HUMR5140 Human Rights in International and National Law Autumn 2017

1. HUMR5140 Human Rights in International and National LawAutumn 2017 Lectures 1 and 2: Human Rights as Law and as International Law

2. First and second lecture • Introduction to HUMR5140 • Human rights as «law» • Human rights as «international» law What does it mean to discuss human rights as law as opposed to human rights as a value, as politics, etc.?

3. Introduction to humr5140

4. HUMR5140 Syllabus • Olivier de Schutter, International Human Rights Law (2nd ed.) • Cases, reports, other official documents

5. HUMR5140 Course outline • Human rights as law (Larsen) • Human rights as international law (Larsen) • Scope of application (Larsen) • Typology of States’ obligations (Larsen) • Europe and Asia (Chiussi) • The Americas and Africa (Bailliet) • Charter bodies (Lundberg) • Treaty bodies (Larsen and Sveaass) • Human rights in national legal systems (Zyberi) • Quo Vadis? (Zyberi) • Exam preparation (Zyberi)

6. HUMR5140 Student participation • Primarily lectures • But room will be made for discussions • Some lectures will be 50-50 • Q&A and spontaneous discussions are always encouraged • Study groups led by teaching assistants (Tainá and Jason) – reserved for NCHR M.phil. students, sorry about that • Student presentations • Exam preparation

7. HUMR5140 Examination • Mid-term essay: • Assignment given 21 September • Submission deadline 28 September • Pass/fail with comments from teacher (not necessarily me) • Take-home exam: • Assignment given 10 November • Submission deadline 20 November • Grade A-E (F)

8. HUMR5140 Learning outcome • http://www.uio.no/studier/emner/jus/humanrights/HUMR5140/

9. HUMAN RIGHTS AS «LAW»

10. What is «law»? A surprisingly difficult question Hart: Unity of primary and secondary rules Austin: The command of a sovereign, backed by the threat of a sanction A set of enforceable rules of conduct which set out guidelines for the way individuals and society behave Dworkin: An interpretive concept to achieve justice

11. What is «international law»? A traditional problem: Is it «law»? Hart: Unity of primary and secondary rules Yes, but of a different character than domestic law Austin: The command of a sovereign, backed by the threat of a sanction Weak enforcement mechanisms Dworkin: An interpretive concept to achieve justice • Malcolm Shaw: Law is that element which binds the members of the community together in their adherence to recognised values and standards «International law is the body of rules which are legally binding on states in their intercourse with each other»

12. What is «human rights law»? What is «international law»? A traditional problem: Is it «law»? Hart: Unity of primary and secondary rules Yes, but of a different character than domestic law Austin: The command of a sovereign, backed by the threat of a sanction Weak enforcement mechanisms Dworkin: An interpretive concept to achieve justice • Malcolm Shaw: Law is that element which binds the members of the community together in their adherence to recognised values and standards «International law is the body of rules which are legally binding on states in their intercourse with each other»

13. Human rights law is a part of international law What is «human rights law»? A traditional problem: Is it «law»? Hart: Unity of primary and secondary rules Austin: The command of a sovereign, backed by the threat of a sanction Weak enforcement mechanisms Stronger enforcement mechanisms Dworkin: An interpretive concept to achieve justice Doesn’t fit • Malcolm Shaw: Law is that element which binds the members of the community together in their adherence to recognised values and standards «International law is the body of rules which are legally binding on states in their intercourse with each other»

14. High degree of codification and systematisation • Low(er) degree of codification • Principles developed by courts, case-by-case • Relies on broad, general principles CIVIL LAW • More specific and detailed NATIONAL LEGAL TRADITIONS Hybrid systems COMMON LAW Other traditions

15. Structure of national laws – example • Private law • Rules pertaining to the relationship between private entities • Public law • Rules pertaining to the relationship between a public and a private entity, or between public entities • Hierarchical structure • Norway: Constitution, legislation, regulations, royal decrees… • Where does international law fit? • Where does human rights law fit?

16. One important concept… “Rule of law” No person is above the law No one can be punished by the state except for a breach of the law “The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.” No one can be convicted for breaching the law except in the manner set forth by the law itself

17. …and some latin expressions Lex superior Norm of higher rank prevails over norm of lower rank Lex posterior Higher A newer norm prevails over an older norm Constitution Lex specialis Legislation Hierarchy General norm A specific norm prevails over a general norm Specific norm Administrative regulations Lower

18. …and some latin expressions The law as it is Lex lata The law as it should be Lex ferenda

19. Introduction to international law

20. International law • Two categories: • Private international law (conflict of laws) • Public international law, a.k.a. general international law, a.k.a. simply “international law” • Traditionally: International law regulates the relationship between States • But individuals (and other non-state actors) can to a certain extent be subjects (duty-bearers and rights-holders) under international law • The “humanisation” and the “human-rightism” of international law

21. Some important features • No “sovereign” • Relatively weak enforcement mechanisms • No formal hierarchy of norms (but consider jus cogens) • The “fragmentation” of international law

22. Core matters in international law • Sources • Subjects • The relationship with municipal law • International responsibility • Peaceful settlement of disputes • The regime applicable to common spaces • Diplomacy • Rules pertaining to armed conflicts

23. 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

24. ‘International conventions’What is a convention? 1 An international agreement concluded between States in written form and governed by international law ... whatever its particular designation Multilateral General Contractual Bilateral Specific Law-making Convention Covenant Treaty Charter Distinguished from legally non-binding documents Memoranda of understanding Goals Declarations Statement

25. ‘International conventions’What is a convention? 1 Stage 1: Preparations Stage 2: State consent Stage 3: Binding law Negotiations Agreement of parties Text of Document Signatures / Accessions Ratifications Entry into Force Object and purpose

26. ‘International conventions’Method of interpreting treaties 1 Vienna Convention on the Law of Treaties Art. 31. General rule of interpretation. 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. Art. 32. Supplementary means of interpretation. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable In good faith Ordinary meaning • Objective • Subjective • Teleological In their context Object and purpose

27. ‘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

28. ‘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

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

30. 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

31. Lecture # 2 INTRODUCTION TO HUMAN RIGHTS LAW AS PART OF INTERNATIONAL LAW

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

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

34. ‘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

35. ‘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’

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

37. ‘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. Cross-referencing, integrated interpretation

38. ‘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?

39. 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?

40. 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?

41. Example # 3 Article 6.1 ICCPR: «Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. » • Do you have a «right to die»? • Is abortion prohibited?

42. Example # 4 Article 23 ICCPR: (2) The right of men and women of marriageable age to marry and to found a family shall be recognized. (3) No marriage shall be entered into without the free and full consent of the intending spouses. • Are child marriages protected? • “Marry your rapist” laws? • Arranged marriages? • Homosexual marriages? • Do you have a right to divorce?

43. Example # 5 • Article 5.1.c ECHR: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

44. Example # 6 • Article 18 ICCPR 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. • Can a state prohibit the use in public of hijabs, niqabs, burkas, burkinis, crosses, turbans…?

45. Human rightsarethoserightsone has by virtueofbeing human Universal Indivisible Inalienable Imprescriptible

46. More examples • Do you have a human right to love? • Do you have a human right to be happy? • Do you have a human right to be healthy?

47. Human rights exist independent of positivisation, but positivisation is to be supported Four ‘schools’ of human rightsthinking • Human rights do not exist beyond human rights law Natural school: Given Deliberativeschool: Agreedupon • Skeptical towards human rights law Protestschool: Fought for • Human rights law is like any other law, and may be good or bad Discourseschool: Talkedabout

48. 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

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

50. 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