'Nuff said

(Taking context-optional note of thought-provoking quotes)

That the Holy See is often treated as a state is deeply troubling, for several reasons. For one thing, the Catholic Church isn't truly a sovereign nation; to allow it to play one on the international stage perverts the meaning of statehood.

-- UCLA Law's Kal Raustiala and Lara Stemple, in a Los Angeles Times op-ed that assesses the Holy See (flag at left; prior posts) against standard measures of state sovereignty and finds it sorely lacking -- notwithstanding a Vatican official's claim that Pope Benedict XVI enjoys head-of-state immunity.

On July 30

On this day in ...
… 1947, Françoise Barré-Sinoussi (left) was born in Paris, France. (photo credit) In 1983, while researching retroviruses at Paris'Institut Pasteur , she discovered the HIV virus. Together with her boss, she was awarded the 2008 Nobel Prize in Physiology or Medicine for her discovery. She is currently the director of the Unité de Régulation des Infections Rétrovirales at the Institut. In 2009, Barré-Sinoussi wrote an open letter to Pope Benedict XVI to protes his statements that condoms are at best ineffective in combating HIV/AIDS.
… 1863, President Abraham Lincoln (right) issued the "eye-for-eye" order to shoot rebel prisoners under certain circumstances. (photo credit) Known as the Order of Retaliation, it stated:

It is … ordered that for every soldier of the United States killed in violation of the laws of war, a rebel soldier shall be executed; and for every one enslaved by the enemy or sold into slavery, a rebel soldier shall be placed at hard labor on the public works and continued at such labor until the other shall be released and receive the treatment due to a prisoner of war.

(Prior July 30 posts are here and here.)

On January 10

On this day in ...

... 1984 (25 years ago today), full diplomatic relations were re-established between the United States and the Holy See. Relations between America and the Vatican had broken in 1867. Representing the United States at the Vatican since last February (but expected to depart with the Bush Administration) is Ambassador Mary Ann Glendon (above at far right, with Pope Benedict XVI), whose work as a Harvard law professor included authorship of A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001).

... 1991, Javier Pérez de Cuéllar (left), who'd been U.N. Secretary-General since 1982, prepared to head to Baghdad, the BBC reported, "in a final diplomatic effort to avoid war against Iraq," by "rais[ing] the possibility of sending a UN peacekeeping force to Kuwait to oversee the peaceful withdrawal of Iraqi troops. " His efforts would fail, and military intervention, dubbed "Operation Desert Storm," would begin on January 16.

Pope not gay over French proposal

Europe's witness these days to a fascinating diplomatic dance:
Pope Benedict XVI has rejected 2 consecutive nominees to be France's Ambassador to the Holy See. It's a most delicate matter -- the Paris daily Le Figaro will say only that the 2d nominee, long-time French diplomat Jean-Loup Kuhn-Delforge, was rebuffed "by reason of his 'personal profile.'"
What gives?
France's having trouble finding a suitable candidate who is neither divorced nor gay.
The former adjective describes the 1st nominee, a writer who is married to his 3d wife. The latter describes Kuhn-Delforge, who lives openly with his male partner.
In the late '80s a divorcé represented Spain at the Vatican, but apparently neither Pope John Paul II nor Spain itself knew the ambassador's status. In any event one suspects this Pope wouldn't listen to claims of precedent.
Listened to or not, France does seem to be signaling its view of 21st Century values -- a most interesting message from a country where the President just married for the 3d time; civil unions of same- as well as opposite-sex couples have been recognized for years; and more than 80 percent of the population "identify themselves as Catholic."

On July 29

On this day in ...

... 1968 (40 years ago today), media coverage focused on a new encyclical entitled Humanae Vitae, in which Pope Paul VI (right) rebuffed the recommendation of a majority of a Pontifical Commission, and thus "confirmed a ban on the use of contraceptives by Roman Catholics." Among the pope's "the most controversial" acts, it was reaffirmed in 1995 by a successor, John Paul II. This year's anniversary has stirred the issue again: among those commenting are "[m]ore than 50 dissident Catholic groups from around the world," which last week published, in an Italian newspaper, "an open letter asking Pope Benedict XVI to lift the church's ban on birth control." This group focused on HIV/AIDS as a reason for change; other commentators cited opposition among Catholic laypeople, sometimes by "majorities exceeding 80 percent," as well as links between overpopulation and global warming. Meanwhile, in the Philippines, Manila's archbishop supported the ban with this argument:

'If there is discipline in the marital bed, then there is discipline in the streets, there is discipline in schools, there is discipline in the government.'

... 1993 (15 years ago today), an Israeli appellate court overturned the conviction of John Demjanjuk. The court found insufficient evidence to support charges that Demjanjuk had committed war crimes as "Ivan the Terrible, a gas chamber operative at the death camp Treblinka, in Poland." Demjanjuk had been extradited to Israel by the United States. On his return, the United States undertook to deport him; however, no country has agreed to accept the Ukraine-born man, who'd immigrated to the United States in 1951. Earlier this month, a Spanish court announced that it would proceed with a war crimes action against Demjanjuk and 3 others. Initiator of the suit -- brought pursuant to the principle of universal jurisdiction -- was the NGO Equipo Nizkor. (credit for 1987 photo of Demjanjuk on trial in Israel)

"Human rights isn't a zero-sum game"

IntLawGrrls readers may recall last Saturday's post regarding the U.N. General Assembly speech in which Pope Benedict XVI endorsed the promotion of human rights. A key element of was the pope's support for the view that civil and political rights are indivisible from economic, social, and cultural rights.
Cross-posting of the report at Slate's Convictions drew response from my fellow blogger Eric Posner, a University of Chicago law professor whose scholarship often concerns international law. His post, entitled China, Human Rights Champion?, began:

If Diane and the pope are right that we shouldn't privilege civil and political rights over social, economic, and cultural rights, and maybe they are right, then we should give credit where credit is due, and crown China the human rights champion of the last thirty years.

It concluded:

We needn't declare a winner; but out of respect for China's achievement, we should at least let it relay its Olympic torch in peace.

FWIW, here, in full, is how I replied:

Human rights isn't a zero-sum game

Eric, nothing that the pope said Friday favored one set of rights over another. Indeed, as my post stated, his speech to the U.N. General Assembly included "a tacit reprimand to those who would privilege civil and political rights over economic, social, and cultural rights -- or vice versa." (emphasis added) The point I'd intended to underscore was that the pope had reaffirmed the indivisibility of both sets of rights, the civil/political, on the one hand, and the economic/social/cultural, on the other. Indivisibility was inherent in the 1948 Universal Declaration of Human Rights, but frayed when Cold War geopolitics pushed the U.N. Human Rights Commission to separate the 2 sets as it began the process of drafting treaties designed to make binding all those rights that states had endorsed in the nonbinding Declaration. That separation, which seemed essential at the height of the Cold War, may be less so today: 160 countries are full members of the 1977 International Covenant on Civil and Political Rights, while 157 countries are full members of the 1977 International Covenant on Economic, Social, and Cultural Rights. That means that 3/4 of all the United Nations' member states are firmly in each Convenant's camp. Vestiges of Cold War concerns may be found, however, in the fact that the United States is not party to the latter Covenant and China is not party to the former.
As for China: application of the concept of indivisibility means that China is no more a "champion" of human rights than any other state. The role that the Chinese state has played in alleviating poverty deserves attention. Indeed, how each country addresses the basic needs of persons within its jurisdiction deserves note, as I've argued with regard to the United States in a forthcoming essay just posted at SSRN. But the costs of such programs also must be assessed, respecting matters as wide-ranging as the health problems and the repressions of civil liberties that may result from economic development at all costs. (Here, too, insert a "vice versa.")
On 2 points, it seems, we agree. 1st: Athletes honored to carry the torch a bit of the way toward the 2008 Olympics should not have to fear anger and assault as they run through the streets of their home country. 2d: Comprehensive, critical comparison of the nature and extent of states' programs to protect human rights rarely will yield a clear "winner."

Papal Benediction for International Law

An encomium to international law is headline news this morning. Not, alas, because of its content, but rather because of its source: Pope Benedict XVI. In his address to the General Assembly of the United Nations yesterday, the pope warned against an international order dependent solely on the whims of sovereign countries. "Discernment, that is, the capacity to distinguish good from evil," he said,

shows that entrusting exclusively to individual States, with their laws and institutions, the final responsibility to meet the aspirations of persons, communities and entire peoples, can sometimes have consequences that exclude the possibility of a social order respectful of the dignity and the rights of the person.

Benedict (right) looked, rather, to transnational and international institutions as vehicles to promote human dignity, using a "common language" and not "a relativistic conception." For the pope religion is one such transnational vehicle, of course; "relativist" is, after all, an antonym of "catholic," itself a a synonym of "universal." Yet he devoted much of his address to a vehicle typically expressed on the temporal plane: human rights, the promotion of which Benedict called

the most effective strategy for eliminating inequalities between countries and social groups, and for increasing security.

Even as he found traces of human rights in the centuries-old writings of Catholic scholars like Augustine and de Vitoria, the pope found its contemporary source in a 20th C. secular instrument, the 1948 Universal Declaration of Human Rights. In tacit reprimand of those who would privilege civil and political rights over economic, social, and cultural rights -- or vice versa -- Benedict reaffirmed the 60-year-old decision to intertwine those rights:

[E]fforts need to be redoubled in the face of pressure to reinterpret the foundations of the Declaration and to compromise its inner unity so as to facilitate a move away from the protection of human dignity towards the satisfaction of simple interests, often particular interests. The Declaration was adopted as a 'common standard of achievement' (Preamble) and cannot be applied piecemeal, according to trends or
selective choices that merely run the risk of contradicting the unity of the human person and thus the indivisibility of human rights.

Perhaps most notable was the pope's embrace of "responsibility to protect," the international law concept that each nation-state has the primary duty to protect persons within its jurisdiction and control, but if it does not do so, the international community as a whole has a duty to protect those persons against, as the pope put it, "grave and sustained violations of human rights, as well as from the consequences of humanitarian crises, whether natural or man-made." Use of means permitted by the the law of the U.N. Charter is not "an unwarranted imposition or a limitation of sovereignty," the pope maintained, for "it is indifference or failure to intervene that do the real damage."
Some approach the "responsibility to protect" with skepticism, wondering whether the energy spent on pushing a new concept with a catchy acronym -- R2P -- might be better spent on working to strengthen the U.N. Security Council and other pre-existing mechanism that in the end would have to effect any such intervention. I'm among those skeptics, so too José Alvarez, Columbia law professor and immediate past president of the American Society of International Law. Despite disagreement on means, however, we all agree on the ultimate goal, greater enforcement of human rights. And so yesterday's strong statement in support of that objective, from one of the globe's premier norm-shapers, is welcome.


(cross-posted at Slate's Convictions blog)