Public International Law Week 4 Flashcards
Two main human rights sources
ICCPR; ICESCR
Territorial applicability of human rights
ICCPR Art 2(1): within its (the state’s) territory and subject to its jurisdiction. HRC General Comment 31, paragraph 10 - anyone within the power or effective control of that state, even if not situated within the territory of the state (e.g., Israel human rights violations in Palestine - see ICJ Wall Opinion).
Personal applicability of human rights
Individuals - ‘everyone under a state’s jurisdiction.’ E.g., particularly for vulnerable groups such as children, women, disabled persons, refugees, etc.
Duty holders
State’s, international organizations (limited legal personality in Art 43 CPDR), individuals can be tried under international criminal law
Multilateral corporation obligations under international law
Multilateral cooperations have a responsibility to respect human rights, but no legal obligation.
When to invoke human rights?
Primarily during peace time. The applicable law during armed conflict/other emergencies is international human rights law (IHL) as the lex specialis (ICJ Nuclear Weapons Opinion).
Are human rights absolute?
No - there are derogations in times of emergency that can lead to some rights being suspended completely or temporarily. Certain rights, including life, torture, and slavery remain intact and are non-derogable (Art 4(2) ICCPR, 15(2) ECHR). Further, limitations on human rights can only be for certain ‘legitimate aims’ and the core of a right remains intact (Art 10(2) ECHR).
Sources for international law of the sea
UN Convention on the Law of the Sea (UNCLOS)
UNCLOS
A binding dispute settlement in which the peaceful means are chosen by parties. Can go to ICJ or ITLOS, and if the two parties choose differently then default is to go to arbitration.
Land dominates sea
The starting point is land and territorial sovereignty is determined by land territory.
Baseline for territorial jurisdiction over water
Art 5-7, 9, 10 UNCLOS - established by low water line, so everything within the baseline (the line following off the coast) is in low water and strictly within jurisdiction of the state and not international waters.
Rocks and islands
In Art 121 UNCLOS.
Territorial sea
Art 2-4 UNCLOS. In principle can reach out for 12 miles, and is subject to limitations of the Convention.
Right of innocent passage
Ships have right of innocent passage (no shooting, fishing, etc.). Must be expeditious and continuous to constitute this, so no pleasure navigation. Art 17-26 UNCLOS.
UNCLOS Articles on limitations on exercise of jurisdiction
Art 27-28 UNCLOS.
Transit passage
Art 37-44 UNCLOS
Contiguous zone
24 nautical miles and the state has functional jurisdiction (jurisdiction for certain purposes only) Art 33 UNCLOS.
Scope of the contiguous zone
The coastal state may exercise control to prevent or punish infringements within its territory or territorial sea.
Main features of Exclusive Economic Zone
200 nautical miles; established by proclamation by the state; state has functional jurisdiction; Art 55-57 UNCLOS.
Scope of EEZ
Art 56 UNCLOS: Functional jurisdiction (sovereign rights) over exploring, exploiting, conserving, managing natural resources – whether living or non-living – and other activities for economic exploration and exploitation; sovereignty over artificial islands, installations and structures; marine scientific research; protection and preservation of the marine environment.
Continental shelf main features
200 nautical miles and possibility to extend to maximum 350 nautical miles. Truman proclamation allows for continental shelf to be extended to the geological continental shelf (natural prolongation of land territory to outer edge of continental margin to a maximum of 350 nautical miles or 100 nautical miles beyond 2500 meters depth. The legal continental shelf, however, is 200 nautical miles off the coast. Art 76-77 UNCLOS.
Form of jurisdiction of continental shelf
Functional jurisdiction (sovereign rights) over exploration and exploitation of natural resources of the seabed and non-living resources and sedentary species.
Main features of the high seas
Outside internal waters, territorial sea, and EEZ. States do not have sovereignty over the high sea. Art 86-89 UNCLOS.
Freedom of high seas
Art 87 UNCLOS - The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: navigation, overflight, fishing, etc.
Jurisdiction of states in the high seas
Art 86 -89: no state shall have jurisdiction over high seas. only jurisdiction over its vessels. Art 92 UNCLOS - Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
Main features of The Area
Consists of the seabed beyond continental shelves. No state has sovereignty over this seabed. Art 133, 134, 136, 137, 140 UNCLOS
Scope of The Area
Art 133 UNCLOS - (A)”resources” means all solid, liquid or gaseous mineral resources
in situ in the Area at or beneath the seabed, including polymetallic
nodules; (b) resources, when recovered from the Area, are referred to as “minerals”.
The three generations of human rights
Civil and political rights (ICCPR) - 1st generation; Economic, social, and cultural rights (ICCPR) - 2nd generation; Collective rights - 3rd generation
Human rights obligations of states
Positive obligations require the state to act (for e.g., right to education, right to housing, etc.). Negative obligations require state to refrain from intervening in (e.g., prohibition of torture)
Four criteria to be fulfilled when justifying the interference of a human right
Only possible if the right has a limitation clause (e.g., Art 19(3) ICCPR) - 1) Interference of the right, 2) Interference is prescribed by law, 3) Serving one or more legitimate aims (e.g., national security), 4) Necessary in a democratic society
ICCPR indvidual complaints procedure
For individual complaints at the Human Rights Committee the First Optional Protocol of the ICCPR needs to be ratified.
Then, must fulfill the admissibility criteria:
- Exhaustion local remedies (art. 2 OP1-ICCPR)
- Victim requirement (art. 2 OP1-ICCPR)
- No anonymous applications (art. 3 OP1-ICCPR)
- No overlap with current procedures by other international/regional institutions (art. 5(2)(a) OP1-ICCPR)
ECHR procedural grounds of admissibility
Art 34 and Art 35 ECHR
Jurisdictional grounds of inadmissibility
Incompatibility rationae personae
Incompatibility ratione loci
Incompatibility ratione temporis
Incompatibility ratione materiae
Incompatibility ratione personae
The victim requirement: the complainant needs to be a victim of the alleged violation. The alleged violation is committed by or attributable to a State party to the Convention.
Incompatibility ratione loci
The alleged violation of the Convention to have taken place within the jurisdiction of the respondent State or in territory effectively controlled by it
Incompatibility ratione temporis
Covers only the period after the ratification of the Convention or the Protocols thereto by the respondent State
Incompatibility ratione materiae
An alleged violation of a right protected under the ECHR or Additional Protocols
ICJ Wall Opinion
Para 109: while jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. The ICESCR and ICCPR is applicable where the state exercises its jurisdiction on foreign territory.
Para 110: the Court pointed to the long-standing presence of Israel in the territories (…) as well as the exercise of effective jurisdiction by Israeli security forces therein; [thus] In the current circumstances, the provisions of the covenant apply to the population of the occupied territories, for all conduct by the state party’s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of state responsibility of Israel under the principles of international law.
Para 111: (…) the ICCPR is applicable in respect of acts done by a State in the exercise of its jurisdiction
Para 112: (…) this Covenant contains rights which are essentially territorial. However, it is not to be excluded that it applies both to territories over which a State party has sovereignty and to those over which that State exercises territorial jurisdiction.’
Para 112: ‘(…) Israel is bound by the provisions of the ICESCR (…)’.
Para 106: ‘(…) some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.’
Thus, Israel has jurisdiction over Occupied Palestine and has responsibility for human rights obligations and violations in Occupied Palestine.
ICJ Nuclear Weapons Opinion
In armed conflict and other emergencies, international humanitarian law is the lex specialis
Al-Skeini v UK
Issue: What state is responsible for acts done outside own territory?
Para 138: UK had ‘effective control’ (in Iraq) - thus detailed control not required/can also be exercised through subordinate local administrative powers
Para 138: the fact that the local administration survives as a result of the contracting states military and other support entails that (the UK) states responsibility for its policies and actions. The controlling state has the responsibility under Art 1 to secure, within the area under its control the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights.
Part 139: in determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area. Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region.
Para 149: UK ‘assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government’
Thus, UK is responsible for human rights obligations and violations in Iraq due to the fact they had effective control over Iraq and thus under their jurisdiction.
