HUMR5140 Introduction to Human Rights Law Autumn 2014

1. HUMR5140 Introduction to Human Rights LawAutumn 2014 Lectures 1 and 2: Human Rights as Law and as International Law

2. 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?

3. Introduction to international law

4. 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. 1 2 3 4

5. ‘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. 1 2 3 4 Usus Opinio juris

6. ‘General principles’ 3 How is a ‘principle’ identified? 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 Purpose: To avoid non liquet (legal vacuum) Pacta sunt servanda Good faith Estoppel Res judicata

7. Secondary sources 4 • Court decisions • Literature • Other sources? • Preparatory works • National laws • Acts by international organisations • Primary source?

8. 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

9. International law in national law • Monism vs. dualism • Incorporation, transformation, passive transformation, reference • Obligation of states to implement treaties in domestic law?

10. INTRODUCTION TO HUMAN RIGHTS LAW AS PART OF INTERNATIONAL LAW

11. Human rights law is a part of international law • Sources • Methods • Implementation • Enforcement • … Sources …but with some special characteristics Individuals have rights …and obligations?

12. ‘International conventions’What is a convention? Human rights treaties Multilateral General Contractual Bilateral Specific Law-making

13. ‘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

14. ‘International conventions’ Human rights treaties Are human rights treaties different from other treaties? Are the Covenants something more? ‘special characteristics’ ‘concern the endowment of individuals with rights’

15. ‘International conventions’ State Horizontal Relationship State State Vertical Relationship State State Individual

16. Regional conventions International conventions CoE ICCPR ECHR ESC Europe ICESCR CERD OSCE EU IACHR THE AmeriCAs CEDAW CAT CRC ADHR ACHPR CED CRPD AfriCa CMW Arab CHR The Arab League ASEAN efforts Asia

17. ‘International conventions’Method of interpreting treaties In good faith • Some particular features • State sovereignty vs. rights of individuals • A strong principle of effectiveness • Evolutive (dynamic) interpretation • Greater place for jurisprudence 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” Ordinary meaning • Objective • Subjective • Teleological In their context Object and purpose What about human rights treaties? “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” “The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” International law: Treaties which limit the sovereignty of Contracting States must be interpreted restrictively The Convention is a living instrument which must be interpreted in light of present-day conditions.

18. ‘International conventions’Method of interpreting treaties In good faith • Some particular features • State sovereignty vs. rights of individuals • A strong principle of effectiveness • Evolutive (dynamic) interpretation • Greater place for jurisprudence 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” Effectiveness is not consequentialism: Rawle Kennedy v. Trinidad & Tobago, 1999 HRC 845 Ordinary meaning • Objective • Subjective • Teleological • 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” In their context Object and purpose What about human rights treaties?

19. 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?

20. 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?

21. 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

22. 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

23. 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