International Human Rights Law Course Notes

Course Overview

Structure of the Course

The International Human Rights Law course is structured into the following chapters:

  1. International Human Rights Law or International Law Applied to Human Rights?
  2. The UN and Human Rights
  3. Civil and Political Rights
  4. The Regional Mechanisms

Chapter 1: International Human Rights Law or International Law Applied to Human Rights?

Statute of the International Court of Justice (ICJ)

In accordance with Article 38 § 1 of the ICJ Statute, the Court applies the following rules:

  • a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states.
  • b. International custom, as evidence of a general practice accepted as law.
  • c. The general principles of law recognized by civilized nations.
  • d. Judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for determining rules of law.

Human Rights Treaties

Types of Treaties
  1. Convention: European Convention on Human Rights (1950).
  2. Charter: African Charter on Human and People’s Rights (1981).
  3. Covenant: International Covenant on Civil and Political Rights (1966).
  4. Protocol: First Protocol to the European Convention on Human Rights (1952).

1949 Geneva Conventions

The Geneva Conventions consist of the following:

  1. First Geneva Convention: For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
  2. Second Geneva Convention: For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
  3. Third Geneva Convention: Relative to the Treatment of Prisoners of War.
  4. Fourth Geneva Convention: Relative to the Protection of Civilian Persons in Time of War.

Emergency Measures and Derogation

ECHR, Article 15(1)

This article discusses derogation in times of emergency:

  • In times of war or public emergency threatening the nation’s life, high contracting parties may take measures derogating from their obligations under the Convention as strictly required by the exigencies of the situation, provided that such measures do not conflict with their obligations under international law.

Legal Opinions from the ICJ

Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory (2004)
  • Israel contended that the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) do not apply to occupied territories, citing humanitarian law as the relevant protection instead.
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996)
  • This opinion held that protections under the ICCPR do not cease in times of war, barring certain provisions that may be derogated during a national emergency. However, the right to life is not subject to such derogation,
    thus applying to armed conflict. The maintenance of this right must align with the context of applicable laws governing hostilities.

Non-Derogable Human Rights

Non-derogable rights under human rights law include:

  • The right not to be arbitrarily deprived of life.
  • Freedom from torture.
  • Freedom from enslavement or servitude.

Reforms in the United Nations

According to the Secretary-General’s Programme for Reform (UNDoc. A/51/950, 14 July 1997), human rights are essential for:

  • Promoting peace and security.
  • Economic prosperity.
  • Social equity.

The UN has sought to enhance its human rights program and integrate it fully across its broader activities in peace and security, economic and social affairs, development cooperation, and humanitarian aid.

Regional Human Rights Instruments and Principles

ASEAN Human Rights Declaration (2012)

  • Ms. Navanethem Pillay expressed hope that regional instruments would further ensure protection of human rights through better policies and practices.

First-Generation Human Rights

  • Historical Context: Initiated in documents such as the Magna Carta (1215), Petition of Right (1628), Bill of Rights (1689), American Declaration of Independence (1766), and the French Declaration of the Rights of Man (1789).
  • Key rights include:
    • Safeguard against unlawful taxes.
    • Personal security related to justice and police.
    • Freedom of opinion and speech.
    • Equality before the law.
    • Right to property.

Second-Generation Human Rights

  • Core rights include:
    • Right to work.
    • Freedom of association.
    • Right to education.
    • Right to food.
    • Right to healthcare.

Third-Generation Human Rights

  • Expand to collective rights including:
    • Right to self-determination.
    • Right to peace.
    • Right to development.
    • Environmental law rights.
    • Rights of minorities.
    • Rights towards intergenerational equity and sustainability.

Fourth-Generation Human Rights?

  • Emerging rights include:
    • Right to equal access to digital spaces and computing.
    • Right to digital self-determination and security.
    • Right to access personal digital data.

International Covenant on Civil and Political Rights

Preamble (1966)

The Covenant emphasizes:

  • Recognition of inherent dignity and equal rights as the foundation for freedom, justice, and peace in the world.

General Comments on Human Rights

General Comment No. 24 (1994)

This document states there is no hierarchy of rights under the Covenant but emphasizes that certain rights may not be suspended, even during national emergencies, highlighting the critical importance of non-derogable rights. Examples include:

  • Protection against arbitrary arrest and detention.
  • No discrimination against minorities.
  • Some provisions are critical to uphold rule of law.

Vienna Convention on the Law of Treaties (1969)

Key articles include:

  • Article 53: Treaties conflicting with a peremptory norm of general international law (us cogens) are void.
  • Article 31: General rules of interpretation, emphasizing good faith based on the treaty's terms, context, and object.

Case Law on 'Jus Cogens'

Examples of cases reinforcing the principle of jus cogens include:

  • ICTY (1998), Prosecutor v. Furundzija: prohibition of torture.
  • ICJ (2006), Democratic Republic of Congo v. Rwanda: prohibition of genocide.

Subsidiarity Principle

As defined under EU law (Treaty on the European Union, Article 5(3)), subsidiarity ensures actions are only taken at the Union level if objectives cannot be achieved sufficiently at member states’ level. This principle is seen as structural to international human rights.

European Court of Human Rights Case: Handyside v United Kingdom (1976)

The Court emphasized:

  • State authorities have a better position to determine societal moral requirements, but their powers are not unlimited and must align with European supervision.

Reservations to Human Rights Treaties

ICJ Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of Genocide (1951)

Highlights that states should not seek individual advantages in humanitarian rights treaties, aiming instead for the collective common interest.

IACtHR Case on Reservations to the American Convention (1982)

The Advisory Opinion emphasized that these treaties protect individual rights against the state regardless of nationality, establishing obligations towards individuals.

Additional Notes on the Vienna Convention

Treaties and Reservations
  • Article 2(d): Defines a reservation.
  • Article 19: States may formulate reservations unless expressly prohibited.
  • Article 20(4): Details the procedures related to the acceptance and objection to reservations during treaty ratification.
Non-Compatible Reservations

As established, reservations that conflict with peremptory norms or the object and purpose of the treaty are invalid.