HUMR5140 Introduction to Human Rights Law Autumn 2011

1. HUMR5140 Introduction to Human Rights LawAutumn 2011 Lecture 9: The Scope of Application of Human Rights Treaties

2. Outline • Temporal scope (ratione temporis) • Personal scope (ratione personae) • Active dimension • Passive dimension • Territorial scope (ratione loci): Jurisdiction • Material scope (ratione materiae) • Ways to modify or exclude the application • Reservations • Derogations • Denunciations • Limitations • The application of human rights law during armed conflict

3. The temporal scope of human rights treaties

4. The easy question • A human rights treaty is “applicable” in the temporal sense as long as it is in force for the State in question • A State cannot be held responsible for violations of a treaty if the act in question occurred before the entry into force of the treaty for that State • Even if the act also violated international customary law • …or if it occurred after the State has denounced the treaty – to be discussed later • Exception: Continuing violations • Relevant also for the assessment of the 6-month rule or other time limitations

5. The personal scope of human rights treaties

6. The active dimension: Who are the duty-bearers? • States that have consented to be bound • EU may accede to the ECHR • Other actors? Not directly responsible under the treaties, source of obligations must be sought elsewhere • International organisations • Multinational corporations • Non-governmental organisations • Individuals • Also a question of attribution

7. The passive dimension: Who are the rights-holders? • All individuals within the jurisdiction • Companies? • ECHR: Yes • ICCPR/ACHR: No?

8. The Territorial scope of human rights treaties

9. The territorial scope: A question of “jurisdiction” • Three categories of treaties • General jurisdictional clauses (ECHR, ACHR, ICCPR, CMW, CRC) • Jurisdictional clauses in respect of specific provisions (CERD, CAT) • No jurisdictional clauses (ACPHR, ICESCR, CEDAW, CED, CRPD) • Also provisions pertaining to the jurisdiction of supervisory mechanisms • The jurisdiction of States vs. the jurisdiction of courts

10. Jurisdiction = power • A question of fact, not of legality • Territorial jurisdiction: Rebuttable presumption • Assanidze, Ilaşcu • Extra-territorial jurisdiction: Exceptional circumstances • Complex and contested • Mostly developed in relation to ICCPR and ECHR

11. Art. 2(1) ICCPR • ”Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

12. Art. 2(1) ICCPR • During the negotiating history, clear understanding that such wording would limit the obligations to within a Party's territory.

13. Art. 2(1) ICCPR • Lopez Burgos v. Uruguay, 1979 HRC 52 • Lopez Burgos was a dissident union member from Uruguay • He had fled across the border to Argentina where he continued his activities • Agents of Uruguay went to Argentina and kidnapped him and tortured him in a house in Buenes Aires. • Uruguay was a party to the CCPR, but Argentina was not • Does the CCPR prohibit Uruguay from conduct that is prohibited in the Covenant, even though not within its own territory? • Yes, it would be absurd for a state to be able to do something in another country that it could not do in its own territory. • No, the CCPR specifically states that for it to apply the person in question must be in both the territory and jurisdiction of a state. • Human Rights Committee, para. 12.3: • ”[I]t would be unconscionable to […] permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.

14. Art. 2(1) ICCPR • Wall Decision (Advisory Opinion), 2004 ICJ 111: • The CCPR obligations extend to ”acts done by a State in the exercise of its jurisdiction outside of its own territory.” • CCPR General Comment 31 (2004), para. 10: • “States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”

15. Art. 2(1) ICCPR • Periodic Report of the USA (2005), Annex I: • Article 2(1) of the Covenant states that "[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind." Hence, based on the plain and ordinary meaning of its text, this Article establishes that States Parties are required to ensure the rights in the Covenant only to individuals who are both within the territory of a State Party and subject to that State Party’s sovereign authority. • A further rule of interpretation contained in the Vienna Convention on the Law of Treaties states in Article 32 that: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable. • In fact, there is no ambiguity in Article 2(1) of the Covenant and its text is neither manifestly absurd nor unreasonable. Thus there is no need to resort to the travaux preparatoires of the Covenant to ascertain the terroritorial reach of the Covenant. However, resort to the travaux serves to underscore the intent of the negotiators to limit the territorial reach of obligations of States Parties to the Covenant.

16. Art. 2(1) ICCPR • Concluding Observation on USA (2006), para. 10: • The Committee notes with concern the restrictive interpretation made by the State party of its obligations under the Covenant, as a result in particular of (a) its position that the Covenant does not apply in respect of individuals under its jurisdiction but outside its territory, nor in times of war, despite the contrary opinions and established jurisprudence of the Committee and the International Court of Justice; (b) its failure to take fully into consideration its obligation under the Covenant not only to respect, but also to ensure the rights enunciated in the Covenant; and (c) its restrictive approach in relation to some substantive provisions of the Covenant, not in conformity with the interpretation made by the Committee before and after the State party’s ratification of the Covenant. (articles 2 and 40) • The State party should review its approach and interpret the Covenant in good faith in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose.

17. Art. 1 ECHR • The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

18. Art. 1 ECHR • Preparatory works: • Proposal that Art. 1 should cover “all persons residing within the territories” of States • Amended to cover “everyone within their jurisdiction” • Justification: There are “good grounds for extending the benefits of the Convention to all persons in the territories of the signatory States, even those who could not be considered as residing there in the legal sense of the word” • ECtHR in Banković: Confirms the “essentially territorial notion of jurisdiction”; extraterritoriality is exceptional

19. Art. 1 ECHR • Object and purpose: “Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory” (Issa, Andreou)

20. Current authority: Al-Skeini (2011) • Judge Bonello: • “The Court’s case law … has, so far, been bedevilled by an inability or unwillingness to establish a coherent and axiomatic regime”, and the Court has “spawned a number of ‘leading’ judgments based on a need-to-decide basis, patchwork case-law at best”. • “Principles settled in one judgment may appear more or less justifiable in tehmselves, but they then betray an awkward fit when measured against principles established in another”. • “The judicial decision-making process … has, so far, squandered more energy in attempting to reconcile the barely reconcilable than in trying to erect intellectual constructs of more universal application”.

21. Art. 1 ECHR – four categories • Jurisdiction over territory • Jurisdiction over individuals • The particular problem: “Instantaneous extraterritorial acts” • Territorial conduct with extraterritorial effects • Extraterritorial conduct with territorial effects • The key problem: The Banković case

22. Al-Skeini • Territorial principle, extraterritoriality still “exceptional” • State agent authority and control • Effective control over an area • No “legal space” limitation

23. The material scope of human rights treaties

24. Two issues • Does the relevant conduct concern a right which is covered by the treaty? • Examples: • A particular outcome is not covered by the right to fair hearing • Article 6 ECHR does not contain a right to reopen court proceedings • The right to fish in a lake is not covered by the right to property • If yes: Has there been a violation of the relevant treaty provision?

25. The scope of substantive provisions • Must be assessed for each individual provision • The relationship between admissibility and merits • Difficult question: When should an application be declared inadmissible on grounds of being manifestly ill-founded, and when should it be assessed on the merits? • Dojan and others v. Germany • Scope changes over time: Dynamic interpretation

26. Ways to modify or exclude the application

27. Reservations, derogations and limitations in a nutshell Has the State not yet ratified the treaty in question? Are there valid reservations? Is there a valid derogation? NO HUMAN RIGHT EXISTS YES ? THERE IS NO RIGHT YES? HUMAN RIGHT EXISTS, BUT DOES NOT APPLY NO? HUMAN RIGHT EXISTS & APPLIES Is there a valid restriction (limitation)?

28. 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 • Some treaties explicitly allows for reservations (ECHR, ACHR, CERD, CEDAW, CRC, CRPD, CMW) • Some treaties are silent (ACPHR, ICCPR, ICESCR, CED) • In effect: All treaties allow for reservations

29. Reservations • States don’t need particular reasons for making a reservation • But treaty bodies may express the view that the reasons are insufficient, and call on States to revoke the reservation • Cannot destroy the nature of the right • Object and purpose of the document • Objective legal test by treaty body • Heightened threshold for non-derogable rights • Acceptance of reservation by other state parties • CERD, Art. 20 (2): 2/3 of state parties can ’veto’ a reservation • HRC GC 24 (17): objections not relevant? • An invalid reservation does not invalidate the ratification • ‘Late reservations’?

30. Declarations (or understandings) • 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”

31. Reservations • Indonesia, declaration: • "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."

32. Reservations: • 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."

33. Reservations • 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.

34. Reservations: • Congo: •   The Government of the People's Republic of Congo declares that it does not consider itself bound by the provisions of article 11.

35. Derogations 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.

36. Derogations • Some rights are non-derogable • Allowed when the ”life of the nation” is threatened • ”Strictly required” • Nature of derogation: • Proportional • Consistent with other international law • Not discriminatory solely on race, colour, sex, language, religion or social origin • Must inform UNSG of extent of derogation and reasons • Consider Busyo v. Democratic Republic of the Congo, 833 HRC 2000 • Must explain derogations in periodic reports • Cannot be permanent • Requires regular re-evaluation and revoked at end of emergency

37. Derogations • Three categories of treaties: • Treaties which expressly permit derogation (with some non-derogable rights): ECHR, ACHR, ICCPR • Treaties which expressly prohibits derogation: CMW • Treaties which are silent: Most treaties. Unsettled question if derogations are permitted.

38. Denunciations • If a human rights treaty explicitly allows denunciation, a state may do so • ACHR, CERD, CAT, CRC, CMW, CRPD • Often with a time limit • Silence on the issue prevents denunciation • HRC GC 26 (5) • VCLT Article 56 • The Democratic People’s Republic of Korea (North Korea) denounced the CCPR in August 1997 – invalid

39. Limitations (or restrictions) Example: Article 12 CCPR • 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. • Everyone shall be free to leave any country, including his own. • 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. • No one shall be arbitrarily deprived of the right to enter his own country.

40. Limitations: HRC General Comment 27 • Provided by law • Limitation cannot impair essence of the right • Limitation must be the exception, not the norm • Law authorising limitation must be precise and not give unfettererd discretion to those charged with executing it. • Legitimate aim and necessary to that end • Proportional • Appropriate to achieve objective • Least intrusive means • State must give reasons that fulfill these criteria • Consistent with other rights • Especially equality and non-discrimination

41. The application of human rights law in armed conflicts

42. The problem • International humanitarian law applies during armed conflicts • International armed conflicts • Non-international armed conflicts where the non-state actor has territorial control • Non-international armed conflicts where the non-state actor has no territorial control • Human rights treaties apply at all times, in peace as well as in armed conflicts

43. The problem • Human rights law and international humanitarian law may offer different solutions • Detention • Killing of civilians • Rights and duties of an occupying force • If there is a conflict of norms, what applies?

44. Possible solutions • The lex specialis theory • The complementarity theory • The “most favorable protection of victims” theory • The human rights theory • No objectively correct solution • ICJ: Lex specialis – but with uncertain scope • Human rights bodies: Human rights

45. IF TIME ALLOWS…

46. Questions? • Unclear issues in the course that need to be addressed?