AN INTERNATIONAL PERSPECTIVE ON CIVIL AND HUMAN RIGHTS IN THE USA

                                                                                    By: Ian Anderson

    The renowned 16th. Century French essayist, Montaigne, once noted sardonically that everyone’s excreta smells good to oneself 1. Jarring though such a sentiment may be to late 20th. Century sensibilities, it focuses attention on the tendency of human beings to extol and accept the familiar.

    To those familiar with the system of individual rights and freedoms in the USA, it is generally believed that the US Constitution and the Federal Courts provide adequate modern protections for basic human rights. But Montaigne’s fulsome comment implies that a proper assessment of the familiar requires a consideration of the unfamiliar.

    In the present post Cold War era, in which even Russia has applied for membership of the Council of Europe, the existence of the European and Inter- American systems for the protection and enforcement of basic human rights, is still relatively unknown to the US Public. These unfamiliar systems therefore provide useful benchmarks with which to compare and evaluate the effectiveness of similar individual protections in the USA.

"Civil Rights"/ "Human Rights" In The USA; Preliminary Observations

    It might first be appropriate to examine some specific usages of the terms, "civil rights" and "human rights" in the USA and their consequent implications. Theoretically, there is little difference in the protections aimed at by most of the rights which are termed "civil" or "human" rights, in the US, European or Inter- American systems.

    In the US, "Civil" rights are generally considered to include those rights guaranteed to the individual by the Amendments to the Federal Constitution, as interpreted and applied by domestic courts.2 "Human" rights on the other hand are sometimes referred to in the US as the product of international (i.e., foreign), as opposed to domestic consensus.

    This distinction in the US historically lies at the root of certain important political approaches to the concept of "international" human rights and their relation to "domestic" civil rights. For example in the Congressional debates of the McCarthy era, the terms "civil" rights and "human" rights were often pitted against each other like metaphorical fighting cocks.

    In 1950, for example, Frank Holman, a one time President of the American Bar Association who testified before the US Senate, warned the US against incorporating the UN Universal Declaration of Human Rights into Federal Law; such an event would, according to Holman:

"change the relationship between the states and the federal government and" [would] "change even our own Constitution and form of Government........It is not an overstatement to say that the Republic is threatened to its very foundations". 3

    The essential political issue, around which such cold war arguments turned was the perceived threat which Federally "imported", human rights presented to States powers. The possible regulation and enforcement of such human rights by Federal or international courts was portrayed as a serious external challenge to states rights to regulate domestic issues such as racial segregation, the prohibition of inter- racial marriages, state voting restrictions and racial lynchings. 4

     Persistent campaigning by Holman and fellow McCarthyites however achieved a success which outlived the immediate political issues of their day. Not only was the incorporation of the Universal Declaration into Federal Law blocked, along with the ratification of the1948 Genocide Convention, (perceived as a threat to certain Southern States,5) but the US Senate subsequently refused to ratify the 1966 International Covenant on Civil and Political Rights 6, and, more significantly for US citizens, the regional, 1969 Inter- American Convention on Human Rights itself.7

    As a consequence of such perceived threats to the "foundations" of the Republic, individual rights and freedoms in the US have been carefully limited to the "civil" guarantees contained in the domestic Constitution, with enforcement restricted to domestic, as opposed to International Courts.

    It is hardly surprising, to note, that the effect of this policy in the US has generated sporadic criticism over its perceived failure to provide adequate solutions to race related problems. In 1964, for example, the noted African- American leader, Malcolm X, complained bitterly that the persistent and widespread injustices suffered by African- Americans in the US required international as opposed to domestic remedies.

"Human Rights! Respect as human beings! That’s what America’s black masses want. That’s the true problem." 8

"The American white man has so thoroughly brainwashed the black man to see himself as only a domestic "civil rights" problem that it will probably take longer than I live before the Negro sees that the struggle of the American black man is international." 9

But the "brainwashing" referred to by Malcolm X (and achieved mainly by the successful efforts of conservatives, such as Holman), appears to have been so complete and enduring that even today, at the close of the 20th. Century, there is little public discussion on the regulation and enforcement of basic freedoms and protections in the US by international convention and international tribunals.

    The international scheme for individual enforcement of human rights, (which, for example, has been taken for granted by Western Europeans for almost half a century), is barely discussed at all in the US as an option. Consequently, though many of the interests which US "civil rights" and European and Inter- American "human rights" aim to protect are theoretically identical, a substantial divergence exists, (as appears more fully below) in the degree of regulation and individual enforcement of such rights.

 An Examination Of US Constitutional Freedoms And Protections

    It might first be noted that the European and Inter- American regional human rights systems are the creation of conventions which contain complete lists of basic freedoms and protections that are readily understandable to the lay person. By contrast, the task of discerning the exact scope and nature of individual rights recognized by the US Federal Constitution can be daunting, even to a legal practitioner. Unlike modern constitutions and international human rights codes, the US Constitution does not concisely formulate or tabulate civil freedoms and protections for easy reference.10

It has been aptly noted for example that the 1787 US Constitution contains "no reference to the idea of rights and mentions hardly any of the human rights recognized and valued today" .11

    The 1787 US Constitution was, of course, primarily devised to remedy the failure of the original Articles of Confederation to create one nation from thirteen independent states. As such, it primarily served as a vehicle to address issues of political union, interstate and foreign relations, rather than fundamental individual rights and freedoms.12

    Indeed certain of the original interstate provisions of the Constitution expressly restricted essential individual rights, otherwise considered "inalienable" and "self evident", in favor of state commercial interests. Thus Article 1, Section 9(1) permitted the thirteen States to continue to trade in human beings without Congressional regulation until 1808, subject only to a maximum Federal tax of $10 per person, while Article 1V, Section 1(3) pledged the States to maintain the right of property in people who escaped from their owners and fled to other States. 13

    The later 1791 Amendments to the Constitution, loosely referred to as the Bill of Rights, assist the modern US litigator to a certain degree by recognizing a limited number of specific individual rights. However the manner in which these rights are referred to indicates that they were not created by the Constitution itself but pre- dated it and arose from independent colonial and post- colonial sources, (including the Common Law). 14

    Amendment IX of 1791, however, created potential uncertainty over the extent of the rights recognized by providing that rights enumerated in the amendments: "shall not be construed to deny or disparage others retained by the people."

    The literal wording of the 1791 Amendments, would require a modern US litigator to undertake a detailed historical legal search to ascertain the individual rights "retained by the people" in 1791 before venturing to advise a litigant of his or her rights. It has been cogently argued, however, that these unlisted, late 18th Century civil rights may now be lost and no longer be enforceable today due to the tendency of considering only the enumerated rights in the Constitution as the source of individual freedoms.

    This tendency, it has been suggested, has evolved in part as a result of the apparent limitation on the powers of the Federal Courts under Article 111 of the 1787 Constitution, which directs the Courts to consider issues "arising under this Constitution".

    "The courts have seen their responsibility as that of safeguarding only rights referred to in the Constitution; the Courts have been reluctant to enforce national rights ("endowed by their creator") not cited in the Constitution. They have been unwilling even to identify and give effect to the retained rights reserved by the Ninth Amendment" .15

    Thus in 1857,the US Supreme Court declined to apply the principle that all persons are born free because Articles 1 and 1V of the 1787 Constitution expressly sanctioned and protected slavery. 16 Similarly, in 1896 the Court declined to find any Constitutional protection against state policies of social discrimination based on race since Amendment X1V of 1868 limited protections in this regard to legal and political discrimination only. 17

    Amendments since 1791 dealing with fundamental rights and freedoms have been limited to four main issues, namely, prohibiting slavery, regulating citizenship and voting rights and curtailing State powers to abridge due process and equal protection rights. 18

    A further difficulty however confronts the modern US litigator in ascertaining the exact scope and extent of Constitutional freedoms and protections. This arises from the fact that neither the written Constitution, nor its subsequent Amendments, enumerate, at any given moment, the totality of an individuals rights and protections in the US.

    Civil rights and protections have also been discovered periodically by the US Supreme Court to exist in the grey areas or "penumbras" which "emanate" from certain written guarantees in the Bill of Rights and "help to give them life and substance" 19

    These "penumbras" have justified the existence of a right of association, 20 a right to education in a school of choice, 21 a right to study, 22 a right to distribute, receive and read material, 23 a right to teach and freedom of thought, 24 and a right of privacy. 25

    None of these rights are specifically mentioned or addressed in the written Constitution or the Bill of Rights. 26 Though the Supreme Court’s "discovery" of penumbral rights in recent times is highly laudable, their shadowy nature creates difficulties for the litigator attempting to chart the extent of the Constitution’s legal terra firma.

    Of greater significance however is the fact that this judicial method of regulating Constitutional rights and freedoms under the guise of "discovery", creates continual uncertainty in determining the totality of US Constitutional rights at any particular time. Rights, for example, which the Supreme Court was not able to discern in the Constitution at one period in time, have later been "discovered" at another time with both "life and substance". 27

    The average lay person in the US has thus no simple or easy means of gauging the sum of his or her individual rights under the Constitution at any particular time. Fascinating though the arcane opinions of the Supreme Court may be to Constitutional experts, they are generally impenetrable to the average individual.

    Though the sum of the individual rights afforded by the European or Inter- American systems can be ascertained in a manner of minutes by perusing a copy of the relevant convention, the lay person in the US is generally compelled to consult a legal expert, or carry out extensive research, to ascertain equivalent rights under the US Constitution. As such, precise knowledge of the nature and scope of individual rights in the US is not as readily accessible to most lay persons.

    It has been generally concluded by specialists in US Constitutional theory, such as Louis Henkin, that "human rights- civil/ political as well as economic/ social rights- are alive and reasonably well in the United States", 28 But this is subject to the important proviso that the average individual in the US actually knows what these rights are.

    Enforcement of US Constitutional rights is, in essence, the prerogative of the individual, not the Federal Courts or legal specialists. However, without any clearly formulated and accessible Code of Rights, the average person in the US will not have the same knowledge and ability to invoke individual freedoms and protections, as his or her counterpart under the European or Inter- American Human Rights Conventions.

Federal Enforcement of Freedoms And Protections

    By far the greatest divergence between the US and European and Inter- American Systems for protecting individual rights lies in the means of enforcement. In the US, enforcement of basic freedoms and protections is regulated by domestic tribunals as opposed to international bodies. Unlike the latter, the US domestic tribunals are not "user friendly".

    The Court of first resort for the enforcement of such protections is the US Federal District Court.29 Unlike the US Supreme Court, it is a creation of Congress under Article 111, sec. 1 of the 1787 Constitution and its original jurisdiction is subject to the political whims of that body.

    Originally Congress declined to grant the Federal District Courts all jurisdictional powers enumerated in Article 111, sec. 2 of the Constitution. Jurisdiction subsequently granted, was later revoked from time to time.30 Due to the political vulnerability of the District Courts, their jurisdiction has frequently been the target of Congressional "moral outrage" at US Supreme Court rulings on individual rights.

    For example, after the US Supreme Court’s ruling in Roe v Wade, various attempts were made by Congress in 1981 to nullify its enforcement. Bills were introduced which sought to strip the District Courts of jurisdiction to issue injunctions or restraining orders against States which prohibited abortions or abortion funding. 31

    In essence, by manipulating the District Court’s jurisdiction, Congress sought to obtain a de facto reversal of Roe v Wade without the necessity of a Constitutional Amendment. 32

    Similar Congressional attempts were made to nullify the enforceability of the 1954 US Supreme Court ruling in Brown v Board of Education, (and similar rulings), by Bills designed to strip the District Courts of jurisdictional power to issue orders requiring the attendance of any student at a particular school on account of "race, creed, color, or sex". 33

    The original jurisdiction of the District Courts has also been the target of attempts by Congress to preclude the enforcement of US Supreme Court rulings on School prayer, 34 gender discrimination in the military,35 and the Federal review of orders of State Courts. 36

    At present the District Courts still retain original jurisdiction to hear all civil actions arising under the US Constitution. 37

    Though the District Courts are highly important as courts of first resort for the enforcement of Constitutional protections, no special trial courts have been established within the Federal District Court system exclusively to hear and determine Constitutional issues; nor are special District Court judges allocated to hear such matters. Constitutional cases are dealt with like any other commercial or property matter in the District Courts and are subject to the same complex procedural rules. As such, no domestic Constitutional Court of first resort currently exists in the US from which an individual can easily and expeditiously obtain relief. 38

    At present 83 detailed procedural rules regulate civil actions in the District Courts across the country. The rules however (referred to as the Federal Rules of Civil Procedure- FRCP) are not uniformly applied and permit the individual District Courts to "opt out" with regard to certain aspects of procedure. For example, the present Rule 26, which regulates discovery issues, permits a District Court to direct that portions of the rule are inoperative in its district. 39

    Thus the discovery rules and procedures of the New York Southern District Court, situated at one end of New York City’s Brooklyn Bridge, differ radically from those of the New York Eastern District Court, situated at the other end of the Bridge.

    The unnecessary procedural chaos at opposite ends of the Brooklyn Bridge is not, however, limited to the Federal Rules of Civil Procedure. In addition to the Federal Rules, each Federal District Court is permitted to publish its own special "Local Rules" which also regulate civil procedure. These "Local Rules" also differ from one District Court to another and have to be read in conjunction with local variations of the Federal Rules.

    To complete the Kafkaesque procedural system, each Federal District Judge publishes differing individual "Rules" regulating civil procedure in his or her court.

    Attempts by the District Courts to alleviate the chaotic effects of the system have, on occasions led to the creation of yet more confusing rules. Thus in 1991, the Southern District of New York created in effect a fourth tier of procedural rules to be followed for a limited period of time under the ponderously titled "Civil Justice Expense and Delay Reduction Plan".

    The chaotic and unnecessarily complex nature of the District Courts’ procedural rules is not however the only serious obstacle which these rules present to the enforcement of Constitutional rights and freedoms in the District Courts.

    After the unsuccessful "recurring barrage" by Congress in the early 1980’s to render US Supreme Court civil rights rulings unenforceable in the District Courts 40, Rule 11 of the Federal Rules of Civil Procedure was quietly amended. The amendment of this Rule in 1983, poses one of the most serious procedural obstacles today to the enforcement of individual rights in the US. It has been described as representing a " collision between the democraticising values of Federal reform of the 1930’s...and the efforts during the 1980’s, to close the Federal Courts to the poor and the powerless." --- [the amendment was] only one small part of a political agenda imposing an ambitious, conservative philosophy on the Federal Courts."41

     In its original 1938 form, Rule 11 was designed to penalize attorneys who willfully filed pleadings in bad faith to harass or abuse defendants. Since it was in addition to the Court’s inherent powers to sanction bad faith conduct by practitioners, it was rarely invoked. 42.

    After the 1983 amendment, Rule 11 requires an attorney to certify, inter alia, that sufficient factual and legal grounds exist to sustain the relief claimed. Evidence of bad faith is no longer necessary under Rule 11 for the imposition of monetary sanctions. Thus a litigant together with his or her attorney may be subjected to substantial monetary sanctions for bringing an action which is subsequently deemed to be insufficient in law.

    It has also been significantly pointed out that the amended Rule 11 is "antithetical" to innovative litigation, which seeks to advance existing protections under the US Constitution, and alter the status quo. 43 Though Rule 11 permits an attorney to contend that existing law should be modified or extended, the success, or lack thereof, of such contentions, may depend to a major degree on the liberal or conservative views of the Congressionally approved District Court judge in question. A contention which is considered to be "frivolous" in the mind of the judge, will trigger the imposition of sanctions.

    A voyage, therefore, into the nether region of the Constitutional "penumbras" in search of a freedom or protection, may prove both hazardous and expensive to attorney and client.

    The "chilling" effect of Rule 11 on the enforcement of US Constitutional rights was highlighted in a 1992 report of the Geneva based International Commission of Jurists. The report noted that a grossly disproportionate number of post 1983 Rule 11 sanctions were imposed on Plaintiffs in civil rights cases. The report concluded that "such disparate application of Rule 11 may reduce the number of lawyers willing to take civil rights cases and may discourage victims of civil rights abuse from seeking a just remedy in a court of law." 44

 Inherent weakness In Domestic Enforcement In The US

    One important point, which should be apparent from the above, is the potential vulnerability of the present US system of enforcing basic freedoms and protections, to domestic, political, interference. As appears more fully below, both the European and Inter- American systems largely avoided this problem by denying domestic tribunals the ultimate power to enforce such rights.

    The vulnerability of the US system to domestic politics appears mainly to be a consequence of the archaic nature of the Constitution which requires innovative judicial interpretation to enable it to fulfil the current requirements of US society. In doing so however, the judiciary necessarily alter, or regulate, the scope of existing constitutional rights.

    But this judicial process of interpreting current social requirements, in effect, overlaps with and engages the political functions of the US Government; a natural consequence of which is the constant exposure of the Federal judiciary to the pressures of the political arena. Thus, while a US President may seek to appoint Federal judges who reflect his administration’s political views on current social requirements, opposition factions in Congress may seek to defeat or stall such appointments or attempt to render Federal judicial rulings unenforceable which are contrary to their political views.

    From an international point of view, both the scope and enforceability of individual rights in the US appear continually vulnerable to the oscillations and intrigues of partisan politics.

    Though the present US system may be said to be an adequate reflection of the will of those actively engaged in domestic politics, it is questionable if such a system can protect the fundamental rights and freedoms of all persons in the US with consistent robustness.

The European And Inter- American Approach

    From a legal practitioner’s point of view, the concept of enforcement of human rights in the European and Inter- American systems, differs radically from the domestic US model. Both regional sister systems address two recurring problems encountered in the enforcement of individual rights and freedoms, namely; domestic political interference with enforcement procedures and the accessibility of such procedures to lay persons.

    These problems were first addressed in the late 1940’s, in Europe, due to the failure of pre- World War 11 democracies to protect basic human rights of racial and ethnic minorities. It was recognized that such rights were not lost "overnight" in democratic societies, but were gradually whittled away by the persistent pressure of domestic political agendas on legislative and judicial institutions.

    It was realized that the only effective way to fully ensure the protection of such rights in post war Europe, was by regional cooperation amongst European states and by restricting national courts from acting as the ultimate arbitrators of such matters.

    A Congress of Europe was accordingly convened in 1948 and in the following year the Council of Europe, consisting of ten Western Democracies, was formally established. 45 As the primary task of the Council was the realization and implementation of human rights, 46 a European Convention for the Protection of Human Rights and Fundamental Freedoms was drafted and signed into existence by Council members on November 4th. 1950. 47

    This Convention, not only imposed obligations on member states to guarantee a concise code of basic human rights and freedoms within their territories, but established, for the first time, a simplified mechanism whereby individuals could directly enforce such obligations against their own states through an international tribunal.

    This latter innovation was achieved by establishing both an inter- nation European Court and European Commission of Human Rights at Strasbourg, France. Thus, though the Convention did not initially provide direct individual access to the Court, it permitted individual petitions to be presented to the Commission which could in turn, refer established violations of the Convention to the Court for final adjudication and the issue of an enforceable order. 48

    These radical individual enforcement provisions of the Convention have characterized it as "one of the few truly new social institutions of the twentieth century." 49

    The effect of such provisions has been to create, "a new legal order" transcending traditional boundaries between international and domestic law. 50

    The success of this unique regional system of inter- nation adjudication of domestic human rights violations in Europe, prompted the drafting of a similar convention for the Americas in 1969 by the Organization of American States. Thus under the Inter- American Convention of Human Rights 51, a similar code of basic human rights and freedoms are enforced by orders of the Inter- American Court of Human Rights at San Jose, Costa Rica. Individual access to the Court is gained by referral of complaints by the Inter- American Commission of Human Rights, at Washington, D.C.

    Though the US has been a member of the Organization of American States since 1948, and the Inter- American Convention was signed on behalf of the US by President Carter, the US Senate, (as indicated above) refused to ratify it. As a result, individual rights and freedoms in the US are limited to the guarantees of the US Constitution, with ultimate enforcement by internal, domestic courts.

Individual Enforcement In The European And Inter- American Systems

    The US Senate’s refusal to ratify the Inter- American Convention, has significantly deprived persons in the US of access to a simple and powerful means of securing basic individual rights which is currently employed in most European, American and Caribbean states.

    Unlike the US Constitution, the European and Inter- American Conventions contain complete and concise codifications of individual rights. Clarity in this regard, arose not only from the need to inform the individual of the precise scope of his or her rights and freedoms, but from the fact that the Conventions are binding international instruments, imposing special obligations on the member states involved.

    The European Convention originally recognized ten basic rights when it came into force in 1953, and the Inter- American Convention recognized twenty three rights in 1978. 52 Specific qualifications to certain of these individual rights are also set out in the Conventions, 53 and over the ensuing years, additional rights have been added by carefully drafted protocols. 54

    It should be noted that, though the 1953 European Convention essentially recognized all of the basic guarantees of the US Constitution, it also protected individual rights which were only judicially "discovered" in the US Constitution, over a decade later. For example, the rights to privacy and freedom of association, guaranteed by Articles 8 and 10 of the Convention, were only found to have " life and substance" in the US Constitution, in the 1960’s. (See Mapp v Ohio- 1961; Griswold v. Connecticut- 1963; and NAACP v. Alabama- 1961, supra).

    Similarly, the fundamental right of a man and woman to marry each other (contained in Article 12 of the Convention) was not recognized by the US until 1966 when the Warren Court finally ruled that laws prohibiting marriage between persons of different races violated Amendment XIV of the Constitution. (See Loving v. Virginia; 388 US 1) 55

    From the point of view of individual enforcement, access to the European and Inter- American systems, unlike the US Federal system, is not dependant on the skill and ability of legal experts. The clearly delimited rights contained in both Conventions, and their subsequent protocols, provide an easily accessible yardstick against which a lay person can identify a particular violation and gauge the prospects of redress.

    Of equal importance to the individual, is the manner in which complaints may be enforced before the respective Commissions. In essence both Conventions have only three initial requirements in this regard, namely; the existence of a genuine grievance, the completion of an eight page form and the possession of an appropriate postage stamp.

    Unlike the enforcement of Constitutional rights in the Federal District Courts, no complex and expensive pleadings have to be drafted by legal experts identifying each specific Federal enactment which confers jurisdiction on the District Court to hear the complaint in question; and no arcane arguments have to be presented to establish that the complaint raises a "constitutional issue" warranting the Court’s intervention. 56

    Further there are no filing fees to be paid and no chaotic, multi- layered, Kafkaesque procedural rules to be complied with. For example, though the Council of Europe has expanded from 10 to 42 countries with a combined population of 500 million people, (stretching from Bermuda, off the North Carolina coast across Europe to St. Petersburg), the European Court and the European Commission uniformly apply only one set of procedural rules each.

    The international Judges and Commissioners employed by both the European and Inter- American regional systems have special qualifications and experience in human rights issues.

    In essence the Commissions act as "user friendly" clearing houses for individual complaints under the respective Conventions. After an initial investigation of a complaint, an applicant may be advised to re- submit the complaint to the Commission after exhausting specific legal remedies in his or her domestic legal system. If no such effective remedies exist or have been exhausted, the Commission may require the country in question to answer the complaint and may authorize legal aid to the complainant. After an investigation into the merits of the alleged violation, the Commission will prepare a report, stating its findings on liability.

    If the Commission finds that no violation has occurred, the complainant will be politely informed of this fact. No draconian sanctions (as contained in Rule 11, of the Federal Rules of Civil Procedure) await the unsuccessful complainant for daring to accuse the country in question.

    If a violation or violations are found to exist, the Commission will make itself available to facilitate a friendly settlement between the parties. When no friendly settlement is possible, the matter may be referred to the Court for final adjudication and the possible issue of an enforceable order against the country in question. Under the European Convention, for example, the Committee of Ministers of the Council of Europe are responsible for supervising the enforcement of such orders. Similarly, enforcement of orders of the Inter- American Court is effected through the OAS.

    Orders may take the form of directing a member country to pay compensation and, (where incurred), legal fees; orders may in addition have the effect of requiring the country to act or desist from acting, or to repeal or provide legislation to remedy the violation. 57

    Over the last 40 years, the European Court and Commission have, for example, established a very substantial body of jurisprudence from reported case decisions which is utilized by the international community generally, as a valuable resource for the determination of human rights issues. 58

 The Potential For Human And Civil Rights In The USA

     From the above comparison with the less familiar workings of the European and Inter- American systems of human rights, it is clear that the present domestic Federal system employed by the USA to protect basic rights and freedoms fails to provide either a simple or inexpensive method of individual enforcement.

    Unlike the permissive approach to individual enforcement employed by the European and Inter- American systems, enforcement in the US is circumscribed by a code of complex and punitive Federal procedural rules. This restrictive approach not only impedes the ability of individuals to enforce their basic rights, but also, necessarily, affects the very efficacy of such rights.

    Moreover, due to the peculiar nature of the present US domestic system, it is not possible to ensure that the Federal Court's functions are free from direct or indirect interference from domestic political pressures.

    From an international point of view, the irresistible inference to be drawn from the present US system is that it is accepted and revered, primarily due to ingrained familiarity and not on account of any superior advantages which it affords the individual in the protection of basic rights and freedoms. Indeed, in this regard, the Federal system of enforcement falls short of acceptable standards of enforcement currently employed by major sectors of the international community.

    The international perspective, however, may ultimately provide the catalyst for change. The US does not exist in a vacuum. In the mid 1980’s, for example the Inter- American Commission of Human Rights adopted a new set of regulations allowing it to hear complaints against delinquent countries of the Organization of American States, which had failed to ratify the Inter- American Convention on Human Rights. 59

    This move by the Commission represented an attempt to extend the availability of its simplified complaint procedures to countries such as the US. To achieve this, the new regulations referred to the enforcement of an earlier, 1948 Declaration of the Rights and Duties of Man, which the US had signed after the Second World War. (The Declaration contains a list of 27 basic human rights)

    A subsequent advisory opinion of the Inter- American Court of Human Rights in July 1989 reinforced the Commission’s position on its new regulations by finding the 1948 Declaration to be binding on all member states of the Organization of   American States which signed it. 60

    As a result of  international pressure on the US, as a member of the Organization of American States, the State Department quietly implemented a compromise policy in terms of which it currently undertakes to respond to individual complaints to the Commission of alleged violations by the U.S. of the 1948 Declaration.

    Though the compromise notably limits the powers of the Commission to refer established violations of the Declaration to the Inter- American Court for a binding order against the US, it represents the first tangible achievements by the international community in its efforts to bring modern enforcement procedures within the purview of the US public.

    Whether this development will be permitted to continue to fruition in the US remains to be seen. Never the less, the gradual awareness by the US public of a simplified, international system, for protecting basic individual rights, may promote a long overdue debate on the effectiveness and desirability of the present domestic system of Federal enforcement. Perhaps then, the ghosts of the McCarthy era will finally be laid to rest.

                                                                                            Dated: August, 1998

FN 1 "Stercus cuique suum bene olet"; Essay on the Art of Conversation; citing Erasmus, "Adages".

FN 2 From the particular Roman Law concept of ius civile as being the special laws of the state or civitas;

"nam quod quisque populus ipse ius constituit, id ipsius proprium est vocaturque ius civile, quasi ius proprium civitatis"

Gauis, "Institutes", Book 1, sec. 1.

FN 3 Holman, "Treaty Law- Making" 1950

FN 4 "Human Rights Treaties and the Senate"; Natalie Hevener Kaufman, p. 15- 16.

FN 5 Holman took the view that; "if, in driving me from the airport [someone] had unfortunately run over a Negro child running out into the street in front of him, what would have been a local offence under a charge of negligence or involuntary manslaughter would, under the Genocide Convention, not be a local crime but an international crime and that [he] could be transported overseas for trial." Kaufman, op. cit. p. 18.

FN 6 Only recently ratified after the Rodney King video tapes went round the world. The US, however, refused to ratify the optional protocol to the Covenant recognizing the competence of the Human Rights Committee, established by the Covenant, to hear complaints from US individuals of US violations of the Covenant.

FN 7 This Convention of the Organization of American States, which was modeled on the earlier European Convention of Human Rights, provides individuals of signatory states the with right to enforce the obligations of the Convention through simplified procedures before an international human rights commission and court.

FN 8 "The Autobiography of Malcolm X", p 313

FN 9 ibid; p 419

FN 10 Cf. The 1997 South African Constitution

FN 11 Louis Henkin "The Age of Rights" p.109- 110

FN 12 ibid, p.110

FN 13 Dred Scott v Sanford 60 US (2 How.) 393 at 411. The protections afforded to the slave trade by Article 1, Section 9 (1), were entrenched in the Constitution by Article V, until 1808.

FN 14 Henkin, p. 113: Thus Congress undertakes not to interfere with existing freedoms of religion, the press, speech and assembly (Amendment 1); freedom to keep and bear arms (Amendment 11); freedom from unreasonable searches and seizures (Amendment 1V); other Amendments appear to restate freedoms from double jeopardy and self incrimination; freedom from deprivation of life, liberty and property without due process and from unjust compensation on expropriation ( Amendment V); freedom from arbitrary criminal proceedings (Amendment V1); the preservation of existing rights to a jury in certain civil cases and appeal under existing common law principles (Amendment V11); freedom from excessive bail and cruel and unusual punishments (Amendment V111)

FN 15 Henkin; ibid p. 113

FN 16 Dred Scott v Sanford supra; p. 411.

FN 17 Plessy v Ferguson 163 US Sup. Ct. 537 at 544

FN 18 Amendment X111, 1865, prohibiting slavery; Amendment X1V, 1868, right to citizenship and prohibition of States rights to abridge due process and equal protection of the law; Amendment XV, 1870, right to vote; Amendment X1X, 1920 Womens’ right to vote; Amendment XXV1, 1971 right to vote at 18. The rights contained in these Amendments are arguable the only main "civil" rights directly created and granted by the Constitution itself.

FN 19 Griswold v Connecticut, 381 US 479, 484. (1965)

FN 20 Naacp v Alabama, 357 US 449 (1961)

FN 21 Pierce v Society of Sisters, 268 US 510 (1925)

FN 22 Meyer v Nebraska, 262 US 390

FN 23 Martin v Struthers, 319 US 141. (1943)

FN 24 Wieman v Updegraaf, 344 US 183

FN 25 Mapp v Ohio, 367 US 643, 656; (1961) Griswold v Connecticut, supra, 485. (1965)

FN 26 "The association of people is not mentioned in the Constitution, nor the Bill of Rights. The right to educate a child in a school of the parents’ choice- whether public private or parochial- is also not mentioned. Nor is the right to study any particular subject or foreign language." Griswold v Connecticut, supra, 482.

FN 27 In 1896 no Constitution protection could be found against social discrimination (Plessy v Ferguson, supra); 58 years later, (in 1954) such a protection was discovered,(Brown v Board of Education of Topeka, 347 US 483)

FN 28 "The Age of Rights" p.124.

FN 29 Now divided into 90 Judicial Districts across the US.

FN 30 For example, in 1982, under the McLarran- Ferguson Act,(15 USC sec.1011) Congress stripped the District Courts of jurisdiction to hear cases involving the regulation of the Insurance Industry.

FN 31 See House of Representative Bills; HR 73 (Ashbrook) and H. R. 900 (Hyde)

FN 32 Laurence H. Tribe; "Constitutional Choices" p. 47,"Silencing the Oracle".

FN 33 HR 869 (Crane); HR 1079 (Hinson); HR 1189 )(Ashbrook)

FN 34 HR 72; HR 326; HR 408; HR 865; HR 989; HR 1335; HR 2397.

FN 35 HR 2365; HR 2791.

FN 36 HR114

FN 37 per The Judicial Code; 28 USC sec. 1331.

FN 38 Cf with the provisions of the 1997 South African Constitution.

FN 39 Thus on April 3rd. 1995, the Federal Court for the Southern District of New York, published the following chaotic directions to practitioners for discovery procedures, by reference to portions of Rule 26 which were not operative in the District;

"(a) Federal Rules of Civil Procedure 26(a)(1), 26 (d) (first sentence only), 30 (a)(2)(A), 31 (a)(2)(A) and 33 (a) (only in so far as it limits the number of interrogatories) are not operative in this District.

(b) Since Federal Rules of Civil Procedure 26(d) (first sentence only) is not operative in this District, Rule 26 (f) (in so far as it relates to disclosure under Rule 26 (a)(1), Rule 26 (g)(1) (in so far only as it relates to disclosures under Rule 26 (a)(1)), Rule 30 (a)(2)(C), Rule 31 (a)(2)(C), rule 33 (a) (third sentence only), Rule 34 (b) (the third sentence only) and rule 36 (a) (the third sentence only) are not applicable in this District."

Per Local Rule 49 of the Southern District Court; - If you blinked, you missed it!

FN 40 Laurence H. Tribe; "Constitutional Choices- Silencing the Oracle" p.47

FN 41 Arthur B. LaFrance; "Federal Rule 11 and Public Interest Litigation"; Valparaiso University Law Review, Vol. 22, (1987-88) p. 334.

FN 42 The Court’s inherent powers to sanction attorneys generally require threshold levels of bad faith; see, Chambers v, Nasco Inc. 501 US 32 at 44 (1991)

FN 43 Arthur B. LaFrance, op. cit. supra; p. 333.

FN 44 Report of the International Commission of Jurists, Geneva, 1992, page 213. The Report found that Rule 11 sanctions were considered against Plaintiffs in 86% of civil rights cases and imposed in 72% of such cases; Report page 212; citing Georgene Vairo, "Rule 11 Sanctions- Case Law Perspectives and Preventive Measures", Appendix G ,1990.

FN 45 The Council of Europe came into existence on May 5th. 1949 when the foreign ministers of Belgium, Denmark, France, the Irish Republic, Italy, Luxembourg, the Netherlands. Norway, Sweden and the United Kingdom of Great Britain, signed the Statute of the Council of Europe.

FN 46 Statute of the Council of Europe, Article 1 (a)- (b).

FN 47 The Convention came into force on September 3rd. 1953 after ratification by 10 states.

FN 48 Originally, only the contracting states to the Convention and the Commission had direct access to the Court per Article 48 of the European Convention. Though on occasions complaints have been made by one member state against another, the overwhelming number of cases which the Court reviews are individual complaints, referred to it by the Commission. Indeed the Commission will refer an individual complaint for adjudication even if no such rights of adjudication exist in the complainant’s country. Thus, though the internal security requirements of a member state denied a detained citizen access to its national courts, both the European Commission and the Court could conduct a full judicial hearing of his case; Lawless v, Ireland;1V Yearbook (1961) p. 438 (470-86)

In 1996, Protocol 11 to the European Convention replaced the functions of the Commission with a Committee and Chamber of Judges of the European Court of Human Rights. This amendment, effective as of November 1998, eliminates the two step procedure of referrals from the Commission to the Court and now provides the individual with the same direct right of access to the Court as signatory states. A Grand Chamber of the European Court has also been constituted under Protocol 11 to consider reviews from the Committee and Chamber of Judges in exceptional cases only.

FN 49 "The Dynamics of Development In The European Human Rights Convention System": C. Morrisson, Jr. (1981)

FN 50 " "European Human Rights Convention in Domestic Law"; A. Drzemczewski.

FN 51 In force on July 18th. 1978.

FN 52 The European Convention originally recognized the following rights; Right to life,(Art.2) Freedom from torture and degrading treatment,(Art 3) Freedom from servitude, (Art. 4) Right to liberty and security of person, (Art.. 5) Right to fair trial proceedings, ( Art. 6) Freedom from prosecution under retro- active laws, (Art. 7) Respect for private and home life, (Art.8) Freedom of thought, conscience and religion, ( Art. 9) Freedom of expression and to receive and impart information, (Art. 10) Right of association and assembly, (Art.11) Right to marry and found a family, (Art. 12).

The Inter- American Convention recognized the following rights in 1978, namely; right to juridical personality (art. 3), right to life (Art. 4), right to humane treatment (Art.5), freedom from slavery (Art. 6), right to personal liberty (Art. 7), right to a fair trial (Art. 8), freedom from retro- active laws (Art. 9), right to compensation (Art. 10), right to privacy (Art. 11), freedom of conscience and religion (Art. 12), Freedom of thought and expression (Art 13), right of reply Art. 14), right of assembly (Art.15), freedom of association (Art. 16), rights of the family (Art. 17), right to a name (Art. 18), rights of the child (Art.19), right to nationality (Art. 20), right to property (Art. 21), freedom of movement and residence (Art. 22) right to participate in government (Art. 23), right to equal protection (Art. 24), right to judicial protection (Art. 25).

FN 53 Certain rights recognized by both conventions are not absolute but are subject to qualification in certain circumstances. For example, four groups of rights have been identified in the European Convention; a) those which are absolute and without qualification, (contained in Articles 3, 4(1) and 7), b) those subject to qualification, (contained in Articles 2, 4(2) and 5), c) those which are broadly defined with qualifications (contained in Article 8), and e) those narrowly defined with qualifications, (contained in Articles 5(2) and 6). See, J.A. Andrews, Maryland Law Review, Vol. 43, p. 474 to 477. See also, for example, Article 6 of the Inter- American Convention ,which protects freedom from slavery, but exempts from the definition of "slavery", prison work for the public benefit, military service, work ordered during a disaster and work carried out pursuant to a normal civic obligation.

FN 54 Two of the more important protocols to the European Convention have been the abolition of the death penalty, (Protocol No. 6 of 1983) and the recognition of the legal equality of spouses during marriage and its dissolution, (Protocol No. 7, 1984). The Inter- American Convention has an additional protocol of 1988 recognizing important economic, social and cultural rights, including the rights to food, work, social security, health, education and a healthy environment. A subsequent protocol of 1990 similarly abolished the death penalty in the Americas.

FN 55 The US race laws created serious problems for the post Second World War German Courts which were prohibited by Occupation Laws, from determining cases on the basis of race, as was previously done in Nazi Germany. Thus in matrimonial cases of inter racial marriages involving, for example, US African- American soldiers, the courts refused to apply German International Law rules which referred questions of validity of marriage to the national laws of both parties, if one party came from a state in the US which had ante- miscegenation laws. Such laws were considered to be contrary to German public policy. See, Weyrauch, " Limits of Perception; Reader Response to ‘Hitler’s Justice’"; American Journal of Comparative Law, Vol.40, 1992, p. 245- 246; and fn. 19.

FN 56 Thus it is not sufficient for a US Plaintiff to generally allege that his or her Constitutional rights had been violated; this alone will not permit the Federal District Court to intervene; see, Pilkinton v. Pilkinton, 389 F 2nd. 32 at 33, (cert. denied).

FN 57 Thus, for example as a result of the decision in Malone v. UK, ECHR, Series A, Vol.82, August 2nd. 1984, the UK introduced legislation to protect the UK public from unlawful Government surveillance. Over the years the Commission and the Court have adjudicated on individual complaints under the Convention, dealing with such diverse matters as; access to domestic courts, length of legal proceedings, detention of vagrants, mental patients and terrorist suspects, corporal punishment in schools, domestic criminal proceedings, prisoners’ rights, telephone tapping and surveillance, criminalization of homosexual acts, social security disputes, status of illegitimate children, trade union activities, immigration and deportation issues, legal status of trans- sexuals, restrictions on media reporting, sex education in schools, property rights, parental access to children in public care, extradition issues, data protection and trans border flow of information.

FN 58 For example the UN Human Rights Committee will consider determinations of the European Commission and the Court in its deliberations; similarly, the Inter- American Court and Commission of Human Rights will also consider such determinations . The South African Constitutional Court, established under the new South African Constitution will also consider such decisions.

FN 59 Per Article 51, Regulations of the Inter- American Commission of Human Rights.

FN 60 Advisory Opinion OC-10-89, July 14th. 1989 on the Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the Inter- American Convention; Article 64 (1) permits the Court to give advisory opinions on the interpretation of the Inter- American Convention and "other treaties concerning the protection of human rights in the American states".