International Human Rights Law Summary PDF

10.12.24, 16:47 International Human Rights Law (Summary) 1...

10.12.24, 16:47 International Human Rights Law (Summary) 1 International Human Rights Law Table of Content I. National Origins of Human Rights....................................................................... 3 A. Precursors to International Human Rights Protection...................................... 4 B. The UN-Charter and the Universal Declaration of Human Rights (UDHR)...... 5 1. Universal Declaration of Human Rights........................................................ 5 C. Internationalization of Human Rights............................................................ 5 D. The Universality Debate............................................................................... 6 E. Are Human Rights effective?........................................................................... 6 F. Characteristics of Human Rights v. IHL and ICL.............................................. 6 II. Normative Framework......................................................................................... 7 A. Legal Sources of IHRL..................................................................................... 7 B. Treaties............................................................................................................ 7 1. The Charter of the United Nations (1945).................................................... 7 2. Universal Human Rights Treaties................................................................. 8 3. Special Human Rights Treaties.................................................................... 8 4. Regional Human Rights Treaties.................................................................. 8 C. Customary International Law (CIL)............................................................... 9 1. Jus Cogens.................................................................................................. 9 D. Soft Law..................................................................................................... 10 1. Resolutions and Declarations..................................................................... 10 E. Interpretation of Human Rights Treaties........................................................ 10 F. Generations or categories of Human Rights................................................... 11 1. The “received wisdom”................................................................................ 11 G. Case Study: The Human Right to Science................................................. 12 III. The Scope of Protection of Human Rights..................................................... 14 A. The Personal Scope of Application................................................................ 14 B. The Substantive Scope of Application............................................................ 14 C. The Territorial Scope of Application............................................................ 15 1. Extraterritorial conduct- applicability beyond national territory.................... 16 2. Extraterritorial conduct – exercise of “jurisdiction”...................................... 16 3. Extraterritorial effects of internal conduct................................................... 17 D. The Temporal Scope of Application............................................................ 17 E. The Core Content of Human Rights............................................................... 18 about:blank 1/56 10.12.24, 16:47 International Human Rights Law (Summary) 2 F. Elements of a Human Rights Violation........................................................... 19 IV. Rights Holders............................................................................................... 19 A. Individuals (= natural persons)....................................................................... 19 B. Groups (= natural persons)............................................................................ 20 1. Groups of Individuals.................................................................................. 20 2. Communal Rights Holders......................................................................... 20 3. Community Rights Holders......................................................................... 21 C. Legal Persons............................................................................................ 23 D. Future Generations.................................................................................... 24 1. How about nature?..................................................................................... 24 V. Implementation.................................................................................................. 24 A. Overview of the Human Rights Implementation mechanism.......................... 24 1. Monism and Dualism.................................................................................. 24 2. Domestic Level........................................................................................... 25 3. International level – decentralized mechanisms......................................... 26 4. International level – centralized mechanisms............................................. 27 B. Difference between treaty- and charter based bodies.................................... 28 1. Treaty Bodies; Treaty based procedures.................................................... 29 2. Charter based bodies; Charter based procedures...................................... 30 VI. Duty Bearers.................................................................................................. 31 A. The State and its Actors................................................................................. 31 B. Private Actors................................................................................................. 33 C. International Organizations (IOs)................................................................ 34 D. To whom are obligations owed?................................................................. 35 E. Human Rights Obligations............................................................................. 36 F. Elements of a Human Rights Violation........................................................... 36 VII. Equality and Non-Discrimination.................................................................... 37 A. Introduction.................................................................................................... 37 B. What is Discrimination?................................................................................. 37 C. Principle of Equality and Non-Discrimination.............................................. 37 D. General Prohibition of Discrimination......................................................... 38 1. Accessory Prohibitions of Discrimination.................................................... 38 2. Autonomous Prohibition of Discrimination.................................................. 38 E. Grounds of Discrimination.............................................................................. 39 F. Effects of Discrimination................................................................................ 39 1. Direct Discrimination.................................................................................. 40 about:blank 2/56 10.12.24, 16:47 International Human Rights Law (Summary) 3 2. Indirect Discrimination................................................................................ 41 G. Prohibition of Discrimination against particular categories of persons........ 41 1. Prohibition of Discrimination against Women............................................. 41 2. The Prohibition of Racial Discrimination..................................................... 42 3. The Prohibition of Discrimination based on Disabilities.............................. 43 4. The Prohibition of Discrimination based on sexual orientation and gender identity............................................................................................................... 43 H. Intersectionality.......................................................................................... 44 VIII. Traversal issues in Human Rights Law: Migration and Climate Change........ 44 A. What is Migration?......................................................................................... 44 B. Impact of international law on national migration law..................................... 45 1. Threefold impact of international law on national migration law................. 45 2. Human Rights and Migration...................................................................... 46 C. Climate Refugees....................................................................................... 47 1. Overview of Climate Law............................................................................ 47 2. Human Rights Integration in Climate Law.................................................. 48 3. Human Rights in the context of climate change......................................... 48 4. Case examples........................................................................................... 49 IX. Critical perspectives of Human Rights........................................................... 50 A. Third World Approach to international law (TWAIL)....................................... 50 B. Feminist Approach......................................................................................... 51 1. Liberal Feminism........................................................................................ 51 2. Cultural Feminism...................................................................................... 52 3. Radical Feminism....................................................................................... 52 C. Historical Approach to IHL.......................................................................... 52 D. Marxist Approach........................................................................................ 54 E. Anthropological Approach.............................................................................. 54 F. Convergences across approaches................................................................. 55 G. Divergences across approaches................................................................ 55 about:blank 3/56 10.12.24, 16:47 International Human Rights Law (Summary) 4 I. National Origins of Human Rights Early National Documents - Virginia Declaration of Rights (1776) - US Declaration of Independence (1776) - French Declaration of the Rights of Man and of the Citizen (1789) These documents articulated inherent rights but were not fully inclusive, excluding groups such as slaves, women, and indigenous populations. Only men were included, and only those men that were citizens. Women and slaves, as well as indigenous people were not included in the declarations Key Principles - Inalienable rights to life, liberty, and the pursuit of happiness. - Government legitimacy derived from the protection of these rights. Limitation - Although these documents marked a critical step in human rights thinking, they were limited to national contexts and were not fully universal. Not Human Rights per se A. Precursors to International Human Rights Protection Protection of Aliens: Early international law provided standards for the treatment of foreigners, often called the “international minimum standard,” ensuring fair treatment in host countries. A minimum standard of protection for foreigners is needed because states want to protect their own sovereignty and to have sovereignty over their own nationals when they go abroad. It is further to avoid conflict to protect trade and commerce. = Interest of the national community with the economic evolution Diplomatic protection: is triggered when a nation goes abroad to a different country and faces human rights violations, this has its origin in international public law Consular protection only applies when there is no human rights violation, but i.e. you lose your passport The home state invokes the protection for the individual, meaning the individual still holds no rights. Minority and Slave Trade Protections: International treaties began to address issues of slavery and the protection of ethnic or religious minorities (e.g., treaties following the Congress of Vienna in 1815). Emergence of International Humanitarian Law: Humanitarian law developed to protect non-combatants and the wounded during warfare. Key treaties include the Geneva Conventions of the mid-19th century. Labour Rights Protections: International efforts to protect workers from exploitation began to gain traction, exemplified by the formation of the International Labour Organization (ILO) in 1919. about:blank 4/56 10.12.24, 16:47 International Human Rights Law (Summary) 5 Labour Standards were developed, different conventions were enforced to protect workers (prohibition of forced labor, child labor, etc.). B. The UN-Charter and the Universal Declaration of Human Rights (UDHR) Post-World War II Breakthrough: The devastation of WWII and the Holocaust led to a consensus on the need for a global human rights framework. United Nations Charter (1945): For the first time, an international treaty linked peace and security with the protection of human rights. The UN Charter was a soft law instrument; it was not a binding treaty but more of suggestions. Universal Declaration of Human Rights (UDHR) (1948): A landmark document, the UDHR laid the foundation for modern human rights law, affirming the equality and dignity of all people. Adopted by the UN General Assembly, it set out 30 articles covering civil, political, economic, social, and cultural rights. 1. Universal Declaration of Human Rights Is it binding? It is not binding as a whole but some articles of it developed into customary law. It is not hard law when it comes to treaty law, but it is soft law. Customary law is treated as hard law. What are the legal sources of public international law? Three official sources of international law: treaties, customary law, general principles of law (i.e. pacta sund servanda (“contracts are binding”)) With any text, it is important to check whether it is soft law or actually binding Secondary sources are then created on top of the law as it is given (i.e. case law). Genocide Convention and Refugee Conventions are binding. After this, the international bill of rights was created (UNO Pakt I und II, ICCPR). They entered into force in 1976. There were different regional Human Rights systems (American, European, Asian). C. Internationalization of Human Rights For the first time, the individual and not the state was a right-holder in international law. Before this the state was sovereign and absolute in its exercise of its sovereignty. This means that other states could not interfere with their internal affairs. Now, state sovereignty became limited. Human Rights are essentially protection against the state (meaning abuse of power). New standard in international affairs and negotiations (i.e. Turkey can only join the UN if they uphold Human Rights). about:blank 5/56 10.12.24, 16:47 International Human Rights Law (Summary) 6 What does an NGO do? They are independent from the state and they work with organizations and charities around the world. They help people what are victims of Human Rights Violations, meaning they have a charitable cause. They can issue shadow-reports in the UN-systems, meaning they observe the happenings and can critique states. D. The Universality Debate Can the Declaration even be universal when it was founded in Western ideas? It is not the question whether or not Human Rights are upheld; universality is whether or not everyone has an equal understanding of what Human Rights are. Legal Positivism: If it is legally binding, it`s universal. Natural Law: Every human being has these rights because they derive from human nature. Relativist theories (critiques): Historical critique on how the Human Rights developed. Cultural critique, so non-European traditions humans are rather seen as individuals being part of a community and not individuals in itself. Human Rights should be culture-specific; they can`t be universally applicable because we have so many different cultures. Report of the Special Rapporteur in the Field of Cultural Rights (Benoune): she critiqued the Cultural Critique. Cultural relativism can be misused to derive certain groups of people from their rights. Cultural is a stand-alone Human Rights, that needs to be protected. There is no general answer to this debate, but it is a balancing act of rights and interests that are at stake. E. Are Human Rights effective? Why could Human Rights be ineffective? - There are a lot of violations - They are not enforceable - States misusing Human Rights to violate other Human Rights What is right with Human Rights? - Emphasis on domestic application of Human Rights - Just because they are violations, doesn`t mean it`s ineffective and not “law” - Empowerment of individuals to make use of their Human Rights F. Characteristics of Human Rights v. IHL and ICL There is no legal definition on human rights; we only have definition of characteristics of human rights. International Human Rights Law = internationally guaranteed legal entitlements of individuals vis-à-vis the state, which serve to protect fundamental characteristics of the human person and his or her dignity in peacetime and in times of armed conflict. Not only individuals can be beneficiaries, but also groups of individuals about:blank 6/56 10.12.24, 16:47 International Human Rights Law (Summary) 7 Entitlement against the state and its actors; whether it can create entitlement against private actors is still being debated Human rights are always applicable, in peace or in wartime International Humanitarian Law = rules to protect people in situations of armed conflict (ius in bello) ≠ ius ad bellum (= does not question the legality of the armed conflict, just gives the rules applicable during an armed conflict) Doesn`t create entitlement for individuals but creates benefits for specific groups of people; civilians, combatants, persons hors-de-combat, persons who are affected of an armed conflict International Criminal Law = defines specific crimes at the international level and paves the way for prosecution of individual perpetrators before international courts Can supplement human rights law; where human rights law falls short, it can be made up with international criminal law (i.e. individuals, who are not actors of the state but instead a private person. Can still be held internationally criminally accountable) Does not address obligations of states but international criminal accountability for an individual perpetrator II. Normative Framework A. Legal Sources of IHRL 1. Treaties 2. Customary international law (= “Gewohnheitsrecht”) 3. Soft law (= law that is abided for moral and political reasons) B. Treaties 1. The Charter of the United Nations (1945) Post-WWII Realization: - Abuse of human rights often linked to international aggression. - Founders of the UN recognized that respect for human rights is essential for peace, security, and development. UN Charter Provisions: - Art. 1: Promotes respect for human rights without discrimination. - Art. 55 & 56: Oblige states to cooperate in upholding human rights. - Art. 13(1)(b) & 62(2): Empower UN bodies to recommend actions for human rights realization. Key Impact: The Charter establishes human rights for the first time as an international issue, limiting state sovereignty. Lay the basis how human rights function today and give it legal legitimacy to exist today Human Rights limit any form of abuse of power about:blank 7/56 10.12.24, 16:47 International Human Rights Law (Summary) 8 2. Universal Human Rights Treaties International Bill of Human Rights contains these three documents: 1. Universal Declaration of Human Rights (UDHR) 2. International Covenant on Economic, Social and Cultural Rights (ICESCR) (UNO-Pakt I) ratified by 172 states Art. 6-8: economic rights Art. 9-12: social rights Art. 13-15: cultural rights 3. International Covenant on Civil and Political Rights (ICCPR) (UNO-Pakt II) ratified by 174 states Art. 6-11: protection of life and security of person Art. 13-14: procedural guarantees Art. 15-16: prohibition of retroactive criminal legislation and the right to recognition as a person before the law Art. 12: civil liberties Art. 17-23: privacy, family, freedom of thought and conscience, religion… Art. 24 – 27: rights of the child, political rights, equality and non- discrimination… 3. Special Human Rights Treaties Special convention on specific issues Groups that have special vulnerabilities that need to be addressed of their own Documents by the International Labor Organization; ALL the other documents are by the UN. 4. Regional Human Rights Treaties African Charter on Human and Peoples’ Rights (the Banjul Charter) (ACHPR) American Convention on Human Rights (Pact of San José) (ACHR) about:blank 8/56 10.12.24, 16:47 International Human Rights Law (Summary) 9 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) Arab Charter on Human Rights (ArCHR) Asia: no overarching, legally binding Human Rights Treaty. There is a human rights declaration that is not legally binding. The countries individually make documents concerning human rights. C. Customary International Law (CIL) Two requirements that it becomes customary law: General state practice Conviction, that it is legally required Art. 38(1)(b) of the ICJ-Statue: “… evidence of a general practice accepted as law.” Elements: 1. a general practice (state practice); 2. the conviction that this practice is legally required (opinio juris). Reduced Significance? But still relevant for example concerning: Reservations Denunciation Domestic applicability Proliferation of human rights with CIL status Restatement of the Foreign Relations Law of the United States (1986) William A. Schabas, The Customary International Law of Human Rights (1st ed., 2021). Customary international law is relevant because it is binding even for states that have not ratified Human Rights Treaties. How can it become customary law, if the state hasn`t ratified the treaty? Because even if the state doesn`t contribute to the state practice, it cannot prevent that it becomes customary law EXCEPT if the state makes reservations and acts as a persistent objector (i.e. every time the issue comes up, the state has to object to it. The customary law still develops but is not applicable to that specific state) Most Human Rights hold customary international law status. 1. Jus Cogens Art. 53 VCLT: “… accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Binding law Not an independent source of law o treaty law o CIL about:blank 9/56 10.12.24, 16:47 International Human Rights Law (Summary) 10 Jus cogens is the core content (= Kerngehalt) of Human Rights which has attained customary law status. The heart of every Human Right: o Genocide o Slavery o Torture o inhuman and degrading treatment o systematic racial discrimination no derogation allowed by anyone at any time D. Soft Law 1. Resolutions and Declarations Human Rights Committees elaborate and comment on a specific human rights law, i.e. its scope of application. Where does case law fit into this? Is case law a source? It`s a secondary source, meaning that it helps in the interpretation of treaties and other binding law (Art. 38 RCJ Statue). E. Interpretation of Human Rights Treaties Art. 31(1) VCLT “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,” Art. 31(3)(b) VCLT “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” Art. 32 VCLT: Historical interpretation of subsequent role dynamic approach: Tyrer case ECHR “a living instrument which must be interpreted in the light of present-day conditions.” (ECtHR, Tyrer v The United Kingdom, Series A, No 26 (1978), para 31; reaffirmed by, inter alia, Banković (n 20), para 64, with numerous references to the jurisprudence of the ECtHR. Similarly IACtHR, Atala Riffo and Daughters v Chile, Series C, No 239 (2012), para 83.) about:blank 10/56 10.12.24, 16:47 International Human Rights Law (Summary) 11 Modes of interpretation: 1. Textual interpretation (grammatikalisch) 2. Teleological interpretation (takes into consideration the object and purpose of the treaty) 3. Systematic interpretation (look at the specific right in the entire human rights system) 4. Historical interpretation: has a subsidiary role in the interpretation because human rights are being adjusted with time as society is evolving. F. Generations or categories of Human Rights 1. The “received wisdom” Idea that the two covenants are not in the same generations; this is wrong, because they entered into forced on the same day, in the same year. about:blank 11/56 10.12.24, 16:47 International Human Rights Law (Summary) 12 Western states didn`t fully adopt and enforce ICESCR rights because of cold war- views and -tensions. This was because of a fear of communism. At that time, the UN was busy with ending colonialism and apartheid. Both covenants are legally binding; one isn`t just aspirations or goals. The language of the implementation provisions are different; in the ISCESCR it says that schools need to “realize” human rights. In the ICCPR it says that states have to “respect” human rights. Both covenants are precise and vague at the same time; they need to be vague, so they can adapt to the changing of the times. So in essence, none of these arguments are true. So, setting the record straight: “All human rights are universal, indivisible, interdependent, and interrelated.” Vienna Declaration and Programme of Action, A/CONF.157/23 (25 June 1993), para. 5 G. Case Study: The Human Right to Science Legal Sources: Starting point is the UDHR, because it is the overarching document. Is it also in a legally binding document? Yes, in Art. 15 ISCECR. about:blank 12/56 10.12.24, 16:47 International Human Rights Law (Summary) 13 So what does the human right to science actually entail? Science is free from any sort of influence. Are there any interpretative legal documents (which are soft-law instruments)? Working with the 4 methods on interpretation: What even is science? What is its scope of protection? Science is any serious, methodical effort to uncover the truth in both content and form, providing the most reliable statements currently possible on topics recognized by different knowledge systems. There are 6 official languages used by the UN: The definition can be wider depending on the language. about:blank 13/56 10.12.24, 16:47 International Human Rights Law (Summary) 14 Conclusion: Science is a human right The right to science is awake The right to science is justiciable III. The Scope of Protection of Human Rights A. The Personal Scope of Application Who are the rights-holders? Who has the right to evoke certain Human Rights? They are first and foremost individuals. There are discussion about whether groups and legal persons are rights holders are as well. B. The Substantive Scope of Application Scope of Protection; where does a Human Right`s protection start and end? i.e. Right to life: When does life start? When does it end? Reservations: modification of the binding force when signing, ratifying, accepting, approving, or acceding to a treaty. consequence: individual provision of a treaty is not applicable or only applicable to a limited extend Meaning a state makes reservation to a provision or parts of a provision. This provision is then not applicable or only applicable to a limited extend to that state. Admissible unless (Art. 19 VCLT): – the treaty wholly or partially prohibits reservation, or – the reservation in question is incompatible with the object and purpose of the treaty admissibility assessed by the respective treaty body or courts Reservations example of a “Landsgemeinde”: Switzerland made a reservation when ratifying the ICCPR Art. 25 Para. 5. This is because in the Landsgemeinde, people of a canton come together and vote without using a secret ballot, and therefore having an unbiased election. about:blank 14/56 10.12.24, 16:47 International Human Rights Law (Summary) 15 Would a reservation be permissible if it affected customary law or jus cogens? No, it is not permissible because of its customary international law status or because of it being jus cogens, meaning it is the most binding form of human rights. C. The Territorial Scope of Application Territorial scope coincides in principle with own national territory (jurisdiction) = state sovereignty gives the state the right to jurisdiction. Principles: 1. Inside national territory: A state exercises authority over all persons within its national territory, even in areas where it has lost de facto control (de jure jurisdiction, meaning even if it has lost control of a certain part of its territory). i.e. a human rights violation occurs in the state territory. 2. Outside national territory: Jurisdiction applies when there is a specific de facto or de jure link between state actions and human rights violations. Jurisdiction exists when: a. State agents operate abroad, exercising power and control over persons or parts of foreign territory. b. Domestic actions inside the state have a direct impact on individuals abroad (i.e. polluted water starting in Switzerland and then flowing through Germany into the sea) i.e. a human rights violation happens outside the state territory. This is the law of state responsibility, which can be found in public international law. Legality of actions outside national territory irrelevant to the existence of jurisdiction in a given case. Not a question of whether or not the action was legal because this is a question of public international law. We are interested in whether a human rights violation has occurred and if there is a link to the state. Loss of Sovereignty over parts of its national territory: Non-responsibility for third-party actions and human rights violations (This is because States are obligated to protect Human Rights, and not private individuals) Federal and decentralized states Case examples: Assanidze v Georgia (ECtHR): Held responsible for violations by local authorities, even without central control. Ilaşcu and Others v Moldova and Russia (ECtHR): Not responsible for secessionist violations but must still protect rights within its de jure sovereignty. about:blank 15/56 10.12.24, 16:47 International Human Rights Law (Summary) 16 Loss of control over certain parts of the territory: Even without control, states must take measures (e.g. diplomatic, legal) to protect human rights in contested territories. Loss of de facto control: States must attempt to protect individuals within available resources, especially in cases like abductions or killings by third parties (due diligence). 1. Extraterritorial conduct- applicability beyond national territory Art. 2(1) ICCPR “to all individuals within its territory and subject to its jurisdiction.” “and” makes it seem like a cumulative criteria but both of the following respective bodies clarify that its an either/or and NOT a cumulative requirement This means jurisdiction and national territory is not the same; jurisdiction can also happen outside of the national territory. HRCttee (HRCttee, López Burgos v Uruguay, Communication No 52/1979 (1981), para 12.3 and HRCttee GC No 31) ICJ (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), ICJ Reports 2004, paras 109 and 111) ICESCR No territorial limit to the ICESCR; ICESCR concludes obligations apply even abroad. Includes duty to protect and fulfil when a state has power over persons or areas abroad. Corporate responsibility: private actors and businesses acting abroad and are tied to the state can also fall under this jurisdiction. ICJ: Extraterritorial obligations arise only with effective jurisdiction, e.g. in occupation contexts. This view however is contested in international law. 2. Extraterritorial conduct – exercise of “jurisdiction” Agents of a state exert control over an area, situation, or individual outside its territory: HRCttee GC No 31: States must ensure Covenant rights for anyone under their “power or effective control,” even beyond national borders. Key factor: Actual ability to exert control, not the legality of actions, determines jurisdiction. Case-by-case assessment: diplomatic missions abroad ships and aircraft occupation of foreign territory partial/transient control no territorial control, but individual control about:blank 16/56 10.12.24, 16:47 International Human Rights Law (Summary) 17 3. Extraterritorial effects of internal conduct State responsibility abroad: States are accountable for actions within their territory that directly impact individuals abroad: De jure control: Formal decisions (e.g., court rulings) affecting individuals abroad can trigger human rights obligations. De facto action: States are liable for actions (e.g., drone strikes, cross-border shootings, pollution) that harm people abroad. Positive obligations: States have no duty to protect or fulfil rights abroad unless they have direct control over the individuals. D. The Temporal Scope of Application a) Denunciation Question of validity of human rights; when does it start and when does it end? From ratification until its valid denunciation. What is a denunciation? It`s a tool in treaty law under which you can under certain circumstances move away from your human rights obligations. There is either a denunciation clause in a treaty or move to the Vienna Convention Art. 56 of the VCLT: “(1) A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or b) a right of denunciation or withdrawal may be implied by the nature of the treaty.” There are no denunciation clauses in the human rights treaties. This absence of a denunciation clause was intentional and it tells us, that no denunciation is possible, meaning moving to Art. 56 VCLT is also not possible because it is not applied in the nature of the treaties, that one can denounce human rights treaties. b) Derogation Human rights treaties apply in peacetime and war, but certain rights may be temporarily derogated in emergencies. Legal Basis: Art. 4 ICCPR ICESCR: Due to the absence of an derogation clause in the ISCRC, derogation from these rights is not possible. about:blank 17/56 10.12.24, 16:47 International Human Rights Law (Summary) 18 Preconditions for Derogation: State of emergency Proportionality Non-discrimination Non-derogable rights Other obligations Proclamation & notification E. The Core Content of Human Rights = “Kerngehalt” Invaluable core of the human right. This core content must be upheld at all times. CESCR GC No 3 Developed by UN CESCR The invaluable core, without which a right would lose its «raison d’être» Any failure to fulfil them amounts directly to a violation of the Covenant. Outlined for each respective human right, e.g. in a General Comment Limitations on Human Rights Not all Human Rights are absolute and can be limited to a certain extent under certain requierments: ICESCR: Art. 4 ICESCR: 1. determined by law 2. compatible with the nature of ESC rights 3. promoting the general welfare 4. in a democratic society a. necessity b. proportionality ICCPR No general limitations clause typical requirements o determined by law o serving a legitimate goal o necessary in a democratic society Anchored in specific rights Art. 12(3), 18(3), 19(3), 22(2) But what can NEVER be limited is the core content of Human Rights! about:blank 18/56 10.12.24, 16:47 International Human Rights Law (Summary) 19 F. Elements of a Human Rights Violation IV. Rights Holders = beneficiaries of Human Rights (persons that actually deserve the protection of Human Rights) Possible Rights Holders: - Individuals - Groups - Legal Persons - Future Generations A. Individuals (= natural persons) Individuals: Art. 2 (1) ICCPR: “all individuals” ICESCR: doesn`t give a clear indication in Art. 2 ISCESCR. Art. 15 ISCESCR mentions “everyone” but who is everyone? This can be found in the general comment to the Article. The committee takes a very broad approach when it comes to rights holders; not only individuals but also groups are protected under the ISCESCR. Universality of Human Rights rights of citizens ↳ e.g. political rights (Art. 25 ICCPR), the prohibition of expulsion of nationals (Art. 12(4) ICCPR) rights of non-citizens ↳ e.g. procedural guarantees in expulsion proceedings (Art. 13 ICCPR), principle of non-refoulement = these rights apply to rights holders in different ways. about:blank 19/56 10.12.24, 16:47 International Human Rights Law (Summary) 20 B. Groups (= natural persons) What are groups? There are three different scenarios one could encounter: Why is this important? To determine the standing. What is standing? Answers the question who can claim a human right and who can evoke that in front of a competent authority (basically who can bring a case before a court) 1. Groups of Individuals = individuals who might encounter disadvantages that stem from shared social characteristics or lifestyles Examples: women children persons with disabilities LGBTQIA+ individuals members of particular social classes etc. Individuals that are part of a specific group that require special consideration; they are regarded as individuals that belong to a group with a shared characteristic or lifestyle. This is important when it comes to the principles of equality and non-discrimination. 2. Communal Rights Holders = Enjoyment of human rights within a collective context, recognizing individuals as communal rights holders. (= a human right that can be exercised and comes to life in a group setting, so for example freedom of religion comes to life when multiple individuals come together, yet the right can also be enjoyed as an individual) Rights have a dual aspect: they can be exercised individually or within a collective. Individuals experience human rights as part of a group, acknowledging their membership within that collective. about:blank 20/56 10.12.24, 16:47 International Human Rights Law (Summary) 21 Examples: Minority rights: Enjoyed “in community with other group members”. (Art. 27 ICCPR). Children’s rights: Right to enjoy culture individually or in community. (Art. 30 CRC). Freedom of religion, the right to protest, the right to family, the right to cultural life, indigenous people`s rights, right to science (science comes to life in an academic community) 3. Community Rights Holders = Communities exercise rights through their collective Secession: the action of identity withdrawing formally from membership of a federation or Entire communities, not individuals within the group! body, especially a political Common Art. 1 ICESCR and ICCPR: Right of state. peoples to self-determination Right to Self-Determination: important in a colonial context, because it gives people the right to independence. People possess the right to freely determine their political status and pursue their development in economic, social and cultural dimensions. Internal self-determination: Determination without a secession, relates to the exercise of your minority rights and culture. If these aren`t given, it is a human rights violation. Then, you get the right to external self-determination, which is parting from the violating state (= secede) External self-determination: secession from the violating state party. Definition and Characteristics: No precise legal definition of community rights holders yet. Communities often have a timeless existence with a substantive connection beyond shared objectives. a persistent social or cultural identity, rooted in shared history, values, and beliefs. Differentiated from other groups (e.g., women, individuals with disabilities) that lack a shared collective history and culture Potential community rights holders: peoples indigenous peoples minorities communities unified by race, ethnicity, religion, culture, language, or history. a) Minorities No strict legal definition when it comes to minorities but there are some relevant factors. about:blank 21/56 10.12.24, 16:47 International Human Rights Law (Summary) 22 Relevant Factors: shared ethnicity language religion self-identification by individuals as members of that minority Definition by HRCTTEE: Persons, who belong to a group and who share in common a culture, a religion and/or a language and who are outnumbered in the state as a whole by the majority, regardless of their nationality Minority Rights Protection: Example: Art. 27 ICCPR serves to protect collective ways of life “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” cultural, linguistic, and religious protections. States are obligated to allow minorities to practice their customs. not contingent on the number of people in the group but rather their distinct identity. This is a communal right because Art. 27 ICCPR was the legal provision in which minorities could invoke their legal rights (= standing, needs one individual person that brings/files the legal claim forward on behalf of the entire group). Tensions: Structural disadvantages faced by minorities are hard to assess and address. Collective demands (e.g., own schools, language instruction, proportional representation) are unmet by individual rights frameworks. b) Indigenous Peoples No legal definition of what indigenous peoples are. Relevant Factors: (a) Priority in time, with respect to the occupation and use of a specific territory; (b) The voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions; (c) Self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and (d) An experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist. about:blank 22/56 10.12.24, 16:47 International Human Rights Law (Summary) 23 Tensions between individual and community rights: Here the Rights Holders are a close community; there can be a tension as the community as such and one individual of the community. HRCttee, Kitok v Sweden, Communication No 197/1985 (1988), para 9.8.: An individual was a descendant of the indigenous people of Scandinavia. The conclusion was that Art. 27 ICCPR was not violated; he only wanted to evoke his rights to expand his reindeer farming business. The indigenous people enjoy special protection for reindeer farming so claiming that he was indigenous was actually an opportunistic move of the individual. HRCttee, Lovelace v Canada, Communication No 24/1977 (1981), para 17; An Indian woman married a non-Indian man. After the divorce, she wanted to get back to her peoples territory but this was denied by her community because that marriage had stripped her of her Indian status. The court balanced her interests against those of the community and in the end granted her the right to go back to her territory. UN Declaration on the Rights of Indigenous Peoples (2007) Right to self-determination Right to autonomy and self-government in local affairs Right to maintain distinct institutions while participating in the state’s political and social life Protection from forced relocation and entitlement to compensation for land confiscation Protection of traditions and customary institutions, as long as they comply with international human rights standards C. Legal Persons = formed intentionally to pursue a common purpose and acquire legal status through specific criteria within a legal framework. Question of national law; how does national law define a legal person? All UN Conventions address human rights that can only be enjoyed by natural persons. ECHR: Protects rights of legal persons to the extent that the guarantee at issue (e.g. right to property) is, by its very nature, applicable to persons that are not human. Standing for legal persons on the UN-level? Special protection for legal persons only ↳ e.g. the right of trade unions to function freely (Art. 8(1)(c) ICESCR) Protection for natural and legal persons ↳ e.g. due process, freedom of the press → determined by respective treaty Some journalists can encounter violations of the freedom of the press; there is the possibility that the press organization these journalist work for invoke the human rights on behalf on the humans that are members of the legal persons. about:blank 23/56 10.12.24, 16:47 International Human Rights Law (Summary) 24 D. Future Generations Future Generations = those not yet born but will inherit the Earth (definition according to the Maastricht Guidelines) Children are NOT part of the future generations, because they are already born. Key Documents: UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations (1997) Maastricht Principles on the Human Rights of Future Generations (2023) ↳ Developed by legal experts to establish the rights of future generations. ↳ Based on the UDHR and other legal instruments. ↳ Emphasize both individual and collective rights for future generations. Rights Holders under current Human Rights Law? Not yet, but beneficiaries of human rights; the present generation has human rights obligations towards future generations Responsibility of present generation towards the future generation 1. How about nature? Could i.e. a river hold human rights? It is accepted in some national constitutions but it is a very new concept in the UN treaties and not really a thing yet. The issue is ongoing and still very new. V. Implementation Human Rights treaties are not based on reciprocity, meaning that the treaty is binding only for the state. This is why mechanisms had to be made to enforce the human rights treaties. There has to be an external body monitoring and enforcing the implementation. Why is it important that the state implements human rights? Because they bear the primary responsibility to customary law and treaties because they are sovereign and hold the power. Sovereignty reinforces a state`s obligation to protect individuals within their state`s territory. A. Overview of the Human Rights Implementation mechanism There are two levels: a national and an international level. 1. Monism and Dualism In international law, monism and dualism are two theories that describe how international law is incorporated and applied within a country's domestic legal system. about:blank 24/56 10.12.24, 16:47 International Human Rights Law (Summary) 25 Monism In a monist system, international and domestic laws are seen as part of a single legal framework. This means: 1. Direct Application: International law becomes part of the national legal system automatically. Once a country ratifies an international treaty or is bound by customary international law, it has direct effect within that country's domestic legal system. 2. No Need for Separate Legislation: International treaties or norms don’t require separate domestic laws to be implemented. Courts and officials in monist countries can apply international law directly, just as they would any domestic law. 3. Supremacy of International Law: In some monist systems, if there’s a conflict between international and national law, international law may take precedence. However, this varies by country and sometimes by the nature of the international obligation. Dualism In a dualist system, international law and domestic law are considered separate legal orders. Here’s how it works: 1. Need for Transformation: In dualist countries, an international treaty or rule must be "transformed" into domestic law before it has any effect domestically. This usually involves passing national legislation to implement the treaty or international obligation. 2. No Direct Application: Courts in dualist systems cannot apply international law directly unless it has been incorporated through national legislation. 3. Domestic Law Primacy in Practice: Because international law requires transformation, it often means that national law takes precedence. However, dualist countries are still obligated under international law to fulfill their treaty obligations, even if this isn’t directly reflected in domestic practice. 2. Domestic Level In Switzerland the monist system is used, meaning international law is directly part of national law. Would a dualistic system be an advantage or a disadvantage? It would be a disadvantage, because foreign international laws would have to be implemented in the national law which is a lot of effort. What tools are available to the state for implementing int. law? - Legislation - Administrative procedures - Judicial procedures - Activities of national human rights institutions about:blank 25/56 10.12.24, 16:47 International Human Rights Law (Summary) 26 How should a human rights violation be claimed in front of court? The national level has to be exhausted first. If all national courts deny the claim, it can then be taken in front of international courts. Does Switzerland have a national Human Rights Institutions? In 2023 one was established. It analyzes how human rights are implemented in Switzerland and give the authorities advice for improvement. National Human Rights institutions are a very important element when it comes to implementation on the national level. They are independent from the state and serves as a bridge between different branches of administrations of the government and the public. 3. International level – decentralized mechanisms Need to first distinguish whether we are talking about centralized or decentralizes mechanisms. Decentralized implementation mechanisms refer to processes, institutions, and actions at national or local levels that help enforce human rights norms without relying directly on centralized international oversight bodies. Instead of a single authoritative body (like the United Nations or an international court) enforcing compliance, decentralized mechanisms depend on various actors within individual countries or regions to uphold and promote human rights. States are taking actions by themselves, mostly in a bilateral setting Human Rights Dialogues State can meet with another state to talk about human rights through diplomacy. This is a mean every state can do; human rights obligations are erga omnes partes. This means that they are applicable to everyone. It could also be a country advocating for their people in a different country. Bilateral and technical assistance A state can act against violators by filing a complaint with a human treaty body. Technical assistance can be another state aiding in support. about:blank 26/56 10.12.24, 16:47 International Human Rights Law (Summary) 27 Protest A state can protest. Retorsions are when unfriendly acts are taken (i.e. when the US introduces that everyone who wanted to enter the US would need their fingerprints taken after 9/11 happened. As a reaction to this, the Brazilian government decided on the same but only for US citizens. This is a retorsion.) Countermeasures are measures that are in principle prohibited dunder international law but are permissible when used in proportionality against a state that has violated international law (= reprisal). Jus cogens is a limit to this. Sanctions For example stopping a trade agreement with another state to enforce human rights protection. More elaboration on this later on though. 4. International level – centralized mechanisms Centralized mechanisms in international human rights law refer to authoritative institutions and processes at the international or supranational level that monitor, enforce, or adjudicate human rights norms across countries. These centralized bodies operate above the national level, providing consistent oversight and creating accountability for countries’ commitments to human rights. a) Criminal Tribunals International Enforcement against Individuals Criminal Tribunals are better at enforcing human rights against an individual that has perpetrator gross human rights violation; this is because human rights are binding in principle only for states and its actors and not individuals. War Crimes Tribunals Nuremberg/Tokyo ICTY (Yugoslavia) ICTR (Rwanda) o until 2015 o International Residual Mechanism for International Criminal Tribunals about:blank 27/56 10.12.24, 16:47 International Human Rights Law (Summary) 28 Ad-hoc tribunals are very specific to one situation and limited in a temporal sense. International Criminal Court (ICC) Hybrid Courts o Special Court for Sierra Leone (until 2013) o Extraordinary Chambers in the Courts of Cambodia o Special Tribunal for Lebanon o Extraordinary African Chambers (Senegal) o Kosovo Specialist Chambers Does the state need to accept decisions by the ICC? As long as one of the party has ratified the Rome Statute, jurisdiction is given. B. Difference between treaty- and charter based bodies This is on the UN level. What are treaty based bodies? They are expert bodies; for each human rights treaty (covenants and conventions) there is a treaty body. They supervise the implementation and situations that concern their respective treaty. The procedures are very precise The people in these committees are independent experts (i.e. professors). They need to be elected. Decisions by the committees are (= views) are not legally binding; they are not formal courts but they do carry a heavy de-facto legal weight. The views are therefore highly respected by formal courts, even if they are not binding. i.e. Human Rights Committees What are charter based bodies? They are political bodies and are composed by different members states. They don’t focus on a specific human rights treaty but instead focus generally on serious and systemic violations of human rights. The Human Rights Council is composed of 47 states that get elected. Their recommendations are i.e. Human Rights Council about:blank 28/56 10.12.24, 16:47 International Human Rights Law (Summary) 29 1. Treaty Bodies; Treaty based procedures 1. State reporting system → Mandatory under all UN Covenants/Conventions Art. 16 para. 1 CESCR: „The States Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein.“ Meaning: Every state has to submit a report to its human rights implementation. Procedure: Presentation of report Working Group – Questionnaire to the State Dialogue between the Treaty Body and the respective State Concluding observations by the Treaty Body Follow-up NGOs can be helpful in this situations; they act as observers and can issue shadow- reports. 2. Individuals communications → Optional under all UN Covenants/Convention Art. 14(1) CERD “A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.” Optional Protocols: Possible that individuals can file a complaint with the respective treaty body. 3. Interstate communications Mandatory: CERD Optional: ICESCR, ICCPR, CAT, CRC Not included in treaty: CEDAW, CED, CRPD Art. 41(1) ICCPR “A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. …” about:blank 29/56 10.12.24, 16:47 International Human Rights Law (Summary) 30 One state can file a complaint against another state. States are reluctant to do this because of their relations with other states and because it is a politically delicate matter. This hasn`t been used on the UN level; but it has on the EU level. 2. Charter based bodies; Charter based procedures 1. Special procedures Mechanisms to address either specific country situations or thematic issues in all parts of the world 45 thematic mandates, 14 country mandates Individual ( “Special Rapporteur”, “Special Representative of the Secretary- General”, “Representative of the Secretary-General” or “Independent Expert”) or working group mandates Gathering of information, send urgent appeals, country visits 2. Universal periodic review ( UPR) Review of the fulfillment of the HR obligations of all countries on a periodic basis Review by a Working Group Recommendations 3. Complaint procedure Based on former 1503-Procedure (ECOSOC Resolution of May 27, 1970) Confidential Individuals and organizations may bring complaints ONLY about gross and reliably attested violations of HR Procedure o Examination of communications by 2 Working Groups (Communications, Situations) o Working Groups decide to bring to the attention of the HRCouncil consistent patterns of gross and reliably attested violations of HR o Recommendations to the HRCouncil 4. UN Security council Peace-keeping - Supervision in respect of implementation of HR - Transitory administration Economic sanctions - Smart sanctions: Smart sanctions, also known as targeted sanctions, are measures specifically designed to focus on individuals, organizations, or specific sectors rather than entire economies. These sanctions aim to minimize collateral damage to the general population and concentrate pressure on those directly responsible for the problematic behavior about:blank 30/56 10.12.24, 16:47 International Human Rights Law (Summary) 31 Military interventions - HR as part of the aims of a military intervention International Criminal Tribunals - ICTY, ICTR, ICC, … Creation of new organs - United Nations Compensation Commission in respect of Kuwait VI. Duty Bearers There are three categories of duty bearers: The state and its agents, private actors and IOs De-facto state agents: paramilitary organizations in Syria that are supported by the Syrian government (NDF). They have controlled significant areas and provide local governance functions, such as policing, judicial activities, and even some social services. Although they are not official state representatives, they are sometimes held accountable for human rights obligations under international law because they exercise state-like powers over a population. The state cannot be held accountable for strictly private actions, unless there are direct provisions in human rights law. A. The State and its Actors Art. 2(1) ICCPR: “Each State Party to the present Covenant undertakes to respect and to ensure …” Art. 2(1) ICESCR: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” about:blank 31/56 10.12.24, 16:47 International Human Rights Law (Summary) 32 Takeaways: Human rights violations are serious abuses of state power. Human rights are a counterweight to the state’s monopoly on the use of force. Who is part of the state? ↳ Draft Articles on State Responsibility (DASR, 2011) 1. The state Art. 28 ICESCR or Art. 50 ICCPR all its organs (legislative, executive, judicial functions) municipal and other local authorities, e.g. in federal structures (ICESCR Art. 28 and ICCPR Art. 50) 2. Ultra vires actions by state agents Art. 7 DASR individuals that exceed their official authority whilst acting in official capacity or pretending to do so. local authorities and entire administrative apparatus not: de facto authorities (e.g. secessionist local authorities) 3. Private persons or entities empowered to perform public functions Art. 5 DASR “the State cannot absolve itself of responsibility by delegating obligations to private bodies or individuals” (ECtHR, Costello-Roberts v The United Kingdom, Series A, No 247-C (1993), para. 27) 4. De facto agents of the state Art. 8 DASR Private persons who are not formally entrusted with the discharge of public functions but who act on the instructions of, or under the direction or control of, the state concerned. 5. Non-state groups in civil wars and similar circumstances Art. 9 DASR Rule: state cannot be held accountable for actions of non-state groups in revolt against state Exceptions: 1. If group is under direction or control of a foreign state to such an extent that they may be regarded as its de facto agents resulting in their conduct being attributable to the foreign state. 2. After power vacuum and state collapse: non state group exercises de facto governmental control: In cases where the central government has collapsed or lost effective control over its territory, leading to a power vacuum, non-state groups may step in to assume government functions and control over an area. In such situations, if the non-state group exercises control to the extent that it functions as a de facto government, it could be held responsible for its actions, just like a state would. about:blank 32/56 10.12.24, 16:47 International Human Rights Law (Summary) 33 3. Acts of insurgents before they assumed power: a non-state group ultimately assumes control of the government following a successful insurgency or civil war. 6. Conduct by private actors acknowledged and accepted by the state Art. 11 DASR ICJ, United States Diplomatic and Consular Staff in Tehran, United States of America v Iran, ICJ Reports 1980, paras 63 ff. Under Article 11, if a state explicitly or implicitly endorses the conduct of private individuals or groups, it effectively assumes responsibility for that conduct as if it were the state’s own action. This article allows for attribution of actions that, while not initially under state control, later receive state approval, signaling that the state aligns itself with those actions. B. Private Actors 1. General rule: The state is not accountable for strictly private actions 2. Direct obligations originating in international law Art. 29 UDHR: Everyone has duties to the community in which alone the free and full development of his personality is possible. ↳ lacks precise normative content International criminal law 3. Indirect obligations originating in international law Provisions of domestic criminal law Obligation to protect → domestic criminal, civil, or administrative law ↳ Private actors compelled to respect people’s human rights 4. Obligations of private economic actors? Ruggie Principles (have been established by a former UN Special Rapporteur; basic principles that govern relations between private actors) Protect: State duty to protect citizens from corporate human rights abuses; businesses are private actors and cannot be trusted to not abuse human rights. Respect: Corporate responsibility to prevent and address adverse impacts. Remedy: Ensure access to judicial or extrajudicial dispute mechanisms. Set of principles to establish a framework when it comes to businesses and human rights. “abuse”: Private actors can only abuse human rights because there are no direct obligation for them, only duties; violations of human rights can only be done by the state or state actors. It is soft law, so not legally binding. It is not yet customary law. about:blank 33/56 10.12.24, 16:47 International Human Rights Law (Summary) 34 CESCR General Comment No. 24 The CESCR provides clear guidelines on the role of states in overseeing corporate practices. Emphasis on legal obligations to prevent business activities from infringing on human rights. The state cannot absolve itself from any responsibility when it comes to businesses abusing human rights. → Global frameworks, while non-binding, encourage responsibility and due diligence. C. International Organizations (IOs) They can take on the role of the government when it comes to administrative functions (i.e. peacekeeping). i.e. WTO, UN, EU, NATO, WB (World Bank), etc. Direct obligation of IOs to respect human rights? No, there is not. They have absolute immunity under international law from state jurisdiction (meaning they are excluded from state jurisdiction!!), but: ➔ Bound to respect human rights with jus cogens status ➔ ILC Draft Articles on Responsibility of International Organizations and their Member States (DARIO) IOS can generally not be held accountable for human rights violations. An exception is the EU, but for other IOS there are no provisions