Abstract
The chapter focuses on the international legal sources on human rights at the universal level. Both the application of the sources of international law to the field of human rights and their implementation in national legal orders are characterized by peculiarities, challenges and limitations, which this chapter discusses with reference to the nature and content of each specific legal source. Of particular importance are the notion of jurisdiction enshrined in various human rights treaties, as interpreted in international jurisprudence, and the horizontal application of some human rights norms and the related due diligence obligations of the State. Finally, the chapter also discusses the relationship between the human rights regime and international humanitarian law.
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Notes
- 1.
See Chap. 2, Sect. 2.1.
- 2.
“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law”: Article 53.
- 3.
“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”: Article 64.
- 4.
Id., Article 66, para 1, subpara a.
- 5.
See, for example, the judgment of 10 December 1998 adopted by the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in Prosecutor v. Anto Furundžija, IT-95-17/1-T, para 153.
- 6.
In fact, the codification treaties do not always correspond to customary law, given that some norms may be based on the progressive development of international law, as indicated in Article 13 of the UN Charter with reference to the competence vested in the UNGA in this matter.
- 7.
See ICTY judgment in Furundžija, cit., para 149.
- 8.
ICTY, Furundžija, cit., para 155.
- 9.
See para 41 of the judgment.
- 10.
Id., para 44.
- 11.
See para 119 of the judgment.
- 12.
See applications nos. 10865/09, 45886/07 and 32431/08, para 326 of the judgment. That same incompatibility with peremptory norms on the prohibition of torture is also highlighted by the UN Committee Against Torture (“CAT”), set up by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (see Chap. 5, Sect. 5.2.5), in General Comment No. 2 of 24 January 2008, on the “Implementation of article 2 by States parties”, para 5.
- 13.
See the decision of the Pre-Trial Chamber on the Admissibility Challenge by Dr. Saif Al-Islam Gadaffi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute, The Prosecutor v. Saif Al-Islam Gaddafi, CC-01/11-01/11, paras 77–78.
- 14.
- 15.
- 16.
See Chap. 1, Sect. 1.1.
- 17.
See infra, Sect. 3.9.
- 18.
On this issue, see Chap. 13, Sect. 13.3.
- 19.
See Chap. 2, Sect. 2.4.1.
- 20.
See, for example, the decision of 11 January 1961 by the European Commission of Human Rights (“ECommHR”) in the case of Austria v. Italy, appl. 788/60.
- 21.
See Article 60(5) of the Convention.
- 22.
See appl. no. 25781/94, paras 44-45 of the judgment. The legal action can of course also be initiated by the State party in the interest of nationals of other States.
- 23.
Id., para 46.
- 24.
Appl. no. 54155/16, para 66 of the decision.
- 25.
See the ACommHPR report of 17 February 2016, made public on 28 April 2018, in the case of Hossam Ezzat and Rania Enayet (represented by the Egyptian Initiative for Personal Rights and INTERIGHTS) v. Arab Republic of Egypt, communication no. 355/07, concerning the reservations made by Egypt to certain provisions of the 1981 African Charter (including Article 8 on religious freedom), compliance with which was made conditional by Egypt on the compatibility of the provisions “with the Islamic Law”.
- 26.
The reservation stated that the above-mentioned rules of the Protocol could apply only to offences classified as criminal by Italian law.
- 27.
See appl. nos. 18640/10, 18647/10, 18663/10, 18668/10 and 18698/10, paras 204–211 of the judgment.
- 28.
On this right, see Chap. 8, Sect. 8.2.
- 29.
See Article 2 of the Chicago Convention on International Civil Aviation of 7 December 1944: “For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty... of such State”.
- 30.
For both of the above scenarios, see the statements of the ECtHR (Grand Chamber), respectively, in its decision of inadmissibility of 12 December 2001 in Banković and Others v. Belgium and 16 Other States, appl. no 52207/99, paras 134–135, and in its judgment of 16 September 2014 in Hassan v. the United Kingdom, appl. no. 29750/09, para 74.
- 31.
This issue is explored further in Chap. 10, Sect. 10.1.
- 32.
See para 63.
- 33.
According to the ECtHR (Grand Chamber), in cases of international armed conflict, effective control over foreign territory can only be established in the phase of stabilisation of territorial control and not in the preceding period characterised by armed confrontations between States “seeking to establish control over an area in a context of chaos”, which are moreover governed by IHL: judgment of 21 January 2021, Georgia v. Russia (II), appl. no. 38263/08, paras 126 and 137.
- 34.
Appl. nos. 20958/14 and 38334/18, paras 338 ff. and in particular paras 348–349 of the decision.
- 35.
Appl. no. 13216/05, para 186 of the judgment. In relation to the occupation of part of Cyprus by Turkey and the subsequent establishment of the Turkish Republic of Northern Cyprus, there is a large body of ECtHR case law stemming from individual applications by Cypriot citizens alleging violations of various ECHR provisions and, to a much lesser extent, from inter-State applications.
- 36.
See the preamble to the resolution.
- 37.
See, for example, the Grand Chamber judgment of 7 July 2011 in Al-Jedda v. United Kingdom, appl. no. 27021/08.
- 38.
See the decision published on 25 July 2019, appl. no. 32001/18, para 78.
- 39.
See ECtHR (Grand Chamber) judgment of 8 July 2004 in Ilaşcu and Others v. Moldova and Russia, appl. no. 48787/99, para 331, the statements contained therein have been repeatedly cited, for example in the judgment of 15 October 2019 in Grama and Dîrul v. Republic of Moldova and Russia, applications nos. 28432/06 and 5665/07, para 17.
- 40.
See Inter-American Commission on Human Rights (“IACommHR”) report no. 112/10 of 21 October 2010 in Ecuador v. Colombia, concerning the incursion of Colombian military into Ecuador for the purpose of killing or capturing members of the Fuerzas Armadas Revolucionarias de Colombia (FARC).
- 41.
See the judgment of 20 November 2014 adopted by the ECtHR (Grand Chamber) in the case of Jaloud v. Netherlands, appl. no. 47708/08, concerning the responsibility of the troop-contributing State for the wrongdoing committed by its soldiers in Iraq in 2004 during operations carried out following the establishment of a checkpoint.
- 42.
See ECtHR (Grand Chamber) judgment of 12 May 2005 in Öcalan v. Turkey, appl. no. 46221/99, para 91.
- 43.
Judgment of 21 September 2021, Carter v. Russia, appl. no. 20914/07, paras 130 and 161.
- 44.
Judgment of 24 June 2008, Solomou and Others v. Turkey, appl. no. 36832/97, para 45.
- 45.
See A.S., D.I., O.I. and G.D. v. Italy, CCPR/C/130/D/3042/2017, para 7.8.
- 46.
See OC-23/17.
- 47.
Id., para 81.
- 48.
Id., para 101.
- 49.
See CRC/C/88/D/104/2019, para 10.7.
- 50.
Id., para 10.13.
- 51.
Paragraph 10.8.
- 52.
On national climate change case law, see Chap. 12, Sect. 12.4.
- 53.
On these issues, see Chap. 6, Sect. 6.2.2.
- 54.
See, for example, the judgment of 9 June 2009 in Opuz v. Turkey, appl. no. 33401/02, para 120.
- 55.
See General Comment No. 16 of 8 April 1988 on Article 17 (Right to Privacy), according to which States Parties are required to prevent interference with the right to private and family life “whether they emanate from State authorities or from natural or legal persons”: para 1.
- 56.
- 57.
See paras 137 ff. of the judgment.
- 58.
See judgment of 28 October 1998, appl. no. 87/1997/871/1083, para 116.
- 59.
See appl. no. 41237/14, para 122 of the judgment.
- 60.
Appl. no. 62903/15.
- 61.
See para 190 of the judgment.
- 62.
Judgment of 14 September 2021, appl. no. 40419/19.
- 63.
In ICJ 1996, p. 240, para 25.
- 64.
In ICJ 2004, p. 46, para 106.
- 65.
See ICJ 2005, pp. 243–244, para 217.
- 66.
See ICJ 2008, p. 387, para 112.
- 67.
See respectively OHCHR, International Legal Protection of Human Rights in Armed Conflict, November 2011, Doc. HR/PUB/11/01, p. 63, and the Report submitted by the Mission of Experts established under the Moscow Mechanism, 13 April 2022, ODIHR.GAL/26/22/Rev.1, p. 53, para 4.
- 68.
- 69.
See Article 27(2) of the Convention.
- 70.
See the advisory opinion of 6 October 1987 on Judicial Guarantees in States of Emergency, No. OC-9/87, para 41.
- 71.
See judgment of 21 September 2021, Dareskizb Ltd v. Armenia, appl. no. 61737/08, para 59.
- 72.
See Article 29, para 2.
- 73.
Article 18.
- 74.
ECtHR (Grand Chamber), judgment of 28 November 2017, Merabishvili v. Georgia, appl. no. 72508/13.
- 75.
The derogation measures were adopted respectively pursuant to Article 15 ECHR, Article 27 ACHR and Article 4 ICCPR.
- 76.
The conditions that the power to derogate from certain provisions of the ICCPR is subject to have been highlighted, precisely in connection with the COVID-19 pandemic, by the HRC in its unusual Statement of 24 April 2020, CCPR/C/128/2.
- 77.
On the case law concerning the application to prisoners of the right not to be subjected to inhuman or degrading treatment, see Chap. 7, Sect. 7.2.2.
- 78.
In this regard, see the statements of the ECtHR (Grand Chamber) in its judgment of 6 October 2005, Hirst v. the United Kingdom (no. 2), appl. no. 74025/01, paras 56 ff.
- 79.
See para 1.
- 80.
See para 104.
- 81.
- 82.
See Chap. 1, Sect. 1.1.
- 83.
See Chap. 5, Sect. 5.3.2.
References
ICJ (1996) Advisory opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons. ICJ Reports
ICJ (2004) Advisory opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. ICJ Reports
ICJ (2005) Judgment of 19 December 2005 on the Armed Activities on the Territory of Congo (Democratic Republic of Congo. v. Uganda). ICJ Reports
ICJ (2008) Order of 15 October 2008 in the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). ICJ Reports
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Pustorino, P. (2023). International Legal Sources on Human Rights: The Universal Level. In: Introduction to International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-563-8_3
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