1. HUMR5140 Human Rights in International and National Law Autumn 2016
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)
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)

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 assistant (Sarah McMains) – reserved for NCHR M.phil. students, sorry about that
Student presentations
Exam preparation

7. 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)

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

32. INTRODUCTION TO HUMAN RIGHTS LAW AS PART OF INTERNATIONAL LAW

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

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

35. ‘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

36. ‘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’

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