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Some remarks about special features of human rights treaties*

Published online by Cambridge University Press:  07 July 2009

E.W. Vierdag
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Extract

Undoubtedly, human rights treaties have some special characteristics; but it seems important first of all to identify the phenomenon of the ‘human rights treaty’ for the purposes of the present article. An overwhelming number of treaties exist on the protection of rights of individuals, ranging from bilateral treaties to conventions with well over a hundred parties. Not all of these treaties can be said to be on the protection of ‘human rights’, as in international legal parlance not all the rights of private persons which are protected by treaty are called ‘human’ rights. But it is impossible to draw sharp lines as grey zones as well as a certain degree of overlapping appear to exist. Thus, for instance, property rights protected by treaty will generally not be considered as ‘human rights’, but Article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, to name just one example, concerns ‘the peaceful enjoyment of [one's] possessions.’ By the same token, rights that are also currently identified as ‘human rights’ appear to be of a widely differing character. The same is true for the treaties in which they are enshrined as well as for the mechanisms of supervision of their application that are provided for in these treaties.

Type
Diversity in Secondary Rules and the Unity of International Law
Information
Netherlands Yearbook of International Law , Volume 25 , December 1994 , pp. 119 - 142
Copyright
Copyright © T.M.C. Asser Press 1994

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References

1. Thus the present author has always greatly favoured Art. 13(2)(e) of the 1966 UN Covenant on Economic, Social and Cultural Rights: ‘The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.”

In how many countries, bound by this Covenant, will this obligation (‘shall’) be complied with, and if so, how? What if the material conditions of teaching staff are not continuously improved? I addressed questions such as these in ‘The Legal Nature of the Rights Granted by the Covenant on Economic, Social and Cultural Rights’, 9 NYIL (1978) pp. 69–105.Google Scholar

2. Here the Court refers to its Advisory Opinion on the Genocide Convention, ICJ Rep. (1951) p. 23.

3. Judgment, ICJ Rep. (1970) p. 3, at p. 33 (para. 34).

4. GA Res. 543 (VI); see Nowak, M., UNO-Pakt über bürgerliche und politische Rechte und Fakultativprotokoll – CCPR-Kommentar (1989) p. XVIII.Google Scholar

5. Signed in Rome on 4 November 1950; in force since 3 September 1953. Text, inter alia, in 213 UNTS (1950) p. 221; AJIL Supp. 24 (1950).

6. Text adopted by the UNGA on 16 December 1966, Res. 2200 A (XXI); entry into force: 23 March 1976.

7. See e.g., Blumenwitz, D., ‘Treaties of Friendship, Commerce and Navigation’, in Bernhardt, R., ed., EPIL, Instalment 7 (1984) p. 484 et seqGoogle Scholar. with further references.

8. ‘… [I]ndeed, the whole human rights movement may be seen as an attempt to extend the minimum international standard from aliens to nationals …’ Akehurst, M., A Modern Introduction to International Law, 6th edn. (1987) p. 91Google Scholar; similarly Tammes, A. J. P., Internationaal Publiekrecht [Public International Law], 2nd edn. (1973) p. 194.Google Scholar

Of course, the law of aliens and human rights law converge, as aliens are bearers of human rights as well, and with the exception of political rights (such as the right to vote: see Art. 25 of the Covenant, which speaks of ‘Every citizen’, and Art. 16 of the Convention) on an equal basis with citizens. Yet the question is still asked whether special human rights for aliens should be recognised. See further on this Lillich, R.B., The Human Rights of Aliens in Contemporary International Law (1984).Google Scholar

9. ‘The High Contracting Parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention.’

10. ‘The provisions for the implementation of the present Covenant shall apply without prejudice to the procedures prescribed in the field of humen rights by or under the constituent instruments and the conventions of the United Nations and of the specialized agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.’

11. Text, inter alia, in 189 UNTS (1954) p. 137. ‘Persecution’ in the sense of Art. 1 of this Convention implies necessarily a grave violation of human rights by the country of origin. So the grant of refugee status by another State as defined in this Convention can be seen as a special sanction, peculiar for violations of human rights.

Of course, the person must be outside the country of his nationality or habitual residence in order to qualify. There are some signs, however, that the traditional concerns of refugee law may be ‘internalised’, i.e., can be resolved inside the country where the violations have been or are still being perpetrated. Humanitarian intervention may be practised as an equivalent, equally effective sanction. But as it must, if necessary, involve the use of force, it needs the approval by the UN Security Council.

12. ICJ Rep. (1951) at p. 23.

13. Application No. 788/60. Report of the Commission in 4 Yearbook of the European Convention on Human Rights (1961) p. 116 et seq.Google Scholar

14. Ibid., at pp. 138, 140. The European Court of Human Rights confirmed in its judgment in the case of Ireland v. the United Kingdom of 18 January 1978 the standpoint of the Commission. Prompted ‘to clarify the nature of the engagements placed under its supervision’, the Court observed: ‘Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement”.’

Series A, Vol. 25 (1978) p. 90.

15. Art. 1 of the Convention.

16. Art. 2 of the Covenant.

17. It is remarkable that, e.g., the Berne Convention just mentioned does contain a clear provision on this, while the European Convention and the Covenant do not. Art. 36 (2) of the Berne Convention reads as follows: ‘It is understood that, at the time a country becomes bound by this Convention, it will be in a position under its domestic law to give effect to the provisions of this Convention.’ On the controversy mentioned in the text, see Nowak.op. cit. n. 4, p. 60 et seq., with further references.

18. ‘Everyone whose rights and freedoms set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’

19. Not unlike the law of the European Communities being special in this respect, at any rate since the judgment of the Court in case 6/64 Costa v. ENEL [1964] ECR 585 and by virtue of the wording of Art. 189, second paragraph, of the EC Treaty.

20. See A. and S.N. v. Norway, Communication No. 224/1987. UN Doc. A/43/40 (1988) pp. 249–250.

21. See further on this Nowak, op. cit. n. 4, at p. 62 et seq., with further references; Drzemczewski, A.Z., European Human Rights Convention in Domestic Law (1983)Google Scholar; Rehof, L.A. and Gulmann, C., Human Rights in Domestic Law and Development Policies of the Nordic Countries (1989).Google Scholar

22. Cf., e.g., Tammes, A.J.P., ‘The Duty to Provide Local Remedies’, in Volkenrechtelijke opstellen aangeboden van Gezina van der Molen (1962) pp. 152–168.Google Scholar

23. 272 UNTS (1957) p. 3 et seq. See e.g., Bishop, W., International Law – Cases and Materials, 3rd edn. (1971) p. 1087Google Scholar. W. G. Friedmann called this treaty ‘a prototype’: The Changing Structure of International Law (1964) p. 227.Google Scholar

24. Duties to report on compliance are contained in a number of human rights treaties, such as the Covenant on Economic, Social and Cultural Rights (Arts. 16 and 17), the European Social Charter (Part IV), and the Convention on the Elimination of all Forms of Racial Discrimination (Art. 9), to name just a few. The European Convention speaks in Art. 57 of parties furnishing ‘explanations’. See further Partsch, K. J., ‘Reporting Systems in International Relations’, in Bernhardt, R., ed., EPIL, Instalment 9 (1986) p. 326 et seq.Google Scholar, with further references.

25. Partsch, loc. cit. n. 24, p. 326.

26. See Landy, E. A., The Effectiveness of International Supervision – Thirty Years of ILO Experience (1966).Google Scholar

27. Thus Arts. 204 and 205 of the UN Convention on the Law of the Sea require coastal States to observe, measure, evaluate and analyse the pollution of the marine environment, and to publish reports of the results of these activities. See also, e.g., Nollkaemper, A., The Legal Regime for Transboundary Water Pollution: Between Discretion and Restraint (1993) p. 257 et seq.Google Scholar

28. See supra, fn. 5 and accompanying text.

29. ILC Yearbook (1976) Vol. II, Part Two, pp. 96–122.

30. Art. 53 Vienna Convention on the Law of Treaties. The ILC commentary to draft article 19 goes into the question of how these concepts (obligations erga omnes, international crimes, and jus cogens) are interrelated. See especially paras. 17 et seq., 60 et seq. (ibid. p. 102, p. 119 et seq.). Cf., Shabtai, Rosenne, Breach of Treaty (1985) p. 54 et seq.Google Scholar

31. Art. 64 reads as follows:

‘1. Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article.

2. Any reservation made under this Article shall contain a brief statement of the law concerned.’ Of course, this provision is specific in that it restricts the making of reservations to Convention provisions that have corresponding rules in domestic law. One might expect that the effect of this restriction should be that no reservations can be made to the formal and institutional regulations of the Convention; but see below on the reservation by Turkey to its declaration under Art. 25 of the Convention.

32. As is clear from, inter alia, the Temeltasch decision of the European Commission on the Swiss ‘declaration’ regarding Art. 6(3)(e) of the Convention: 5 Eur. HR Rep. (1984) p. 428 et seq., as well as from the European Court's Judgment in the Belilos case (29 April 1988; ECHR, Series A, vol. 132).

33. It seems wise to limit this statement to Art. 19 of the Convention's provisions on reservations, as indeed, ‘it would be a bold jurist who would assert, with any degree of confidence, that the Convention regime [on reservations] represents in its entirety codification rather than progressive development.’ Sinclair, I., The Vienna Convention on the Law of Treaties, 2nd edn. (1984) p. 14.Google Scholar

34. To become a party to a human rights treaty and at the same time to try to subject the international standards laid down in it to existing rules of national law is, of course, contrary to the most fundamental principles of the international protection of human rights. Such a course of action is at the very least an empty gesture. See for all relevant data the particularly extensive treatment of reservations to UN human rights treaties in Lijnzaad, L., Reservations to UN Human Rights Treaties. Ratify and Ruin? (1994)Google Scholar. The Covenant is dealt with in Ch. 5 thereof.

35. Declaration of 27 January 1987. See the reference to the text in the next footnote.

36. See Tomuschat, Chr., ‘Turkey's Declaration under Article 25 of the European Convention on Human Rights’, in Nowak, M. et al. , eds., Progress in the Spirit of Human Rights – Festschrift für Felix Ermacora (1988) p. 119 et seqGoogle Scholar. The text of the declaration is reproduced on p. 138. Of course, there are differences between reservations in a declaration accepting jurisdiction and those in an act of ratification of or accession to a treaty. But some of the more fundamental principles applicable to the latter can be applied per analogiam to the former as well.

37. Congressional Record – Senate, 2 April 1992, S 4783. Emphasis added.

38. At the time of writing the House Judiciary Committee, working on the Senate crime bill, would, like the Senate, ‘restore a dozen once-outlawed death penalties to the federal criminal code and add three dozen more.’ International Herald Tribune (23 March 1994) p. 8Google Scholar. The Economist (23 April 1994) reports on ‘the extension of the death penalty to cover more than 50 newly federalised crimes, including, in the Senate's bill, every murder committed with a gun’ (p. 51).

39. Text of the report in 31 ILM (1992) p. 645 et seq. The view that the provisions referred to in Art. 4(2), such as Art. 6, cannot be subject to reservations, is confirmed by the standpoint of the Netherlands and Germany who objected (in 1980 and 1982 respectively) to a reservation by Trinidad and Tobago as it was considered incompatible. Trinidad and Tobago attempted to reserve the right not to apply Art. 4(2) ‘in full’.Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1992, pp. 130, 133Google Scholar. But a similar objection has not been made by these States to the US reservation to Art. 6.

40. The text of this report, drawn up by the League's Committee for the Progressive Codification of International Law, is contained in Lord, McNair, The Law of Treaties (1961) pp. 173–176Google Scholar. At p. 176: ‘In order that any reservation whatever may be validly made in regard of a clause of the treaty, it is essential that this reservation should be accepted by all the contracting parties, as would have been the case if it had been put forward in the course of the negotiations. If not, the reservation, like the signature to which it is attached, is null and void.’

41. See on the subject as a whole, Lijnzaad, op. cit. n. 34, passim.

42. Annex to UNGA Res. 34/180, 18 December 1979. 19 ILM (1980) p. 33 et seq.

43. Clark, B., ‘The Vienna Convention Reservations Regirne and the Conventionon Discrimination against Women’, 85 AJIL (1991) p. 281–321.CrossRefGoogle Scholar

44. Ibid., at p. 286.

45. See Multilateral Treaties Deposited with the Secretary-General Status as at 31 December 1992, pp. 162–174.Google Scholar

46. See for a detailed examination of the question as a whole, Lijnzaad, op. cit. n. 34, ch. 6; Clark, loc. cit. n. 43.

47. Sub-para. 4(b) provides: ‘an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between objecting and reserving State unless a contrary intention is definitely expressed by the objecting State.’ As is well known, this provision results from the acceptance by the UN Conference of an amendment submitted by the Soviet Union, which completely reversed the rule proposed by the ILC. (UN Conference on the Law of Treaies, Official Records, Vol. II, p. 35; Vol. III, p. 265 et seq.). At the time it was not realised that the difference between the acceptance and the rejection of a reservation was thereby abolished.

48. However much human rights organisations and special ists may be in opposition to reservations that tend to nullify the effect of the instruments to which they are made, State practice shows that objecting States are unwilling to draw definite consequences as to whether the reserving States should become parties or not. The legal significance of this ‘subsequent practice’ should not be ignored by candid observers (Art. 31 (3)(b) of the Vienna Convention on the Law of Treaties).

49. Rosenne, op. cit. n. 30, at p. 75.

50. Concluded in Geneva in 1949. See for the Swiss amendment: UN Conference on the Law of Treaties, Official Records, Vol. I, p. 354 et seq.; Vol. II, p. 112 (1968, 1969).

51. Rosenne, op. cit. n. 30, at p. 3 et seq. and passim.

52. See ILC Yearbook 1966 Vol. II p. 267: the Commission ‘decided that an express reservation in regard of the possible impact of … the international responsibility of a State on the application of the present articles was desirable in order to prevent any misconceptions from arising as to the interrelation between the rules governing [that matter] and the law of treaties.’

53. ILC Yearbook 1966 Vol. II p. 255.

54. As adopted in 1980. ILC Yearbook 1980 Vol. II Part 2 pp. 30–34.

55. Especially in common law countries. This is so in spite of the fact that in 1962 the ILC abandoned the limitation of the scope of the subject to the treatment of aliens. Cf., Brownlie, I., System of the Law of Nations – State Responsibility, Part I (1983) p. 13 et seq.Google Scholar; Shabtai, Rosenne, ed., The International Law Commission's Draft Articles on State Responsibility (1991) p. 22 et seq.Google Scholar

56. For example, Art. 11 of the Convention and Art. 22 of the Covenant on trade union freedom; Art. 7 of the Covenant on medical and scientific experimentation.

57. Compare Simma who observed that ‘the question whether treaty subsystems on the protection of human rights constitute “self-contained regimes” is a very controversial one’, and who arrived at carefully balanced conclusions. 16 NYIL (1985) pp. 132–136. For the purposes of the present essay, it is useful to quote the following observation:

‘… it is quite obvious that specific mechanisms of supervision and control, as well as complaint procedures available to States and individuals, enjoy priority over any attempts at enforcing human rights obligations on the inter-State level. In the case of a treaty like the European Convention … the necessity of resorting to enforcement according to general international law will hardly ever arise … In the case of human rights treaties at the universal level, however … a limitation of the enforceability to their own procedures would result in a clear minus compared with the general legal consequences of treaty violations’ (at p. 133).

It is remarkable that Simma nowhere refers to Art. 62 of the European Convention or Art. 44 of the Covenant on Civil and Political Rights (see below, section 6.1).

58. See for the Convention, e.g., the fully-documented survey in Vélu, J. and Ergec, S., La Convention européenne des droits de l'homme (1990) pp. 699–1128Google Scholar. For the Covenant, Nowak, op. cit. n. 4, at pp. 540 et seq., 693 et seq., and McGoldrick, D., The United Nations Human Rights Committee – Its Role in the Development of the Covenant on Civil and Political Rights (1991)Google Scholar, all with further references. It is not possible to review in this article the radical changes which will result from Protocol No. 11, adopted on 11 May 1994, by which the Commission and the Court are merged so as to become one single court. See 33 ILM (1994) pp. 943–967.

59. Cf., Simma, loc. cit. n. 57, at p. 129.

60. Art. 44 was only proposed in 1966: see Bossuyt, M., Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (1987) p. 723 et seq.Google Scholar

61. See for the following Vélu and Ergec, op. cit. n. 58, at pp. 748 et seq.

62. See e.g., Frowein, J.-A. and Peukert, W., Europäische Menschenrechtekonvention – EMRK Kommentar (1985) p. 482.Google Scholar

63. See Vélu and Ergec, op. cit. n. 58, at p. 751 et seq.

64. Res. (70)17 of 15 May 1970; text in 18 European Yearbook (1970) pp. 265–267.Google Scholar

65. Nowak, op. cit. n. 4, at p. 662 et seq.

66. Nowak, op. cit. n. 4, at p. 663. See Ermacora, F., ‘Ueber das Kumulationsverbot in Menschenrechtsverfahren’, in Festschrift S. Verosta (1983) p. 187, at p. 189.Google Scholar

67. See for a confirmation of this especially the fourth report on State responsibility by ILC Special Rapporteur Arangio-Ruiz, UN Doc. A/CN.4/444/Add.2, 1 June 1992, p. 2 et seq., at pp. 5–10, with many further references.

68. See e.g., Brownlie, I., Principles of Public International Law, 4th edn. (1990) p. 580 et seqGoogle Scholar. and the literature there cited.

69. Concluded on 15 May 1922, text in Kaeckenbeeck, G., The International Experiment of Upper Silesia (1942) App. III.Google Scholar

70. Steiner and Gross v. the Polish State (1928), Ann. Digest (1927–28) Case no. 188.

71. See e.g., the survey in Norgaard, C. A., The Position of the Individual in International Law (1962) pp. 99–157.Google Scholar

72. PCIJ Series A, No. 1 (1923).

73. At pp. 23–24. Art. 386 provided for a – rudimentary – system for the settlement of disputes over the interpretation of the rules in the section on the Kiel Canal in the Treaty of Versailles.

74. As regards the Covenant, if a declaration under Art. 41 has been made.

75. Treaty on European Union, Maastricht, 7 February 1992. Text in 21 ILM (1992) No. 2, p. 247 et seq. (Art. 8c is at p. 259).