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HUMR5140, lecture # 10

HUMR5140, lecture # 10

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HUMR5140, lecture # 10

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  1. HUMR5140, lecture # 10

  2. This lecture • Picking up the thread from lecture # 4: Scope of application of human rights treaties • The relationship with other areas of international law: International humanitarian law

  3. Lecture # 4: Starting where we ended

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

  5. To which subjects do treaties apply? Personal scope of application Who have obligations? Who have rights? States Individuals Companies International organisations

  6. Human rights treaties apply at all times… Continuing situations Denunciation …even during armed conflicts Beginning End Temporal scope of application Objective A treaty must be in force for the state in question Subjective

  7. …over territory Exercise of authority and control …or over an individual Exception 1: Intraterritorial non-application Exception 2: Extraterritorial application Territorial scope of application Primarily territorial Territory and jurisdiction

  8. Civil and political rights Material scope of application Which rights are protected by a treaty? Economic, social and cultural rights

  9. Treaties apply Scope of application of human rights treaties 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 …which is where we left off

  10. Application of international humanitarian law Other norm conflicts UN Charter Art. 103 Human rights treaties apply at all times… …even during armed conflicts… …unless there exist circumstances that modify or exclude the application …but IHL may modify the application Reservations Derogations Limitations Denunciations

  11. Reservations, derogations and limitations in a nutshell Has the State ratified the treaty? YES Are there valid reservations? Is there a valid derogation? NO HUMAN RIGHT EXISTS NO 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

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

  13. Reservations: Examples (ICCPR) Indonesia Congo Gambia Botswana "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."  "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.

  14. Reservations • Your countries?

  15. 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

  16. 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