Liberty and justice for all United States persons abroad

The Isaac Brock Society

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Introduction – What about the rights of individuals in International Law?

I have recently written two posts here and here discussing how countries interact and respect the sovereignty of other countries. Specifically those posts have discussed how countries respect each others sovereignty in the areas or citizenship and taxation. Neither of these posts considered the rights of individuals (do they matter at all?). This omission was reflected in (at least) the following two comments:

Where in this subject comes the human rights issue, the freedom to choose one’s citizenship? Has the EU Court of Human Rights ever issued a statement on this question?

Okay, then, what about all those defectors from the USSR and other East Bloc countries? How come their obligations to Moscow, etc. weren’t respected? Did these countries not possess sovereignty? Does being a refugee or asylum seeker trump the obligations of citizenship in the state from which one has fled?

The purpose of this post is to outline (in a very basic way) the development of international agreements (perhaps not treaties) and protocols, where nations agreed that individuals should have rights (sounds radical doesn’t it). Note that the focus in this post will be on agreements among countries that recognize individual rights associated with citizenship (and other kinds of rights).

Of course individual countries have internal rules/laws (constitutional, statutory or regulatory) that create and diminish individual rights.

(Examples of countries recognizing the rights of their citizens include:

Canada – Section 6 of Canada’s Charter Of Rights guarantees Canadian citizens the right to enter and leave Canada.

The United States – The Supreme Court Of The United States has interpreted the 14th Amendment to mean that Congress cannot forcibly strip people of their citizenship.)

In the same way that World War I was the catalyst for the “League Of Nations”, World War II was the catalyst for a number of International Initiatives which recognized the rights of individuals.

Post-World War II: The United Nations Begins – The ascendancy and expansion of the rights of individuals

In the mid 1980s I attended a conference where I met John Humphrey. (I had no idea of how significant he was in the development of an international recognition of individual rights.) Human Rights historians describe him as:

“Canadian lawyer and human rights advocate John Peters Humphrey (1905-1995) taught law at McGill University before becoming the first director of the United Nations Division of Human Rights, a position he held from 1946 until 1966 … After authoring the first draft of the Universal Declaration of Human Rights at the request of Eleanor Roosevelt, he shepherded the Declaration project through to its completion in 1948. He was involved in the development of the various human rights covenants and protected the division from a number of threats, including investigation by the staff for un-American activities and Secretary General Dag Hammarskjöld’s attempts to bring the human rights program to a standstill. Later in his career Humphrey introduced a highly successful technical assistance program in which international and regional seminars were held on specific human rights topics in countries all over the world. He was also deeply involved in the attempt to create the office of UN High Commissioner for Human Rights in the 1960s.”

Humphrey was also involved in organizing celebrations across Canada for International Year for Human Rights in 1968. In addition to being a widely consulted expert on human rights, he worked with various human rights organizations, such as the Canadian Human Rights Foundation and the Canadian Council on Human Rights.

The International Declaration Of Human Rights And Other Recognitions Of The Rights Of Individuals

At the end of Word War II, the League of Nations came to an end and the United Nations was born. Along with the birth of the United Nations, came new human rights instruments that focused on the rights of individuals.

1. The United Nations Declaration of Human Rights

PREAMBLE

Whereas 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,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

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,

The Universal Declaration Of Human Rights is composed of 30 Articles. Interestingly the following articles have some bearing on citizenship and the rights of the individual:

Article 1.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2.

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 15.

(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

2. The International Covenant on Economic Social and Cultural Rights “ICESCR” – 1966

Described as:

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966 through GA. Resolution 2200A (XXI), and came in force from 3 January 1976.[1] It commits its parties to work toward the granting of economic, social, and cultural rights (ESCR) to the Non-Self-Governing and Trust Territories and individuals, including labour rights and the right to health, the right to education, and the right to an adequate standard of living. As of January 2020, the Covenant has 170 parties.[3] A further four countries, including the United States, have signed but not ratified the Covenant.

The ICESCR (and its Optional Protocol) is part of the International Bill of Human Rights, along with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), including the latter’s first and second Optional Protocols.[4]

3. The International Covenant on Civil and Political Rights “ICCPR” – 1966

Described as:

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966, and in force from 23 March 1976 in accordance with Article 49 of the covenant. Article 49 allowed that the covenant would enter into force three months after the date of the deposit of the thirty-fifth instrument of ratification or accession. The covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial.[3] As of September 2019, the Covenant has 173 parties and six more signatories without ratification.[1]

The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).[4]

The ICCPR is monitored by the United Nations Human Rights Committee (a separate body to the United Nations Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee normally meets in Geneva and normally holds three sessions per year.

Individual rights under International Law are aspirational

Whether the US treatment of Americans abroad violates the principles found in the Declaration of Human Rights as been considered at Brock before.

Here are two interesting and important examples:

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