Constitutional Impunity – How U.S. Courts are Breaking the Promise of Universal Human Rights, A Comparative Analysis

• Autores: Jeffrey Davis
• Localización: Current Issues On Human Rights / coord. por Alexander Sungurov, Carlos R. Fernández Liesa, María del Carmen Barranco Avilés, María Cruz Llamazares Calzadilla, Óscar Pérez de la Fuente, 2020, ISBN 978-84-1324-552-2, págs. 47-60
• Idioma: inglés
• Texto completo no disponible (Saber más ...)
• Resumen

  • Last year the U.S. Supreme Court ruled that officials did not violate any enforceable rights when they imprisoned and abused Muslim men without legal grounds after the September 11 terrorist attacks. One week later it held that an unarmed Mexican teenager who was shot and killed by a U.S. border guard had no rights courts could enforce.

    Nearly 70 years earlier, as representatives from all over the world gathered to craft the Charter of the United Nations delegates from the big powers resisted emphasizing human rights. A delegate from India, Ramaswami Mudaliar, rose and stated “We are all asked to be realists, we are asked to recognize various factors in the world set up as it is today.” He argued, “There is one great reality, one fundamental factor, one eternal verity… the dignity of the common man, the fundamental human rights of all beings all over the world.” He continued, “If we are laying the foundations for peace we can only lay them truly and justly, and to do so, those fundamental human rights of all beings all over the world should be recognized.” The United Nations adopted the Universal Declaration of Human Rights on December 10, 1948.

    In the years since, the United States has systematically marginalized and discredited international human rights in its domestic law while European nations have struggled to embrace it. Now other nations, including some of the staunchest European advocates of human rights, are resisting human rights enforcement and some are doing so using arguments similar to those proselytized by the U.S.. Protecting human rights, they claim, damages democracy and weakens national security.

    In this paper I conduct a comparative analysis of rights enforcement in national courts and regional courts in order to:

    • Explain how and why U.S. human rights jurisprudence has deviated sharply from that of democratic nations in Europe especially in the area of civil rights.

    • Demonstrate that contrary to rulings from U.S. courts, human rights are derived from basic human dignity and are not delegated by treaties, constitutions, or statutes.

    • Argue that the very purpose of democracy is the protection and promotion of human rights.

    • Show how that if we are to “truly and justly” lay the foundations for a stable peace rooted in vibrant democracies courts must strenuously enforce the positive obligations of states to protect human rights, in addition to negative rights restrictions.