mensenrechten_lesweek2.docx

# Sources and creation of human rights This section examines the origins and establishment of contemporary human rights, the nature of international human rights law, and the various instruments, both binding and non-binding, that define and protect these rights. ## 1. Sources and creation of human rights Human rights are understood as inherent rights possessed by all individuals, regardless of their nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. The development and codification of these rights involve complex processes within international and national legal frameworks. ### 1.1 The nature of international human rights law International human rights law is a branch of public international law that governs the relationship between states and seeks to limit absolute state sovereignty. It aims to provide individuals with rights and freedoms for protection against government actions. Unlike classical international law, which often relies on reciprocity, international human rights law has an objective character, establishing erga omnes obligations that apply to the entire international community. ### 1.2 Sources of international law and human rights The sources of international law, as outlined in Article 38 of the Statute of the International Court of Justice, provide a framework for understanding the creation of human rights. These sources include: #### 1.2.1 International treaties Treaties are written agreements between states governed by international law, serving as primary sources of international law. They are binding upon states that ratify them and are often developed through multilateral processes within international organizations. Treaties can be universal, adopted by bodies like the UN General Assembly, or regional, like those established by the African Union or the Council of Europe. Protocols can be added to existing treaties to elaborate on or expand their scope. > **Tip:** Treaties can also be referred to as conventions, covenants, or statutes. > **Example:** The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are universal treaties. The European Convention on Human Rights (ECHR) is a regional treaty. #### 1.2.2 Customary international law Customary international law is derived from the consistent practice of states (usus) coupled with a belief that this practice is legally obligatory (opinio iuris). It is a primary source of international law and binds all states unless a state has persistently objected to the practice from its inception (persistent objector). > **Example:** The prohibition of torture and the principle of equality are widely recognized as norms of customary international law. #### 1.2.3 General principles of law General principles of law are fundamental legal principles that underpin legal systems globally. They serve to guide legal interpretation, fill gaps in primary law, and limit the discretion of decision-making bodies. These are considered subsidiary sources of international law. > **Example:** Principles such as proportionality, good faith, and equity are general principles of law. #### 1.2.4 Judicial decisions and scholarly writings (subsidiary sources) While not formal primary sources, judicial decisions from international and national courts and the writings of legal scholars (doctrine) contribute indirectly to the development and interpretation of international law, including human rights. #### 1.2.5 Peremptory norms (jus cogens) Jus cogens, or peremptory norms, are fundamental principles of international law that cannot be derogated from by any state, regardless of persistent objection. These are considered the highest form of international law. > **Example:** The prohibition of genocide, slavery, torture, and racial discrimination are considered jus cogens norms. #### 1.2.6 Unilateral acts of states Unilateral acts, such as declarations, recognitions, or protests, can create legal consequences for a state and influence international legal relations. #### 1.2.7 Decisions of international organizations Decisions of international organizations can be binding, though this is exceptional. More commonly, resolutions, declarations, recommendations, and guidelines adopted by these organizations constitute "soft law." ##### 1.2.7.1 Hard law vs. Soft law * **Hard law:** Refers to legally binding instruments such as treaties and customary international law. * **Soft law:** Encompasses non-binding instruments like declarations, recommendations, and resolutions. While not legally binding, soft law plays a significant role in shaping state practice, developing international norms, and influencing the interpretation of hard law. > **Example:** UN Guiding Principles on Business and Human Rights are an example of soft law that clarifies the responsibilities of states and businesses in protecting human rights. UN General Assembly resolutions are typically considered soft law. ### 1.3 The process of establishing human rights treaties The creation of human rights treaties is a complex, often lengthy process involving various actors and stages: 1. **Initiation and drafting:** Proposals for new human rights norms or treaties can emerge from states, international organizations, or civil society. Specialized bodies within the UN, such as the Human Rights Council, or expert groups may be involved in drafting the initial text. 2. **Negotiation and adoption:** Draft texts are then negotiated by states, often within intergovernmental conferences or committees. This stage can take many years as states work towards consensus. 3. **Signature and ratification:** Once adopted, a treaty is open for states to sign, which signifies an intent to be bound, and then to ratify, which is the formal act of consent to be legally bound by the treaty. This process can be protracted and involves domestic legislative approval. 4. **Entry into force:** A treaty typically enters into force after a specified number of states have ratified it. > **Tip:** The drafting of the Convention on the Rights of the Child, for instance, took ten years. ### 1.4 Key human rights instruments and systems A vast array of international and regional instruments protect human rights. #### 1.4.1 Universal human rights instruments These include the core UN human rights treaties, such as: * The International Covenant on Civil and Political Rights (ICCPR) * The International Covenant on Economic, Social and Cultural Rights (ICESCR) * The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) * The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) * The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) * The Convention on the Rights of the Child (CRC) * The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) * The Convention on the Rights of Persons with Disabilities (CRPD) * The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) In addition to these, other significant universal treaties exist, such as the Geneva Conventions (international humanitarian law, which has strong human rights dimensions) and the Statute of Rome establishing the International Criminal Court. #### 1.4.2 Regional human rights systems * **European system:** The Council of Europe has established numerous human rights treaties, most notably the European Convention on Human Rights (ECHR) and the European Social Charter. * **African system:** The African Union has developed the African Charter on Human and Peoples' Rights and specific protocols, such as the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa. * **Inter-American system:** The Organization of American States has adopted the American Convention on Human Rights, which is known for its broad scope, including significant attention to economic, social, and cultural rights. ### 1.5 Interpretation of human rights treaties The interpretation of human rights treaties is governed by general principles of treaty interpretation found in the Vienna Convention on the Law of Treaties. Key techniques include: * **Ordinary meaning in context:** Grammatical and contextual analysis of the treaty text. * **Object and purpose:** Teleological interpretation, considering the treaty's overarching goals. For example, the ECHR is viewed as an instrument to protect individuals and uphold democratic values. * **Preparatory work (travaux préparatoires):** Historical context and negotiations surrounding the treaty's creation, though this is often a subsidiary tool. * **Effectiveness principle:** Ensuring that rights are interpreted and applied in a practical and effective manner to protect individuals. This can lead to both expansive and restrictive interpretations. * **Pro homine principle:** Prioritizing interpretations that offer the greatest protection to human dignity. * **Dynamic or evolutionary interpretation:** Adapting treaty provisions to evolving societal understandings and contemporary challenges. * **Autonomous interpretation:** Allowing international courts to give their own meaning to treaty terms, independent of national interpretations, to ensure uniformity and effectiveness. > **Example:** The European Court of Human Rights has interpreted the concept of "family" in Article 8 of the ECHR in a dynamic and autonomous way to include various family structures beyond the traditional nuclear family. ### 1.6 Limitations and derogations from human rights While many human rights are fundamental, certain limitations and temporary suspensions are permissible under specific conditions. #### 1.6.1 Restrictions on relative rights Some rights, termed "relative rights," can be subject to limitations if prescribed by law, serve a legitimate aim, and are necessary in a democratic society. This involves a three-part test: 1. **Lawfulness:** The limitation must have a basis in national law, which must be accessible, clear, and foreseeable. 2. **Legitimate aim:** The limitation must pursue a higher legal interest, such as national security, public order, or the protection of the rights of others. 3. **Necessity in a democratic society:** The measure must be proportionate, meaning it is strictly required by the circumstances and there is no less restrictive alternative. This often involves balancing the interests of the state with the rights of the individual. > **Tip:** The margin of appreciation is a concept developed by courts, particularly the European Court of Human Rights, allowing states some discretion in determining what is necessary in their specific context, especially on sensitive social and economic issues. #### 1.6.2 Derogations from rights In exceptional circumstances, such as war or public emergency, states may temporarily suspend certain rights. This is known as derogation. * **Conditions for derogation:** Derogations must be strictly required by the exigencies of the situation, be proportionate, and temporary. States must notify the relevant international body of any such derogations. * **Non-derogable rights:** Certain rights, such as the prohibition of torture, slavery, and arbitrary deprivation of life, cannot be derogated from under any circumstances. > **Example:** Article 15 of the ECHR allows for derogations in times of war or public emergency threatening the life of the nation, but not from core rights like the prohibition of torture. ### 1.7 Reservations to human rights treaties States may make reservations to a treaty, excluding the application of certain provisions. However, reservations are only permissible if they are not incompatible with the object and purpose of the treaty. > **Example:** A state might make a reservation to a provision on the right to appeal in criminal cases if its domestic law mandates that certain high-ranking officials are tried in a court of first and last instance. ### 1.8 Withdrawal from treaties States can withdraw from treaties, but this is not always permissible. Some treaties, like the ICCPR, do not contain provisions for withdrawal, meaning a state would generally need the consent of all other parties to terminate its obligations. Withdrawal does not have retroactive effect and states remain responsible for violations committed prior to withdrawal. ### 1.9 The indivisibility and interdependence of human rights Human rights are considered indivisible, interdependent, and interconnected. There is no hierarchy among them; all rights are equally important. This means that civil and political rights are as crucial as economic, social, and cultural rights, and advancements in one area can positively impact others. ### 1.10 Rights-holders and duty-bearers * **Rights-holders:** Individuals within the jurisdiction of a state are the primary holders of human rights. This includes non-citizens, though their rights may differ from citizens in certain aspects, such as political participation or the right to enter a country. * **Duty-bearers:** States are the primary duty-bearers responsible for respecting, protecting, and fulfilling human rights. In some contexts, non-state actors, particularly corporations, are increasingly recognized as having responsibilities to respect human rights, especially in relation to due diligence obligations. ### 1.11 State obligations States have a three-tiered system of obligations concerning human rights: * **Obligation to respect:** The duty to refrain from interfering with or violating human rights. This is a negative obligation. * **Obligation to protect:** The duty to take measures to prevent and protect individuals from human rights violations by third parties, including other individuals or corporations. This includes preventing incitement to violations and providing redress. * **Obligation to fulfill:** The duty to take positive steps to facilitate the full enjoyment of human rights. This involves promoting human rights through policy and providing necessary services. > **Example:** The right to vote involves the state's obligation to respect (not prevent voting), protect (from intimidation at polling stations), and fulfill (by facilitating access for people with disabilities). ### 1.12 Extraterritorial application of human rights While human rights treaties primarily apply within a state's territorial jurisdiction, there are instances where they can apply extraterritorially. This often occurs when a state exercises effective control over a territory or individuals outside its borders. > **Example:** The European Court of Human Rights has found that the ECHR can apply when Turkey exercises effective control over Northern Cyprus or when Italian naval forces intercept refugee boats and bring them back to Libya. ### 1.13 Implementation and monitoring of human rights Human rights are implemented through various mechanisms: * **Promotion:** Proactive measures, awareness campaigns, and institution building. * **Protection:** Reactive measures addressing violations through national and international complaint procedures, as well as political oversight by international bodies. * **National implementation:** Incorporating international human rights norms into domestic law and establishing national human rights institutions. * **International monitoring:** Treaty bodies established under human rights treaties review state reports and hear individual complaints. Regional courts, like the European Court of Human Rights, also play a crucial role in adjudicating alleged violations. --- # Interpretation and implementation of human rights treaties This section outlines the principles and mechanisms governing the interpretation and practical implementation of human rights treaties. ### 2.1 Interpretation of human rights treaties The interpretation of human rights treaties is governed by both classical international law rules and specific techniques developed to ensure effective protection of human dignity. #### 2.1.1 General rules of treaty interpretation The Vienna Convention on the Law of Treaties (VCLT) provides the foundational rules for treaty interpretation. * **Article 31 VCLT: Interpretation in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.** * **Ordinary meaning:** This refers to the grammatical and textual understanding of treaty provisions. * **Context:** This includes the preamble, annexes, and any agreements or instruments related to the treaty. * **Object and purpose:** This is a crucial teleological approach, focusing on the overarching goals and values the treaty aims to achieve. For human rights treaties, this often means interpreting them as instruments to protect individuals and uphold democratic values. * **Article 32 VCLT: Supplementary means of interpretation.** * Recourse to supplementary means, such as preparatory work (travaux préparatoires) and the circumstances of the treaty's conclusion, is permissible to confirm the meaning derived from Article 31 or to determine the meaning when it is ambiguous or leads to a result that is manifestly absurd or unreasonable. However, preparatory work is often less influential today due to the dynamic evolution of human rights concepts. #### 2.1.2 Specific interpretation techniques for human rights treaties Beyond the general VCLT rules, specific techniques are employed to ensure the effective realization of human rights: * **Effectiveness principle:** This principle mandates that rights must be interpreted and applied in a practical and effective manner, ensuring genuine protection for individuals. * This can lead to both expansive (extinctive) and restrictive interpretations to achieve the intended protection. * **Example:** The right to a fair trial (Article 6 ECHR) implies a right to access an independent and impartial court, and also the right to have court decisions executed. Similarly, the prohibition of torture implies a non-refoulement obligation, preventing individuals from being returned to a country where they risk torture. * **Pro homine principle (or pro persona principle):** This principle requires choosing the interpretation of rights and freedoms that offers the best possible protection for human dignity. It prioritizes the most favorable interpretation for the individual. * **Dynamic or evolutionary interpretation:** Human rights treaties are interpreted in line with the evolving standards and values of contemporary society. This approach acknowledges that societal understanding of rights and freedoms changes over time. * **Example:** Cases involving interrogation techniques that were once considered acceptable might later be deemed torture or inhuman treatment due to evolving societal norms and judicial review. * **Autonomous interpretation:** This involves treating terms within a human rights treaty as having an autonomous meaning within the treaty's framework, rather than being solely defined by national legal systems. * **Example:** The European Court of Human Rights (ECtHR) has developed its own understanding of terms like "family" (Article 8 ECHR), which may differ from national interpretations, to ensure harmonization of fundamental rights enforcement across member states. The meaning of "home" has also been interpreted broadly to include structures like dwellings on a landfill site. ### 2.2 Implementation of human rights treaties The implementation of human rights treaties involves both proactive promotion and reactive protection mechanisms. #### 2.2.1 Promotion of human rights Promotion is a preventive and proactive measure aimed at fostering future compliance with human rights standards. It involves: * **Sensitization and awareness-raising:** Educating the public and state officials about human rights. * **Standard-setting and interpretation:** Developing and clarifying human rights norms. * **Institutional building:** Adapting police and judicial systems and creating human rights institutions. #### 2.2.2 Protection against violations Protection involves responding to past human rights violations through national and international mechanisms. Key aspects include: * **Monitoring compliance:** This occurs through reporting procedures and complaint mechanisms. * **Political oversight:** Actions, often in the form of resolutions, taken by political institutions. * **Humanitarian action:** Undertaking interventions as a consequence of human rights violations. * **Enforcement:** The use of coercive measures where necessary. #### 2.2.3 Accountability for human rights violations * **State responsibility:** The primary focus is on holding states accountable for violations of human rights treaties. * **Non-state actors:** While states are the main duty-bearers, the principles of business and human rights are increasingly emphasized. * **UN Guiding Principles on Business and Human Rights (2011):** These principles outline the state's duty to protect against human rights abuses by third parties, including businesses, and the corporate responsibility to respect human rights. * **EU Directive on Corporate Due Diligence (2023):** This directive aims to require companies to conduct human rights due diligence. * **Individual criminal responsibility:** International criminal law mechanisms, such as the International Criminal Court (ICC), can prosecute individuals for grave international crimes, which often involve human rights violations. * **Example:** A French cement company and its executives were charged with complicity in crimes against humanity in Syria, demonstrating the potential for holding corporations and their leaders accountable. #### 2.2.4 Obligations arising from human rights States have a spectrum of obligations, categorized by Henry Shue: * **Obligation to respect (negative obligation):** States must refrain from infringing upon the rights of individuals. This involves not engaging in acts that violate human rights through legislative or executive actions. * **Example:** States must not torture individuals. * **Obligation to protect (positive obligation):** States must protect individuals from human rights violations by third parties. This encompasses preventing violations, preventing incitement to violations, and providing redress. * **Example:** The government must protect citizens from other individuals who might harm them, and it must also protect them from incitement to violence. The state has a duty to provide access to remedies for victims. * **Example:** The Inter-American Court of Human Rights ruled that even if an act is not directly attributable to the state, the state can be held internationally responsible if it failed to exercise due diligence to prevent the violation (Velasquez Rodriguez case). * **Obligation to fulfill (positive obligation):** States must take steps to facilitate the enjoyment of human rights, particularly economic, social, and cultural rights. This involves positive actions to promote and realize rights. * **Example:** For the right to vote, the state must not prevent citizens from voting (respect), protect them from extremists blocking access to polling stations (protect), and make accommodations for those with disabilities to vote (fulfill). #### 2.2.5 Extraterritorial application of human rights treaties While human rights treaties primarily apply within a state's territory, their application can extend beyond its borders under certain circumstances. This is often linked to the concept of "jurisdiction." * **Territorial jurisdiction:** The standard application of rights within a state's territory and territorial waters. * **Extraterritorial jurisdiction:** This can arise when a state exercises effective control over a foreign territory or exercises control over an individual outside its territory. * **Spatial model:** Effective control over a foreign territory. * **Personal model:** Control over an individual. * **Example:** The ECtHR found that the European Convention on Human Rights (ECHR) applied when Turkey exercised effective control over Northern Cyprus. * **Example:** The ECtHR ruled that the ECHR applied to an individual transferred by Turkish authorities from Nairobi airport to Turkey, as they came under Turkey's effective control at that moment. * **Example:** The ECtHR found Italy liable for extraterritorial violations of human rights when its navy intercepted boats of refugees and immediately returned them to Libya, as Italy exercised de facto and de jure jurisdiction from the moment individuals were brought aboard. The principle of non-refoulement requires access to an Italian judge to determine the legality of deportation. * **Example:** The UN Human Rights Committee has also addressed extraterritorial jurisdiction, for instance, in cases concerning climate change inaction by states and its impact on children's rights globally. The Committee has indicated that states may be responsible if their actions or omissions at a national level have foreseeable consequences for individuals outside their territory. #### 2.2.6 Reservations and derogations * **Reservations:** States may make reservations to a treaty, excluding the application of certain provisions to themselves. However, reservations are only permissible if they are not incompatible with the object and purpose of the human rights treaty. * **Example:** A reservation to a right to appeal in criminal cases, if it conflicts with the core purpose of ensuring a fair trial, would likely be impermissible. A reservation stating a state is not bound by treaty provisions that contradict Islamic law is an example of a reservation that can be problematic if too general. * **Derogations (temporary suspension of rights):** In exceptional circumstances, such as war or a public emergency, states may temporarily suspend certain rights. * **Conditions:** 1. **Lawful basis:** The derogation must be provided for by law. 2. **Legitimate aim:** It must be for a legitimate purpose, such as the welfare of the nation. 3. **Necessity in a democratic society:** The measures must be strictly required by the exigencies of the situation, proportionate, and not go beyond what is necessary to address the emergency. * **Non-derogable rights:** Certain fundamental rights, such as the prohibition of torture, slavery, and the principle of legality (no punishment without law), cannot be suspended under any circumstances. * **Example:** Article 15 of the ECHR outlines the conditions for derogation. The UN International Covenant on Civil and Political Rights (Article 4) and the American Convention on Human Rights (Article 27) also contain derogation clauses. The African Charter on Human and Peoples' Rights does not contain a derogation clause. #### 2.2.7 Limits on human rights * **Absolute rights:** These rights cannot be limited or derogated from. They set a minimum standard of protection. * **Example:** Article 3 ECHR (prohibition of torture). * **Relative rights:** These rights can be subject to limitations, provided certain conditions are met (as outlined in the three-part test for lawful limitations). #### 2.2.8 Interpretation and application of limitations (Three-part test) The ECtHR uses a three-part test to assess the lawfulness of limitations on relative rights: 1. **Prescribed by law:** The limitation must have a basis in national law, which must be accessible, clear, and foreseeable. 2. **Legitimate aim:** The limitation must pursue a legitimate objective, such as national security, public safety, or the protection of the rights and freedoms of others. 3. **Necessary in a democratic society:** This is the most rigorous part of the test, requiring the measure to be proportionate. This involves: * **Pressing social need:** The measure must address an urgent social need. * **Relevance:** The measure must be relevant to the legitimate aim. * **Proportionality:** There must be a reasonable relationship between the severity of the interference with the right and the importance of the legitimate aim. * **No less restrictive means:** The state must demonstrate that no alternative, less restrictive measures could achieve the same objective. * **Appreciation margin (margin of appreciation):** The ECtHR often grants states a margin of appreciation, particularly in complex policy areas or sensitive social issues, allowing them more leeway in deciding what is "necessary." This reflects the principle of subsidiarity, where national authorities are considered to be closer to the realities of the situation. However, this margin is not absolute and is subject to judicial scrutiny. #### 2.2.9 Termination of treaty obligations * **Denunciation/withdrawal:** States may withdraw from a human rights treaty, but this is not always possible and is subject to treaty-specific provisions and general international law. * Article 56 of the VCLT generally requires treaties to be non-terminable unless they provide for denunciation or it can be established that the parties intended to admit the possibility of denunciation. * **Example:** Hungary's withdrawal from the Statute of Rome, Burundi's withdrawal from the ICC, and Turkey's denunciation of the Istanbul Convention illustrate instances of states terminating their treaty obligations. * Withdrawal does not absolve a state of responsibility for past violations. #### 2.2.10 Interconnectedness of human rights Human rights are considered indivisible, interdependent, and interrelated. There are no watertight compartments between different categories of rights, and all human rights are of equal importance. #### 2.2.11 Rights holders and duty bearers * **Rights holders:** Typically individuals within the jurisdiction of a state. While not all rights are guaranteed to non-citizens to the same extent (e.g., voting rights), fundamental protections apply to all individuals, especially regarding physical integrity and life. * **Duty bearers:** Primarily states. However, regional organizations can also be signatories to human rights treaties. #### 2.2.12 Mechanisms for monitoring and enforcement * **International human rights courts:** Hear cases brought by individuals or states (e.g., ECtHR, Inter-American Court of Human Rights). * **International criminal tribunals/courts:** Prosecute individuals for international crimes (e.g., ICC, ad hoc tribunals). * **State responsibility vs. individual criminal responsibility:** International human rights law primarily focuses on state responsibility, while international criminal law targets individual perpetrators. --- # Accountability and obligations under human rights law This section explores who can be held accountable for human rights violations and details the comprehensive obligations states bear towards their citizens. ### 3.1 Accountability for human rights violations Accountability for human rights violations primarily lies with states. However, the scope of accountability is expanding to include non-state actors, particularly corporations. #### 3.1.1 State accountability States are the principal duty-bearers under international human rights law. They are directly responsible for ensuring that human rights are respected within their territories and by their agents. #### 3.1.2 Non-state actor accountability While states bear the primary legal obligations, non-state actors, especially corporations, are increasingly recognized as having responsibilities concerning human rights. * **Corporate responsibility:** International principles and guidelines, such as the UN Guiding Principles on Business and Human Rights, emphasize the responsibility of companies to respect human rights. This includes conducting due diligence to identify, prevent, and mitigate adverse human rights impacts. * **Legal avenues:** While holding corporations directly accountable under international human rights law can be challenging, national legal systems are developing mechanisms for civil claims against businesses for human rights abuses. An example includes legal action against a cement company for complicity in crimes against humanity. * **Individual criminal responsibility:** International criminal law, through bodies like the International Criminal Court, holds individuals accountable for the most serious international crimes, which often involve widespread human rights violations. > **Tip:** While states are the primary focus of international human rights law, understanding the evolving role and responsibilities of non-state actors, especially corporations, is crucial for a comprehensive grasp of accountability. ### 3.2 State obligations under human rights law States have a three-tiered system of obligations under human rights law, encompassing the duties to respect, protect, and fulfill. These obligations are rooted in international human rights treaties and customary international law. #### 3.2.1 The obligation to respect This is a negative obligation, meaning states must refrain from interfering with or violating human rights themselves. * **Definition:** States must not take actions that would deprive individuals of their rights. * **Examples:** * A state must not engage in torture or inhuman treatment. * A state must not arbitrarily detain individuals. * A state must not deny individuals their right to freedom of expression. #### 3.2.2 The obligation to protect This is a positive obligation requiring states to take measures to prevent human rights violations by third parties, including other individuals, groups, or corporations. * **Preventing violations by third parties:** States must enact laws and policies to prevent individuals or entities from violating the human rights of others. This includes addressing incitement to hatred or violence. * **Ensuring access to remedies:** States must provide effective remedies and redress for victims of human rights violations. This includes access to justice and a fair trial. * **The "ought to have known" principle:** If a state fails to prevent a violation that it reasonably should have foreseen, it can be held responsible. This was highlighted in the *Velasquez Rodriguez* case, where the Inter-American Court of Human Rights ruled that a state could be internationally responsible if it failed to exercise due diligence to prevent a human rights violation, even if the initial act was not directly attributable to the state. * **Addressing horizontal relationships:** This obligation extends to protecting individuals from violations occurring in relationships between private actors. #### 3.2.3 The obligation to fulfill This is a positive obligation requiring states to take proactive steps to ensure that individuals can fully enjoy their human rights. * **Promoting human rights:** States must actively promote human rights through policies, education, and awareness campaigns. * **Facilitating enjoyment:** States must take measures to enable individuals to realize their rights, especially economic, social, and cultural rights, which often require progressive realization. * **Examples:** * **Political rights:** A state must not only refrain from preventing someone from voting (respect) but also ensure access to polling stations for people with disabilities and adapt polling locations to accommodate them (fulfill). * **Economic, social, and cultural rights:** States must take steps to ensure access to education, healthcare, and adequate housing. > **Tip:** The three obligations—respect, protect, and fulfill—are interconnected and often overlap. A violation of one can easily lead to a violation of another. Understanding these distinct but complementary duties is key to grasping the full scope of state responsibility. ### 3.3 Extraterritorial application of human rights While human rights obligations are primarily territorial, they can extend beyond a state's borders under specific circumstances. #### 3.3.1 Jurisdictional reach A state's human rights obligations apply to all individuals within its jurisdiction. Jurisdiction can be established not only by territorial control but also by effective control over a foreign territory or individuals. * **Territorial jurisdiction:** This is the most common form, applying to everyone within a state's physical borders, including its territorial waters. * **Personal jurisdiction:** This arises when a state exercises effective control over an individual, regardless of their location. For instance, if a state detains and transfers an individual to its territory, it exercises jurisdiction over that person. * **Spatial jurisdiction:** This occurs when a state exercises effective control over a foreign territory. Examples include military occupation or the de facto administration of a territory. * **Examples:** * The European Court of Human Rights (ECtHR) has found that human rights obligations can apply to actions taken by a state outside its territory, such as in cases involving Turkey's control over Northern Cyprus or Italy's interception of migrant boats. * In cases involving migrant pushbacks, a state's jurisdiction can be triggered from the moment it takes individuals aboard its vessels, obligating it to adhere to principles like *non-refoulement* and grant access to judicial review. #### 3.3.2 Extraterritorial obligations and specific rights The extraterritorial application of human rights is a complex and evolving area of law. * **Climate change litigation:** Claims that states have violated children's rights by failing to take adequate climate action have been brought before human rights bodies, arguing for the protection of children in the Global South. These cases often rely on the concept of a causal link between national actions and global consequences. * **UN Human Rights Committee:** This body has considered the exercise of jurisdiction in extraterritorial contexts, stating that a state may be responsible for actions or omissions that have foreseeable negative consequences for individuals outside its territory, particularly when such actions are causally linked to national conduct. ### 3.4 Limitations and derogations from human rights While human rights are fundamental, certain limitations and temporary suspensions (derogations) are permissible under strict conditions. #### 3.4.1 Limitations on rights Some rights are inherently limited, while others can be restricted under specific circumstances. * **Absolute rights:** These rights cannot be limited under any circumstances. Examples include the prohibition of torture and inhuman or degrading treatment (e.g., Article 3 of the European Convention on Human Rights - ECHR). * **Relative rights:** These rights can be subject to limitations if certain conditions are met. * **General limitations clause (ECHR):** For a limitation to be permissible, it must satisfy a three-tiered test: 1. **Prescribed by law:** The limitation must have a legal basis, be accessible, clear, and foreseeable. This includes judicial interpretations of laws. 2. **Legitimate aim:** The limitation must pursue a legitimate objective, such as national security, public order, or the protection of the rights of others. 3. **Necessary in a democratic society:** The measure must be proportionate, meaning it is genuinely required by an urgent need and is not more restrictive than necessary to achieve the legitimate aim. There should be a reasonable balance between the public interest and the protection of fundamental rights. * **Margin of appreciation:** The ECtHR often grants states a "margin of appreciation," allowing them some discretion in determining what is necessary in a democratic society, particularly in sensitive policy areas. This principle reflects the subsidiarity principle, where national authorities are presumed to be closer to the issues at hand. * **Pro homine principle:** This principle dictates that when interpreting rights and freedoms, the interpretation most protective of human dignity should be chosen. * **Dynamic interpretation:** Rights are interpreted in light of contemporary societal developments and evolving understandings of human values. #### 3.4.2 Derogations from rights Derogations involve the temporary suspension of certain rights during public emergencies. * **Conditions for derogation:** 1. **Exceptional circumstances:** These must be actual or imminent threats to the life of the nation, such as war, epidemic, or natural disaster. Ordinary political manifestations or strikes are generally not sufficient grounds. 2. **Proportionality:** Measures taken must be strictly required by the exigencies of the situation and proportionate to the crisis. 3. **Notification:** The state must notify other parties to the treaty of the derogation. * **Non-derogable rights:** Certain fundamental rights, such as the prohibition of torture, the right to life, and the right to a fair trial, cannot be suspended under any circumstances. * **Treaty provisions:** Different treaties have varying provisions regarding derogations. For example, Article 15 of the ECHR permits derogations, while the African Charter on Human and Peoples' Rights does not contain a derogation clause. #### 3.4.3 Reservations States may enter reservations to human rights treaties, meaning they declare themselves not bound by specific provisions. * **Limitations on reservations:** Reservations are only permissible if they do not contradict the object and purpose of the treaty. General reservations that are overly broad are prohibited. * **Example:** A reservation stating that a state is not bound by a convention provision if it conflicts with its national law or religious principles might be deemed impermissible if it undermines the core purpose of the treaty. #### 3.4.4 Denunciation (Withdrawal) States may withdraw from human rights treaties under specific conditions. * **Treaty provisions:** Not all treaties allow for denunciation. The Vienna Convention on the Law of Treaties provides general principles. * **Consequences:** Denunciation does not have retroactive effect; states remain accountable for violations that occurred prior to their withdrawal. * **Examples:** States have withdrawn from various human rights treaties for reasons ranging from upholding traditional values to maintaining capital punishment. ### 3.5 Nature of human rights Human rights are characterized by several key principles: * **Indivisible, interdependent, and interconnected:** There are no strict hierarchies between different categories of human rights; all are equally important. * **Right holders:** In principle, individuals within a state's jurisdiction are the holders of human rights, regardless of their citizenship. However, certain rights, like the right to political participation (e.g., voting), may be restricted to citizens. * **Obligation bearers:** States are the primary bearers of obligations under human rights law. Regional organizations can also have treaty obligations. ### 3.6 Mechanisms for accountability Different mechanisms exist for holding actors accountable for human rights violations. * **International human rights courts:** These bodies, such as the ECtHR, can hold states accountable for violations of treaty obligations. Individuals can often bring cases directly. * **International criminal tribunals:** These tribunals, like the International Criminal Court, focus on holding individuals accountable for international crimes. * **National courts:** National legal systems are crucial for enforcing human rights and holding both states and, increasingly, non-state actors accountable through civil and criminal proceedings. --- # Limitations and derogations of human rights This section details how human rights can be subject to limitations and temporary suspensions, distinguishing between absolute and relative rights, and explaining the conditions for permissible restrictions and derogations under international human rights law. ### 4.1 Limits on human rights Human rights can be subject to limitations and derogations under specific circumstances. Not all rights are treated equally in this regard. #### 4.1.1 Absolute vs. relative rights * **Absolute rights:** These rights cannot be limited or derogated from under any circumstances. They represent a minimum core of human dignity that must always be protected. An example is the prohibition of torture. Even in times of public emergency, these rights must remain inviolate. * **Relative rights:** These rights can be subjected to limitations or restrictions if certain conditions are met. These conditions typically involve balancing the individual's right with the needs of society or the state. Examples include the right to privacy or freedom of expression. #### 4.1.2 The three-part test for permissible restrictions (ECHR) For rights that are not absolute, limitations must adhere to a strict three-part test, often referred to as the "three-part test" or "general limitations clause," particularly within the framework of the European Convention on Human Rights (ECHR). A restriction is permissible only if it satisfies all three conditions: 1. **Prescribed by law:** Any interference with a right must have a basis in national law. This law must be accessible, clear, and foreseeable, meaning individuals can understand its scope and consequences. This includes not only formal legislation but also judicial interpretations of the law. > **Tip:** The law must be accessible and predictable, allowing individuals to understand its implications and regulate their conduct accordingly. 2. **Legitimate aim:** The restriction must pursue a legitimate aim recognized by the relevant human rights instrument. Common legitimate aims include national security, public safety, prevention of disorder or crime, protection of health or morals, and the protection of the rights and freedoms of others. > **Example:** Article 10 of the ECHR (freedom of expression) can be restricted for reasons such as national security or public order. 3. **Necessary in a democratic society:** This is the most rigorous part of the test. The measure must be genuinely necessary to achieve the legitimate aim. This involves: * **Urgent need:** There must be a pressing social need for the restriction. * **Pertinence:** The restriction must be relevant to the legitimate aim. * **Proportionality:** The restriction must be proportionate to the legitimate aim pursued. This means there should be a reasonable balance between the severity of the restriction on the individual's right and the importance of the aim being served. * **Least restrictive means:** If there is an alternative measure that is less restrictive of the right but still achieves the legitimate aim, then the more restrictive measure is not considered necessary. > **Tip:** The principle of proportionality requires a careful weighing of the competing interests involved. #### 4.1.3 Margin of appreciation The European Court of Human Rights (ECtHR) often applies a "margin of appreciation." This concept acknowledges that national authorities are usually in a better position to assess the necessity of restrictions within their specific social, economic, and cultural contexts, particularly concerning complex policy choices or sensitive issues. The margin of appreciation is not unlimited and is subject to the Court's supervision. It allows for a degree of flexibility in the application of Convention rights, consistent with the principle of subsidiarity, but the Court will still ensure that the measures taken are not arbitrary or disproportionate. ### 4.2 Derogations from human rights Derogations refer to the temporary suspension of certain rights in times of public emergency. This is a more extreme measure than a simple limitation. #### 4.2.1 Conditions for derogation For a derogation to be permissible, several strict conditions must be met: 1. **Public emergency:** There must exist a "public emergency threatening the life of the nation." This is a high threshold, typically involving extraordinary circumstances such as war, invasion, serious public disorder, or natural disasters that genuinely jeopardize the existence or fundamental well-being of the nation. Ordinary crises or political instability are generally not sufficient. 2. **Notification:** The state intending to derogate from its obligations must officially notify the other contracting parties and the relevant international body (e.g., the Secretary-General of the Council of Europe for the ECHR) of the measures taken and the reasons for them. 3. **Strictly required by the exigencies of the situation:** The measures taken must be strictly necessary to address the emergency. This implies that normal legal provisions are insufficient, and the derogating measures must be directly related to the crisis. 4. **Proportionality:** The derogating measures must be proportionate to the situation. The extent of the derogation should not exceed what is absolutely necessary. 5. **Non-discrimination:** The measures must be applied without discrimination on any ground such as sex, race, religion, or political opinion. 6. **Non-derogable rights:** Certain core rights cannot be derogated from, regardless of the circumstances. These are typically absolute rights, such as the prohibition of torture, inhuman or degrading treatment or punishment, the right to life (though certain limitations may apply in specific circumstances like lawful warfare), and the prohibition of slavery and servitude. The right to a fair trial and certain fundamental legal guarantees may also be non-derogable in some contexts or have non-derogable elements. #### 4.2.2 Derogation clauses in international instruments * **European Convention on Human Rights (ECHR), Article 15:** This article outlines the conditions for derogations in times of war or other public emergency threatening the life of the nation. It explicitly states that certain articles, including those prohibiting torture (Article 3), slavery and forced labor (Article 4), and the principle of legality in criminal matters (Article 7), cannot be derogated from. * **International Covenant on Civil and Political Rights (ICCPR), Article 4:** Similar to the ECHR, Article 4 of the ICCPR allows states to derogate from some rights during public emergencies threatening the life of the nation. However, it also lists non-derogable rights, including the right to life, prohibition of torture, prohibition of slavery, prohibition of imprisonment for debt, prohibition of retroactive criminal law, and the right to recognition as a person before the law. * **American Convention on Human Rights, Article 27:** This convention also permits derogations during states of emergency but specifies non-derogable rights, including the right to life, prohibition of torture, prohibition of slavery, and the principle of non-retroactivity of law. * **African Charter on Human and Peoples' Rights:** Notably, the African Charter does not contain a general derogation clause. This means states parties to the African Charter generally cannot suspend rights, even in times of public emergency, although specific rights may be subject to limitations as provided for within their respective articles. #### 4.2.3 Reserves and reservations While limitations and derogations deal with the application of rights, reserves (or reservations) are declarations made by a state upon ratifying a treaty, aiming to exclude or modify the legal effect of certain provisions of the treaty in their application to that state. * **Permissibility:** Reservations are generally permissible if they are not incompatible with the object and purpose of the treaty. * **Prohibited Reservations:** Reservations that are too general or that contradict the fundamental principles of the human rights treaty are prohibited. For example, a reservation that attempts to allow for practices contrary to the core purpose of the treaty, such as a reservation on the prohibition of torture, would be invalid. #### 4.2.4 Denunciation (withdrawal from treaties) States may choose to withdraw from a human rights treaty altogether. This process is known as denunciation. * **Treaty provisions:** The possibility and procedure for denunciation are usually specified within the treaty itself. * **Vienna Convention on the Law of Treaties:** If a treaty does not specify a denunciation procedure, the Vienna Convention may apply, generally requiring a notice period and that the denunciation does not take effect until a certain period has passed (e.g., twelve months). * **Non-retroactivity:** Denunciation does not affect the legal obligations arising from the treaty in respect of any fact or situation which occurred during the period of the treaty's application to the state. This means a state can still be held accountable for violations that occurred before its withdrawal. > **Example:** A state withdrawing from the ECHR cannot escape accountability for human rights violations committed prior to the effective date of their withdrawal. --- ## Common mistakes to avoid - Review all topics thoroughly before exams - Pay attention to formulas and key definitions - Practice with examples provided in each section - Don't memorize without understanding the underlying concepts

| Term | Definition | |------|------------| | International Human Rights Law | A body of public international law consisting of rules designed to protect human rights on an international level. | | Hard Law | Refers to legally binding instruments such as international treaties and customary international law. | | Soft Law | Non-binding instruments like resolutions of international organizations, declarations, and guidelines, which often indicate developing norms and practices. | | International Treaties | Written agreements between states that are governed by international law, serving as primary sources of international law. | | International Customary Law | Law that is derived from the consistent practice of states, accompanied by a belief that such practice is legally required (opinio iuris). | | General Principles of Law | Fundamental legal principles recognized by civilized nations, often used to fill gaps in treaties or customary law when primary sources are insufficient. | | Jus Cogens (Peremptory Norms) | Fundamental principles of international law that are non-derogable and from which no derogation is permitted, binding on all states. | | Interpretation of Treaties | The process of determining the meaning and scope of treaty provisions, guided by rules such as those found in the Vienna Convention on the Law of Treaties. | | Teleological Interpretation | A method of treaty interpretation that focuses on the object and purpose of the treaty to guide its meaning, particularly for human rights treaties aiming to protect individuals. | | Pro Homine Principle | An interpretive principle that favors the interpretation of rights and freedoms that provides the best possible protection for human dignity. | | Dynamic/Evolutionary Interpretation | An approach to treaty interpretation that considers contemporary societal developments and evolving understandings, allowing rights to adapt over time. | | Autonomy of Interpretation | The principle that international courts or bodies can give their own autonomous meaning to terms within treaties, independent of national interpretations. | | Obligation to Respect | The negative obligation of states not to interfere with or violate the human rights of individuals, for example, by refraining from torture. | | Obligation to Protect | The positive obligation of states to protect individuals from human rights violations by third parties or from incitement to such violations. | | Obligation to Fulfill | The positive obligation of states to take steps to ensure that human rights are enjoyed by individuals, including promoting rights and providing redress. | | Extraterritorial Jurisdiction | The exercise of a state's legal authority beyond its own territory, often based on effective control over individuals or a specific area. | | Derogation | The temporary suspension of certain human rights in times of public emergency, permitted under strict conditions and notification requirements. | | Reservations to Treaties | A unilateral statement made by a state when signing, ratifying, or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state. | | Non-refoulement | A principle of international law that prohibits the return of refugees or asylum seekers to a country where they would face persecution or serious harm. | | Human Rights Due Diligence (HRDD) | The obligation for businesses to identify, prevent, mitigate, and account for how they address their actual and potential human rights impacts. |