Course 3

Question 1

What is the balance that needs to be found?

Answer 1

• Basic tension of human rights on international level: human rights are a concern of the world community but the international order is made out of national states with their national sovereignty. National states create international institutions that transfer sovereignty or the exercise of sovereignty:
  
  • State sovereignity is still there: you need to find a balance = shield of national sovereignty.
• States like China simply state: no interference with domestic affairs and that is that.

Question 2

What can be done in cases of human rights violations?

Answer 2

1. Mechanisms of state complaints
2. Economic measures
3. Economic sanctions
4. Use of force

Question 3

What is the mechanism of state complaints?

Answer 3

• State complaints are a serious thing: one state overtly criticising another state. There might be consequences but either way: you risk that the other state will one day complain against you. Very serious stuff before states consider triggering those mechanisms.

Question 4

What are economic measures?

Answer 4

• One of the most straight forward mechanisms is of course, in the non-aggressive, non-violence sphere = economic measures. That is typically something states would use. You try to pressure states through economic pressure to change their attitudes and policies: soft power.
  
  • Eg. Boycott for the victims of apartheid in South-Africa.
• Often in treaties: human rights clauses:
  • Goal: aid is not unconditioned: if there are human rights issues: we may stop the collaboration or suspend it = kind of contractual basis.
  • Not used on a daily basis but it is good that you have it in the negotiations with a country for cooperation. International diplomatic relations.

Question 5

What are the 2 schools of thought when it comes to international diplomatic relations?

Answer 5

1. Principle people: sticking to the principles saying that you can’t talk and negotiate with a state who does awful things and atrocities: often lawyers who are principle people.
2. Other people want to keep the dialogue going: it is through dialogue and negotiation that you make changes and keep people abroad. More the people on the ground that are more nuanced.

Question 6

What are economic sanctions?

Answer 6

• Economic sanctions are unilateral and a lot more outspoken than measures. They can be imposed in practice by individual states or international organisation. Problem is:
  
  • Very unclear under international law to what extend these economic sanctions are lawful because they can have a huge impact on the population: essential goods, pharmaceuticals,… A humanitarian aspect needs to be taken into account.

Question 7

Are economic sanctions legal according to international law?

Answer 7

• UN Security Council: according to international law, sanctions are authorised if they are imposed by the UN security Council:
  • Unilateral coercive measures = sanctions imposed by a single state without backing by the Security Council is unlawful.
• Also hard to find consensus on the definition of economic sanctions: this is a way to avoid the fact that it is illegal because you claim that it is not an economic sanction.
  • And even if they are legal: still the humanitarian aspect that needs to be taken into account: always make exceptions for humanitarian aid in the broad sense = food, medicine, educational material so that at least the population has access to the most basic economic and cultural rights = the population should not become a victim of international power play = humanitarian aid should be excluded.

Question 8

What is the contol on economic sanctions?

Answer 8

Your sanctions should also not be disproportionate: there should be a reality check or control and a finite timeline, so no infinite period of time. You should check whether it works, functions and whether the population is paying the price for something that may be political or of symbolic importance. Evaluation within a reasonable period of time seems to be fundamental.

• US sanctions against Cuba is condemned on the level of the EU for not respecting international law.

Economic sanctions remain a controversial technique.

Question 9

What is the use of force?

Answer 9

• Most controversial: use of force = public international law. UN Charter is the basic framework and use of violence is not allowed unless Chapter VII the Security Council approves. Same as with economic sanctions, it is complicated because it is nearly impossible to find a consensus in the Security Council because China, Russia can block something when there is strategic or diplomatic importance to China or Russia. They have a self-interest.

Question 10

Was the NATO intervention in Yugoslavia lawful?

Answer 10

• NATO intervention: Yugoslavia: is that lawful?
  • Theory has been launched: French Docters by Bernard Kouchner: created the idea of humanitarian intervention: intervention vis-à-vis sovereignty = aware of the contradiction.
  • Humanitarian intervention to help people that are victim of a diplomatic international powerplay that completely freezes the functioning of the international institutions, namely the UN.

Question 11

What is R2P?

Answer 11

• Responsibility to protect:
• UN Charter & Security Council: 2001: Report by International Commission on intervention and state sovereignty on the responsibility to protect:
  • Human rights are first the duty of the domestic state = state on which territory things are happening. As a state you have a responsibility to protect your population = the state should not either in itself violate human rights or make it possible that third parties violate human rights. You as a state need to act.
• It only becomes a matter of international concern whenever that state is unwilling or unable to act.
• If the international community wants to act: not a matter of intervening = we need a more general framework –> work on prevention of human rights violations = taking away root causes of violations and issues.

Question 12

But what do we do if there are imminent human rights violations?

Answer 12

• If prevention is too late: how are you going to react?
• Important element: peace building, nation building = transitional justice = maybe the root cases are already there for the next conflict: what happens after your military intervention? Have you studied the demographic, cultural, socio-economic context of that country, the ethnographic of that country? Do you have a clear idea of institutions? How are you going to impose the rule of law, democracy?
• Important that states learn what happens in the next phase and that military intervention should only be in exceptional circumstances.

Question 13

What if the Security Council does not act?

Answer 13

• Try to get it on agenda of General Assembly or work with regional or subregional organisations that then act and ask for an approval. The problem with R2P and humanitarian intervention = same problem with the Security Council.
• Even though it might be interesting the international powerplay: we should not forget that there are real victims suffering from civil wars etc.

Question 14

Is there a general consensus on what human rights are from an international perspective?

Answer 14

• Are we sure that there is a general consensus on what human rights are from an international perspective? Are they truly universal or are they Western and imposed by Western countries on the rest of the world as “universal”? Is this a new kind of colonialism?
• Some scholars say: yes: western concepts: linked to the development of western/Atlantic world.
• Fallacy in rhetoric: you see things together and you link them together but maybe they are not linked at all?
• Drafters of United Nations = mostly Western countries and even the Asian / African representatives were trained in the classical Western tradition. They were dominantly formed by western legal thinking and philosophy

Question 15

Why is it relevant that it is in essence a Western document?

Answer 15

• Because of the difference between the East and the West = tension and now again after the decolonization movement: same thing = imposing western values under the disguise of universal values? So there was a lot of criticism coming from various different background. You could say well from the global south.
• It is impossible to say that human rights are abstract values, principles that should be applied and understood the same way in the whole world = could be danger that we impose it too much on the rest.

Question 16

What is cultural relativism?

Answer 16

• Other extreme position: cultural relativism: western concept and therefore: colonialism and imperialism. We have a different culture so these concepts do not mean anything to us.
• Problem: blank check to China or other autocracies because if there is no more common ground, there is nothing to discuss about because they could simply state: “well that is your western view point but we have a different culture” = dangerous  striking a fair balance is needed: insisting on the universality of those rights but recognizing that in their implementation, there might be differences:
  • That is what we are doing in a regional context: European Court and European Convention of Human Rights: margin of appreciation to leave some leeway = national room of manoeuvre.
    
    • Eg. France has no problem with blasphemy and in other countries this is unacceptable = variety on the subject.

Question 17

What does Koen Raes say about human rights violations?

Answer 17

• Koen Raes: “if you see a human rights violation, or something behaviour, that you would consider a violation of human rights in your understanding, and the victims, in your understanding, also complain about it, then it is the argument of local diversity has no place.” = rule of thumb.
• Navi Pillay: UN High Commissioner for HR said no if the human rights are a western invention because westerners are not the only one to enjoy being protected against arbitrary state power and living in decent circumstances.
• But there is a difference to accepting the general framework and implementing = should perhaps not be the same.

Question 18

What is the approach now when it comes to fundamental human rights?

Answer 18

• Both extremist positions have softened their position. But huge discussion between Council of Europe and Russia about “traditional values”.
• Importance of the Lautsi case.
• Spill over effect by other states where you go and lecture on the importance of human rights: weakening point if they then go: well, what about your own continent?

Question 19

What is the relation between the national human rights law and international humanitarian law?

Answer 19

• International humanitarian law is that area of the law that applies to specific armed conflicts. The Geneva conventions and their protocols, with specific rules on what you can do or duties and rights of combatting parties, but also on civilian population.
• International human rights: consensus that there are rules of international human rights law that are not affected by international humanitarian law, simply because there are no rules in international humanitarian law. So in that case international human rights law simply applies. Similarly there are specific rules of international humanitarian law that you won’t find and that do not, that aren’t related to international human rights law, in that case, again, you don’t have a conflict. It’s international humanitarian law that applies.

Overlap: international humanitarianhumanitarian law should be seen as the lex specialis, with all the consequences that are related to that.

Question 20

How should we interpret treaties?

Answer 20

• Vienna Convention on Treaties for interpretation:

European Court on Human Rights has developed a specific position on how to interpret the European Convention on Human Rights.

• Ginsberg: “constitution or a treaty = living tree” = you need to adapt them = living document Antonin Scalia: look at the intention of the framers.
• Montesquie: judges are the mouth of the law = limits to what they can interpret: they are bound by the text.
• Otherwise, the judge or committee becomes a pseudo-lawmaker and that is at odds with the concept of division of power. Someone adopts the law, the rules, someone applies them. If you don’t like the rules, you may have very good arguments, but maybe then we should change rules.

Question 21

How far can a court go in the interpretation?

Answer 21

• The court has to apply the text and according to the terms of the treaty = ordinary meaning.
• Means of interpretation: object and purpose of the treaty.
• Now that may not always be that clear so then you go and have a look at the context. What is, what do you read in that treaty? What is the purpose of the treaty? What do you read in the, important, what do you read in the preamble? What do we read in the preamble? What do the other provisions of the treaty say? What is the object and the purpose of the treaty? You are not going to read a text, an article, a provision, and give it a meaning that runs counter to the provision, to the purpose and the object of the treaty.
• Purpose: protect individuals against arbitrary power of states, that exceptions to human rights are going to be interpreted narrowly.

Question 22

When can you rely on supplementary means?

Answer 22

• Travaux préparatoires = preparatory works.
• Reading the authentic and comparing the authentic language versions: French and English for ECHR. For UN: Chinese version not always translated the same way. It also happens that the official version has a mistake.

Question 23

What was the Golder case?

Answer 23

• Golder case: article 6: fair trial but it does not mention in such clear terms = access to justice: The court interpreting the purpose of the convention and the object of the conventions, well that’s, it goes without saying that this is also one of the aspects. So the courts use it.

Question 24

What are reservations and are they acceptable?

Answer 24

• Reservations: states may have some objections: unilateral declaration of state stating they will not be bound by those articles.
• In principle: acceptable but there are limitations: you cannot sign up for a convention and then take it back = you cannot make so much reservations that you are not committing yourself anymore, that the object and purpose cannot be reached anymore = unlawful.

Question 25

What if the European Court of HR finds that the reservation went too far?

Answer 25

• 2 options:
  
  1. If I as a state had known this that the reservation would not be lawful, I would not have signed up  my reservation not accepted, entails in a way that my whole agreement is null and void. Because of this reservation = I retract my whole consent.
  2. If a reservation wasn’t lawful for it was incompatible with the treaty, then you’re still bound by the treaty including by the article against which you objected unlawfully.

Question 26

What is the denunciation of treaties?

Answer 26

Denunciation of treaties depend on the treaty itself: Does the treaty foresee or accept the point, accept the idea that states can denounce a human rights treaty.

• If the treaty says it’s possible, then it’s possible, and you have to follow the procedure developed in the treaty.
• If nothing is foreseen, then again it’s the Vienna convention that applies, that would say well then denunciation is as such impossible unless the parties intended to accept the possibility or if the right to denunciation is implied in the nature of the treaty.

Question 27

What is the reason for the denunciation of a treaty?

Answer 27

• Problems: a treaty can begin to get a life of their own = ECHR has extended much further than what was expected. If states knew the case law of Strasbourg, they would have never ratified the convention. But some states do accept judgments that you disapprove = name of the game. Other states are more reluctant and might decide to stop the collaboration.
• Trade off again: do we need to slow down our interpretation because otherwise the other state might pull out and we lose all the progress. Some people state: should we slow down our too progressive interpretation of convention but others states that you should never compromise with human rights.
• After denunciation it is probably a lot worse because they are again unprotected = where to draw the line?