humr5140 introduction to human rights law autumn 2011 · this lecture 1. human rights as part of...
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HUMR5140 Introduction to Human Rights Law
Autumn 2012
Lecture 2:
Human Rights in International Law:
History, Concepts and Trajectory
This lecture
1. Human rights as part of international law
2. Idealisation, positivisation, realisation: Human rights law as the positivisation of human rights ideals
3. Early fragmented «positivisation»
4. Early 20th Century
5. Post-WWII
6. Quo vadis?
Sources in international law
Statute of the ICJ, Art. 38:
(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
(b) international custom, as evidence of a general practice
accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
1
2
3
4
‘International conventions’ What is a convention?
1
An international agreement concluded
between States in written form and
governed by international law ...
whatever its particular designation
Multilateral
Bilateral Specific
General
Law-making
Contractual
Distinguished from legally
non-binding documents
‘International conventions’ What is a convention?
1
Multilateral
Bilateral Specific
General
Law-making
Human rights treaties
‘International conventions’ What is a convention?
Stage 1:
Preparations
Stage 2:
State consent
Stage 3:
Binding law
1
Negotiations Agreement
of parties
Text of
Document
Signatures /
Accessions Ratifications
Entry into
Force
‘International conventions’ 1
Human rights treaties
Are the Covenants
something more?
International
‘Bill of Rights’
Universal Declaration of
Human Rights
International Covenant on
Civil and Political Rights
International Covenant on
Economic, Social and
Cultural Rights
‘International conventions’ The core human rights treaties
• International Convention on the Elimination of All Forms of Racial Discrimination (1965/1969)
• International Covenant on Civil and Political Rights (1966/1976)
• International Covenant on Economic, Social and Cultural Rights (1966/1976)
• Convention on the Elimination of All Forms of Discrimination against Women (1979/1981)
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984/1987)
• Convention on the Rights of the Child (1989/1990)
• International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990/2003)
• Convention for the Rights of Persons with Disabilities (2006/2008)
• International Convention for the Protection of All Persons from Enforced Disappearance (2006/2010)
1
Regional human rights treaties
• European Convention on Human Rights
• Revised European Social Charter
• American Convention on Human Rights
• American Declaration of the Rights and
Duties of Man
• African Charter on Human and Peoples’
Rights
– Including Protocol on the Establishment of an
African Court on Human and Peoples' Rights
‘International conventions’ 1
Human rights treaties
Are human rights treaties
different from other treaties?
‘concern the
endowment of
individuals with rights’
‘special
characteristics’
‘International conventions’ 1
State
State
State
State
State
Individual
Horizontal Relationship
Vertical
Relationship
Other particular features
• Individual complaints procedures
• Limited place for reservations and denunciation
• Limited place for international customary law
• Human rights as jus cogens
• The relevance of general international law; the discussion of “self-contained regimes”
• The impact of human rights law on general international law
‘International conventions’ Method of interpreting treaties
1
Vienna Convention on the Law of Treaties
Art. 31. General rule of interpretation.
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its
preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the
conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and
accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of
its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties
regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the parties.
Art. 32. Supplementary means of interpretation.
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable
• Objective
• Subjective
• Teleological
– A number of cases involving the death
penalty in T&T had come before the
HRC.
– T&T withdrew from the CCPR/OP and
then re-acceded with a reservation that
it did not apply to death penalty cases.
– T&T warned that if HRC invalidated the
reservation, it would simply withdraw
altogether from the CCPR/OP.
– Majority opinion: consequences by state
do not effect HRC’s duty to uphold all
rights for everyone.
– Minority opinion: ”All or nothing is not a
reasonable maxim in human rights law”
Effectiveness is not consequentialism:
Rawle Kennedy v. Trinidad &
Tobago, 1999 HRC 845
‘International conventions’ Method of interpreting treaties
1
In good faith
Object and
purpose
In their
context
Ordinary
meaning • Objective
• Subjective
• Teleological
What about
human rights
treaties?
• Some particular features
• State sovereignty vs. rights of
individuals
• A strong principle of effectiveness
• Evolutive (dynamic) interpretation
• Greater place for jurisprudence
“The Convention is intended to
guarantee not rights that are
theoretical or illusory but rights
that are practical and effective”
The Convention is a living
instrument which must be
interpreted in light of present-day
conditions.
International law: Treaties which
limit the sovereignty of
Contracting States must be
interpreted restrictively
“While the Court is not formally bound to follow its
previous judgments, it is in the interests of legal
certainty, foreseeability and equality before the
law that it should not depart, without good reason,
from precedents laid down in previous cases”
‘International conventions’ Method of interpreting treaties
1
In good faith
Object and
purpose
In their
context
Ordinary
meaning • Objective
• Subjective
• Teleological
What about
human rights
treaties?
Golder v. UK (1975), para. 29:
“The Court is prepared to
consider … that it should be
guided by Articles 31 to 33 of the
Vienna Convention of 23 May
1969 on the Law of Treaties.”
Banković (2001), para. 55:
“The Court recalls that the
Convention must be interpreted in
the light of the rules set out in the
Vienna Convention 1969”
• Some particular features
• State sovereignty vs. rights of
individuals
• A strong principle of effectiveness
• Evolutive (dynamic) interpretation
• Greater place for jurisprudence
– A number of cases involving the death
penalty in T&T had come before the
HRC.
– T&T withdrew from the CCPR/OP and
then re-acceded with a reservation that
it did not apply to death penalty cases.
– T&T warned that if HRC invalidated the
reservation, it would simply withdraw
altogether from the CCPR/OP.
– Majority opinion: consequences by state
do not effect HRC’s duty to uphold all
rights for everyone.
– Minority opinion: ”All or nothing is not a
reasonable maxim in human rights law”
Effectiveness is not consequentialism:
Rawle Kennedy v. Trinidad &
Tobago, 1999 HRC 845
‘International custom’ Two elements
2
Statute of the ICJ, Art. 38:
(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
(b) international custom, as evidence of a general practice
accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
1
2
3
4
Opinio juris Usus
‘General principles’ 3
How is a ‘principle’
identified?
Purpose: To avoid non
liquet (legal vacuum)
Definition:
Unwritten legal norms of a
wide-ranging character…
…which are recognised in the
municipal laws of states…
…and which are transposable
at the international level
Very limited role in
human rights law
Example # 1
• ICCPR Art. 2.1:
• ”Each State Party to the present Covenant
undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national
or social origin, property, birth or other status.”
• Does the ICCPR apply to acts outside a
State’s own territory?
Example # 2
• ECHR, Article 8.1: Everyone has the right to
respect for ... his home and his
correspondence.
• Are the business premises of a company
protected?