HUMR5140 Introduction to Human Rights Law Autumn 2015 Lecture 6, part I: The Scope of Application of Human Rights Treaties - continued

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

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

Reservations, derogations and limitations in a nutshell Has the State ratified the treaty? YES Are there valid reservations? NO Is there a valid derogation? NO HUMAN RIGHT EXISTS NO YES YES THERE IS NO RIGHT HUMAN RIGHT EXISTS, BUT DOES NOT APPLY HUMAN RIGHT EXISTS AND APPLIES Is there a valid limitation? YES NO

Cannot destroy the nature of the right Is acceptance required? 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.” Declarations? Cannot destroy the nature of the right Is acceptance required? 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 Art. 19-23 VCLT: A State may make a reservation unless prohibited by the treaty Heightened threshold for non-derogable rights «Late reservations» CEDAW CRC CRPD CMW CERD ECHR ACHR Some treaties are silent What’s the effect of an invalid reservation? ICESCR CED ICCPR ACPHR Effectively: All human rights treaties allow for reservations Reservations Derogations Limitations

Reservations: Examples (ICCPR) Gambia Indonesia 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.  "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." "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."  “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.”

Three categories of treaties 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. Treaties which explicitly permit derogations Treaties which explicitly prohibit derogations Treaties which are silent ECHR CMW ACHR Reservations Derogations Limitations ICCPR

Consistent with other rights Provided by law Legitimate aim and necessary to that aim Consistent with other rights Legality Legitimacy Proportionality HRC General Comment no. 27 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 Reservations Derogations Limitations