Convictions: Slate's blog on legal issues

Human Rights for Hostes Humanis?

Since the time of Grotius, a pirate has been considered to be hostis humanis generis, an enemy of mankind.

So write Ilias Bantekas and Susan Nash in their book International Criminal Law (2003). As a global enemy, the pirate was subject to prosecution in any country that managed to exercise jurisdiction over him—or, in the case of pirates like Grace O'Malley—her. Thus it's a bit of a surprise to read that Britain, the country that once claimed to rule the waves, is shirking from seizure of the 21st-century pirates about whom my IntLawGrrl co-blogger, Naomi Norberg, posted earlier this month. London's Sunday Times of London reported that the Foreign Office has instructed the Royal Navy "not to detain pirates because doing so may breach their human rights." The Times' Marie Woolf reports of the further concern regarding the "risk that captured pirates could claim asylum in Britain." This fear of inability to return the captives likely stems from Britain's nonrefoulement obligations, explicit in treaty provisions such as Article 33 of the Convention relating to the Status of Refugees and Article 3 of the Convention Against Torture, and deemed implicit in provisions such as Article 3 of the European Convention on Human Rights and Article 7 of the International Covenant on Civil and Political Rights:

The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.

'These people commit horrendous offences. The solution is not to turn a blind eye but to turn them over to the local authorities. The convention on human rights quite rightly doesn’t cover the high seas. It’s a pathetic indictment of what our legal system has come to.'

Human rights isn't a zero-sum game

Eric, nothing that the pope said Friday favored one set of rights over another.  Indeed, as my post stated, his speech to the U.N. General Assembly included "a tacit reprimand to those who would privilege civil and political rights over economic, social, and cultural rights -- or vice versa."  (emphasis added)  The point I'd intended to underscore was that the pope had reaffirmed the indivisibility of both sets of rights, the civil/political, on the one hand, and the economic/social/cultural, on the other.  Indivisibility was inherent in the 1948 Universal Declaration of Human Rights, but frayed when Cold War geopolitics pushed the U.N. Human Rights Commission to separate the 2 sets as it began the process of drafting treaties designed to make binding all those rights that states had endorsed in the nonbinding Declaration.  That separation, which seemed essential at the height of the Cold War, may be less so today:  160 countries are full members of the 1977 International Covenant on Civil and Political Rights, while 157 countries are full members of the 1977 International Covenant on Economic, Social, and Cultural Rights.  That means that 3/4 of all the United Nations' member states are firmly in each Convenant's camp.  Vestiges of Cold War concerns may be found, however, in the fact that the United States is not party to the latter Covenant and China is not party to the former.

As for China: application of the concept of indivisibility means that China is no more a "champion" of human rights than any other state.  The role that the Chinese state has played in alleviating poverty deserves attention.  Indeed, how each country addresses the basic needs of persons within its jurisdiction deserves note, as I've argued with regard to the United States in a forthcoming essay just posted at SSRN.  But the costs of such programs also must be assessed, respecting matters as wide-ranging as the health problems and the repressions of civil liberties that may result from economic development at all costs.  (Here, too, insert a "vice versa.")

On 2 points, it seems, we agree.   1st:  Athletes honored to carry the torch a bit of the way toward the 2008 Olympics should not have to fear anger and assault as they run through the streets of their home country.  2d:  Comprehensive, critical comparison of the nature and extent of states' programs to protect human rights rarely will yield a clear "winner."