1. HUMR5140 Introduction to Human Rights Law Autumn 2013 Lectures 3 and 4: International Bill of Rights Scope of Application

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

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

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

5. 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.’ Phase 2:Positivisation L I B E R A L I S M vs. E Q U A L I T Y Early 20 th Century

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

7. Phase 2:Positivisation 20 th CenturyEconomic collapseEarly 20 th Century

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

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

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

12. Phase 2: Modern positivisation After World War IIThe UN Charter Determined … to reaffirm faith in fundamental human rights 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; Preamble Art. 1 Arts. 55 and 56 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. 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. Phase 2: Modern positivisation After World War II The Universal Declaration of Human Rights (1948) 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 Renè Cassin from France The UN General Assembly unanimously proclaimed the UDHR as a ”common standard of achievement”

14. Phase 2: Modern positivisation After World War II The Universal Declaration of Human Rights (1948) Content? Both CivPol and EcoSocCul rights Legal status? UNGA resolution, legally non-binding International customary law 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 ICCPRICESCR The International Bill of Rights Bridged the gap between CP and ESC rights …and the gap re-emerged?

15. Phase 2: Modern positivisation 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…? Other regional and international human rights instruments The International Bill of Rights Positivisation and realisation: Some challenges and developments After World War II International human rights treaties No formal hierarchy of norms A category of fundamental rights? Vienna Declaration 1993: «All human rights are universal, indivisible and interdependent and interrelated.» Integrated interpretation

16. The human rights circle http://www.humanrights.is/the-human-rights- project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/substantivehumanrights/

17. International human rights treaties The typology of States’ obligations Absolute vs. relative rights Immediate realisation vs. progressive realisation Scope of application: On Friday

18. 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 To avoid depriving, to protect from deprivation, to provide security (Shue) Positive and negative obligations The typology of States’ obligations Obligation of result vs. obligation of conduct

19. 4 A3 A The typology of States’ obligations International Committee on Economic, Social and Cultural Rights GC13 (1999) GC19 (2008) Availability Accessibility Acceptability Adaptability Availability Adequacy Accessibility

20. 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 Addressed in lecture # 4 on Friday Let’s introduce jus cogens

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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.” within its territory and subject to its jurisdiction During the negotiating history, clear understanding that such wording would limit the obligations to within a Party's territory. 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.

27. 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

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

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