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HUMR5140, lecture # 10
This lecture
1. Picking up the thread from lecture # 4: Scope of application of human rights treaties
2. The relationship with other areas of international law: International humanitarian law
Lecture # 4: Starting where we ended
Scope of application of human
rights treaties
Material scope of
application
Temporal scope of
application
Territorial scope of
application
Personal scope of
application
Personal scope of
application
To which subjects do
treaties apply?
Who have obligations?
Who have rights?
States Individuals CompaniesInternational organisations
DenunciationContinuing situations
Temporal scope of
applicationObjective Subjective
Human rights treaties apply at all times… …even during
armed conflicts
Beginning End
A treaty must be in force for the
state in question
Territorial scope of
applicationTerritory and jurisdiction
Primarily territorial
Exception 1: Intraterritorial
non-application
Exception 2: Extraterritorial
application
Exercise of authority and
control
…over territory
…or over an individual
Material scope of
application
Which rights are protected by a
treaty?
Civil and political rights
Economic, social and cultural rights
Treatiesapply
Material scope of
application
Temporal scope of
application
Spatial scope of
application
Personal scope of
application
Scope of application of human
rights treaties…unless there exist
circumstances that modify or exclude the application
…which is where we left off
…unless there exist circumstances that modify or exclude the application
Application of international humanitarian law
Other norm conflicts
Reservations Derogations Limitations
UN Charter Art. 103
Denunciations
Human rights treaties apply at all times…
…even during armed conflicts…
…but IHL may modify the application
Reservations, derogations and limitations in a nutshell
Has the Stateratified the
treaty?
Are therevalid
reservations?
HUMANRIGHTEXISTS
Is therea valid
limitation?
HUMAN RIGHTEXISTS, BUTDOES NOT
APPLY
HUMAN RIGHTEXISTS AND
APPLIES
THERE ISNO RIGHT
Is there avalid
derogation?
NO
NOYES
YES
NO YES
NO
YES
Reservations
Art. 2.1(d) VCLT: ”A unilateral statement … made by a State … whereby it
purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”
Art. 19-23 VCLT: A State may make a reservation unless
prohibited by the treaty
Effectively: All human rights treaties allow for
reservations
Cannot destroy the nature of the right
Heightened threshold for non-derogable
rights
Is acceptance required?
«Late reservations»
Declarations?
T.K. v. France, 1987 HRC 220
”In light of article 2 of the Constitution of the French Republic,
the French government declares that article 27 is not applicable so far as the Republic is concerned.”
Still a ”reservation”
Some treaties explicitly allow
for reservations
Some treaties are silent
ECHRACHRCERDCEDAWCRCCRPDCMW
ACPHRICCPRICESCRCED
Derogations Limitations
What’s the effect of an invalid reservation?
Reservations: Examples (ICCPR)Indonesia
"With reference to Article 1 of the International Covenant on Civil and Political Rights, the Government of the Republic of Indonesia
declares that, consistent with the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the
Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States, and the relevant
paragraph of the Vienna Declaration and Program of Action of 1993, the words "the right of self-determination" appearing in this article do not apply to a section of people within a sovereign independent state and can not be construed as authorizing or encouraging any action
which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states."
Gambia
"For financial reasons free legal assistance for accused persons is limited in our
constitution to persons charged with capital offences only. The Government of the Gambia
therefore wishes to enter a reservation in respect of article 14 (3) (d) of the Covenant in
question."
Botswana
“The Government of the Republic of Botswana considers itself bound by:
a) Article 7 of the Covenant to the extent that ‘torture, cruel, inhuman or degrading treatment’
means torture inhuman or degrading punishment or other treatment prohibited by Section 7 of the
Constitution of the Republic of Botswana.”
Congo
The Government of the People's Republic of Congo declares that it does not consider itself
bound by the provisions of article 11.
Reservations
• Your countries?
CCPR, Article 4 1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
Derogations
Three categories of
treaties
Treaties which are silent
Treaties which explicitly prohibit
derogations
Treaties which explicitly permit
derogations
ECHR
ACHR
ICCPR
CMW
Reservations Limitations
Example: Article 12 CCPR
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
Permissiblelimitations
Inherentlimitations
Limitations
Provided by law
Legitimate aim and
necessary to that aim
Consistent with other
rights
HRC General Comment no. 27
Legality ProportionalityLegitimacy
Reservations Derogations