7L - Human Rights

Challenges

Limits on human rights

• Justifiable and reasonable reasons

• But can also abuse it

Denial of extraterritorial effect of HRs treaties

Denial of applicability of IHRL while combating terrorism/in armed conflict

• War against terrorism - terrorist can not enjoy human rights

Human Rights monitoring/protection

Human rights - procedures to protect them (e.g. treaties)

UN HRs treaties on civil & political rights, economic social & cultural rights, rights of specific groups (women, children, disabilities, migrant workers), specific topic (racial discrimination, torture, disappearances)

UN Treaty bodies (independent committees of (legal) experts)

• State reports (f.e. Art. 40 ICCPR)

• Complaints (by individuals, f.e. OP1 ICCPR; or by states, f.e. art. 41 ICCPR)

  • Optional, states have to opt-in (accept it)

  • Also states against other states

    • E.g. Israel v. Palestine; Quatar v. UAE

• Ad-hoc investigations (f.e. art. 20 CAT)

  • Inquiry procedures

• New approaches? (f.e. OPCAT)

  • Mandatory International and national body to prevent torture - new procedure

• > limited to the treaties

UN Charter based bodies (political/diplomatic)

• > Charter based procedures - no limitations, general (art. 55 & 56):

• UN HR Council

• UPR

  • Universal Periodic Review, universal coverage

• Special Procedures

  • Rapporteur, naming and shaming

ICJ?

• Is it a proper HR court?Human Rights monitoring/protection?

Human Rights monitoring/protection - Regionally

Through regional human rights courts/complimentary bodies

• America’s: Inter-American Court of Human Rights/Inter-American Commission on Human Rights

  • Commission - individual complaints

  • Has binding decisions

  • States have to opt-in

• Africa: African Court on Human and Peoples’ Rights/African Commission on Human and Peoples’ Rights

  • Similar to the Americas

• Europe: in Council of Europe à European Court of Human Rights

  • States mandatory, if you are party

• Asia?

  • No consensus

  • ASEAN - intergovernmental, not independent

  • Least developed/sophisticated system

Human Rights and Obligations

Types of human rights?

• Political, civil

• Economic, social, cultural

• Third generation - collective rights

Typology of obligations

• Negative v. positive obligation to protect human rights

  • hands off/do nothing/(cost nothing)-approach vs. hands-on/action/(resource intensive) approach

  • The state needs to act - e.g. right to education

  • The state needs to refrain from acting - e.g. prohibition of torture

• HRCtee: General Comment 31, para. 6 – 7

  • Civil and political rights both positive and negative

• Refining positive/negative obligations:

  • The obligation to

    • respect, - refrain from interfering with the enjoyment of the right

    • protect and - prevent others from interfering with the enjoyment of the right

    • fulfil human rights - adopt appropriate measures towards the full realisation of the right

Limits to Human Rights

Reservations to HR treaties

• Possible under HR treaties?

  • Do not have prohibition, generally allowed

  • When is a reservation incompatible?

  • Article 19 – 21 VCLTs

  • Examples: Women UN treaty, Saudi Arabia

Withdrawal from HRs treaties

• Possible under HR treaties?

  • Specific procedures

• See Article 54 + 56 VCLTs

• Examples

  • Russian Federation

Limits to Human Rights - emergencies

Derogations in times of national emergencies

• Art. 4 International Covenant on Civil and Political Rights (ICCPR), but what about International Covenant on Economic, Social and Cultural Rights (ICESCR)?

• In Europe see art. 15 ECHR

• Nature

  • “Exceptional and temporary” – necessity/proportionality/notification

  • No entire suspension or temporary circumvention

• Was used to fight Covid-19

• Non-derogable rights, see f.e. art. 4(2) ICCPR

Limits to Human Rights - broad use of legitimate limitations clauses

Broad use of legitimate limitations clauses in specific HRs provisions

• See f.e. art. 12(3),19(3), & 21 ICCPR

• See f.e. art. 8(2) ECHR

3 general requirements

• By law

• To protect certain interests

• Necessary (implies a proportionality assessment)

Vaguely phrased

• Gives place for abuse

Extraterritorial application of HRs 1.

Extraterritorial application of human rights means that a state’s human rights obligations can apply outside its own territory when the state exercises effective power or authority over a territory or over individuals abroad.

The key concept is jurisdiction, which in human rights law is not about the formal application of national law overseas, but about factual control.

• This can arise through effective control of an area (such as military occupation)

• or direct authority over individuals (such as arrest, detention, or use of force).

Under the ICCPR and ECHR, this understanding is well established in treaty interpretation and case law, whereas under the ICESCR extraterritorial obligations are more limited and often framed in terms of duties to respect and international cooperation rather than full territorial implementation.

Extraterritorial application of HR 2.

Types of situations

• Acts inside own territory

• Acts in areas outside national jurisdiction (extraterritoriality)

  • Detention of individuals in the high seas

  • E.g. Flotilla stopped on the high seas

• Acts of States within territory other States (extraterritoriality)

  • Legal acts consular and diplomatic officers

  • Incidental acts: arrests / abductions / killings

  • Occupation (Israeli occupied territories- US/UK in Iraq, Russia in Ukraine)

  • Acts carried out with consent of another State (US/UK in Iraq and Afghanistan after instalment of new regimes, Saudi Arabia in Yemen, Russia in Syria)

Extraterritorial application of HRs - ICCPR

ICCPR

• Article 2(1) ICCPR determines where obligations apply

• Question: does ‘and’ in Article 2(1) ICCPR mean ‘and’ or ‘or’? (cumulative conditions or alternative scenarios)?

• Territory/jurisdiction: HRCtee General Comment 31, para. 10

  • “[…] ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction.” This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. […] all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party...”

  • The word “and” is read as “or” in legal effect

• ICJ - Wall Opinion paras. 108-111 (EIL)

  • Obligation under ICCPR

  • Israel exercises effective control over the Occupied Palestinian Territory

  • Therefore, ICCPR obligations apply extraterritorially

  • Israel is bound by the Covenant in respect of persons under its authority and control, even outside its territory

  • > Treats “territory” and “jurisdiction” as alternative gateways for responsibility

Extraterritorial application of HRs - ECHR

ECHR

• Starting point: Article 1 ECHR: ‘jurisdiction’

• ECtHR - Al Skeini v. UK (EIL)(paras. 130 – 150)

  • ECtHR should not apply to Iraq, but the Court disagrees

  • Jurisdiction can be personal (‘exercise of physical power and control over person in question’)

    • But…, what is physical power over an individual?

    • Arrest you - that is clear, kill you - is that the same?

    • ECtHR: yes, in exceptional situations

    • “The exercise of physical power and control can exist even if control is exercised only momentarily, including through the use of lethal force” (paras. 136–137).

  • Jurisdiction may also entail control over an area (spatial jurisdiction: exercise of effective control over territory)

• New approach? Exceptionally in territories outside Council of Europe area: Mix model approach (personal and spatial: individuals are under authority and control of ECHR Member State exercising govt. powers in an area under its effective control)

  • High threshold

  • Military operation, fall under ECHR, but not every

Right to life 1.

Art 6 ICCPR

• Prohibition of “arbitrary” / intentional deprivation of life under IHRL

  • Prohibition of summary executions / assassinations

  • Positive and negative obligations

• Non-derogable right: what does that mean

Right to Life 2.

In short, this means that targeted killings of alleged terrorists raise the question of whether International Human Rights Law (IHRL) applies at all when the killing takes place outside a state’s territory. IHRL only applies if the person targeted is within the jurisdiction of the state, which depends on whether the state exercises effective control or authority over the individual, and sometimes whether the territorial state has consented to the operation. In situations of armed conflict, however, International Humanitarian Law (IHL) is considered lex specialis, meaning it takes priority and provides the main legal framework for assessing whether a killing is lawful. In that case, IHL is used to determine whether the killing is arbitrary under Article 6 ICCPR, rather than applying ordinary human rights standards on the use of lethal force.

• ICJ Nuclear Weapons Opinion [EIL], para. 25: Human rights are not set aside in armed conflict

• ICJ – Consequences Construction Wall OPTs [EIL], para. 106. : IHRL and IHL are complementary, not mutually exclusive.

• UN HRCtee: GC 31, para. 11:

  • “[t]he Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.”

Right to life 3.

Targeted killings of alleged terrorists:

• Under IHRL

  • Meaning of ”arbitrary”? means not strictly justified under law and necessity.

    • Legal basis

    • Necessary (Defence against imminent unlawful violence… what about f.e. to effect lawful arrest/prevent escape?)

  • Proportional?

    • Killing is unlawful if less harmful means (arrest, capture) were realistically available

  • Precaution

    • Operations must be planned and controlled to minimise risk to life

  • Investigation (see Al-Skeini v. UK, para. 161-177)

    • Any potentially unlawful killing must be subject to an effective investigation

    • Investigation must be:

      • Independent

      • Prompt

      • Capable of establishing responsibility

    • Failure to investigate = separate violation of the right to life

Right to life 4

Targeted killings of alleged terrorists:

• Under IHL (lex specialis?)

  • Meaning of ”arbitrary”?

    • Are operations part of an ‘armed conflict’? - only in cases of armed conflict

    • Is terrorist a ‘combatant’ or ‘fighter’ or a ’civilian’? - combatants are targetable

    • (Targeted) killings only allowed against ‘combatants’, ‘fighters’ or civilians ‘directly participating in hostilities’?

    • Was individual ‘hors d’combat’/surrendering? - wounded or surrending?

    • Is target a ‘military target’?

    • Does target afford military advantage (military necessity)?

    • Is attack proportional? (‘collateral damage’)

Individual complaints procedure - ICCPR

For individual complaints at the Human Rights Committee the First Optional Protocol of the ICCPR needs to be ratified

• Admissibility criteria

  • Exhaustion local remedies (art. 2 OP1-ICCPR)

  • Victim requirement (art. 2)

  • No anonymous application (art. 3)

  • No overlap with current procedures by other international/regional institutions (art. 5)

ECHR

Individual applications

All domestic remedies exhausted

Time-limit

Procedural inadmissibility

• Non-exhaustion

• Non-compliance with six-months limit

• Anonymous application

• Substantially the same

• Abuse of the right of application

• Significant disadvantage

Jurisdictional inadmissibility

• Incompatibility ratione personae: The victim requirement, the complainant needs to be a victim of the alleged violation. The alleged violation is committed by or attributable to a State party to the Convention.

• Incompatibility ratione loci: The alleged violation of the Convention to have taken place within the jurisdiction of the respondent State or in territory effectively controlled by it

• Incompatibility ratione temporis: Covers only the period after the ratification of the Convention or the Protocols thereto by the respondent State

• Incompatibility ratione materiae: An alleged violation of a right protected under the ECHR or Additional Protocols

Legitimate limitations

Justified interference of a right

• Only possible if a right has a limitation clause (e.g. art. 19(3) ICCPR)

Four criteria:

• Interference of the right

• Interference is prescribed by law

• Serving one or more legitimate aims (e.g. national security)

• Necessary in a democratic society