2 - Sources, Actors, Obligations and Responsibilities Flashcards
What do sources of law provide us with according to C. Chinkin?
the basis of legal obligation
Main characteristics of sources of IHRL? (6)
1/ how sources are recognized and used is essentially a normative choice
2/ mainly look to material sources for evidence of the content of a rule
3/ classical statement related to IL sources is Article 38(1) ICJ Statute
4/ however, Art. 38(1) is far from comprehensive and arguably not reflective of the diversity of sources used in practice
5/ there is a diversity of sources due to the fact the IHRL is a living and evolving body of law
6/ accordingly, there are formal and disputed sources of IHRL
What are the formal sources of IHRL? (4)
1/ treaties
2/ CIL
3/ general principles of law & judicial decisions
4/ teachings of the most highly qualified publicists
Characteristics of treaties as a source of IHRL? (2)
1/ centrality of int. and regional HR treaties
2/ by signature+ratification of a treaty, a State accepts to put constraints on the way it treats ind. within its territory and subject to its jurisdiction
What are the main categories of IHRL treaties? (7)
1/ International Bill of Rights
2/ UN HR treaty system (treaties & monitoring “treaty” bodies)
3/ treaties outside the UN treaty system
4/ regional HR treaties
5/ see also issue of reservations and declarations
6/ protocols to expand enforceability
7/ General Comments as sources of interpretative guidance (soft law)
What is the Int. Bill of Rights composed of? (3)
1/ UDHR
2/ ICCPR & its 2 Optional Protocols
3/ ICESCR & Optional Protocol
Main treaties making up the UN HR treaty system? (7)
1/ ICERD (1965)
2/ CEDAW (1979)
3/ UNCAT (1984)
4/ CRC (1989)
5/ International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990)
6/ Convention on the Rights of Persons with Disabilities (2006)
7/ International Convention for the Protection of All Persons from Enforced Disappearance (2006)
Main treaties outside UN HR treaty system? (5)
1/ Genocide Convention (1948)
2/ International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)
3/ Refugee Convention (1951)
4/ ILO Conventions
5/ UNESCO Conventions
Principal regional HR treaties? (3)
1/ ECHR
2/ ACHR
3/ African Charter on Human and Peoples’ Rights
Why are General Comments specific within the treaty category? (3)
1/ sources of interpretative guidance for scholars and States
2/ not based on State consent -> status of formal source of law hence uncertain
3/ can be seen as form of secondary treaty law or generating State practice
Main concerns regarding custom as source of IHRL? (3)
1/ malleable, can be used in different ways
2/ open to abuse
3/ identification of CIL subject to subjective perceptions and opinions and unconscious biases
What does the existence of a customary norm require? (2)
1/ uniform and consistent State practice
2/ opinio juris - State belief the practice is required by law
Main difficulty regarding the use of custom as a source of IHRL? (3)
1/ int. courts and tribunals often very inconsistent in application of identification formula
2/ debate as to what the formula entails
3/ debate as to whether the formula has evolved to include modern forms of CIL identification
Additional special characteristics of custom? (3)
1/ allow for no reservations
2/ can potentially bind NSAs
3/ jus cogens norms allow neither for exception nor derogation
Special characteristic of jus cogens norms? (2)
1/ universal application
2/ controversy on how jus cogens status is endowed
Characteristics of general principles as sources of IHRL? (3)
1/ often derived from national legal systems
2/ act as broad interpretative stepping stones
3/ limited practical application
Characteristics of judicial decisions as sources of IHRL? (4)
1/ massively significant
2/ rich source of argumentative authority
3/ subsidiary means for determining IHRL rules
4/ impact of judicial dialogue on progressive dvpt IHRL
Characteristics of judicial dialogue in HR context? (4)
1/ can potentially be transformative as it is both horizontal and vertical
2/ judicial decisions can expose unconscious bias
3/ there is a role for strategic HR litigation
4/ fragmentation of HR jurisprudence can however potentially prevent enshrinement of universal standards
Characteristics of teachings of highly qualified publicists as sources of IHRL? (4)
1/ reliance on this source depends on maturity of the system
2/ subsidiary source
3/ weight attached varies from court to court, system to system
4/ includes outputs of Special Rapporteurs and NGOs
What are some disputed sources of IHRL? (3)
1/ outputs of treaty bodies
2/ resolutions of IOs
3/ other sources of soft law such as guidelines, codes of conduct, reports of UN organised global conferences, programmes for action, etc.
What are some of the characteristics of resolutions of IOs as disputed sources of IHRL? (4)
1/ classically referred to as soft law
2/ can be relevant in the identification of custom
3/ can be useful indicators of State practice
4/ can lead to formal treaties
General considerations about the nature of obligations and responsibilities under IHRL? (5)
1/ relationship between IHRL and PIL - unavoidable tension
2/ tension between the form and function of HR (purpose of protecting individuals from excesses of State power)
3/ nature of HR obligations often considered special in character (obligations of States towards ind.)
4/ HR obligations can take on a quasi-constitutional character (see Loizidou - ECHR is instrument of European public order)
5/ also erga omnes obligations owed towards all States (see ICJ Barcelona Traction)
How can States modify their obligations under IHRL?
by making reservations
Definition of a reservation? (5)
See Article 2(1)(d) VCLT
1/ unilateral statement
2/ made by a State
3/ when signing, ratifying, accepting, approving or acceding to a treaty
4/ whereby it purports to exclude or modify the legal effect of certain provisions
5/ in their application to that State
Characteristics of reservations in IHRL? (7)
1/ they are a common feature in IHRL
2/ often relate to a State making clear that a certain right will only be interpreted in accordance with domestic, constitutional, or religious law
3/ can introduce cultural understanding of certain rights
4/ can be extremely problematic in HR context - constant debates about permissibility of a given reservation
5/ must not undermine object and purpose of treaty
6/ not permissible with respect to basic guarantees (eg right to a remedy)
7/ Requirements: must be specific and transparent - not general in nature
What are the general principles regarding the implementation of HR obligations? (3)
States must :
1/ respect
2/ protect
3/ fulfil
What does duty to “respect” HR mean?
State must not interfere with or deliberately violate HR
What does duty to “protect” HR mean? (2)
1/ State must proactively ensure ind. within its jurisdiction do not suffer from HR violations
2/ must put in place structures of protection to prevent violations (Velasquez Rodriguez v Honduras)
What does duty to “fulfil” mean? (2)
1/ State must take positive steps that lead to greater enjoyment of rights
2/ doing nothing is not an option
Definition of limitation to HR obligations?
a limitation defines the scope of rights
Characteristics of limitations to HR? (3)
1/ each treaty contains a specific “limitation clause” in relation to specific rights
2/ must satisfy certain conditions:
(i) proportionality
(ii) specificity
(iii) limited impingement on rights,
(iv) clear,
(v) accessible,
(vi) non-discriminatory,
(vii) pursue legitimate aim
3/ link with the notion of margin of appreciation
Characteristics of the “margin of appreciation” ? (4)
1/ accepts uniform implementation is not desirable
2/ takes into account historical, political, social, and cultural factors
3/ invocation can sometimes be controversial
4/ defers to the State and domestic judicial bodies, esp. on issues where there are question marks as to global consensus
Definition of derogations to HR? (4)
1/ legally mandated privilege
2/ of States
3/ to restrict certain ind. rights
4/ in the exceptional circumstances of emergency or war
Characteristics of derogations to HR? (5)
1/ reflect adaptability of legal framework
2/ measures must be strictly required by exigencies of situation
3/ necessary to consider duration, geographic and temporal scope of emergency and derogation
4/ States bear the burden of establishing existence emergency
5/ emergency must be publicly declared - public must be informed
What are the key requirements for a derogation to be considered legal? (3)
1/ emergency
2/ necessity
3/ proportionality
Controversies surrounding derogations? (3)
1/ necessity for transparency and accountability
2/ but treaty bodies rarely actively monitored states of emergency
3/ can result in normalization of emergency
Definition of non-derogable rights? (3)
1/ rights esp. protected under treaty law
2/ that cannot be limited or suspended
3/ regardless of the extent or source of the crisis faced by the State
What are some non-derogable rights? (2)
1/ partially depends on the instrument (see ICCPR, ECHR)
2/ jus cogens norms
What are the main forms of remedy for HR violations? (3)
1/ inter-State complaints
2/ individual complaints
3/ reporting obligations
To whom do HR obligations, totally or partially, apply? (3)
1/ States
2/ IOs
3/ NSAs
What are the basic premises of the scope of application of HR? (3)
1/ application to any State and person acting on behalf of a State
2/ HR apply to all ind. on territory or within jurisdiction of State (nationality is irrelevant)
3/ depending on instrument/mechanism, legal persons can have HR obligations (but not under UN treaties)
When can an act/omission giving rise to a HR violation be attributed to a State? (4)
1/ violation derives directly from organs of the State
2/ see ARSIWA, for example Art. 8 (person or group of persons acting on the instructions of, or under the direction or control of a State)
3/ acts of IOs, depending on the context (who has control/authority?)
4/ sometimes resp. for actions of other States when the State exposed an ind. to a real risk of violation of his/her rights by another State + breach was reasonably foreseeable
When can the acts of IOs be attributed to the State? (3)
1/ in peace-keeping operations, depends on who exercises control over troops
2/ actions of IOs on territory of the State usually attributed to IO (Blagojevic v NETH)
3/ authority and control seems to be a defining factor
Do NSAs have HR obligations? (4)
1/ law is in a state of flux
2/ State-centric regime of IL => resistance
3/ could potentially impart legitimacy on entities deemed to be subversive
4/ is in the interest of victims and to the detriment of State power
Do IOs have HR obligations? (5)
1/ IOs are bound by general rules of IL (ICJ, Interpretation of Agreement between WHO and Egypt)
2/ HR provisions in large part constitute general rules of IL
3/ enforcement and accountability is a whole other matter
4/ certain HR instruments allow IOs to become parties (ECHR allows EU)
5/ IOs = common agency of states. No reason different principles should apply to States acting alone/in unison
What 2 cases exist on attributing actions of troops on IO mission to States?
1/ Behrami and Behrami v France: actions not attributabe to State since IO in complete control of troops at the moment
2/ Jaloud v Netherlands: actions attributable to NETH because troops under full command of NETH
What case illustrates the principle of non-refoulement? (3)
1/ Soering v UK
2/ extradition to US: death row phenomenon amount to CIDT
3/ extradition contrary to rights under ECHR
What legal rules apply to corporations? (3)
1/ UN Guiding Principles on Business and Human Rights
2/ soft law principles (moral? responsibilities of MNEs)
3/ imposes obligations
(i) on states to ensure corporations respect HR
(ii) on corporations to avoid complicity in HR violations and use leverage to avoid violations
