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LW215 – Public International Law


									       – Pu blic
LW 215         Law
     nati onal
     Huma n Right
 Human rights usually said to start with Universal Declaration
 of Human Rights in 1948.
 However, from the 14th century onwards in Europe, where
 territory was ceded after wars, the peace treaty would
 normally allow the inhabitants to maintain their religious
 After World War I and the break-up of the Eastern European
 empires, the peace treaties provided for a series of rights for
 members of minority groups in the newly created states.
 1948 signals a universal human rights regime.
What International Human
Rights Law is not
 It is not
   International law of armed conflict
   International criminal law
   International refugee law
 There are various different regimes and they interact, but
 they are definitely distinct.
 Nevertheless, they can apply simultaneously – eg. in time
 of armed conflict, fighters from one party to the conflict
 forcibly displace non-fighters across an international
Why are Sources of
International Law important?
 Help to identify binding rules (e.g. human rights)
 Helps to draw a clear line between what is law
 and what is not law – what is wishful thinking on
 the part of bleeding heart NGO activists who are
 not lawyers!
 NB. The UDHR 1948 is a Declaration of the
 UNGA and, as such, is not, in and of itself ,
 legally binding on states.
 Article 38 of the ICJ Statute
a) International conventions , whether general or particular,
    establishing rules expressly recognized by the contesting
b) International Custom , as evidence of general practice
    accepted as law;
c) The General Principles of law recognized by civilized nations;
d) […] Judicial decisions and the teaching of the most highly
    qualified publicists of the various nations , as subsidiary
    means for the determination of rules of law.
Treaties (VCLT, Art 2)
 “[…] an international agreement concluded
 between States in written form and governed by
 international law, whether embodied in a single
 instrument or in two or more related instruments
 and whatever its particular designation”
 Who can conclude a treaty?
 Difference between signature and ratification
Reservations to Human
Rights Treaties
 "reservation" means a unilateral statement, however
 phrased or named, made by a State, when signing, ratifying,
 accepting, approving or acceding to a treaty, whereby it
 purports to exclude or to modify the legal effect of certain
 provisions of the treaty in their application to that State;
 When can reservations take place?
 A State may, when signing, ratifying, accepting, approving or
 acceding to a treaty, formulate a reservation unless:
 (a) the reservation is prohibited by the treaty;
 (b) the treaty provides that only specified reservations, which
 do not include the reservation in question, may be made; or
 (c) in cases not falling under sub-paragraphs (a) and (b), the
 reservation is incompatible with the object and purpose of
 the treaty.
 (Art. 19 VCLT)
Reservations to a Human
Rights Treaty
 Acceptance and objection to reservations: They
 do not follow the standard rules of reservations
 to treaties included in the VCLT (Arts. 20-23).
 A reservation cannot go against the “object and
 purpose” of the treaty.
  In a multi-norm human rights convention, such as
  the ICCPR, what is “the object and purpose”?
  French Declaration re Article 27 ICCPR
Treaty Monitoring Bodies
and reservations
 According to VCLT, other states parties
 approve/ disapprove of reservations and
 Why bother when it has no effect, though, on
 other states parties?
 What is the role, if any, of treaty monitoring
Treaty Monitoring Bodies
and reservations (cont’d)
 HRC GC 24(52) on reservations
 Belilos v Switzerland (ECtHR)
 Rawle-Kennedy v T&T (admissibility 1999)
 ILC on Reservations
 Jurisdictional competence of treaty bodies
(Special Reservations
Regime) - CERD
 Article 20 (CERD)
 1. The Secretary-General of the United Nations shall receive and
 circulate to all States which are or may become Parties to this
 Convention reservations made by States at the time of ratification or
 accession. Any State which objects to the reservation shall, within a
 period of ninety days from the date of the said communication, notify
 the Secretary-General that it does not accept it.
 2. A reservation incompatible with the object and purpose of this
 Convention shall not be permitted, nor shall a reservation the effect
 of which would inhibit the operation of any of the bodies established
 by this Convention be allowed. A reservation shall be considered
 incompatible or inhibitive if at least two thirds of the States Parties to
 this Convention object to it.
Customary International
 States’ general practice which is accepted by
 them as law.
  Inter-American system? ADRDM
Customary International
 Custom is very difficult to prove, so never
 claim that something is custom unless
 you are able to PROVE it.
 Once it is established it becomes very
 difficult to change.
State Practice
 Actual Practice of States.
 Practice of “relevant States” for the particular matter
 The amount of time does not matter, it could be a small
 period of time as far as the practice is “extensive” and
 “virtually uniform”.
 “[…] Acting or agreeing to act in a certain way, does not of
 itself demonstrate anything of a juridical nature”.
 Minor inconsistencies in the practice, do not prevent the
 creation of custom.
Opinio Juris
 States must believe that they are conforming
 to what amounts to a legal obligation that is
 customary law.
 For a rule to be custom, the corresponding
 practice does not need to fit the rule
 The opinio may be deduced from the attitude
 of States.
Treaties and custom
 Relation between treaties and custom
 1) A Treaty can declare custom, crystallise
 custom or, by practice, end up incorporating
 2) The fact that a rule is custom and treaty law
 does not mean that the treaty law provision
 “supervenes” the customary law one.
Persistent Objector
 A state can be a "persistent objector ” to a rule of customary
 international law.
 The State that persistently objects is NOT BOUND by that rule of
 customary law.
 The objector has to expressly and consistently oppose the rule before it
 solidifies as custom.
 The objector can oppose a customary rule after it has solidified as such,
 but for his rejection to be accepted, it has to be recognised as such by
 the other States bound by the rule.
 The persistent objector doctrine does not apply when the rule is
 considered jus cogens .
General Principles of PIL
 General statements upon which international law is
 developed and which reflect principles accepted by
 States in their domestic legal systems.
 Not easy to identify.
 Require a cross comparison of different legal systems
 (the common law, roman law and Islamic law, etc)
 Examples: principle of consent, reciprocity, good faith.
 They give shape and coherence to a legal system
Jus Cogens 1
Article 53 of the Vienna Convention 1969:
“[…] 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
Jus Cogens 2
 Particular feature of certain rules of IL aimed at limiting States’
 international freedom of contract.
 A proposition cannot be jus cogens unless it is customary law.
 Examples: the prohibition of the use of force, of aggression, of
 genocide, torture, slavery and racial discrimination.
 Jus cogens is relevant in situations such as: a) a treaty conflicts
 with a jus cogens rule; b) in the case of a State that is a
 persistent objector; c) when a resolution by the SC authorises
 the violation of a jus cogens rule; d) a reservation to a treaty; e)
 universal jurisdiction of State’s courts.
 An erga omnes rule (obligations of a State towards the
 international community) is different to jus cogens
Case law and the teaching of the
most eminent jurists
   Do judges create law? Is human
   rights different?
   Are these two ‘sources’ of law
   really subsidiary? How does the
   international community use them?
Soft Law
 Instruments which are not law, but which have legal
 effects such as Declarations, GA resolutions, codes of
 conduct, statements.
 International Courts and states rely a lot on the weight of
 this type of instrument
 They tend to be used, mainly in relation to difficult cases
 where there is no “hard law” to be used.
 Distinguish between Resolutions by UN bodies (SC, GA
 and others)
Applying sources to
 Prohibition of torture
 Soft Law: UN Declaration on the Protection of all Persons
 from Being Subjected to Torture. (GA Res 1975).
 Treaty Law: CAT; European Convention for the Prevention
 of Torture and Inhuman or Degrading Treatment or
 Punishment; Inter-American Convention to Prevent and
 Punish Torture; African Charter
 Customary Law: Enough Practice and Enough Opinio
 Jus Cogens: ?

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