JUS5701
Personal
scope of
application
Temporal
scope of
application
Scope of
application
of human
rights
treaties
Material
scope of
application
Territorial
scope of
application
Application of international
humanitarian law
Other norm conflicts
Treaties
UN Charter
applyof
Art. 103
Human rights
Scope
treaties Personal
apply
application
Material
at all times…
scope of…even duringof human
scope of
armed conflicts
application
application
rights
…unless
there exist
treaties
circumstances that modify
or exclude the application
Territorial
Temporal
scope of
scope of
application
application
Reservations
Derogations
Limitations
Denunciations
Reservations, derogations and
limitations in a nutshell
Has the State
ratified the
treaty?
YES
Are there
valid
reservations?
NO
Is there a
valid
derogation?
NO
NO
YES
THERE IS
NO RIGHT
HUMAN RIGHT YES
Is there NO
EXISTS, BUT
a valid
DOES NOT
limitation?
APPLY
HUMAN
RIGHT
EXISTS
YES
HUMAN RIGHT
EXISTS AND
APPLIES
Art. 2.1(d) VCLT: ”A unilateral statement
… made by a State … whereby it
purports to
exclude or to modify the
Declarations?
legal effect
Cannot destroy
the of certain
Is provisions
acceptanceof the
in their application
to that State.”
nature oftreaty
the right
required?
Some treaties
explicitly allow
for reservations
T.K. v. France, 1987 HRC 220
lightVCLT:
of article
Art.”In
19-23
A 2 of the
Heightened
State
Constitution
may make
ofathereservations»
French
threshold for
non«Late
reservation
unless
Republic,
the French
CEDAW
CERD
ACHR
ECHR
CRPD
CMW
CRC
derogable
rights
prohibited
by the
treaty that article
Some treaties
government
declares
are silent
27 is not applicable so far as the
Republic is concerned.”
What’s
the effect of an
ICESCR
ACPHR
ICCPR
CED
invalid reservation?
Effectively: All human
Still a ”reservation”
rights treaties allow for
reservations
Reservations
Derogations
Limitations
Reservations: Examples (ICCPR)
Indonesia
Congo
Gambia
Botswana
“Thereference
Government
of the1Republic
of Botswana
"With
to Article
of the International
Covenant on Civil and
"For
financial
reasons
free
legal
assistance
for
considers
bound by:
The
Government
of itself
the
People's
Republic
of
Political
Rights, the
Government
of the Republic
of Indonesia
accused
persons
is
limited
in
our
constitution
Congo
declares
that it does
not
consider
itself on the Granting of
declares
that, consistent
with
the
Declaration
to persons
a)bound
Article
charged
7 of
with
Covenant
capitalofoffences
toarticle
the extent
only.that
by
thethe
provisions
11.
Independence
to
Colonial
Countries
and Peoples, and the
‘torture,
cruel, inhuman
degrading
treatment’
The Government
of theorGambia
therefore
Declaration
oninhuman
Principles
of International
Law concerning Friendly
means
torture
or degrading
punishment
wishes
to enter
a reservation
in respect
of
Relations
and Cooperation
States,
and the relevant
or other
prohibited
byAmong
Section
7 of the
article
14treatment
(3) (d) of the
Covenant
in question."
paragraph
of theofVienna
Declaration
and Program of Action of 1993,
Constitution
the Republic
of Botswana.”
the words "the right of self-determination" appearing in this article do
not apply to a section of people within a sovereign independent state
and can not be construed as authorizing or encouraging any action
which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent states."
Three
CCPR, Article 4
categories
1 . In time of public emergency which
threatens the life of the nation and the
of treaties
existence of which is officially proclaimed,
the States Parties to the present
Covenant may take measures derogating from their obligations under the
present Covenant to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination solely on
theTreaties
ground ofwhich
race, colour, sex,Treaties
language,which
religion or social Treaties
origin. which
permit
prohibit I and 2), 11, 15, 16 and 18
2. explicitly
No derogation
from articles explicitly
6, 7, 8 (paragraphs
are silent
derogations
derogations
may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of
ECHR
CMW
derogation shall immediately
inform the other States Parties to the present
Covenant, through the intermediary of the Secretary-General of the United
Nations, of the provisions from which it has derogated and of the reasons by
ACHR
Reservations
Derogations
Limitations
which it was actuated. A further communication shall be made, through the
same intermediary, on the date on which it terminates such derogation.
ICCPR
Provided by law
Legality
Legitimacy
Example: Article 12 CCPR
Legitimate aim
and
necessary to
that aim
Consistent with
other rights
Proportionality
HRC General
Comment no. 27
1. Everyone lawfully within the territory of a State shall, Permissible
within that
limitations
territory, have the right to liberty of movement and freedom
to choose
his residence.
2. Everyone shall be free to leave any country, including his
own.
Inherent
3. The above-mentioned rights shall not be subject to any
restrictions
limitations
except those which are provided by law, are necessary to protect
national security, public order (ordre public), public health or morals or
the rights and freedoms of others, and are consistent with the other
Reservations
Derogations
Limitations
rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own
country.