Anthony Aust. Handbook of International Law
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accommodate the varying social and cultural differences to be found in European countries, which to
the outsider may appear all alike.
Reservations
The treaties necessarily express human rights in fairly general terms. When ratifying, a state may
formulate reservations to modify the effect on it of the obligations.
53
Derogations
In very similar terms, both the ECHR (Article 15) and the ICCPR (Article 4) enable a party to take
measures derogating from its obligations. For this there must be a public emergency threatening the
life of the nation. The measures must be taken only ‘to the extent strictly required by the exigencies
[i.e. urgent needs] of the situation’ and must not be inconsistent with other obligations under
international law. The ICCPR adds that they must not involve discrimination solely on the ground of
race, colour, sex, religion or social origin, and no doubt that is how the European Court of Human
Rights would interpret Article 15. No derogation is permitted by the ECHR from the right to life
(except in wartime), torture, slavery, punishment not in accordance with law or the complete
prohibition on the death penalty imposed by Protocol No. 13. The ICCPR includes some other non-
derogatible rights, including the freedom of thought.
Any derogation, and the reasons for it, must be communicated to the Council of Europe or the
United Nations, as appropriate. Numerous derogations have been made.
54
In the case of the ECHR,
it is for the European Court of Human Rights to judge whether the conditions for derogation exist,
but the state has a wide ‘margin of appreciation’ as to whether the life of the nation is threatened.
55
In 2001, the United Kingdom gave notice of derogation from Article 9 of the ICPPR and Article 5(1)
of the ECHR due to the public emergency existing in the UK caused by the threat of international
terrorism.
56
As a result, the Anti-Terrorism, Crime and Security
53. See p. 239 above on the US reservation to the ICCPR on the right to life. For more on reservations, see
p. 67 above.
54. See UN Multilateral Treaties, Ch. .4.
55. See Lawless v. Ireland (1979–80) 2 EHRR 1; 31 ILR 290; and Irelandv. UK (1979–80) 2 EHRR 153;
58 ILR 190.
56. In connection with the ECHR derogation, see the Human Rights Act 1998 (Designated Derogation)
Order 2001 (SI 2001 No. 3644).
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Act 2001 was enacted. This enables foreign nationals to be detained indefinitely (although subject to
regular judicial scrutiny) if they are considered to be a threat to national security and suspected of
being an international terrorist, yet are unwilling to leave the UK and cannot be deported or
extradited because that could breach the person’s human rights (the right to life or not to be
subjected to torture etc.: see Chahal).
57
The power of detention is subject to annual renewal by
Parliament. In 2004, the House of Lords held that detaining only foreign nationals under the Act was
a breach of their human rights.
58
Enforcement
Ratifying human rights conventions is fine, but unless they can be effectively enforced they are
worth little. Even the most basic human rights are constantly being abused in many states. Both the
ECHR (Article 13) and the ICCPR (Article 2(3)) provide for the right to an effective remedy for a
violation of any of the rights. Some states ratify human rights conventions without any real intention
to respect them or to put in place the domestic mechanisms by which the rights could be properly
protected. To be effective, a human rights convention needs not only an international machinery,
such as an international court or tribunal to which an individual can complain of a breach of his
rights, but also domestic legal mechanisms by which judgments of the international court or tribunal
can be properly implemented, either by paying compensation or by changing the law, or both. In
practice, this is more likely in truly democratic states which have the rule of law with an independent
judiciary. It is much better to have domestic legal systems that protect rights effectively, so making it
unnecessary for people to seek redress from an international tribunal.
European Court of Human Rights
59
In 1998, the original two institutions created by the ECHR, the European Commission of Human
Rights and the European Court of Human Rights, were replaced by one institution, a revised
European Court of
57. (1997) 23 EHRR 413; 108 ILR 385.
58. A v. Home Secretary [2004] UKHL 56. The provisions were replaced by the Prevention of Terrorism
Act 2005, which applies also to British nationals.
59. For information on the Court, including the text of the ECHR, the Protocols, other basic documents,
judgments and other useful information, see www.echr.coe.int.
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Human Rights on which each of the parties to the ECHR is entitled to one judge. The Court’s
jurisdiction extends to all matters concerning the interpretation or application of the ECHR. An
individual, a legal person, an NGO or a group of individuals can make an application to the Court
alleging a violation of the Convention. A member state may also allege a breach of the ECHR by
another member state (an ‘inter-state case’), but this is rare. An application will not be admissible
unless all local remedies have first been exhausted.
60
The application must then be made within six
months.
61
Applications can be made in any official language of a member state, but if declared
admissible, all subsequent documentation must be in an official language of the Court, English or
French. The application and pleadings are normally available to the public.
The Court sits either as Committees of three judges, Chambers of seven judges or a Grand
Chamber of seventeen judges. An application is first examined by a Rapporteur (one of the judges)
who decides whether it should go to a Committee or straight to a Chamber. A Committee, by a
unanimous vote, may declare inadmissible or strike out an individual application. Otherwise a
Chamber will decide, by majority vote, on the admissibility of the case and, if it is declared
admissible but is not settled, on the merits of the application. If the case raises a serious question of
interpretation of the ECHR, or might result in a judgment inconsistent with a previous judgment of
the Court, the Chamber may, before giving judgment, and provided no party to the case objects,
relinquish jurisdiction to the Grand Chamber. A judgment of a Chamber may, in exceptional cases,
be referred by a party to the case to the Grand Chamber, but will be heard by the Grand Chamber
only if it accepts that it raises a serious question of interpretation or application of the ECHR, or a
serious issue of general importance. Because of the huge and increasing backlog of cases, it was
suggested that decisions on admissibility should be decided by a single judge with two
assessors/rapporteurs, and that manifestly well-founded cases (where the situation is similar to
previously decided cases so that no new question of law is involved) should be heard by a three-
judge panel. The essence of these reforms has been included in Protocol No. 14, which will enter
into force once all parties to the ECHR have ratified it.
Most of the facts and legal arguments are presented in writing. If a Chamber or the Grand
Chamber agrees to an oral hearing (only in a minority of cases), this consists mostly of prepared
statements rather than
60. See p. 441 below for the relevant rules of international law.
61. See P. Leach, Taking a Case to the European Court of Human Rights, Oxford, 2001.
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a dialogue between judges and counsel. A final judgment of a Chamber or the Grand Chamber is
binding on the state that is a party to the case. Execution of the judgment is, if necessary, supervised
by the Committee of Ministers of the Council of Europe.
The Court may also give advisory opinions at the request of the Council of Europe’s Committee
of Ministers on the interpretation of the ECHR or its Protocols, although not on the content or scope
of the rights and freedoms, there being a perfectly adequate judicial procedure available to
complainants, whether individuals or member states.
Perhaps the greatest single factor that makes the ECHR so effective is the right of individual
application (petition) to the Court. Under Article 34, applications no longer need the consent of the
state party concerned. But about 9 per cent of applications are held inadmissible. The most common
grounds are that they are manifestly ill-founded or out of time, domestic remedies have not been
exhausted or the application amounts to an appeal on the merits from a domestic judgment. The
following are the figures for 2004: about 45,000 new individual applications; applications held
admissible, 830; judgments given, 718. A further 20,348 applications were disposed of, leaving
some 78,000 pending. Typically, 30 per cent of applications are not pursued by the applicant.
Other regional treaties
The American Convention on Human Rights 1969 has a Commission and a Court of Human Rights,
based in San José, Costa Rica, that were inaugurated in 1979.
62
The 1998 Protocol to the African
Charter on Human and Peoples’ Rights on the Establishment of an African Court of Human and
Peoples’ Rights
63
entered into force on 25 January 2004 and has so far fifteen parties. The Arab
Charter on Human Rights 1994 is not yet in force and will have no human rights court.
64
Human Rights Committee
65
In contrast to the ECHR and the American Convention, there is no court established to enforce the
ICCPR. Instead, it has an eighteen-member
62. BGG, p. 671; Harris and Livingstone (eds.), The Inter-American System of Human Rights, Oxford,
1998; www.corteidh.or.cr.
63. ILM (2004) 1; BGG, p. 741; www.africa-union.org.
64. BGG, p. 774.
65. D. McGoldrick, The Human Rights Committee, Oxford, 1991; and Higgins (for ten years a member of
the HRC), pp. 108–10. For the annual reports of the HRC, and of the Committee against Torture and the
CERD Committee, see www.unhchr.ch.
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Human Rights Committee (HRC), which is often confused with the (very different) UN Commission
on Human Rights (CHR).
66
The HRC is composed of nationals of parties, mostly judges or
professors of law elected by secret ballot of the parties to serve in a personal capacity for a four-year,
renewable term. The HRC meets three times a year in New York and Geneva. It operates, by
consensus, in three ways.
Reports
A state must submit a report on how it is implementing the ICCPR to the HRC within one year of
becoming a party, and thereafter every five years, although ad hoc reports can also be requested. The
HRC also accepts information from NGOs. Representatives of each state are questioned about its
report at a public hearing of the HRC. Thereafter the HRC issues to all parties specific
‘Observations’ on each report. If a state fails to submit a report, the HRC can still consider the
matter and give its views.
General Comments
The HRC is empowered to issue ‘General Comments’ on implementation of the ICPPR. So far it has
issued thirty-one. Some have been on controversial issues, such as reservations to the ICCPR
(General Comment 24).
67
Although the object of a General Comment is to help the parties and to
further the purposes of the ICCPR, the HRC has been strongly criticised for straying into
controversial questions of international law and, although it is not a court, making pronouncements
that were not based on the facts of a particular case and without the benefit of hearing legal
argument from the parties concerned. But such of its General Comments as have received wide
support may be regarded as a secondary source of international law.
68
Individual complaints
The (First) Optional Protocol to the ICCPR
69
enables the HRC to consider a ‘communication’
(petition) from an individual (not a legal person) who is subject to the jurisdiction of a party to the
Protocol and who claims that he is the victim of a violation by that party of the ICCPR. The
petitioner must first have exhausted all available domestic remedies, provided those remedies have
not been unreasonably prolonged.
70
The state has six months to respond. The HRC will not consider
a communication that is already being investigated under another international procedure, such
66. See www.unhchr.ch.
67. See pp. 75-6 above.
68. See p. 8 above.
69. 999 UNTS 171 (No. 14668); ILM (1967) 368; UKTS (1977) 6.
70. See p. 441 below.
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as by the European or Inter-American Courts of Human Rights. A Special Rapporteur of the HRC
processes new communications, and the HRC’s Working Group on Communications, if it is
unanimous, decides if a communication is admissible. The HRC considers the communication in
private and then sends its views to the petitioner and the state.
Although the procedure may at first sight seem similar to that of individual applications to the
European Court of Human Rights, the HRC’s views are not binding and there is no prescribed
sanction for ignoring them, the chief weapon of the HRC being publicity. A summary of its activities
under the Protocol is published in the HRC’s annual report to the UN General Assembly.
71
The Optional Protocol has 105 parties and a party may withdraw from it.
72
Some states, such as
the United Kingdom, which are parties to the ECHR, are not parties to the Protocol since they
consider the protection given by the European Court of Human Rights sufficiently effective that
there is no need in their case for an alternative procedure. But the United Kingdom is now a party to
the CEDAW Protocol (see below). A working group of the CHR is considering a proposal for
similar optional protocols to the ICESCR.
Other UN monitoring bodies
73
There are also committees to monitor the implementation of the Racial Discrimination Convention
(CERD), the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) and the Torture Convention. They operate in a similar fashion to the HRC, and include
provisions for individual petitions, subject to the state concerned making a general declaration of
acceptance in the case of CERD and the Torture Convention, or ratifying the Optional Protocol to
CEDAW. There is also a monitoring committee under the Rights of the Child Convention, but no
right of individual petition.
71. For a sample of its work, see ILR, vols. 115 and 118.
72. See p. 106 above on the Trinidad and Tobago manoeuvre.
73. See www.unhchr.ch.
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12 The law of armed conflict (international humanitarian
law)
Then every soldier kill his prisoners!
Kill the boys . . .? ’Tis expressly against the law of arms.
1
Roberts and Guelff, Documents on the Laws of War, 3rd edn, Oxford, 2000
Schindler and Toman, The Laws of Armed Conflict, 4th edn, Leiden, 2004 (documents)
UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford, 2004
Oppenheim, Oppenheim’s International Law, 7th edn, London, 1952, vol.
Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary, Geneva, 1953–60, 4 vols.
Green, The Contemporary Law of Armed Conflict, 2nd ed, Manchester, 2000
The first quote is of Henry ’s supposed reaction at the Battle of Agincourt 1415 to the murder of
his army’s boy servants. The second is that of his Welsh captain, Fluellen, who clearly had a better
understanding of the Law of Arms (later the Laws of War).
2
This chapter is headed ‘The law of
armed conflict’ since that is the more correct term to describe the international law governing the
conduct of hostilities, including military occupation. International lawyers also use the Latin term
jus in bello to distinguish it from jus ad bellum, the law on the use of force.
3
But the currently
fashionable term used by the United Nations, the International Court of Justice and the International
Committee of the Red Cross is ‘international humanitarian law’ (IHL).
4
This reflects the law’s
fundamentally humanitarian purpose, but can mislead people into thinking that the subject covers all
human rights, or even that it is concerned with
1. W. Shakespeare, Henry , Act . scenes 6/7.
2. For the history of the law, see Green, The Contemporary Law of Armed Conflict, 2nd edn, Manchester,
2000, pp. 20–53.
3. See p. 223 above.