HUMR5140 Introduction to Human Rights Law

Autumn 2013

Lectures 3 and 4: International Bill of Rights

Scope of Application

Phase 1:Three phases

The development of human rights

Normativisation and realisation

Positivisation

Idealisation

Re-idealisation

ONGOING

ONGOING

ONGOING

Human Rights Law Enjoyment of Life –Rule of

Law

Fear and Want – Rule by Power

Phase 1:Idealisation

Phase 2:Positivisation

Phase 3:Realisation

Phase 2: Positivisation

The transformation of ideals into normative

standards

Morality to law

Soft law to hard law

International law to domestic law

Important step: UDHR 1948

…but was it the first step?

Early norms pertaining to conduct during armed conflicts

From ancient times to 1900

Code of Hammurabi,

1700 BC

Magna Carta, 1215

Peace of Augsburg, 1555Habeas Corpus

Act, 1679English Bill of Rights, 1688

US Declaration of Independence,

1776

French «Rights of Man», 1789

A necessary sidestep: Three «generations»

First generation:•Civil and political rights•Liberté

Second generation:•Economic, social and cultural rights•Egalité

Third generation:•Group and collective rights•Fraternité

Fourth generation?Early 20th Century

Bolshevism– Favoring equality and economic rights (egalitè)

– The Soviet was not just the Russian state, but the spokesperson for the world.

– Leon Trotsky: we will ”issue some revolutionary proclamations to the peoples [of the world] and then close up the joint.”

Wilsonianism– Favoring individual liberalism (libertè)– U.S. President Woodrow Wilson: the USA model is the ”flag not only of America but of humanity.” – ‘We are running a race with Bolshevism, and the world is on fire.’

Phase 2: Positivisation

L I B E R A L I S M vs. E Q U A L I T Y

Early 20th Century

Phase 2: Positivisation

Early 20th Century

Attempted positivisation with the League of Nations

• Minority rights

• Right to health

• Anti-slavery

• Women’s rights

• Labour rights

Phase 2: Positivisation

20th CenturyEconomic collapse Early 20th Century

Phase 2: Positivisation

20th CenturyDevastation of World War

II

Dresden, Germany

London, UK

Shanghai, China

Manilla, The Philippines

Phase 2: Positivisation

20th CenturyBrutality of the State

Nanking massacre

Japanese forces burying prisoners alive

German forces detain and kill undesirable citizens

German Program to kill handicapped

people because they were ‘costly’ to

Taxpayers – ‘life unworthy of living’

Phase 2: Positivisation

20th CenturyThe destructive power of

States demonstrated

USA Atomic Bombing ofHiroshima in 1945

First Soviet Test of an Atomic Bomb in 1949

First Chinese Test of an Atomic Bomb in 1964

Phase 2: Positivisation

20th Century

Modern positivisation

After World War IIThe UN Charter

San Francisco ConferenceDrafting of the UN Charter (1945)

1st Session of the UN General AssemblyCentral Hall in London (10 Jan 1946)

Phase 2:Modern

positivisation

After World War IIThe UN Charter

Determined … to reaffirm faith in fundamental human rights

The purposes of the United Nations are … To achieve international co-operation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;

Preamble

Art. 1

Arts. 55 and 56

The United Nations shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction

as to race, sex, language, or religion.

All Members pledge themselves to take joint and separate action in co-operation

with the Organization for the achievement of the purposes set forth in Article 55.

Phase 2:Modern

positivisation

After World War IIThe Universal Declaration of Human Rights (1948)

P.C. Chang from China, Eleanor Roosevelt from USA, John Humphrey from Canada (of UN Secretariat), Charles Malik from Lebanon,

Vladimir Koretsky from the USSR

Renè Cassin from France

The UN General Assembly unanimously proclaimed the

UDHR as a ”common standard of achievement”

Phase 2:Modern

positivisation

After World War IIThe Universal Declaration of Human Rights (1948)

Content?Both CivPol and EcoSocCul rights

Legal status?UNGA resolution, legally non-binding

International customary law

Art. 1: All human beings are born free and equal

Art. 2: The basic principle of

non-discrimination

Arts. 3-21: Civil and political

rights

Arts. 22-27: Economic, social and cultural rights

ICCPR ICESCR

The International Bill of RightsBridged the gap between CP and ESC rights

…and the gap re-emerged?

Phase 2:Modern

positivisation

• A “World Court for Human Rights”?• The recognition of grave human rights violations as a

justification for intervention• Individual international responsibility for violations of human

rights law• The responsibility of non-state actors• NCHR research project: The legitimacy of multi-level human

rights judiciary• The “legalisation” of international relations• The fragmentation of human rights tribunals• A focus on the “wrong” human rights…?

Other regional and international human rights instruments

The International Bill of Rights

Positivisation and realisation: Some

challenges and developments

After World War II

International human rights treaties

No formal hierarchy of normsA category of

fundamental rights?

Vienna Declaration 1993: «All human rights are universal, indivisible and interdependent and interrelated.»

Integrated interpretation

The human rights circle

http://www.humanrights.is/the-human-rights-project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/substantivehumanrights/

International human rights treaties

The typology of States’ obligations

Absolute vs. relative rights

Immediate realisationvs.

progressive realisation

Scope of application: On Friday

To respect, to protect and to fulfil (Eide)

The State should refrain from interfering with the

enjoyment of rights

The State should protect rights-holders against

interference of their rights by other actors

The State should take active steps towards the full

realisation of the rights

To avoid depriving, to protect from deprivation, to provide security (Shue)

Positive and negative obligations

The typology of States’ obligations

Obligation of result vs. obligation

of conduct

4 A 3 A

The typology of States’ obligations

International Committee on Economic, Social and

Cultural Rights

GC13 (1999)

GC19 (2008)

• Availability

• Accessibility

• Acceptability

• Adaptability

• Availability

• Adequacy

• Accessibility

Absolute vs. relative rights

Rights which must be respected at all times, and which cannot be restricted

Rights which may be limited

The prohibition against torture?The right to life?Double jeopardy?

= most rights

Derogable rights

Rights with inherent limitations

Rights with permissible limitations

Addressed in lecture # 4 on Friday

Let’s introduce jus cogens

Immediate realisationvs.

progressive realisation

Rights which shall be implemented in full immediately

after entry into force

Negative obligations

Positive obligations?

Rights whose implementation shall be improved over time

Positive obligations

Negative obligations?

ICCPR ICESCR

ProgressiveImmediate

Everyone has the right

States recognize the right

Scope of application of human

rights treaties

Material scope of

application

Temporal scope of

application

Territorial scope of

application

Personal scope of

application International human rights treaties

Personal scope of

application

To which subjects do

treaties apply?

Who have obligations?

Who have rights?

States Individuals CompaniesInternational organisations

Or duties?

The active dimension

The passivedimension

DenunciationContinuing situations

Temporal scope of

applicationObjective Subjective

Human rights treaties apply at all times… …even during

armed conflicts

Beginning End

A treaty must be in force for the

state in question

If a human rights treaty explicitly

allows denunciation, a State may do so

Silence on the issue prevents denunciation?

HRC GC 26 (5)ACHRCERDCATCRCCMWCRPD

North Korea denounced the ICCPR

in August 1997 – invalid

Territorial scope of

application

Territory and jurisdiction

Primarily territorial

Exception 1: Intraterritorial

non-application

Exception 2: Extraterritorial

application

Exercise of authority and

control

…over territory

…or over an individual

Problem: Scope of material application

Rebuttable presumption

Exceptional circumstances

Three categories of treaties

Jurisdictional clauses in respect of specific provisions

No jurisdictional clauses

General jurisdictional clauses

1

2

3

Case study # 1: Art. 2(1) ICCPR

• ”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.”

within its territory and subject to its jurisdictionDuring the negotiating history, clear

understanding that such wording would limit the obligations to within a Party's territory.

HRC, Lopez Burgos 1979: ”[I]t would be unconscionable to […] permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it

could not perpetrate on its own territory.

ICJ, Wall Decision (Adv. Opinion), 2004:The CCPR obligations extend to ”acts done by a State in the exercise of its jurisdiction outside of its own territory.”

CCPR General Comment 31 (2004), para. 10:Obligations towards “all persons who may be within their territory and to all persons subject to their jurisdiction”, i.e., “to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”

USA: Hence, based on the plain and ordinary meaning of its text, this Article establishes that States Parties are required to ensure the rights in the Covenant only to individuals who are both within the territory of a State Party and subject to that State Party’s sovereign authority.

HRC: The State party should review its approach and interpret the Covenant in good faith in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose.

Case study # 2: Art. 1 ECHR

• The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Preparatory works?

Object and purpose?

Al-Skeini case

Material scope of

application

General vs. specific treaties

Which rights are protected by a

treaty?

Civil and political rights

Economic, social and cultural rights

Challenge: Merits vs. admissibility

Treatiesapply

Material scope of

application

Temporal scope of

application

Spatial scope of

application

Personal scope of

application

Scope of application of human

rights treaties…unless there exist

circumstances that modify or exclude the application

Application of international humanitarian law

Other norm conflicts

Reservations Derogations Limitations

UN Charter Art. 103

Denunciations

Human rights treaties apply at all times… …even during

armed conflicts