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.

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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?

Example # 3

• The principle of non-refoulement

• What about the extradition of AIDS patients

to a State without adequate medical

services?