HUMR5140 Human Rights in International and National Law Autumn 2017 Lecture 3: The Scope of Application of Human Rights Treaties

The development of human rights Idealisation ONGOING Three phases Phase 1: Re-idealisation Positivisation ONGOING Normativisation and realisation ONGOING

Enjoyment of Life –Rule of Law Fear and Want – Rule by Power Phase 1: Idealisation Phase 2: Positivisation Phase 3: Realisation Human Rights Law Enjoyment of Life –Rule of Law Fear and Want – Rule by Power

Phase 2: Positivisation The transformation of ideals into normative standards First generation: Civil and political rights Liberté Early norms pertaining to conduct during armed conflicts Second generation: Economic, social and cultural rights Egalité Important step: UDHR 1948 Morality to law From ancient times to 1900 Soft law to hard law …but was it the first step? Fourth generation? Early 20th Century A necessary sidestep: Three «generations» French «Rights of Man», 1789 Peace of Augsburg, 1555 US Declaration of Independence, 1776 Code of Hammurabi, 1700 BC Magna Carta, 1215 Habeas Corpus Act, 1679 English Bill of Rights, 1688 Third generation: Group and collective rights Fraternité International law to domestic law

Phase 2: Positivisation Bolshevism Favoring equality and economic rights (egalitè) The Soviet was not just the Russian state, but the spokesperson for the world. Leon Trotsky: we will ”issue some revolutionary proclamations to the peoples [of the world] and then close up the joint.” Wilsonianism Favoring individual liberalism (libertè) U.S. President Woodrow Wilson: the USA model is the ”flag not only of America but of humanity.” ‘We are running a race with Bolshevism, and the world is on fire.’ Early 20th Century L I B E R A L I S M vs. E Q U A L I T Y

Attempted positivisation with the League of Nations Phase 2: Positivisation Early 20th Century Attempted positivisation with the League of Nations Minority rights Right to health Anti-slavery Women’s rights Labour rights

Phase 2: Positivisation Economic collapse Early 20th Century 20th Century

Phase 2: Positivisation Devastation of World War II 20th Century Dresden, Germany Shanghai, China London, UK Manilla, The Philippines

Phase 2: Positivisation Brutality of the State 20th Century Nanking massacre German Program to kill handicapped people because they were ‘costly’ to Taxpayers – ‘life unworthy of living’ German forces detain and kill undesirable citizens Japanese forces burying prisoners alive

Phase 2: Positivisation The destructive power of States demonstrated 20th Century USA Atomic Bombing of Hiroshima in 1945 First Soviet Test of an Atomic Bomb in 1949 First Chinese Test of an Atomic Bomb in 1964

Modern positivisation Phase 2: Modern positivisation Positivisation 20th Century The UN Charter After World War II San Francisco Conference Drafting of the UN Charter (1945) 1st Session of the UN General Assembly Central Hall in London (10 Jan 1946)

Modern positivisation Phase 2: Modern positivisation The UN Charter After World War II Preamble Determined … to reaffirm faith in fundamental human rights The United Nations shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. The purposes of the United Nations are … To achieve international co-operation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; Art. 1 Arts. 55 and 56 All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.

Modern positivisation Phase 2: Modern positivisation The Universal Declaration of Human Rights (1948) After World War II Renè Cassin from France The UN General Assembly unanimously proclaimed the UDHR as a ”common standard of achievement” P.C. Chang from China, Eleanor Roosevelt from USA, John Humphrey from Canada (of UN Secretariat), Charles Malik from Lebanon, Vladimir Koretsky from the USSR

Modern positivisation Phase 2: Modern positivisation The Universal Declaration of Human Rights (1948) After World War II Legal status? UNGA resolution, legally non-binding The International Bill of Rights International customary law Content? Both CivPol and EcoSocCul rights Bridged the gap between CP and ESC rights …and the gap re-emerged? Art. 1: All human beings are born free and equal Art. 2: The basic principle of non-discrimination Arts. 3-21: Civil and political rights Arts. 22-27: Economic, social and cultural rights ICCPR ICESCR

The International Bill of Rights Phase 2: Modern positivisation After World War II Positivisation and realisation: Some challenges and developments A “World Court for Human Rights”? The recognition of grave human rights violations as a justification for intervention Individual international responsibility for violations of human rights law The responsibility of non-state actors NCHR research project: The legitimacy of multi-level human rights judiciary The “legalisation” of international relations The fragmentation of human rights tribunals A focus on the “wrong” human rights…? International human rights treaties The International Bill of Rights Other regional and international human rights instruments Integrated interpretation Vienna Declaration 1993: «All human rights are universal, indivisible and interdependent and interrelated.» No formal hierarchy of norms A category of fundamental rights?

Scope of application of human rights treaties Personal scope of application Material scope of application Temporal scope of application Territorial scope of application

To which subjects do treaties apply? Or duties? To which subjects do treaties apply? Personal scope of application Who have obligations? Who have rights? The active dimension The passive dimension States Individuals Companies International organisations

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

General jurisdictional clauses Problem: Scope of material application …over territory 1 General jurisdictional clauses Problem: Scope of material application Exercise of authority and control Rebuttable presumption Exceptional circumstances …or over an individual 2 Jurisdictional clauses in respect of specific provisions Three categories of treaties Exception 1: Intraterritorial non-application Exception 2: Extraterritorial application 3 No jurisdictional clauses Territorial scope of application Primarily territorial Territory and jurisdiction

Case study # 1: Art. 2(1) ICCPR ”Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” During the negotiating history, clear understanding that such wording would limit the obligations to within a Party's territory. within its territory and subject to its jurisdiction HRC, Lopez Burgos 1979: ”[I]t would be unconscionable to […] permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory. ICJ, Wall Decision (Adv. Opinion), 2004: The CCPR obligations extend to ”acts done by a State in the exercise of its jurisdiction outside of its own territory.” CCPR General Comment 31 (2004), para. 10: Obligations towards “all persons who may be within their territory and to all persons subject to their jurisdiction”, i.e., “to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” USA: Hence, based on the plain and ordinary meaning of its text, this Article establishes that States Parties are required to ensure the rights in the Covenant only to individuals who are both within the territory of a State Party and subject to that State Party’s sovereign authority. HRC: The State party should review its approach and interpret the Covenant in good faith in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose.

Case study # 2: Art. 1 ECHR The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. Preparatory works? Object and purpose? Al-Skeini case

Civil and political rights Material scope of application Which rights are protected by a treaty? Economic, social and cultural rights Challenge: Merits vs. admissibility General vs. specific treaties

Scope of application of human rights treaties Application of international humanitarian law Other norm conflicts Treaties apply UN Charter Art. 103 Scope of application of human rights treaties Personal scope of application Material scope of application Human rights treaties apply at all times… …even during armed conflicts …unless there exist circumstances that modify or exclude the application Temporal scope of application Spatial scope of application Reservations Derogations Limitations Denunciations