HUMR5140 Introduction to Human Rights LawAutumn 2014

Lectures 1 and 2:

Human Rights as Law and

as International Law

First and second lecture

1. Introduction to HUMR5140

2. Human rights as «law»

3. Human rights as «international» law

What does it mean to discuss human rights as law as opposed to human rights as a value, as politics, etc.?

INTRODUCTION TO HUMR5140

HUMR5140 Syllabus

• Javaid Rehman, International Human Rights Law (Pearson, 2nd ed., 2010)

• Compendium• Cases, reports, other

official documents

HUMR5140 Course outline

1. Human rights as law (Larsen)2. Human rights in international law (Larsen)3. International bill of rights (Larsen)4. Scope of application (Larsen)5. Charter bodies (Larsen)6. Treaty bodies (Bailliet)7. The Americas and Africa (Bailliet)8. Europe (Larsen)9. IHRL and related legal regimes (Nicholson)10. Human rights in national legal systems (Helgesen)11. Exam preparation (Larsen)

HUMR5140 Student participation

• Primarily lectures– But room will be made for discussions– Some lectures will be 50-50– Q&A and spontaneous discussions are always

encouraged

• Study groups led by teaching assistant (Daniela Kistler)

• Student presentations• Exam preparation

HUMR5140 Examination

• Mid-term essay:– Assignment given 16 September– Submission deadline 26 September– Pass/fail with comments from teacher

• Take-home exam:– Assignment given 10 November– Submission deadline 19 November– Grade A-E (F)

HUMR5140 Learning outcome

• http://www.uio.no/studier/emner/jus/humanrights/HUMR5140/

HUMAN RIGHTS AS «LAW»

What is «law»?

A surprisingly difficult question

Hart: Unity of primary and secondary rules

Austin: The command of a sovereign, backed by the

threat of a sanction

Dworkin: An interpretive concept to achieve justice

A set of enforceable rules of conduct which set out guidelines

for the way individuals and society behave

What is «international law»?

A traditional problem: Is it «law»?

Hart: Unity of primary and secondary rules

Austin: The command of a sovereign, backed by the

threat of a sanction

Dworkin: An interpretive concept to achieve justice

Malcolm Shaw: Law is that element which binds the

members of the community together in their adherence to

recognised values and standards

Weak enforcement mechanisms

«International law is the body of rules which are legally binding on states in

their intercourse with each other»

Yes, but of a different

character than domestic law

What is «international law»?

A traditional problem: Is it «law»?

Hart: Unity of primary and secondary rules

Austin: The command of a sovereign, backed by the

threat of a sanction

Dworkin: An interpretive concept to achieve justice

Malcolm Shaw: Law is that element which binds the

members of the community together in their adherence to

recognised values and standards

Weak enforcement mechanisms

«International law is the body of rules which are legally binding on states in

their intercourse with each other»

Yes, but of a different

character than domestic law

What is «human rights law»?

What is «human rights law»?

A traditional problem: Is it «law»?

Hart: Unity of primary and secondary rules

Austin: The command of a sovereign, backed by the

threat of a sanction

Dworkin: An interpretive concept to achieve justice

Malcolm Shaw: Law is that element which binds the

members of the community together in their adherence to

recognised values and standards

Weak enforcement mechanisms

«International law is the body of rules which are legally binding on states in

their intercourse with each other»

Human rights law is a part of international law

Doesn’t fit

Stronger enforcement mechanisms

• More specific and detailedNATIONAL LEGAL

TRADITIONS

CIVIL LAW

COMMON LAW

• High degree of codification and systematisation

• Relies on broad, general principles

• Low(er) degree of codification

• Principles developed by courts, case-by-case

Hybrid systems

Other traditions

Suggested reading: Dominik Lengeling, «Common law and civil law – differences, reciprocal influences and points of intersection», available at:

http://www.consulegis.com/fileadmin/downloads/thomas_marx_08/DLengeling_paper.pdf

Structure of national laws – example

• Private law– Rules pertaining to the relationship between private

entities

• Public law– Rules pertaining to the relationship between a public and

a private entity, or between public entities

• Hierarchical structure– Norway: Constitution, legislation, regulations, royal

decrees…– Where does international law fit?– Where does human rights law fit?

“Rule of law”

One important concept…

No person is above the law

No one can be punished by the state except for a

breach of the law

No one can be convicted for breaching the law except in the

manner set forth by the law itself

“The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle

whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

…and some latin expressions

Lex superior

Lex posterior

Lex specialisConstitution

Legislation

Administrative regulations

Hierarchy

Higher

Lower

Norm of higher rank prevails over norm

of lower rank

A newer norm prevails over an

older norm

A specific norm prevails over a general norm

General norm

Specific norm

…and some latin expressions

Lex lata

Lex ferenda

The law as it is

The law as it should be

INTRODUCTION TO INTERNATIONAL LAW

International law

• Two categories:– Private international law (conflict of laws)– Public international law, a.k.a. general international

law, a.k.a. simply “international law”• Traditionally: International law regulates the

relationship between States• But individuals (and other non-state actors) can

to a certain extent be subjects (duty-bearers and rights-holders) under international law

• The “humanisation” and the “human-rightism” of international law

Some important features

• No “sovereign”• Relatively weak enforcement mechanisms• No formal hierarchy of norms (but consider

jus cogens)• The “fragmentation” of international law

Core matters in international law

• Sources• Subjects• The relationship with municipal law• International responsibility• Peaceful settlement of disputes• The regime applicable to common spaces• Diplomacy• Rules pertaining to armed conflicts

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

An international agreement concluded between States in written form and governed by international law ...

whatever its particular designation

‘International conventions’What is a convention?

1

Convention Covenant Treaty Charter

Multilateral

Bilateral Specific

General

Law-making

Contractual

Distinguished from legally non-binding documents

DeclarationsMemoranda of understandingGoalsStatement

‘International conventions’What is a convention?

Stage 1:

Preparations

Stage 2:

State consent

Stage 3:

Binding law

1

NegotiationsAgreementof parties

Text ofDocument

Signatures /Accessions

Ratifications

Entry intoForce

Object and purpose

‘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

In good faith

Object and purpose

In their context

Ordinary meaning • Objective

• Subjective• Teleological

Contact information:

Kjetil Mujezinović Larsen

Professor of Law, the Norwegian Centre for Human Rights

Phone: +47 22 84 20 83

E-mail: k.m.larsen@nchr.uio.no