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
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