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Human Rights Defenders

“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.”

 Universal Declaration of Human Rights

Article 1

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“Justice without might is helpless, might without justice is tyrannical”

Pascal, Pensées

"Every treaty in force is binding upon the parties to it and must be performed by them in good faith." 

Article 26, Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties (or VCLT) is a treaty concerning the international law on treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969.  The Convention entered into force on 27 January 1980. The Vienna Convention on the Law of Treaties  has been ratified by 111 states as of November 2010.

Although the scope is limited to only to treaties concluded between states, it does not cover agreements between states and international organizations or between international organizations themselves, though if any of its rules are independently binding on such organizations, they remain so.  It does apply, however, to treaties between states within an intergovernmental organization.

 


Signatories in light green, ratified in dark green


The inherent principles of international treaty law as embodied in the Vienna Convention on the Law of Treaties of 1969 have been in force since 27 January 1980 and it has been ratified by more than 100 countries.

 

Article 38 of the Statute of the International Court of Justice, considered by some as the "Bible of the Poor" of those who seek quick answers despite of the complexity of international relations, constitutes nevertheless a good starting point for the understanding of the sources of international law. According to this article, international law finds its origin in the following three sources:

 

      - international conventions of general or particular nature;

      - international custom, as evidence of a general practice accepted as law;

      - the general principles of law recognized by civilized nations.

 

Most international law experts would rush to add the "unilateral acts" to these three sources of law and to declare that Article 38 of the Statute has omitted to mention these unilateral acts for which the United Nations' International Law Commission (ILC) has elaborated Guiding Principles in 2006. Contrary to this opinion, other international lawyers would maintain that these unilateral acts constitute specific expressions of the will of States leading eventually to agreements which are then governed by the rules applicable to international conventions.

 

The philosophy of natural law is the basis of international law. The International Court of Justice itself holds the belief that whatever the legal argumentation of the judge, his or her decisions have to be just and in that sense must correspond to justice and equity. (Article 38 (2) of the Statute of the International Court of Justice).

The term “treaty” being defined for the purposes of the Convention as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”.  Nation states are sovereign and independent and there is an equality of all states.  Much international law is done in the context of the law of contracts (between Nation States).  The law of treaties is not civil law.  There are measures taken on the basis of Chapter VII of the Charter of the United Nations. Although they are foreseen in an international treaty - in particular by Article 25 of the Charter - these measures deserve to be highlighted because of the legal obligations they impose to the whole world, their political significance and the remarkable development they have undergone since the Gulf War of 1991. The measures taken by the Security Council and which are expressly based on Chapter VII of the Charter encompass not only military as well as economic sanctions against certain Nation States.

"This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

 

The Constitution of the United States of America




The United States of America and The Law of Treaties

The United States of America signed the  Vienna Convention on the Law of Treaties on 24 Apr 1970.  This treaty was entered into force on 27 January 1980, in accordance with article 84(1). 


The "supremacy clause" is the most important guarantor of national union. It assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts.


 

Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state. (Note that the word "shall" is used, which makes it a necessity, a compulsion.) However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the actual text of the Supremacy Clause itself.


"It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process. The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action."

 

Justice Arthur Goldberg

US Supreme Court Justice

Source: Kennedy v. Mendoza-Martinez, 1963

Human Rights Treaties

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

CEDAW Convention on the Elimination of All Forms of Discrimination against Women

CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

CRC Convention on the Rights of the Child

ICRMW International Convention on the Protection of the Rights of All Migrant Workers

ICRPD Convention on the Rights of Persons with Disabilities

International Convention for the Protection of All Persons from Enforced Disappearance(This treaty has not yet entered into force)

Fourteenth Amendment to the U.S. Constitution, which states:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Non-Derogable Rights - Rights which can not be taken away

 

 No nation state shall, even in time of emergency threatening the life of the nation, derogate from  guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not to be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.

All nation states who are parties to the human rights treaties must as part of their obligation to ensure the enjoyment of these rights to all persons within their jurisdiction and to adopt measures to secure an effective remedy for violations, shall take special precautions in time of public emergency to ensure that neither official nor semi-official groups engage in a practice of arbitrary and extra-judicial killings or involuntary disappearances, that persons in detention are protected against torture and other forms of cruel, inhuman or degrading treatment or punishment, and that no persons are convicted or punished under laws or decrees with retroactive effect.

The ordinary courts shall maintain their jurisdiction, even in a time of public emergency, to adjudicate any complaint that a non-derogable right has been violated.

There are norms of general international law which are accepted and recognized by the international community of States as a whole.  Thus a peremptory norm is one from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

In regards to criminal cases under international law, these provisions  can concern the prohibition of genocide, war crimes, crimes against humanity and the crime of aggression.  These are criminal violations of human rights.

When certain international norms have been breached,  criminals can be brought before the International Criminal Court.  

 

Article 29(2) of the Universal Declaration of Human Rights sets out the ultimate purpose of law:  In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.


"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."

(Article 31 (1)

Vienna Convention on the Law of Treaties

United States and Treaty Law

The Right to freedom from torture or cruel, inhuman or degrading treatment or punishment and freedom from medical or scientific experimentation is a human rights principle that has the status of jus cogens, and thus is ipso facto entrenched against treaty amendment or repeal.

 

Article 53 of Vienna Convention on The Law of Treaties (Signed at Vienna 23 May 1969), stated that “For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

 

The United States has signed and ratified the International Covenant on Civil and Political Rights (ICCPR) and The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the United Nations Convention against Torture or CAT). Both treaties delineate the prohibition against torture. The ICCPR specifically identifies non-consensual experimentation within Article 7 of the ICCPR.

 

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

 

Art. 2 of the ICCPR states that ‘[e]ach State Party… undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant ...’

 

The ICCPR contains no provision on termination or withdrawal, and the Human Rights Committee in General Comment 26 of 1997 declared that there was no such intention so that a state may not withdraw from it.

 

Finally, Article 103 of the UN Charter provides that ‘[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’.

 

The ICCPR treaty should be interpreted in good faith and with liberal interpretation in order to protect the human rights of vulnerable persons. The canon of good faith stipulates that treaties “are to be kept in most scrupulous good faith,” and that a treaty “should be interpreted . . . in a manner to carry out its manifest purpose.”

 

If a treaty such as the ICCPR has the status of supreme federal law, and it creates or protects individual rights, then an individual whose rights under the treaty have been violated is entitled to a domestic judicial remedy. The Supremacy Clause supplements international law mechanisms for enforcing treaties by adding domestic mechanisms. The Supremacy Clause causes treaties to be assimilated treaties to federal statutes and the Constitution (the national legal system), thus obviating the differences in enforcement mechanisms that would otherwise exist between these forms of law. Among other things, the Supremacy Clause makes treaties enforceable in court at the request of individuals. Because it refers to “Judges,” the Supremacy Clause clearly contemplates that courts will enforce treaties, and, indeed, “[t]he province of the court is, solely, to decide on the rights of individuals.”

 

Chief Justice Marshall in Foster v. Neilson Anchor recognized that our Constitution, specifically the Supremacy Clause, establishes the general rule that treaties are enforceable in U.S. courts, just as the Constitution and federal statutes are.

 

 Purposes and objectives of the U.S. Congress regarding human rights

 

International Human Right Treaties signed and ratified by the United States clearly are a statement of the U.S. Congress’s purposes and objectives in regard to human rights.

 

Thus, an interpretation of the United States obligations under the International Covenant on Civil and Political Rights (ICCPR), in conjunction with the ethical and legal standards of the United States Constitution and the U.S. Bill of Rights a natural person and citizen of the U.S.A., has the right to bring a petition to the Inter-American Commission on Human Rights in support of his/her human rights as defined under International Human Rights law and the customary human rights norms.

 

Certain rights, such as the right to freedom from torture and freedom from non-consensual experimentation, are non-derogable, and as such, cannot be suspended even in times of national emergency. Human rights such as the prohibition against crimes against humanity, torture and non-consensual scientific or medical experimentation are considered to be absolute. There are implied erga omnes duties for the United States to prohibit non-consensual experimentation and torture.

 

The principle of the prohibition against non-consensual experimentation to be fundamentally norm-creating character and the widespread practice of protecting human subjects is considered legally or morally obligatory - Opinio Iuris.

 

The United States Congress has clearly indicated through the ratification of the ICCPR, (Article 7) that it is the purpose and the intent of Congress to protect persons from non-consensual experimentation.

 

The United States Congress has also implemented Article 7 of the ICCPR in domestic legislation to protect human subjects from non-consensual experimentation – The Common Rule (45 CFR Part 46). The United States Congress has made its intent clearly evident by 1) ratifying the ICCPR (including Article 7), 2) Holding extensive discussions regarding the ethical need for human subjects protections, 3) publishing The Belmont Report and 4) legislating The Common Rule.

 

The Common Rule (45 CFR Part 46) is federal legislation drafted and entered in force under proper constitutional procedures and thus it is enforceable by the Court.

 

By legislating The Common Rule through a thorough and detailed political process the United States federal government has expressed the political will of the people to protect and defend the rights of persons against non-consensual experimentation.

US Domesitc Legislation to Protect Human Subjects in Research

Domestic Legislation

 

On July 12, 1974, the United States National Research Act (Pub. L. 93-348) was signed into law, there-by creating the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. One of the charges to the Commission was to identify the basic ethical principles that should underlie the conduct of biomedical and behavioral research involving human subjects and to develop guidelines which should be followed to assure that such research is conducted in accordance with those principles. In carrying out the above, the Commission was directed to consider: (i) the boundaries between biomedical and behavioral research and the accepted and routine practice of medicine, (ii) the role of assessment of risk-benefit criteria in the determination of the appropriateness of research involving human subjects, (iii) appropriate guidelines for the selection of human subjects for participation in such research and (iv) the nature and definition of informed consent in various research settings.

 

The Belmont Report (1976)  is a formal statement by the United States government regarding the ethical standards and accepted legal norms regarding the use of human subjects in medical, behavioral or scientific experimentation. The Belmont Report summarizes the basic ethical principles identified in 4 days of deliberations supplemented by the monthly deliberations held over a period of nearly four years. It is a statement of basic ethical principles and guidelines to consider in the use of human subjects in research. It was published in the Federal Register so it could become ethical guidance for U.S. researchers, scientists, governmental employees and Institutional Review Boards (IRB).

 

The Belmont Report identifies three basic ethical principles that are particularly relevant to the ethics of research involving human subjects: the principles of respect of persons, beneficence and justice.

 

Examples of Treaties

As to the designation of a text as "Treaty", here are some examples:

 

      - the North Atlantic Treaty (the NATO-Treaty) of 1948,  Treaty on the Non-Proliferation of nuclear Weapons 

 

Treaty on the European Union of 1992 (as amended by the  Treaty of Nice of 2001).

 

In most cases, multilateral treaties are called "Conventions". This is the most general designation which is also used by Article 38 of the Statute of the International Court of Justice. They are often concluded under the auspices of an international organization such as

 

      - the Convention for the Protection of Human Rights and

        Fundamental Freedoms of 1950 (so-called

        European Human Rights Convention concluded

        under the auspices of the Council of Europe),

      - the United Nations Convention on the Law of the Sea (1982) or the

      - the Universal Copyright Convention as revised at Paris on   24 July 1971 (concluded under the auspices of the

        United Nations Educational, Scientific and Cultural Organization   -UNESCO

 

As in the case of bilateral treaties, the very general term "Agreement" is also frequently used for multilateral conventions. It has been used in the following examples:

 

      - the European Agreement on continued Payment of Scholarships

        for Students Studying Abroad of 1969,

      - the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies

      North American Free Trade Agreement (1992).

 

The designation "Protocol" is usually used for legally binding agreements which are additional or complementary to main agreements or which have a supporting role.

 

As additional agreements they are added to the original treaties as it is the case with the Protocols Additional to the Geneva Conventions of 12 August 1949.

“Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around.”
 
― Leo Buscaglia

Medical Whistleblower Advocacy Network

MEDICAL WHISTLEBLOWER ADVOCACY NETWORK

P.O. 42700 

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MedicalWhistleblowers (at) gmail.com

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"Never impose on others what you would not choose for yourself."  Confucius

"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."

Theodore Roosevelt- Excerpt from the speech "Citizenship In A Republic", delivered at the Sorbonne, in Paris, France on 23 April, 1910