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HUMR5140, lecture # 10 HUMR5140, lecture # 10

HUMR5140, lecture # 10 - PowerPoint Presentation

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HUMR5140, lecture # 10 - PPT Presentation

This lecture Picking up the thread from lecture 4 Scope of application of human rights treaties The relationship with other areas of international law International humanitarian law Lecture 4 ID: 261007

rights application treaties scope application rights scope treaties reservations covenant human state article international law derogations republic states treaty

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Slide1

HUMR5140, lecture # 10

Slide2

This lecture

Picking up the thread from lecture # 4: Scope of application of human rights treaties

The relationship with other areas of international law: International humanitarian lawSlide3

Lecture # 4:

Starting where we endedSlide4

Scope of application of human rights treaties

Material scope of application

Temporal scope of application

Territorial scope of application

Personal scope of applicationSlide5

Personal scope of application

To which subjects do treaties apply?

Who have

obligations?

Who have

rights

?

States

Individuals

Companies

International organisationsSlide6

Denunciation

Continuing situations

Temporal scope of application

Objective

Subjective

Human rights treaties apply at all times…

…even during armed conflicts

Beginning

End

A treaty must be in force for the state in questionSlide7

Territorial scope of application

Territory and jurisdiction

Primarily territorial

Exception 1: Intraterritorial

non-application

Exception 2: Extraterritorial application

Exercise of authority and control

…over territory

…or over an individualSlide8

Material scope of application

Which rights are protected by a treaty?

Civil and political rights

Economic, social and cultural rightsSlide9
Slide10

Treaties

apply

Material scope of application

Temporal scope of application

Spatial scope of application

Personal scope of application

Scope of application of human rights treaties

…unless there exist circumstances that modify or exclude the application

…which is where we left offSlide11

…unless there exist circumstances that modify or exclude the application

Application of international humanitarian law

Other norm conflicts

Reservations

Derogations

Limitations

UN Charter Art. 103

Denunciations

Human rights treaties apply at all times…

…even during armed

conflicts…

…but IHL may modify the applicationSlide12

Reservations, derogations and limitations in a nutshell

Has the State

r

atified the

treaty?

Are there

valid

reservations?

HUMAN

RIGHT

EXISTS

Is there

a valid

limitation?

HUMAN

RIGHT

EXISTS, BUT

DOES NOT

APPLY

HUMAN

RIGHT

EXISTS

AND

APPLIES

THERE

IS

NO

RIGHT

Is there a

valid

derogation?

NO

NO

YES

YES

NO

YES

NO

YESSlide13

Reservations

Art. 2.1(d) VCLT: ”A unilateral statement … made by a State … whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”

Art. 19-23 VCLT: A State may make a reservation unless prohibited by the treaty

Effectively: All human rights treaties allow for reservations

Cannot destroy the nature of the right

Heightened threshold for non-derogable rights

Is acceptance required?

«Late reservations»

Declarations?

T.K. v. France

, 1987 HRC

220

”In light of article 2 of the Constitution of the French Republic, the French government

declares

that article 27 is not applicable so far as the Republic is concerned.”

Still a ”reservation”

Some treaties explicitly allow for reservations

Some treaties are silent

ECHR

ACHR

CERD

CEDAW

CRC

CRPD

CMW

ACPHR

ICCPR

ICESCR

CED

Derogations

Limitations

What’s the effect of an invalid reservation?Slide14

Reservations: Examples (ICCPR)

Indonesia

"With reference to Article 1 of the International Covenant on Civil and Political Rights, the Government of the Republic of Indonesia declares that, consistent with the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States, and the relevant paragraph of the Vienna Declaration and Program of Action of 1993, the words "the right of self-determination" appearing in this article do not apply to a section of people within a sovereign independent state and can not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states."

Gambia

 "For financial reasons free legal assistance for accused persons is limited in our constitution to persons charged with capital offences only. The Government of the Gambia therefore wishes to enter a reservation in respect of article 14 (3) (d) of the Covenant in question."

Botswana

 “The Government of the Republic of Botswana considers itself bound by:

       a) Article 7 of the Covenant to the extent that ‘torture, cruel, inhuman or degrading treatment’ means torture inhuman or degrading punishment or other treatment prohibited by Section 7 of the Constitution of the Republic of Botswana.”

Congo

The Government of the People's Republic of Congo declares that it does not consider itself bound by the provisions of article 11.Slide15

Reservations

Your countries?Slide16

CCPR, Article 4 

1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation

.

Derogations

Three categories of treaties

Treaties which are silent

Treaties which explicitly prohibit derogations

Treaties which explicitly permit derogations

ECHR

ACHR

ICCPR

CMW

Reservations

LimitationsSlide17

Example:

Article 12 CCPR

Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

Everyone shall be free to leave any country, including his own.

The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

No one shall be arbitrarily deprived of the right to enter his own country.

Permissible

limitations

Inherent

limitations

Limitations

Provided by law

Legitimate aim and

necessary to that aim

Consistent with other rights

HRC General Comment no. 27

Legality

Proportionality

Legitimacy

Reservations

Derogations