International Human Rights Law 2017/2018 UvA
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General
Two types of treaties: treaties on certain rights (for instance political or economic) and treaties on a
particular group (for instance Right of the Child, CEDAW)
Human rights foremost have to be implemented at the domestic level. UN Machinery for the
protection of Human rights is composed of different bodies:
* Expert and political bodies: not representing their States, in for instance the ICJ, treaty bodies,
Office of High Commissioner for Human Rights, or representing their State, like UN diplomats in
UNGA, UNSC
* Charter/treaty based: Human Rights Council, or linked to a treaty like the Human Rights
Committee
State reports are periodic and on top of HRC’ Universal Periodic Report (UPR: rather weak
supervisory mechanism with recommendations). Has become a lot of work for some countries.
A committee had member; a court has judges.
A committee submits a view (formally not binding); a court submits a judgment/decision
Sources HRL like in art 38 ICJ Statute. Ius cogens not included here, so called peremptory norms
are accepted by the international community (as a whole, so no derogation possible) as higher
norms that should always be respected an protected. There are more nonderogable rights than
ius cogens, but there aren’t any norms of ius cogens that are derogable/not absolute. Examples re
the prohibition on genocide, piracy, apartheid. They are part of customary law. Due to their non
derogable character, a reservation to a norm of ius cogens can never be valid. It will also be very
likely be against the object and purpose of the treaty.
Stark divide between public international law and international human rights law has lessened over
time as the development of the former has been influenced by the growth of the latter, but some
tensions remain. The strict sovereignty of IPL is largely incompatible with a strong stance in favour
of human rights.
There is a tension within human rights law, between the substance and the form; between the idea
that the rights are inherent to the human person and the fact that they only have traction
internationally to the extend they are recognised in (mainly) treaties.
> human rights has a focus on the beneficiaries of human rights (receivers): the individual.
> IHRL outlines the minimum rights (with a strong principles component)
> defining human rights law as ‘having a special character’ was seen as a solution to avoid IHRL
being absorbed by the language of general international public law
While much of IPL applies to IHRL, there are some clear differences. A traditional treaty is one that
creates rights and obligations between States, being mainly relational: States enter into treaties
with only those States with which they want to enter into such treaties. IPL traditionally does not
have a significant stake in the subject matter to which States commit. Human rights treaties
superficially borrow the idea of an agreement between States as the basis of the obligations. To
describe human rights treaties as contractual however, would be profoundly misleading. States do
not commit to them in exchange for other States doing the same; not based on reciprocity. Also,
human rights treaties are said to have a substance that is inherently of a high normative worth,
above and beyond States’ consent to be bound by them. IHRL is something greater than ‘the sum
, of each party’s will (ICJ in ‘reservations on Genocide Convention’). ICJ has said that certain
obligations may have an era ones status in that they are owned to the international community as a
whole so that by their very nature, they are the concern of all States. Obligations are primarily of an
objective character (=legal meaning, so not strictly dependent on the commitments of other States,
which would be subjective).
Human rights need to remain a high threshold for which rights it considers to be a human right,
since qualifying everything to a human right will cause the violation of a human rights being less of
a big deal.
Reservations
Defined in article 2 VCLT
Permissibility discussed in article 19 VCLT
Sometimes it is hard to distinguish a reservation from a Statement on interpretation. What matters
is whether or not it aims to modify the legal effect.
Reservations are generally permitted, also in IHRL (sign of sovereignty within IHRL), if the
reservation is not prohibited by the treaty itself, if the treaty does not specifically allow for certain
reservations this particular one does not fall under, and if the reservation is not incompatible with
the object and purpose of the treaty.
Human Rights Committee in general comment no 24: ‘ desirable tat States accept the full range of
obligations. They have however not said this is generally prohibited, also nothing in ICCPR that
generally prohibits or allows reservations, the HRC has expressed that a reservation on article 1
and 2 would be incompatible with the treaty, just as a general reservation on an article, like for
instance article 14 to a fair trial.’
> giving preference to national law is not allowed, art 27 VCLT. So you cannot say ‘anything
against our laws will not be valid’
> HRC has given itself the role to assess reservations, which is contested by many countries in
ICCPROP I
> no general right to abortion or marriage equality, but there is a right to abortion if the life of the
woman is threatened (HRC case law)
> reservation cannot be too broad or too general, ergo cannot be categorical
> reservation cannot be discriminatory, for instance exclusion of judicial procedure for certain
crimes, even with “right intentions” like in Rawle Kennedy decision (Trinidad and Tobago)
> different systems within IHRL, general comment by one treaty body cannot be applied to another
treaty.
Critiques
Practical critiques accept the idea of human rights, but demand they work better in the face of
challenges. Conceptual critiques conceive the concept of human rights as fundamentally flawed:
they regard problems of bad governance of requiring a solution that lies outside IHRL logic.
Realist critique
(Bentham) French declaration is nonsense, the rights were imaginary and to make people believe
they exist would lead to discontent and possibly in turn, insurrection (a violent uprising against
authority). The critique was very much directed at the old human rights approach which regarded
human rights as natural a given. Realists holds the State as the key actor not he international
