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Home Human Rights Archive for category "International Covenant on Civil and Political Rights"

Turkey, Aggression, and the Right to Life Under the ECHR: A Reaction to Professor Haque’s Post

Published on October 22, 2019        Author: 

Professor Haque yesterday published a thought-provoking piece on this blog arguing that the Turkish incursion against Kurdish forces in Syria, beyond being a violation of the UN Charter, also amounts to a violation of the right to life under the ECHR. His reasoning, which is sound, is based on the Human Rights Committee’s rather controversial new General Comment 36 on the right to life under the ICCPR, where the Committee concludes that States Parties to the Covenant engaging in acts of aggression resulting in deaths violate ipso facto Article 6 (for its part, the HCRttee itself draws on the opinion of academics such as William Schabas who originally developed the argument).

I do not disagree with Professor Haque’s logic, which is, like that of the HRCttee, internally sound. However, I disagree with the exceptionalism which often seems to characterize attempts to include jus ad bellum in the lawfulness test for arbitrary deprivation of life– and, respectfully, Professor Haque’s piece suffers from that same exceptionalism.

The classical view of permissible violence in armed conflicts, based on the long-standing distinction between jus in bello and jus ad bellum, is actually a coherent and credible legal position – one that has the additional advantage of being the mainstream interpretation. It is entirely plausible to maintain that the UN Charter does not mix very well with human rights or humanitarian law instruments. The whole structure of IHL has been built on the premise of its separation from the lawfulness of resorting to force, and the ICRC itself continues to strongly defend this position.

But the emerging understanding of the right to life in light of jus ad bellum is also a coherent, well-structured and convincing interpretation of treaty law, from the point of view of human rights law taken in relative isolation. The fact that this interpretation has also been authoritatively endorsed by a treaty body gives it an aura of credibility that few “progressive” interpretations raised in doctrine can usually aspire to. But the mere fact that a particular interpretation of treaty law makes sense does not mean that it should actually be made.

Read the rest of this entry…

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Turkey, Aggression, and the Right to Life Under the ECHR

Published on October 21, 2019        Author: 

Turkey’s latest invasion of Syria violates the prohibition of interstate armed force. It cannot be justified by Turkey’s right of self-defense (see here and here). What follows? Among other things, each and every person killed by Turkish forces and agents is killed in violation of her human right to life. Every civilian killed in violation of international humanitarian law. Every combatant or fighter killed without violation of international humanitarian law. Everyone. Let me explain.

The International Covenant on Civil and Political Rights provides that “No one shall be arbitrarily deprived of his life.” According to the Human Rights Committee’s General Comment No. 36 on the right to life, “[d]eprivation of life is, as a rule, arbitrary if it is inconsistent with international law.” It follows that “States parties [to the Covenant] engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.” This much is well known.

The European Convention on Human Rights provides that “[n]o one shall be deprived of his life intentionally” except in cases of capital punishment or when absolutely necessary to defend a person from unlawful violence; to effect a lawful arrest or prevent the escape of a person lawfully detained; or to quell a riot or insurrection. It follows that States parties to the Convention engaged in acts of aggression as defined in international law, resulting in intentional deprivation of life, violate ipso facto article 2 of the Convention. I am told this is less well known. Read the rest of this entry…

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Qatar’s Reservations to the ICCPR: Anything new under the VCLT Sun?

Published on September 19, 2019        Author: 

On 21 May 2018, Qatar become the third country in the Gulf region to ratify the International Covenant on Civil and Political Rights (ICCPR). This followed Kuwait in 1996 and Bahrain in 2006. Qatar’s ratification came with a long list of reservations and statements. That these reservations and statements have similarities to those of its two neighbors in the Gulf region may suggest that there was not much new in them. Yet, they are novel in two respects. First, they are the first ICCPR reservations and statements that can be assessed under the ‘Vienna plus regime’ adopted by the International Law Commission in 2011. There have been ICCPR ratifications post-2011, but none of these had reservations. Second, Qatar’s reservations have attracted objections from 21 states – the largest number to date. As such, the case of Qatar also provides an opportunity to consider the extent to which the objecting states cohere with the guidelines provided by the ILC.

Qatar’s reservations to the ICCPR

At the time it ratified the ICCPR Qatar entered two reservations. These are to Article 3 (equal rights of men and women to enjoy Covenant rights) and to Article 23 (4) (equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution).

The reservation to Article 3 indicates that the line of succession to the throne is governed by Article 8 of the Constitution of Qatar. The Constitution only permits male members of the royal family to be in the line of succession. Qatar justifies its reservation to Article 23(4) under a presumption of incompatibility with Islamic Sharia, which is the main source of legislation under the Qatari Constitution.

Qatar also entered five interpretive statements to the ICCPR. These concern the definition of inhuman and degrading punishment (Article 7), freedom to have or adopt a religion or belief (Article 18), the marriageable age for men and women (Article 23.2), the definition of trade unions (Article 22) and the protection of the rights of religious minorities (Article 27).

For the first three of these statements, Qatar indicated that its interpretations of Articles 7, 18 and 23 will be guided by Islamic Sharia and, in the case of any conflict, the Sharia will prevail. Concerning the definition of trade unions, Qatar stated that this will be interpreted with reference to its labour law and national legislation. Qatar further stated that the protection of the rights of persons from religious minorities under Article 27 will be respected to the extent that ‘they do not violate the rules of public order and public morals, the protection of public safe[t]y and public health, or the rights of and basic freedoms of others’. Read the rest of this entry…

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Look before you leap: the 2019 extradition bill amendments in light of Hong Kong’s international human rights obligations

Published on July 25, 2019        Author: 

On the first day of July, Hong Kong celebrates Establishment Day, which commemorates the 1997 transfer of sovereignty over Hong Kong from the United Kingdom to the People’s Republic of China. Establishment Day for Hongkongers is customarily accompanied by political protests. The widely reported 2019 protests are the direct result of a proposed amendment to the Fugitive Offenders Ordinance (‘FOO’). The proposed amendment, if passed, would open up the possibility of extradition to mainland China.  Although the proposed amendment was declared “dead” by Hong Kong’s Chief Executive, Carrie Lam, there is real possibility that, at one point or another, the bill will be reincarnated since under Hong Kong law a bill can be suspended or withdrawn and it is not clear that the declaration declaring it dead does either of these. As a result, people have kept pouring into the streets calling for Carrie Lam to step down, making the issue of continuing relevance.

One major point of contention of the proposal concerns the protection of human rights of those subject to transfer to China. NGOs such as Amnesty International and Human Rights Watch point out China’s deplorable human rights protection. While the PRC’s poor human rights track record has been documented extensively, in this contribution I wish to clarify how the amendment bill could result in a situation in which Hong Kong incurs responsibility under international human rights law – in particular article 7 ICCPR – when extraditing persons to the PRC. I do so by first discussing the proposed amendments to the FOO. Second, by explaining the international human rights standards that govern extradition and by which Hong Kong is bound (mainly the torture prohibition), I show how the proposal lacks the safeguards necessary to ensure adequate protection against torture and inhuman and degrading treatment.

Proposed amendments to the Fugitive Offenders Ordinance

The government’s justification for tabling the FOO amendment proposal lies in a brutal 2018 murder case in which a Hong Kong man killed his girlfriend while vacationing in Taiwan and fled back to Hong Kong. The Taiwanese authorities, quick to connect the dots, issued an extradition request to Hong Kong, but received no reply. The absence of action on the part Hong Kong can be explained by two alleged loopholes in the FOO: Read the rest of this entry…

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The UN Human Rights Committee Disagrees with the European Court of Human Rights Again: The Right to Manifest Religion by Wearing a Burqa

Published on January 3, 2019        Author: 

It is perhaps unsurprising to observers of the UN Human Rights Committee’s (HRC) jurisprudence that in the recent decisions of Yaker v France and Hebbadi v France, the HRC came to the opposite conclusion to the European Court of Human Rights (ECtHR) regarding the compatibility of the so-called ‘French burqa ban’ with the right to manifest religion. In SAS v France, the ECtHR had found that although the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’) interfered with the right to manifest religion, it did not constitute a violation of article 9 European Convention on Human Rights (ECHR) as it pursued the legitimate aim of ‘living together’ and fell within the State’s margin of appreciation (see my earlier post on this case). In contrast, in Yaker and Hebaddi, the HRC found that the same law violated not only article 18, the right to thought, conscience and religion, but also article 26 of the International Covenant on Civil and Political Rights (ICCPR), the right to equality before the law.

The HRC’s freedom of religion or belief jurisprudence has consistently diverged from that of the ECtHR when the right to manifest religion by wearing religious clothing is at issue. Both bodies have heard directly analogous cases, but while the HRC has found that restrictions on religious clothing justified by reference to either secularism or public order violate article 18 ICCPR, the ECtHR has deferred to the State’s margin of appreciation and declined to find a violation (see my earlier post on this blog). As a result, the HRC’s decisions in Yaker and Hebbadi were not entirely unexpected, especially as in its Concluding Observations on the fifth periodic report of France in 2015, the HRC had expressed ‘the view that these laws [including the burqa ban] infringe the freedom to express one’s religion or belief and that they have a disproportionate impact on members of specific religions and on girls’ (para 22). However, its decision in these cases remains noteworthy as a result of: its consideration of ‘living together’ as a legitimate aim under the article 18(3) ICCPR limitations clause; the HRC’s recognition that the burqa ban constituted intersectional discrimination; and the nuanced approach adopted to the gender equality argument. The analysis here will focus on Yaker, although the HRC’s reasoning in both cases is identical. Read the rest of this entry…

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Towards Universality: Activities Impacting the Enjoyment of the Right to Life and the Extraterritorial Application of the ICCPR

Published on November 27, 2018        Author: 

On October 31st, the Human Rights Committee (HRC) adopted General Comment no 36 on the right to life (GC36, available here) to the International Covenant on Civil and Political Rights (ICCPR/the Covenant). The Comment includes a number of interesting elements including, the introduction of the right to life as the ‘supreme’ right, and the relationship between the right to life and the environment. This post examines the endorsement in GC36 of the notion of ‘impact’ as constitutive of jurisdiction for the purpose of the extraterritorial application of the Covenant.

Impact as Exercise of Jurisdiction

In para. 63 of GC36, the Human Rights Committee adopts the ‘impact’-approach to the interpretation of Art. 6 in conjunction with Art. 2 (1) of the Covenant:

In light of article 2, paragraph 1, of the Covenant, a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control.  This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner. […]

Readers of this blog will be familiar with the debates on the extraterritorial application of human rights treaties. To quickly recap, the application of human rights treaties Read the rest of this entry…

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Visions of the ‘Right to Democratic Governance’ under International Law: The Complexities of the Philippines under Duterte

Published on May 24, 2018        Author: 

Is international law any closer to defining the content of a “right to democratic governance”? International human rights law instruments do not prescribe a form of governance, but they do explicitly refer to consistency with the needs of a “democratic society” when they admit limitations or restrictions to certain rights and freedoms.  Thus, the Universal Declaration of Human Rights refers to limitations to rights and freedoms determined by law and which meet “the just requirements of morality, public order and the general welfare in a democratic society.” (UDHR, Article 29(2). The International Covenant on Civil and Political Rights (ICCPR) enumerates specific civil and political rights and freedoms, but only refers to the needs of a “democratic society” when it speaks of permissible restrictions on press and public participation in court hearings [ICCPR Article 14(1)], restrictions to the right to peaceable assembly [ICCPR Article 21], and restrictions to the right to freedom of association [ICCPR Article 22(2)].  The general limitations clause in Article 4 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) refers to “such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”  The United Nations paints a broad brush on democracy as the enabling environment for the realization of human rights:

“Democracy, based on the rule of law, is ultimately a means to achieve international peace and security, economic and social progress and development, and respect for human rights – the three pillars of the United Nations mission as set forth in the Charter of the UN. Democratic principles are woven throughout the normative fabric of the United Nations….The UN has long advocated a concept of democracy that is holistic: encompassing the procedural and the substantive; formal institutions and informal processes; majorities and minorities; men and women; governments and civil society; the political and the economic; at the national and the local levels. It has been recognized as well that, while these norms and standards are both universal and essential to democracy, there is no one model: General Assembly resolution 62/7 posits that “while democracies share common features, there is no single model of democracy” and that “democracy does not belong to any country or region”. Indeed, the ideal of democracy is rooted in philosophies and traditions from many parts of the world. The Organization has never sought to export or promote any particular national or regional model of democracy.” (UN Guidance Note of the Secretary-General on Democracy, at p. 2).

There is no shortage of international legal scholarship examining different facets of “democracy”, whether as a separate right of individuals or peoples under international human rights law, or as an emerging norm of governance under international law.  Thomas Franck wrote in 1992 about the “emerging right to democratic governance” under international law, anchored on the notions of “democratic entitlement” and a “separate and equal status in the community of nations” – all traceable to the fundamental human right to self-determination.  In the same year, Gregory Fox also published a landmark article with the Yale Journal of International Law, this time on the specific right to political participation in international law, based on the ICCPR, the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights. A year later, James Crawford argued that a “pro-democratic” shift was taking place in international law, in a much-cited article in the British Yearbook of International Law.  Susan Marks later developed the concept of an emerging international law norm of “democratic governance” in her landmark book The Riddle of All Constitutions:  International Law, Democracy, and the Critique of Ideology (OUP, 2003). Jean D’Aspremont’s 2011 EJIL Article observed that certain global events – such as the rise of non-democratic regimes – could be “cutting short the consolidation of the principle of democratic legitimacy under international law.”  But even among these scholars (and many others, see here, here, here, and here), there is no hard consensus on the elements of the “right to democratic governance”. After Stanford’s Larry Diamond originated the idea of the “global democratic recession” some years ago, the Economist’s Intelligence Unit (EIU) developed its “Democracy Index” which measures the state of democratic freedoms in countries around the world according to five categories: 1) electoral process and pluralism; 2) civil liberties; 3) the functioning of government; 4) political participation; and 5) political culture.  

The Philippines presents an interesting case study on today’s many scholarly contestations over the “right to democratic governance” under international law (see among others Susan Marks’ 2011 EJIL article here, Ignacio del Moral’s ESIL essay, Johannes Fahner’s 2017  positivist argument for the existence of the right to democracy here).  As of 2017, the Philippines is ranked 51st among the world’s democracies in the 2017 Democracy Index as a “flawed democracy”, expressly finding that “the indefinite declaration of martial law in the southern state of Mindanao in the Philippines, and the rule of country’s strongman leader, Rodrigo Duterte, adversely affected the quality of democracy in the Philippines.  Mr. Duterte has led the way among the many Asian countries that are infringing democratic values.” (2017 Democracy Index, at p. 28). While the Philippines ranks in the highest percentiles when it comes to the electoral process and pluralism category, it ranked very dismally in the categories of the functioning of government and political culture, and only in moderate percentiles in the categories of political participation and civil liberties.  It is a jurisdiction that is unique for having repeatedly and consistently transformed the UDHR into a legally binding and directly actionable set of rights under Philippine law (see landmark Philippine Supreme Court decisions here, here, here, here, here, among others), and yet it finds itself today seriously contesting visions of “democratic governance” between Mr. Duterte’s asserted “rule of law” and the myriad of civil and political liberties issues raised by local critics (see for example here, here, and here), as well as abroad (such as the 2018 US State Department Country Report on Human Rights in the Philippines, the 2017 Report of the Working Group on the Universal Periodic Review for the Philippines, the 2018 chapter on the Philippines in Human Rights Watch’s World Report, among others).  The irony is, both the Philippine government and its critics claim to act according to a “right to democratic governance”, even if both parties may have different visions of what democratic governance is.

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ICERD and Palestine’s Inter-State Complaint

Published on April 30, 2018        Author: 

On 23 April, The Guardian reported that Palestinian diplomats had filed an inter-state complaint against Israel for breaches of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). According to the Ministry of Foreign Affairs and Expatriates of the State of Palestine:

Palestine is a State whose territory remains under a belligerent colonial occupation. For its part, Israel, the occupying Power, has maintained its colonial occupation over the past fifty years by imposing racist and discriminatory policies against Palestinian citizens.  Confronting this pervasive reality of racism and discrimination is a priority. This cannot wait. It should not. No person or people should be asked to tolerate racism or the violence and injustice it breeds.

The Guardian writes that “the submission is believed to be the first interstate complaint filed under the treaty”. This is true in relation to ICERD, and also the entirety of the UN international human rights treaties; as the OHCHR highlights in its portal on inter-state complaints: “Note: these procedures have never been used.”

The inter-state procedure is not found in every treaty – there is no formal procedure for filing inter-state complaints under CEDAW and its Optional Protocol. The procedure is found in ICCPR, ICESCR, CAT, CMW, CED and Optional Protocols, but it is generally optional and both States have to have recognised the competence of the Committee to receive such communications. Read the rest of this entry…

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A Response: The Child in International Refugee Law

Published on September 1, 2017        Author: 

I am grateful to each of the participants for engaging with The Child in International Refugee Law in such a thoughtful way.

As all four contributions have identified, the central thesis of The Child in International Refugee Law is that the the Convention on the Rights of the Child (“CRC”) has a critical role to play, alongside the 1951 Refugee Convention, in enhancing the visibility and protection afforded to refugee children. Rather than simply asserting a need for greater interaction between the 1951 Refugee Convention and the CRC, the book attempts to map out the substantive contours of that relationship, and to anchor the relationship in the international rules of treaty interpretation.

In his contribution, Bjorge engages with the book’s treatment of the international rules of treaty interpretation, and in particular the argument developed in Chapter 1 that these rules should be drawn upon to promote greater engagement with the CRC as an interpretative aid to inform the interpretation of the 1951 Refugee Convention refugee definition. I agree with everything that he has said. Bjorge agrees, perhaps unsurprisingly (see, e.g. The Evolutionary Interpretation of Treaties (OUP, 2014)), that Articles 31-33 of the Vienna Convention on the Law of Treaties (“VCLT”) require a systemic approach to the interpretation of the 1951 Refugee Convention and that such an interpretative approach is, on the whole, likely to be beneficial for refugee children. However, he raises a sage warning that a systemic approach to treaty interpretation can, particularly in today’s unfortunate political climate, be used opportunistically by States to reduce rather than strengthen the protection afforded by the 1951 Refugee Convention. In these circumstances, says Bjorge, “it may well be that literalism or textual interpretation is rather better than its reputation”. Read the rest of this entry…

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