1. HUMR5140 Human Rights in International and National Law Autumn 2017
Lectures 1 and 2:
Human Rights as Law and
as International Law

2. 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.?

3. Introduction to humr5140

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

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

6. 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 assistants (Tainá and Jason) – reserved for NCHR M.phil. students, sorry about that
Student presentations
Exam preparation

7. HUMR5140 Examination Mid-term essay: Take-home exam:
Assignment given 21 September
Submission deadline 28 September
Pass/fail with comments from teacher (not necessarily me)
Take-home exam:
Assignment given 10 November
Submission deadline 20 November
Grade A-E (F)

8. HUMR5140 Learning outcome

9. HUMAN RIGHTS AS «LAW»

10. 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

11. 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»

12. 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»

13. 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»

14. 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

15. 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?

16. 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

17. …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

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

19. Introduction to international law

20. 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

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

22. 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

23. 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

24. ‘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

25. ‘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

26. ‘International conventions’ Method of interpreting treaties1
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

27. ‘International custom’ Two elements2
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

28. ‘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

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

30. 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

31. INTRODUCTION TO HUMAN RIGHTS LAW AS PART OF INTERNATIONAL LAW
Lecture # 2
INTRODUCTION TO HUMAN RIGHTS LAW AS PART OF INTERNATIONAL LAW
Cases discussed in lecture 2:
Lopez Burgos:
Airey:
Pretty:
Christine Goodwin:

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

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

34. ‘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

35. ‘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’

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

37. ‘International conventions’ Method of interpreting treaties
In good faith
Some particular features
State sovereignty vs. rights of individuals
A strong principle of effectiveness
Evolutive (dynamic) interpretation
Greater place for jurisprudence
Golder v. UK (1975), para. 29: “The Court is prepared to consider … that it should be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties.”
Banković (2001), para. 55:
“The Court recalls that the Convention must be interpreted in the light of the rules set out in the Vienna Convention 1969”
Ordinary meaning
Objective
Subjective
Teleological
In their context
Object and purpose
What about human rights treaties?
“While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases”
International law: Treaties which limit the sovereignty of Contracting States must be interpreted restrictively
“The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”
Cross-referencing, integrated interpretation
The Convention is a living instrument which must be interpreted in light of present-day conditions.

38. ‘International conventions’ Method of interpreting treaties
In good faith
Some particular features
State sovereignty vs. rights of individuals
A strong principle of effectiveness
Evolutive (dynamic) interpretation
Greater place for jurisprudence
Golder v. UK (1975), para. 29: “The Court is prepared to consider … that it should be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties.”
Banković (2001), para. 55:
“The Court recalls that the Convention must be interpreted in the light of the rules set out in the Vienna Convention 1969”
Effectiveness is not consequentialism:
Rawle Kennedy v. Trinidad & Tobago, 1999 HRC 845
Ordinary meaning
Objective
Subjective
Teleological
A number of cases involving the death penalty in T&T had come before the HRC.
T&T withdrew from the CCPR/OP and then re-acceded with a reservation that it did not apply to death penalty cases.
T&T warned that if HRC invalidated the reservation, it would simply withdraw altogether from the CCPR/OP.
Majority opinion: consequences by state do not effect HRC’s duty to uphold all rights for everyone.
Minority opinion: ”All or nothing is not a reasonable maxim in human rights law”
In their context
Object and purpose
What about human rights treaties?

39. Example # 1
ICCPR Art. 2.1:
”Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Does the ICCPR apply to acts outside a State’s own territory?

40. Example # 2
ECHR, Article 8.1: Everyone has the right to respect for ... his home and his correspondence.
Are the business premises of a company protected?

41. Example # 3
Article 6.1 ICCPR: «Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. »
Do you have a «right to die»?
Is abortion prohibited?

42. Example # 4 Article 23 ICCPR:
(2) The right of men and women of marriageable age to marry and to found a family shall be recognized.
(3) No marriage shall be entered into without the free and full consent of the intending spouses.
Are child marriages protected?
“Marry your rapist” laws?
Arranged marriages?
Homosexual marriages?
Do you have a right to divorce?

43. Example # 5
Article 5.1.c ECHR: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

44. Example # 6 Article 18 ICCPR
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
Can a state prohibit the use in public of hijabs, niqabs, burkas, burkinis, crosses, turbans…?

45. Human rights are those rights one has by virtue of being human
Universal
Indivisible
Inalienable
Imprescriptible

46. More examples Do you have a human right to love?
Do you have a human right to be happy?
Do you have a human right to be healthy?

47. Four ‘schools’ of human rights thinking
Human rights exist independent of positivisation, but positivisation is to be supported
Four ‘schools’ of human rights thinking
Human rights do not exist beyond human rights law
Natural school: Given
Deliberative school: Agreed upon
Skeptical towards human rights law
Protest school: Fought for
Discourse school: Talked about
Human rights law is like any other law, and may be good or bad

48. Summary of some particular features
Individual complaints procedures
Limited place for reservations and denunciation
Limited place for international customary law
Human rights as jus cogens
The relevance of general international law; the discussion of “self-contained regimes”
The impact of human rights law on general international law

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

50. Contact information:
Kjetil Mujezinović Larsen
Professor of Law, the Norwegian Centre for Human Rights
Phone: