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– Pu blic LW 215 Law nati onal Inter s Huma n Right History 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 affiliation. 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 border. 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 states; 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 declarations Why bother when it has no effect, though, on other states parties? What is the role, if any, of treaty monitoring bodies? 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 Law States’ general practice which is accepted by them as law. Enforceability? Inter-American system? ADRDM Customary International Law 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 perfectly. 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 custom. 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 character” 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 issues 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 Juris Jus Cogens: ?
"LW215 – Public International Law"