International human rights law

Modern international human rights law developed in the wake of the Second World War with the adoption of the 1948 Universal Declaration of Human Rights. Since then, the bulk of the international legal framework of human rights protection has emerged through treaties on specific rights or sets of rights intended to augment the Universal Declaration and make the rights contained therein legally binding and subject to monitoring and accountability mechanisms. Most notably, the United Nations General Assembly adopted in 1966 the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Taken together with the Universal Declaration, these three documents are often referred to as the International Bill of Rights. Other specialised treaties on human rights treaties adopted at  the universal level are:

• the 1965 International Convention on the Elimination of All Forms of Racial Discrimination
• the 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
• the 1979 Convention on the Elimination of All Forms of Discrimination against Women
• the 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on the Involvement of Children in Armed Conflict
• the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
• the 2006 International Convention for the Protection of All Persons from Enforced Disappearance
• the 2006 Convention on the Rights of Persons with Disabilities

In parallel, human rights treaties were adopted at the regional level, in particular the 1950 European Convention on Human Rights, the 1969 American Convention on Human Rights,  the 1981 African Charter on Human and Peoples' Rights, and the 2004 Arab Charter on Human Rights.

In addition to treaty law, there exists a significant body of customary international human rights law. Customary international law consists of unwritten rules that come from a general practice accepted as law. It exists independently from treaty law. The question whether or not a human right has become an obligation under customary international law is  a complex one. However, the customary nature of the Universal Declaration of Human Rights is frequently accepted. For a discussion of the customary nature of the Declaration see H. Charlesworth, ‘Universal Declaration of Human Rights (1948)', Max Planck Encylopedia of Public International Law, 2008 (restricted access). Moreover, some norms like the prohibition of torture or apartheid amount to jus cogens norms, i.e. a norm that is ‘accepted and recognized by the international community as a whole as a norm from which no derogation is permitted.’ Article 53 of the 1969 Vienna Convention on the Law of Treaties.

International human rights law continues to apply in times of armed conflicts. Yet some human rights treaties envisage a system of derogations. See Article 4 of the International Covenant on Civil and Political Rights, Article 15 of the European Convention on Human Rights, and Article 27 of the American Convention on Human Rights. Derogations allow states parties to adjust some of their obligations under the treaty in exceptional situations.

The existence of a situation amounting to a public emergency is a fundamental requirement for triggering the derogation clause. Non-international armed conflicts or acts of terrorism are frequently asserted as justifying the declaration of a state of emergency. Yet, an armed conflict does not automatically qualify as a state of emergency as it depends on the context. For a state of emergency to exist, there must be an actual and imminent threat to the organized life of the community. HRCttee, General Comment No 29: Derogations during a State of Emergency (Article 4), UN doc CCPR/C/21/Rev.1/Add.11, 31 August 2001; ECtHR, A and others v the United Kingdom, Grand Chamber, Judgment, App no 3455/05, 19 February 2009, §§179-180. The meaning of state of emergency in the sense of international human rights treaties does not necessarily correspond to the definition of state of emergency within domestic law. States must officially proclaim a state of emergency, and notify the relevant international supervision body of the proclamation, the reasons for derogation and the measures taken.

International human rights treaties provide for a series of substantive limits to derogations. First, derogation measures must be ‘strictly required by the exigencies of the situation.’ Article 4 of the International Covenant on Civil and Political Rights, Article 15 of the European Convention on Human Rights, Article 27 of the American Convention on Human Rights. Hence, states must limit the severity, duration and geographic scope of derogation measures to the extent strictly required. In other words, derogation measures must be limited to what is really needed to address the situation of crisis. Consequently, entire rights cannot be eliminated or suspended during a state of emergency. States must put in place the necessary safeguards to prevent abuse. Second, derogation measures should be consistent with other obligations of the derogating state under international law, including international humanitarian law and international refugee law. Third, derogation measures must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. The inclusion of the criteria of national origin in non-discrimination clause was rejected on the ground that different treatment of alien nationals would be necessary during wartime. However, derogation measures that distinguish between nationals and non-nationals are only permissible if the exigencies of the situation require such a distinction. In the case of A and others v the United Kingdom, the Grand Chamber of the European Court held that the British derogation measure which limited preventative detention to non-nationals was disproportionate and discriminated unjustifiably between nationals and non-nationals. Nationals and non-nationals that could not leave the country for fear of torture abroad were in a substantially similar situation and they both posed a potential terrorist threat. See ECtHR, A and others v the United Kingdom, Grand Chamber, Judgment, App no 3455/05, 19 February 2009, §§182-190. Finally States cannot derogate from certain rights. All derogation clauses provide for a list of such rights. The list varies, yet common to all treaties are the right to life, the prohibition of slavery, the prohibition of torture and cruel, inhuman or degrading treatment or punishment, and prohibition of retroactive penal measures. Other rights that are not expressly listed are also considered non-derogable, in particular rights, or aspects thereof, that reflect other obligations under international law, such as the principle of humane treatment of all persons deprived of liberty. For a list, see HRCttee, General Comment No 29: Derogations during a State of Emergency (Article 4), UN doc CCPR/C/21/Rev.1/Add.11, 31 August 2001, §7.

Most human rights treaties, albeit with slightly different wordings, specify that they apply where the state concerned exercises jurisdiction. Jurisdiction always includes a state’s territory. This remains true in instances where the state has lost control of part of its own territory, for example when another state or separatist regime effectively controls part of the territory. However, such circumstances limit the scope of states’ obligations. See ECtHR, Ilaşcu and others v Moldova and Russia, Grand Chamber, Judgment, App no 48787/99, 8 July 2004 and ECtHR, Sargsyan v Azerbaijan, Grand Chamber, Judgment, App no 40167/06, 16 June 2015.

Armed conflicts often involve operations outside a state’s territorial boundaries, which raises the question whether individuals fall within the jurisdiction of the state in such circumstances. From international jurisprudence, two models to establish the extraterritorial application of human rights treaties emerge. First, under the so-called spatial or territorial mode, jurisdiction for the purpose of human rights treaties exists when a state exercises effective control over an area, including as a consequence of military action, whether lawful or not. This includes cases of military occupation. See for example ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, §§109-112; ECtHR, Bankovic and Others v Belgium, Grand Chamber, Admissibility Decision, 12 December 2001, App no 52207/99, §71; ECtHR, Al-Skeini and others v the United Kingdom, Grand Chamber, Judgment, App no. 55721/07, 7 July 2011, §135. Second, under the personal model, jurisdiction for the purpose of human rights treaties exist when state agents operating outside state territory exercise authority and control over individuals, such as for example when arresting individual. See HRCtte, Lopez Burgos v Uruguay, Comm no R.12/52, 29 August 1981, UN doc supp no 40 (A/36/40) at 176 (1981), §12; IACommHR, Armando Alejandre Jr et al v. Cuba, Case no 11.589, Rep no 86/99, 29 September 1999, §25; ECtHR, Al-Skeini and others v the United Kingdom, Grand Chamber, Judgment, App no. 55721/07, 7 July 2011, §149.