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
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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 rightsSlide9Slide10
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