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HUMR5140 Human Rights in International and National Law Autumn 2017

HUMR5140 Human Rights in International and National Law Autumn 2017. Lecture 4: The Typology of States’ Obligations. Treaties apply. Personal scope of application. Material scope of application. …unless there exist circumstances that modify or exclude the application.

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HUMR5140 Human Rights in International and National Law Autumn 2017

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  1. HUMR5140 Human Rights in International and National LawAutumn 2017 Lecture 4: The Typology of States’ Obligations

  2. Treaties apply Personal scope of application Material scope of application …unless there exist circumstances that modify or exclude the application Spatial scope of application Temporal scope of application Reservations Derogations Limitations

  3. 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 HUMAN RIGHT EXISTS, BUT DOES NOT APPLY HUMAN RIGHT EXISTS AND APPLIES THERE IS NO RIGHT Is there a valid limitation? YES NO

  4. 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» CRC CMW CEDAW ECHR CRPD ACHR CERD Some treaties are silent What’s the effect of an invalid reservation? ACPHR ICCPR ICESCR CED Effectively: All human rights treaties allow for reservations Reservations Derogations Limitations

  5. Reservations: Examples (ICCPR) Gambia Botswana Congo  "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."  “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.” The Government of the People's Republic of Congo declares that it does not consider itself bound by the provisions of article 11.

  6. 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 are silent Treaties which explicitly prohibit derogations ECHR CMW ACHR Reservations Derogations Limitations ICCPR

  7. Turkey’s derogation from the ICCPR On 15 July 2016, a large-scale coup attempt was staged in the Republic of Turkey to overthrow the democratically-elected government and the constitutional order. This despicable attempt was foiled by the Turkish state and people acting in unity and solidarity. The coup attempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 4 of the International Covenant on Civil and Political Rights.

  8. Turkey’s derogation from the ICCPR The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. In this process, measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant.

  9. 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

  10. The typology of States’ obligations To respect, to protect and to fulfil (Eide) Positive and negative obligations The State should protect rights-holders against interference of their rights by other actors The State should refrain from interfering with the enjoyment of rights To avoid depriving, to protect from deprivation, to provide security (Shue) Obligation of result vs. obligation of conduct The State should take active steps towards the full realisation of the rights

  11. For discussion • In 2011, 55 women reported to be victims of assault rape in Oslo. Most rapes occurred in central Oslo. 8 perpetrators were arrested. • Is this a human rights violation for which the State can be held responsible?

  12. Derogable rights The prohibition against torture? The right to life? Double jeopardy? Rights with inherent limitations Rights which must be respected at all times, and which cannot be restricted Rights with permissible limitations Rights which may be limited Absolute vs. relative rights = most rights

  13. Osman (1998), para. 116: In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person … it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

  14. ICCPR ICESCR Positive obligations Negative obligations? Negative obligations Positive obligations? Immediate Progressive Rights whose implementation shall be improved over time Rights which shall be implemented in full immediately after entry into force Everyone has the right States recognize the right Immediate realisation vs. progressive realisation

  15. Examples ICCPR, Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

  16. ICCPR, Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

  17. ICCPR, Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

  18. ICESCR, Article 6 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

  19. ICESCR, Article 9 The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.

  20. ICESCR, Article 11 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) … (b) …

  21. CEDAW, Article 5 States Parties shall take all appropriate measures: • To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; • To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

  22. http://www.pdhre.org/videoseries.html#series

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