HUMR5140 Introduction to Human Rights LawAutumn 2014

Lectures 1 and 2:

Human Rights as Law and

as International Law

Before we start…

Question from Monday:

Why do we need human rights law?

Is human rights «law» necessarily a good thing, or can it present obstacles for the realization of human rights?

INTRODUCTION TO INTERNATIONAL LAW

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

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‘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.

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2

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Opinio jurisUsus

‘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

Pacta sunt servanda Good faithEstoppelRes judicata

Secondary sources4

• Court decisions• Literature• Other sources?

– Preparatory works– National laws– Acts by international organisations

• Primary source?

Enforcement of international law

• Diplomatic methods of dispute settlement• Courts and tribunals

– International Court of Justice– European Court of Justice– International Criminal Court– Ad hoc international criminal tribunals– WTO– Domestic courts

• Arbitration

International law in national law

• Monism vs. dualism• Incorporation, transformation, passive

transformation, reference• Obligation of states to implement treaties in

domestic law?

INTRODUCTION TO HUMAN RIGHTS LAW AS PART OF INTERNATIONAL LAW

Human rights law is a part of international law

…but with some special characteristics

• Sources• Methods• Implementation• Enforcement• …

Individuals have rights

Sources

…and obligations?

‘International conventions’What is a convention?

Multilateral

Bilateral Specific

General

Law-making

Contractual

Human rights treaties

‘International conventions’

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’

Human rights treaties

Are the Covenants something more?

Are human rights treaties different from other

treaties?

‘concern the endowment of

individuals with rights’

‘special characteristics’

‘International conventions’

State

State

State

State

State

Individual

Horizontal Relationship

Vertical Relationship

Regional conventions

ECHR

International conventions

ASIA

EUROPE

THE AMERICAS

AFRICA

THE ARAB LEAGUE

ESC OSCE EU CoE ICCPR

CED

CRCCEDAW

CRPDCMW

CERD

CAT

ICESCR

IACHR ADHR

ACHPR

ArabCHR

ASEAN efforts

‘International conventions’Method of interpreting treaties

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

“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

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

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?

Examples # 3 and 4

• ECHR, Article 12 and ICCPR, Article 23.2: The right to marry – do you have a right to divorce?

• ECHR, Article 2 and ICCPR, Article 6: The right to life – do you have a right to die?

• The limitation of dynamic interpretation: Cannot create new rights

Summary of some 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

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