HUMR5140 Introduction to Human Rights Law Autumn Lecture 4: The Scope of Application of Human Rights Treaties

Transcription

1 HUMR5140 Introduction to Human Rights Law Autumn 2012 Lecture 4: The Scope of Application of Human Rights Treaties

2 Four schools of human rights thinking Human rights exist independent of positivisation, but positivisation is to be supported Natural school: Given Deliberative school: Agreed upon Protest school: Fought for Discourse school: Talked about Human rights do not exist beyond human rights law Skeptical towards human rights law Human rights law is like any other law, and may be good or bad

3 The typology of States obligations To respect, to protect and to fulfil (Eide) To avoid depriving, to protect from deprivation, to provide security (Shue) The State should protect rights-holders against interference of their rights by other actors The State should refrain from interfering with the enjoyment of rights The State should take active steps towards the full realisation of the rights

4 International Committee on Economic, Social and Cultural Rights The typology of States obligations 4 A GC13 (1999) GC19 (2008) 3 A Availability Availability Accessibility Adequacy Acceptability Accessibility Adaptability

5 The right to life? Double jeopardy? Derogable rights The prohibition against torture? Rights which must be respected at all times, and which cannot be restricted Rights with inherent limitations Rights with permissible limitations Rights which may be limited Absolute vs. relative rights = most rights

6 Positive obligations Negative obligations? Negative obligations Positive obligations? Rights whose implementation shall be improved over time Rights which shall be implemented in full immediately after entry into force Immediate realisation vs. progressive realisation

7 Personal scope of Scope of of human rights treaties Material scope of Temporal scope of Territorial scope of

8 Personal scope of To which subjects do treaties apply? Who have obligations? Or duties? Who have rights? States Individuals Companies International organisations

9 If a human rights treaty explicitly allows denunciation, a State may do so Silence on the issue prevents denunciation? HRC GC 26 (5) Human rights treaties apply at all times even during armed conflicts Continuing situations Denunciation Beginning End Objective Temporal scope of Subjective A treaty must be in force for the state in question

10 1 General jurisdictional clauses 2 3 Jurisdictional clauses in respect of specific provisions No jurisdictional clauses Three categories of treaties Territorial scope of

11 Rebuttable presumption Exception 1: Intraterritorial non- Exercise of authority and control Exception 2: Extraterritorial over territory or over an individual Exceptional circumstances Primarily territorial Territory and jurisdiction Territorial scope of

12 Civil and political rights Economic, social and cultural rights Which rights are protected by a treaty? General vs. specific treaties Material scope of Challenge: Merits vs. admissibility

13 Application of international humanitarian law Treaties apply Other norm conflicts UN Charter Art. 103 unless there exist circumstances that modify or exclude the Reservations Derogations Limitations

14 Reservations, derogations and limitations in a nutshell Has the State not yet ratified the treaty in question? Are there valid reservations? Is there a valid derogation? NO HUMAN RIGHT EXISTS YES? THERE IS NO RIGHT YES? HUMAN RIGHT EXISTS, BUT DOES NOT APPLY Is there a valid restriction (limitation)? NO? HUMAN RIGHT EXISTS & APPLIES

15 Art. 2.1(d) VCLT: A unilateral statement made by a State whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their to that State. Some treaties explicitly allows for reservations Some treaties are silent Reservations Art VCLT: A State may make a reservation unless prohibited by the treaty Effectively: All human rights treaties allow for reservations Cannot destroy the nature of the right Heightened threshold for nonderogable rights Is acceptance required? «Late reservations»

16 Declarations? T.K. v. France, 1987 HRC 220 In light of article 2 of the Constitution of the French Republic, the French government declares that article 27 is not applicable so far as the Republic is concerned. Still a reservation Reservations

17 Three categories of treaties Treaties which explicitly permit derogations ECHR ACHR ICCPR Treaties which explicitly prohibit derogations CMW Derogations Treaties which are silent

18 Derogations CCPR, Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

19 Limitations Provided by law Legitimate aim and necessary to that aim Consistent with other rights Legality Legitimacy Proportionality Example: Article 12 CCPR 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country.