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

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

3. 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

4. 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

5. 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

6. 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

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

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

9. 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

10. 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

11. 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)

12. 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.

13. 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

14. 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 : Economic, social and cultural rights
ICCPR
ICESCR

15. 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?

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

17. 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

18. 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

19. 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

20. 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.

21. 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

22. 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

24. 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