King’s College London

LLM/MA in International Peace and Security

International Human Rights

2010–11

Lecturers
Dr Silvia Borelli (module leader) email: silvia.borelli@kcl.ac.uk
Dr Jessie Hohmann email: jessie.hohmann@gmail.com

Office hours
Dr Borelli and Dr Hohmann are contactable at the above email addresses. Students
wishing to arrange a meeting should in the first instance establish contact via email.

Time and venue

Day: Wednesday Room: GFSB3 (Term 1)
Time: 2 – 4 pm GFSB1 (Term 2)

Course format
The course is taught over 21 two-hour seminars.
Teaching is in the seminar format, including discussion of the issues and readings.
Students are expected to arrive at each class prepared to participate actively in
these discussions.
For some topics, a call will be made for volunteers to make short presentations
(10-15 min) on particular aspects or recent developments.

Requirements
Ideally students should have already taken a general course in Public International
Law. We do however welcome students who have not taken such a course but we
strongly suggest that they read one of the following general textbooks on
international law early in the academic year:
• M. Evans (ed.), International Law (3rd ed., OUP, 2010)
• V. Lowe, International Law (OUP, 2007)

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Assessment
Assessment will be by an unseen written examination. Students will be required to
answer to three questions from a set of nine.
The exam will be closed book; students are however allowed to bring into the exam a
copy of PR Gandhi (ed.), Blackstone’s Statutes – International Human Rights
Documents (OUP, 6th ed., 2008 or 7th ed., 2010).
Please note that it is KCL policy that there must be no highlighting or writing in the
Blackstone’s Statutes book that you bring into the exam with you.
For marking criteria, see LLM Handbook 2010-11, Appendix 4 (p. 22)

Course materials

• Required
Students are required to buy at the beginning of the academic year and always
bring to class a copy of:
o PR Gandhi (ed.), Blackstone’s Statutes – International Human Rights
Documents (OUP, 6th ed., 2008 or 7th ed., 2010)

• Recommended General Texts on Human Rights

Students may wish to do some background reading. These sources may be helpful
for that purpose:
o H. Steiner, P. Alston and R. Goodman (eds), International Human Rights in
Context: Law, Politics, Morals (OUP, 3rd ed., 2007)
o S. Marks and A. Clapham, International Human Rights Lexicon (OUP,
2005)
o Moeckli, Shah and Sivakumaran (eds), International Human Rights Law
(2010)

• Class Reading Materials

Under each topic heading, you will find a list of essential and further reading for
that week’s class.
Those materials listed as “essential reading” constitute the minimum pre-class
reading requirements. That is, they are those materials you will need to have read
and considered before coming to class. They are not sufficient to give you full
understanding of each topic. You will need to pick at least a selection from the
‘further readings’ in order to gain an understanding of the course to equip yourself
for the purposes of the exam. You are encouraged to read the further readings
before the relevant class to raise the level of discussion and analysis.
For some of the seminars, the “essential readings” section contains a number of
judicial decisions, some of which are particularly lengthy and cover multiple issues.
When reading those cases, you are only required to familiarize yourself with the

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broader factual background of the case and then analyze with care only those
parts of the decision which are relevant to the specific topic of the Seminar (in
some cases, the relevant paragraphs are specified in the relevant reading list).
The readings are available in the KCL library, on KCL’s e-journals site, or on the
class Blackboard site. For convenience, hyperlinks have been provided for some of
the materials – however, should those links not work, this would not be treated as a
valid reason for not having read the document in question.
Please note that this is a research degree course, and as such the ability to find
relevant cases and materials is a part of the basic course requirement.

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 List of Topics

Term 1
Seminar 1 (29 Sept) Introduction to the course
Wed. 6 Oct. NO CLASS
Seminar 2 (13 Oct.) The traditional protection of the individual under international
law and the emergence of international human rights law (Dr
Borelli)
Seminar 3 (20 Oct.) Theoretical basis and purpose of human rights (Dr Hohmann)
Seminar 4 (27 Oct.) Critiquing human rights (Dr Hohmann)
Seminar 5 (3 Nov.) Sources of human rights law (Dr Borelli)
Seminar 6 (10 Nov.) Universal human rights instruments and mechanisms for
enforcement (Dr Borelli)
Seminar 7 (17 Nov.) Regional systems for the protection of human rights I (Dr
Borelli)
Seminar 8 (24 Nov.) Regional systems for the protection of human rights II (Dr
Borelli)
Seminar 9 (1 Dec.) Right to life I (Dr Borelli)
Seminar 10 (8 Dec.) Right to life II (Dr Borelli)
Seminar 11 (15 Dec.). Economic, social and cultural rights: the rights to housing &
health (Dr Hohmann)

Term 2
Seminar 12 (12 Jan.) Human rights and the protection of refugees and asylum
seekers (Dr Hohmann)
Seminar 13 (19 Jan.) Religion and human rights (Dr Borelli)
Seminar 14 (26 Jan.) Freedom of expression (Dr Borelli)
Seminar 15 (2 Feb.) Right to a fair trial (Dr Borelli)
Seminar 16 (9 Feb.) Liberty and security (Dr Borelli)
Wed. 16 Feb. NO CLASS
Seminar 17 (23 Feb.) The prohibition of torture and ill-treatment (Dr Borelli)
Seminar 18 (2 Mar.) Protection against wrongful transfers (Dr Borelli)
Seminar 19 (9 Mar.) Protection of individuals in armed conflicts (Dr Borelli)
Seminar 20 (16 Mar.) Extraterritorial application of human rights (Dr Borelli)
Seminar 21 (23 Mar.) REVISION

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 Seminar 1
Introduction to the course

The present class is intended as an introduction to the course and the readings.
Accordingly, there is no specific set reading.

However, it is recommended that the time is used to undertake the following background
reading on sources of international law and the law of State responsibility, which should
be treated as an introduction to certain basic topics for students who have not taken a
basic course in public international law, and as a refresher for those have done so:
• H. Thirlway, ‘The Sources of International Law’, ch. 4 in M. Evans (ed.),
International Law (3rd ed., 2010) [Blackboard]
• J. Crawford and S. Olleson, “The Natures and Forms of International
Responsibility”, ch. 15 in M. Evans (ed.), International Law (3rd ed., 2010)
[Blackboard]
• ILC Articles on the Responsibility of States for Internationally Wrongful Acts (2001)
[Blackboard] (read carefully the text of the Articles and browse the Commentaries)

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 Seminar 2
The traditional protection of the individual under international law and the
emergence of international human rights law

This seminar is an introduction to the study of individual rights in international law. In order
fully to understand the particular importance of international human rights law, it is
necessary to understand the position of individuals under international law prior to 1945
and the emergence of the human rights movement.
You should be prepared to discuss the distinction between ‘objects’ and ‘subjects’ of
international law as well as the two schools of thought as regards the treatment of
foreigners by a host state.

Essential reading

• Traditional protection of the individual in international law

The position of the individual in the international legal system

A. Orakhelashvili, ‘The Protection of the Individual in International Law’, California
Western International Law Journal, vol. 31 (2001), pp. 241
C. Tomuschat, “Individuals”, in Crawford, Pellet and Olleson (eds.), The Law of
International Responsibility (2010), ch. 67 (Blackboard)

Treatment of aliens
D.J. Harris, Cases and Materials in International Law (6th ed., 2004), ch. 8, Section
on “The Treatment of Aliens”: skim through the cases, other documents and
commentary and read carefully the extract from Mavrommatis Palestine
Concessions (Greece v. United Kingdom), (Jurisdiction), PCIJ Reports 1924,
Series A, No. 2, pp. 12–13
J. Dugard, “Diplomatic protection”, in Crawford, Pellet and Olleson (eds.), The Law
of International Responsibility, ch. 73 (Blackboard)

Inter-war minorities protections/ The Nuremberg Trial

Steiner, Alston & Goodman, International Human Rights in Context (3rd ed., 2007),
pp. 96–132

• Emergence of International Human Rights Law

H. Lauterpacht, “The Law of Nations, the Law of Nature and the Rights of Man”,
Transactions of the Grotius Society, vol. 29 (1943) pp. 1-33
J.H. Burgers, “The Road to San Francisco: The Revival of the Human Rights Idea
in the Twentieth Century”, Human Rights Quarterly, vol. 14 (1992), pp. 447
T. Buergenthal, “The Evolving International Human Rights System”, AJIL, vol. 100
(2006), pp. 783

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Further Reading

R. Higgins, Problems and Process: International Law and How We Use It (1994),
ch. 3
E. Bates, “History”, in Moeckli, Shah and Sivakumaran (eds), International Human
Rights Law (2010), ch. 1
P. Lauren, The Evolution of International Human Rights: Visions Seen (1998)
M. Nowak, Introduction to the International Human Rights Regime (2003)
M. Ishay, The History of Human Rights: From Ancient Times to the Globalization
Era (2004)
D. Cassel, ‘Does International Human Rights Law Make a Difference?’, (2001) 2
Chicago Journal of International Law 121
Goldsmith and Posner, The Limits of International Law (2005), pp. 107-134
T. Evans, The Politics of Human Rights (2nd ed., 2005)
A. Sen, ‘Human Rights and the Limits of Law’, (2005-2006) 27 Cardozo Law
Review 2913
M Koskenniemi ‘The Pull of the Mainstream’, (1990) 88 Michigan Law Review 1946
(or read excerpt in Alston, Steiner & Goodman p. 82)
O.A. Hathaway, ‘Do Human Rights Treaties Make a Difference?’, (2002) 111 Yale
L.J. 1935

Questions for discussion

1. How were individuals protected under public international law before the
emergence of international human rights law?
2. What is or are the ‘minimum standard(s)’ of treatment applicable to aliens?
3. Consider the regime for protection of minorities during the inter-war period.
Which rights did this regime protect, and what modalities existed to enforce the
obligations involved? Was the system of protection successful?
4. What are the pre-requisites for a State to bring a claim in respect of an act of
another State which has caused injury, loss or damage to an individual (consider
in particular the rules concerning the ‘nationality of claims’)?
5. What are the deficiencies with the ‘traditional’ system of protection of individuals?
6. What were the motivations that lay behind the human rights obligations in the UN
Charter and the ‘international bill of rights’?

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 Seminar 3
Theoretical Basis and Purpose of Human Rights

In this class, we look at the basis for human rights. The readings cover two related
questions. First, where do human rights come from (what are the ethical foundations of
human rights)? Second, why do we have them (what is their purpose/role)? On this
second point, we look specifically at the impact of the theory of liberalism.
You should be prepared to discuss the question of whether human rights have a
foundation beyond our social/political order, and what the implications of your answer are
for the strength, coherence and universality of human rights. You should also be
prepared to discuss the major tenets of liberal theory, and why these are important to a
contemporary understanding of human rights.

Essential Reading

• The idea of human rights

Hunt, Inventing Human Rights (2007), Introduction, pp. 15 - 34 (Blackboard) or
Clapham, Human Rights: A Very Short Introduction (2007), Ch. 1 pp 1 – 22
(Blackboard)

• The basis of human rights – Where do human rights come from?

Universal Declaration of Human Rights (1948)
American Declaration of Independence (1776)
French Declaration of the Rights of Man (1789)
Dembour, Who Believes in Human Rights?: Reflections on the European
Convention (2006), ch. 8, pp 232 – 271 (Blackboard)

• The purpose of human rights – Why do we have them, what are they for?
(Liberalism – the Classic Conception)
Mill, On Liberty (1859), Chapters I, III, IV
Locke, ‘Second Treatise of Government’ in Two Treatise of Government (1690 Ch.
II (State of Nature), Ch. VII (Political or Civil Society), Ch. IX (Ends of Political
Society & Government)
Berlin, ‘Two Concepts of Liberty’, in Hardy (ed.), Liberty (2002), pp. 1 – 32
(Blackboard)

Further Reading
• The basis of human rights – where do human rights come from?
Gearty, Can Human Rights Survive? (2006), Ch. 2, pp 17 - 59
Donnelly, Universal Human Rights in Theory and Practice (2nd ed, 2003), Ch. 1, pp
7 - 21

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 Rorty, ‘Human Rights, Rationality and Sentimentality’, in Shute and Hurley (eds),
On Human Rights (1993), pp. 111-134
Ignatieff, ‘Human Rights as Idolatry’, in Ignatieff and Gutman (eds), Human Rights
as Politics and Idolatry (2001), pp. 53- 98

• The purpose of human rights – Why do we have them, what are they for?
(Liberalism – the Classic Conception)
Douzinas, The End of Human Rights (2000), Part I, pp. 1 - 109.
De Ruggiero, The History of European Liberalism (1959), Part II, Ch. 1 pp 347 –
369 (Blackboard)
Shklar, ‘The Liberalism of Fear’, in Rosenblum (ed), Liberalism and the Moral Life
(1989), pp 21 - 38 (Blackboard)

Questions for discussion

1. What is the foundation for human rights? Where do they come from? How
have different scholars attempted to answer this question?
2. What is the difference between a ‘foundationalist’ account of human rights and
a ‘constructivist’ account. Name different theorists who have proposed these
types of theories.
3. What problems are raised by the lack of a foundation for human rights? Can
the lack of a foundation actually enhance human rights in any way?
4. What is the importance of Liberalism as a theory of human rights?
5. What are the main points of a liberal theory of human rights?
6. How flexible is the concept of liberty? (Consider the different views of Mill,
Locke, Berlin, Shklar, and de Ruggiero).
7. Look at the main human rights covenants (ICCPR, ICESCR, UDHR). Are they
‘liberal’ rights documents?

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 Seminar 4
Critiquing Human Rights

Theories can provide tools to critique human rights, as well as foundations and
justifications. In this class, we discuss some influential critiques of the classical
conception of human rights and evaluate the strength, validity, and impact of the
criticisms.
We will focus on critical legal studies/Third World critiques, feminist legal studies, and
utilitarianism. Below you will also find some sources to pursue for independent reading,
and to illustrate that the selected topics do not cover the field of human rights critique.
You should aim for an understanding of these critiques that enables you to apply their
insights to the cases and commentary you will study for the purposes of this unit as a
whole.

Essential Reading

• Feminist Legal Theory

Olympe De Gouge, Declaration of the Rights of Women (1791)
Charlesworth and Chinkin, The Boundaries of International Law: A Feminist
Analysis (2000), pp. 201 – 229
Palmer, ‘Feminism and the Promise of Human Rights: Possibilities and
Paradoxes’, in James and Palmer (eds), Visible Women: Essays on Feminist Legal
Theory and Political Philosophy (2002), Ch 4, pp. 91 - 115 (Blackboard)

• Critical Legal Studies / Third World Critiques

David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’
(2001) European Human Rights Law Review 245 [or in Kennedy, Dark Sides of
Virtue, (2004) Ch. 1]
Mutua, ‘Savages, Victims and Saviors: The Metaphor of Human Rights’ (2001) 42
Harvard International Law Journal 201

• Utilitarianism
Mill, On Liberty (1859), Chs I, III, IV (see above, previous class)
Bentham, ‘Anarchical Fallacies’ (1816), pp 1 - 19
Waldron, ‘Security and Liberty: the Image of Balance’, (2003) 11 Journal of Political
Philosophy 191

Further Reading

Feminist Legal Theory

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 Fredman, ‘Less Equal than Others – Equality and Women’s Rights’, in Gearty and
Tomkins (eds), Understanding Human Rights (1996) pp 197 - 217
McKinnon, Only Words (1993)
Dembour, Who Believes in Human Rights: Reflections on the European
Convention (2006), Ch. 7, pp 188 - 231

Critical Legal Studies / Third World Critiques

White, ‘If you Don’t Pay you Die: On Death and Desire in the Postcolony’, in Barak-
Erez and Gross (eds), Exploring Social Rights: Between Theory and Practice
(2007), pp. 57 - 73 (Blackboard)
Duncan Kennedy ‘The Critique of Rights in Critical Legal Studies’ in Brown and
Halley (eds), Left Legalism/Left Critique (2002)

Utilitarianism
Dembour, Who Believes in Human Rights: Reflections on the European
Convention (2006), Ch. 4, pp. 68 - 113

Other important critiques of human rights

(For students wishing to pursue this topic further. Not intended for in-depth class
discussion or examination)

Marxism
Marx, ‘On the Jewish Question’ (1843)
Roth, ‘Marxian Insights for the Human Rights Project’, in Marks (ed.), International
Law on the Left: Re-examining Marxist Legacies (2008), pp. 221 - 251
Douzinas, ‘The Classical Critiques of Rights: Burke & Marx’, in Douzinas, The End
of Human Rights (2000), pp. 147 - 181

Conservativism
Burke, Reflections on the Revolution in France (1790) [classic conservativism]
Goldsmith and Posner, The Limits of International Law (2005), Ch. 4
[contemporary conservativism]

Questions for discussion

1. What are the main criticisms of ‘liberal’ human rights arising from these
readings? Do you agree or disagree with the criticisms?
2. Do you think these criticisms or scepticisms have had an impact on current
human rights activism, practice or politics? Offer some examples for
discussion.
3. Do you think the authors have identified the real problems with human
rights? If not, what do you think the real problems are?

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 Seminar 5
Sources of human rights law

The seminar will focus on a number of wider aspects and overarching concepts of
international law which are of particular importance for international human rights
obligations. These issues are: customary international law and related questions,
including the relevance of action inconsistent with a norm which is said to be customary in
assessing its status as customary international law, and the problem of the persistent
objector; the concept and relevance of jus cogens/peremptory norms; and the concept of
obligations erga omnes. The seminar will also address the question of the extent to which
the normal rules of international law in relation to reservations and interpretation apply to
human rights treaties.

Essential reading
• Custom
Military and Paramilitary Activities in and against Nicaragua, Merits, ICJ Reports
1986, p. 14, in particular paras 183–186
C. Chinkin, “Sources”, in Moeckli, Shah and Sivakumaran (eds), International
Human Rights Law (2010), ch. 5

• Treaties
Reservations
Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, ICJ Reports 1951
Vienna Convention on the Law of Treaties 1969, Article 2(1)(d) and Articles 19 –
23
Belilos v. Switzerland (App. No. 10328/83), ECtHR (1988)
Human Rights Committee, General Comment No. 24 (1994)
Kennedy v. Trinidad and Tobago (Comm. No. 845/1999), Human Rights
Committee, Admissibility decision of 2 November 1999 (read also the individual
dissenting opinion of Ando, Prafulachandra, Bhagwati, Klein and Kretzmer)

Interpretation
Vienna Convention on the Law of Treaties 1969, Articles 31-33
Golder v. United Kingdom, ECtHR (1975)
K. Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’, (2009) 42
Vanderbilt Journal of Transnational law 905

• Nature of human rights obligations: jus cogens and obligations erga omnes
Barcelona Traction, Light and Power Company, Limited (Second Phase),
Judgment of 5 February 1970, ICJ Reports 1970, p. 3, paras 33 and 34
Vienna Convention on the Law of Treaties 1969, Article 53
Legal Consequences of the Construction of a Wall in the Occupied Palestinian

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 Territory, Advisory Opinion, International Court of Justice, 9 July 2004, in particular
paras 154– 160
Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant:
The Nature of the General Legal Obligation Imposed on States Parties to the
Covenant (2004)
F. Mégret, “Nature of Obligations”, in Moeckli, Shah and Sivakumaran (eds),
International Human Rights Law (2010), ch. 6
D. Shelton, “International Law and ‘Relative Normativity’”, in Evans (ed.),
International Law (3rd ed., 2010), ch. 6 (Blackboard)
A. Bianchi, ‘Human Rights and the Magic of Jus Cogens’, EJIL, vol. 19 (2008), 491

Further reading
Reservations
Jacobs, White & Ovey: The European Convention on Human Rights (5th ed.
2010), ch. 5
C. Redgwell, ‘Universality or Integrity? Some Reflections on Reservations to
General Multilateral Treaties’, 64 (1993) BYIL 245
R. Goodman, ‘Human Rights Treaties, Invalid Reservations and State Consent’, 96
(2002) AJIL 531
R. Baratta, ‘Should Invalid Reservations to Human Rights Treaties Be
Disregarded?,’ (2000) 11 EJIL 413
L. Helfer, ‘Overlegalizing Human Rights: International Relations Theory and the
Commonwealth Caribbean Backlash Against Human Rights Regimes’, (2002) 102
Columbia Law Review 1832

Interpretation
Jacobs, White & Ovey: The European Convention on Human Rights (5th ed.
2010), ch. 6
A. Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the
Recent Jurisprudence of the European Court of Human Rights’, (2004) 14 EJIL
529
A. Roberts, ‘Traditional and Modern Approaches to Customary International Law: A
Reconciliation’, (2001) 94 AJIL 757
M. Toufayan “Human rights treaty interpretation: A postmodern account of its claim
to ‘speciality’”, (2005) 2 Centre for Human Rights and Global Justice Working
Papers Series 1
G. Letsas, A Theory of Interpretation of the European Convention on Human
Rights (2007), ch. 3

Nature of obligations
B. Simma, ‘Bilateralism and community interest in the law of State responsibility,’ in
Y. Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of
Shabtai Rosenne (1989)

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 B. Simma and P. Alston, ‘The Sources of Human Rights Law: Custom, Jus
Cogens, and General Principles’, (1992) 12 Australian Yearbook of International
Law 82
A. Pellet, “‘Human rightism’ and International Law”, Gilberto Amado Memorial
Lecture, New York, 18 July 2000
Prosecutor v. Furundžija (Case No. IT-95-17/1), ICTY Trial Chamber, Judgment of
10 December 1998, paras. 131 – 164
ILC Articles on State Responsibility: Arts 40 and 41 and Commentary thereto (jus
cogens); Art. 48 (1)(b) and Commentary thereto; see also the Commentary to
Article 25, para. 18 (erga omnes)
For discussion of the notions of jus cogens and obligations erga omnes in the
context of the ILC’s Articles see the various contributions to the Symposium in
European Journal of International Law, vol. 13(5) (2002), pp. 1053–1257, in
particular those by Sicilianos, Wyler, Tams, Scobbie and Klein.
Regina v. Bow Street Magistrate, ex parte Pinochet Ugarte (No. 3), [1999] 2 All ER
97, in particular per Lord Browne-Wilkinson, at pp. 108–114
A. D’Amato, ‘It’s a Bird, it’s a Plane, it’s Jus Cogens’, Connecticut Journal of
International Law, vol. 9 (1990), p. 1

Questions for discussion

1. How does one determine whether a particular human rights obligation forms
part of customary international law? Can a norm contained in a treaty also be a
customary rule of international law?
2. How do human rights obligations differ from the other obligations binding on
States in international law? In particular, how do they differ from the obligations
concerning the treatment of aliens (cf. Seminar 2)?
3. What does it mean to say that a norm is jus cogens? Which human rights
norms have this status? What is the effect of this status on the norm
concerned, and its relationship to other norms of international law?
4. What are obligations erga omnes and which human rights obligations fall into
this category? How do such obligations differ from other obligations in
international law? What are the consequences of a breach of an obligation erga
omnes? What are the consequence of the Court’s holding in The Wall that not
only are many rules of international humanitarian law customary, but they also
operate erga omnes?
5. What are reservations to treaties? What are the relevant international legal
principles governing their validity? What are the consequences of invalid
reservations? Are these principles different in the case of human rights
treaties? Should they be?
6. What factors do you think are important in interpreting international human
rights treaties? Are those factors different to those governing the interpretation
of other treaties?

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 Seminar 6
Universal human rights instruments and mechanisms for enforcement

In this seminar we shall go through the United Nations machinery for the protection of
human rights. We will go through the differences between the charter-based and treaty-
based system and the recent UN reforms that established a new body, the Human Rights
Council, to replace the previous UN Human Rights Commission. You should be familiar
with the general characteristics of the UN treaty-based system and be able to highlight the
differences between the Human Rights Council and the former Commission.

(1) Overview

Essential reading

• Charter of the United Nations (1945), Preamble and Articles 1, 2, 55, 56, 62 and 68
• “International Bill of Rights”:
o Universal Declaration of Human Rights (UDHR) (1948)
o International Covenant on Civil and Political Rights (ICCPR) (1966)
o International Covenant on Economic, Social and Cultural Rights (ICESCR)
(1966)

An overview of the core human rights treaties adopted under the auspices of the United
Nations is available on the website of the UN High Commissioner for Human Rights, at
http://www2.ohchr.org/english/law/index.htm#core. Browse the text of the other principal
treaties and their Protocols in order to acquire familiarity with their content and structure:
• International Convention on the Elimination of All Forms of Racial
Discrimination (CERD) (1965)
• Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) (1979)
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT) (1984)
• Convention on the Rights of the Child (CRC) (1989)

M. Schmidt, “United Nations”, in Moeckli, Shah and Sivakumaran (eds), International

Human Rights Law (2010), ch. 18

Further reading
Steiner, Alston & Goodman, International Human Rights in Context (3rd ed., 2007), pp.
133–148 (on the origins of the human rights provisions in the UN Charter and the
Universal Declaration)

15
P. Alston, The United Nations and Human Rights (1992)
T. Farer, ‘The United Nations and Human Rights: More than a Whimper Less than a
Roar’, Human Rights Quarterly, vol. 9 (1987), 550

(b) UN Charter-based system

• Browse the website of the Human Rights Council, at
http://www.ohchr.org/english/bodies/hrcouncil/ for an overview of the mandate
of the Council and of its procedure
• General Assembly Resolution 60/251 of 5 March 2006 (establishing the Human
Rights Council)
• Browse the website of the UN High Commissioner for Human Rights, at
http://www.ohchr.org/EN/Pages/WelcomePage.aspx

Essential reading
Steiner, Alston & Goodman, International Human Rights in Context (3rd ed., 2007),
Ch. 9
N. Ghanea, ‘From UN Commission on Human Rights to UN Human Rights Council:
One step forwards or two steps sideways?’, ICLQ, vol. 55 (2006), pp. 695-705

Further reading
Y. Terlingen, “The Human Rights Council: A New Era in UN Human Rights Work?”,
Ethics & International Affairs, vol. 21 (2007), pp. 167–178
K. Boyle, “The United Nations Human Rights Council: Origins, Antecedents, and
Prospects”, in K. Boyle (ed.), New Institutions for Human Rights Protection (OUP,
2009), ch. 1, pp. 11-48
N. Rodley, “The United Nations Human Rights Council, Its Special Procedures,
and Its Relationship with the Treaty Bodies: Complementarity or Competition?”, in
K. Boyle (ed.), New Institutions for Human Rights Protection (OUP, 2009), ch. 2,
pp. 49-74
N. Rodley, ‘The Evolution of the United Nations Charter-Based Machinery for the
Protection of Human Rights’, (1997) EHRLR 4 [on the UN Human Rights
Commission]

(b) UN Treaty-Based System

Essential reading
• General
Steiner, Alston & Goodman, International Human Rights in Context (3rd ed., OUP,
2007), pp. 918 – 924
Hamamoto, “An Undemocratic Guardian of Democracy: International Human
Rights Complaint Procedures”, 38 (2007) Victoria U. Wellington L. Rev. 199

16
 • Human Rights Committee
ICCPR, Article 2; Articles 28 to 45
(First) Optional Protocol to the ICCPR (16 December 1966)
Steiner, Alston & Goodman, International Human Rights in Context (3rd ed., OUP,
2007), pp. 844–916

• UN Committee on Economic, Social and Cultural Rights

ICESCR, Articles 2, 16 – 24
Optional Protocol to the ICESCR (2008, not yet in force)
T.J. Melish, “Introductory Note to the Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights (April 22, 2009)”, ILM, vol. 48
(2009)
C. de Albuquerque, “Chronicle of an Announced Birth: The Coming into Life of the
Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights – The Missing Piece of the International Bill of Human Rights”, Human
Rights Quarterly, vol. 32 (2010), pp. 144-178

Further reading

Human Rights Committee

M. Scheinin, “The Human Rights Committee’s Pronouncements on the Right to an
Effective Remedy: An Illustration of the Committee’s work under the Optional
Protocol”, in N. Ando (ed), Towards implementing universal human rights:
Festschrift for the twenty-fifth anniversary of the Human Rights Committee (2004),
pp. 101-116

UN Committee on Economic, Social and Cultural Rights

Steiner, Alston & Goodman, International Human Rights in Context (3rd ed., 2007),
pp. 263–312
J. Kratochvil, “Realizing a Promise: A Case for Ratification of the Optional Protocol
to the Covenant on Economic, Social and Cultural Rights”, Human Rights Briefs,
vol. 16 (2009), pp. 30
M.J Dennis and D.P. Stewart, “Justiciability of Economic, Social, and Cultural
Rights: Should There Be an International Complaints Mechanism to Adjudicate the
Rights to Food, Water, Housing, and Health?”, AJIL, vol. 98 (2004), pp. 462-515
A. Vandenbogaerde and W. Vandenhole, “The Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights: An Ex Ante
Assessment of its Effectiveness in Light of the Drafting Process”, Human Rights
Law Review, vol. 10 (2010), pp. 207-237

Other treaty-based mechanisms

W. Vandenhole, The Procedures before the UN Human Rights Treaty Bodies:
Divergence or Convergence? (2004)

17
Questions for discussion

1. What mechanisms exist at the global level to enforce human rights obligations?
How do the ‘charter-based’ and ‘treaty-based’ mechanisms compare with each
other?
2. What is the mandate of the newly established Human Rights Council? How
does it differ from the abolished UN Commission on Human Rights? Is the new
body likely to be more effective than its predecessor? What were the
shortcomings of the UN Commission?
3. What are the different procedures through which the Human Rights Committee
scrutinizes states’ conformity to their human rights obligations and give
guidance as to the nature of these obligations? What is the legal status of each
procedure?
4. To what extent are the mechanism for enforcement created by the Optional
Protocol to the ICESCR (including the right of individual complaint) comparable
to the mechanisms under the other global human rights instruments? To what
extent are questions of compliance with obligations relating to economic, social
and cultural rights justiciable?

18
 Seminar 7
Regional systems for the protection of human rights I
The European Convention

Essential reading

Browse the text of the European Convention on Human Rights (ECHR) and its
Protocols in order to acquire familiarity with their structure and content.
Read carefully:
Articles 19 – 49 ECHR
ECHR Protocol No. 14 (2004)

Resolution CM/ResDH(2004)3 on judgments revealing an underlying systemic

problem, adopted by the Committee of Ministers on 12 May 2004, at its 114th Session
Adrian Mihai Ionescu v. Romania, ECtHR, decision on admissibility of 28 June 2010

S. Greer, “Europe”, in Moeckli, Shah and Sivakumaran (eds), International Human

Rights Law (2010), ch. 20
L. Helfer, “Redesigning the European Court of Human Rights: Embeddedness as a
Deep Structural Principle of the European Human Rights Regime”, EJIL, vol. 19
(2008), p. 125
V. Colandrea, “On the Power of the European Court of Human Rights to Order
Specific Non-monetary Measures: Some Remarks in Light of the Assandize,
Broniowski and Sejdovic Cases”, HRLR, vol. 7 (2007), 396

Further Reading

R. White and C. Ovey, Jacobs, White & Ovey: The European Convention on Human
Rights (5th ed. 2010), chs 1, 2, 3 and 25
M.B. Dembour, ‘“Finishing Off” Cases: The Radical Solution to the Problem of the
Expanding ECtHR Caseload’, EHRLR, vol. 5 (2002), pp. 604
P. Leach, H. Hardman and S. Stephenson, “Can the European Court’s Pilot Judgment
Procedure Help Resolve Systemic Human Rights Violations? Burdov and the Failure
to Implement Domestic Court Decisions in Russia”, HRLR, vol. 10 (2010), p. 346
P. Leach, “Beyond the Bug River: A New Dawn for Redress Before the European
Court of Human Rights”, EHRLR, vol. 8 (2005), 147

Questions for discussion

1. What types of application can be made to the European Court of Human Rights?
2. What are the various steps that an application can go through at Strasbourg?

19
3. To what extent can the jurisdiction of the Grand Chamber be understood as an
‘appeal’?
4. What was the motivation behind the adoption of Protocol 14? What modifications
does Protocol 14 institute for a) the procedure for the process of consideration of
individual applications; b) enforcement and ensuring compliance with judgments of
the Court?
5. How is the notion of “significant disadvantage” as contained in Article 35(3)(b)
applied in practice? In what circumstances will “respect for human rights”
nevertheless require an examination of an application on the merits? What counts
as “due consideration” by a domestic tribunal?

20
 Seminar 8
Regional systems for the protection of human rights II
The Inter-American and African systems

(a) The Inter-American system

Essential reading

Read through the text of the American Declaration of the Rights and Duties of Man
and the American Convention on Human Rights (1969)
J. Pasqualucci, “The Americas”, in Moeckli, Shah and Sivakumaran (eds),
International Human Rights Law (2010), ch. 19
J.L. Cavallaro and S.E. Brewer, “Reevaluating Regional Human Rights Litigation in
the Twenty-First Century: The Case of the Inter-American Court”, AJIL, vol. 102
(2008), p. 768
G.L. Neuman, ‘Import, Export, and Regional Consent in the Inter-American Court
of Human Rights’, EJIL, vol. 19 (2008), p. 101

Further reading

J. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human

Rights (2003), Ch. 1
Steiner, Alston & Goodman, International Human Rights in Context (3rd ed., 2007),
Ch. 11, pp. 1020–1062
T. Buergenthal, ‘The Inter-American Court, Human Rights and the OAS’ (1986) 7
HRLJ 157
C. Sepulveda, ‘The Inter-American Commission on Human Rights of the OAS: 25
Years of Evolution and Endeavour’, 28 (1985) German Yearbook of International
Law 65
C. Medina, ‘The Inter-American Commission on Human Rights and the Inter-
American Court of Human Rights: Reflections on a Joint Venture’, 12 (1990) HRQ
439

(b) The African Charter system

Essential reading

Read through the text of the African Charter on Human and Peoples’ Rights (1981)
and the Protocol on the Statute of the African Court of Justice and Human Rights
(2008)

21
 H. Ghebari, “Responsibility for violations of human rights obligations: African
Mechanisms”, in Crawford, Pellet and Olleson (eds.), The Law of International
Responsibility (2010), pp. 775 (Blackboard)
C. Heyns and M. Killander, “Africa”, in Moeckli, Shah and Sivakumaran (eds),
International Human Rights Law (2010), ch. 21

Further reading

Steiner, Alston & Goodman, International Human Rights in Context (3rd ed., 2007),
Ch. 11, Section D, pp. 1062 – 1083
G. Bekker, ‘The African Court on Human and Peoples’ Rights: Safeguarding the
Interests of African States’, 51 (2007) Journal of African Law 151
A Human Rights Court for Africa, Interights Bulletin, vol. 15: 1 (2005)
M. Evans and R. Murray (eds), The African Charter on Human and People’s Rights
(2002)
R. Murray, The African Commission on Human and People’s Rights and
International Law (2000)
F. Ouguergouz, The African Charter of Human and Peoples’ Rights. A
Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa
(2003)

Questions for discussion

1. What is the legal status of the 1948 American Declaration of the Rights and Duties
of Man?
2. Who is entitled to bring a claim before the Inter-American Commission of Human
Rights? Is there a right of direct access to the Inter-American Court of Human
Rights? If not, should there be?
3. How did the Inter-American machinery for enforcing human rights obligations
develop, and how does this machinery compare with the Strasbourg model? What
political ideas associated with each region inform the different approaches taken to
enforcement as between the two? How have changes in the politics of the two
regions altered the role of each set of arrangements?
4. How does the African Charter compare with the European and Inter-American
instruments? What mechanisms exist for enforcing the obligations under the
Charter? Will the African Court ensure effective protection of human rights in
Africa?
5. What is the role of the African Union in the protection of human rights in Africa?

22
 Seminars 9 and 10
The Right to Life

The two seminars will look in detail at various aspects of the right to life. The first session
will examine the use of lethal force by State agents, the positive obligation to protect life
and the procedural obligation of investigation. The second seminar will focus on particular
controversial issues, relating to, inter alia, the death penalty; and the scope of the right to
life under international law.

International legal provisions and comments

UDHR, Article 3
ICCPR, Article 6 and 10, and Second Optional Protocol
ECHR, Article 2; Protocol No. 6; Protocol No. 13
ACHR, Article 4; Protocol to the ACHR to abolish the Death Penalty (1990)
ACHPR, Article 4
Convention on the Rights of the Child, Article 37(a)
Human Rights Committee, General Comment No. 6 on Article 6 (1982)

Essential reading

• Use of lethal force by state officials

McCann and Others v. United Kingdom, ECtHR, Judgment of 27 September 1995
Andronicou v. Cyprus, ECtHR, Judgment of 9 October 1997
Makaratzis v. Greece, ECtHR, Judgment of 20 December 2004
Nachova and others v. Bulgaria, ECtHR [GC], Judgment of 6 July 2005

• Positive obligations to protect life and investigate killings or disappearances

Osman v. United Kingdom, ECtHR [GC], Judgment of 28 October 1998
Edwards v. United Kingdom, ECtHR, Judgment of 14 March 2002
Osmanoglu v. Turkey, ECtHR, Judgment of 24 January 2008
Velasquez Rodriguez v. Honduras (Merits), I/ACtHR, Judgment of 29 July 1988
Chitay-Nech et al. v. Guatemala, I/ACtHR, Judgment of 25 May 2010
González et al. (“Cotton Field”) v. Mexico, I/ACtHR, Judgment of 16 November
2009
Marcellana and Gumanoy v. Philippines (Comm. 1560/2007), Human Rights
Committee, Views of 30 October 2008

• Abortion, euthanasia and assisted suicide

Case 2141 (United States) (“Baby boy case”), I/ACommHR, Resolution 23/81, 6
March 1981

23
 Open Door and Dublin Well v. Ireland, ECtHR, Judgment of 29 October 1992,
especially paras 64-77
Vo v. France, ECtHR [GC], Judgment of 8 July 2004
Pretty v. United Kingdom, ECtHR, Judgment of 29 April 2002

• Death penalty
Kindler v Canada (Comm. 470/1991), Human Rights Committee, Views of 30 July
1993
Judge v. Canada (Comm. 829/1998), Human Rights Committee, Views of 5 August
2002
Soering v. United Kingdom, ECtHR, Judgment of 7 July 1989
Al-Saadoon and Mufdhi v. United Kingdom, ECtHR, Judgment of 2 March 2010

Further reading

Overview
Jacobs, White & Ovey: The European Convention on Human Rights (5th ed.,
2010), ch. 8
A. Mowbray, Cases and Materials on the European Convention on Human Rights
(2nd ed., 2007), Ch. 2, pp. 77-139
S. Joseph, J. Schultz and M. Castan, The International Covenant on Civil and
Political Rights: Cases, Materials, and Commentary (2nd ed., 2005), ch. 8

Positive obligations
L.C.B. v. United Kingdom, ECtHR, Judgment of 9 June 1998
Mastromatteo v Italy, ECtHR, Judgment of 24 October 2002
Dodov v. Bulgaria, ECtHR, Judgment of 17 January 2008
Keenan v. United Kingdom, ECtHR, Judgment of 3 April 2001
Timurtas v. Turkey, ECtHR, Judgment of 13 June 2000

Death penalty
E. Neumayer, “Death Penalty Abolition and the Ratification of the Second Optional
Protocol”, International Journal of Human Rights, vol. 12 (2008), pp. 3–21
Marks and Clapham, ‘Death Penalty’ in International Human Rights Lexicon (2005)
Steiker, “Capital Punishment and American Exceptionalism”, in Ignatieff (ed)
American Exceptionalism and Human Rights (2005)
Kafantayeni and Others v Attorney General [2007] MWHC 1 (Malawi High Court,
2007)
State v. Makwanyane [1995] 1 LRC 269 (Constitutional Court of South Africa,
1995)
Roper v Simmons (2005) 543 US 551, 125 S.Ct. 1183 (US Supreme Court, 2005)

24
 Positive obligations and the socio-economic dimension of the right to life
Indigenous Community Yakye Axa Case (Paraguay), I/ACtHR, Judgment of 17
June 2005
“Street Children” (Villagrán Morales et al.) v. Guatemala (Merits), I/ACtHR,
Judgment of 19 November 1999, see in particular the dissenting opinion of Judge
Cancado Trinidade
Öneryildiz v. Turkey, ECtHR [GC], Judgment of 30 November 2004
J. Pasqualucci, “The Right to a Dignified Life (Vida Digna): The Integration of
Economic, Social and Cultural Rights with Civil and Political Rights in the Inter-
American Human Rights System”, Hastings Int’l & Comp. Law Review, vol. 31
(2008), pp. 1

Questions for discussion

1. What are the principles governing the use of lethal force by state agents? Under
what conditions is an intentional killing permissible in the course of a lawful arrest?
2. What are the principles governing the state’s duty to investigate killings or
disappearances?
3. Is there a right to have an abortion under international human rights law? What
protection does the foetus enjoy? What did the European Court decide in Vo v
France?
4. What are the grounds of the European Court’s judgment in Pretty v UK? Do you
agree that the right to life does not entail a right to die?
5. Should international human rights bodies defer to the judgment of national
authorities with respect to ethically sensitive and controversial issues such as
abortion and euthanasia?

25
 Seminar 11
Economic, Social and Cultural Rights: The Rights to Housing & Health

Economic, social and cultural rights form a large part of human rights as codified in
international law, yet they remain a contested concept. There are concerns about their
coherence and legitimacy in international human rights, as well as issues concerning
judicial enforcement. We discuss these questions with a focus on the rights to health and
housing.

Essential reading
• International legal provisions and general comments
UDHR, Articles 22-27
ICESCR
European Social Charter (Revised) (1996)
ACHPR, Articles 15-17, 21-22
Protocol No. 1 to European Convention for the Protection of Human Rights and
Fundamental Freedoms (1952), Article 2
UN Committee on ESCR, General Comment No. 3 (Nature of States Parties’
Obligations) (1990)
UN Committee on ESCR, General Comment No. 4 (Right to Housing) (1991)
UN Committee on ESCR, General Comment No. 14 (Right to the Highest
Attainable Standard of Health)

• Context and Content

Marks and Clapham, International Human Rights Lexicon (2005), ‘Health’ and
‘Housing’, pp 197 - 221
Scott, ‘Reaching Beyond (Without Abandoning) the Category of “Economic, Social
and Cultural Rights’ (1999) 21 HRQ 633

• Judicial Enforcement
Republic of South Africa v Grootboom (South African Const. Court) Case CCT
11/00
Soobramoney v Minister of Health (South African Const. Court) Case CCT 32/97
Minister of Health v TAC (South African Const. Court) Case CCT 8/02
Olga Tellis v Bombay Municipal Corp. (1987) [1985] 2 SUP SCR 51 (India).
Pieterse, ‘Eating Socioeconomic Rights: The Usefulness of Rights Talk in
Alleviating Social Hardship Revisited’, 29 HRQ (2007) 796

Further reading
International legal provisions and general comments
UN Committee on ESCR, General Comment No. 9 (Domestic Application of the
Covenant), (1998)
26
 UN Committee on ESCR, General Comment No. 7 (Forced Evictions) (1997)
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997)

Context and content

Craven, The International Covenant on Economic, Social and Cultural Rights: A
Perspective on its Development (1995), Chs 1 and 3 (Blackboard)
J. Waldron ‘Homelessness and the Issue of Freedom’ (1991) 39 UCLA Law
Review 295
Alston and Quinn, ‘The Nature and Scope of States Parties’ Obligations under the
International Covenant on Economic, Social and Cultural Rights’, 9 (1987) HRQ
156
Eide, ‘Realization of Social and Economic Rights and the Minimum Threshold
Approach’, 10 (1989) HRLJ 35
Odinkalu, ‘Analysis of Paralysis or Paralysis by Analysis? Implementing Economic,
Social and Cultural Rights Under the African Charter on Human and Peoples’
Rights’, 23 HRQ (2001) 327
Browse Bilchitz, Poverty and Fundamental Rights: The Justification and
Enforcement of Socio-Economic Rights (2007) and/or Fredman, Human Rights
Transformed: Positive Rights and Positive Duties (2008) for in depth studies in this
area of law.
Steiner, Alston & Goodman, International Human Rights in Context (2007), Ch. 4
contains a good survey of the issues on ESCRs.

Further case-law and commentary

Chameli Singh v State of Uttar Pradesh (1996) 2 SCC 549 (India)
FEANTSA v France ESCR Case No. 39/2006 (merits decision)
SERAC and CESR v Nigeria (African Commission on Human and Peoples’
Rights), Comm. No. 155/96 (2001)
Kenna, ‘Housing Rights: Positive Duties and Enforceable Rights under the
European Court of Human Rights’, 2 EHRLR (2008) 193
Ely Yamin, ‘Defining Questions: Situating Issues of Power in the Formulation of a
Right to Health under International Law’ (1996) 18 HRQ 398.

Questions for discussion

1. What are the major challenges for the justiciability of economic, social and cultural
rights? How well/poorly have courts met these challenges? Give examples.
2. Is the indivisibility of human rights a ‘self-evident truth’? Are there any normative
differences between ESCRs and CPRs?
3. What ‘is’ the right to housing? What about the right to health? How difficult is it to
define these rights, and what are the implications of the vagueness in their
definitions?

27
4. What other opportunities exist for protecting the interests at stake in social,
economic and cultural rights? Should or could these replace ‘rights talk’ about
these issues? Why or why not?

28
 Seminar 12
Human Rights and the Protection of Refugees and Asylum Seekers

Who is a refugee? What principles govern the status and rights of refugees under
international law? How successful or relevant is the current regime, and what is the
relationship between refugee law and human rights (law)?
You should be prepared to discuss the case law and the issues it raises in some depth
during this class.

Essential Reading

• Legal Provisions and Instruments

1951 Convention Relating to the Status of Refugees
UDHR Articles 13, 14 and 15
ICCPR Articles 12 and13ECHR Article 3; Protocol No. 4 to the ECHR Article 4;
Protocol No. 7 to the ECHR Article 1

• Cases
Secretary of State for the Home Department v K (FC), Fornah (K) [2006] UKHL 46
Secretary of State for the Home Department, ex parte Adan et al. [2001] 2 WLR
143
R v Secretary of State for the Home Department, ex parte Saadi and Others [2002]
UKHL 41
Saadi v United Kingdom (Merits), ECtHR [GC], Judgment of 29 January 2008

• Commentary
Feller, ‘Asylum, Migration and Refugee Protection: Realities, Myths, and the
Promise of things to Come’, IJRL, vol. 18 (2006), p. 509
Hathaway, ‘The Meaning of Repatriation’, IJRL, vol. 9 (1997), p. 551

Further reading

UNHCR ‘Handbook on Procedures and Criteria for Determining Refugee Status

under the 1951 Convention and the 1967 Protocol Relating to the Status of
Refugees’, HCR/IP/4/Rev.1, 1979 (on UNHCR’s website)
UNHCR ‘The International Protection of Refugees: Interpreting Article 1 of the
1951 Convention Relating to the Status of Refugees’ (2001) at
http://www.unhcr.org/refworld/rsd.html
Harrell-Bond, ‘Can Humanitarian Work with Refugees Be Humane?’, (2002) HRQ
24

29
 Browse Goodwin-Gill & McAdam, The Refugee in International Law (3rd ed., 2007)
and/or Hathaway, The Rights of Refugees under International Law (2005) for
comprehensive references and commentary

Questions for discussion

1. How well do you think the framework of the Refugee Convention is able to deal
with current forced migration issues? (Consider this question in light of the
historical factors motivating the adoption of the convention) What other frameworks
for protection might work better?
2. Do you think Hathaway’s analysis linking temporary protection and a human rights
approach to refugee protection is compelling? What issues or problems does it
raise?
3. Can the protection ground of ‘particular social group’ absorb categories of refugees
not accounted for when the Convention was negotiated? How convincing do you
find the reasoning on this issue in the cases?
4. What interests do the courts appear to be balancing in these cases? How well do
the courts strike this balance?

30
 Seminar 13
Religion and Human rights

International legal provisions

UDHR, Articles 18 and 19

ICESCR, Article 15
ICCPR, Articles 18, 19, 27
ECHR, Article 9 (and see Articles 10, 11, 14)
Protocol No. 1 to the ECHR, Article 2
ACHPR, Article 8
ADHR, Article III; ACHR, Article 12

Essential reading
Human Rights Committee, General Comment No. 22 (Freedom of Thought,
Conscience and Religion)
Steiner, Alston and Goodman, International Human Rights in Context (2007), pp.
616 – 639
Kjeldsen, Busk Madsen and Pedersen v. Denmark, ECtHR, Judgment of 7
December 1976
Kokkinakins v. Greece, ECtHR, Judgment of 25 May 1993
Phull v. France, ECtHR, Admissibility decision of 11 January 2005
Folgerø and Others v. Norway, ECtHR [GC], Judgment of 29 June 2007
Leyla Sahin v Turkey, ECtHR [GC], Judgment of 10 November 2005 (excerpted in
Steiner, Alston and Goodman; note however dissenting opinions)
Dogru v. France, ECtHR, Judgment of 4 December 2008
Lautsi v. Italy, ECtHR, Judgment of 3 November 2009 (referred to the Grand
Chamber on 1 March 2010; pending (a hearing was held on 30 June 2010))

Further reading
Steiner, Alston and Goodman, International Human Rights in Context (2007), pp.
569-615
N. Choudhury, “From the Stasi Commission to the European Court of Human
Rights: L'Affaire Du Foulard and the Challenge of Protecting the Rights of Muslim
Girls”, Columbia Journal of Gender and Law, vol. 16 (2007)
S. Borelli, “Of Veils, Crosses and Turbans: The European Court of Human Rights
and Religious Practices as a Manifestation of Cultural Diversity” (conference paper,
2010, available on Blackboard)
J. Weiler, “Lautsi: Crucifix in the Classroom Redux”, EJIL, vol. 21 (2010), p. 1

31
 S. Mancini, “The Crucifix Rage: Supranational Constitutionalism Bumps Against
the Counter-Majoritarian Difficulty”, European Constitutional Law Review, vol. 6
(2010), pp. 6
“Unveiling the Real Issue: Evaluating the European Court of Human Rights’
Decision to Enforce the Turkish Headscarf Ban in Leyla Sahin v. Turkey”, Cornell
Law Review, vol. 91 (2005), 129
Marks & Clapham, ‘Universality’ ‘Culture’ and ‘Religion’ in International Human
Rights Lexicon (2005)

Questions for discussion

1. How successful has the European Court of Human Rights been in resolving the
tensions arising from the universalism of human rights, religious freedoms and
‘multiculturalism’? What do the judgments reveal about the weight the Court
attaches to the human rights that appear in conflict?
2. Should States, in particular those with a strong Catholic tradition and history,
have the right to display crucifixes in classrooms?
3. Should the State have the right to ban students from wearing religious symbols
in school? Should the State have the right to ban any person from wearing
religious symbols in public?

32
 Seminar 14
Freedom of expression

Note: while reading the cases below, you should bear in mind the general conditions
under which the state can legitimately interfere with freedom of expression, under Article
19 ICCPR and 10 ECHR.

International legal provisions

UDHR, Article 19
ICCPR, Articles 19 and 20
ECHR, Article 10
ACHR, Article 13
ACHPR, Article 9

Essential reading

• General
Human Rights Committee, General Comment No. 10 on Article 19 (1983)
Johannesburg Principles on National Security, Freedom of Expression and Access
to Information, Freedom of Expression and Access to Information (1996)
K. Boyle, “Thought, expression, association and assembly”, in Moeckli, Shah and
Sivakumaran (eds), International Human Rights Law (2010), ch. 12

• Political Expression
Lingens v. Austria, ECtHR, Judgment of 8 July 1986

• Artistic Expression / Public Morals

Handyside v. United Kingdom, ECtHR, Judgment of 7 December 1976
Otto-Preminger Institut v. Austria, ECtHR, Judgment of 20 September 1994
Wingrove v. United Kingdom, ECtHR, Judgment of 25 November 1996

• Religious Speech
Murphy v. Ireland, ECtHR, Judgment of 10 July 2003
I.A. v. Turkey, ECtHR, Judgment of 13 September 2005
Giniewski v. France, ECtHR, Judgment of 31 January 2006

• Hate Speech
Jersild v. Denmark, ECtHR, Judgment of 23 September 1994)
Faurisson v. France (Comm. No. 550/1993), Human Rights Committee, Views of 8
November 1996
33
 • Freedom of the press
Sunday Times v. United Kingdom, ECtHR, Judgment of 26 April 1979
Steel and Morris v. United Kingdom, ECtHR, Judgment of 25 February 2005
Cumpănă and Mazăre v. Romania, ECtHR [GC], Judgment of 17 December 2004

Further reading

Political expression
Oberschlick v. Austria, ECtHR, Judgment of 23 May 1991
Wirtschafts-Trend Zeitschriften-Verlags GMBH v. Austria (No. 3), ECtHR,
Judgment of 13 December 2005

Religious speech
Soulas and other v. France, ECtHR, Judgment of 10 July 2008 [in French only]

Freedom of the press

Sunday Times v. United Kingdom (No. 2), ECtHR, Judgment of 26 November 1991
(compare with Observer and Guardian v United Kingdom, ECtHR, Judgment of 26
November 1991)
Flinkkila and others v. Finland, ECtHR, Judgment of 6 April 2010
Stoll v. Switzerland, ECtHR [GC], Judgment of 10 December 2007

See also the materials excerpted in Steiner, Alston and Goodman, International
Human Rights in Context (2007), pp. 639-668 and Joseph, Shultz and Castan,
International Covenant on Civil and Political Rights (2nd ed., 2005), ch. 18
Mahoney, ‘Universality versus Subsidiarity in Strasbourg Case Law on Free
Speech: Explaining Some Recent Judgments’, EHRLR, vol. 4 (1997), p. 364
Geddis, ‘You Can’t Say “GOD” on the Radio: Freedom of Expression, Religious
Advertisement and the Broadcast Media after Murphy v Ireland’, EHRLR, vol. 9
(2004), p. 181
Letsas, A Theory of Interpretation of the ECHR (2007), Introduction and Chs 4-6

Questions for discussion

1. The European Court takes a wide view as to what qualifies as protected

‘expression’, while at the same time recognising extensive bases which may justify
an interference. Do you agree with this approach?
2. Why do liberals consider free speech to be a particularly important right?
3. Should artistic expression and religious speech be subject to greater limitations
than other forms of speech?

34
4. What is the ‘margin of appreciation’ that states enjoy in regulating speech?
5. What did the European Court decide in Murphy v. Ireland? How far does the ‘right
to shock, offend and disturb’ (Handyside) extend? Is there a right not to be
offended in one’s religious beliefs?
6. Discuss whether in its application of Article 10 of the European Convention on
Human Rights, the Court has given undue emphasis to the freedom of the press in
cases where it comes into conflict with other interests.
7. When may restrictions on speech be necessary in the interests of national
security? Discuss with reference to hate speech and speech ‘glorifying’ terrorism.

35
 Seminar 15
Right to a Fair Trial

The seminar will give an overview of the principal aspects of the right to a fair trial. The
focus will be on the jurisprudence of the European Court which has elaborated the most
detailed case-law in that regard, although the approach of other tribunals will also be
taken into account.

International legal provisions

UDHR Articles 10 and 11;
ICCPR Article 14
ECHR Article 6
ACHR Article 8
ACHPR Article 7

Essential readings
NB: the readings in this section are intended to provide an overview of the jurisprudence
of the Human Rights Committee and the ECtHR. Discussion in class will focus on some of
the cases listed in the further readings section; it is accordingly recommended that you
read or at least skim as many of them as you are able.

Joseph, Schultz and Castan, International Covenant on Civil and Political Rights
(2nd ed., 2004), Ch. 14
Mowbray, Cases and Materials on the European Convention on Human Rights (2nd
rev. ed., 2007), Ch. 8
Human Rights Committee, General Comment No. 32: Article 14: Right to equality
before courts and tribunals and to a fair trial (2007)

Further readings
Dispute over civil rights and obligations / determination of criminal charges
Golder v. United Kingdom, ECtHR, Judgment of 21 February 1975
Engel v. Netherlands, ECtHR, Judgement of 8 June 1976
Pellegrin v. France, ECtHR, Judgment of 8 December 1999
Emine Araç v. Turkey, ECtHR, Judgment of 23 September 2008 (contrast with the
position of the European Commission in André Simpson v. the United Kingdom
(App. no. 14688/89, decision of 4 December 1989)

Right of access to a court

Golder v. United Kingdom (above)
Airey v. Ireland, ECtHR, Judgment of 9 October 1979
Al-Adsani v. United Kingdom, ECtHR, Judgment of 21 November 2001

36
Equality of arms
Steel and Morris v. United Kingdom, ECtHR, Judgment of 15 February 2005

Fair and independent tribunal

Marlem Carranza Alegre v. Peru (Comm. No. 1126/2002), Human Rights
Committee, Views of 28 October 2005
Kyprianou v. Cyprus, ECtHR [GC], Judgment of 15 December 2005

Reasonable length of proceedings

Bottazzi v. Italy, ECtHR [GC], Judgment of 28 July 1999
Scordino v. Italy (no. 1), ECtHR [GC], 29 March 2006
Cocchiarella v. Italy, ECtHR [GC], 29 March 2006
Daddi v. Italy, ECtHR, Admissibility decision of 2 June 2009 [in French only]

Questions for discussion

1. What characteristics must proceedings have in order to fall within the scope of
Article 6 ECHR under its “civil” head?
2. What are the justifications underlying the “equality of arms” principle? Are any
limitations upon strict equality of arms ever justified? If so, on what basis?
3. Is there a particular duration after which the length of proceedings will result in
a breach of the reasonable time requirement under Article 6(1) ECHR?
4. Are criminal proceedings before military courts ever permitted in relation to
non-military personnel? What particular problems are raised by the
mechanisms of military justice?
5. Is the right of access to a court absolute? In what circumstances, and on what
basis can the right be limited?

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 Seminar 16
Liberty and Security

This seminar examines the right to liberty, focussing in particular on restrictions arising in
the context of counter-terrorism measures, and the extent to which the right may be the
subject of derogation on the basis of the existence of a state of emergency.

(1) General
International legal provisions
UDHR, Articles 3 and 9
ICCPR, Articles 9 and 10
ECHR, Article 5
ACHR, Article 7
ACHPR, Article 6

Essential reading
Human Rights Committee, General Comment No. 8 on Article 9 (1982)
Human Rights Committee, General Comment No. 21 on Article 10 (1992)
By way of introduction to the approach of the European Court of Human Rights to
Article 5 of the ECHR, read the extracts from the following cases in Mowbray,
Cases and Materials on the European Convention on Human Rights (2nd ed.,
2007), Ch. 7:
Guzzardi v. Italy
Kurt v. Turkey
Fox, Campbell and Hartley v. United Kingdom (both in relation to
permissible grounds for detention (excerpt at p. 271) and the giving of
reasons for detention (excerpt at p. 296).
Bozano v. France
Brogan v. United Kingdom
Winterwerp v. the Netherlands
See also Labita v. Italy, ECtHR [GC], Judgment of 6 April 2000

(b) The right to liberty and counter-terrorism

• European Convention
Article 15, ECHR
Ireland v United Kingdom, ECtHR, Judgment of 18 January 1978
Aksoy v Turkey, ECtHR, Judgment of 18 December 1996
A and Others v. United Kingdom (App. No. 3455/05), ECtHR [GC], 19 February
2009 (for the underlying domestic decision, see A and Others v. Secretary of State

38
 for the Home Department [2004] UKHL 56, in particular per Lord Bingham and
Lord Hoffman)
The UK “control order” cases
Secretary of State for the Home Department v. JJ [2007] UKHL 45
Secretary of State for the Home Department v. MB and AF [2007] UKHL 46
Secretary of State for the Home Department v. E [2007] UKHL 47

• Inter-American system
IACHR, Article 27
Habeas Corpus in Emergency Situations, I/ACtHR, Advisory Opinion OC-8/87 of
30 January 1987
Judicial Guarantees in States of Emergency, I/ACtHR, Advisory Opinion OC-9/87
of 6 October 1987
I-A Commission on Human Rights, Detainees at Guantanamo Bay, Cuba –
Request for Precautionary Measures (12 March 2002)
I-A Commission on Human Rights, Resolution No. 2/06 on Guantanamo Bay
Precautionary Measures (28 July 2006)
S. Borelli, ‘Casting light on the legal black hole: international law and detentions
abroad in the “war on terror”’, IRRC (2005), No. 857, p. 39

Further reading

C. Macken, ‘Preventive detention and the right to personal liberty and security
under Article 5 ECHR’, International Journal of Human Rights, vol. 10 (2006), p.
195 – 217
See also Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights (1984)
‘Greek Case’ (Denmark, Norway, Sweden and the Netherlands vs. Greece) (App.
Nos 3321-24/67), Report of the European Commission of Human Rights, 5
November 1969
F. Ní Aoláin, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin
of Appreciation Doctrine in the Context of Article 15 of the ECHR’, 23 (2001) HRQ
625
K. Boyle, ‘Terrorism, State of Emergencies and Human Rights’, in W Benedek and
A Yotopoulos-Marangopoulos (eds), Anti-Terrorist Measures and Human Rights
(Martinus Nijhoff, 2004), pp. 95 – 116
A. Chirinos, ‘Finding the Balance between Liberty and Security: The Lords’
Decision on Britain’s Anti-Terrorism Act’, Harvard Human Rights Journal, vol. 18
(2005), available at
http://www.law.harvard.edu/students/orgs/hrj/iss18/chirinos.shtml
O. Gross and F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory
and Practice (2006), in particular Chapter 5, ‘International human rights and
emergencies’ and Chapter 7, ‘Terrorism, emergencies and international responses
to contemporary threats’

39
 C. Gearty, ‘11 September 2001, Counter-terrorism, and the Human Rights Act’,
Journal of Law and Society, vol. 32 (2005), pp. 18–33
Paris Minimum Standards of Human Rights Norms in a State of Emergency
(International Law Association, 1984), reprinted in AJIL, vol. 79 (1985), pp. 1072–
1081
R. Higgins, ‘Derogations under Human Rights Treaties’, British Yearbook of
International Law, vol. 48 (1977), p. 281
B.D. Tittemore, ‘Guantanamo Bay and the Precautionary Measures of the Inter-
American Commission on Human Rights: A Case for International Oversight in the
Struggle Against Terrorism’, HRLR, vol. 6 (2006), pp. 378 – 402

Questions for discussion

1. What is the dividing line between, on the one hand, a “mere” restriction on liberty or
freedom of movement, and, on the other, a deprivation of liberty?
2. Is there any distinction between the notions of ‘liberty of the person’ and ‘security of
the person’?
3. In what circumstances may a deprivation of liberty be justified? What effect can the
status of an individual (e.g. as a child, asylum seeker, etc) have in determining
whether detention is lawful?
4. What procedural safeguards are applicable to individuals deprived of their liberty?
5. What are the different ways in which obligations contained in human rights treaties
may be limited? How do the limitations operate in each case?
6. What procedural requirements must a State comply with when entering a
derogation under each of the major human rights treaties? What legal status do
these requirements have, and what legal consequence, if any, flows from non-
compliance?
7. What are the substantive conditions for validity of a derogation? Under what
conditions is a measure derogating from the State’s obligations to be regarded as
justified?

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 Seminar 17
The Prohibition of Torture and Ill-treatment

The first part of the present session provides a general overview of the prohibition of
torture and other ill-treatment under international law and its status. The second part
examines the tension between the prohibition of torture and ill-treatment and measures
taken in the context of counter-terrorism by some States, in particular following 9/11.
Issues specifically relating to transfer of individuals where there exists a risk of torture or
ill-treatment will be dealt with in Seminar 13.

International legal provisions

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (1984) (familiarize yourself with the structure and the text of the
Convention)
ICCPR, Article 7
ECHR, Article 3
ACHR, Article 5
ACHPR, Article 5

Essential reading

• General issues
Ireland v United Kingdom, ECtHR, Judgment of 18 January 1978, skim the facts
and concentrate on paras 150–187
Selmouni v. France, ECtHR, Judgment of 28 July 1999
Parnov v. Moldova, ECtHR, Judgment of 22 June 2010
Carabulea v Romania, ECtHR, Judgment of 13 July 2010
Miguel Castro-Castro Prison v. Peru, I/ACtHR, Judgment of 25 November 2006
Committee Against Torture, General Comment No. 2. Implementation of Article 2
by States Parties (2008)
Prosecutor v. Furundzija, Case no. IT-95-17/1-T10, ICTY, Trial Chamber,
Judgment of 10 December 1998, skim the facts and read paras 131 – 257
Gäfgen v. Germany, ECtHR, Judgment of 1 June 2010

• The prohibition of torture, counter-terrorism and national security

Public Committee Against Torture v. Israel (case HCJ 5100/94), Supreme Court of
Israel sitting as the High Court of Justice, Judgment of 6 September 1999
A and others v. Secretary of State for the Home Department (‘Torture evidence
case’) [2005] UKHL 71
J. Dratel, ‘The Legal Narrative’, in K. Greenberg and J. Dratel (eds), The Torture
Papers: The Road to Abu Ghraib (2005), pp. xxi-xxiii [alternatively, have a look at
the various memoranda issued by the Bush Administration and published at

41
 http://www.nytimes.com/ref/international/24MEMO-
GUIDE.html?_r=1&scp=1&sq=torture%20memos&st=cse]
President Barack Obama, Executive Order - Ensuring Lawful Interrogations, 22
January 2009
A. Dershowitz, ‘Is There a Torturous Road to Justice?’, LAtimes.com, 8 November
2001
J. Waldron, Torture, Terror and Trade-Offs: Philosophy for the White House
(2010), ch. 1

Further Reading
J. Waldron, Torture, Terror and Trade-Offs: Philosophy for the White House
(2010), chs 2-10
S. Toope and J. Brunée, Legitimacy and Legality in International Law (2010), ch. 5
E de Wet, ‘The Prohibition of Torture as an International Norm of Jus Cogens and
its implications for National and Customary Law’, (2004) 15 EJIL 97
E Benvenisti, ‘The Role of National Courts in Preventing Torture of Suspected
Terrorists’, 8 (1997) EJIL 596
S. Marks & A. Clapham, International Human Rights Lexicon (2005), pp. 359–383
Steiner, Alston and Goodman (eds), International Human Rights Law in Context
(3rd ed., 2007), Ch. 3, Section D “Torture Revisited”, pp. 222-262

Questions for discussion

1. What is the status of the prohibition against torture in international law?

2. What are the major differences between the UN Convention Against Torture and
the relevant provisions of the ECHR and ICCPR relating to torture?
3. What is the relevance of the distinction between torture and other forms of ill-
treatment under international law?
4. As a matter of international law, are there any circumstances in which States may
lawfully torture individuals?
5. In light of revelations of torture and other ill-treatment of detainees in the context of
the so-called ‘war on terror’, to what extent is it still possible to claim that the
prohibition against torture constitutes jus cogens?
6. To what extent is it legitimate for a State to rely on evidence obtained by torture
carried out by its domestic authorities, or by the agents of a third State?

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 Seminar 18
Protection against Wrongful Transfers

(a) Protection against refoulement in international refugee law

NB: In preparation for this part of the seminar review quickly the readings and/or your
notes for Seminar 13. Discussion in class will assume that you are familiar with the
definition of “refugee” under the 1951 Convention.

Essential Reading

UDHR, Article 14
Convention relating to the Status of Refugees 1951, Articles 1 and 33; Protocol
relating to the Status of Refugees 1967, Article 1
E. Lauterpacht and D. Bethlehem, ‘Legal Opinion: The Scope and Content of the
Principle of Non-refoulement’ (2003)

(b) Protection against wrongful removal under IHRL

Essential reading

• International legal provisions

UN Convention against Torture, Article 3
American Convention on Human Rights, Article 22

• General principles
Committee Against Torture, General Comment No. 1 on the implementation of
article 3 of the Convention in the context of article 22 (1997)
Soering v. United Kingdom, ECtHR, judgment of 7 July 1989
H.L.R. v. France, ECtHR, judgment of 22 April 1997, establish facts, read paras
40–44
Chahal v United Kingdom, ECtHR, judgment of 15 November 1996
D. v. United Kingdom, ECtHR, judgment of 2 May 1997, just skim facts and read
paras 46 – 54
T.I. v United Kingdom, ECtHR, admissibility decision of 7 March 2000
Saadi v. Italy (App. No. 37201/06), ECtHR [GC], judgment of 28 February 2008
Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant:
The Nature of the General Legal Obligation Imposed on States Parties to the
Covenant (2004), just para. 12

43
 Human Rights Committee, General Comment No. 20 (Article 7) (1992), just para. 7

• Diplomatic assurances
Memorandum of Understanding between the United Kingdom and the Kingdom of
Jordan Regulating the Provision of Undertakings in Respect of Specified Persons
Prior to Deportation (10 August 2005)
Statement of the UN Special Rapporteur against Torture, 23 August 2005, reported
in ‘“Diplomatic Assurances” Not an Adequate Safeguard for Deportees, UN Special
Rapporteur against Torture Warns’, UN Press Release, 23 August 2005
Committee against Torture, Agiza v. Sweden, Comm. No. 233/2003, Views of 24
May 2005, UN doc. CAT/C/34/D/233/2003
Human Rights Committee, Alzery v. Sweden, Comm. No. 1416/2005, Views of 25
Oct. 2006, UN doc. CCPR/C/88/D/1416/2005
RB (Algeria) v Secretary of State for the Home Department; U (Algeria) v Secretary
of State for the Home Department; Othman v Secretary of State for the Home
Department [2009] UKHL 10
Babar Ahmad and Others v. United Kingdom, ECtHR, decision on admissibility of 6
July 2010 (decision on the merits pending)

Questions for discussion

1. What limits on the protection against refoulement exist under international refugee
law?
2. How may a State’s international human rights obligations be relevant when it
transfers an individual to a third State?
3. What elements are relevant in ascertaining whether there exists a risk of violation
of fundamental human rights in the requesting/receiving State?
4. How do the protections against transfer under international human rights law
overlap with those under refugee law? Do the standards of international human
rights law effectively obviate the ‘national security’ exception under refugee law?
5. In what circumstances is it legitimate for a State to rely on diplomatic assurances
from another State that an individual will not be subjected to particular treatment if
returned?

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 Seminar 19
Protection of individuals in times of armed conflict

The seminar examines the protection of individuals in situations of armed conflict. In

addition to an overview of the major characteristics and rules of international humanitarian
law, we will examine the relationship between international humanitarian law and
international human rights law.

(a) Overview of international humanitarian law (IHL)

Essential reading
C. Greenwood, ‘The Law of War (International Humanitarian Law)’, ch. 26 in M. Evans
(ed.), International Law (3rd ed., 2010)
On the scope of application of the principal instruments of IHL, see:
Geneva Conventions of 12 August 1949, Common Articles 1 and 2
I Protocol Additional to the Geneva Conventions of 12 August 1949, Article 1
(in particular para. 4)
Geneva Conventions of 12 August 1949, Common Article 3
II Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 1
and 2
[The text of the Geneva Conventions, the Additional Protocols and the
Commentaries thereto is available at
http://www.icrc.org/ihl.nsf/CONVPRES?OpenView)]

(b) Relationship between IHL and international human rights law

Essential reading

Nuclear Weapons Advisory Opinion, International Court of Justice, ICJ Reports

1996, p. 226, in particular paras 24-25
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, ICJ Reports 2004, p. 136, paras 104-106
Coard v. United States, Inter-American Commission on Human Rights, Report No.
109/99, 29 September 1999
Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant:
The Nature of the General Legal Obligation Imposed on States Parties to the
Covenant, (2004), just para. 11
N. Lubell, ‘Challenges in Applying Human Rights Law to Armed Conflict’, IRRC,
issue 860 (2005), p. 737

45
Further reading

Turku Declaration on Minimum Humanitarian Standards (1990)

J.A. Frowein, ‘The Relationship Between Human Rights Regimes and Regimes of
Belligerent Occupation’, (1998) Israel Yearbook of Human Rights 1
K. Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in
Contemporary Armed Conflict’, 98 (2004) AJIL 1
For a critique of the current relevance of the traditional categories, see R.
Ehrenreich Brooks, ‘War Everywhere: Human Rights, National Security, and the
Law of Armed Conflict in the Age of Terrorism’, University of Pennsylvania Law
Review, vol. 153 (2004), pp. 675–761

Questions for discussion

1. How are individuals protected during periods of armed conflicts under international
humanitarian law?
2. What are the main sources of IHL?
3. In what circumstances does IHL apply? To whom does it apply?
4. Are international human rights law and international humanitarian law mutually
exclusive regimes of law, in terms of the circumstances in which they apply?
5. The ICJ in its Advisory Opinions on Legality of the Threat or Use of Nuclear
Weapons and The Wall refers to the principle of lex specialis. What is the principle
of lex specialis? When does it apply?

46
 Seminar 20
Extraterritorial Applicability of Human Rights Obligations

International legal provisions

ICCPR, Article 2(1)
ECHR, Article 1
ACHR, Article 1

Essential reading

ICCPR
Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant:
The Nature of the General Legal Obligation Imposed on States Parties to the
Covenant (2004), just para. 10
Lopez Burgos v Uruguay (Comm. No. 52/1979), Human Rights Committee, Views
of 29 July 1981, skim the facts and read para 12.3
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 9 July 2004, paras. 103, 104, 107 – 113

Inter-American system
Coard v. United States, I/ACommHR, Report No. 109/99, 29 September 1999
Armando Alejandre Jr. and Other v. Cuba (“Brothers to the Rescue”), I/ACommHR,
Report No. 86/99, 29 September 1999

ECHR
Loizidou v. Turkey (Preliminary Objections), ECtHR, 23 March 1995, paras 62–4
Cyprus v Turkey, ECtHR [GC], 10 May 2001, paras 77–8
Bankovic v. Belgium, ECtHR [GC], decision on admissibility of 12 December 2001,
paras 59–82
Ilascu and Others v. Moldova and Russia, ECtHR [GC], decision on admissibility of
4 July 2001
Öcalan v. Turkey (App. no. 46221/99), ECtHR [GC], 12 May 2005, para. 91
Issa and Others v. Turkey (Merits) (App. no. 31821/96), ECtHR, 16 November
2004, paras 65–82
Al-Saadoon and Mufdhi v. United Kingdom, ECtHR, decision on admissibility of 30
June 2009
For an application of the principles in the domestic context, see Al Skeini v.
Secretary of State for Defence [2007] UKHL 26 (currently pending before the
ECtHR)

47
Further reading

H. King, “The Extraterritorial Human Rights Obligations of States”, HRLR, vol. 9

(2009), p. 524
R. Wilde, ‘The ‘Legal Space’ or ‘Espace Juridique’ of the European Convention on
Human Rights: Is it Relevant to Extraterritorial State Action?’, EHRLR, vol. 2
(2005), p. 115
T. Thienel, “The ECHR in Iraq: The Judgment of the House of Lords in R (Al-
Skeini) v. Secretary of State for Defence”, 6 (2008) Journal of International
Criminal Justice 115
F. Coomans and M. Kamminga (eds.), Extraterritorial Application of Human Rights
Treaties (2004)

Questions for discussion

1. What is the significance of the distinction between ‘territory’ and ‘jurisdiction’ in

international human rights law?
2. What is the extent of a State’s obligations under international human rights law
regarding the treatment of individuals outside its own territory?
3. How is the exercise of extra-territorial ‘jurisdiction’ defined? When reading the
cases, consider what underlying policy concerns operate when determining
whether or not a state’s human rights obligations should extend beyond its own
territory.
4. What are the merits, if any, of the concept of ‘espace juridique’ suggested by
the European Court of Human Rights in Bankovic?

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Session 21
Revision

49