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Lecture notes of 6 pages for the course Public International law at UL (HC PIL 4)
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Public International Law Lecture 4The rights and obligations of the individuals
Subject of international law:
- States most original subjects; states have all rights and obligations
under public international law. They have the capacity to engage
with other subjects;
- Individuals, private individuals like us. They have also certain rights
and obligations under public international law. They have the
capacity to invoke those rights at a supranational level. They have
the capacity to be held accountable. Nowadays they also qualify as
subjects, since 1945.
International human rights law
States enjoy sovereignty, the highest power. They are not depended on
any other power in the international legal order. Suprema Protestas. States
enjoy domestic jurisdiction: the right to legislate, enforce and adjudicate
rules, primarily within their own territory. States determine within their
own territory the rights and obligations of everyone within that territory.
This is not unlimited and absolute: it is limited by rules from public
international law (treaties and custom).
After WOII: the treatment of individuals could not be left by the jurisdiction
of each individual state. The treatment of individuals became an
international concern. Art. 1 § 3 UN Charter, 55-56 UN Charter: protection
of human rights has become one of the main goals and principles of the
UN-organization. UN played a fundamental role. 1945: adoption of the
Universal Declaration of Human Rights. It is the first codification of
international human rights at an international level. This declaration is a
mixture of civil, economic and social rights. Adopted by the UNGA (non-
binding). But it has certain institutional powers, but those resolutions are
not binding. The substance of the resolution qualifies as a reflection of
customary international law. It reflect unwritten law, so formally it is not
binding but substantially the norms binds every state in the world as a
matter of custom. Because it reflects customary international law.
1966: members UN with the help of the UN-organization adopted and
concluded 2 mayor conventions: ICCPR and ICESCR. Further negotiations
for further treaties. More treaties concluded after 1966.
UNGA has the power on the basis of art. 10 – 11 – 12 UN Charter to discuss
all matters including the matters of international human rights. Also a
institutional mechanism to make sure that states implement their
obligations. In 2006 the UNGA established the Human Rights Council: a
political organ, a subsidiary body, consisting of 47 member states, which
are elected by annual bases. What does the Human Rights Council?
Advices UN and member states how to implement their obligations and to
develop human rights norms. The Human Rights Council investigate the
member states: universal periodic review (UPR). Every member of the UN
must appear before the Human Rights Council once every four years. (193
, Member States). Submitting reports about their implementation of all their
human rights obligations under treaties and customary law.
They provide recommendations to the member states. After the
recommendations the states have to show what they did with those
recommendations. It is a political body and political mechanism. But states
must be forced to protect their individuals on their territory. No
judgements, or decisions.
UN has played a fundamental role in the development and implementation
of international human rights. NGO’s have also played a fundamental role
in the development of international human rights. The Council of Europe,
established in 1949 and 47 member states. Including Russia, Ukraine and
Turkey. Not limited to the members of the EU. This was instrumental in the
establishment and conclusion of the European Convention on Human
Rights in 1950. It had an enormous impact for the development of the law
of each of the states from EU.
Since 1945 the whole body of law has developed who aimed to protect the
rights of individuals. All these states have consented to be bound by these
treaties. But what is the scope of these treaties? Material scope =
determined by the substance of the rights have been laid down in these
conventions. ICCPR & ECHR: invoke provision under this treaty will invoke
multiple provisions. Which provision will prevail?
The court needs to interpret. Treaty interpretation (week 2)
Primary rules of treaty interpretation, at. 31 VLCT, rely on a grammatical
interpretation as well as teleological interpretation: referred to the object
and purpose. By using this method courts are able to use a technique:
treaty interpretation on the base of harmony. To harmonize the object and
purpose of these treaties.
Temporality limited: it only established rights and obligations after entry
into force of this convention.
Formally limited: to the states that have actually consented to be bound
by the treaty.
ICCPR has 169 states parties (almost the entire world)
ECHR: 47 states parties, members of the Council of Europe.
Whose human rights must they protect?
47 states have committed that they observe their obligation under the
European Convention. Whose rights and to whom have they obligations?
The geographical application. The geographical scope is often specified in
the treaty itself.
Art. 2 §1 ICCPR (p.203): each state party to the convention undertakes to
respect the human rights of individuals within its territory and subject to
its jurisdiction.
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