1. HUMR5140 Human Rights in International and National Law Autumn 2016
Lectures 1 and 2:
Human Rights as Law and
as International Law

2. Cases referred to orally in the lecture
Airey v. Ireland (1979),
Selmouni v. France (1999),
Christine Goodwin v. the UK (2002),
Pretty v. the UK (2002),

3. ‘International conventions’
Horizontal Relationship
State
State
State
Vertical Relationship
State
State
Individual

4. Regional conventions International conventions
Europe
ECHR
ESC
OSCE EU
CoE
ICCPR
ICESCR
CERD
THE AmeriCAs
IACHR
ADHR
CEDAW
CAT
CRC
AfriCa
ACHPR
CMW
CRPD
CED
The Arab League
Arab
CHR
Asia
ASEAN efforts

5. ‘International conventions’ Method of interpreting treaties
In good faith
Some particular features
State sovereignty vs. rights of individuals
A strong principle of effectiveness
Evolutive (dynamic) interpretation
Greater place for jurisprudence
Towards a jus commune
Golder v. UK (1975), para. 29: “The Court is prepared to consider … that it should be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties.”
Banković (2001), para. 55:
“The Court recalls that the Convention must be interpreted in the light of the rules set out in the Vienna Convention 1969”
Ordinary meaning
Objective
Subjective
Teleological
In their context
Object and purpose
What about human rights treaties?
“While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases”
International law: Treaties which limit the sovereignty of Contracting States must be interpreted restrictively
“The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”
Cross-referencing, integrated interpretation
The Convention is a living instrument which must be interpreted in light of present-day conditions.

6. ‘International conventions’ Method of interpreting treaties
In good faith
Some particular features
State sovereignty vs. rights of individuals
A strong principle of effectiveness
Evolutive (dynamic) interpretation
Greater place for jurisprudence
Golder v. UK (1975), para. 29: “The Court is prepared to consider … that it should be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties.”
Banković (2001), para. 55:
“The Court recalls that the Convention must be interpreted in the light of the rules set out in the Vienna Convention 1969”
Effectiveness is not consequentialism:
Rawle Kennedy v. Trinidad & Tobago, 1999 HRC 845
Ordinary meaning
Objective
Subjective
Teleological
A number of cases involving the death penalty in T&T had come before the HRC.
T&T withdrew from the CCPR/OP and then re-acceded with a reservation that it did not apply to death penalty cases.
T&T warned that if HRC invalidated the reservation, it would simply withdraw altogether from the CCPR/OP.
Majority opinion: consequences by state do not effect HRC’s duty to uphold all rights for everyone.
Minority opinion: ”All or nothing is not a reasonable maxim in human rights law”
In their context
Object and purpose
What about human rights treaties?

7. Example # 1
ICCPR Art. 2.1:
”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.”
Does the ICCPR apply to acts outside a State’s own territory?

8. Example # 2
ECHR, Article 8.1: Everyone has the right to respect for ... his home and his correspondence.
Are the business premises of a company protected?

9. Example # 3 ECHR, Article 12:
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Do you have a human right to divorce? Or to polygamy?
Do you have a human right to marry a person of your own gender?

10. Summary of some particular features
Individual complaints procedures
Limited place for reservations and denunciation
Limited place for international customary law
Human rights as jus cogens
The relevance of general international law; the discussion of “self-contained regimes”
The impact of human rights law on general international law

11. Four ‘schools’ of human rights thinking
Human rights exist independent of positivisation, but positivisation is to be supported
Four ‘schools’ of human rights thinking
Human rights do not exist beyond human rights law
Natural school: Given
Deliberative school: Agreed upon
Skeptical towards human rights law
Protest school: Fought for
Discourse school: Talked about
Human rights law is like any other law, and may be good or bad

12. If we have time…
Are human rights universal from a legal point of view?
How do we solve conflicts of norms between different human rights?
What is the most fundamental human right?

13. Contact information:
Kjetil Mujezinović Larsen
Professor of Law, the Norwegian Centre for Human Rights
Phone: