European Human Rights Protection

European human rights protection lecture 1 27/09/2021

Human rights are universal in the sense of entitlement, because every human right has them, but they’re not universal because we’re not able to strictly define the “human being” > is a fetus a human being? in order to talk about abortion and the violation of the right to live.

Art. 2 of European convention of human right > no mention of when the life starts, this question is up to the court.

Theory of margin of appreciation > when a situation is particular controversial, the states are free to decide whether or not there is a violation, and in this case they can decide when the life start and the deadline for abortion. This approach could be seen like freedom of choice of the states in the base of the culture, but also the conventions are made to protect people from the power of the states. So it is a little bit controversial.

Art 4 of American convention of human rights > life start in conception.

Lecture 2 28/09/21

International laws

State are sovereign in their territory and they have the power to regulate the life there, but they have to respect some rules that are supranational.

There are certain rules which are binding for every country. The international legal system is quite different from the domestic one, where people have to respect the rules in force only for the reason of being here. The subject here are the people, because legal law are referred to all the people in the territory of the state.

International system > it does not exist an authority which can enforce the respect to law, and the subject of these law are the states. The states are obliged to respect the international laws.

Problem > the states are also the subject but also the creators of laws (parliament should respect the will of the people).

United Nations > it is not the world government.

General Assembly > all the state (no Taiwan) have the same power, each state has one vote. The General Assembly could not adopt binding resolutions, but they have only a character of recommendations. The only binding document have to be accepted by the states.

Security Council > field of international security: situation which represent a threat for international peace. They can adopt binding provisions in this very restricted field.

Permanent member > China, France, UK, USA and Russia (Right of veto > it does not work properly during the Cold War, because the two superpower blocked the resolutions).

UN is not the world government and so, the rules are created by the states. International laws can be seen as a limitation of the sovereignty of the states. States accepted this limitation because it want that other states do it too.

Example > before the human rights, there was an obligation which oblige the states to protect the alien (a foreigner, especially one who is not a naturalized citizen) and the states accepted that in order to get reciprocity. This is the same procedure for the diplomatic agents.

Common goods > are protected for the sake of the community and for the benefit of all the states and people.

Human Rights > step forward in the cognition of international law, they are protected for the community not on the base of the reciprocity between the state.

Domestic law

Domestic law > fixed and clear hierarchy of sources of laws.

• Constitutions > supreme rules of a state.
• Ordinary laws > created by the parliament, and they’re subjected to the principles contained in the Constitution. The Constitutional Court work to establish if the laws respect the constitutional principle or they’re defined void.
• Administrative agreements.

International laws sources

International laws:

• Customary International laws > first source of international laws. When a new state is created it is binding by the customary international law. Oral not written > conflict between the scholars.
• International treaties (conventions, pact, covenant, charter) > these treaty (bilateral or multilateral) are binding only for the states which voluntarily accepted it. They’re written.

Multilateral treaty > Close (only between the country which negotiated the treaty) or open (any state in the world can join the treaty).

Party > state which has join the treaty (like convention).

Member > state which join an organisations (like UN).

Denunciation > it is only possible when it is written in the treaty or if something exceptional happen. States can only get out if it is planned.

In the American Convention of Human Rights, the effect of the denunciation are possible only after 1 year, because if there is a violation this procedure has the aim to wait for the judgement of the Human Right Court and give time to them to enforce the sentence, before that the state leave the treaty.

After the treaty, there are some rules which came after that (ex. A treaty create an organ, when this organ create legal rules do it on the base of the power given by the treaty).

Solemn procedure

Solemn procedure > Classical procedure to stipulate the treaty, like at the origin and still used today for the most important treaty, like for the human rights.

Sometimes this procedure is due when there are some specific matters (Italian article, in order to accept some treaty in some specific matters - like in political cases -, the ratification of the parliament is required) or when multiple states can join.

Human rights treaty > the need of the creation of a new treaty on human rights is discussed in the ?? of UN.

• First Draft: is written by experts which are independent persons, not affected by the political interests of the states. The first draft is the better form to protect the principle because it does not correspond to the state interests.
• Negotiation phase, where the delegate of the states discuss. When there is an agreement, then there is the approval:
• Unanimity: when every delegations agrees but it is very difficult.
• Consensus: it lays on the principle that there is the unanimity even if it there isn’t > when the states which do not approve but there is nothing to discuss further. Normally states which not approve they keep silence because it is not good to show every state that they’re opposite. In some cases the text could be put on vote.
• Signature > Does not imply any obligation for the states: it means only that the negotiations are closed, and the state manifest only the will of accept in future the obligations implied by the treaty.
• Ratification or Accession (x multilateral open treaty) > Moment when the provision contained in a treaty became binding for the state.

Multilateral treaty > the aim is to be signed by the greatest number of states, so the provisions inside should be shareable and the result of compromises. The delegations receive specific guideline from their government, and this can really affect the content of the treaty. The diplomatic agents are more concerned on what the other states thought rather than on the content of the treaty.

Ratification is regulated by domestic laws, normally these procedures are contained in the Constitution (Italy: art 87 treaties are ratified by the President of the republic, after the approval of the Parliament. He can ask to the parliament to re-evaluate the approval only one time then he has to sign it anyway.)

The domestic law will enter into force after 15 days to let people know, international law need a minimum number of ratification of the states to be into force and this procedure is described by the treaty itself.

When the designated number is reached, the treaty enter into force, so the following state which sign after the treaty are suddenly binding, because it is already in force.

Reservations

Reservations > Convention of the elimination of all discrimination against women > ratified by a huge number of state. There is a rule of international law which allows states to make one or reservations on the content of provisions. States are allowed to decide that some provision are not binding for them. This is not the best but allow to the states to ratify the other parts of the treaty.

The reservations can be made all the time unless the treaty says differently.

The Sharia states put their reservation on the articles about the relation between wife and husband.

Interpretative reservation > the state accept that provision only on the base of a certain interpretation. It is not permitted to make reservations on all the provisions. The reservation should be compatible with the objective and the corpus of the treaty.

Some treaty has some organs which judge the validity of reservations, but usually there is no authority and are the states which question the reservations because according to them these reservations are not compatible the treaty, so they open a dispute. Because of the lack of authority the controversy remain.

Islamic countries have won because the controversy is still in force and even if the western countries are against their reservation, they have obtained that those articles are not in force into force in their countries.

Problem: lack of international judge so this reduces the effectiveness of international laws. States should accept in advance and give the legitimacy to an arbitrator.

Simplify procedure > the will of the state have to be manifested by people who have the power, governmental level. This procedure is used at the end of the negotiations when the states sign the documents.

Soft Laws > they’re not binding for the states (like the resolutions of the General Assembly). The states can decide whether or not to follow these laws.

Soft laws are very important for the creation of the hard laws, which are those which are binding.

Lecture 3 29/09/2021

Content add to the lecture 2.

Lecture 4 04/10/2021

Protocols

Protocol > they’re adopted to improve the original treaty in a specific field, like human rights. Protocols can also change the contents of some provisions of the original treaty, and they’re used because changing the original treaty need the approval of all the states in the convention.

They work like all the treaty but they’re linked with another existing treaty, so it is essential that the state ratify the protocol even if they’re already part of the original treaty. In this way, the obligations on the protocol become binding only for the states which accepted it.

Ex. A convention has been ratified by many states and they can choose to ratify some other protocols, linked with the original convention.

Between the states, we should consider the protocols like a bilateral obligation. So, if 2 states have ratified the same protocols, their relations become bounded by the content of that protocols. We need to see what protocols have been ratified by the states in order to understand what obligations they have to respect towards other.

Erga omnes

Erga omnes > obligations about human rights relating every states, under customary international law.

Human rights common goods, which are protected in the interest of the whole community, they go beyond the interest of the single states. Human dignity need to be protected, and all states can react to a violation of human rights even if the victim is not a citizen of that state or if the violation doesn’t occur in its national territory.

Erga omnes partes > obligation which are binding only the states which had ratified the treaty.

Codifications conventions

Codifications conventions > they collect rules of customary international law, which are not written. Scholars try to put in paper the customary in force, the body which has this role is the “International law commission”, they are independent and so they only write drafts, and then the states choose if to ratify the treaty or not.

Vienna Conventions on the law of treaties 1969 > most important ratification convention which ratifies the rules of customary international laws about international treaties.

Codification Convention > rules of a treaty, because the rules of customary international law are controversial and on the contrary the written rules contained in the Codification are clear. The rules contained in the Codification are believed to be the correspondent of the customary international law, but some states can disagree. So, these rules became binding only for the states which have ratified the Convention.

It may be established by the treaty, that when there is a controversy on the application of one rules, it will be solved by a commission. This resolution is used only if the controversy is raised between two or more states which have ratified the convention.

The role of the International Commission:

• Put on writing the rule of customary international law (which already exist).
• Promote the progressive evolution of international law (add new rules).

Customary international law

Customary International Law > Those provisions which are binding to all the states in the world. This law is flexible, because it is possible to derogate to the customary international law through a treaty, but there is an exception.

Jus Cogens > imperative law of customary international laws must be respected all the time, because they protect the paramount values of the community.

• Prohibition of the use of military force to solve a controversy, the only force allowed is for self-defence. (US military action in Iraq, after the 11/09: this politics of preventing self-defence is not legitimate, because the force is only allowed after the attack.)
• No torture and no slavery.
• Protection the right to life.
• Self-determination of people: people under military occupation have the right to obtain their independence.
• Prohibition of retroactive application of the criminal law: you can’t be punished if there wasn’t a law establishing a crime at the time you do the violation.

The difficulty is to translate this fundamental rule in concrete applications in people’s life.

Two fundamental concept concerning customary international laws:

• Diuturnitas: state practice.
• Opinio juris: believe that a given behaviour is imposed by a legal rule in force.

Lecture 5 05/10/2021

Domestic customs > are based on a repeated behaviour for long time, and they’re the very last source of law.

International custom > first source of laws.

Two element both satisfied:

• Diuturnitas > behaviour need to be constantly repeated for a given period of time, and the existence of a violation means the existence of a legal obligation dictating the opposite behaviour. We need the sufficient amount of practice to affirm the existence of international customary laws (it is not very easy, because the perpetration of a behaviour may not be dictated by a legal obligation, like friendship between states).
• Opinio juris > the given behaviour must be held constantly by states, not for reason of curtesy or friendship, but because the states believes that this behaviour is imposed by law.

Persistent objector > is a state which denies the existence of a customary international law. Only one state is not enough to impede the existence of the customary international law.

Customary international law > can be derogated through bilateral agreements, except to the Jus Cogens, which is mandatory.

Soft laws > rules originated by treaties.

Art 3 convention on the rights of the child 1989 > principle “best interests of the child”: usually children should live with parents, but in some cases it is not in the best interest of the child, so on the base of this principle we can derogate to this general rule.

What happen in case of violation

What happen in case of violation > Responsibility of States for Internationally Wrongful Acts (2001): guidance on customary international law, this article isn’t binding.

Subjective elements > internationally wrongful act is attributable to the State under international law. A state is responsible for all the action and behaviour of all its organs, it can be responsible for action of people which are not organs.

On the base of the obligation to protect human rights, the state has to prevent any violation of human right under its jurisdiction. The state has to keep the behaviour of all its citizen, aliens, everybody, under control preventing violation of HR.

So, the state is responsible for the behaviour of all its organ and also for the prevention of violation of HR.

Ferrini case

Ferrini case: Judgement of Italian Court of Cassation.

Mr. Ferrini was deported to Germany during WWII and forced to labour.

He submitted a claim to the local courts and this was rejected, because it was against a state, Germany.

Rule of customary international law is the immunity of foreign states from jurisdiction existed. A foreign state cannot be brought in front of a court of another state. The Italian court has no competence to deal with a violation committed by other state, so they rejected the claim.

Corte di Cassazione reversed the previous judgement, because it was violated a rule of Jus Cogens, so he was entitled of ask for a compensation to Germany.

Then, Germany go to the International Court of Justice, main international court, and Italy lost, because according to them the rule of state immunity applies also in this case.

Italian government was against to Corte di Cassazione, it is not so paradoxal from the political point of view because similar crimes were committed by the Italian army in the Balkans, Yugoslavia. If this judgement were accepted at the international level, the Italian government has to re pay the Balkan population because they had committed the same violation.

Countermeasure and reactions

What it is possible to do to react to a violation?

Countermeasure > the victim state is entitled to also violate the international law against the state responsible. ES: State A breaches a treaty, so also state B can violate it toward state A.

Reprisal: I’ve been victim of a violation so I violate the international laws towards the actor.

Retortions: it is not a friendly act, but there is no violation of international laws (like closing embassy in my state).

Condition of countermeasures:

• Principle of proportionality: you should react with a proportionate behaviour according to the violation (no plane invasion vs nuclear weapons).
• Countermeasures cannot imply a violation of Jus Cogens (like no military aggression to the violator in case of attack but only self-defence).

The controversy could be solved through diplomatic negotiations, and that imply that the two countries are friend.

Good offices- Mediation >