Download HUMR5140 Introduction to Human Rights Law Autumn 2011

HUMR5140 Introduction to Human Rights Law
Autumn 2015
Lectures 1 and 2:
Human Rights as Law and
as International Law
First and second lecture
1. Introduction to HUMR5140
2. Human rights as «law»
3. Human rights as «international» law
What does it mean to discuss human
rights as law as opposed to human
rights as a value, as politics, etc.?
INTRODUCTION TO HUMR5140
HUMR5140 Syllabus
• Javaid Rehman,
International Human
Rights Law (Pearson,
2nd ed., 2010)
• Compendium
• Cases, reports, other
official documents
HUMR5140 Course outline
1. Human rights as law (Larsen)
2. Human rights in international law (Larsen)
3. International bill of rights (Larsen)
4. Scope of application (Larsen)
5. Treaty bodies (Bailliet)
6. Charter bodies (Larsen)
7. Europe (Larsen/Ruud)
8. The Americas and Africa (Bailliet)
9. IHRL and related legal regimes (Andersson)
10. Human rights in national legal systems (Zyberi)
11. Exam preparation (Larsen)
HUMR5140 Student participation
• Primarily lectures
– But room will be made for discussions
– Some lectures will be 50-50
– Q&A and spontaneous discussions are always
encouraged
• Study groups led by teaching assistant (Peter
Leverkus)
• Student presentations
• Exam preparation
HUMR5140 Examination
• Mid-term essay:
– Assignment given 15 September
– Submission deadline 25 September
– Pass/fail with comments from teacher
• Take-home exam:
– Assignment given 9 November
– Submission deadline 18 November
– Grade A-E (F)
HUMR5140 Learning outcome
• http://www.uio.no/studier/emner/jus/humanrig
hts/HUMR5140/
HUMAN RIGHTS AS «LAW»
What is «law»?
A surprisingly
difficult question
Hart: Unity of primary and
secondary rules
Austin: The command of a
sovereign, backed by the
threat of a sanction
A set of enforceable rules of
conduct which set out
guidelines for the way
individuals and society behave
Dworkin: An interpretive
concept to achieve justice
What is «international law»?
A traditional
problem: Is it «law»?
Weak enforcement
mechanisms
Hart: Unity of primary and
secondary rules
Austin: The
Yes,command
but of a of a
sovereign, backed by the
different
threat of a sanction
character than
domestic law
Dworkin: An interpretive
concept to achieve justice
Malcolm Shaw: Law is that
element which binds the
members of the community
together in their adherence to
recognised values and standards
«International law is the body of rules
which are legally binding on states in
their intercourse with each other»
What is «human
rightslaw»?
law»?
«international
A traditional
problem: Is it «law»?
Weak enforcement
mechanisms
Hart: Unity of primary and
secondary rules
Austin: The
Yes,command
but of a of a
sovereign, backed by the
different
threat of a sanction
character than
domestic law
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»
Human rights law is a
part of international law
What is «human rights law»?
A traditional
problem: Is it «law»?
Weak enforcement
Stronger
mechanisms
enforcement
mechanisms
Hart: Unity of primary and
secondary rules
Austin: The command of a
sovereign, backed by the
threat of a sanction
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
Doesn’t
fit
«International law is the body of rules
which are legally binding on states in
their intercourse with each other»
• High degree of codification
and systematisation
• Low(er) degree of codification
• Principles developed by
courts, case-by-case
• Relies on broad, general
CIVIL LAW
principles
• More specific and detailed
NATIONAL LEGAL
TRADITIONS
Hybrid
systems
Other
traditions
COMMON LAW
Structure of national laws – example
• Private law
– Rules pertaining to the relationship between private
entities
• Public law
– Rules pertaining to the relationship between a public
and a private entity, or between public entities
• Hierarchical structure
– Norway: Constitution, legislation, regulations, royal
decrees…
– Where does international law fit?
– Where does human rights law fit?
One important concept…
“Rule of law”
No person is above the law
No one can be punished
byofthe
state
except for
a
“The authority and influence
law
in society,
esp.
of the law
when viewed as a constraintbreach
on individual
and
institutional behaviour; (hence) the principle
No one can be convicted for
whereby all members ofbreaching
a societythe
(including
those
law except
in the
in government) are considered
equally
subject
manner set forth by the lawto
itself
publicly disclosed legal codes and processes.”
…and some latin expressions
Lex superior
Lex posterior
Lex specialis
Norm of higher rank
prevails over norm
of lower rank
A newer norm
prevails over an
Constitution
older norm
Higher
A Legislation
specific norm
prevails over a
general norm
Hierarchy
Specific
norm
Administrative
regulations
Lower
…and some latin expressions
Lex lata
The law as
it is
Lex ferenda
The law as
it should be
INTRODUCTION TO
INTERNATIONAL LAW
International law
• Two categories:
– Private international law (conflict of laws)
– Public international law, a.k.a. general international
law, a.k.a. simply “international law”
• Traditionally: International law regulates the
relationship between States
• But individuals (and other non-state actors) can
to a certain extent be subjects (duty-bearers and
rights-holders) under international law
• The “humanisation” and the “human-rightism” of
international law
Some important features
• No “sovereign”
• Relatively weak enforcement mechanisms
• No formal hierarchy of norms (but consider
jus cogens)
• The “fragmentation” of international law
Core matters in international law
•
•
•
•
•
•
•
•
Sources
Subjects
The relationship with municipal law
International responsibility
Peaceful settlement of disputes
The regime applicable to common spaces
Diplomacy
Rules pertaining to armed conflicts
Sources in international law
Statute of the ICJ, Art. 38:
1
2
3
4
(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
‘International conventions’
What is a convention?
An international agreement concluded
between States in written form and
governed by international law ...
whatever its particular designation
Multilateral
General
Contractual
BilateralCovenant SpecificTreaty
Convention
Law-making
Charter
Distinguished from legally
non-binding documents
Memoranda of
Declarations
Statement
Goals
understanding
1
‘International conventions’
What is a convention?
Stage 1:
Preparations
Stage 2:
State consent
Stage 3:
Binding law
Negotiations
Agreement
of parties
Signatures /
Accessions
Ratifications
Entry into
Force
Object and
purpose
Text of
Document
1
‘International conventions’
Method of interpreting treaties
Vienna Convention on the Law of Treaties
In good faith
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 theOrdinary
purpose of the interpretation of a treaty shall comprise, in addition to the text, including its
preamble and annexes:
• Objective
meaning
(a) any agreement relating to the treaty which was made between all the parties in connection with the
• Subjective
conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and
In their
• Teleological
accepted by the other parties as an instrument related to the treaty.
context
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
Object
andin the application of the treaty which establishes the agreement of the parties
regarding its interpretation;
purpose
(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