11
1
The Emergence of
International Human Rights
INTRODUCTION
Human rights have a logic of their own. This stems from the fact that they have originated
in domestic constitutional documents before becoming part of the corpus of
international law, and that they regulate the relationships between the State and individuals
under their jurisdiction, rather than simply relationships between States. In
order to present this logic, this chapter provides an overview of how human rights
came to emerge in international law; it discusses the sources of international human
rights law; and it locates human rights within general international law. Sections 1 and
2 offer a brief review of the main developments that have occurred at universal and
regional levels, leading to the contemporary regime of international human rights. The
description of the evolution of the human rights regime, while forming an indispensable
background, is left deliberately superficial for the moment. The following chapters
shall provide ample opportunity to explore the most controverial issues which have
arisen over the course of the emergence of the human rights regime. And the interesting
questions arising about the sources of international human rights – such as the role
of the emergence of a jus commune in human rights law, the status of human rights in
customary international law, or the position of human rights in general international
law – are explored in further depth in sections 3 and 4 of this chapter. The readers
already familiar with the basic instruments of international human rights should move
directly to those sections.
Sections 3 and 4 examine the new dilemmas brought about by the rise of international
human rights and the strengthening of the institutions of the human rights
regime. A first source of tension results from the development of a jus commune in
the field of international human rights, particularly since the 1990s. This refers to the
fact that international and national courts increasingly refer to one another, seeking
inspiration in one another’s case law, and progressively building a common understanding
of the values which – whatever the precise legal source in which they are
embodied – they seek to uphold. This movement reinforces the tendency for human
rights law to develop as a self-contained regime of international law, to the extent
12 Emergence of human rights in international law
that the relevance of general principles of international law in the implementation of
international human rights is increasingly questioned. Section 3 analyses the emergence
of this jus commune of human rights, by looking at its manifestations and some
of its potential consequences.
Section 4 seeks to locate the place of human rights in general international law. It
examines the extent to which general public international law imposes respect for
human rights (section 4.1.); whether human rights have a hierarchically superior status
in public international law (section 4.2.); whether they impose obligations which States
owe to the international community as a whole ( section 4.3.); and the place of human
rights treaties in the law of treaties as part of general international law ( section 4.4.).
It also considers the debate on the validity of reservations to human rights treaties,
which provides an illustration of the tension between the view that human rights treaties
are specific, and the view that they should be subordinated to the general rules of
the law of treaties (section 4.5.).
The first question – whether human rights may be derived from customary international
law or the general principles of law, rather than only from the treaties which
codify them in conventional form – may have far-reaching implications, even now
that most of the main human rights treaties have been ratified by a large majority of
States: since such treaties are only binding on their signatories – States – we need to
identify the sources of international human rights law in general international law in
order to hold non-State actors accountable to these rights. The second question requires
an examination of the jus cogens nature of human rights prescriptions, the consequences
of which extend beyond the law of treaties to issues of State responsibility. The
third question is relevant, in particular, to the much-debated issue of the erga omnes
character of human rights norms: while it is uncontested that a State may exercise diplomatic
protection where its nationals have their rights violated by another State, it is
less clear whether, beyond that specific situation, States have a legal interest in seeking
to ensure compliance of other States with their human rights obligations. All these
issues may be related to the more fundamental question of whether human rights treaties
are specific, and should be treated apart from the rules applicable to other, classical
intergovernmental agreements – a question for which the issue of reservations
provides an adequate illustration.
1 THE UNIVERSAL LEVEL: THE UNITED NATIONS AND HUMAN RIGHTS
The Charter of the United Nations was adopted on 26 June 1945. It referred to human
rights and fundamental freedoms as one of the aims of the Organization, mentioning
specifically the right to self-determination of peoples and non-discrimination
as belonging to the internationally recognized human rights (see P. G. Lauren, ‘First
Principles of Racial Equality: the History and Politics and Diplomacy of Human
Rights Provisions in the United Nations Charter’, 5 Human Rights Quarterly (1983),
1; A. Cassese, ‘The General Assembly: Historical Perspective 1945–1989’ in P. Alston
(ed.), The United Nations and Human Rights: a Critical Appraisal, second edn (Oxford
13 The universal level: UN and human rights
University Press, 2004), p. 25). It was understood at the time that the protection of
human rights would also enclose the protection of individual members of minorities
who, therefore, would no longer need a specific system, as they enjoyed under the
League of Nations. The following provisions of the UN Charter are most relevant to the
protection of human rights:
Charter of the United Nations, signed in San Francisco, 26 June 1945:
[Preamble]
We the Peoples of the United Nations, determined … to reaffirm faith in fundamental human
rights, in the dignity and worth of the human person, in the equal rights of men and women
and of nations large and small, …
Chapter I. Purposes and Principles
Article 1
The Purposes of the United Nations are: …
2. To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace;
3. To achieve international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion; …
Chapter IX. International Economic and Social Co-operation
Article 55
With a view to the creation of conditions of stability and well-being which are necessary
for peaceful and friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, the United Nations shall promote:
1. higher standards of living, full employment, and conditions of economic and social progress
and development;
2. solutions of international economic, social, health, and related problems; and international
cultural and educational co-operation; and
3. universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.
Article 56
All Members pledge themselves to take joint and separate action in co-operation with the
Organization for the achievement of the purposes set forth in Article 55.
Chapter X. The Economic and Social Council
Article 61
1. The Economic and Social Council shall consist of fifty-four Members of the United
Nations elected by the General Assembly …
14 Emergence of human rights in international law
Article 62
1. The Economic and Social Council may make or initiate studies and reports with respect to
international economic, social, cultural, educational, health, and related matters and may
make recommendations with respect to any such matters to the General Assembly to the
Members of the United Nations, and to the specialized agencies concerned.
2. It may make recommendations for the purpose of promoting respect for, and observance
of, human rights and fundamental freedoms for all.
3. It may prepare draft conventions for submission to the General Assembly, with respect to
matters falling within its competence.
4. It may call, in accordance with the rules prescribed by the United Nations, international
conferences on matters falling within its competence.
Article 68
The Economic and Social Council shall set up commissions in economic and social fields and
for the promotion of human rights, and such other commissions as may be required for the
performance of its functions.
During the negotiations which led to the adoption of the UN Charter, the Foreign
Affairs Minister of Panama, Ricardo J. Alfaro, with the support of Cuba, had proposed
the inclusion of the ‘Statement of Essential Human Rights’ produced in 1944
within the American Law Institute, an organization of judges, practitioners, and academics
dedicated to the improvement of the rule of law, in whose work Alfaro had
participated. The proposal was not retained. Thus, although it includes a number of
references to ‘human rights and fundamental freedoms’ as well as to the principles
of non-discrimination and self-determination of peoples, the UN Charter does not
contain a catalogue of human rights. However, in order to make progress towards this
objective, the Economic and Social Council (Ecosoc), the organ of the UN tasked to
promote international co-operation in the area of social and economic development,
was mandated under Article 68 of the Charter to create commissions on thematic
issues, including human rights.
The Ecosoc first convened in London in January and February 1946. It then established
the Commission on Human Rights in a nuclear form, comprising nine members
under the chairmanship of Eleanor Roosevelt. The Nuclear Commission thus
constituted met first between 29 April and 20 May 1946. At the end of its first session,
it made a recommendation that work should begin, as soon as possible, on the
drafting of an international Bill of Rights: although, at the first session of the UN
General Assembly held in January–February and May–June 1946, the Minister for
Foreign Affairs of Panama again proposed to adopt by resolution the draft bill elaborated
within the American Law Institute, his proposal had been opposed by Eleanor
Roosevelt, on behalf of the United States, in part because the draft had in fact never
been adopted by the American Law Institute and would have met opposition from the
domestic constituency of the United States (A. W. B. Simpson, Human Rights and the
15 The universal level: UN and human rights
End of Empire (Oxford University Press, 2001), p. 323). So the work was left to be done
by the Commission on Human Rights. The Nuclear Commission also proposed that the
definitive Commission be established in the form of independent experts, rather than
governmental delegates. They were also in favour of it having a strong monitoring role,
and not merely a role in drafting legal texts for consideration by the Ecosoc and the
General Assembly (see, for more details, P. Alston, ‘The Commission on Human Rights’
in P. Alston (ed.), The United Nations and Human Rights: a Critical Appraisal, second
edn (Oxford University Press, 2004), p. 126).
The Nuclear Commission was not followed on these last two points when, in June
1946, the Ecosoc discussed its proposals. The Ecosoc established the Commission on
Human Rights as one of its first two ‘functional commissions’ set up to assist it in its
work (Ecosoc Resolution 9(II) of 21 June 1946). But instead of independent experts, the
Commission on Human Rights was composed of the representatives of eighteen States,
including the five permanent members of the Security Council (China, France, the
Soviet Union, the United Kingdom and the United States). It later grew in successive
phases, in order to remain representative of the United Nations membership, which
significantly expanded and diversified following the decolonization of the 1950s and
1960s. It had fifty-three members in 2006, at the time it was replaced by the Human
Rights Council. And until the adoption of Resolutions 1235 (XLII) in 1967 and 1503
(XLVIII) in 1970, the Commission primarily functioned as a drafting forum for the setting
of standards, without an effective monitoring role.
Alongside the Commission on Human Rights, the Commission on the Status of
Women was established by Ecosoc Resolution 11(II) of 21 June 1946, with the aim
of preparing recommendations and reports to the Ecosoc on promoting women’s
rights in political, economic, civil, social and educational fields. Initially, only a
Sub-Commission on the Status of Women had been envisaged, subordinate to the
Commission on Human Rights: the enhancement of the status of this body was a
victory for women’s rights. In addition, Ecosoc Resolution 9(II) of 21 June 1946
created the Sub-Commission on Prevention of Discrimination and Protection of
Minorities (renamed in 1999 the Sub-Commission on the Promotion and Protection
of Human Rights), as a group of independent experts in charge of undertaking studies
and making recommendations to the Commission on Human Rights on important
issues of human rights promotion. In 2006, at the time it was replaced when the
new Human Rights Council was set up, the Sub-Commission on the Promotion and
Protection of Human Rights was composed of twenty-six experts, each with a single
alternate.
The first task performed within the Commission on Human Rights was to agree
on the text of a Declaration of Rights. It did so within a remarkably short period of
time, and was able to adopt a draft at its third session of 24 May–18 June 1948. On
10 December 1948, following agreement achieved within the Ecosoc, the UN General
Assembly adopted the Universal Declaration of Human Rights (UDHR) (GA Res. 217,
UN GAOR, 3d sess., UN Doc. A/810 (1948)). The UDHR was adopted by forty-eight votes
16 Emergence of human rights in international law
to none, with eight abstentions. The abstentions were cast by South Africa, which had
just inaugurated its ‘apartheid’ policy and thus opposed the affirmation of equality
without distinction as to race; Saudi Arabia, which opposed the freedom to change
one’s religion; as well as the USSR and its satellite States which then already formed
what was referred to during the Cold War as the ‘Soviet Block’, who considered that the
Declaration could be used as a pretext for interfering with the domestic affairs of the
Member States of the United Nations (for detailed histories of the drafting process, see
M. A. Glendon, A World Made New. Eleanor Roosevelt and the Universal Declaration
of Human Rights (New York: Random House, 2001); J. P. Humphrey, Human Rights and
the United Nations: a Great Adventure (Dobbs Ferry, NY: Transnational Publishers,
1984); and J. Morsink, The Universal Declaration of Human Rights: Origins, Drafting,
and Intent (University of Philadelphia Press, 1999); for a study on the philosophical
underpinnings of the Declaration in the views of the drafters, see J. Morsink,
Inherent Human Rights: Philosophical Roots of the Universal Declaration (University
of Pennsylvania Press: Pennsylvania Studies in Human Rights, 2009)). The adoption
of the UDHR took the form of a non-binding resolution. Nevertheless, a majority of
the doctrine takes the view today that, whatever the intent of the governments which
voted on the Declaration, the rights stipulated in the UDHR now have acquired the
status of customary international law or should be considered as part of the ‘general
principles of law recognized by civilized nations’ mentioned in Article 38(1)(c) of the
Statute of the International Court of Justice as a source of international law. This issue
is explored in greater depth in section 4.1. of this chapter.
The Universal Declaration of Human Rights was later implemented in the form of
binding international treaties open to the ratification of the Member States of the
United Nations. The initial idea was to have the Declaration as such transformed
into a binding legal instrument, proposed to the ratification of the States. Having
one single universal covenant was considered to present one major advantage: it
would offer a clear recognition of the fact that all the rights of the Declaration were
interconnected and interdependent. Within the Ecosoc, however, the delegates gradually
came to consider that civil and political rights, on the one hand, and economic
and social rights, on the other hand, called for different methods of implementation.
Civil and political rights could be monitored by independent experts and were of
immediate applicability since they primarily required from States that they abstain
from interfering with the rights of the individual. In contrast, economic and social
rights (to which cultural rights were assimilated) called for progressive measures
of implementation, since they required legislative action in order to become fully
justiciable. They also called for budgetary commitments, and therefore their implementation
depended on the resources available to each State and on international
co-operation. The General Assembly was finally convinced by these arguments. In
1952, following the position of the Ecosoc, it decided to implement the UDHR by
elaborating two separate covenants, each corresponding to one category of rights
(A/RES/6/543, 4 February 1952). While both sets of rights were considered of equal
17 The universal level: UN and human rights
importance and while all agreed on the interdependence and indivisibility of all
rights, the view that prevailed was that these sets of rights were sufficiently different
from one another to warrant separate treatment, and to be implemented
through different legal techniques (see, in the context of this discussion, A. Eide,
‘Economic, Social and Cultural Rights as Human Rights’ in A. Eide, C. Krause
and A. Rosas (eds.), Economic, Social and Cultural Rights. A Textbook, second edn
(Dordrecht: Martinus Nijhoff, 2001), p. 9). The discussion on whether the distinction
thus established between the two categories of rights is justified continued well
through the 1990s, and it may be said that it was only – provisionally – closed with
the adoption, on 10 December 2008, of the Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights (for an exposition of the arguments
against assimilating both sets of rights, see E. W. Vierdag, ‘The Legal Nature of
the Rights Granted by the International Covenant on Economic, Social and Cultural
Rights’ in Netherlands Yearbook of International Law, 9 (1978), 69, and M. Bossuyt,
‘La distinction juridique entre les droits civils et politiques et les droits économiques,
sociaux et culturels’, Revue des droits de l’homme, 8 (1975), 783, and for a riposte,
G. J. H. Van Hoof, ‘The Legal Nature of Economic, Social and Cultural Rights: a
Rebuttal of Some Traditional Views’ in P. Alston and K. Tomasevski (eds.), The Right
to Food (Dordrecht: Martinus Nijhoff, 1984), p. 97: this is further discussed in chapter 8,
section 1.2., on the justiciability of economic, social and cultural rights).
Still, even once the UN General Assembly had taken the decision that work should
be done towards the adoption of two separate treaties, fourteen more years of negotiations
were required before the two covenants could be adopted, simultaneously,
on 16 December 1966. By then, a vote had already intervened on the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted
on 21 December 1965 after three years of negotiations. The adoption of the International
Covenant on Civil and Political Rights (ICCPR) and of the International Covenant on
Economic, Social and Cultural Rights (ICESCR), following that of the ICERD, launched
a period of intense treaty-making activity. Nine treaties are often referred to as the
‘core human rights treaties’, because they present certain common characteristics.
They are all based on the Universal Declaration on Human Rights, the values of which
they seek to protect and develop. All but one set up bodies of independent experts in
order to monitor them, and progressively to clarify the obligations of States which
these treaties define: the only exception is the International Covenant on Economic,
Social and Cultural Rights, which only provides for a role of the Ecosoc in such monitoring
– although this was largely compensated by the establishment of the Committee
on Economic, Social and Cultural Rights, through a resolution (1985/17, of 28 May
1985) of the Economic and Social Council. All of these treaties are based primarily on
a reporting procedure by States, which undertake to provide information on a regular
basis on the measures they take in order to comply with their obligations. The mechanisms
set up under these treaties is explored in greater detail in chapter 9. The treaties
are the following:
18 Emergence of human rights in international law
Treaty Additional protocols Entry into force Membership
(on 26 August
2009)
International Convention
on the Elimination of All Forms
of Racial Discrimination
(A/RES/20/2106, 21 December
1965) (660 U.N.T.S. 195)
4 January 1969 173 parties
International Covenant on
Economic, Social and Cultural
Rights (A/RES/21/2200A,
16 December 1966)
(993 U.N.T.S. 3)
Optional Protocol to the
International Covenant
on Economic, Social
and Cultural Rights
(A/RES/63/117,
10 December 2008)
3 January 1976 160 parties
International Covenant on
Civil and Political Rights
(A/RES/21/2200A,
16 December 1966)
(999 U.N.T.S. 171)
Optional Protocol to the
International Covenant on
Civil and Political Rights
(16 December 1966) (999
U.N.T.S. 171)
Second Optional Protocol to
the International Covenant
on Civil and Political Rights,
aiming at the abolition of the
death penalty (A/RES/44/128,
15 December 1989) (1642
U.N.T.S. 414)
23 March 1976 164 parties
Convention on the Elimination
of All Forms of Discrimination
against Women (A/RES/34/180,
18 December 1979) (1249
U.N.T.S. 13)
Optional Protocol to the
Convention on the Elimination
of All Forms of Discrimination
against Women (A/RES/54/4,
6 October 1999) (2131
U.N.T.S. 83)
3 September 1981 186 parties
Convention against Torture
and Other Cruel, Inhuman or
Degrading Treatment or
Punishment (10 December
1984) (1465 U.N.T.S. 85)
Optional Protocol to the
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment or
Punishment (A/RES/57/199,
18 December 2002)
26 June 1987 146 parties
Convention on the Rights
of the Child (A/RES/44/25,
20 November 1989)
(1577 UNTS 3)
Optional Protocol to the
Convention on the Rights of
the Child on the involvement
of children in armed conflict;
and Optional Protocol to the
Convention on the Rights
of the Child on the Sale of
Children, Child Prostitution
and Child Pornography (A/
RES/54/263, 25 May 2000)
2 September 1990 193 parties
19 The universal level: UN and human rights
Treaty Additional protocols Entry into force Membership
(on 26 August
2009)
International Convention on the
Protection of the Rights of All
Migrant Workers and Members
of their Families (A/RES/45/158,
18 December 1990)
1 July 2003 42 parties
Convention on the Rights
of Persons with Disabilities
(A/RES/61/106, 13 December
2006)
Optional Protocol to the
Convention on the Rights of
Persons with Disabilities
(A/RES/61/106,
13 December 2006)
3 May 2008 65 parties
International Convention for the
Protection of All Persons from
Enforced Disappearance (A/
RES/61/177, 20 December 2006)
Not yet in force 13 parties
These nine core human rights treaties are not the only ones adopted within the framework
of the United Nations in the field of human rights. Mention should also be made,
for instance, of the Convention on the Prevention and Punishment of the Crime of
Genocide (78 U.N.T.S. 277), adopted on 9 December 1948 by the UN General Assembly,
although without any part being played in its elaboration by the Commission on
Human Rights. Like other, similar instruments, such as the Convention on the NonApplicability
of Statutory Limitations to War Crimes and Crimes against Humanity
(adopted on 26 November 1968 (754 U.N.T.S. 73)) or the International Convention on the
Suppression and Punishment of the Crime of Apartheid (adopted on 30 November 1973
(1015 U.N.T.S. 243)), the 1948 Genocide Convention differs from the core human rights
treaties, however, in that it is not monitored by a body of independent experts equipped
to build a jurisprudence that gives meaning to its clauses, and thus to contribute to the
general development of human rights.
For this reason in particular, the emphasis in this book will be on the core human
rights treaties and on the developing law of human rights emanating from their control
mechanisms, rather than on these other contributions of the UN to human rights, however
important they may be. In addition, even within the core human rights treaties, a
certain emphasis has been placed on three instruments, probably the most important
whether measured by the scope of the situations they cover or by the output of the monitoring
bodies: these are the two covenants adopted in 1966, as a codification into treaty
form of the Universal Declaration on Human Rights (on the International Covenant on
Civil and Political Rights (ICCPR), see M. Bossuyt, Guide to the ‘Travaux Préparatoires’
of the International Covenant on Civil and Political Rights (Dordrecht: Martinus Nijhoff,
1987); S. Joseph et al., The International Covenant on Civil and Political Rights, second
edn (Oxford University Press, 2004); K. A. Young, The Law and Process of the UN
20 Emergence of human rights in international law
Human Rights Committee (Ardsley, NY: Transnational Publishers, 2002); D. McGoldrick,
The Human Rights Committee. Its Role in the Development of the International Covenant
on Civil and Political Rights, second edn (Oxford: Clarendon Press, 1994); I. Boerefijn,
The Reporting Procedure under the Covenant on Civil and Political Rights. Practice and
Procedures of the Human Rights Committee (Antwerp-Oxford: Intersentia-Hart, 1999);
M. Nowak, UN Covenant on Civil and Political Rights – CCPR Commentary, second edn
(Kehl am Rhein: N. P. Engel Verlag, 2005); on the International Covenant on Economic,
Social and Cultural Rights, see in particular, K. Arambulo,Strengthening the Supervision
of the International Covenant on Economic, Social and Cultural Rights. Theoretical
and Procedural Aspects (Antwerp-Oxford: Intersentia-Hart, 1999); M. Craven, The
International Covenant on Economic, Social and Cultural Rights: a Perspective on its
Development (Oxford: Clarendon Press, 1995); and A. Eide, C. Krause and A. Rosas (eds.),
Economic, Social and Cultural Rights. A Textbook, second edn (Dordrecht: Martinus
Nijhoff, 2001)); and the Convention on the Rights of the Child, adopted in 1989 and
soon to become the most universally ratified human rights instrument, with 193 States
parties at the time of writing: only the United States and Somalia among the members
of the UN are not parties to the treaty (on the Convention on the Rights of the Child,
see A. Alen et al. (eds.), The UN Children’s Rights Convention: Theory Meets Practice
(Antwerp-Oxford: Intersentia-Hart, 2007); P. Alston, St. Parker and J. Seymour (eds.),
Children, Rights and the Law (Oxford: Clarendon Press, 1992); A. Glenn Mower, Jr.,
The Convention on the Rights of the Child. International Law Support for Children
(Westport, Conn.: Greenwood Press, 1997); L. LeBlanc, The Convention on the Rights of
the Child. United Nations Lawmaking on Human Rights (Lincoln, Nebras.: University of
Nebraska Press, 1995)).
2 THE REGIONAL LEVEL
The modesty with which human rights were addressed within the UN encouraged
regional organizations to set up their own system for the protection of human rights.
Both the Council of Europe and the Organization of American States moved swiftly in
this direction. The Organization of African Unity (now renamed the African Union)
also established its own mechanism, although later and under a less ambitious form. A
brief overview follows. The description here remains deliberately general and superficial:
its only purpose is to recall the framework within which human rights developed
in regional settings following the Second World War. In addition, the human rights
protection mechanisms set up in these respective organizations are the subject of
chapter 11, where they are presented in greater detail in their procedural aspects.
2.1 The Council of Europe and human rights
The Statute of the Council of Europe was adopted on 5 May 1949, and it came into force
on 3 August 1949. The initial signatories were Belgium, Denmark, France, Ireland,
Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. They
were soon followed by Germany, Greece, Iceland, and Turkey, all of which joined the
21 The regional level
organization in 1949 or 1950. Austria joined in 1956, Cyprus in 1961, Switzerland in
1963, Malta in 1965, Portugal in 1976, Spain in 1977, Liechtenstein in 1978, San Marino
in 1988, and Finland in 1989. But it was with the accession of newly democratized
Eastern and Central European States, in the 1990s, that the organization underwent its
deepest transformation (see the Information Report on the Enlargement of the Council
of Europe (16 June 1992), Doc. 6629 of the Parliamentary Assembly of the Council of
Europe). In addition to Andorra, which joined in 1994, the Council of Europe expanded
from twenty-three members in 1990 to thirty-eight members in 1995, beginning with
Hungary and Poland respectively in 1990 and 1991, and with seven States joining
in 1992–3 (Bulgaria, the Czech Republic, Estonia, Lithuania, Romania, Slovakia and
Slovenia). In 1996, together with Croatia, the Federation of Russia became a member;
seven other States, including Armenia and Azerbaidjan, were added in 1999 and later.
The organization now numbers forty-seven members.
The Statute defines as a condition for membership that ‘[e]very member of the
Council of Europe must accept the principles of the rule of law and of the enjoyment
by all persons within its jurisdiction of human rights and fundamental freedoms, and
collaborate sincerely and effectively in the realisation of the aim of the Council’ (Art. 3).
Indeed, even prior to the signing of the Statute, it was understood that the organization’s
first task should be to adopt a Charter on Human Rights, since that was one of
the primary aims of the European Movement at the origin of the establishment of the
Council of Europe. The negotiations were launched in August 1949, and were finalized
by September 1950, allowing the Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR) – the official name of what is usually referred to
as the European Convention on Human Rights – to be signed on 4 November 1950; it
entered into force on 3 September 1953. The speed at which the negotiations proceeded
was truly remarkable, considering the ambitious nature of the text: for the first time,
an international jurisdiction, the European Court of Human Rights, was being set up,
empowered to receive files submitted by the European Commission on Human Rights
for its consideration, on the basis of individual applications by victims of human rights
violations. Of course, the jurisdiction of the Court was initially optional, and individuals
did not have direct access to the Court: it was the European Commission on
Human Rights that, after an examination of the admissibility of the application, presented
the case against the State, unless it chose to direct the case for consideration to
the Committee of Ministers of the Council of Europe (see further chapter 11, section 1).
Still, under the standards of the time, this constituted a major revolution, as important
in significance as had been, only two years earlier, the adoption of the Universal
Declaration of Human Rights.
The ratification of the Convention is now considered a condition for membership of
the Council of Europe. This has not always been the case: France, for instance, although
it is among the founding States of the Council of Europe which it hosts, only ratified
the European Convention on Human Rights in 1974. The rule linking membership of
the Council of Europe to accession to the ECHR appropriately reflects the pre-eminent
role played by this instrument on the European continent. This, however, should not
22 Emergence of human rights in international law
lead to underestimate the other instruments adopted within the organization for the
promotion of human rights. Shortly after the ECHR entered into force, it was deemed
necessary to pursue work on the implementation of the economic and social rights of
the Universal Declaration of Human Rights which, due to their focus on civil and political
rights, the drafters of the Convention had essentially neglected. After six years
of negotiations, the European Social Charter was signed by thirteen Member States of
the Council of Europe in Turin, on 18 October 1961 (CETS No. 35; 529 U.N.T.S. 89), and
it entered into force a few years later, on 26 February 1965. Although it is an impressive
catalogue of social rights laid out in great detail, the European Social Charter has been
almost dormant until the early 1990s, when it was felt necessary to revive it in a context
in which the European Communities (now the European Union) were increasingly
active in the field of social rights, and in which the shift towards market economy in
the Central and Eastern European States seemed to call for a strengthened protection
of social rights as a counterweight to large-scale deregulation. These were the main
arguments in favour of the ‘revitalization’ of the Charter, which was formally launched
by the Ministerial Conference on Human Rights held in Rome in November 1990 (see
further box 11.1., chapter 11).
Although the European Convention on Human Rights and the European Social
Charter clearly are the most important human rights instruments adopted within the
Council of Europe, other, often innovative systems have been put in place, to improve
the monitoring of the conditions in which persons are being held in detention (European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (C.E.T.S., No. 126), signed on 26 November 1987), to protect the rights of
minorities (European Charter for Regional or Minority Languages (C.E.T.S., No. 148),
signed on 5 November 1992; and Framework Convention for the Protection of National
Minorities (C.E.T.S., No. 157), signed on 1 February 1995), or to protect the dignity of
the person against the misuse of biology and medicine (Convention for the Protection
of Human Rights and Dignity of the Human Being with regard to the Application of
Biology and Medicine: Convention on Human Rights and Biomedicine (C.E.T.S., No.
164), signed on 4 April 1997). In its standard-setting capacity, the Council of Europe
has also played an important role in promoting a common approach to certain subjects,
such as the protection of the environment through the criminal law, the fight against
corruption, or the fight against trafficking of human beings, that present a more indirect
relationship to human rights. At the same time, the leading role of the Council
of Europe on the European continent is sometimes seen as being threatened by the
increasingly important role played by the European Union (EU) in this area, particularly
as the competences of the EU have developed over time to include, at present, a
large number of domains that are directly related to civil liberties or social rights (see
box 1.1.).
2.2 The Organization of American States and human rights
The role of the Organization of American States in the promotion and protection of
human rights presents striking similarities with that of the Council of Europe. In 1948
23 The regional level
Box The rise of fundamental rights in the European Union
1.1.
The original treaties establishing the European Communities in 1951 (European Coal and
Steel Community) and 1957 (European Atomic Energy Community and European Economic
Community) contained no reference to human rights, apart from certain provisions on free
movement of workers (including a prohibition of discrimination on grounds of nationality)
and on equal pay between men and women, whose primary purpose remained linked to the
needs of economic integration. In the late 1960s, however, the Court of Justice of the European
Communities (European Court of Justice or ECJ) gradually sought to include fundamental rights
among the general principles of European Community law which, on the basis of Article 164
EEC (later Art. 220 EC), it was competent to ensure respect for in the scope of application of
the treaties. This case law was developed as a means to reassure the national courts of the
EU Member States that the supremacy of European Community law would not oblige these
national courts to set aside guarantees relating to human rights set out in the national constitutions.
Following a first series of cases where the European Court of Justice firmly resisted the
suggestion that the Community would be bound to respect the fundamental rights guaranteed
by the constitutions of the Member States (Case 1/58, Stork v. High Authority [1959] E.C.R. 17 at
25–6; Joined Cases 36, 37, 38 and 40/59, Geitling v. High Authority [1960] E.C.R. 423 at 438–9;
Case 40/64, Sgarlata v. Commission [1965] E.C.R. 215 at 227), and yet affirmed that the national
jurisdictions of the Member States should accept the supremacy of EC law (Case 6/64, Costa
v. Enel [1964] E.C.R. 585), the German Federal Constitutional Court (Bundesverfassungsgericht)
and the Italian Constitutional Court (Corte costituzionale) reacted by stating that they would
not accept this supremacy where this would oblige them to renounce upholding the provisions
relating to fundamental rights in their respective national constitutions, in situations where the
implementation of EC law would conflict with those guarantees (see Gerhard Bebr, ‘A Critical
Review of Recent Case Law of National Courts’, Common Market Law Review (1974) 408). The
resistance it faced led the European Court of Justice to accept that ‘fundamental human rights’
are ‘enshrined in the general principles of Community law and protected by the Court’ (Case
29/69, Stauder v. City of Ulm [1969] E.C.R. 419). The Court announced that it would henceforth
identify those fundamental rights by referring to the common constitutional traditions
of the Member States, although ‘the protection of such rights, whilst inspired by the constitutional
traditions common to the Member States, must be ensured within the framework of the
structure and objectives of the Community’ (Case 11/70, Internationale Handelsgesellschaft v.
Einfuhr- und Vorratsstelle Getreide [1970] E.C.R. 1125).
Since that founding period, the European Court of Justice has sought to ensure respect for
fundamental rights, as part of the general principles of law, either as regards the acts adopted
by the institutions of the European Union, or as regards any acts adopted by the national
authorities of the Member States to the extent that they intervene in the scope of application
of EU/EC law, for instance when they take measures to implement EU legislation or when they
invoke exceptions allowed by the treaties or the case law of the European Court of Justice (see,
among many others, the following cases or opinions: Case C-260/89, ERT [1991] E.C.R. I-2925,
paragraph 41; Opinion 2/94 [1996] E.C.R. I–1759, paragraph 33; Case C-274/99 P, Connolly v.
24 Emergence of human rights in international law
Commission [2001] E.C.R. I–1611, paragraph 37; Case C-94/00, Roquette Frères [2002] E.C.R.
I-9011, paragraph 25; Case C-112/00, Schmidberger [2003] E.C.R. I-5659, paragraph 71; and
Case C-36/02, Omega [2004] E.C.R. I-9609, paragraph 33).
This case law was constitutionalized in the Treaty on the European Union, that established
the EU in 1992 as a single institutional framework for the European Communities and for cooperation
in areas of justice and home affairs and in foreign and security policy. Article 6(3) of
the EU Treaty reads: ‘The Union shall respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on
4 November 1950 and as they result from the constitutional traditions common to the Member
States, as general principles of Community law.’ The explicit mention in this provision of the
European Convention on Human Rights is of course no accident. The ECHR is recognized a ‘special
significance’ in this case law: it is de facto treated by the European Court of Justice as if
it were binding on the EU, and the ECJ systematically seeks to align itself on the interpretation
of the European Court of Human Rights. However, other treaties, such as the International
Covenant on Civil and Political Rights or the Convention on the Rights of the Child, also have
been relied upon by the Court of Justice (on the selective use of international human rights law
by the ECJ, see I. de J. Butler and O. De Schutter, ‘Binding the EU to International Human Rights
Law’, Yearbook of European Law, 27 (2008), 277).
The dependency of the case law of the European Court of Justice in the field of fundamental
rights on the protection afforded to these rights in the national constitutions of the EU Member
States has remained a significant factor to this day. Indeed, in its ‘Solange’ (‘so long as’) decision
of 1974, the German Federal Constitutional Court insisted that, despite the 1969–70 judgments
of the European Court of Justice in the cases of Stauder and Internationale Handelsgesellschaft,
it did not consider that it was bound to accept unconditionally the supremacy of EC law, as long
as the European Community did not possess a catalogue of rights offering the same legal certainty
as the German Constitution (Grundgesetz) (BVerfG, judgment of 29 May 1974, [1974] 2
C.M.L.R. 551). Later, following the confirmation of the case law of the European Court of Justice
and the political support it received from the then nine EC Member States (Joint Declaration
of the Council, of the European Parliament and of the Commission on human rights, O.J. 1977
C103/1), the German Federal Constitutional Court somewhat relaxed its approach, agreeing
to abstain from controlling the compatibility with fundamental rights of EC law it was asked
to implement, as long as the level of protection of fundamental rights within the European
Community would remain satisfactory (BVerfG, judgment of 22 October 1986, 2 BvR 197/83, 73
BVerfGE 339 [1987] 3 C.M.L.R. 225 (‘Solange II’ judgment)). This position was confirmed in the
‘Maastricht’ judgment delivered on 12 October 1993, (2 BvR 2134/92 and 2159/92, 89 BVerfGE
[1993] 1 C.M.L.R. 57). Other supreme courts in the EU Member States have adopted the same
attitude (e.g. the Danish Supreme Court, see Hanne Norup Carlsen and others v. Prime Minister
Poul Nyrup Rasmussen [1999] 3 C.M.L.R. 854). Finally in a judgment of 7 June 2000, the German
Federal Constitutional Court again slightly amended its view, agreeing to establish a presumption
of compatibility of EU law with the requirements of fundamental rights: it is therefore up to the
applicant, or to the court referring a case to the Constitutional Court, to bring forward elements
25 The regional level
justifying that this presumption will be reversed (BVerfG, 2 BvL 1/97). This background explains
why the European Court of Justice has consistently sought to achieve a high level of protection
of fundamental rights in the EU legal order, on the basis of a comparison between the constitutional
traditions of the EU Member States and seeking inspiration from the international human
rights instruments they are parties to.
The sequence briefly described above also explains why, during the first semester of 1999
(as Germany was presiding over the European Union), the idea was proposed that the European
Union prepare a Charter of Fundamental Rights codifying and making visible to the citizen the
acquis of the Union in this field. The proposal to adopt such a catalogue of fundamental rights
was in part a reaction to the doubts expressed by the German Federal Constitutional Court
about the solidity and irreversibility of this acquis. The adoption of a Charter of Rights, it was
thought, would provide European integration with precisely this important building block, the
absence of which the Constitutional Court had deplored in its first ‘Solange’ judgment of 1974,
and which surfaced again in the 1986 and 1993 decisions it delivered on this issue. It would thus
strengthen the legitimacy of further steps towards European integration, and justify further
integration in the eyes of national constitutional or supreme courts.
Following the political decision to prepare a catalogue of rights for the EU, which was adopted
at the Cologne European Council of June 1999, discussions on the content of the Charter of
Fundamental Rights took place between December 1999 and September 2000. On 7 December
2000, the Charter of Fundamental Rights of the European Union was proclaimed at the Nice
European Council (O.J. 2000 C364/1). It lists both civil and political rights and economic and
social rights, and it also includes certain rights specifically linked to the citizenship of the Union
and economic freedoms protected under the European treaties. Inspired by the fundamental
rights recognized by the European Court of Justice among the general principles of law it ensures
respect for, and by the international human rights instruments binding upon the EU Member
States, the Charter is now the single most authoritative restatement of the acquis of the Union
in the field of fundamental rights. Its main impact is not as a legal document, however – indeed,
the Charter had no binding force when it was initially proclaimed, and only with the most recent
reforms of the European treaties did it acquire formal legal authority (the Reform Treaty, signed
at Lisbon on 13 December 2007 in force since 1 December 2009, contains a reference to the
Charter, thus confirming its status as a legally binding instrument for the institutions of the
Union and for the Member States when they implement Union law: see Article 6(1) of the Treaty
on European Union as amended by the Treaty of Lisbon amending the Treaty on European Union
and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 (OJ
2007 C306/1) (referring to the EU Charter of Fundamental Rights in the revised form it has been
proclaimed on 12 December 2007 (OJ 2007 C303/1)). Rather, the influence of the Charter has
primarily been felt in the transformation it brought about in the culture and the practice of the
European institutions: for the European Parliament and the European Commission, in particular,
it has become routine to invoke fundamental rights in drafting or discussing policies and laws,
now that there exists a document, prepared under conditions which guarantee it a high degree
of legitimacy, listing the said rights.
26 Emergence of human rights in international law
the Pan American Union was renamed the Organization of American States (OAS), a
‘regional arrangement’ within the new United Nations world architecture (see generally
on this organization, A. V. W. Thomas and A. J. Thomas, The Organization of American
States (Dallas: Southern Methodist University Press, 1963)). At the time, it had twentyone
members, including the United States. The membership expanded gradually. A
number of small English-speaking island nations of the Caribbean joined in the 1960s,
after they achieved independence; Canada acceded in 1990. The OAS today comprises
thirty-six Member States: Antigua and Barbuda, Argentina, the Bahamas, Barbados,
Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba (although its participation
in the OAS was suspended between 1962 and 2009, because of an alleged
incompatibility between its adoption of Marxism-Leninism and the principles and purposes
of the OAS Charter), Dominica, the Dominican Republic, Ecuador, El Salvador,
Grenada, Guatemala, Guyana, Haiti, Honduras (whose participation was suspended
after the coup d’état of June 2009), Jamaica, Mexico, Nicaragua, Panama, Paraguay,
Peru, Saint Lucia, Saint Vincent and the Grenadines, St Kitts and Nevis, Suriname,
Trinidad and Tobago, United States, Uruguay and Venezuela.
In April 1948, at the same time that it established the OAS, the Ninth International
Conference of American States held in Bogotá, Colombia, adopted the American
Declaration on the Rights and Duties of Man. The Declaration was initially not
intended to be a binding instrument. In 1959, however, in part in reaction to the Cuban
revolution, the Inter-American Commission on Human Rights was established by a
resolution of the Fifth Meeting of Consultation of Ministers for Foreign Affairs. The
resolution was adopted on the basis of Article 5(j) (now Article 3(l)) of the OAS Charter,
in which the Member States ‘reaffirm’ and ‘proclaim’ as a principle of the Organization
‘the fundamental rights of the individual without distinction as to race, nationality,
creed or sex’. When the Statute of the Inter-American Commission on Human Rights
was adopted the following year, it defined the ‘human rights’ the Commission was to
‘further respect’ as the rights contained in the American Declaration on the Rights
and Duties of Man.
Prior to the adoption of the American Convention in 1969 (see below), the
Commission applied the American Declaration to all Member States of the OAS. By
becoming a Member State of the OAS, a State implicitly recognized the competence of
the Commission to receive individual petitions alleging human rights violations attributable
to the Member States. Today the Commission continues to apply the American
Declaration, as a default instrument, to those States that have not yet become parties
to the American Convention. It thus considers that it is competent to examine violations
of the rights set forth by the Declaration, however, once the Convention has
entered into force in relation to a State, it is the Convention and not the Declaration
that becomes the specific source of law to be applied, as long as the petition alleges violation
of substantially identical rights enshrined in both instruments and a continuing
situation is not involved (see, e.g. IACHR, Annual Report 2000, Amílcar Ménendez
et al. v. Argentina, Case 11.670, Report No. 3/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 95,
para. 41).
27 The regional level
The American Convention on Human Rights (ACHR) itself was adopted in San
José, Costa Rica, on 22 November 1969, although it did not enter into force until 18
July 1978. It is the most important human rights instrument in the inter-American
system. Largely inspired by the European Convention on Human Rights (as it then
was, in its original version of 1950) (see for comparisons J. Frowein, ‘The European
and the American Conventions on Human Rights: a Comparison’, Human Rights Law
Journal, 1 (1980), 44; T. Buergenthal, ‘The American and European Conventions on
Human Rights: Similarities and Differences’, American Universities Law Review,
40 (1980), 155), it created the Inter-American Court of Human Rights, which has
its seat in San José, Costa Rica. With the exception of Cuba, which was not participating
in the OAS at the time the ACHR was adopted, every Spanish-speaking
Member State of the OAS, as well as Brazil, has ratified the American Convention
and accepted the compulsory jurisdiction of the Court. Of the thirty-six Member
States of the OAS, twenty-four are States parties to the American Convention, as of
1 July 2009. These are: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa
Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala,
Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname,
Uruguay and Venezuela. Trinidad and Tobago was a State party but denounced the
American Convention on 26 May 1998, as a result of the decision adopted by the
Judicial Committee of the Privy Council in Pratt and Morgan v. Attorney General for
Jamaica [1994] 2. A.C. 1 (see box 1.5.). Ten other Member States of the OAS have not
ratified the Convention: Antigua and Barbuda, the Bahamas, Belize, Canada, Cuba,
Dominica, Guyana, St Kitts and Nevis, St Vincent and the Grenadines, and the United
States. As its membership indicates, the system of the ACHR has largely succeeded
in establishing its credibility within the Latin American context. In contrast, most
of the English-speaking Member States have not yet become States parties to the
American Convention, including, notably, the United States and Canada (although
the United States signed the ACHR in 1977). Of the English-speaking Member States
of the OAS, only Barbados, Grenada and Jamaica are States parties to the American
Convention, but of these three only Barbados accepted the compulsory jurisdiction of
the Court, in 2000. The mechanisms of the Inter-American Commission and Court of
Human Rights are described in greater detail in chapter 11 (section 2).
The 1948 American Declaration on the Rights and Duties of Man and the 1969
American Convention on Human Rights are not the only instruments adopted within
the OAS that contribute to the promotion and protection of human rights, however.
The Convention itself was complemented in 1988 by an Additional Protocol in the
area of Economic, Social and Cultural Rights, called the San Salvador Protocol after
the city in which it was signed. It had fourteen States parties on 1 July 2009. While
the Additional Protocol provides that only the rights stated in Article 8 a) (trade
union rights) and Article 13 (right to education) may lead to the filing of individual
petitions before the Inter-American Commission or Court of Human Rights, a
reporting system is established for all the economic, social and cultural rights codified
in the Additional Protocol. In 1990, another Protocol to the ACHR was adopted,
28 Emergence of human rights in international law
this time to abolish the death penalty. Separate from the ACHR, the Inter-American
Convention to Prevent and Punish Torture was adopted in 1985, entering into force
two years later. On 1 July 2009 it had seventeen parties to it. It mirrors in many
respects the 1984 UN Convention against Torture and Cruel, Inhuman or Degrading
Treatment or Punishment. A Convention on the Forced Disappearance of Persons
was adopted in 1994, and entered into force in 1996. It had thirteen States parties
on 1 July 2009. Under the Convention, the States parties undertake to punish those
persons who commit or attempt to commit the crime of forced disappearance of persons
and their accomplices and accessories, and to co-operate with one another in
helping to prevent, punish, and eliminate the forced disappearance of persons; the
Convention lists the measures States should take in order to render this prohibition
effective.
2.3 The African Union and human rights
The trajectory followed by the Organization of African Unity (OAU) – now the African
Union – was slightly different. The Charter founding the OAU, signed in Addis-Abeba
on 25 May 1963, stated that one of the objectives of the new organization was to
‘promote international cooperation, having due regard to the Charter of the United
Nations and the Universal Declaration of Human Rights’ (Art. 2(1), e)). That reference
was mainly symbolic: in fact, the principle of non-interference in domestic affairs
was much more highly valued, as the OAU members had only recently obtained their
independence and were particularly sensitive to affirming their sovereignty. Only later
would human rights be put on the agenda of the organization, when certain dictatorships
fell in 1979 and democratic movements gained visibility throughout the continent.
The African (Banjul) Charter on Human and Peoples’ Rights was adopted on 27
June 1981, and it entered into force on 21 October 1986 (OAU Doc. CAB/LEG/67/3 rev. 5,
21 I.L.M. 58 (1982)). It had fifty-three States parties on 1 July 2009. Initially, the
African Charter was monitored exclusively by the African Commission on Human and
Peoples’ Rights. The system was further strengthened by the entry in force, in 2004, of
the 1998 Protocol to the African Charter on the Establishment of an African Court on
Human and Peoples’ Rights, although it is too early still to evaluate the effectiveness
of this reform (see further chapter 11, section 3). In addition, a Protocol to the African
Charter on the Rights of Women in Africa was adopted on 11 July 2003 in Maputo and
entered into force in 2005.
In the Preamble of the African Charter, the OAU members state that they are ‘taking
into consideration the virtues of their historical tradition and the values of African
civilization which should inspire and characterize their reflection on the concept of
human and peoples’ rights’. Indeed, the Charter presents a number of specificities that,
to a certain extent, distinguish it from the other comparable human rights instruments
(see J. Matringe, Tradition et modernité dans la Charte africaine des droits de
l’homme et des peuples (Brussels: Bruylant, 1996); F. Ouguergouz, La Charte africaine
des droits de l’homme et des peuples: une approche juridique entre tradition et modernité
(Geneva: IUHEI and Paris: P.U.F., 1993); and F. Viljoen, ‘The African Regional Human
29 The regional level
Rights System’ in C. Krause and M. Scheinin (eds.), International Protection of Human
Rights: a Textbook (Abo Akademi University Institute for Human Rights, 2009), p. 503,
at pp. 518–25). Thus, the African Charter lists a number of social and economic rights,
that are treated as equivalent, as regards their justiciability, to civil and political rights
(see, for instance, the Ogoniland case, discussed in chapter 3, section 1). It also insists
on duties, alongside rights, on the basis that ‘the enjoyment of rights and freedoms
also implies the performance of duties on the part of everyone’ (Preamble, 7th Recital).
However, whether this really distinguishes the African Charter from other, equivalent
instruments, is doubtful. In practice, the ‘duties’ component means that States parties
should take measures that ensure that individuals are imposed obligations that allow
the rights of others to be effectively enjoyed. While the wording may differ, the substance
is not truly distinct from what follows from the obligation to protect human
rights imposed on States parties to other international human rights instruments (on
the obligation to protect, see chapter 4; on the specificity of the African Charter as
regards the notion of ‘duties’, see M. wa Mutua, ‘The Banjul Charter and the African
Cultural Fingerprint: an Evaluation of the Language of Duties’, Virginia Journal of
International Law, 35 (1995), 339).
Perhaps the most significant characteristic of the African Charter is the importance
it affords to the collective rights of peoples, in addition to the human rights of
the individual. The African Charter thus recognizes the right of peoples to existence,
to self-determination (including the right to dispose of their natural resources), to
development, to international peace and security, and to a generally satisfactory environment.
Such rights are not unique to the African Charter, of course: international
human rights law recognizes the right to self-determination of peoples in the UN
Charter and in Article 1 of both Covenants adopted in 1966 to implement the Universal
Declaration of Human Rights (see chapter 7, section 5.1.); and the right to development
has been affirmed in the 1986 Declaration on the Right to Development adopted by the
UN General Assembly (see chapter 2, section 2.4.). What is remarkable, rather, is that
these rights – sometimes referred to as ‘third generation’ rights both because they are
rights of peoples and because they are, for the most part, dependent on international
solidarity for their realization – are treated in the Charter on a par with other ‘first’ and
‘second’ generation rights, leading the African Commission on Human and Peoples’
Rights to sometimes bold and innovative interpretations that go beyond what has been
achieved at universal level.
The achievements of the OAU in the field of human and peoples’ rights are not limited
to the adoption and implementation of the Banjul Charter. On 11 July 1990, the
African Charter on the Rights and Welfare of the Child was adopted, in order to ensure
the transposition, in the African regional context, of the 1989 UN Convention on the
Rights of the Child (OAU Doc. CAB/LEG/24.9/49 (1990)). The African Children’s Rights
Charter sets up a monitoring body, the African Children’s Rights Committee, which has
the power to examine state reports, as well as to receive individual communications
and to launch investigations. The system entered into force on 29 November 1999. It
currently has forty-five States parties.
30 Emergence of human rights in international law
As the African Charter on Human and Peoples’ Rights progressively established its
credibility through the 1990s, the OAU mutated into the African Union. Article 4 of
the African Union Constitutive Act adopted in Lomé on 11 July 2002 enumerates the
principles on which the AU is founded. These include ‘the right of the Union to intervene
in a Member State pursuant to a decision of the Assembly in respect of grave
circumstances, namely: war crimes, genocide and crimes against humanity’, ‘promotion
of gender equality’, and ‘respect for democratic principles, human rights, the rule
Box Human rights in South-East Asia: the ASEAN Intergovernmental Commission
1.2. on Human Rights
At its Ministerial Meeting of 20 July 2009, the Association of South-East Asian Nations
(ASEAN) agreed on the establishment of the ASEAN Intergovernmental Commission on Human
Rights (AICHR). This remains a very modest step towards implementing human rights effectively
in the region. The AICHR is an intergovernmental body, composed of the representatives
of the ASEAN Member States, with purely consultative powers: they may neither receive complaints,
nor take decisions, nor conduct investigations. The tasks of the AICHR are promotional
in nature: it should contribute to capacity-building, promote awareness, provide advisory services,
prepare studies, and favour dialogue between the Members. According to the Terms of
Reference adopted on 20 July 2009, five sets of principles should guide the action of the AICHR.
A first set of principles are ‘respect for the independence, sovereignty, equality, territorial integrity
and national identity of all ASEAN Member States’; ‘non-interference in the internal affairs
of ASEAN Member States’ and ‘respect for the right of every Member State to lead its national
existence free from external interference, subversion and coercion’; ‘adherence to the rule of
law, good governance, the principles of democracy and constitutional government’; ‘respect
for fundamental freedoms, the promotion and protection of human rights, and the promotion
of social justice’; ‘upholding the Charter of the United Nations and international law, including
international humanitarian law, subscribed to by ASEAN Member States’; and ‘respect for
different cultures, languages and religions of the peoples of ASEAN, while emphasising their
common values in the spirit of unity in diversity’. The other sets of principles are first, ‘respect
for international human rights principles, including universality, indivisibility, interdependence
and interrelatedness of all human rights and fundamental freedoms, as well as impartiality,
objectivity, non-selectivity, non-discrimination, and avoidance of double standards and politicisation’;
second, the ‘recognition that the primary responsibility to promote and protect
human rights and fundamental freedoms rests with each Member State’; third, ‘pursuance of
a constructive and non-confrontational approach and cooperation to enhance promotion and
protection of human rights’; and fourth, ‘adoption of an evolutionary approach that would contribute
to the development of human rights norms and standards in ASEAN’. In sum, the AICHR
is a human rights council at regional level, but with neither special procedures that can ensure
an independent monitoring of compliance with human rights standards, nor a peer review of the
performances of States in the field of human rights (on the mechanisms at the disposal of the
UN Human Rights Council, see chapter 10).
31 The emerging jus commune of human rights
of law and good governance’ (paras. (h), (l) and (m), respectively). While the standing
and visibility of human rights in the structure of the African Union thus has been
enhanced – and rebalanced against the principle of non-interference with domestic
affairs – it remains to be seen which concrete implications shall be drawn.
3 THE EMERGING JUS COMMUNE OF HUMAN RIGHTS
Since the 1990s, a movement towards the building of a transnational jus commune of
human rights has become increasingly visible. The formation of this common law is
the result of increasingly frequent cross-references between various international and
domestic courts interpreting provisions which, although found in different treaties or
domestic constitutions, are similarly worded and have their common inspiration in the
Universal Declaration on Human Rights (see S. Choudhry, ‘Globalization in Search of
Justification: Toward a Theory of Comparative Constitutional Interpretation’, Indiana
Law Journal, 74 (1999) 819; S. H. Cleveland, ‘Our International Constitution’, Yale Journal
of International Law, 31 (2006) 1; L. Henkin, ‘The International Judicial Dialogue: When
Domestic Constitutional Courts Join the Conversation’, Harvard Law Review, 114
(2001) 2049; C. McCrudden, ‘A Common Law of Human Rights?: Transnational Judicial
Conversations on Constitutional Rights’, Oxford Journal of Legal Studies, 20 (2000) 499–
532; A.-M. Slaughter, ‘Judicial Globalization’, Virginia Journal of International Law, 40
(2000) 1103; A.-M. Slaughter, ‘A Global Community of Courts’, Harvard International
Law Journal, 44 (2003) 191). A number of factors have encouraged this development.
The single most important factor still has to do with the content and origins of the
legal rules themselves. The Universal Declaration of Human Rights was derived from
a comparison between the liberal constitutions of the Western nations. The initial
draft, prepared by the Human Rights Division of the UN Secretariat under the supervision
of its first director, the Canadian international law expert John P. Humphrey,
‘may not have included every conceivable right, but it provided the drafting committee
with a distillation of nearly two hundred years of efforts to articulate the most basic
human values in terms of rights. It contained the first-generation political and civil
rights found in the British, French, and American revolutionary declarations of the
seventeenth and eighteenth centuries: protections of life, liberty, and property; and
freedoms of speech, religion, and assembly. It also included the second-generation
economic and social rights found in late-nineteenth- and early-twentieth-century
constitutions such as those of Sweden, Norway, the Soviet Union, and several Latin
American countries: rights to work, education, and basic subsistence. Each draft article
was followed by an extensive annotation detailing its relationship to rights instruments
then in force in the UN’s member states, already numbering fifty-five and rising’
(M.-A. Glendon, A World Made New. Eleanor Roosevelt and the Universal Declaration of
Human Rights (New York: Random House, 2001) pp. 57–8).
Whether they are adopted at the universal or at the regional levels, all human rights
treaties are derived from the UDHR, from which they borrow, sometimes quite literally,
much of their language. It is therefore quite natural for international courts or
32 Emergence of human rights in international law
quasi-judicial bodies, whether they belong to regional or to universal systems, to cite
one another, and to entertain a dialogue with national courts applying human rights
recognized in constitutional instruments, where the wording is similar or identical.
In addition, with the development of an international human rights jurisprudence,
which brings life into the sometimes vague provisions of international human rights
instruments which are thereby made more concrete, the impact of international human
rights law on the practice of national courts has increased, a phenomenon which the
growing recognition of the direct applicability of international human rights treaties
before national authorities further increased (on the influence of the case law, including
views adopted on individual communications, general comments, and concluding
observations, of the UN human rights treaty bodies, see Committee on International
Human Rights Law and Practice of the International Law Association, Final Report
on the Impact of the Work of the United Nations Human Rights Treaty Bodies on
National Courts and Tribunals, adopted at the 2004 Berlin Conference; and H. Niemi,
National Implementation of Findings by United Nations Human Rights Treaty Bodies.
A Comparative Study (Institute for Human Rights, Abo Akademi University, December
2003) (examining the national implementation of UN treaty body findings, including
final views, concluding observations, and general comments, in Australia, Canada,
the Czech Republic, Finland, Spain and Sweden); on the impact of the case law of the
European Court of Human Rights on the national courts of the Member States of the
Council of Europe, see J. Polakiewicz, ‘The Status of the Convention in National Law’
in R. Blackburn and J. Polakiewicz (eds.), Fundamental Rights in Europe. The ECHR and
its Member States, 1950–2000 (Oxford University Press, 2001), at pp. 31–53).
Other factors still have further encouraged this movement towards the building of
a jus commune in the field of international human rights. The internet and the proliferation
of legal databases have immensely facilitated the task of seeking information
about the practices followed by other jurisdictions, from which inspiration may be
sought. Non-governmental organizations have been increasingly present as amici curiae
before certain human rights courts, both at regional and at national level, and they
have been particularly eager to present those jurisdictions with comparative law materials,
identifying the best practices available as a benchmark for all courts to achieve,
and encouraging national courts to use international law to develop their own powers
(see O. De Schutter, ‘L’émergence de la société civile dans le droit international: le rôle
des associations devant la Cour européenne des droits de l’homme’, Journal européen du
droit international/European Journal of International Law, 7 (1996), 372–410). Entering
this global interjurisdictional conversation may be attractive to judges, finally, because
by doing so, they gain in legitimacy, and they can emancipate themselves from the
straightjacket of the texts which they are to interpret.
Exceptionally, courts may be directed to take into account the fact that the human
rights provisions they are applying stem from a broader conversation in which both
international and national bodies take part. For instance, the Commission and Court in
charge of monitoring the African Charter on Human and Peoples’ Rights are directed
to ‘draw inspiration from international law on human and people’s rights, particularly
33 The emerging jus commune of human rights
from … the Charter of the United Nations, the Charter of the Organization of African
Unity, the Universal Declaration of Human Rights, other instruments adopted by the
United Nations and by African countries in the field of human and peoples’ rights as
well as from the provisions of various instruments adopted within the Specialized
Agencies of the United Nations of which the parties to the present Charter are members’
(African Charter on Human and People’s Rights, Art. 60). This has led the African
Commission of Human and Peoples’ Rights to seek inspiration, primarily, from the
European human rights system, and constitutes a powerful counter-weight to the tendency
to emphasize the unique nature of the values of the African Charter. Similarly,
section 35(1) of the interim South African Constitution provides that ‘In interpreting
the provisions of [the Bill of Rights contained in a chapter of the Constitution] a
court of law shall promote the values which underlie an open and democratic society
based on freedom and equality and shall, where applicable, have regard to public international
law applicable to the protection of the rights entrenched in this Chapter, and
may have regard to comparable foreign case law.’ In the case of S v. Makwanyane and
another presented to the Constitutional Court, Chaskalson P made the following comment
about this provision:
Most often, however, the reference to human rights as recognized in general international
law, particularly as embodied in the Universal Declaration of Human Rights, is
made sua sponte by the organs concerned, which may find in such a reference a source
of legitimacy for the interpretation they propound. In this process, judicial interpretation
is increasingly detached from the text to be interpreted; instead, it resembles
a conversation between jurisdictions, which are collectively engaged in the task of
giving meaning to generally worded human rights provisions whose significance can
only be discovered in the course of implementation in a variety of settings. This development
has sometimes been controversial. Reliance on foreign human rights norms
or judgments seems to presuppose a universalistic view of human rights, in which the
solutions which are correct in one jurisdiction should be replicated elsewhere, rather
Constitutional Court of South Africa, S v. Makwanyane and another
1995 (3) S.A. 391 (CC), 1995 (6) B.C.L.R. 665 (CC):
[P]ublic international law would include non-binding as well as binding law. They may both
be used under the section as tools of interpretation. International agreements and customary
international law accordingly provide a framework within which [the Bill of Rights included in
the South African Constitution] can be evaluated and understood, and for that purpose, decisions
of tribunals dealing with comparable instruments, such as the United Nations Committee on
Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of
Human Rights, the European Commission on Human Rights, and the European Court of Human
Rights, and, in appropriate cases, reports of specialised agencies such as the International Labour
Organisation, may provide guidance as to the correct interpretation of particular provisions of
[the Bill of Rights].
34 Emergence of human rights in international law
than a relativistic one, in which the broad principles of human rights should be applied
differently depending on the specific context of each society. In addition, the development
of a jus commune of human rights seems to revive the idea of human rights as
natural law, detached from the positivist view of law as the set of norms that is recognized
as valid in a specific jurisdiction as a result of institutional processes. Finally,
and perhaps most obviously, this development favours judicial activism, at the expense
of fidelity to the intent of the authors of the text – whether the human rights treaty or
the domestic bill of rights – to be interpreted. This, it has been argued, may ultimately
threaten the effectiveness of human rights protection, because it undermines the legitimacy
of the positions adopted by human rights bodies interpreting specific treaties. In
the context of the American Convention on Human Rights, for instance:
In order to assess the conflicting claims about the merits and dangers of judicial comparativism
in this area, it is necessary, however, to distinguish carefully between the
different uses of foreign judgments before human rights courts. Consider the following
typology proposed by McCrudden:
Gerald L. Neuman, ‘Import, Export, and Regional Consent in the Inter-American
Court of Human Rights’, European Journal of International Law, 19, No. 1 (2008),
101 at 115:
Ignoring the role of the states [by interpreting the ACHR broadly, in line with universal trends,
without seeking to ensure that the interpretation conforms with the evolving consensus among
the OAS Member States] raises issues both of legitimation and of effectiveness. The character
of a positive human rights treaty entails the involvement of states (jointly) in the design of
the system, including the choice of rights to be protected and the means of enforcement.
The OAS states went to considerable effort to negotiate and adopt their own regional human
rights treaty. They did not reduce the treaty to a local enforcement mechanism for the global
Covenants, and they did not simply delegate to the Court the task of adopting whatever
standards it chooses from a future corpus of soft law texts. Ongoing partnership between the
Court and the member states bolsters the Court’s authority to define state obligations. The
‘humanization’ of international law has not proceeded so far as to make international human
rights tribunals self-legitimating on the basis of their direct relationship with individual human
rights. Moreover, accepting state influence on the evolution of human rights norms is important
for the effectiveness of the system, a major factor in institutional interpretation. Making a
human right more ‘effective’ does not necessarily mean giving the right a broader meaning.
It means making the enjoyment of the right more of a reality, and that may require defining
the positive content of the right in a manner that facilitates its implementation at a particular
historical moment within the particular region … When states within the region participate in
the progressive evolution of a right, their actions make national enforcement more feasible and
provide insights into the methods of implementation that may succeed. States will also be more
likely to assist the Court in influencing a fellow member state to comply with standards to which
they themselves already subscribe.
35 The emerging jus commune of human rights
One underestimated aspect of the emergence of this jus commune is that human rights
have been autonomized from international law. The conversation of which this jus
commune is a product has increasingly involved national constitutional courts, established
outside international law, and whose interpretation of the human rights norms
they are to apply, in most cases, take no account of the broader principles of general
international law, even where the human rights they apply originate in international
law. As a result, human rights have established themselves as a separate
regime of international law, but one which increasingly borrows its methodology,
including its methods of interpretation, to domestic constitutional law. Both for this
reason and because they have developed their own specialized institutions, human
rights therefore provide a good illustration of the problem of fragmentation of international
law into a number of self-contained regimes, each with their own norms and
dispute-settlement mechanisms, and relatively autonomous both vis-à-vis each other
and vis-à-vis general international law (on this debate, see in particular, B. Simma,
‘Self-Contained Regimes’, Netherlands Yearbook of International Law, 16 (1985), 111;
and the Report of the Study Group of the International Law Commission (chaired by
Christopher McCrudden, ‘Judicial Comparativism and Human Rights’,
Oxford Legal Studies Research Paper No. 29/2007, also published as a
chapter in E. Örücü and D. Nelken (eds.), Comparative Law: a Handbook,
(Oxford: Hart Publishing, 2007), p. 371 at pp. 378–9:
There are four uses of this type that are frequently not sufficiently distinguished. The first is
where a court in jurisdiction ‘X’ quotes from a court in jurisdiction ‘Y’ a particular phrase or way
of describing an issue that appears to the judge particularly apposite or elegant. Some judges in
some jurisdictions have had a way with words that is deemed by other judges to be particularly
worth quoting. This can be termed the ‘rhetorical’ use of ‘foreign’ material and is akin to using
quotations from Shakespeare or the Bible. The second is where a court in jurisdiction ‘X’ cites
‘foreign’ material such as a judicial decision in jurisdiction ‘Y’ as part of the evidence to support
an empirical conclusion that a particular approach is or is not workable in practice, or has
particular unintended effects. The fact that it is a judicial opinion that is part of the evidence is,
essentially, neither here nor there; it is merely a convenient source of the empirical information …
[The] third and fourth uses are the most controversial [because they treat foreign judgments as
having some persuasive authority]. Both involve the use of a judicial decision in jurisdiction ‘Y’, or
some other legal norm, that is not legally binding in jurisdiction ‘X’ (such as an unratified human
rights convention), as part of a judicial decision regarding what is the legal position in jurisdiction
‘X’. In both, the ‘foreign’ material is part of a normative argument, in a judicial context that is, in
any event, often controversial. But there are significant differences within that general category.
One use (our third approach) involves the citation of a ‘foreign’ material as establishing a reason
(however attenuated) why a human rights claim against a governmental entity should not
succeed. Another (our fourth approach), and probably the most controversial, involves the use of
‘foreign’ material in a similar context where it establishes a reason (however attenuated) why a
rights claim should succeed.
36 Emergence of human rights in international law
Martti Koskenniemi), Fragmentation of International Law: Difficulties Arising from
the Diversification and Expansion of International Law, U.N. doc. A/CN.4/L.702, 18
July 2006 (also reproduced in the Report on the work of the fifty-eighth session (1
May–9 June and 3 July–11 August 2006) of the International Law Commission to
the UN General Assembly, Official Records, sixty-first session, Supplement No. 10
(A/61/10), chapter 12)). In practice, this autonomization of international human rights
law, accelerated by the formation of a jus commune as a result of the conversation
between judicial and non-judicial bodies applying human rights law, has favoured a
certain activism of the specialized courts of expert bodies concerned. The example of
the binding nature of interim measures indicated by human rights bodies illustrates
this (see box 1.3.).
Unavoidably, risks of instrumentalization are present in this development. For
example, this aspect of the jurisprudence of the European Court of Human Rights has
been described as follows:
James G. Merrill, The Development of International Law by the European Court
of Human Rights, second edn (Manchester University Press, 1993), p. 218:
Although the task of the [European Court of Human Rights] is to interpret the Convention,
light can often be shed on its meaning by comparing it with other treaties, and the Court has
made extensive use of this assistance. The situations in which it has done so, and which provide
further evidence of its resourcefulness in developing the law, fall into three types. [1] When a
provision needing interpretation was inspired by an earlier instrument dealing with the subject,
the Court has naturally turned to the other treaty for guidance. [2] When, on the other hand, the
Convention omits certain rights guaranteed in another treaty, the Court may refer to the other
treaty to justify an interpretation holding that a right is not protected. [3] Finally, in cases falling
into neither of the preceding categories, the Court may refer to another treaty to show that a
particular interpretation is in harmony with other obligations in the human rights field.
The second attitude ([2]) is illustrated in the case law of the European Court of Human
Rights by cases such as Kosiek v. Germany, in which the Court concludes that the ECHR
cannot be read as including a right of everyone to equal access to public service in his
or her country since, in contrast to the Universal Declaration of Human Rights (Art. 21
para. 2) and the International Covenant on Civil and Political Rights (Art. 25), neither
the European Convention nor any of its Protocols sets forth a right of everyone to equal
access to public service in his country, and that the omission of such a right was deliberate
when Protocol No. 7 was drafted (Eur. Ct. HR (plenary), Kosiek v. Germany, judgment
of 28 August 1986, para. 34); or by the refusal of the Court in the 1986 case of Johnston v.
Ireland to recognize a right to the dissolution of marriage in the ECHR, since, in contrast
to Article 16 of the Universal Declaration on Human Rights, Article 12 ECHR does not
refer to the dissolution of marriage, an omission which the Court considers to be deliberate
(Eur. Ct. HR, Johnston v. Ireland, judgment of 18 December 1986, at paras. 52–3).
But this method of interpretation is clearly not immune from a certain selectivity: in
37 The emerging jus commune of human rights
Box The binding nature of interim measures indicated by human rights bodies
1.3.
Should the provisional measures adopted by human rights bodies or courts be treated as obligatory
for the parties to whom they are addressed? The controversy about this issue illustrates
how the idea of a jus commune of human rights can encourage an activist attitude by human
rights bodies. While they set up judicial or quasi-judicial bodies which may receive individual
communications or applications from victims of human rights violations, the major international
human rights treaties are silent about the possibility of these bodies granting provisional measures,
protecting the alleged victims until a decision is made on the merits of their complaint.
However, the idea has gradually emerged that this power of human rights bodies is inherent in
their jurisdiction, and that it should be recognized in the name of an effective protection of
human rights.
This development was inaugurated under the 1984 Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. When, acting in accordance
with Article 18(2) of the Convention, the Committee against Torture adopted its Rules of
Procedure, it included a Rule 108 §9 enabling it to adopt provisional measures in proceedings
brought by individuals alleging a violation of the Convention against Torture. In the
case of Cecilia Rosana Núñez Chipana v. Venezuela, it took the view that non-compliance
with such provisional measures should be considered a violation of the Convention, as ‘the
State party, in ratifying the Convention and voluntarily accepting the Committee’s competence
[to examine individual communications] under article 22, undertook to cooperate
with it in good faith in applying the procedure. Compliance with the provisional measures
called for by the Committee in cases it considers reasonable is essential in order to protect
the person in question from irreparable harm, which could, moreover, nullify the end result
of the proceedings before the Committee’ (Committee against Torture, Cecilia Rosana Núñez
Chipana v. Venezuela, final views of 10 November 1998 Communication No. 110/1998 (CAT/
C/21/D/110/1998)). The Human Rights Committee followed this lead. Under Rule 86 of its rules
of procedure, which the Human Rights Committee adopts in accordance with Article 39(2) of
the ICCPR, the Human Rights Committee ‘may, prior to forwarding its views on the communication
to the State party concerned, inform that State of its views as to whether interim
measures may be desirable to avoid irreparable damage to the victim of the alleged violation’.
The Human Rights Committee considered unanimously in its final views of 19 October 2000
adopted in the case of Dante Piandiong, Jesus Morallos and Archie Bulan v. The Philippines,
that a refusal of a State to comply with such measures, ‘especially by irreversible measures
such as the execution of the alleged victim or his/her deportation from the country, undermines
the protection of Covenant rights through the Optional Protocol [providing for the possibility
of individual complaints filed by alleged victims of violations of the ICCPR]’ (Human
Rights Committee, final views adopted on the Communication n°869/1999 (U.N. doc. CCPR/
C/70/D/869/1999), Annual Rep. I, p. 181). It has repeated this statement since (see, e.g. Human
Rights Committee, Weiss v. Austria, communication No. 1086/02, final views of 8 May 2003
(CCPR/C/77/D/1086/2002)), confirming its view that the States parties to the Covenant could
be under an obligation to comply with the interim measures indicated by the Committee,
38 Emergence of human rights in international law
despite the fact that the power to adopt such interim measures was not attributed to the
Committee under the text of the Covenant itself.
In a judgment of 4 February 2005, the European Court of Human Rights considered for the
first time in a final judgment that a refusal by a State party to the European Convention on
Human Rights to comply with an interim measure indicated by a Chamber of the Court or its
President on the basis of Article 39 of the Rules of the Court constitutes a violation of Article
34 of the Convention, which imposes an obligation on the Contracting Parties ‘not to hinder
in any way the effective exercise’ of the right to individual application (European Court of
Human Rights (Grand Chamber), judgment of 5 February 2005 in the case of Mamatkulov and
Askarov v. Turkey, Appl. Nos. 46827/99 and 46951/99). This represented a shift in attitude from
the part of the Court. In its previous case law, while finding that there existed a general practice
of States parties to the Convention to comply with such interim measures, the Court fell
short from identifying the emergence of a rule of a customary nature in the application of the
European Convention on Human Rights. Instead, it held: ‘The practice of Contracting Parties in
this area shows that there has been almost total compliance with Rule 36 indications [indications
given by the European Commission of Human Rights or its President that, in the interest
of the proceedings, the parties should refrain from adopting certain measures, based on Rule
36 of the Rules of Procedure of the European Commission of Human Rights]. Subsequent practice
could be taken as establishing the agreement of Contracting States regarding the interpretation
of a Convention provision (see, mutatis mutandis, [the Soering v. United Kingdom,
judgment of 7 July 1989], Series A No. 161, 40–41, §103, and Article 31 §3 (b) of the Vienna
Convention of 23 May 1969 on the Law of Treaties) but not to create new rights and obligations
which were not included in the Convention at the outset … In any event, as reflected in
the various recommendations of the Council of Europe bodies [calling upon the States parties
to the Convention to agree to recognizing the Court has a power to adopt provisional measures
of a binding character], the practice of complying with Rule 36 indications cannot have
been based on a belief that these indications gave rise to a binding obligation … It was rather
a matter of good faith co-operation with the Commission in cases where this was considered
reasonable and practicable’ (Cruz Varas v. Sweden, judgment of 20 March 1991, Series A No.
201, at para. 100 (emphasis added)) (for comments, see, e.g. R. Bernhardt, ‘Interim Measures
of Protection under the European Convention on Human Rights’, in R. Bernhardt (ed.), Interim
Measures Indicated by International Courts (Berlin: Springer Verlag, 1994), p. 102; R. St. J.
Mcdonald, ‘Interim Measures in International Law, with Special Reference to the European
System for the Protection of Human Rights’, 52(3–4) Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 703 (1992)).
There was good reason for the Court to be cautious. The Rules of the Court are adopted by
the plenary Court under Article 26 of the European Convention on Human Rights. They are
thus not agreed upon by the States parties to the Convention. Their status therefore differs
markedly from that of Article 41 of the Statute of the International Court of Justice, which
the International Court of Justice interpreted in the LaGrand (Germany v. United States), judgment
of 27 June 2001 as imposing on the States parties to a dispute before the Court an
39 The emerging jus commune of human rights
obligation to comply with the provisional measures indicated under that provision, despite the
vague character of the wording of that provision (Art. 41 of the Statute of the International
Court of Justice provides: ‘1. The Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measures which ought to be taken to preserve the
respective rights of either party. 2. Pending the final decision, notice of the measures suggested
shall forthwith be given to the parties and to the Security Council’). Nor may Article 39 of the
Rules adopted by the European Court of Human Rights be considered equivalent to Article
63(2) of the American Convention on Human Rights, which provides explicitly for a power of
the Inter-American Court of Human Rights to adopt provisional measures ‘in cases of extreme
gravity and urgency, and when necessary to avoid irreparable damage to persons’. Both the
Statute of the International Court of Justice and the American Convention on Human Rights
are international treaties to whose terms the States parties have agreed. No equivalent clause
exists in the European Convention on Human Rights. However, in Mamatkulov and Askarov v.
Turkey, the Court considered that the precedents set by the Committee against Torture and the
Human Rights Committee authorized it to consider, like these expert bodies, that the obligatory
character of interim measures should be considered as a condition of the effectiveness of the
protection provided to the individual by a system of individual communications. The episode
offers a clear example of human rights bodies developing a doctrine, motivated perhaps by the
need to ensure an effective protection of human rights, but which is difficult to reconcile with
an orthodox (some might say conservative) view of international law. That this development
was made possible by a number of human rights bodies moving in the same direction and, in
part, legitimizing their interpretative inventivity by referring to one another’s case law, seems
hardly contestable.
the case of Burghartz v. Switerland, the Court noted: ‘Unlike some other international
instruments, such as the International Covenant on Civil and Political Rights (Article 24
para. 2), the Convention on the Rights of the Child of 20 November 1989 (Articles 7
and 8) or the American Convention on Human Rights (Article 18), Article 8 of the
Convention does not contain any explicit provisions on names. As a means of personal
identification and of linking to a family, a person’s name nonetheless concerns his or
her private and family life [and thus deserves protection under Art. 8 ECHR]’ (Eur. Ct.
HR, Burghartz v. Switzerland, judgment of 22 February 1994, para. 24). We can safely
assume that the European Court of Human Rights has agreed to include the protection
of the name of the individual in Article 8 of the European Convention on Human Rights,
despite the absence of an explicit reference to the name in that provision, because other
international human rights instruments do contain such a reference and ensure such a
protection: once the ‘right to the name’ (whatever its specific implications) is recognized
under at least some human rights treaties, reading it into the Convention is easier to justify.
This seems to illustrate rather the third of the three attitudes ([3]) distinguished by
Merrill, in which the Court draws on the existing corpus of international human rights
law to develop the interpretation of the ECHR in line with the content of other human
40 Emergence of human rights in international law
rights instruments, since all these instruments have their common source of inspiration
in the Universal Declaration of Human Rights.
Or consider the reasoning followed by the European Committee of Social Rights,
to justify setting aside the appendix to the European Social Charter which explicitly
states that the Charter only benefits nationals of the Contracting parties:
European Committee on Social Rights, International Federation for Human Rights
(FIDH) v. France, Collective Complaint No. 14/2003, decision on the merits of
8 September 2004:
[Paragraph 1 of the Appendix to the Revised European Social Charter provides that a wide range
of social rights protected under the Charter, including the right to social and medical assistance
(Art. 13 para. 1) and the right to the protection of the child (Art. 17), at stake in this case, cover
foreigners ‘only in so far as they are nationals of other Parties lawfully resident or working
regularly within the territory of the Party concerned’. The complaining non-governmental
organization nevertheless considered that the Revised European Social Charter had been
violated by France, since French law excluded the provision of medical assistance to children of
undocumented migrants on French territory, except as regards treatment for emergencies and
life threatening conditions. The Committee set aside the limitation imposed on the scope of
application ratione personae of the Charter:]
26. The present complaint raises issues of primary importance in the interpretation of the
Charter. In this respect, the Committee makes it clear that, when it has to interpret the Charter,
it does so on the basis of the 1969 Vienna Convention on the Law of Treaties. Article 31§1 of
the said Convention states: ‘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.’
27. The Charter was envisaged as a human rights instrument to complement the European
Convention on Human Rights. It is a living instrument dedicated to certain values which inspired
it: dignity, autonomy, equality and solidarity. The rights guaranteed are not ends in themselves
but they complete the rights enshrined in the European Convention of Human Rights.
28. Indeed, according to the Vienna Declaration of 1993, all human rights are ‘universal,
indivisible and interdependent and interrelated’ (para. 5). The Committee is therefore mindful of
the complex interaction between both sets of rights.
29. Thus, the Charter must be interpreted so as to give life and meaning to fundamental social
rights. It follows inter alia that restrictions on rights are to be read restrictively, i.e. understood in
such a manner as to preserve intact the essence of the right and to achieve the overall purpose of
the Charter.
30. As concerns the present complaint, the Committee has to decide how the restriction
in the Appendix ought to be read given the primary purpose of the Charter as defined above.
The restriction attaches to a wide variety of social rights in Articles 1–17 and impacts on them
differently. In the circumstances of this particular case, it treads on a right of fundamental
importance to the individual since it is connected to the right to life itself and goes to the very
dignity of the human being. Furthermore, the restriction in this instance impacts adversely on
children who are exposed to the risk of no medical treatment.
41 The emerging jus commune of human rights
This example and that of interim protection granted by human rights bodies (see
box 1.3.) are both episodes in which the reference to case law from other courts or
quasi-judicial bodies, or to the corpus of international human rights law, has served
to expand the power of the courts or bodies tasked with the function of monitoring.
In other cases, such references serve to economize judicial resources, by borrowing
solutions from other jurisdictions which those jurisdictions are presumed to have
carefully weighed, and which can be trusted in developing appropriate solutions. Or
they may be a means to ensure that advanced democracies shall move together in the
same direction, without excessive differences in approach to similar issues. Consider
the following examples:
31. Human dignity is the fundamental value and indeed the core of positive European human
rights law – whether under the European Social Charter or under the European Convention of
Human Rights and health care is a prerequisite for the preservation of human dignity.
32. The Committee holds that legislation or practice which denies entitlement to medical
assistance to foreign nationals, within the territory of a State Party, even if they are there
illegally, is contrary to the Charter.
United States Supreme Court, Lawrence et al. v. Texas, 539 U.S. 558 (2003):
[The case has its source in the conviction for deviate sexual intercourse of Lawrence and
Gardner, two adult men who were found engaging in a private, consensual sexual act, in violation
of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual
conduct. Although, in Bowers v. Hardwick, 478 U.S. 186 (1986), a similar statute had been
considered not to be in violation of the Due Process Clause of the Fourteenth Amendment to the
United States Federal Constitution, the Court here reconsiders this holding, which, it is now led to
conclude, was wrongly decided. Instead, the Court now finds, the liberty protected by the United
States Constitution allows homosexual persons the right to choose to enter into relationships in
the confines of their homes and their own private lives and still retain their dignity as free persons.
The excerpts below illustrate the role played by the reference to the jurisprudence of the European
Court of Human Rights in the reasoning of the United States Supreme Court.]
Justice Kennedy delivered the opinion of the Court.
It must be acknowledged … that the Court in Bowers was making the broader point that for
centuries there have been powerful voices to condemn homosexual conduct as immoral. The
condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior,
and respect for the traditional family. For many persons these are not trivial concerns but
profound and deep convictions accepted as ethical and moral principles to which they aspire
and which thus determine the course of their lives. These considerations do not answer the
question before us, however. The issue is whether the majority may use the power of the State to
enforce these views on the whole society through operation of the criminal law. ‘Our obligation
is to define the liberty of all, not to mandate our own moral code.’ Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992) …
42 Emergence of human rights in international law
Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views
as follows: ‘Decisions of individuals relating to homosexual conduct have been subject to state
intervention throughout the history of Western civilization. Condemnation of those practices is
firmly rooted in Judeao-Christian moral and ethical standards.’ 478 U.S., at 196 …
The sweeping references by Chief Justice Burger to the history of Western civilization and to
Judeo-Christian moral and ethical standards did not take account of other authorities pointing
in an opposite direction. A committee advising the British Parliament recommended in 1957
repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee
on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those
recommendations 10 years later. Sexual Offences Act 1967, §1.
Of even more importance, almost five years before Bowers was decided the European Court
of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male
resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in
consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged
that he had been questioned, his home had been searched, and he feared criminal prosecution.
The court held that the laws proscribing the conduct were invalid under the European Convention
on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981) §52. Authoritative in all
countries that are members of the Council of Europe (21 nations then, 45 nations now), the
decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our
Western civilization.
In our own constitutional system the deficiencies in Bowers became even more apparent in
the years following its announcement. The 25 States with laws prohibiting the relevant conduct
referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only
against homosexual conduct. In those States where sodomy is still proscribed, whether for samesex
or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting
adults acting in private. The State of Texas admitted in 1994 that as of that date it had not
prosecuted anyone under those circumstances …
Bowers was not correct when it was decided, and it is not correct today. It ought not to
remain binding precedent. Bowers v. Hardwick should be and now is overruled.
The present case does not involve minors. It does not involve persons who might be injured
or coerced or who are situated in relationships where consent might not easily be refused. It
does not involve public conduct or prostitution. It does not involve whether the government
must give formal recognition to any relationship that homosexual persons seek to enter. The
case does involve two adults who, with full and mutual consent from each other, engaged in
sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for
their private lives. The State cannot demean their existence or control their destiny by making
their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives
them the full right to engage in their conduct without intervention of the government. ‘It is a
promise of the Constitution that there is a realm of personal liberty which the government may
not enter.’ Casey, supra, at 847. The Texas statute furthers no legitimate state interest which
can justify its intrusion into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the
Fourteenth Amendment known the components of liberty in its manifold possibilities, they might
have been more specific. They did not presume to have this insight. They knew times can blind
43 The emerging jus commune of human rights
The following cases relate to assisted suicide and whether this constitutes an unreasonable
restriction to the liberty of the individual. They too illustrate the reliance on
comparative law in order to adjudicate human rights claims.
United States Supreme Court, Washington v. Glucksberg, 521 U.S. 702,
117 S.Ct. 2258 (1997):
[At issue in this case was the criminalization of assisted suicide in the State of Washington.
The State made ‘[p]romoting a suicide attempt’ a felony, and provided: ‘A person is guilty of
[that crime] when he knowingly causes or aids another person to attempt suicide.’ Petitioners
before the Court sought a declaration that the ban on physician-assisted suicides is, on its face,
unconstitutional. They argued that the Fourteenth Amendment’s Due Process Clause protected
a liberty interest extending to a personal choice by a mentally competent, terminally ill adult to
commit physician assisted suicide. The Supreme Court disagreed. It found that the asserted right
to commit suicide and to be assisted in doing so had no trace in the United States’ traditions,
given the country’s consistent, almost universal, and continuing rejection of the right, even for
terminally ill, mentally competent adults. Rehnquist, C.J. delivered the opinion for a unanimous
Court. Referring to the concern of the State of Washington that ‘permitting assisted suicide will
start it down the path to voluntary and perhaps even involuntary euthanasia’, the Court noted:]
This concern is further supported by evidence about the practice of euthanasia in the
Netherlands. The Dutch government’s own study revealed that in 1990, there were 2,300 cases
of voluntary euthanasia (defined as ‘the deliberate termination of another’s life at his request’),
400 cases of assisted suicide, and more than 1,000 cases of euthanasia without an explicit
request. In addition to these latter 1,000 cases, the study found an additional 4,941 cases
where physicians administered lethal morphine overdoses without the patients’ explicit consent.
Physician Assisted Suicide and Euthanasia in the Netherlands: A Report of Chairman Charles T.
Canady, at 12–13 (citing Dutch study). This study suggests that, despite the existence of various
reporting procedures, euthanasia in the Netherlands has not been limited to competent, terminally
ill adults who are enduring physical suffering, and that regulation of the practice may not have
prevented abuses in cases involving vulnerable persons, including severely disabled neonates
and elderly persons suffering from dementia. Id., at 16–21; see generally C. Gomez, Regulating
Death: Euthanasia and the Case of the Netherlands (1991); H. Hendin, Seduced By Death: Doctors,
Patients, and the Dutch Cure (1997). The New York Task Force, citing the Dutch experience,
observed that ‘assisted suicide and euthanasia are closely linked’, New York Task Force 145, and
concluded that the ‘risk of … abuse is neither speculative nor distant,’ id., at 134.
us to certain truths and later generations can see that laws once thought necessary and proper in
fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its
principles in their own search for greater freedom.
The issue of assisted suicide was presented before European courts in the case of Dianne
Pretty. Ms Pretty was suffering from a progressive neuro-degenerative disease of motor
cells within the central nervous system, for which there was no treatment available.
44 Emergence of human rights in international law
Because of the weakness affecting the voluntary muscles of the body, she was unable
to commit suicide herself, although she considered that her situation was intolerable, as
she was essentially paralysed from the neck downwards, was tube-fed, and would soon
die in undignified conditions. However, in English law it was a crime to assist another to
commit suicide (section 2(1) of the Suicide Act 1961), and Ms Pretty had failed to obtain
from the Director of Public Prosecutions an undertaking not to prosecute her husband
should he assist her to commit suicide in accordance with her wishes (for a fuller examination
of this case, see chapter 4, section 2.4.). In their successive judgments on this
case, both the House of Lords in the United Kingdom and the European Court of Human
Rights rejected the claims of Ms Pretty based on the European Convention on Human
Rights. Both also referred to the judgment of the Supreme Court of Canada in Rodriguez
v. Attorney General of Canada [1993] 3 S.C.R. 519. The appellant in that case, Sue
Rodriguez, suffered from a disease similar to that afflicting Ms Pretty. Invoking section
7 of the Canadian Charter of Rights and Freedoms (which states that ‘Everyone has the
right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice’), she had sought an
order which would have allowed a qualified medical practitioner to assist her to commit
suicide at a time of her choosing. While suicide in Canada was not a crime, section
241(b) of the Criminal Code was effectively identical to section 2(1) of the English 1961
Act: it contained a blanket prohibition of assistance to suicide. Ms Rodriguez failed in
her claim that such prohibition was unconstitutional. The majority of the Supreme Court
took the view that the prohibition in section 241(b) fulfils the government’s objective
of protecting the vulnerable, and that it reflects the policy of the state that human life
should not be depreciated by allowing life to be taken, which itself stems from the recognition
of the sanctity of life – the fact that, in Dworkin’s terms, human life is seen to
have a deep intrinsic value of its own (R. Dworkin, Life’s Dominion: an Argument about
Abortion, Euthanasia, and Individual Freedom (New York: Alfred Knopf, 1993)). The
Supreme Court also noted that a blanket prohibition on assisted suicide similar to that
in section 241(b) seemed to be the norm among Western democracies, and that such a
prohibition has never been adjudged to be unconstitutional or contrary to fundamental
human rights. The following excerpts illustrate the role of comparative jurisprudence in
achieving a consensus on the issue of assisted suicide, and in maintaining the distinction
between passive and active forms of intervention in the dying process:
Supreme Court of Canada, Rodriguez v. British Columbia (Attorney General)
[1993] 3 S.C.R. 519 (opinion for a plurality of the Court by Sopinka J):
A brief review of the legislative situation in other Western democracies demonstrates that in
general, the approach taken is very similar to that which currently exists in Canada. Nowhere is
assisted suicide expressly permitted, and most countries have provisions expressly dealing with
assisted suicide which are at least as restrictive as our s. 241 [citing provisions from criminal
legislation in Austria, Italy, and Spain].
45 The emerging jus commune of human rights
The relevant provision of the Suicide Act, 1961 of the United Kingdom punishes a ‘person who
aids, abets, counsels or procures the suicide of another or an attempt by another, to commit suicide’,
and this form of prohibition is echoed in the criminal statutes of all state and territorial jurisdictions
in Australia (M. Otlowski, “Mercy Killing Cases in the Australian Criminal Justice System” (1993)
17 Crim. L.J. 10). The U.K. provision is apparently the only prohibition on assisted suicide which
has been subjected to judicial scrutiny for its impact on human rights prior to the present case.
In the Application No. 10083/82, R. v. United Kingdom, July 4, 1983, D.R. 33, p. 270, the European
Commission of Human Rights considered whether s. 2 of the Suicide Act, 1961 violated either
the right to privacy in Article 8 or freedom of expression in Article 10 of the Convention for the
Protection of Human Rights and Fundamental Freedoms. The applicant, who was a member of
a voluntary euthanasia association, had been convicted of several counts of conspiracy to aid
and abet a suicide for his actions in placing persons with a desire to kill themselves in touch with
his co-accused who then assisted them in committing suicide. The European Commission held
(at pp. 271–72) that the acts of aiding, abetting, counselling or procuring suicide were ‘excluded
from the concept of privacy by virtue of their trespass on the public interest of protecting life, as
reflected in the criminal provisions of the 1961 Act’, and upheld the applicant’s conviction for the
offence. Further, the Commission upheld the restriction on the applicant’s freedom of expression,
recognizing (at p. 272): ‘the State’s legitimate interest in this area in taking measures to protect,
against criminal behaviour, the life of its citizens particularly those who belong to especially
vulnerable categories by reason of their age or infirmity. It recognises the right of the State under
the Convention to guard against the inevitable criminal abuses that would occur, in the absence of
legislation, against the aiding and abetting of suicide.’
Although the factual scenario in that decision was somewhat different from the one at bar,
it is significant that neither the European Commission of Human Rights nor any other judicial
tribunal has ever held that a state is prohibited on constitutional or human rights grounds from
criminalizing assisted suicide.
Some European countries have mitigated prohibitions on assisted suicide which might render
assistance in a case similar to that before us legal in those countries. In the Netherlands,
although assisted suicide and voluntary active euthanasia are officially illegal, prosecutions will
not be laid so long as there is compliance with medically established guidelines. Critics of the
Dutch approach point to evidence suggesting that involuntary active euthanasia (which is not
permitted by the guidelines) is being practised to an increasing degree. This worrisome trend
supports the view that a relaxation of the absolute prohibition takes us down ‘the slippery slope’.
Certain other European countries, such as Switzerland and Denmark, emphasize the motive of
the assistor in suicide, such that the Swiss Penal Code, art. 115, criminalizes only those who incite
or assist a suicide for a selfish motive, and the Danish Penal Code, art. 240, while punishing all
assistance, imposes a greater penalty upon those who act out of self-interest. In France, while
no provision of the Penal Code addresses specifically the issue of assisted suicide, failure to seek
to prevent someone from committing suicide may still lead to criminal sanctions under art. 63,
para. 2 (omission to provide assistance to a person in danger) or art. 319 (involuntary homicide
by negligence or carelessness) of that Code. Moreover, the Loi no 87–1133 du 31 décembre 1987
introduced two new articles to the Penal Code, arts. 318–1 and 318–2, which criminalize the
provocation of suicide. This offence, which requires a form of incitement over and above merely
aiding in the commission of a suicide, was adopted in response to the macabre impact of the
book Suicide, mode d’emploi (1982).
46 Emergence of human rights in international law
House of Lords (United Kingdom), R. (on the Application of Mrs Dianne Pretty
(Appellant)) v. Director of Public Prosecutions (Respondent) and Secretary of
State for the Home Department (Interested Party), judgment of 29 November
2001 [2001] UKHL 61, leading judgment by Lord Bingham of Cornhill:
23. It is evident that all save one of the judges of the Canadian Supreme Court were willing
to recognise section 7 of the Canadian charter as conferring a right to personal autonomy
extending even to decisions on life and death. Mrs Pretty understandably places reliance in
particular on the judgment of McLachlin J. [who expressed a dissenting opinion], in which
two other members of the court concurred. But a majority of the court regarded that right as
outweighed on the facts by the principles of fundamental justice. The judgments were moreover
Similarly, a few American jurisdictions take into account whether the accused caused the
victim to commit suicide by coercion, force, duress or deception in deciding whether the charge
should be murder, manslaughter or assisted suicide (Connecticut, Maine and Pennsylvania) or
whether the person is guilty of even assisted suicide (Puerto Rico and Indiana). See C. D. Shaffer,
‘Criminal Liability for Assisting Suicide’ (1986), 86 Colum. L. Rev. 348, at pp. 351–53, nn. 25–26,
35–36. As is the case in Europe and the Commonwealth, however, the vast majority of those
American states which have statutory provisions dealing specifically with assisted suicide have
no intent or malice requirement beyond the intent to further the suicide, and those states which
do not deal with the matter statutorily appear to have common law authority outlawing assisted
suicide (Shaffer, supra, at p. 352; and M. M. Penrose, ‘Assisted Suicide: A Tough Pill to Swallow’
(1993), 20 Pepp. L. Rev. 689, at pp. 700–701). It is notable, also, that recent movements in two
American states to legalize physician-assisted suicide in circumstances similar to those at bar
have been defeated by the electorate in those states. On November 5, 1991, Washington State
voters defeated Initiative 119, which would have legalized physician-assisted suicide where
two doctors certified the patient would die within six months and two disinterested witnesses
certified that the patient’s choice was voluntary. One year later, Proposition 161, which would
have legalized assisted suicide in California and which incorporated stricter safeguards than
did Initiative 119, was defeated by California voters (usually thought to be the most accepting
of such legal innovations) by the same margin as resulted in Washington – 54 to 46 percent. In
both states, the defeat of the proposed legislation seems to have been due primarily to concerns
as to whether the legislation incorporated adequate safeguards against abuse (Penrose, supra,
at pp. 708–14). I note that, at least in the case of California, the conditions to be met were more
onerous than those set out by McEachern C.J.B.C. in the court below and by my colleagues the
Chief Justice and McLachlin J.
Overall, then, it appears that a blanket prohibition on assisted suicide similar to that in s. 241
is the norm among Western democracies, and such a prohibition has never been adjudged to be
unconstitutional or contrary to fundamental human rights. Recent attempts to alter the status
quo in our neighbour to the south have been defeated by the electorate, suggesting that despite
a recognition that a blanket prohibition causes suffering in certain cases, the societal concern
with preserving life and protecting the vulnerable rendered the blanket prohibition preferable to
a law which might not adequately prevent abuse.
47 The emerging jus commune of human rights
1.1. Questions for discussion: the role of comparative jurisprudence in human rights
adjudication
1. What are the advantages and the dangers associated with an increased use of judgments or
materials from other jurisdictions in human rights litigation? Are certain uses of comparative
jurisprudence legitimate, while others are not?
2. If there is a need to distinguish between different functions of comparative jurisprudence in
human rights litigation, is the typology proposed by Ch. McCrudden complete? Can you think of
uses of foreign materials that are not captured by this typology?
3. Is there a risk of selectivity in the reference to foreign jurisprudence? Consider the use of foreign
examples in the 1993 case of Rodriguez v. Attorney General of Canada decided by the Supreme
Court of Canada. Why are examples from Europe or from the United States primarily referred
to? Within Europe itself, why do certain countries seem to matter most in shaping a consensus?
Is there a principled way to guide the reference to foreign jurisprudence, for instance the notion
of ‘Western democracies’?
4. Should the courts making use of comparative jurisprudence adopt a static or a dynamic approach
to the material examined? Should they seek to identify some sort of mathematical average
between jurisdictions, or should they instead seek to pay attention to the tendency identified in
most recent changes?
directed to a provision with no close analogy in the European Convention. In the European
Convention the right to liberty and security of the person appears only in article 5(1), on which
no reliance is or could be placed in the present case. Article 8 contains no reference to personal
liberty or security. It is directed to the protection of privacy, including the protection of physical
and psychological integrity: X and Y v. Netherlands [judgment of 26 March 1985]. But article 8 is
expressed in terms directed to protection of personal autonomy while individuals are living their
lives, and there is nothing to suggest that the article has reference to the choice to live no longer.
European Court of Human Rights (4th sect.), Pretty v. United Kingdom
(Appl. No. 2346/02), judgment of 29 April 2002, para. 66:
In the case of Rodriguez v. Attorney General of Canada ([1994] 2 L.R.C. 136), which concerned
a not dissimilar situation to the present, the majority opinion of the Supreme Court considered
that the prohibition on the appellant in that case from receiving assistance in suicide contributed
to her distress and prevented her from managing her death. This deprived her of autonomy and
required justification under principles of fundamental justice. Although the Canadian court was
considering a provision of the Canadian Charter framed in different terms from those of Article 8
of the Convention, comparable concerns arose regarding the principle of personal autonomy
in the sense of the right to make choices about one’s own body.
48 Emergence of human rights in international law
4 HUMAN RIGHTS LAW AS PART OF INTERNATIONAL LAW
This section discusses the relationship of human rights law to general international
law. It first examines the extent to which human rights are protected under general
international law, beyond the specific treaties embodying them (section 4.1.). Whether
they base their argument on the customary nature of the rights enumerated in the
Universal Declaration of Human Rights, on the status of human rights as general principles
of law, or on the recognition by the UN Charter of human rights and fundamental
freedoms as objectives all the Members of the United Nations have to co-operate
in achieving, most authors consider that human rights treaties are the embodiment, in
treaty form, of obligations which are already imposed on States. This does not extend,
of course, to the monitoring mechanisms which such treaties may include. But, insofar
as the substantive rights are concerned, human rights treaties would simply codify
already existing obligations: they would not create entirely new obligations for their
States parties.
Next, this section examines the status of human rights norms in the hierarchy of
international law (section 4.2.). Because of the combination of Articles 55 and 56 of the
UN Charter and Article 103 of the Charter, and due to the jus cogens nature of at least
certain of the internationally recognized human rights, human rights treaties may be
considered to be hierarchically superior to other norms of international law, whether
they have their source in treaties, in custom, or in general principles of law – all three
of which are sources of international law, according to Article 38(1) of the Statute of
the International Court of Justice. In addition, serious breaches of peremptory norms
of international law – i.e. ‘a gross or systematic failure by the responsible State to fulfil
the obligation’ forming part of jus cogens – entail specific obligations on other States to
contribute to a cessation of the violation.
Third, human rights norms present certain characteristics which distinguish them
from other rules of international law. Whether they are based on custom or on other
sources of international law, and whether or not they have the nature of jus cogens
norms, human rights are often considered to impose obligations erga omnes – obligations,
that is, towards all the States of the international community (section 4.3.). In
addition, human rights treaties are not concluded in order to grant reciprocal advantages
to the contracting States: their object, rather, is to protect individuals under the
jurisdiction of each State, and this may result in the Vienna Convention on the Law of
Treaties being inadequate, in certain respects, as regards human rights treaties ( section
4.4.). However, while there exists substantial agreement on these general propositions,
both their precise significance and the consequences they entail remain disputed.
5. Are the House of Lords and the European Court of Human Rights in disagreement about the
relevance of the 1993 case of Rodriguez v. Attorney General of Canada decided by the Supreme
Court of Canada, or do they differ, rather, on the interpretation to be given to that case?
49 Human rights law as part of international law
Finally, the issue of reservations to human rights treaties is included in this section,
as it provides a good illustration of the unsettled relationship of international human
rights law to general international law (section 4.5.).
4.1 Human rights beyond treaties
(a) Human rights in the UN Charter
Whether or not they have ratified the relevant treaties which have proliferated since
the 1950s at international and regional levels, all States are bound to respect internationally
recognized human rights. The Universal Declaration of Human Rights may
be seen in this respect as simply clarifying the meaning of the provisions of the UN
Charter which refer to human rights as a purpose to be achieved by the Organization
and by its Member States. In particular, Article 55 of the Charter imposes on the United
Nations a duty to promote ‘universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language or religion’;
under Article 56, all Members of the United Nations ‘pledge themselves to take joint
and separate action in cooperation with the Organization for the achievement of the
purposes set forth in Article 55’.
Scholars have sometimes questioned whether these provisions in fact imposed legal
obligations, or simply defined in general terms a programme of action for the organization
(see, e.g. M. O. Hudson, ‘Integrity of International Instruments’, American
Journal of International Law, 42 (1948), 105–8; H. Kelsen, The Law of the United Nations
(London: The London Institute of World Affairs, 1950), pp. 29–32; in favour of seeing in
these provisions of the UN Charter the source of legal obligations, see in particular H.
Lauterpacht, International Law and Human Rights (New York; Frederick Praeger, Inc.,
1950), at pp. 147–9). The sceptical views, however, were often confusing the question
whether the Charter’s provisions were self-executing, with the question whether they
were legally binding; and they were premised on the indeterminate character of the
content of the ‘human rights and fundamental freedoms’ referred to in the Charter,
which the Universal Declaration of Human Rights precisely sought to make explicit.
The International Court of Justice seems to have definitively put an end to the controversy
when it delivered its Advisory Opinion on the Legal Consequences for States of
the Continued Presence of South Africa in Namibia (South West Africa), notwithstanding
Security Council Resolution 276 (1970), where it stated that ‘to establish …, and
to enforce, distinctions, exclusions, restrictions and limitations exclusively based on
grounds of race, colour, descent or national or ethnic origin which constitute a denial
of fundamental human rights is a flagrant violation of the purposes and principles of
the Charter’ (I.C.J. Reports 1971, 16). Although the statement was made in relation to
the obligations of South Africa as a mandatory power in South West Africa, there is no
reason to restrict it to this hypothesis: instead, it would seem to follow from the Opinion
that the UN Charter imposes on all States that they comply, at a minimum, with a core
set of human rights, which the Charter refers to without listing them exhaustively (see
E. Schwelb, ‘The International Court of Justice and the Human Rights Clauses of the
Charter’, American Journal of International Law, 66, No. 2 (1972), 337–51, esp. 348–9).
50 Emergence of human rights in international law
Even if we accept that the UN Charter imposes compliance with human rights to all
the Member States of the Organization, it still is only addressed, in principle, to States
and the institutions of the UN, rather than to all subjects of international law. However,
at the same time that they were codified in international treaties, human rights have
also been recognized as binding upon all subjects of international law as part of general
international law, either because they are part of customary international law, or
because they constitute general principles of law.
(b) Human rights as part of customary international law
The growing consensus is that most, if not all, of the rights enumerated in the Universal
Declaration of Human Rights have acquired a customary status in international law
(see in particular L. Henkin, The Age of Rights (New York: Columbia University,
1990), p. 19; N. S. Rodley, ‘Human Rights and Humanitarian Intervention: the Case
Law of the World Court’, International and Comparative Law Quarterly, 38 (1989), at
321, esp. 333; T. Meron, Human Rights and Humanitarian Norms as Customary Law
(Oxford: Clarendon Press, 1989); L. B. Sohn, ‘The Human Rights Law of the Charter’,
Texas International Law Journal, 12 (1977), 129 at 132–4; H. Hannum, ‘The Status of
the Universal Declaration of Human Rights in National and International Law’, Georgia
Journal of International and Comparative Law, 25 (1995–1996), 287). Custom in principle
requires, to be established, both consistent identifiable state practice, and evidence
of a belief that this practice is rendered obligatory by the existence of a rule of
law requiring it (opinio juris sive necessitatis). The classic definition is that adopted
by the International Court of Justice in the North Sea Continental Shelf Cases (Federal
Republic of Germany v. Denmark and Federal Republic of Germany v. Netherlands)
(I.C.J. Reports 1969, 44, para. 77): ‘Not only must the acts concerned amount to settled
practice, but they must also be such or be carried out in such a way, as to be evidence of
a belief that this practice is rendered obligatory by the existence of a rule of law requiring
it. The need for such a belief, i.e. the existence of a subjective element, is implicit in
the very notion of the opinio juris sive necessitatis. The states concerned must therefore
feel that they are conforming to what amounts to their legal obligation. The frequency
or even habitual character of the acts is not in itself enough.’
It has been argued, however, that, in the field of human rights, evidence of custom
could be based on the resolutions of the UN General Assembly and statements made
within other international organizations, demonstrating a clear commitment of the
international community towards certain values, while inconsistent State practice on
the other hand would not be an obstacle to the identification of such custom. For instance,
the fact that the universal periodic review performed by the UN Human Rights Council
takes as a reference, in the review of each State, not only the Charter of the United
Nations, but also the Universal Declaration of Human Rights, as well as the human
rights instruments to which a State is party (appendix to the Human Rights Council
Resolution 5/1 ‘Institution-building of the United Nations Human Rights Council’
(18 June 2007): see further chapter 10), provides as least an indication of the expectation
of the international community that all States should comply with a basic corpus
51 Human rights law as part of international law
of human rights as contained in the UDHR, whichever treaties they have ratified. Some
authors have gone so far as to suggest that State ‘practice’, for the purposes of custom
determination in the field of human rights, is composed of official declarations and
participation in the negotiation of human rights instruments, as well as of incorporation
of human rights within the national legal orders. Consider for instance the
attitude adopted by the 1987 Restatement (Third) of the Foreign Relations Law of the
United States (for an exposé of the background assumptions underlying this position,
see the Hague Academy course of Oscar Schachter: O. Schachter, ‘International Law in
Theory and Practice: General Course in Public International Law’, Recueil des cours,
178 (1982–V), 2 at 333–42), or the position expressed by Theodor Meron:
American Law Institute, Restatement (Third) of the Foreign Relations Law of the
United States (St. Paul, Minn.: American Law Institute Publishers, 1987):
[§701, n. 2] Practice accepted as building customary human rights law includes: virtually
universal adherence to the United Nations Charter and its human rights provisions, and virtually
universal and frequently reiterated acceptance of the Universal Declaration of Human Rights
even if only in principle; virtually universal participation of states in the preparation and
adoption of international agreements recognizing human rights principles generally, or particular
rights; the adoption of human rights principles by states in regional organizations in Europe,
Latin America, and Africa …; general support by states for United Nations resolutions declaring,
recognizing, invoking, and applying international human rights principles as international law;
action by states to conform their national law or practice to standards or principles declared
by international bodies, and the incorporation of human rights provisions, directly or by
reference, in national constitutions and law; invocation of human rights principles in national
policy, in diplomatic practice, in international organization activities and actions; and other
diplomatic communications or action by states reflecting the view that certain practices violate
international human rights law, including condemnation and other adverse state reactions to
violations by other states.
[Applying this criterion, the Restatement concludes in §702 that:] A state violates international
law if, as a matter of state policy, it practices, encourages, or condones (a) genocide, (b) slavery or
slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel,
inhuman or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic
racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized
human rights.
Theodor Meron, Human Rights and Humanitarian Norms as Customary Law
(Oxford: Clarendon Press, 1989), p. 93:
[T]he initial inquiry must aim at the determination whether, at a minimum, the definition of the
core norm claiming customary law status and preferably the contours of the norm have been
widely accepted. In this context my own preferred indicators evincing customary human rights
are, first, the degree to which a statement of a particular right in one human rights instrument,
52 Emergence of human rights in international law
especially a human rights treaty, has been repeated in other human rights instruments, and
second, the confirmation of the right in national practice, primarily through the incorporation
of the right in national laws … It is, of course, to be expected that those rights which are most
crucial to the protection of human dignity and of the universally accepted values of humanity,
and whose violation triggers broad condemnation by the international community, will require a
lesser amount of confirmatory evidence.
Essentially two arguments have been put forward in favour of this position. First, it
can be said that the ‘practice’ of a State towards its own population (the rights of which
it is the purpose of the international human rights regime to protect) would be difficult
if not impossible to ascertain for practical reasons (violations committed by a State
within its borders frequently go unnoticed), so that customary international law could
only be determined, not by reference to how States actually behave, but by the justifications
they provide for the way they behave: in this view, ‘even massive abuses do
not militate against assuming a customary rule as long as the responsible author state
seeks to hide and conceal its objectionable conduct instead of justifying it by invoking
legal reasons’ (C. Tomuschat, Human Rights Between Idealism and Realism (Oxford
University Press, 2003), p. 34). Second, this view about the identification of practice as
building customary human rights law is also related to the fact that States have no subjective
interest in other States complying with their human rights obligations, except
in those rare instances where the rights of the nationals of the first States are at stake.
As a result, there is little State practice on the basis of which to identify the formation
of a custom, since most instances of human rights violations do not give rise to protests
by other States of the international community (O. Schachter, ‘International Law in
Theory and Practice: General Course in Public International Law’, Recueil des cours,
178 (1982–V), at 334).
Thus, a ‘modern’ view of custom has gained some acceptance in the field of human
rights (for a discussion, see M. Akehurst, ‘Custom as a Source of International Law’,
British Yearbook of International Law (1974–5), 1 et seq.; L. Henkin, ‘Human Rights
and State ‘Sovereignty’’, 25 Georgia Journal of International Law 37 (1995–1996)). This
view presents itself as a substitute to the classical view as reflected in Article 38(1)
of the Statute of the International Court of Justice. In the ‘modern’ approach, State
‘practice’ in the usual sense of ‘behaviour’ is less determinative than authoritative
statements made by governments or intergovernmental bodies. This turn is favoured
in part by a general identity crisis of custom as a source of international law. It has
been encouraged by well-intentioned authors, eager to provide human rights law with
a standing in customary law which would compensate for what was perceived in the
1970s and 1980s as the lack of enthusiasm of States in the ratification of human rights
treaties. However, this ‘modern’ view results in distorting the classical notion of custom
in such a way that the notion is barely even recognizable under its new disguise.
Philip Alston and Bruno Simma have also argued that it may be ideologically biased
53 Human rights law as part of international law
towards the recognition of certain particular human rights as forming part of customary
international law. The result of the ‘new’ approach, it turns out, which emphasizes
deduction from statements instead of induction from State behaviour, is that those
civil and political rights which are recognized in United States constitutional law and
which the United States invokes against other States are included, while other rights,
equally essential and whose status is identical within the international bill of rights,
are excluded. These authors therefore suggest that a certain ‘sub-conscious chauvinism’
may be at work, for instance, in the list of human rights recognized as customary
international law in the Restatement. They ask whether ‘any theory of human rights
law which singles out race but not gender discrimination, which condemns arbitrary
imprisonment but not capital punishment for crimes committed by juveniles or death
by starvation and which finds no place for a right of access to primary health care, is
not flawed in terms both of the theory of human rights and of United Nations doctrine’
(B. Simma and P. Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and
General Principles’, 12 Australian Yearbook of International Law 82 (1988–1989), at
94–5).
The dissatisfaction with the substitution of a ‘modern’ view of custom to the ‘traditional’
view has led, in turn, to two reactions. One part of the doctrine has sought
to accommodate the competing claims of the ‘traditional’ and the ‘modern’ views of
custom. Thus for instance, Frederic Kirgis has put the requirements of State practice
and opinio juris, which compete for influencing the emergence of custom, on a sliding
scale: whereas, at one end of the scale, highly consistent State practice should suffice
to establish the existence of opinio juris, conversely and at the other end, strong
indications that there exists a consensus among States about the unacceptability of
certain forms of behaviour may establish custom, even if State practice is inconsistent
(F. Kirgis, ‘Custom on a Sliding Scale’, American Journal of International Law, 81
(1987), 146; see also, for other attempts in this direction, J. Tasioulas, ‘In Defence of
Relative Normativity: Communitarian Values and the Nicaragua Case’, Oxford Journal
of Legal Studies, 16 (1996), 85, and A. E. Roberts, ‘Traditional and Modern Approaches
to Customary International Law: a Reconciliation’, American Journal of International
Law, 95 (2001), 757). But, alternatively, we may turn to other arguments in order to
ground human rights law in general international law. The most promising avenue in
this direction, and the one preferred by P. Alston and B. Simma, is to identify human
rights as general principles of international law.
(c) Human rights as general principles of law
This means of recognizing the Universal Declaration of Human Rights as a source
of legal obligations is encouraged by the approach adopted by the International
Court of Justice itself. The Court has refrained from stating that the Declaration as
such, in the totality of its articles, should be considered as customary international
law. But it did refer to the Declaration on a number of occasions, albeit always with
respect to a specific right and without always clarifying the source of the authority
54 Emergence of human rights in international law
of the Declaration. For instance, alluding to the prohibition of arbitrary arrest or
detention stipulated in Article 9 of the Universal Declaration of Human Rights, it
stated in the Tehran Hostages case that ‘Wrongfully to deprive human beings of
their freedom and to subject them to physical constraint in conditions of hardship
is in itself manifestly incompatible with the principles of the Charter of the United
Nations, as well as with the fundamental principles enunciated in the Universal
Declaration of Human Rights’ (United States Diplomatic and Consular Staff in Tehran
(United States v. Iran) (merits) (I.C.J. Reports 1980, at 42). The language referring
to such ‘fundamental principles’ is not new. Already in the Corfu Channel case, the
Court mentioned ‘obligations … based … on certain general and well-recognized
principles’, among which it mentioned what it labelled ‘elementary considerations
of humanity’ (Corfu Channel Case (United Kingdom of Great Britain and Northern
Ireland-Albania) (I.C.J. Reports 1949, 4 at 22)). In the Advisory Opinion it delivered
on the issue of Reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide, it referred to ‘the principles underlying the Convention’ as
‘principles which are recognized by civilized nations as binding on States, even without
any conventional obligation’ (Reservations to the Convention on the Prevention
and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951,
19 (28 May 1951)). Almost identical language may be found in later cases. In its
Advisory Opinion on the Legality of Threat or Use of Nuclear Weapons, referring to
the Corfu Channel dictum, the Court stated that ‘it is undoubtedly because a great
many rules of humanitarian law applicable in armed conflict are so fundamental to
the respect of the human person and “elementary considerations of humanity” …,
that the Hague and Geneva Conventions have enjoyed a broad accession. Further
these fundamental rules are to be observed by all States whether or not they have
ratified the conventions that contain them, because they constitute intransgressible
principles of international customary law’ (I.C.J. Reports 1996, 226, at 257 (para.
79)). Similarly, in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), the Court had mentioned
the ‘fundamental general principles of humanitarian law’ as the source of
obligations for the defendant State (I.C.J. Reports 1986, 14, at 113–14). The Case
Concerning East Timor (Portugal v. Australia) similarly referred to the ‘principle’ of
self-determination as ‘one of the essential principles of contemporary international
law’ (I.C.J. Reports 1995, 90, at 102 (para. 29)).
Although these statements refer, for the most part, to otherwise unspecified ‘principles
of international law’ rather than to the ‘general principles of law recognized
by civilized nations’ mentioned by Article 38(1)(c) of the Statute of the International
Court of Justice, they nevertheless have been interpreted as implying that human
rights should qualify among the latter principles, and thus as forming part of general
international law (see B. Simma and P. Alston, ‘The Sources of Human Rights
Law: Custom, Jus Cogens, and General Principles’, cited above, at 102–8; T. Meron,
Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press,
55 Human rights law as part of international law
1989), at p. 88). Indeed, enthusiastic as they are about the grounding of international
human rights law in customary international law, the reporters of the Restatement
(Third) of the Foreign Relations of the United States note that ‘there is a willingness
to conclude that prohibitions [against human rights violations] common to the constitutions
or laws of many states are general principles that have been absorbed into
international law’ (para. 701, n. 1). This conclusion also may be seen to follow from the
fact that the Universal Declaration of Human Rights has been implemented, or even
sometimes almost literally reproduced, in a large number of bill of rights in the world
(H. Hannum, ‘The Status of the Universal Declaration of Human Rights in National
and International Law’, Georgia Journal of International and Comparative Law, 25
(1995–1996), 287, at 351–2).
(d) The significance of human rights as part of general international law
Does it matter that international human rights have their source both in general
public international law, and in specific treaties concluded at universal or regional
level? The expansion of the membership of States in international human rights
treaties particularly in the 1990s – the Convention on the Rights of the Child has
achieved almost universal ratification, and treaties such as the two 1966 Covenants
or the International Convention for the Elimination of All Forms of Discrimination
against Women have also been very widely ratified – may have created the impression
that the controversy about how solid the foundations of human rights law are in
general international law, as opposed to treaty law, is not worth the efforts of legal
doctrine today, as it might have been in the 1980s. We should resist this impression,
however. First, we are far from having achieved universal ratification for all human
rights treaties. Second, ratifications by States may be accompanied by reservations
about specific rights or about the scope of application of the treaty: grounding the
guarantees of the treaty in customary international law or in other sources of general
international law may serve to overcome such restrictions. Third, it is increasingly
acknowledged that States are not the only addressees of human rights law.
As subjects of international law, international organizations are bound by general
international law (see further on this issue chapter 2, section 4), and some authors
believe this could be extended to transnational corporations (see chapter 4, section
1.2.): in order to impose human rights obligations on such private non-State actors,
these obligations must have their source elsewhere than in treaties, which as a rule
only States may ratify.
The view that human rights treaties merely embody, in treaty form, pre-existing
obligations of States – which have their source in customary international law or in
the general principles of law, and which are not at the disposal of States – also has
guided the approach of human rights bodies on the question of the denunciation of
human rights treaties and of State succession, especially after the dismantling of the
former Soviet Union or of the former Federal Republic of Yugoslavia, and the separation
of Czechoslovakia into two distinct entities. Box 1.4. discusses this issue.
56 Emergence of human rights in international law
Box The continuity of human rights obligations
1.4.
On 5 March 1993, the Commission on Human Rights adopted Resolution 1993/23, entitled
‘Succession of States in respect of International Human Rights Treaties’, in which it encouraged
successor States to confirm officially that they continued to be bound by obligations under relevant
international human rights treaties and urged those that had not yet done so to ratify or
to accede to those international human rights treaties to which the predecessor States had not
been parties. It also adopted Resolution 1994/16 of 25 February 1994, in which it emphasized
the special nature of the treaties aimed at the protection of human rights and reiterated its call
to successor States which had not yet done so to confirm that they continued to be bound by
obligations under international human rights treaties. Probably emboldened by these resolutions,
the Human Rights Committee expressed the following views on the question of denunciation
of the International Covenant on Civil and Political Rights, as well as on the question of
State succession:
Human Rights Committee, General Comment No. 26, Continuity of Obligations
(8 December 1997) (CCPR/C/21/Rev.1/Add. 8/Rev.1):
1. The International Covenant on Civil and Political Rights does not contain any provision regarding
its termination and does not provide for denunciation or withdrawal. Consequently, the possibility
of termination, denunciation or withdrawal must be considered in the light of applicable
rules of customary international law which are reflected in the Vienna Convention on the Law
of Treaties. On this basis, the Covenant is not subject to denunciation or withdrawal unless it is
established that the parties intended to admit the possibility of denunciation or withdrawal or a
right to do so is implied from the nature of the treaty.
2. That the parties to the Covenant did not admit the possibility of denunciation and that it was
not a mere oversight on their part to omit reference to denunciation is demonstrated by the
fact that article 41(2) of the Covenant does permit a State party to withdraw its acceptance
of the competence of the Committee to examine inter-State communications by filing
an appropriate notice to that effect while there is no such provision for denunciation of
or withdrawal from the Covenant itself. Moreover, the Optional Protocol to the Covenant,
negotiated and adopted contemporaneously with it, permits States parties to denounce
it. Additionally, by way of comparison, the International Convention on the Elimination
of All Forms of Racial Discrimination, which was adopted one year prior to the Covenant,
expressly permits denunciation. It can therefore be concluded that the drafters of the
Covenant deliberately intended to exclude the possibility of denunciation. The same conclusion
applies to the Second Optional Protocol in the drafting of which a denunciation
clause was deliberately omitted.
3. Furthermore, it is clear that the Covenant is not the type of treaty which, by its nature, implies
a right of denunciation. Together with the simultaneously prepared and adopted International
Covenant on Economic, Social and Cultural Rights, the Covenant codifies in treaty form the
57 Human rights law as part of international law
universal human rights enshrined in the Universal Declaration of Human Rights, the three
instruments together often being referred to as the ‘International Bill of Human Rights’. As
such, the Covenant does not have a temporary character typical of treaties where a right of
denunciation is deemed to be admitted, notwithstanding the absence of a specific provision to
that effect.
4. The rights enshrined in the Covenant belong to the people living in the territory of the State
party. The Human Rights Committee has consistently taken the view, as evidenced by its longstanding
practice, that once the people are accorded the protection of the rights under the
Covenant, such protection devolves with territory and continues to belong to them, notwithstanding
change in government of the State party, including dismemberment in more than one
State or State succession or any subsequent action of the State party designed to divest them
of the rights guaranteed by the Covenant.
5. The Committee is therefore firmly of the view that international law does not permit a
State which has ratified or acceded or succeeded to the Covenant to denounce it or withdraw
from it.
This position expressed in General Comment No. 26 is clearly based on the view that
human rights treaties are specific among international treaties (in favour of this view, see
M. Kamminga, ‘State Succession in Respect of Human Rights Treaties’, European Journal of
International Law, 7 (1996) 469, at 482–3; R. Higgins, ‘The International Court of Justice and
Human Rights’ in K. Wellens (ed.), International Law: Theory and Practice. Essays in Honour of
Eric Suy (Leiden: Martinus Nijhoff, 1998), p. 691, at pp. 696–7; see also the separate opinion
of Judge Weeramantry to the 11 July 1996 judgment of the International Court of Justice in
the case of the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J. Reports 1996, 595). But
it seems to contradict the rule established under customary international law for other international
law treaties in cases of succession of States, where the solution generally favoured is
that succeeding States may choose whether or not to be bound by the treaties to which the
predecessor State had acceded (see, for example, Restatement (Third) of the Foreign Relations
Law of the United States (1987), para. 210(3), Reporters’ Note 4; I. Brownlie, Principles of Public
International Law, fifth edn (Oxford University Press, 1998), p. 663; A. Cassese, International
Law, second edn (Oxford University Press, 2005), p. 78; M. Shaw, International Law, fifth edn
(Cambridge University Press, 2003), p. 875; M. Koskenniemi and P. M. Eisemann (eds.), State
Succession: Codification Tested Against the Facts (The Hague: Hague Academy of International
Law, Martinus Nijhoff, 2000). Even the 1978 Vienna Convention on Succession of States in
respect of Treaties, which is not generally considered to faithfully represent customary international
law, does not anticipate automatic succession to treaties, at least as regards newly
independent States. And, indeed, the General Comment of the Human Rights Committee on
the continuity of obligations has been taken issue with, including from within the Committee
itself.
58 Emergence of human rights in international law
Vienna Convention on Succession of States in respect of Treaties (23 August 1978)
(excerpts):
Article 16. Position in respect of the treaties of the predecessor State
A newly independent State [defined by the Convention as ‘a successor State the territory of
which immediately before the date of the succession of States was a dependent territory for the
international relations of which the predecessor State was responsible’] is not bound to maintain
in force, or to become a party to, any treaty by reason only of the fact that at the date of
the succession of States the treaty was in force in respect of the territory to which the succession
of States relates.
Article 34. Succession of States in cases of separation of parts of a State
1. When a part or parts of the territory of a State separate to form one or more States, whether or
not the predecessor State continues to exist: (a) any treaty in force at the date of the succession
of States in respect of the entire territory of the predecessor State continues in force in respect
of each successor State so formed; (b) any treaty in force at the date of the succession of States
in respect only of that part of the territory of the predecessor State which has become a successor
State continues in force in respect of that successor State alone.
2. Paragraph 1 does not apply if: (a) the States concerned otherwise agree; or (b) it appears from
the treaty or is otherwise established that the application of the treaty in respect of the successor
State would be incompatible with the object and purpose of the treaty or would radically
change the conditions for its operation.
Human Rights Committee, Kuok Koi v. Portugal, Communication No. 925/2000 (final
views of 22 October 2001) (CCPR/C/73/D/925/2000) (individual opinion of Mr Nisuke
Ando):
Personally, I agree with the Committee’s view [as expressed in para. 4 of General Comment
No. 26 on the Continuity of Obligations under the International Covenant on Civil and Political
Rights] as a matter of policy statement, but I cannot agree with it as a statement of a rule
of customary international law. As far as State practice with respect to the Covenant is
concerned, only in the cases of the dismemberment of the former Yugoslavia and that of
Czechoslovakia, each of the newly born States in Central and Eastern Europe except
Kazakhstan [which consistently refused to accept that it succeeded automatically to the
human rights treaties concluded formerly by the Soviet Union] indicated that it ‘succeeds
to’ the Covenant. All the other seceding or separating States indicated that they ‘accede to’
the Covenant, which implies that they are not succeeding to the former States’ Covenant
obligations but are newly acceding to the Covenant obligations on their own. The corresponding
State practice with respect to the Optional Protocol makes it clear that only the Czech
Republic and Slovakia ‘expressly’ succeeded to the Optional Protocol obligations. Certainly
the State practice shows that there is no ‘automatic’ devolution of the Covenant obligations,
to say nothing of the Optional Protocol obligations, to any State. A State needs to make an
59 Human rights law as part of international law
1.2. Questions for discussion: custom and general principles of law as sources of
human rights
1. Are there dangers associated with adapting the classic definition of custom as a source of international
law to the specificity of human rights, considering especially the fact that the indivisibility,
interdependence and equal importance of all human rights – including both civil and
political and economic, social and cultural rights – have been regularly reaffirmed in various UN
resolutions and at successive world conferences on human rights?
2. Should human rights, as part of general international law, be identified preferably as part of
customary international law, or as part of general principles of law? Or does the best approach
consist in seeing human rights – as listed in the Universal Declaration of Human Rights – as
imposed under the UN Charter, particularly under Articles 55 and 56?
3. Does it follow from the fact that respect for human rights is obligatory for States, whichever
the human rights treaties they have ratified, that States parties to a human rights treaty
should not be allowed to denounce it unless the said treaty explicitly provides for this possibility?
Does it follow that any successor State is bound by the human rights treaties concluded
by the State to which it succeeds, even when it is a newly independent State? Consider that,
as recalled by the International Court of Justice, ‘[t]he fact that the [principles of customary
and international law], recognized as such, have been codified or embodied in multilateral
conventions does not mean that they cease to exist and to apply as principles of customary
law, even as regards countries that are parties to such conventions’ (case concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) I.C.J. Reports
1984, 424, para. 73 (judgment of 26 November 1984 on the jurisdiction of the Court and on the
admissibility of the application)), so that ‘customary international law continues to exist and
to apply, separately from international treaty law, even where the two categories of law have
an identical content’ (concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States) I.C.J. Reports 1986, 14, para. 179 (judgment of 27 June 1986 on
the merits)).
4.2. Human rights in the hierarchy of international law
It has sometimes been argued that human rights norms occupy a superior position in
international law due to their specific status. The case of the Sawhoyamaxa Indigenous
Community presented to the Inter-American Court of Human Rights provides a useful
starting point. In this case, the State alleged it could not give effect to the indigenous
community’s right to property over their ancestral lands because, among other reasons,
‘express’ indication as to whether or not it accepts obligations under the Covenant and/or
the Optional Protocol. Absent such an indication, it should not be assumed that the State
has accepted the obligations.
60 Emergence of human rights in international law
these lands now belonged to a German investor, protected by a bilateral investment
treaty. The Court answered:
Inter-American Court of Human Rights, case of The Sawhoyamaxa Indigenous
Community v. Paraguay (judgment of 29 March 2006, Series C No. 146).
137. … [The] Court has ascertained that the arguments put forth by the State to justify nonenforcement
of the indigenous people’s property rights have not sufficed to release it from
international responsibility. The State has put forth three arguments: 1) that claimed lands have
been conveyed from one owner to another ‘for a long time’ and are duly registered; 2) that said
lands are being been adequately exploited, and 3) that the owner’s right ‘is protected under a
bilateral agreement between Paraguay and Germany[,] which … has become part of the law of
the land.’ …
140. … [W]ith regard to the third argument put forth by the State, the Court has not been
furnished with the aforementioned treaty between Germany and Paraguay, but, according
to the State, said convention allows for capital investments made by a contracting party
to be condemned or nationalized for a ‘public purpose or interest’, which could justify land
restitution to indigenous people. Moreover, the Court considers that the enforcement of bilateral
commercial treaties negates vindication of non-compliance with state obligations under the
American Convention; on the contrary, their enforcement should always be compatible with the
American Convention, which is a multilateral treaty on human rights that stands in a class of
its own and that generates rights for individual human beings and does not depend entirely on
reciprocity among States.
141. Based on the foregoing, the Court dismisses the three arguments of the State described
above and finds them insufficient to justify non-enforcement of the right to property of the
Sawhoyamaxa Community.
This position implies, albeit implicitly, that human rights treaties – due to their specific
nature as having a ‘normative’ character, which distinguishes them from treaties
which are merely an exchange of rights and obligations between States – occupy
a superior position in international law, and that any treaties conflicting with them
should therefore be set aside in situations of conflict. Which weight should we recognize
to such an assertion?
(a) The arguments in favour of hierarchy
Two arguments are traditionally put forward in order to justify the view that human
rights occupy a hierarchically superior position among the norms of international
law (see generally I. Seiderman, Hierarchy in International Law. The Human Rights
Dimension (Antwerp-Oxford: Intersentia-Hart, 2001)). First, Article 103 of the UN
Charter provides that ‘In the event of a conflict between the obligations of the Members
of the United Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall prevail.’
Since one of the purposes of the UN Charter is to achieve international co-operation in
promoting and encouraging respect for human rights and for fundamental freedoms
61 Human rights law as part of international law
for all without discrimination (Art. 1(3)), and since Article 56 of the Charter clearly
imposes obligations both on the organization itself and on its Member States to contribute
to the fulfilment of this objective, it would follow, then, that any international
obligation conflicting with the obligation to promote and protect human rights should
be set aside, in order for this latter objective to be given priority.
Second, although the norms of international law (custom, treaties, and the ‘general
principles of law recognized by civilized nations’, as expressed in the list of sources of
international law by Art. 38(1) of the Statute of the International Court of Justice) are
otherwise not hierarchically ordered according to their various sources, certain norms
are specific in that they embody a form of international public policy. In the context of
the law of treaties, the Vienna Convention on the Law of Treaties states that any treaty
which, at the time of its conclusion, is in violation of a peremptory norm of general
international law (also referred to as belonging to jus cogens), is to be considered void.
A peremptory norm of general international law is defined as ‘a norm accepted and
recognized by the international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character’ (Art. 53; Art. 64 of the Vienna
Convention on the Law of Treaties adds that ‘If a new peremptory norm of general international
law emerges, any existing treaty which is in conflict with that norm becomes
void and terminates’). The existing judicial practice shows that such jus cogens norms
are those which ensure the safeguard of two fundamental interests of the international
community: those of its primary subjects, the States, whose essential prerogatives are
preserved by the recognition of their equal sovereignty and by the prohibition of the
use of force in conditions other than those authorized by the UN Charter; and those of
the international community in the preservation of certain fundamental human rights
(P.-M. Dupuy, ‘L’unité de l’ordre juridique international. Cours général de droit international
public’, Recueil des cours, 297 (2002), at 303).
In theory, the sanctions attached to the hierarchical principle will differ according
to whether it is based on Article 103 of the Charter or on the nature of the superior
norms recognized as jus cogens: whereas a treaty found to be in violation of a jus
cogens norm becomes void, a treaty incompatible with obligations flowing from membership
in the United Nations does not disappear, but shall not be applied to the extent
of such an incompatibility (see the Report of the Study Group of the International
Law Commission, Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law, cited above, para. 41). However, the
logics under which each of these mechanisms operate are not systematically opposed
to one another: where a treaty is not per se in violation of a jus cogens requirement but
may lead to certain decisions being adopted which result in such a violation, only those
decisions shall have to be considered invalid, while the treaty itself will remain in
force (compare J. Combacau, ‘Logique de la validité contre logique d’opposabilité dans
la Convention de Vienne sur le droit des traités’ in Mélanges M. Virally (Paris: Pedone,
1991), pp. 195–203). As noted by the International Law Commission in the course of the
discussion of the Draft Articles on State Responsibility: ‘one might envisage a conflict
62 Emergence of human rights in international law
arising on a subsequent occasion between a treaty obligation, apparently lawful on its
face and innocent in its purpose, and a peremptory norm. If such a case were to arise it
would be too much to invalidate the treaty as a whole merely because its application in
the given case was not foreseen’ (Official Records of the General Assembly, Fifty-sixth
Session, Supplement 10 (A/56/10), commentary to Art. 40 of the Draft Articles on State
Responsibility, para. (3); also reproduced in J. Crawford (ed.), The International Law
Commission’s Articles on State Responsibility. Introduction, Text and Commentaries,
(Cambridge University Press, 2002), at p. 187).
Should the two mechanisms be ranked according to an order of priority? It has
been stated that a conflict between the primacy asserted by Article 103 of the UN
Charter – which extends to the decisions adopted by the Security Council acting under
the Charter (International Court of Justice, Order of 14 April 1992 (provisional measures),
Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States
of America), I.C.J. Reports 1992, 15, para. 39) – and jus cogens norms was difficult to
contemplate. The Study Group of the International Law Commission on the fragmentation
of international law for instance remarks that: ‘The United Nations Charter has
been universally accepted by States and thus a conflict between jus cogens norms and
Charter obligations is difficult to contemplate. In any case, according to Article 24(2)
of the Charter, the Security Council shall act in accordance with the Purposes and
Principles of the United Nations which include norms that have been subsequently
treated as jus cogens’ (Report of the Study Group of the International Law Commission,
Fragmentation of International Law: Difficulties arising from the Diversification and
Expansion of International Law, cited above, at p. 24, para. 40 of the conclusions). This
view is, unfortunately, too optimistic, for times such as ours when the UN Security
Council may use its powers in ways which may lead to violations of internationally
recognized human rights. When such conflicts do occur – as they do in fact – they
should be resolved in favour of the primacy of jus cogens even over the UN Charter or
measures adopted in accordance with the Charter. Article 103 of the UN Charter, after
all, has the status of a provision included in a treaty establishing an international
organization, whatever the unique character of this organization:
International Court of Justice, Order of 8 April 1993 on the request for the
indication of provisional measures in the case of the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), separate opinion of
Judge ad hoc Elihu Lauterpacht (I.C.J. Reports 1993, 440, para. 100):
The concept of jus cogens operates as a concept superior to both customary international law
and treaty. The relief which Article 103 of the Charter may give the Security Council in case of
conflict between one of its decisions and an operative treaty obligation cannot – as a matter of
simple hierarchy of norms – extend to a conflict between a Security Council resolution and
63 Human rights law as part of international law
jus cogens. Indeed, one only has to state the opposite proposition thus – that a Security Council
resolution may even require participation in genocide – for its unacceptability to be apparent.
This is also the reasoning followed by the Court of First Instance of the European
Communities (now renamed the EU’s General Court) when it was asked to annul
Regulation (EC) No. 881/2002 imposing certain specific restrictive measures directed
against certain persons and entities associated with Usama bin Laden, the Al-Qaeda
network and the Taliban, implementing UN Security Council Resolution 1390 (2002).
Court of First Instance of the European Communities, Case T-315/01, Yassin
Abdullah Kadi v. Council of the EU and Commission of the European
Communities, judgment of 21 September 2005:
226 [Although the resolutions of the Security Council at issue fall, in principle, outside the ambit
of the Court’s judicial review and although the Court has no authority to call in question, even
indirectly, their lawfulness in the light of EU law, nonetheless] the Court is empowered to check,
indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus
cogens, understood as a body of higher rules of public international law binding on all subjects
of international law, including the bodies of the United Nations, and from which no derogation is
possible.
227 In this connection, it must be noted that the Vienna Convention on the Law of Treaties,
which consolidates the customary international law and Article 5 of which provides that it is to
apply ‘to any treaty which is the constituent instrument of an international organisation and to
any treaty adopted within an international organisation’, provides in Article 53 for a treaty to
be void if it conflicts with a peremptory norm of general international law (jus cogens), defined
as ‘a norm accepted and recognised by the international community of States as a whole as a
norm from which no derogation is permitted and which can be modified only by a subsequent
norm of general international law having the same character’. Similarly, Article 64 of the Vienna
Convention provides that: ‘If a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and terminates.’
228 Furthermore, the Charter of the United Nations itself presupposes the existence of
mandatory principles of international law, in particular, the protection of the fundamental rights
of the human person. In the preamble to the Charter, the peoples of the United Nations declared
themselves determined to ‘reaffirm faith in fundamental human rights, in the dignity and worth
of the human person’. In addition, it is apparent from Chapter I of the Charter, headed ‘Purposes
and Principles’, that one of the purposes of the United Nations is to encourage respect for human
rights and for fundamental freedoms.
229 Those principles are binding on the Members of the United Nations as well as on its bodies.
Thus, under Article 24(2) of the Charter of the United Nations, the Security Council, in discharging
its duties under its primary responsibility for the maintenance of international peace and security, is
to act ‘in accordance with the Purposes and Principles of the United Nations’. The Security Council’s
powers of sanction in the exercise of that responsibility must therefore be wielded in compliance
with international law, particularly with the purposes and principles of the United Nations.
64 Emergence of human rights in international law
230 International law thus permits the inference that there exists one limit to the principle
that resolutions of the Security Council have binding effect: namely, that they must observe the
fundamental peremptory provisions of jus cogens. If they fail to do so, however improbable that
may be, they would bind neither the Member States of the United Nations nor, in consequence,
the Community.
231 The indirect judicial review carried out by the Court in connection with an action for
annulment of a Community act adopted, where no discretion whatsoever may be exercised,
with a view to putting into effect a resolution of the Security Council may therefore, highly
exceptionally, extend to determining whether the superior rules of international law falling
within the ambit of jus cogens have been observed, in particular, the mandatory provisions
concerning the universal protection of human rights, from which neither the Member States
nor the bodies of the United Nations may derogate because they constitute ‘intransgressible
principles of international customary law’ (Advisory Opinion of the International Court of
Justice of 8 July 1996, The Legality of the Threat or Use of Nuclear Weapons, Reports 1996,
p. 226, paragraph 79).
The Court of First Instance of the European Communities went on to examine whether
the fact that there is no judicial remedy available to the organizations or individuals
against which restrictive measures are taken, against the sanctions decided by the
Sanctions Committee established under the authority of the Security Council, is in violation
of jus cogens norms. It concluded that it is not, based on the consideration that the
right of access to the courts is subject to certain limitations which, in this case, appear
to be imposed for legitimate objectives and remain proportionate to the ends pursued.
This question was not addressed again in subsequent proceedings before the European
Court of Justice, since this Court took the view, based on its understanding of its role
as defined in the European Treaties, that it has no competence to review the lawfulness
of a resolution adopted by an international body such as the UN Security Council,
even if that review were to be limited to examination of the compatibility of that resolution
with jus cogens. Rather, its role was to review the lawfulness of the implementing
Community measure, in particular as regards the fundamental rights included among
the general principles of Community law. On the basis of such a review, the European
Court of Justice arrived at the conclusion that Regulation No. 881/2002 must be annulled
so far as concerns the appellants, by reason of the breach of principles applicable in the
procedure followed when the restrictive measures introduced by that regulation were
adopted (Joined Cases C-402/05 P and C-415/05 P, judgment of 3 September 2008).
(b) Human rights as jus cogens norms
Reliance on the notion of jus cogens norms is made difficult, however, by two factors.
First, the list of human rights included among norms of that nature remains ill defined.
Norms which have the status of jus cogens are to be identified on the basis of the
evolution of the understanding of the international community – the element of State
practice plays here a far less significant role than for the emergence of custom. This list is
therefore in constant evolution, and it would be both erroneous and counter-productive
65 Human rights law as part of international law
to seek to provide an authoritative classification. There is a consensus, however, about
the jus cogens nature of a number of prohibitions formulated in international human
rights law (for an extensive discussion, see I. Seiderman, Hierarchy in International
Law. The Human Rights Dimension (Antwerp-Oxford: Intersentia-Hart, 2001), at pp.
66–105). These include at a minimum the prohibition of aggression, slavery and the
slave trade, genocide (International Court of Justice, case of the Armed Activities on
the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), judgment of 3 February 2006 (Jurisdiction of the Court and Admissibility
of the Application), para. 64), racial discrimination, apartheid and torture (see the
references provided below in para. 153 of the judgment of 10 December 1998 delivered
by the International Criminal Tribunal for former Yugoslavia (ICTY), Trial Chamber,
in the case of Prosecutor v. Anto Furundzija, judgment of 10 December 1998), as well
as basic rules of international humanitarian law applicable in armed conflict, and
the right to self-determination (Official Records of the General Assembly, Fifty-sixth
Session, Supplement 10 (A/56/10), commentary to article 40 of the draft articles on
State Responsibility prepared by the International Law Commission, paras. (4)–(6) (also
reproduced in J. Crawford (ed.), The International Law Commission’s Articles on State
Responsibility. Introduction, Text and Commentaries (Cambridge University Press,
2003), at p. 188)). Other candidates for future recognition as peremptory norms of
international law are the application of the death penalty to juveniles (if not the precise
age of majority for purposes of capital punishment) (see Inter-American Commission
on Human Rights, Resolution No. 3/87, Case 9647 [1987] Inter-American Yearbook on
Human Rights 260) and the prohibition of refoulement, i.e. of returning a person to
a territory where she runs a risk of torture or of being ill-treated: it is, indeed, well
established that even where an extradition treaty would in principle allow for, or prescribe,
the extradition of a person to another State, the extraditing State is prohibited
from doing so in the presence of such a risk, the Institute of International Law noting
in this respect that ‘extradition treaties should not be enforced if enforcement would
violate a human rights norm external to the treaty’, and that ‘the notion that there are
certain higher norms in the field of human rights which take precedence over extradition
treaties owes its origin to the notion of jus cogens’ (Yearbook of the Institute
of International Law, 60 (1983), p. 214, at pp. 223–4; see I. Seiderman, Hierarchy in
International Law (Antwerp-Oxford: Intersentia-Hart, 2001), at pp. 101–5).
However, apart from the evolving nature of this list of norms having acquired jus
cogens status, there are certain doctrinal uncertainties concerning the recognition
criteria of such norms. It remains controversial, in particular, whether the emergence
of peremptory norms could be regional, rather than universal and resulting from the
consent of the international community as a whole. The Vienna Convention on the
Law of Treaties seems to refer only to jus cogens of a universal nature. But this may
be too restrictive: certain values may be central to a group of States of a particular
region, and this may lead to the invalidation of treaties concluded by the States of
that region which conflict with the said norm (see G. Gaja, ‘Jus Cogens beyond the
Vienna Convention’, Recueil des cours, 172–III (1981), 271 et seq., at 284; F. Domb,
66 Emergence of human rights in international law
‘Jus Cogens and Human Rights’, Israel Yearbook of Human Rights, 6 (1976), 104, at 110;
J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties: a Critical
Appraisal (Vienna, New York: Springer, 1974), at pp. 107–8). For instance, in his concurring
opinion to the judgment delivered on 7 July 1989 by the European Court of
Human Rights in Soering v. United Kingdom, Judge De Meyer made the following comment
about the second sentence of Article 2 §1 of the Convention, which states that ‘no
one shall be deprived of his life intentionally save in the execution of a sentence of a
court following his conviction of a crime for which this penalty is provided by law’,
thereby recognizing that the imposition of the death penalty may be acceptable:
European Court of Human Rights, Soering v. United Kingdom, judgment of
7 July 1989, concurring opinion of Judge De Meyer:
The second sentence of Article 2 §1 of the Convention was adopted, nearly forty years ago, in
particular historical circumstances, shortly after the Second World War. In so far as it still may seem
to permit, under certain conditions, capital punishment in time of peace, it does not reflect the
contemporary situation, and is now overridden by the development of legal conscience and practice.
Such punishment is not consistent with the present state of European civilisation.
De facto, it no longer exists in any State Party to the Convention.
Its unlawfulness was recognised by the Committee of Ministers of the Council of Europe
when it adopted in December 1982, and opened for signature in April 1983, the Sixth Protocol
to the Convention, which to date has been signed by sixteen, and ratified by thirteen,
Contracting States.
No State Party to the Convention can in that context, even if it has not yet ratified the Sixth
Protocol, be allowed to extradite any person if that person thereby incurs the risk of being put
to death in the requesting State.
Extraditing somebody in such circumstances would be repugnant to European standards of
justice, and contrary to the public order of Europe.
The recognition criteria for jus cogens norms are sufficiently vague to allow for the
list of human rights norms having this status to be permanently adapted. For instance,
the Inter-American Court of Human Rights has asserted that the general principle of
equality – understood as the obligation to implement human rights without discrimination
– has reached the status of a peremptory norm of international law, because of
its close link to human dignity and because of its universal recognition:
Inter-American Court of Human Rights, Advisory Opinion OC-18/03 of
17 September 2003, requested by the United Mexican States on the
Juridical Condition and Rights of the Undocumented Migrants:
97. The Court now proceeds to consider whether [the principle of equality and nondiscrimination]
is a jus cogens principle …
67 Human rights law as part of international law
100. In particular, when referring to the obligation to respect and ensure human rights,
regardless of which of those rights are recognized by each State in domestic or international
norms, the Court considers it clear that all States, as members of the international community,
must comply with these obligations without any discrimination; this is intrinsically related to the
right to equal protection before the law, which, in turn, derives ‘directly from the oneness of the
human family and is linked to the essential dignity of the individual’. The principle of equality
before the law and non-discrimination permeates every act of the powers of the State, in all
their manifestations, related to respecting and ensuring human rights. Indeed, this principle may
be considered peremptory under general international law, inasmuch as it applies to all States,
whether or not they are party to a specific international treaty, and gives rise to effects with
regard to third parties, including individuals. This implies that the State, both internationally and
in its domestic legal system, and by means of the acts of any of its powers or of third parties
who act under its tolerance, acquiescence or negligence, cannot behave in a way that is contrary
to the principle of equality and non-discrimination, to the detriment of a determined group of
persons.
101. Accordingly, this Court considers that the principle of equality before the law, equal
protection before the law and non-discrimination belongs to jus cogens, because the whole legal
structure of national and international public order rests on it and it is a fundamental principle
that permeates all laws. Nowadays, no legal act that is in conflict with this fundamental principle
is acceptable, and discriminatory treatment of any person, owing to gender, race, color, language,
religion or belief, political or other opinion, national, ethnic or social origin, nationality, age,
economic situation, property, civil status, birth or any other status is unacceptable. This principle
(equality and non-discrimination) forms part of general international law. At the existing
stage of the development of international law, the fundamental principle of equality and nondiscrimination
has entered the realm of jus cogens.
Uncertainty about the list of human rights which have acquired the status of peremptory
norms of international law is further increased by the tendency of a number of commentators
to base the inclusion of at least certain basic rights in the list of jus cogens
prescriptions on statements by international courts – particularly the International
Court of Justice – which do not mention jus cogens, although they do identify certain
obligations as having an erga omnes character. Thus, in the Barcelona Traction Case, the
International Court of Justice famously remarked in an obiter dictum that:
International Court of Justice, case concerning the Barcelona Traction, Light and
Power Company, Limited (Belgium v. Spain), Second phase (judgment), judgment
of 5 February 1970, I.C.J. Reports 1970, 3 at 32 (paras. 33–4):
An essential distinction should be drawn between the obligation of a State towards the
international community as a whole, and those arising vis-à-vis another State … By their very
nature, the former are the concern of all States. In view of the importance of the rights involved,
all states can be held to have a legal interest in their protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary international law, from the outlawing of
68 Emergence of human rights in international law
acts of agression, and of genocide, as also from the principles and rules concerning the basic
rights of the human person, including protection from slavery and racial discrimination. Some of
the corresponding rights of protection have entered into the body of general international law;
others are conferred by international instruments of a universal or quasi-universal character.
International Court of Justice, case concerning East Timor (Portugal v. Australia),
judgment of 30 June 1995, I.C.J. Reports 1995, 90 at 102 (para. 29):
Portugal’s assertion that the right of peoples to self-determination, as it evolved from the
Charter and from United Nations practice, has an erga omnes character, is irreproachable. The
principle of self-determination of peoples has been recognized by the United Nations Charter
and in the jurisprudence of the Court.
Although, as already mentioned, it seems beyond dispute that the rules referred to (if
not all the ‘principles and rules concerning the basic rights of the human person’, at
least the prohibition of aggression, of genocide, of slavery, of racial discrimination, and
of the denial of the right of peoples to self-determination) have now acquired the status
of jus cogens norms, these statements by the World Court in fact only pertain to their
erga omnes character, implying that they are obligations owed to all States and which
all States have a legal interest in seeking to enforce. But these notions are not interchangeable.
They refer to different consequences: while the jus cogens character of a
norm implies that it is hierarchically superior to any other norm of international law
which does not possess the same character, the erga omnes nature of an obligation simply
means that all States may be recognized as having a legal interest in the obligation
being complied with. And, while all peremptory norms of international law also are
owed to the community of States as a whole and thus are erga omnes, the reverse is not
true, as ‘not all erga omnes obligations are established by peremptory norms of general
international law’ (Report of the Study Group of the International Law Commission,
Fragmentation of International Law: Difficulties arising from the Diversification and
Expansion of International Law, cited above, para. 38).
A second obstacle to relying more systematically on jus cogens is that the consequences
attached to the classification of certain human rights among jus cogens norms
remain debated. Articles 53 and 64 of the Vienna Convention on the Law of Treaties
prescribe that treaties which contradict peremptory norms of international law are
void. But the Vienna Convention of course only refers to the consequences in the law of
treaties of such a conflict. Unless we accept to take these provisions as mere tautologies
(of the form ‘no derogation shall be permitted to a norm accepted and recognized by
the international community of States as a whole as a norm from which no derogation
is permitted’), the jus cogens nature of a norm must be seen as based on something else
than on the sense of the international community that no derogation is to be allowed
69 Human rights law as part of international law
to those norms; and therefore, other consequences may follow, from the recognition that
rules of that nature occupy a higher rank among the norms of international law – and
indeed, as will be seen in paragraph (c) below in this section, it is recognized that serious
breaches of peremptory norms of international law entail certain specific consequences
in the area of State responsibility. It has been stated, for instance, that human
rights prescriptions which figure among the jus cogens norms oblige States not only to
respect, protect and fulfil the rights in question, but also to take measures ensuring that
those rights will not be infringed, and that a State should be held in violation of its obligations
whenever such measures are not adopted, even if the violation does not materialize:
given the importance of the basic rights forming part of jus cogens, in other terms,
State responsibility results not only from actual breaches, but also from merely potential
breaches which result from State action or inaction. In addition, legal acts adopted by
States seeking to legitimize or authorize a violation of jus cogens – for example, amnesty
laws where acts of torture have been committed, or unilateral measures resulting in a
violation of the right to self-determination – should not be recognized or given effect
to by any other State. Third, where jus cogens violations are concerned, due both to the
erga omnes character of the corresponding obligations and to their universal condemnation,
the traditional restrictions to the extraterritorial jurisdiction of States may have
to be disregarded: in particular, any State should have jurisdiction to prosecute and
punish individuals responsible for jus cogens violations which are found on its territory,
even where the violations have been committed outside the national territory and present
no other connecting factor to the State exercising such extraterritorial jurisdiction.
The following cases discuss certain of these implications of jus cogens norms.
International Criminal Tribunal for former Yugoslavia (ICTY), Trial Chamber,
Prosecutor v. Anto Furundzija, judgment of 10 December 1998, paras. 147–57:
147. There exists today universal revulsion against torture: as a USA Court put it in Filartiga v.
Peña-Irala, ‘the torturer has become, like the pirate and the slave trader before him, hostis
humani generis, an enemy of all mankind’ (Filartiga v. Pena-Irala, 630 F. 2d 876 (2d Cir. 1980)).
This revulsion, as well as the importance States attach to the eradication of torture, has led to
the cluster of treaty and customary rules on torture acquiring a particularly high status in the
international normative system, a status similar to that of principles such as those prohibiting
genocide, slavery, racial discrimination, aggression, the acquisition of territory by force and the
forcible suppression of the right of peoples to self-determination. The prohibition against torture
exhibits three important features, which are probably held in common with the other general
principles protecting fundamental human rights.
(a) The prohibition even covers potential breaches
148. Firstly, given the importance that the international community attaches to the protection
of individuals from torture, the prohibition against torture is particularly stringent and sweeping.
States are obliged not only to prohibit and punish torture, but also to forestall its occurrence: it is
insufficient merely to intervene after the infliction of torture, when the physical or moral integrity
of human beings has already been irremediably harmed. Consequently, States are bound to put in
70 Emergence of human rights in international law
place all those measures that may pre-empt the perpetration of torture. As was authoritatively
held by the European Court of Human Rights in Soering [where the Court stated, in its Soering
v. United Kingdom judgment of 7 July 1989: ‘It is not normally for the Convention institutions
to pronounce on the existence or otherwise of potential violations of the Convention. However,
where an applicant claims that a decision to extradite him, if implemented, be contrary to
Article 3 [prohibiting torture and inhuman or degrading treatment] by reason of its foreseeable
consequences in the requesting country, a departure from this principle is necessary, in view of the
serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness of
the safeguard provided by that Article’ (para. 90)], international law intends to bar not only actual
breaches but also potential breaches of the prohibition against torture (as well as any inhuman
and degrading treatment). It follows that international rules prohibit not only torture but also (i)
the failure to adopt the national measures necessary for implementing the prohibition and (ii) the
maintenance in force or passage of laws which are contrary to the prohibition.
149. Let us consider these two aspects separately. Normally States, when they undertake
international obligations through treaties or customary rules, adopt all the legislative and
administrative measures necessary for implementing such obligations. However, subject to
obvious exceptions, failure to pass the required implementing legislation has only a potential
effect: the wrongful fact occurs only when administrative or judicial measures are taken which,
being contrary to international rules due to the lack of implementing legislation, generate State
responsibility. By contrast, in the case of torture, the requirement that States expeditiously
institute national implementing measures is an integral part of the international obligation to
prohibit this practice. Consequently, States must immediately set in motion all those procedures
and measures that may make it possible, within their municipal legal system, to forestall any act
of torture or expeditiously put an end to any torture that is occurring.
150. Another facet of the same legal effect must be emphasised. Normally, the maintenance
or passage of national legislation inconsistent with international rules generates State
responsibility and consequently gives rise to a corresponding claim for cessation and reparation
(lato sensu) only when such legislation is concretely applied [see Mariposa Development
Company and others, Decision, US-Panama General Claims Commission, 27 June 1933, UN
Reports of International Arbitral Awards, Vol. VI, pp. 340–1; German Settlers in Upper Silesia,
Advisory Opinion of 10 September 1923, PCIJ, Series B, No. 6, pp. 19–20, 35–8; the arbitral
award of 1922 in the Affaire de l’impôt sur les benefices de guerre, in UN Reports of International
Arbitral Awards, vol. I, pp. 302–5]. By contrast, in the case of torture, the mere fact of keeping
in force or passing legislation contrary to the international prohibition of torture generates
international State responsibility. The value of freedom from torture is so great that it becomes
imperative to preclude any national legislative act authorising or condoning torture or at any
rate capable of bringing about this effect.
(b) The prohibition imposes obligations erga omnes
151. Furthermore, the prohibition of torture imposes upon States obligations erga omnes, that
is, obligations owed towards all the other members of the international community, each of
which then has a correlative right. In addition, the violation of such an obligation simultaneously
constitutes a breach of the correlative right of all members of the international community and
gives rise to a claim for compliance accruing to each and every member, which then has the right
to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued.
71 Human rights law as part of international law
152. Where there exist international bodies charged with impartially monitoring compliance
with treaty provisions on torture, these bodies enjoy priority over individual States in
establishing whether a certain State has taken all the necessary measures to prevent and punish
torture and, if they have not, in calling upon that State to fulfil its international obligations. The
existence of such international mechanisms makes it possible for compliance with international
law to be ensured in a neutral and impartial manner.
(c) The prohibition has acquired the status of jus cogens
153. While the erga omnes nature just mentioned appertains to the area of international
enforcement (lato sensu), the other major feature of the principle proscribing torture relates to
the hierarchy of rules in the international normative order. Because of the importance of the
values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a
norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’
customary rules [see also the General Comment No. 24: Issues relating to Reservations made upon
Ratification or Accession to the Covenant [on Civil and Political Rights] or the Optional Protocol
thereto, or in relation to Declarations under Article 41 of the Covenant, issued on 4 November
1994 by the United Nations Human Rights Committee, para. 10 (‘the prohibition of torture has
the status of a peremptory norm’). In 1986, the United Nations Special Rapporteur, P. Kooijmans,
in his report to the Commission on Human Rights, took a similar view (E/CN. 4/1986/15, p. 1,
para 3). That the international proscription of torture has turned into jus cogens has been among
others held by US courts in Siderman de Blake v. Republic of Argentina, 965 F. 2d 699 (9th Cir.
1992), cert. denied, Republic of Argentina v. de Blake, 507 U.S. 1017, 123L. Ed. 2d 444, 113 S. Ct.
1812 (1993); Committee of US Citizens Living in Nicaragua v. Reagan, 859 F. 2d 929, 949 (D.C.
Cir. 1988); Xuncax et al. v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995); Cabiri v. Assasie-Gyimah,
921 F. Supp. 1189, 1196 (S.D.N.Y. 1996); and In re Estate of Ferdinand E. Marcos, 978 F. 2d 493
(9th Cir. 1992), cert. denied, Marcos Manto v. Thajane, 508 U.S. 972, 125L. Ed. 2d 661, 113 S. Ct.
2960 (1993)]. The most conspicuous consequence of this higher rank is that the principle at issue
cannot be derogated from by States through international treaties or local or special customs or
even general customary rules not endowed with the same normative force.
154. Clearly, the jus cogens nature of the prohibition against torture articulates the notion
that the prohibition has now become one of the most fundamental standards of the international
community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it
signals to all members of the international community and the individuals over whom they wield
authority that the prohibition of torture is an absolute value from which nobody must deviate.
155. The fact that torture is prohibited by a peremptory norm of international law has other
effects at the inter-state and individual levels. At the inter-state level, it serves to internationally
de-legitimise any legislative, administrative or judicial act authorising torture. It would be
senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition
against torture, treaties or customary rules providing for torture would be null and void ab
initio [Art. 53 Vienna Convention on the Law of Treaties, 23 May 1969], and then be unmindful
of a State say, taking national measures authorising or condoning torture or absolving its
perpetrators through an amnesty law. [As for amnesty laws, it bears mentioning that in 1994
the United Nations Human Rights Committee, in its General Comment No. 20 on Art. 7 of the
ICCPR stated the following: ‘The Committee has noted that some States have granted amnesty
in respect of acts of torture. Amnesties are generally incompatible with the duty of States to
72 Emergence of human rights in international law
investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to
ensure that they do not occur in the future. States may not deprive individuals of the right to
an effective remedy, including compensation and such full rehabilitation as may be possible.’]
If such a situation were to arise, the national measures, violating the general principle and any
relevant treaty provision, would produce the legal effects discussed above and in addition would
not be accorded international legal recognition. Proceedings could be initiated by potential
victims if they had locus standi before a competent international or national judicial body with
a view to asking it to hold the national measure to be internationally unlawful; or the victim
could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia
to disregard the legal value of the national authorising act. What is even more important is that
perpetrators of torture acting upon or benefiting from those national measures may nevertheless
be held criminally responsible for torture, whether in a foreign State, or in their own State
under a subsequent regime. In short, in spite of possible national authorisation by legislative
or judicial bodies to violate the principle banning torture, individuals remain bound to comply
with that principle. As the International Military Tribunal at Nuremberg put it: ‘individuals have
international duties which transcend the national obligations of obedience imposed by the
individual State’ [I.M.T., 1 (1946), p. 223].
156. Furthermore, at the individual level, that is, that of criminal liability, it would seem that
one of the consequences of the jus cogens character bestowed by the international community
upon the prohibition of torture is that every State is entitled to investigate, prosecute and
punish or extradite individuals accused of torture, who are present in a territory under its
jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture to such an
extent as to restrict the normally unfettered treaty-making power of sovereign States, and on
the other hand bar States from prosecuting and punishing those torturers who have engaged
in this odious practice abroad. This legal basis for States’ universal jurisdiction over torture
bears out and strengthens the legal foundation for such jurisdiction found by other courts
in the inherently universal character of the crime. It has been held that international crimes
being universally condemned wherever they occur, every State has the right to prosecute and
punish the authors of such crimes. As stated in general terms by the Supreme Court of Israel in
Eichmann, and echoed by a USA court in Demjanjuk, ‘it is the universal character of the crimes in
question i.e. international crimes which vests in every State the authority to try and punish those
who participated in their commission’ [Attorney General of the Government of Israel v. Adolf
Eichmann, 36 I.L.R. 298; In the Matter of the Extradition of John Demjanjuk, 612].
157. It would seem that other consequences include the fact that torture may not be covered
by a statute of limitations, and must not be excluded from extradition under any political offence
exemption.
House of Lords (United Kingdom), R. v. Bow Street Metropolitan Stipendiary
Magistrate and others, ex parte Pinochet Ugarte (No. 3), judgment of
24 March 1999 [2000] A.C. 147:
[In this case, the House of Lords held that the former President of Chile, Senator Pinochet, could
be extradited to Spain in respect of charges which concerned conduct that was criminal in the
73 Human rights law as part of international law
United Kingdom at the time when it was allegedly committed. The majority of the Law Lords
considered that extraterritorial torture did not become a crime in the United Kingdom until
section 134 of the Criminal Justice Act 1988 came into effect. As regards the crimes of torture
committed outside the United Kingdom after that date, the argument was submitted by the
defence of Pinochet that, since under Part II of the State Immunity Act 1978 a former head of
State enjoyed immunity from the criminal jurisdiction of the United Kingdom for acts done in
his official capacity, Mr Pinochet should benefit such immunity. The Law Lords rejected this
argument. Instead, they took the view that torture was an international crime and prohibited by
jus cogens, and therefore such immunity could not be invoked.]
Lord Browne-Wilkinson (leading judgment) (excerpts):
In general, a state only exercises criminal jurisdiction over offences which occur within its
geographical boundaries. If a person who is alleged to have committed a crime in Spain is found
in the United Kingdom, Spain can apply to the United Kingdom to extradite him to Spain. The
power to extradite from the United Kingdom for an ‘extradition crime’ is now contained in the
Extradition Act 1989. That Act defines what constitutes an ‘extradition crime’. For the purposes
of the present case, the most important requirement is that the conduct complained of must
constitute a crime under the law both of Spain and of the United Kingdom. This is known as the
double criminality rule.
Since the Nazi atrocities and the Nuremberg trials, international law has recognised a
number of offences as being international crimes. Individual states have taken jurisdiction to
try some international crimes even in cases where such crimes were not committed within
the geographical boundaries of such states. The most important of such international crimes
for present purposes is torture which is regulated by the International Convention Against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. The obligations
placed on the United Kingdom by that Convention … were incorporated into the law of the
United Kingdom by section 134 of the Criminal Justice Act 1988. That Act came into force on
29 September 1988. Section 134 created a new crime under United Kingdom law, the crime of
torture. As required by the Torture Convention ‘all’ torture wherever committed world-wide
was made criminal under United Kingdom law and triable in the United Kingdom. No one has
suggested that before section 134 came into effect torture committed outside the United
Kingdom was a crime under United Kingdom law. Nor is it suggested that section 134 was
retrospective so as to make torture committed outside the United Kingdom before 29 September
1988 a United Kingdom crime. Since torture outside the United Kingdom was not a crime under
UK law until 29 September 1988, the principle of double criminality which requires an Act to be
a crime under both the law of Spain and of the United Kingdom cannot be satisfied in relation to
conduct before that date if the principle of double criminality requires the conduct to be criminal
under United Kingdom law at the date it was committed …
[In] my view only a limited number of the charges relied upon to extradite Senator Pinochet
constitute extradition crimes since most of the conduct relied upon occurred long before
1988. In particular, I do not consider that torture committed outside the United Kingdom
before 29 September 1988 was a crime under UK law. It follows that the main question
discussed at the earlier stages of this case – is a former head of state entitled to sovereign
74 Emergence of human rights in international law
immunity from arrest or prosecution in the UK for acts of torture – applies to far fewer
charges. But the question of state immunity remains a point of crucial importance since, in
my view, there is certain conduct of Senator Pinochet (albeit a small amount) which does
constitute an extradition crime and would enable the Home Secretary (if he thought fit)
to extradite Senator Pinochet to Spain unless he is entitled to state immunity. Accordingly,
having identified which of the crimes alleged is an extradition crime, I will then go on
to consider whether Senator Pinochet is entitled to immunity in respect of those
crimes …
I must … consider whether, in relation to these two surviving categories of charge [torture
and conspiracy to torture after 29 September 1988], Senator Pinochet enjoys sovereign
immunity. But first it is necessary to consider the modern law of torture.
Torture
Apart from the law of piracy, the concept of personal liability under international law
for international crimes is of comparatively modern growth. The traditional subjects of
international law are states not human beings. But consequent upon the war crime trials after
the 1939–45 World War, the international community came to recognise that there could be
criminal liability under international law for a class of crimes such as war crimes and crimes
against humanity. Although there may be legitimate doubts as to the legality of the Charter
of the Nuremberg Tribunal, in my judgment those doubts were stilled by the Affirmation of
the Principles of International Law recognised by the Charter of Nuremberg Tribunal adopted
by the United Nations General Assembly on 11 December 1946. That Affirmation affirmed the
principles of international law recognised by the Charter of the Nuremberg Tribunal and the
judgment of the Tribunal and directed the Committee on the codification of international law
to treat as a matter of primary importance plans for the formulation of the principles
recognised in the Charter of the Nuremberg Tribunal. At least from that date onwards
the concept of personal liability for a crime in international law must have been part of
international law. In the early years state torture was one of the elements of a war crime. In
consequence torture, and various other crimes against humanity, were linked to war or at least
to hostilities of some kind. But in the course of time this linkage with war fell away and torture,
divorced from war or hostilities, became an international crime on its own: see Oppenheim’s
International Law (Jennings and Watts edition) vol. 1, 996; note 6 to Article 18 of the I.L.C.
Draft Code of Crimes Against Peace; Prosecutor v. Furundzija Tribunal for Former Yugoslavia,
Case No. 17-95-17/1-T. Ever since 1945, torture on a large scale has featured as one of the
crimes against humanity: see, for example, UN General Assembly Resolutions 3059, 3452 and
3453 passed in 1973 and 1975; Statutes of the International Criminal Tribunals for former
Yugoslavia (Article 5) and Rwanda (Article 3).
Moreover, the Republic of Chile accepted before your Lordships that the international law
prohibiting torture has the character of jus cogens or a peremptory norm, i.e. one of those rules
of international law which have a particular status [quoting from Furundzija].
The jus cogens nature of the international crime of torture justifies states in taking universal
jurisdiction over torture wherever committed. International law provides that offences jus cogens
may be punished by any state because the offenders are ‘common enemies of all mankind and
all nations have an equal interest in their apprehension and prosecution’: Demjanjuk v. Petrovsky
(1985) 603 F. Supp. 1468; 776 F. 2d. 571.
75 Human rights law as part of international law
… [L]ong before the Torture Convention of 1984 state torture was an international crime in
the highest sense. But there was no tribunal or court to punish international crimes of torture.
Local courts could take jurisdiction: see Demjanjuk (supra); Attorney General of Israel v. Eichmann
(1962) 36 I.L.R.S. But the objective was to ensure a general jurisdiction so that the torturer was
not safe wherever he went. For example, in this case it is alleged that during the Pinochet regime
torture was an official, although unacknowledged, weapon of government and that, when the
regime was about to end, it passed legislation designed to afford an amnesty to those who had
engaged in institutionalised torture. If these allegations are true, the fact that the local court
had jurisdiction to deal with the international crime of torture was nothing to the point so long
as the totalitarian regime remained in power: a totalitarian regime will not permit adjudication
by its own courts on its own shortcomings. Hence the demand for some international machinery
to repress state torture which is not dependent upon the local courts where the torture was
committed. In the event, over 110 states (including Chile, Spain and the United Kingdom) became
state parties to the Torture Convention. But it is far from clear that none of them practised
state torture. What was needed therefore was an international system which could punish those
who were guilty of torture and which did not permit the evasion of punishment by the torturer
moving from one state to another. The Torture Convention was agreed not in order to create
an international crime which had not previously existed but to provide an international system
under which the international criminal – the torturer – could find no safe haven. Burgers and
Danelius (respectively the chairman of the United Nations Working Group on the 1984 Torture
Convention and the draftsmen of its first draft) say, at p. 131, that it was ‘an essential purpose
[of the Convention] to ensure that a torturer does not escape the consequences of his act by
going to another country’ [J. Herman Burgers and Hans Danelius, The United Nations Convention
against Torture. A Handbook on the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Leiden: Martinus Nijhoff, 1988)].
The Torture Convention
Article 1 of the Convention defines torture as the intentional infliction of severe pain and of
suffering with a view to achieving a wide range of purposes ‘when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiesence of a public official or other
person acting in an official capacity.’ Article 2(1) requires each state party to prohibit torture
on territory within its own jurisdiction and Article 4 requires each state party to ensure that ‘all’
acts of torture are offences under its criminal law. Article 2(3) outlaws any defence of superior
orders. Under Article 5(1) each state party has to establish its jurisdiction over torture (a) when
committed within territory under its jurisdiction (b) when the alleged offender is a national of
that state, and (c) in certain circumstances, when the victim is a national of that state. Under
Article 5(2) a state party has to take jurisdiction over any alleged offender who is found within
its territory. Article 6 contains provisions for a state in whose territory an alleged torturer is
found to detain him, inquire into the position and notify the states referred to in Article 5(1) and
to indicate whether it intends to exercise jurisdiction. Under Article 7 the state in whose territory
the alleged torturer is found shall, if he is not extradited to any of the states mentioned in Article
5(1), submit him to its authorities for the purpose of prosecution. Under Article 8(1) torture is
to be treated as an extraditable offence and under Article 8(4) torture shall, for the purposes of
extradition, be treated as having been committed not only in the place where it occurred but
also in the state mentioned in Article 5(1) …
76 Emergence of human rights in international law
Universal jurisdiction
There was considerable argument before your Lordships concerning the extent of the jurisdiction
to prosecute torturers conferred on states other than those mentioned in Article 5(1). I do not
find it necessary to seek an answer to all the points raised. It is enough that it is clear that in all
circumstances, if the Article 5(1) states do not choose to seek extradition or to prosecute the
offender, other states must do so. The purpose of the Convention was to introduce the principle aut
dedere aut punire – either you extradite or you punish: Burgers and Danelius p. 131. Throughout the
negotiation of the Convention certain countries wished to make the exercise of jurisdiction under
Article 5(2) dependent upon the state assuming jurisdiction having refused extradition to an Article
5(1) state. However, at a session in 1984 all objections to the principle of aut dedere aut punire were
withdrawn. ‘The inclusion of universal jurisdiction in the draft Convention was no longer opposed
by any delegation’: Working Group on the Draft Convention U.N. Doc. E/CN. 4/1984/72, para. 26.
If there is no prosecution by, or extradition to, an Article 5(1) state, the state where the alleged
offender is found (which will have already taken him into custody under Article 6) must exercise the
jurisdiction under Article 5(2) by prosecuting him under Article 7(1).
I gather the following important points from the Torture Convention:
(1) Torture within the meaning of the Convention can only be committed by ‘a public official or
other person acting in an official capacity’, but these words include a head of state. A single
act of official torture is ‘torture’ within the Convention;
(2) Superior orders provide no defence;
(3) If the states with the most obvious jurisdiction (the Article 5(1) states) do not seek to
extradite, the state where the alleged torturer is found must prosecute or, apparently,
extradite to another country, i.e. there is universal jurisdiction.
(4) There is no express provision dealing with state immunity of heads of state, ambassadors or
other officials.
(5) Since Chile, Spain and the United Kingdom are all parties to the Convention, they are bound
under treaty by its provisions whether or not such provisions would apply in the absence of
treaty obligation. Chile ratified the Convention with effect from 30 October 1988 and the
United Kingdom with effect from 8 December 1988.
State immunity
This is the point around which most of the argument turned. It is of considerable general
importance internationally since, if Senator Pinochet is not entitled to immunity in relation to
the acts of torture alleged to have occurred after 29 September 1988, it will be the first time so
far as counsel have discovered when a local domestic court has refused to afford immunity to
a head of state or former head of state on the grounds that there can be no immunity against
prosecution for certain international crimes.
Given the importance of the point, it is surprising how narrow is the area of dispute. There is
general agreement between the parties as to the rules of statutory immunity and the rationale
which underlies them. The issue is whether international law grants state immunity in relation
to the international crime of torture and, if so, whether the Republic of Chile is entitled to claim
such immunity even though Chile, Spain and the United Kingdom are all parties to the Torture
Convention and therefore ‘contractually’ bound to give effect to its provisions from 8 December
1988 at the latest.
77 Human rights law as part of international law
It is a basic principle of international law that one sovereign state (the forum state) does not
adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity
from the processes of the forum state. This immunity extends to both criminal and civil liability.
State immunity probably grew from the historical immunity of the person of the monarch. In any
event, such personal immunity of the head of state persists to the present day: the head of state
is entitled to the same immunity as the state itself. The diplomatic representative of the foreign
state in the forum state is also afforded the same immunity in recognition of the dignity of the
state which he represents. This immunity enjoyed by a head of state in power and an ambassador
in post is a complete immunity attaching to the person of the head of state or ambassador and
rendering him immune from all actions or prosecutions whether or not they relate to matters
done for the benefit of the state. Such immunity is said to be granted ratione personae.
What then when … the head of state is deposed? … In my judgment at common law a former
head of state … loses immunity ratione personae on ceasing to be head of state: see Watts,
‘The Legal Position in International Law of Heads of States, Heads of Government and Foreign
Ministers’ [Recueil des cours, 247 (1994–III), 40, at 88] p. 88 and the cases there cited. He can
be sued on his private obligations: Ex-King Farouk of Egypt v. Christian Dior (1957) 24 I.L.R. 228;
Jimenez v. Aristeguieta (1962) 311 F. 2d 547. As ex head of state he cannot be sued in respect of
acts performed whilst head of state in his public capacity: Hatch v. Baez [1876] 7 Hun. 596. Thus,
at common law, … the former head of state … enjoy[s] immunity for acts done in performance of
[his] functions whilst in office.
… Accordingly, in my judgment, Senator Pinochet as former head of state enjoys immunity
ratione materiae in relation to acts done by him as head of state as part of his official functions
as head of state.
The question then which has to be answered is whether the alleged organisation of state
torture by Senator Pinochet (if proved) would constitute an act committed by Senator Pinochet
as part of his official functions as head of state. It is not enough to say that it cannot be part of
the functions of the head of state to commit a crime. Actions which are criminal under the local
law can still have been done officially and therefore give rise to immunity ratione materiae. The
case needs to be analysed more closely.
Can it be said that the commission of a crime which is an international crime against
humanity and jus cogens is an act done in an official capacity on behalf of the state? I believe
there to be strong ground for saying that the implementation of torture as defined by the
Torture Convention cannot be a state function … I have doubts whether, before the coming
into force of the Torture Convention, the existence of the international crime of torture as jus
cogens was enough to justify the conclusion that the organisation of state torture could not
rank for immunity purposes as performance of an official function. At that stage there was
no international tribunal to punish torture and no general jurisdiction to permit or require its
punishment in domestic courts. Not until there was some form of universal jurisdiction for
the punishment of the crime of torture could it really be talked about as a fully constituted
international crime. But in my judgment the Torture Convention did provide what was missing: a
worldwide universal jurisdiction. Further, it required all member states to ban and outlaw
torture: Article 2. How can it be for international law purposes an official function to do
something which international law itself prohibits and criminalises? Thirdly, an essential feature
of the international crime of torture is that it must be committed ‘by or with the acquiesence
78 Emergence of human rights in international law
of a public official or other person acting in an official capacity’. As a result all defendants in
torture cases will be state officials. Yet, if the former head of state has immunity, the man most
responsible will escape liability while his inferiors (the chiefs of police, junior army officers) who
carried out his orders will be liable. I find it impossible to accept that this was the intention.
Finally, and to my mind decisively, if the implementation of a torture regime is a public
function giving rise to immunity ratione materiae, this produces bizarre results. Immunity
ratione materiae applies not only to ex-heads of state and ex-ambassadors but to all state
officials who have been involved in carrying out the functions of the state. Such immunity is
necessary in order to prevent state immunity being circumvented by prosecuting or suing the
official who, for example, actually carried out the torture when a claim against the head of state
would be precluded by the doctrine of immunity. If that applied to the present case, and if the
implementation of the torture regime is to be treated as official business sufficient to found
an immunity for the former head of state, it must also be official business sufficient to justify
immunity for his inferiors who actually did the torturing. Under the Convention the international
crime of torture can only be committed by an official or someone in an official capacity. They
would all be entitled to immunity. It would follow that there can be no case outside Chile in
which a successful prosecution for torture can be brought unless the State of Chile is prepared
to waive its right to its officials immunity. Therefore the whole elaborate structure of universal
jurisdiction over torture committed by officials is rendered abortive and one of the main
objectives of the Torture Convention – to provide a system under which there is no safe haven for
torturers – will have been frustrated. In my judgment all these factors together demonstrate that
the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the
Torture Convention.
For these reasons in my judgment if, as alleged, Senator Pinochet organised and authorised
torture after 8 December 1988, he was not acting in any capacity which gives rise to immunity
ratione materiae because such actions were contrary to international law, Chile had agreed to
outlaw such conduct and Chile had agreed with the other parties to the Torture Convention that
all signatory states should have jurisdiction to try official torture (as defined in the Convention)
even if such torture were committed in Chile …
For these reasons, I would allow the appeal so as to permit the extradition proceedings to
proceed on the allegation that torture in pursuance of a conspiracy to commit torture, including
the single act of torture which is alleged in charge 30, was being committed by Senator Pinochet
after 8 December 1988 when he lost his immunity.
There exists a large literature surrounding the Pinochet case, including a number of
important book-length publications (see, e.g. D. M. Ackerman, Pinochet Extradition
Case: Selected Legal Issues (Washington DC: Congressional Research Service, 1999);
H. Ahlbrecht and K. Ambos (eds.), Der Fall Pinochet (S). Auslieferung Wegen
Staatsverstärkter Kriminalität? (Baden-Baden: Nomos Verlagsgesellschaft, 1999);
S. Brett (ed.), When Tyrants Tremble: the Pinochet Case (New York: Human Rights
Watch, October 1999); R. Brody and M. Ratner (eds.), The Pinochet Papers: the Case of
Augusto Pinochet in Spain and Britain (The Hague: Kluwer Law International, 2000);
H. Fischer, C. Kress, and S. R. Luder (eds.), International and National Prosecution of
Crimes under International Law: Current Developments (Berlin: Berlin Verlag Arno
79 Human rights law as part of international law
Spitz, 2001); M. Lattimer and P. Sands (eds.), Justice for Crimes against Humanity
(Oxford: Hart Publishing, 2003); S. Macedo, Universal Jurisdiction: National Courts and
the Prosecution of Serious Crimes under International Law (Philadelphia: University of
Pennsylvania Press, 2004)). The case was widely seen as heralding a new era in international
human rights, one in which national courts would be assuming new and farreaching
responsibilities in the prosecution of human rights violations, by relying both
on the notion that human rights, due to their jus cogens status, could justify setting
aside conflicting norms of international law that impose obstacles to such prosecution,
and on the tool of extra-territorial (or in some cases universal) jurisdiction, allowing
prosecutions against non-nationals for serious violations of international law committed
abroad.
The question of the relationship between – on the one hand – the prosecution of
human rights violations or the filing of civil claims by victims of such violations,
and – on the other hand – international rules relating to immunity, was also discussed
in other contexts. In the following case, the Grand Chamber of the European Court
of Human Rights arrives at the conclusion that, although the prohibition of torture
is of overriding importance and may be considered to have acquired the status of jus
cogens, it does not follow that foreign States are not entitled to immunity in respect
of civil claims for damages for alleged torture committed outside the forum State. The
decision was adopted by a very narrow margin, nine votes against eight. Among the
eight judges who dissented were a number of specialists of international law, who considered
that the reasoning of the majority did not effectively recognize the primacy of
jus cogens on any other norms of international law.
European Court of Human Rights (GC), Al-Adsani v. United Kingdom
(Appl. No. 35763/97), judgment of 21 November 2001:
[The applicant, a dual British/Kuwaiti national, went to Kuwait in 1991 as a pilot to serve
as a member of the Kuwaiti Air Force and, after the Iraqi invasion, he remained behind as
a member of the resistance movement. During that period he came into possession of sex
videotapes involving a Sheikh related to the Emir of Kuwait. By some means these tapes entered
general circulation, for which the applicant was held responsible by the Sheikh. After the Iraqi
armed forces were expelled from Kuwait, in May 1991, the Sheikh and others on two separate
occasions took him at gunpoint in a government car and he was beaten and tortured. On 17
May 1991, the applicant returned to the United Kingdom, where he spent six weeks in a hospital
recovering from the various ill-treatments inflicted upon him. On 29 August 1992 the applicant
instituted civil proceedings in England for compensation against the Sheikh and the State of
Kuwait in respect of injury to his physical and mental health caused by torture in Kuwait in
May 1991 and threats against his life and well-being made after his return to the United
Kingdom on 17 May 1991. The action failed, however, because as a sovereign foreign State,
Kuwait could claim immunity of jurisdiction under the State Immunity Act 1978. Article 15
of the 1972 European Convention on State Immunity (Basle Convention), to which the United
Kingdom is a party, provides that a Contracting State shall be entitled to immunity if the
80 Emergence of human rights in international law
proceedings do not fall within one of the exceptions exceptions stated in the Convention;
Article 11 of the Basle Convention excludes State immunity for proceedings which relate to
redress for injury to the person or damage to tangible property, if the facts which occasioned the
injury or damage occurred in the territory of the State of forum, and if the author of the injury
or damage was present in that territory at the time when those facts occurred: this exception
is replicated in section 5 of the 1978 State Immunity Act. In its judgment of 21 November 2001,
the majority of the Court takes the view that a) any positive obligation imposed on the basis
of Article 3 ECHR, either to prevent violations of this provision or to provide a remedy when a
violation does take place, does not extend to such violations which may have been committed
outside the jurisdiction of the United Kingdom; and that b) the right of access to a court (under
Art. 6 ECHR) may be limited where this is justified by the need to grant sovereign immunity
to a State in civil proceedings, in accordance with the generally recognized rules of public
international law on State immunity.]
[The alleged violation of Article 3 of the Convention (prohibiting torture and inhuman or
degrading treatments or punishments)]
40. The applicant does not contend that the alleged torture took place within the jurisdiction of
the United Kingdom or that the United Kingdom authorities had any causal connection with its
occurrence. In these circumstances, it cannot be said that the High Contracting Party was under
a duty to provide a civil remedy to the applicant in respect of torture allegedly carried out by
the Kuwaiti authorities.
41. It follows that there has been no violation of Article 3 of the Convention in the present
case.
[The alleged violation of Article 6 of the Convention (right to a fair trial)]
53. The right of access to a court [implicit in the guarantees of Art. 6 of the Convention (right to a
fair trial): see the Golder v. United Kingdom judgment of 21 February 1975, Series A No. 18, 13–18,
§§28–36] is not [...] absolute, but may be subject to limitations; these are permitted by implication
since the right of access by its very nature calls for regulation by the State. In this respect, the
Contracting States enjoy a certain margin of appreciation, although the final decision as to the
observance of the Convention’s requirements rests with the Court. It must be satisfied that the
limitations applied do not restrict or reduce the access left to the individual in such a way or to
such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be
compatible with Article 6 §1 if it does not pursue a legitimate aim and if there is no reasonable
relationship of proportionality between the means employed and the aim sought to be achieved
(see Waite and Kennedy v. Germany [GC], No. 26083/94, §59, ECHR 1999–I).
54. The Court must first examine whether the limitation pursued a legitimate aim. It notes
in this connection that sovereign immunity is a concept of international law, developed out of
the principle par in parem non habet imperium, by virtue of which one State shall not be subject
to the jurisdiction of another State. The Court considers that the grant of sovereign immunity
to a State in civil proceedings pursues the legitimate aim of complying with international law
to promote comity and good relations between States through the respect of another State’s
sovereignty.
55. The Court must next assess whether the restriction was proportionate to the aim
pursued. It reiterates that the Convention has to be interpreted in the light of the rules set out
81 Human rights law as part of international law
in the Vienna Convention on the Law of Treaties of 23 May 1969, and that Article 31 §3 (c)
of that treaty indicates that account is to be taken of ‘any relevant rules of international law
applicable in the relations between the parties’. The Convention, including Article 6, cannot be
interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a
human rights treaty, and it must also take the relevant rules of international law into account
(see, mutatis mutandis, Loizidou v. Turkey (merits), judgment of 18 December 1996, Reports
1996–VI, 2231, §43). The Convention should so far as possible be interpreted in harmony with
other rules of international law of which it forms part, including those relating to the grant of
State immunity.
56. It follows that measures taken by a High Contracting Party which reflect generally
recognised rules of public international law on State immunity cannot in principle be regarded as
imposing a disproportionate restriction on the right of access to a court as embodied in Article
6 §1. Just as the right of access to a court is an inherent part of the fair trial guarantee in that
Article, so some restrictions on access must likewise be regarded as inherent, an example being
those limitations generally accepted by the community of nations as part of the doctrine of State
immunity.
57. The Court notes that the 1978 Act, applied by the English courts so as to afford immunity
to Kuwait, complies with the relevant provisions of the 1972 Basle Convention, which,
while placing a number of limitations on the scope of State immunity as it was traditionally
understood, preserves it in respect of civil proceedings for damages for personal injury unless
the injury was caused in the territory of the forum State. Except insofar as it affects claims for
damages for torture, the applicant does not deny that the above provision reflects a generally
accepted rule of international law. He asserts, however, that his claim related to torture,
and contends that the prohibition of torture has acquired the status of a jus cogens norm in
international law, taking precedence over treaty law and other rules of international law.
58. Following the decision to uphold Kuwait’s claim to immunity, the domestic courts were
never required to examine evidence relating to the applicant’s allegations, which have, therefore,
never been proved. However, for the purposes of the present judgment, the Court accepts
that the ill-treatment alleged by the applicant against Kuwait in his pleadings in the domestic
courts, namely, repeated beatings by prison guards over a period of several days with the aim of
extracting a confession …, can properly be categorised as torture within the meaning of Article 3
of the Convention …
59. Within the Convention system it has long been recognised that the right under Article 3
not to be subjected to torture or to inhuman or degrading treatment or punishment enshrines
one of the fundamental values of democratic society. It is an absolute right, permitting of no
exception in any circumstances … Of all the categories of ill-treatment prohibited by Article
3, ‘torture’ has a special stigma, attaching only to deliberate inhuman treatment causing very
serious and cruel suffering …
60. Other areas of public international law bear witness to a growing recognition of the
overriding importance of the prohibition of torture. Thus, torture is forbidden by Article 5 of the
Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and
Political Rights. The United Nations Convention against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment requires, by Article 2, that each State Party should take
effective legislative, administrative, judicial or other measures to prevent torture in any territory
82 Emergence of human rights in international law
under its jurisdiction, and, by Article 4, that all acts of torture should be made offences under the
State Party’s criminal law … In addition, there have been a number of judicial statements to the
effect that the prohibition of torture has attained the status of a peremptory norm or jus
cogens. For example, in its judgment of 10 December 1998 in Furundzija …, the International
Criminal Tribunal for the Former Yugoslavia referred, inter alia, to the foregoing body of
treaty rules and held that ‘[b]ecause of the importance of the values it protects, this principle
[proscribing torture] has evolved into a peremptory norm or jus cogens, that is, a norm
that enjoys a higher rank in the international hierarchy than treaty law and even “ordinary”
customary rules’. Similar statements have been made in other cases before that tribunal and in
national courts, including the House of Lords in the case of ex parte Pinochet (No. 3) …
61. While the Court accepts, on the basis of these authorities, that the prohibition of torture
has achieved the status of a peremptory norm in international law, it observes that the present
case concerns not, as in Furundzija and Pinochet, the criminal liability of an individual for
alleged acts of torture, but the immunity of a State in a civil suit for damages in respect of
acts of torture within the territory of that State. Notwithstanding the special character of the
prohibition of torture in international law, the Court is unable to discern in the international
instruments, judicial authorities or other materials before it any firm basis for concluding that,
as a matter of international law, a State no longer enjoys immunity from civil suit in the
courts of another State where acts of torture are alleged. In particular, the Court observes that
none of the primary international instruments referred to (Article 5 of the Universal Declaration
of Human Rights, Article 7 of the International Covenant on Civil and Political Rights and
Articles 2 and 4 of the UN Convention) relates to civil proceedings or to State immunity.
62. It is true that in its Report on Jurisdictional Immunities of States and their Property …
the working group of the International Law Commission noted, as a recent development in
State practice and legislation on the subject of immunities of States, the argument increasingly
put forward that immunity should be denied in the case of death or personal injury resulting
from acts of a State in violation of human rights norms having the character of jus cogens,
particularly the prohibition on torture. However, as the working group itself acknowledged, while
national courts had in some cases shown some sympathy for the argument that States were not
entitled to plead immunity where there had been a violation of human rights norms with the
character of jus cogens, in most cases (including those cited by the applicant in the domestic
proceedings and before the Court) the plea of sovereign immunity had succeeded.
63. The ILC working group went on to note developments, since those decisions, in support of
the argument that a State may not plead immunity in respect of human rights violations: first,
the exception to immunity adopted by the United States in the amendment to the Foreign
Sovereign Immunities Act (FSIA) which had been applied by the United States courts in two
cases [this exception, introduced by section 221 of the Anti-Terrorism and Effective Death
Penalty Act of 1996, applies in respect of a claim for damages for personal injury or death caused
by an act of torture, extra-judicial killing, aircraft sabotage or hostage-taking, against a State
designated by the Secretary of State as a sponsor of terrorism, where the claimant or victim was
a national of the United States at the time the act occurred]; secondly, the ex parte Pinochet
(No. 3) judgment in which the House of Lords ‘emphasised the limits of immunity in respect of
gross human rights violations by State officials’. The Court does not, however, find that either
of these developments provides it with a firm basis on which to conclude that the immunity
of States ratione personae is no longer enjoyed in respect of civil liability for claims of acts of
83 Human rights law as part of international law
torture, let alone that it was not enjoyed in 1996 at the time of the Court of Appeal’s judgment in
the present case.
64. As to the amendment to the FSIA, the very fact that the amendment was needed would
seem to confirm that the general rule of international law remained that immunity attached even
in respect of claims of acts of official torture. Moreover, the amendment is circumscribed in its
scope: the offending State must be designated as a State sponsor of acts of terrorism, and the
claimant must be a national of the United States. The effect of the FSIA is further limited in that
after judgment has been obtained, the property of a foreign State is immune from attachment or
execution unless one of the statutory exceptions applies …
65. As to the ex parte Pinochet (No. 3) judgment …, the Court notes that the majority of
the House of Lords held that, after the UN Convention and even before, the international
prohibition against official torture had the character of jus cogens or a peremptory norm and
that no immunity was enjoyed by a torturer from one Torture Convention State from the criminal
jurisdiction of another. But, as the working group of the ILC itself acknowledged, that case
concerned the immunity ratione materiae from criminal jurisdiction of a former head of State,
who was at the material time physically within the United Kingdom. As the judgments in the case
made clear, the conclusion of the House of Lords did not in any way affect the immunity ratione
personae of foreign sovereign States from the civil jurisdiction in respect of such acts (see in
particular, the judgment of Lord Millett …). In so holding, the House of Lords cited with approval
the judgments of the Court of Appeal in Al-Adsani itself.
66. The Court, while noting the growing recognition of the overriding importance of the
prohibition of torture, does not accordingly find it established that there is yet acceptance in
international law of the proposition that States are not entitled to immunity in respect of civil
claims for damages for alleged torture committed outside the forum State. The 1978 Act, which
grants immunity to States in respect of personal injury claims unless the damage was caused
within the United Kingdom, is not inconsistent with those limitations generally accepted by the
community of nations as part of the doctrine of State immunity.
67. In these circumstances, the application by the English courts of the provisions of the 1978
Act to uphold Kuwait’s claim to immunity cannot be said to have amounted to an unjustified
restriction on the applicant’s access to a court.
[The Court decided by nine votes to eight that Article 6 §1 ECHR has not been violated. A joint
dissenting opinion was filed by Mr Rozakis and Mr Caflisch joined by Mr Wildhaber, Mr Costa,
Mr Cabral Barreto and Mrs Vajic´. Two separate dissenting opinions were filed, in addition, by
Mr Ferrari Bravo and Mr Loucaides. Excerpts of the first dissenting opinion follow.]
Joint dissenting opinion filed by Mr Rozakis and Mr Caflisch joined by Mr Wildhaber,
Mr Costa, Mr Cabral Barreto and Mrs Vajic´:
By accepting that the rule on prohibition of torture is a rule of jus cogens, the majority recognise
that it is hierarchically higher than any other rule of international law, be it general or particular,
customary or conventional, with the exception, of course, of other jus cogens norms. For the basic
characteristic of a jus cogens rule is that, as a source of law in the now vertical international
legal system, it overrides any other rule which does not have the same status. In the event of a
conflict between a jus cogens rule and any other rule of international law, the former prevails. The
consequence of such prevalence is that the conflicting rule is null and void, or, in any event, does
not produce legal effects which are in contradiction with the content of the peremptory rule.
84 Emergence of human rights in international law
The Court’s majority do not seem, on the other hand, to deny that the rules on State immunity;
customary or conventional, do not belong to the category of jus cogens; and rightly so, because
it is clear that the rules of State immunity, deriving from both customary and conventional
international law, have never been considered by the international community as rules with
a hierarchically higher status. It is common knowledge that, in many instances, States have,
through their own initiative, waived their rights of immunity; that in many instances they have
contracted out of them, or have renounced them. These instances clearly demonstrate that the
rules on State immunity do not enjoy a higher status, since jus cogens rules, protecting as they
do the ‘ordre public’, that is the basic values of the international community, cannot be subject to
unilateral or contractual forms of derogation from their imperative contents.
The acceptance therefore of the jus cogens nature of the prohibition of torture entails that a
State allegedly violating it cannot invoke hierarchically lower rules (in this case, those on State
immunity) to avoid the consequences of the illegality of its actions. In the circumstances of
this case, Kuwait cannot validly hide behind the rules on State immunity to avoid proceedings
for a serious claim of torture made before a foreign jurisdiction; and the courts of that
jurisdiction (the United Kingdom) cannot accept a plea of immunity, or invoke it ex officio, to
refuse an applicant adjudication of a torture case. Due to the interplay of the jus cogens rule
on prohibition of torture and the rules on State immunity, the procedural bar of State immunity
is automatically lifted, because those rules, as they conflict with a hierarchically higher rule,
do not produce any legal effect. In the same vein, national law which is designed to give
domestic effect to the international rules on State immunity cannot be invoked as creating a
jurisdictional bar, but must be interpreted in accordance with and in the light of the imperative
precepts of jus cogens.
The majority, while accepting that the rule on the prohibition of torture is a jus cogens norm,
refuse to draw the consequences of such acceptance.
In the following case, the dissenting opinion of ad hoc judge Van den Wyngaert relies
on the jus cogens character of war crimes and crimes against humanity to conclude that
the rule according immunity from criminal jurisdiction and inviolability to incumbent
Ministers for Foreign Affairs should be set aside in favour of allowing for prosecution
to take place where such crimes are concerned. Her reasoning echoes to a large extent
that of the House of Lords in the Pinochet case and that of the dissenting opinion
appended to the judgment of the European Court of Human Rights in Al-Adsani.
International Court of Justice, case concerning the Arrest Warrant of 11 April
2000 (Democratic Republic of Congo v. Belgium), I.C.J. Reports 2002, 3
(judgment of 14 February 2002):
[The DRC filed an application against Belgium following the issuance of an international arrest
on 11 April 2000 by a Belgian investigating judge against the then Minister for Foreign Affairs
85 Human rights law as part of international law
in office of the Democratic Republic of the Congo, Mr Abdulaye Yerodia Ndombasi.
The application contended that Belgium had violated the ‘principle that a State may not
exercise its authority on the territory of another State’, the ‘principle of sovereign equality
among all Members of the United Nations, as laid down in Article 2, paragraph 1, of the Charter
of the United Nations’, as well as ‘the diplomatic immunity of the Minister for Foreign Affairs
of a sovereign State, as recognized by the jurisprudence of the Court and following from
Article 41, paragraph 2, of the Vienna Convention of 18 April 1961 on Diplomatic Relations’.
The arrest warrant delivered by the Belgian investigating judge charged him, as perpetrator or
co-perpetrator, with offences constituting grave breaches of the Geneva Conventions of 1949
and of the Additional Protocols thereto, and with crimes against humanity. These crimes were
punishable in Belgium under the Law of 16 June 1993 concerning the Punishment of Grave
Breaches of the International Geneva Conventions of 12 August 1949 and of Protocols I and
II of 8 June 1977 Additional Thereto, as amended by the Law of 10 February 1999 concerning
the Punishment of Serious Violations of International Humanitarian Law, which provides for a
universal jurisdiction of Belgian courts to prosecute certain international crimes.
The International Court of Justice concluded by thirteen votes to three that ‘the issue
against Mr Abdulaye Yerodia Ndombasi of the arrest warrant of 11 April 2000, and its
international circulation, constituted violations of a legal obligation of the Kingdom of Belgium
towards the Democratic Republic of the Congo, in that they failed to respect the immunity
from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign
Affairs of the Democratic Republic of the Congo enjoyed under international law’. Without
reaching the issue of whether Belgium was authorized to apply an extraterritorial legislation,
the Court took the view, first, that ‘the functions of a Minister for Foreign Affairs are such that,
throughout the duration of his or her office, he or she when abroad enjoys full immunity from
criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual
concerned against any act of authority of another State would hinder him her in the performance
of his or her duties’ (para. 54). It then found, having ‘carefully examined State practice, including
national legislation and those few decisions of national higher courts, such as the House of Lords
or the French Court of Cassation’, that it was ‘unable to deduce from this practice that there
exists under customary international law any form of exception to the rule according immunity
from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they
are suspected of having committed war crimes or crimes against humanity’ (para. 58).]
Dissenting opinion of Judge Van den Wyngaert, judge ad hoc (para. 28):
The Court … adopts a formalistic reasoning, examining whether there is, under customary
international law, an international crimes exception to the – wrongly postulated – rule of
immunity for incumbent Ministers under customary international law (judgment, para. 58).
By adopting this approach, the Court implicitly establishes a hierarchy between the rules on
immunity (protecting incumbent former Ministers) and the rules on international accountability
(calling for the investigation of charges against incumbent Foreign Ministers charged with war
crimes and crimes against humanity).
86 Emergence of human rights in international law
By elevating the former rules to the level of customary international law in the first part of its
reasoning, and finding that the latter have failed to reach the same status in the second part of
its reasoning, the Court does not need to give further consideration to the status of the principle
of international accountability under international law. As a result, the Court does not further
examine the status of the principle of international accountability. Other courts, for example
the House of Lords in the Pinochet case [see above] and the European Court of Human Rights in
the Al-Adsani case [see above], have given more thought and consideration to the balancing
of the relative normative status of international jus cogens crimes and immunities.
Questions concerning international accountability for war crimes and crimes against
humanity and that were not addressed by the International Court of Justice include the
following. Can international accountability for such crimes be considered to be a general
principle of law in the sense of Article 38 of the Court’s Statute? Should the Court, in
reaching its conclusion that there is no international crimes exception to immunities under
international law, not have given more consideration to the factor that war crimes and
crimes against humanity have, by many, been considered to be customary international law
crimes (see: American Law Institute, Restatement of the Law Third. The Foreign Relations Law
of the United States (St Paul, Minn.: American Law Institute Publishers, 1987), vol. 1, para.
404, Comment; M. C. Bassiouni, Crimes against Humanity in International Criminal Law (The
Hague, Kluwer Law International, 1999); T. Meron, Human Rights and Humanitarian Norms as
Customary Law (Oxford: Clarendon Press, 1989); T. Meron, ‘International Criminalization of
Internal Atrocities’, American Journal of International Law 89 (1995), 558; A. H. J. Swart, De
berechting van internationale misdrijven (Deventer: Gouda Quint, 1996), p. 7; ICTY, Decision
on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Tadic, paras.
96–127 and 134 (common Art. 3))? Should it not have considered the proposition of writers
who suggest that war crimes and crimes against humanity are jus cogens crimes (M. C. Bassiouni,
‘International Crimes: Jus Cogens and Obligatio Erga Omnes’, Law and Contemporary Problems,
59 4 (1996), 63–74; M. C. Bassiouni, Crimes against Humanity in International Criminal Law
(The Hague: Kluwer Law International, 1999), pp. 210–17; C. J. R. Dugard, Opinion In: Re
Bouterse, para. 4.5.5, to be consulted at: www.icj.org/objectives/opinion.htm; K. C. Randall,
‘Universal Jurisdiction under International Law’, Texas Law Review, 66 (1988), 829–32; ICTY,
judgment, 10 December 1998, Furundzija, para. 153 (torture)), which, if it were correct, would
only enhance the contrast between the status of the rules punishing these crimes and the rules
protecting suspects on the ground of immunities for incumbent Foreign Ministers, which are
probably not part of jus cogens?
1.3. Question for discussion: human rights as jus cogens norms and the normative
hierarchy theory
Both the dissenting opinion of ad hoc Judge Van den Wyngaeert and the dissent expressed
in the Al-Adsani v. United Kingdom case are based on the idea that rules regarding immunity
should be set aside in order to recognize the primacy of human rights norms that have acquired
the status of jus cogens. Indeed, although Al-Adsani v. United Kingdom was heavily debated
87 Human rights law as part of international law
among the members of the European Court of Human Rights, other cases presented to the Court
that raised a question of immunity were far less controversial, because at stake were ECHR
rights other than the right not to be subjected to torture or inhuman or degrading treatment
or punishment (for a discussion of this range of cases, see M. Kloth, ‘Immunities and the Right
of Access to Court under the European Convention on Human Rights’, European Law Review,
27 (2002), 33). Yet, if the Court in Al-Adsani had arrived at the conclusion that the ECHR was
violated by the United Kingdom, would this have opened the floodgates for a large number of
claims unrelated to torture or inhuman or degrading treatment or punishment? Would the position
adopted by the dissenting judges in Al-Adsani be practical? Consider the following view:
Lee M. Caplan, ‘State Immunity, Human Rights, and Jus Cogens: a Critique of the
Normative Hierarchy Theory’, American Journal of International Law, 97 (2003),
741 at 773:
The undefined character of jus cogens, coupled with the general applicability of the normative
hierarchy theory, which invests all peremptory norms with immunity-stripping potential, may
present problems for the courts. Requiring application of the theory beyond cases of genocide,
slavery and torture would place national courts in an awkward position. The theory not only
would deprive the forum state of its right to regulate access to its own courts, but also would
oblige them to determine whether a particular norm of international law had attained the status
of jus cogens, a task that international legal scholars have grappled with for decades with only
limited success. Further, the normative hierarchy theory logically requires courts to treat all
violations of peremptory norms uniformly, even violations of norms that do not implicate human
rights but are arguably jus cogens, such as pacta sunt servanda. In addition, allowing the courts
to determine the parameters of jus cogens through application of the normative hierarchy theory
may undermine the principle of separation of powers, in some case inappropriately transferring
foreign-policymaking power from the political branches of government to the judiciary.
Finally, … adoption of the normative hierarchy theory could be the first step on a slippery slope
that begins with state immunity from jurisdiction but could quickly extend to state immunity
from execution against sovereign property and ultimately threaten the ‘orderly international
co-operation’ between states.
(c) Serious breaches of jus cogens norms
The International Law Commission’s Articles on Responsibility of States for internationally
wrongful acts provide that a ‘serious breach’ by a State of an obligation
arising under a peremptory norm of general international law – i.e. ‘a gross or systematic
failure by the responsible State to fulfil the obligation’ – imposes on all States
an obligation to co-operate in order to put an end to such a breach; an obligation not
to recognize as lawful a situation created by such a breach; and an obligation not to
‘render aid or assistance in maintaining that situation’ (Arts. 40 and 41 of the ILC’s
Articles on Responsibility of States for internationally wrongful acts, Official Records
88 Emergence of human rights in international law
of the General Assembly, Fifty-sixth Session, Supplement 10 (A/56/10)). This seems to
be the position expressed by the International Court of Justice in the Advisory Opinion
it delivered on 9 July 2004 on the question of the legal consequences of the construction
of a wall in the Occupied Palestinian Territory (for a reminder of the circumstances
in which the Advisory Opinion was delivered, see chapter 2, section 1). After
having found that the construction of the wall on Palestinian territory amounts to a
violation of the right of the Palestinian peoples to self-determination, the Court states
the following:
International Court of Justice, Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004,
I.C.J. Reports 2004, 136 at 199:
159. Given the character and the importance of the rights and obligations involved, the Court
is of the view that all States are under an obligation not to recognize the illegal situation
resulting from the construction of the wall in the Occupied Palestinian Territory, including in
and around East Jerusalem. They are also under an obligation not to render aid or assistance in
maintaining the situation created by such construction. It is also for all States, while respecting
the United Nations Charter and international law, to see to it that any impediment, resulting
from the construction of the wall, to the exercise by the Palestinian people of its right to selfdetermination
is brought to an end. In addition, all the States parties to the Geneva Convention
relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under
an obligation, while respecting the United Nations Charter and international law, to ensure
compliance by lsrael with international humanitarian law as embodied in that Convention.
160. Finally, the Court is of the view that the United Nations, and especially the General
Assembly and the Security Council, should consider what further action is required to bring to an
end the illegal situation resulting from the construction of the wall and the associated régime,
taking due account of the present Advisory Opinion.
1.4. Questions for discussion: treating human rights as jus cogens norms
1. There remain controversies both about the list of human rights that have acquired the status of
jus cogens, and about the consequences that follow such characterization. Are the two questions
linked? Should the list of norms considered to be peremptory norms of international law
vary, depending on the precise consequence that one seeks to attach to this qualification? For
instance, could there be a long list of human rights norms treated as jus cogens for the purpose
of finding void any treaty conflicting with such norms, but a shorter list of norms which could
justify setting aside rules relating to immunity where such rules appear to create obstacles to
their full implementation?
2. What do the cases above teach us about how a norm – such as, in these cases, the prohibition
of torture – evolves into one which is considered to have acquired the status of jus cogens? Has
89 Human rights law as part of international law
the prohibition of torture evolved into a norm ‘accepted and recognised by the international
community of States as a whole as a norm from which no derogation is permitted’, as defined in
Article 53 of the Vienna Convention on the Law of Treaties, or is this rather the result of judicial
law-making? Is there anything specific to the prohibition of torture, distinguishing it from other
human rights norms, that would justify treating it, like a few other such norms, as jus cogens,
while excluding other human rights norms from this qualification?
3. In the case of Al-Adsani v. United Kingdom, how would you characterize the disagreement
between the majority of the European Court of Human Rights and the dissenting judges? Does
this disagreement stem from a difference in opinion as regards the consequences to be drawn
from the jus cogens character of the prohibition of torture? Or is it rather that the issue presented
to the Court was framed differently by the majority and by the dissenting judges?
4. If indeed the prohibition of torture has the status of a jus cogens norm, this means, at a minimum,
that any treaty conflicting with this prohibition will be treated as void: this would be the
case, for instance, of a treaty through which two States would mutually undertake to extradite
individuals suspected of having committed certain crimes even though they may be subjected
to torture in the State requesting the extradition. But the cases above illustrate that the consequences
of the jus cogens character of the prohibition of torture reach much further. What are
the limits to such an extension? Does the jus cogens character of a norm justify setting aside
all other rules of international law that may be an obstacle to its effective implementation, for
example rules relating to the limits of State jurisdiction or to immunities? May a State ignore
all such rules, in the name of seeking to improve compliance with a norm having a jus cogens
status?
4.3 The erga omnes character of human rights obligations
Human rights treaties do not have as their primary goal the exchange of reciprocal
rights and obligations between the contracting States (see further section 4.4. below).
In contrast to diplomatic protection – which one State has a right to exercise in favour
of its nationals under the jurisdiction of another State – the respect for human rights
in one State therefore is of interest to no other State in particular. It is perhaps paradoxical
therefore that such respect is of interest to the international community as
a whole, allowing each State to pursue remedies against the State alleged to have
violated its obligations under the human rights recognized under customary international
law or as general principles of law. Article 48(1)(b) of the International Law
Commission’s Articles on the Responsibility of States for internationally wrongful acts
(invocation of responsibility by a State other than an injured State), provides that ‘Any
State other than an injured State is entitled to invoke the responsibility of another
State … if … the obligation breached is owed to the international community as a
whole.’ Any State therefore ‘may claim from the responsible State: (a) Cessation of the
internationally wrongful act, and assurances and guarantees of non-repetition …; and
(b) Performance of the obligation of reparation …, in the interest of the injured State
90 Emergence of human rights in international law
or of the beneficiaries of the obligation breached’. As noted above, the International
Court of Justice has mentioned, among the obligations which are erga omnes (owed to
the international community as a whole), not only the prohibition of acts of aggression
and of genocide, but also the right to self-determination; the rules of humanitarian
international law applicable in armed conflict; and even ‘the principles and rules
concerning the basic rights of the human person, including protection from slavery
and racial discrimination’ (Case concerning the Barcelona Traction, Light and Power
Company, Limited (Belgium v. Spain), Second phase (judgment of 5 February 1970),
I.C.J. Reports 1970, 3, 32 (paras. 33–34): see above, section 4.2., b)).
International Court of Justice, Legal Consequences cf the Construction of a Wall
in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, I.C.J.
Reports 2004, 136, at 199:
155. The Court would observe that the obligations violated by Israel include certain obligations
erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are by their
very nature ‘the concern of all States’ and, ‘In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection’ (Barcelona Traction, Light and Power
Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, 32, para. 33). The obligations erga
omnes violated by Israel are the obligation to respect the right of the Palestinian people to selfdetermination,
and certain of its obligations under international humanitarian law.
156. As regards the first of these, the Court has already observed … that in the East
Timor case, it described as ‘irreproachable’ the assertion that ‘the right of peoples to selfdetermination,
as it evolved from the Charter and from United Nations practice, has an
erga omnes character’ (I.C.J. Reports 1995, 102, para. 29). The Court would also recall that
under the terms of General Assembly resolution 2625 (XXV), … ‘Every State has the duty to
promote, through joint and separate action, realization of the principle of equal rights and
self-determination of peoples, in accordance with the provisions of the Charter, and to render
assistance to the United Nations in carrying out the responsibilities entrusted to it by the
Charter regarding the implementation of the principle …’
157. With regard to international humanitarian law, the Court recalls that in its Advisory
Opinion on the LegaIity of the Threat or Use of Nuclear Weapons it stated that ‘a great many
rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the
human person and “elementary considerations of humanity” …’, that they are ‘to be observed
by all States whether or not they have ratified the conventions that contain them, because they
constitute intransgressible principles of international customary law’ (I.C.J. Reports 1996 (I),
257, para. 79). In the Court’s view, these rules incorporate obligations which are essentially of
an erga omnes character.
Whether all human rights obligations recognized in general public international law
are ‘owed to the international community as a whole’ remains debated. It would be
incorrect to limit the range of rights imposing erga omnes obligations to those which
have the status of jus cogens, which constitutes a narrower category, as stated by
G. Arangio-Ruiz: ‘… the concept of erga omnes obligation is not characterized by the
91 Human rights law as part of international law
importance of the interest protected by the norms – this aspect being typical of jus
cogens – but rather by the “legal indivisibility” of the content of the obligation, namely
by the fact that the rule in question provides for obligations which bind simultaneously
each and every addressee with respect to all others. This legal structure is typical not
only of peremptory norms, but also of other norms of general international law and of
a number of multilateral treaty rules (erga omnes partes obligations)’ (Fourth Report on
State Responsibility, A/CN.4/444/Add. 1, at 31 (1992)). Neither should too much weight
be attached to the adjective ‘basic’ before the expression ‘rights of the human person’
in the dictum of the Barcelona Traction Case, since such an expression is generic and
should be seen as a mere paraphrase to designate the notion of human rights as ‘fundamental’
in the guarantees they provide. On the other hand, although some authors have
taken the view that all human rights internationally recognized should be considered
as imposing erga omnes obligations (F. Ermacora, in B. Simma et al. (eds.), The Charter
of the United Nations: a Commentary (Oxford University Press, 1995), at pp. 152–3;
I. Seiderman, Hierarchy in International Law. The Human Rights Dimension (AntwerpOxford:
Intersentia-Hart, 2001), chapter IV), this would seem to be contradicted by the
judgment delivered by the International Court of Justice in the Barcelona Traction Case
itself. While recognizing that human rights include protection against denial of justice,
the Court then added:
International Court of Justice, case concerning the Barcelona Traction,
Light and Power Company, Limited (Belgium v. Spain), Second phase (judgment),
I.C.J. Reports 1970 3, 47 (para. 91):
However, 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. It is therefore still on the regional level that a solution to this problem has had to be
sought; thus, within the Council of Europe, of which Spain is not a member [at the time of the
judgment], the problem of admissibility encountered by the claim in the present case has been
resolved by the European Convention on Human Rights, which entitles each State which is a
party to the Convention to lodge a complaint against any other contracting State for violation of
the Convention, irrespective of the nationality of the victim.
This statement would be in complete contradiction with para. 34 of the same judgment
referring to ‘the principles and rules concerning the basic rights of the human person’
as imposing erga omnes obligations if there were no distinction between core human
rights which do impose such obligations, and other rights of the individual, which may
only be protected in inter-State proceedings through the traditional channel of diplomatic
protection: the right of the shareholders to the protection of the investments
made through the establishment of a company with a separate legal personality, which
were at stake in Barcelona Traction litigation, clearly belongs to the second category.
It is true that Section 703(2) of the 1987 Restatement of the American Law Institute
does provide that all human rights recognized in customary international law impose
92 Emergence of human rights in international law
obligations erga omnes: ‘Any State may pursue international remedies against any
other state for a violation of the customary law of human rights rights’, it notes, since
‘the customary law of human rights are erga omnes’. The comment attached to this
clause explains that, as regards human rights recognized in customary international
law, ‘the international obligation runs equally to all other states, with no state a victim
of the violation more than any other. Any state, therefore, may make a claim against
the violating state.’ However, the list of rights concerned, as we have seen (section 4.1., b)),
is in fact quite limited, and certainly does not encompass the full range of the rights listed
in the international bill of rights.
The effect of obligations being erga omnes concerns the question of standing: all
States have a legal interest in using any available remedies in order to ensure that the
obligations are complied with. However, in order for remedies to be used against the
infringing State, the forum must have jurisdiction over the issue. For instance, while
a number of international and regional human rights instruments provide for the possibility
of inter-State complaints, these typically require a declaration of acceptance
by the defending State, and are subject to a condition of reciprocity (for details, see
chapter 9). Article 41 of the International Covenant on Civil and Political Rights thus
provides that any State party to this instrument ‘may at any time declare … that it recognizes
the competence of the Committee to receive and consider communications to
the effect that a State Party claims that another State Party is not fulfilling its obligations
under the present Covenant. Communications under this article may be received
and considered only if submitted by a State Party which has made a declaration recognizing
in regard to itself the competence of the Committee. No communication shall
be received by the Committee if it concerns a State Party which has not made such a
declaration.’ The Human Rights Committee would not be authorized, under the pretext
that the civil and political rights enumerated in the ICCPR impose obligations erga
omnes, to ignore the limits to its jurisdiction which are imposed by this provision, for
instance in order to deal with a communication presented by a State which has not
itself accepted inter-state communications to be directed against it.
The erga omnes character of human rights obligations sometimes has been linked to
the fact that human rights are a recognized exception to the principle of non-interference
with the domestic affairs of States, as expressed in Article 2(7) of the UN Charter.
Consider for instance the Resolution adopted on 13 September 1989 by the International
Law Institute, which concerns all measures – ‘diplomatic, economic and other’ – which
may be adopted by any State, where human rights are violated in another State:
International Law Institute, ‘The Protection of Human Rights and the Principle
of Non-Intervention in Internal Affairs of States’, Institut de Droit International
Annuaire, 63 (1989), 338:
The Institute of International Law, …
Considering [that] the protection of human rights as a guarantee of the physical and moral
integrity and of the fundamental freedom of every person has been given expression in both the
93 Human rights law as part of international law
constitutional systems of States and in the international legal system, especially in the charters
and constituent instruments of international organizations;
That the members of the United Nations have undertaken to ensure, in co-operation with the
Organization, universal respect for and observance of human rights and fundamental freedoms,
and that the General Assembly, recognizing that a common understanding of these rights and
freedoms is of the highest importance for the full realization of this undertaking, has adopted
and proclaimed the Universal Declaration of Human Rights on 10 December 1948;
That frequent gross violations of human rights, including those affecting ethnic, religious
and linguistic minorities, cause legitimate and increasing outrage to public opinion and impel
many States and international organizations to have recourse to various measures to ensure that
human rights are respected;
That these reactions, as well as international doctrine and jurisprudence, bear witness that
human rights, having been given international protection, are no longer matters essentially
within the domestic jurisdiction of States;
That it is nonetheless important, in the interest of maintaining peace and friendly relations
between sovereign States as well as in the interest of protecting human rights, to define more
precisely the conditions and limitations imposed by international law on the measures that may
be taken by States and international organizations in response to violations of human rights
Adopts the following Resolution:
Article 1. Human rights are a direct expression of the dignity of the human person. The
obligation of States to ensure their observance derives from the recognition of this dignity as
proclaimed in the Charter of the United Nations and in the Universal Declaration of Human
Rights.
This international obligation, as expressed by the International Court of Justice, is ‘erga
omnes’; it is incumbent upon every State in relation to the international community as a whole,
and every State has a legal interest in the protection of human rights. The obligation further
implies a duty of solidarity among all States to ensure as rapidly as possible the effective
protection of human rights throughout the world.
Article 2. A State acting in breach of its obligations in the sphere of human rights cannot
evade its international responsibility by claiming that such matters are essentially within its
domestic jurisdiction.
Without prejudice to the functions and powers which the Charter attributes to the organs
of the United Nations in case of violation of the obligations assumed by the members of the
Organization, States, acting individually or collectively, are entitled to take diplomatic, economic
and other measures towards any other State which has violated the obligation set forth in
Article 1, provided such measures are permitted under international law and do not involve the
use of armed force in violation of the Charter of the United Nations. These measures cannot be
considered an unlawful intervention in the internal affairs of that State.
Violations justifying recourse to the measures referred to above shall be viewed in the
light of their gravity and of all the relevant circumstances. Measures designed to ensure the
collective protection of human rights are particularly justified when taken in response to
especially grave violations of these rights, notably large-scale or systematic violations, as well
as those infringing rights that cannot be derogated from in any circumstances.
Article 3. Diplomatic representations as well as purely verbal expressions of concern or
disapproval regarding any violations of human rights are lawful in all circumstances.
94 Emergence of human rights in international law
Article 4. All measures, individual or collective, designed to ensure the protection of human
rights shall meet the following conditions:
(1) except in case of extreme urgency, the State perpetrating the violation shall be formally
requested to desist before the measures are taken;
(2) measures taken shall be proportionate to the gravity of the violation;
(3) measures taken shall be limited to the State perpetrating the violation;
(4) the States having recourse to measures shall take into account the interests of individuals
and of third States, as well as the effect of such measures on the standard of living of the
population concerned.
Article 5. An offer by a State, a group of States, an international organization or an impartial
humanitarian body such as the International Committee of the Red Cross, of food or medical
supplies to another State in whose territory the life or health of the population is seriously
threatened cannot be considered an unlawful intervention in the internal affairs of that
State. However, such offers of assistance shall not, particularly by virtue of the means used to
implement them, take a form suggestive of a threat of armed intervention or any other measure
of intimidation; assistance shall be granted and distributed without discrimination.
States in whose territories these emergency situations exist should not arbitrarily reject such
offers of humanitarian assistance.
Article 6. The provisions of this Resolution apply without prejudice to the procedures
prescribed in matters of human rights by the terms of or pursuant to the constitutive
instruments and the conventions of the United Nations and of specialized agencies or regional
organizations.
Article 7. It is highly desirable to strengthen international methods and procedures, in
particular methods and procedures of international organizations, intended to prevent, punish
and eliminate violations of human rights.
4.4 Human rights treaties as non-contractual in nature
Human rights treaties have an ‘objective’ character in that they are not reducible to
bilateral exchanges of advantages between the contracting States (on the specificity of
human rights treaties from this point of view, see E. Schwelb, ‘The Law of Treaties and
Human Rights’, Archiv des Völkerrechts, 16 1 (1973), reprinted in W. M. Reisman and
B. Weston (eds.), Toward World Order and Human Dignity: Essays in Honor of Myres
S. McDougal (New York: Free Press, 1976), at p. 262; or M. Craven, ‘Legal Differentiation
and the Concept of the Human Rights Treaty in International Law’, European Journal
of International Law, 11, No. 3 (2000), 489–519). The principle has been put concisely
by the Human Rights Committee: ‘Such treaties, and the [International Covenant on
Civil and Political Rights] specifically, are not a web of inter-State exchanges of mutual
obligations. They concern the endowment of individuals with rights’ (Human Rights
Committee, General Comment No. 24 (1994), 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, at para. 17). The idea is not a new
one. Consider the following statements:
95 Human rights law as part of international law
International Court of Justice, Reservations to the Convention on the Prevention
and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951,
19 (28 May 1951):
[The 1948 Convention on the Prevention and Punishment of the Crime of Genocide] was
manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed difficult to
imagine a convention that might have this dual character to a greater degree, since its object
on the one hand is to safeguard the very existence of certain human groups and on the other
to confirm and endorse the most elementary principles of morality. In such a convention
the contracting States do not have any interests of their own; they merely have, one and
all, a common interest, namely, the accomplishment of those high purposes which are the
raison d’être of the convention. Consequently, in a convention of this type one cannot speak
of individual advantages or disadvantages to States, or of the maintenance of a perfect
contractual balance between rights and duties.
European Commission on Human Rights, Austria v. Italy (the ‘Pfunders’ Case),
Appl. No. 788/60, European Convention on Human Rights Yearbook, 4 (1961), 116
at 140:
[The] purpose of the High Contracting Parties in concluding the [European Convention on
Human Rights] was not to concede to each other reciprocal rights and obligations in pursuance
of their individual national interests but to realize the aims and ideals of the Council of Europe …
and to establish a common public order of the free democracies of Europe with the object of
safeguarding their common heritage of political traditions, ideas, freedom and the rule of law.
[Thus,] the obligations undertaken by the High Contracting Parties in the European Convention
are essentially of an objective character, being designed rather to protect the fundamental rights
of individual human beings from infringements by any of the High Contracting Parties than to
create subjective and reciprocal rights for the High Contracting Parties themselves.
Inter-American Court of Human Rights, The Effect of Reservations on the Entry
into Force of the American Convention on Human Rights (Arts. 74 and 75),
Advisory Opinion OC-2/82, 24 September 1982, Inter-American Court of
Human Rights (Series A) No. 2 (1982) at para. 29:
[M]odern human rights treaties in general, and the American Convention in particular, are not
multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of
rights for the mutual benefit of the contracting States. Their object and purpose is the protection
of the basic rights of individual human beings irrespective of their nationality, both against the
State of their nationality and all other contracting States. In concluding these human rights
treaties, the States can be deemed to submit themselves to a legal order within which they, for
the common good, assume various obligations, not in relation to other States, but towards all
individuals within their jurisdiction.
96 Emergence of human rights in international law
The Vienna Convention on the Law of Treaties recognizes the specificity of human rights
treaties by stating in Article 60(5) that the principle according to which the material
breach of a treaty by one party authorizes the other party to terminate or suspend the
agreement does not apply to ‘provisions relating to the protection of the human person
contained in treaties of a humanitarian character, in particular to provisions prohibiting
any form of reprisals against persons protected by such treaties’. The reason for this
is obvious: the rule allowing termination or suspension of a treaty in cases of material
breach is based on the idea of reciprocity, where the obligations imposed on one party
are set for the benefit of the other parties to the treaty. But the beneficiaries of human
rights treaties are not the other parties: they are the population under the jurisdiction
of the States concerned. It would not only be unjustifiable for State A to take the population
under its jurisdiction as hostages (threatening to violate their rights if State B
violates the rights of its own peoples); this would also be totally ineffective as a means
of dissuading States from breaching their obligations: why would State B care about
the sake of the population under the jurisdiction of State A, if that population is led
to suffer as a result of counter-measures adopted by that State? See further on this, R.
Higgins, ‘Human Rights: Some Questions of Integrity’ (mistakenly titled ‘The United
Nations: Still a Force for Peace’ due to an editorial error), Modern Law Review, 52, No.
1 (1989), 1–21 at 11.
An important consequence of this specific character of human rights treaties is the
role which monitoring bodies, or courts, are to play in the supervision of human rights
treaties. This role shall be particularly important under such treaties since the other
States parties can hardly be counted upon to exercise the kind of horizontal control
which, in usual treaties, provides the required disciplining function. This is illustrated,
for instance, by the relatively few objections raised to the reservations filed by
States upon entering a human rights treaty, or by the striking underuse by States of
mechanisms allowing for inter-State complaints, both at the universal level and even,
with some exceptions, at the regional level. It is therefore fitting that, in international
human rights law, the function of international judicial or quasi-judicial bodies has
been so prominent, in comparison to the classical (diplomatic) means of treaty supervision
and interpretation. The controversies surrounding the question of reservations
to human rights treaties provide an excellent illustration of this. It is to these controversies
that we now turn.
4.5 Reservations to human rights treaties
A reservation is ‘a unilateral statement, however phrased or named, made by a State,
when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports
to exclude or to modify the legal effect of certain provisions of the treaty in
their application to that State’ (Article 2 §1(d) of the Vienna Convention on the Law of
Treaties of 23 May 1969). What matters is the intention of the State, rather than the
form of the instrument, as noted by the Human Rights Committee: ‘If a statement, irrespective
of its name or title, purports to exclude or modify the legal effect of a treaty
97 Human rights law as part of international law
in its application to the State, it constitutes a reservation. Conversely, if a so-called
reservation merely offers a State’s understanding of a provision but does not exclude or
modify that provision in its application to that State, it is, in reality, not a reservation’
(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, 4 November 1994, para. 4). The question whether
reservations to multilateral human rights treaties should be treated under the same
regime as reservations to classical treaties is one to which the International Court of
Justice made an important contribution when it delivered its Advisory Opinion on the
reservations to the Genocide Convention (a). The Vienna Convention on the Law of
Treaties subsequently confirmed the solution proposed by the International Court of
Justice. However, it has been recognized, both by the Inter-American Court of Human
Rights and by the European Court of Human Rights, that human rights treaties were
specific and that the general rules regarding reservations to multilateral treaties might
therefore not apply to those instruments (b). These positions have led to a considerable
discussion in doctrine (see, e.g. B. Simma, ‘Reservations to Human Rights Treaties –
Some Recent Developments’, in Gerhard Hafner et al. (eds.), Liber Amicorum Professor
Ignaz Seidl-Hohenveldern (The Hague: Kluwer Law International, 1998), pp. 659–82;
J. P. Gardner and C. Chinkin (eds.), Human Rights as General Norms and a State’s Right
to Opt out: Reservations and Objections to Human Rights Conventions (London: British
Institute of International and Comparative Law, 1997), p. 207; and R. Baratta and
I. Ziemele (eds.), Reservations to Human Rights Treaties and the Vienna Convention
Regime: Conflict, Harmony or Reconciliation (Leiden: Martinus Nijhoff, 2004), p. 319).
When the Human Rights Committee transposed the doctrine regarding the specificity
of human rights treaties in the context of the International Covenant on Civil and
Political Rights, this was resisted by States, who denounced this position as exceeding
the competence of the Committee under the ICCPR (c).
(a) The regime of reservations in international law
We may take as departure point the Advisory Opinion adopted by the International Court
of Justice in response to the request of the UN General Assembly, which sought the opinion
of the Court on the following questions relating to the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide. In the event of a State ratifying or acceding
to the Convention subject to a reservation made either on ratification or on accession, or
on signature followed by ratification, the General Assembly asked: ‘I. Can the reserving
State be regarded as being a party to the Convention while still maintaining its reservation
if the reservation is objected to by one or more of the parties to the Convention but
not by others? II. If the answer to Question I is in the affirmative, what is the effect of the
reservation as between the reserving State and: (a) The parties which object to the reservation?
(b) Those which accept it? III. What would be the legal effect as regards the answer
to Question I if an objection to a reservation is made: (a) By a signatory which has not yet
ratified? (b) By a State entitled to sign or accede but which has not yet done so?’ The following
excerpts concern the first of these questions:
98 Emergence of human rights in international law
International Court of Justice, Reservations to the Convention on the Prevention
and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951,
19 (28 May 1951):
It is well established that in its treaty relations a State cannot be bound without its consent,
and that consequently no reservation can be effective against any State without its agreement
thereto. It is also a generally recognized principle that a multilateral convention is the
result of an agreement freely concluded upon its clauses and that consequently none of
the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or
particular agreements, the purpose and raison d’etre of the convention. To this principle was
linked the notion of the integrity of the convention as adopted, a notion which in its traditional
concept involved the proposition that no reservation was valid unless it was accepted by all the
contracting parties without exception, as would have been the case if it had been stated during
the negotiations.
This concept, which is directly inspired by the notion of contract, is of undisputed value as
a principle. However, as regards the Genocide Convention, it is proper to refer to a variety of
circumstances which would lead to a more flexible application of this principle. Among these
circumstances may be noted the clearly universal character of the United Nations under whose
auspices the Convention was concluded, and the very wide degree of participation envisaged
by Article XI of the Convention. Extensive participation in conventions of this type has already
given rise to greater flexibility in the international practice concerning multilateral conventions.
More general resort to reservations, very great allowance made for tacit assent to reservations,
the existence of practices which go so far as to admit that the author of reservations which
have been rejected by certain contracting parties is nevertheless to be regarded as a party to
the convention in relation to those contracting parties that have accepted the reservations-all
these factors are manifestations of a new need for flexibility in the operation of multilateral
conventions.
It must also be pointed out that although the Genocide Convention was finally approved
unanimously, it is nevertheless the result of a series of majority votes. The majority principle,
while facilitating the conclusion of multilateral conventions, may also make it necessary for
certain States to make reservations. This observation is confirmed by the great number of
reservations which have been made of recent years to multilateral conventions.
In this state of international practice, it could certainly not be inferred from the absence of
an article providing for reservations in a multilateral convention that the contracting States are
prohibited from making certain reservations. Account should also be taken of the fact that the
absence of such an article or even the decision not to insert such an article can be explained by
the desire not to invite a multiplicity of reservations. The character of a multilateral convention,
its purpose, provisions, mode of preparation and adoption, are factors which must be considered
in determining, in the absence of any express provision on the subject, the possibility of making
reservations, as well as their validity and effect.
Although it was decided during the preparatory work not to insert a special article on
reservations, it is none the less true that the faculty for States to make reservations was
contemplated at successive stages of the drafting of the Convention …
Furthermore, the faculty to make reservations to the Convention appears to be implicitly
admitted by the very terms of Question I.
99 Human rights law as part of international law
The Court recognizes that an understanding was reached within the General Assembly on the
faculty to make reservations to the Genocide Convention and that it is permitted to conclude
therefrom that States becoming parties to the Convention gave their assent thereto. It must now
determine what kind of reservations may be made and what kind of objections may be taken to
them.
The solution of these problems must be found in the special characteristics of the Genocide
Convention. The origins and character of that Convention, the objects pursued by the General
Assembly and the contracting parties, the relations which exist between the provisions of
the Convention, inter se, and between those provisions and these objects, furnish elements of
interpretation of the will of the General Assembly and the parties. The origins of the Convention
show that it was the intention of the United Nations to condemn and punish genocide as ‘a crime
under international law’ involving a denial of the right of existence of entire human groups, a
denial which shocks the conscience of mankind and results in great losses to humanity, and
which is contrary to moral law and to the spirit and aims of the United Nations (Resolution
96 (I) of the General Assembly, December 11th 1946). The first consequence arising from this
conception is that the principles underlying the Convention are principles which are recognized
by civilized nations as binding on States, even without any conventional obligation. A second
consequence is the universal character both of the condemnation of genocide and of the
co-operation required ‘in order to liberate mankind from such an odious scourge’ (Preamble to
the Convention). The Genocide Convention was therefore intended by the General Assembly
and by the contracting parties to be definitely universal in scope. It was in fact approved on
December 9th, 1948, by a resolution which was unanimously adopted by fifty-six States.
The objects of such a convention must also be considered. The Convention was manifestly
adopted for a purely humanitarian and civilizing purpose. It is indeed difficult to imagine a
convention that might have this dual character to a greater degree, since its object on the one
hand is to safeguard the very existence of certain human groups and on the other to confirm and
endorse the most elementary principles of morality. In such a convention the contracting States
do not have any interests of their own; they merely have, one and all, a common interest, namely,
the accomplishment of those high purposes which are the raison d’etre of the convention.
Consequently, in a convention of this type one cannot speak of individual advantages or
disadvantages to States, or of the maintenance of a perfect contractual balance between rights
and duties. The high ideals which inspired the Convention provide, by virtue of the common will
of the parties, the foundation and measure of all its provisions.
The foregoing considerations, when applied to the question of reservations, and more
particularly to the effects of objections to reservations, lead to the following conclusions.
The object and purpose of the Genocide Convention imply that it was the intention of the
General Assembly and of the States which adopted it that as many States as possible should
participate. The complete exclusion from the Convention of one or more States would not only
restrict the scope of its application, but would detract from the authority of the moral and
humanitarian principles which are its basis. It is inconceivable that the contracting parties
readily contemplated that an objection to a minor reservation should produce such a result.
But even less could the contracting parties have intended to sacrifice the very object of the
Convention in favour of a vain desire to secure as many participants as possible. The object
and purpose of the Convention thus limit both the freedom of making reservations and that
100 Emergence of human rights in international law
of objecting to them. It follows that it is the compatibility of a reservation with the object
and purpose of the Convention that must furnish the criterion for the attitude of a State in
making the reservation on accession as well as for the appraisal by a State in objecting to the
reservation. Such is the rule of conduct which must guide every State in the appraisal which it
must make, individually and from its own standpoint, of the admissibility of any reservation.
Any other view would lead either to the acceptance of reservations which frustrate the
purposes which the General Assembly and the contracting parties had in mind, or to recognition
that the parties to the Convention have the power of excluding from it the author of a
reservation, even a minor one, which may be quite compatible with those purposes.
It has nevertheless been argued that any State entitled to become a party to the Genocide
Convention may do so while making any reservation it chooses by virtue of its sovereignty. The
Court cannot share this view. It is obvious that so extreme an application of the idea of State
sovereignty could lead to a complete disregard of the object and purpose of the Convention.
On the other hand, it has been argued that there exists a rule of international law subjecting
the effect of a reservation to the express or tacit assent of all the contracting parties. This
theory rests essentially on a contractual conception of the absolute integrity of the convention
as adopted. This view, however, cannot prevail if, having regard to the character of the
convention, its purpose and its mode of adoption, it can be established that the parties intended
to derogate from that rule by admitting the faculty to make reservations thereto.
It does not appear, moreover, that the conception of the absolute integrity of a convention
has been transformed into a rule of international law. The considerable part which tacit assent
has always played in estimating the effect which is to be given to reservations scarcely permits
one to state that such a rule exists, determining with sufficient precision the effect of objections
made to reservations. In fact, the examples of objections made to reservations appear to be
too rare in international practice to have given rise to such a rule. It cannot be recognized that
the report which was adopted on the subject by the Council of the League of Nations on June
17th, 1927, has had this effect. At best, the recommendation made on that date by the Council
constitutes the point of departure of an administrative practice which, after being observed
by the Secretariat of the League of Nations, imposed itself, so to speak, in the ordinary course
of things on the Secretary-General of the United Nations in his capacity of depositary of
conventions concluded under the auspices of the League. But it cannot be concluded that the
legal problem of the effect of objections to reservations has in this way been solved. The opinion
of the Secretary-General of the United Nations himself is embodied in the following passage
of his report of September 21st, 1950: ‘While it is universally recognized that the consent of
the other governments concerned must be sought before they can be bound by the terms of
a reservation, there has not been unanimity either as to the procedure to be followed by a
depositary in obtaining the necessary consent or as to the legal effect of a State’s objecting to a
reservation.’
It may, however, be asked whether the General Assembly of the United Nations, in approving
the Genocide Convention, had in mind the practice according to which the Secretary-General,
in exercising his functions as a depositary, did not regard a reservation as definitively accepted
until it had been established that none of the other contracting States objected to it. If this were
the case, it might be argued that the implied intention of the contracting parties was to make
the effectiveness of any reservation to the Genocide Convention conditional on the assent of all
the parties.
101 Human rights law as part of international law
The Court does not consider that this view corresponds to reality. It must be pointed out, first
of all, that the existence of an administrative practice does not in itself constitute a decisive
factor in ascertaining what views the contracting States to the Genocide Convention may have
had concerning the rights and duties resulting therefrom. It must also be pointed out that there
existed among the American States members both of the United Nations and of the Organization
of American States, a different practice which goes so far as to permit a reserving State to
become a party irrespective of the nature of the reservations or of the objections raised by
other contracting States. The preparatory work of the Convention contains nothing to justify
the statement that the contracting States implicitly had any definite practice in mind. Nor is
there any such indication in the subsequent attitude of the contracting States: neither the
reservations made by certain States nor the position adopted by other States towards those
reservations permit the conclusion that assent to one or the other of these practices had been
given. Finally, it is not without interest to note, in view of the preference generally said to attach
to an established practice, that the debate on reservations to multilateral treaties which took
place in the Sixth Committee at the fifth session of the General Assembly reveals a profound
divergence of views, some delegations being attached to the idea of the absolute integrity of the
Convention, others favouring a more flexible practice which would bring about the participation
of as many States as possible.
It results from the foregoing considerations that Question I, on account of its abstract
character, cannot be given an absolute answer. The appraisal of a reservation and the effect
of objections that might be made to it depend upon the particular circumstances of each
individual case.
The Advisory Opinion of the International Court of Justice on the Reservations to
the Convention on the Prevention and Punishment of the Crime of Genocide sparked
an important literature (see, e.g. W. W. Bishop, ‘Reservations to the Convention on
Genocide. International Court of Justice, Advisory Opinion, May 28, 1951’, American
Journal of International Law, 45 (1951), 579–90; Sir G. Fitzmaurice, ‘The Law and
Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other
Treaty Points’, British Yearbook of International Law, 33 (1957), 202–93, esp. 272–93;
H. Lauterpacht, ‘Some Possible Solutions to the Problem of Reservations to Treaties’
in The Grotius Society Transactions for the Year 1953, 39 (1954), 97–118; P.-H. Imbert,
Les réserves aux traités multilatéraux. Evolution du droit et de la pratique depuis l’avis
consultatif donné par la Cour internationale de justice le 28 mai 1951 (Paris: Pedone,
1979)). When the Vienna Convention on the Law of Treaties was drafted, Articles 19–23
relating to reservations clearly sought to echo the Court’s views:
Vienna Convention on the Law of Treaties
Article 19 Formulation of reservations
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate
a reservation unless:
(a) the reservation is prohibited by the treaty;
102 Emergence of human rights in international law
(b) the treaty provides that only specified reservations, which do not include the reservation
in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with
the object and purpose of the treaty.
Article 20 Acceptance of and objection to reservations
1. A reservation expressly authorized by a treaty does not require any subsequent acceptance
by the other contracting States unless the treaty so provides.
2. When it appears from the limited number of the negotiating States and the object and
purpose of a treaty that the application of the treaty in its entirety between all the
parties is an essential condition of the consent of each one to be bound by the treaty, a
reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organization and unless
it otherwise provides, a reservation requires the acceptance of the competent organ of
that organization.
4. In cases not falling under the preceding paragraphs and unless the treaty otherwise
provides:
(a) acceptance by another contracting State of a reservation constitutes the reserving
State a party to the treaty in relation to that other State if or when the treaty is in
force for those States;
(b) an objection by another contracting State to a reservation does not preclude the
entry into force of the treaty as between the objecting and reserving States unless a
contrary intention is definitely expressed by the objecting State;
(c) an act expressing a State’s consent to be bound by the treaty and containing a
reservation is effective as soon as at least one other contracting State has accepted
the reservation.
5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation
is considered to have been accepted by a State if it shall have raised no objection
to the reservation by the end of a period of twelve months after it was notified of the
reservation or by the date on which it expressed its consent to be bound by the treaty,
whichever is later.
Article 21 Legal effects of reservations and of objections to reservations
1. A reservation established with regard to another party in accordance with articles 19, 20
and 23:
(a) modifies for the reserving State in its relations with that other party the provisions of
the treaty to which the reservation relates to the extent of the reservation; and
(b) modifies those provisions to the same extent for that other party in its relations with
the reserving State.
2. The reservation does not modify the provisions of the treaty for the other parties to the
treaty inter se.
103 Human rights law as part of international law
3. When a State objecting to a reservation has not opposed the entry into force of the
treaty between itself and the reserving State, the provisions to which the reservation
relates do not apply as between the two States to the extent of the reservation.
Article 22 Withdrawal of reservations and of objections to reservations
1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time
and the consent of a State which has accepted the reservation is not required for its
withdrawal.
2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at
any time.
3. Unless the treaty otherwise provides, or it is otherwise agreed:
(a) the withdrawal of a reservation becomes operative in relation to another contracting
State only when notice of it has been received by that State;
(b) the withdrawal of an objection to a reservation becomes operative only when notice
of it has been received by the State which formulated the reservation.
Article 23 Procedure regarding reservations
1. A reservation, an express acceptance of a reservation and an objection to a reservation
must be formulated in writing and communicated to the contracting States and other
States entitled to become parties to the treaty.
2. If formulated when signing the treaty subject to ratification, acceptance or approval,
a reservation must be formally confirmed by the reserving State when expressing its
consent to be bound by the treaty. In such a case the reservation shall be considered as
having been made on the date of its confirmation.
3. An express acceptance of, or an objection to, a reservation made previously to confirmation
of the reservation does not itself require confirmation.
4. The withdrawal of a reservation or of an objection to a reservation must be formulated in
writing.
(b) Reservations in the Inter-American and European systems
The position of the Inter-American Court of Human Rights
Article 75 of the American Convention on Human Rights allows for reservations provided
they are ‘in conformity with the provisions of the Vienna Convention on the Law
of Treaties [of 1969]’. The explicit reference to the Vienna Convention would suggest a
strict adherence to the general regime of reservations for multilateral treaties. The InterAmerican
Commission of Human Rights requested an Advisory Opinion of the Court concerning
the consequences of reservations on the entry into force of the Convention. In its
application, the Commission noted that under the general regime – and particularly under
the provisions of Article 20(4)(c) and (5) of the Vienna Convention – a treaty’s entry into
force could depend on the acceptance of the reservation by other States. In deciding that
this was not the case, the Court relied on the special nature of human rights treaties:
104 Emergence of human rights in international law
Inter-American Court of Human Rights, Advisory Opinion OC-2/82 of
24 September 1982 on the effect of reservations on the entry into force of
the American Convention on Human Rights (Arts. 74 and 75), Series A, No. 2:
26. Having concluded that States ratifying or adhering to the Convention may do so with
any reservations that are not incompatible with its object and purpose, the Court must now
determine which provisions of Article 20 of the Vienna Convention apply to reservations
made to the Convention. The result of this inquiry will of necessity also provide the answer
to the question posed by the Commission. This is so because, if under the Vienna Convention
reservations to the Convention are not deemed to require acceptance by the other States Parties,
then for the here relevant purposes Article 74 of the Convention applies and a State ratifying or
adhering to it with or without a reservation is deemed to be a State Party as of the date of the
deposit of the instrument of ratification or adherence. [Vienna Convention, Art. 20 (1)] On the
other hand, if acceptance of the reservation is required under the Vienna Convention, a reserving
State would be deemed to become a State Party only on the date when at least one other State
Party has accepted the reservation either expressly or by implication. [Vienna Convention, Art.
20(4)(c) and (5)] …
28. In deciding whether the Convention envisages the application of paragraph 1 or paragraph
4 of Article 20 of the Vienna Convention, the Court notes that the principles enunciated in
Article 20(4) reflect the needs of traditional multilateral international agreements which have as
their object the reciprocal exchange, for the mutual benefit of the States Parties, of bargained
for rights and obligations. In this context, and given the vastly increased number of States
comprising the international community today, the system established by Article 20(4) makes
considerable sense …
29. The Court must emphasize, however, that modern human rights treaties in general,
and the American Convention in particular, are not multilateral treaties of the traditional
type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the
contracting States. Their object and purpose is the protection of the basic rights of individual
human beings irrespective of their nationality, both against the State of their nationality and all
other contracting States. In concluding these human rights treaties, the States can be deemed
to submit themselves to a legal order within which they, for the common good, assume various
obligations, not in relation to other States, but towards all individuals within their jurisdiction …
31. These views about the distinct character of humanitarian treaties and the consequences to
be drawn therefrom apply with even greater force to the American Convention whose first two
preambular paragraphs read as follows:
‘Reaffirming their intention to consolidate in this hemisphere, within the framework of
democratic institutions, a system of personal liberty and social justice based on respect for the
essential rights of man;
Recognizing that the essential rights of man are not derived from one’s being a national of a
certain state, but are based upon attributes of the human personality, and that they therefore
justify international protection in the form of a convention reinforcing or complementing the
protection provided by the domestic law of the American states.’
32. It must be emphasized also that the Convention, unlike other international human rights
treaties, including the European Convention, confers on private parties the right to file a petition
105 Human rights law as part of international law
with the Commission against any State as soon as it has ratified the Convention. (Convention,
Art. 44.) By contrast, before one State may institute proceedings against another State, each of
them must have accepted the Commision’s jurisdiction to deal with inter-State communications.
(Convention, Art. 45.) This structure indicates the overriding importance the Convention attaches
to the commitments of the States Parties vis-à-vis individuals, which can be readily implemented
without the intervention of any other State.
33. Viewed in this light and considering that the Convention was designed to protect the
basic rights of individual human beings irrespective of their nationality, against States of their
own nationality or any other State Party, the Convention must be seen for what in reality it
is: a multilateral legal instrument of framework enabling States to make binding unilateral
commitments not to violate the human rights of individuals within their jurisdiction.
34. In this context, it would be manifestly unreasonable to conclude that the reference in
Article 75 to the Vienna Convention compels the application of the legal regime established by
Article 20(4), which makes the entry into force of a ratification with a reservation dependent
upon its acceptance by another State. A treaty which attaches such great importance to the
protection of the individual that it makes the right of individual petition mandatory as of the
moment of ratification, can hardly be deemed to have intended to delay the treaty’s entry into
force until at least one other State is prepared to accept the reserving State as a party. Given the
institutional and normative framework of the Convention, no useful purpose would be served by
such a delay.
35. Accordingly, for the purpose of the present analysis, the reference in Article 75 to the
Vienna Convention makes sense only if it is understood as an express authorization designed to
enable States to make whatever reservations they deem appropriate, provided the reservations
are not incompatible with the object and purpose of the treaty. As such, they can be said to be
governed by Article 20(1) of the Vienna Convention and, consequently, do not require acceptance
by any other State Party.
The Inter-American Court also discussed the issue of reservations in the case ofHilaire v.
Trinidad and Tobago. That case was filed before the Inter-American Court by the InterAmerican
Commission on Human Rights one day before the denunciation by Trinidad
and Tobago of the American Convention on Human Rights – a result of the ruling of
the Judicial Committee of the Privy Council in Pratt and Morgan v. Attorney General
for Jamaica (Privy Council Appeal No. 10/1993, 2 November 1994) (see below, box
1.5.) – took effect. In its application, the Inter-American Commission sought a statement
from the Court to the effect that the mandatory death penalty was incompatible
with the American Convention. In its ruling on preliminary objections, the InterAmerican
Court considered whether a reservation made to the recognition of compulsory
jurisdiction of the Court was compatible with the object and purpose of the
treaty. In accepting the jurisdiction of the Court, Trinidad and Tobago had declared
that ‘[a]s regards Article 62 of the Convention, the Government of the Republic of
Trinidad and Tobago, recognizes the compulsory jurisdiction of the Inter-American
Court of Human Rights, as stated in the said article, only to such extent that recognition
is consistent with the relevant sections of the Constitution of the Republic of
106 Emergence of human rights in international law
Trinidad and Tobago; and provided that Judgment of the Court does not infringe,
create or abolish any existing rights or duties of any private citizen’. Article 62(2) of
the American Convention allows States to accept the jurisdiction of the Court on the
‘condition of reciprocity, for a specified period, or for specific cases’. The reservation
made by Trinidad and Tobago went considerably further, and in fact amounted to
making the exercise of jurisdiction by the Court conditional upon its compatibility to
that State’s internal legal order.
Inter-American Court of Human Rights, case of Hilaire v. Trinidad and Tobago,
Preliminary Objections, judgment of 1 September 2001, Series C, No. 80:
82. Interpreting the Convention in accordance with its object and purpose, the Court must act
in a manner that preserves the integrity of the mechanism provided for in Article 62(1) of the
Convention. It would be unacceptable to subordinate the said mechanism to restrictions that
would render the system for the protection of human rights established in the Convention and,
as a result, the Court’s jurisdictional role, inoperative …
86. [The] purported ‘reservation’ contains two parts. The first intends to limit the recognition
of the Court’s compulsory jurisdiction in the sense that said recognition is only valid to the
extent that it is ‘consistent with the relevant sections’ of the Constitution of Trinidad and Tobago.
These expressions can lead to numerous interpretations. Nonetheless, it is clear to the Court
that they cannot be given a scope that would impede this Tribunal’s ability to judge whether the
State had or had not violated a provision of the Convention. The second part of the purported
restriction relates to the State’s ‘recognition’ of the Court’s compulsory jurisdiction so that its
judgments do not ‘infringe, create or abolish any existing rights or duties of any private citizen’
(sic). Again, though the precise meaning of this condition is unclear, without a doubt it cannot
be utilized with the purpose of suppressing the jurisdiction of the Court to hear and decide an
application related to an alleged violation of the State’s conventional obligations …
88. The Court observes that the instrument of acceptance of the Court’s compulsory
jurisdiction on the part of Trinidad and Tobago is not consistent with the hypothesis stipulated in
Article 62(2) of the American Convention. It is general in scope, which completely subordinates
the application of the American Convention to the internal legislation of Trinidad and Tobago as
decided by its courts. This implies that the instrument of acceptance is manifestly incompatible
with the object and purpose of the Convention. As a result, the said article does not contain a
provision that allows Trinidad and Tobago to formulate the ‘restriction’ it made …
92. The declaration formulated by the State of Trinidad and Tobago would allow it to decide
in each specific case the extent of its own acceptance of the Court’s compulsory jurisdiction to
the detriment of this Tribunal’s compulsory functions. In addition, it would give the State the
discretional power to decide which matters the Court could hear, thus depriving the exercise of
the Court’s compulsory jurisdiction of all efficacy.
93. Moreover, accepting the said declaration in the manner proposed by the State would
lead to a situation in which the Court would have the State’s Constitution as its first point of
reference, and the American Convention only as a subsidiary parameter, a situation which would
cause a fragmentation of the international legal order for the protection of human rights, and
which would render illusory the object and purpose of the Convention.
107 Human rights law as part of international law
94. The American Convention and the other human rights treaties are inspired by a set of
higher common values (centered around the protection of the human being), are endowed with
specific supervisory mechanisms, are applied as a collective guarantee, embody essentially
objective obligations, and have a special character that sets them apart from other treaties. The
latter govern mutual interests between and among the States parties and are applied by them,
with all the juridical consequences that follow there from for the international and domestic
systems …
98. For the foregoing reasons, the Court considers that Trinidad and Tobago cannot prevail in
the limitation included in its instrument of acceptance of the optional clause of the mandatory
jurisdiction of the Inter-American Court of Human Rights in virtue of what has been established
in Article 62 of the American Convention, because this limitation is incompatible with the object
and purpose of the Convention. Consequently, the Court considers that it must dismiss the
second and third arguments in the preliminary objection submitted by the State insofar as they
refer to the Court’s jurisdiction.
The position of the European Court of Human Rights
The views expressed by the Inter-American Court of Human Rights imply both that
certain reservations may be invalid, since they would run counter to the object and
purpose of the American Convention on Human Rights or to the recognition of the
compulsory jurisdiction of the Court, and that it is for the Inter-American Court itself,
rather than for the other States parties by the classic mechanism of objections, to decide
on the validity of any reservations which any State may have expressed upon ratification
or notification of its acceptance of the jurisdiction of the Court. The European
Court of Human Rights was even more explicit in the Belilos v. Switzerland case of
1988 (Eur. Ct. H.R. (plen.), Belilos v. Switzerland, judgment of 29 April 1988, Series
A No. 132). This judgment sparked a number of comments on the doctrine, because it
constituted an implicit, albeit unmistakeable, departure from an understanding of the
European Convention on Human Rights as a treaty of a traditional kind (see I. Cameron
and F. Horn, ‘Reservations to the European Convention: the Belilos Case’, German
Yearbook of International Law, 33 (1990), 69; S. Marks, ‘Reservations Unhinged: the
Belilos Case before the European Court of Human Rights’, International and Comparative
Law Quarterly, 39 (1990), 300; H. J. Bourguigon, ‘The Belilos Case: New Lights on
Reservations to Multilateral Treaties’, Virginia Journal of International Law, 29 (1989),
347). In contrast to what is generally the case for multilateral treaties, States parties to
human rights instruments generally omit to object to any reservations made by States
upon acceding to such instruments, since a human rights treaty does not primarily
grant them rights or advantages: rather, as we have seen, such a treaty has an ‘objective’
character, stipulating rights for the benefit of persons under the jurisdiction of
the States parties (see above, section 4.4.). In addition, human rights treaties are often
seen as merely embodying, in treaty form, obligations of States which are pre-existing,
whether they have their source in customary international law or in the general
108 Emergence of human rights in international law
principles of law, and which are not at the disposal of States (see above, section 4.1.).
These characteristics of human rights treaties may explain the attitude of the European
Court of Human Rights in Belilos which, after it found the Swiss reservation to
Article 6 §1 of the Convention to be invalid, considered that it should be ‘severed’ from
the main undertakings of Switzerland under the Convention.
The context was the following. Upon ratifying the European Convention on
Human Rights on 28 November 1974, Switzerland made the following declaration
on the interpretation of Article 6 para. 1: ‘The Swiss Federal Council considers that
the guarantee of fair trial in Article 6, paragraph 1 of the Convention, in the determination
of civil rights and obligations or any criminal charge against the person
in question is intended solely to ensure ultimate control by the judiciary over the
acts or decisions of the public authorities relating to such rights or obligations or
the determination of such a charge.’ In the Belilos case, the Court was called upon to
examine this reservation under then Article 64 of the Convention (now 57), which
states:
1. Any State may, when signing the Convention or when depositing its instrument
of ratification, make a reservation in respect of any particular provision of the
Convention to the extent that any law then in force in its territory is not in
conformity with the provision. Reservations of a general character shall not be
permitted under this Article.
2. Any reservation made under this Article shall contain a brief statement of the law
concerned.
The Court considered that it had jurisdiction to examine the validity of the Switzerland’s
reservation to the ratification of the Convention, citing in this regard Articles 19, 45
and 49 of the Convention, which relate to the powers of the Court (para. 50 of the
judgment). It found that the reservation did not comply with the conditions imposed
under Article 64 (now 57) of the Convention. The wording of the Swiss declaration, the
Court noted, did ‘not make it possible for the scope of the undertaking by Switzerland
to be ascertained exactly, in particular as to which categories of dispute are included
and as to whether or not the “ultimate control by the judiciary” takes in the facts of
the case. They can therefore be interpreted in different ways, whereas Article 64 §1
requires precision and clarity. In short, they fall foul of the rule that reservations must
not be of a general character’ (para. 55); in addition, Switzerland has not included in
its reservation a ‘brief statement of the law concerned’ as required by Article 64 para.
2 (now 57 para. 2) of the Convention, whereas the purpose of this provision, said the
Court, ‘is to provide a guarantee – in particular for the other Contracting Parties and
the Convention institutions – that a reservation does not go beyond the provisions
expressly excluded by the State concerned. This is not a purely formal requirement but
a condition of substance. The omission in the instant case therefore cannot be justified
even by important practical difficulties’ (para. 59). The Court concluded that it could
go on to proceed with the examination of whether Article 6 para. 1 ECHR had been
violated (para. 60):
109 Human rights law as part of international law
[T]he declaration in question does not satisfy two of the requirements of Article 64
of the Convention, with the result that it must be held to be invalid. At the same
time, it is beyond doubt that Switzerland is, and regards itself as, bound by the
Convention irrespective of the validity of the declaration. Moreover, the Swiss
Government recognised the Court’s competence to determine the latter issue, which
they argued before it. The Government’s preliminary objection must therefore be
rejected.
(c) From regional to universal human rights treaties: the doctrine of the Human Rights
Committee
The position adopted by the European Court of Human Rights in Belilos inspired the
Human Rights Committee when it was confronted with the wide-ranging reservations
appended by the United States to their accession to the International Covenant on Civil
and Political Rights:
Reservations, understandings, and declarations entered by the United States upon
ratifying the International Covenant on Civil and Political Rights (8 June 1992):
Reservations:
(1) That article 20 [of the Covenant, providing in particular that ‘any advocacy of national,
racial or religious hatred that constitutes incitement to discrimination, hostility or
violence shall be prohibited by law’] does not authorize or require legislation or other
action by the United States that would restrict the right of free speech and association
protected by the Constitution and laws of the United States.
(2) That the United States reserves the right, subject to its Constitutional constraints,
to impose capital punishment on any person (other than a pregnant woman) duly
convicted under existing or future laws permitting the imposition of capital punishment,
including such punishment for crimes committed by persons below eighteen
years of age. [As stated in the initial report submitted by the United States to the
Human Rights Committee, this reservation has been adopted in consideration of the
fact that ‘approximately half the states have adopted legislation permitting juveniles
aged 16 and older to be prosecuted as adults when they commit the most egregious
offences, and because the Supreme Court has upheld the constitutionality of such
laws’ (CCPR/C/81/Add. 4, 24 August 1994, para. 148)].
(3) That the United States considers itself bound by article 7 to the extent that ‘cruel,
inhuman or degrading treatment or punishment’ means the cruel and unusual treatment
or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments
to the Constitution of the United States. [Again, the initial report submitted by the
United States to the Human Rights Committee states: ‘As such proceedings and
practices have repeatedly withstood judicial review of their constitutionality in the
United States, it was determined to be appropriate for the United States to condition
its acceptance of the United Nations Convention against Torture and Other Cruel,
110 Emergence of human rights in international law
Inhuman or Degrading Treatment or Punishment on a formal reservation to the effect
that the United States considers itself bound to the extent that “cruel, inhuman
treatment or punishment” means the cruel and unusual treatment or punishment
prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution
of the United States. For the same reasons, and to ensure uniformity of interpretation
as to the obligations of the United States under the Covenant and the Torture
Convention on this point, the United States took the [reservation above] to
the Covenant’ (CCPR/C/81/Add. 4, 24 August 1994, para. 148)].
(4) That because US law generally applies to an offender the penalty in force at the time
the offence was committed, the United States does not adhere to the third clause of
paragraph 1 of article 15 [according to which: ‘If, subsequent to the commission of the
offence, provision is made by law for the imposition of the lighter penalty, the offender
shall benefit thereby’].
(5) That the policy and practice of the United States are generally in compliance with and
supportive of the Covenant’s provisions regarding treatment of juveniles in the criminal
justice system. Nevertheless, the United States reserves the right, in exceptional circumstances,
to treat juveniles as adults, notwithstanding paragraphs 2(b) and 3 of article
10 and paragraph 4 of article 14. The United States further reserves to these provisions
with respect to States with respect to individuals who volunteer for military service prior
to age 18.
Understandings [(5), which relates to the responsibility of the federal government for the
measures to be adopted by states and local authorities, has been omitted here: see chapter 2,
box 2.1.]:
(1) That the Constitution and laws of the United States guarantee all persons equal protection
of the law and provide extensive protections against discrimination. The United States
understands distinctions based upon race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or any other status – as those terms are
used in article 2, paragraph 1 and article 26 – to be permitted when such distinctions are,
at minimum, rationally related to a legitimate governmental objective. The United States
further understands the prohibition in paragraph 1 of article 4 upon discrimination, in
time of public emergency, based ‘solely’ on the status of race, colour, sex, language, religion
or social origin, not to bar distinctions that may have a disproportionate effect upon
persons of a particular status.
(2) That the United States understands the right to compensation referred to in articles 9(5)
and 14(6) to require the provision of effective and enforceable mechanisms by which a
victim of an unlawful arrest or detention or a miscarriage of justice may seek and, where
justified, obtain compensation from either the responsible individual or the appropriate
governmental entity. Entitlement to compensation may be subject to the reasonable
requirements of domestic law.
(3) That the United States understands the reference to ‘exceptional circumstances’ in
paragraph 2(a) of article 10 to permit the imprisonment of an accused person with
111 Human rights law as part of international law
convicted persons where appropriate in light of an individual’s overall dangerousness,
and to permit accused persons to waive their right to segregation from convicted persons.
The United States further understands that paragraph 3 of article 10 does not
diminish the goals of punishment, deterrence, and incapacitation as additional
legitimate purposes for a penitentiary system.
(4) That the United States understands that subparagraphs 3(b) and (d) of article 14 do not
require the provision of a criminal defendant’s counsel of choice when the defendant is
provided with court-appointed counsel on grounds of indigence, when the defendant is
financially able to retain alternative counsel, or when imprisonment is not imposed. The
United States further understands that paragraph 3(e) does not prohibit a requirement
that the defendant make a showing that any witness whose attendance he seeks to
compel is necessary for his defense. The United States understands the prohibition upon
double jeopardy in paragraph 7 to apply only when the judgment of acquittal has been
rendered by a court of the same governmental unit, whether the Federal Government or
a constituent unit, as is seeking a new trial for the same cause …
Declarations:
(1) That the United States declares that the provisions of articles 1 through 27 of the
Covenant are not self-executing.
(2) That it is the view of the United States that States Party to the Covenant should wherever
possible refrain from imposing any restrictions or limitations on the exercise of
the rights recognized and protected by the Covenant, even when such restrictions and
limitations are permissible under the terms of the Covenant. For the United States,
article 5, paragraph 2, which provides that fundamental human rights existing in any
State Party may not be diminished on the pretext that the Covenant recognizes them to
a lesser extent, has particular relevance to article 19, paragraph 3 which would permit
certain restrictions on the freedom of expression. The United States declares that it will
continue to adhere to the requirements and constraints of its Constitution in respect to
all such restrictions and limitations.
(3) That the United States declares that the right referred to in article 47 [right of all
peoples to enjoy and utilize fully and freely their natural wealth and resources] may be
exercised only in accordance with international law.
In reaction, the Human Rights Committee adopted a General Comment on the issue of reservations
to the International Covenant on Civil and Political Rights (for a discussion, see
C. J. Redgwell, ‘Reservations to Treaties and Human Rights Committee General Comment
No. 24(52)’, International and Comparative Law Quarterly, 46 (1997), 390–412; on the question
whether the specificity of human rights treaties justifies the approach of the Human
Rights Committee, see R. Baratta, ‘Should Invalid Reservations to Human Rights Treaties
be Disregarded?’, European Journal of International Law, 11 (2000), 413; K. Korkelia, ‘New
Challenges to the Regime of Reservations under the International Covenant on Civil and
Political Rights’, European Journal of International Law, 13 (2002), 437).
112 Emergence of human rights in international law
Human Rights Committee, 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, 4 November 1994 (CCPR/C/21/Rev.1/Add. 6):
[General approach of the Committee]
6. The absence of a prohibition on reservations [in the text of the Covenant] does not mean
that any reservation is permitted. The matter of reservations under the Covenant and the first
Optional Protocol is governed by international law. Article 19(3) of the Vienna Convention on
the Law of Treaties provides relevant guidance. It stipulates that where a reservation is not
prohibited by the treaty or falls within the specified permitted categories, a State may make
a reservation provided it is not incompatible with the object and purpose of the treaty. Even
though, unlike some other human rights treaties, the Covenant does not incorporate a specific
reference to the object and purpose test, that test governs the matter of interpretation and
acceptability of reservations.
[The object and purpose of the Covenant]
7. In an instrument which articulates very many civil and political rights, each of the many
articles, and indeed their interplay, secures the objectives of the Covenant. The object and
purpose of the Covenant is to create legally binding standards for human rights by defining
certain civil and political rights and placing them in a framework of obligations which are legally
binding for those States which ratify; and to provide an efficacious supervisory machinery for
the obligations undertaken.
8. Reservations that offend peremptory norms would not be compatible with the object
and purpose of the Covenant. Although treaties that are mere exchanges of obligations
between States allow them to reserve inter se application of rules of general international
law, it is otherwise in human rights treaties, which are for the benefit of persons within their
jurisdiction. Accordingly, provisions in the Covenant that represent customary international law
(and a fortiori when they have the character of peremptory norms) may not be the subject of
reservations. Accordingly, a State may not reserve the right to engage in slavery, to torture, to
subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive
persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought,
conscience and religion, to presume a person guilty unless he proves his innocence, to execute
pregnant women or children, to permit the advocacy of national, racial or religious hatred, to
deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy
their own culture, profess their own religion, or use their own language. And while reservations
to particular clauses of article 14 may be acceptable, a general reservation to the right to a fair
trial would not be.
9. Applying more generally the object and purpose test to the Covenant, the Committee
notes that, for example, reservation to article 1 denying peoples the right to determine their
own political status and to pursue their economic, social and cultural development, would
be incompatible with the object and purpose of the Covenant. Equally, a reservation to the
obligation to respect and ensure the rights, and to do so on a non-discriminatory basis (article
2(1)) would not be acceptable. Nor may a State reserve an entitlement not to take the necessary
steps at the domestic level to give effect to the rights of the Covenant (article 2(2)).
113 Human rights law as part of international law
10. The Committee has further examined whether categories of reservations may offend
the ‘object and purpose’ test. In particular, it falls for consideration as to whether reservations
to the non-derogable provisions of the Covenant are compatible with its object and purpose.
While there is no hierarchy of importance of rights under the Covenant, the operation of
certain rights may not be suspended, even in times of national emergency. This underlines
the great importance of non-derogable rights. But not all rights of profound importance,
such as articles 9 and 27 of the Covenant, have in fact been made non-derogable. One reason
for certain rights being made non-derogable is because their suspension is irrelevant to the
legitimate control of the state of national emergency (for example, no imprisonment for debt,
in article 11). Another reason is that derogation may indeed be impossible (as, for example,
freedom of conscience). At the same time, some provisions are non-derogable exactly because
without them there would be no rule of law. A reservation to the provisions of article 4 itself,
which precisely stipulates the balance to be struck between the interests of the State and the
rights of the individual in times of emergency, would fall in this category. And some nonderogable
rights, which in any event cannot be reserved because of their status as peremptory
norms, are also of this character – the prohibition of torture and arbitrary deprivation of life
are examples. While there is no automatic correlation between reservations to non-derogable
provisions, and reservations which offend against the object and purpose of the Covenant, a
State has a heavy onus to justify such a reservation.
11. The Covenant consists not just of the specified rights, but of important supportive
guarantees. These guarantees provide the necessary framework for securing the rights in the
Covenant and are thus essential to its object and purpose. Some operate at the national level
and some at the international level. Reservations designed to remove these guarantees are
thus not acceptable. Thus, a State could not make a reservation to article 2, paragraph 3, of
the Covenant, indicating that it intends to provide no remedies for human rights violations.
Guarantees such as these are an integral part of the structure of the Covenant and underpin
its efficacy. The Covenant also envisages, for the better attainment of its stated objectives,
a monitoring role for the Committee. Reservations that purport to evade that essential
element in the design of the Covenant, which is also directed to securing the enjoyment of
the rights, are also incompatible with its object and purpose. A State may not reserve the
right not to present a report and have it considered by the Committee. The Committee’s role
under the Covenant, whether under article 40 or under the Optional Protocols, necessarily
entails interpreting the provisions of the Covenant and the development of a jurisprudence.
Accordingly, a reservation that rejects the Committee’s competence to interpret the
requirements of any provisions of the Covenant would also be contrary to the object and
purpose of that treaty.
12. The intention of the Covenant is that the rights contained therein should be ensured to
all those under a State party’s jurisdiction. To this end certain attendant requirements are likely
to be necessary. Domestic laws may need to be altered properly to reflect the requirements
of the Covenant; and mechanisms at the domestic level will be needed to allow the Covenant
rights to be enforceable at the local level. Reservations often reveal a tendency of States not to
want to change a particular law. And sometimes that tendency is elevated to a general policy.
Of particular concern are widely formulated reservations which essentially render ineffective
all Covenant rights which would require any change in national law to ensure compliance with
Covenant obligations. No real international rights or obligations have thus been accepted.
114 Emergence of human rights in international law
And when there is an absence of provisions to ensure that Covenant rights may be sued on
in domestic courts, and, further, a failure to allow individual complaints to be brought to
the Committee under the first Optional Protocol, all the essential elements of the Covenant
guarantees have been removed.
13. The issue arises as to whether reservations are permissible under the first Optional
Protocol [the text of which is silent on the issue of reservations] and, if so, whether any
such reservation might be contrary to the object and purpose of the Covenant or of the first
Optional Protocol itself. It is clear that the first Optional Protocol is itself an international
treaty, distinct from the Covenant but closely related to it. Its object and purpose is to
recognize the competence of the Committee to receive and consider communications from
individuals who claim to be victims of a violation by a State party of any of the rights in the
Covenant. States accept the substantive rights of individuals by reference to the Covenant,
and not the first Optional Protocol. The function of the first Optional Protocol is to allow
claims in respect of those rights to be tested before the Committee. Accordingly, a reservation
to an obligation of a State to respect and ensure a right contained in the Covenant, made
under the first Optional Protocol when it has not previously been made in respect of the same
rights under the Covenant, does not affect the State’s duty to comply with its substantive
obligation. A reservation cannot be made to the Covenant through the vehicle of the Optional
Protocol but such a reservation would operate to ensure that the State’s compliance with
that obligation may not be tested by the Committee under the first Optional Protocol. And
because the object and purpose of the first Optional Protocol is to allow the rights obligatory
for a State under the Covenant to be tested before the Committee, a reservation that seeks
to preclude this would be contrary to the object and purpose of the first Optional Protocol,
even if not of the Covenant. A reservation to a substantive obligation made for the first time
under the first Optional Protocol would seem to reflect an intention by the State concerned
to prevent the Committee from expressing its views relating to a particular article of the
Covenant in an individual case.
14. The Committee considers that reservations relating to the required procedures under the
first Optional Protocol would not be compatible with its object and purpose. The Committee
must control its own procedures as specified by the Optional Protocol and its rules of procedure.
Reservations have, however, purported to limit the competence of the Committee to acts and
events occurring after entry into force for the State concerned of the first Optional Protocol.
In the view of the Committee this is not a reservation but, most usually, a statement consistent
with its normal competence ratione temporis. At the same time, the Committee has insisted
upon its competence, even in the face of such statements or observations, when events or acts
occurring before the date of entry into force of the first Optional Protocol have continued to
have an effect on the rights of a victim subsequent to that date. Reservations have been entered
which effectively add an additional ground of inadmissibility under article 5, paragraph 2, by
precluding examination of a communication when the same matter has already been examined
by another comparable procedure. In so far as the most basic obligation has been to secure
independent third party review of the human rights of individuals, the Committee has, where
the legal right and the subject-matter are identical under the Covenant and under another
international instrument, viewed such a reservation as not violating the object and purpose of
the first Optional Protocol …
115 Human rights law as part of international law
[The competence of the Committee to determine the validity of the reservations
made to the Covenant or to an additional protocol, and the consequences attached
to a finding of invalidity]
16. The Committee finds it important to address which body has the legal authority to make
determinations as to whether specific reservations are compatible with the object and purpose
of the Covenant. As for international treaties in general, the International Court of Justice
has indicated in the Reservations to the Genocide Convention Case (1951) that a State which
objected to a reservation on the grounds of incompatibility with the object and purpose of
a treaty could, through objecting, regard the treaty as not in effect as between itself and
the reserving State. Article 20, paragraph 4, of the Vienna Convention on the Law of Treaties
1969 contains provisions most relevant to the present case on acceptance of and objection
to reservations. This provides for the possibility of a State to object to a reservation made by
another State. Article 21 deals with the legal effects of objections by States to reservations
made by other States. Essentially, a reservation precludes the operation, as between the
reserving and other States, of the provision reserved; and an objection thereto leads to the
reservation being in operation as between the reserving and objecting State only to the extent
that it has not been objected to.
17. As indicated above, it is the Vienna Convention on the Law of Treaties that provides
the definition of reservations and also the application of the object and purpose test in the
absence of other specific provisions. But the Committee believes that its provisions on the
role of State objections in relation to reservations are inappropriate to address the problem
of reservations to human rights treaties. Such treaties, and the Covenant specifically, are
not a web of inter-State exchanges of mutual obligations. They concern the endowment of
individuals with rights. The principle of inter-State reciprocity has no place, save perhaps in
the limited context of reservations to declarations on the Committee’s competence under
article 41 [inter-state communications]. And because the operation of the classic rules on
reservations is so inadequate for the Covenant, States have often not seen any legal interest
in or need to object to reservations. The absence of protest by States cannot imply that a
reservation is either compatible or incompatible with the object and purpose of the Covenant.
Objections have been occasional, made by some States but not others, and on grounds not
always specified; when an objection is made, it often does not specify a legal consequence,
or sometimes even indicates that the objecting party none the less does not regard the
Covenant as not in effect as between the parties concerned. In short, the pattern is so unclear
that it is not safe to assume that a non-objecting State thinks that a particular reservation
is acceptable. In the view of the Committee, because of the special characteristics of the
Covenant as a human rights treaty, it is open to question what effect objections have between
States inter se. However, an objection to a reservation made by States may provide some
guidance to the Committee in its interpretation as to its compatibility with the object and
purpose of the Covenant.
18. It necessarily falls to the Committee to determine whether a specific reservation is
compatible with the object and purpose of the Covenant. This is in part because, as indicated
above, it is an inappropriate task for States parties in relation to human rights treaties, and in
part because it is a task that the Committee cannot avoid in the performance of its functions.
In order to know the scope of its duty to examine a State’s compliance under article 40 or a
116 Emergence of human rights in international law
communication under the first Optional Protocol, the Committee has necessarily to take a
view on the compatibility of a reservation with the object and purpose of the Covenant and
with general international law. Because of the special character of a human rights treaty, the
compatibility of a reservation with the object and purpose of the Covenant must be established
objectively, by reference to legal principles, and the Committee is particularly well placed
to perform this task. The normal consequence of an unacceptable reservation is not that
the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will
generally be severable, in the sense that the Covenant will be operative for the reserving party
without benefit of the reservation.
[Requirements of specificity and transparency of reservations]
19. Reservations must be specific and transparent, so that the Committee, those under the
jurisdiction of the reserving State and other States parties may be clear as to what obligations
of human rights compliance have or have not been undertaken. Reservations may thus not be
general, but must refer to a particular provision of the Covenant and indicate in precise terms
its scope in relation thereto. When considering the compatibility of possible reservations with
the object and purpose of the Covenant, States should also take into consideration the overall
effect of a group of reservations, as well as the effect of each reservation on the integrity
of the Covenant, which remains an essential consideration. States should not enter so many
reservations that they are in effect accepting a limited number of human rights obligations,
and not the Covenant as such. So that reservations do not lead to a perpetual non-attainment
of international human rights standards, reservations should not systematically reduce the
obligations undertaken only to those presently existing in less demanding standards of domestic
law. Nor should interpretative declarations or reservations seek to remove an autonomous
meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only
in so far as they are identical, with existing provisions of domestic law. States should not seek
through reservations or interpretative declarations to determine that the meaning of a provision
of the Covenant is the same as that given by an organ of any other international treaty body.
20. States should institute procedures to ensure that each and every proposed reservation is
compatible with the object and purpose of the Covenant. It is desirable for a State entering a
reservation to indicate in precise terms the domestic legislation or practices which it believes
to be incompatible with the Covenant obligation reserved; and to explain the time period it
requires to render its own laws and practices compatible with the Covenant, or why it is unable
to render its own laws and practices compatible with the Covenant. States should also ensure
that the necessity for maintaining reservations is periodically reviewed, taking into account any
observations and recommendations made by the Committee during examination of their reports.
Reservations should be withdrawn at the earliest possible moment. Reports to the Committee
should contain information on what action has been taken to review, reconsider or withdraw
reservations.
Probably the most important affirmations of the general comment were that the Human
Rights Committee had the power to decide on the validity of a reservation to the ICCPR,
and that an invalid reservation could be detached from the main commitment to the
ICCPR as expressed by its ratification. This position was heavily contested (see, in particular,
Observations by France on General Comment 24, 4 International Human Rights
117 Human rights law as part of international law
Reports, 4 (1997), 6; Observations by the United Kingdom on General Comment 24, 3
International Human Rights Reports, 3 (1996), 261; Observations by the United States on
General Comment 24, International Human Rights Reports, 3 (1996), 265). In 1997, the
International Law Commission (ILC) considered the question of the unity or diversity
of the juridical regime for reservations. Stating to be ‘aware of the discussion currently
taking place in other forums on the subject of reservations to normative multilateral
treaties, and particularly treaties concerning human rights’, the ILC proposed the following
conclusions:
International Law Commission, The unity or diversity of the juridical regime for
reservations, Preliminary Conclusions of 1997:
1. The Commission reiterates its view that articles 19 to 23 of the Vienna Conventions on the
Law of Treaties of 1969 and 1986 govern the regime of reservations to treaties and that,
in particular, the object and purpose of the treaty is the most important of the criteria for
determining the admissibility of reservations;
2. The Commission considers that, because of its flexibility, this regime is suited to the
requirements of all treaties, of whatever object or nature, and achieves a satisfactory
balance between the objectives of preservation of the integrity of the text of the treaty and
universality of participation in the treaty;
3. The Commission considers that these objectives apply equally in the case of reservations
to normative multilateral treaties, including treaties in the area of human rights and that,
consequently, the general rules enunciated in the above-mentioned Vienna Conventions
govern reservations to such instruments;
4. The Commission nevertheless considers that the establishment of monitoring bodies by many
human rights treaties gave rise to legal questions that were not envisaged at the time of the
drafting of those treaties, connected with appreciation of the admissibility of reservations
formulated by States;
5. The Commission also considers that where these treaties are silent on the subject, the
monitoring bodies established thereby are competent to comment upon and express
recommendations with regard, inter alia, to the admissibility of reservations by States, in
order to carry out the functions assigned to them;
6. The Commission stresses that this competence of the monitoring bodies does not exclude
or otherwise affect the traditional modalities of control by the contracting parties, on the
one hand, in accordance with the above-mentioned provisions of the Vienna Conventions of
1969 and 1986 and, where appropriate by the organs for settling any dispute that may arise
concerning the interpretation or application of the treaties;
7. The Commission suggests providing specific clauses in normative multilateral treaties,
including in particular human rights treaties, or elaborating protocols to existing treaties if
States seek to confer competence on the monitoring body to appreciate or determine the
admissibility of a reservation;
8. The Commission notes that the legal force of the findings made by monitoring bodies in
the exercise of their power to deal with reservations cannot exceed that resulting from the
powers given to them for the performance of their general monitoring role;
118 Emergence of human rights in international law
9. The Commission calls upon States to cooperate with monitoring bodies and give due
consideration to any recommendations that they may make or to comply with their
determination if such bodies were to be granted competence to that effect in the
future;
10. The Commission notes also that, in the event of inadmissibility of a reservation, it
is the reserving State that has the responsibility for taking action. This action may
consist, for example, in the State either modifying its reservation so as to eliminate
the inadmissibility, or withdrawing its reservation, or forgoing becoming a party to the
treaty;
11. The Commission expresses the hope that the above conclusions will help to clarify the
reservations regime applicable to normative multilateral treaties, particularly in the area of
human rights;
12. The Commission emphasizes that the above conclusions are without prejudice to the
practices and rules developed by monitoring bodies within regional contexts.
The Human Rights Committee was not deterred. Following the adoption of these
‘Preliminary Conclusions’ of the International Law Commission, the Chair of the Human
Rights Committee, Ms Christine Chanet, wrote a letter to the Chair of the International
Law Commission as well as to the Special Rapporteur on the issue of reservations to
treaties, expressing her disagreement (UN Doc. A/53/40, vol. I, p. 95). Upon examining
the initial report of the United States of America under the International Covenant
on Civil and Political Rights, the Human Rights Committee listed among its ‘principal
subjects of concern’ the following:
Concluding Observations of the Human Rights Committee: United States of
America, 3 October 1995 (CCPR/C/79/Add. 50)):
279. The Committee regrets the extent of the State party’s reservations, declarations and
understandings to the Covenant. It believes that, taken together, they intended to ensure
that the United States has accepted only what is already the law of the United States. The
Committee is also particularly concerned at reservations to article 6, paragraph 5, and article
7 of the Covenant, which it believes to be incompatible with the object and purpose of the
Covenant.
In its most recent Concluding Observations regarding the United States, the Human
Rights Committee ‘welcomes the Supreme Court’s decision in Roper v. Simmons [543
U.S. 551] (2005), which held that the Eighth and Fourteenth Amendments forbid
imposition of the death penalty on offenders who were under the age of 18 when
119 Human rights law as part of international law
their crimes were committed. In this regard, the Committee reiterates the recommendation
made in its previous concluding observations, encouraging the State
party to withdraw its reservation to article 6(5) of the Covenant’ (CCPR/C/USA/
CO/3/Rev.1, 18 December 2006).
In expressing the view in its 1997 preliminary conclusions that ‘in the event of
inadmissibility of a reservation, it is the reserving State that has the responsibility for
taking action’ (para. 10), the International Law Commission clearly questions what may
be called the ‘severability thesis’ held both by the European Court of Human Rights and
subsequently by the Human Rights Committee – i.e. allowing the treaty to be binding
on a State party even though the reservation attached by that State to its ratification
might be invalid. It has been remarked, however, that this thesis could in fact better
respect the requirements of State consent, since the costs involved by the opposite,
‘non-severability’ thesis – obliging the State to withdraw from the treaty, and to
re-enter without the reservation attached – might on average impose higher reputational
costs on States:
Ryan Goodman, ‘Human Rights Treaties, Invalid Reservations, and State Consent’,
American Journal of International Law, 96 (2002), 531 at 556:
The record of state treaty practice strongly suggests that error costs derived from a
nonseverance presumption exceed those from a presumption favoring severance. In most
of the cases, states have consented to having aspects of their legal system modified by
international legal developments. In the strongest cases of this kind – newly established
democracies – states often prefer locking as much of their domestic fates as practicable into
international structures. An adjudicator’s erroneous expulsion of a state from a treaty risks
significant costs along two dimensions: international (e.g. a sovereignty impact from the
state’s expulsion against its will, reputational costs to the state’s international standing, loss
of a leadership or participatory role in the regime) and domestic (e.g. the unhinging of a wide
array of judicially enforceable civil and political rights protections, facilitation of illiberal
rollbacks). The result would probably involve significant transaction costs in the process of
reratifying the agreement.
On the other hand, erroneous severance by the adjudicator, maintaining the state’s
membership in the treaty, would also risk significant, but seemingly more limited,
costs: international (e.g. a sovereignty impact from the state’s being held against its will)
and domestic (e.g. the creation of legal obligations the state was not prepared to accept;
the potential infringement of ‘counter-rights’, such as limiting freedom of speech in the
name of regulating hate speech). In this situation, however, the state has a relatively easy
recourse: withdrawal. This back-end solution helps prevent such errors from producing
severe impacts. There are potential reputational costs to withdrawal, but these should
be balanced against the fact that the state would have preferred expulsion in the first
place.
120 Emergence of human rights in international law
Box The denunciation by Trinidad and Tobago of the ICCPR and the
1.5. American Convention on Human Rights
The position of the Human Rights Committee as expressed in its General Comment No. 24 was
reaffirmed after Trinidad and Tobago decided to denounce the Optional Protocol on 26 May 1998,
and then immediately re-entered this instrument on 26 August 1998, the day when the denunciation
became effective. That denunciation, as well as the denunciation by Trinidad and Tobago
of the American Convention on Human Rights, also notified on 26 May 1998, were alleged to
be the only means the State concerned had at its disposal in order to comply with the ruling of
the Judicial Committee of the Privy Council in Pratt and Morgan v. Attorney General for Jamaica
(Privy Council Appeal No. 10/1993, 2 November 1994). This ruling determined that capital sentence
appeals should be heard within a reasonable delay (twelve months from conviction), and
that it should be possible for the international human rights bodies, such as the United Nations
Human Rights Committee and the Inter-American Commission on Human Rights, to dispose of
complaints submitted to them in death penalty cases at most within eighteen months, or the
detention following conviction to the death penalty could be considered inhuman or degrading
treatment. As the possibility of appeals before the Inter-American Commission and Court could
exceed this delay by a large margin – the Inter-American Commission of Human Rights could
not provide assurances that, in death penalty cases, the petitions would be expedited in order
to meet the time-frame requirements set by the Judicial Committee of the Privy Council – the
State considered itself obliged to denounce the American Convention on Human Rights. For
similar reasons, Trinidad and Tobago alleged it had to denounce the Optional Protocol to the
International Covenant on Civil and Political Rights.
When re-entering the Optional Protocol to the ICCPR, Trinidad and Tobago included a reservation
under the terms of which it ‘re-accedes to the Optional Protocol to the International
Covenant on Civil and Political Rights with a Reservation to article 1 thereof to the effect that
the Human Rights Committee shall not be competent to receive and consider communications
relating to any prisoner who is under sentence of death in respect of any matter relating to his
prosecution, his detention, his trial, his conviction, his sentence or the carrying out of the death
sentence on him and any matter connected therewith’.
A further decision of the Judicial Committee of the Privy Council was announced in March
1999. According to this decision, the execution of any death sentences should be stayed until
the Human Rights Committee or the Inter-American Commission and Court of Human Rights
have been provided an opportunity to examine the merits of communications filed with them
(Judicial Committee of the Privy Council, Thomas and Hilaire v. Attorney General and others,
Privy Council Appeal No. 60 of 1998, appeal from the Court of Appeal of Trinidad and Tobago,
17 March 1999). The decision was based essentially on the reasoning that ‘The appellants are
contending that their trials were unfair, and hope in due course to obtain binding rulings from
the [Inter-American Court of Human Rights] that their convictions should be quashed or their
sentences should be commuted. For the Government to carry out the sentences of death before
the petitions have been heard would deny the appellants their constitutional right to due process.’
This decision also introduced an exception to the time-limits for the execution of the
121 Human rights law as part of international law
death penalty introduced in Pratt and Morgan v. Attorney General for Jamaica [1994] 2 A.C. 1
at 33: the Judicial Committee noted ‘the delay occasioned by the slowness of the international
bodies in dealing with such petitions’, but they took the view that such delays ‘should not prevent
the death sentence from being carried out. Where, therefore, more than 18 months elapses
between the date on which a condemned man lodges a petition to an international body and
its final determination, [they] would regard it as appropriate to add the excess to the period of
18 months allowed for in Pratt.’
Despite these justifications, the reservation attached by Trinidad and Tobago when it
re-entered the Optional Protocol to the International Covenant on Civil and Political Rights
prompted a number of objections from the EU Member States. And in Kennedy v. Trinidad and
Tobago, following a communication submitted by a person sentenced to the death penalty,
the Human Rights Committee decided that the reservation cited above was incompatible with
the object and purpose of the Optional Protocol, and that accordingly the Committee was not
precluded from considering the communication under the Optional Protocol; on 2 November
1999, it therefore declared the communication admissible. Trinidad and Tobago took the view
that ‘in registering the communication and purporting to impose interim measures under rule
86 of the Committee’s rules of procedure, the Committee has exceeded its jurisdiction, and the
State party therefore considers the actions of the Committee in respect of this communication
to be void and of no binding effect’. On 27 March 2000, with effect on 27 June 2000, Trinidad
and Tobago denounced the Optional Protocol to the ICCPR a second time. The Human Rights
Committee nevertheless examined the merits of the communication, on which it adopted a
decision on 26 March 2002 (see Kennedy v. Trinidad and Tobago, Communication No. 845/1998,
CCPR/C/74/D/845/1998 (2002)). The Committee noted that the communication was submitted
for consideration before Trinidad and Tobago’s denunciation of the Optional Protocol became
effective on 27 June 2000 and that, in accordance with article 12(2) of the Optional Protocol,
it therefore continued to be subject to the application of the Optional Protocol. It found that
the case revealed a number of violations of the Covenant and that, therefore, the State party
was under an obligation to provide the author of the communication with an effective remedy,
including compensation and consideration of early release.
1.5. Questions for discussion: reservations to human rights treaties
1. Arguably, the intention of the International Court of Justice in adopting its Advisory Opinion of
1951 on the reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, was to achieve a compromise between two conflicting objectives: (1) to make accession
to the Convention attractive even for States which felt they might not be able immediately
to comply with all the obligations imposed by that instrument, and (2) to impose certain limits
as to which reservations are acceptable, based on whether or not they are compatible with
the object and purpose of the treaty. Has the Court succeeded? Was the position of the Court
122 Emergence of human rights in international law
guided primarily by the humanitarian character of the Genocide Convention, or by the fact that
it was a multilateral treaty seeking to achieve as wide a ratification as possible?
2. Does the Vienna Convention on the Law of Treaties express correctly the position of the
International Court of Justice in its Advisory Opinion on the reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide? Are the articles of the Vienna
Convention on reservations adapted to the needs of human rights treaties?
3. The 1965 International Convention for the Elimination of All Forms of Racial Discrimination
provides that ‘A reservation incompatible with the object and purpose of this Convention shall
not be permitted, nor shall a reservation the effect of which would inhibit the operation of
any of the bodies established by this Convention be allowed. A reservation shall be considered
incompatible or inhibitive if at least two thirds of the States Parties to this Convention object
to it’ (Art. 20(2)). Is this solution more appropriate than the one adopted for the International
Covenant on Civil and Political Rights by the Human Rights Committee?
4. In its General Comment No. 24, the Human Rights Committee takes the view that ‘provisions
in the Covenant that represent customary international law (and a fortiori when they have the
character of peremptory norms) may not be the subject of reservations’ (para. 8). Is this statement
compatible with the principle recalled by the International Court of Justice – and already
referred to above – that ‘customary international law continues to exist and to apply, separately
from international treaty law, even where the two categories of law have an identical content’
(case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States) [1986] I.C.J. Reports 14, para. 179 (judgment of 27 June 1986 on the merits))?
Is a State entering a reservation related to a guarantee codified in the International Covenant on
Civil and Political Rights where this guarantee is part of customary international law ‘reserving
the right’ to violate this guarantee, or is it merely excluding the possibility for the Committee to
monitor compliance with that obligation?
5. In general international law, the compatibility of the reservation to a multilateral treaty with
its object and purpose is based on the recorded objections to the said reservation expressed by
other parties to the multilateral treaty. The shift away from these objections and towards the
independent evaluation role of judicial or non-judicial bodies is justified, as regards human rights
treaties, by the fact that States parties to multilateral human rights treaties generally show little
interest in sanctioning non-compliance with those treaties by other parties. However, is this
distrust also justified where objections are in fact expressed? Should such objections be determinative,
when they are formulated by a sufficiently representative number of parties? In other
terms, should human rights monitoring bodies be bound to conclude that a reservation cannot
be accepted, where it has led to a large number of objections being raised?
6. Once a reservation is found to be invalid, how should we balance the respective merits of the
‘severability’ and ‘non-severability’ theses, as regards the consequences of such finding? Is the
option of withdrawal from a treaty always realistic, politically and legally, for a State whose reservation
expressed upon acceding to a multilateral human rights treaty is found invalid?