IHRL Day 2: Intl Bill of Human Rights

what is jus cogens

fundamental and overriding principles of international law that are considered so universally binding that no state is permitted to deviate from them.

what is opinio juris

belief by a state that a specific practice is followed not out of habit or convenience, but because they are legally obligated by international law to do so.

What are the three instruments of the International Bill of Human Rights?

1. UDHR 1948 (non-binding declaration) 2. ICCPR 1966 (in force 1976) 3. ICESCR 1966 (in force 1976). Together = "constitution" of international human rights law.

Why were ICCPR and ICESCR adopted as two SEPARATE treaties instead of one?

Cold War politics. Western bloc wanted civil/political rights (immediate, enforceable). Soviet/Eastern bloc wanted economic/social rights. Neither would ratify a single treaty elevating the other side's rights. Solution: split into two covenants, adopted same day 1966.

Is the UDHR legally binding? Why does it still matter?

NOT binding — it's a declaration, adopted by UNGA resolution, never ratified by states. Still matters because: (1) many provisions became customary international law (e.g. torture prohibition = jus cogens), (2) authoritative interpretive tool for courts worldwide, (3) moral authority as foundational statement of human dignity.

ICCPR Art 2(1) — exact obligation and what "ensure" adds

"Each State Party UNDERTAKES TO RESPECT AND TO ENSURE..." Respect = negative duty, don't violate rights yourself. ENSURE = positive duty, protect individuals from violations by PRIVATE ACTORS too. Both dimensions in one article.

ICESCR Art 2(1) — exact obligation and two key phrases

"To the MAXIMUM OF ITS AVAILABLE RESOURCES, with a view to ACHIEVING PROGRESSIVELY the full realisation..." Two key phrases: (1) maximum available resources, (2) progressive realisation. Unlike ICCPR — no immediate obligation.

What is progressive realisation (ICESCR)? What is retrogression?

Progressive realisation = states must move toward full realisation of economic/social rights using maximum resources — not overnight, but consistently. Retrogression = deliberately going backwards on rights already achieved. PROHIBITED even under progressive realisation.

What is the AAAQ framework? Which covenant does it apply to?

Applies to ICESCR rights. Developed by CESCR Committee. Every right must be: AVAILABLE (sufficient quantity), ACCESSIBLE (physically + economically), ACCEPTABLE (culturally appropriate, dignified), QUALITY (good standard). Use for health, education, water, food, housing questions.

Which ICCPR article contains the derogation clause? What are the 4 conditions?

Art 4. Four conditions: (1) official proclamation of public emergency threatening life of nation, (2) strictly required by exigencies of situation, (3) consistent with other international law obligations, (4) no discrimination on race, colour, sex, language, religion or social origin.

ICCPR Art 6 — what right? Derogable or non-derogable?

RIGHT TO LIFE. NON-DEROGABLE. Cannot be suspended even in public emergency.

ICCPR Art 7 — what right? Derogable or non-derogable?

PROHIBITION ON TORTURE and cruel, inhuman or degrading treatment. NON-DEROGABLE.

ICCPR Art 8(1) and 8(2) — what rights? Derogable or non-derogable?

PROHIBITION ON SLAVERY (Art 8(1)) and PROHIBITION ON SERVITUDE (Art 8(2)). Both NON-DEROGABLE.

ICCPR Art 11 — what right? Derogable or non-derogable?

PROHIBITION ON IMPRISONMENT FOR DEBT. NON-DEROGABLE. No one can be jailed merely for failing to fulfil a contractual obligation.

ICCPR Art 15 — what right? Derogable or non-derogable?

PROHIBITION ON RETROACTIVE PUNISHMENT (nullum crimen sine lege). Cannot be punished for something that wasn't a crime when you did it. NON-DEROGABLE.

ICCPR Art 16 — what right? Derogable or non-derogable?

RIGHT TO RECOGNITION AS A PERSON BEFORE THE LAW (legal personality). NON-DEROGABLE. Every human being has the right to exist as a legal subject.

ICCPR Art 18 — what right? Derogable or non-derogable?

FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION. NON-DEROGABLE. Note: freedom of EXPRESSION (Art 19) and ASSEMBLY (Art 21) are NOT non-derogable — common exam trap.

Name all 8 non-derogable ICCPR articles from memory

Arts 6, 7, 8(1), 8(2), 11, 15, 16, 18. Memory hook: "Even in hell, eight things remain" — life, no torture, no slavery, no servitude, no debt prison, no retroactive law, legal personality, freedom of thought/religion.

COMMON TRAP: Is freedom of expression non-derogable under ICCPR?

NO. Freedom of expression is Art 19 — DEROGABLE. Only freedom of THOUGHT, CONSCIENCE AND RELIGION (Art 18) is non-derogable. States CAN suspend free speech during a genuine public emergency.

What is the monitoring body for ICCPR? For ICESCR?

ICCPR → Human Rights Committee (18 independent experts). ICESCR → Committee on Economic Social and Cultural Rights / CESCR (18 independent experts). NOTE: Human Rights Committee ≠ Human Rights Council (completely different UN body).

What enforcement mechanisms does the Human Rights Committee have?

Three mechanisms under ICCPR: (1) State reports (mandatory), (2) Individual communications — Optional Protocol 1 (states must separately ratify), (3) Inter-state complaints (rarely used).

When did the ICESCR get an individual complaints mechanism?

Optional Protocol to ICESCR — adopted 2008. Much later than ICCPR's Optional Protocol 1 (1966). Shows economic/social rights enforcement developed more slowly.

What did Vienna Declaration 1993 say about the ICCPR/ICESCR hierarchy?

Rejected any hierarchy. "All human rights are universal, indivisible, interdependent and interrelated." Civil/political rights (ICCPR) and economic/social rights (ICESCR) are of equal standing. Neither may be sacrificed for the other.