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Today’s lecture
• Public International Law and the risks of fragmentation
• Methods of norm conflict resolution
• Some regimes with particular relevance for IHRL: – Jus ad bellum & the UN Charter – International Refugee Law (IRL) – International Humanitarian Law (IHL) – International Criminal Law (ICL) – International Environmental Law (IEL) – Law of the Sea (esp. Search and Rescue operations) – (EU law)
Public international law
• One system – several specialized regimes
• HR & other legal areas do not operate in a legal vacuum & cannot be isolated from each other
• Is international human rights law special?
– «self-contained regimes»
Fragmentation of int law Examples of int courts
• International courts with ‘general’ jurisdiction: ICJ • WTO law: WTO Appeallate Body • Law of the Sea: International Tribunal for the Law of the Sea • ICL (and hybrid courts): ICC, ICTY, ICTR, (UNMICT), (Special Court for
Sierra Leone), (Special Tribunal for Lebanon), (Extraordinary Chambers in the Courts of Cambodia), (Extraordinary African Chambers in Senegal)
• Global IHRL committees: HRC, CESCR, CRPD, CERD, CEDAW, CRC, CmAT, CMW, CED
• Regional HR courts: AfcHPR, IAcHR, EctHR • Other regional Courts: EU Court of Justice, African Court of Justice,
COMESA Court of Justice, East African Court of Justice, ECOWAS Community Court of Justice, SADC Tribunal, Carribean Court of Justice, Court of Justice of the Andean Community, Eastern Carribean Supreme Court, Benelux Court of Justice, European Free Trade Association Court, European Nuclear Energy Tribunal, etc.
• Arbitration & claims commissions: Mox Plant/OSPAR Arbitration, Iran-US Claims Tribunal, Eritrea-Ethiopia Claims Commissions, etc.
Fragmentation of int law
• ILC: “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, Report, 2006 (Koskenniemi) – Fragmentation through conflicting interpretations of general
law – Fragmentation through the emergence of special law as
exception to the general law – Fragmentation as differentiation between types of special law
• Specialized regimes in isolation & the boundaries of
jurisdiction «Institutional bias?»
• Risks of forum shopping
Norm conflict resolution
• Norm conflict resolution:
– Lex specialis derogate lex generalis
– Lex posterior derogate priori
– Lex superior derogat legi inferiori
• Conflict of legal areas or conflict of rules?
Harmonization of int law
• Norm conflict resolution does not invalidate the norm which is set aside (except if against jus cogens), so how should we treat it? – (Nicaragua v USA (ICJ)
2 techniques to keep legal effect of treaties and custom which is set aside: • Harmonization - Interpret conflicting norms so as to render them compatible - Cross references in case law (regional HR-courts) • Priority (rather than validity) - The norm which is set aside will remain as it were “in the background”
Conflict resolution and interpretation cannot be distinguished from
each other
Harmonization of int law
• Art 31.3(c) VCLT – «the principle of systemic integration»
• Article 31 VCLT - General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the
conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the
treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
«Systemic integration»
• Regional courts take in other areas of PIL, e.g. EctHR has made use of Convention on the rights of the Child, Chemical Weapons convention, etc
• ICJ; the Pulp Mills-case (Argentina v. Uruguay), 2010 204. /…/ In this sense, the obligation to protect and preserve, under Article 41 (a) of the Statute, has to be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. - Dispute based on a specific treaty in force between Argentina and
Uruguay - ICJ uses art 31.3(c) VCLT to interpret the treaty provision in light of an
rule of customary environmental law
IHRL, IRL, jus ad bellum, IHL, ICL
ICL
IHL jus in bello
IHRL
jus ad bellum
Peace + armed conflict
Refugee law
HR & ICL
• The rights of the accused to a fair trial
• The rights of victims (ICC: victim participation & the Trust fund reparations)
• ICC has jurisdiction over: genocide, war crimes, crimes against humanity, and will -eventually- have jurisdiction over the crime of aggression (art 5 ICC)
- HR may assist in determining the substance and scope of the crimes
• Genocide: Commission of one the following acts: - Killing, Causing serious bodily or mental harm, Destructive conditions of life,
Measures to prevent birth, Forcible transfer of children - Against one of the protected groups (Nationality, Race, Ethnicity, Religion) - With dolus specialis = Intent to destroy (whole or part of) one of the protected
groups (genocial intent) • Crimes Against Humanity: Commission of the follwoing acts - Extermination, Murder, Deportation, Imprisonment, Torture, Enslavement,
Persecution, Apartheid, Rape, sexual violence, Enforced disapperance, Other inhumane acts
- …as a part of a widespread or systematic attack - …against the civilian population
HR & the UN Charter
• Article 103 UN Charter: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. • Art 25 UN Charter: UN members agree to carry out UNSC decisions
• What are the prevailing obligations? • What does it mean that an obligation prevail over other?
• Areas for possible conflicts:
– Conflicts with treaties between UN Member States and Non-Members – Conflicts with norms of customary international law of a non-peremptory
character – Conflicts with norms of jus cogens
• What are the limitations for the UNSC?
HR & the UN Charter
What are the limitations for the UNSC?
• Mandate: Chapter V-VIII UN Charter
• The UN Charter as a whole (preamble!)
• Jus cogens? Obligations erga omnes? – ECJ; Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council
of the EU and EU Commission, Yassin Abdullah Kadi v. Council of the EU and EU Commission, EctHR; Al Jedda v UK, Separate Opinion of Lautherpacht in ICJ; Application of the Genocide Convention, ICJ; Lockerbie-case
– ILC Fragmentation Study: States cannot create a treaty which violate jus cogens the UN Charter is not above jus cogens then they also cannot transfer a power to contradict jus cogens to bodies (UNSC) that receive their jurisdiction from the Charter
HR & Refugee Law
• The Geneva Convention on the Status of Refugees, 1951 – Temporary protection for large groups of refugees in Europe after WWII: only applicable for
persons who fleed events prior to 1 January 1951 and was in Europe • The New York Protocol, 1967
– Removed the Refugee Convention’s geographical and temporal limitations The Geneva Convention as amended by the Protocol is “the centrepiece of modern international
refugee protection”
• IHRL: Right to seek and enjoy asylum, art 14.1 UDHR – Customary status ? Limitations: art 14.2 UDHR
• General HR treaties applies to all persons within the States territories –including refugees and asylum seekers (see e.g. art 2 ICCPR and HRC Gen Com 31, art 1 ECHR, CRC Gen Com 6, etc.) HR applies also in the asylum process (possible to limit certain political rights to citizens)
• Committee on the Rights of the Child: Gen Com 6 (2005), para. 12
• (EU-law: additional subsidary grounds for protection, rules on the asylum process, rules on reception of asylumseekers, rules aiming to prevent trafficking, etc) – The Dublin regulation
• Domestic law: Utlendingsloven (Norway)
HR & Refugee Law determining who is a refugee
• A person is a refugee if he or she owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; – (if stateless: outside former habitual residence)
• E.g. Acts of ‘persecution’ embraces all serious violations of human rights (UNHCR Handbook)
IHRL and cases may assist in identifying who is entitled to protection and refugee status
HR also apply in all stages of the asylum process
HR & Refugee Law The pinciple of non-refoulment
• Art 33 Geneva Convention on the Status of Refugees - prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
HR & Refugee Law The principle of non-refoulement
Prohibits the forcible return or extradition of a person to another country where he or she is at risk of torture or other prohibited forms of ill-treatment
• The principle of non-refoulement constitute part of the customary prohibition of torture (jus
cogens) and is absolute - (ICJ: Belgium v Senegal: torture = customary international law and jus cogens)
Under IHRL the prohibition of torture and the principle of non-refoulement is applicable to all persons falling under the jurisdiction of the State (not just refugees) and is absolute in:
• UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984 (CAT): art 3 non-refoulement • Inter-American Convention to Prevent and Punish Torture,1985 • European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or
Punishment,1987 • ICCPR, Art 7 (see HRC General Comment No. 20) • ECHR, Art 3 • ACHR, Art 5(2) • ACHPR, Art 5 • The Arab Charter of Human Rights, Art 8(1)
HR & Refugee Law The principle of non-refoulement
• State responsibility for what may happened in another State = risk assessment
- Threshold: ’Real risk’ of torture (Chahal v. UK, Saadi v Italy) - General risk + individual risk = real risk
- Human rights reports and other land info can establish the general risk
• What if the person is a threat to national security or have committed
a serious crime and would fall under art 33.2 Refugee Convention? – Art 33 GC: can be deported – Art 3 ECHR (case law): cannot be deported
• The EctHR faced this argument in Saadi v Italy (2008) and unanimously reasserted its existing jurisprudence and noted that this did not affect an individual's absolute rights under Article 3 – In effect: the IHRL principle of non-refoulment prevails
IHRL & IHL Conflict of regimes or rules?
• Displacement model
• Complementarity model
• Conflict resolution model
HR - IHL • Origin: long history, equality of
belligerents
• Protection and obligations for States, organised armed groups and individuals
Humanity is balanced with military neccessity
Built in compromises
• No IHL court or monitor organ (however, ICC and national courts)
• Origin: young area of PIL, emerged in nat constitutions
• States have obligations, individuals are rightholders
Focus: Human dignity protection for individuals
HR = “contractual relationship” (right duty)
HR = “stand alone rights” (”claim-rights”)
• Several global monitoring organs and regional HR-courts
IHRL & IHL ICJ in the Nuclear Weapons-case
• ICJ; Legality of Threat or Use of Nuclear Weapons (Advisory Opinion, 1996)
25. The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.
Respect for the right to life is not, however, such a provision. In principle, the
right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.
Thus whether a particular loss of life, through the use of a certain weapon in
warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.
IHRL & IHL ICJ in the Wall-case
• ICJ; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, 2004):
106. /…/ As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations:
- some rights may be exclusively matters of international humanitarian law;
- others may be exclusively matters of human rights law;
- yet others may be matters of both these branches of international law.
IHRL & IHL ICJ in the Armed Activities-case
• ICJ; Armed Activites-case (DRC v Uganda, 2010)
178. The Court thus concludes that Uganda was the occupying Power in Ituri at the relevant time. As such it was under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC. This obligation comprised the duty to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party.
179. The Court, having concluded that Uganda was an occupying Power in Ituri at
the relevant time, finds that Uganda’s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account.
IHRL & IHL EctHR & detention in armed conflicts
• Art 5.1 ECHR sets up an exhaustive list of ground for detention = administrative or preventive detention is prohibited – (Lawless v UK, Ireland v. UK, Guzzardi v. Italy, Jecius v.
Lithuania, Al-Jedda v UK) – NB. unless derogation!
• Art (42 and) 78 Geneva Convention IV allows for internment of civilians for imperative reasons of security
EctHR; Hassan v UK (2014)
IHRL & IHL EctHR & detention in armed conflicts
• EctHR; Hassan v UK (2015) • “By reason of the co-existence of the safeguards provided by
international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The Court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention without the exercise of the power of derogation under Article 15 (see paragraph 97 above). It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers.”
Refer to State practice and interprets art 5 ECHR in accordance with GC IV: no violation
IHRL & IHL EctHR & detention in armed conflicts
• EctHR; Hassan v UK (2015) - Partly dissenting opinion by Judge Spano joined by Judges Nicolaou, Bianku and Kalaydjieva
• Critical to that the majority uses State practice “that limits or restricts those rights, as in the present case, in direct contravention of an exhaustive and narrowly tailored limitation clause of the Convention protecting a fundamental right”
• On the doctrine of consistent interpretation with other rules of international law: “[this] has its limits, as does any other harmonious method of legal interpretation. Article 5 § 1 is worded exhaustively, as regards the permitted grounds for deprivation of liberty, and the Court has consistently held, without exception till today, that these grounds should be interpreted narrowly. There is simply no available scope to “accommodate”, to use the language of the majority (see paragraph 104), the powers of internment under international humanitarian law within, inherently or alongside Article 5 § 1.”
• And also: “Whatever accommodation means, it cannot mean this!”
Discussion!
