International Human Rights
1. To explore potential differences in domestic and international treatment of human rights as articulated in the ICCPR.
2. To explore the rules of treaty interpretation and customary international law within the context of the issue of extraordinary rendition.
3. To explore the strengths and weaknesses of the current ICCPR monitoring system.
Begin by reading the materials under III.B: Extraordinary Rendition & the ICCPR. Also, take the time to review your class notes for the semester, since this problem addresses many of the issues we have explored to date. You are a staff attorney with an NGO working on a shadow report to the UN Human Rights Committee on the issue of extraordinary renditions. You have been asked to write a short internal memo on the following issues:
a. Identify some of the major ICCPR rights that might be implicated by the extraordinary renditions carried out by or at the request of U.S. law enforcement and intelligence officials. The cases involving Ahmed Agiza and Mohammed Alzery should help you identify those rights (Henkin, p. 3 and 24-33).
Once you have identified the rights, briefly consider whether the U.S. could “derogate” or “limit” those rights on the grounds that it is fighting a “war on terror.” What are some of the concerns that the NGO might like to share with the UN Human Rights Committee.
b. Article 7 of the ICCPR, one of the rights implicated in renditions, does not contain an express “non-refoulement” rule (prohibition against sending or returning an individual to a country where there are “substantial grounds” for believing that he or she will be subjected to “torture, or to cruel, inhuman or degrading treatment or punishment,” see, e.g., Soering case). The U.S. has publically stated that since Article 7 of the ICCPR contains no express provision, it is not legally bound by such a rule. It acknowledges that its obligations under the Convention Against Torture may be broader, but notes that this is a separate treaty with no legal relevance to its obligation under the ICCPR. The U.S. is also skeptical of any customary norm on the issue of non-refoulement and torture. Analyze whether the position of the United States is consistent with its international treaty obligations under the ICCPR.
c. The United States further maintains that it has no extraterritorial obligations under Article 2 of the ICCPR, citing the preparatory work to the ICCPR. In that preparatory work, the U.S. requested in 1948 that “within its territory” be added to Article 2. Thus, the U.S. claims no legal obligation for alleged extraterritorial violations of an individual’s Article 7 rights for renditions occurring outside the U.S. Analyze whether the position of the U.S. is consistent with its international obligations under the ICCPR.
d. The United States has the following reservation to Article 7:
i. “That the United States considers itself bound by Article 7 to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States.”
ii. Additionally, the U.S. has declared the ICCPR to be “non-self-executing.”
Analyze whether the reservation and declaration are consistent with the obligations of the United States under the ICCPR.
As the in-house expert, you have been asked by the Executive Director of an NGO to briefly explain to some new employees the workings of the UN Human Rights Committee and the efficacy of the process chosen under the treaty regime to monitor, implement and enforce civil and political rights. Some brief thoughts on this treaty-based system will suffice.