Clase 10 - Derechos Humanos

9.
International human rights law
International Law (3rd edn)

Anders Henriksen
p. 163 9. International human rights law

Anders Henriksen
https://doi.org/10.1093/he/9780198869399.003.0009
Published in print: 20 May 2021
Published online: September 2021
Abstract
This chapter discusses the system of human rights protection that has emerged since the end of the Second World War. It
begins in Section 9.2 with the primary sources of human rights law before Section 9.3 discusses the different categories of
human rights. Section 9.4 discusses the obligation on states to offer protection from acts of private actors. Section 9.5 provides
an overview of the enforcement mechanisms in the UN and Section 9.6 focuses on the regional protection of human rights.
Section 9.7 discusses the territorial scope of human rights treaties and Section 9.8 concerns the application of human rights in
times of public emergency. Section 9.8 provides an overview of the international legal protection of refugees.
Keywords: human rights law, rights protection, civil and political rights, European Convention on Human Rights, public
emergency, jurisdiction, refugees, Covid 19
Central Issues
1. This chapter examines the system of human rights protection that has emerged since the
Second World War.
2. It also discusses the mechanisms for the enforcement of human rights within the United
Nations and on a regional level, including the robust European system for the protection of
human rights.
3. The chapter analyses the territorial scope of the most important human rights conventions
and the applicability of human rights conventions in times of emergency, including in times
of armed conflict.
Page 1 of 24
Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for
personal use (for details see Privacy Policy and Legal Notice).
Subscriber: University College London; date: 26 January 2023
9. International human rights law
4. It also provides an overview of the international legal protection of refugees.
9.1 Introduction
As we have seen throughout this book, international law is at its core a horizontal legal system, the
primary purpose of which is to avoid undue friction between sovereign states. In fact, up until the middle
of the 20th century, how sovereign authority was exercised within a state was by and large considered a
matter in which other states had no business meddling. With a few exceptions, it was not until after the
Second World War that international law began to afford individuals protection from their own state.
Human rights law is not a field of public international law because its substance is inherently international
(in fact, it is not), but because states have turned how they treat individuals under their jurisdiction into a
matter of international concern through the adoption of treaties. Human rights law belongs, in other
words, within the international law of cooperation.
The idea that a person possesses certain rights as an individual vis-à-vis his or her own state, has its
1
origins in the era of the Enlightenment in the 18th century and in early Western constitutional thought. In
p. 164 the 19th century, many states adopted ↵ national constitutions with fundamental rights protection. In
general, though, the rights granted were tied to citizenship or a similar nexus to the state, and often based
on theories of ‘social contract’, and could therefore not be relied on by all individuals. In contrast, the
modern conception of human rights is based on the premise—derived from natural law thinking—that
some human rights are inherent in all individuals regardless of citizenship. Thus, human rights are
2
universal. The modern human rights law system started with the United Nations in 1945 and the ambition
to prevent the kinds of persecutions perpetrated by the Axis Powers in the latter part of the 1930s and first
half of the 1940s. Article 1(3) of the UN Charter stipulates that promoting respect for human rights and
3
fundamental freedoms is among the primary purposes of the UN. An important early achievement was the
adoption in 1948 of the General Assembly’s Universal Declaration of Human Rights (UDHR). In its first
article, the UDHR declares that all ‘human beings are born free and equal in dignity and rights’ and
4
‘endowed with reason and conscience and should act towards one another in a spirit of brotherhood’.
The belief that some human rights are universal has been criticized by ‘cultural relativists’ for
5
unjustifiably imposing one particular conception of justice on all others. During the Cold War, the
communist states in the East defended their dismal human rights record by arguing that the
implementation of civil and political rights (see Section 9.3.2) depended on the political ideology of a state,
and they in turn criticized the capitalist states in the West for not sufficiently respecting economic and
social rights (see Section 9.3.3). While the disagreements between the East and the West disappeared with
the collapse of Communism after the Cold War, a debate began to emerge between the developed states in
the North and the less developed states in the South, with the latter arguing that the priority afforded to
certain civil and political rights by the North comes at the expense of the right to self-determination and
development. Human rights’ claim to universalism is also challenged by arguments that greater account
should be taken of religious dogma, most notably those derived from Islam. In Europe and North America,
Page 2 of 24
large influx of immigrants and refugees has led to complicated exchanges about the extent to which
secular societies based on fundamental rights protection must make room for what are often perceived as
‘foreign’ cultural practices and religious beliefs. The debate about how much an immigrant must give up
and how much the receiving state must compromise is often cast in terms of human rights relativism.
International human rights law is a huge area of international law and it is impossible to cover all aspects
in the present chapter. Here, the primary focus is on the human rights law system. We begin in Section 9.2
p. 165 with the primary sources of ↵ human rights law, before Section 9.3 discusses the different categories of
human rights. Section 9.4 analyses the obligation to offer protection from acts of private individuals.
Section 9.5 provides an overview of the enforcement mechanisms in the UN and Section 9.6 focuses on the
regional protection of human rights. Section 9.7 examines the territorial scope of human rights treaties
and Section 9.8 concerns the application of human rights in times of emergency. Section 9.9 provides an
overview of the international legal protection of refugees.
9.2 Sources of human rights law
As noted in the introduction, the modern history of international human rights law can be said to begin
with the 1948 UDHR. Since then, the United Nations has been instrumental in the drafting of a host of
6
human rights conventions, including nine core universal human rights treaties open to all states. Among
those are the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International
Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR and the ICESCR are general
conventions that contain a wide range of different human rights. The UN has, however, also adopted
universal conventions that focus on a particular human rights issue, such as the 1965 International
Convention on the Elimination of All Forms of Racial Discrimination (CERD), the 1984 Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the 2006
International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). Other
UN human rights conventions focus on the protection of certain categories of vulnerable individuals. These
include the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
and the 1989 Convention on the Rights of the Child (CRC). A particularly important universal convention is
the 1951 Convention Relating to the Status of Refugees, which we shall return to in Section 9.8.
To supplement the universal human rights conventions, there are many regional human rights
conventions. The earliest was the 1950 European Convention on Human Rights (ECHR) adopted by the
Council of Europe. In fact, as we shall return to in Section 9.6.2, the protection of human rights is
particularly strong in Europe. Other notable regional human rights conventions include the 1969 American
Convention on Human Rights and the 1981 African Charter on Human and Peoples’ Rights. In 2004, the
Arab League adopted an Arab Charter on Human Rights that replaced an earlier charter that never entered
into force.
Fundamental human rights are also protected under customary international law and thus binding on all
states regardless of their treaty obligations. This is particularly the case for most civil and political rights.
Certain rights are also protected as norms of a peremptory/jus cogens nature. As discussed in Chapter 2,
these rights include (at least) the prohibition against torture, slavery, genocide, violations of rights that
Page 3 of 24
p. 166 rise ↵ to the level of crimes against humanity, the crime of apartheid and various forms of gross racial
discrimination. As we shall see in Section 9.8, some of the rights are ‘non-derogable’ and must therefore
be respected even in times of public emergency.
9.3 Categories of human rights
9.3.1 Introduction
Conceptually, individual human rights can be divided into categories or classes reflecting the evolution of
the law and the nature of the rights. The categories are civil and political rights (Section 9.3.2), economic
and social rights (Section 9.3.3) and collective rights (Section 9.3.4). Since civil and political rights play a
more dominant role in international law, the following overview affords priority to these rights. It must be
noted, however, that it is now generally considered that the rights are interrelated as well as
7
interdependent.
9.3.2 Civil and political rights

The ‘oldest’ category is rights of a civil and political nature. These rights—at times referred to as ‘first
generation’ human rights—constitute the backbone of the general human rights treaties, including the
ICCPR and the ECHR. They include the prohibition against torture and slavery, the right to life, liberty, fair
trial, equality before the law, freedom of speech, religious freedoms as well as certain political
participatory rights. Most of these rights are ‘negative’ in the sense that they primarily seek to offer
protection from the excesses of the state. They are concerned, in other words, with freedom from
government. In practice, though, effective enjoyment of the rights often requires at least a minimum
degree of positive action on the part of the state, such as the creation of an effective police force and a
well-functioning judicial system.
Civil and political rights are derived from core principles and values that inform their articulation and
practical application. One is human dignity. The preamble to the ICCPR states, for example, that the
Convention is derived from the inherent dignity of the human person. Some civil and political rights are
directly linked to respect for human dignity, the clearest example being the right to life and the prohibition
against torture and cruel, inhuman or degrading treatment or punishment. Other examples include the
abolition of the death penalty and the prohibition against enforced disappearances. Rights derived from
human dignity are generally formulated in absolute terms and do not allow for limitations or balancing.
Another core value is freedom which can be translated into both intellectual and physical freedom. Notions
of intellectual freedom are found in rights protecting freedom of expression, thought, conscience, religion,
association and peaceful assembly. Since the practical exercise of such freedoms may collide with the
p. 167 interests of other individuals and/or with wider ↵ societal goals, they can usually be limited if required
to fulfil a legitimate purpose and the limiting measure is proportionate. In practice, this takes the form of a
balancing act where the right is held up against a competing value or consideration. Respect for physical
freedom is reflected in the right to liberty and the accompanying prohibition against arbitrary detention as
well as the freedom of movement. Equality and non-discrimination are other powerful values in
Page 4 of 24
international human rights law. Differential treatment based solely on the basis of traits and attributes
that either cannot or should not be required to be altered is hard to reconcile with basic notions of justice
and the equal status of all individuals. Non-discrimination is reflected in the overall obligation on all states
to respect and ensure the enjoyment of rights without distinction on the basis of race, sex, language,
religion, political opinion or national or social origin. Importantly, the principle of non-discrimination
does not prohibit a state from taking account of a particular ground (race, sex, language etc.) when it is a
legitimate consideration to the issue at hand. Principles of justice and fairness are core human rights values
in their own right. They are most clearly reflected in the legal principles of proper administration of justice
in the legal system. Most notably, the principle of justice is translated into a requirement of a legal basis
for interfering with a right and the right to a fair trial—also known as ‘due process’—and in the
prohibition against retroactive criminality (nullum crimen sine lege). The last set of principles or values
worth noting are those concerning political participation. The right of citizens to participate in the political
processes of their societies is a fundamental human rights principle, in particular in Europe. In practice,
political participation is reflected in the intellectual freedoms noted earlier as well as in more direct rights
of access to public service, to participate in general elections and to run for political office.
9.3.3 Economic and social rights

The second category of rights concerns economic and social issues and, on the universal level, these rights
—‘second generation’ human rights—are primarily found in the ICESCR. In Europe, they are listed in the
European Social Charter. The rights include a right to work, adequate working conditions including fair
wages, a right to social security, an adequate living standard, physical and mental health and a right to
education. As the examples illustrate, the rights differ from civil and political rights not only due to their
8
character and the values they seek to promote but also because of the role the state must play in order to
fulfil those rights. In practice, enjoyment of economic and social rights, such as work, health, social
security and education, requires a substantial element of state action and initiative. For this reason, the
rights are also referred to as ‘positive’ rights, in the sense that their fulfilment requires not freedom from
government but rather action by it. Economic and social rights are generally formulated in fairly abstract
terms, thus leaving a wide discretion to the states. This also helps explain why judicial enforcement of
social and economic rights is much weaker than enforcement of civil and political rights.
p. 168 ↵ For obvious reasons, the Covid-19 pandemic has brought attention to the right to health. According
to article 12(1) of the ICESCR, states ‘recognize the right of everyone to the enjoyment of the highest
9
attainable standard of physical and mental health’. Article 12(2) stipulates that the steps required to
achieve the full realization of the right to health includes ‘(c) The prevention, treatment and control of
epidemic, endemic, occupational and other diseases’ and ‘(d) The creation of conditions which would
assure to all medical service and medical attention in the event of sickness’. Despite the difficulties in
identifying exactly what the right entails in a pandemic like Covid-19, it does seem to presuppose at least
the adoption of effective measures that seek to prevent the spread of the disease and the implementation
of a system for urgent medical care for, and if possible treatment of, those infected. Also, treatment must
be based on medical evidence. In addition, when paired with principles of non-discrimination, the right to
health ought to offer protection to certain groups in society particularly vulnerable to Covid-19, such as
10
the elderly and persons with disabilities.
Page 5 of 24
9.3.4 Collective rights

Some human rights instruments focus on the protection of various groups of individuals, most often those
groups deemed to be particularly vulnerable and thus in need of special protection. The 1948 Genocide
Convention, for example, obliges states to prevent and punish acts intended to destroy, in whole or in part,
11
‘a national, ethnical, racial or religious group as such’. The notion of ‘group rights’ is also central to the
right to self-determination discussed in Chapter 4, whereby all ‘peoples’ have a right to freely determine
their political status and pursue their economic, social and cultural development. International human
rights law also protects various minorities, such as ethnic or religious minorities. Under article 27 of the
ICCPR, for example, individuals belonging to ethnic, religious or linguistic minorities ‘shall not be denied
the right, in community with the other members of their group, to enjoy their own culture, to profess and
12
practise their own religion, or to use their own language’. In 2018, the Human Rights Committee twice
found that Finland violated, among other rights, article 27 by improperly intervening in Sámi peoples’
13
right to political participation in public affairs. In Europe, minority protection was enhanced with the
1994 European Framework Convention for the Protection of National Minorities. Indigenous peoples enjoy a
particular form of human rights protection. In 1989, the International Labour Organization (ILO) updated
14
an existing 1957 Convention on Indigenous and Tribal Peoples in Independent Countries. Indigenous
p. 169 rights have also been brought up in ↵ a number of cases before the Inter-American Court of Human
15
Rights (IACtHR). In February 2020, the IACtHR concluded that Argentina had violated a series of
indigenous communities’ rights, including rights to a healthy environment, adequate food, water and
16
cultural identity.
Claims have additionally been made for the existence of other more intangible ‘third generation’ rights,
such as a right to development, a right to peace and a right to a healthy environment. According to a 1986
UN General Assembly Declaration on the Right to Development, that right ‘is an inalienable human right
by virtue of which every human person and all peoples are entitled to participate in, contribute to, and
enjoy economic, social, cultural and political development in which all human rights and fundamental
17
freedoms can be fully realized’. While it still remains unclear how such rights can be applied in practice,
the IACtHR has recently found that the right to ‘progressive development’ in article 26 of the Inter-
American Convention on Human Rights contains a right to a healthy environment that can be applied
independently of other rights. First, in an advisory opinion on the Environment and Human Rights in May
2018, the Court noted the existence of a right to a healthy environment that ‘differs from the
environmental content that arises from the protection of other rights, such as the right to life or the right
18
to personal integrity’. Then, in February 2020, in the case mentioned earlier concerning indigenous
communities in Argentina, the Court concluded that Argentina had violated the communities’ right to,
inter alia, a healthy environment by not effectively stopping illegal activities by settlers on the indigenous
19
communities’ land.
9.4 Human rights and responsibility for private acts
20
As a main rule, international human rights law is only binding on states. This, however, does not mean
that a state’s responsibility cannot be triggered in relation to acts of private actors, most notably private
individuals. Especially in relation to the enjoyment of civil and political rights, a state may be obliged to
Page 6 of 24
offer positive protection from private acts. The European Court of Human Rights (ECtHR) has concluded,
for example, that the prohibition against torture or inhuman or degrading treatment or punishment
requires positive measures by a state to ensure that individuals are not mistreated by private individuals.
p. 170 In practice, the obligation—at times also referred ↵ to as a ‘horizontal’ obligation—must ‘at least,
provide effective protection in particular of children and other vulnerable persons and should include
21
reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge’.
In Begheluri and Others v Georgia, the ECtHR stressed the existence of a positive obligation to offer
22
protection in relation to religiously motivated violence perpetrated by private individuals.
9.5 Enforcement of human rights in the United Nations
9.5.1 Introduction
The UN has developed an elaborate system for monitoring and enforcing human rights. In practice, there
are two parallel systems: one based on the UN Charter and one on the universal human rights treaties. We
begin with the Charter-based system in Section 9.5.2 and then turn to the treaty-based system in Section
9.5.3.
9.5.2 Charter-based human rights mechanisms

In 1946, the Economic and Social Council (ECOSOC) created the Human Rights Commission to enhance
respect and set standards for the human rights conduct of the members of the UN. Since the 1960s, the
Commission has developed Special Procedures to facilitate the study and discussion of human rights issues
and country-specific compliance. Among other things, the Commission has created ad hoc working groups
of experts and a series of Special Rapporteurs on thematic topics. The Human Rights Commission was,
however, criticized for being too politicized and in 2006 it was replaced by the Human Rights Council (HRC).
The Council has 47 members divided regionally and elected by a majority of the Assembly. With the Council
came a new mechanism—the Universal Periodic Review—whereby the human rights compliance of all
states is examined by the Council. The Council retained the system of Special Procedures and by November
23
2020, 44 thematic and 12 country-specific mandates had been created.
Unfortunately, the creation of the Council did not bring an end to excessive politicization and, as early as
its first year, the departing Secretary-General noted how the Council had ‘clearly not justified all the
24
hopes’ placed in it. In June 2018 the United States resigned its membership of the Council, citing
frustration with what it perceived to be a bias against Israel and a lack of appetite for criticizing states like
North Korea, Iran and Syria.
p. 171 ↵ In 1993, the General Assembly created the position of High Commissioner for Human Rights to promote
the enjoyment and protection of all human rights and to coordinate and facilitate, among other things,
25
advisory services and technical assistance in the field of human rights.
Page 7 of 24
9.5.3 Treaty-based enforcement mechanisms

The second system in the UN for the protection and promotion of human rights is the committees that
monitor implementation and compliance with the nine ‘core’ universal human rights treaties. The
committees are composed of between 10 and 25 experts who serve in their independent capacity for terms
of, typically, four years. Importantly, the experts are chosen due to their expertise in the given subject
matter and they need not be trained lawyers. With a few exceptions, the functions and competences of the
26
committees are broadly similar.
Arguably, the most notable of the committees is the Human Rights Committee (CCPR), which monitors the
implementation of the ICCPR. The CCPR comments on periodic reports submitted by states on the national
27
measures of relevance to their obligations under the ICCPR. At a hearing before the Committee, a state
may be asked to respond to a previously notified ‘list of issues’ of particular interest. The treatment of the
periodic reports concludes with the Committee’s adoption of ‘concluding observations’ primarily
containing a list of concerns about compliance with the Convention and recommendations for
improvement. Since the early 1980s, the CCPR has also adopted non-binding General Comments on the
interpretation and application of the ICCPR. The CCPR may also hear complaints brought by one state party
28
against another regarding the latter’s non-fulfilment of its obligations under the ICCPR. So far, however,
this procedure has not yet been used. In fact, up until 2018, when Qatar brought complaints against,
respectively, Saudi-Arabia and the United Arab Emirates, and Palestine brought a complaint against Israel,
all under the UN Convention on the Elimination of all Forms of Racial Discrimination (CERD), none of
procedures for bringing inter-state complaints in the various UN human rights treaties had been used.
Of greater practical importance is the procedure for individual complaints under the ICCPR whereby parties
to an optional protocol accept complaints (‘communications’) from individuals who claim to be victims of
29
a violation of the Convention. In cases of irreparable harm, the Committee may request a state to adopt
30
interim measures. Like its General Comments, the Committee’s conclusions in individual cases are not
binding on the states. The Committee Against Torture (CAT) is also worth highlighting. It monitors
implementation and compliance with the 1984 Convention Against Torture and, like the CCPR, it receives
31
p. 172 periodic reports from the state parties ↵ and has a procedure for both interstate and individual
32
complaints if the relevant state has accepted the competence of the Committee. The Committee’s
conclusions are not binding. A 2002 optional protocol to the Convention established a Subcommittee on
Prevention (SPT) and a system of regular visits by independent international and national bodies to
33
detention facilities in order to prevent treatment contrary to the Convention.
While the various recommendations and findings by the different UN committees are not legally binding,
they may carry substantial interpretative value for determining the content of international law.
Page 8 of 24
9.6 Regional systems for the protection of human rights
9.6.1 Introduction
The human rights system in the UN is supplemented by regional human rights protection. The protection
differs substantially from region to region, stretching from the robust system of human rights protection
in Europe to the fairly toothless systems in the Middle East and Asia. The following overview is limited to
the human rights system in Europe (Section 9.6.2) and—to a lesser extent—the system created in the
Americas (Section 9.6.3) and Africa (Section 9.6.4).
9.6.2 Human rights protection in Europe
9.6.2.1 Introduction—the ECHR

The Council of Europe was founded in 1949 to strengthen intergovernmental and inter-parliamentary
cooperation in a ravaged post-Second World War Europe. The Council is composed of, among other things,
a Committee of Ministers with a seat for the foreign ministers of the member states and a Parliamentary
Assembly consisting of delegations from the national parliaments of the state parties. In 1950, the Council
adopted the European Convention on Human Rights (ECHR), which remains the cornerstone of human rights
protection in Europe. Accession to the ECHR is now a precondition for membership of the Council of
Europe. The ECHR entered into force in 1953 and today has 47 parties.
9.6.2.2 The European Court of Human Rights

The key to the success of the ECHR is the European Court of Human Rights (ECtHR), which is competent to
make binding decisions. The Court deals with both interstate and individual complaints, but since states
are generally reluctant to bring legal cases against each other, interstate complaints are relatively rare. In
p. 173 the last decade or so, ↵ however, a number of interstate complaints have been brought against Russia.
At present, Georgia has two applications against Russia pending, Ukraine has five (concerning, inter alia,
Russia’s intervention in Crimea and the situation in Eastern Ukraine) and the Netherlands has one
(concerning the downing on 17 July 2014 of Malaysia Airlines flight MH17 over the territory of Eastern
34
Ukraine).
The most important element of the ECHR’s protection of human rights is the procedure for individual
complaints, whereby the ECtHR receives applications from any person, non-governmental organization or
35
group of individuals claiming to be victims of a violation of the Convention. In fact, the individual
complaints mechanism has been so successful that the Court has been forced to adopt a range of initiatives
to deal effectively with its caseload. With the adoption of Protocol No. 14, the Court succeeded in
streamlining the process substantially and it has since brought the number of pending cases down
36
considerably. By 30 June 2020, the number stood at 59,900. More than 7.000 concern Russia’s
intervention in Crimea or the situation in Eastern Ukraine.
Page 9 of 24
A couple of initial points are worth noting about the individual complaints system. First, the Court will
only deal with an application if the applicant has exhausted all domestic remedies. Also, a complaint must be
launched within six months after the adoption of the final decision or act that is the subject of the
37
complaint. When Protocol No. 15 to the ECHR enters into force, the complaint must be launched within
four months. The great majority of applications are declared inadmissible because they are found to be
manifestly ill-founded. But when the Court finds that the Convention has been violated, it will conclude
38
accordingly and consider satisfaction. Often, satisfaction consists of monetary compensation but other
measures may also be adopted. The Court’s judgments and decisions are final and binding on the
39
respondent states. The states are free to determine how they will comply with a judgment but the
Committee of Ministers in the Council of Europe monitors the proper implementation of the Court’s
40
judgments.
Since the entry into force of Protocol No. 16 to the ECHR, the Court can give advisory opinions on questions
41
of principle concerning the interpretation and application of the Convention and its protocols.
9.6.2.3 The substantive rights

The ECHR primarily protects civil and political rights. The substantive rights are found in section 1 of the
Convention and in the additional protocols. The first substantive right is the protection of life in article 2 of
the ECHR. Although the article allows for the imposition of a death sentence, a general ban on the death
42
penalty was introduced in Protocol No. 13 from 2002. Article 3 of the ECHR protects individuals
p. 174 ↵ from torture or inhuman or degrading treatment and punishment and, as we shall return to in
Section 9.9, it also protects an individual from being expelled or otherwise transferred to another state
where there may be a real risk that the individual will be subjected to treatment contrary to article 3. Article
4 prohibits slavery and forced labour, and the rights in articles 3 and 4 are absolute or unqualified rights
that allow for no limitations or balancing. Article 5 protects the right to liberty and security, while article 6
concerns the right to a fair trial. Article 7 prohibits retroactive criminal legislation—also an unqualified
right. Article 8 protects private and family life; article 9 protects freedom of thought, conscience and
religion; article 10 protects freedom of expression, and article 11 protects the freedom of assembly and
association. Articles 8–11 are qualified rights that can be balanced against a set of specific interests and the
four rights share common features. Thus, whereas the first paragraph of the articles stipulates the specific
right, the second paragraph lays out the conditions under which interferences with the right may be
justifiable. Article 12 contains a right to marry and article 13 protects the right to an effective remedy for
anyone whose rights and freedoms under the Convention are violated. Article 14 prohibits discrimination
in the enjoyment of the rights and freedoms of the Convention. Additional substantive rights and freedoms
are contained in some of the 16 additional protocols to the ECHR. For example, Protocol No. 1 contains a
right to property, a right to education and a right to free elections. Protocol No. 4 protects against
imprisonment for debt, expulsion of nationals and collective expulsion of aliens and protects freedom of
movement. As already noted, Protocol No. 13 bans the death penalty in all circumstances.
Page 10 of 24
9.6.2.4 The ECtHR’s interpretation

As discussed in Chapter 3, human rights conventions are generally interpreted less to accord with the
original intention of the parties and more in order to ensure the effective, real and concrete protection of
the individuals under the jurisdiction of the state. This is also reflected in the practice of the ECtHR. The
Court adopts an interpretation that is ‘dynamic’, and the Court has frequently stated that the Convention is
a ‘living instrument’ whose provisions must be interpreted in the light of the current social and political
43
climate rather than in accordance with the sentiments at the time the Convention was adopted.
According to the Court, a failure to maintain a dynamic approach to interpretation would risk rendering
44
the Convention a bar to reform or improvement. In particularly sensitive matters where there is no
common European position, however, the Court will often grant a state a certain margin of appreciation and
45
thus a substantial degree of deference. In Handyside v UK, for example, the Court found that national
authorities, due to their ‘direct and continuous contact with the vital forces of their countries’, may in
p. 175 principle be in a ‘better position than ↵ the international judge to give an opinion’ on the exact content
46
of the requirements of morals. The case concerned the banning of a school book with sexual content. The
47
margin of appreciation has also been relied on in relation to sensitive issues concerning religion and
48
blasphemy. In recent years, the Court has been criticized for not affording states a sufficient degree of
margin of appreciation in certain types of cases, including those where a state’s decision to expel an alien
49
convicted of criminal offences may interfere with the alien’s family life under article 8 of the Convention.
In Protocol No. 15, the states therefore decided to insert a new recital in the preamble to the Convention
that explicitly affirms that states ‘enjoy a margin of appreciation, subject to the supervisory jurisdiction of
the European Court of Human Rights established by this Convention’.
9.6.2.5 Other Council of Europe human rights conventions

The 1994 European Framework Convention for the Protection of National Minorities is another Council of
Europe convention, Reference must also be made to the 1961 European Social Charter, later replaced by a
revised Charter in 1996, which includes economic and social rights, such as entitlements associated with
adequate and affordable housing, accessible health care, free education and employment and working
conditions. Its implementation is monitored by a European Committee of Social Rights. In 1995, a
50
mechanism for collective complaints was established in an additional protocol to the Charter. Also worth
noting is the 1987 European Convention for the Prevention of Torture and Inhuman and Degrading
Treatment or Punishment, which created a Committee for the Prevention of Torture (CPT) with a fact-
finding and reporting mandate.
9.6.2.6 Human rights protection in the EU

The treaties of the EU also protect human rights and fundamental freedoms. In December 2000, the EU
adopted a Charter of Fundamental Rights of the European Union addressed both to the EU institutions and
51
the individual member states. When compared to the ECHR, the EU Charter contains more rights,
including numerous rights of an economic and social nature. While it was initially without binding effect,
Page 11 of 24
52
p. 176 that changed following the entry into force of the Treaty of Lisbon in December 2009. ↵ Although the
Lisbon Treaty also opened the way for the accession of the EU to the ECHR that was later blocked by the
53
Court of Justice for the European Union (CJEU).
The two-tier system of protection provided by the EU and the ECHR raises a number of questions about the
relationship between the two systems and it requires a certain level of coordination to prevent
inconsistency in the protection of fundamental rights developing in the case law of the CJEU and the
ECtHR. Importantly, the ECtHR maintains a prioritized position and balances respect for the autonomy of
the EU with its role as the guardian of the ECHR through a general doctrine of ‘equivalent protection’
whereby it presumes that a state has not departed from the requirements of the Convention when it
implements legal obligations that flow from its membership of another organization which provides for
54 55
equivalent protection of fundamental rights. ‘Equivalent’ means ‘comparable’ and not ‘identical’. In
Bosphorus, the Grand Chamber of the ECtHR found that the protection of fundamental rights by EU law in
general, and at the time of the case, could be considered ‘equivalent’ to that of the Convention system and
that there was therefore a presumption that the state (Ireland) had not departed from the Convention
56
when it implemented its EU obligations. The Court also stated, however, that the presumption can be
57
rebutted if the protection of Convention rights is ‘manifestly deficient’. The CJEU has on numerous
occasions held that ‘fundamental rights form an integral part of the general principles of law’ it protects
58
and that it draws particular inspiration from the ECHR. It has stated that respect for fundamental human
rights is a ‘condition of the legality’ of EU acts and it has also begun to refer directly to ECHR standards in
59
its decisions.
9.6.3 Human rights protection in the Americas

The primary human rights instrument in the Americas is the American Convention on Human Rights
adopted by the Organization of American States (OAS) in 1969 and entered into force in 1978. The
Convention, which has 25 member states, builds on the 1948 American Declaration of the Rights and
Duties of Man and contain both civil and political rights as well as economic, social and cultural rights. It
also created the Inter-American Commission of Human Rights and the Inter-American Court of Human
60 61
Rights. The Commission deals with both interstate and individual complaints and the Inter-American
62
p. 177 Court of Human Rights hears cases referred ↵ to it by the Commission. The Court may also issue
63
advisory opinions. The OAS has additionally adopted a 1985 Convention to Prevent and Punish Torture, a
1998 Additional Protocol on Economic, Social and Cultural Rights, a 1990 Protocol on the Abolition of the
Death Penalty, a 1994 Convention on Forced Disappearances and, more recently, a 2013 Convention
Against Racism, Racial Discrimination and related forms of Intolerance.
9.6.4 Human rights protection in Africa

Regional human rights protection in Africa is centred around the 1981 Banjul Charter on Human and
Peoples’ Rights adopted by the Organisation of African Unity (OAU). All 55 members of the African Union
(AU) are parties to the Charter, which contains both civil and political rights, economic, social and cultural
rights as well as ‘collective’ rights, including the right of all peoples to self-determination and to freely
dispose of their wealth and natural resources, the right to national and international peace and security
Page 12 of 24
64
and the right to a generally satisfactory environment. The Charter established an African Commission on
Human and Peoples’ Rights, which promotes and ensures the protection of the rights in the Charter and
65 66
receives complaints from both states and ‘other parties’, including individuals. If the Commission
finds that one of the communications relates to ‘a series of serious or massive’ violations of the rights
contained in the Charter, it will notify the Assembly of Heads of State and Government, which may then
ask the Commission to further study the issue and submit a factual report that includes both findings and
67
recommendations.
9.7 The territorial scope of human rights treaties
As a point of departure, a state is only obliged by its human rights obligations on its own territory. In
practice, however, it is rarely as simple as that and the territorial reach of human rights conventions
68
remains a contested issue. At the outset it is important to note that a treaty can be said to have an
‘extraterritorial’ effect when a protected individual is not physically present on the territory of the state
when the violation of the individual’s rights occurs. This concept of ‘extraterritoriality’ is different,
however, from the principle of ‘non-refoulement’, noted earlier in relation to article 3 of the ECHR,
whereby a human rights convention may prohibit the transfer of an individual located on the territory of the
state to another state where the individual risks being treated in a manner that violates that convention. As
noted in Chapter 5, the concept of ‘jurisdiction’ in human rights law is a sui generis concept that is
unrelated to the different forms of jurisdiction found elsewhere in international law.
p. 178 ↵ Some treaties contain jurisdictional provisions that govern the geographical scope of the treaty.
According to article 2(1) of the ICCPR, for example, a state party must respect and ensure the rights of the
Convention to ‘all individuals within its territory and subject to its jurisdiction’. In The Wall, the ICJ found
that this means that jurisdiction under the ICCPR ‘may sometimes be exercised outside the national
69
territory’. Among other things, the Court noted that the drafters of the ICCPR ‘surely’ did not intend to
‘allow States to escape from their obligations when they exercise jurisdiction outside their national
70
territory’. According to the Human Rights Committee, the ICCPR applies as soon as a state has an
individual in its physical custody abroad ‘regardless of the circumstances in which such power or effective
71
control was obtained’. Following the revelations by Edward Snowden of extensive surveillance practices
by, inter alia, the US National Security Agency, the Committee has expressed concern at the ‘surveillance
of communications in the interests of protecting national security, conducted by the National Security
Agency (NSA) both within and outside the United States … and their adverse impact on the right to
72
privacy’.
Article 1 of the ECHR specifies that state parties shall secure the rights and freedoms of the Convention to
‘everyone within their jurisdiction’. Unfortunately, it has been somewhat difficult to ascertain when
73
‘jurisdiction’ exists. The leading case is the Grand Chamber’s judgment in 2011 in Al-Skeini v UK, which
arose from the killing of a number of Iraqi nationals by British forces during the US/UK occupation of Iraq
in 2003–20004. The Court listed a number of instances where extraterritorial acts fall within the concept
74
of ‘jurisdiction’ in article 1. The first relates to acts by diplomatic consular agents who exert authority
75
and control over others. The second is where a state ‘through the consent, invitation or acquiescence of
the Government of that territory’ ‘exercises all or some of the public powers normally to be exercised by
Page 13 of 24
that Government … as long as the acts in question are attributable to it rather than to the territorial
76
State’. Thirdly, a state will exercise ‘jurisdiction’ in relation to an individual who is taken into the
custody of state agents abroad. What is decisive in such cases is ‘the exercise of physical power and control
77
over the person in question’. The fourth instance is when a state exercises ‘effective control of an area’
78
outside its own national territory as a consequence of military action. The judgment implies that a state
p. 179 is not bound by its obligations under the ECHR if it uses deadly force against an ↵ individual who is
neither within the physical control of the state nor located on a territory where the state has effective
control or at least exercises ‘public powers’. If that is correct, the ECHR would not cover the deliberate
poisoning of two Russian nationals, Sergei and Yulia Skripal, in March 2018 by Russian agents in Salisbury,
79
UK. Some argue, however, that a state should be bound by the Convention in respect of all individuals
80
whose lives it can affect no matter where the individuals are located.
Others claim that certain core human rights, such as the right to life, are protected in customary
international law and that states are therefore always obliged to protect those rights no matter where their
81
agents operate. At the time of writing, however, there is little case law or actual state practice to support
such views.
9.8 Human rights in times of public emergency
82
Human rights law does not cease to apply in times of emergency or armed conflict. This, however, does
not mean that the application of specific human rights are not affected by the emergency or armed conflict.
First, as we shall return to in Chapter 14, the determination of what constitutes a violation of human rights
83
law in an armed conflict may be influenced by the law of armed conflict that is the relevant lex specialis.
Secondly, a state may be entitled to ‘derogate’ from its human rights obligations and thus suspend the
84
application of parts of a human rights convention in times of emergency, including in the event of war. A
valid ‘derogation’ is, however, subject to a number of conditions. First of all, there must be a public
emergency of a certain gravity. Both the ICCPR and the ECHR require that ‘the life of the nation’ be under
85
threat. Practice from the ECtHR refers to a threat to ‘the organized life of the community of which the
86 87
State is composed’. In addition, the emergency must be ‘actual or imminent’. The Court has found that
88
p. 180 the threat of terrorist attacks may warrant ↵ suspension of certain provisions of the Convention.
89
Ukraine has suspended some of its obligations in Eastern Ukraine due to the armed conflict there. It is
90
not clear if participation in military operations abroad warrants derogation. More recently, the outbreak
of Covid-19 led to a record number (eight) of derogations from the ECHR, all from Eastern European
states. The derogations were made to justify large-scale restriction of public life, such as lock-down orders
and the curtailment of public gatherings.
Secondly, the measures that derogate from human rights obligations must be strictly required by the
situation. The ECtHR has recognized, however, that a wide margin of appreciation should be left to the
91
national authorities. In A and Others, the Court agreed with an earlier judgment by the UK House of Lords
that had found that British legislation authorizing indefinite detention of a suspected terrorist of non-
British nationality was disproportionate and therefore in violation of article 15 of the ECHR because the law
92
did not allow for the detention of British nationals who posed a similar threat. A third condition is that
the measures do not infringe upon certain ‘non-derogable’ rights. In the ECHR, these rights include the
Page 14 of 24
right to life (except in respect of deaths resulting from lawful acts of war), the prohibition against torture
and other forms of ill-treatment, the prohibition of slavery and the prohibition against retroactive
93
criminal legislation. It is also worth noting that a decision to derogate from a human rights convention
does not alter a state’s obligations under other parts of international law, such as under customary
international law, and that a decision to derogate must be communicated and justified to the other state
94
parties to that convention.
9.9 International protection of refugees
9.9.1 Introduction—the Refugee Convention

It is a well-established principle of international law that states can control the entry, residence and
expulsion of aliens. States can, however, limit this freedom by adopting treaty-based obligations. With
regard to the protection of refugees, the most important such treaty is the 1951 Convention relating to the
Status of Refugees—also known as the Refugee Convention—which has 145 state parties. While the
Convention was originally adopted to deal with people displaced by the Second World War and its
p. 181 ↵ definition of a refugee (see the following section) therefore only covered individuals who had
acquired such a status as a result of events occurring before 1 January 1951, that limitation was removed
95
with a 1967 protocol. The Convention does not create any courts or committees that decide how the
Convention shall be interpreted and while the United Nations High Commissioner for Refugees (UNHCR)
provides international protection to refugees it does not have any authority to make binding
96
determinations of how the Convention should be interpreted. This falls upon the states themselves. But
since the Convention is ‘law-making’ and seeks to offer protection to individuals at risk of persecution, it
should be interpreted in a manner that ensures an effective and modern level of protection. Its
humanitarian purpose makes it natural to interpret its provisions with reference to contemporary
standards and definitions in human rights conventions.
9.9.2 The protection of refugees in the Refugee Convention

The initial point to note about the Refugee Convention is that it does not oblige states to grant asylum to
aliens in need of protection. Instead, the Convention contains a (negative) obligation in article 33(1)
whereby no contracting party ‘shall expel or return (“refouler”) a refugee’ to a state where his or her life
or freedom would be threatened—the ‘non-refoulement’ principle. The Convention’s aim is not limited to
offering protection from refoulement, however. It seeks to provide surrogate national protection to
individuals who cannot live in their country of citizenship and therefore also grants refugees a host of
other rights traditionally associated with citizenship, such as protection from discrimination, religious
freedoms, preservation of property rights, access to the courts, access to rationing systems and identity
papers.
As its name implies, the Convention (only) protects ‘refugees’. The all-important definition of a refugee is
found in article 1A(1) whereby a refugee is an individual who:
Page 15 of 24
owing to well-founded fear of persecution for reasons of race, religion, nationality, membership
of a particular social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or
who, not having a nationality and being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling to return to it.
Two initial comments must be made. First, according to article 42, the Convention does not allow
reservations to the definition. Secondly, an individual is a ‘refugee’ as soon as that individual fulfils the
criteria in the Convention, and refugee status is therefore not something that is ‘granted’ by a state but
rather a status that is recognized.
According to the definition, to qualify as a ‘refugee’ an individual must fulfil five conditions. First, an
p. 182 individual must be outside the country of origin. Thus, ↵ the Convention does not protect the millions of
people who are dislocated within their own countries—also known as ‘internally displaced
persons’ (IDPs). Also, the Convention allows a state to require that a refugee seeks protection in another
country if the consignment to such a ‘safe third country’ does not compromise the refugee’s rights under
the Convention. The second requirement is that the individual is unable or unwilling to seek the protection
of the state of nationality. This requirement is relevant, for example, where an individual who fears
persecution can find the required degree of protection in some other part of the country than where he or
she originates. In such cases, the individual can be denied protection and asked to rely upon an
‘international flight alternative’. Thirdly, the fear of persecution must be well-founded. In practice, the
state that receives a request for protection must try to make a prediction of what will happen if the alien is
returned to the country of origin. For the fear to be well-founded, the individual need not demonstrate that
he or she is at a greater risk of harm than other individuals in the state of origin. It is enough that the
expected harm is sufficiently serious to find that the individual faces real harm if returned. The fourth
condition is that the individual fears persecution. In practice, there is a minimum threshold of harm that
must be surpassed and there must be a risk of serious harm, in most cases taking the form of severe
violations of basic human rights. The risk of harm need not, however, originate from state authorities, and
a risk of serious harm from non-state actors suffices if the state authorities do not offer the required
degree of protection (and no internal flight alternative is available). The fifth—and last—requirement is
that the persecution must be based on one of five specific reasons, namely race, religion, nationality,
membership of a particular social group or political opinion. Thus, the Convention is not concerned with
all cases of persecution but merely those based on specific forms of discrimination. In addition, the
persecution must be linked to the particular purpose.
Even if a person prima facie qualifies as a refugee under the definition in article 1A(1), the individual may
still be denied protection under the Convention if the individual does not ‘deserve’ protection. Under
article 1F, the Convention shall not apply to an individual if there are serious reasons for considering that
he or she has committed: (a) a ‘crime against peace, a war crime, or a crime against humanity’, as those
97
crimes are defined in relevant international legal conventions; (b) a ‘serious non-political crime outside
the country of refuge prior to his admission to that country as a refugee’; or (c) if the individual is ‘guilty of
acts contrary to the purposes and principles of the United Nations’. Article 1F—which for example are used
to deny protection to individuals who have committed serious war crimes or acts of terrorism prior to their
Page 16 of 24
arrival and request for protection—was introduced to ensure state support for the Convention. In addition,
article 33(2) of the Convention specifies that the prohibition of refoulement in article 33(1) does not apply to
a refugee ‘whom there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes
a danger to the community of that country’. Unlike article 1F, article 33(2) is applied to acts committed
p. 183 after ↵ the arrival of the refugee. As we shall see below, however, even persons who on such grounds
fall outside the protection of the Refugee Convention may still be protected from being returned to their
country of origin by other human rights conventions.
9.9.3 The protection of individuals who fear ill-treatment in other human

rights conventions
The principle of non-refoulement is also found in a number of human rights conventions, most explicitly in
the 1984 UN Convention Against Torture (CAT), which in article 3 stipulates that no state party ‘shall
expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for
98
believing that he would be in danger of being subjected to torture’ . Protection against being returned to
99
ill-treatment is also contained in article 7 of the UN Covenant on Civil and Political Rights. In addition, as
noted earlier, the ECHR’s article 3 protects individuals from being transferred to a state where they face a
100
real risk of being subjected to torture or other forms of ill-treatment. The ECHR also protects against
101
transfer to a state where there is a risk of a flagrant denial of a fair trial under ECHR, article 6, or a
102
breach of the right to liberty under article 5. Unlike the protection found in the Refugee Convention, the
non-refoulement principle in the human rights conventions protects everyone, regardless of why they fear
ill-treatment in their states of origin or another state to which they may risk being transferred, and not
just individuals who fulfil the conditions for being considered refugees. The ECtHR has found, for example,
that article 3 may also prevent the removal of seriously ill persons if an ‘absence of appropriate treatment
in the receiving country or the lack of access to such treatment’ may lead to ‘a serious, rapid and
irreversible decline’ in health ‘resulting in intense suffering or to a significant reduction in life
103
expectancy’. Article 3 also protects individuals who fall outside the protection of the Refugee Convention
104
for reasons found in article 1F or article 33(2) of that convention. In such cases, the practical effect of
article 3 is that the state where the individual seeks protection (but where the individual often do not
qualify for a legal right to stay) has no choice but to simply ‘tolerate’ the continued presence of the
individual on its territory.
p. 184 ↵ Non-refoulement will become an example of extraterritorial application of a human rights treaty
where an individual transferred to another state is physically located outside the territory of the state
party, as may be the case in situations where soldiers on military operations abroad hand over detainees to
the authorities of another state.
Page 17 of 24
Summary
International human rights law derives from a basic notion that human rights are inherent to all human beings. The
modern human rights law system was created after the end of the Second World War with the establishment of the
UN. The most important human rights instruments are those adopted under the auspices of the UN and a number of
regional conventions, most notably the ECHR. Individual human rights are traditionally divided into categories or
classes that reflect the nature of the rights and the evolution of international human rights law. Arguably, the most
important human rights are those of a civil and political character. There are two systems for monitoring and
enforcing compliance with human rights law in the UN, one based on the UN Charter and the other on universal
human rights treaties. At the regional level, human rights protection is particularly strong in Europe, where the ECHR
is a cornerstone of human rights protection. The geographical scope of human rights conventions is not necessarily
limited to the territory of the state. The application of human rights does not cease in times of public emergency or
armed conflict, but the determination of what constitutes a violation of human rights may be influenced by standards
from the law of armed conflict. A state may also be allowed to temporarily suspend the application of parts of a
human rights convention in the case of a public emergency. Refugees are primarily protected in the 1951 Refugee
Convention.
Recommended reading
The literature on human rights is immense. A solid, comprehensive work on the law and politics of human rights is
Henry J. Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context (Oxford University Press,
2007).
For a comprehensive examination of the UN Covenant on Civil and Political Rights, see Manfred Novak, UN Covenant
on Civil and Political Rights, CCPR Commentary (N. P. Engel Publishers, 1993) and Sarah Joseph and Melissa Castan,
The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, Oxford University
Press, 2013).
For a solid discussion of the ECHR, see Bernadette Rainey, Elizabeth Wicks and Clare Ovey, Jacobs, White & Ovey: The
European Convention on Human Rights (6th edn, Oxford University Press, 2014).
For a discussion of human rights protection in the UN, see Paul Gordon Lauran, ‘To Preserve and Build on Its
Achievements and to Redress Its Shortcomings: The Journey from the Commission on Human Rights to the Human
Rights Council’ (2007) 29(2) Human Rights Quarterly 307.
On more recent human rights protection in the EU, see Frederic van den Berghe, ‘The EU and Issues of Human Rights
Protection: Same Solutions to More Acute Problems’ (2010) 16(2) European Law Review 112.
p. 185 ↵ The seminal work on the extraterritorial effect of the ECHR is Marko Milanovic, Extraterritorial Application of
Human Rights Treaties (Oxford University Press, 2011).
The margin of appreciation and proportionality in the ECHR is thoroughly discussed in Jonas Christoffersen, Fair
Balance, Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Brill Nijhoff, 2009).
Page 18 of 24
The classic work on the protection of refugees is James C. Hathaway and Michelle Foster, The Law of Refugee Status
(2nd edn, Cambridge University Press, 2014).
Questions for discussion
1. What is the basis of the cultural relativist critique of human rights law?
2. The chapter notes that the human rights debate before the Human Rights Council is (still) highly politicized.
Can you think of some examples?
3. What are some of the common features of the various monitoring organs that have been established with a
view to monitoring compliance with specific UN human rights conventions?
4. The interpretational style of the ECtHR has been criticized for, among other things, disregarding state
consent/intention. Why do you think that has been the case?
5. Case law from the ECtHR illustrates that a state party to the ECHR is not always bound by its obligations under
the Convention when it acts abroad. Why could that be problematic when considered from the perspective of
the alleged universal nature of human rights law?
6. What are the conditions for lawful derogation from a human rights convention?
7. How is the protection from ‘refoulement’ in the 1951 Refugee Convention different from the protection from
‘refoulement’ in article 3 of the ECHR?
For outline answers <https://iws.oupsupport.com/ebook/access/content/henriksen3e-resources/henriksen3e-

chapter-9-guidance-on-answering-the-questions-in-the-book?options=showName> to these questions please visit the
online resource. You can also listen to a podcast <https://iws.oupsupport.com/ebook/access/content/henriksen3e-
resources/henriksen3e-chapter-9-audio-podcast?options=showName> for further discussion on this topic.
Notes
1 See the English Bill of Rights (1689), the US Declaration of Independence (1776), the French Declaration of the Rights
of Man and of the Citizen (1789).
2 See also Preamble to the 1966 ICCPR and ICESCR.
3 See also art. 53 of the Charter.
4 GA Res. 217 (III) (10 December 1948). Also of major importance was the 1975 Final Act of the Conference on Security
and Co-operation in Europe—also known as the Helsinki Act—that helped pave the way for the spread of democracy
and human rights protection to Eastern Europe after the end of the Cold War: see Conference on Security and Co-
operation in Europe Final Act, 1 August 1975.
5 Jack Donnelly, ‘Cultural Relativism and Universal Human Rights’ (1984) 6(4) Human Rights Quarterly 400–419.
Page 19 of 24
6 For an overview, see https://www.ohchr.org/EN/professionalinterest/pages/

universalhumanrightsinstruments.aspx <https://www.ohchr.org/EN/professionalinterest/pages/
universalhumanrightsinstruments.aspx> (accessed 26 January 2021).
7 See also the 1993 Vienna Declaration and Programme of Action, 25 June 1993.
8 The value of human dignity is also reflected in some of the economic and social rights.
9 See also art. 11 of the European Social Charter.
10 See also generally General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), 11.
August 2000.
11 See art. II. See also the definition in Chapter 15.
12 See also GA Res. 47/135 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic
Minorities (8 December 1992).
13 See, respectively, Communication Nos 2668/2015 and 2950/2017.
14 See also the 2007 Declaration on the Rights of Indigenous Peoples.
15 For a new landmark decision, see Case of the Indigenous Communities of the Lhaka Honhat Association (Our Land) v
Argentina, Judgment of 6 February 2020.
16 See ibid.
17 GA Res. 41/28 (1986), art. 1.
18 Inter-American Court of Human Rights, Advisory Opinion OC-23/17, 15 November 2017, The Environment and
Human Rights.
19 See n 15.
20 But see General Recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations (18
October 2013), UN Doc. CEDAW/C/GC/30, paras 13–18. When determining if an act is a ‘state act’, reference must be
made to the general principles of state responsibility and attribution in international law that we visited in Chapter 7.
21 O’Keeffe v Ireland, App. no. 35810/09, 28 January 2014, para. 144. See also X and Y v The Netherlands, App. no.
8978/80, 26 March 1985, paras 23–27.
22 Begheluri and Others v Georgia, App. no. 28490/02, 7 January 2015, paras 160, 164.
23 https://www.ohchr.org/en/hrbodies/sp/pages/welcomepage.aspx <https://www.ohchr.org/en/hrbodies/sp/pages/
welcomepage.aspx> (accessed 1 November 2020).
24 ‘Secretary-General urges human rights activists to “fill leadership vacuum”, hold world leaders to account’ (8
December 2006), UN Doc. SG/SM/10788-HR/4909-OBV/601.
25 GA Res. 48/141 (20 December 1993).
26 For a complete overview of the committees, see http://www.ohchr.org/EN/HRBodies/Pages/

TreatyBodies.aspx <http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx> (accessed 26 January 2021).
27 See ICCPR art. 40.
28 ICCPR arts 41–42.

Page 20 of 24
29 See Optional Protocol 1 to the ICCPR.
30 HRC, ‘General Comment No 33’ (2008), UN Doc. CCPR/C/GC/33, para. 19.
31 Art. 19.
32 Arts 21 and 22.
33 Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
34 See Q and A on Inter-State Cases (August 2020), at https://www.echr.coe.int/Documents/Press_Q_A_Inter-

State_cases_ENG.pdf <https://www.echr.coe.int/Documents/Press_Q_A_Inter-State_cases_ENG.pdf> (accessed 1
November 2020).
35 ECHR art. 34.
36 https://www.echr.coe.int/Documents/Stats_pending_month_2020_BIL.PDF <https://www.echr.coe.int/
Documents/Stats_pending_month_2020_BIL.PDF> (accessed 1 November 2020).
37 ECHR art. 35.
38 Ibid, art. 41.
39 See, respectively, ibid, arts 44 and 46(1).
40 Ibid, art. 46(2).
41 See the Protocol’s art. 1.
42 See also Protocol No. 6 from 1983.
43 See, inter alia, Tyrer v UK, App. no. 5856/72, 25 April 1978, para. 31 and Loizidou v Turkey, App. no. 15318/89, 23
March 1995, para. 71.
44 Stafford v UK, App. no. 46295/99, 28 May 2002, paras 68–69.
45 For a thorough examination, see, inter alia, Jonas Christoffersen, Fair Balance, Proportionality, Subsidiarity and
Primarity in the European Convention on Human Rights (Brill Nijhoff, 2009).
46 Handyside v UK, App. no. 5493/72, 7 December 1976, para. 48.
47 Christine Goodwin v UK, App. no. 28957/95, 11 July 2002, para. 58.
48 Leyla Şahin v Turkey, App. no. 44774/98, 10 November 2005, para. 109.
49 See, inter alia, the criticism voiced in the declarations adopted at the conferences held in, respectively, Brighton in
2012, Izmir in 2011 and Interlaken in 2010. See also the 2018 Copenhagen Declaration: https://www.coe.int/en/web/
human-rights-rule-of-law/events/-/asset_publisher/E5WWthsy4Jfg/content/copenhagen-declaration-on-the-reform-
of-the-european-convention-on-human-rights-system <https://www.coe.int/en/web/human-rights-rule-of-law/
events/-/asset_publisher/E5WWthsy4Jfg/content/copenhagen-declaration-on-the-reform-of-the-european-convention-
on-human-rights-system> (accessed 26 January 2021).
50 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, 9 November
1995.
51 Charter of Fundamental Rights of the European Union (18 December 2000), 2000/C 364/01.
Page 21 of 24
52 See Treaty of the European Union, art. 6(1).
53 See Opinion 2/13 of 18 December 2014.
54 Bosphorus Hava Yollari Turizm v Ireland, App. no. 45036/98 (Grand Chamber), Judgment, 30 June 2005, para. 155.
55 Ibid.
56 Ibid, para. 165.
57 Ibid, para. 156.
58 See, inter alia, Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, para. 4 and Case C-36/02 Omega
Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609, para.
33.
59 See, inter alia, Case C-117/01 KB v National Health Service and the Secretary of State for Health [2004] ECR I-541 and
C-112/00 Schmidberger Transporte und Planzüge v Austria [2003] ECR I-5659.
60 For an assessment of the Inter-American experience, see James L. Cavallaro and Stephanie Erin Brewer,
‘Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American
Court’ (2008) 102(4) American Journal of International Law 768–827.
61 Arts 44–45.
62 Art. 61.
63 Art. 64.
64 Banjul Charter on Human and Peoples’ Rights arts 20–24.
65 Art. 47.
66 Arts 55–56.
67 Art. 58(1) and (2).
68 Marko Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford University Press, 2011).
69 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ
Rep 136, paras 109–111.
70 Ibid, para. 119. See also Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v Rwanda), Jurisdiction and Admissibility [2006] ICJ Rep 6, paras 178–180, 216 and 345.
71 Human Rights Committee, ‘General Comment 31’ (2004), UN Doc. CCPR/C/21/Rev.1/Add.13, para. 10. See also Lopez
Burgos v Uruguay, Communication No. 52/1979, 29 July 1981, para. 12.3.
72 Human Rights Committee, ‘Concluding Observations on the Fourth Periodic Report of the United States of
America’ (23 April 2014), UN Doc. CCPR/C/USA/CO/4, para. 22.
73 See also the discussion in Milanovic (n 68).
74 Al-Skeini and Others v UK, App. no. 55721/07, 7 July 2011, paras 131–132.
75 Ibid, para. 134.
76 Ibid, para. 135.
Page 22 of 24
77 Ibid, para. 136.
78 Ibid, paras 138–139. See also Jaloud v the Netherlands, App. no. 47708/08, 20 November 2014, para. 142.
79 For an overview, see ‘Novichok nerve agent use in Salisbury: UK government response, March to April 2018’, https://
www.gov.uk/government/news/novichok-nerve-agent-use-in-salisbury-uk-government-response <https://
www.gov.uk/government/news/novichok-nerve-agent-use-in-salisbury-uk-government-response> (accessed 1
November 2020).
80 See also Al-Skeini, Concurring Opinion of Judge Bonello, paras 11–16; Milanovic (n 68) 209. For a similar approach,
see the Inter-American Court of Human Rights’ advisory opinion on the Environment and Human Rights, where the
Court found that in case of transboundary harm a person falls within the ‘jurisdiction’ of the state in which the harm
originates if there is a ‘causal relationship’ between the polluting activities in the state’s territory and the cross-border
impact on rights.
81 David Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of
Defence?’ (2005) 16 European Journal of International Law 184–185.
82 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, para. 25. See also The Wall (n
69) para. 105.
83 See also ICJ, Nuclear Weapons (n 82) para. 25 and ECtHR, Hassan v UK, App. no. 29750/09, Judgment, 16 September
2014, paras 102–104.
84 See ICCPR art. 4 (1) and ECHR art. 15(1). See also art. 27 of the American Convention on Human Rights.
85 See also Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil
and Political Rights (1985), UN Doc. E/CN.4/1985/4, para. 39.
86 Lawless v Ireland, App. no. 332/57, 1 July 1961, para. 28.
87 Denmark, Norway, Sweden and the Netherlands v Greece, App. nos 3321/67, 3322/67, 3323/67 and 3344/67, 5
November 1969, para. 113.
88 A and Others v UK, App. no. 3455/05, 19 February 2009, para. 177.
89 See http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations?
p_auth=N5hF4XrW <http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/declarations?
p_auth=N5hF4XrW> (accessed 26 January 2021).
90 On this issue, see the House of Lords, R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for
Defence (Respondent) [2007] UKHL 58, [38].
91 See A and Others v UK (n 88) para. 180.
92 Ibid, para. 190. For the House of Lords decision, see the individual judgments of the law lords in A and Others v
Secretary of State for the Home Department [2004] UKHL 56, see esp. [126] and [132].
93 See ECHR art. 15 and art. 3 of Protocol No. 6 and art. 2 of Protocol No. 13. For the ICCPR, see art. 4(2) and HRC,
‘General Comment No. 29: States of Emergency (article 4)’ (2001), UN Doc. CCPR/C/21/Rev.1/Add.11, paras 13–16.
94 ICCPR art 4(3) and ECHR art. 15(3).
95 Protocol relating to the Status of Refugees, 31 January 1967.
Page 23 of 24
96 The UNHCR publishes a handbook and a set of (non-binding) guidelines that may assist national decision-makers:
see UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, Reissued Geneva, December 2011.
97 See e.g. the discussion in Chapter 15.
98 For relevant case law from the Committee Against Torture, see Mutombo v Switzerland (Communication No.
13/1193, CAT/C/12/D/13/1993, 27 April 1994) and Haydin v Sweden (Communication No. 101/1997, CAT/C/21/D/
101/1997, 20 November 1998).
99 For case law from the Human Rights Committee on the prohibition on transfer to a risk of ill-treatment, see Kindler
v Canada (Communication No. 470/1991, CCPR/C/48/D/470/1991, 11 November 1993); Chitat Ng v Canada
(Communication No. 469/1991, CCPR/C/49/D/469/1991, 7 January 1994).
100 See Soering v UK, App. no. 14038/88, 7 July 1989, para. 88. See also Cruz Varas and Others v Sweden, App. no.
15576/89, 20 March 1991, para. 70 and Vilvarajah and Others v UK, App. nos 13163/87 etc., 30 October 1991, para. 107.
101 Soering (n 100), para. 113. See also Othman (Abu Qatada) v UK, App. no. 8139/09, 17 January 2012, paras 258–260.
102 El-Masri v The Former Yugoslav Republic of Macedonia, App. no. 39630/09, 13 December 2012, para. 239.
103 Paposhvili v Belgium, App. no. 41738/10, 13 December 2016, para. 183.
104 Chahal v UK, App. no. 70/1995/576/662, 15 November 1996, para. 79; Saadi v Italy, App. no. 37201/06, 28 February
2008, para. 127.
© Oxford University Press 2021
Related Links
Visit the online resources for this title <https://learninglink.oup.com/access/henriksen3e>
Test yourself: Multiple choice questions with instant feedback <https://learninglink.oup.com/access/content/

bantekas-papastavridis-concentrate5e-student-resources/bantekas-papastavridis-concentrate5e-diagnostic-test>
Find This Title

In the OUP print catalogue <https://global.oup.com/academic/product/9780198869399>
Page 24 of 24

Clase 10 - Derechos Humanos

Uploaded by

Copyright:

Available Formats

Clase 10 - Derechos Humanos

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Clase 10 - Derechos Humanos

Uploaded by

Copyright:

Available Formats

9.

International human rights law

International Law (3rd edn)

p. 163 9. International human rights law

4. It also provides an overview of the international legal protection of refugees.

9.2 Sources of human rights law

9.3 Categories of human rights

9.3.2 Civil and political rights

9.3.3 Economic and social rights

9.3.4 Collective rights

9.4 Human rights and responsibility for private acts

9.5 Enforcement of human rights in the United Nations

9.5.2 Charter-based human rights mechanisms

9.5.3 Treaty-based enforcement mechanisms

9.6 Regional systems for the protection of human rights

9.6.2 Human rights protection in Europe

9.6.2.1 Introduction—the ECHR

9.6.2.2 The European Court of Human Rights

9.6.2.3 The substantive rights

9.6.2.4 The ECtHR’s interpretation

9.6.2.5 Other Council of Europe human rights conventions

9.6.2.6 Human rights protection in the EU

9.6.3 Human rights protection in the Americas

9.6.4 Human rights protection in Africa

9.7 The territorial scope of human rights treaties

9.8 Human rights in times of public emergency

9.9 International protection of refugees

9.9.1 Introduction—the Refugee Convention

9.9.2 The protection of refugees in the Refugee Convention

9.9.3 The protection of individuals who fear ill-treatment in other human

Questions for discussion

For outline answers <https://iws.oupsupport.com/ebook/access/content/henriksen3e-resources/henriksen3e-

2 See also Preamble to the 1966 ICCPR and ICESCR.

3 See also art. 53 of the Charter.

6 For an overview, see https://www.ohchr.org/EN/professionalinterest/pages/

9 See also art. 11 of the European Social Charter.

11 See art. II. See also the definition in Chapter 15.

13 See, respectively, Communication Nos 2668/2015 and 2950/2017.

14 See also the 2007 Declaration on the Rights of Indigenous Peoples.

17 GA Res. 41/28 (1986), art. 1.

25 GA Res. 48/141 (20 December 1993).

26 For a complete overview of the committees, see http://www.ohchr.org/EN/HRBodies/Pages/

27 See ICCPR art. 40.

28 ICCPR arts 41–42.

29 See Optional Protocol 1 to the ICCPR.

30 HRC, ‘General Comment No 33’ (2008), UN Doc. CCPR/C/GC/33, para. 19.

32 Arts 21 and 22.

34 See Q and A on Inter-State Cases (August 2020), at https://www.echr.coe.int/Documents/Press_Q_A_Inter-

35 ECHR art. 34.

37 ECHR art. 35.

38 Ibid, art. 41.

39 See, respectively, ibid, arts 44 and 46(1).

40 Ibid, art. 46(2).

41 See the Protocol’s art. 1.

42 See also Protocol No. 6 from 1983.

44 Stafford v UK, App. no. 46295/99, 28 May 2002, paras 68–69.

46 Handyside v UK, App. no. 5493/72, 7 December 1976, para. 48.

52 See Treaty of the European Union, art. 6(1).

53 See Opinion 2/13 of 18 December 2014.

56 Ibid, para. 165.