HUMR5140 Human Rights in International and National Law Autumn 2016 Lectures 1 and 2: Human Rights as Law and as International Law

First and second lecture Introduction to HUMR5140 Human rights as «law» Human rights as «international» law What does it mean to discuss human rights as law as opposed to human rights as a value, as politics, etc.?

Introduction to humr5140

HUMR5140 Syllabus Olivier de Schutter, International Human Rights Law (2nd ed.) Cases, reports, other official documents

HUMR5140 Course outline Human rights as law (Larsen) Human rights as international law (Larsen) Scope of application (Larsen) Typology of States’ obligations (Larsen) The Americas and Africa (Bailliet) Europe (Larsen) Charter bodies (Larsen) Treaty bodies (Larsen) Human rights in national legal systems (Zyberi) Quo Vadis? (Larsen) Exam preparation (Larsen)

HUMR5140 Student participation Primarily lectures But room will be made for discussions Some lectures will be 50-50 Q&A and spontaneous discussions are always encouraged Study groups led by teaching assistant (Sarah McMains) – reserved for NCHR M.phil. students, sorry about that Student presentations Exam preparation

HUMR5140 Examination Mid-term essay: Take-home exam: Assignment given 19 September Submission deadline 29 September Pass/fail with comments from teacher Take-home exam: Assignment given 7 November Submission deadline 17 November Grade A-E (F)

HUMR5140 Learning outcome http://www.uio.no/studier/emner/jus/humanrights/HUMR5140/

Human rights as «law»

What is «law»? A surprisingly difficult question Hart: Unity of primary and secondary rules Austin: The command of a sovereign, backed by the threat of a sanction A set of enforceable rules of conduct which set out guidelines for the way individuals and society behave Dworkin: An interpretive concept to achieve justice

What is «international law»? A traditional problem: Is it «law»? Hart: Unity of primary and secondary rules Yes, but of a different character than domestic law Austin: The command of a sovereign, backed by the threat of a sanction Weak enforcement mechanisms Dworkin: An interpretive concept to achieve justice Malcolm Shaw: Law is that element which binds the members of the community together in their adherence to recognised values and standards «International law is the body of rules which are legally binding on states in their intercourse with each other»

What is «international law»? What is «human rights law»? What is «international law»? A traditional problem: Is it «law»? Hart: Unity of primary and secondary rules Yes, but of a different character than domestic law Austin: The command of a sovereign, backed by the threat of a sanction Weak enforcement mechanisms Dworkin: An interpretive concept to achieve justice Malcolm Shaw: Law is that element which binds the members of the community together in their adherence to recognised values and standards «International law is the body of rules which are legally binding on states in their intercourse with each other»

What is «human rights law»? Human rights law is a part of international law What is «human rights law»? A traditional problem: Is it «law»? Hart: Unity of primary and secondary rules Austin: The command of a sovereign, backed by the threat of a sanction Weak enforcement mechanisms Stronger enforcement mechanisms Dworkin: An interpretive concept to achieve justice Doesn’t fit Malcolm Shaw: Law is that element which binds the members of the community together in their adherence to recognised values and standards «International law is the body of rules which are legally binding on states in their intercourse with each other»

NATIONAL LEGAL TRADITIONS High degree of codification and systematisation Low(er) degree of codification Principles developed by courts, case-by-case Relies on broad, general principles CIVIL LAW More specific and detailed NATIONAL LEGAL TRADITIONS Hybrid systems COMMON LAW Other traditions

Structure of national laws – example Private law Rules pertaining to the relationship between private entities Public law Rules pertaining to the relationship between a public and a private entity, or between public entities Hierarchical structure Norway: Constitution, legislation, regulations, royal decrees… Where does international law fit? Where does human rights law fit?

One important concept… “Rule of law” No person is above the law No one can be punished by the state except for a breach of the law “The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.” No one can be convicted for breaching the law except in the manner set forth by the law itself

…and some latin expressions Lex superior Norm of higher rank prevails over norm of lower rank Lex posterior Higher A newer norm prevails over an older norm Constitution Lex specialis Legislation Hierarchy A specific norm prevails over a general norm General norm Specific norm Administrative regulations Lower

…and some latin expressions The law as it is Lex lata The law as it should be Lex ferenda

Introduction to international law

International law Two categories: Private international law (conflict of laws) Public international law, a.k.a. general international law, a.k.a. simply “international law” Traditionally: International law regulates the relationship between States But individuals (and other non-state actors) can to a certain extent be subjects (duty-bearers and rights-holders) under international law The “humanisation” and the “human-rightism” of international law

Some important features No “sovereign” Relatively weak enforcement mechanisms No formal hierarchy of norms (but consider jus cogens) The “fragmentation” of international law

Core matters in international law Sources Subjects The relationship with municipal law International responsibility Peaceful settlement of disputes The regime applicable to common spaces Diplomacy Rules pertaining to armed conflicts

Sources in international law Statute of the ICJ, Art. 38: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 1 2 3 4

‘International conventions’ What is a convention? 1 An international agreement concluded between States in written form and governed by international law ... whatever its particular designation Multilateral General Contractual Bilateral Specific Law-making Convention Covenant Treaty Charter Distinguished from legally non-binding documents Memoranda of understanding Statement Goals Declarations

‘International conventions’ What is a convention? 1 Stage 1: Preparations Stage 2: State consent Stage 3: Binding law Negotiations Agreement of parties Text of Document Signatures / Accessions Ratifications Entry into Force Object and purpose

‘International conventions’ Method of interpreting treaties 1 Vienna Convention on the Law of Treaties Art. 31. 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 connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection 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. Art. 32. Supplementary means of interpretation. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable In good faith Ordinary meaning Objective Subjective Teleological In their context Object and purpose

‘International custom’ Two elements 2 Statute of the ICJ, Art. 38: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 1 2 3 4 Usus Opinio juris

‘General principles’ 3 Definition: How is a ‘principle’ identified? Unwritten legal norms of a wide-ranging character… …which are recognised in the municipal laws of states… …and which are transposable at the international level Purpose: To avoid non liquet (legal vacuum) Pacta sunt servanda Good faith Estoppel Res judicata

Secondary sources Court decisions Literature Other sources? 4 Court decisions Literature Other sources? Preparatory works National laws Acts by international organisations Primary source?

Enforcement of international law Diplomatic methods of dispute settlement Courts and tribunals International Court of Justice European Court of Justice International Criminal Court Ad hoc international criminal tribunals WTO Domestic courts Arbitration

International law in national law Monism vs. dualism Incorporation, transformation, passive transformation, reference Obligation of states to implement treaties in domestic law?

INTRODUCTION TO HUMAN RIGHTS LAW AS PART OF INTERNATIONAL LAW

Human rights law is a part of international law Sources Methods Implementation Enforcement … Sources …but with some special characteristics Individuals have rights …and obligations?

‘International conventions’ What is a convention? Human rights treaties Multilateral General Contractual Bilateral Specific Law-making

‘International conventions’ Human rights treaties Are the Covenants something more? International ‘Bill of Rights’ Universal Declaration of Human Rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights

‘International conventions’ Human rights treaties Are the Covenants something more? Are human rights treaties different from other treaties? ‘special characteristics’ ‘concern the endowment of individuals with rights’

‘International conventions’ Horizontal Relationship State State State Vertical Relationship State State Individual