL PERSPECTIVES 79 (Johan D. van der Vyver & John Witte, Jr. eds.,
1996); Donna J. Sullivan, Advancing the Freedom of Religion or Belief Through the U.N.
Declaration on the Elimination of Religious Intolerance and Discrimination, 82
AM. J. INT'L. L. 487 (1988).
n165 John P. Humphrey,
Political and Related Rights, in 1 HUMAN RIGHTS IN INTERNATIONAL LAW, supra
note 60, at 171, 176.
n166 In his
introduction of the Freedom From Religious Persecution Act, a precursor version to the
passing of the International Religious Freedom Act of 1998, Representative Frank Wolf
stated that religious persecution has "persisted and accelerated . . . while the
world and the United States have turned their efforts elsewhere." 105 CONG. REC.
E996-E997 (daily ed. May 21, 1997) (extension of remarks of Rep. Frank R. Wolf). For
review of the bills that led to the passing of the IFRA, see supra note 12 and
n167 See supra
note 158 and accompanying text.
n168 Freedom From
Religious Persecution Act, 1997: Markup on H.R. 1685 Before the House Comm. on
International Relations, 105th Cong. (1997) (statement of John Shattuck, Assistant
Secretary of State, Bureau of Democracy, Human Rights and Labor, U.S. Dpt. of State).
Though this quote was made in the context of another version of a bill to address
religious persecution, for the purposes of this Note, Secretary Shattuck's concerns are
just as relevant for the IRFA. For his remarks concern the effect of legislation which
creates a method to deal with the violation of one right but not others.
n169 See supra
note 168 and accompanying text.
n170 Theodor Meron, On
a Hierarchy of Human Rights, 80
AM. J. INT'L L. 1, 5 (1986) [hereinafter On a Hierarchy].
n171 Id. The
instruments and provisions containing these phrases include the following: the Charter of
the United Nations (the Preamble, Articles 1(3), 13(b), 55(c), 62(2), 76(c)), the
Universal Declaration of Human Rights (the Preamble, Articles 2, 29(2), 30), the
International Covenant on Civil and Political Rights (Articles 2(1), 3, 5(1), 5(2)), the
International Convention on the Elimination of All Forms of Racial Discrimination (the
Preamble, Article 1(1)), and the Convention on the Elimination of All Forms of
Discrimination Against Women (the Preamble, Articles 1, 3). Meron, On a Hierarchy,
supra note 170, at 5.
n172 See van
Boven, supra note 27, at 43. Professor van Boven notes that modern human rights
thinking holds to the indivisibility of human rights which views human rights as a
"single package" and therefore incapable of ranking. Id. Even so, he
asserts that some rights have a "supra-positive" character. Id. These
rights, he argues, lie at the "foundation of the international community . . .
represented in the United Nations and, in a more limited sense, in other important
worldwide and regional organizations." Id. at 48. Evidence of these rights
is found in special procedures established by other international organizations, such as
the International Labor Organization, to promote fundamental rights. Id. at 46.
Additional evidence includes international penal law as well as resolutions of the U.N.
Economic and Social Council which give guidance to the fundamental nature of certain
rights. Id. at 47-48. Still, Professor van Boven notes that the differing
implementation measures of the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social, and Cultural Rights, do not automatically
suggest that civil and political rights are fundamental, while economic, social and
cultural are not. Id. at 48-53. He states that the "gradual progress"
of implementing rights is actually part of the "whole human rights area." Id.
at 53. So, while van Boven asserts that supra-positive rights exist, he fails to reveal
which rights have such character.
n173 RESTATEMENT, supra
note 97, at § 702 cmt. m.
n175 Comment M states
that the following rights are "fundamental": systematic harassment, invasions of
privacy in the home, arbitrary arrest and detention, denial of fair trial in criminal
cases, grossly disproportionate punishment, denial of freedom to leave a country, denial
of the right to return to one's country, mass uprooting of a country's population, denial
of freedom of privacy such as the right to marry and raise a family, and invidious racial
or religious persecution. Comment M provides that any state party under the Covenant for
Civil and Political Rights that violates any of these rights a single time is liable and
that any state is liable under customary law for a consistent pattern of state violations
of any right. RESTATEMENT, supra note 97, at § 702 cmt. m.
n176 Meron, On a
Hierarchy, supra note 170, at 4. Meron notes that while the Restatement includes the
right to leave one's country as a fundamental right, a study prepared for the UN
Sub-Commission on Prevention Discrimination and Protection of Minorities questions whether
the right to leave one's country is a right or a "mere human attribute." Id.
Traction Case (Bel. v. Spain), 1970 I.C.J. 3 [hereinafter Barcelona
Traction] (holding that Belgium was not entitled to bring an action on behalf of
nationals who owned ninety percent of a Canadian corporation which in turn owned a Spanish
corporation and suffered injury as a result of action by Spain, because Belgium's interest
was too indirect).
n178 Id. at
para. 33-34. See Meron, On a Hierarchy, supra note 170, at 10-11.
Traction, supra note 177, at para. 33-34. The Court mentioned the protection from
slavery and racial discrimination as examples of fundamental rights. Id. See 1
OPPENHEIM'S INTERNATIONAL LAW 4 (Robert Jennings & Arthur Watts, eds. 9th ed. 1994)
Traction, supra note 177, at para. 33-34; MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS,
supra note 108, at 194.
note 178 and accompanying text.
n182 Meron, On a
Hierarchy, supra note 170, at 11-12.
n183 RESTATEMENT 3d, supra
note 97, at § 703 reporter's note 3.
n184 Meron, On a
Hierarchy, supra note 170, at 13.
HUMANITARIAN NORMS, supra note 108, at 193.
n186 ICCPR, supra
note 62, at art. 6(1); The European Convention for the Protection of Human Rights and
Fundamental Freedom, Nov. 4, 1950, 213 U.N.T.S. 221, E.T.S. 5, U.K.T.S. 71, art. 2
[hereinafter European Convention]; American Convention on Human Rights, Nov. 22, 1969,
1144 U.N.T.S. 123, 9 I.L.M. 673, art. 4(1) [hereinafter American Convention].
n187 ICCPR, supra
note 62, at art. 8; European Convention, supra note 186, at art. 4(1); American
Convention, supra note 186, at art. 6.
n188 ICCPR, supra
note 62, at art. 7; European Convention, supra note 186, at art. 3; American
Convention, supra note 186, at art. 5(2).
n189 ICCPR, supra
note 62, at art. 15. European Convention, supra note 186, at art. 7; American
Convention, supra note 186, at art. 9.
HUMANITARIAN NORMS, supra note 108, at 194. See DONNELLY, UNIVERSAL
HUMAN RIGHTS, supra note 28, at 37-45. Professor Donnelly reviews the attempts of
other scholars, including Henry Shue, to construct a list of basic rights. Id. at
39. He notes that all the lists have one thing in common: if all the "basic"
rights were enjoyed, people would still be "living degraded lives." Id.
at 41. He writes:
Without other human rights, "basic human rights" are inadequate to protect
human dignity in any plausible sense of that term. Human dignity, the realization of which
is the aim of human rights, cannot be reduced to dimensions that can be encompassed by a
short or narrow list of "basic" human rights. All human rights are
"basic rights" in the fundamental sense that systematic violations of any
human right preclude realizing a life full of human dignity -- that is, prevent one from
enjoying the minimum conditions necessary for a life worthy of a human being.
n191 Meron, On a
Hierarchy, supra note 170, at 8.
HUMANITARIAN NORMS, supra note 108, at 194.
n193 U.S. and
China: Ups & Downs, TIME, Oct. 27, 1997, at 17.
n194 See supra
note 60 and accompanying text.
n195 Meron, On a
Hierarchy, supra note 108, at 4.
UNIVERSAL HUMAN RIGHTS, supra note 28, at 44.
Donnelly does not oppose the construction of a list of basic rights. On the contrary, he
remarks that for purposes of foreign policy, states may have to set limited goals,
concentrating on the "most important" human rights. In his discussion of lists
of basic rights, however, he sheds light on the difficulty of constructing a sound and
effective list of basic rights and thus calls for theoretical guidance. DONNELLY,
UNIVERSAL HUMAN RIGHTS, supra note 28, at 43-4.
n199 Committee of U.S.
Citizens Living in Nicaragua
v. Reagan, 859 F.2d 929, 935 (D.C. Cir. 1988) (holding that the obligation of parties
to obey a judgment from the International Court of Justice is not a peremptory norm, and
therefore, the United States did not violate a peremptory norm when it contravened such a
Convention, supra note 93, at art. 53.
n201 Id. at
n202 Id. at
n203 Id. at
n204 RESTATEMENT, supra
note 97, at § 102, reporters' note 6.
n205 Simma &
Alston, supra note 109, at 24-25. The practice of states is difficult to assess
because most of jus cogens are "rules of abstention," in that states
abstain from taking a particular course of action. Id. at 24. Whether states have
recognized and accepted a norm as peremptory becomes a question of whether states have
abstained from such conduct. Alston notes that one must consider the intention motivating
such an abstention. Id. at 25. Alston then suggests that opinio juris
may play an important part in the recognition of peremptory norms in light of the
difficulty in assessing state practice. Id. Still, in order for a norm to have
peremptory status, the "whole" of the "international community" must
practice the norm, making such a determination especially difficult. Id.
n206 RESTATEMENT, supra
note 97, at § 102 reporters' note 6; OPPENHEIM'S, supra note 179, at 5 (stating
that there is "no general agreement as to which rules have this character");
Meron, On a Hierarchy, supra note 170, at 14. The Restatement notes that there is
"general agreement" that the Charter principles prohibiting the use of force are
jus cogens. The Restatement also notes that norms creating "international
crimes," such as rules prohibiting genocide, slave trade and slavery, apartheid and
other gross violations of human rights, and perhaps attacks of diplomats, may have
peremptory status. RESTATEMENT, supra note 97, at § 102 reporters' note 6.
n207 See supra
note 203 and accompanying text.
n208 RESTATEMENT, supra
note 97, at § 702 reporters' note 11. The Restatement lists the following rights as
customary norms, and therefore peremptory norms: prohibitions against genocide, slavery,
murder or causing disappearance of individuals, torture, arbitrary detention, and racial
discrimination. Id. at § 702 (a)-(f).
n209 MYRES S. McDOUGAL
ET AL., HUMAN RIGHTS AND WORLD PUBLIC ORDER: THE BASIC POLICIES OF AN INTERNATIONAL LAW OF
HUMAN DIGNITY 274 (1980).
n210 Alfred Verdross, Jus
Dispositivum and Jus Cogens in International Law, 60 AM. J. INT'L L. 60, 53, 59
n211 OPPENHEIM'S, supra
note 179, at 6 (stating that the content must be determined through the "practice of
states" and "jurisprudence of international tribunals").
n212 See supra
notes 191-198 and accompanying text.
n213 Meron, On a
Hierarchy, supra note 170, at 23.
n214 Id. at
n215 See supra
notes 39-86 and accompanying text.
n216 See supra
notes 39-86 and accompanying text.
n217 Nayar, supra
note 2, at 818.
n218 See infra
note 219 and accompanying text.
n219 STEINER &
ALSTON, supra note 2, at 263, 1127; Meron, On a Hierarchy, supra note
170, at 1; van Boven, supra note 27, at 48-53; DONNELLY, UNIVERSAL HUMAN RIGHTS, supra
note 28, at 28-37. As discussed, the U.N. had planned to draft an International Bill of
Rights, encompassing both civil and political, and economic, social and cultural rights.
Because of the varied nature of the rights, however, two documents were drafted. See
supra notes 52-55 and accompanying text.
n220 ICCPR, supra
note 62, art. 2 para. 1.
n221 ICESCR, supra
note 76, art. 2 para. 1.
DONNELLY, UNIVERSAL HUMAN RIGHTS, supra note 28, at 31-37. Discussion regarding
the value of the rights has often centered around the concept of "negative" and
"positive" rights. Viewed in this light, much of the ICCPR protects
"negative rights" in that the rights prohibit certain action of others, such as
the prohibition of slavery. It has been argued that these rights deserve priority because
they involve direct infliction of injury. Id. at 34. The ICESCR, however,
protects "positive" rights, in that the rights require others to act for the
rights to be realized. Id. at 33. This distinction between the negative and
positive rights, however, fades when considering the actual implementation of the rights. Id.
at 33. For a negative right, such as protection against torture, requires the state to
refrain from torturing. But this also includes the positive duty of the state to supervise
and control its police and security forces. Id. Similarly, a positive right, such
as the right to be fed, may require a government to refrain from the exporting of local
crops and allow local crops to be locally consumed. Id. Professor Donnelly
remarks, "All human rights require both positive action and
restraint on the part of the state." Id Professor Donnelly notes that even
if civil and political rights were wholly negative, they would not possess priority over
economic, social and cultural rights. Id. at 34. For acts of commission (negative
rights) as well as acts of omission (positive rights) can result in the same human rights
n223 ICCPR, supra
note 62, at preamble para. 3; ICESCR, supra note 76, at preamble para. 2.
n224 Not only do the
Covenants state their interrelated nature, but the rights conferred in each of them work
together for their full realization. For example, the ICESCR protects the right to form
trade unions. ICESCR, supra note 76, at art. 8(1). The ICCPR, then, guarantees
the right to freedom of association. ICCPR, supra note 62, at art. 22(1). See
STEINER & ALSTON, supra note 2, at 263, for discussion of this example as
well as explanation regarding the similarity of rights within the documents.
n225 See infra
note 226 and accompanying text.
n226 van Boven, supra
note 27, at 51. Sohn, supra note 2, at 62-63.
n228 This is not to
suggest that states should not take national action. National action plays an integral
role in the protection of human rights on an international level. DONNELLY, UNIVERSAL
HUMAN RIGHTS, supra note 28, at 266-269. States, however, cannot lose sight of
the fact that international human rights norms have developed. As Professor Donnelly
states, "The moral universality of human rights, which has been codified in a strong
set of authoritative international norms, must be realized through particularities of
national action." Id. at 269. Thus, the international norms must serve as
the basis for national action. Another scholar notes that the U.S. has a history of
difficulty in "adjusting to an interdependent, nonhegemonic world." DAVID P.
FORSYTHE, THE INTERNATIONALIZATION OF HUMAN RIGHTS 137-38 (1991). In the human rights
arena, this difficulty shows itself in the United States' prioritization of civil and
political rights. Id.
n229 Nayar, supra
note 2, at 825; PETER R. BAEHR, THE ROLE OF HUMAN RIGHTS IN FOREIGN POLICY 82 (1994). The
international effort to protect human rights asks the United States to go beyond its own
"tradition" and recognize the importance of such rights as "adequate food,
clothing, shelter, health care, and education." FORSYTHE, supra note 228, at
n230 Nayar, supra
note 2, at 825. Professor Nayar notes that President Jimmy Carter recognized that when
states signed and ratified the Charter, they pledged not only to respect the rights of
their own citizens, but they also pledged that any mistreatment of their own citizens
would result in the inquiry by other states. Id.
specifically, the human right of the freedom of religion cannot be isolated from the
general principle of equality. In other words, because human rights are indivisible,
measures to remedy religious discrimination must be coordinated with measures to remedy
other types of discrimination, such as racial, gender, education, and employment. Lerner, supra
note 164, at 106.
Religious Freedom Act of 1998, Pub. L. No. 105-292, Stat.
§ 2(1), (2). Opening with these words regarding the United
States' historical tradition of religious freedom, the Act provides clear evidence of the
subjective perceptions at work in defining which rights deserve more protection than
others. See supra notes 191-197 and accompanying text.
has the right to freedom of thought, conscience and religion. This right includes freedom
to change his religion or belief, and freedom, either alone or in community with others
and in public or private, to manifest his religion or belief in teaching, practice,
worship and observance." Universal Declaration, supra note 1, at art. 18.
shall have the right to freedom of thought, conscience, and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice, and teaching . . ." ICCPR, supra
note 62, at art. 18.
Religious Freedom Act of 1998, Pub. L. No. 105-292, Stat.
n236 Even if the Act
did not cite these international agreements, because the Act addresses an internationally
recognized right, the Act exists in the context of international norms. See supra
notes 87-150 and accompanying text.
n237 See supra
notes 158, 233-34 and accompanying text.
n238 Though there is
impressive constituent support for the Act, especially from the Christian Right, others
have voiced their concerns regarding a resulting hierarchy of human rights. See
Anthony Lewis, Religious Persecution Act First Step Toward Hierarchy of Fundamental
Rights, N.Y. TIMES, Sept. 16, 1997, at 13A.; Editorial, Freedom of Religions,
WASH. POST, Sept. 11, 1997, at A14; Pat M. Holt, Religious Persecution In the Global
Balance: It May Rightfully Rank Low In World Security Priorities, CHRISTIAN SCI.
MONITOR, October 2, 1997, at 19.
Susan Gvozdas, Christian Coalition Broadens Focus: Religious Persecution Targeted,
U.S.A. TODAY, August 27, 1997, at 8(A); Terry Mattingly, Clergy Call for Fight Against
Persecution: Religious Leaders Trade Tales of Oppression at Unveiling of Legislation,
MILWAUKEE J. & SENTINEL, May 31, 1997, at 2; Larry Witham, New Ad Sheds Light on
Persecution of Religious Believers, WASH. TIMES, MAY 29, 1997, at A(5).
n240 Meron, State
Responsibility, supra note 11, at 384. Meron states that governments also often
look to the "massive" and grave nature of the violation. Id.
n241 Secretary of
State Madeleine Albright remarked on the importance of the "method" with which
the United States seeks to protect rights, stating:
If we are to be effective in defending the values we cherish, we must also take into
account the perspectives and values of others. We must recognize that our relations with
the world are not fully encompassed by any single issue or set of issues. And we must do
all we can to ensure that the world's attention is focused on the principles we embrace,
not diverted by the methods we use.
Madeleine K. Albright, Religious Freedom, Remarks at the Columbus School of Law, The
Catholic University (Oct. 23, 1997) [italics added]. With these words, Secretary of State
Albright was likely referring to the methods with which we deal with violations, such as
sanctions against the violating state. Still, her words help to make the distinction
between the ultimate purpose -- protection of a human right -- and the method used to
n242 Meron, State
Responsibility, supra note 11, at 384.
n243 U.N. documents
maintain the equality of human rights. The Declaration states that the "recognition
of the inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world." Universal
Declaration, supra note 1, at preamble para. 1. Throughout the document, the
Declaration makes no distinction between the rights it lists as those belonging to each
human. The International Covenant on Civil and Political Rights supports the belief that
all rights are interdependent and interrelated by stating, "in accordance with the
Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and
political freedom and freedom from fear and want can only be achieved if conditions are
created whereby everyone may enjoy his civil and political rights, as well as his
economic, social, and cultural rights." Like the Universal Declaration, the ICCPR
nowhere states that there is an ordering of rights. ICCPR, supra note 62, at
preamble para. 3. Finally, the Declaration on the Elimination of all Forms of Intolerance
and of Discrimination Based on Religion or Belief, focusing on religious discrimination
nowhere states that the human right of religious freedom deserves the highest priority.
Declaration on the Elimination of All Forms, supra note 164, at preamble. Rather,
it places it in the context of the promotion of all "human rights and fundamental
n244 While some view
religious freedom as a customary norm, its status as such has not yet gained universal
status. See supra notes 121-132 and accompanying text. Even for those who assert
that religious freedom is customary law, the singling-out of one right over all others
should be disturbing in light of the international assertion of the interdependent nature
of rights. See supra note 243.
n245 See supra
notes 109-119 and accompanying text.
n246 The second
component of customary law, opinio juris, exists as the component which reflects
consensus regarding the legal obligation of a given norm. Still, traditional customary law
relies on individual state practice to reveal the consensus regarding the legal
obligation. In short, the traditional formation of customary law depends on individual
state action. See generally supra notes 96-102 and accompanying text.
n247 See supra
note 113 and accompanying text.
n248 See supra
notes 16, 109-119.
n249 The U.S. has
participated in numerous such efforts. See supra note 151.
n250 See supra
notes 214-231 and accompanying text.
n252 See supra
notes 167-168 and accompanying text.
n253 RESTATEMENT, supra
note 97, at § 701, reporters' note 2.
n254 See infra
note 191 and accompanying text for discussion on subjective standards.