11 HUMAN RIGHTS International systems for the protection of human rights Professor Wolfram KARL Austrian Human Rights Institute www. menschenrechte.ac.at.

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HUMAN RIGHTS

International systems for the protection of human rights

Professor Wolfram KARL

Austrian Human Rights Institute

www. menschenrechte.ac.at

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Programme

A. General Introduction

B. Procedures and Cases

C. Special Issues (torture, terrorism etc.)

D. Case Simulation (UPR, European Court of Human Rights)

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A. General Introduction

I. What are Human Rights? (philosophical and legal)

II. Human rights in historical perspective

(kinds of rights, internationalization)

III. Human rights in international law

IV. Human rights in domestic law

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A.I. What are Human Rights?

Philosophical and legal notions

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Compare rights

Art. 11 of UN Covenant I (ICESCR):

(1) The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his familiy, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

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Compare rights

Art. 7 ECHR:

(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. ...

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A. II. Human Rights in Historical Perspective

1. Philosophical roots and legal origins

2. The „three generations“ of human rights

3. Internationalizing human rights

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Internationalizing Human Rights

Before World War II (1939-45):

o Fighting slave trade, 19th century

o Human rights in armed conflict (Red Cross/Red Crescent 1863, first Geneva Convention 1864)

o Protection of minorities in Europe after World War I

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Internationalizing Human Rights

After World War II:• Atlantic Charter 1941 (4 Freedoms of

President Franklin D. Roosevelt)• United Nations „human rights“ as a

general notion only (1945)• Start for codifications of human rights at

the universal and regional levels (1948 seq.)

(see Handouts A/1 to A/3)

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PREAMBLE TO THE CHARTER OF THE UNITED NATIONS

PREAMBLE TO THE CHARTER OF THE UNITED NATIONS

WE THE PEOPLES OF THE UNITED NATIONS DETERMINEDto save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and ...

3. to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and ...

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UN Charter: CHAPTER IPURPOSES AND PRINCIPLES

Art. 1: The Purposes of the United Nations are:1. To maintain international peace and security, ...;2. To develop friendly relations among nations

based on respect for ...;3. To achieve international co-operation in solving

international problems of an economic, social,cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and ...

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A.III. Human Rights in International Law

1. Sources of IL and human rights

2. Structure and rank of human rights obligations

3. Responsibility for human rights violations

4. Limits of human rights

See Handout A/4

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A.III.1. Sources of IL and Human Rights

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External Forms of HR Obligations

o treaties (conventions, charters, protocols..)

o resolutions, declarations, recommendations

o customary international law

o general principles of law

o directives and regulations (EU)

o judgments and arbitral awards (ECtHR, ICJ, claims tribunals)

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Article 38 ICJ-Statute

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and

the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

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A.III.2. Structure and Rank of HR Obligations

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Quote from the Barcelona Traction Case:

Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase,

Judgment of 5 February1970, I.C.J. Reports 1970, p. 3, 32:

“…an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all states can be held to have a legal interest in their protection; they are obligations erga omnes.”(§ 33)

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Quote from the Barcelona Traction Case:

Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment of 5 February1970, I.C.J. Reports 1970, p. 3, 32:

“Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-universal character.” (§ 34)

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Human Rights as ius cogens?

(overriding any other law)

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Vienna Convention on the Law of Treaties – VCLT 1969:

Article 53: Treaties conflicting with a peremptory norm of general international law (jus cogens)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

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A.III.3. Reparation for Human Rights Violations

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Article 41 ECHR – Just Satisfaction

If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

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ILC Articles on Responsibility of States for internationally wrongful acts,

adopted by the International Law Commission at its fifty-third session (2001), Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10)

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Article 31 ILC-Articles (Reparation)

1.The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.

2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.

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Article 34 ILC-Articles (Forms of reparation)

Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.

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A.III.4. Limits of Human Rights

1. Reservations to HR Instruments

(Art. 57 ECHR)

2. Justified interference with human rights

(Art. 10 par. 2 ECHR

3. Derogation in times of war and public emergency

(Art. 15 ECHR)

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Article 57 ECHR – Reservations

1.Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this article.

2. Any reservation made under this article shall contain a brief statement of the law concerned.

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Article 10 ECHR – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

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Article 15 ECHR – Derogation in time of emergency

1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed ...

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A.IV. Human Rights in Domestic Law

1. Incorporation of international norms

2. Subsidiary nature of international enforcement

3. Domestic institutions for the protection

4. NGOs and human rights

(see Handout A/5)

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A.V. Issues for further discussion

1. Categories of HRs in comparison

2. Only human rights or also human duties?

3. Cultural relativism

4. Human rights and foreign policy

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Categories in Comparison

• Compare civil and political rights with social rights

• Question of justiciability

(right to work? Right to a paid holiday?)

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Only rights or also human duties?

Article 29 UDHR 1948:1. Everyone has duties to the community in which alone the

free and full development of his personality is possible.2. In the exercise of his rights and freedoms, everyone

shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

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Cultural Relativism

Readings for discussion

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Human Rights and Foreign Policy

o Despite cultural differences there is a legitimate interest of the international community to see basic human rights respected everywhere. To insist on this tenet is not per se an illegal intervention in the domestic affairs of another State.

o Quiet diplomacyo Humanitarian (military) intervention

(Kosovo 1999). Legal and/or legitimate?