Article 22 [Respect for Privacy

This article deals with the legal effect of reservations to human rights treaties with particular reference to the International Covenant on Civil and Political Rights. In treaty practice, two conflicting views may be identified. On the one hand, it is maintained that, as consent remains the governing principle of the existing regime of reservations, states parties to human rights treaties have the discretionary power to determine the admissibility and validity of reservations to treaties. On the other hand, it is argued that, because of the special features of human rights treaties, a different regime of reservations should be applicable to these treaties: treaty supervisory organs should be competent to decide on the admissibility of reservations and to determine the consequences of inadmissible reservations. The fundamental question raised in this controversy is whether human rights treaties are sufficiently different from other treaties to apply to them distinct rules for determining the admissibility of reservations and the consequences of inadmissible reservations. On the basis of General Comment No. 24(52) of the Human Rights Committee and its recent practice, the article examines the persuasiveness of arguments advanced by both sides. In the light of the controversial views on the legal effect of invalid reservations, some conclusions are drawn on how best to deal with reservations to human rights treaties with particular reference on the role of treaty supervisory organs to reservations.

Social Rights in Refugee Law and Human Rights Law: The Non-discrimination Principle as a Harmonization Tool

A rich literature examines human rights treaty commitment and compliance. A subset of this literature has begun to examine the international legal actions states make following treaty ratification. I argue that the ways that states legally engage with treaties following commitment to UN human rights treaties is much more nuanced and differentiated than scholars have thus far presented via Reservation, Understanding, and Declaration. I introduce a first descriptive analysis of what I term Post-Commitment Actions (PCAs) to UN human rights treaties and generate varying hypotheses of why different PCAs have different relationships with expected human rights practices. I conduct a preliminary statistical analysis of the effect of PCAs on human rights practices and find that they are varied and important. Some PCAs result in improved human rights, while others result in worse human rights. I conclude by calling for further future study into these treaty actions.

This chapter identifies obligations that may be derived from treaties requiring states to protect human rights. The notion that human rights treaties imply an obligation of states to mitigate climate change has been instrumental to the development of climate litigation. Yet, the identification of implied obligations faces important challenges in light of the territorial nature of the relevant treaty obligations and the relatively indirect link between a state’s mitigation action and the effective enjoyment of human rights within its jurisdiction. The chapter argues that human rights treaties require a state to cooperate on climate change only if and insofar as this really helps with the protection of the rights within the scope of the treaty. As such, implied obligations allow the interpreter of human rights treaties to open only, at most, a narrow window onto the applicability of general mitigation obligations.

Growing concern for the democratic legitimacy of human rights treaty organs calls for the construction of an autonomous conception of ‘democracy’ as a constitutional principle of human rights treaties, and the reconstruction of the roles of treaty organs per that conception. This study responds to this call by proposing an original ‘two-tiered bounded deliberative democracy’ theory that harmonizes human rights with democracy globally. This theory gives priority to national deliberations while setting certain frameworks and limits on them based on the principles and values that have been firmly established through international deliberations, including human rights treaty standards. The theory not only appropriately explains the roles of treaty organs within the conception of democracy but also offers a comprehensive normative framework to guide their roles and interactions with other actors. Even for those who champion different versions of democracy, it offers a solid basis for constructive discussions and fruitful engagement.

Questioning Treaty Interpretation as the Legitimizing Foundation of the Internal Relocation Principle under Refugee and Human Rights Treaties

The Universal Declaration of Human Rights of 1948 paved the way for various human rights treaties elaborated at the United Nations level. Besides the two well-known International Covenants on Human Rights of 1966, several special human rights treaties have been concluded which focus on particularly vulnerable subjects like women or children. Nevertheless, persons with disabilities remained, for a long time, invisible on the international human rights plane. This gap has recently been filled by the Convention on the Rights of Persons with Disabilities which has been opened for signature by all states and by regional integration organizations, on 30 March 2007.The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. In order to achieve this goal, the Convention recognizes that disability is an evolving concept and results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others. The Convention, thus, substitutes the traditional view that persons with disabilities suffer deficits by the modern view of respect for difference and acceptance of persons with disabilities as part of human diversity and humanity. In general, the Convention is based on a holistic approach in the work recently done in the fields of social development, human rights and non-discrimination.Against this background, the Convention enjoins the states not only to refrain from intentional and unlawful interferences (duty to respect), but also to take appropriate steps to safeguard the rights of persons with disabilities within their jurisdiction, even in the sphere of relations between individuals, if need be (duty to protect and to fulfil). In particular circumstances the Convention even establishes directly applicable rights between individuals (cf. Art. 9 para. 2 lit. b; Art. 21 lit. c).According to Art. 34 of the Convention, a Committee on the Rights of Persons with Disabilities, composed of independent experts, shall be established in order to monitor states parties implementation of the Convention by examining states parties reports. Further more, the optional protocol to the Convention recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals.In sum, even if the Convention does not give an accurate definition of disability and does not stipulate a manageable demarcation line with the ambit of other human rights treaties, the creation of a specialized Committee will presumably guarantee more sensibility in the matter than other human rights committees.

Human rights treaties have fundamentally altered the face of international law. As opposed to the simple exchange of obligations amongst sovereign States, human rights treaties establish an objective regime whereby States Parties institute internationally accepted individual protections and minimum standards as mandated by their roles as duty bearers, as opposed to rights bearers within the global human rights community. Through treaty accession, States Parties set a system of rights protection in motion whereby they surrender a small fraction of State sovereignty in exchange for a functional role within a broader system that obliges them to respect, protect, and fulfil the interests of the populations they represent.1 Treaty ratification thus entails international accountability that takes the form of either individual complaint procedures or monitoring through regular and systematic State reporting duties. Theoretically, an international Court of Human Rights, or a system of ombudspersons, or human rights commissions, or national human rights commissioners, empowered with effective remedies and mandated to monitor and protect the rights of all individuals, groups or peoples, would substantively address the issue of accountability under international human rights treaty law.

UN Human Rights Treaty Bodies (TBs) are a central pillar of the international human rights system, essential in their independent, quasi-judicial monitoring of State Parties’ respect for and implementation of ratified UN human rights treaties. National Human Rights Institutions (NHRIs) function in a similarly independent and quasi-judicial manner and are today recognised as crucial components of a functioning National Human Rights System. The 2020 UN Human Rights TB Review presents an opportunity to analyse current challenges inherent to the domestic institutionalisation processes specific to NHRI engagement, considers variances amongst different TB procedures and develops innovative proposals and solutions. Although exploring the effectiveness of TB–NHRI engagement presents inherent difficulties, this article proposes such evaluation against the backdrop of a goal-based approach to organisational effectiveness. This approach may facilitate the development of a framework for understanding the relations between TBs and key stakeholders, such as NHRIs. In other words, by identifying the key generic goals of these two quasi-judicial bodies – monitoring norm-compliance, regime support, and legitimisation – this paper attempts to systematise the interaction between NHRIs and two specific TBs, the Committee on the Elimination of Discrimination Against Women (CEDAW) and Committee on the Rights of Persons with Disabilities (CRPD), in view of a possible harmonisation of procedures following the 2020 Review process.

The language of law has distinct grammatical features that make it different from the other varieties of language. This paper examines two of the function word classes that can be compared according to their function: determiners and pronouns. The corpus used for analysis is an instance of public international law. It is the recent UN human rights treaties of the 2000s, which are Convention on the Rights of Persons with Disabilities (CRPD) in 2006 and International Convention for the Protection of All Persons from Enforced Disappearance (CPED) in 2006. The analysis uses Biber et al.’s Longman Grammar of Spoken and Written English (LGSWE) as a framework for the qualitative and functional analyses, and corpus linguistics for the quantitative analysis. The results generally reveal and confirm that the language of law is formal, impersonal, and gender-neutral. In addition, it seeks precision and clarity. Key words determiners – pronouns – UN Human Rights treaties – the language of law – corpus linguistics ملخصالبحث: تتميز لغة القانون بوجود خصائص نحوية متميزة تجعلها مختلفة عن الأنواع الأخرى من اللغة. يستعرض هذا البحث أثنين من أنواع الکلمات الوظيفية اللذان يمکن مقارنتهما وفقا لوظيفتهما وهما: المحددات والضمائر. ويعتبر النص المستخدم في التحليل نموذجا للقانون الدولي العام، ويشمل هذا النص معاهدات الأمم المتحدة الحديثة لحقوق الإنسان الصادرة في الألفية الثالثة وهما اتفاقية حقوق الأشخاص ذوي الإعاقة في 2006م والاتفاقية الدولية لحماية جميع الأشخاص من الاختفاء القسري في 2006م. يتم تطبيق نظام العمل المستخدم في کتاب بايبر (Biber) وآخرين قواعد لونجمان للغة الإنجليزية المنطوقة والمکتوبة للتحليلين النوعي والوظيفي ويتم استخدام لسانيات المتون (Corpus Linguistics) للتحليل الکمي. وتظهر النتائج وتؤکد على وجه العموم أن لغة القانون هي لغة رسمية وغير شخصية ومحايدة بين الجنسين وأيضا تسعى لأن تکون دقيقة وواضحة.

The Trust in Indicators: Measuring Human Rights

This paper explores the role of National Human Rights Institutions (NHRI) in the Asia-Pacific area in the promotion and protection of human rights. The Asia-Pacific is the only region not to have a regional human rights organization and States in the region have a low ratification rate for international human rights treaties. The rhetoric of the 'Asian values' or 'values in Asia' debate has challenged the appropriateness of 'Western' human rights values for the developing countries of Asia and some Asian leaders have spoken out against the imposition of human rights in Asia. Despite this outward hostility to international human rights norms, however, over the last decade there has been a remarkable flourishing of NHRI in the Asia-Pacific region. The constitutive documents for these NHRI generally define human rights (and thus the mandate of the NHRI) by reference to international instruments and give NHRI an active role in government decision-making in regard to whether it should ratify further human rights treaties. The NHRI are not courts and tend not to have the power to make binding determinations, but they generally have the power to investigate complaints of breaches of rights, encourage mediation or report on violations, conduct education campaigns, visit prisons and promote human rights within the government and the community more generally. In order to be recognised by the United Nations as NHRI, they need to comply with the Paris Principles that require Commissioners to act independently of the government. This paper explores the potential of these NHRI in the protection and promotion of human rights through a case-study of the way in which NHRI in India, Malaysia and the Philippines have dealt with the issue of religious freedom. Despite having similar mandates each NHRI has responded very differently to serious abuses of human rights that have arisen out of ethno-religious conflicts. The Malaysian Human Rights Commission has focused on dialogue between conflicting parties held behind closed doors; the Philippines Commission has taken on serious issues but dealt with them in such legalistic ways that it has hampered its own effectiveness; while the Indian Commission has been proactive, creative and forceful in dealing with crises in religious freedom. While the Indian example demonstrates that NHRI can have a real contribution to make to human rights protection, it also demonstrates that even a well-funded and well-respected body can only have a limited impact on human rights abuses, especially when that body does not have enforcement powers.

The subject of this article is the role of the International Court of Justice (ICJ or Court) in interpreting human rights treaties. The article first sets out the limits of the Court’s jurisdiction on human rights questions. Second, it analyses the ICJ’s interpretive techniques, based also on cases concerning general treaty interpretation, in order to examine whether the Court has adopted an interpretive methodology comparable to some of the techniques of the ECtHR. It places this analysis within the broader debate as to whether a specialised approach to interpretation is required in the context of human rights treaties. Third, it considers a further important role that the ICJ can play in adjudicating on the relations between human rights and other issues of international law, including diplomatic protection, State immunities and international humanitarian law.

This article examines one specific question: whether states are allowed to derogate from human rights treaties for situations which take place outside their territories, especially in armed conflict. Can, for instance, the United Kingdom derogate from the European Convention on Human Rights (ECHR) or the International Covenant on Civil and Political Rights (ICCPR) for events that take place in Afghanistan and involve its armed forces deployed there, to the extent that the ECHR and the ICCPR apply in Afghanistan?The wider the geographical scope of human rights treaties, the more relevant the question of extraterritorial derogations. Such derogations might start looking increasingly appealing to states, especially those who have initially miscalculated in arguing that the treaties do not apply at all, and avoided derogating in the fear that doing so would count as an admission that the treaties do apply. Derogations have the potential of bringing both clarity and flexibility to the applicable legal framework, especially in situations of armed conflict and with regard to possible interactions between human rights and international humanitarian law (IHL).Contrary to the dicta in some of the decisions of the House of Lords and the UK Supreme Court, the article argues that extraterritorial derogations are not only permissible, but may even be necessary and desirable, as part of price worth paying for the treaties’ extensive and effective application outside states’ boundaries. It also elaborates on the relationship between derogations and the various different manifestations of the lex specialis principle.

In this study titled The Core Human Rights Treaties and Thailand, Vitit Muntarbhorn examines the relationship between Thailand and the nine key human rights Conventions, known as the Core Human Rights Treaties, in addition to their Protocols. These agreements cover a range of civil, political, economic, social and cultural issues, in addition to the rights of specific groups. The study offers a mirror for reflection, testing the linkage between international standards and national implementation in a dynamic and challenging context.