Appunt di Human Rights

IHL):

● Art. 42, Hague Regulations: a territory is considered occupied when placed under the authority

of a hostile army

● Art. 43, Hague Regulations: the occupant shall take all steps in his power to ensure public order

and safety, while respecting the laws enforced in the country.

Furthermore, we have to keep in mind that occupation must be temporary, so the occupying power must

not adopt measures that would result in permanent changes

PROTECTION OF HUMAN RIGHTS IN INTERNATIONAL LAW

When did human rights enter international law?: Until the establishment of the UN, the protection of HR

was only based on national legal systems particularly advanced on the matter (ex. UK: Magna Charta

Libertatum, 1215: a medieval document that granted the protection of HR for noblemen). On an

international level, the main limit was the principle of the domestic jurisdiction of States over their own

territory and the community of persons settled therein, that means that a citizen was considered a property

of the State that could regulate as it wished the rights of its citizens=therefore, HR were only protected on

domestic levels, limited by citizenship and usually social status in a framework of substantially private

law. Over time, the situation changed thanks to:

● 1929, IDI: Déclaration des Droits Internationaux de l’Homme: the preamble affirms that

national constitutions envisaging rules applicable to human beings (not limited to citizens) are the

first legal foundations about the protection of human rights

● 10 Dec 1948, UN: Universal Declaration of Human Rights: GA passed this declaration (so it’s

an act of an IO, not a treaty) that 1) it’s to be attributed to UN because it was passed by one of its

organs; 2) it’s not binding, it’s a sort of recommendation. For the first time a list of HR

guaranteed by States was introduced in the international scenario (→actually 6 months before, the

American Declaration of Rights and Duties of Men was adopted, but it was incomplete and

limited to USA)

PROTECTION OF FOREIGNERS AND MINORITIES

States could grant HR to its citizens, but they had international obligations to protect human rights of

foreigners and minorities⇒Why? During 15/16° cent, as a result of religious wars in Europe, States

stipulated international treaties to respect religious minorities, so as to tolerate the faith of respective

2

citizens living abroad creating a sort of customary rule. Later on, after the disintegration of 4 Empires

(German, Austro-Hungarian, Russian and Ottoman), President Wilson suggested to protect a larger

variety of minorities (religious, linguistic and ethnic→Minority Treaties) until this protection was

absorbed in the broader protection of human rights, but it has now reacquired normative autonomy. Now,

minorities enjoy a relevant protection by States where they permanently reside, in fact States must respect

their cultural identity and must refrain from total assimilation into national society→In detail, obligations

to protect foreigners require that:

1) No territorial state could request any foreigner living within its borders anything going

beyond the so-called social attachment (ex. no foreigner could be forced to enroll in the

army)

2) Foreigners have to be protected from any damage with both preventive and repressive

measures. These measures must be tailored according to the importance of the foreigner and

any functions performed by the latter abroad.

3) Foreigners could not be discriminated, they have to benefit from same rights as nationals

(principle of non-discrimination)

4) States had to protect goods belonging to foreigners, in case of expropriation or

nationalization, States had to provide compensation.

5) States had to offer a effective judicial remedy to foreigners that suffered violations within

the host state (principle prohibiting the denial of justice to foreigners)

→In the past, rights of foreigners were owned exclusively by the national State (not by direct victims)

that were entitled to take countermeasures. This conception is now outdated, because the individual may

be directly entitled to rights and obligations (both substantive and procedural)→this has been confirmed

in case-law: 1) La Grand: Court said that Art. 36, Vienna Convention on Consular Relations “creates

individual rights; 2) Jadhav case: arrest of an Indian national, suspected of espionage activities in

Pakistan and who had been denied the right of access to consular authorities=Court reaffirmed its

position

FOCUS: PROTECTION OF INDIGENOUS PEOPLE

The rules protecting indigenous peoples are more limited than those concerning minorities, mainly

because they are located only in specific geographic areas. The most important legal instrument is the

Indigenous and Tribal Peoples Convention (1989) approved within the ILO framework

Art. 3: “Indigenous and tribal peoples shall enjoy the full measure of human rights and

fundamental freedoms without hindrance or discrimination”

In general, indigenous and tribal people are granted similar rights as minorities, like the protection of

cultural identity, right to be consulted in decisions concerning them and which may affect their way of life

and cultural traditions→N.B*: It should be noted that the correlated obligations of States include special

measures that shall be adopted to safeguard these people, their institutions, property, values and

environment. In detail, States must take into account their modus vivendi, including conducts considered

criminal, but accepted if compatible with the national and international protection of human rights⇒what

about the land of indigenous? We can say that indigenous people have the right to ownership or

exclusive use of a given territory given the religious and spiritual significance of the relationship

between indigenous peoples and the lands they inhabit→ex ACtHPR: the protection of the rights to land

and natural resources is fundamental for the survival of indigenous people, but it’s not sufficient to grant

access to land. In fact, it’s required is to legally recognize a collective title=that’s why Courts have

awarded pecuniary compensation and restitution of lands in cases of land grabbing, where national or

private entities occupied lands belonging to indigenous

FOCUS: NON-STATE ACTORS 3

Non-state actors shall be considered within the international regime on human rights when they are

involved in IAC/NIAC, when they are endowed with a detailed organizational structure and when they

have a relevant control of a territory. Overall, it’s unquestionable that jus cogens norms can be applied, as

well as conventional norms applicable to the State involved in the conflict. However, the application

cannot be uniform, but varies according to the specific organization and capacity of the actor. In

particular, a distinction must be made between:

national liberation movements: stable movements whose aim is to liberate the national territory

❖ from colonial domination, foreign occupation or racially motivated regimes⇒here, they must

respect various obligations and human rights (ex. principle of self-determination)

insurrectional movements: ex. ISIS: it has a quasi-sovereign power over large areas formally

❖ belonging to Iraq and Syria, this should oblige ISIS to comply with numerous HR rules, but the

organization has distinguished itself for brutal methods contrary to the most basic rules of justice

and human dignity.

THE POST-1948 SITUATION

After 1948 the situation changed drastically, States understood the importance of protecting HR in the

international scenario, in order to control each other in a more compelling way. In detail, there were some

developments in customary law (prohibition of enslavement; prohibition of torture; principle of legality),

but the main change concerned treaties:

UNIVERSALIST VIEW REGIONALIST VIEW (socialist States)

1966: UN Covenants on Human Rights =each region of the world should dispose of its

● own treaties that respect cultures, values and

Civil and Political Rights Covenant traditions→1953: European Convention on

(exception: USA)

● Human Rights

Economic, Social and Cultural Rights

Covenant

Is it better to respect human rights at a universal or at a regional level? Not sure. According to some

scholars, regional protection provides better results, also because an effective universal protection is a

mere illusion impossible to achieve without taking into account cultural diversity. Nevertheless, the

Universal Declaration of Human Rights still represents the most important document on the matter

(used as a model), moreover, the risk of regional protection is fragmentation.

SOURCES OF IHRL

In general, the normative sources of human rights coincide with those existing for the other sectors of

international law. Therefore, the differences concern the application of these sources to the specific field

at issue→There are 2 MAIN SOURCES of IHRL:

GENERAL INTERNATIONAL LAW

1)

General international law is essentially non-written, it generates spontaneously as a consequence of the

normative activity of the international society, formed by States, IOs and other organizations. It is

binding for all members of the international society, and it can assume the form of:

● Customary norms: composed by: 1) objective element: practice, so the repetition of a conduct

performed by the majority of States over time; 2) subjective element: opinio iuris at necessitatis,

so the perception that a certain conduct is legally binding or socially necessary→N.B*: some

customs can evolve into peremptory norms (jus cogens)⇒what’s the difference?: what changes

is the subjective element, in fact peremptory norms dispose of opinio juris cogentis, so the

perception that a rule not only is legally binding, but also cannot be derogated. Moreover,

peremptory norms now forbid gross violations of HR not only against a plurality of individuals

(case of genocide), but also against single individuals (case of torture) containing obligations erga

4

omnes (=for the entire international community). In general, any violation of jus cogens is

sanctioned by the nullity of conflicting acts/or any legislation envisaging amnesties in favor of

authors of such crimes BUT→when we deal with IHRL there’s an overlap between customary

and peremptory: this means that almost all HR granted by customary norms are also granted by

peremptory norms (ex. prohibition of enslavement, prohibition of torture; legality

principle)→exception: there are 2 human rights only disciplined by customary norms: 1)

prohibition of forced labor; 2) prohibition of cruel, inhuman and degrading acts

● General principles: 1) general principles recognized by civilized nations: formulas recognized

by States within their foro domestico, integrated over time into the international body of law; 2)

general principles of international law: general principles whose aim is to guide the formation

of customary and treaty rules⇒are they still important? In the pas