Week 2 Human Rights Flashcards
Challenges to human rights
- Limits on human rights; how states can restrict human rights
- Human rights are not absolute, most of them can be limited in various manners
- Denial of extraterritorial effect of HR treaties
What is the scope of application of human rights? - Denial of applicability of international human rights law while fighting in an armed conflict
Human Rights Monitoring/Protection
Positive vs. negative obligations; obligation to respect, protect and fulfill
- By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights.
The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights.
The obligation to protect requires States to protect individuals and groups against human rights abuses.
The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights
Human Rights Monitoring/Protection
Positive vs. negative obligations; obligation to respect, protect and fulfill
- By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights.
The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights.
The obligation to protect requires States to protect individuals and groups against human rights abuses.
The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights
HR monitoring/protection at international level
UN HRs treaties on civil & political rights, economic social & cultural rights, rights of specific groups (women, children, disabilities, migrant workers), specific topic (racial discrimination,
torture, disappearances)
UN treaty bodies (independent committees of (legal) experts, are created by the treaties)
- Monitoring HR mainly through state reports e.g. Art. 40 ICCPR
- Can accept and monitor through complaints (by individuals, e.g. Optional Protocol 1 ICCPR; or by states, Art. 41 ICCPR). Complaints by individuals can also lead to recommendations to states (are not legally binding but do exert some authority)
o Can carry out ad-hoc investigations (e.g Art. 20 CAT)
o New approaches to monitor the implementation of HR→e.g. Optional Protocol to the Convention against Torture (can be ratified if states want to, states through it have the obligation to accept visits of a committee to places of detention/prisons, and states have to establish a national monitoring body for detention places to prevent torture there)
UN Charter based bodies (of political/diplomatic nature) e.g. UN HR Council (is composed of some UN member states)
▪ Universal Periodic Review (to review the conduct of ALL states; peer-based review)
▪ Suspension of members (e.g. Russia)
▪ HR Council can also establish special procedures
▪ Establishing fact finding missions (appoint individuals to carry out independent surveys to find out what is happening in specific situations – result in recommendations to states but not legally binding things)
HR monitoring/protection at the regional level
- Regional HR treaties
- Through regional human rights courts/complimentary bodies→have established their own treaties and courts that can issue legally binding judgements (which those in the international arena cannot do!), enforcement can be difficult though
o Americas: Inter-American Court of Human Rights/Inter-American Commission on Human Rights
o Africa: African Court on Human and Peoples’ Rights/African Commission on Human and Peoples’ Rights
o Europe: in Council of Europe→European Court of Human Rights o There is no regional one in Asia
Limits to Human Rights: Reservations
- There are no absolute human rights
- States making reservations to HR treaties (opting out of certain provisions or modifying then when ratifying them)
o Are reservations possible under HR treaties? Depends, is different for different
treaties
o Articles 19 – 21 of VCLTs (reflects customary IL)
▪ States cannot make reservations when it is prohibited according to the treaty
▪ The reservation may not be incompatible with the object and purpose of the treaty
▪ General reservations that refer to national law and cover possibly everything from the treaty should be avoided/not allowed
Limits to Human Rights: Withdrawal
o Possible under HR treaties? Many treaties have a withdrawal clause, but some do not o Articles 54 + 56 of VCLTs
o Examples:
▪ Venezuela→American Convention on Human Rights
▪ North Korea→ICCPR (no withdrawal clause)
▪ Russia→ECHR (expulsion by CoE) see Art. 58 ECHR (in particular para. 3)
Limits to Human Rights: Derogations in times of national emergencies
o Human rights can be limited to a severe degree in times of crisis
▪ To meet the states’ necessity address issues effectively and quickly
▪ Is usually left to states to decide what/when there is a national emergency (can be misused by states); there are principles/guidelines for states to
decide on appropriate measures though
o Discussed in Art. 4 of ICCPR, but what about ICESCR? -> Has no derogations clause
o In Europe see Art. 15 ECHR
o HRCtee GC 29, and Concluding Observations Israel 2003 para. 12 and 2014 para. 10
▪ Derogations should only be used for “Exceptional and temporary situations” – have to assess necessity & proportionality, and have to report/inform everyone about their derogation
▪ No entire suspension or temporary circumvention (suspension has to be somewhat limited)
Limits to Human Rights: non derogable rights
Art. 4(2) ICCPR
▪ Exceptions for rights for which no derogation is possible; rights that even in
emergency situations cannot be suspended (e.g. torture, right to life..) o Ukraine decided to derogate from ICCPR and ECHR — Russia has not done so
▪ Ukraine announced that state of emergency will be for 30 days, and until now already extended it three times
Limits to Human Rights: Limitation Clauses
Broad use of legitimate limitations clauses in specific human rights provisions
o Limiting rights to increase national security? E.g. limiting freedom of movement/expression/right to privacy?
o For example mentioned in:
Art. 12(3) & 19(3) ICCPR, Art. 4 ICESCR (has a general limitations clause), Art. 8(2) & 10(2) ECHR
▪ E.g. may limit rights if required by law, necessary to protection national security/order, public health or morals etc.→is found in the above 3 articles similarly
▪ Means that a country can quite easily justify limitations through one of the
grounds mentioned for limitations of that right
3 general requirements for limiting rights
▪ By law (there has to be a specific law that allows for limitations of that specific right)
▪ To protect certain interests (limitation has to be for the protection of certain interests that are mentioned in the relevant treaty)
▪ Necessary (have to show that there are no other means and no way around it)
-> Implies a proportionality assessment→ICJ AO Wall Opinion para. 136
Extraterritorial Application of Human Rights
o Central issue/problem: link ‘terrority’ and ‘jurisdiction’
o There may be different scenarios for where violations take place – depends on how
the treaties are phrased
- Types of situations: what is the territorial scope of application?
- Acts inside own territory
▪ Obligations to respect, protect and fulfill are applicable - Acts in areas outside of any national jurisdiction (extraterritoriality) ▪ E.g. detention of individuals in the high seas
- Acts of States within the territory other States (extraterritoriality), because a state operates in another state for reasons such as:
▪ Legal acts consular and diplomatic officers
▪ Incidental acts: arrests / abductions
▪ Acts carried out with consent of another State (Iraq, Afghanistan after
installment of new regimes)
▪ Occupation (Israeli occupied territories-previously Iraq)
Core documents Week 2
International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, ECHR)
- UN Human Rights Committee General Comment 31 (nature of the general obligations of the States Parties), in particular paras. 6, 8 and 10
- UN Human Rights Committee General Comment 36 (right to life), in particular paragraphs 10-22, 25-29, 63-70
- UN Human Rights Committee Statement on derogations and Covid-19
- UN Human Rights Committee Concluding observations for Israel (2014, and 2022)
- Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ 1996 paras. 23-25, EIL 748 (666)
- Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ 2004, paras. 102-113, 134-137, EIL 765 (684)
- Al-Skeini v. United Kingdom, European Court of Human Rights, paras. 130-177, EIL 848 (758)
Extraterritorial Application of Human Rights: Territorial scope of ICCPR
o Article 2(1) ICCPR determines where obligations apply
▪ “State to ensure to all individuals within its territority AND subject to its jurisdiction the rights recognized in the convenant”
o Question: does ‘and’ in Art. 2(1) ICCPR mean ‘and’ or ‘or’? (cumulative conditions so that both have to be fulfilled, or alternative scenarios so that only one of the conditions has to be fulfilled)?
▪ It means ‘or’: means that states have obligations within their territory but ALSO any other areas that are subject to their jurisdiction
o Territory/jurisdiction: HRC GC 31 (clarified the ‘and’ or ‘or’ question)
▪ Para. 10:“[…] ensure the Covenant rights to all persons who may be within
their territory and to all persons subject to their jurisdiction.” This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.
o ICJ - Wall Opinion para. 109 : came to the same conclusion as HRC GC 31
o →under ICCPR a state can thus also be made responsible for human rights violations
outside of its territory if they have power or effective control over the area
Extraterritorial Application of Human Rights: Territorial scope of ECHR
o Starting point: Art. 1 ECHR: ‘jurisdiction’
▪ “to everyone in their jurisdiction” – doesn’t even mention territory here
▪ Applies to Council of Europe area, and in exceptional cases also outside of it as decided by Al Skeini v. UK case
o What does jurisdiction mean here? ECtHR - Al Skeini v. UK (EIL)(paras. 130 – 150)
▪ Jurisdiction = having power and authority over individuals
▪ Jurisdiction can be applicable extraterritorially if states ‘exercise of physical power and control over person in question’ (personal jurisdiction)
* But, what is physical power over an individual? Arresting someone – yes; pointing a gun at someone aka threatening to kill someone, even from afar – yes but more questionable
▪ Jurisdiction may also entail control over an area (spatial jurisdiction: e.g. when you exercise of effective control over territory, e.g. by occupying it)
→By exception, in territories outside Council of Europe area, jurisdiction can exist and therefore ECHR be applicable
- Mix model approach (personal and spatial requirement : individuals are under authority and control of ECHR Member State exercising govt. powers)
The Right to Life
Art. 6 ICCPR (see also Art. 2 ECHR)
o Right is non derogable right
o Prohibition of arbitrary / intentional deprivation of life under IHRL § Prohibition of summary executions / assassinations
▪ (e.g. HRC Concluding observations Israel 2003 para. 15 and 2014 para. 13)
o Lethal force in context: arrests, riots/self defence?
▪ Only in case of threats of a similar nature (proportionality/necessity)
- Killings of civilians in the Ukraine: under IHRL
