HUMR5140 Human Rights in International and National Law Autumn 2016

1. HUMR5140 Human Rights in International and National LawAutumn 2016 Lectures 1 and 2: Human Rights as Law and as International Law

2. Cases referred to orally in the lecture • Airey v. Ireland (1979), http://hudoc.echr.coe.int/eng?i=001-57420 • Selmouni v. France (1999), http://hudoc.echr.coe.int/eng?i=001-58287 • Christine Goodwin v. the UK (2002), http://hudoc.echr.coe.int/eng?i=001-60596 • Pretty v. the UK (2002), http://hudoc.echr.coe.int/eng?i=001-60448

3. ‘International conventions’ State Horizontal Relationship State State Vertical Relationship State State Individual

4. Regional conventions International conventions CoE ICCPR ECHR ESC Europe ICESCR CERD OSCE EU IACHR THE AmeriCAs CEDAW CAT CRC ADHR ACHPR CED CRPD AfriCa CMW Arab CHR The Arab League ASEAN efforts Asia

5. ‘International conventions’Method of interpreting treaties In good faith • Some particular features • State sovereignty vs. rights of individuals • A strong principle of effectiveness • Evolutive (dynamic) interpretation • Greater place for jurisprudence • Towards a jus commune Golder v. UK (1975), para. 29: “The Court is prepared to consider … that it should be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties.” Banković (2001), para. 55: “The Court recalls that the Convention must be interpreted in the light of the rules set out in the Vienna Convention 1969” Ordinary meaning • Objective • Subjective • Teleological In their context Object and purpose What about human rights treaties? “While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases” “The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” International law: Treaties which limit the sovereignty of Contracting States must be interpreted restrictively The Convention is a living instrument which must be interpreted in light of present-day conditions. Cross-referencing, integrated interpretation

6. ‘International conventions’Method of interpreting treaties In good faith • Some particular features • State sovereignty vs. rights of individuals • A strong principle of effectiveness • Evolutive (dynamic) interpretation • Greater place for jurisprudence Golder v. UK (1975), para. 29: “The Court is prepared to consider … that it should be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties.” Banković (2001), para. 55: “The Court recalls that the Convention must be interpreted in the light of the rules set out in the Vienna Convention 1969” Effectiveness is not consequentialism: Rawle Kennedy v. Trinidad & Tobago, 1999 HRC 845 Ordinary meaning • Objective • Subjective • Teleological • A number of cases involving the death penalty in T&T had come before the HRC. • T&T withdrew from the CCPR/OP and then re-acceded with a reservation that it did not apply to death penalty cases. • T&T warned that if HRC invalidated the reservation, it would simply withdraw altogether from the CCPR/OP. • Majority opinion: consequences by state do not effect HRC’s duty to uphold all rights for everyone. • Minority opinion: ”All or nothing is not a reasonable maxim in human rights law” In their context Object and purpose What about human rights treaties?

7. Example # 1 • ICCPR Art. 2.1: • ”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.” • Does the ICCPR apply to acts outside a State’s own territory?

8. Example # 2 • ECHR, Article 8.1: Everyone has the right to respect for ... his home and his correspondence. • Are the business premises of a company protected?

9. Example # 3 • ECHR, Article 12: • Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. • Do you have a human right to divorce? Or to polygamy? • Do you have a human right to marry a person of your own gender?

10. Summary of some particular features • Individual complaints procedures • Limited place for reservations and denunciation • Limited place for international customary law • Human rights as jus cogens • The relevance of general international law; the discussion of “self-contained regimes” • The impact of human rights law on general international law

11. Human rights exist independent of positivisation, but positivisation is to be supported Four ‘schools’ of human rightsthinking • Human rights do not exist beyond human rights law Natural school: Given Deliberativeschool: Agreedupon • Skeptical towards human rights law Protestschool: Fought for • Human rights law is like any other law, and may be good or bad Discourseschool: Talkedabout

12. If we have time… • Are human rights universal from a legal point of view? • How do we solve conflicts of norms between different human rights? • What is the most fundamental human right?

13. Contact information: Kjetil Mujezinović Larsen Professor of Law, the Norwegian Centre for Human Rights Phone: +47 22 84 20 83 E-mail: k.m.larsen@nchr.uio.no