HUMR5140, lecture # 10. This lecture 1.Picking up the thread from lecture # 4: Scope of application of human rights treaties 2.The relationship with other.

HUMR5140, lecture # 10

This lecture

1. Picking up the thread from lecture # 4: Scope of application of human rights treaties

2. The relationship with other areas of international law: International humanitarian law

Lecture # 4: Starting where we ended

Scope of application of human

rights treaties

Material scope of

application

Temporal scope of

application

Territorial scope of

application

Personal scope of

application

Personal scope of

application

To which subjects do

treaties apply?

Who have obligations?

Who have rights?

States Individuals CompaniesInternational organisations

DenunciationContinuing situations

Temporal scope of

applicationObjective Subjective

Human rights treaties apply at all times… …even during

armed conflicts

Beginning End

A treaty must be in force for the

state in question

Territorial scope of

applicationTerritory and jurisdiction

Primarily territorial

Exception 1: Intraterritorial

non-application

Exception 2: Extraterritorial

application

Exercise of authority and

control

…over territory

…or over an individual

Material scope of

application

Which rights are protected by a

treaty?

Civil and political rights

Economic, social and cultural rights

Treatiesapply

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

…which is where we left off

…unless there exist circumstances that modify or exclude the application

Application of international humanitarian law

Other norm conflicts

Reservations Derogations Limitations

UN Charter Art. 103

Denunciations

Human rights treaties apply at all times…

…even during armed conflicts…

…but IHL may modify the application

Reservations, derogations and limitations in a nutshell

Has the Stateratified the

treaty?

Are therevalid

reservations?

HUMANRIGHTEXISTS

Is therea valid

limitation?

HUMAN RIGHTEXISTS, BUTDOES NOT

APPLY

HUMAN RIGHTEXISTS AND

APPLIES

THERE ISNO RIGHT

Is there avalid

derogation?

NO

NOYES

YES

NO YES

NO

YES

Reservations

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.”

Art. 19-23 VCLT: A State may make a reservation unless

prohibited by the treaty

Effectively: All human rights treaties allow for

reservations

Cannot destroy the nature of the right

Heightened threshold for non-derogable

rights

Is acceptance required?

«Late reservations»

Declarations?

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

Some treaties are silent

ECHRACHRCERDCEDAWCRCCRPDCMW

ACPHRICCPRICESCRCED

Derogations Limitations

What’s the effect of an invalid reservation?

Reservations: Examples (ICCPR)Indonesia

"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."

Gambia

 "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."

Botswana

 “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.”

Congo

The Government of the People's Republic of Congo declares that it does not consider itself

bound by the provisions of article 11.

Reservations

• Your countries?

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.

Derogations

Three categories of

treaties

Treaties which are silent

Treaties which explicitly prohibit

derogations

Treaties which explicitly permit

derogations

ECHR

ACHR

ICCPR

CMW

Reservations Limitations

Example: Article 12 CCPR

1. 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.

2. Everyone shall be free to leave any country, including his own. 3. 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.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Permissiblelimitations

Inherentlimitations

Limitations

Provided by law

Legitimate aim and

necessary to that aim

Consistent with other

rights

HRC General Comment no. 27

Legality ProportionalityLegitimacy

Reservations Derogations