INTERNATIONAL LAW OF HUMAN RIGHTS
Prof. F. Megret | Winter 2013
Summary of Readings
SESSION 2 – THE HISTORY OF INTERNATIONAL HUMAN RIGHTS ........................................................................................... 6
Cmiel, “The recent history of human rights” 2004 ............................................................................................................. 6
Buergenthal, “The Normative and Institutional Evolution of International Human Rights” 1997 ..................................... 6
SESSION 3: THE PHILOSOPHY, POLITICS AND THEORY OF HUMAN RIGHTS ........................................................................... 7
Mégret, International Human Rights Law Theory.............................................................................................................. 7
Rorty, “Human Rights, Rationality, and Sentimentality” .................................................................................................... 8
SESSION 4: THE CRITIQUE OF RIGHTS AND CULTURAL DIVERSITY ......................................................................................... 8
Kennedy, “International Human Rights Movement: Part of the Problem?” (2002) ........................................................... 8
Zakaria & Yew, “Culture Is Destiny: A Conversation with Lee Kuan Yew” (1994) .............................................................. 8
“Human Rights: A Precious Tree and the Soil to Grow it in” Vietnamese radio, excerpts from Quan Doi Nhan Dan ....... 8
Benhabib, “The Legitimacy of Human Rights”, (2008)........................................................................................................ 8
SESSION 5: SOURCES ............................................................................................................................................................... 9
Simma & Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1988) ................... 9
Hutchinson “The Margin of Appreciation in the European Court of Human Rights” ......................................................... 9
Interpretive Tools................................................................................................................................................................ 9
SESSION 6: INTERPRETATION OF HUMAN RIGHTS TREATIES ................................................................................................. 9
Hutchinson, “The Margin of Appreciation Doctrine in the European Court of Human Rights” (2008)............................ 10
Orakhelashvili, “Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the ECtHR” (2003)
.......................................................................................................................................................................................... 10
SESSION 7: TYPES, GENERATIONS, AND HIERARCHIES OF RIGHTS ....................................................................................... 11
Engle, Universal Human Rights: A Generational History .................................................................................................. 11
“Stand up for your Rights,” The Economist ...................................................................................................................... 11
Alston, “Conjuring up New Human Rights: A Proposal for Quality Control” .................................................................... 12
SERAC and CESR v Nigeria, ACHPR 2001 (The Ogoni Case)............................................................................................... 12
African Charter on Peoples’ and Human Rights................................................................................................................ 12
SESSION 8: COLLECTIVE RIGHTS – PEOPLES AND MINORITIES ............................................................................................. 13
Wippman, “The Evolution and Implementation of Minority Rights”, (1997) ................................................................... 13
Will Kymlicka, “The Good, the Bad and the Intolerable: Minority Group Rights”, (1996) ............................................... 13
Human Rights Committee, General Comment No. 23, The Rights of Minorities, on Article 27 of the ICCPR (1994) ....... 14
Sandra Lovelace v. Canada, (1981) HRC – ICCPR .............................................................................................................. 14
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SESSION 9: THE SCOPE OF STATE OBLIGATIONS................................................................................................................... 14
Committee on ESCR, General Comment 3, The nature of States parties' obligations (1990) .......................................... 15
Jessica Lenahan (Gonzales) et al. v US, IACHR 2011 ......................................................................................................... 15
A.T. v Hungay, Committee on the Elimination of Discrimination Against Women 2003 ................................................. 15
Government of the Republic of South Africa & Ors v Grootboom & Ors (2000) Constitutional Court of South Africa .... 16
Committee on ESCR, Concluding Observations: Canada 2006 ......................................................................................... 16
SCRAC and CESR v Nigeria, African Commission on Human and Peoples’ Rights (2001) (The Ogoni Case) ..................... 17
« Des victimes de Marc Dutroux attaquent la Belgique, » Le Monde 2013 ..................................................................... 17
SESSION 10: LIMITATIONS, EXCEPTIONS AND DEROGATIONS ............................................................................................. 17
UN Economic and Social Council, The Siracusa Principles on Limitation and Derogation Provisions in the ICCPR .......... 17
Handyside v. United Kingdom ECtHR (1976)..................................................................................................................... 18
HRC – ICCPR, General Comment 29, States of Emergency (Article 4) (2001) ................................................................... 18
Ireland v. United Kingdom ECtHR (1977) .......................................................................................................................... 18
A and others v Secretary of State for the Home Department (2004-05) House of Lords ................................................. 19
SESSION 11: DRITTWRIRKUNG: DO NON-STATE ACTORS HAVE HUMAN RIGHTS OBLIGATIONS? ....................................... 19
Clapham, “Human Rights Obligations of Non-State Actors” 2005 ................................................................................... 19
SESSION 12: THE “SPECIAL CHARACTER” OF HUMAN RIGHTS AND RESERVATIONS ............................................................ 20
Mégret, “The Special Nature of Human Rights Obligations” ............................................................................................ 20
Loizidou v Turkey (Preliminary Objections) ECtHR 1995 ................................................................................................... 20
HRC – ICCPR, General Comment no 24: Issues relating to reservations 1994 .................................................................. 21
HRC – ICCPR, General Comment 26 (1997) ...................................................................................................................... 21
Effect of Reservations on the Entry into force of the IACHR, Advisory Opinion (1982) ................................................... 21
SESSION 13: THE “SPECIAL CHARACTER” II: OTHER CONSEQUENCES .................................................................................. 21
Mégret, “The Special Nature of Human Rights Obligations” continued........................................................................... 21
HRC – ICCPR General Comment n°26 on the continuity of obligations (1997)................................................................. 23
Inter-American Commission on Human Rights, Peru report (2000) ................................................................................. 23
Questions Concerning the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ 2012..................................... 23
Venezuela’s denunciation of the American Convention on Human Rights, 2013 ............................................................ 23
SESSION 14: THE TERRITORIAL SCOPE OF HUMAN RIGHTS OBLIGATIONS: DO STATES OWE HUMAN RIGHTS OBLIGATIONS
BEYOND THEIR BORDERS? .................................................................................................................................................... 24
Soering v UK ECtHR 1989 .................................................................................................................................................. 24
Loizidou v Turkey ECtHR 1995 ........................................................................................................................................... 24
Bankovic et al. v Belgium et al. Grand Chamber ECtHR 2001, (Decision on admissibility)............................................... 24
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Legal Consequences of Construction of Wall in Occupied Palestinian Territory ICJ Advisory Opinion 2004 ................... 24
Canada (Justice) v Khadr SCC 2008 ................................................................................................................................... 24
Al-Skeini v United Kingdom ECtHR 2011 ........................................................................................................................... 25
Maastricht Principles on Extraterritorial Obligations of States in Economic, Social and Cultural Rights, 2011 ............... 25
SECTION 15: INTERNATIONAL HUMAN RIGHTS LAW AND DOMESTIC LAW: PROBLEMS OF APPLICABILITY AND
INCORPORATION................................................................................................................................................................... 25
Sei Fuji v California, Supreme Court of California, 1952 ................................................................................................... 25
General Comment No. 03 on art. 2 of the ICCPR: Implementation at the national level (Art. 2)..................................... 26
Promises to keep: Implementing Canada’s HR Obligations, Report of the Standing Senate Committee on HR,
December 2001 ................................................................................................................................................................. 26
“Bangalore Principles”, concluding statement of the Judicial Colloquium 1988.............................................................. 27
British Human Rights Act 1998 ......................................................................................................................................... 27
SESSION 16: THEORY, POLITICS, PRACTICES ......................................................................................................................... 29
Neumayer, “Do International Human Rights Treaties Improve Respect for Human Right?” ........................................... 29
Merry and Stern, “The Female Inheritance Movement in Hong Kong” ........................................................................... 29
Spiro, “NGOs and Human Rights: Channels of Power” ..................................................................................................... 29
Brantner, “Human Rights and the External Relations of the European Community- An Analysis of Doctrine and
Practice” ............................................................................................................................................................................ 29
SESSION 17: REFORMING THE UN HUMAN RIGHTS SYSTEM ............................................................................................... 30
Clapham, “Creating the High Commissioner for Human Rights: The Outside Story” ....................................................... 31
Yeboah, “The Establishment of the Human Rights Council” ............................................................................................ 31
HRC Report Canada (2006) ............................................................................................................................................... 32
SESSION 18: REGIONAL HUMAN RIGHTS SYSTEMS .............................................................................................................. 32
Heyns, Padilla & Zwaak, “A schematic comparison of regional human rights systems: an update” (2006) .................... 32
“The future of the Strasbourg Court and enforcement of ECHR standards: Reflections on the Interlaken process” 2009
.......................................................................................................................................................................................... 32
Lyon, “The African Court on Human and Peoples Rights” 2006 ....................................................................................... 33
SESSION 19: LITIGATING HUMAN RIGHTS (IMMUNITIES) .................................................................................................... 33
Office of the High Commissioner for Human Rights: Procedure for complaints by individuals under the human rights
treaties .............................................................................................................................................................................. 33
ECtHR: Practical guide on admissibility ............................................................................................................................. 33
Al Adsani v United Kingdom, ECtHR 2001 ......................................................................................................................... 33
Bouzari v Islamic Republic of Iran, Ontario Court of Appeal, 2004 ................................................................................... 34
Davidson, “Remedies for Violations of the American Convention on Human Rights” (1995) ......................................... 34
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Yassin c Green Park International Inc., QCCA 2010 .......................................................................................................... 34
SESSION 20: CASE STUDY 1 – THE DEATH PENALTY.............................................................................................................. 34
Kalin, “Death is different – The death penalty and the right to a fair trial” ..................................................................... 34
Yong Vui Kong v Public Prosecutor, Singapore Court of Appeal 2010 .............................................................................. 35
Roger Judge v. Canada, Human Rights Committee (2003) ............................................................................................... 35
SESSION 21: CASE STUDY 2 – THE WEARING OF THE “VEIL” AND OTHER RELIGIOUS SYMBOLS ......................................... 36
Leyla Sahin v Turkey, ECtHR 2005 ..................................................................................................................................... 36
Ranjit Singh v France HRC 2011 ........................................................................................................................................ 36
Dahlab v Switzerland ECtHR.............................................................................................................................................. 36
Lautsi and others v Italy ECHR Grand Chamber 2011 ....................................................................................................... 37
Taylor and Bouchard, “Building the Future: A Time for Reconciliation” .......................................................................... 37
SESSION 22: CASE STUDY 3 – HIV/AIDS AND HUMAN RIGHTS ............................................................................................. 37
Report of the Secretary General to the Human Rights Council, “The protection of human rights in the context of
HIV/AIDS” .......................................................................................................................................................................... 37
Minister of Health and Others v Treatment Action Campaign and Others (No 2) Constitutional Court of South Africa
2002 .................................................................................................................................................................................. 37
Enhorn v Sweden ECtHR 2005 ........................................................................................................................................... 38
N v United Kingdom ECtHR 2008 ...................................................................................................................................... 38
SESSION 23: CROSS-CUTTING ISSUE 1 – TERRORISM AND HUMAN RIGHTS ........................................................................ 38
Report of Special Rapporteur on promotion, protection of HR and FF while countering terrorism, Ben Emmerson, HRC
2013 .................................................................................................................................................................................. 38
Report on Terrorism and Human Rights, Inter-American Commission on HR 2002 ........................................................ 39
El Masri v Former Yugoslav Republic of Macedonia, ECtHR 2012 .................................................................................... 39
A and Others v The United Kingdom, ECtHR 2009 ............................................................................................................ 39
SESSION 24: CROSS CUTTING ISSUE 2 – DETENTION, IMPRISONMENT AND HUMAN RIGHTS ............................................ 39
United Nations, Standard Minimum Rules for the Treatment of Prisoners, 1955. .......................................................... 39
OAS, Inter-American Commission on Human Rights, Country Report 2009: Peru, Chapter IX (Prison Conditions) ........ 39
Optional Protocol to CAT, UNGA Resolution A/RES/57/199, 2002 .................................................................................. 40
McLemore, “Prison and Drugs: State often denies help, then isolates in-prison users” 2009......................................... 40
Human Rights Watch, “Letter to President Vladimir Putin: Denial of HIV Treatment endangering Russian prisoners’
life,” 2008 .......................................................................................................................................................................... 40
Price v. United Kingdom, ECtHR 2001 ............................................................................................................................... 40
Keenan v. United Kingdom, ECtHR 2001 ........................................................................................................................... 40
SESSION 25: CROSS-CUTTING ISSUE 3 – POVERTY AND HUMAN RIGHTS ............................................................................ 41
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Sen, “Poverty as Capability Deprivation” .......................................................................................................................... 41
Alston, “Ships Passing in the Night: The Current State of the HR and Development Debate Seen through the Lens of
the Millenium Development Goals” ................................................................................................................................. 41
Riches, “Food Banks and Food Security: Welfare Reform, HR and Social Policy – Lessons from Canada?” .................... 42
Justiciability of ESC Rights—The Indian Experience.......................................................................................................... 42
SESSION 26: CROSS-CUTTING ISSUE 4 – MULTINATIONAL CORPORATIONS AND HUMAN RIGHTS ..................................... 42
Kiobel v. Royal Dutch Petroleum Co., Centre for Constitutional Rights ............................................................................ 42
Muchlinski, “Human Rights and Multinationals, is there a problem?” (2001) ................................................................. 43
Report of the Special Rapporteur of the Secretary General, Guiding Principles on Business and Human Rights ............ 43
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SESSION 2 – THE HISTORY OF INTERNATIONAL HUMAN RIGHTS
The international system was initially quite inhospitable to the idea of human rights promotion. What developments facilitated the rise of
human rights?
Cmiel, “The recent history of human rights” 2004

HR in different moments in history
o American revolution  focus on natural rights
o French revolution  1789 Declaration on the Rights of Man and Citizens

Debates over whether these rights apply to slaves, women, Jews
o Right of self-determination of peoples and decolonization

Colonizers disagreed that this should be characterized as a right

What rights are included in HR?
o Civil, political, economic, social, cultural, etc.  geneology and distinctions between kinds of rights used to be more
central to rights discourse

Important to examine what was NOT part of HR at given time: systemic rape was not a war crime until 1993!

“Historians of human rights can do much to further our understanding of global political discourse by not taking the term for
granted, by carefully attending to its different uses, and by locating those uses in local, political contexts”

Grand trends in modern HR history:
o 1940s: Presumption that nations can do what they want within their borders was not challenged until the 1940s with
the Nuremberg Principles, the Universal Declaration of Human Rights and the Genocide Convention
o 1950s-60s: Cold war and fights between Western and Third World countries slowed down HR movement
o 1970s: Explosion of interest in HR, rise of NGOs – Amnesty international, HR Watch, etc.
o 1990s: Expansion of what is included in HR – health rights, women’s rights, economic justice, indigenous people’s
rights

Three competing attitudes of historians to history of HR activism:
o It has consistently been getting better  author is critical of this view
o Human rights politics are paradoxical: words vs. deeds, complexity of them and internal contradictions
o Chasm between glowing words of HR and the meagre results
Buergenthal, “The Normative and Institutional Evolution of International Human Rights” 1997
Different stages in which contemporary international HR law has evolved:

STAGE ONE: THE NORMATIVE FOUNDATION – from the UN Charter to the adoption of the International Covenants on
Human Rights
o Normative consolidation of HR law
o HR provisions of Charter + UDHR + other HR instruments came to be accepted as defining basic HR obligations that
member states of the UN had accepted
o Internationalization of HR

STAGE TWO: INSTITUTION BUILDING – from the late 1960s to 1980s
o Clarification of nature/scope of HR obligations under arts 55, 56
Charter of the UN, Chapter IX: International Economic and Social Co-operation
Article 55
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly
relations among nations based on respect for the principle of equal rights and self-determination of peoples, the
United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and
development;
b. solutions of international economic, social, health, and related problems; and international cultural and
educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.
Article 56
All Members pledge themselves to take joint and separate action in co-operation with the Organization for the
achievement of the purposes set forth in Article 55.
o Growth of UN institutions: commissions, treaty-based institutions, rapporteurs, special missions, UN High
Commissioner
o Growth of NGOs in this period

STAGE THREE: IMPLEMENTATION IN THE POST COLD WAR ERA – 1980s to today
o Focus on adoption of effective measures to ensure state compliance with international obligations
o World events facilitating process: End of Cold War leading to adoption of Vienna Convention

VCLT did away with domestic/international HR distinctions, cultural relativism as a defence and made link
between democracy and HR explicit
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
o Creation of regional HR systems: Europe, North America, Africa
STAGE FOUR: INDIVIDUAL CRIMINAL RESPONSIBILITY, MINORITY RIGHTS AND COLLECTIVE HUMANITARIAN
INTERVENTION – last decade or so
o Innovations moving beyond holding governments responsible looking to individuals and other groups
SESSION 3: THE PHILOSOPHY, POLITICS AND THEORY OF HUMAN RIGHTS
Mégret, International Human Rights Law Theory

IHRL can be understood as a fusion of three ideas:
o International
o Human rights – ideological project
o Law – a tool and a project

The Theory of Rights
o The traditional view: HR are based on a strong truth or validity claim – HR exist
o The strong ontological claim about rights has come under attack  political conservations have problems with the
idea that rights belong equally to all
o Post WWII there has been a reaffirmation of rights through law
o We tend to think rights exist whether or not they are recognized by the state – HR reaches beyond positive law
o Today there is less of a concern about the ontological status of rights  they may not exist in the strong sense, but
can be justified

Or perhaps we can understand them as social constructs emerging from the need to fight oppression
o Claims about the universality of rights are both theoretical (rights are universal) and normative (rights should be
universally recognized)
o Problems arise from claims of universality  accusations of not taking diversity into account, of oversimplifying

The Theory of International Human Rights
o There have been efforts to de-Westernize and broaden our historical foundation of rights  looking for rights-talk in
other countries, other contexts (increases legitimacy)
o The development of international law and international HR law are intermingled
o The HR project is fundamentally different from that of international law

HR pierces the “sovereign veil”
o A puzzle for HR theory is why states bind themselves to HR obligations at all
o Does globalization facilitate the diffusion of HR as an ideology?
o Globalization can create resistance against the spread of HR
o HR has the ambition to be an international regulatory framework with the goal of orienting globalization in a particular
direction

The Theory of International Human Rights Law
o Integration of HR into PIL creates tension; HR wants to take useful elements from PIL, but leave other parts and to
generally play by new rules
o Sources
Statute of the ICJ, Article 38
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted
to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized
by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations
d. subject to the provisions of Article 59, judicial decisions and the teaching of the most highly
qualified publicists of the various nations, as subsidiary means for the determination f rules of law.
a. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties
agree thereto.
Increasingly, treaties are considered the “gold standard” and custom is second best
Custom can created interesting problems for HR lawyers: state practice is often terrible!

Consider that as many as 70 states practice torture

In a way HR treaties are more constitutional than contractual despite the fact that they’re voluntary

HR also focuses a lot on “soft sources” such as UNGA resolutions
Status and Nature of HR Obligations: HR obligations are different in nature and status from traditional PIL
obligations: the beneficiaries are individuals, not states; they apply domestically rather than internationally
Subjects: Traditional subjects are states, and HR accepts this to some degree, but individuals and groups are
increasingly gaining standing to bring claims before international bodies and courts
Implementation and domestic law: There is resistance to treaties being directly applicable in domestic law,
especially in dualist countries


o
o
o
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o
Enforcement: There is a perceived gap between the proclaimed intentions of HR law and the success proclaimed by
the discourse and the reality of rights on the ground. This has lead to disenchantment, but also to a search for
stronger enforcement mechanisms.

There is a tension between those who say that HR should never trump sovereignty and undermine a
fundamental premise of PIL regarding the use of force, and those who say that HR are worthless if states
can’t rise up on the occasion of a threat to a population and use force when necessary.
Rorty, “Human Rights, Rationality, and Sentimentality”

Starts with story to illustrate that those who violate rights of others don’t see those others as human but as animals, or
children, or non-males.

The Kantian project is outmoded and irrelevant. We should put aside the vestiges of the idea that humans are distinguished by
the capacity to know rather than by the capacities for friendship and intermarriage, distinguished by rigorous rationality rather
than by flexible sentimentality.

Last two centuries can be understood as period in which there occurred a rapid progress of sentiments, in which it has
become much easier for us to be moved to action by sad and sentimental stories.
SESSION 4: THE CRITIQUE OF RIGHTS AND CULTURAL DIVERSITY
Kennedy, “International Human Rights Movement: Part of the Problem?” (2002)
Some critiques of HR

HR occupies the field of emancipatory possibility  other emancipatory strategies are left aside, implicitly criticized and
distorted

HR particularizes too much
o Focus on individual blunts the articulation of community and shared life
o State becomes centre of emancipatory promise:
o Encourages conflict by making negotiation of distributive arrangements among individuals and groups less likely and
tenable

HR expresses the ideology, ethics, aesthetic sensibility and politics of Western 18th-19th century liberalism
o “ HR encourages people to seek emancipation in the vocabularies of reason rather than faith, in public rather than
private life, in law rather than politics, in politics rather than economics”

HR promises more than it can deliver

Legal regime of HR does more to produce and excuse violations than to prevent and remedy them
o HR treats symptom rather than the illness, and equates treating symptom with health

HR bureaucracy is itself part of the problem

HR promotion can be bad politics in particular contexts
o Condemnation legitimates serious world conflicts which may require more severe responses (ex military)
Zakaria & Yew, “Culture Is Destiny: A Conversation with Lee Kuan Yew” (1994)

Family as building block – individual HR not necessarily appropriate
“Human Rights: A Precious Tree and the Soil to Grow it in” Vietnamese radio, excerpts from Quan Doi Nhan Dan

“HR is by itself a strategy devised by individuals who assume the role of world leader.” It is an “authoritarian imposition of
Western countries”.
Benhabib, “The Legitimacy of Human Rights”, (2008)
Disagreements about what should count as a HR

Only negative injunctions? (Rules against murder, torture, etc...)

Limited to minimum standards of well-ordered political institutions?

There are major discrepancies between the best philosophical accounts of HR and the international law of HR
International law of HR

Global public law documents about HR have transformed international law

Becoming constituent elements of a global civil society where individuals are rights-bearers by virtue of their humanity

Growth of cosmopolitanism: belief that every individual is worthy of equal moral concern and respect superseding obligations
we may have to kin, family and country
o This makes little sense when the claims are mostly directed to nation-states
o Does this concept justify moral imperialism in the face of states across the world?

Balancing cosmopolitanism and cultural relativism: Democratic iterations
o Processes of public argument, deliberation and exchange through which universalist rights claims are re-iterated in
and modified to context of domestic order this will help legitimize HR project
o Dependant on idea of self-government
“The assumption that, in reasoning about global human rights, the relevant subjects to be considered are comprehensive worldviews
simply reduces peoples and their histories to a holistic counterfactual, which then results in the flattening out of the complex history of
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discourses and contestations within and among peoples. Far from exhibiting liberal tolerance, this approach in my mind displays liberal
ignorance.” (102)
SESSION 5: SOURCES
Simma & Alston, “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1988)

Relying solely on treaties is unsatisfying since it leaves many states untouched. A coherent and generally applicable regime is
needed. However, Simma and Alston are wary of appealing to customary international law for this.

Customary law. It is “general (or extensive), uniform, consistent and settled practice, more or less gradually joined by a sense
of legal obligation, the opinion juris” (88). Hard and solid, stood test of time.
o Usually, HR norms don’t meet these criteria. Best argument in favour of HR norms as customary law appeals to their
incorporation into many constitutions and domestic legislation (92). Violations of these strongly held basic rights are
best viewed as violations, not a different state practice (93).
o Alston and Simma are still critical of the “excessively flexible” criteria to determine which norms count.

General principles. Their approach takes the central UD and related soft law as the “authoritative interpretation” of the
obligation in arts. 55 and 56 of the UN Charter that calls on member states to achieve respect for human rights and
fundamental freedoms (100). In sorting out which rights are generally applicable (rather than just applicable to signatories of
the various treaties), Alston and Simma appeal to general principles—the other source of law in art. 38 of the Statute of the
ICJ (102). General principles are not merely speculative, but are captured in what states say about practice—these are the
“recognized” general principles.
Hutchinson “The Margin of Appreciation in the European Court of Human Rights”

Mainly European. Not mentioned in the Convention.

Commonly traced to Handyside v UK 1976: Convention mechanism is subsidiary to the national system, and so it will review
decisions rather than make a fresh decision.

Margin of appreciation is narrower or wider depending on:
o Substantial degree of consensus between states on an issue
o Nature of the right (freedom of expression has narrower margin than property rights)
o Aim pursued (national security = wide margin)

Hard to predict how it will be applied, and hard to see how it fits with the Convention.

Hutchinson considers whether the Convention should act as a floor—states cannot offer less protection than the Convention
calls for—or should be thought of as an “area of compliance”, leaving interpretation up to states.

Conclusion: “reliance on the margin of appreciation is an announcement of deference, and not a coherent jurisprudential
principle”
Interpretive Tools
Vienna Convention on the Law of Treaties. Jus cogens (peremptory norms)
Article 53. A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the
purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the
international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.

Statute of the ICJ, art 38 (sources of PIL)  see above

UN Charter arts. 55-56  see above

Travaux préparatoires

Object and purpose of statute / treaty (of whole document, not just of a provision)

Other regional treaties, jurisprudence
African [Banjul] Charter on Human and Peoples' Rights
Chapter IV -- Applicable Principles
Article 60
The Commission shall draw inspiration from international law on human and peoples' rights, particularly from the provisions of various
African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of African Unity,
the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of
human and peoples' rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United
Nations of which the parties to the present Charter are members.
Article 61
The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special
international conventions, laying down rules expressly recognized by member states of the Organization of African Unity, African
practices consistent with international norms on human and people's rights, customs generally accepted as law, general principles of
law recognized by African states as well as legal precedents and doctrine.
SESSION 6: INTERPRETATION OF HUMAN RIGHTS TREATIES
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Hutchinson, “The Margin of Appreciation Doctrine in the European Court of Human Rights” (2008)
Synopsis: The European Court of Human Rights’ (ECtHR) use of the “margin of appreciation” doctrine in order to find that States had
placed acceptable limits on rights has led to problematic results. The doctrine has been applied unevenly, and has often been used to
simply defer to States’ claims rather than conducting principled analyses of acceptable limitations on rights.
A. Introduction

The “margin of appreciation” doctrine is usually applied in relation to analyses of “reasonable limits on rights”, or derogations
under art. 15 of the ECHR. It essentially holds that given States’ primary responsibility to protect their citizens’ rights, their
greater knowledge of conditions prevalent in their country, and the need to accommodate a diversity of practices, States
should be given a “margin of appreciation” in determining what acceptable limits on rights are.

Generally, when there is significant consensus among European States on an issue, the Court will allow for a “narrower”
margin; if lack of consensus, the margin will be wider.

The concept has led to decision-making that is insufficiently supported by analysis of the Convention: the Court will often
repeat the considerations raised by the State, and simply find that in light of these and of the margin of appreciation, there is
no violation of the Convention.
B. Reassessing the margin of appreciation

Some scholars assert that the “margin of appreciation doctrine” reflects the idea that the Convention only creates the
minimum conditions States must abide by, and that the ECtHR must only ensure that these minimum conditions are
respected. Hutchison rejects this understanding: When applying the doctrine, the Court rarely explains what these minimum
requires are in a given case.

The “margin of appreciation” doctrine is better understood as a degree of deference to the State in determining which policies
are compliant with Convention rights in its given context.

Court judgments have been couched in very wide and general terms. They rarely explain why a limitation on a Convention
right is reasonable and proportionate in a given State’s context. In certain cases, they are even contradictory. For example, in
Ireland v. UK, the ECtHR held that limits to freedom of the person that were being more heavily applied to nationalists than to
loyalists were not discriminatory. The Court held that the distinction was reasonably justified, despite finding that the situation
relied upon by the UK for creating the distinction, namely the greater amount of violence on the nationalist side, was no longer
prevalent.
C. Reassessing the Doctrine

The doctrine is meant to address the problem that States face different situations, and that acceptable limits on rights are often
a product of democratic debate in a given State.

Instead of deferring to States’ appreciation, the ECtHR should instead focus the analysis of the following question: What is
acceptable in a democratic society? Allowance for national character can be addressed by examining whether, on a given
issue, most European States have reached similar conclusions or not.
Orakhelashvili, “Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the ECtHR” (2003)
Synopsis: The author criticizes the ECtHR’s interpretation of the Convention in two recent cases, Bankovic v. Belgium and 16 others
and Al-Adsani v. UK. In Bankovic, family members of victims of a NATO bombing in Serbia tried to sue the NATO States; the Court
found the petition inadmissible, holding that the applicants were not within the States’ “jurisdiction.” In Al-Adsani, the applicant was
tortured in Kuwait, and tried to sue the UK for failure to provide him with a remedy against Kuwait; the Court found that arts. 3 and 13
do not oblige a State to provide a remedy for torture committed by foreign authorities.
1. The Nature of Obligations embodied in Human Rights Treaties

Unlike other treaty obligations, obligations under HR treaties are: 1) “Objective”, meaning that they are not to be interpreted in
accordance with State interests or inter-State relations; each State undertakes similar obligations 2) “Non-reciprocal”, they do
not create bilateral obligations between States, but rather impose obligations on signatory States towards all persons
2. Applicaple Methods of Interpretation

The author canvasses the methods of interpretation contained in arts. 31 and 32 of the VCLT: a) The “plain meaning” of a
Convention obligation should be discerned in light of the Convention’s object and purpose, and b) “Relevant rules of
international law”, namely other HR treaties, are relevant to the extent that they allow for interpretation consistent with the
“special character” of HR treaties, for example their imposition of erga omnes obligations on States.
3. “Jurisdiction” of Contracting States under Art. 1 of the ECHR

The ECtHR held that the applicants did not fall within the “jurisdiction” of the respondent States as understood in art. 1 of the
Convention. The Court relied on the general meaning of jurisdiction in international law, namely that a State has “jurisdiction”
only over the people on its territory.

The ECtHR should have looked to the meaning of “jurisdiction” within the context of HR treaties. In this context, a States’
obligations are not territorially bound. “Jurisdiction” refers to whether the complainants were under the effective control of the
State, such that the violations may be held to have been caused this State. The ECtHR, in fact, ignored a lot of its own caselaw which adopted this interpretation of jurisdiction (for example, Loizidiou v. Turkey). “Jurisdiction” had always been
interpreted as meaning that an act is attributable to a State. The ECtHR failed to interpret art. 1 in light of the object of the
Convention, and of relevant rules of international law.

The Court also mentioned that the applicants could not invoke Convention rights since their home State was not a signatory at
the moment of the violation. This approach is contrary to the “non-reciprocal” nature of HR obligations; States undertake to
respect the HRs of all people.
4. Scope and Effect of the Prohibition of Torture under art. 3 of the ECHR
10


The ECtHR’s finding was contrary to the plain meaning and past interpretation of the Convention. Art. 3 and art. 13 (right to a
remedy) name rights for “everyone.” They also impose certain purely procedural obligations on States. For example, in
Assenov, the ECtHR found that even in the absence of conclusive proof of torture, Bulgaria violated art. 3 by not investigating
allegations of torture. The Convention thus may create a right to a remedy independent of the States’ involvement in torture.
The ECtHR’s finding was also contrary to the object and purpose of the Convention, and relevant rules of international law.
Both of these clearly point in the direction of the obligation to provide a remedy to victims of torture, whether or not the torture
occurred on the territory of a given State.
SESSION 7: TYPES, GENERATIONS, AND HIERARCHIES OF RIGHTS
Engle, Universal Human Rights: A Generational History
IV. The Generational Theory of Human Rights

3 waves of HR: First-generation rights are expressions of liberty; second-generation rights are expressions of equality; and
third-generation rights are expressions of solidarity
First-Generation Rights (Enlightenment)

Generally claims of the individual against state interference and to self-government: i.e., negative restrictions on state power.
They also tended to be procedural rights, determining the creation or application of substantive claims to material goods.

But this isn’t totally true: things such as right to write or speak one’s mind are assertions of the individual’s power, not just
restriction on state.

Rights discourse is problematic because of this dual nature of rights: every person’s right implies another’s corresponding
duty. Also problematic because rights are expressed as vague or ambiguous platitudes. Also the interest of the individual and
the collective are sometimes at odds.

Despite this, doesn’t mean there is no common concept of an idea that humans have inherent rights. There is some
agreement about a common core of universally recognized human rights

In sum, despite the limitations, it is possible to sketch HR as having passed through 3 historical stages, but the description
must be nuanced and qualified.
Second-Generation Rights (Industrial Revolution)

HR no longer seen as merely negative rights to freedom from state interference, but as affirmative, substantive social claims to
state resources.

To some extent, collective rights. Sees property claims as social and relative. Therefore in tension with first generation.

Besides this tension, also other problems re classifying particular rights. Are the rights of women a first-generation procedural
right, a second-generation substantive right, or a third-generation collective right? Chronologically, they belong in second
generation, but the claims were procedural ones, such as the right to vote, so theoretically, they are first generation, etc.

In short there are historical inconsistencies.
Third Generation of Rights (Post-war)

Seen as essentially collective rights.

Seek to dynamically complement the rights of the first and second generation

Doomed attempt because of the inherent tension between individual/proletarian basis of first-generation rights and the
collective/social basis of second-generation ones. Despite this, third-generation rights are said to include the right to peace,
security, democracy, and to environmentally sustainable economic development.

These rights are necessarily collective, but their enforcement could be placed in the hands of individuals and linked to
substantive material goods.

Third generation rights are usually seen as hortatory goals which guide and direct the development of the law

The three-generation analysis ignores certain crosscurrents and tensions between those rights and other evolutionary
developments not generally identified in rights discourse. As such, it can only be used, with these qualifications, as a tool to
describe contemporary reality.
Individual and Collective Rights

Generational perspective focuses on content of the right, but ignores who holds it.

A different view emerges when this latter question is asked.

Conceptions of who is entitled to claim a right have evolved—formerly individual, white male, adult; now includes non-whites,
women, etc, and collectives.

Rights discourse is a reflection of or reflected in political theory; usual generational perspective overlooks this

If second and third generations of rights are to be implemented, they require the kind of interventionist government
the first-generation rights sought to protect against.*
“Stand up for your Rights,” The Economist

Traditional focus on political rights has been diluted by interest in social and economic rights, a trend seen in the activities of
Amnesty International

Rights are good, so the more the better? “No: few rights are truly universal, and letting them multiply weakens them.”

The things touted as social and economic rights are necessities, not rights, and are political questions to settle through voting

Unlike with, i.e. arbitrary detention, it’s less clear who the victim, perpetrator, and remedy are with these so-called rights

Most reliable method to ensure governments provide these social and economic necessities is politics.
11
Alston, “Conjuring up New Human Rights: A Proposal for Quality Control”

The authoritative role of the UN General Assembly is in danger of being undermined: GA has proclaimed new rights (i.e. not in
the Universal Declaration, etc.) without explicitly acknowledging its intention of doing so and without insisting that the claims
satisfy particular criteria; there is a growing tendency on the part of UN and international bodies to proclaim new HR without
reference to the GA; this encourages the nomination of other candidates (i.e., the right to tourism, right to sleep, but also “thirdgenerational solidarity rights” including right to development, peace, healthy environment, etc).

There is a concern regarding the haphazard manner of expansion.

The article traces the manner in which new HR have emerged and proposes adoption by the UN GA and Commission on HR
of procedural reforms

With the adoption of the Universal Declaration, the international community had reached agreement on package of HR and
most member states of the UN recognized the authority of the GA to determine which claims were deemed rights.

GA’s authority is based on firm legal foundations: GA’s mandate and art. 13 of the UN Charter

But validity is also dependent on capacity to maintain credibility. In this sense, its position is precarious.

Pressure to proclaim new rights have borne fruit, but there are shortcomings to the process by which some got formal
recognition: no discussion, analysis of implications, no attempt to seek comments from governments, insufficient debate, and
so on. Examples include way the right to development and to peace were recognized.

This is in contrast with painstaking process used for the drafting of instruments that spell out rights and obligations that flow
from an accepted right. Also, earlier HR claims were ones that had matured by the time they had gotten to UN, had been
recognized in national constitutions, legislation. Claims now being asserted, however, haven’t been scrutinized in this way.

Usefulness of Substantive Requirements: the proliferation of new rights devalues the HR currency.

Author suggests criteria for allowing a given claim to qualify as an HR in international law: should reflect a fundamentally
important social value, be relevant in different value systems, etc. Concludes that application of a list of substantive
requirements is unworkable.

Usefulness of Procedural Requirements: shortcomings mentioned above, with respect to recognition of new rights, had to do
with procedures. The challenge therefore is to devise and entrench procedural safeguards to govern the proclamation of new
HR within the UN system. Author gives example of the elaborate procedures used by the ILO and ILC.

Towards an Appellation Contrôlée: We need something like the appellation contrôlée in the context of HR. Doesn’t
guarantee quality, but it affirms that it was made in prescribed manner, taking account of traditions, etc. The GA should
establish an MO to be followed when new HR proposed. Author suggests: process activated by UN organ deciding
consideration should be given to recognizing a HR; Secretary-General would do preliminary study identifying issues; it would
then be commented on; then there would be a comprehensive study; report; etc. In short, an elaborate multi-step procedure
involving discussion and analysis.
SERAC and CESR v Nigeria, ACHPR 2001 (The Ogoni Case)
Facts:

Nigeria was involved in oil production through its state company. The operations caused environmental degradation and health
problems. There was dumping of toxic substances in violation of standards as well as spills near villages

Government withheld info on the dangers of their activities. There was no consultation with community.

Security forces attacked villagers to suppress supporters of the movement in opposition to the government’s oil activities.
Merits:

Complainant said government violated right to health and to clean environment as recognized in arts. 16 & 24 of ACHPR

The articles recognize the importance of a clean and safe environment, which is linked to social and economic rights. These
impose an obligation on governments.

Art. 12 of the ICESCR requires governments to take steps for the improvement of the environment and industrial hygiene.
Compliance with arts 16 &24 includes ordering or permitting the study of the threatened environments, conducting studies on
environment and social impact, allowing communities to be heard, monitoring.

The government had a right to produce oil but it didn’t take the care required under arts 16 & 24. Actions of the security forces
exacerbated the situation.

Government also breached art 21 through its selfish oil development, repressive tactics, and the lack of benefit to the Ogoni.

Governments have a duty to protect citizens, even from the damaging acts of private parties.

“The Commission notes that in the present case, despite its obligation to protect persons against interferences in the
enjoyment of their rights, the Government of Nigeria facilitated the destruction of the Ogoniland. Contrary to its Charter
obligations and despite such internationally established principles, the Nigerian Government has given the green light to
private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogonis. By any measure of
standards, its practice falls short of the minimum conduct expected of governments, and therefore, is in violation of Article 21
of the African Charter.”
African Charter on Peoples’ and Human Rights
Article 22
1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in
the equal enjoyment of the common heritage of mankind.
2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.
12
Article 23
1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations
implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations
between States.
2. For the purpose of strengthening peace, solidarity and friendly relations, States parties to the present Charter shall ensure that: (a)
any individual enjoying the right of asylum under 12 of the present Charter shall not engage in subversive activities against his country
of origin or any other State party to the present Charter; (b) their territories shall not be used as bases for subversive or terrorist
activities against the people of any other State party to the present Charter.
Article 24
All peoples shall have the right to a general satisfactory environment favorable to their development.
SESSION 8: COLLECTIVE RIGHTS – PEOPLES AND MINORITIES
Wippman, “The Evolution and Implementation of Minority Rights”, (1997)
A Brief History of Minority Rights in the Modern Era – The history of minority rights in the 20th wasn’t linear

The League of Nations Approach: Post WWI, nationalism was at the centre of the international agenda. The prevailing logic
of nationalism held that the boundaries of nation and state should be coincident, but this wasn’t always attainable. So, the
phenomenon of national minorities continued. At Versailles, leaders worried that national minorities might destabilize
the international system, so they insisted on minority protection rights. Minority rights were protected by the League of
Nations through treaty arrangements with affected states that combined political oversight by the League Council with rights to
refer certain issues to adjudication by the PCIJ. Also, minorities were given the right to petition the League of Nations.
Petitions went to Minorities Committees which sometimes negotiated with governments on behalf of affected minorities.
o This system was flawed for at least 2 reasons:

It applied only a very narrow and state-specific set of rights to a small number of states; and

The terms of the minorities’ treaties satisfied no one.
o Ultimately, the system failed.

Post War Approach: The UN took a new approach. Instead of a set of special country-specific protections for minorities, they
used a general protection system focused on individual rights. It was argued that by protecting everyone’s individual rights,
all would be okay. Collective rights were largely seen as an affront to liberalism. This approach is reflected in the Charter and
the UDHR, which make no reference to minority rights. This shift in orientation wasn’t complete, as concern for minorities is
reflected in several international treaties, but generally only as a secondary concern. Ex: Art. 27, ICCPR is about minority
protection, but emphasizes individual rather than collective rights.

Contemporary Approach (1997): Recently, following the dissolution of the USSR and former Yugoslavia, people began to
question the value of giving short shrift to collective rights. Declarations, resolutions, expert reports and treaties designed to
strengthen protection of minority rights have emerged.
o Elements of the new approach:

Assimilation as a legitimate state policy explicitly rejected.

Pluralism has been affirmatively embraced.

New minorities instruments all provide for positive measures to supplement the well-established norm of
non-discrimination

Ex: obligations on states not just to protect but promote ethnic, cultural, linguistic, and religious
identities of national minorities.

A nascent willingness to move beyond recognition of cultural and linguistic rights and to insist that only
enhanced rights of political participation for minorities can adequately protect their interests and avoid the
occasional slide from discrimination to inter-ethnic hostility to organized violence.

Conclusion: The common elements of the minority rights instruments of the last few years recall aspects recall aspects of the
League of Nations approach to minority rights. Once again, the rights at issue are framed as individual rights, but have clear
collective rights overtones. In practice the intended general application of new minority rights instruments has sharply limited
their substantive and geographic reach. Many states, though strongly supportive of the idea of minority rights, disagree on
the form they should take. This means that the more generally applicable a minority rights instrument is intended to be, and
the stronger the wording of its protections, the less it is likely to contain by way of specifically enforceable obligations.
Will Kymlicka, “The Good, the Bad and the Intolerable: Minority Group Rights”, (1996)

Minorities are increasingly demanding various forms of recognition and protection, often in the language of ‘group rights.’
Many see this as a new and dangerous threat to international consensus on group rights. They’re wrong!

Often, group rights supplement and strengthen HRs by responding to potential injustices that traditional rights doctrine can’t
address. This is true of protections of ‘good’ group rights. Striking an appropriate balance between suppressing unjust group
practices and tolerating some unjust group practices is one of the most difficult challenges for liberal democracies.

K looks at the relationship between individual and group rights in the context of claims of North American aboriginals. Useful
example, because they’ve been at the fore of the movement toward recognizing group rights at the international level (see:
Universal Declaration on Indigenous Rights)

2 kinds of group rights:
o Internal restrictions: the claims of a group vs its own members; Raise the spectre of oppressive requirements (i.e.:
13



discrimination based on religion, sex, &c). Problem arises when a group uses government power to restrict the liberty
of its members. Measures of this sort are almost always unjust, as they disagree with a basic tenet of liberal
democracy: that whoever exercises political power within a community must respect the civil and political rights of its
members.
o External protections: the claims of a group vs the larger society. This is essentially about inter-group relations.
Generally, these protections are consistent with liberal democracy. They can be seen as putting minority communities
and the larger society on a more equal footing by reducing the vulnerability of the former to the latter.
Liberals’ attitudes toward imposing liberalism have changed. They’re increasingly wary of using force to compel foreign states
to obey liberal principles. This wasn’t the case during the era of colonization when liberalism was used to prop up the idea of
the ‘White Man’s Burden.’ However, liberals have become less reluctant to impose liberalism on indigenous minorities. This,
says K, is contradictory.
As the most enduring forms of liberalization are those that result from internal reform, liberals outside of ‘illiberal’ groups
should support liberals within.
K seems to think that liberals are best off pushing the development of international HRs protection mechanisms. For reasons
not well developed in this article, indigenous peoples have expressed a willingness to abide by international declarations of
rights and to answer to international tribunals about complaints of rights violations within their communities. This, in contrast to
their general unwillingness to abide by decisions of the Supreme Court (US).
Human Rights Committee, General Comment No. 23, The Rights of Minorities, on Article 27 of the ICCPR (1994)
Article 27, ICCPR
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right,
in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their
own language.

Art. 27 ICCPR establishes a right which is conferred on individuals belonging to minority groups and which is distinct from,
and additional to, all other rights which, as individuals in common with everyone else, they’re entitled to enjoy under the
ICCPR.

The ICCPR distinguishes between the right to self-determination and the rights protected under art. 27. The former is
addressed in Part I, ICCPR. Art. 27 relates to rights of individuals and falls under Part III.

While the enjoyment of art. 27 rights doesn’t prejudice sovereignty/territorial integrity, it may be closely associated with
territory and use of resources (especially indigenous minority communities).

Art. 27 should be distinguished from arts. 2.1 and 26. 2.1 accords rights owed to all. So does art. 26. Those protected by art.
27 belong to a group and share in a common culture, religion or language. Art. 27 applies to all individuals on a state party’s
territory. It confers rights on persons belonging to minorities which ‘exist’ in a State Party.

The right of individual members of a linguistic minority to use their language among themselves, in public/private, is distinct
from other language rights protected under the ICCPR (i.e.: art. 19 protection of freedom of expression, which is available to
all persons, whether or not their minorities).

Though art. 27 is negatively expressed, it recognizes the existence of a ‘right,’ and requires that it not be denied. Positive
measures of protection are required not only against state interference with the right but also against interference from other
persons.

Though art. 27 rights are individual rights, they depend on the ability of the minority group to maintain its culture, language, or
religion. Accordingly, positive measures by States may be needed to protect the identity of a minority and the rights of its
members to enjoy their culture, language, etc.

Art. 27 rights shouldn’t be confused with other personal rights conferred on one and all under the ICCPR.
Sandra Lovelace v. Canada, (1981) HRC – ICCPR

L, a Maliseet Indian, lived on reserve until she married a non-Indian man. Marriage ended and Ms. Lovelace returned to
reserve. But, thanks to the Indian Act, which stated that an Indian woman who married a non-Indian man loses her Indian
status which also means a loss of access to federal programs for Indians in education, housing and social assistance, as well
as losing the right to own a home or live on a reserve, etc., L had lost her legal right to live on reserve, and couldn’t buy house
on reserve because the Band Council gave purchasing priority to Band members.

L submitted an application to the HRC, claiming violations of her rights under arts 2(1), 3, 23(1) and (4), 26 and 27 ICCPR.

Though L lost her status before the ICCPR entered into force in Canada, the HRC found, that the effects of having no legal
right to live on reserve and the resulting cultural deprivation persisted after entry into force.

Art. 27 establishes that states can’t deny minority groups the right to enjoy their own culture. The Committee determined that
people born and raised on reserve, who maintain ties and want to maintain ties to the community, are part of that community
(minority group) within the meaning of art. 27.

Therefore, L was found to be a Maliseet Indian. HRC also found that L’s right to enjoy her culture was interfered with because
there are no communities outside of the reserve that share the same language and culture. Finally, the Committee decided
that denying L the right to live on reserve was neither reasonable nor necessary to preserve the group's identity. Therefore,
stripping her of Indian status breached her Article 27 rights and was a violation of the ICCPR.
SESSION 9: THE SCOPE OF STATE OBLIGATIONS
What are the main obligations of states in terms of human rights?
14
What is the difference between respecting and protecting human rights?
What is the standard of obligation for economic and social rights?
Committee on ESCR, General Comment 3, The nature of States parties' obligations (1990)

The covenant describes general nature of legal obligations undertaken by States, includes obligations of conduct and
obligations of result (i.e. see art. 2(1)).

According to art. 2(1) deliberate steps should be taken immediately to satisfy obligations

An assessment of whether State has discharged its minimum obligation should take State’s resources into account

Resources includes those available from other States through cooperation (see arts. 11, 15, 22, 23)

Art. 23 identifies the “furnishing of technical assistance” as a means for international action for achievement of rights

Realization of economic, cultural and social rights is the obligation of all States
Jessica Lenahan (Gonzales) et al. v US, IACHR 2011

Claims state failed to act with due diligence to protect daughters from domestic violence, failed to undertake reasonable
measure to protect life (Art. 1 of American Declaration), right to special protection as girl-children (Art. VII)

“The international community has consistently referenced the due diligence standard as a way of understanding what State’s
human rights obligations mean in practice when it comes to violence perpetrated against women of varying ages and in
different contexts, including domestic violence” (para 125)

International and regional human rights bodies have also applied the due diligence principle to individual cases of domestic
violence. The Inter-American Commission, for its part, established in the case of Maria Da Penha Maia Fernandes v. Brazil
that the obligation of States to act with the due diligence necessary to investigate and sanction human rights
violations applies to cases of domestic violence (para 131)

Conclusions
o State failed in its duty to protect girls by not exercising due diligence
o Failure to protect constitutes form of discrimination under Art. 2 of American Declaration
Article II, American Declaration of the Rights and Duties of Man
All persons are equal before the law and have the rights and duties established in this Declaration, without distinction
as to race, sex, language, creed or any other factor.
o Especially problematic because there is history of failing to enforce protection orders, which disproportionately affects
racialized women
A.T. v Hungay, Committee on the Elimination of Discrimination Against Women 2003

AT alleges Hungary’s violation of articles 2(a), (b), (e), 5(a) and16 of the CEDAW for its failure to provide effective protection
from her former common law husband.
CEDAW
Article 2
States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay
a policy of eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions…
(b) To adopt appropriate legislative and other measures...
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
Article 5
States Parties shall take all appropriate measures
(a) to modify the social and cultural patterns of conduct of men and women….
Article 16
States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and
family relations …

Husband has beaten AT severely on several occasions, once requiring hospitalization and threatened to kill her and rape the
children; she has gone to a shelter but no shelter equipped to take severely disabled children

In 2003, the Budapest Regional Court issued final decision authorizing husband to return and use the apartment; based
decision on: (a) lack of substantiation of the claim that husband regularly battered the author; and (b) that husband’s right to
the property, including possession, could not be restricted.

Since that date author claims that her physical integrity, physical and mental health and life have been at serious risk and that
she lives in constant fear.

AT has requested assistance in writing, in person and by phone, from the local child protection authorities, but that her
requests have been to no avail. She maintains she has exhausted domestic remedies

She points to:
o Unreasonably lengthy criminal procedures against former husband
o Lack of protection orders or restraining orders under current Hungarian law
o Fact that husband has not spent any time in custody

She is seeking fair compensation for suffering and for the violation of the Convention by the State party and the introduction of
15




effective and immediate protection for victims of domestic violence into the legal system, provision of training programmes on
gender-sensitivity, the CEDAW and the Optional Protocol, including for judges, prosecutors, police and practising lawyers, and
provision of free legal aid to victims of gender-based violence, including domestic violence
Committee noted that women’s human rights to life and to physical and mental integrity cannot be superseded by
other rights, including the right to property and the right to privacy. (para 9.3)
Committee concludes that the obligations of the State party set out in article 2 (a), (b) and (e) of the Convention extend to the
prevention of and protection from violence against women; these rights were violated in this case
Articles 5(a) and 16 of the author also violated because she has been battered by her former common law husband and hasn’t
been successful through either criminal or civil proceedings
Recommendations to state party:
o Take immediate and effective measures to guarantee the physical and mental integrity of author and her family;
ensure she’s given safe home to live with her family
o General recommendations, such as respect, promote and fulfill women’s’ human rights, etc.
Government of the Republic of South Africa & Ors v Grootboom & Ors (2000) Constitutional Court of South Africa
Facts
Group of people lived in appalling conditions, decided to move out and illegally occupied someone else’s land. They were
subsequently evicted and left homeless. The root cause of their problems was the intolerable conditions under which they
were living while waiting in the queue for their turn to be allocated low-cost housing.
Mrs. Grootboom and other respondents rendered homeless when they were kicked out of informal homes on land
earmarked for low-cost housing. Applied to court for order to obtain adequate basic shelter until obtained basic housing.
Appellants were ordered to provide respondents and their children with basic housing. 4 months later still hadn’t done so.
Issue
Did the state violate s. 26 of its constitution?
Holding
Yes.
Reasoning

S. 26: (1)Confers a general right of access to adequate housing and (2) establishes and delimits the scope of
the positive obligation imposed upon the state to promote access to adequate housing (has three key
elements). The state is obliged: (a) to take reasonable legislative and other measures; (b) within its available
resources; (c) to achieve the progressive realization of this right.

Rights in s. 26 must be understood in their textual, social and historical context. The constitution enshrines civil,
political and economic rights. Also Constitution was adopted to address persistent social problems that exist in
the country.

The state (party to the covenant) has an obligation to satisfy a minimum core obligation to satisfy a minimum
essential level of each right guaranteed under the ICESCR. To determine whether State has discharged its
minimum core obligations, the state’s resources must be taken into account. Minimum core obligation is also
understood as having regard to the needs of most vulnerable.

State’s obligation to provide access to adequate housing depends on context and may vary from state to state,
rural to urban, and person to person.

The state is required to take reasonable legislative measures, but those alone are not enough; state is obliged to
act to achieve intended result.
Application to the case at hand
The constitution recognizes that the state is not obliged to go beyond the resources it has available. S. 26 does not
entitle the respondents to claim shelter or housing immediately upon demand. The state is however required to devise
and implement a plan designed to meet its obligations under s. 26. The state did not do this. Must make a declaratory
order requiring the state to meet its obligations under s. 26 by devising, funding, implementing and supervising a plan
designed to help those in need.
Committee on ESCR, Concluding Observations: Canada 2006

Committee notes that Canada still ranks near the top of the Human Development Index of the UN Development Programme.

Committee notes the reduction in disparities between Aboriginal people and the rest of the population in the State party with
regard to infant mortality and secondary education.

Committee welcomes the extension of maternity and parental benefits from six months to one year.

Committee notes the absence of any factors or difficulties preventing the effective implementation of the ICESCR

Principal subjects of concern:
o The lack of legal redress available to individuals when governments fail to implement the Covenant, resulting from the
insufficient coverage in domestic legislation of economic, social and cultural rights, as spelled out in the
Covenant; the lack of effective enforcement mechanisms for these rights; the practice of governments of urging
upon their courts an interpretation of the Canadian Charter of Rights and Freedoms denying protection of Covenant
rights, and the inadequate availability of civil legal aid, particularly for economic, social and cultural rights;
o The absence of a legally enforceable right to adequate social assistance benefits for all persons in need on a nondiscriminatory basis and the negative impact of certain workfare programmes on social assistance recipients;
o The disparities that still persist between Aboriginal peoples and the rest of the Canadian population in the enjoyment
of Covenant rights, as well as the discrimination still experienced by Aboriginal women in matters of matrimonial
property;
16
o
o
The absence of an official poverty line;
The insufficiency of minimum wage and social assistance to ensure the realization of the right to an adequate
standard of living for all
SCRAC and CESR v Nigeria, African Commission on Human and Peoples’ Rights (2001) (The Ogoni Case)
Facts
The Complainants assert that the Military government of Nigeria massively and systematically violated the right to
adequate housing of members of the Ogoni community under Article 14 and implicitly recognized by Articles 16 and 18(1)
of the African Charter.
Issue
Did Nigeria violate arts. 14, 16 and 18(1) of the African Charter?
Holding
Yes
Reasoning (1) State obligation to respect  should refrain from interfering in the enjoyment of all fundamental rights; With respect to
socio-economic rights, State obliged to respect the free use of resources owned or at the disposal of the individual alone
or in any form of association with others
(2) State is obliged to protect right-holders against other subjects by legislation and provision of effective remedies 
requires the State to take measures to protect beneficiaries of the protected rights against political, economic and social
interferences (i.e. creation and maintenance of an atmosphere or framework by an effective interplay of laws and
regulations so that individuals will be able to freely realize their rights and freedoms)
(3) State must fulfill the rights and freedoms it freely undertook under the various human rights regimespositive
expectation on the part of the State to move its machinery towards the actual realization of the rights.
African Charter only implicitly protects right to shelter. At a very minimum, right to shelter obliges the Nigerian
government not to destroy housing of its citizens and not to obstruct efforts to rebuild. The state has failed to meet these
two minimum obligations: The government has destroyed Ogoni houses and villages and then, through its security forces,
obstructed, harassed, beaten and, in some cases, shot and killed innocent citizens who have attempted to return to
rebuild their ruined homes.
« Des victimes de Marc Dutroux attaquent la Belgique, » Le Monde 2013

Three victims of convicted Belgian murderer and rapist D protested to ECtHR against Belgium’s rules on conditional release.

Victims want courts to be forced to consult victims before agreeing to the release of sex offenders.

D was sentenced to life in prison in 2004 for the kidnapping and rape of six girls and adolescents between June 1995 and
August 1996 (4 of whom he murdered)

These same victims also protested the early release of M, D’s ex-wife, after serving 16 years of her 30 year sentence

According to procedure victims are consulted in a limited manner, with respect to living location, but they don’t give any
additional input on the case, nor can they attend the early release hearing.
SESSION 10: LIMITATIONS, EXCEPTIONS AND DEROGATIONS
What is the difference between limitations, exceptions, derogations?
Are rights absolute?
Can rights be limited?
UN Economic and Social Council, The Siracusa Principles on Limitation and Derogation Provisions in the ICCPR
Limitation clauses
Some General interpretive principles
1. No limitations or grounds for applying them to rights guaranteed by the Covenant are permitted other than those permitted in terms of
the Covenant itself
3. All limitations shall be interpreted in light and context of particular right concerned
7. No limitation shall be applied in an arbitrary manner
Interpretive principles relating to Specific Limitation Clauses
15. “Prescribed by law”: no limitation on human rights unless provided for by national law, consistent with Covenant.
19. “In democratic society”: expression interpreted as imposing further restrictions on limitation
22. “Public order”: state organs responsible for public order shall be subject to controls exercised by Parliament
25. “Public health”: may be invoked as ground for limiting certain rights to allow state to deal with serious threat to health of population
of individual members of the population
27. “Public morals”: the margin of discretion left to states doesn’t apply to rule of non-discrimination as defined in the Covenant
29. “National security”: National security may be invoked to justify measures limiting certain rights when they are necessary to protect
the existence of the nation of its territorial integrity or political independence against force or threat of force.
Derogations in Public Emergency
39. A state party may take measures derogating from its obligations under the ICCPR pursuant to Article 4 (hereinafter called
"derogation measures") only when faced with a situation of exceptional and actual or imminent danger which threatens the life of
the nation. A threat to the life of the nation is one that: (a) affects the whole of the population and either the whole or part of the
territory of the State, and (b) threatens the physical integrity of the population, the political independence or the territorial
17
integrity of the State or the existence or basic functioning of institutions indispensable to ensure and project the rights recognized
in the Covenant.
42. A state derogating from its obligations under the Covenant must make a proclamation of the existence of a national emergency
threatening the life of the nation
43. Procedures shall be prescribed in advance of the emergency
44. Notification shall contain sufficient information including: provision of the Covenant from which it is derogating, copy of proclamation
of emergency, date of imposition of emergency and the reasons for which the state is derogating.
Non-Derogable Rights
58. No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the
right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific
experimentation without free consent; freedom from slavery or involuntary servitude; the right not to be imprisoned for
contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the
right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable
under any conditions even for the asserted purpose of preserving the life of the nation.
Handyside v. United Kingdom ECtHR (1976)
Facts
H’s publishing house bought rights to the “Little Red Schoolbook”. Published in many countries. Book contained 26
page section on sex including topics such as: masturbation, orgasm, intercourse, petting, etc. Books seized under
Obscene Publications Act and H charged under the Act with having books in his possession for publication for gain.
Issue
Was there a violation of H’s freedom of expression?
Holding
No
Reasoning

Very high degree of responsibility ought to be exercised by courts because the matter deals with children at
critical stage in their development.

Court said that Art. 10(2) leaves the contracting states a margin of appreciation, given to both the domestic
legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret the
laws in force.

Using margin of appreciation doctrine, the Court held by thirteen votes to one that the interference in
Handyside's freedom of expression was both defined by law, having a legitimate aim and was necessary
in a democratic society, thus there was no violation of Article 10 ECHR.

Judge H. Mosler disagreed and filed a dissenting opinion, considering that violation did take place due to
interference not being necessary.

The court also held unanimously that Handyside's property rights (Article 1 of Protocol No. 1) were not
violated.

“Freedom of expression … is applicable not only to “information” or “ideas” that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State
or any sector of the population.” (para 49)
HRC – ICCPR, General Comment 29, States of Emergency (Article 4) (2001)

A state emergency must: a) threaten the life of the nation, b) be publicly announced, c) be required by the exigencies of
the situation, d) limitations must follow principles of proportionality (based on objective assessment of actual situation)

Derogation is not legitimate if conduct under authority of state constitutes basis for individual criminal responsibility

Prohibitions against taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute
nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law.

Fundamental rule of law (including the right to fair trail) must be respected during state of emergency

When states resort to powers of derogation under art. 4, they commit selves to regime of international notification
Ireland v. United Kingdom ECtHR (1977)
Facts
Irish government alleged that many individuals detained in Northern Ireland under state of emergency powers of UK
(s. 10 and 11 of Special Powers Act which allowed for warrantless arrests for purposes of interrogation) had been
subjected to ill-treatment and torture. Also alleged that emergency powers violated the ECHR because emergency
powers administered in discriminatory and political way.
Issue
(1) Was there a public emergency at the relevant time threatening the health of the nation? (2) Did Britain’s notice of
derogation fulfill the requirements of article 15(3) ECHR?
Holding
(1) Yes (2) Yes
Art. 15 provides: 1. In times of emergency contracting party may derogate from its obligations under the convention to
Reasoning
the extent necessary for the exigencies of the situation, 2. No derogation from art. 2 except with respect to deaths
due to unlawful acts, 3. Any derogating state shall keep the SG of the Council of Europe informed of measures.
“It falls in the first place to each Contracting State, with its responsibility for "the life of [its] nation", to determine
whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to
overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment,
the national authorities are in principle in a better position than the international judge to decide both on the
18
presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter
Article 15(1) leaves those authorities a wide margin of appreciation.”
FM Notes
Application to the case at hand
Confronted with massive violence and intimidation, the British government was entitled to use measures outside the
scope of ordinary law.
It’s not the ECtHR’s function to substitute its assessment for that of the British government of what might be most
prudent, expedient policy to combat terrorism.
Court accepts that limits of the margin of appreciation left to contracting states by art. 15(1) was not
overstepped by UK. (para 227)
Only need to respect the rights of foreigners if they are on your territory
Democratic rights will only apply to citizens
Discrimination is a non-derogable right (right of assembly is derogable)
[HR thinkers are saying that it can’t possibly help situation of national emergency to discriminate]
Discrimination based on legitimate social goals is acceptable
A and others v Secretary of State for the Home Department (2004-05) House of Lords
Facts
Nine appellants (all foreign nationals, none subject to criminal charge) were certified by the Home Secretary under
section 21 of the Antiterrorism, Crime and Security Act 2001 and were detained under section 23 of that Act. All
challenging the lawfulness of their detention.
Issue
(1) Is it legitimate for UK to proclaim situation of National emergency? (2) Within the state of national emergency is the
measure adopted by the state justified?
Holding
(1) No (2) No
Reasoning
Measures must be linked and proportional to goal sought
The diffuse nature of terrorist threat was a fact against the UK’s assessment of emergency
“Emergency” requires some sort of actual emergency; the terrorist threat is very broad.
The requirement of temporariness is expressed in the inherent meaning of “emergency”.
No other member of Council of Europe have derogated from art. 5 ECHR
Art. 15 ECHR requires that any measures taken by member states in derogation of its obligations shouldn’t go beyond
what is “strictly required by exigencies of the situation.” This is the test of strict necessity or proportionality  in
determining whether a limitation is arbitrary or excessive the court must ask itself whether: (i) legislative objective is
sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative
objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is
necessary to accomplish the objective.
FM Notes
Application to the case
There is no immediate intelligence pointing to a specific threat to the UK.
On temporariness: According to government and Security Service, the UK now faces a near permanent emergency."
Application of the test of strict necessity: first two steps are not controversial, but third step is not met. What cannot
be justified here is the decision to detain one group of suspected international terrorists, defined by
nationality or immigration status, and not another.
House of Lords case but also international HR case because it concerns HR and the interpretation of the ECHR
There are different types of freedom from violation of rights
 Being singled out
 Being included in a group for special treatment
UK could have made it legal by extending the security certificate to everyone.
SESSION 11: DRITTWRIRKUNG: DO NON-STATE ACTORS HAVE HUMAN RIGHTS OBLIGATIONS?
Drittwirkung is a legal concept originally developed in German courts that presumes that an individual plaintiff can rely on a national
bill of rights to sue another individual or the government for the violation of those rights. It was originally developed in the 1950s, but
has gained traction in various other national legal systems in Europe as well as the jurisprudence of the European Court of Human
Rights, in the case of X and Y v The Netherlands. The corollary of the concept in the context of the European Court and Convention of
Human Rights is that a government can be held responsible for failing to prevent, through judicial or law enforcement methods,
the violation of a person's human rights by another person or private, non-state actor.
Clapham, “Human Rights Obligations of Non-State Actors” 2005

New ways of understanding transnational justice and global law are needed to respond to globalization

Convention on the Prevention of Genocide contains an international obligation for every individual

US CA recently found that non-state actors could be liable for committing genocide

What is the status of corporations? States can be bound to ensure that corporations follow international law  Bamako
Convention on the Ban of the Import into Africa and the Control of Transboundary Wastes within Africa
o Binds person – natural or legal
19





Arguments against applying human rights obligations to transnational corporations:
The Trivialization Argument: Applying HR obligations to non-state actors trivializes HR
o Counterargument: i) trivialization argument based on principle that HR violations only actionable by state; actually
everyone has HR obligations, and there are exceptional duties for states; ii) to confine examination of HR violations to
violence by the state in this way excludes certain important categories of violence from serious discussion and
attention. What defined as trivial depends on point of view
The Legal Impossibility Argument: Private non-state actors can’t incur international legal obligations. Treaties are entered into
and negotiated between states, thus can’t bind those who don’t enter into them
o Counterargument: There are many examples of armed groups who are described as abusers of HR, i.e. Truth and
Reconciliation Commission for Sierra Leone
The Legitimization of Violence Argument: Some NGOs have argued that condemning violence of armed groups has
legitimized violence used by both sides.
o Counterargument: the problems stem not from the application of the international humanitarian law framework, but
rather, from the selective application of human rights law
“In sum, all of the arguments outlined above boil down to two claims: first, that an application of human rights obligations to
non-state actors trivializes, dilutes, and distracts from the great concept of human rights. Second, that such an application
bestows inappropriate power and legitimacy on such actors. The counterargument is that we can legitimately reverse the
presumption that human rights are inevitably a contract between individuals and the state; we can presume that human rights
are entitlements enjoyed by everyone to be respected by everyone. Once we accept that human rights obligations can apply in
this way, the idea of legitimizing non-state actors by subjecting them to human rights duties becomes illogical.” (58)
SESSION 12: THE “SPECIAL CHARACTER” OF HUMAN RIGHTS AND RESERVATIONS
Mégret, “The Special Nature of Human Rights Obligations”

Unlike PIL, HR not really a bargain between states, since individuals are the main beneficiaries. More like a solemn promise.

ECHR described as “constitutional instrument of European public order” (Loizidou para 75)

Implementation
o Negative obligation to respect
o Positive obligation to protect (indirect horizontal effect—protects private parties from other private parties)
o Positive obligations to fulfil (great enjoyment of rights, ex implement laws)
o Margin of appreciation: states bound by same standards, but have some leeway in determining what these standards
require in domestic contexts (this is a particularly European doctrine)

Reservations
o Reservations in PIL is governed by VCLT art 19, but this doesn’t quite work for HR (see General Comment 24)
o Limitations on ability to make reservations

Loizidou—Turkey can’t exclude application of the ECHR to Northern Cyprus by a reservation.
o State can become a party to a treaty even if other state objects—unlike other treaties, HR treaties benefit from wide
ratification (Inter-American Court reading)
Loizidou v Turkey (Preliminary Objections) ECtHR 1995
Facts: L is a Cypriot national. Claims ownership of land in Turkish-controlled Northern Cyprus. Participated in a march and was
detained. Turkey made reservations that the ECtHR only had jurisdiction within its territory.
Issues: Was Turkey’s reservation as to territorial jurisdiction valid? (Does the ECtHR have jurisdiction to hear the complaint?)
Reasons:
Jurisdiction
Art 1 secure the rights to those within the jurisdiction of contracting parties is not restricted to national territory, as evidenced in the
extradition cases (Soering) (paras 59 ff). Such jurisdiction extends to acts of the authorities of Contracting Parties, and as a
consequence of military action where it “exercises effective control”
Validity of reservations (para 90-105)
Turkey claims that if their reservations are not recognised as valid, then its recognition of the right to make individual complaints (???) is
null and void. (90) However, the Court notes the “special character of the Convention as an instrument of European public order for
the protection of individual human beings” (para 92). Turkey was aware that its reservations were not thought valid based on other
countries’ reactions. The Court concludes that it can sever the reservations and thus the competence of the Commission and
Court have been accepted (98)
Objection ratione temporis (99-105)
Only facts that occurred since Turkey recognized the Court’s jurisdiction (22 Jan 1990) can be the subject of a complaint. L maintains
the violation is ongoing. This matter to be decided on merits, and not at the preliminary phase.
20
HRC – ICCPR, General Comment no 24: Issues relating to reservations 1994

ICCPR is silent on reservations.

Distinguish reservation and interpretative declaration

Reservation: “purports to exclude or modify the legal effect of a treaty in its application to the State” (para 3). Must be
precise, not vague/general. Committee determines validity.

Turn to VCLT: has to be compatible with object and purpose (can’t offend a peremptory norm). Unlike other treaties, state
objections to a reservation aren’t determinative.
VCLT Article 19
Formulation of reservations
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
(c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the
treaty.

Cannot make reservation on a non-derogable right (torture, arbitrary detention, etc) (para 8)

Why are some rights non-derogable? Because their derogation are irrelevant for trying to control a national emergency.
HRC – ICCPR, General Comment 26 (1997)

ICCPR does not contain any provision regarding its termination and does not provide for denunciation or withdrawal.

Other, related instruments provide for denunciation.

Thus, the silence should be read as prohibiting denunciation. This is true upon state succession or dismemberment.
Effect of Reservations on the Entry into force of the IACHR, Advisory Opinion (1982)

When a state ratifies with one or more reservations, when is it deemed to have become a party? To answer this requires
interpretation of arts 74 and 75.
ACHR
Article 74
1. This Convention shall be open for signature and ratification by or adherence of nay member state of the Organization of
American States.
2. Ratification of or adherence to this Convention shall be made by the deposit of an instrument of ratification or adherence
with the General Secretariat of the OAS. As soon as eleven states have deposited their instruments of ratification or
adherence, the Convention shall enter into force. With respect to any state that ratifies or adheres thereafter, the Convention
shall enter into force on the date of the deposit of its instrument of ratification or adherence.
3. The Secretary General shall inform all member states of the Organization of the entry into force of the Convention



Article 75
This Convention shall be subject to reservations only in conformity with the provisions of the VCLT signed on May 23, 1969.
Art 74 is silent on the effect of reservations on ratification. Art 75 refers to the VCLT (art 19(c)).
HR treaties are not like traditional multilateral treaties. Rather, “their object and purpose is the protection of the basic
rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other
contracting States” (29); it’s “a multilateral legal instrument or framework enabling States to make binding unilateral
commitments not to violate the human rights of individuals in their jurisdiction” (33)
Thus, it makes most sense for the IACHR to come into force upon ratification, with or without reservations (40).
SESSION 13: THE “SPECIAL CHARACTER” II: OTHER CONSEQUENCES
Mégret, “The Special Nature of Human Rights Obligations” continued

The “special character” of human rights is a purely jurisprudential invention. It creates obligations that are not restricted to
obligations between states, but something that is greater than the sum of its parts

HR are unilateral obligations owed by the state to individuals, and which do not impose reciprocal obligations on individuals
that would restrict the enjoyment of their rights (4)

HR obligations have a “life of their own” that takes over as soon as states have manifested their original commitment to be
bound.
III. State succession

Human rights obligations pass to successor states

This debate pits two sets of international interests against one another: i) interest in continuity of international obligations, ii)
respect for sovereignty (the new state should not be bound by the actions of the predecessor)
o The second interest was particularly strong in the context of decolonization
o However this is problematic from a HR perspective because state succession usually happens in the context of
political violence, which is when HR norms are most important

The claim is that rights are vested in individuals, and so no change of sovereignty can deprive them of those rights  known
as the theory of “acquired rights”
21
o This strategy was put to use by the HRC during the fall of the USSR
IV. Implementation

Traditionally, the way in which an obligation is discharged is up to the discretion of the state.

The duty to secure HR includes an obligation to adopt more than just legislative measures, but also judicial, administrative,
educative, etc. measures and an obligation to organize the structure of the state apparatus in a way that ensures the full
exercise of HR

Foremost duty is “respect,” but this sometimes entails taking action (e.g. economic and social rights)

In addition to the duty to respect, there is also a duty to prevent/protect, to make reparations and to promote
o Failing to take action to remedy a HR violation can be considered endorsing that violation and is itself a violation
(Velasquez Rodriquez)
o State is liable for those failures that can be traced to its shortcomings
V. Incorporation

In international law generally, incorporation into domestic law is a secondary issue since international treaties are not meant to
create any domestic rights. But in international HR law, the opposite is true.

Monist states consider international law to become applicable domestically automatically

Dualist states consider international law to be applicable domestically only to the extent that it has been implemented into
domestic law
o The upshot is that they could have international obligations, without having corresponding domestic obligations
o Non-incorporation is an invitation to litigation by individuals drawing attention to gaps between domestic law and the
state’s international obligations

Despite dualism, there has been a move to interpret domestic law in light of a state’s international obligations as far as
possible (presuming that the legislator cannot have intended to contradict the state’s obligations)
VI. Limitations

Reservations – a state purports to exclude or unilaterally reduce an obligation

Derogations – a state suspends certain obligations (only possible with derogable rights)

Limitations – operate within each obligation to qualify its exact scope
o E.g.: the right to be free is limited by public order concerns (if you kill people, we’ll restrict liberty rights)

Majority of HR are not absolutes; one of the only exceptions is the right to be free from torture
o E.g.: Right to life might be limited by death penalty, war and the reasonable use of force (self-defence); right to by
free from detention might be limited by imprisonment for criminal offence pursuant to a fair trial

Instead of trying to specify all the ways rights can be limited, HR treaties rely on specific or general limitation clauses

Typically limitations to rights have to be justified by the fact that they are (i) for a legitimate aim, (ii) necessary, (iii) proportional
o A legitimate aim is a “pressing social need” (ECHR), for example those listed in the UDHR: morality, public order and
general welfare  Often you have to limit some people’s rights to protect the rights of others

The onus to prove any of these factors is on the state
VII. “Margin of appreciation”

International HR do not strive for uniformity as much as to secure minimum standards, and to respect state sovereignty

Also, local courts are usually better able to assess local circumstances

“Margin of appreciation” is deference to states’ evaluation of their circumstances at home
o Although states are bound by same standards, they have leeway in assessing what standards imply domestically
o It can evolve over time, and the court will look at the degree of consensus

Criticism: this leads to a relativistic application or a conservative international assessment of HR
VIII. Derogations

Requirements for derogation:
o A situation of national emergency must be formally declared
o The threshold is that there exists a threat to the life of the nature itself
o HR are only suspended in order for the state to be able to guarantee them as soon as the danger has passed
o There are strict conditions concerning their temporary, necessary and proportional nature
o Only a limited set of rights (derogable rights) may be suspended
o Specific measures taken pursuant to the derogation must also be shown to be required by the situation

The intense regulation of situation of emergency follows from the “special character” of HR norms as minimal obligations
IX. Withdrawal

In international law generally, you can withdraw or denounce a treaty

Some HR documents contain denunciation clauses; however straightforward withdrawal is still unlikely

The emerging view is that for treaties that do not explicitly allow for denunciation, it is not an option
o E.g.: North Korea (1998) – the Secretary General said that it was not possible to withdraw from the ICCPR: “… the
rights enshrined in the Covenant belong to the people living in the territory of the state party. The Human Rights
Committee has consistently taken the view … that once the people are accorded the protection of the rights under the
Covenant; such protection devolves with territory and continues to belong to them, notwithstanding change in
government of the State party…”
o This is the “stickiness” of HR that Megret is always referring to  treaties cannot be undone even when states desire
to do so formally
22

A less dramatic move than withdrawing from a treaty is to withdraw recognition of the jurisdiction of certain international HR
bodies (Peru case)

Excluding states from becoming party to a convention is nonsensical for HR
X. Remedies

Usually in international law obligations are enforced through termination, suspension, non-execution or counter-measures from
other states. But, as per art 60(5) of the Vienna Convention, these do “not apply to provisions relating to the protection of the
human person contained in treaties of a humanitarian character…”

Non-execution is not an adequate remedy in the case of HR violations

For example: It makes no sense for a state to punish its own people because another state is violating its own citizens’ rights
XI. Enforcement

Inter-state procedures do exist for international HR obligations. In theory, nothing prevents states from bringing cases before
the ICJ for violations for various international HR instruments, but this is exceptional

Under traditional international law, only parties to a treaty can bring an action; but as a result of the special character of human
rights obligations, every state has an interest in maintenance (erga omnes)

Ireland v. UK  human rights conventions as more than reciprocal engagements; these obligations benefit from collective
enforcement

The special character also means that conditions for standing before international jurisdictions is often opened broadly
temporally

Many instruments create a right of petition for individuals before international bodies
HRC – ICCPR General Comment n°26 on the continuity of obligations (1997)

ICCPR does not provide for denunciation or withdrawal; therefore it is not subject to denunciation or withdrawal unless it is
established that the parties intended to allow for that possibility or that such a right can be implied from the nature of the treaty
o By comparison: other instruments explicitly allow for denunciation and since the ICCPR does not, it can be assumed
that it was excluded on purpose
o It does not have a temporary character
o The rights enshrined belong to the people living in the territories of states parties: “once the people are accorded the
protection of the right under the Covenant, such protection devolves with territory and continues to belong to them,
notwithstanding change in government of the state party, including dismemberment in more than on state or state
succession or any subsequent action on the state party designed to divest them of the rights guaranteed by the
Covenant

Conclusion: The Committee is therefore firmly of the view that international law does not permit a state which has ratified or
acceded or succeeded to the Covenant to denounce it or withdraw from it.
Inter-American Commission on Human Rights, Peru report (2000)
The claimed “withdrawal” from the court’s contentious jurisdiction

Peru argues that accession to the Inter-American Court’s jurisdiction was a unilateral and sovereign act, and so would be a
withdrawal

The Commission noted that this case was “unprecedented”  no state had ever attempted to withdraw acceptance of the
jurisdiction of the court, but still stay party to the convention

The system provides only one procedure for withdrawal (art 78)  you can denounce the treaty as a whole (as long as you
adhere to the formal requirements).

As of the date of the “withdrawal” there were five cases pending against Peru  The Commission pointed out that it already
had jurisdiction over the matters pending because filing of the application is the event that sets the procedure in motion
Questions Concerning the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ 2012

Facts: H was president of Chad for 8 years, during which large scale violations of HR occurred. H was overthrown and was
granted political asylum in Senegal. A civil action was filed in Chad against H. […] Belgian nationals of Chadian origin filed civil
actions against H based on crimes covered by Belgian law. Belgium issued an arrest warrant for H and applied to Senegal for
his extradition. Senegal had not adopted the necessary measures that would enable it to prosecute H, and it claimed to have
insufficient funds to do so. [There is a whole lot of stalling and back and forth…]

Senegal argues that not of the claimants were Belgian nationals at the time of the events.

Court concluded that Belgium (as a state party to the convention) has standing to invoke responsibility of Senegal

Aut dedere aut judicare at issue

Questionable whether Senegal had jurisdiction to prosecute because it hadn’t enacted the legislation in time
Venezuela’s denunciation of the American Convention on Human Rights, 2013

2012 Venezuela gave notice of its denunciation of ACHR pursuant to art. 78.

The denunciation must be given one year in advance of when it will take effect; it also cannot be denounced in the first 5 years
since its ratification

Venezuela did not denounce the Charter of the OAS and it remains bound by its ob ligations under the Charter only to the
extent that the Charter is consistent with its denunciation

The Court will remain competent to hear cases arising from facts which took place before the effective date of denunciation
23

Venezuela may still withdraw its denunciation
SESSION 14: THE TERRITORIAL SCOPE OF HUMAN RIGHTS OBLIGATIONS: DO STATES OWE HUMAN RIGHTS
OBLIGATIONS BEYOND THEIR BORDERS?
Soering v UK ECtHR 1989

Facts: S was a German national detained in the UK pending extradition to the US to face charges of murder, for which the
death penalty was being recommended (despite flimsy assurances to the UK that it would not be imposed).

There is no right not to be extradited

Art 3 ECHR: No one shall be subjected to torture or to inhuman or degrading treatment of punishment.
o No exceptions, no permissible derogation  absolute prohibition
o There are similar provisions in the ICCPR, ACHR

“Special character” at para 87: “In interpreting the Convention regard must be had to its special character as a treaty for the
collective enforcement of human rights and fundamental freedoms …. Thus, the object and purpose of the Convention as an
instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its
safeguards practical and effective….

Para 91: “In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and
hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing
that the person concerned, if extradited, faces a real risk of being subjected to torture or inhuman or degrading treatment or
punishment in the requesting country.
Loizidou v Turkey ECtHR 1995

Facts: L owned property in Northern Cyrpus. During the Turkish occupation, she was denied access to that property. She
made a claim to the ECtHR. Turkey responded that they did not have jurisdiction because the incidents did not fall within
Turkish territory.

In principle, states are internationally accountable for violations of rights occurring in territories over which they have physical
control (« effective control »)

Turkey is the only state that could be responsible, and since international law requires no gaps in the system of responsibility,
responsibility is imputed to Turkey (Turkey had effective control)

ECHR applies to every individual within a state’s jurisdiction

Jurisdiction is not restricted to national territory
o Extradition or expulsion can engage the states (Soering)
o States are responsible for acts of their authorities, which produce effects outside their territory (Drozd)
Bankovic et al. v Belgium et al. Grand Chamber ECtHR 2001, (Decision on admissibility)

Facts: Families applied on behalf of deceased relatives as victims in Yugoslavia of the NATO airstrikes claiming that they fell
within the extraterritorial jurisdiction of the NATO states

Jurisdiction (article 1) is primarily territorial (para 59)

Exercises of extra-territorial jurisdiction will be exceptional

Article 1 ECHR should be interpreted to reflect its ordinary meaning

The fact that an individual has been affected by an act (has been the victim of a violation of rights) committed by a contracting
state or its agents is not sufficient to establish that he was within that state’s jurisdiction (para 75)

“Special character”  convention as a “constitutional instrument of European public order” (para 80)

Convention not designed to apply throughout the world

Court was not persuaded that there was any jurisdictional link between the victims and the respondent States. It was not
satisfied that the applicants were capable of coming within the jurisdiction of the respondent states on account of the extraterritorial act in question. (para 82)
Legal Consequences of Construction of Wall in Occupied Palestinian Territory ICJ Advisory Opinion 2004

ICCPR, art 2, para 1: Each state party to the present covenant undertakes to respect and to ensure all individuals within its
territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kind...

The Human Rights Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory

Drafters did not intend states to escape their obligations when acting outside their borders

Committee pointed to Israel’s effective jurisdiction in the Palestinian territories

Israel argues that its obligations are only to populations under its sovereign control (it makes a distinction between human
rights and humanitarian law because of the armed conflict in the West Bank)

Court finds that Israel has obligations (ICCPR, ICESCR and CRC)to all territories within its effective control
Canada (Justice) v Khadr SCC 2008

Facts: The US laid formal charges against K, and he sought disclosure of all documents held by the Canadian Crown relevant
to these charges (Canadians interrogated K at Gitmo)

Normal state of affairs: Canadians are subject to the laws in the jurisdiction in which they find themselves
24
o



International law principles against extraterritorial enforcement of domestic laws and the principle of comity
(acceptance of foreign laws and procedures when Canadian officials are operating abroad) (Hape)
Exception: “Comity cannot be used to justify Canadian participation in activities of a foreign state … that are contrary to
Canada’s international law obligations”
Activities at Gitmo violated HR obligations; therefore Canadian officials are bound under Canadian law and not the law that
violates their obligations
S. 7 Charter (principles of fundamental justice) entitles accused to full disclosure (Stinchcombe)
Al-Skeini v United Kingdom ECtHR 2011

Facts: Iraqi victims of violence bring an action to the ECtHR against the UK

Jurisdiction is a threshold criterion under article 1  it is necessary in order to hold a state liable for acts or omissions
infringing rights

A state’s jurisdictional competence under article 1 is primarily territorial

Extraterritorial jurisdiction is exceptional and is a question of fact
o “State agent authority and control”
o “Effective control over an area”
o “The Convention legal space”  it doesn’t govern actions of states not parties to it, nor does it purport to be a means
of requiring the contracting states to impose the standards of others\

There was a sufficient jurisdictional link between the individuals killed in Iraq and the UK (as occupying powers)
Concurring opinion of Judge Bonello

Framing of issue: Were Iraqi civilians who allegedly lost their lives at the hands of UK soldiers, in non-combat situations in the
UK-occupied Basrah require of Iraq “within the jurisdiction” of the UK when those killings took place?

Proposes a “functional” approach to jurisdiction (as opposed to a territorial/extraterritorial split)

States ensure the observance of human rights in five ways, these constitute the basic minimum functions assumed by every
state by virtue of its having contracted into the convention:
o Not violating HR
o Systems that prevent breach of rights
o Investigating complaints of abuses
o Punishing those who infringe HR
o Providing victims with remedies

A state has jurisdiction for the purposes of Article 1 whenever the observance or the breach of any of these functions is within
its authority and control (para 11)

Did it depend of the agents of the State whether the alleged violation would or would not be committed? (para 16)

Suggests there should be a presumption of jurisdiction – “It will no longer be for the victim of wartime atrocities to prove that
the occupying power actually exercised authority and control. It will be for the occupying power to rebut it.” (para 24)

Forceful, eloquent, damning of the UK
Maastricht Principles on Extraterritorial Obligations of States in Economic, Social and Cultural Rights, 2011

Recognizes that the human rights of individuals are affected by and dependent on the extraterritorial acts and omissions of
states

States have obligations to respect, protect and fulfill HR both within their territories and extraterritorially

Extraterritorial obligations include obligations relating to acts and omissions of a state, within or beyond its territory that have
effects on the enjoyment of HR outside that state’s territory and obligations of a global character

Scope of jurisdiction:
o Exercise authority or effective control
o Acts or omissions bring about foreseeable effects on rights
o Situations in which the state acts separately or jointly

State responsibility extends to non-state actors if they are acting under the direction and control of the state, and to persons or
entities which are not organs of the state, but which are empowered by the state

Section III: Obligation to respect; Section IV: Obligation to protect; V: Obligation to fulfill; VI: Accountability and remedies
SECTION 15: INTERNATIONAL HUMAN RIGHTS LAW AND DOMESTIC LAW: PROBLEMS OF APPLICABILITY AND
INCORPORATION
Sei Fuji v California, Supreme Court of California, 1952
Facts
Alien resident ineligible for citizenship challenges judgement that real property purchased by him had escheated to the
State under Alien Land Law
Alien Land Law holds that aliens cannot purchase land and if they do, ownership escheats to the state
Argued that Alien Land law is invalid under the UN Charter and violates fourteenth Amendment (due process and equal
protection clause)
Trial: land escheated to state under Alien Land Law
History
Is the Alien Land Law invalidated by the UN charter and/or the fourteenth amendment?
Issues
25
Holding
Reasoning
UN charter does not apply because it is not self-executing treaty, but law is invalid under fourteenth amendment
UN CHARTER ARGUMENT
Argument that land law violates UN charter which pledges that member nations are to promote observance of HR and
fundamental freedoms without distinction as to race (arts 1, 55, 56) does not apply because a treaty does not supersede
local laws which are inconsistent, unless treaty provisions are self-executing
Courts look to intent of parties as manifested by text and circumstances surrounding execution of treaty to determine
whether a treaty is self-executing
The UN Charter is not self-executing: it is a statement of general purpose and objectives and does not purport to
impose legal obligations on individual member states or to create rights in private persons
The Court compares it to other self-executing treaties to contrast language here; the UN Charter is a promise of future
action, it lacks mandatory quality and definiteness of self-executing treaties
Ratio
FOURTEENTH AMENDMENT ARGUMENT (due process and equal protection clause)
“The California Alien Land Law is obviously designed and administered as an instrument for racial discrimination”
UN Charter, looking to intent of parties through textual analysis and surrounding circumstances, is not self-executing
and does not supersede inconsistent local legislation
General Comment No. 03 on art. 2 of the ICCPR: Implementation at the national level (Art. 2)

Art. 2 of the ICCPR leaves it to state parties to choose method of implementation

Constitutional and legislative enactments are not in themselves sufficient

Obligation includes respect AND enjoyment of rights to all individuals under jurisdiction

Calls for specific activities by the state parties to ensure enjoyment of these rights

Administrative and judicial authorities should be aware of obligations and Covenant should be publicized in all official
languages of the State
Promises to keep: Implementing Canada’s HR Obligations, Report of the Standing Senate Committee on HR, December 2001
I) THE MACHINERY OF GOVERNMENT AND HUMAN RIGHTS IN CANADA
A. Introduction

Successes in creation of HR law in Canada has led to complacency about HR implementation

While the Canadian Charter exceeds international HR law in some respects, in other areas, it does not guarantee that our
international obligations have been satisfied

This gap has not been addressed although courts have shown willingness to use HR as interpretive guides for legislation

HR treaties are not self-executing in Canada, they must be implemented via domestic legislation to have full force and effect

This is embarrassing: Canada has been a leader on international HR scene and signed on to many treaties, but these treaties
are not even enforced domestically!

Parliament has a role to play in ensuring that HR are respected in subsequent legislation
B. Domestic HR mechanisms in Canada

It is really with the adoption of statutory bills of rights, such as the Canadian Bill of Rights of 1960, and human rights codes by
the provinces and by Parliament in the mid to late twentieth century, culminating with the addition to the Constitution in 1982 of
the Canadian Charter of Rights and Freedoms, that effective efforts were made to entrench systematically human rights into
Canadian law and government.

Domestic HR protection mechanisms in Canada
o Civil liberties and due rights protections: entrusted to the courts
o Anti-discrimination laws: entrusted to the courts and by specialized administrative bodies
C. International HR in Canada
1. Acceptance of international HR obligations in Canada

Canada is a party to the six major international HR instruments including the ICCPR, ICESCR, ICERD, CEDAW, CAT, CRC

Acceptance of these treaties has been done by executive branches of federal government in consultation with executive
branches of provincial governments – no requirement of parliamentary approval or study
2. Implementation of IHR obligations by Canada
a) International mechanisms for state compliance

All six HR treaties require periodic compliance reports

Four of these treaties have optional individual complaint mechanisms, Canada participates in these mechanisms only for the
ICCPR and CAT (not CERD or CEDAW)

Views and decisions of bodies are not binding

Canada has no formal or public process dedicated to following up on observations, findings and recommendations
b) Canada’s domestic implementation of its international HR obligations
i) Effect of international HR law on Canadian law

Canada is dualist: signing and ratifying international covenant gives illusion of compliance but in reality it has no legal
effect in our domestic law
26

Monist approach: treaty provisions are self-executing, automatically becoming a part of state’s domestic law and
overriding conflicting statutes. Three subgroups of monist states:
o States where treaty law has equivalent status to domestic law (US)
o States where treaties are superior to statute law (France, Netherlands, Costa Rica, Belgium and Switzerland – in
Netherlands, constitution is subordinate to these treaties)
o States where particular HR treaties have constitutional status (Spain and some countries in Latin America)

Justification for dualist states: not fair for executive or Crown to sign off on laws and rights without consent of elected and
appointed representatives
ii) Canada’s approach to legislative implementation

Canadians cannot compel government respect for IHR through courts, this is contrary to article 2 of ICCPR

The committee is concerned about the gaps that remain between protection of rights under domestic HR mechanisms and
protection required under the Covenant and recommends full implementation of Covenant rights

Committee recognises that these treaties have influence in interpretation of Canadian domestic law, this is insufficient

Cannot rely on judiciary to solve problem of inadequate implementation, it is a problem of political will
iii) International HR implementation and Canadian Federalism

Additional barrier to implementation: obligations cut across provincial and federal jurisdictions

Unlike in Australia and the US, the federal government in Canada does not have the right to legislate in provincial
jurisdiction to comply with international treaties

1975 federal-provincial agreement: two levels of government agreed on provincial involvement in dealing with IHR
obligations – they have not met for 13 years as of 2001!

Currently no official body or institution of government that is coordinating between two levels of government on HR
II) THE NEED FOR A PARLIAMENTARY HR COMMITTEE

Parliament can play a key role in addressing many of the failings of the current process
o Unique forum for public debate and governmental accountability
o Official representatives of the people

We cannot just rely on courts
o Many rights have political content
o Courts better suited to deal with judicial safeguards

We cannot rely on civil society: lacks Parliaments constitutional mandate to represent the people nor does it engage in
constantly balancing competing interests like the parliament
III) ISSUES FOR FURTHER STUDY
Issues which the committee wish to work on in the future

Increasing public participation in preparation of reports for sex major global HR instruments

Increasing role of parliament in treaty-making process

Increased translation of international HR commitments in domestic law

Developing mechanism for ongoing review of proposed legislation for consistency with HR

Ensuring provincial-federal cooperation

Encouraging proactive role of parliament in signing/ratifying treaties
“Bangalore Principles”, concluding statement of the Judicial Colloquium 1988
Topic: use of HR treaties to inform interpretation of domestic constitutions and statutes by domestic courts in dualist countries

This is to be encouraged

When national laws clearly contradict international treaty obligations, national courts must give effect to national laws, but they
should draw inconsistency to attention to appropriate authorities b/c supremacy of national law does not mitigate breach of
international obligation

Highlights importance of including international HR norms in education of lawyers, judges and law enforcement officials
British Human Rights Act 1998
Introduction
1 The Convention Rights
(1) In this Act “the Convention rights” means the rights and fundamental freedoms set out in—
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol, and
(c) Article 1 of the Thirteenth Protocol, as read with Articles 16 to 18 of the Convention.
(2) Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see
sections 14 and 15).
(3) The Articles are set out in Schedule 1.
(4) The [Secretary of State] may by order make such amendments to this Act as he considers appropriate to reflect the effect, in
relation to the United Kingdom, of a protocol.
(5) In subsection (4) “protocol” means a protocol to the Convention—
(a) which the United Kingdom has ratified; or
(b) which the United Kingdom has signed with a view to ratification.
27
(6) No amendment may be made by an order under subsection (4) so as to come into force before the protocol concerned is in force in
relation to the United Kingdom.
2 Interpretation of Convention rights
(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the
opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
(2) Evidence of any judgment, decision, declaration or opinion of which account may have to be taken under this section is to be given
in proceedings before any court or tribunal in such manner as may be provided by rules.
(3) In this section “rules” means rules of court or, in the case of proceedings before a tribunal, rules made for the purposes of this
section—
(a) by the Lord Chancellor or the Secretary of State, in relation to any proceedings outside Scotland;
(b) by the Secretary of State, in relation to proceedings in Scotland; or
(c) by a Northern Ireland department, in relation to proceedings before a tribunal in Northern Ireland—
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (a) are in force.
Legislation
3 Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is
compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any
possibility of revocation) primary legislation prevents removal of the incompatibility.
4 Declaration of incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a
Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the
exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it
may make a declaration of that incompatibility.
(5) In this section “court” means—
[(a) the Supreme Court;]
(b) the Judicial Committee of the Privy Council;
(c) the [Court Martial Appeal Court] ;
(d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
(e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.
(f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the Vice-Chancellor or a
puisne judge of the High Court.
(6) A declaration under this section (“a declaration of incompatibility”)—
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
5 Right of Crown to intervene
(1) Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with
rules of court.
(2) In any case to which subsection (1) applies—
(a) a Minister of the Crown (or a person nominated by him),
(b) a member of the Scottish Executive,
(c) a Northern Ireland Minister,
(d) a Northern Ireland department,
is entitled, on giving notice in accordance with rules of court, to be joined as a party to the proceedings.
(3) Notice under subsection (2) may be given at any time during the proceedings.
(4) A person who has been made a party to criminal proceedings (other than in Scotland) as the result of a notice under subsection (2)
may, with leave, appeal to the Supreme Court against any declaration of incompatibility made in the proceedings.
28
(5) In subsection (4)—
“criminal proceedings” includes all proceedings before the [Court Martial Appeal Court]; and
“leave” means leave granted by the court making the declaration of incompatibility or by the Supreme Court
SESSION 16: THEORY, POLITICS, PRACTICES
Neumayer, “Do International Human Rights Treaties Improve Respect for Human Right?”

Method: Quantitative social science analysis of the correlation between treaty ratification and respect for civil and personal
integrity rights.

“Beneficial effect of ratification of human rights treaties is typically conditional on the extent of democracy and the strength of
civil society groups as measured by participation in NGOs with international linkages”
Merry and Stern, “The Female Inheritance Movement in Hong Kong”

Article recounts how the issue of indigenous women’s inability to inherit property in the New Territories became known and
how a movement swelled to change the situation.

In 1994, a group of indigenous women joined up with HK women’s groups to demand legal change

What was for the former an issue of men’s failure to honour their kinship obligations was translated into the language of rights
and equality.

The authors examine how these rural women came to be a part of the movement, how HR were made local.

Authors see the female inheritance movement as a coalition of layers brought together by translators.

Layers:
o Expats: played role in bringing issue to prominence
o Legislative Council: saw female inheritance as choice between tradition and modernity. International law played a role
of shaming government into action
o Women’s groups: conceptualized the issue in terms of gender equality
o Indigenous women: shifted from seeing issue as kinship violation to discrimination

The translators helped the indigenous women recast their stories as violations of right to protection from gender discrimination
rather than as personal wrongs by relatives.

The women weren’t at first thinking about changing law but about having their individual situations addressed.

“The female inheritance movement offers an opportunity to examine a vernacular form of globalization and to think about how
global ideas are reinterpreted in terms of local categories of meaning” and the movement “shows that the power of rights
discourse lies in its flexibility and contingency.”
Spiro, “NGOs and Human Rights: Channels of Power”

The role of NGOs is under-theorized: to the extent that theorists have attempted to situate NGOs in international process, it
has been relative to states, but this fails to recognize NGO activity that is divorced from state action

“As human rights obligations cannot be described in terms of reciprocal state interest, non-state actors are a probable causal
agent in the entrenchment of human rights regimes.”

NGOs as powerful in creating incentives for states to comply with HR obligations

Diversity of NGOs that exist: identity groups versus human rights generally (5), transnational versus national (6), activist
versus service (7)

Levers and targets
o
“Levers” (as means) aim to influence an actor to influence other actors in turn
o “Targets” (as ends – usually states) seek to influence an actor with respect to its own conduct
o NGOs, international organizations (IOs), corporations and states can all be players in the levers and targets structure
o It is now often the case that NGOs from one state work to influence other states with respect to the conduct of a third
state, or even their home state

NGO power as founded upon the “power of ideas”

NGOs having power to develop and influence multilateral treaty negotiations

NGOs measure state conduct against legal metrics, and are thereby legitimized  the dominant shaming strategy

Evidence of NGO power is the increasing calls to enhance NGO institutionalization and accountability
o Observer status, amicus curae, ability to bring claims
o Developing working principles
o Accountability to members
o Inclusion, participation in IOs and other processes no longer just on an ad hoc basis

“Inclusion paradox”: legitimacy might compromise freedom to act in some ways

“NGOs are now firmly enshrined in the web of global decision-making. Their salience transcends mere influence. NGOs no
longer channel their power only through states. They have a transnational autonomy which is giving rise to international
personality.”(26)
Brantner, “Human Rights and the External Relations of the European Community- An Analysis of Doctrine and Practice”

The status and role of human rights in EC law and EU policies

Less discussed: the notion of human rights in the external policies of the EC and the EU
29

This article considers the sources of law forming the basis of external human rights policy, given that the EC is not a
contracting party to human rights conventions and looks at how this external policy relates to main categories of human rights
1. Sources
A. General principles of community law

For instance, the Amsterdam Treaty: 'The Union is founded on the principles of liberty, democracy, respect for human rights
and fundamental freedoms and the rule of law, principles which are common to member states.'

Combined: human rights declarations by community institutions + preamble of the Single European Act + preamble and
provisions of the Treaty on the EU + case law of the ECJ on human rights as part of general principles of community law.

But, consensus lacking on precise delimitation of community competences in the field of human rights
B. The human rights clause

In bilateral trade and cooperation agreements with third countrie. (with exceptions, for example sectoral agreements on textiles
and agricultural products)

Reserves the right for the Community to suspend or terminate an agreement when conducted with non-respect of human
rights by the third country concerned

Constitutes a mutual reaffirmation of commonly shared values and principles (merely reaffirms existing commitments which
already bind states under general international law)

Basic term of reference for the human rights clause: the UDHR
C. Unilateral Trade Preferences

Human rights linked to autonomous acts of secondary Community legislation (e.g. Community's unilateral scheme of
Generalized Tariff Preferences)

Benefits under the scheme to a country may be withdrawn if the country is found to practise any form of forced labour.
D. Technical (Financial) Assistance

Assistance related to human rights and constitution or democracy building, regulated in autonomous Community Acts
(regulations)

Clauses may be used to suspend or even terminate cooperation with a partner state in case of substantial human rights
violations or significant undemocratic developments

Community human rights assistance also extends beyond the scope of technical (financial) cooperation in the sense just
described. (community budget constraints, e.g. assistance to the establishment of free and independent media, or assistance
to victims of human rights violations)
Categories of Human Rights
A. General Context: Triad: democracy, human rights and the rule of law.
B. Economic and Social Rights

No doubt that civil and political rights covered by the EC concept of human rights

More open to question, is the status of economic, social and cultural rights
C. Minority Rights

Emphasis on minority rights is not anchored in any long-standing EC law tradition. The concept of minority rights has not had
a specific place in Community law nor does the Amsterdam Treaty introduce the concept into the founding treaties.

More recent emphasis on minority rights and status of minorities: seen part of policy to promote stability and sustainable
development
Conclusion

EC external human rights policy: underpinned by 2 fundamental principles
o 1. Universality (UDHR the normative foundation)
o 2. Indivisibility (this principle stresses that human rights are interdependent and interrelated, that the distinction
between different categories of rights should not lead to watertight compartments between them)

The EC remains formally outside from the written conventions, including the ECHR. This means that it is not directly
responsible for the execution of these conventions.

Although EC accountability can be shown through voluntary cooperation with treaty bodies, the EC adherence to human rights
remains a challenge that needs to be addressed.
SESSION 17: REFORMING THE UN HUMAN RIGHTS SYSTEM
For an overview of the UN HR system, see class notes
UN Charter – legal basis for their human rights mandate:
Article 1: The purposes of the United Nations are:
(3) To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character,
and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion;
Article 55
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among
nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher
standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international
30
economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and
observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
Article 56
All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the
purposes set forth in Article 55.
Clapham, “Creating the High Commissioner for Human Rights: The Outside Story”
The events of 1993 that culminated in the creation of the creation of the High Commissioner
1. The idea of an Attorney-General for human rights, to assist individual petitioners against a respondent state, was advanced.
After various meetings organized by NGOs, the Commission and General Assembly had before it a draft resolution for the
establishment of a High Commissioner for Human Rights. Over the next 15 years, supervision of the two Covenants by the
HR Committee and the Committee on Economic, Social and Cultural Rights. In addition, thematic complaint mechanisms
were created, and county rapporteurs were appointed by the Commission on HR. But, there was a continuing rise in the
number of complaints. The advent of the World Conference on Human Rights forced many to consider the weaknesses of the
system and propose new ideas.
2. The Process of Creation: There was a debate about whether there should be an informal process, or a working group of all
member states. The result: a working group, open to maximum input from governments. Its methodology: the chairman asked
for suggestions from states and NGOs, then put together non-papers with different ideas. The group evolved into a closed
drafting group. The final version still allows for the High Commissioner’s right of initiative, although references to conditionality
and fact-finding missions were removed.
3. Qualities of the final resolution: it affirms the right to development, gives all human rights the same emphasis, and states that
the Vienna recommendations should be implemented by the UN and by governments in cooperation with NGOs. The High
Commissioner is appointed by the Secretary-General and approved by the General Assembly. He/she reports to the
Commission and through ECOSOC to the General Assembly.
Note the preventative role + responsibilities related to promotion and protection of enjoyment of rights. Restrictions on the High
Commissioner include: the framework of the Charter, the obligations to respect sovereignty, territorial integrity and domestic
jurisdiction of states. It is under the direction and authority of the Secretary-General, but the concrete and immediate
restrictions come in the form of inadequate budget and personnel commitment.
4. The Future: during the Rwandan genocide, the HC requested various UN bodies and NGOs for information, held a special
session, passed a resolution appointing a special rapporteur for Rwanda, launched an appeal for a UN programme. Gives a
flavour of the impact the HC has already had. Emphasis on protection has become its defining feature.
Yeboah, “The Establishment of the Human Rights Council”

Key issues in the transition from Commission to Council…

The Commission was established by the UN Charter in 1946 as a subsidiary body of ECOSOC. Its first notable achievement:
the formulation of the UDHR. At first the Commission concentrated on rights promotion, adhering strictly to the principle of
sovereignty. But, the adoption of ECOSOC resolution in 1967 charged it with responding to country-specific or thematic
human rights violations. The implementation increasingly politicized the Commission’s work, and resulted in the
reinforcement of regional and political blocs. One issue was its composition. Calls for reform were provoked.

In 2005, there was agreement to replace it with the Council. Negotiations on the details (nature and composition) followed.

The outcome of debates: No formal negative criteria for membership (main reason US voted against it), election rules different
from the Commission, suspension in the event of gross human rights violations (requiring a two-thirds majority vote in the GA).

The mandates for the new Council:
o Promote universal respect
o Address situations of violations of human rights
o Promote human rights education, as well as advisory services, technical assistance
o Forum for dialogue on thematic issues
o Make recommendations to the GA, on the further development of international HR law
o Promote the full implementation of HR obligations
o Undertake Universal Periodic Review
o Contribute, through dialogue and cooperation, to prevention of HR violations, respond promptly to HR emergencies
o Assume role and responsibilities of the Commission
o Work in close cooperation with governments
o Make recommendations regarding promotion and protection
o Submit an annual report to the GA
o Promote effective coordination and mainstreaming of HR within the UN system

Another important difference between new Council and the Commission: designed as a standing body. Easier to hold special
sessions. The Council is a subsidiary organ of the General Assembly. It kept a number of advantages formerly held by the
Commission, including NGO involvement, the ability to hold standard sessions, civil society and subcommittee mechanisms.

Criticisms and Concerns:
o There are still regional groupings, still a level of politicization involved
o ‘Protection gap’ created by the transition from Commission to Council – this created uncertainty
31
Arguably, not very good timing – not a well-chosen time to reform the system
Its treatment of specific country situations (its abuse of some states, and its failure to take action regarding others)
Membership
The UPR process limitations (no formal role for experts, restricted involvement of NGOs, level of influence of the state
under review, time allotted for each country’s review, the fact that it takes place every 4 years regardless of the
circumstances)
Future of the Human Rights Council?
It has the potential to become stronger and better performing than the Commission. It will continue to be the primary UN body
responsible for human rights promotion and protection. UPR its greatest innovation. Appointed human rights experts could
push the Council forward in addressing country-specific or thematic issues.
But, American non-involvement is troubling, and has created a leadership imbalance.
Will the Council become the seventh principal organ of the UN?
o
o
o
o




HRC Report Canada (2006)

Positive: Canada has acceded to the Optional Protocol to CEDAW and ratified the Optional Protocol to CRC

Subjects of concern:
o Unimplemented recommendations (no Parliamentary committee hearings)
o Disregard for Committee’s requests for interim measures
o Alternative policies may in practice amount to extinguishment of aboriginal rights
o Land claims negotiations at an impasse, continued compromise to a Band’s land by oil, gas extraction and logging
o Decline of aboriginal languages in Canada
o Inadequacy of remedies for violations of articles 2, 3 and 26
o Wide definition of terrorism under the Anti-Terrorism Act, also concerns about non-disclosure of info in proceedings
o Security certificates regime
o Deportation where risk of torture exists
o Cooperation with agencies engaging in torture abroad
o Detention of disabled people, due to insufficient community-based housing
o Situation of women prisoners
o Imprisonment of persons under 18 in adult facilities under the YCJA
o Large-scale arrests of demonstrators by police
o Discrimination on the basis of religion, in the distribution of subsidies to schools
o Human Rights Code does not apply to the Indian Act
o Violence against aboriginal women remains unaddressed
o Cuts in welfare programmes affects children
SESSION 18: REGIONAL HUMAN RIGHTS SYSTEMS
Heyns, Padilla & Zwaak, “A schematic comparison of regional human rights systems: an update” (2006)

The authors provide a useful table comparing the institutional frameworks of the three regional human rights bodies (ECtHR,
IACHR, ACHPR). It is already a summary in itself, but here are some highlights:

Courts/Commissions: The Inter-American system functions with both a Commission and a Court; The European system
functions only with a Court since 1998; The African Commission functioned only with a Commission at first, at Court was
established in 2006.

Standing: In the Inter-American system, only States and the Commission may seize the Court of a matter, all
individuals/groups/NGOs may seize the Commission; Any individual or group claiming to be a victim of a violation may seize
the ECtHR; After the African commission has rendered a report, only the Commission or a State may seize the Court,
NGOs/individuals have right to “direct access” to the Court only where the State has made a special declaration permitting
them, the Commission has interpreted the African Charter as granting standing to any individual/group/NGO

Caseload: The ECtHR case-load dwarfs that of the two other courts. The ECtHR decides thousand cases every year, and has
tens of thousands of applications pending; The Inter-American decides a handful of cases a year, and the Commission
decides approx. 100; The Commission and Court in Africa only render about a dozen decisions a year.
“The future of the Strasbourg Court and enforcement of ECHR standards: Reflections on the Interlaken process” 2009
Conclusions of the Chairperson, Mrs Herta Däubler-Gmelin, of the hearing held in Paris:

The Chairperson discusses some of the challenges faced by the ECtHR, and proposed certain solutions.

The backlog of applications was 120 000 at the time of her writing. Russia alone represented 28 % of this backlog, with Turkey
representing 11 %, Ukraine and Romania 8 % each.

Over half of the Court’s backlog concerns “repetitive applications”, namely arising out of the same State conduct; this is often
because the States producing the most applications fail to implement judgments.

The Convention system in Strasbourg is, due to this case-load, in “danger of asphyxiation.”

The influx of applications from a small number of States is as a result of a lack of culture of respect for human rights by
government institutions in these States, as well as the lack of appropriate domestic human rights mechanisms.
32

A combination of pressure and assistance from the European community is needed to improve the general human rights
situations in the States, if the “root cause” of backlog at the ECtHR is to be addressed.
Lyon, “The African Court on Human and Peoples Rights” 2006

The Protocol Establishing the African Court on Human and Peoples’ Rights was adopted in 1998; in 2004 it reached the 15
ratifications required to come into force.

The Court was officially established in July of 2006. It is composed of 11 elected judges, and the Protocol requires gender,
legal tradition and national diversity (not more than one judge per Member State).

State parties undertook to comply with judgements, but compliance is effectively voluntary.

States must report annually to the Council of Ministers of the AU on implementation of judgements, but the Council has no
formal enforcement mechanism.

Unlike the ECtHR, individuals and NGOs require State permission to have the right to seize the Court directly. This risks
limiting individual/NGO participation before the Court.

The ACHPR has broader subject-matter jurisdiction than the other regional courts: it is not limited to applying the regional
human rights treaty, but may also apply any human rights treaty adhered to by a State.

Prior to the Court’s establishment, there was no formal HR enforcement mechanism for the African regional system, as the
Commission was limited to conducting investigations and communicating results ith States.
SESSION 19: LITIGATING HUMAN RIGHTS (IMMUNITIES)
Office of the High Commissioner for Human Rights: Procedure for complaints by individuals under the human rights treaties

Questions to ask oneself regarding admissibility:
o On someone else’s behalf with authorization?
o Personally affected? (victim)
o Compatible with the provisions of the treaty? (admissible ratione materiae)
o Sufficiently substantiated?
o Inadmissible ratione temporis (before entry into force of treaty)
o Exhausted domestic remedies?
o Abuse of complaints process?
o Examined under another mechanism of international settlement?
o Precluded by a reservation?
ECtHR: Practical guide on admissibility

See the table of contents

If case looks inadmissible ratione temporis, try to make the case that it is a continuing violation.

ECtHR is subsidiary to national system; state ought to have opportunity to put things right.

To satisfy requirement of exhausting domestic remedies, have to
o Raise the complaint at least in substance
o Domestic remedies must be available and effective

If government claims non-exhaustion, it bears the burden of showing that.

If government shows non-exhaustion, applicant has to show:
o Remedy was used,
o Was inadequate and ineffective, or
o There were special circumstances
Al Adsani v United Kingdom, ECtHR 2001

Facts: A-A was air force pilot in Kuwait, came across compromising videotapes. He was taken in a government car to the
Emir’s brother’s palace; also tortured at a state prison by state officials; threatened once he was in England.

Brought civil proceedings in England, but these were dismissed because Kuwait has immunity under State Immunity Act 1978.

Issue: If the prohibition against torture is a jus cogens norm, does this supersede the State Immunity Act 1978 and
international law protecting state immunity?

Reasons:
o Art 3 of CAT (non refoulement) has some extraterritorial application, as found in Soering, but this applies to states
sending someone to torture (para 39). Here, the torture didn’t occur within the UK’s jurisdiction, and the UK had no
causal connection to it. So art 3 was not violated.
o Art 6 (procedures ensuring alleged torturer brought to court) ensures access to courts, but this access is subject to a
margin of appreciation. Nevertheless, the limitations can’t impair the “essence of the right” (para 53). Protecting
state sovereignty is a legitimate aim and warrants limiting right to access a court.
o The question then is whether the status of prohibition on torture is a jus cogens norm (para 57).

Torture is prohibited by lots of HR treaties: UNDHR art 5, ICCPR art 7, CAT art 2.
o However, this case does not concern immunity from criminal prosecution. Rather it concerns immunity from civil
proceedings. None of the HR instruments address this, and there is no firm basis for concluding that a state no longer
enjoys immunity in the face of civil proceedings for torture (61, 66).
33

Holding: State immunity in face of civil proceedings for torture is compatible with IHRL.
Bouzari v Islamic Republic of Iran, Ontario Court of Appeal, 2004

Facts: B was abducted and tortured by agents of Iran. Later came to Canada as a landed immigrant.

Issues: Two important principles: prohibition on torture, and requirement not to subject sovereign states to each other’s
jurisdiction.

Reasons: State Immunity Act 1985 is clear. Even if treaty or customary law prevented immunity, Canada is dualist and has
granted immunity (67). This is compatible with our international obligations. For one thing, state immunity is a customary
international law (85). Prohibition on torture is a peremptory norm of customary international law (87). The question is the
scope of this prohibition, specifically, whether access to civil remedies is necessary to give effect to the right. In Ex parte
Pinochet, it was found that state immunity does not extend to an individual’s immunity from criminal proceedings. Criminal
proceedings against an individual are possible (91). Moreover, state practice does not encompass civil remedies, so these
remedies are not part of the peremptory norm against torture (94).

Holding: Canada’s domestic law, and international law prohibits a civil claim (but not a criminal prosecution) brought in Canada
for torture suffered in Iran.
Davidson, “Remedies for Violations of the American Convention on Human Rights” (1995)

Discusses a couple of cases of forced disappearance of members of Saramaca people in Suriname.

In determining who could claim damage, the court faced a matriarchal, polygamous family structure and harm to the
community as a whole.

Davidson considers that, although the reasoning had lacunae, it advances international law.

He likes the retreat from describing the primary remedy under 63(1) of ACHR as restitio in integrum to a more general
compensation sufficient to remedy all consequences of the violations.

They also awarded moral damages, which makes for consistent jurisprudence, and is preferable to the ECtHR’s inconsistency
and sometimes inadequate approach to moral damages.
Yassin c Green Park International Inc., QCCA 2010

Facts: Green Park has its head office in Montreal. It built residences for Israeli settlers in the West Bank. The Yassins were
displaced, contrary to art 49(6) of the Fourth Geneva Convention (“The occupying power shall not deport or transfer parts of its
own civilian population into the territory it occupies”)

Issue: Could the Cour Superieur decline jurisdiction to hear the case?

Reasons: CCQ 3135 provides that CS can decline jurisdiction on grounds of forum non conveniens only in exceptional
circumstances. This is one such circumstance since the High Court of Israel is clearly the most appropriate forum for this
dispute (the QCCA takes it that Y actually aims its claim against Israel, not really against Green Park). The Israeli court has
jurisdiction to hear such a matter, and it was an implausible argument to say that they wouldn’t actually hear it.

Y also argued that the matter would be non-justiciable in Israel because Israel does not consider the 4 th Geneva Convention
justiciable over its occupied territories. Expert evidence on this question was divided, and the trial judge accepted that Y had
not established that Israeli courts would find their issue inadmissible because non-justiciable (77).

Finally, although the head office is in Montreal, there is no serious connection to Quebec since the dispute bears on
construction in the West Bank, in compliance with the law applicable there.

Holding: forum non conveniens ruling was fine.
SESSION 20: CASE STUDY 1 – THE DEATH PENALTY
Kalin, “Death is different – The death penalty and the right to a fair trial”

Where the death penalty (DP) is still in force, the utmost care must be taken to ensure that no one is sentenced to death who
doesn’t meet the degree of ultimate guilt that justifies execution.
Does IHRL treat death differently from other punishment?

ECHR didn’t until abolitionist Protocols 6 and 13 emerged. Even then, the protocols say nothing about procedural safeguards.

In Öcalan 2005, the ECtHR stated that in Europe “capital punishment in peacetime has come to be regarded as unacceptable
form of punishment that’s no longer permissible under Art. 2.”

Arts 6 ICCPR and 4 ACHR are abolitionist. How are fair trial standards in DP cases different?

Under IHRL, DP may only be imposed when 6 conditions are met:
o Must be an absolutely exceptional measure reserved for the most serious and clearly defined crimes
committed with intent (i.e.: murder and willful infliction of extremely serious bodily and mental harm).
o DP must, according to art 6 para 2 ICCPR, not be ‘contrary to the provision of the present Covenant’ (i.e.: must be
imposed and executed on the basis of laws consistent with HRs – for instance: execution methods must not breach
the prohibition on inhuman treatment)
o Pursuant to art. 6 and all other nulla poena/crimen sine lege provisions, DP may only be imposed in accordance with
criminal laws in force at the time of commission.
o Pursuant to Art. 6, para 2 ICCPR the DP must be imposed in a fair trial based on the rule of law before a
competent court rendering a final judgment. So, the procedural safeguards (art. 14) must be observed.
o All sentenced to DP should be given the opportunity to seek pardon/commutation of sentence (art. 6(5) ICCPR).
34



o Execution of those under 18 years at time of commission and of pregnant women is prohibited (art. 6(5) ICCPR).
Should more stringent procedural standards also be applied at the international level when HRs organs examine DP cases?
o Fair trial guarantees are an inherent part of the right to life in DP cases. In DP cases, “scrupulous respect of the
guarantees of fair trial is particularly important.” Further, the imposition of the DP at the end of a trial in which art. 14
provisions haven’t been respected constitutes a violation of both fair trial guarantees and the right to life (HRC).
o Fair trial guarantees are non-derogable in DP cases.
o Fair trial standards are particularly strict in DP cases.

Violations of the presumption of innocence are particularly important in DP cases;

Right to raise an effective defence is crucial.

Right of appeal crucial. Failure to provide adequate legal assistance to indigent accused is both a violation
of art. 14, para 3(d), but also art. 14 para 5, as denying such assistance effectively precludes an effective
appeals process.

One of the clearest indications that death is different is found in the willingness of IHR bodies to accept that
DPs based on unfair trials amount to inhuman treatment.
International Scrutiny Stricter in DP Cases?
o Authors of communications to the HRC acting on behalf of a person must show that they’re authorized to act by
submitting a power of attorney or similar. In DP cases, HRC has declared admissible submissions by parents and
spouses, acting on behalf of their sons and husbands, even in absence of such authorization.
o Authors of communications to the HRS have an obligation to properly substantiate their claims. Where requisite info
is hard/impossible to obtain, HRC holds that ‘the burden of proof can’t rest alone with the author of the
communication, especially … as the state often has exclusive access to relevant info.’
o Applications to IHR courts/treaty bodies have not suspensive effect. Rule 92 of HRC’s Rules of Procedure allows
HRC to ‘inform a state of its views as to whether interim measures may be desirable to avoid irreparable damage to
the victim of the alleged violation.’
Conclusions
o Death is different: stricter fair trial standards and cases more heavily scrutinized by IHR bodies, particularly the HRC.
o One of the most efficient safeguards against execution is the right to a fair trial. For states with a weak judiciary it’s
almost impossible to use DP without violating procedural rights.
Yong Vui Kong v Public Prosecutor, Singapore Court of Appeal 2010

Key issue in the art. 9(1): (No person shall be deprived of his life or personal liberty save in accordance with law.) Challenge is
whether the mandatory death penalty (MDP) deprives one of one’s life ‘in accordance with law.’

Argument:
o The DP per se doesn’t violate art. 9(1). Argued that MDPs violate art. 9(1) because the removal of judicial discretion
as to whether or not to impose the DP makes the MDP an inhuman punishment, as each offender is treated
identically regardless of his personal culpability.
o IHR norms are relevant in interpreting the Constitution, and the courts should be slow to interpret constitutional
provisions as being inconsistent with Singapore’s international legal obligations.
o The world has changed and so have the civilized norms of humanity, with the result that the MDP is no longer
acceptable and, thus, this court should depart from precedent.
o Customary international law (CIL) prohibits inhuman punishment ergo CIL prohibits MDPs.

Holding and reasons:
o With regard to drug trafficking, the appropriate threshold of culpability for imposing MDPs is for Parliament to decide.
o A generous and purposive interpretation is to be given to constitutional provisions protecting HRs. Court required to
consider the substance of the fundamental right at issue and ensure contemporary protection of that right in light of
evolving standards of decency that mark the progress of maturing society.
o Agree that domestic law should, as far as possible, be interpreted consistently with Singapore’s international legal
obligations. But, there are limits on the extent to which our courts may refer to IHR norms for this purpose.
Reference to IHR norms isn’t appropriate where the express wording of the Constitution isn’t amenable to the
incorporation of the international norms in question
o As for CIL, it’s not self-executing!
o It is not possible to incorporate a prohibition vs inhuman punishment through the interpretation of existing
constitutional provisions for 2 reasons:

The Constitution doesn’t contain any express prohibition vs inhuman punishment.

More importantly, a proposal to add an express constitutional provision to this effect was made to the
Government in ’66 and denied.
Roger Judge v. Canada, Human Rights Committee (2003)

Issue: Since Canada has abolished the DP, did it violate J’s rights to life (art. 6 ICCPR), his right not to be subjected to
torture/inhuman treatment/punishment (art. 7), or his right to an effective remedy (art. 2, para 3) by deporting him to a State in
which he was under a death sentence without ensuring that the sentence wouldn’t be carried out?

Previous jurisprudence (Kindler) holds that abolitionist states could deport individuals to states where they were facing the DP
without incurring an art. 6 violation. But, Kindler is 10 years old, and there’s a broadening international consensus in favour of
abolishing the DP. Since Kindler Canada recognized the need to amend its own law to secure the protection of those
35




extradited from Canada under death sentence in the receiving state (Burns). SCC held that the government must seek
assurances in all but exceptional cases that the DP not be applied, prior to extraditing the individual.
A plain reading of art. 6 makes it clear that abolitionist states have an obligation to protect extraditees from the DP in all
circumstances
The HRC treats abolitionist and retentionist states differently as an inevitable consequence of the wording of art. 6.
Therefore, the HRC considers Canada violated J’s right to life by deporting him to the US where he’s under a death sentence.
In deporting him, Canada established the crucial causal link that would make possible J’s execution.
SESSION 21: CASE STUDY 2 – THE WEARING OF THE “VEIL” AND OTHER RELIGIOUS SYMBOLS
Leyla Sahin v Turkey, ECtHR 2005

S wears the Islamic headscarf. At the university where she was a med student, the Vice-Chancellor of the University issued a
circular directing that students with beards and students wearing the Islamic headscarf would be refused admission to
lectures, courses and tutorials. She was denied access to exams and was not permitted to enroll in a course. She was given a
warning for contravening the university's dress code and was suspended for a term for taking part in an unauthorized
assembly that had gathered to protest against them.

Law: The EHtCR considered the plaintiff’s argument concerning Articles 9 (thought, conscience, religion) and 14
(discrimination) of the ECHR, she also relied on Articles 8 (private and family life) and 10 (expression).

The court considered Turkey’s secularism in relation to its own history and in relation to the position of other EU countries

The court established that although Sahin’s Article 9 rights helped to form the base of a “democratic society,” this right was not
absolute and could be constrained by the need for public order.

“116. Having regard to the above background, it is the principle of secularism, as elucidated by the Constitutional Court,
which is the paramount consideration underlying the ban on the wearing of religious symbols in universities. In such a context,
where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are
being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular
nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the
present case, the Islamic headscarf, to be worn.”

The court considered the proportionality between the means and the legitimate objective and found that given the margin of
appreciation granted to the State in this sphere, the means and legitimate objectives were permissible and the claimant lost,
there was no violation of Article 9.
Ranjit Singh v France HRC 2011

Singh had refugee status in France since 1992. He alleged a violation under the ICCPR as the French government required
that he remove his turban, as a practicing Sikh something which is near blasphemous for the religion, when having
photographs taken for his French residency card. His refusal to do so and the government’s refusal to grant an exemption
resulted in him losing his identity card, which thereby cut off his access to all state benefits (housing, income assistance,
healthcare), something which otherwise he would have full access to given his strained financial situation which amounted to
indirect discrimination. Claimant argued that Sikhs are considered identifiable in other European countries, but not in France,
an inconsistency in the application of identity laws.

France argued that, given ECHR case law that explains that Article 9 does not provide protection from all infringements on
religious freedom that prove to be justified given public safety concerns surrounding identity. Any discomfort suffered by the
claimant had to be balanced against the public interest of not having a market full of falsified residence permits.

Law: the Committee did not contest that the claimant would suffer an infringement of the ability to manifest his religion but did
attempt to balance this against the State’s claim for the public interest.

However, the Committee found that Article 18, paragraph 3 of the ICCPR had been breached as the State had failed to
explain how the removal of a turban that covers only a small portion of the forehead would assist in ensuring
security. Finally, the Committee found that the repetitious nature of the inconvenience (always having to remove the turban
for purposes of comparison to the photograph) was unjust.

Committee ordered France to provide a remedy for the claimant and to publish the Committee’s views.
Dahlab v Switzerland ECtHR

D was a primary school teacher at a state-funded school in Switzerland. She converted to Islam in 1991 and began wearing a
headscarf while working. In 1996 the Swiss authorities requested that she not wear the scarf given that it violated the
“denominational neutrality” principles established in section 6 of the Public Education Act.

D filed a complaint under Article 9 (conscience, though, religion) of the ECHR as wearing the headscarf was paramount in her
ability to “manifest her religion.” As well, she filed a complaint under Article 14 (discrimination) because the headscarf, a
practice particular to women, would not have been an issue for a man (Muslim men would not encounter a similar problem)

Law: the Courts rejected her claims based on her role as a civil servant to the Canton of Geneva, a relationship that implies
subordination to the State. Court found that there were substantial public interest grounds for denominational neutrality in
school. Then went on to consider proportionality and found that, given the young age of the students (4-8 years), the
compulsory nature of primary education and the strict separation between church and state that the Canton of Geneva had
long adopted, the measures were justified and her Article 9 rights had not been violated and that the State’s actions had been
within the margin of appreciation accorded to them.
36

In terms of the Article 14 violation the Court found: “In the instant case that the measure by which the applicant was prohibited,
purely in the context of her professional duties, from wearing an Islamic headscarf was not directed at her as a member of the
female sex but pursued the legitimate aim of ensuring the neutrality of the State primary-education system. Such a measure
could also be applied to a man who, in similar circumstances, wore clothing that clearly identified him as a member of a
different faith. The Court accordingly concludes that there was no discrimination on the ground of sex in the instant case.”
Lautsi and others v Italy ECHR Grand Chamber 2011

Parents suggested crucifixes on walls of classrooms be removed in the interest of secularism. The school board rejected this.

Grand Chamber found that there was basis Article 2 and Article 9 had been violated and that there is a “negative right” to
freedom of religion (freedom not to believe anything at all) and that the State was bound to not impose religious beliefs on its
citizens. The crucifixes on the wall, in a public school where attendance was compulsory, amounted to such a violation as this
limited the ability for parents to educate their children in their own convictions. The applicants also filed under Article 14
(discrimination) as non-Catholics.

Law: Court considered that the State has a duty of “neutrality and impartiality” in all aspects of being a public authority, and
that as an educator this included the classroom, not just the curriculum. At the same time, the State argued that crucifixes
comprised a historical significance in Italy and that this amounted to the State perpetuating a tradition, something the Court
said fell to the margin of appreciation enjoyed by the State.

Ultimately, the Court found that the margin of appreciation resulted in no violation of Article 9 and that the claim in Article 14
would not be considered as there was no cause to given that Article 9 was not seen to be violated.
Taylor and Bouchard, “Building the Future: A Time for Reconciliation”
This report focused on “reasonable accommodation” and the evolving nature of Quebec.

Below is a summary of our priority recommendations. The full report presents the entire array of recommendations. Our
recommendations follow five key themes:
o Call for definition of new policies and programs pertaining to interculturalism (legislation, a declaration or a policy
statement) and secularism (a proposed white paper).
o Several recommendations are linked to the central theme of integration and focus primarily on: a) recognition of
immigrants’ skills and diplomas; b) francization programs; c) the need for more sustained efforts to regionalize
immigration; and d) the need for enhanced coordination between government departments.
o From the standpoint of intercultural practices and mutual understanding, our recommendations highlight: a) the need
for broader training of all government agents in public establishments, starting with the schools, because of the role
they play in socialization; and b) the need to further encourage community and intercommunity action projects.
o In keeping with the harmonization policy formulated in our report, our recommendations are intended to foster the
accountability of interveners in the citizen sphere (public and private agencies) by ensuring that they have received
adequate training. We are asking the government to ensure that the practical knowledge acquired in institutions be
recorded, promoted and disseminated in all of the milieus concerned.
o Another priority field is the fight against inequality and discrimination. Our recommendations in this respect focus
primarily on: a) the underrepresentation of ethnic minorities in the public service; b) the urgency of combating the
numerous forms of discrimination, Islamophobia, anti- Semitism and racism to which racialized groups are subject,
especially Blacks; c) the support to be offered immigrant women; d) the need to increase the resources of the
Commission des droits de la personne et des droits de la jeunesse; and e) the strengthening of economic and social
rights in the Québec Charter
SESSION 22: CASE STUDY 3 – HIV/AIDS AND HUMAN RIGHTS
Report of the Secretary General to the Human Rights Council, “The protection of human rights in the context of HIV/AIDS”

Stigma about the clinical realities of the condition (particularly mode of transmission) and the link to “bad behaviours.”

Various governments report HIV as a “gay disease” or linked to drug use or sex trade work

Access to justice for HIV-positive people remains poor and discrimination remains rampant

Restrictions on residency based on HIV status remains a valid concern

Participation of vulnerable groups remains relatively poor given the levels of stigmatization

Migrants and refugees remain the group least likely to ably participate in HIV policy shaping

Lack of access to health services remains a paramount obstacle in treating patients with HIV/AIDS

Gender based violence and subordination remains a major problem

Women’s rights in marriage and property and inheritance are linked as major risk factors for HIV status

UNICEF and Caritas International both raise the issue of children living with HIV and orphaned by AIDS, particularly regarding
access to health information, sexual testing and access to healthcare due to costs

HIV testing remains highly contentious, particularly regarding the privacy of these records and the notion of mandatory testing
infringing on a person’s human rights
Minister of Health and Others v Treatment Action Campaign and Others (No 2) Constitutional Court of South Africa 2002

Department of Health paper in South Africa reveals that HIV/AIDS is a calamity. The court, in an earlier decision, found “that
government had acted unreasonably in (a) refusing to make an antiretroviral drug called nevirapine available in the public
37
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health sector where the attending doctor considered it medically indicated and (b) not setting out a timeframe for a national
programme to prevent mother-to-child transmission of HIV.”
Issues: Efficacy, resistance, safety, capacity, reasonableness
o Considerations relevant to reasonableness: In Grootboom this Court held: “to be reasonable, measures cannot
leave out of account the degree and extent of the denial of the right they endeavour to realize. Those whose needs
are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the
measures aimed at achieving realization of the right.”
Ultimately, the Court ordered the government to remove the restrictions on the drug, permit its use and facilitate its application
and make reasonable provisions for counseling and for HIV testing to expedite the use of the drug.
Enhorn v Sweden ECtHR 2005

E was HIV positive and was essentially increasingly quarantined over a number of years.

Applicant filed a claim to the ECtHR based on Article 5 that the isolation orders and involuntary placement in hospital
amounted to a deprivation of liberty. Court agreed that there had been and unjustified violation of Article 5.

“40. The Court must therefore proceed to examine whether the deprivation of the applicant's liberty amounted to “the lawful
detention of a person in order to prevent the spreading of infectious diseases” within the meaning of Article 5 § 1 (e)”

“There is no indication that the applicant transmitted the HIV virus to the young man as a result of intent or gross neglect,
which in many of the Contracting States, including Sweden, would have been considered a criminal offence.”

55. In these circumstances, the Court finds that the compulsory isolation of the applicant was not a last resort in order to
prevent him from spreading the HIV virus because less severe measures had not been considered and found to be
insufficient to safeguard the public interest. Moreover, the Court considers that by extending over a period of almost seven
years the order for the applicant's compulsory isolation, with the result that he was placed involuntarily in a hospital for almost
one and a half years in total, the authorities failed to strike a fair balance between the need to ensure that the HIV virus did not
spread and the applicant's right to liberty.
N v United Kingdom ECtHR 2008

N entered the UK under an assumed name and it was discovered that she was HIV positive and very ill. She applied for
asylum in the UK and was rejected on grounds of credibility.

The House of Lords dismissed the appeal. They applied the following test: whether the applicant's illness has reached such a
critical stage (i.e. she is dying) that it would be inhuman treatment to deprive her of the care which she is currently receiving
and send her home to an early death unless there is care available there to enable her to meet that fate with dignity.
o The HL said the test was not met on the facts of this case

The applicant alleged that if she were returned to Uganda she would not have access to the medical treatment she required
and that this would give rise to violations of Articles 3 and 8 of the Convention.

The applicant made a filing to the ECtHR concerning her expulsion based on Article 3 (ill-treatment), devised under the
premise that: “Article 3 principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the
receiving country emanates from intentionally inflicted acts of the public authorities there or from non-State bodies when the
authorities are unable to afford the applicant appropriate protection

In summary, the Court observes that since D. v. the United Kingdom it has consistently applied the following principles:
Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of
a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services
provided by the expelling State.

The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be
removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien
who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are
inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case,
where the humanitarian grounds against the removal are compelling.

In the D .v. United Kingdom case the very exceptional circumstances were that the applicant was critically ill and appeared
to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family
there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

Ultimately, the court determined that there was no violation of Article 3

The Court accepts that the quality of the applicant's life, and her life expectancy, would be affected if she were returned
to Uganda. The applicant is not, however, at the present time critically ill. The rapidity of the deterioration which she would
suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from
relatives, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards the
treatment of HIV and AIDS worldwide.
SESSION 23: CROSS-CUTTING ISSUE 1 – TERRORISM AND HUMAN RIGHTS
Report of Special Rapporteur on promotion, protection of HR and FF while countering terrorism, Ben Emmerson, HRC 2013

Gross or systemic HR violations include State-sanctioned torture in the course of interrogation and the “usual suspects” in
terms of detention and treatment in the pursuit of information regarding terrorism.
38
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

The right to truth has been recognized as involving victims, their families and the public at large to know all information
regarding the violation and who authorized it.
Principle of accountability in international HR law obliges states to effectively investigate in order to avoid agents of the
State abusing their positions with impunity. The investigative body must be truly independent of the government.
Those found to be in violation should be prosecuted in recognition of the gravity of their abuses.
Report on Terrorism and Human Rights, Inter-American Commission on HR 2002

There is no comprehensive understanding of the word “terrorism”

As this lack of understanding exists, there is a sense that certain acts with certain actors constitute terrorist acts while others
do not, which is troubling given that terrorism is not a ‘one size fits all’ phenomena.

As of now, the UN definition is considered the most authoritative: criminal acts intended or calculated to provoke a state of
terror in the general public, a group of persons or particular persons for political purposes [which] are in any
circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any
other nature that may be used to justify them.

These and other authorities suggest that characteristics common to incidents of terrorism may be described in terms of: (a) the
nature and identity of the perpetrators of terrorism; (b) the nature and identity of the victims of terrorism; (c) the objectives of
terrorism; and (d) the means employed to perpetrate terror violence.
El Masri v Former Yugoslav Republic of Macedonia, ECtHR 2012

Facts: In December 2003 the applicant, a German citizen, was mistakenly abducted by Macedonian police who turned him
over to the CIA who tortured, sodomized and interrogated him , at which point he was released in April 2004 when the CIA
realized he was not who they thought he was.

His American civil suit was dismissed owing to US ‘state secrets’ laws.

The court determined that he had been unlawfully tortured by the CIA and that Macedonia, having turned him over, was
responsible for abusing him while in the country and after the CIA took him to Afghanistan, knowingly transferring him to the
CIA with the knowledge that torture was a possibility.

The court found a violation of the procedural limb of Article 3 – lack of an effective investigation

The court found a violation of the substance of Article 3: Macedonia is responsible for the inhuman and degrading
treatment to which the applicant was subjected while in the hotel, for his torture at Skopje airport and for having transferred the
applicant into the custody of the US authorities, thus exposing him to risk of further treatment contrary to Article 3
A and Others v The United Kingdom, ECtHR 2009

Facts: In light of 9/11 the UK government made changes to the UK’s Anti-Terrorism, Crime and Security Act 2001 that made
provisions for indefinite detention of foreign prisoners without trial or deportation. This power applied to only non- nationals.

Article 15 of the ECHR provides for the State to make derogations for the life of the nation in times of emergency, only so far
as absolutely necessary. After the House of Lords declared this Act incompatible with the ECHR 9 applicants made claims at
the ECHR under Article 5 (liberty and security).

The Court affirmed that the Act was a violation of the rights guaranteed under the Convention because it discriminated
between British nationals and non-nationals and that the margin of appreciation accorded to the State was not
sufficiently broad enough to justify the measures.
SESSION 24: CROSS CUTTING ISSUE 2 – DETENTION, IMPRISONMENT AND HUMAN RIGHTS
United Nations, Standard Minimum Rules for the Treatment of Prisoners, 1955.

These rules set out “what is generally accepted as being good principle and practice in the treatment of prisoners and
management of institutions.”

Given the disparate conditions from state to state, it is evident that not all the rules are capable of application in all places at all
times. They aim to stimulate a constant endeavour to overcome practical difficulties in the way of application, in the
knowledge that they represent the minimum conditions accepted as suitable by the UN.
OAS, Inter-American Commission on Human Rights, Country Report 2009: Peru, Chapter IX (Prison Conditions)

Prisoners are exceptionally vulnerable to human rights violations, and prisoners in Peru and elsewhere in South America are
in preventive detention rather than serving sentences following conviction.

Prisons tend to perpetuate the very problems they’re ostensibly in place to address and that marginalized members of society
are disproportionately likely to be imprisoned.

International legal framework: Reviews the relevant articles of the IACHR (arts. 1 (general respect for rights and freedoms); 5
(right to humane treatment); 7 (right to personal liberty and security). Also refers to Standard Minimum Rules for Treatment of
Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention/imprisonment.

Domestic legal framework: Looks at the Peruvian Constitution, the 1991 Code of Criminal Enforcement, etc.

Prison Situation:
o The fact that more than half of those in prison haven’t been convicted is concerning. Bail should be the rule, not the
exception! Trials should be conducted in reasonable time (art. 8(2) IACHR). Unacceptable situation of overcrowding
and deficiencies in food given to inmates.
39
Peru says it’s working on improving conditions.
Conditions of detention are excessively severe (i.e.: over-indulgence in solitary confinement).
The IACtHR had already declared that the conditions of detention for some constituted cruel, inhuman, and degrading
treatment contra art. 5.
o The search procedures to which prison visitors are subject are unacceptable (i.e.: women visitors’ dignity and health
is violated by vaginal inspections with unsanitary gloves).
o Female inmates aren’t being permitted conjugal visits.
o The practice of transferring prisoners (whether in preventive detention or convicted) across the country without any
judicial order is unacceptable. Also, medical care for prisoners is inadequate.
o The Challapalca prison may not meet the minimum conditions for human survival.
Recommendations:
o Prison policy should be guided by respect for dignity of detainees (art. 7(6))
o Prison system should be brought into compliance with national and international laws.
o Bail should be the rule, not the exception, etc.
o
o
o

Optional Protocol to CAT, UNGA Resolution A/RES/57/199, 2002

The OPCAT was adopted on December 2002 by the UNGA and entered into force in June 2006. It establishes the
Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment/Punishment (SPT). The SPT visits
all of detention sites in states parties (operational function) and provides assistance and advice to both states parties and
National Preventive Mechanisms (NPMs – also established by the OPCAT, art. 3: “each SP shall set up at the domestic level
one or several visiting bodies for the prevention of torture etc, established under art. 17). SPT cooperates with relevant UN
and non-UN bodies.

SPT must be allowed to interview persons deprived of their liberty – and any other person the SPT thinks might have relevant
information on detention (i.e.: government officials, etc.) – in private.

SPT’s guided by principles of confidentiality, impartiality, non-selectivity, universality and objectivity.

If a State Party refuses to cooperate with the SPT, SPT may request the Committee against Torture to make a public
statement or to publish the SPT report.
McLemore, “Prison and Drugs: State often denies help, then isolates in-prison users” 2009

NY prisoners caught using/possessing drugs are subject to solitary confinement and prohibited from participating in drug
treatment programs.

As prisoners with drug problems wait for months or years for treatment, they’re caught in a Catch-22: at high-risk of relapse,
but punished and denied access to treatment if they do.

Though prison drug treatment programs are cost effective, saving $2-$6 in health care and reincarceration costs for every
dollar invested, they’re woefully underfunded. Without treatment programs, drug demand in prisons rises as do security
problems.

Long periods of solitary confinement are disproportionate punishment for prisoners who use drugs. For addict prisoners, the
punishment of the symptoms of a chronic, relapsing disease, combined with a denial of treatment, is cruel and degrading
treatment that violates int’l law.
Human Rights Watch, “Letter to President Vladimir Putin: Denial of HIV Treatment endangering Russian prisoners’ life,” 2008

Focuses on treatment of Vasily Aleksanyan, a pre-trial detainee whose life is at immediate risk due to AIDS unless transferred
to a specialized hospital. The ECtHR has repeatedly ordered Russia to facilitate Aleksanyan’s transfer to such a hospital, but
these haven’t been honoured.

Russia has told the ECtHR that Aleksanyan’s refusing treatment, whereas Aleksanyan’s lawyers have argued the opposite.

While detained, Aleksanyan developed both TB and lymphoma, incidental to HIV.

DG note: Months later, Aleksanyan was granted bail.
Price v. United Kingdom, ECtHR 2001

Facts: applicant is four-limbed deficient and has kidney problems. Was imprisoned for 7 days for contempt of court. First
detained in an ill-equipped, cold cell. Later moved to medical ward of a prison where conditions were better, but still bad.

Claim: P’s committal to prison and treatment in detention violated art. 3

Significant that documentary evidence submitted by the government, including contemporaneous custody and medical
records, indicated that police and prison authorities were unable adequately to cope with the applicant's special needs.

No evidence in this case of any positive intention to humiliate/debase. But, to detain a severely disabled person in
conditions where she’s dangerously cold, risks developing sores because her bed’s too hard/unreachable, and is unable to go
to the toilet or keep clean without the greatest difficulty, constitutes degrading treatment.
Keenan v. United Kingdom, ECtHR 2001

Facts: Keenan had been receiving intermittent anti-psychotic medication from the age of 21. His mental illness made prisonlife exceptionally difficult. Keenan assaulted two hospital officers. The same day, he was placed in a segregation unit of the
prison punishment block. On 14 May, he was found guilty of assault and his overall prison sentence increased by 28 days,
40
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


including seven extra days in segregation in the punishment block, effectively delaying his release date from 23 May 1993 to
20 June. On 15 May 1993, he successfully hung himself in his cell.
Issues: Applicant alleged son had died from suicide in prison due to prison authorities’ failure to protect his life, that he’d
suffered inhuman and degrading treatment due to the conditions of detention imposed on him and that she had no effective
remedy in respect of her complaints. She relied on articles 2, 3 and 13. Art. 2 argument rejected and not part of our readings.
The Court found the lack of effective monitoring of K’s condition and the lack of informed psychiatric input into his assessment
and treatment disclosed significant defects in the medical care provided to a mentally-ill person known to be a suicide risk. The
belated imposition on him in those circumstances of a serious disciplinary punishment - seven days' segregation in the
punishment block and an additional 28 days to his sentence imposed two weeks after the event and only nine days before his
expected date of release - which may well have threatened his physical and moral resistance, was not compatible with the
standard of treatment required in respect of a mentally-ill person. Violation of Article 3 found.
There were two issues under Article 13 (right to an effective remedy):
Did K had available to him a remedy in respect of the punishment inflicted on him?
o No remedy at all was available to K which would have offered him the prospect of challenging the punishment
imposed within the seven-day segregation period or even within the period of 28 days' additional imprisonment.
o Even assuming judicial review would have provided a means of challenging the Governor's adjudication, it wouldn’t
have been possible for K to obtain legal aid, legal representation and lodge an application within such a short time.
o Similarly, the internal avenue of complaint against adjudication to the Prison Headquarters took an estimated 6wks.
o If it were the case that K wasn’t fit to make use of any available remedy, this would point to the need for the automatic
review of adjudication.
o Also, not persuaded that effective recourse against the adjudication would not have influenced the course of events.
o K had been punished in circumstances disclosing a breach of article 3 and had the right, under article 13, to a remedy
which would have quashed that punishment before it had either been executed or come to an end.
Did the applicant, either on her own behalf or as the representative of her son's estate, have a remedy available to her?
o Inquest didn’t provide a remedy for determining authorities’ liability for any alleged mistreatment, or for providing
compensation. Applicant should’ve been able to apply for compensation for her non-pecuniary damage and that
suffered by her son before his death.
o Also, no effective remedy was available to the applicant, which would have established where responsibility lay for
her son's death. This was an essential element of a remedy under article 13 for a bereaved parent. Violation found.
SESSION 25: CROSS-CUTTING ISSUE 3 – POVERTY AND HUMAN RIGHTS
Sen, “Poverty as Capability Deprivation”

Poverty must be seen as deprivation of basic capabilities rather than merely lowness of incomes.

Claims in favour of the capability approach to poverty are
o Poverty can be identified in terms of capability deprivation, an approach that concentrates on deprivations that are
intrinsically, not just instrumentally, significant
o There are influences on capability deprivation, and therefore on real poverty, other than low income
o The instrumental relation btw low income and low capability is variable btw communities, families, and individuals

Problems with income approach to poverty include the fact that it doesn’t take other factors such as age, gender, etc. into
account; that there are “couplings” of disadvantages; problems of distribution within families; relative deprivation (i.e. being
relatively poor in a rich country can be a great capability handicap)

Author illustrates thesis by looking at poverty and inequality in other “spaces” in different regions of the world. One section
looks at India and Sub-Saharan Africa, which have among the lowest per-capita incomes. “If poverty is seen as the deprivation
of basic capabilities, then a more illuminating picture can be obtained from information on aspects of life in these parts of the
world.” Premature mortality is a bigger problem in Africa than India. On the other hand, undernourishment is much more
prevalent in India. Illustrates a partial picture of capability poverty.

Capability perspective in poverty analysis enhances our understanding of the nature and causes of poverty and deprivation by
shifting the primary attention away from means to ends that people have reason to pursue, and correspondingly to the
freedoms to be able to satisfy these ends.

Chapter illustrates the different ways there can be “systematic variations in the relationship between incomes earned and
substantive freedoms (in the form of capabilities to lead lives that people have reason to value).”
Alston, “Ships Passing in the Night: The Current State of the HR and Development Debate Seen through the Lens of the
Millenium Development Goals”

MDGs = most important focus in efforts to promote human development and reduce poverty. Of major relevance for HR.

Int’l legal framework of HR featured prominently in the Millennium Declaration. Important to ensure that MDGs are
implemented in a HR-sensitive manner and using HR norms and techniques

Attempts to link HR and development issues, in UN context, date to 1968. High hopes, but hasn’t produced much

How can the MDG process be made more HR friendly? How can HR standards and procedures be mobilized to enhance the
effectiveness of MDG initiative?
41
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



Several approaches to human-rights-based programming have been put forward. Author critiques them on the basis that they
are abstract, untargeted, untested, offer little guidance, are overly optimistic wrt bodies’ abilities to implement
recommendations, etc.
Can lead to unintended consequences: “unless carefully targeted, the promotion of a rights-based approach … could well
reinforce the rights…of those who already have power” (806)
Another issue is that the range of actors involved in development is huge. Some have limited mandates and might not be able
to take the lead on HR issues.
Strengthening the HR based approach: need to be selective and set priorities—can’t treat all HR elements as essential or
necessary; need to be realistic about obstacles that impede the adoption of HR methodologies. Calling for HR approach
demands a paradigm shift on the part of the development community—need a change in choice of partners, activities, etc.
Two things important as move ahead:
o HR community will have to demonstrate feasibility of advocated approaches
o Incremental change is more likely to succeed
“Despite the importance of the many versions of a human rights based approach to development suggested by a variety of
actors, too many of them have tended to gloss over the complexities, to idealize the characteristics of the human rights
mechanisms, to be excessively optimistic as to the extent of fundamental changes that may realistically be expected, and to
be poorly attuned to the need to set operational priorities. In the future, human rights proponents need to prioritize, stop
expecting a paradigm shift, and tailor their prescriptions more carefully to address particular situations.”
Riches, “Food Banks and Food Security: Welfare Reform, HR and Social Policy – Lessons from Canada?”

ICESCR, art 11: “recognizes the right to everyone to an adequate standard of living for himself and his family, including food,
clothing, and shelter” and “the fundamental right of everyone to be free from hunger.”

Levels of government in Canada were asked by UN committee monitoring Canada’s compliance with this instrument whether
the need for FBs was consistent with art. 11. Most provinces and federal government didn’t answer the question.

HR to food lacks constitutional entrenchment in Canada, but Can has historically acknowledged this right through ratification of
various instruments

But treaties aren’t self-executing. Incorporation into domestic law requires implementation, which hasn’t happened.

Rise in food banks (FB) is evidence of the breakdown of the social safety net; signals the prevalence of food poverty and the
failure of the welfare state; abandonment by federal and provincial governments of their international obligations to respect,
protect, and fulfil the human right to food.
Justiciability of ESC Rights—The Indian Experience
Judicial Activism and Public Interest Litigation

In 1978/79, the judiciary initiated the Public Interest Litigation (PIL) movement.

The development in India of jurisprudence on ESC rights is linked to this

PIL acknowledged that the majority of the population, on account of social, economic status, and disability was unable to
access the judicial system

Rules of standing and procedure were relaxed to facilitate access (a postcard could be treated as a writ petition)
Maneka Gandhi Case and Thereafter

Maneka Gandhi v Union of India was a landmark case. Government had refused to grant MG a passport

The court asserted the doctrine of substantive due process as integral to the chapter on fundamental rights and emanating
from a collective understanding of the scheme underlying arts. 14 (right to equality), 19 (freedoms), and 21 (right to life).

Power of the court to strike down legislation was broadened to include critical examination of the substantive due process
element in statutes

Following this broadened view of the right to life and liberty, art 21 was interpreted to include other incidental rights (dignity,
living conditions, health).

The expansion of the right to life and the use of PIL led the court into areas where there had been a need for social justice

By reading these incidental rights in the right to life, the court overcame the difficulty of the justiciability of these as economic
and social rights, which were previously unenforceable.
SESSION 26: CROSS-CUTTING ISSUE 4 – MULTINATIONAL CORPORATIONS AND HUMAN RIGHTS
Kiobel v. Royal Dutch Petroleum Co., Centre for Constitutional Rights
Case synopsis:

The families of twelve Nigerian community activists tried to bring a class action lawsuit in the US against Shell, arguing it was
complicit in crimes against humanity, arbitrary detentions and extra-judicial killings.

The activists were opposed to Shell’s petroleum exploitation in the Ogoni area of the Niger Delta.

They brought the claim under the Alien Torts Claim Act (ATCA), which gives American courts broad jurisdiction over any
foreign tort committed in violation of international law.

In 2010, the majority of the Second Circuit Court of Appeals found that multinational corporations could not be held liable
under the ATCA, holding that they were not subjects of international law.
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
The Unites States Supreme Court ordered in October 2012 that the question of liability of MNCs under the ATCA for violations
of international human rights law be argued before it. Its judgment is pending.
Muchlinski, “Human Rights and Multinationals, is there a problem?” (2001)
Synopsis: In the context of a growing debate as to whether multinational corporations should be bound by international human rights
law, the author presents the main arguments for and against this option.

Traditionally, human rights law has treated multinational corporations as subjects of human rights protections, rather than
holders of human right obligations.

The notion that the State, due to its dominant position in society, is the main potential source of human rights violations is
eroding due to the increasing power of multinational corporations and their international mobility in a globalized world.

Arguments against extending human rights obligations to MNCs include: 1) MNCs are businesses; their only responsibility is to
maximize return for shareholders, therefore they are ill-adapted to determine how to best respect human rights, 2) MNCs, as
private actors, only have a duty to obey the law; it is the State’s responsibility to adequately regulate their conduct, 3)
extending HR obligations to MNCs will create a “free-rider” problem: less conscientious corporations will be more competitive
than conscientious ones, as respecting HRs will impose additional costs.

These arguments are all premised on the notion that MNCs are “private actors” with no broader duty to the community.
However, their increasing power over peoples’ lives, combined with the clear “democratic deficit” in their decision-making,
tends to weaken this position.

(My comment) Also, the idea that private individuals are holders of human rights obligations is not that novel, as shown by all
the “human rights codes” in North America or the Québec Charter.

Arguments in favor of the extension include: 1) Viewing the corporation as a locus of power in society requires imposing
obligations concomitant with this power. Globalization has created new modes of exercise of political power, and international
organizations like the WTO and IMF are perceived as highly influenced by MNCs, yet these organizations suffer from a serious
“democratic deficit” in their decision-making. 2) Human rights are good for business. Businesses cannot thrive in the instability
of a political context where fundamental human rights are not respected. The public is increasingly sensitive to human rights,
and civil society is increasingly apt at exposing corporate misbehaviour; corporations with poor human rights records will
suffer.

The author further argues that MNCs are much less likely, as business rather than political organizations to violate human
rights. He also argues that placing too much emphasis on MNCs may remove pressure from States, who hold the primary
responsibility to protect human rights and must as such adequately regulate corporations.

(My comment) I take exception with the view that MNCs have low incentives to violate human rights. On the contrary, the
duty/necessity to maximize returns creates a strong incentive to operate in violation of human rights when it is possible to do
so without being held accountable/re-locate to regions where this is possible. The delocalization of the entire manufacturing
industry to developing countries and the behaviour in these countries of corporations in the resource-extraction industry
provide ample evidence of this.

Second, the idea that States should still be the primary obligation-holders in human rights law may not sit well with the fact
that, in developing areas, MNCs are often more powerful that the State and may even exert control over it.

Finally, the article entirely ignores the notion that States in developed countries, where management and shareholders of
virtually all MNCs are located, might bear the strongest obligation to ensure that these MNCs are respecting human rights
internationally.
Report of the Special Rapporteur of the Secretary General, Guiding Principles on Business and Human Rights

These are impossible to summarize unfortunately, as each principle contains a different idea. The three pillars of the principles
are: i) The State’s duty to protect against human rights abuses by third parties, and to provide access to a remedy when an
abuse occurs ii) Corporations/business organizations have a responsibility to respect human rights iii) Rights and obligations
must be matched with effective remedies.

Interesting principles are: i) The responsibility of States where corporations are domiciled to ensure that these corporations
respect human rights internationally ii) Corporations’ responsibility to respect human rights exists independently of the States’
human rights obligations, and are not diminished if the State fails in respecting them iii) Business must integrate the potential
for human rights abuses in their assessment of the risks of any given venture; they must act with “due diligence” in preventing
their occurrence and responding to them if/when they do iv) The Principles propose on-site grievance mechanisms
administered by the corporation as a complement to judicial/administrative recourses

This proposition raises the concern, discussed above, of the State illegitimately “out-sourcing” its responsibility to protect
human rights.
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