Beruflich Dokumente
Kultur Dokumente
HUMAN RIGHTS: AN OVERVIEW Major IHL: Geneva Convention, The Hague Conventions
A right is not what someone gives you, it’s what no one can take from you Major IHRL: ICCPR, ICESCR, CAT, CERD, CEDAW, UNCRC
o Article 26 – Pacta sunt servanda Development of human rights as common law- when international,
o Article 27 – International law cannot justify violations of regional, and national courts increasingly refer to one anothers case laws,
treaties and progressively building a common understanding of HR values –
o Article 53 – Treaty is void if conflicting with Jus Cogens COMPARATIVE JURISPRUDENCE IN HUMAN RIGHTS ADJUDICATION
UN and regional human rights system 2.) Ang Ladlad vs Comelec (2010)
UN Charter, UDHR, Binding International Treaties and Conventions 4.) Enrile vs Sandiganbayan and People
Article 55 – promotion of and universal respect for HR *Human Rights as Customary Intl Law
Article 56 – member nations to collective and separate actions for Read and make summary of the ff cases:
achievement of obligation under Art. 55
1.) Federal Republic of Germany vs Denmark and Federal Republic of
Art. 101 – Conflict between obligations under Charter and other Germany vs The Netherlands (Continental Shelf Cases ICJ Reports, 1969)
international agreement, UN Charter to prevail.
2.) Nicaragua vs USA (ICJ) Reports, 1986)
See Advisory Opinion (1971) on South African presence in (way clear) to
establish distinction based on sex, ethnicity as a violation of the UN
Charter HR Protection Beyond Treaties- HR As Customary Intl Law
Regional Level
Council of Europe, ECHR and ECIHR Have HR Obligations and State achieve the status of CIL?
Organization of American States, ACHR and IACHR,
African Union, African (Banjul) Charter and ACHPR Practice seen as building customary HR
-ASEAN Intergovernmental Commission on Human Rights
States official declaration supporting HR Participation in HR
instruments negotiations Incorporation of HR in national legal
What is unique about the ASEAN Commission?
order Diplomatic statements
EMERGENCE OF HR AS INTL LAW
HR Protection Beyond Treaties- As General Principles of Intl Law
*Jus Commune of Human Rights
-ICJ declarations that the UDHR and other non-treaty -Art 103 of the UN Charter (see case of Sawhoyamaxa Indigenous
Declarations and Agreements are a source of legal obligations Community vs Paraguay, IACHR, 2006)
Read and make summary of the ff cases: -Certain HR norms as jus cogens – slavery, slave trade, aggression,
genocide, racial discrimination, apartheid, torture (death penalty to
1.) US vs Iran (ICJ Reports 1980) juveniles, refouelement;
2.) UK of Great Britain and Northern Ireland vs Albania (Corfu -certain HR norms as erga omnes (see Barcelona Traction case; portugal
Channel Case ICJ Reports 1949) vs Australia); see also US vs Iran
3.) Portugal vs Australia (The Case Concerning East Timor ICJ *Human Rights As General Principles of Int’l Law
Reports 1995)
Read and make summary of the ff. cases:
1. United States v. Iran (ICJ Reports 1980)
MECHANISMS TO ENSURE COMPLIANCE OF STATE OBLIGATIONS AND THEIR 2. United Kingdom of Great Britain and Northern Ireland v. Albania (
Corfu Channel Case ICJ Reports 1949)
LIMITATIONS
3. Portugal v. Australia ( The Case Concerning East Timor ICJ Reports
The UN and Human Rights Treaty Bodies Protection Mechanisms 1995)
Yvonne Cabaron Artiaga Mechanisms To Ensure Compliance of State Obligations and Their
Limitations :
*The UN Charter
UN CHARTER HUMAN RIGHTS PROTECTION MECHANISMS
*The UN Charter - Art. 103 of the UN Charter (see case of Sawhoyamaxa Indigenous
Community v. Paraguay , IACHR, 2006)
- Certain HR norms as jus cogens – slavery , slave trade , aggression Procedure: Archive or proceed based on sufficiency of information;
, genocide , racial discrimination, apartheid, torture(death Screened for admissibility and merits; clarification/response by the state;
penalty to juveniles, refouelement; violation – VIEWS communicated to the State and the individual; follow-up
- Certain HR Norms as erga omnes (see Barcelona Traction case; procedure to decisions through a special rapporteur or a working group
Portugal v. Australia ) ; see also US v. Iran
Exhaustion of Domestic Remedies Illustrative Cases
Charter –based Monitoring for HR 1.) Chief Bernard Ominayak and the Lubicon Lake Band v. Canada
2.) Henry v. Jamaica
International Tribunal and Processes 3.) Hendriks v. Netherlands
- ICTY (Former Yugoslavia); ICTR and Gacaca Courts (Rwanda); Requirement on Non-referral to any other Int’l Body Illustrative Cases
SPSL (Sierra Leone ); Special Courts in Cambodia , East Timor, 1.) Sanchez Lopez v. Spain
Kosovo , and Iraq 2.) Leirvag. v. Norway
3.) Karakurt v. Austria
See Rome Statute of the ICC where individual human rights liability is
provided UN HUMAN RIGHTS TREATY BODIES PROTECTION MECHANISMS
- See General Comments No. 31 (2004) on ICCPR Art. 2 – a person treatment; slavery, servitude, imprisonment for contractual
need not be located within a state party’s territory in order for obligations, imprisonment for no crime; recognition as a person
that have obligations towards that person, the person must everywhere, freedom of conscience, thought, and religion
merely be “within the power or effective control” of that state
party DENUNCIATIONS
- Act by a State to terminate treaty obligation or to withdraw from
LIMITS ON STATE COMPLIANCE OF HUMAN RIGHTS OBLIGATIONS a treaty
- Art. 43 VCLT – independent existence of a treaty law and other
RESERVATIONS types/sources of international law (see Nicaragua v. US)
- VCLT (Art. 2 [1] [d]) – unilateral statement by a State to exlude or - Art. 54 VCLT – denunciation or termination allowed if provided
modify the legal effect of certain provisions of the treaty in under treaty provisions or by consent of the parties (See ICJ
application to that state Opinion of 1951 on the Genocide Convention)
- Art. 56 VCLT – no denunciation or termination absent treaty
Allowed, unless 1.) prohibited by a treaty; 2.) treaty only provided provisions allowing it, UNLESS, state parties intended possibility of
specified reservation which do not include the reservation in denunciation or when allowance of denunciation may be
question; 3.) incompatible with the object and purpose of the implied from the nature of the treaty.
treaty (Art. 19, VCLT)
Questions:
- See also DECLARATIONS Are denunciations allowed in HR treaties? (see Art. 21 of CERD; 1 st
Optional Protocol of ICCPR; 2008 Optional Protocol of ICESCR)
CEDAW Reservation by Egypt and similar reservations by
predominantly Muslim countries: willing to comply with Article 2 on What do you think is the impact of allowing denunciations in HR
elimination discrimination against women, provided compliance does treaties to the universality of human rights?
not run counter to the Islamic Shari’a
Questions:
Why is reservation allowed in HR treaties? Is it necessary to allow it?
What do you think is the implication of allowing reservation to the
universality of human rights?
DEROGATIONS
- Allows the State to limit rights and freedoms in times of civil strife
and extreme situations or public emergencies
- Non-derogable rights under the ICCPR – arbitrary deprivation of
life; torture or cruel, inhuman or degrading punishment or