Public International Law/Human Rights Law/Recurring Themes in Human Rights Doctrine

Author: Max Milas Required knowledge: Introduction to Human Rights Law, Sources of international law, Treaty law and interpretation of treaties, Interaction between domestic and international Law Learning objectives: to understand what the legal sources of international human rights law are; how international human rights operate; who reviews human rights violations and how A. Introduction International human rights law now affects almost every corner, every living being, and every political entity on this planet. However, how international human rights law doctrinally governs almost every phenomenon on this planet is the subject of this chapter. To this end, the chapter first introduces the positive legal sources of international human rights law, before proceeding to present actors, obligations, dispute resolution mechanisms, implementation and circumvention strategies, and the structure of judicial review of international human rights. B. Sources of International Human Rights Law For human rights sourcesOn sources of international law, see Egget, § 6, in this textbook. , as for all almost all fields of international law, article 38(1) ICJOn the ICJ, see Bolyová/ Sabján, § 12, in this textbook. StatuteStatute of the International Court of Justice (adopted 17 December 1963, entered into force 31 August 1965) 993 UNTS 33. is decisive. Accordingly, contemporary international human rights law derives from international treaties, customary international law, general principles of law and non-binding declarations that coexist at both the regional and universal levels.Sarah Chinkin, ‘Sources’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 63–65. The following section provides an overview of these legal sources of human rights and the legal status of human rights in international law. For this purpose, human rights are presented against the background of the general rules of international law on legal sourcesOn legal sources, see Eggett, § 6, in this textbook. and legal statusOn the legal status of sources, see Eggett, § 6, in this textbook.. I. International Human Rights Treaties Most contemporary international human rights are codified in treatiesOn international treaties, see Fiskatoris/Svicevic, § 6.1, in this textbook..Chinkin (n 1) 67; Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Second edition, Oxford University Press 2019) 33–34. States have labelled human rights treaties with different names, ranging from charter, covenant, convention to protocol. However, this confusing labelling should not obscure the fact that international agreements for the protection of human rights, regardless of their name, constitute treaties under international law according to article 2(1)(a) VCLTVienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. if they are concluded between at least two States and contain binding obligations.Rhona KM Smith, International Human Rights Law (Tenth edition, Oxford University Press 2022) 1. The most emblematic human rights treaties due to their wide scope and binding force are the 1966 International Covenant on Civil and Political RightsInternational Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). (ICCPR) and the International Covenant on Economic, Social and Cultural RightsInternational Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 999 UNTS 3 (ICESCR). (ICESCR) at the universal levelOn the UN human rights system, see Ananthavinayagan/Baranowska, § 21.2.1, in this textbook. and the 1950 European Convention for the Protection of Human Rights and Fundamental FreedomsConvention for the Protection of Human Rights and Fundamental Freedoms (adopted 04 November 1950, entered into force 3 September 1953) 213 UNTS 221 (ECHR). (ECHR)On the European human rights system, see Theilen, § 21.2.3, in this textbook. , the 1969 American Convention on Human RightsAmerican Convention on Human Rights "Pact of San José, Costa Rica" (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (ACHR). (ACHR)On the Inter-American human rights system, see Kahl/Arévalo-Ramírez/Rousset-Siri, § 21.2.4, in this textbook. and the 1981 African Charter on Human and Peoples' RightsAfrican Charter on Human and Peoples' Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 (AfCHPR). (AfCHPR)On the African human rights system, see Rachovitsa, § 21.2.2, in this textbook. at the regional level. However, there are also international human rights treaties in the post-Soviet region in the form of the 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental FreedomsCommonwealth of Independent States Convention on Human Rights and Fundamental Freedoms (adopted 26 May 1995, entered into force 11 August 1998) 3 I.H.R.R. 1, 212 (1996) (CIS Convention). and in the Arab regionOn the Arab human rights system, see Rachovitsa, § 21.2.5, in this textbook. in the form of the 2004 Arab Charter on Human RightsArab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008) reprinted in 12 INT’L HUM. RTS. REP. 893 (2005) (Arab Charter).. These general human rights treaties are supplemented by many specialised treaties for the protection of specific population groups, for example, women's rightsOn the role of women in international law, see Santos de Carvalho/Kahl, § 7.4, in this textbook. in the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against WomenInter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (adopted 9 June 1994, entered into force 5 March 1995) (Convention of Belem do Para)., migrants' rightsOn migrants, see .../..., § 18, in this textbook. in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their FamiliesInternational Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (adopted 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3., and prohibitions on discrimination in the International Convention on the Elimination of All Forms of Racial DiscriminationInternational Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entered into force 4 January 1969) 660 UNTS 195.. Human rights treaties are not static, but are constantly evolving by treaty amendments, additional protocols, or extended interpretations by adjudicative bodies according to article 38(1)(d) ICJ Statute.Chinkin (n 1) 68–70, 75–77.Interpreting International Human Rights Treaties In principle, the 'general rules on the interpretation of international treaty law' in articles 31-33 VCLT are also applicable to human rights treaties.Kälin and Künzli (n 2) 34. Accordingly, pursuant to article 31VCLT, the wording, context, and object and purpose of the human right are primarily decisive for the interpretation. In addition, according to article 32 VCLT, the drafting history may be considered if the wording and context are ambiguous. Human rights adjudicative bodies add a 'dynamic approach' to these general rules for interpreting international law. According to this, human rights treaties are 'living instruments' that have to be interpreted 'in light of present-day conditions'.Kälin and Künzli (n 2) 34 referring to: Tyrer v The United Kingdom [1978] [31]; Atala Riffo and Daughters v Chile [2012] 83. This progressive mode of interpretation is used to interpret human rights as 'proactively' and 'favorably' as possible for individuals.Matthias Herdegen, ‘Interpretation in International Law’, Max Planck Encyclopedia of Public International Law (2009) paras 45–46. However, this generally positive account of interpretive techniques should not obscure the fact that human rights treaties are also defined and applied deferentially. For example, in its case law on migration law, the ECtHR refers to the ‘principle of state control‘ to leave states leeway in curtailing rights of refugees.Abdulaziz, Cabales & Balkandali v. United Kingdom [1985] ECtHR Applications 9214/80, 9473/81 and 9474/81 [67-68]; Alan Desmond, ‘The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 of the ECHR?’ (2018) 29 European Journal of International Law 261, 264. Similarly, the ECtHR uses the 'culpable conduct doctrine' to deprive migrants of human rights protections for failing to comply with procedures that exist only in law, not in fact. N.D. and N.T. v. Spain [2020] ECtHR Applications 8675/15 and 8697/15 [200-231]. Thus, an interpretation of human rights that exceeds their wording can also serve to limit human rights guarantees. II. International Human Rights as Customary International Law Some human rights are also customary international lawOn customary law, see Stoica, § 6.2, in this textbook. and are therefore binding even for States that have not ratified a human rights treaty, provided sufficiently stable State practice and opinio juris (Latin: 'legal opinion') exist. However, contrary to other areas of international law, human rights standards did not originate in customary law, but in international treaties. In the absence of state practice in respecting human rights, human rights treaties had to be created to force states to respect human rights after the experience of two world wars. Nevertheless, more and more human rights are also developing into customary law.Brian D. Lepard, “Why Customary International Law Matters in Protecting Human Rights”, Völkerrechtsblog, 25 February 2019, doi: 10.17176/20190225-133150-0. They are thus binding on states under both treaty and customary law. Two developments indicate the required state practice and opinio juris for some customary human rights. First, more and more states recognize the legal principles of the UDHR as binding. Second, almost all states have now signed at least one human rights treaty.William A Schabas, The Customary International Law of Human Rights (1st edn, Oxford University Press 2021) 342–343 <https://academic.oup.com/book/39904> accessed 17 April 2023. To identify state practice and opinio juris for specific human rights, reference can be made in particular to the Universal Periodic Review of the Human Rights Council or judgments of the ICJReservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ I.C.J. Reports 1951, p. 15 23; Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep 422 [99]..Schabas (n 11) 342–343. Nowadays, at least the prohibition of torture, racial discrimination, and slavery are considered to be customary international law.Chinkin (n 1) 71–72; James Crawford, Brownlie’s Principles of Public International Law (Ninth edition, Oxford University Press 2019) 618; Kälin and Künzli (n 2) 59–60. III. General Principles of International Law General principles of international lawOn customary law, see Eggett, § 6.3, in this textbook. sometimes clarify the content of international human rights. For example, in the Golder Case, the European Court of Human Rights (ECtHR) held that the right to a fair trial incorporates the general principle that 'a civil claim must be capable of being submitted to a judge'.Golder v the United Kingdom [1975] ECtHR Application 4451/70 [35]. The ECtHR justifies the use of general principles of international law by reference to the drafting history of the ECHR, the wording of the right to a fair trial in article 6 ECHR, the nature of the ECHR as a lawmaking treaty and article 31(3)(c) VCLT.Golder v. the United Kingdom (n 14) paras 35–36. Similarly, the Inter-American Court of Human Rights (IACtHR) applies general principles of international law in its case law.Denunciation of the American Convention on Human Rights and the Charter of the Organization of American States and the Consequences for State Human Rights Obligations [2020] IACtHR Advisory Opinion OC-26/20 [96, 100, 110]. IV. International Human Rights as Jus Cogens and Obligations Erga Omnes The prohibition of torture, racial discrimination, and slavery are recognised not only as customary international law, but also as jus cogensOn legal sources in general, see Eggett, § 6, in this textbook. (Latin: 'peremptory norms') norms.International Law Commission, ‘Peremptory norms of general international law (jus cogens)‘ (2022) UN General Assembly, A/CN.4/L.967, Annex. Hence, all rules (whether in treaties, custom or principles) that contradict these jus cogens human rights are invalid.Chinkin (n 1) 73–74; Kälin and Künzli (n 2) 61–62. International Human Rights and Jus Cogens The list of the three human rights shows that not all human rights are jus cogens norms. This status is reserved only for the most important human rights. A majority of human rights can be limited or suspended contrary to article 53 VCLT. However, in addition to the three recognized jus cogens human rights, there are other jus cogens human rights. For example, the Inter-American Court of Human Rights (IACtHR) recognizes protection against enforced disappearanceIACtHR, ‘García and family members v. Guatemala, Judgment‘ (2012) Series C No. 258, para. 96. and the Inter-American Commission on Human Rights (IACmHR), African Court on Human and Peoples' Rights (AfCmHPR) and Human Rights Committee (CCPR) recognise the right to lifeIACmHR, ‘Victims of the Tugboat ‘13 de Marzo’ v. Cuba‘ (1996) Case 11.436, Report 47/96 (Merits), para. 79; AfCmHPR, ‘General Comment 3 on the African Charter on Human and Peoples’ Rights: The right to life (art. 4)‘ (2015), para. 5; CCPR, ‘General Comment 29, art. 4: Derogations during a State of Emergency‘ (2001), CCPR/C/21/Rev.1/ Add.11, para. 11. as jus cogens rights.Schabas (n 11) 62–67. Ultimately, though, broadening the three-part catalogue of jus cogens human rights remains challenging.The list of human rights included among jus cogens norms remains ill-defined and is continuously evolving. Furthermore, there remain doctrinal uncertainties concerning the requirements of such jus cogens norms.Olivier de Schutter, International Human Rights Law: Cases, Materials, Commentary (Third edition, Cambridge University Press 2019) 85. Because all jus cogens norms are also erga omnesOn legal sources in general, see Eggett, § 6, in this textbook. (Latin: 'towards all') rules, violations of these three human rights can be invoked by all States before international tribunals. International Human Rights and Erga Omnes Non-jus cogens norms can also be erga omnes rules. However, at least in 1970, the ICJ stated that 'on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality.'Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3 [91]. Only if certain human rights can be considered “rules concerning the basic rights of the human person”CCPR, ‘General Comment No 31 The Nature of the General Legal Obligation Imposed on State Parties to the Covenant’ (2004) para 2., they give rise to obligations erga omnes.International Law Commission, ‘Report of the International Law Commission’ (2006) General Assembly, Official Records 61st session, Supplement No. 10 (A/61/10) 421–423. This restrictive approach only applies to universal human rights treaties. In contrast, regional human rights treaties are based on the collective enforcement of human rights by all parties to the treaty.Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase) (n 22) para 91. States can, for example, bring cases against other states to human rights adjudicative bodies based on so-called state complaints.See Art. 46 AfCHPR, Art. 45 ACHR, Art. 33 ECHR. C. Obligations in International Human Rights Law Deviating from general international law, international human rights law does not only create obligations between States, but also obligations of States to individuals subject to their jurisdiction.Chinkin (n 1) 66; Frédéric Mégret, ‘Nature of Obligations’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 87–89; Kälin and Künzli (n 2) 85–88. I. Obligated Actors: States, Non-State Actors and International Organisations According to the traditional and undisputed understanding, human rights first and foremost bind the StateOn states, see Green, § 7.1, in this textbook. as the primary duty bearer.See Art. 1 ECHR, Art. 2(1) ICCPR, Article 2(1) ICESCR, Art. 1(1) ACHR, Art. 1 AfCHPR. In exercising its legislative, administrative, or judicial power, the State must comply with human rights obligations arising from treaties and customary law.Sarah Joseph and Sam Dipnall, ‘Scope of Application’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 111; Kälin and Künzli (n 2) 69. This also applies to excesses of individual security officers,Velásquez-Rodríguez v Honduras [1988] [170]. private persons performing State functions,Kälin and Künzli (n 2) 70–71. or subsequent explicit acceptance of actsCase concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] 3 [63 ff.].. While States have wide discretion in implementing obligations under international law in general, human rights obligations are more specific: States must respect, protect, and fulfil human rights.This is discussed in more detail at the end of this chapter. See ‘E. I. Means of Implementation: Respect, Protect, Fulfill’; see also Mégret (n 27) 97; Schutter (n 21) 292. Certainly, almost all human rights treaties oblige (only) States to respect human rights. However, non-State actorsOn the variety of actors, see Engström, § 7, in this textbook. may also have human rights obligations.While it is disputed whether these obligations of non-state actors can also be called “obligations” or “duties” or “responsibilities”, for the sake of consistency, the term "obligations" is used in this chapter. Some human rights treaties even contain clauses under which individuals have obligations. In this case, human rights obligations of private actors can be derived directly from the treaty text.Kälin and Künzli (n 2) 73. Obligations of Non-state Actors Article 27(1) AfCHPR provides that 'Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community.“See also Article 29(1) UDHR: „Everyone has duties to the community in which alone the free and full development of his personality is possible.'. For human rights treaties without such a clause, duties of non-State actors can be derived indirectly from the State’s positive obligations to protect: Sometimes the State must restrict the rights of one individual to protect the rights of another individual (so-called duty to protectThis is discussed in more detail at the end of this chapter. See ‘E. I. Means of Implementation: Respect, Protect, Fulfill’.). In this case, the human rights obligation continues to bind the State, but the non-State actor’s behavior is nevertheless regulated indirectly by international human rights standards through the State’s obligation to intervene in the relationship between two individuals.Kälin and Künzli (n 2) 73–74. In addition, direct human rights obligations of non-State actors are discussed for a variety of cases, if they threaten the human rights of individuals in a State-equivalent manner. This is discussed for terrorists,IACmHR, ‘Report on Terrorism and Human Rights’ (2002) OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. para 48. insurgencies (when they exercise de facto State power in armed conflicts), and large corporationsOn business and human rights, see González Hauck, § 7.7, in this textbook. David Bilchitz, ‘The Ruggie Framework: An Adequate Rubric for Corporate Human Rights Obligations?’ (2010) 7 SUR - International Journal On Human Rights 198..Sir Nigel Rodley, ‘Non-State Actors and Human Rights’, Routledge Handbook of International Human Rights Law (Routledge 2012) <https://www.taylorfrancis.com/books/9780203481417> accessed 4 July 2022; Kälin and Künzli (n 2) 72.Duties of Individuals (written by Adamantia Rachovitsa) Under domestic law, the fulfillment of various duties by individuals is commonplace. National constitutions and ordinary legislation in almost all states in the world regularly provide, for example for the duty to pay taxes, the duty to vote, the duty to serve in the army or the duty of the parents to care for their child's well-being. Nonetheless, individuals have limited duties under international law, such as specific duties under international humanitarian law or international criminal law. International human rights instruments acknowledge the existence of individual duties. Article 29(1) of the Universal Declaration on Human Rights states that 'everyone has duties to the community in which alone the free and full development of personality is possible'. Similarly, the preambles of the International Covenant on Civil and Political Rights (ICCPR) and of the International Covenant on Economic, Social and Cultural Rights also acknowledge that individuals have duties.Preambular para 5 respectively. See also article 32(1) of the Inter-American Convention on Human Rights and article 3(1) of the Revised Arab Charter on Human Rights. With that being said, one cannot escape noticing that human rights law does not emphasise individual duties. This is because in international human rights law, states are the duty-bearers, assuming the obligation to protect certain individual rights and freedoms. The state enjoys the monopoly on exercising power and, therefore, individuals warrant protection from the abuse of power. Consequently, the decision to effectively exclude lists of individual duties from most human rights treaties was conscious, due to concerns that governments could rely on these duties to restrict human rights unlawfully.JH Knox, 'Horizontal Human Rights Law' (2008) 102 American Journal of International Law 1, 34. It is for this reason that one should distinguish between duties towards the state and duties towards others. Since the underlying structure of human rights entails the protection of the individual from the state, individual duties towards the state need to be carefully scrutinised so as to avoid potential abuse. In general, human rights law offers concrete avenues for the duties of the individual to be accommodated as possible restrictions on human rights as long as these restrictions have a legal basis, pursue a legitimate aim and are necessary. Individual duties may also have a certain legal bearing when interpreting the scope of human rights. The Tanganyika Law Society case is the only instance where the African Court on Human and Peoples' Rights had the opportunity to clarify the function of duties but it did not do so.Tanganyika Law Society and Legal and Human Rights Centre and Revered Christopher R Mtikila v Tanzania, 14 June 2013, paras 100, 107(2), 112, 115. More specifically, individual duties towards the state, when in the public interest, may be considered as restrictions imposed on a human right. Human rights treaties may also contain an explicit reference to a duty. For instance, article 19(3) ICCPR refer to the duties of journalists in he exercise of the freedom of expression. Furthermore, human rights law also takes duties towards other individuals into account. First, the 'rights and freedoms of others' is one of the legitimate aims for which certain human rights can be restricted.Articles 12(3), 18(3), 19(3), 21 and 22 of the ICCPR. Second, human rights treaties may contain a clause prohibiting the abuse of rights.Article 5 of the ICCPR; article 17 of the European Convention on Human Rights. Third, crucially, the protection of the rights and freedoms of others has been indirectly incorporated into the growing jurisprudence on states' positive obligations, that is instances in which states are obliged to exercise due diligence so as to ensure that human rights are protected from interference from private parties.Knox (n 1) 1-2. Finally, it should not go unnoticed that certain human rights treaties confer specific duties upon individuals, such as parents' duties towards their children under the Convention on the Rights of the Child (CRC).Articles 3(2), 5, 9, 14(2), 18(1), 19(1) and 27(2) of the CRC. Specific human rights treaties and documents place a pronounced emphasis on individual duties. This is the case with the 1948 American Declaration of the Rights and Duties of Man and the 1981 Universal Islamic Declaration on Human Rights. However, no equivalent elaboration of duties found its way into the ACHR or the Revised Arab Charter. The only treaties that provide for detailed individual duties are the African Charter on Human and Peoples' Rights (ACHPR) (articles 27-29) and the 1990 African Charter on the Rights and Welfare of the Child (article 31). The lists of duties provided in the foregoing instruments have many similarities. Most of these duties are owed to the state. Individual duties are seen as a marker of culture and a manifestation of a communitarian approach to human rights. For instance, African (rural) society is underpinned by the dialectic relationship between the individual and the group.JAM Cobbah, 'African Values and the Human Rights Debate: An African Perspective' (1987) 9 Human Rights Quarterly 309. Communitarian considerations stemming from an African, Asian or Arab perspective do not necessarily resonate with the Western, strictly individualistic human rights paradigm. The duty to preserve and strengthen positive African cultural values in one's relations with other members of society, in the spirit of tolerance, dialogue and consultation, under article 29(7) ACHPR is an apt example. At the same time, however, casting these principles as duties may 'come dangerously close to destroying or denying human rights as they have been understood'.J Donelly, 'Human Rights and Human Dignity: An Analytical Critique of Non-Western Conceptions of Human Rights' (1982) 76 The American Political Science Review 303, 312. There is also a serious risk that states will involve duties as a pretext for imposing far-reaching restrictions on human rights.F Viljoen, International Human Rights Law in Africa (OUP 2007) 249. The provisions on duties toward others may offer novel perspectives for conceptualising certain aspects of human rights law. Yet, in many instances, their vaguely phrased wording does not allow us to determine whether they are of a moral or legal nature. There is also a lack of clarity regarding who the beneficiary of a given duty is intended to be (e.g., the state, society, other individuals) or what its precise content entails.M Malila, The Place of Individuals' Duties in International Human Rights Law: Perspectives form the African Human Rights System (PhD thesis, University of Pretoria 2017) 270-307. The foregoing challenges should not in themselves lead us to dismiss individual duties as a concept all together.Malila (n 10) 303-307. There is scope for the implementation of individual duties on a community and societal level, thereby preserving and nurturing communal and cultural practices and values.MW Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press 2002) 93. Such practices, however, need to protect individuals from discrimination.W Adiel, The Protection of Freedom of Expression in Africa (Edwin Mellen Press 2016) 730-770. International organisationsOn international organisations, see Baranowska/Engström/Paige, § 7.3, in this textbook. are not bound by human rights according to the text of human rights treaties,The most famous exception is certainly the ECHR, which provides for the accession of the European Union to the ECHR in Protocol No 14. although they can be responsible for serious human rights violations and are gaining more and more power. However, international organisations are bound by jus cogens norms and therefore bound by human rights that are jus cogens norms.Joseph and Dipnall (n 29) 111; Kälin and Künzli (n 2) 78–79. II. Protected Actors Human rights bind the State vis-à-vis all individualsOn individuals, see Theilen, § 7.4, in this textbook. within its territory and under its jurisdiction.Joseph and Dipnall (n 29) 111; see also Art. 2(1) ICCPR. Unless human rights are not explicitly limited to nationals, they apply equally to nationals and non-nationals.Joseph and Dipnall (n 29) 111–112. International human rights treaties do not primarily protect the rights of citizens, but of humans. Human rights protect vulnerable groupsFor a critical reflection on vulnerability in the human rights discourse, see Pamela Scully, ‘Vulnerable Women: A Critical Reflection On Human Rights Discourse and Sexual Violence’ (2009) 23 Emory International Law Review 113. in particular, such as asylum seekers, undocumented migrants, disabled people, elderly people, indigenous peoples, and minorities, as well as women, transgender people, and children.See Art. 2(2, 3) ICESCR; see also CESCR, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (2000) E/C.12/2000/4; Roberto Andorno, ‘Is Vulnerability the Foundation of Human Rights?’ in Aniceto Masferrer and Emilio García-Sánchez (eds), Human Dignity of the Vulnerable in the Age of Rights, vol 55 (Springer International Publishing 2016).human rights and nationality Article 25 ICCPR limits the right to political participation to citizens, while the prohibition of torture or inhuman and degrading treatment (article 7 ICCPR) applies equally to nationals and non-nationals (e.g., asylum seekers and migrants). The unborn has no international human rights.Kälin and Künzli (n 2) 112. According to article 4(1) ACHR, life does not begin with birth, but already with conception. However, this clause has never been successfully invoked on behalf of an unborn and other regional and universal human rights treaties do not contain such a clause. On the contrary, both the ECtHR and the HRC reject rights of the fetus independent of the pregnant person.Vo v France [2004] ECtHR Application 53924/00; Peter Michael Queenan v Canada [2005] CCPR CCPR/C/84/D/1379/2005. This approach is consistent with the wording of article 1 UDHR (‘all human beings are born free’). Nowadays, many human rights systems provide a (sometimes limited) right to abortion.Rebecca Smyth, ‘Abortion in International Human Rights Law at a Crossroads: Some Thoughts on Beatriz v El Salvador’ [2023] Völkerrechtsblog <https://voelkerrechtsblog.org/abortion-in-international-human-rights-law-at-a-crossroads/> accessed 21 June 2023; Spyridoula Katsoni, ‘The Right to Abortion and the European Convention on Human Rights: In Search of Consensus among Member-States’ [2021] Völkerrechtsblog <https://voelkerrechtsblog.org/the-right-to-abortion-and-the-european-convention-on-human-rights/> accessed 21 June 2023. A uniform approach to human rights of corporationsOn corporations, see González Hauck, § 7.7, in this textbook., does not exist. While in the European human rights system corporations have standing before the European Court of Human Rights, in the UN and Inter-American systems only individuals have human rights. However, insofar as rights of individuals are protected by a company, individuals can also invoke rights of companies.Joseph and Dipnall (n 29) 112–114. For the rights of indigenous peoplesOn indigenous peoples, see Viswanath, § 7.2, in this textbook., on the other hand, most human rights systems provide for distinctive rights.See Art. 1, 47 ICCPR; Art. 20(1) AfCHPR; Indigenous Communities of the Lhaka Honhat (Our Land) Association v Argentina [2020] IACtHR Series C 400; Maya Kaqchikel Indigenous Peoples of Sumpango et al v Guatemala [2021] IACtHR Series C 440. rights of indigenous peoples Article 20(1) AfCHPR provides that 'All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.' Rights of Indigenous Peoples in the European Human Rights System The European human rights system, built on the idea of individualized liberalism, does not contain any rights specifically designed for indigenous peoples. However, at least the European Charter for Regional or Minority Languages and the (European) Framework Convention for the Protection of National Minorities protect the identity of minority groups. In Muñoz Díaz v Spain, the ECtHR also indicated group-specific rights of national minorities.Muñoz Díaz v Spain [2009] ECtHR Application 49151/07 [60]. III. Types of Obligations Obligated actors must respect human rights by refraining from interference with rights (so-called negative obligations) and by protecting rights through action (so-called positive obligations).Kälin and Künzli (n 2) 87. Negative obligations require duty-bearers to refrain from unlawfully interfering with human rights. States may therefore only restrict human rights if they can provide a justification for the interference. This requires a restriction that is prescribed by law, serves a legitimate aim, and is necessary in a democratic society.See „C. II. 3. Justifications“ in this chapter. Thereby, negative obligations correspond to the duty to respect human rights.This is discussed in more detail at the end of this chapter. See ‘E. I. Means of Implementation: Respect, Protect, Fulfill’. Negative Obligations A state that uses judicial birching as a form of corporal punishment violates the prohibition of degrading punishment in article 7(1) ICCPR. Since this is a jus cogens obligation, the state cannot justify such an intrusion by referring to societal interests. In contrast, a COVID-19 related ban on public indoor assemblies interferes with the freedom of assembly under article 21 ICCPR but can be justified (at least during the initial spread of COVID-19) by reference to public health. Duty-bearers cannot, however, fulfil their human rights obligations by mere omission. Instead, they must also respect their positive obligations. Positive obligations oblige duty-bearers to actively protect human rights. States must protect individuals from State, human and natural threats (so-called duty to protect), provide effective access to justice (so-called procedural rights), share information, and enable participation in political and social processes.Eckart Klein (ed), The Duty to Protect and to Ensure Human Rights (Berlin-Verl, Spitz 2000); Alastair Mowbray, ‘Duties of Investigation Under the European Convention on Human Rights’ (2002) 51 International and Comparative Law Quarterly 437; Kälin and Künzli (n 2) 87–89. These duties apply to all State organs and to economic, social, and cultural rights as well as civil and political rights.Kälin and Künzli (n 2) 106. Thereby, positive obligations correspond to the duties to protect and to fulfil human rights.This is discussed in more detail at the end of this chapter. See ‘E. I. Means of Implementation: Respect, Protect, Fulfill’. positive obligations If a state is aware, or should have been aware, that a landslide is imminent as a result of private coal mining and nevertheless fails to take legislative or executive measures to protect the population, the state violates the right to life in article 6(1) ICCPR of the victims. Similarly, impoverished persons are entitled to legal aid to enforce their legal claims.These examples are based on decisions mentioned in Kälin and Künzli (n 2) 97–98, 105. D. International Review of Human Rights Obligations In international human rights law exists is no global forum that monitors human rights as the final authority. Instead, State compliance with human rights is supervised simultaneously by universal and regional courts, committees, and commissions in judicial, quasi-judicial and non-judicial forums.Chinkin (n 1) 64. Courts are authorised to exercise judicial review of human rights (e.g., the African Court on Human and Peoples’ Rights (AfCHPR)). In a similar way, quasi-judicial bodies can also rule on individual complaints although they are no courts (e.g., the IACmHR). Non-judicial bodies operate alongside this (quasi-)judicial supervision by documenting and evaluating the general, not complaint-specific human rights situation (e.g., the UN Human Rights Council (UNHRC)).‘Courts & Monitoring Bodies’ (International Justice Resource Center, 4 March 2014) <https://ijrcenter.org/courts-monitoring-bodies/> accessed 26 July 2022. I. Judicial Review The most famous supervisors of human rights are certainly the three regional human rights courts in Europe, America, and Africa. The ECtHR, the IACtHR, and the AfCHPR have been influential in shaping human rights development not only in their regional human rights systems, but worldwide. In these forums, individuals can file cases against actions taken by the State (individual complaints) or States against other States (interstate complaints). The ICJ and International Criminal Court (ICC)On international criminal courts and tribunals, see Viswanath, § 22.2, in this textbook. also interpret human rights in their case law.Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) [2010] 639 [64–98]. Standards of Review Standards of review generally describe whether and to what extent a court adheres to the view of an institution or entity that was previously engaged in examining the facts and the law regarding a specific case.Martha S Davis, ‘A Basic Guide to Standards of Judicial Review’ (1988) 33 South Dakota Law Review 469, 469–470; Amanda Peters, ‘The Meaning, Measure, and Misuse of Standards of Review’ (2009) 13 Lewis & Clark Law Review 233, 235. In international law, standard of review is understood as the intensity with which an international adjudicative body On dispute settlement in international law, see Bolyová/ Sabján, § 12, in this textbook. scrutinizes the respondent state's own assessment of a factual situation and legal assessment of alleged violations of international law.Lukasz Gruszczynski and Wouter Werner (eds), ‘Introduction’, Deference in International Courts and Tribunals (Oxford University Press 2014) 1–2; Caroline Henckels, Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy (First paperback edition, Cambridge University Press 2018) 29–30. Four different prototypes of standards of review exist, characterized depending on the intensity of this scrutinization: First, complete deference (or absence of judicial oversight) as the most deferential describes decisions in which the adjudicative body relies solely on the respondent state's assessment of the facts and the law. Second, in cases of good faith review, adjudicative bodies examine only whether the state evaluated the facts and the law in 'good faith', without 'manifest unreasonableness', or free from 'arbitrariness'. Third, in cases of reasonableness review, the adjudicative bodies will not only consider whether the respondent state’s evaluation was at least somehow comprehensible but also whether an (imaginary) independent observer with the same knowledge of the state would assess the situation as the state has done. However, it is not necessary that the adjudicative body is completely convinced of the state's assessment. The latter is only decisive for the de novo review. This fourth type of standards of review is the least deferential standard and describes decisions in which adjudicative bodies conduct their own assessment of the facts and the law without any deference to the state or other conceivable evaluation.The section is largely based on the still unpublished work of Felix Fouchard on standards of review in the case law of the International Court of Justice and is guided by the existing literature. See only Gruszczynski and Werner (n 64) 1–3; Joshua Paine, ‘Standard of Review: Investment Arbitration’ in Anne Peters (ed), Max Planck Encyclopedia of International Procedural Law (2018) 15; Peters (n 63) 242–247; Viljam Engström, ‘Deference and the Human Rights Committee’ (2016) 34 Nordic Journal of Human Rights 73, 76–78. In the field of international human rights law, standards of review serve three interrelated purposes: Firstly, standards of review balance the power between international adjudicative bodyOn dispute settlement in international law, see Bolyová/ Sabján, § 12, in this textbook. on the one hand and sovereign statesOn states, see Green, § 7.1, in this textbook. on the other.Oren Gross and Fionnuala Ní Aoláin, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ (2001) 23 Human Rights Quarterly 625, 626. A complaint to a human rights adjudicative body requires the exhaustion of local remedies. Therefore, the adjudicative bodies decide on the basis of a supreme court judgment of the respondent state. In this respect, international review is not only subordinate to national policy choices and judicial review, but also interferes with the ultimate decision-making authority of domestic supreme courts.Engström (n 65) 74. Deferential standards of review signal to the respondent state that its own assessment is respected, whereas a more vigorous review signals to the complainant that its request for judicial protection is recognized. Secondly, standards of review allow complainants to assess the likelihood of success of a claim. As demonstrated above, standards of review describe the intensity with which an international adjudicative body scrutinizes the domestic assessment of a factual situation and legal assessment of alleged violations of human rights.Gruszczynski and Werner (n 64) 1–2; Henckels (n 64) 29–30. If adjudicative bodies apply standards of review in a structured and standardized manner, complainants and their legal counsel can assess the chances of success of a complaint in advance, depending on the underlying facts and legal issues. Thirdly, standards of review facilitate judicially economy by recognizing the respective strengths of participants in the procedure. Instead of completely revisiting the entire case, international adjudicative bodies can refer to the assessment of national authorities and courts, relying on the particular proximity of national institutions and subsidiarity of international review.See regarding the purposes of standards of review in international law in general: Peters (n 63) 283–242. International human rights adjudicative bodies do not take a uniform approach to standards of review. The European Court of Human RightsOn the European human rights system, see Theilen, § 21.2.3, in this textbook. recognizes a certain 'margin of appreciation' of states in the interpretation and implementation of human rights (legal margin) and in the assessment of the facts (factual margin).Kälin and Künzli (n 2) 93–95; Mégret (n 27) 102–103. However, the notion of standards of review should not be confused with the term 'margin of appreciation' mentioned in the case law of the European Court. The margin of appreciation presupposes a degree of deference and can therefore be better described as one deferential standard of review.L. Gruszczynski and W. Werner, ‘Introduction’, in L. Gruszczynski and W. Werner (eds.), Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation (2014), 1 at 4. Although the Inter-American Commission on Human Rights and the Inter-American Court of Human RightsOn the Inter-American human rights system, see Kahl/Arévalo-Ramírez/Rousset-Siri, § 21.2.4, in this textbook. referred to the margin of appreciation and thus to deferential review in some decision,Advisory Opinion on Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica [1984] IACtHR OC-4/84 [58, 62, 63]; Ricardo Canese v Paraguay [2004] IACtHR Series C 111 [97]. their settled case law rather suggests an almost de novo review.Antônio Augusto Cançado Trindade, El Derecho Internacional de Los Derechos Humanos En El Siglo XXI (2. ed. actualizada, Editorial Jurídica de Chile 2006) 386–387; Gary Born, Danielle Morris and Stephanie Forrest, ‘“A Margin of Appreciation”: Appreciating Its Irrelevance in International Law’ (2020) 61 Harvard International Law Journal 70, 53; Walter Humberto Vásquez Vejarano v Peru [2000] IACmHR Case 11.166 [24, 34]. Similarly, the United Nations Human Rights CommitteeOn the UN human rights system, see Ananthavinayagan/Baranowska, § 21.2.1, in this textbook. has mentioned the margin of appreciation in communications concerning questions of public moralsLeo Hertzberg et al v Finland [1982] CCPR CCPR/C/OP/1 [10.3]. and national securityVjatseslav Borzov v Estonia [2004] CCPR CCPR/C/81/D/1136/2002 [7.3]., but for the most part has rejected it,Länsman et al v Finland [1992] CCPR CCPR/C/52D/511/1992 [9.4]; General Comment No 29: Article 4: Derogations during a State of Emergency [2001] CCPR Adopted at the Seventy-second Session of the Human Rights Committee [6]; CCPR, ‘General Comment No 34 Article 19 Freedoms of Opinion and Expression’ (2011) para 36. even though the drafting history of the ICCPR contained an explicit endorsement of the margin of appreciationReport of the Third Committee, ‘Draft International Covenants on Human Rights’ (1963) UN Doc. A/5655 para 49.. The Human Rights Committee justifies its (almost) de novo standard of review considering state’s voluntary accession to human rights treaties, the universalism of international human rights law, and its own function and competence.CCPR, ‘HRC General Comment 34’ (n 76) para 36. In the African human rights system, the African Commission on Human and Peoples' RightsOn the African human rights system, see Rachovitsa, § 21.2.2, in this textbook. seems to assume a margin of appreciation on the part of member states,Garreth Anver Prince v South Africa [2004] AfCmHPR Communication 255/02 [50–53]. whereas the African Court on Human and Peoples' Rights is less deferential and applies an (almost) de novo standard of reviewThe Tanganyika Law Society and Legal and Human Rights Centre v United Republic of Tanzania [2013] AfCtHPR Application 009/2011 [107–111, 112]; Adem Kassie Abebe, ‘Right to Stand for Elections as an Independent Candidate in the African Human Rights System: The Death of the Margin of Appreciation Doctrine?’ (AfricLaw, 19 August 2013) <https://africlaw.com/2013/08/19/right-to-stand-for-elections-as-an-independent-candidate-in-the-african-human-rights-system-the-death-of-the-margin-of-appreciation-doctrine-2/> accessed 29 June 2022.. II. Quasi-judicial Review The quasi-judicial human rights commissions and committees complement the judicial supervision of human rights. On the one hand, these institutions are court-like when they decide on human rights violations in individual cases, as the IACmHR, the CCPR, and the Committee against Torture do. The same applied to the European Commission of Human Rights before it was banned in 1998. Thereby, they also contribute to the progressive development of their respective human rights treaties. On the other hand, unlike court decisions, the decisions of these adjudicative bodies are not binding. Moreover, the work of quasi-judicial institutions is not limited to individual or interstate complaints. Instead, the commissions and committees also assess the general human rights situation in States in so-called State reports.Kälin and Künzli (n 2) 192–193. II. Non-judicial Review In addition to the (quasi-)judicial review of human rights violations, politicised proceedings based on international human rights law are also taking place. The most notorious forum is certainly the UNHRC. The non-judicial bodies are not concerned with developing a coherent interpretation of human rights, but with balancing political interests.Kälin and Künzli (n 2) 192. These mechanisms are often criticised for their politicisation and infectivity.Jane Connors, ‘United Nations’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 385–386; Kälin and Künzli (n 2) 242–243. However, the key advantage of political review of human rights violations is its applicability to all States. Political review is neither spatially nor temporally limited, and can therefore also be applied to States that do not accept the jurisdiction of judicial and quasi-judicial adjudicative bodies.Kälin and Künzli (n 2) 193. Moreover, it is precisely the process of political negotiation that brings the human rights discourse into previously unattainable areas.Connors (n 83) 386–387; Kälin and Künzli (n 2) 243. In addition to these institutionalised forms of human rights monitoring, there is also a vast field of non-governmental organisations, grassroots movements, and activist litigators that also participate in the interpretation and monitoring of human rights.Chinkin (n 1) 78. E. Domestic Implementation of International Human Rights The application and interpretation of human rights by various institutions does not result in their effective implementation. To this end, the means of implementation and circumvention are crucial. I. Means of Implementation: Respect, Protect, Fulfil States must respect, protect, and fulfil human rights domestically.CESCR, ‘General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’ (1990) E/1991/23; Mégret (n 27) 97; Schutter (n 21) 292. These obligations to respect, protect and fulfil are linked to positive and negative obligations, which have already been discussed at the beginning of this chapter.See ‘B. I. 1. Obligated Actors: States, Non-State Actors and International Organizations’. In their negative orientation, human rights contain an obligation to respect. Accordingly, States must refrain from actively violating human rights through their organs or agents.Mégret (n 27) 97; Schutter (n 21) 292. However, States are not only required to refrain from human rights violations, but they are also equally obligated to act. In this positive orientation, human rights also contain obligations to protect and to fulfil. According to the obligation to respect, States must protect the people living in their jurisdictionOn jurisdiction of international courts, see ???, § 12, in this textbook. from foreseeable and preventable rights violations by human-made or natural events.Mégret (n 27) 97–98; Schutter (n 21) 292. This includes obligations to prevent threats to the enjoyment of human rights by executive action or prohibitive legislation.Kälin and Künzli (n 2) 87–88. The obligation to respect also includes remedial obligations to assist victims after human rights infringement occurred by providing executive intervention, legislative remedies or judicial precautionary orders.Kälin and Künzli (n 2) 87–88. Finally, according to the obligation to fulfil, States must create procedures and institutions that enable greater enjoyment of human rights.Mégret (n 27) 98. This includes supervising State agents, but also providing public services and financial aid. The extent of this obligation depends on the capabilities of the State.Kälin and Künzli (n 2) 88. The obligations to respect, protect and fulfil determine the general efforts that executive, legislative and judicial branches must undertake to secure the full realisation of human rights.Kälin and Künzli (n 2) 87–89. While the three types overlap, they help in evaluating State behavior.Mégret (n 27) 99. AAAA/AAAQ Frameworks The distinction between obligations to respect, to protect, and to fulfill was developed for civil and political rights as well as for economic, social, and cultural rights. However, there is also a further typology for economic, social and cultural rights in the form of the AAAA framework. According to this framework, States must establish instititions (availability) that are accessible without discrimination (accessibility), accepted by those affected (acceptability), and adaptable to changing socio-political circumstances (adaptability).Schutter (n 21) 303-307; CESCR, ‘General Comment No. 11: The Right to Education (Art. 13 of the Covenant)’ (1999) E/C.12/1999/10 [6]. For some economic, social and cultural rights, the CESCR modifies the AAAA framework to a AAAQ framework, replacing the final A (Adaptability) with a Q for scientific requirements (Quality). CESCR, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (2000) E/C.12/2000/4 [12]. II. Means of Circumvention: Reservations and Withdrawals In principle, the rules of the VCLT also apply to human rights treaties. The consequence for the implementation of human rights would be that human rights treaties become binding for States upon ratification according to article 14 VCLT, reservations are effective according to articles 19-23 VCLT and States can withdraw from human rights treaties according to articles 54-72 VCLT. However, as the sections on the interpretation of human rights treaties and human rights as customary international law have shown, the provisions of the VCLT do not apply without exceptions. States can use reservations to modify or exclude provisions in human rights treaties. In an international legal order based on consentOn consent, see González Hauck, § 2.2, in this textbook. , it is only convincing to grant States reservations to treaties. However, due to the interdependence of human rights, this can lead to unpredictability and indeterminacy in human rights law. Nevertheless, except for article 2(1) Second Optional Protocol to the ICCPR and article 57 ECHR, human rights treaties contain no provision for or against reservations. For this reason, the rules of the VCLT apply. According to article 19(c) VCLT reservations are valid if they are compatible with the "object and purpose" of human rights treaties.Mégret (n 27) 93. Therefore, reservations against jus cogens norms, customary international law, non-derogable rights, effective remedies, and mandatory procedures before international adjudicative bodies as well as overly vague or broad reservations are impermissible.Loizidou v Turkey [1997] ECtHR 23 EHRR 513 [43]; CCPR, ‘General Comment No 24 Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations under Article 41 of the Covenant’ (1994); Mégret (n 27) 93–94. In general, an unlawful reservation does not cause the entire acceptance of the human rights treaty to fall.Mégret (n 27) 95–97. According to article 56 VCLT, States may only denounce a treaty if it contains a provision regulating its termination or if the parties intended to admit denunciations or if the nature of the treaty implies a right to denunciation. Some human rights treaties contain clauses allowing States to withdraw. For example, article 78 ACHRAdvisory Opinion on the Denunciation of the American Convention on Human Rights and the Charter of the Organization of American States and the Consequences for State Human Rights Obligations [2020] IACtHR OC-26/20 [59–65]. and article 58 ECHR allow for denunciation. The other three major human rights treaties (ICCPR, ICESCR, and AfCHPR) do not contain withdrawal clauses. The drafters of these treaties deliberately decided against incorporating a withdrawal clause. According to the CCPR, States are therefore precluded from withdrawing from these human rights treaties.CCPR, ‘General Comment No. 26: Continuity of Obligations’ (2004); Mégret (n 27) 106–108; Kälin and Künzli (n 2) 137–138; for a holistic discussion of this issue, see: Y Tyagi, ‘The Denunciation of Human Rights Treaties’ (2009) 79 British Yearbook of International Law 86. Others, pointing to the primacy of State sovereigntyOn states, see Green, § 7.1, in this textbook. and consentOn consent, see González Hauck, § 2.2, in this textbook., assume that human rights treaties can be denounced despite the non-existence of a withdrawal clause.Tyagi (n 101) 126–134; Eckart Klein, ‘Denunciation of Human Rights Treaties and the Principle of Reciprocity’ in Ulrich Fastenrath and others (eds), From Bilateralism to Community Interest (1st edn, Oxford University PressOxford 2011) 484–486 <https://academic.oup.com/book/7421/chapter/152326342> accessed 28 February 2023. Withdrawal of the Acceptance of the Jurisdiction The withdrawal of a treaty is to be distinguished from the withdrawal of the acceptance of the jurisdiction of adjudicative bodies. The acceptance of the jurisdiction of adjudicative bodies is not optional for parties to the respective human rights treaty.See Art. 41 ICCPR, Art. 62(1) ACHR, Art. 46 ECHR (1950). Therefore, states are entitled to withdraw their acceptance of the jurisdiction of adjudicative bodies.Ingabire Victoire Umuhoza v Rwanda [2016] AfCtHPR 003/2014 [53–59]. F. (Quasi-)Judicial Review of Human Rights Violations Human rights adjudicative bodies review human rights violations in individual and (more and more frequently latelyIsabella Risini, The Inter-State Application under the European Convention on Human Rights: Between Collective Enforcement of Human Rights and International Dispute Settlement (Brill Nijhoff 2018); Justine Batura and Isabella Risini, ‘Symposium: Inter-State Cases Under the European Convention on Human Rights’ (Völkerrechtsblog, 26 April 2021) <https://voelkerrechtsblog.org/on-current-developments-and-reform/>.) interstate complaints using a two-tiered structure: In a first step, adjudicative bodies examine whether they have jurisdiction to hear the case, answer procedural preliminary questions and usually review whether the complaint is manifestly ill-funded. In a second step, the adjudicative bodies examine the actual human rights violation using a three-step structure consisting of applicability, scope and interference, and justification. I. Jurisdiction and Admissibility The judicial bodies do not begin directly with the examination of human rights violations, but first answer procedural preliminary questions. On the one hand, this is based on legal provisions in human rights treaties. On the other hand, the preliminary questions also serve to reduce the workload of the judicial panels.E.g., ECtHR, ‘Practical Guide on Admissibility Criteria’ (2021) 7–8. 1. Jurisdiction Adjudicative bodies can decide on a complaint only if they have jurisdiction. The bodies can answer this first question themselves (so-called compétence de la compétence). Human rights treaties contain precise requirements for jurisdiction. In general, the person whose human rights have been violated must file a complaint (ratione personae) concerning the interpretation of human rights provided in the treaty under discussion (ratione materiae), provided that the facts of the case relate to the jurisdiction of the respondent State (ratione loci) and the human rights violation occurred after the respondent State became a party to the human rights treaty (ratione temporis).See Art. 32-34 ECHR, Art. 44-47 ACHR, and Art. 3-4 Protocol on the Establishment of an African Court on Human and Peoples‘ Rights. Extraterritorial Application of International Human Rights One notorious issue is probably whether human man rights are territorially applicable to the facts of the case. Human rights are applicable whenever the state has jurisdiction. The state has jurisdiction over its own territory.See Art. 2(1) ICCPR. However, states do not only act within their own territory, but also foreign territory to the detriment of human rights. For this case, the various human rights adjudicative bodies have found different approaches, which are discussed under the umbrella term of extraterritorial application. In the European system, the state has jurisdiction when it exercises effective control over a foreign territory or over the rights of an individual.Al-Skeini and Others v the United Kingdom [2011] ECtHR Application 55721/07 [131–150]; Joseph and Dipnall (n 29) 122. The African human rights system follows this approach.AfCmHPR, ‘General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4)’ (2015) para 14. The UN human rights system also echoes the effective control test, but only requires that the individual be under the effective control of the state. The decisive factor is therefore the relationship of the state to the person affected, not the relationship of the rights violation to the territory.CCPR, ‘HRC General Comment 31’ (n 23) para 10; Joseph and Dipnall (n 29) 125. International Human Rights Law and International Humanitarian Law Another common issue is whether the dispute concerns the interpretation of human rights or international humanitarian lawOn the international humanitarian law, see Dienelt/Ullah, § 14, in this textbook. . While international humanitarian law regulates armed conflict, human rights protect almost all human behavior. However, human rights adjudicative bodies usually have only jurisdiction over international human rights violations and not on violations of international humanitarian law. Nevertheless, overlaps may occur between human rights and international humanitarian law due to the substantive and territorial expansion of human rights law.For a detailed discussion of this issue, see: Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press 2011). There are situations that are exclusively subject to international humanitarian law (e.g., requisitioning of property in occupied territory) or human rights protection (e.g., violations of non-derogable rights) and situations in which both fields are applied concurrently.Sandesh Sivakumaran, ‘International Humanitarian Law’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 512–513. In the case of parallel application of human rights and international humanitarian law, the overlap between the fields must be resolved based on article 31(3)(c) VCLT. Thus, the provisions of both areas of law influence each other.Hassan v the United Kingdom [2014] ECtHR Application 29750/09 [104–105]; Sivakumaran (n 113) 515–516. The concurrent application of human rights and international humanitarian law is important due to the insufficient individual protection in armed conflict, as well as uncertainties in the applicability and lack of enforcement mechanisms of international humanitarian law.Sivakumaran (n 113) 507–511. 2. Admissibility However, jurisdiction is not sufficient for the adjudicative bodies to decide the substance of the claim. Instead, complainants must have exhausted domestic remedies,See Art. 35(1) ECHR, Art. 46(1)(a) ACHR, Art. 2 Optional Protocol to the ICCPR, and Art. 50 AfCHPR. must observe certain time limits between the violation and the filing of the complaint,See Art. 35(1) ECHR, Art. 46(1)(b) ACHR, Art. 56(6) AfCHPR. and must not abuse their right to appealSee Art. 35(3) ECHR, Art. 3 Optional Protocol to the ICCPR, Art. 56(3) AfCHPR.. In addition, anonymous complaints are not permitted.See Art. 35(2) ECHR, Art. 3 Optional Protocol to the ICCPR. Nevertheless, the identity of the complainant may be kept secret in the proceedings if necessary. These requirements reduce the number of cases at a level that can be decided easily and quickly. Furthermore, they generally allow the adjudicative bodies to decide the merits based on facts ascertained by national authorities and courts. 3. Cursory Examination of Merits Finally, a cursory examination of merits reduces the number of admissible cases. The adjudicative body may dismiss a case as inadmissible if the complaint is manifestly ill-founded,See Art. 35(3) ECHR. gives no indication of a significant violation,See Art. 12 Protocol 14 to the ECHR. or has already been addressed before the body or another international body. II. Merits Under merits, the adjudicative bodies analyse whether a State has violated human rights. This is the focal point of reviewing human rights complaints. 1. Scope and Interference In a first step, human rights adjudicative bodies examine whether the State's conduct falls within the scope of a human right. Only when the State intrudes into a sphere protected by a human right does the question of justification arise. However, this question cannot be answered in the abstract, but only depending on the concrete human right. Each human right defines its own scope.Kälin and Künzli (n 2) 118. 2. Justifications Human rights are not unlimited but depend on other human rights and conflict with public interests. The conflict between two human rights or human rights and public interest can be resolved through limitations and derogations of human rights. However, certain rights cannot be restricted under any circumstances. This applies to all jus cogens human rights.Mégret (n 27) 99. conflicts of human rights The freedom of the press of a tabloid allows reporting on the lives of celebrities (negative obligation). This reporting usually interferes with the personal rights of the celebrities (positive obligation). This overlap can be resolved by balancing both rights. On the other hand, a conflict between the prohibition of torture on the one hand and the interest in uncovering a criminal act must always be decided in favor of the prohibition of torture. a) Limitations Human rights limitations must satisfy a three-step test. Although the specific requirements of the test depend on the human right in question, the basic structure of the test is similar among all human rights. First, the restriction must be prescribed by law. The law must be formulated in an accessible and sufficiently precise manner.Mégret (n 27) 100–101. Second, the limitation must serve a legitimate aim. legitimate aims Article 10 ECHR stipulates that limitations of the right to freedom of expression must serve 'the interests of national security, territorial integrity or public safety, […] the prevention of disorder or crime, […] the protection of health or morals, […] the protection of the reputation or rights of others, […] preventing the disclosure of information received in confidence, or […] maintaining the authority and impartiality of the judiciary.' States usually meet the first two requirements. Therefore, the third requirement is decisive. Limitations are only allowed if they are necessary for safeguarding interest that are worthy of protection.See Art. 29(2) UDHR, Art. 8(2) ECHR, Art. 12(2) ACHR, and Art. 27(2) AfCHPR. Accordingly, (a) the limitation must serve the purpose from the second step, (b) there must be no less intrusive means and (c) the means must be proportionate, i.e. the interest in human rights protection must not outweigh the interest in the limitation.Kälin and Künzli (n 2) 92–93; Mégret (n 27) 101. An interference is proportionate if the interest of the individual in exercising her human right does not outweigh the interest of the State in protecting the public interest.Kälin and Künzli (n 2) 93; for an introductory discussion of the problems during this balancing, see: Schutter (n 21) 388–390. Due to the indeterminacy of this balancing, the subsidiarity of international review and the State's greater knowledge of local circumstances, some adjudicative bodies grant States a wide margin of appreciation in this respect.Kälin and Künzli (n 2) 93–94; establishing a margin of appreciation: Handyside v the United Kingdom [1976] ECtHR 5493/72 48; rejecting a margin of appreciation: CCPR, ‘HRC General Comment 34’ (n 76) para 36. b) Derogations In emergencies, States in the European, American, Arabic, and universal human rights systems can not only restrict human rights, but also derogate from them. Derogations are permitted if a state of emergency is declared and exists, the emergency measure is necessary and non-discriminatory, and that no non-derogable rights are violated.See Art. 4 ICCPR, Art. 15 ECHR and Art. 27 ACHR. The AfCHPR does not contain a derogation clause. Therefore, even in states of emergency, the parties to the AfCHPR can justify infringements on human rights only by relying on the general limitation clause.Commission Nationale des Droits de l’Homme et des Libertes v Chad [1992] AfCmHPR Communication 74/92 [21]. c) Economic, Social, and Cultural Rights Economic, social, and cultural rights (ESC rights) do not oblige the State to refrain from doing something (non-interference with human rights), but to do something (providing resources). Therefore, the test for justifying interferences with these rights differs from other rights. article 2 ICESCR contains the two decisive State obligations for ESC rights: progressive realisation and the prohibition of discrimination.Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (First edition, Oxford University Press 2014) 133–134. According to the requirement of progressive realisation in article 2(1) ICESCR, States are obliged implement incrementally those rights for which they have sufficient resources.Saul, Kinley and Mowbray (n 131) 143, 151–152. The prohibition of discrimination from article 2(2) ICESCR furthermore requires States to guarantee all rights without discrimination.Saul, Kinley and Mowbray (n 131) 174–175. The regional human rights systems further stipulate these State obligations. G. Conclusion This chapter has shown that international human rights law derives from multiple sources of law, bind and obligate different actors in international law, various mechanisms exist to review human rights, and international courts around the world apply a similar scheme to review human rights violations. However, the information presented in this chapter can only serve as an introduction to a thorough discussion of international human rights law. The following chapters show how different universal and regional systems regulate human rights standards by adapting them to global or local specificities. Interested students and teachers of international law can also explore questions about specific human rights using the further readings provided below. Summary Contemporary international human rights law derives from international treaties, customary international law, general principles of law and non-binding declarations that coexist at both the regional and universal levels. Deviating from general international law, international human rights law does not only create obligations between States, but also obligations of States to individuals subject to their jurisdiction. In international human rights law, there exists no global forum that monitors human rights as the final authority. Instead, State compliance with human rights is supervised simultaneously by universal and regional courts, committees, and commissions in judicial, quasi-judicial and non-judicial forums. Human rights adjudicative bodies review human rights violations in individual and interstate complaints using a two-tiered structure: In a first step, adjudicative bodies examine whether they have jurisdiction to hear the case, answer procedural preliminary questions and usually review whether the complaint is manifestly ill-funded. In a second step, the adjudicative bodies examine the actual human rights violation using a three-step structure consisting of applicability, scope and interference, and justification. Further Readings Chinkin S, ‘Sources’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) Joseph S and Dipnall S, ‘Scope of Application’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) Mégret F, ‘Nature of Obligations’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) Sivakumaran S, ‘International Humanitarian Law’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) Schutter O de, International Human Rights Law: Cases, Materials, Commentary (Third edition, Cambridge University Press 2019) Further Resources Oxford Human Rights Hub (Blog) LSE Human Rights (Blog) Africa Rights Talk - Centre for Human Rights (Podcast) David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton Univ Press 2005). Mabo, ABC iView (Movie)