HUMR5140 Introduction to Human Rights Law Autumn 2014 Lectures 1 and 2: Human Rights as Law and as...
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Transcript of HUMR5140 Introduction to Human Rights Law Autumn 2014 Lectures 1 and 2: Human Rights as Law and as...
HUMR5140 Introduction to Human Rights LawAutumn 2014
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.?
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. Charter bodies (Larsen)6. Treaty bodies (Bailliet)7. The Americas and Africa (Bailliet)8. Europe (Larsen)9. IHRL and related legal regimes (Nicholson)10. Human rights in national legal systems (Helgesen)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 (Daniela Kistler)
• Student presentations• Exam preparation
HUMR5140 Examination
• Mid-term essay:– Assignment given 16 September– Submission deadline 26 September– Pass/fail with comments from teacher
• Take-home exam:– Assignment given 10 November– Submission deadline 19 November– Grade A-E (F)
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
Dworkin: An interpretive concept to achieve justice
A set of enforceable rules of conduct which set out guidelines
for the way individuals and society behave
What is «international 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
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
Weak enforcement mechanisms
«International law is the body of rules which are legally binding on states in
their intercourse with each other»
Yes, but of a different
character than domestic law
What is «international 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
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
Weak enforcement mechanisms
«International law is the body of rules which are legally binding on states in
their intercourse with each other»
Yes, but of a different
character than domestic law
What is «human rights 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
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
Weak enforcement mechanisms
«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
Doesn’t fit
Stronger enforcement mechanisms
• More specific and detailedNATIONAL LEGAL
TRADITIONS
CIVIL LAW
COMMON LAW
• High degree of codification and systematisation
• Relies on broad, general principles
• Low(er) degree of codification
• Principles developed by courts, case-by-case
Hybrid systems
Other traditions
Suggested reading: Dominik Lengeling, «Common law and civil law – differences, reciprocal influences and points of intersection», available at:
http://www.consulegis.com/fileadmin/downloads/thomas_marx_08/DLengeling_paper.pdf
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?
“Rule of law”
One important concept…
No person is above the law
No one can be punished by the state except for a
breach of the law
No one can be convicted for breaching the law except in the
manner set forth by the law itself
“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.”
…and some latin expressions
Lex superior
Lex posterior
Lex specialisConstitution
Legislation
Administrative regulations
Hierarchy
Higher
Lower
Norm of higher rank prevails over norm
of lower rank
A newer norm prevails over an
older norm
A specific norm prevails over a general norm
General norm
Specific norm
International law
• Two categories:– Private international law (conflict of laws)– Public international law, a.k.a. general international
law, a.k.a. simply “international law”• Traditionally: International law regulates the
relationship between States• But individuals (and other non-state actors) can
to a certain extent be subjects (duty-bearers and rights-holders) under international law
• The “humanisation” and the “human-rightism” of international law
Some important features
• No “sovereign”• Relatively weak enforcement mechanisms• No formal hierarchy of norms (but consider
jus cogens)• The “fragmentation” of international law
Core matters in international law
• Sources• Subjects• The relationship with municipal law• International responsibility• Peaceful settlement of disputes• The regime applicable to common spaces• Diplomacy• Rules pertaining to armed conflicts
Sources in international law
Statute of the ICJ, Art. 38:(a) international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
1
2
3
4
An international agreement concluded between States in written form and governed by international law ...
whatever its particular designation
‘International conventions’What is a convention?
1
Convention Covenant Treaty Charter
Multilateral
Bilateral Specific
General
Law-making
Contractual
Distinguished from legally non-binding documents
DeclarationsMemoranda of understandingGoalsStatement
‘International conventions’What is a convention?
Stage 1:
Preparations
Stage 2:
State consent
Stage 3:
Binding law
1
NegotiationsAgreementof parties
Text ofDocument
Signatures /Accessions
Ratifications
Entry intoForce
Object and purpose
‘International conventions’Method of interpreting treaties
1
Vienna Convention on the Law of Treaties Art. 31. General rule of interpretation.1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;(c) Any relevant rules of international law applicable in the relations between the parties.
Art. 32. Supplementary means of interpretation.Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or(b) leads to a result which is manifestly absurd or unreasonable
In good faith
Object and purpose
In their context
Ordinary meaning • Objective
• Subjective• Teleological
Contact information:
Kjetil Mujezinović Larsen
Professor of Law, the Norwegian Centre for Human Rights
Phone: +47 22 84 20 83
E-mail: [email protected]