HUMR5140 Introduction to Human Rights Law
Autumn 2015
Lecture 4:
The Scope of Application of Human
Rights Treaties
Scope of application:
The key issue today
The typology of
States’ obligations
International
human rights treaties
Absolute vs. relative
rights
Immediate realisation
vs.
progressive realisation
The typology of
States’ obligations
To respect, to protect
and to fulfil (Eide)
The State should refrain
from interfering with the
enjoyment of rights
The State should protect
rights-holders against
interference of their rights
by other actors
The State should
take active steps
towards the full
realisation of the rights
Derogable rights
The prohibition
Double
The right
jeopardy?
to life?
against torture?
Rights with inherent
limitations
Rights which must be
respected at all times, and
which cannot be restricted
Rights with permissible
limitations
Rights which may be limited
Absolute vs. relative
rights
= most rights
PositiveICCPR Negative
obligations
obligations?
Immediate
Rights whose implementation
shall be improved over time
Everyone has the
right
Negative
ICESCRPositive
obligations
obligations?
Progressive
Rights which shall be
implemented in full immediately
after entry into force
States recognize
the right
Immediate realisation
vs.
progressive realisation
Examples
ICCPR, Article 7
No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or
punishment. In particular, no one shall be
subjected without his free consent to medical or
scientific experimentation.
ICCPR, Article 17
1. No one shall be subjected to arbitrary or
unlawful interference with his privacy, family,
home or correspondence, nor to unlawful
attacks on his honour and reputation.
2. Everyone has the right to the protection of
the law against such interference or attacks.
ICCPR, Article 19
1. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media of
his choice.
3. The exercise of the rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.
ICESCR, Article 6
1. The States Parties to the present Covenant recognize the
right to work, which includes the right of everyone to the
opportunity to gain his living by work which he freely
chooses or accepts, and will take appropriate steps to
safeguard this right.
2. The steps to be taken by a State Party to the present
Covenant to achieve the full realization of this right shall
include technical and vocational guidance and training
programmes, policies and techniques to achieve steady
economic, social and cultural development and full and
productive employment under conditions safeguarding
fundamental political and economic freedoms to the
individual.
ICESCR, Article 9
The States Parties to the present Covenant
recognize the right of everyone to social
security, including social insurance.
ICESCR, Article 11
1. The States Parties to the present Covenant recognize the
right of everyone to an adequate standard of living for himself
and his family, including adequate food, clothing and
housing, and to the continuous improvement of living
conditions. The States Parties will take appropriate steps to
ensure the realization of this right, recognizing to this effect
the essential importance of international co-operation based
on free consent.
2. The States Parties to the present Covenant, recognizing
the fundamental right of everyone to be free from hunger,
shall take, individually and through international co-operation,
the measures, including specific programmes, which are
needed:
(a) …
(b) …
CEDAW, Article 5
States Parties shall take all appropriate measures:
(a)To modify the social and cultural patterns of conduct of
men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either
of the sexes or on stereotyped roles for men and women;
(b)To ensure that family education includes a proper
understanding of maternity as a social function and the
recognition of the common responsibility of men and women
in the upbringing and development of their children, it being
understood that the interest of the children is the primordial
consideration in all cases.
Personal
scope of
application
Scope of
application
of human
rights
International
treaties
Material
scope of
application
human rights treaties
Temporal
scope of
application
Territorial
scope of
application
To which
subjects do
treaties apply?
Personal
scope of
application
States
Who have
obligations?
Individuals
The active
dimension
Companies
Or duties?
Who have
rights?
The passive
dimension
International
organisations
If a human rights
treaty explicitly
allows denunciation,
a State may do so
Human rights
treaties apply
at all times… …even during
armed conflicts
Objective
Temporal
scope of
application
North Korea
denounced
Silence onthe
theICCPR
issue
in August
1997 –
prevents
denunciation?
HRCinvalid
GC 26 (5)
ACHR
CRPD
CERD
CMW
CRC
CAT
Continuing
situations
Denunciation
Beginning
End
Subjective
A treaty must be
in force for the
state in question
…over territory
1
General
jurisdictional clauses
Rebuttable
2
presumption
Jurisdictional
Exception
1:
clauses
in respect
of
Intraterritorial
specific
provisions
non-application
3
Exercise of
Problem: Scope
authority and
of material
control
application
…or over an
Exceptional
individual
circumstances
Three
Exception
2:categories
of treaties
Extraterritorial
No jurisdictional
clauses
Primarily
Territory and
territorial
jurisdiction
application
Territorial
scope of
application