international principles for interpretation of international human rights instruments

8/3/2019 International Principles for Interpretation of International Human Rights Instruments

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PEMERKUATAN PEMAHAMAN HAK ASASI MANUSIA

UNTUK HAKIM SELURUH INDONESIA

Hotel Santika Makassar, 30 Mei 2 Juni 2011

MAKALAH

INTERNATIONAL PRINCIPLES FOR INTERPRETATION

OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

Oleh:Kjetil Fiskaa Alvsker


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September 2010

INTERNATIONAL PRINCIPLES FORINTERPRETATION OF INTERNATIONALHUMAN RIGHTS INSTRUMENTS

By Cand. Jur. Kjetil Fiskaa Alvsker

The Indonesia ProgrammeNorwegian Centre for Human Rights


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I. Introduction

The main human rights instruments Sources for interpretation Principles

Non-treaty obligations

Treaty-obligations

Clash between treaties and the principles ofcustomary law, jus cogens and erga omnes

Clash between treaties and national legislation

Other interpretation principles the state has to takeinto consideration while considering its obligations.


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II. The main human rights instrumentsThe international bill of rights

- UDHR. The Universal Declaration of Human Rights (1948)- ICCPR. International Covenant on Civil and Political Rights (1966)

- ICESCR. International Covenant on Economic Social and CulturalRights (1966)


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Other important human rights conventions ICERD. International Convention on the Elimination of all Forms

of Racial Discrimination

CEDAW. Convention on the Elimination of all forms ofDiscrimination Against Women (1981)

CRC. Convention on the Rights of the Child (1989)

CAT. Convention Against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment (1984)

International Convention for the Protection of All Persons fromEnforced Disappearance.

ILO Convention concerning indigenous and Tribal Peoples inIndependent Countries

Convention on the Protection of the Rights of All Migrant

Workers and Their Families


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III. Sources for interpretation Principles1. International Court of Justice Statute,

Article 381. The Court, whose function is to decide in accordance with internationallaw such disputes as are submitted to it, shall apply:

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 aslaw;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and theteachings of the most highly qualified publicists of the various nations,as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a

case ex aequo et bono, if the parties agree thereto.


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2. The Vienna Convention on the law of theTreaties (1969)Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to begiven 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 thetext, 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 theconclusion of the treaty and accepted by the other parties as an instrument related to thetreaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treatyor the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes theagreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.


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States which has signed and ratified VCEven though only 111 States have ratified the Vienna Convention, is it considered to be the mostimportant instrument which regulates International agreements. This is because the Conventionsmost important rules is codifications of already existing opinions about international law. Secondlymost of the Conventions central provisions are considered as Customary International Law.


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The written vis--vis unwritten

The Vienna Convention state in its preamble:

Having in mindthe principles of international law embodied inthe Charter of the United Nations, such as the principles of theequal rights and self-determination of peoples, of the sovereignequality and independence of all States, of non-interference inthe domestic affairs of States, of the prohibition of the threat oruse of force and of universal respect for, and observance of,human rights and fundamental freedoms for all,

Affirmingthat the rules of customary international law will

continue to govern questions not regulated by the provisions ofthe present Convention,


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3. Principles derived from case law?

Case law do not constitute accepted principles

But can after long and steady practice show sign of

international customary law


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IV. Non-treaty obligations1. Customary law

2. Jus cogens3. Erga Omnes

The most important with these principles is thatthey are binding for all states without exeptions.


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International Customary Law

ICJ Statute Article 38, paragraph 1, litra b.international custom, as evidence of a general practiceaccepted as law;

as evidence " It follows that customary international law can be discerned by a

"widespread repetition by States of similar international acts over time(State practice);


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Requirements in order to be accepted asCustomary International Law

Customary international law "... consists of rulesof law derived from;

consistent conduct of States

acting out of the belief that the law required them to act that way

Acts must occur out of sense of obligation (opinio juris)

Acts must be taken by a significant number of States and not berejected by a significant number of States

A marker of customary international law isconsensus among states exhibited both bywidespread conduct and a discernible sense ofobligation


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Examples of Int. Customary Law

non-refoulement (refuge law), Immunity of visiting foreign heads of state,

and the right to humanitarian intervention,

Other examples are those principles that falls underJus Cogens.


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Jus Cogens

Jus Cogens means a peremptory norm is afundamental principle of international law which isaccepted by the international community of states as

a norm from which no derogation is ever permitted.

Examples:

genocide maritime piracy

slaving in general

torture

and wars of aggression and territorial aggrandizement


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Vienna Convention article 53

Article 53Treaties conflicting with a peremptory norm of generalinternational law (jus cogens)

A treaty is void if, at the time of its conclusion, it conflicts with aperemptory norm of general international law. For the purposesof the present Convention, a peremptory norm of general

international law is a norm accepted and recognized by theinternational community of States as a whole as a norm fromwhich no derogation is permitted and which can be modifiedonly by a subsequent norm of general international law having

the same character.


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Examples where Jus Cogens has been stated

Execution of juvenile offenders

Michael Domingues v. United States

Torture

International Criminal Tribunal for the Former

Yugoslavia stated in Prosecutor v. Furundija


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The Erga Omnes principle

Erga omnes(in relation to everyone) is frequently used in legalterminology describing obligations or rights toward all.

For instance a property right is an erga omnesright, and

therefore enforceable against anybody infringing that right. Anerga omnesright (a statutory right) can here be distinguishedfrom a right based on contract, which is only enforceableagainst the contracting party.

In international law it has been used as a legal term describingobligations owed by states towards the community of states as

a whole.


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Examples of Erga Omnes Barcelona Traction Case

" an essential distinction should be drawn between the

obligations of a State towards the international community as awhole, and those arising vis--vis another State in the field ofdiplomatic protection. By their very nature, the former are theconcern of all States. In view of the importance of the rightsinvolved, all States can be held to have a legal interest in their

protection; they are obligations erga omnes.

Piracy in the bay of Aden outside Somalia:

All states have an erga omnes in complaining to the SomalianState that it should put a stop to the piracy practice in the openocean outside Somalia. The question is why it doesnt happen,considering the huge international problem this has become.


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V. Treaty-obligations What is a treaty?

Defined in the Vienna Convention Article 2, letter a:

(a) treaty means an international agreement concludedbetween States in written form and governed by internationallaw, whether embodied in a single instrument or in two or morerelated instruments and whatever its particular designation;

And when is it ratified?Defined in the Vienna Convention Article 2, letter b:

(b) ratification, acceptance, approval and accession meanin each case the international act so named whereby a Stateestablishes on the international plane its consent to be bound bya treaty;

Norway vs. Denmark


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How to Interpret treaties?- The ICJ-statute make it clear in article 38 paragraph

1, letter a, that:The Court, whose function is to decide in accordance withinternational law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing

rules expressly recognized by the contesting states;

- The Vienna Convention

Article 31General rule of interpretation

A treaty shall be interpreted in good faith in accordance with theordinary meaning to be given to the terms of the treaty in their context

and in the light of its object and purpose.


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Reservations What is a reservation?

Vienna Convention article 2, letter d, states:

(d) reservation means a unilateral statement, however phrased ornamed, made by a State, when signing, ratifying, accepting, approving oracceding to a treaty, whereby it purports to exclude or to modify the legaleffect of certain provisions of the treaty in their application to that State;

The ICJ made the following advisory opinion regardingreservations to the Genoside Convention: Question 1: Can the reserving State be regarded as being a party to the

Convention if the reservations is objected to by one or more of theparties to the Convention but not by others?

Question 2: If the answer to question 1 is in the affirmative, what is theeffect of the reservation as between the reserving State and (t)he partieswhich object to the reservation?


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The advisory opinion of ICJ

A State which has made a reservation which has been objectedto by one or more of the parties to the Convention but not byothers, can be regarded as being a party to the Convention ifthe reservation is compatible with the object and purpose of the

Convention; otherwise, that State cannot be regarded as beinga party to the Convention.

If a party to the Convention objects to a reservation which itconsiders to be incompatible with the object and purpose of the

Convention, it can in fact consider that the reserving State isnot a party to the Convention


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VI. Clash between treaties and the principles ofcustomary law, jus cogens and erga omnes

Vienna Convention, Article 43

Obligations imposed by international law independently of a treaty

The invalidity, termination or denunciation of a treaty, the withdrawal ofa party from it, or the suspension of its operation, as a result of theapplication of the present Convention or of the provisions of the treaty,shall not in any way impair the duty of any State to fulfil any obligation

embodied in the treaty to which it would be subject under internationallaw independently of the treaty.


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VII. Clash between treaties and

national legislation

Vienna Convention Article 27Internal law and observance of treaties

A party may not invoke the provisions of its internal law as

justification for its failure to perform a treaty

-


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VIII. Other interpretation principles the state has to

take into consideration while considering itsobligations.

Dynamic or evolutive interpretation

The principles of proportionality

The doctrine of margin of appreciation

Effective interpretation

The autonomous meaning of Convention terms


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Terima kasih!

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