Recurring Themes in Human Rights Doctrine

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Author: Max Milas

Required knowledge: Introduction to Human Rights Law, Sources of international law, Treaty law and interpretation of treaties, Interaction between domestic and international Law

Learning objectives: Understanding recurring themes in human rights doctrine.

A. Sources of International Human Rights Law[edit | edit source]

Contemporary international human rights law derives from international treaties, customary international law andnon-binding declarations that coexist at both the regional and universal levels. The following section provides an overview of these legal sources of human rights and the legal status of human rights in international law. For this purpose, human rights are presented against the background of the rules of general international lawon legal sources and legal status.

For human rights sources, as for all almost all fields of international law, Art. 38(1) of the Statute of the International Court of Justice ("ICJ") is decisive. Accordingly, sources of international law are "international conventions [...]; international custom [...]; general principles of law [....]; judicial decisions and [...] teachings".[1]

I. International Human Rights Treaties[edit | edit source]

Most contemporary international human rights are codified in treaties.[2] The most emblematic human rights treaties are the 1966 International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) at the global level and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), the 1969 American Convention on Human Rights (“ACHR”) and the 1981 African Charter on Human and Peoples' Rights (“AfCHPR”) at the regional level. Further, there are also international human rights treaties in the post-Soviet region in form of the 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms and in the Arab region in form of the 2004 Arab Charter on Human Rights. These general human rights treaties are supplemented by countless special treaties for, for example, women's rights in the Convention of Belém do Pará, migrants' rights in the Migrant Workers Convention, and prohibitions on discrimination in the International Convention on the Elimination of All Forms of Racial Discrimination. Human rights treaties are not static, but are constantly modified by treaty amendments, additional protocols, or extended interpretations by adjudicative bodies according to Art. 38(1)(d) ICJ Statute.[3]

Advanced: Interpreting International Human Rights Treaties

In principle, the general rules on the interpretation of international treaty law in Art. 31-33 VCLT are also applicable to human rights treaties.[4] Accordingly, pursuant to Art. 31VCLT, the wording, context, and object and purpose of the human right are primarily decisive for the interpretation. In addition, according to Art. 32 VCLT, the drafting history may be considered if the wording and context are ambiguous. Human rights adjudicative bodies add a dynamic approach to these general rules for interpreting international law. According to this, human rights treaties are “living instruments” that have to be interpreted “in light of present-day conditions”.[5] This progressive mode of interpretation is used to interpret human rights as proactively and favorably as possible for individuals.[6]


II. International Human Rights as Customary International Law[edit | edit source]

Some human rights are also customary international law and are therefore binding even for states that have not ratified a human rights treaty. However, it is often disputed which human rights fulfill the requirements of customary law. This question cannot be answered in the abstract, but only depending on state practice and opinio juris for a particular human right. UN General Assembly resolutions, diplomatic correspondence, government statements, or state review processes can be examined for this purpose.[7] Nowadays, at least the prohibition of torture, racial discrimination, and slavery considered customary international law.[8]

III. International Human Rights as Jus Cogens and Obligations Erga Omnes[edit | edit source]

The prohibition of torture, racial discrimination, and slavery are recognized not only as customary international law, but also as jus cogens norms. This results in a primary binding effect of these human rights for all states regardless of other obligations under international law according to Art. 53 VCLT.[9] Because all jus cogens norms are also erga omnes rules, violations of these three human rights can be invoked by all states before international tribunals. However, it must be considered that not only jus cogens, but also non-jus cogens norms can be erga omnes rules if they are “rules concerning the basic rights of the human person”[10].[11]


B. Actors in International Human Rights Law[edit | edit source]

Deviating from general international law, international human rights law does not only create obligations between states, but also obligations of states to individuals subject to their jurisdiction.[12]

I. Obligated Actors: States, Non-State Actors and International Organizations[edit | edit source]

According to the traditional and undisputed understanding, human rights first and foremost bind the state as the primary duty bearer.[13] In exercising its legislative, administrative, or judicial power, the state must comply with human rights obligations arising from treaties and customary law.[14] This also applies to excesses of individual security officers,[15] private persons performing state functions,[16] or subsequent explicit acceptance of acts[17]. While states have wide discretion in implementing obligations under international law in general, human rights obligations are more specific: states must respect, protect, and fulfil human rights.[18]

Certainly, almost all human rights treaties oblige (only) states to respect human rights. However, non-state actors may also have human rights obligations.[19] Some human rights treaties even contain clauses under which individuals have obligations. In this case, human rights obligations of private actors can be derived directly from the treaty text.[20]

Example for obligations of non-state actors: Art. 27(1) AfCHPR provides that “Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community.“[21]


For human rights treaties without such a clause, duties of non-state actors can be derived indirectly from the state’s positive obligations to protect: Sometimes the state must restrict the rights of one individual to protect the rights of another individual (so-called duty to protect[22]). In this case, the human rights obligation continues to bind the state, but the non-state actor’s behavior is nevertheless regulated indirectly by international human rights standards through the state’s obligation to intervene in the relationship between two individuals.[23] In addition, the human rights obligations of non-state actors are discussed for a variety of cases, if they threaten the human rights of individuals in a state-equivalent manner. This is discussed for terrorists,[24] insurgencies (when they exercise de facto state power in armed conflicts), and large corporations[25].[26]

Advanced: Duties of Individuals (written by Adamantia Rachovitsa)

Under domestic law, the fulfillment of various duties by individuals is commonplace. National constitutions and ordinary legislation in almost all states in the world regularly provide, for example for the duty to pay taxes, the duty to vote, the duty to serve in the army or the duty of the parents to care for their child's well-being. Nonetheless, individuals have limited duties under international law, such as specific duties under international humanitarian law or international criminal law. International human rights instruments acknowledge the existence of individual duties. Article 29(1) of the Universal Declaration on Human Rights states that 'everyone has duties to the community in which alone the free and full development of personality is possible'. Similarly, the preambles of the International Covenant on Civil and Political Rights (ICCPR) and of the International Covenant on Economic, Social and Cultural Rights also acknowledge that individuals have duties.[27] With that being said, one cannot escape noticing that human rights law does not emphasise individual duties. This is because in international human rights law, states are the duty-bearers, assuming the obligation to protect certain individual rights and freedoms. The state enjoys the monopoly on exercising power and, therefore, individuals warrant protection from the abuse of power. Consequently, the decision to effectively exclude lists of individual duties from most human rights treaties was conscious, due to concerns that governments could rely on these duties to restrict human rights unlawfully.[28] It is for this reason that one should distinguish between duties towards the state and duties towards others. Since the underlying structure of human rights entails the protection of the individual from the state, individual duties towards the state need to be carefully scrutinised so as to avoid potential abuse.

In general, human rights law offers concrete avenues for the duties of the individual to be accommodated as possible restrictions on human rights as long as these restrictions have a legal basis, pursue a legitimate aim and are necessary. Individual duties may also have a certain legal bearing when interpreting the scope of human rights . The Tanganyika Law Society case is the only instance where the African Court on Human and Peoples' Rights had the opportunity to clarify the function of duties but it did not do so.[29] More specifically, individual duties towards the state, when in the public interest, may be considered as restrictions imposed on a human right. Human rights treaties may also contain an explicit reference to a duty. For instance, Article 19(3) ICCPR refer to the duties of journalists in he exercise of the freedom of expression. Furthermore, human rights law also takes duties towards other individuals into account. First, the 'rights and freedoms of others' is one of the legitimate aims for which certain human rights can be restricted.[30] Second, human rights treaties may contain a clause prohibiting the abuse of rights.[31] Third, crucially, the protection of the rights and freedoms of others has been indirectly incorporated into the growing jurisprudence on states' positive obligations, that is instances in which states are obliged to exercise due diligence so as to ensure that human rights are protected from interference from private parties.[32] Finally, it should not go unnoticed that certain human rights treaties confer specific duties upon individuals, such as parents' duties towards their children under the Convention on the Rights of the Child (CRC).[33] Specific human rights treaties and documents place a pronounced emphasis on individual duties. This is the case with the 1948 American Declaration of the Rights and Duties of Man and the 1981 Universal Islamic Declaration on Human Rights. However, no equivalent elaboration of duties found its way into the Inter-American Convention on Human Rights or the Revised Arab Charter. The only treaties that provide for detailed individual duties are the African Charter on Human and Peoples' Rights (ACHPR) (Articles 27-29) and the 1990 African Charter on the Rights and Welfare of the Child (Article 31).

The lists of duties provided in the foregoing instruments have many similarities. Most of these duties are owed to the state. Individual duties are seen as a marker of culture and a manifestation of a communitarian approach to human rights. For instance, African (rural) society is underpinned by the dialectic relationship between the individual and the group.[34] Communitarian considerations stemming from an African, Asian or Arab perspective do not necessarily resonate with the Western, strictly individualistic human rights paradigm. The duty to preserve and strengthen positive African cultural values in one's relations with other members of society, in the spirit of tolerance, dialogue and consultation, under Article 29(7) ACHPR is an apt example. At the same time, however, casting these principles as duties may 'come dangerously close to destroying or denying human rights as they have been understood'.[35] There is also a serious risk that states will involve duties as a pretext for imposing far-reaching restrictions on human rights.[36] The provisions on duties toward others may offer novel perspectives for conceptualising certain aspects of human rights law. Yet, in many instances, their vaguely phrased wording does not allow us to determine whether they are of a moral or legal nature. There is also a lack of clarity regarding who the beneficiary of a given duty is intended to be (e.g., the state, society, other individuals) or what its precise content entails.[37] The foregoing challenges should not in themselves lead us to dismiss individual duties as a concept all together.[38] There is scope for the implementation of individual duties on a community and societal level, thereby preserving and nurturing communal and cultural practices and values.[39] Such practices, however, need to protect individuals from discrimination.[40]


International organizations are not bound by human rights according to the text of human rights treaties,[41] although they can be responsible for serious human rights violations and are gaining more and more power. However, international organizations are bound by jus cogens norms and therefore bound by human rights that are jus cogens norms.[42]

II. Protected Actors[edit | edit source]

Human rights bind the state vis-à-vis all individuals within its territory and under its jurisdiction.[43] Unless human rights are not explicitly limited to nationals, they apply equally to nationals and non-nationals.[44] International human rights treaties do not primarily protect the rights of citizens, but of humans. Human rights protect vulnerable groups in particular, such as asylum seekers, illegal migrants, the disabled, the elderly, indigenous people, and minorities, as well as women, transgender people, and children.[45]

Example for human rights and nationality: Art. 25 ICCPR limits the right to political participation to citizens, while the prohibition of torture or inhuman and degrading treatment (Art. 7 ICCPR) applies equally to nationals and non-nationals (e.g., asylum seekers and migrants).


The unborn has no international human rights.[46] According to Art. 4(1) ACHR, life does not begin with birth, but already with conception. However, this clause has never been successfully invoked on behalf of an unborn and other regional and global human rights treaties do not contain such a clause. On the contrary, both the ECtHR and the HRC reject rights of the fetus independent of the mother.[47]

A uniform approach to human rights of corporations, does not exist. While in the European human rights system corporations have standing before the European Court of Human Rights, in the UN and Inter-American systems only individuals have human rights. However, insofar as rights of individuals are protected by a company, individuals can also invoke rights of companies.[48] For the rights of indigenous peoples, on the other hand, most human rights systems provide for distinctive rights.[49]

Example for rights of indigenous peoples: Art. 20(1) AfCHPR provides that “All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.”


Advanced: Rights of Indigenous Peoples in the European Human Rights System

The European human rights system, built on the idea of individualized liberalism, does not contain any rights specifically designed for indigenous peoples. However, at least the European Charter for Regional or Minority Languages and the (European) Framework Convention for the Protection of National Minorities protect the identity of minority groups. In Muñoz Díaz v Spain, the ECtHR also indicated group-specific rights of national minorities.[50]


III. Types of Obligations[edit | edit source]

Human rights primarily bind the state. However, they may also impose direct or indirect obligations on non-state actors. These duty-bearers must respect human rights by refraining from interference with rights (so-called negative obligations) and by protecting rights through action (so-called positive obligations).[51]

Negative obligations require duty-bearers to refrain from unlawfully interfering with human rights. States may therefore only restrict human rights if they can provide a justification for the interference. This requires a restriction that is prescribed by law, serves a legitimate aim and is necessary in a democratic society.[52] Thereby, negative obligations correspond to the duty to respect human rights.[53]

Example for negative obligations: A state that uses judicial birching as a form of corporal punishment violates the prohibition of degrading punishment in Art. 7(1) ICCPR. Since this is a jus cogens obligation, the state cannot justify such an intrusion by referring to societal interests. In contrast, a COVID-19 related ban on public indoor assemblies interferes with the freedom of assembly under Art. 21 ICCPR but can be justified (at least during the initial spread of COVID-19) by reference to public health.


Duty-bearers cannot, however, fulfill their human rights obligations by mere omission. Instead, they must also respect their positive obligations. Positive obligations oblige duty-bearers to actively protect human rights. States must protect individuals from state, human and natural threats (so-called duty to protect), provide effective access to justice (so-called procedural rights), share information, and enable participation in political and social processes.[54] These duties apply to all state organs and to economic, social, and cultural rights as well as civil and political rights.[55] Thereby, positive obligations correspond to the duties to protect and to fulfil human rights.[56]

Example for positive obligations: If a state is aware, or should have been aware, that a landslide is imminent as a result of private coal mining and nevertheless fails to take legislative or executive measures to protect the population, the state violates the right to life in Art. 6(1) ICCPR of the victims. Similarly, impoverished persons are entitled to legal aid to enforce their legal claims.[57]


C. Analyzing Human Rights Violations[edit | edit source]

Human rights adjudicative bodies review human rights violations in individual and interstate complaints using a two-tiered structure: In a first procedural step, adjudicative bodies first examine whether they are the right forum for the complaint (jurisdiction), answer procedural preliminary questions and usually superficially review how substantive the complaint is. In a second substantive step, the adjudicative bodies then examine the actual human rights violation using a three-step structure consisting of applicability, scope and interference, and justification.

I. Jurisdiction and Admissibility[edit | edit source]

The adjudicative bodies do not begin directly with the examination of human rights violations, but first answer procedural preliminary questions. On the one hand, this is based on legal provisions in human rights treaties. On the other hand, the preliminary questions also serve to reduce the workload of the adjudicative bodies.[58]

1. Jurisdiction[edit | edit source]

Adjudicative bodies can decide on a complaint only if they have jurisdiction. The bodies can answer this first question themselves (so-called compétence de la compétence). Human rights treaties contain precise requirements for jurisdiction. In general, the person whose human rights have been violated must file a complaint (ratione personae) concerning the interpretation of human rights (ratione materiae), provided that the facts of the case relate to the jurisdiction of the respondent state (ratione loci) and the human rights violation occurred after the respondent state acceded to the human rights treaty (ratione temporis).[59]

2. Preliminary Questions[edit | edit source]

However, jurisdiction is not sufficient for the adjudicative bodies to decide the substance of the claim. Instead, complainants must have exhausted domestic remedies,[60] must observe certain time limits between the violation and the filing of the complaint,[61] and must not abuse their right to appeal[62]. In addition, anonymous complaints are not permitted.[63] These requirements reduce the number of cases at a level that can be decided easily and quickly. Furthermore, they generally allow the adjudicative bodies to decide the merits based on facts ascertained by national authorities and courts.

3. Approximating Merits[edit | edit source]

Finally, a cursory examination of merits reduces the number of admissible cases. The adjudicative body may dismiss a case as inadmissible if the complaint is manifestly ill-founded,[64] gives no indication of a significant violation,[65] or has already been addressed before the body or another international body.

II. Merits[edit | edit source]

In merits, the adjudicative bodies analyze the human rights violation. This is the focal point of reviewing human rights violations. .

1. Applicability[edit | edit source]

In a first step, the adjudicative bodies determine whether human rights are territorially applicable to the facts of the case. Human rights are applicable whenever the state has jurisdiction. The state has jurisdiction over its own territory.[66] However, states do not only act within their own territory, but also foreign territory to the detriment of human rights. For this case, the various human rights adjudicative bodies have found different approaches, which are discussed under the umbrella term of extraterritorial application. In the European system, the state has jurisdiction when it exercises effective control over a foreign territory or over the rights of an individual.[67] The African human rights system follows this approach.[68] The UN human rights system also echoes the effective control test, but only requires that the individual be under the effective control of the state. The decisive factor is therefore the relationship of the state to the person affected, not the relationship of the rights violation to the territory.[69]

Advanced: International Human Rights Law and International Humanitarian Law

While international humanitarian law regulates armed conflict, human rights protect almost all human behavior. Overlaps may occur between human rights and international humanitarian law due to the substantive and territorial expansion of human rights law. There are situations that are exclusively subject to international humanitarian law (e.g., requisitioning of property in occupied territory) or human rights protection (e.g., violations of non-derogable rights) and situations in which both fields are applied concurrently.[70] In the case of parallel application of human rights and international humanitarian law, the conflict between the fields must be resolved based on Art. 31(3)(c) VCLT. Thus, the provisions of both areas of law influence each other.[71]The concurrent application of human rights and international humanitarian law is important due to the insufficient individual protection in armed conflict, as well as uncertainties in the applicability and lack of enforcement mechanisms of international humanitarian law.[72]


2. Scope and Interference[edit | edit source]

In a second step, human rights adjudicative bodies examine whether the state's conduct falls within the scope of a human right. Only when the state intrudes into a sphere protected by a human right does the question of justification arise. However, this question cannot be answered in the abstract, but only depending on the concrete human right. Each human right defines its own scope.[73]

3. Justifications[edit | edit source]

Human rights are not unlimited but depend on other human rights. This conflict can be resolved through limitations and derogations of human rights. However, certain rights cannot be restricted under any circumstances. This applies to all human rights, which are jus cogens.[74]

Example for conflicts of human rights: The freedom of the press of a tabloid allows reporting on the lives of celebrities. This reporting usually interferes with the personal rights of the celebrities. This conflict can be resolved by balancing both rights. On the other hand, a conflict between the prohibition of torture on the one hand and the interest in uncovering a criminal act must always be decided in favor of the prohibition of torture.


a) Limitations[edit | edit source]

Human rights limitations must satisfy a three-step test. First, the restriction must be prescribed by law. The law must be formulated in an accessible and sufficiently precise manner.[75] Second, the limitation must serve a legitimate aim. The aim depends on the particular human right.

Example for legitimate aims: Art. 10 ECHR stipulates that limitations of the right to freedom of expression must serve “the interests of national security, territorial integrity or public safety, […] the prevention of disorder or crime, […] the protection of health or morals, […] the protection of the reputation or rights of others, […] preventing the disclosure of information received in confidence, or […] maintaining the authority and impartiality of the judiciary.“


States usually meet the first two requirements. Therefore, the third requirement is decisive. Limitations are only allowed if they are necessary in a democratic society. Accordingly, (a) the limitation must serve the purpose from the second step, (b) there must be no less intrusive means and (c) the means must be proportionate, i.e. the interest in human rights protection must not outweigh the interest in the limitation.[76]

b) Derogations[edit | edit source]

In emergencies, states in the European, American, Arabic and global human rights systems can not only restrict human rights, but also derogate from them. Derogations are permitted if a state of emergency is declared and exists, the emergency measure is necessary and non-discriminatory, and that no non-derogable rights are violated.[77]


D. Reviewing Human Rights Violations[edit | edit source]

In international human rights law exists is no global forum that interprets human rights as the final authority. Instead, human rights are interpreted simultaneously by global and regional courts, committees, and commissions in judicial, quasi-judicial and non-judicial forums.[78]

I. Judicial Review[edit | edit source]

The most famous interpreters of human rights are certainly the three regional human rights courts in Europe, America, and Africa. The European Court of Human Rights, the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights have been influential in shaping human rights development not only in their regional human rights systems, but worldwide. In these forums, individuals can file cases against actions taken by the state (individual complaints) or states against other states (interstate complaints). The ICJ and ICC also interpret human rights in their case law.[79]

Advanced: Standards of Review

Standards of review generally describe whether and to what extent a court adheres to the view of an institution or entity that was previously engaged in examining the facts and the law regarding a specific case.[80] In international law, standard of review is understood as the intensity with which an international adjudicative body scrutinizes the respondent state's own assessment of a factual situation and legal assessment of alleged violations of international law.[81] Four different prototypes of standards of review exist, characterized depending on the intensity of this scrutinization: First, complete deference (or absence of judicial oversight) as the most deferential describes decisions in which the adjudicative body relies solely on the respondent state's assessment of the facts and the law. Second, in cases of good faith review, adjudicative bodies examine only whether the state evaluated the facts and the law in “good faith”, without “manifest unreasonableness”, or free from “arbitrariness”. Third, in cases of reasonableness review, the adjudicative bodies will not only consider whether the respondent state’s evaluation was at least somehow comprehensible but also whether an (imaginary) independent observer with the same knowledge of the state would assess the situation as the state has done. However, it is not necessary that the adjudicative body is completely convinced of the state's assessment. The latter is only decisive for the de novo review. This fourth type of standards of review is the least deferential standard and describes decisions in which adjudicative bodies conduct their own assessment of the facts and the law without any deference to the state or other conceivable evaluation.[82]

In the field of international human rights law, standards of review serve three interrelated purposes: Firstly, standards of review balance the power between international adjudicative body on the one hand and sovereign states on the other.[83] A complaint to a human rights adjudicative body requires the exhaustion of local remedies. Therefore, the adjudicative bodies decide on the basis of a supreme court judgment of the respondent state. In this respect, international review is not only subordinate to national policy choices and judicial review, but also interferes with the ultimate decision-making authority of domestic supreme courts.[84] Deferential standards of review signal to the respondent state that its own assessment is respected, whereas a more vigorous review signals to the complainant that its request for judicial protection is recognized. Secondly, standards of review allow complainants to assess the likelihood of success of a claim. As demonstrated above, standards of review describe the intensity with which an international adjudicative body scrutinizes the domestic assessment of a factual situation and legal assessment of alleged violations of human rights.[85] If adjudicative bodies apply standards of review in a structured and standardized manner, complainants and their legal counsel can assess the chances of success of a complaint in advance, depending on the underlying facts and legal issues. Thirdly, standards of review facilitate judicial economy by recognizing the respective strengths of participants in the procedure. Instead of completely revisiting the entire case, international adjudicative bodies can refer to the assessment of national authorities and courts, relying on the particular proximity of national institutions and subsidiarity of international review.[86] 

International human rights adjudicative bodies do not take a uniform approach to standards of review.[87] The European Court of Human Rights recognizes a certain margin of appreciation of states in the interpretation and implementation of human rights (legal margin) and in the assessment of the facts (factual margin).[88] However, the notion of standards of review should not be confused with the term “margin of appreciation” mentioned in the case law of the European Court. The margin of appreciation presupposes a degree of deference and can therefore be better described as one deferential standard of review.[89] Although the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights referred to the margin of appreciation and thus to deferential review in some decision,[90] their settled case law rather suggests an almost de novo review.[91] Similarly, the United Nations Human Rights Committee has mentioned the margin of appreciation in communications concerning questions of public morals[92] and national security[93], but for the most part has rejected it,[94] even though the drafting history of the ICCPR contained an explicit endorsement of the margin of appreciation[95]. The Human Rights Committee justifies its (almost) de novo standard of review considering state’s voluntary accession to human rights treaties, the universalism of international human rights law, and its own function and competence.[96] In the African human rights system, the African Commission on Human and Peoples' Rights seems to assume a margin of appreciation on the part of member states,[97] whereas the African Court on Human and Peoples' Rights is less deferential and applies an (almost) de novo standard of review[98].


II. Quasi-judicial Review[edit | edit source]

The quasi-judicial human rights commissions and committees complement the judicial interpretation of human rights. On the one hand, these institutions are court-like when they decide on human rights violations in individual cases as the Inter-American Commission of Human Rights, the African Commission on Human and Peoples’ Rights, the Human Rights Committee, and the Committee against Torture do. The same applied to the European Commission of Human Rights before it was abolished in 1998. On the other hand, unlike court decisions, the decisions of these adjudicative bodies are not binding. Moreover, the work of quasi-judicial institutions is not limited to individual or interstate complaints. Instead, the commissions and committees also assess the general human rights situation in states in so-called state reports.[99]

II. Non-judicial Review[edit | edit source]

In addition to the (quasi-)judicial review of human rights violations, political proceedings are also taking place. The most famous and notorious forum is certainly the UN Human Rights Council. These institutions are not concerned with developing a coherent interpretation of human rights, but with balancing political interests.[100] These mechanisms are often criticized for their politicization and infectivity.[101] However, the key advantage of political review of human rights violations is its applicability to all states. Political review is neither spatially nor temporally limited and can therefore also be applied to states that do not accept the jurisdiction of judicial and quasi-judicial adjudicative bodies.[102] Moreover, it is precisely the process of political negotiation that brings the human rights discourse into previously unattainable areas.[103] In addition to these institutionalized forms of human rights monitoring, there is also a vast field of non-governmental organizations, grassroots movements, and activist litigators that also participate in the interpretation and monitoring of human rights.[104]

E. Implementing International Human Rights[edit | edit source]

The interpretation of human rights by various institutions does not result in their effective implementation. To this end, the means of implementation and circumvention are crucial.

I. Means of Implementation: Respect, Protect, Fulfill[edit | edit source]

While states have wide discretion in implementing obligations under international law in general, human rights obligations are more specific: states must respect, protect, and fulfill human rights.[105] While these three types of duties overlap, they help in evaluating state behavior.[106] States respect human rights if they do not actively violate them through their organs or agents (so-called negative obligations.[107] However, states are not only required to refrain from human rights violations, but they are also equally obligated to protect human rights. From this duty to protect follows a duty to act: States must protect the people living in their jurisdiction from foreseeable and preventable rights violations by private individuals or disasters (so-called positive obligations.[108] The “obligation to fulfill” finally results in a specific instruction for action: States must create procedures and institutions that enable greater enjoyment of human rights.[109]

II. Means of Circumvention: Reservations and Withdrawals[edit | edit source]

In principle, the rules of the VCLT also apply to human rights treaties. The consequence for the implementation of human rights would be that human rights treaties become binding for states upon ratification according to Art. 14 VCLT, reservations are effective according to Art. 19-23 VCLT and states can withdraw from human rights treaties according to Art. 54-72 VCLT. However, as the sections on the interpretation of human rights treaties and human rights as customary international law have shown, the provisions of the VCLT do not apply without exceptions.  

States can use reservations to modify or exclude provisions in human rights treaties. In an international legal order based on consent, it is only convincing to grant states reservations to treaties. However, due to the interdependence of human rights, this can lead to unpredictability and indeterminacy in human rights law. Nevertheless, except for Art. 2(1) Second Optional Protocol to the ICCPR and Art 57 ECHR, human rights treaties contain no provision for or against reservations. For this reason, the rules of the VCLT apply. According to Art. 19(c) VCLT reservations are valid if they are compatible with the "object and purpose" of human rights treaties.[110] Therefore, reservations against jus cogens norms, customary international law, non-derogable rights, effective remedies, and mandatory procedures before international adjudicative bodies as well as overly vague or broad reservations are impermissible.[111] In general, an unlawful reservation does not cause the entire acceptance of the human rights treaty to fall.[112]

Contrary to the rules of the VCLT, states may withdraw from a human rights treaty only if that treaty contains a withdrawal clause. Otherwise, states are precluded from withdrawing from the human rights treaty.[113].

Further Readings[edit | edit source]

  • Chinkin S, ‘Sources’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018)
  • Connors J, ‘United Nations’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018)
  • Joseph S and Dipnall S, ‘Scope of Application’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018)
  • Mégret F, ‘Nature of Obligations’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018)
  • Sivakumaran S, ‘International Humanitarian Law’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018)
  • Kälin W and Künzli J, The Law of International Human Rights Protection (Second edition, Oxford University Press 2019)
  • Schutter O de, International Human Rights Law: Cases, Materials, Commentary (Third edition, Cambridge University Press 2019)

Conclusion[edit | edit source]

  • Summary I
  • Summary II

Table of Contents[edit source]

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes[edit source]

  1. Sarah Chinkin, ‘Sources’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 63–65.
  2. Chinkin (n 1) 67; Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Second edition, Oxford University Press 2019) 33–34.
  3. Chinkin (n 1) 68–70, 75–77.
  4. Kälin and Künzli (n 2) 34.
  5. Kälin and Künzli (n 2) 34 unter Verweis auf; Tyrer v The United Kingdom [1978] [31]; Atala Riffo and Daughters v Chile [2012] 83.
  6. Matthias Herdegen, ‘Interpretation in International Law’, Max Planck Encyclopedia of Public International Law (2009) paras 45–46.
  7. Chinkin (n 1) 71–72.
  8. Chinkin (n 1) 71–72; James Crawford, Brownlie’s Principles of Public International Law (Ninth edition, Oxford University Press 2019) 618; Kälin and Künzli (n 2) 59–60.
  9. Chinkin (n 1) 73–74; Kälin and Künzli (n 2) 61–62.
  10. CCPR, ‘General Comment No 31 The Nature of the General Legal Obligation Imposed on State Parties to the Covenant’ (2004) para 2.
  11. International Law Commission, ‘Report of the International Law Commission’ (2006) General Assembly, Official Records 61st session, Supplement No. 10 (A/61/10) 421–423.
  12. Chinkin (n 1) 66; Frédéric Mégret, ‘Nature of Obligations’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 87–89; Kälin and Künzli (n 2) 85–88.
  13. See Art. 1 ECHR, Art. 2(1) ICCPR, Article 2(1) ICESCR, Art. 1(1) ACHR, Art. 1 AfCHPR.
  14. Sarah Joseph and Sam Dipnall, ‘Scope of Application’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 111; Kälin and Künzli (n 2) 69.
  15. Velásquez-Rodríguez v Honduras [1988] [170].
  16. Kälin and Künzli (n 2) 70–71.
  17. Case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] 3 [63 ff.].
  18. This is discussed in more detail at the end of this chapter. See ‘E. I. Means of Implementation: Respect, Protect, Fulfill’; see also Mégret (n 12) 97; Olivier de Schutter, International Human Rights Law: Cases, Materials, Commentary (Third edition, Cambridge University Press 2019) 292.
  19. While it is disputed whether these obligations of non-state actors can also be called “obligations” or “duties” or “responsibilities”, for the sake of consistency, the term "obligations" is used in this chapter.
  20. Kälin and Künzli (n 2) 73.
  21. See also Article 29(1) UDHR: „Everyone has duties to the community in which alone the free and full development of his personality is possible.“.
  22. This is discussed in more detail at the end of this chapter. See ‘E. I. Means of Implementation: Respect, Protect, Fulfill’.
  23. Kälin and Künzli (n 2) 73–74.
  24. IACmHR, ‘Report on Terrorism and Human Rights’ (2002) OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. para 48.
  25. David Bilchitz, ‘The Ruggie Framework: An Adequate Rubric for Corporate Human Rights Obligations?’ (2010) 7 SUR - International Journal On Human Rights 198.
  26. Sir Nigel Rodley, ‘Non-State Actors and Human Rights’, Routledge Handbook of International Human Rights Law (Routledge 2012) <https://www.taylorfrancis.com/books/9780203481417> accessed 4 July 2022; Kälin and Künzli (n 2) 72.
  27. Preambular para 5 respectively. See also Article 32(1) of the Inter-American Convention on Human Rights and Article 3(1) of the Revised Arab Charter on Human Rights.
  28. JH Knox, 'Horizontal Human Rights Law' (2008) 102 American Journal of International Law 1, 34.
  29. Tanganyika Law Society and Legal and Human Rights Centre and Revered Christopher R Mtikila v Tanzania, 14 June 2013, paras 100, 107(2), 112, 115.
  30. Articles 12(3), 18(3), 19(3), 21 and 22 of the ICCPR.
  31. Article 5 of the ICCPR; Article 17 of the European Convention on Human Rights.
  32. Knox (n 1) 1-2.
  33. Articles 3(2), 5, 9, 14(2), 18(1), 19(1) and 27(2) of the CRC.
  34. JAM Cobbah, 'African Values and the Human Rights Debate: An African Perspective' (1987) 9 Human Rights Quarterly 309.
  35. J Donelly, 'Human Rights and Human Dignity: An Analytical Critique of Non-Western Conceptions of Human Rights' (1982) 76 The American Political Science Review 303, 312.
  36. F Viljoen, International Human Rights Law in Africa (OUP 2007) 249.
  37. M Malila, The Place of Individuals' Duties in International Human Rights Law: Perspectives form the African Human Rights System (PhD thesis, University of Pretoria 2017) 270-307.
  38. Malila (n 10) 303-307.
  39. MW Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press 2002) 93.
  40. W Adiel, The Protection of Freedom of Expression in Africa (Edwin Mellen Press 2016) 730-770.
  41. The most famous exception is certainly the ECHR, which provides for the accession of the European Union to the ECHR in Protocol No 14.
  42. Joseph and Dipnall (n 14) 111; Kälin and Künzli (n 2) 78–79.
  43. Joseph and Dipnall (n 14) 111; see also Art. 2(1) ICCPR.
  44. Joseph and Dipnall (n 14) 111–112.
  45. See Art. 2(2, 3) ICESCR; see also CESCR, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (2000) E/C.12/2000/4; Roberto Andorno, ‘Is Vulnerability the Foundation of Human Rights?’ in Aniceto Masferrer and Emilio García-Sánchez (eds), Human Dignity of the Vulnerable in the Age of Rights, vol 55 (Springer International Publishing 2016).
  46. Kälin and Künzli (n 2) 112.
  47. Vo v France [2004] ECtHR Application 53924/00; Peter Michael Queenan v Canada [2005] CCPR CCPR/C/84/D/1379/2005.
  48. Joseph and Dipnall (n 14) 112–114.
  49. See Art. 1, 47 ICCPR; Art. 20(1) AfCHPR; Indigenous Communities of the Lhaka Honhat (Our Land) Association v Argentina [2020] IACtHR Series C 400; Maya Kaqchikel Indigenous Peoples of Sumpango et al v Guatemala [2021] IACtHR Series C 440.
  50. Muñoz Díaz v Spain [2009] ECtHR Application 49151/07 [60].
  51. Kälin and Künzli (n 2) 87.
  52. See „C. II. 3. Justifications“ in this chapter.
  53. This is discussed in more detail at the end of this chapter. See ‘E. I. Means of Implementation: Respect, Protect, Fulfill’.
  54. Eckart Klein (ed), The Duty to Protect and to Ensure Human Rights (Berlin-Verl, Spitz 2000); Alastair Mowbray, ‘Duties of Investigation Under the European Convention on Human Rights’ (2002) 51 International and Comparative Law Quarterly 437; Kälin and Künzli (n 2) 87–89.
  55. Kälin and Künzli (n 2) 106.
  56. This is discussed in more detail at the end of this chapter. See ‘E. I. Means of Implementation: Respect, Protect, Fulfill’.
  57. These examples are based on decisions mentioned in Kälin and Künzli (n 2) 97–98, 105.
  58. E.g., ECtHR, ‘Practical Guide on Admissibility Criteria’ (2021) 7–8.
  59. See Art. 32-34 ECHR, Art. 44-47 ACHR, and Art. 3-4 Protocol on the Establishment of an African Court on Human and Peoples‘ Rights.
  60. See Art. 35(1) ECHR, Art. 46(1)(a) ACHR, Art. 2 Optional Protocol to the ICCPR, and Art. 50 AfCHPR.
  61. See Art. 35(1) ECHR, Art. 46(1)(b) ACHR, Art. 56(6) AfCHPR.
  62. See Art. 35(3) ECHR, Art. 3 Optional Protocol to the ICCPR, Art. 56(3) AfCHPR.
  63. See Art. 35(2) ECHR, Art. 3 Optional Protocol to the ICCPR. Nevertheless, the identity of the complainant may be kept secret in the proceedings if necessary.
  64. See Art. 35(3) ECHR.
  65. See Art. 12 Protocol 14 to the ECHR.
  66. See Art. 2(1) ICCPR.
  67. Al-Skeini and Others v the United Kingdom [2011] ECtHR Application no. 55721/07 [131–150]; Joseph and Dipnall (n 14) 122.
  68. AfCmHPR, ‘General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4)’ para 14.
  69. CCPR, ‘HRC General Comment 31’ (n 10) para 10; Joseph and Dipnall (n 14) 125.
  70. Sandesh Sivakumaran, ‘International Humanitarian Law’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 512–513.
  71. Hassan v the United Kingdom [2014] ECtHR Application no. 29750/09 [104–105]; Sivakumaran (n 40) 515–516.
  72. Sivakumaran (n 40) 507–511.
  73. Kälin and Künzli (n 2) 118.
  74. Frédéric Mégret, ‘Nature of Obligations’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 99.
  75. Mégret (n 44) 100–101.
  76. Kälin and Künzli (n 2) 92–93; Mégret (n 44) 101.
  77. See Art. 4 ICCPR, Art. 15 ECHR and Art. 27 ACHR.
  78. Chinkin (n 1) 64.
  79. Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) [2010] 639 [64–98].
  80. Martha S Davis, ‘A Basic Guide to Standards of Judicial Review’ (1988) 33 South Dakota Law Review 469, 469–470; Amanda Peters, ‘The Meaning, Measure, and Misuse of Standards of Review’ (2009) 13 Lewis & Clark Law Review 233, 235.
  81. Lukasz Gruszczynski and Wouter Werner (eds), ‘Introduction’, Deference in International Courts and Tribunals (Oxford University Press 2014) 1–2; Caroline Henckels, Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy (First paperback edition, Cambridge University Press 2018) 29–30.
  82. The section is largely based on the still unpublished work of Felix Fouchard on standards of review in the case law of the International Court of Justice and is guided by the existing literature. See only Gruszczynski and Werner (n 51) 1–3; Joshua Paine, ‘Standard of Review: Investment Arbitration’ in Anne Peters (ed), Max Planck Encyclopedia of International Procedural Law (2018) 15; Peters (n 50) 242–247; Viljam Engström, ‘Deference and the Human Rights Committee’ (2016) 34 Nordic Journal of Human Rights 73, 76–78.
  83. Oren Gross and Fionnuala Ní Aoláin, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ (2001) 23 Human Rights Quarterly 625, 626.
  84. Engström (n 52) 74.
  85. Gruszczynski and Werner (n 51) 1–2; Henckels (n 51) 29–30.
  86. See regarding the purposes of standards of review in international law in general Peters (n 1) 238-242
  87. See on the rejection of the margin of appreciation in the African, Inter-American, and universal human rights systems Dominic McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for Its Application by the Human Rights Committee’ (2016) 65 International & Comparative Law Quarterly 21.
  88. Kälin and Künzli (n 2) 93–95; Mégret (n 44) 102–103.
  89. L. Gruszczynski and W. Werner, ‘Introduction’, in L. Gruszczynski and W. Werner (eds.), Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation (2014), 1 at 4.
  90. Advisory Opinion on Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica [1984] IACtHR OC-4/84 [58, 62, 63]; Ricardo Canese v Paraguay [2004] IACtHR Series C 111 [97].
  91. Antônio Augusto Cançado Trindade, El Derecho Internacional de Los Derechos Humanos En El Siglo XXI (2. ed. actualizada, Editorial Jurídica de Chile 2006) 386–387; Gary Born, Danielle Morris and Stephanie Forrest, ‘“A Margin of Appreciation”: Appreciating Its Irrelevance in International Law’ (2020) 61 Harvard International Law Journal 70, 53; Walter Humberto Vásquez Vejarano v Peru [2000] IACmHR Case 11.166 [24, 34].
  92. Leo Hertzberg et al v Finland [1982] CCPR CCPR/C/OP/1 [10.3].
  93. Vjatseslav Borzov v Estonia [2004] CCPR CCPR/C/81/D/1136/2002 [7.3].
  94. Länsman et al v Finland [1992] CCPR CCPR/C/52D/511/1992 [9.4]; General Comment No 29: Article 4: Derogations during a State of Emergency [2001] CCPR Adopted at the Seventy-second Session of the Human Rights Committee [6]; CCPR, ‘General Comment No 34 Article 19 Freedoms of Opinion and Expression’ (2011) para 36.
  95. Report of the Third Committee, ‘Draft International Covenants on Human Rights’ (1963) UN Doc. A/5655 para 49.
  96. CCPR, ‘HRC General Comment 34’ (n 64) para 36.
  97. Garreth Anver Prince v South Africa [2004] AfCmHPR Communication 255/02 [50–53].
  98. The Tanganyika Law Society and Legal and Human Rights Centre v United Republic of Tanzania [2013] AfCtHPR Application 009/2011 [107–111, 112]; Adem Kassie Abebe, ‘Right to Stand for Elections as an Independent Candidate in the African Human Rights System: The Death of the Margin of Appreciation Doctrine?’ (AfricLaw, 19 August 2013) <https://africlaw.com/2013/08/19/right-to-stand-for-elections-as-an-independent-candidate-in-the-african-human-rights-system-the-death-of-the-margin-of-appreciation-doctrine-2/> accessed 29 June 2022.
  99. Kälin and Künzli (n 2) 192–193.
  100. Kälin and Künzli (n 2) 192.
  101. Jane Connors, ‘United Nations’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 385–386; Kälin and Künzli (n 2) 242–243.
  102. Kälin and Künzli (n 2) 193.
  103. Connors (n 54) 386–387; Kälin and Künzli (n 2) 243.
  104. Chinkin (n 1) 78.
  105. Mégret (n 44) 97; Olivier de Schutter, International Human Rights Law: Cases, Materials, Commentary (Third edition, Cambridge University Press 2019) 292.
  106. Mégret (n 44) 99.
  107. Mégret (n 44) 97; Schutter (n 58) 292.
  108. Mégret (n 44) 97–98; Schutter (n 58) 292.
  109. Mégret (n 44) 98.
  110. Mégret (n 44) 93.
  111. Loizidou v Turkey [1997] ECtHR 23 EHRR 513 [43]; CCPR, ‘General Comment No 24 Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations under Article 41 of the Covenant’ (1994); Mégret (n 44) 93–94.
  112. Mégret (n 44) 95–97.
  113. CCPR, ‘General Comment No. 26: Continuity of Obligations’ (2004); Mégret (n 44) 106–108.