Public International Law Summary
Week 1: Human Rights
Chapter 10: International Human Rights Law
The modern conception of human rights is based on the premise that some human rights are
inherent in all individuals, no matter their citizenship (natural law thinking).
Human rights relativism: the debate about how much an immigrant must give up and how
much the receiving state must compromise.
Human rights began with the 1948 General Assembly’s Universal Declaration of Human
Rights (UDHR). The most important human rights sources are:
1. General conventions
- 1966 International Covenant on Civil and Political Rights (ICCPR)
- 1996 International Covenant on Economic, Social and Cultural Rights (ICESCR)
2. Universal convention on a specific issue
- 1965 International Convention on the Elimination of All Forms of Racial
Discrimination (CERD)
- 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT)
- 2006 International Convention for the Protection of All Persons from Enforced
Disappearance (ICPPED)
3. Conventions on the protection of certain categories of vulnerable individuals
- 1979 Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW)
- 1989 Convention on the Rights of the Child (CRC)
- 1951 Convention Relating to the Status of Refugees
4. Regional human rights conventions
- 1950 European Convention on Human Rights (ECHR)
- 1969 American Convention on Human Rights
- 1981 African Charter on Human and Peoples’ Rights
- 2004 Arab Charter on Human Rights
5. Customary international law
Human rights can be divided into:
- Civil and political rights: Include the prohibition against torture and slavery, the
right to life, liberty, fair trial, equality before the law, freedom of speech, religious
freedoms and political participatory rights. Most of these are negative rights,
which means it offers protection against the excess of a state. All these rights are
derived from the principles of human dignity and freedom.
- Economic and social rights: Include the right to work, adequate working
conditions including fair wages, the right to social security, adequate living
standard, physical and mental health and the right to education. These positive
rights mean they require action from the state to actively guarantee these rights
by taking initiative.
- Collective rights: focus on various groups of individuals. For example, the 1948
Genocide Convention obligates States to prevent and punish acts intended to
destroy racial or religious groups as such. This also follows from the right to self-
determination. These rights mainly target minority groups.
,While international organizations are bound by human rights obligations under general rules
of international law, they are not necessarily bound by specific human rights treaties.
Multinational corporations can affect human rights through their business activities, but they
are not currently bound by legally binding obligations under international law, relying instead
on domestic laws, private contracts, and self-imposed codes of conduct.
The scope of human rights treaties applies to every individual within the jurisdiction of a
state party, including nationals, stateless individuals, asylum seekers, and migrant workers,
and may extend beyond the state’s territory in exceptional circumstances. The
extraterritorial application of human rights treaties can occur when the state exercises
effective control over a foreign territory or an individual. In situations where a state exercises
authority or control over an individual, some human rights courts and bodies have
recognized the extraterritorial application of human rights treaties. The UN Human Rights
Committee and the European Court of Human Rights have acknowledged the extraterritorial
application of human rights treaties based on control and authority over an individual.
However, the European Court of Human Rights case law is not entirely consistent in applying
this principle to similar factual situations.
Human rights treaties allow states to temporarily suspend some of their human rights
obligations in a public emergency, referred to as derogation. Various states have attempted
to derogate from their human rights obligations in recent years, such as Ukraine and France.
For states to derogate lawfully from their human rights obligations, various procedural, as
well as substantive requirements, have to be met. These requirements are stipulated in the
derogation clauses of the treaty at hand may vary treaty to treaty.
In general, human rights treaties condition a valid derogation on the existence of a public
emergency that threatens the life of the nation. When sates take cerain measures derogating
from their human rights obligations, various substantive requirements must be met as well,
such as the measures concerned must be strictly required by the exigencies of the situation,
and the measures taken may not be inconsistent with the state’s other obligations under
international law, including customary international law.
Staten kunnen onder bepaalde omstandigheden tijdelijk enkele van hun
mensenrechtenverplichtingen opschorten (derogation). Dit is toegestaan tijdens een
noodsituatie die de veiligheid van het land bedreigt. Derogation moet echter voldoen aan
zowel procedurele als inhoudelijke Eisen, die per
s verdrag kunnen verschillen. Zo moeten de
genomen maatregelen strikt noodzakelijk zijn vanwege de situatie en mogen deze niet in
strijd zijn met andere internationale verplichtingen van de staat. Recent hebben landen als
Oekraïne en Frankrijk van deze mogelijkheid gebruik gemaakt.
At the Un, there can be a distinction between Charter-based mechanisms and treaty-based
mechanisms. The first one finds their basis in the UN Charter, the second one are created by
specific human rights treaties.
With the Charter-based mechanisms, various institutions are involved. The primary
responsibility for the promotion and protection of human rights is given to the Office of the
High Commissioner for Human Rights. They have different tasks. They need to provide states
,with technical assistance in the field of human rights. The must also strengthens
international cooperation and finally, they must improve the ratification and
implementation of human rights and treaties.
Another important situation is the Human Rights Commission. Though it does not exist
today, it played an important role in the making of the human rights instruments. It was
rather weak, because the commission was composed of state representatives. Therefore, the
states decided to replace the Commission with the Human Rights Council (HRC).
Human rights treaties also create mechanisms to monitor and enforce compliance with
human rights. For each human rights treaty, there is a committee established. These
committees are composed of independent experts. Almost every international human rights
treaty includes a periodic reporting procedure. Some treaties also provide for an individual
complaints procedure that allows individuals to file a complaint against a state party before
the relevant Committee. There are also the inter-state complaint procedures. Those allow
states parties to a human rights treaty to file complaints against one another regarding their
alleged human rights violations.
States also use regional systems to protect the human rights. The Council of Europe plays a
prominent role in the protection of human rights. After the world wars, Europe wanted to
have a legal base to protect human rights. The most important treaty is the ECHR. It protects
mostly civil and political rights. In the case of the Americans, human rights protection centers
around the ACHR Rights. The US and Canada did not ratify the convention. The ACHR Rights
protects civil and political rights as well as economic, social and cultural rights. The Inter-
American Commission is tasked with promoting and monitoring human rights. The Inter-
American Court has a dual function. It has to deal with contentious cases on the one hand,
and to issue advisory opinions on the other. In Africa the Organisation of African Unity
adopted the ACHPR. It covers the civil and political rights, the economic, social and cultural
rights, and also collective rights. It also has a commission and a court playing a role in
ensuring compliance with the rights provided for the Charter.
Chapter 5: Law of State Responsibility
A legal system must have rules specifying what happens when one of the subjects violates its
obligations, and how an aggrieved party can vindicate its rights. These rules are primarily
found within the field of state responsibility, supplemented by the rules on the responsibility
of international organization. We can distinguish two ‘types’ of rules:
- Primary rules: these are rules that define particular obligations that may generate
responsibility if they are violated
- Secondary rules: these are rule that determine the consequences of violating the
primary rules. The laws on responsibility are considered secondary rules. The
purpose of these rules is to determine what the legal consequences are in case of
a breach of the primary rules
The most relevant rules and principles are found in a series of articles on Responsibility of
States for Internationally Wrongful Acts prepared by the International Law Commission (ILC).
, Article 1 of the ILC articles states that ‘Every internationally wrongful act of a State entails
the international responsibility of that State’. Article 2 of the ILC articles specifies that state
responsibility consists of three elements:
1. Conduct consisting of an action or omission
2. Conduct must be attribution to a state
3. Conduct must be a breach of an international obligation
Een staat kan een schending van zijn internationale wettelijke verplichtingen niet
rechtvaardigen door een beroep te doen op zijn nationale wetten, en een staat moet ook aan
s
internationale verplichtingen voldoen, zelfs als dit eist dat hij haar nationale wetten
overtreedt (artikel 3 van de ILC-artikelen).
In national legal systems, there is usually a distinction between different forms of liability,
depending on the primary obligations. In international law, this distinction doesn’t exist. An
international obligation is breached by a state, according to Article 12 of the ILC Articles,
‘when an act of that State is not in conformity with what is required of it by that obligation,
regardless of its origin or character’. In international law, the intention of a state is not
relevant. Moreover, damage is not a requirement for a breach.
One of the core elements of state responsibility is that the wrongful conduct can be
attributed to a state. Attribution is dealt with in Articles 4 to 11 of the ILC Articles (Chapter
III) and the provisions are based on the overall premise that a state is solely internationally
responsible for its own acts. Basically, this means that only the conduct of a state’s own
organs or of other individuals or actors who have acted under the direction, instigation or
effective control of such organs are attributable to the state.
However, a state can be attributed responsibility for acts of private individuals if the state has
breached its obligation to offer protection from acts of these private individuals. Principles of
State attribution to the state:
- Article 4 (acts performed by the state and its organs): the first principle of state
attribution is both straightforward and uncontroversial: all conduct of a state
organs is considered an act of the state regardless of whether the organ in
question ‘exercises legislative, executive, judicial or any other functions.’ It is also
immaterial what position the organ holds or of what importance it is. In addition,
the term ‘organ’ is interpreted broadly, to include all persons and entities who act
in an official capacity. A state cannot evade responsibility by denying official status
to an entity that in practice functions as a state organ
- Article 5 (acts performed by organs exercising governmental authority): is
concerned with state responsibility for individuals and entities that execise
governmental authority in the absence of their status as a state organ in the
formal sense. To an increasing extent, private corporations have begun to fulfil
functions that are normally exercised by the organs and institutions of the state. It
may be difficult to determine if an activity should be considered as an exercise of
‘governmental authority’. According to article 5, the content of the powers
granted as well as ‘the way they are conferred on an entity, the purposes for
which they are to be exercised and the extent to which the entity is accountable to
the government for their exercise’ is of interpretative importance
Week 1: Human Rights
Chapter 10: International Human Rights Law
The modern conception of human rights is based on the premise that some human rights are
inherent in all individuals, no matter their citizenship (natural law thinking).
Human rights relativism: the debate about how much an immigrant must give up and how
much the receiving state must compromise.
Human rights began with the 1948 General Assembly’s Universal Declaration of Human
Rights (UDHR). The most important human rights sources are:
1. General conventions
- 1966 International Covenant on Civil and Political Rights (ICCPR)
- 1996 International Covenant on Economic, Social and Cultural Rights (ICESCR)
2. Universal convention on a specific issue
- 1965 International Convention on the Elimination of All Forms of Racial
Discrimination (CERD)
- 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT)
- 2006 International Convention for the Protection of All Persons from Enforced
Disappearance (ICPPED)
3. Conventions on the protection of certain categories of vulnerable individuals
- 1979 Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW)
- 1989 Convention on the Rights of the Child (CRC)
- 1951 Convention Relating to the Status of Refugees
4. Regional human rights conventions
- 1950 European Convention on Human Rights (ECHR)
- 1969 American Convention on Human Rights
- 1981 African Charter on Human and Peoples’ Rights
- 2004 Arab Charter on Human Rights
5. Customary international law
Human rights can be divided into:
- Civil and political rights: Include the prohibition against torture and slavery, the
right to life, liberty, fair trial, equality before the law, freedom of speech, religious
freedoms and political participatory rights. Most of these are negative rights,
which means it offers protection against the excess of a state. All these rights are
derived from the principles of human dignity and freedom.
- Economic and social rights: Include the right to work, adequate working
conditions including fair wages, the right to social security, adequate living
standard, physical and mental health and the right to education. These positive
rights mean they require action from the state to actively guarantee these rights
by taking initiative.
- Collective rights: focus on various groups of individuals. For example, the 1948
Genocide Convention obligates States to prevent and punish acts intended to
destroy racial or religious groups as such. This also follows from the right to self-
determination. These rights mainly target minority groups.
,While international organizations are bound by human rights obligations under general rules
of international law, they are not necessarily bound by specific human rights treaties.
Multinational corporations can affect human rights through their business activities, but they
are not currently bound by legally binding obligations under international law, relying instead
on domestic laws, private contracts, and self-imposed codes of conduct.
The scope of human rights treaties applies to every individual within the jurisdiction of a
state party, including nationals, stateless individuals, asylum seekers, and migrant workers,
and may extend beyond the state’s territory in exceptional circumstances. The
extraterritorial application of human rights treaties can occur when the state exercises
effective control over a foreign territory or an individual. In situations where a state exercises
authority or control over an individual, some human rights courts and bodies have
recognized the extraterritorial application of human rights treaties. The UN Human Rights
Committee and the European Court of Human Rights have acknowledged the extraterritorial
application of human rights treaties based on control and authority over an individual.
However, the European Court of Human Rights case law is not entirely consistent in applying
this principle to similar factual situations.
Human rights treaties allow states to temporarily suspend some of their human rights
obligations in a public emergency, referred to as derogation. Various states have attempted
to derogate from their human rights obligations in recent years, such as Ukraine and France.
For states to derogate lawfully from their human rights obligations, various procedural, as
well as substantive requirements, have to be met. These requirements are stipulated in the
derogation clauses of the treaty at hand may vary treaty to treaty.
In general, human rights treaties condition a valid derogation on the existence of a public
emergency that threatens the life of the nation. When sates take cerain measures derogating
from their human rights obligations, various substantive requirements must be met as well,
such as the measures concerned must be strictly required by the exigencies of the situation,
and the measures taken may not be inconsistent with the state’s other obligations under
international law, including customary international law.
Staten kunnen onder bepaalde omstandigheden tijdelijk enkele van hun
mensenrechtenverplichtingen opschorten (derogation). Dit is toegestaan tijdens een
noodsituatie die de veiligheid van het land bedreigt. Derogation moet echter voldoen aan
zowel procedurele als inhoudelijke Eisen, die per
s verdrag kunnen verschillen. Zo moeten de
genomen maatregelen strikt noodzakelijk zijn vanwege de situatie en mogen deze niet in
strijd zijn met andere internationale verplichtingen van de staat. Recent hebben landen als
Oekraïne en Frankrijk van deze mogelijkheid gebruik gemaakt.
At the Un, there can be a distinction between Charter-based mechanisms and treaty-based
mechanisms. The first one finds their basis in the UN Charter, the second one are created by
specific human rights treaties.
With the Charter-based mechanisms, various institutions are involved. The primary
responsibility for the promotion and protection of human rights is given to the Office of the
High Commissioner for Human Rights. They have different tasks. They need to provide states
,with technical assistance in the field of human rights. The must also strengthens
international cooperation and finally, they must improve the ratification and
implementation of human rights and treaties.
Another important situation is the Human Rights Commission. Though it does not exist
today, it played an important role in the making of the human rights instruments. It was
rather weak, because the commission was composed of state representatives. Therefore, the
states decided to replace the Commission with the Human Rights Council (HRC).
Human rights treaties also create mechanisms to monitor and enforce compliance with
human rights. For each human rights treaty, there is a committee established. These
committees are composed of independent experts. Almost every international human rights
treaty includes a periodic reporting procedure. Some treaties also provide for an individual
complaints procedure that allows individuals to file a complaint against a state party before
the relevant Committee. There are also the inter-state complaint procedures. Those allow
states parties to a human rights treaty to file complaints against one another regarding their
alleged human rights violations.
States also use regional systems to protect the human rights. The Council of Europe plays a
prominent role in the protection of human rights. After the world wars, Europe wanted to
have a legal base to protect human rights. The most important treaty is the ECHR. It protects
mostly civil and political rights. In the case of the Americans, human rights protection centers
around the ACHR Rights. The US and Canada did not ratify the convention. The ACHR Rights
protects civil and political rights as well as economic, social and cultural rights. The Inter-
American Commission is tasked with promoting and monitoring human rights. The Inter-
American Court has a dual function. It has to deal with contentious cases on the one hand,
and to issue advisory opinions on the other. In Africa the Organisation of African Unity
adopted the ACHPR. It covers the civil and political rights, the economic, social and cultural
rights, and also collective rights. It also has a commission and a court playing a role in
ensuring compliance with the rights provided for the Charter.
Chapter 5: Law of State Responsibility
A legal system must have rules specifying what happens when one of the subjects violates its
obligations, and how an aggrieved party can vindicate its rights. These rules are primarily
found within the field of state responsibility, supplemented by the rules on the responsibility
of international organization. We can distinguish two ‘types’ of rules:
- Primary rules: these are rules that define particular obligations that may generate
responsibility if they are violated
- Secondary rules: these are rule that determine the consequences of violating the
primary rules. The laws on responsibility are considered secondary rules. The
purpose of these rules is to determine what the legal consequences are in case of
a breach of the primary rules
The most relevant rules and principles are found in a series of articles on Responsibility of
States for Internationally Wrongful Acts prepared by the International Law Commission (ILC).
, Article 1 of the ILC articles states that ‘Every internationally wrongful act of a State entails
the international responsibility of that State’. Article 2 of the ILC articles specifies that state
responsibility consists of three elements:
1. Conduct consisting of an action or omission
2. Conduct must be attribution to a state
3. Conduct must be a breach of an international obligation
Een staat kan een schending van zijn internationale wettelijke verplichtingen niet
rechtvaardigen door een beroep te doen op zijn nationale wetten, en een staat moet ook aan
s
internationale verplichtingen voldoen, zelfs als dit eist dat hij haar nationale wetten
overtreedt (artikel 3 van de ILC-artikelen).
In national legal systems, there is usually a distinction between different forms of liability,
depending on the primary obligations. In international law, this distinction doesn’t exist. An
international obligation is breached by a state, according to Article 12 of the ILC Articles,
‘when an act of that State is not in conformity with what is required of it by that obligation,
regardless of its origin or character’. In international law, the intention of a state is not
relevant. Moreover, damage is not a requirement for a breach.
One of the core elements of state responsibility is that the wrongful conduct can be
attributed to a state. Attribution is dealt with in Articles 4 to 11 of the ILC Articles (Chapter
III) and the provisions are based on the overall premise that a state is solely internationally
responsible for its own acts. Basically, this means that only the conduct of a state’s own
organs or of other individuals or actors who have acted under the direction, instigation or
effective control of such organs are attributable to the state.
However, a state can be attributed responsibility for acts of private individuals if the state has
breached its obligation to offer protection from acts of these private individuals. Principles of
State attribution to the state:
- Article 4 (acts performed by the state and its organs): the first principle of state
attribution is both straightforward and uncontroversial: all conduct of a state
organs is considered an act of the state regardless of whether the organ in
question ‘exercises legislative, executive, judicial or any other functions.’ It is also
immaterial what position the organ holds or of what importance it is. In addition,
the term ‘organ’ is interpreted broadly, to include all persons and entities who act
in an official capacity. A state cannot evade responsibility by denying official status
to an entity that in practice functions as a state organ
- Article 5 (acts performed by organs exercising governmental authority): is
concerned with state responsibility for individuals and entities that execise
governmental authority in the absence of their status as a state organ in the
formal sense. To an increasing extent, private corporations have begun to fulfil
functions that are normally exercised by the organs and institutions of the state. It
may be difficult to determine if an activity should be considered as an exercise of
‘governmental authority’. According to article 5, the content of the powers
granted as well as ‘the way they are conferred on an entity, the purposes for
which they are to be exercised and the extent to which the entity is accountable to
the government for their exercise’ is of interpretative importance
