1. HUMR5140 Introduction to Human Rights Law Autumn 2015 Lecture 4: The Scope of Application of Human Rights Treaties

2. International human rights treaties The typology of States’ obligations Absolute vs. relative rights Immediate realisation vs. progressive realisation Scope of application: The key issue today

3. To respect, to protect and to fulfil (Eide) The State should refrain from interfering with the enjoyment of rights The State should protect rights-holders against interference of their rights by other actors The State should take active steps towards the full realisation of the rights The typology of States’ obligations

4. Absolute vs. relative rights Rights which must be respected at all times, and which cannot be restricted Rights which may be limited The prohibition against torture? The right to life?Double jeopardy? = most rights Derogable rights Rights with inherent limitations Rights with permissible limitations

5. Immediate realisation vs. progressive realisation Rights which shall be implemented in full immediately after entry into force Negative obligations Positive obligations? Rights whose implementation shall be improved over time Positive obligations Negative obligations? ICCPRICESCR ProgressiveImmediate Everyone has the right States recognize the right

6. Examples ICCPR, Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

7. ICCPR, Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

8. ICCPR, Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

9. ICESCR, Article 6 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

10. ICESCR, Article 9 The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.

11. ICESCR, Article 11 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) … (b) …

12. CEDAW, Article 5 States Parties shall take all appropriate measures: (a)To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b)To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

13. Scope of application of human rights treaties Material scope of application Temporal scope of application Territorial scope of application Personal scope of application International human rights treaties

14. Personal scope of application To which subjects do treaties apply? Who have obligations? Who have rights? StatesIndividualsCompanies International organisations Or duties? The active dimension The passive dimension

15. Denunciation Continuing situations Temporal scope of application Objective Subjective Human rights treaties apply at all times… …even during armed conflicts BeginningEnd A treaty must be in force for the state in question If a human rights treaty explicitly allows denunciation, a State may do so Silence on the issue prevents denunciation? HRC GC 26 (5) ACHRCERDCATCRCCMWCRPD North Korea denounced the ICCPR in August 1997 – invalid

16. 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 individual Problem: Scope of material application Rebuttable presumption Exceptional circumstances Three categories of treaties Jurisdictional clauses in respect of specific provisions No jurisdictional clauses General jurisdictional clauses 1 2 3