Chapter 1
INTERNATIONAL HUMAN RIGHTS LAW AND THE ROLE OF THE LEGAL PROFESSIONS: A GENERAL
INTRODUCTION
Learning Objectives
_ To ensure that participants acquire a basic working knowledge of the origin,
purpose and scope of international human rights law;
_ To familiarize participants with the application of international human rights
law at the domestic level and to begin to make them aware of the important role
played by the legal professions in this respect.
Questions
_ Why did you want to join the course?
_ What is a human right?
_ Why are human rights important in general?
_ Why are human rights important in the country where you are professionally
active?
_ How do you, as judges, prosecutors and/or lawyers, see your role as promoters
and protectors of human rights in the exercise of your professional duties?
_ What specific problems, if any, do you face with regard to the protection
of human rights in the country/countries where you work?
1. Introduction
In recent decades, international human rights law has had an ever-growing impact
on domestic legal systems throughout the world, and thereby also on the daily
work of domestic judges, prosecutors and lawyers. This evolving legal situation,
the true dimensions of which could hardly have been foreseen half a century
ago, requires each State concerned, and also the relevant legal professions,
carefully to consider ways in which effective implementation of the State’s
legal human rights obligations can best be secured. This may in many instances
constitute a challenge to legal practitioners, owing to the conflicting requirements
of different laws, lack of access to information, and the need for further training.
The objective of the present Manual is therefore to convey a basic knowledge
of, and skills in, the implementation of international human rights law to judges,
prosecutors and lawyers – legal professions without which there can be no truly
efficient protection of the rights of the individual at the domestic level.
To this end, the present chapter will provide a general introductory survey
of the basic notions of international human rights law, whilst the remaining
fifteen chapters will contain more detailed information and analyses of human
rights standards that are of particular relevance to the administration of justice.
2. Origin, Meaning and Scope of International Human Rights Law
2.1 The Charter of the United Nations and the Universal Declaration of Human
Rights
Humanity’s yearning for respect, tolerance and equality goes a long way back
in history, but the curious thing to note is that, although our societies have
in many
respects made great strides in the technological, political, social and economic
fields, contemporary grievances remain very much the same as they were hundreds,
even thousands of years ago. As to the protection of the rights and freedoms
of the individual at the international level, work began in the nineteenth century
to outlaw slavery and to improve the situation of the sick and wounded in times
of war.1 At the end of the First World War, several treaties
were concluded with the allied or newly created States for the purpose of providing
special protection for minorities.2 At about the same time,
in 1919, the International Labour Organization (ILO) was founded for the purpose
of improving the conditions of workers. Although the initial motivation of the
ILO was humanitarian, there were also, inter alia, political reasons for its
creation, it being feared that, unless the conditions of the ever-increasing
number of workers were improved, the workers would create social unrest, even
revolution, thereby also imperilling the peace and harmony of the world.3
Following the atrocities committed during the Second World War, the acute need
to maintain peace and justice for humankind precipitated a search for ways of
strengthening international cooperation, including cooperation aimed both at
protecting the human person against the arbitrary exercise of State power and
at improving standards of living. The foundations of a new international legal
order based on certain fundamental purposes and principles were thus laid in
San Francisco on 26 June 1945 with the adoption of the Charter of the United
Nations. In the Preamble to the Charter, faith is first reaffirmed “in fundamental
human rights, in the dignity and worth of the human person, in the equal rights
of men and women and of nations large and small�. Secondly, the Preamble also,
inter alia, expresses the determination “to promote social progress and better
standards of life in larger freedom�. Thirdly, one of the four purposes of the
United Nations is, according to Article 1(3) of the Charter, “2. 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�. Other Charter provisions containing
references to human rights are: Articles 13(1)(b), 55(c), 62(2), 68, and 76(c).
It is of particular significance to point out that, according to Articles 56
and 55(c) read in conjunction, United Nations Member States have a legal obligation
“to take joint and separate action in co-operation with the Organization for
the achievement of� “universal respect for, and observance of, human rights
and fundamental freedoms for all without distinction as to race, sex, language,
or religion�. This important legal duty conditions Member States’ participation
throughout the United Nations human rights programme. With the adoption by the
United Nations General Assembly of the Universal Declaration of Human Rights
on 10 December 1948, the rather terse references to “human rights and fundamental
freedoms� in the Charter acquired an authoritative interpretation. The Universal
Declaration recognizes civil, cultural, economic, political and social rights,
and, although it is not a legally binding document per se, since it was adopted
by a resolution of the General Assembly, the principles contained therein are
now considered to be legally binding on States either as customary international
law, general principles of law, or as fundamental principles of humanity. In
its dictum in the case concerning the hostages in Tehran, the International
Court of Justice clearly invoked “the fundamental principles enunciated in the
... Declaration� as being legally binding on Iran in particular with regard
to the wrongful deprivation of liberty and the imposition of “physical constraint
in conditions of hardship�.4 The devastating experiences of
the First and Second World Wars underscored the imperative need both to protect
the human person against the arbitrary exercise of State power and to promote
social progress and better living standards in larger freedom.
2.2 The ethical dimension of human rights
The very specificity of the concept of “human rights� is that they belong to
the individual in his or her quality as a human being, who cannot be deprived
of their
substance in any circumstances; these rights are thus intrinsic to the human
condition. The Universal Declaration of Human Rights, the International Covenant
on Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights all give expression to this fundamental ethical basis in
their first preambular paragraphs by recognizing “the inherent dignity and ...
the equal and inalienable rights of all members of the human family�. Here,
then, is an expression of the principle of universality of rights, including
the right to equal protection before the law and by the law, which, as will
be seen in Chapter 13, is a fundamental principle conditioning the entire field
of international human rights law. As to the regional level, the second preambular
paragraph to the American Convention on Human Rights also expressly recognizes
“that the essential rights of man are not derived from one’s being a national
of a certain State, but are based upon
attributes of the human personality�. As stated by the Inter-American Court
of Human Rights in its Advisory Opinion on Habeas Corpus in Emergency Situations,
the rights protected by the Convention cannot, per se, be suspended even in
emergency situations, because they are “inherent to man�.5
It follows, in the view of the Court, that “what may only be suspended or limited�
under the Convention is the “full and effective exercise� of the rights contained
therein.6 Finally, the African Charter on Human and Peoples’
Rights, in its fifth preambular paragraph, also recognizes “that fundamental
human rights stem from the attributes of human beings, which justifies their
national and international protection�. Consequently, human rights are owed
by States to all individuals within their jurisdiction and in some situations
also to groups of individuals. The principle of universal and inalienable rights
of all human beings is thus solidly anchored in international human rights law.
Human rights are inherent in all members of the human family. Human rights are
thus universal and inalienable rights of all human beings. Human beings cannot
be deprived of the substance of their rights (inalienability). Only the exercise
of some of these rights can be limited in certain circumstances. The fact that
human rights originate in the unique nature of the human being means that they
should be subjected to effective legal protection at the national and international
levels.
2.3 Human rights and their impact on national and international peace, security
and development
As already explained, it was the tragedies of the two World Wars that compelled
the international community to create a world organization with the purpose
of furthering peace and justice, inter alia by encouraging the promotion and
protection of human rights and fundamental freedoms. The all-too-evident lesson
to be drawn from the Second World War was that, when a State pursues a deliberate
policy of denying persons within its territory their fundamental rights, not
only is the internal security of that State in jeopardy, but in serious situations
there is a spillover effect that imperils the peace and security of other States
as well. This hard-won lesson has been confirmed on numerous occasions since
in every part of the world. Effective protection of human rights promotes peace
and stability at the national level not only by allowing people to enjoy their
basic rights and freedoms, but also by providing a basic democratic, cultural,
economic, political and social framework within which conflicts can be peacefully
resolved. Effective protection of human rights is consequently also an essential
precondition for peace and justice at the international level, since it has
inbuilt safeguards that offer the population ways of easing social tension at
the domestic level before it reaches such proportions as to create a threat
on a wider scale. As a reading of, in particular, Article 1 of the Charter of
the United Nations and the first preambular paragraphs of the Universal Declaration
and the two International Covenants makes clear, the drafters were well aware
of the essential fact that effective human rights protection at the municipal
level is the foundation of justice, peace and social and economic development
throughout the world. More recently, the link between, inter alia, the rule
of law, effective human rights protection and economic progress has been emphasized
by the Secretary- General of the United Nations in his Millennium Report, where
he emphasized that “84. It is now widely accepted that economic success depends
in considerable measure on the quality of governance a country enjoys. Good
governance comprises the rule of law, effective State institutions, transparency
and accountability in the management of public affairs,
respect for human rights, and the participation of all citizens in the decisions
that affect their lives. While there may be debates about the most appropriate
forms they should take, there can be no disputing the importance of these principles�.7
Effective protection of human rights and fundamental freedoms is conducive to
both domestic and international peace and security. Effective protection of
human rights provides a basic democratic culture enabling conflicts to be resolved
peacefully. Economic progress depends to a large extent on good governance and
effective protection of human rights.
2.4 The sources of law
The third preambular paragraph of the Universal Declaration of Human Rights
states that “... it is essential, if man is not to be compelled to have recourse,
as a last
resort, to rebellion against tyranny and oppression, that human rights should
be protected by the rule of law� (emphasis added). This means that, in order
to enable the human person fully to enjoy his or her rights, these rights must
be effectively protected by domestic legal systems. The principle of the rule
of law can thus also be described as an overarching principle in the field of
human rights protection because, where it does not exist, respect for human
rights becomes illusory. It is interesting in this respect to note that, according
to article 3 of the Statute of the Council of Europe, “every Member State ...
must accept the principle of the rule of law�. This fundamental principle is
thus legally binding on the 43 Member States of the organization, a fact that
has also influenced the case-law of the European Court of Human Rights.8
Consequently, judges, prosecutors and lawyers have a crucial role to fulfil
in ensuring that human rights are effectively implemented at the domestic level.
This responsibility requires the members of these legal professions to familiarize
themselves adequately with both national and international human rights law.
Whilst their access to domestic legal sources should pose no major problem,
the situation is more complex at the international level, where there are several
legal sources and a case-law rich in many respects. With some modification,
the next section will follow the hierarchy of legal sources as they appear in
article 38 of the Statute of the International Court of Justice. Although one
might disagree with the classification of sources in this provision, it serves
as a useful starting point. According to article 38(1) of the Statute, the sources
are: The Court stated that one “reason why the signatory Governments decided
to ‘take the first steps for the collective enforcement of certain of the Rights
stated in the Universal Declaration’ was their profound belief in the rule of
law�; it therefore seemed “both natural and in conformity with the principle
of good faith ... to bear in mind this widely proclaimed consideration when
interpreting the terms of� article 6(1) of the European Convention “according
to their context and in the light of the object and purpose of the Convention�.
Referring moreover to the references to the rule of law contained in the Statute
of the Council of Europe, the Court concluded that “in civil matters one can
scarcely conceive of the rule of law without there being a possibility of having
access to the courts�. The Council of Europe had 43 Member States as of 22 April
2002.
_ “international conventions�;
_ “international custom, as evidence of a general practice accepted as law�;
_ “general principles of law recognized by� the community of nations;9
_ “judicial decisions and the teachings of the most highly qualified publicists
... as subsidiary means for the determination of rules of law�.
Without seeking to be exhaustive, the next section will set forth the essential
characteristics of the main sources of international human rights law. However,
it should be noted at the outset that in international human rights law, judicial
decisions, and also quasi-judicial decisions and general comments adopted by
monitoring organs, take on special relevance in understanding the extent of
the legal obligations of States. Human rights must be effectively protected
by domestic legal systems. Judges, prosecutors and lawyers have a crucial role
to fulfil in ensuring that human rights are effectively protected at the domestic
level. The principal sources of international law are international conventions,
international customary law, and general principles of law.
2.4.1 International treaties
In the human rights field, the most important tool for judges, prosecutors and
lawyers to consult, apart from existing domestic law, is no doubt the treaty
obligations
incumbent on the State within whose jurisdiction they are working. A “treaty�
is generally a legally binding, written agreement concluded between States,10
but can also be an agreement between, for instance, the United Nations and a
State for specific purposes. Treaties may go by different names, such as convention,
covenant, protocol, or pact, but the legal effects thereof are the same. At
the international level, a State establishes its consent to be bound by a treaty
principally through ratification, acceptance, approval, or accession;11
only exceptionally is the consent to be bound expressed by signature.12
However, the function of signature of a treaty is often that of authenticating
the text, and it creates an obligation on the State concerned “to refrain from
acts which would defeat the object and purpose� of the treaty, at least until
the moment it has “made its intention clear not to become a party� thereto.13
Once a treaty has entered into force and is binding upon the States parties,
these must perform the treaty obligations “in good faith� (pacta sunt servanda).14
This implies, inter alia, that a State cannot avoid responsibility under international
law by invoking the provisions of its internal laws to justify its failure to
perform its international legal obligations. Moreover, in international human
rights law, State responsibility is strict in that States are responsible for
violations of their treaty obligations even where they were not intentional.
Human rights treaties are law-making treaties of an objective nature in that
they create general norms that are the same for all States parties. These norms
have to be applied by a State party irrespective of the state of implementation
by other States parties. The traditional principle of reciprocity does not,
in other words, apply to human rights treaties.15 The fact
that human rights treaties have been concluded for the purpose of ensuring effective
protection of the rights of the individual takes on particular importance in
the course of the interpretative process. In explaining the meaning of the provisions
of a human rights treaty, it is therefore essential for judges to adopt a teleological
and holistic interpretative approach by searching for an interpretation that
respects the rights and interests of the individual and is also logical in the
context of the treaty as a whole. Examples of law-making treaties in the human
rights field are the two International Covenants on Civil and Political and
on Economic, Social and Cultural Rights, which will be considered in further
detail below. Suffice it to mention in this regard that the Committees created
under the terms of each treaty to monitor its implementation have by now adopted
many views and comments which provide
valuable interpretative guidance to both national and international lawyers.
Obligations incurred by States under international treaties must be performed
in good faith. In international human rights law State responsibility is strict
in that States are responsible for violations of their treaty obligations even
where they were not intentional. A human rights treaty must be interpreted on
the basis of a teleological and holistic approach by searching for an interpretation
that respects the
rights and interests of the individual and is also logical in the context of
the treaty as a whole.
2.4.2 International customary law
To follow the hierarchy of legal sources in article 38(1) of the Statute of
the International Court of Justice, judges can in the second place apply “international
custom, as evidence of a general practice accepted as law�. International customary
legal obligations binding upon States are thus created when there is evidence
of both
_ acts amounting to a “settled practice� of States; and
_ a “belief that this practice is rendered obligatory by the existence of a
rule of law requiring it� (opinio juris).16
The judge will thus have to assess the existence of one objective element consisting
of the general practice, and one subjective element, namely, that there is a
belief among States as to the legally binding nature of this practice.17
With regard to the question of practice, it follows from the ruling of the International
Court of Justice in the North Sea Continental Shelf cases that, at least with
regard to “the formation of a new rule of customary international law on the
basis of what was originally a purely conventional rule�, the passage of time
can be relatively short, although “an indispensable requirement would be that
within the period in question,
short though it might be, State practice, including that of States whose interests
are specially affected, should have been both extensive and virtually uniform
in the sense of the provision invoked; – and should moreover have occurred in
such a way as to show a general recognition that a rule of law or legal obligation
is involved�.18 In the subsequent case of Nicaragua v. the
United States of America, the International Court of Justice appears however
to have somewhat softened this rather strict interpretation of the objective
element of State practice, whilst at the same time placing a correspondingly
greater emphasis on the opinio juris in the creation of custom. In its reasoning,
which related to the use of force, the Court held, in particular: “186. It is
not to be expected that in the practice of States the application of the rules
in question should have been perfect, in the sense that States should have refrained,
with complete consistency, from the use of force or
from intervention in each other’s internal affairs. The Court does not consider
that, for a rule to be established as customary, the corresponding practice
must be in absolutely rigorous conformity with the rule. In order to deduce
the existence of customary rules, the Court deems it sufficient that the conduct
of States should, in general, be consistent with such rules, and that instances
of State conduct inconsistent with a given rule should generally have been treated
as breaches of that rule, not as indications of the recognition of a new rule.
If a State acts in a way prima facie incompatible with a recognized rule, but
defends its conduct by appealing
to exceptions or justifications contained within the rule itself, then whether
or not the State’s conduct is in fact justifiable on that basis, the significance
of that attitude is to confirm rather than to weaken the rule�.19
The question now arises as to what legal principles for the protection of the
human person might have been considered to form part of customary international
law by the International Court of Justice. In its Advisory Opinion of 1951 on
Reservations to the Convention on Genocide, the Court importantly held that
“the principles underlying the Convention are principles which are recognized
... as binding on States, even without any conventional obligation�.20
Furthermore, it followed from the Preamble to the Convention that it was of
“universal character� both with regard to “the condemnation of genocide and
... the co-operation required ‘in order to liberate mankind from such an odious
scourge’�.21 Finally, the Court noted that the Convention
had been approved by a resolution which was unanimously adopted by the States.22
It is thus beyond doubt that in 1951 the crime of genocide was already part
of customary international law, applicable to all States.
Later, in the Barcelona Traction case, the International Court
of Justice significantly made “an essential distinction� between “the obligations
of a State towards the international community as a whole, and those arising
vis-à -vis another State in the field of diplomatic protection�.23
It added that by “their very nature the former are the concern of all States�,
and, in “view of the importance of the rights involved, all States can be held
to have a legal interest in their protection; they are
obligations erga omnes�.24 In the view of the Court, such
“obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles
and rules concerning the basic rights of the human person, including protection
from slavery and racial discrimination�.25 It added that whilst
some “of the corresponding rights of protection have entered into the body of
general international law ... ; others are conferred by international instruments
of a universal or quasi-universal character�.26 Finally, and
as already noted above, in its dictum in the hostages in Tehran case, the Court
stated that: “Wrongfully to deprive human beings of their freedom and to subject
them to physical constraint in conditions of hardship is in itself manifestly
incompatible with the principles of the Charter of the United Nations, as well
as with the fundamental principles enunciated in the Universal Declaration of
Human Rights�.27 It is thus beyond doubt that basic human
rights obligations form part of customary international law. Whilst the International
Court of Justice has expressly mentioned the crimes of genocide and aggression,
as well as the prohibition of racial discrimination, slavery, arbitrary detention
and physical hardship as forming part of a universally binding corpus of law,
it has not limited the scope of the law to these elements.
_ General Assembly resolutions: It may not be an easy task to identify international
custom, but resolutions adopted by the United Nations General Assembly can in
certain circumstances be regarded as having legal value, albeit not legally
binding per se. This is, for instance, the case with the Universal Declaration
of Human Rights. Thus, although not a source of law in the strict sense, they
can provide evidence of customary law. However, this will to a large extent
depend on their contents, such as the degree of precision of the norms and undertakings
defined therein, and the means foreseen for the control of their application;
it will also depend on the number of countries having voted in favour thereof,
and the circumstances of their adoption.28 A particularly
relevant question in this respect would be whether the resolution concerned
has been adopted in isolation or whether it forms part of a series of resolutions
on the same subject with a consistent and universal content.
_ Peremptory norms (jus cogens): It should finally be noted that some legal
norms, such as the prohibition of slavery, may be considered to be so fundamental
that they are called peremptory norms of international law. According to article
53 of the Vienna Convention on the Law of Treaties, a treaty is simply “void
if, at the time of its conclusion, it conflicts with a peremptory norm of international
law�. According to the same article, such a norm is described 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�. However, whenever
the notion of peremptory norm is being discussed, disputes arise as to its exact
contents, and consequently it will not be further dealt with in this Manual.
2.4.3 General principles of law recognized by the community of nations
This third source of law cited by the Statute of the International Court of
Justice helps ensure that, in cases where international treaties and customary
law might
provide an insufficient basis for the Court to take a decision, it will be able
to draw on other resources. A general principle of law, as a source of international
human rights law, is a legal proposition so fundamental that it can be found
in all major legal systems throughout the world. If there is evidence that,
in their domestic law, States adhere to a particular legal principle which provides
for a human right or which is essential to the protection thereof, then this
illustrates the existence of a legally binding principle under international
human rights law. Judges and lawyers can thus look to other legal systems to
determine whether a particular human rights principle is so often accepted that
it can be considered to have become a general principle of international law.
Domestic law analogies have thus, for instance, been used in the field of principles
governing the judicial process, such as the question of evidence.29
2.4.4 Subsidiary means for the determination of rules of law
As subsidiary means for the determination of rules of law, article 38 of the
Statute mentions “judicial decisions and the teachings of the most highly qualified
publicists�. As previously mentioned, in the human rights field, judicial decisions
are particularly important for a full understanding of the law, and the wealth
of
international case-law that now exists in this field must be regarded as authoritative
evidence of the state of the law. However, neither the International Court of
Justice nor the international monitoring organs in the human rights field are
obliged to follow previous judicial decisions.30 Although
this is usually done, it is particularly important for the monitoring organs
in the human rights field to retain the flexibility required to adjust earlier
decisions to ever-changing social needs, which, at the international level,
cannot easily be met through legislation.31 Suffice it to
add in this context that the reference to “judicial decisions� can also mean
judicial decisions taken by domestic courts, and that the higher the court,
the greater weight the decision will have. However, when international monitoring
organs interpret human rights law, they are likely to do so independently of
domestic laws. As to “the teachings of the most highly qualified publicists�,
it must be
remembered that article 38 was drafted at a time when international jurisprudence
on human rights law was non-existent. Whilst the interpretation and application
of this law must principally be based on the legal texts and relevant case-law,
writings of “the most highly qualified publicists� can of course in some situations
contribute to an improved understanding of the law and its practical implementation.
Yet it is advisable to exercise considerable care before relying on legal articles
and principles and comments adopted by private bodies outside the framework
of the officially established treaty organs, since they may not in all respects
correctly reflect the status of the law to be interpreted and applied.
2.5 International human rights law and international humanitarian law: common
concerns and basic differences
Although this Manual is aimed at conveying knowledge and skills in human rights
law, rather than in international humanitarian law, it is important to say a
few
words about the relationship between these two closely linked fields of law.
Whilst both human rights law and international humanitarian law are aimed at
protecting the individual, international human rights law provides non-discriminatory
treatment to everybody at all times, whether in peacetime or in times of war
or
other upheaval. International humanitarian law, on the other hand, is aimed
at ensuring a minimum of protection to victims of armed conflicts, such as the
sick,
injured, shipwrecked and prisoners of war, by outlawing excessive human suffering
and material destruction in the light of military necessity.32
Although the 1949
Geneva Conventions and the two Protocols Additional thereto adopted in 1977
guarantee certain fundamental rights to the individual in the specifically defined
situations of international and internal armed conflicts, neither the personal,
temporal nor material fields of applicability of international humanitarian
law are as wide as those afforded by international human rights law.33
In that sense, humanitarian law is also less egalitarian in nature, although
the principle of non-discrimination is
guaranteed with regard to the enjoyment of the rights afforded by this law.34
What it is of primordial importance to stress at this stage is that, in international
and non-international armed conflicts, international human rights law and humanitarian
law will apply simultaneously. As to the modifications to the implementation
of human rights guarantees that might be authorized in what is generally called
public emergencies threatening the life of the nation, these will be briefly
referred
to in section 2.8 below and in more detail in Chapter 16. International human
rights law is applicable at all times, that is, both in times of peace and in
times of turmoil, including armed conflicts, whether of an internal or international
character. This means that there will be situations when international human
rights law and international humanitarian law will be applicable simultaneously.
2.6 Reservations and interpretative declarations to international human rights
treaties
In assessing the exact extent of a given State’s legal obligations under a human
rights treaty, it is necessary to ascertain whether the State has made a reservation,
or, possibly, an interpretative declaration at the time of ratification or accession.
The major human rights treaties dealt with in this Manual allow for reservations
to be made, although they have somewhat different ways of regulating the subject.
In deciding whether a State party has actually made a true reservation, rather
than a mere declaration as to its own understanding of the interpretation of
a provision or a statement of policy, the Human Rights Committee set up to monitor
the
implementation of the International Covenant on Civil and Political Rights has
stated, in its General Comment No. 24, that it will have regard “to the intention
of the State, rather than the form of the instrument�.35 Whilst
this Covenant contains no specific article regulating the question of reservations,
the Human Rights Committee has stated that the “absence of a prohibition on
reservations does not mean that any reservation is permitted�, but that the
matter “is governed by international law�.36 Basing itself
on article 19(3) of the Vienna Convention on the Law of Treaties, the Committee
stated that “the matter of interpretation and acceptability of reservations�
is governed by the “object and purpose test�.37 This means,
for instance, that reservations “must be specific and transparent, so that the
Committee, those under the jurisdiction of the reserving State and other States
parties may be clear as to what obligations of human rights compliance have
or have not been undertaken�; similarly a resolution must “not be general, but
must refer to a particular provision of the Covenant and indicate in precise
terms its scope in relation thereto�.38 The American Convention
on Human Rights expressly stipulates in its article 75, that it “shall be subject
to reservations only in conformity with the provisions of the Vienna Convention
on the Law of Treaties�. In its Advisory Opinion on The Effect of Reservations,
the Inter-American Court of Human Rights stated that article 75 “makes sense�
only if understood as enabling “States to make whatever reservations they deem
appropriate�, provided that they “are not incompatible with the object and purpose
of the treaty�.39 In its Advisory Opinion on Restrictions
to the Death Penalty it further noted with regard to the rights that cannot
be suspended in any circumstances under article 27(2) of the Convention that
it “would follow therefrom that a reservation which was
designed to enable a State to suspend any of the non-derogable fundamental rights
must be deemed to be incompatible with the object and purpose of the Convention
and, consequently, not permitted by it�.40 The Court accepted,
however, that the “situation would be different if the reservation sought merely
to restrict certain aspects of a non-derogable right without depriving the right
as a whole of its basic purpose�.41 Like the International
Covenant on Civil and Political Rights, the African Charter on Human and Peoples’
Rights is silent on the question of reservations. However, article 64 of the
European Convention on Human Rights expressly outlaws reservations of “a general
character�, whilst permitting reservations “in respect of any particular provision
of the Convention to the extent that any law� in force in the territory of the
State at the time of signature or ratification “is not in conformity with the
provision� concerned. In interpreting and applying international treaties, domestic
judges, prosecutors and lawyers may thus also have to consider the relevant
State’s legal obligations in the light of reservations or interpretative declarations.
The scope of a State’s legal obligations under an international human rights
treaty may have to be considered in the light of any existing reservations or
interpretative declarations.
Under the International Covenant on Civil and Political Rights and the American
Convention on Human Rights, reservations must be compatible with the object
and purpose of the treaty. The European Convention on Human Rights forbids reservations
of a general character. Reservations must relate to a specific provision of
the Convention.
2.7 Limitations on the exercise of rights
The exercise – albeit not the substance per se – of certain rights, such as
the right to freedom of expression, the right to freedom of association and
assembly, the
right to freedom of movement and the right to respect for one’s private and
family life and correspondence, is generally accompanied by certain limitations
that can be imposed, for instance, in order to protect the rights and freedoms
of others, national security, and public health or morals.42
These limitations are the result of carefully weighed interests. What they show
is the balance struck between, on the one hand, individuals’ interest in maximizing
the enjoyment of the right that belongs to them, and, on the other hand, the
interest of society in general, that is, the general interest, in imposing certain
restrictions on the exercise of this right, provided that they are taken in
accordance with the law and are necessary in a democratic society for certain
specific legitimate purposes. In interpreting and applying these limitations
in any given case, it will therefore be necessary to make a careful examination
of the proportionality of the restrictive measure or measures concerned both
in general and as applied in the individual case. Chapter 12 of this Manual
provides numerous examples of how these limitations have been applied in specific
cases. Limitations on the exercise of human rights are the result of a careful
balance between the individual’s interest and the general interest, and
must, in order to be lawful:
_ be defined by law;
_ be imposed for one or more specific legitimate purposes;
_ be necessary for one or more of these purposes in a democratic society (proportionality).
In order to be necessary the limitation, both in general and as applied in the
individual case, must respond to a clearly established social need. It is not
sufficient that the limitation is desirable or simply does not harm the functioning
of the democratic constitutional order.
2.8 Derogations from international legal obligations
In interpreting and applying the terms of the three main general human rights
treaties in particularly severe crisis situations when the life of the nation
is imperilled, domestic judges, prosecutors and lawyers will also have to consider
the possibility that the State concerned has modified the extent of its international
legal obligations by resorting to temporary derogations. The question of the
administration of criminal justice during states of exception will be dealt
with in Chapter 16, and it will therefore suffice in this context to point out
that the International Covenant on Civil and Political Rights (art. 4), the
American Convention on Human Rights (art. 27) and the European Convention on
Human Rights (art. 15) all provide for the possibility for the States parties
to resort to derogations in particularly serious emergency situations. However,
the African Charter on Human and Peoples’ Rights has no corresponding emergency
provision, and the absence thereof is seen by the African Commission on Human
and Peoples’ Rights “as an expression of the principle that the restriction
of human rights is not a solution to national difficulties�, and that “the legitimate
exercise of human rights does not pose dangers to a democratic State governed
by the rule of law�.43 In the treaties where it exists, the
right to derogate is subjected to strict formal and substantive requirements,
and was never intended to provide Governments with unlimited powers to avoid
their treaty obligations. In particular, a qualified principle of proportionality
applies in that, according to all the aforementioned treaties, the limitations
resorted to must be “strictly required by the exigencies of the situation�.
It is noteworthy, furthermore, that some rights, such as the right to life and
the right to freedom from torture, may not in any circumstances be derogated
from, and that the list of non-derogable rights found in the second paragraphs
of the aforesaid articles is not exhaustive. In other words, one cannot argue
a contrario that, because a right is not expressly listed as non-derogable,
the States parties can proceed to extraordinary limitations on its enjoyment.
Since the derogation articles provide for extraordinary limitations on the exercise
of human rights, judges, both national and international, have to be conscious
of their obligation to interpret these articles by construing them strictly
so that individuals’ rights are not sapped of their substance. By at all times
maximizing the enjoyment of human rights, States are more likely than not to
overcome their crisis situations in a positive, constructive and sustainable
manner. Under the International Covenant on Civil and Political Rights and the
American and European Conventions on Human Rights, States parties
have the right in certain particularly difficult situations to derogate from
some of their legal obligations. The right to derogate is subjected to strict
formal and substantive legal requirements. Some fundamental rights may never
in any circumstances be derogated from. The right to derogate must be construed
so as not to sap the individual rights of their substance. Derogations are not
permitted under the African Charter on Human and Peoples’ Rights.
2.9 International State responsibility for human rights violations
Under international law, States will incur responsibility for not complying
with their legal obligations to respect and ensure, that is, to guarantee, the
effective
enjoyment of the human rights recognized either in a treaty binding on the State
concerned or in any other source of law. As explained by the Inter-American
Court of Human Rights in the Velásquez case, an “impairment of those rights
which can be attributed under the rules of international law to the action or
omission of any public authority constitutes an act imputable to the State,
which assumes responsibility in the terms provided by� the legal source concerned.44
Whilst the Court was in this Judgment explaining the meaning of article 1(1)
of the American Convention on Human Rights, it indeed merely stated a general
rule of law applicable to international human rights law as a whole. Agents
for whom a State is responsible include such groups and individuals as ministerial
civil servants, judges, police officers, prison officials, customs officials,
teachers, government-controlled business and other similar groups. This means
that States are under an obligation to prevent, investigate, punish, and, whenever
possible, restore rights that have been violated and/or to provide compensation.45
International human rights law also sometimes has an important third-party effect
in that States may be responsible for not having taken reasonable action to
prevent private individuals or groups from carrying out acts that violate human
rights, or to provide adequate protection against such violations under domestic
law.46 As held by the European Court of Human Rights with
regard to the right to respect for one’s private and family life in article
8 of the European Convention on Human Rights, for instance, this provision “is
essentially that of protecting the individual against arbitrary interference
by the public authorities, it does not merely compel the State to abstain
from such interference: in addition to this primarily negative undertaking,
there may be positive obligations inherent in an effective respect for private
or family life (...). These obligations may involve the adoption of measures
designed to secure respect for private life even in the sphere of the relations
of individuals between themselves.�47 The States parties to
the European Convention will thus have to provide “practical and effective protection�
in their domestic law “where fundamental values and essential aspects of private
life are at stake�, such as, for instance, in order to protect persons against
sexual abuse,48 or in cases of corporal punishment by family
members that constitutes a violation of article 3 of the Convention.49
With regard to the duty to secure for everyone within its jurisdiction the right
to life, the European Court has held that it “involves a primary duty� to put
“in place effective criminal-law provisions to deter the commission of offences
against the person backed up by law-enforcement machinery for the prevention,
suppression and punishment of such provisions�, and, further, that this duty
“also extends in appropriate circumstances to a positive obligation on the authorities
to take preventive operational measures to protect an individual
or individuals whose life is at risk from the criminal acts of another individual(...)�.50
These rulings are significant in that they extend the scope of States’ international
legal obligations beyond the strict public sphere into the field of private
life, thereby allowing for a more adequate and effective protection against
various forms of human rights violations, such as physical and mental abuse
of children, women and the mentally handicapped.
A State will however only incur international responsibility for a human rights
violation if it has failed to provide the alleged victim with an adequate and
effective
remedy through the workings of its own courts or administrative authorities.
The requirement at the international level that all effective domestic remedies
must have been exhausted before an alleged victim’s complaints can be considered
by an international monitoring body of a judicial or quasi-judicial character
has been introduced precisely in order to allow the State itself to remedy the
wrongs committed. This also means that the establishment of the various international
machineries for the protection of the human person is in fact “subsidiary� to
the available domestic systems for safeguarding the individual, since they “become
involved only through contentious proceedings and once all domestic remedies
have been exhausted�.51
States’ responsibility to provide protection and redress for victims of abuses
of power will be dealt with in some detail in Chapter 15 of this Manual. Whenever
bound by international human rights law, States have a strict legal obligation
to guarantee the effective protection of human rights to all persons within
their jurisdiction. States’ legal duty to protect human rights implies an obligation
to prevent, investigate and punish human rights violations, as well as to restore
rights whenever possible or provide compensation. States may also have a legal
duty not only to provide protection against human rights violations committed
by public authorities, but also to ensure the existence of adequate protection
in their domestic law against human rights violations committed between private
individuals.
3. Business Corporations and Human Rights
In recent years there has been wide discussion of the question whether, and
to what extent, entities other than States, such as business corporations, could
and should be held legally responsible for not complying with rules of international
human rights law in the exercise of their various activities. Whilst it is clear
from the preceding sub-section that States themselves may have a duty to ensure
that their domestic law also offers adequate remedies against serious human
rights violations that may be committed by private individuals, this reasoning
would appear to be equally applicable to the activities of business corporations.
However, this is not, of course, the same as saying that these corporations
are themselves incurring international legal responsibility for any wrongful
acts. The discussion at the international level on the legal responsibility
of business corporations to guarantee human rights offers a wealth of ideas
concerning, inter alia, standards to protect workers from abuses or the environment
from unnecessary damage and destruction. However, the development of the law
in this important area is
still very much in its infancy, and the arguments put forward at this stage
belong primarily to the field of lex ferenda. Since the aim of this Manual is
to explain the legal duties of States themselves under international law, no
further consideration will be devoted to the possible legal responsibilities
of business corporations to protect human rights. However, judges, prosecutors
and lawyers may well be confronted with these problems in the exercise of their
professional duties at the domestic level. In addition to any duties business
corporations may have to protect individual rights and the environment under
domestic law, it might therefore be useful for members of the legal professions
to be aware of the fact that discussions are taking place at the international
level and that there is, as a minimum, an ethical duty under international law
for corporations to run their businesses in such a manner as to respect basic
human rights.52 States may have an international legal obligation
to ensure adequate protection in their domestic law against human rights violations
committed by business corporations. Business corporations may themselves have
legal obligations in the field of human rights derived from domestic law. At
the international level business corporations are considered to have, as
a minimum, an ethical responsibility to respect fundamental human rights.
4. International Human Rights Law at the Domestic Level
4.1 Incorporating international law into domestic legal systems
As previously noted, and as provided in article 27 of the Vienna Convention
on the Law of Treaties, a State “may not invoke the provisions of its internal
law as
justification for its failure to perform a treaty�. On the other hand, States
are free to choose their own modalities for effectively implementing their international
legal
obligations, and for bringing national law into compliance with these obligations.
Since domestic legal systems differ considerably in this respect, albeit also
having some similarities, it will be for each domestic judge, prosecutor and
lawyer concerned to keep himself or herself informed as to the manner of incorporation
of the State’s international legal obligations into national law. Below, a mere
general account will be given of the various ways in which a State can modify
its municipal law so as to bring it into conformity with its international legal
obligations.
_ First, according to the monist theory, of which there are in fact several
divergent versions,53 international law and domestic law can
in general terms be described as forming one legal system. This means that once
a State has ratified a treaty for the protection of the human person, for instance,
the terms of that treaty automatically become binding rules of domestic law.
_ Secondly, according to the dualist theory, municipal law and international
law are different legal systems. Municipal law is supreme, and for municipal
judges to be competent to apply international treaty rules, for instance, these
have to be specifically adopted or transposed into domestic law. It follows
that a human rights treaty ratified by the State concerned cannot in principle
be invoked by local judges unless the treaty is incorporated into municipal
law, a process which normally requires an Act of Parliament.
However, these theories have been criticized for not reflecting the conduct
of national and international organs, and they are gradually losing ground.
For legal
practitioners it is therefore more important to emphasize practice rather than
theory.54 Changes in the role and in domestic perception and
understanding of international law in general, and of international human rights
law in particular, have led to an increased use of such law in domestic courts.
One of the purposes of this Manual is therefore to prepare judges, prosecutors
and lawyers to adapt and contribute to these fundamental changes. The following
is a list of some of the principal means through which international human rights
norms can be contained in municipal law or otherwise applied by domestic courts
and other competent authorities:
_ Constitutions: Many constitutions actually contain numerous human rights provisions,
which may follow the text of, for instance, the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights or the
regional human rights conventions. The use of such common language enables
judges, prosecutors and lawyers to draw upon the jurisprudence of, in particular,
international courts and other monitoring organs in interpreting the meaning
of
their own constitutional or other provisions;
_ Other national legislation: Many States adopt specific legislation either
to clarify or elaborate on their constitutional provisions, or in order to adapt
their domestic
laws to their international legal obligations. When transforming international
law into municipal law, the same legal terms are often used, thus allowing the
legal
professions to draw inspiration from international jurisprudence or the jurisprudence
of other States;
_ Incorporation: It is also common for States to incorporate international human
rights treaties into their domestic law by enacting a national law. This is
for instance
the case with the European Convention on Human Rights in the United Kingdom,
where that Convention was incorporated into British law by virtue of the Human
Rights Act 1998, which entered into force on 2 October 2000;
_ Automatic applicability: In some States treaties take precedence over domestic
law and are thus automatically applicable in domestic courts as soon as they
have
been ratified by the State concerned;
_ Interpretation of common law: In interpreting common-law principles, judges
may be governed by international human rights law and international jurisprudence
interpreting that law;
_ When there is a legal vacuum: In some countries there may be an absence of
national legislation with regard, inter alia, to human rights; but, depending
on the
circumstances, judges and lawyers may be able to rely on international human
rights law as well as relevant international case-law – or domestic case-law
from other countries – in order to apply some basic legal principles for the
protection of the human person. Numerous efforts have been made in recent years
– both through the technical assistance programmes of the United Nations, and
through various training programmes provided by regional organizations such
as the Organization of American States, the Council of Europe and the Organization
for Security and Cooperation in Europe – to help States adjust their laws to
their international legal obligations, and also to train the legal professions
so as to enable them to make human rights a living reality within their specific
jurisdictions. Numerous independent human rights institutes and non-governmental
organizations (NGOs) also have extensive training programmes for the various
legal professions. States may not invoke their internal law to justify violations
of international law, but are free to choose the modalities for implementing
that law.
4.2 The application of international human rights law in domestic courts: some
practical examples
A growing number of domestic courts in both common-law and civil-law countries
now regularly interpret and apply international human rights standards. The
following cases show how such standards can influence decisions taken by domestic
courts. Germany: In a case involving an American pianist belonging to the Church
of Scientology and the Government of Baden-Württemberg, the Administrative Court
of Appeal of Baden-Württemberg considered the grounds of appeal of the plaintiff
in the light not only of the German Basic Law but also of article 9 of the European
Convention on Human Rights and articles 18 and 26 of the International Covenant
on Civil and Political Rights. The complaint originated in negotiations between
an agent acting on behalf of the Government and the pianist, regarding the latter’s
participation in a concert to be held in connection with the presentation to
the public of the framework programme for the World Athletics Championship.
The negotiations were broken off when it became known that the pianist concerned
was a member of the Church of Scientology. In a written reply to a question
put by the Parliament of Baden-Württemberg, the Ministry of Culture and Sport,
acting in concertation with the Ministry of the Family, Women,
Education and Art, explained that the promotion by the State of cultural events
must be questioned when the persons performing are active and self-avowed members
of the Church of Scientology or other similar groups; for this reason they had
declined to engage the pianist as originally envisaged. The pianist argued that
his right to freedom of religion had been violated by the written reply from
the Ministries. However, the Administrative Court of Appeal concluded that the
protection afforded by article 9 of the European Convention and article 18 of
the International Covenant had not been infringed. As to the alleged violation
of article 26 of the International Covenant, the Court likewise found that it
had not been violated, since the ministerial reply did not result in discriminatory
treatment of the pianist on the basis of his beliefs or religious convictions,
the reply being limited to the announcement of a specific procedure to be followed
in the future with regard to the allocation of grants made available for the
organization of events by third persons/agents. For this reason, and considering
that the plaintiff in this case was not himself a recipient of any grant, it
was not necessary to clarify whether he could base himself inter alia on the
protection afforded by article 26 of the International Covenant, were an application
for a grant to be rejected on the abovementioned ground.55
New Zealand: The 1994 Simpson v. Attorney General case, one of the most famous
human rights cases in New Zealand, originated in an allegedly unreasonable search
of the plaintiff’s home which, it was claimed, violated the New Zealand Bill
of Rights Act 1990. In its decision, the Court of Appeal emphasized that the
purposes of the Bill of Rights were to “affirm, protect, and promote human rights
and fundamental freedoms in New Zealand and to affirm New Zealand’s commitment
to the International Covenant on Civil and Political Rights. From these purposes,
it was implicit that effective remedies should be available to any person whose
Bill of Rights guarantees were alleged to have been violated�.56
When there had “been an infringement of the rights of an innocent person�, “monetary
compensation was�, in the view of the Court, “an appropriate and proper, indeed
the only effective, remedy�.57 As observed by the Court, that
“was consistent with a rights-centred approach to the Bill of Rights and international
jurisprudence on remedies for human rights violations�, and reference was in
this respect, inter alia, made to the jurisprudence on remedies of both the
Human Rights Committee and the Inter-American Court of Human Rights.58
United Kingdom: The most prominent case decided in recent years in which
international human rights law played an important role is the case of Pinochet,
which was decided by the House of Lords on 24 March 1999, and which originated
in a request that the Chilean Senator – and former Head of the Chilean State
– be extradited from the United Kingdom to Spain to be tried for crimes of torture
and conspiracy to torture, hostage-taking and conspiracy to take hostages, as
well as conspiracy to commit murder – acts committed whilst he was still in
power. The obligations to which the 1984 Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment gave rise, were incorporated
into United Kingdom law by Section 134 of the Criminal Justice Act 1988, which
entered into force on 29 September 1988.
Convention against Torture as such was ratified on 8 December 1988. By virtue
of these changes, torture, wherever it takes place in the world, became a triable
criminal offence in the United Kingdom. The question before the House of Lords
on second appeal turned on whether there were any extraditable offences and,
in the affirmative, whether Senator Pinochet was immune from trial for committing
those crimes.59 The question of double criminality became an
important issue, with a majority of the Lords being of the view that Senator
Pinochet could be extradited only on charges concerning acts which were criminal
in the United Kingdom when they took place. A majority of the law Lords concluded
that State immunity in respect of torture had been excluded by the Convention
against Torture, and that the offences of torture and conspiracy to torture
committed after 8 December 1988 were extraditable, with a minority of the House
of Lords holding that English courts had extraterritorial jurisdiction as from
29 September 1988 when Section 134 of the Criminal Justice Act 1988 entered
into force. This decision allowed the United Kingdom Home Secretary to go ahead
with the proceedings relating to the relevant parts of the Spanish request for
Senator Pinochet’s extradition. However, on 2 March 2000, after medical experts
had concluded that the former Head of State of Chile was unfit to stand trial,
the Home Secretary decided that he would not be extradited to Spain but was
free to leave Britain. In spite of its final outcome, this case is a landmark
in the international law of human
rights in that it confirmed the erosion of the notion of State immunity for
international crimes as a result of the entry into force of the Convention against
Torture.
South Africa: The example of South Africa is significant in that, after the
collapse of the apartheid regime, it drafted a constitution which was heavily
influenced
by international human rights standards and which contains, in its Chapter 2,
a detailed Bill of Rights, which includes a wide range of rights, such as the
right to equality, the right to freedom and security of the person, the freedoms
of expression, assembly and association, political rights, environmental rights,
the right to property, the right of access to adequate housing, the right to
health care services, sufficient food and water, social security, the rights
of the child, the right to basic education, the right of access to courts and
the rights of arrested, detained and accused persons. International human rights
law has had a considerable impact on the development of law at the domestic
level and is now frequently invoked and applied by domestic courts.
5. The Role of the Legal Professions in the Implementation of Human Rights
As a consequence of legal developments over the last few decades, human rights
have ceased to be a “fringe activity�, instead becoming “an area of law which
is
fundamental to everyone and which permeates all legal activity, economic and
social, in public law and in private�.60 In a particularly
interesting recent development, the “pervasive importance of human rights law�
to corporations and business lawyers has also been recognized.61
Yet, whilst the influence of international human rights law on many dimensions
of domestic law is thus steadily gaining ground, its true potential still remains
to be explored.62 It is the professional role and duty of
judges, prosecutors and lawyers throughout the world to explore this potential,
and at all times to use their respective competences to ensure that a just rule
of law prevails, including respect for the rights of the individual. Whilst
this entire Manual focuses on providing knowledge and guidance to the legal
professions in their daily work, Chapter 4 will focus on the specific rules
and principles conditioning the work of judges, prosecutors and lawyers. These
rules and principles have to be consistently and meticulously applied, since
judges, prosecutors and lawyers perhaps have the single most important role
to play in applying national and international human rights law. Their work
constitutes the chief pillar of the effective legal protection of human rights,
without which the noble principles aimed at protecting the individual against
the abuse of power are likely to be sapped of much or even all of their significance.
6. Concluding Remarks
The present chapter has provided a synopsis of the modern development of the
international protection of the human person, which originated in a devastated
world’s yearning for peaceful, secure and just domestic and international legal
orders. Further, it has explained some of the basic legal notions relevant to
international human rights law and offered a description, however general, of
the role to be played by the legal professions within their respective fields
of competence in order to be able effectively to use the legal tools available
to protect the human person against abuses of power. We shall now turn to a
succinct examination of the terms and functioning of the major existing universal
and regional human rights conventions.
______________________
Notes
1. A.H. Robertson, Human Rights in the World (Manchester,
Manchester University Press, 1972), pp. 15-20.
2. Ibid., pp. 20-22. On the history of human rights, see resource
list in Handout No. 1 to Chapter 2 of the Manual.
3. For the history of the ILO, see the ILO web
site: www.ilo.org/public/english/about/history.htm.
4. See United States Diplomatic and Consular Staff in Tehran
(United States of America v. Iran), Judgment, ICJ Reports 1980, p. 42, para.
91.
5. See I-A Court HR, Habeas Corpus in Emergency
Situations (arts. 27(2), 25(1) and 7(6), Advisory Opinion OC-8/87 of January
30, 1987, Series A, No. 8, para. 18 at p. 37.
6. Ibid., loc. cit.
7. UN doc. A/54/2000, We the Peoples: the Role of the United Nations in the Twenty-First Century, Report of the Secretary-General, para. 84.
8. Eur. Court HR, Golder case, Judgment of 21 February 1975, Series A, No. 18, para. 34 at p. 17.
9. Article 38(1)(c) archaically refers to “civilized
nations�.
10. Article 2(1)(a) of the Vienna Convention on the Law of
Treaties.
11. Ibid., article 2(1)(b).
12. Ibid., article 12.
13. Ibid., article 18(a).
14. Ibid., article 26.
15. Eur. Comm. HR, Application No. 788/60, Austria
v. Italy, decision of 11 January 1961 on the admissibility, 4 Yearbook of the
European Convention on Human Rights, p. 140.
16. North Sea Continental Shelf cases, Judgment, ICJ Reports
1969, p. 44, para. 77.
17. Ibid., loc. cit.
18. Ibid., p. 43, para. 74.
19. Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986,
p. 98, para. 186.
20. Reservations to the Convention on Genocide, Advisory Opinion,
ICJ Reports 1951, p. 23.
21. Ibid., loc. cit.
22. Ibid.
23. Barcelona Traction, Light and Power Company, Limited, Judgment,
ICJ Reports 1970, p. 32, para. 33.
24. Ibid., loc. cit.
25. Ibid., p. 32, para. 34.
26.Ibid., loc. cit.
27. ICJ Reports 1980, p. 42, para. 91.
28.For some of these elements, see e.g. Les
résolutions dans la formation du droit international du développement, Colloque
des 20 et 21 novembre 1970, L’Institut universitaire de hautes études internationales,
Genève, 1971 (Études et travaux, No. 13), pp. 9, 30-31 (intervention by Professor
Virally).
29. Ian Brownlie, Principles of Public International Law (Oxford,
Clarendon Press, 1979), 3rd edn., 1979, p. 18.
30. As to the International Court of Justice,
see article 59 of the Statute.
31. See e.g. the case in which the European Commission of Human
Rights reversed its own earlier decision according to which a legal person,
such as a church, could not bring a case under article 9(1) of the European
Convention on Human Rights claiming a violation of “the right to freedom of
thought, conscience and religion�, Eur. Comm. HR, Application No. 7805/77, X.
and Church of Scientology v. Sweden, decision of 5 May 1979 on the admissibility
of the application, 16 DR, p. 70.
32. Seguridad del Estado, Derecho Humanitario y Derechos Humanos,
Informe Final, San José, Costa Rica, Comité Internacional de la Cruz Roja/Instituto
Interamericano de Derechos Humanos, 1984, p. 7.
33. J. Patrnogic and B. Jakovljevic, International
Humanitarian Law in the Contemporary World, Sanremo, Italy, International Institute
of Humanitarian Law (Collection of Publications 10), 1991, p. 28.
34. See e.g. article 3 common to the Four Geneva Conventions
of 12 August 1949; article 75 of Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts (Protocol I); and article 2(1) of Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of Non-International Armed Conflicts (Protocol II).
35. See General Comment No. 24, in UN doc. HRI/GEN/1/Rev.5, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies (hereinafter referred to as United Nations Compilation of General Comments), p. 150, para. 3; emphasis added.
37. Ibid., loc. cit.
38. Ibid., p. 155, para. 19.
39. I-A Court HR, The Effect of Reservations on the Entry Into
Force of the American Convention on Human Rights (Arts. 74 and 75), Advisory
Opinion OC-2/82 of September 24, 1982, Series A, No.2, p. 18, para. 35.
40. I-A Court HR, Restrictions to the Death Penalty (Arts.
4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83
of September 8, 1983, Series A, No. 3, p. 83, para. 61.
41. Ibid., at p. 84.
42. See e.g. articles 12(3), 13, 18(3), 19(3),
21, 22(2) of the International Covenant on Civil and Political Rights; articles
11 and 12(2) of the African Charter on Human and Peoples’ Rights; articles 11(2),
12(3), 13(2), 15 and 16(2) of the American Convention on Human Rights; and articles
8(2)-11(2) of the European Convention on Human Rights.
43. See undated decision: ACHPR, Cases of Amnesty International,
Comité Loosli Bachelard, Lawyers Committee for Human Rights, Association of
Members of the Episcopal Conference of East Africa v. Sudan, No. 48/90, 50/91,
52/91 and 89/93, para. 79; the text used is that found at the following web
site: http://hrlibrary.law.umn.edu/africa/comcases/48-90_50-91_52-91_89-93.html.
44. I-A Court HR, Velásquez RodrÃguez case, Judgment
of July 29, 1988, Series C, No. 4, p. 151, para. 164.
45. See e.g. ibid., p. 152, para. 166. As to obligations to
provide effective protection of the right to life under article 6 of the International
Covenant on Civil and Political Rights, see e.g. General Comment No. 6, in United
Nations Compilation of General Comments, pp. 114-116.
46. See as to the American Convention on Human Rights, I-A
Court HR, Velásquez RodrÃguez Case, Judgment of July 29, 1988, Series C, No.
4, pp. 155-156, paras. 176-177; and as to the International Covenant on Civil
and Political Rights, UN doc. GAOR, A/47/40, Report HRC, p. 201, para. 2. At
the European level, see e.g. Eur. Court HR, Case of A. v. the United Kingdom,Judgment
of 23 September 1998, Reports 1998-VI, at p. 2692 et seq.
47. Eur. Court HR, Case of X. and Y. v. the Netherlands,
Judgment of 26 September 1985, Series A, No. 91, p. 11, para. 23.
48. Ibid., p. 14, para. 30 and p. 13, para. 27.
49. Eur. Court HR, Case of A. v. the United Kingdom, Judgment
of 23 September 1998, Reports 1998-VI, concerning the responsibility of the
United Kingdom for beating of child by stepfather.
50. Eur. Court HR, Case of Mahmut Kaya v. Turkey, Judgment
of 28 March 2000, para. 85. The text used is that found on the Court’s web site:
http://hudoc.echr.coe.int/hudoc/
51. Statement with regard to the European Convention on Human
Rights, Eur. Court HR, Case of Handyside, Judgment of 7 December 1976, Series
A, Vol. 24, p. 22, para. 48.
52. Suggested reading on the question of business
corporations and human rights: Michael Addo, Human Rights Standards and the
Responsibility of Transnational Corporations (The Hague, Kluwer Law International,
1999); and Alan Dignam and David Allen, Company Law and the Human Rights Act
1998 (London, Butterworth, 2000).
53. See Ian Brownlie, Principles of Public International Law
(Oxford, Clarendon Press, 3rd edn., 1979), p. 34.
54. As to monism and dualism Higgins states that of “course, whichever view you take, there is still the problem of which system prevails when there is a clash between the two�; and that “in the real world the answer often depends upon the tribunal answering it (whether it is a tribunal of international or domestic law) and upon the question asked�; in her view different “courts do address that problem differently�, see Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford, Clarendon Press, 1994), p. 205.
55. Urteil vom 15. Oktober 1996, Verwaltungsgerichtshof
Baden-Württemberg, 10 S 1765/96, in particular, pp. 11-16: as to article 26
of the International Covenant, see p. 16.
56. Simpson v. Attorney General (1994) 1 HRNZ at 42-43.
57. Ibid., at 43.
58. Ibid., loc. cit.
59. See definition of question by Lord Brown Wilkinson, House of Lords, Judgment of 24 March 1999 – Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen’s Bench Division); this Judgment is found on the following web site: http://www.publications.parliament.uk.
60. See editorial of Lord Goldsmith QC and Nicholas
R. Cowdery QC, “The Role of the Lawyer in Human Rights�, in HRI News (Newsletter
of the IBA Human Rights Institute), vol. 4, No. 2, 1999, p. 1.
61. Ibid., loc. cit. See also Nicholas R. Cowdery QC, “Human
Rights in Commercial Practice – an IBA Perspective�, ibid., pp. 16-18, and Stephen
Bottomley, “Corporations and Human Rights�, ibid., pp. 19-22.
62. See reference to speech of Justice Kirby, ibid., p. 10.