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

Similar documents
INTERNATIONAL HUMAN RIGHTS LAW: STANDARDS. R. Herlambang Perdana Wiratraman Faculty of Law, Universitas Airlangga November 2014

Introduction to Public International Law. October 2010

CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency*

Protecting Rights in Conflict Situations and Fragile States 28 February 2005, Overseas Development Institute, London Christine Chinkin Speaker Notes

International Covenant on Economic, Social and Cultural Rights

Lecture One: History of Human Rights. Assignments:

North Atlantic Treaty

6. Limitations The public international law framework LIMITATIONS. Chapter 6. Outline 6. Limitations... 1

IMPLEMENTATION GUIDELINES FOR THE PRINCIPLES ON FREEDOM OF EXPRESSION AND PRIVACY

Strasbourg, 09/09/04 CAHDI (2004) 24 Anglais seulement COMMITTEE OF LEGAL ADVISERS ON PUBLIC INTERNATIONAL LAW (CAHDI)

FREE, TRANSBOUNDARY FLOW OF INFORMATION ON THE INTERNET

States of Emergency and Derogation of Human Rights: Erosion of the Rule of Law? Dr. Jan-Peter Loof Annual Research Day SHRR 09/11/2016

1 Adopted by the Committee at its 1510th meeting (fifty-seventh session) on 12 July 1996.

Annex to Resolution 2625 (XXV) adopted by the General Assembly on 24 October 1970

The Covenant on civil and political rights

Resolution adopted by the General Assembly. [without reference to a Main Committee (A/65/L.79 and Add.1)]

Submitted July Introduction

International Standards of Elections

Reference: C.N TREATIES-IV.4 (Depositary Notification) INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS NEW YORK, 16 DECEMBER 1966

GLOBAL PACT FOR THE ENVIRONMENT

GENERAL COMMENT ADOPTED BY THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 40, PARAGRAPH 4, OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS

THE RELATIONSHIP BETWEEN IHL AND OTHER BRANCHES OF PUBLIC INTERNATIONAL LAW

laying down detailed arrangements for the exercise of the right to vote and stand

United Nations Charter Preamble

Adopted on 24 October 1970 ANNEX... 3 PREAMBLE... 3 GENERAL PART UNOFFICIAL TEXT CENTRE FOR INTERNATIONAL LAW

DECISION ON ADMISSIBILITY. 13 September 2017

Resolution adopted by the General Assembly

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

HAUT-COMMISSARIAT AUX DROITS DE L HOMME OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS PALAIS DES NATIONS 1211 GENEVA 10, SWITZERLAND

United Nations Charter Preamble (Miriam)

Summary 1 INTRODUCTION AND PROBLEM DEFINITION

The institutions of the European Union. The Treaty of Rome 1957.

[Extract from HRI/GEN/2/Rev.6]

Mandate of the Special Rapporteur on extreme poverty and human rights.

The Implementation of UN Economic Sanctions by the European

Why is this important to address in the proposed treaty?

NEGOTIATING FRAMEWORK. (Luxembourg, 3 October 2005) Principles governing the negotiations

V. Employment and Industrial Relations

'EQPQOKECP 5QEKCN %QWPEKN

Analysis by FIAN International. (English Version)

Vienna Convention on Succession of States in respect of Treaties

Table of Contents. Introduction Part One Human Rights... 41

MAY 2017 THE RIGHT TO PARTICIPATE IN PUBLIC AFFAIRS SUBMISSION ON THE DRAFT GUIDELINES THE CARTER CENTER

Reporters sans frontières CS Paris Cedex 02

NOTE. Kenyan Constitutional Provisions on Freedom of Expression

Strengthening the role of mediation in the peaceful settlement of disputes, conflict prevention and resolution

Comments and suggestions on the Terms of Reference for drafting a Second Optional Protocol to the Cybercrime Convention

RIGHT TO INFORMATION IN INTERNATIONAL ORGANIZATIONS

Peter Hustinx European Data Protection Supervisor. European Leadership in Privacy and Data Protection 1

Social Security (Scotland) Bill: Stage 2 consideration of amendments 116 and 117

Derogation of Human Rights under the Covenant and their Suspension during Emergency and Civil Martial Law, in India and Pakistan

RIGHT TO ACCESS FUNDING HUMAN RIGHTS DEFENDERS BRIEFING PAPERS SERIES

MANILA DECLARATION ON THE PEACEFUL SETTLEMENT

REPORT OF MEETING DATE ENFORCEMENT: LAND OFF FAIRFIELD ROAD, HARDHORN, POULTON-LE-FYLDE

CODE OF ETHICS DELACHAUX Group

GDPR - 10 THINGS YOU NEED TO KNOW (US PERSPECTIVE) 1. Privacy and data protection are fundamental rights

Case T-306/01. Ahmed Ali Yusuf and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities

Synthèse / Summary / Kurzfassung / резюме RÉPUBLIQUE DE MACÉDOINE / REPUBLIC OF MACEDONIA / REPUBLIK MAZEDONIEN / РЕСПУБЛИКА МАКЕДОНИЯ

The United Nations Human Rights Treaty Bodies

1966 (999 UNTS 171), OXIO

INTERNATIONAL PROGRESS ORGANIZATION

7502/18 1 JUR LIMITE EN

ISSUES IN SOVEREIGNTY

States of emergency and fundamental rights: Lithuanian Perspective

HUMAN RIGHTS EXPECTATIONS TOWARDS COMPANIES

On the right of municipalities to set permanent places for meetings of citizens

Code of Conduct. English Edition

WORKING PAPER ON NATURAL RESOURCES AND CONCESSIONS IN THE CONTEXT OF THE MAI

Economic and Social Council

United Nations protection of human rights

Keyword: Reservations, Human Rights, international treaty, Vienna Convention on the Law of Treaties

Individual communications under the International Covenant on Civil and Political Rights

Relevant provisions of the Bill I would like to highlight for your attention are:

The DLA submits below our responses to questions 1, 2, 3, 4 and 5, 9, 11, 12

EU Charter of Fundamental Rights

Recommendation R(81)18 concerning participation at municipal level; Recommendation R(96)2 on referendums and popular initiatives;

PROTECTING HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS WHILE COUNTERING TERRORISM

POLICY PAPER OVERVIEW OF STATE OBLIGATIONS RELEVANT TO DEMOCRATIC GOVERNANCE AND DEMOCRATIC ELECTIONS

DRAFT AFRICAN CHARTER ON VALUES AND PRINCIPLES OF PUBLIC SERVICE AND ADMINISTRATION

GUIDELINES FOR THE REALIZATION OF THE RIGHT TO DRINKING WATER AND SANITATION

European Union (Withdrawal) Bill House of Commons Committee stage. Tuesday 21 November 2017

Anheuser-Busch InBev Global Responsible Sourcing Policy

LAW ON LABOUR IN KOSOVO

TEXTS ADOPTED. European Parliament resolution of 10 June 2015 on the situation in Hungary (2015/2700(RSP))

This version was downloaded from Northumbria Research Link:

Position Paper: IBIS and Rights Based Approaches Approved by the Board of IBIS

VODAFONE CODE OF ETHICAL PURCHASING

Agreement: Wienerberger Social Charter

Equal Opportunities, Equality and Diversity Policy

Report on the Expert meeting on multinational peace operations *

THE EUROPEAN CONVENTION

H.E. Mr. Thongloun Sisoulith, Prime Minister Prime Minister's Office, Vientiane Lao People s Democratic Republic

DECISION No. 2/09 TECHNICAL UPDATE OF THE QUESTIONNAIRE ON THE CODE OF CONDUCT

NDP.001 Version 1.0 when instructing or using other suppliers Prepared by: Stuart Hanson Approved by: Andrew Buckingham Page 1 of 17

SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ON THE RIGHT TO WATER AND SANITATION

4. EU Charter of Fundamental Rights

Responsible Purchasing Charter

Montenegro Agency for Prevention of Corruption. MINISTRY OF LABOUR AND SOCIAL WELFARE Minister Kemal Purišić

The European Social Charter The Collective Complaints Procedure: A Mechanism of Justiciability? Catarina Krause

Transcription:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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. 19-23 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»

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

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

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.

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.