HUMAN RIGHTS by dffhrtcv3


									  HUMAN RIGHTS

International systems for the
 protection of human rights

       Professor Wolfram KARL
     Austrian Human Rights Institute


A. General Introduction
B. Procedures and Cases
C. Special Issues (torture, terrorism etc.)
D. Case Simulation (UPR, European Court
   of Human Rights)

       A. General Introduction

I. What are Human Rights? (philosophical and
II. Human rights in historical perspective
    (kinds of rights, internationalization)
III. Human rights in international law
IV. Human rights in domestic law

A.I. What are Human Rights?

   Philosophical and legal notions

           Compare rights
Art. 11 of UN Covenant I (ICESCR):
(1) The States Parties to the present
  Covenant recognize the right of everyone
  to an adequate standard of living for
  himself and his familiy, including adequate
  food, clothing and housing, and to the
  continuous improvement of living

           Compare rights
Art. 7 ECHR:
(1) No one shall be held guilty of any
  criminal offence on account of any act or
  omission which did not constitute a
  criminal offence under national or
  international law at the time when it was
  committed. ...

A. II. Human Rights in Historical

1. Philosophical roots and legal origins

2. The „three generations“ of human rights

3. Internationalizing human rights

  Internationalizing Human Rights
Before World War II (1939-45):
o Fighting slave trade, 19th century
o Human rights in armed conflict (Red
  Cross/Red Crescent 1863, first Geneva
  Convention 1864)
o Protection of minorities in Europe after
  World War I

  Internationalizing Human Rights
After World War II:
• Atlantic Charter 1941 (4 Freedoms of
  President Franklin D. Roosevelt)
• United Nations „human rights“ as a
  general notion only (1945)
• Start for codifications of human rights at
  the universal and regional levels (1948
(see Handouts A/1 to A/3)
   to save succeeding generations from the scourge of war,
   which twice in our lifetime has brought untold sorrow to
   mankind, and to reaffirm faith in fundamental human
   rights, in the dignity and worth of the human person, in
   the equal rights of men and women and of nations large
   and small, and ...
3. to establish conditions under which justice and respect
   for the obligations arising from treaties and other sources
   of international law can be maintained, and ...

         UN Charter: CHAPTER I
Art. 1: The Purposes of the United Nations are:
1. To maintain international peace and security, ...;
2. To develop friendly relations among nations
  based on respect for ...;
3. To achieve international co-operation in solving
  international problems of an economic, social,
  cultural, or humanitarian character, and in
  promoting and encouraging respect for human
  rights     and for fundamental freedoms for all
  without distinction as to race, sex, language, or
  religion; and ...

        A.III. Human Rights in
          International Law

1. Sources of IL and human rights
2. Structure and rank of human rights
3. Responsibility for human rights violations
4. Limits of human rights

See Handout A/4
A.III.1. Sources of IL and
         Human Rights

 External Forms of HR Obligations
o treaties (conventions, charters, protocols..)
o resolutions, declarations,
o customary international law
o general principles of law
o directives and regulations (EU)
o judgments and arbitral awards (ECtHR,
  ICJ, claims tribunals)
Article 38 ICJ-Statute
1. The Court, whose function is to decide in accordance with
   international law such disputes as are submitted to it, shall
a. international conventions, whether general or particular,
   establishing rules expressly recognized by the contesting
b. international custom, as evidence of a general practice
   accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and
   the teachings of the most highly qualified publicists of the
   various nations, as subsidiary means for the determination of
   rules of law.
2. This provision shall not prejudice the power of the Court to
   decide a case ex aequo et bono, if the parties agree thereto.
A.III.2. Structure and Rank of
         HR Obligations

        Quote from the Barcelona Traction Case:

Case Concerning the Barcelona Traction, Light and Power
  Company, Limited (Belgium v. Spain), Second Phase,
Judgment of 5 February1970, I.C.J. Reports 1970, p. 3, 32:

 “…an essential distinction should be drawn between the
obligations of a State towards the international community
as a whole, and those arising vis-à-vis another State in the
field of diplomatic protection. By their very nature the former
are the concern of all States. In view of the importance of
the rights involved, all states can be held to have a legal
interest in their protection; they are obligations erga
omnes.”(§ 33)

           Quote from the Barcelona Traction Case:

 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v.
   Spain), Second Phase, Judgment of 5 February1970, I.C.J. Reports 1970, p. 3, 32:

“Such obligations derive, for example, in contemporary
international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body
of general international law (Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Reports 1951, p. 23); others are
conferred by international instruments of a universal or quasi-
universal character.” (§ 34)
Human Rights as ius cogens?

     (overriding any other law)

 Vienna Convention on the Law of Treaties – VCLT 1969:

Article 53: Treaties conflicting with a peremptory norm of
general international law (jus cogens)

A treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law. For the
purposes of the present Convention, a peremptory norm of
general international law is a norm accepted and recognized
by the international community of States as a whole as a
norm from which no derogation is permitted and which can
be modified only by a subsequent norm of general
international law having the same character.

A.III.3. Reparation for Human
        Rights Violations

Article 41 ECHR – Just Satisfaction

If the Court finds that there has been a violation of
the Convention or the protocols thereto, and if the
internal law of the High Contracting Party concerned
allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the
injured party.

ILC Articles on Responsibility of States for
internationally wrongful acts,

adopted by the International Law Commission at its
fifty-third session (2001), Official Records of the
General Assembly, Fifty-sixth session, Supplement
No. 10 (A/56/10)

Article 31 ILC-Articles (Reparation)

1. The responsible State is under an obligation to make
   full reparation for the injury caused by the
   internationally wrongful act.

2. Injury includes any damage, whether material or
  moral, caused by the internationally wrongful act of a

Article 34 ILC-Articles
(Forms of reparation)

Full reparation for the injury caused by
the internationally wrongful act shall take
the form of restitution, compensation and
satisfaction, either singly or in
combination, in accordance with the
provisions of this chapter.
A.III.4. Limits of Human Rights
1. Reservations to HR Instruments
    (Art. 57 ECHR)
2. Justified interference with human rights
    (Art. 10 par. 2 ECHR
3. Derogation in times of war and public
    (Art. 15 ECHR)

Article 57 ECHR – Reservations

1. Any State may, when signing this Convention or
   when depositing its instrument of ratification, make a
   reservation in respect of any particular provision of
   the Convention to the extent that any law then in
   force in its territory is not in conformity with the
   provision. Reservations of a general character shall
   not be permitted under this article.

2. Any reservation made under this article shall contain
   a brief statement of the law concerned.
           Article 10 ECHR – Freedom of expression
1. Everyone has the right to freedom of expression. This right
   shall include freedom to hold opinions and to receive and
   impart information and ideas without interference by public
   authority ...
2. The exercise of these freedoms, since it carries with it duties
   and responsibilities, may be subject to such formalities,
   conditions, restrictions or penalties as are prescribed by law
   and are necessary in a democratic society, in the interests of
   national security, territorial integrity or public safety, for the
   prevention of disorder or crime, for the protection of health or
   morals, for the protection of the reputation or rights of others,
   for preventing the disclosure of information received in
   confidence, or for maintaining the authority and impartiality of
   the judiciary.
Article 15 ECHR – Derogation in time of emergency
1. In time of war or other public emergency threatening the life of
   the nation any High Contracting Party may take measures
   derogating from its obligations under this Convention to the
   extent strictly required by the exigencies of the situation,
   provided that such measures are not inconsistent with its other
   obligations under international law.
2. No derogation from Article 2, except in respect of deaths
   resulting from lawful acts of war, or from Articles 3, 4
   (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of
   derogation shall keep the Secretary General of the Council of
   Europe fully informed ...

  A.IV. Human Rights in Domestic

1. Incorporation of international norms
2. Subsidiary nature of international
3. Domestic institutions for the protection
4. NGOs and human rights
(see Handout A/5)

 A.V. Issues for further discussion

1. Categories of HRs in comparison
2. Only human rights or also human
3. Cultural relativism
4. Human rights and foreign policy

      Categories in Comparison
• Compare civil and political rights with
  social rights
• Question of justiciability
  (right to work? Right to a paid holiday?)

 Only rights or also human duties?
Article 29 UDHR 1948:
1. Everyone has duties to the community in which alone the
   free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone
   shall be subject only to such limitations as are
   determined by law solely for the purpose of securing due
   recognition and respect for the rights and freedoms of
   others and of meeting the just requirements of morality,
   public order and the general welfare in a democratic
3. These rights and freedoms may in no case be exercised
   contrary to the purposes and principles of the United

Cultural Relativism

 Readings for discussion

            Human Rights and
              Foreign Policy
o Despite cultural differences there is a
  legitimate interest of the international
  community to see basic human rights
  respected everywhere. To insist on this
  tenet is not per se an illegal intervention in
  the domestic affairs of another State.
o Quiet diplomacy
o Humanitarian (military) intervention
  (Kosovo 1999). Legal and/or legitimate?

To top