El Sistema Internacional de Derechos Humanos

y los Subject of Lawfare

The International Human Rights System

and the Subject of Lawfare

Dra. Ivonne Téllez Patarroyo, Mgtr. (Autora Corresponsal)

Profesora titular PUCE

Dr. Sebastián Yerovi Proaño, Mgtr.

Investigador FLACSO

Artículo Original (Científico)

RFJ, No. 4, 2018, pp. 159-192, ISSN 2588-0837

RESUMEN: la legalización de los asuntos globales ha sido considerada

positiva en contraste con las condiciones que antecedieron a la segunda

Guerra Mundial. No más el interés particular puede imponerse frente al

interés común, no más la coerción y la represión, no más las políticas del

poder dominando el decision making. Se esperaría que el reconocimiento

de un sistema legal de los Derechos Humanos sirviera como garantía del

cumplimiento de los derechos en el interior de los Estados. Sin embargo,

el objetivo principal de este sistema legal en su generalidad, que es me-

jorar bienestar de la población, no ha sido alcanzado en su totalidad, ni

ha llegado a todos los países y todas las personas como se lo plantea. Este

artículo examina dos factores que podrían confirmar esta aseveración.

El primero, la posible ambigüedad del sistema a través de la debilidad de

los instrumentos y sus instituciones. El segundo, el concepto de legitimi-

dad asociado al lawfare, que permitiría el uso del Derecho Internacional

de los Derechos Humanos como estrategia de poder.

En este orden de ideas, este artículo se organiza de la siguiente manera:

Primero, realizamos una división por categorías que inicia en una revi-

sión general del sistema internacional de DDHH, las relaciones de acto-

res transnacionales, y presentamos algunos ejemplos de los principales

instrumentos y de sus instituciones asociadas. La segunda categoría,

discute el concepto de legitimidad asociado al concepto de lawfare, a

la luz del Derecho Internacional y de las principales teorías de Coo-

peración Internacional. Sobre estas nociones teóricas, realizamos un

análisis del caso de la tortura en Estados Unidos a partir del año 2000.

Finalmente, presentamos unas conclusiones y recomendaciones sobre

la estructura del sistema y su aplicación en el contexto internacional.

PALABRAS CLAVE: Derechos Humanos, cooperación internacional,

tortura, poder político, normativa.

ABSTRACT: the legalization of global affairs has been considered

positive, in contrast to the conditions preceding the Second World

War. No longer could individual interests be imposed against the

common interest, no longer was there coercion and repression, no

longer was decision making dominated by power politics. It would be

expected that the recognition of a Human Rights legal system would

serve as a guarantee for the fulfillment of the rights within States.

The main objective of this legal system in its generality, which is to

improve the well-being of the population, has not been reached in

its entirety, nor has it reached all countries and all people as it is

posed. Hence, this article examines two factors that could confirm

this assertion. The first is the system’s possible ambiguity through the

weakness of the instruments and their institutions. The second is the

concept of legitimacy associated with lawfare, which would allow the

use of International Human Rights Law as a power strategy.

In this order of ideas, this article is organized as follows: first, we

carry out a categorical division that begins with a general review

of the international human rights system and the relationships of

transnational actors, and we then present various examples of the

primary instruments and their associated institutions. The second

category discusses the concept of legitimacy associated with the

idea of lawfare, in light of International Law and the main theories

of International Cooperation. Based on these theoretical ideas, we

conducted an analysis of the cases of torture in the United States

since the year 2000. Finally, we present various conclusions and

recommendations regarding the system’s structure and application in

the international context.

KEY WORDS: Human Rights, international cooperation, torture,

political power, norm.

INTRODUCTION

The idea that Human Rights are not limited by borders, and that the

international community is obliged to protect and guarantee them,

is increasingly accepted. The end of the Cold War reaffirmed the

struggle begun in 1945, and today neither states nor individuals who

violate human rights are exempted from prosecution. This does not

mean that the world is free from acts of barbarism and that we do

not continue to witness systematic violations; nor, even, that we are

receiving optimal responses from the rights protection system through

existing institutions. However, the very existence of a system that

seeks to impose restrictions on the absolute freedom of governments

to systematically violate human rights represents a substantial step

towards their strengthening.

The Universal Declaration of Human Rights is the cornerstone of the

International Law of Human Rights (IL-HR). Adopted in 1948, it is the

document that inspires an entire set of treaties which has gradually come

to specialize in specific issues, and it continues to be the main reference

point in regards to the recognition of basic freedoms and human dignity.

The commitment acquired by the States with this declaration was

transferred to the field of law, materializing in the system of norms and

principles contained in treaties, related instruments and international

custom, as well as in domestic law. All this legal material reveals a

growing tendency towards the strengthening of systems for human

rights protection throughout the world. The Declaration, which is an

exposition of principles rather than a binding legal instrument, has

a social value that goes beyond the purely legalistic. Its principles

have been inserted into the ideas of international political actors,

influencing their actions and decisions (Risse and Sikkink, 2007).

Following its appearance, the development and construction of

universal human rights norms continued, accompanied by the

creation of more national and international institutions (Forsythe,

2006; OACDH, s/f).

In countries such as Yugoslavia and Rwanda, where international

criminal tribunals were created with the authorization of the UN

Security Council, close interaction was seen between national and

international actors in search of justice in the face of serious human

rights violations. These events brought international standards to cases

of war crimes, crimes against humanity and acts of genocide. Along

the same lines, under the principles of human rights, the International

Criminal Court was created (Forsythe, 2006; Hinton, 2011).

Undoubtedly, these facts envisage a growing commitment by states to

take measures against those responsible for massive violations of the

rights enshrined in international human rights treaties. The reason

for this has been the situations of repression and abuses committed

in a number of countries, where victims found neither responses nor

resources to obtain justice and truth within their countries.

IL-HR is delimited through the set of obligations that the States

commit to complying with. The obligations acquired by States are

divided into three categories: to respect, protect and promote human

rights. Respect implies that States must refrain from restricting rights

or interfering in their practice. Protection requires States to protect

individuals from violations of their rights, and promotion implies that

States adopt positive measures for the exercise of fundamental rights.

The adoption of commitments at the international level extends to the

domestic sphere, in which states must seek to align their systems in a

manner consistent with their international commitments.

1. UNIVERSAL DECLARATION OF HUMAN RIGHTS

The internationalization of human rights arises from the

establishment of the United Nations Organization and its Charter,

which marks a milestone in the development of modern international

law. Despite this, after the creation of the UN, conflicts and

human rights violations of all types have occurred. Given this

situation, Thomas Risse and Kathryn Sikkink clarify that “enduring

implementation of human rights norms requires political systems to

establish the rule of law” (Risse and Sikkink, 2007: 3). Indeed, from

a constructivist perspective, the identities created around what is

understood as human rights have been the focus of an important

international consensus. The global understanding of human rights

has linked the different local, national and global actors, who have

shared the principles for norms and regimes created in this branch of

the law. In fact, “even if human rights are thought to be inalienable,

a moral attribute of persons that public authorities should not

contravene, rights still have to be identified - that is, constructed - by

human beings, and codified in the legal system” (Donnelly, 1998 cited

in Forsythe, 2006: 3). It has thus been necessary for state officials,

social activists, and even victims, to advocate the creation of these

standards nationally and internationally. As mentioned above, the

Universal Declaration of Human Rights is the basic document giving

rise to the development of instruments that today make up the system.

There are nine instruments that constitute the fundamental structure

of the universal human rights system. Their common characteristic

is the call made to the States to respect fundamental rights and

incorporate the necessary protection measures into their domestic

systems. Additionally, these instruments have developed protocols

that add rights and obligations to those initially adopted. These are:

1. International Convention on the Elimination of All Forms of

Racial Discrimination CERD

2. International Covenant on Civil and Political Rights ICCPR

3. International Covenant on Economic, Social and Cultural Rights

ICESCR

4. International Convention on the Elimination of All Forms of

Discrimination Against Women CETFDCM

5. Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment UNCAT

6. The Convention on the Rights of the Child CRC

7. International Convention on the Protection of the Rights of All

Migrant Workers and their Families CTM

8. International Convention for the Protection of All Persons from

Enforced Disappearances ICPPED.

9. International Convention on the Rights of Persons with

Disabilities CRPD

It is easy to determine each instruments’ scope by its name. The ICCPR

constitutes the basis for the rights promulgated in liberal democracies.

It includes the right to free expression, freedom of worship, the right to

association, and prohibits arbitrary detention and investigation without

a cause, among others. The ICESCR contains a series of rights, mainly

economic in nature, which include the right to work, the right to a fair

wage, the right to vacations, the right to education, the right to health and

the right to a dignified retirement. The CETFDCM establishes gender

equality in all areas of action. The UNCAT prohibits torture and all other

treatments practiced, especially in times of conflict. The CRC requires

governments to guarantee children’s rights to not be separated from their

families, safeguarding their integrity against any abuse and guaranteeing

their right to free expression, among other rights. The CTM extends the

rights of the ICCPR to migrant workers. The International Convention

for the Protection of All Persons from Enforced Disappearance seeks to

protect persons who are detained and disappeared by governments in

the margins of legality. The CRPD categorically prohibits discrimination

against persons with disabilities and requires States to implement the

necessary measures in the workplace and civic spheres. The current

status of international treaty ratification shows a generally encouraging

picture regarding the international community’s acceptance of treaties

on human rights issues, as shown in the following table:

Table 1

Treaty Date of Entry into Force Ratification Status

CERD January 4, 1969 178

PIDCP March 26, 1976 169

ICESCR January 3, 1976 166

CETFDCM (Cedaw) September 3, 1981 189

UNCAT June 26, 1987 162

CDN September 2, 1990 196

CTM July 1, 2003 51

ICPPED December 23, 2010 58

CRPD May 3, 2008 175

Source: UN Treaty Collection

Elaboration: Tellez, I, Jerovi, S.

The International Convention on the Elimination of All Forms of

Racial Discrimination CERD entered into force on January 4, 1969. Its

current status is 178 State parties. The International Covenant on Civil

and Political Rights ICCPR entered into force on March 26, 1976, and

has 169 State parties. The International Covenant on Economic, Social

and Cultural Rights PIDESC entered into force on January 3, 1976 and

has 166 State parties. The International Convention on the Elimination

of All Forms of Discrimination against Women CETFDCM entered into

force on September 3, 1981 and has 189 State parties. The Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment UNCAT entered into force on June 26, 1987 and has

162 State parties. The Convention on the Rights of the Child (CRC)

came into force on September 2, 1990 and has 196 State parties. The

International Convention on the Protection of the Rights of All Migrant

Workers and their Families CTM entered into force on July 1, 2003 and

has 51 State parties. The International Convention for the Protection

of All Persons from Enforced Disappearance entered into force on

December 23, 2010 and has 58 State parties. Finally, the International

Convention on the Rights of Persons with Disabilities CRPD came into

force on May 3, 2008 and has 175 State parties. (UN Treaty collection)

In general terms, modern societies and developed States have

included the guarantee of human rights in their public policies.

They do not necessarily elevate them to the constitutional category,

but they do exist within public policy. The internationalization of

norms is thus not enough. Their internalization within countries is

also necessary. The process by which these international norms are

internalized and implemented at the domestic level is understood as

a “socialization process” (Risse and Sikkink, 2007). There are three

types of mechanisms to achieve this and make these standards lasting

and effective. Instrumental adaptation and strategic bargaining, both

internal and external, through which is negotiated internationally, and

internal opposition is appeased. In this stage, even a merely discursive

use can be provided in favor of human rights. In a second moment

there is processes of moral consciousness-raising, which emphasizes

argumentation, dialogue and persuasion. These communicative

behaviors focus on an exchange of information through verbal

utterances, or discourses, meaning the validity of human rights

norms to clarify the actions that have been taken (Risse and

Sikkink, 2007). Finally, practice of the domestic institutionalization

and habitualization according to that mandated by international

regulations begins at the domestic level, independent of individual

beliefs regarding its validity.

This phenomenon is related to the international regimes approach

by Kathryn Sikkink and Martha Finnemore regarding the “norm

cascades”. For them, international or regional standards establish

standards for the proper behavior of states (Finnemore and Sikkink,

1998). Thus, through the study of human rights principles, they

explain that the norms have a “life cycle” which emerge in a first

stage, are socialized in a second, and are internalized in a third. In the

second stage is where the cascade occurs, because the norms “fall” to

society in general or to the states. Whether due to social pressure, the

desire to improve internal or external legitimacy, or rulers’ desire to

boost their self-esteem, the “norm cascade” is facilitated (Finnemore

and Sikkink, 1998). Rules are subsequently internalized and applied,

guaranteeing the rights they defend.

An example of the “norm cascade,” developed by Kathryn Sikkink,

is the “cascade of justice”, which corresponds to “a rapid, and

dramatic shift in the legitimacy of the norms of individual criminal

accountability for human rights violations and an increase in actions

(like prosecutions) on behalf of those norms” (Sikkink, 2011: 7).

While this does not mean that true justice occurs, it ensures that

the norm has a new force and legitimacy, because of the fact that it

has become common to prosecute state officials involved in serious

human rights violations (Sikkink, 2011). The result of these actions,

and their effectiveness -which in many countries has been strongly

questioned- remains to be evaluated.

Despite the mutual construction of international commitments and

state obligations, there are still several limitations in the implementation

and enforcement of human rights norms. The norms system for States

with authoritarian regimes, poor States and developing States, does

represent certain impositions from the international level, which, added

to the obvious limitations of a social and economic nature, prevent the

guarantee of rights in an effective, indivisible and egalitarian manner.

a. Instruments

With regard to the possible ambiguity that accompanies these

instruments in their construction, we will analyze some articles that,

by way of example, will serve as an indicator of this presumption.

International Covenant on Civil and Political Rights

Article 19 of the ICCPR regarding the Right of Free Expression

establishes:

Article 19

1. No one can be harrassed for their opinions.

2. Everyone has the right to freedom of expression; this right includes

the freedom to seek, receive and disseminate information and ideas of

all kinds, regardless of borders, be it orally, in writing or in printed or

artistic form, or by any other procedure of the person’s choice.

3. The exercise of the right provided for in paragraph 2 of this article

entails special duties and responsibilities. Accordingly, it may be subject

to certain restrictions, which must, however, be expressly set forth by

law, and be necessary to:

a) Ensure respect for the rights and reputation of others;

b) The protection of national security, public order and public

health or morals.

States, in the domestic sphere, have found space to protect their

exceptions, principally in number 3. These restrictions can take

the form of fraudulent, defamatory, obscene and even dangerous

messages, according to the agent’s point of view, being constituted as

extremely broad frameworks giving the State complete freedom for

interpretation as it sees fit. Paragraph b is broad enough for States to

determine what is considered a threat to national security. In this way,

said right is limited to domestic consideration, is vague and imprecise,

and does not grant facilities to limit the space for interpretations.

International Covenant on Economic, Social and Cultural Rights

Along the same lines, we will review the Right to Work contained

in the ICESCR:

Article 6

1. The State Parties to this Covenant recognize the right to work, which

includes every person’s right to have the opportunity to earn a living

through freely chosen or accepted work, and shall take appropriate

measures to guarantee this right.

2. Among the measures to be adopted by each of the State Parties to

this Covenant in order to achieve full effectiveness of this right will

be technical and vocational guidance and training, the elaboration

of programs, standards and techniques aimed at achieving on-going

economic, social and cultural development and full and productive

occupation, in conditions guaranteeing the fundamental political and

economic freedoms of the human person.

Article 7

The State Parties to this Covenant recognize the right of all to the

enjoyment of just and satisfactory working conditions, which ensure in

particular:

a) A remuneration that provides all workers, at minimum:

i) An equal and equitable salary for work of equal value, without

distinctions of any kind; in particular, women should be guaranteed

working conditions not inferior to those of men, with equal pay for

equal work;

ii) Dignified iving conditions worthy for workers and their families

in accordance with the provisions of this Covenant;

b) Safety and hygiene at work;

c) Equal opportunity for all to be promoted, within their work, to the

category corresponding to them, with no considerations other than

time of service and ability;

d) Rest, enjoyment of free time, reasonable limitation of work hours

and periodic paid holidays, as well as the remuneration of holidays.

General questioning of these instruments includes, for example:

How is the determination of what is considered a fair wage made?

What is a decent life? What is reasonable in regards to what constitutes

a working day? The achievement of full employment, rather than a

human rights goal, is an economic development goal that guarantees

optimal social conditions; even so, unemployment is a modern

condition common to both developing and developed countries. In

another very important area, even when there are advances in terms

of labor rights and economic development in a country - have women

achieved the same benefits as men? Throughout the world, it is known

that women are historically behind in terms of job opportunities

and wages when compared to men. So, are we facing a systematic

violation of rights or it is needed an articulation with development

and mainstreaming of gender approach?

Article 2 of this convention establishes that:

1. Each of the State Parties to this Covenant will adopt measures,

both separately and through international assistance and cooperation,

in particular economic and technical, to the maximum extent of the

resources at its disposal, to progressively achieve, by all appropriate

means, including, in particular, the adoption of legislative measures,

the full effectiveness of the rights recognized herein.

2. The State Parties to this Covenant will guarantee the exercise of the

rights enunciated therein, without discrimination on grounds of race,

color, sex, language, religion, political or other opinion, national or

social origin, economic position, birth or any other social condition.

3. Developing countries, with due regard to human rights and their

national economy, will be able to determine to what extent they will

guarantee the economic rights recognized in this Covenant to persons

who are not their nationals.

In this sense, developing countries have the legal capacity to

postpone the offer of these guarantees of rights until they have

achieved more optimal economic conditions. What then is the margin

that makes it possible to clearly establish the optimum?

International Convention on the Rights of the Child

In the case of the CRC, Article 19 provides that “States adopt the

administrative, social, and educational legislative measures necessary to

protect the child against any form of physical or mental harm or abuse,

neglect or negligent treatment, mistreatment or exploitation, including

sexual abuse, while the child is in the custody of the parents, a guardian, or

any other person who has them under their care.”

Questions arise again regarding the crucial aspects defined by the

treaty itself, such as the qualification of what is necessary and what is

negligent. What is the scope? Does this impose a duty of due diligence

on States? What system of international responsibility is established?

The foregoing does not seek to underestimate the plural and diverse

nature of International Law. The law is based on the fundamental

principle of respect for state sovereignty, which, translated, means

that the expectations held regarding human rights treaties do not

exceed that legally possible. However, there are gaps due to a failure

to establish clear behavior guidelines that limit the legal valuation of

responsibility.

Under the Law of Treaties, these instruments allow reservations,

letters of understanding and unilateral declarations. This without

doubt limits and changes the nature of the obligations contained in

the treaty. For example, in relation to the CRC that in its Article 37 (c)

establishes:

“Every child deprived of liberty is treated with humanity and the respect

that the inherent dignity of the human person deserves, and in a way

that takes into account the needs of persons of that age. In particular,

every child deprived of liberty shall be separated from adults, unless it

is considered contrary to the child’s best interests, and shall have the

right to maintain contact with his/her family through correspondence

and visits, except in exceptional circumstances,”

In this regard, countries such as Great Britain, Switzerland, the

Netherlands and Australia have stated that this will be applied so long

as they find the possibilities to do so. Thus, the reservation presented

by Australia reads:

“Australia accepts the general principles of article 37. In relation to the

second sentence of paragraph (c), the obligation to separate children from

adults in prison is accepted only to the extent that such imprisonment is

considered by the responsible authorities to be feasible and consistent

with the obligation that children be able to maintain contact with their

families, having regard to the geography and demography of Australia.

Australia, therefore, ratifies the Convention to the extent that it is unable

to comply with the obligation imposed by article 37 (c).”

Similarly, with regard to countries governed by Islamic law, everything

established in the international sphere must be reviewed under this

filter, as denoted by the reservation presented by the Kingdom of Saudi

Arabia regarding the Convention, in relation to the prohibition of all

forms of racial discrimination: “The Government of Saudi Arabia declares

that it will implement the provisions [of the above Convention], providing

these do not conflict with the precepts of the Islamic Shariah.”

The following is an illustrative table of the reservations registered,

to date, for the aforementioned instruments:

Table 2

Tratado N° de

Reservas

Artículos Países

CERD 12

1, 2, 3, 4, 5,

6, 7, 15, 18,

20, 22

U, Fiji, Mónaco, Suiza, USA, Antigua y Bar-

buda, Australia, Bahamas, Barbados, Bél-

gica, Francia, Irlanda, Italia, Japón, Malta,

Nepal, Papua NG, Tailandia, Tonga, Afganis-

tán, Belorrusia, Bulgaria, Hungría, Mon-

golia, Polonia, Rumania, Rusia, Ucrania,

Vietnam, Yemen, Marruecos, Madagascar,

China, Cuba, Egipto, India, Irak, Kuwait,

Siria, Libia, Turquía, Tailandia, Bahrein

PIDESC 6 13, 7, 8,

10, 3

Argelia, Bangladesh, China

CETFDMC 11

2, 5, 7, 9,

11, 13, 14,

15, 16, 28,

Siria, Corea, Argelia, Bahamas, Bahrein,

Bangladesh, Egipto, Irak, Libia, Francia,

India, Malasia, Bélgica, Israel, Kuwait, Lu-

xemburgo, Nueva Zelanda, Jordania, Irlan-

da, Singapour, Suiza, Turquía, China, Cuba,

Egipto, El Salvador, Kuwait, Libia, Pakistán,

Rumania, Venezuela, Yemen. Vietnam

PICDP 6 26

Alemania, Turquía, Austria, Chile, Croacia,

El Salvador, Francia, Malta, Rusia, Sri Lanka,

Italia, Irlanda, España, Polonia, Noruega,

Holanda, Guyana, Trinidad y Tobago

UNCAT 14

1, 2, 3, 4,

5, 6, 14, 15,

16, 20, 21,

22, 28, 30

Botswana, Cuban Fiji, Indonesia, Luxem-

burgo, Holanda, Tailandia, USA, Cuba,

Alemania, Pakistán, Bangladesh, Qatar,

Afganistán, Eritrea, Israel, Siria, Vietnam,

Marruecos, Pakistán, Polonia, Panamá,

Arabia Saudí, Sudáfrica, Turquía, Emiratos

Árabes Unidos

CDN 6

1, 2, 3, 6,

7, 9, 10, 11,

13, 14, 15,

17, 18, 20,

21, 22, 24,

25, 26, 28,

29, 30, 32,

37, 38, 40,

Botswana, Malasia, Túnez, Alemania, Lu-

xemburgo, China, Oman, Polonia, Tailandia,

Corea, Croacia, Eslovenia, Austria, Siria, Ar-

gentina, Canadá, Samoa, Holanda, NZ, China,

Japón, Dinamarca, Francia, Túnez

CTM 9

94, 15, 18,

22, 27, 46,

47, 48, 92

Egipto, Colombia, Uganda, Chile, Nicaragua,

El Salvador, Algeria, Argentina, Marruecos

ICPPED 5 16, 17, 18,

24, 42

Alemania, Cuba, Marruecos, Ucrania,

Venezuela

CRPD 8

12, 15, 18,

21, 23, 25,

27, 29

Canadá, Singapour, Kuwai, Malasia, Mó-

naco, Israel, Polonia, Corea, Malta, Grecia,

Eslovaquia, UK, Chipre

Source: UN Treaty Collection

Elaboration: Tellez, I, Jerovi, S.

b. Institutions

The main institutions responsible for ensuring compliance with

human rights accompany the nine main treaties mentioned above.

Thus, each of the treaties and their additional protocols has its own

Human Rights Committee. In total there are ten committees (since

the Convention on Torture UNCAT has two, a committee and a

subcommittee) comprised of members who are nationals of the States

party to the treaties. They are elected by secret ballot and their main

function is to offer guidance for the interpretation of the treaties, and

review the periodic reports issued by the States. These committees

can obtain jurisdiction over a country only if that country ratifies the

additional protocol to the treaty in question. The committees have the

authority to make observations on the reports, and seven of them can

receive petitions from natural persons who consider that their rights

have been violated by the State under the terms of the treaty. The

committees do not judge these petitions, but they do require states to

respond to complaints and facilitate mediation. These are:

1. International Human Rights Committee (CCPR)

2. International Committee on Economic, Social and Cultural Rights

(CESCR)

3. Committee for the Elimination of Racial Discrimination (CERD)

4. Committee for the Elimination of Discrimination Against Women

(CEDAW)

5. Committee Against Torture (CAT)

6. Subcommittee for the Prevention of Torture (SPT)

7. Committee for the Rights of the Child (CRC)

8. Committee for the Rights of Migrants (CMW)

9. Committee for the Rights of Persons with Disabilities (CRPD)

10. Committee on Enforced Disappearances (CED)

These committees have been characterized as weak, since their

reports have a high non-binding content whose messages, which

they can hardly be ignored by the States, do not lead to concrete

action. They identify general situations, but their suggestions become

superfluous when establishing how problems should be addressed.

Messages such as “continue strenghtening legal and institutional

mechanisms aimed at combating discrimination”, “Ensure that adequate

resources are afforded to public health services”, “Examine the extent to

which human rights education is available in schools”, are only examples

of the fragility of the recommendations and denote the absence of

adequate follow-up mechanisms.

This is what causes States to pay little attention to the recommendations

on the matter issued by these entities. As of 2011, only 16% of States

had submitted their annual reports on time, 20% had never submitted

a report in regards to the Covenant of Economic, Social and Cultural

Rights, the Covenant on Civil and Political Rights, or the Convention

for the Elimination of Torture (Posner, 2014). It is evident that the

number of committees is limited to the scope they intend; in addition,

the jurisdiction overlaps between committees, their resources are

limited, and this causes their effectiveness to be limited. The reality

is that their achievements are directly dependent on the state’s will,

and their scope is limited to the cooperation received from the state.

The committees’ function is clearly conciliatory. They have no judicial

competence and thus their authority falls on the moral plane. Thus,

the protection system offered to victims of rights violations is likewise

not very effective. Through 2016, the Human Rights Committee

associated with the Covenant of Civil and Political Rights had received

2756 requests. A violation was determined for 975 of these cases and a

satisfactory response was obtained from the State for 67 of them.

Above these committees is the UN Human Rights Committee, which

has the authority to monitor compliance with all the aforementioned

instruments. Similarly, the UN has the Office of the High Commissioner

for Human Rights, which serves as the organization’s official voice on

the matter. The difference between this and other committees is that

this body does not respond to any special treaty; rather, its monitoring

is widespread, and its members are the States. This Committee succeeds

the UN Human Rights Commission, whose fundamental task was to

prepare the text of the Universal Declaration of Human Rights.

Compliance with the decisions of the Inter-American Court of

Human Rights is mandatory for member states. These decisions are

final and not subject to appeal. (Art. 67-28, American Convention on

Human Rights). For this reason, States must comply through clear and

effective internal regulations that benefit victims.

In most of the countries of the region, the National Constitutions and

their legislations establish the procedures to comply with international

regulations. The judgments and dispositions of the Court are usually

fulfilled, however, there have been cases in which the countries do

not apply the decisions directly. In countries like Mexico, there are

federal governments with their own jurisdictions, which usually

represent a threat to compliance. In Ecuador and Colombia, there are

cases where compliance has been limited or partial. The same has

happened with the United States that has not complied with some

decisions of the Court, either by opposition of its Supreme Court of

Justice or State Courts.

The Court informs the General Assembly of the OAS about

compliance with the judgments. In cases where there isn´t full

compliance with the verdicts, the coercive mechanisms are very

slight since the Court cannot expel those States that do not comply

with the resolutions. The Court and the Inter-American Commission

on Human Rights can observe and monitor cases of violations and

compliance with judgments, in order to generate international

pressure that will have a negative impact on the prestige of the country

in terms of compliance with international standards.

In relation to the United Nations Human Right´s Bodies, the

consequences of non-compliance w ith resolutions or recommendations

often has the same difficulties. Countries might not comply with the

UN recommendations on human rights and since there is no legal

obligation, only matters of international pressure and prestige remain

as moral sanctions. However, there is a fundamental difference with

cases that are raised to the UN Security Council, because this organ

is the only one within the United Nations system that can decided an

armed intervention. This is provided in Chapter VII of the Charter in

case of threats to peace.

2. THE LEGITIMACY ASSOCIATED WITH LAWFARE

There are many rights that lie outside of the treaties but which have

gained traction to the extent that the international dynamic has begun

to recognize their relevance; one example is the Right to Development,

which emerged within the United Nations. The Declaration on the

Right to Development of 1986 establishes in its Article 1: “The right to

development is an inalienable human right by virtue of which every human

being and all peoples are entitled to participate in an economic, social,

cultural and political development in which all human rights and fundamental

freedoms can be fully realized, to contribute to that development and to enjoy

it.” It is a human right and it has both an individual and a collective focus,

it links both the national and the international scopes, as it operates in

both dimensions, and makes the entire conglomerate responsible for

respecting, contributing to and enjoying it (OACDH, 2017). The growing

recognition of the Right to Development has led to multiple inclusions

within Hard Law, such as the Inter-American Convention on Human

Rights 1948 in its Article 26, the African Charter of Human Rights and

Persons of 1981 Article 22, the Arab Charter of Human Rights of 2004,

Article 37 and the ASEAN of 2012, among other instruments.

Soft Law has been an expeditious way to address many issues in the

area of Human Rights. It is a source of unconventional written law that

is characterized by being non-binding, but highly effective. Bearing in

mind that the international community is a system that contemplates

a multiplicity of relations in the political, economic, social, cultural

and legal spheres, the conglomerate of international norms is so

rich that it allows for the coexistence of different relationship forms

on the legal plane, and not all disputes are resolved before judicial

bodies. This implies recognizing the existence of a broad and diverse

norm that extends to human rights and that does not necessarily

have to be binding in order to fulfill its purposes. Rights such as

the Right to Development are contained in Soft Law instruments,

but their legal relevance is undebatable. It has been included in

the two major frameworks of international action, such as the

Millennium Development Goals and the 2030 Agenda for Sustainable

Development, which become guides for State’s local development

plans, which, ultimately, is public policy. The recognition of Soft Law

in the International Law of Human Rights allows for adaptation to the

changing and spontaneous dynamics of international interrelation. In

addition, it is necessary to remember that this does not oppose the

Hard Law, nor does it substitute, precede or complement it in terms

of Del Toro Huerta (2006). Soft law’s flexibility adapts the law to the

new mechanisms of normative formation, through the inclusion of

new actors that had been outside the legislative creation processes.

We consider that a law conceived from Soft Law can be transferred

to the field of that which binding; not as a condition necessary for its

fulfillment, but because of its increased observance.

The dynamics of international interaction have shown that compliance

with international obligations is not linked to the existence of sanctions.

Previously, it was shown that the possibility of presenting reservations

and unilateral declarations to treaties can considerably reduce the

influence of the international judicial system, and has a direct impact

on the system of international State responsibility; thus, despite the

existence of a binding system, given the great variety of legal possibilities

had by States, enforceability from law always be diminished.

The debate regarding State’s cooperative behavior, and their

compliance with international norms, has a long history and is

important to understand the attachment, or lack thereof, to human

rights in their strict compliance. In this regard, the neoliberal

institutionalist theory and the constructivist social approach allow

an effective approach to the events of this century, in which times of

change have can be seen. Neoliberalism has disputed with neorealism

the reading of cooperative relations in an anarchic system, in which

the hegemony of certain states has never been lacking. On the

other hand, the incorporation of broader theories, such as those of

international regimes and constructivists, have been able to respond

to the emergence of new actors, mechanisms and conditions in the

arena of International Cooperation (IC).

Neoliberalism is a response to the neorealist current that since the

sixties, with authors like Waltz and Carr, has explained international

relations and cooperation. It focuses on the structure of the anarchic

international system (understood as the absence of a global government)

and determines that IC is not possible and that this type of relationship,

or its institutions, will always be defined by power and by the individual

interests of the states. This current does not account for several ridges

in the international system and its change processes over the years, as

is the case of adherence to human rights standards.

Given this theoretical limitation, different approaches appear with other

proposals for the analysis of IC, showing that a single conception is not

sufficient to explain power in international politics. The same definition

of power in regards to issues such as the emerging social structures that

are formed at the global level, depending on the context and object of

study, is relative to the neo-realist perspective (Barnett, Michael and

Duvall, 2005). In neoliberalism, IC is considered as a constant interaction

between the states and other actors, which can regulate the obstacles

posed by the neorealists (Axelrod and Koehane, 1985). Indeed, for the

neoliberals, cooperation coexists with anarchy and this has been seen

in practice. Reward structures (game theory) systematically explain

the cooperation between actors that, based on their interests and logical

reasoning, choose to cooperate. The future’s shadow and the iteration of

interactions is also the feature of a system that will allow for cooperation.

Additionally, the number of actors interrelating provides incentives and

possibilities to IC (Axelrod and Koehane, 1985).

The presence and participation of an international leader is

considered by neoliberalism, accepting that this allows for the

emergence of IC and international regimes (Keohane, 1984). Transfer

this is how the current IC and Human Rights system was created

following the Second World War, led by the winning countries and

more specifically, by the United States. However, this same system,

following the Cold War and certain global economic and humanitarian

crises, has led to much more stable multilateral relations, where IC

has been maintained beyond the interests or principles of a single

country. Therefore, IC is possible without a hegemon to lead it and

international regimes to facilitate it (Keohane, 1984). For this, it

is key that there are significant common interests, which does not

necessarily mean that there is harmony among the actors that

cooperate. On the contrary, it must be considered that the actors reach

conformity through negotiation processes for problematic issues.

That is why “cooperation occurs when actors adjust their behaviors to

the current or anticipated preferences of others, through a process of

political coordination” (Keohane, 1984: 51).

In this way, international institutions explain the practices and

expectations of actors in IC relations. Cooperation or discord affects

the beliefs, rules and practices that form the framework for future

actions. Likewise, each action must be interpreted within a context

that has cognitive consequences and institutional residues (Keohane,

1984). In this way, international regimes, such as those of human rights,

make sense, since they make it possible to distinguish IC patterns.

International regimes are defined as a set of principles, norms, rules

and decision-making procedures, implicit or explicit, around which

the expectations of the actors converge, in a determined area of

international relations” (Krasner, 1983: 2). Within this definition, the

principles and norms have a broad scope, determined by the problem

areas faced by governments and which they consider to be so closely

linked that they must be attended to jointly. The problem areas

are those addressed within common negotiations by coordinated

bureaucracies, as opposed to problems that are faced separately and

without coordination (Keohane, 1984). These will depend on the

actors’ perception and their behavior rather than on the inherent

qualities of the topics, such that their limits will change over time.

With this reflection, Keohane introduces a relativism of problem

areas and the norms that will be created depending on perceptions

and behaviors. In addition, the author goes further, stating that the

regimes may affect the interests of the states, taking into account

the elasticity and subjectivity of the idea of self-interest. Likewise,

regimes can affect actors’ expectations and values. All this is possible

despite the selfish and individual interests of the states.

In the context of recent decades, with a growing interdependence of

international actors, international regimes have greater importance

and utility for governments in the search to solve common problems

without being governed by a hierarchical control system. Additionally,

regimes show patterns of cooperative actions beyond isolated events,

allowing for analysis of the continuity and changes in global policies.

Regarding the appearance of international institutions, such as those

of the UN and of Human Rights, several neo-realist authors observe

that, when there is a conflict between operations and national

interests, national interests will always prevail. However, from the

neoliberal viewpoint, the formation of these interests and the way in

which institutions affect the definition of states’ interests is key. The

rational calculations of selfish and individual interests are explained

by the iteration of international relations and the wide network of

problems and regimes in which states interact. In this regard, regimes

and institutions such as the UN and the mandates of their specialized

agencies hold an indisputable role in international politics.

For its part, constructivism considers the formation of interests

and identities; but beyond a rationalism centered on the anarchic

structure and based on self-interests, principally of the states. For

this current, institutions share a cognitive and intersubjective

conception of the process, in which the actors’ interests and identities

are endogenous to their interaction, and not given by an exogenous

structure. This is how international institutions can transform states’

identities and interests. Within this conception, the current system of

self-help centered on one’s own interests is not caused by an anarchic

structure, but rather is due to a process that led to that structure

(Wendt, 1992). Alexander Wendt argues that anarchy is what states

make of it, since interest in security is not a characteristic of anarchy.

Self-help and competitive power policies can be caused by processes

of interaction between states, where anarchy has only a permissive

role; that is, there can be different types of anarchies according to

the collective meanings that constitute the structures organizing our

actions (Wendt, 1992).

Behind the interests are identities that depend on a specific context.

From this perspective, institutions are a set of identities and interests,

with norms and rules that are normally codified formally. The main

virtue is that of being cognitive entities that do not exist separate from

the actors’ ideas regarding the functioning of the world. As collective

knowledge, they exist beyond the individuals comprising them at a

given moment, and are mutually constitutive. From this approach,

institutionalization is a process of internationalization of new

identities and interests, and socialization is a cognitive process. Both

processes are more than just types of behavior and their affectations.

Within this framework, states’ importance has diminished in the face

of new social movements, multinational corporations, transnational

networks and intergovernmental organizations. The identities and

interests of the states are dependent and can be transformed collectively,

within a context of anarchy, by many individual, domestic, systemic or

transnational factors (Wendt, 1992).

Constructivism complements the harshest and broadest theories

of neoliberalism, explaining phenomena such as the influence of

epistemic communities, transnational social groups and international

organizations. The latter bring together states and have led them to

international commitments and IC agreements, which for several

years have collaborated in the construction of their development

policies and in attention to important, cross-border problematic

issues. International IC can be explained, to a large extent, by its

regimes and institutions, which reflect and affect global policies and

the interests and identities of its actors. The efforts of institutionalist

neoliberals to explain the emergence and growth of IC have been

profound. There are other principles that have not been questioned,

and rather have been ratified, but with a different approach. Therefore,

it explains Staes’ behavior in situations of cooperation according to

the expectations and agreements of the international group.

Within this scope, it is not possible to establish that fulfillment of

International Law is due to the fear of punishment by the international

community, but rather, that there are other underlying factors that

make the law work. The traditional understanding of the concept of

legitimacy in social sciences suggests that a legitimate rule should

produce greater compliance on the part of the subjects because it would

create natural motivation. This is based on the fact that a rule that

enjoys legitimacy is presumed to reflect the common interests of the

States, and if these interests in turn represent the stable and secure

international society intended, then observance of the law would not be

in the norm, precisely, but in the value of reciprocity as a foundational

principle of International Law, which compels States to behave in the

way they expect their peers to behave. (Zemaneck, 1997)

If the previous reflection is positive, then the prohibition of torture

should not represent a threat to IL-HR, since it is a rule enjoying

universal acceptance.

We will examine the prohibition of torture in relation to the behavior

of the United States in order to analyze the relationship between

international law, politics, state behavior and legitimacy. Using torture

as a case study facilitates the reflection, given that its prohibition has a

legal basis in treaty law, in custom and in jus cogens with the effect that

no State has the option of conceiving said practice as legal.

The Universal Declaration of Human Rights in its Article 5 states

that: “No one shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment.” The International Covenant on

Civil and Political Rights likewise enshrines it, in the same terms.

The Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment UNCAT, of 1984, and the 1949

Geneva Conventions are the basic instruments for the prohibition of

torture. UNCAT defines it as:

“Any act by which a person is intentionally inflicted with severe pain

or suffering, whether physical or mental, in order to obtain from the

person or a third party information or a confession, punish the person

for an act he or she has committed, or which it is suspected that he or

she has committed, or to intimidate or coerce that person or others, or

for any reason based on any type of discrimination, when such pain

or suffering is inflicted by a public official or another person in the

exercise of public functions, at the instigation of that person, or with

their consent or acquiescence. Pain or suffering resulting only from

legitimate sanctions, or that are inherent or incidental to them, will not

be considered torture” (UNCAT, 1984)

The 1949 Geneva Convention in its common Article 3 states:

“In the event of an armed conflict that is not of an international nature

and that arises in the territory of one of the High Contracting Parties,

each of the Parties to the conflict shall have the obligation to apply, as

a minimum, the following provisions:

1) Persons not directly participating in hostilities, including members

of the armed forces who have laid down their arms and persons put out

of action due to illness, injury, detention or any other cause, shall be,

in all circumstances, treated with humanity, without any distinction

of an unfavorable nature based on race, color, religion or belief, sex,

birth or fortune or any other analogous criteria. In this regard, at any

time and place, as regards the abovementioned persons, the following

are prohibited:

a) attacks against life and bodily integrity, especially homicide in

all its forms, mutilation, cruel treatment, torture and torture;

b) the taking of hostages;

c) attempts against personal dignity, especially humiliating and

degrading treatment;

d) sentences handed down and executions without previous

judgment before a legitimately constituted court, with judicial guarantees

recognized as indispensable by civilized peoples.

2) The wounded and sick will be gathered and assisted.”

In the United States, the War Crimes Act of 1996 turns serious

violations of the Geneva Convention into federal crimes. However,

in US criminal law, the term Torture only applies to acts committed

abroad, while the majority of the behavior described by UNCAT is

included in Amendment 8 of the Constitution. That is to say that,

within US law, official acts enter the framework of the constitutional

prohibition of “cruel and unusual punishments” and the acts of

individuals are classified within the criminal law that describes

homicide and other legal types (Hurd, 2017 ).

With regard to the legitimacy they enjoy, both treaties are among

the most ratified: the Geneva Convention has 194 signatories and the

UNCAT 162. So, what does it mean for IDHR that a norm considered so

legitimate be violated? In 2005, Bush explicitly stated that the United

States does not torture. He added: “there’s an enemy that lurks and plots

and plans to hurt America again. And so, you bet we wiil aggressively

pursue them. But we will do so under the law” (Bush, 2005). This is a

perfect example of how States demonstrate alignment with the law and

how their behavior is framed within the limits of legality.

The Bush administration used the prohibition of torture as an

explanation of their behavior in order to justify their actions in light

of that prohibition. That is, the conduct of the country was anything

but that described by UNCAT. While experts can discuss the absence

of legal bases to justify it, they were significant in the politics of

legitimacy. The arguments were:

• Prisoners in US custody did not qualify for the anti-torture regime

because they belonged to “the war against terrorism” and therefore

they did not enjoy the protection of the Geneva Convention. The

conflict with Al Qaeda was outside the Convention’s perimeter

because it was neither state nor internal. The fighters that were

captured did not have a militia organization and therefore they

were not protected by the ius in bellum.

• Interrogation practices such as waterboarding were not framed

within the UNCAT classification. This was based on the fact that

the content of the definition of torture was limited to acts producing

pain equivalent to that which accompanies severe physical harm,

physical incapacity or even death. Additionally, the US established

that in order for torture to be configured, the agent must have the

intent to inflict harm or suffering, which is entirely different from

wishing to extract information.

• The US Constitution allows the president to exceed the limits

of international law in extreme conditions such as the war

against terrorism. Therefore, when the president exercises the

role of commander in chief of the armed forces, his actions are

discretionary, as well as that of his agents.

American practice challenges the traditional conviction that non-

compliance with the law is the product of a lack of legitimacy. This is

how the concern arises as to whether the fact that there is an extensive

and repeated practice of torture mechanisms, despite the existence

of a system of rules prohibiting it, is evidence that these rules are not

legitimate. But perhaps we are seeing another possible reason: that

rules such as those prohibiting torture gain power when considered

legitimate, even if that power does not translate into greater compliance.

This is how legitimacy allows law to be used as a useful resource to

define state practice, and this right is precisely the discursive material

under which States are protected and with which they obtain political

legitimacy. That is to say, the non-observance of a norm can coexist

with its legitimacy, without altering the concept of legitimacy.

In this sense, the relationship between International Law, IDHR, politics,

state behavior and legitimacy is reduced to a matter of interpretation of

the norms and the State’s ability to justify its behavior within the legal

parameters. However, this need for justification in turn reflects the

dependence of States, and maintains the prevailing Rule of Law.

Beyond the realistic theories of International Relations that places

International Law and ILHR as a system subordinated to power

and selfish interests or, like the liberal framework, which is more

optimistic and trusts that the international legal system in effect

imposes limits on the state’s behavior, it is evident that ILHR ends

up being a social practice that facilitates political justifications. It is

as empowering as it is restrictive, because when a State chooses to

be bound by an international instrument it does so voluntarily, and

likewise, when it is bound, it has a broad scope to interpret the norm

in such a way that it can advance achievement of its own objectives.

This could be proven through the relationship between the rules

prohibiting torture and US practices since the year 2000.

IL-HR is a permissive and at the same time limiting system, and

its relation to power is far more complex than what we assume on

a daily basis because governments frequently ignore, violate and

redefine their international obligations. Powerful states thus have

more opportunities to assume the costs of not complying with ILHR

than weak states, as demonstrated by the US invasion of Iraq in 2003.

Moreover, when strong states violate legal provisions, their actions

can even be taken as evidence of a change in the rules.

The international system goes through a series of post-globalization

changes that present economic, environmental, social and political

limits to the system. On this last level, Sanahuja states that we are

going through “problems of representativeness, legitimacy and

effectiveness of postwar multilateralism” (Sanahuja, 2017). An

“emerging normative challenge” and a response from the domestic

to the liberal international order are proposed; this could pose an

additional challenge to the difficulties already described, given that

the international human rights system fails to establish itself as a

strong and independent system and would end up, in this scenario,

entering the declining sphere of liberal multilateralism.

3. CONCLUSIONS

It is clear that human rights instruments are not determinative

when adjudicating responsibilities due to the lack of effectiveness of

the system. The Hard Law represented in the Law of Treaties allows

States to present the exceptions that they consider necessary to ratify

the treaties. This possibility modifies the relations of responsibility

in the treaty framework. Perhaps the necessary modification should

be directed to the fact that as a general rule human rights treaties do

not admit reservations, or, at least, they considerably limit them. This

could have repercussions on a system of responsibility for human

rights violations that is much more secure, legally speaking.

In the current system, a clear rule does not necessarily translate

into a clear obligation, and a clear obligation does not mean that there

is a consensus on the meaning of compliance with that obligation.

The principal treaties regarding human rights are ambiguous and

leave a very wide space for interpretations. The provisions contained

in human rights instruments must be sufficiently specific, clear, and

transparent, so as to reduce the space for interpretation by the State.

The IC system and the international regimens of human rights require

clearer rules and, more effective sanctions for all the actors involved.

In this regard, enforcement mechanisms for ILHR must be stricter,

have adequate follow-up mechanisms and greater financial resources.

The possibility that States do not accept the mechanisms for judicial

settlement established by the treaties reduces to a minimum their

level of commitment when facing a complaint for alleged human

rights violations. The commissions in charge of ensuring compliance

with the treaties must have judicial or pre-judicial authority -such as

the IACHR- that allows them to adjudicate responsibilities and go far

beyond the languor of the recommendations.

On the other hand, the inability of the system to guarantee all

rights in its entirety must be recognized. If we start from the idea

that ILHR’s main objective is the protection of people through the

guarantee of their freedoms, we must consider that, even with the

best efforts, achieving the realization of economic and social rights

is not an exclusive possibility for an efficient legal system. It is a

social and political responsibility that punishes the poorest countries,

in particular. The political and civil rights established in the

consciousness of the liberal democracies basically require democratic

governments willing to guarantee them. However, the challenges

represented by the fulfillment of economic and social rights are

dependent on other variables that escape the law.

This does not mean that the international and internal norms of

the countries can leave aside some or other rights. Just as the norms

of ILHR´s must be articulated in order to comply with its universal

and indivisible principles, institutions and monitoring mechanisms

must also do the same until they land in society, in communities and

in all people. The recognition must be profound with respect to those

countries and people where protection or well-being is not coming, and

the fulfillment and exercise of rights is a distant reality. Obviously, solid

normative bodies will not be enough, but integral domestic policies are

necessary, with effective and efficient institutions and governments.

The legal weaknesses should not be confused with political weaknesses.

There are flaws in the legal system, but the main responsibility falls

within the scope of state and international political will. Law as a medium

needs a political project to support it and IL-HR is a political project of

the international society. If IL-HR were above policy, it would be much

easier to distinguish between the legality and illegality of foreign policy

options. This makes it possible to understand the close relationship

between the power and policies of IL-HR. The law is not a system of

rules outside state power; instead, it is a social practice in which States

participate and use the law to work towards their own interests.

4. REFERENCES

Axelrod, Robert, and Robert O. Keohane (1985). Achieving cooperation

under anarchy: Strategies and institutions. World politics 38. 1

Barnett, Michael, and Raymond Duvall (2005). Power in International

Politics. International Organization 59(1)

Buergenthal, Thomas. (1997). The normative and institutional evolution

of international human rights. Human Rights Quarterly, 19(4)

Cassel, Douglass. (2001). Does international human rights law make a

difference? Chicago Journal of International Law, 2(1), 121-135. Available

at: https://search.proquest.com/docview/237215195?accountid=13357

Cielo Cristina. (2018). Corte IDH: Siete preguntas para entender

la audiencia del 2 de febrero. Instituto de la Democracia y Derechos

Humanos de Perú. Available at: http://idehpucp.pucp.edu.pe/notas-

informativas/indulto-ante-la-corte-idh-siete-preguntas-entender-la-

audiencia-del-2-febrero/

Del Toro Huerta, M.I. (2006). El fenómeno del Soft Law y las nuevas

perspectivas del Derecho Internacional. Anuario mexicano de Derecho

Internacional. Vol VI, 2006

Finnemore, M. (1996). Norms, culture, and world politics: insights

from sociology´s institutionalism. International Organization, 52

Finnemore, Martha and Kathryn Sikkink (1998). International Norm

Dynamics and Political Change. International Organization, 52

Forsythe, David (1984). Derechos humanos y política mundial. Buenos

Aires: Universitaria.

Forsythe, David (2006). Human rights in international relations.

Cambridge: Cambridge University Press.

George W. Bush, news conference, Panama City, November 7, 2005.

Huneeus, A. (2011). Courts Resisting Courts: Lessons from the

Inter-American Court’s Struggle to Enforce Human Rights. Cornell

International Law Journal. Vol 44, 2011.

Hurd, I. (2017). How to do things with International Law. Princeton.

Keohane, R.O. (1984). Cooperation and International Regimes. After

hegemony: Cooperation and discord in the world political economy.

Princeton University Press

Krasner, S. (1983). Structural causes and regime consequences: Regimes as

Intervening Variables. International Law and International Relations, 2007

Naciones Unidas (2012). Indicadores de Derechos Humanos: Guía

para la medición y la aplicación. Available at: http://www.ohchr.org/

Documents/Publications/Human_rights_indicators_sp.pdf

Posner, E. (2014). The twilight of human rights. Oxford University Press.

Risse, T., Roop, S. and Sikkink, K. (2007). The power of Human Rigths:

International Norms and Domestic Change. Cambridge University Press.

Nueva York – Estados Unidos.

Sanahuja, J.A. (2017). Crisis de globalización y hegemonía en cuestión:

un escenario de cambio estructural para Cuba y Latinoamérica y el Caribe.

Pensamiento propio, 22 (45).

Salgado, E. (2012). La probable inejecución de las sentencias de la Corte

Interamericana de Derechos Humanos. Cuestiones Constitucionales,

(26).

Scott, S. (2017). International Law in World Politics, an introduction.

Lynne Rienner publishers.

Sen, A. (2004). Elements of a theory of human rights. Philosophy &

Public Affairs, 32(4)

Sen, A. (2012). The Global Reach of Human Rights. Journal of Applied

Philosophy, 29.

Sikkink, K. (1998). Transitional Politics, International Relations

Theory, and Human Rights. Political Science and Politics, 31(3)

Sikkink, K. (2013). The Justice Cascade: Human Rights Prosecutions

and Change in World Politics, Recuperado de https://bc.sas.upenn.

edu/system/files/Sikkink_04.08.10.pdf

War Crimes Act (1996) Available at: https://www.dni.gov/index.

php/ic-legal-reference-book/war-crimes-act-of-1996

Wendt, A. (1992). Anarchy is what states make of it: the social

construction of power politics. International organization 46.2

Zemanek, K. (1997). The Legal Foundations of the International System,

General Course on Public International Law. Recueil des cours. (V) 266,

Legal Documents

Convención contra la Tortura y Otros Tratos o Penas Crueles, Inhumanos

o Degradantes, resolución 39/46, de 10 de diciembre de 1984. Available at:

https://www.ohchr.org/sp/professionalinterest/pages/cat.aspx

Convención de Ginebra de 1949, Comité Internacional de la Cruz

Roja, Available at: https://www.icrc.org/es/guerra-y-derecho/

tratados-de-dih-y-el-dih-consuetudinario/convenios-de-ginebra?gcli

d=CjwKCAjwoMPcBRAWEiwAiAqZh8XD4jycjMWIiGTn1f1zIECom

Y7hchV9t2oe2I_Bp84QT7ZyTXtMFhoClHsQAvD_BwE

Convención internacional para la protección de todas las personas

contra las desapariciones forzadas, Resolución 47/133, de 18

de diciembre de 1992. Available at: https://www.ohchr.org/sp/

professionalinterest/pages/conventionced.aspx

Convención Internacional sobre la Eliminación de todas las Formas de

Discriminación Racial, resolución 2106 A (XX), de 21 de diciembre de 1965.

Available at: https://www.ohchr.org/sp/professionalinterest/pages/cerd.aspx

Convención internacional sobre la Eliminación de todas las

formas de discriminación contra la mujer, Resolución 34/180, de

18 de diciembre de 1979. Available at: https://www.ohchr.org/sp/

professionalinterest/pages/cedaw.aspx

Convención Internacional sobre la Protección de los Derechos de

Todos los Trabajadores Migratorios y de sus Familiares, Resolución

45/158, de 18 de diciembre de 1990. Available at: https://www.ohchr.

org/sp/professionalinterest/pages/cmw.aspx

Convención Internacional sobre los Derechos de las Personas con

Discapacidad. [A/RES/61/106]. Available at: http://www.un.org/

spanish/disabilities/default.asp?id=617

Convención sobre los Derechos Del Niño. Resolución 44/25, de

20 de noviembre de 1989. Available at: https://www.ohchr.org/sp/

professionalinterest/pages/crc.aspx

Declaración sobre el Derecho al Desarrollo, Resolución 41/128,

de 4 de diciembre de 1986. Available at: https://www.ohchr.org/sp/

professionalinterest/pages/righttodevelopment.aspx

Declaración Universal de los Derechos Humanos, Resolución 217

A (III), de 10 de diciembre de 1948. Available at: https://www.ohchr.

org/EN/UDHR/Documents/UDHR_Translations/spn.pdf

Pacto Internacional de Derechos Civiles y Políticos, Resolución

2200 A (XXI), de 16 de diciembre de 1966. Available at: https://www.

ohchr.org/sp/professionalinterest/pages/ccpr.aspx

Pacto Internacional de Derechos Económicos, Sociales y Culturales.

Resolución 2200 A (XXI), de 16 de diciembre de 1966. Available at:

https://www.ohchr.org/sp/professionalinterest/pages/cescr.aspx

Linkography

United Nations Treaty Collection Available at: https://treaties.

un.org

United Nations Human Rights Office of the High

Comissioner. Available at: http://tbinternet.ohchr.org/_layouts/

TreatyBodyExternal/FollowUp.aspx?Treaty=CCPR&Lang=en

United Nations Human Rights Office of the High Comissioner.

Available at: http: //www.ohchr. org /EN / HRBodies / Pages/ Human

Rights Bodies .aspx

Recibido: 14 de septiembre de 2018

Aceptado: 5 de noviembre de 2018

Dra. Ivonne Téllez Patarroyo, Mgtr: Docente titular PUCE, LL.M en

Derecho Internacional University of Glasgow, Abogada de la Universi-

dad de San Buenaventura, Colombia. Profesora titular agregada de la Fa-

cultad de Comunicación de la PUCE y de la Facultad de Jurisprudencia

de la PUCE. Directora de la Carrera Multilingüe en Negocios y Relacio-

nes Internacionales de la PUCE. Directora del Centro de Investigación

en Derecho Internacional de la Facultad de Jurisprudencia PUCE

Correo electrónico: itellez783@puce.edu.ec

Dr. Sebastián Yerovi Proaño, Mgtr: Investigador FLACSO, Sociólogo

ecuatoriano y máster de relaciones internacionales con mención en

seguridad y derechos humanos por FLACSO – Ecuador. Ha investi-

gado y trabajado en proyectos para población con necesidad de pro-

tección internacional, en difusión y defensa de derechos humanos.

Especialista en cooperación y organismos internacionales, desarrollo

sostenible y asuntos culturales

Correo electrónico: socsebasyerovi@gmail.com