JUS 5701 Personal scope of application Temporal scope

JUS 5701

Personal scope of application Temporal scope of application Scope of application of human rights treaties Material scope of application Territorial scope of application

Application of international humanitarian law Other norm conflicts Treaties UN Charter apply Art. 103 Human rights Scope of treaties apply application Personal Material …even during at all times… scope of of human armed conflicts application rights …unless there exist treaties circumstances that modify or exclude the application Territorial Temporal scope of application Reservations Derogations Limitations Denunciations

Reservations, derogations and limitations in a nutshell Has the State ratified the treaty? YES Are there valid reservations? NO Is there a valid derogation? NO NO YES THERE IS NO RIGHT HUMAN RIGHT YES Is there NO EXISTS, BUT a valid DOES NOT limitation? APPLY HUMAN RIGHT EXISTS YES HUMAN RIGHT EXISTS AND APPLIES

Art. 2. 1(d) VCLT: ”A unilateral statement … made by a State … whereby it purports to exclude or to modify the Declarations? legal effect of certain provisions of the Cannot destroy the Is acceptance treaty in their application to that State. ” nature of the right required? Some treaties explicitly allow for reservations T. K. v. France, 1987 HRC 220 ”In light of article 2 of the Art. 19 -23 VCLT: A Heightened Constitution of the French State may make a threshold for non «Late reservations» reservation unless Republic, the French government CEDAW CERD ACHR ECHR CRPD CMW CRC derogable rights prohibited by the treaty Some treaties declares that article 27 is not are silent applicable so far as the Republic is concerned. ” What’s the effect of an ICESCR ACPHR ICCPR CED invalid reservation? Effectively: All human Still a ”reservation” rights treaties allow for reservations Reservations Derogations Limitations

Reservations: Examples (ICCPR) Indonesia Congo Gambia Botswana “The Government of the Republic of Botswana "With reference to Article 1 of the International Covenant on Civil and "For financial reasons free legal assistance for considers itself bound by: The Government of the People's Republic of Political Rights, the Government of the Republic of Indonesia accused persons is limited in our constitution Congo declares that it does not consider itself declares that, consistent with the Declaration on the Granting of to persons charged with capital offences only. a) Article 7 of the Covenant to the extent that bound by the provisions of article 11. Independence to Colonial Countries and Peoples, and the ‘torture, cruel, inhuman or degrading treatment’ The Government of the Gambia therefore Declaration on Principles of International Law concerning Friendly means torture inhuman or degrading punishment wishes to enter a reservation in respect of Relations and Cooperation Among States, and the relevant or other treatment prohibited by Section 7 of the article 14 (3) (d) of the Covenant in question. " paragraph of the Vienna Declaration and Program of Action of 1993, Constitution of the Republic of Botswana. ” the words "the right of self-determination" appearing in this article do not apply to a section of people within a sovereign independent state and can not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states. "

Three CCPR, Article 4 categories 1. In time of public emergency which threatens the life of the nation and the of treaties existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on Treaties which the ground of race, colour, sex, language, religion or social origin. Treaties which explicitly permit explicitly prohibit 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 are silent derogations may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of ECHR CMW derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by ACHR Reservations Derogations Limitations which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. ICCPR

Provided by law Legality Legitimacy Example: Article 12 CCPR Legitimate aim and necessary to that aim Consistent with other rights Proportionality HRC General Comment no. 27 Permissible 1. Everyone lawfully within the territory of a State shall, within that limitations territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. Inherent 3. The above-mentioned rights shall not be subject to any restrictions limitations except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other Reservations Derogations Limitations rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country.