Are Human Rights Law Rules “Special”? Study on Interactions Between Human Rights Law Rules and Other International Law Rules
© Springer International Publishing Switzerland 2015Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_3
3. Are Human Rights Law Rules “Special”? Study on Interactions Between Human Rights Law Rules and Other International Law Rules
University Paris West Nanterre La Défense, Nanterre, France
The influence of Human Rights Law rules (HRL rules) on several fields of International Law (such as International Criminal Law, World Trade Organization Law, European Union Law) was scrutinized throughout the previous chapters of this book. This impact has been assessed as regards the influence of the first ones over the content and scope of the seconds.
However, a general study on that influence would not be complete if we did not also focus on the interactions between obligations deriving from Human Rights Law rules and from other International Law rules.
Two solutions can be drawn so as to define the nature of the interactions between two legal rules: priority or primacy. Priority can be established by reference to a treaty provision that expressly designates which of the two rules shall be applied in the occurrence of a contradiction between them (see, for instance, article 103 of the UN Charter, which provides for the Charter’s rules to prevail over any other International agreement). Otherwise, it is usually referred to two general rules that apply in such circumstances: the lex posterior priori derogant maxim (the latter rule will prevail) and the lex specialis generalibus derogant one (the special rule will prevail over the general one). By contrast, primacy does not only encompass the priority of one over another but also imply the invalidity of the inferior rule if it appears to be contradictory to the superior one.
Thus, the question we will have to address in the following study is whether interactions between International Law rules and HRL rules are governed by priority rules or by reference to primacy rules.
In the context of this study, “Human Rights Law rules” will be understood as referring to the instruments devoted to the protection of fundamental rights. HRL rules are thus mainly contained in both global treaties for the protection of Human Rights such as the ICCPR, the ICESCR, the Convention on the prohibition of torture, inhuman and degrading treatments, the Convention on the Rights of the Child as well as regional treaty regimes such as the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and People’s Rights (the African Charter).
When studying the interactions between HRL rules and other International Law rules, one very quickly notices that what we have designated under the expression of “Human Rights Law” does not constitute in fact a coherent set of rules. Indeed, it rather seems to encompass several special regimes (Sect. 3.2), even if those remain all part of International Law (Sect. 3.3). One shall then assume that interactions between HRL rules and other International Law rules shall be mainly governed thus by rules of priority, but this is not what happens in practice due to the nature of HRL rules (Sect. 3.4).
3.2 Human Rights Law as a Gathering of Special Regimes
Human Rights Law has often been considered as a special field of International Law—the topic chosen for the present book being one of the numerous illustrations of such an assertion. Even the International Law Commission (ILC) study group on fragmentation of International Law, in its 2006 Report, considered that special regimes can cover “whole fields of functional specialization (…) such as ‘human rights law.’”1
It is the International Court of Justice (ICJ) that first relied upon the concept of “special” or “self-contained regime” for the first time in the Teheran case.2 Professor B. Simma then developed that theory in his famous article on the topic in 1985.3 Twenty years later, the ILC devoted a long part of its 2006 Report to that concept. According to this Report, the main objective of those special regimes is “to strengthen the law on a particular subject-matter, to provide a more effective protection for certain interests or to create a more context-sensitive (…) regulation of a matter than what is offered under the general law.”4
Three definitions of the concept of “special regime” were drawn by the ILC in its Report.
First, the ILC underlined that such a regime could be “in a narrow sense” a special set of secondary rules under the law of State responsibility that overrules the general rules codified in the 2001 ILC Articles on State responsibility.5
Second, “in a broader sense,” “special regime” refers to a set of primary and secondary rules that covers some particular issues and differs from the ones applicable under general international law6 (i.e., rules of customary law and general principles of law7). One example of such regime is given in the Report by reference to the S.S. Wimbledon case8 where the Kiel channel regime drawn in the Treaty of Versailles of 1919 was considered as excluding the application of the general law on internal waterways.9
Third, in an even wider sense, “special regime” refers to a set of primary and secondary rules that covers a whole field of International Law. According to the ILC indeed, “[s]ometimes whole fields of functional specialization, of diplomatic and academic expertise, are described as self-contained in the sense that special rules and techniques of interpretation and administration are thought to apply. For instance, fields such as ‘human rights law’.”10
On the basis of these alternative approaches, could Human Rights Law be considered as a special regime?
As to the first definition, Human Rights would rather be described as special regimes, as the regional instruments of protection of Human Rights all prescribe for special secondary rules on State responsibility differing from the general ones, regarding some specific issues. The ECHR, for instance, provides for a specific remedy under article 41—the “just satisfaction”—which differs from the restitutio in integrum provided for by general law on State responsibility,11 while the ACHR provides for “fair compensation” (art. 63.1).
As to the second and third definitions of a special regime, we shall first notice that the only difference between them is the scope of the particular set of rules differing from general international law. While the second definition indeed is dealing with a set of rules that has a very limited material, personal, or local scope of application—the Kiel Channel example above mentioned illustrates this assertion—the third definition is even broader and seems to rely only on the main objective followed by that special set of rules (i.e., for instance, the regulation of international trade as with WTO Law or of the use of the sea as with International Law of the Sea).
Under this last definition, Human Rights Law as a whole might be considered as a special regime as far as its rules are mainly concerned with the protection of fundamental rights of the individuals. However, two main objections should be made as regards such a conclusion.
First, if universal general rules for the protection of fundamental rights can be identified—for instance, the right to life, the prohibition of torture, the prohibition of slavery, the right to a fair trial—every regional instrument of protection of Human Rights contains specific primary (and secondary) rules, the existence of which can be explained by particular concerns derived from historical, geographical, and even temporal specificities12 (while the ECHR was adopted in 1950, the African Charter was agreed upon more than 30 years later). As for primary rules, we may refer to the right to judicial personality recognized in the ACHR (art. 3), the right to reply (art. 14), the right to a name (art. 18), or the right to nationality (art. 20). The African Charter sets down the right to receive information (art. 9), the right to national and international peace and security (art. 23). In Europe, the Charter of Fundamental Rights adopted within the European Union acknowledges the existence of the right to protection of personal data (art. 8), freedom of the arts and sciences (art. 13), or the right to good administration (art. 41). As a consequence, we should not speak of one single set of Human Rights rules, or, the other way round, if we only refer to common human rights, we should only deal with a limited part of Human Rights Law.
Second, if we try to define a “special regime” by reference to the objective pursued by a set of rules, we might wonder whether some particular rules relating to the protection of fundamental rights, but included in instruments that are not mainly concerned with that issue, would belong to what we would call the “Human Rights special regime.” We might refer, for instance, to the guarantees offered to foreign investors’ properties in Bilateral Investment Treaties. If it happens to be so, the “boundaries” of such regime will be difficult to draw—and that theory of limited help to describe accurately the state of positive International Law.
It seems not to be appropriate in any case to define Human Rights Law as a special regime. However, we shall conclude instead to the existence of several special regimes in Human Rights Law, which differ in distinct ways from general international law. This does not mean, however, that they are completely autonomous from International Law.
3.3 The Absence of Autonomy of Human Rights Regimes from International Law
Even if the autonomy of Human Rights Law has been firmly ascertained by some International lawyers,13 the organs meant to monitor the enforcement of Human Rights instruments rely on International Law rules. This happens with regard to rules relating to the existence and validity (Sect. 3.3.1) and to the interpretation (Sect. 3.3.2) of HRL instruments, for instance.
3.3.1 The Relevance of Rules of Entry into Force and Application of Treaties Provided for by International Law
Human Rights courts have been referring very often to International Law rules relating to the entry into force of and compliance with treaty obligations in the course of their reasoning. That can be easily explained as the different Human Rights regimes were created originally by international treaties, i.e., pursuant to International Law. In the Baena Ricardo and others (270 workers) v. Panama case, for instance, the Inter-American Court of Human Rights (IACtHR) referred to the pacta sunt servanda rule and to the obligation to apply treaties in good faith, both codified in article 26 of the 1969 Vienna Convention on the Law of Treaties (VC), to remind the defendant State that it could not act contrary to the purpose and object of the instruments of protection of Human Rights that it had signed.14 The importance of these two principles was reaffirmed in a later advisory opinion.15 However, the Court did not review the compatibility of the defendant’s behavior with these principles, as it only has jurisdiction “to hear about human rights violations (…) where (…) international instrument ratified by the State grants it the competence to hear cases of violation to the rights protected by that same instrument” as stated in the Baena Ricardo.16 So did the African Commission and, recently, the African Court on Human and People’s Rights as to article 27 of the VC, the Court even mentioning the 2001 Articles on State Responsibility.17
However, the regional courts often review the compatibility of the defendant’s behavior with International Law rules by underlining that they are similar to some rules incorporated within the Human Rights instruments. The IACtHR thus implicitly acknowledged the importance of the rule codified under article 27 of the VC, but only because the effet utile principle enshrined in this article was considered as reaffirmed in article 2 of the ACHR.18 The European Court of Human Rights referred as well on several occasions to both articles 26 and 27 of the VC.19 In the Verein Gegen Tierfabriken Schweiz v. Switzerland (No 2) case, the Grand Chamber considered that “[i]n this connection, the Court emphasises the obligation on States to perform treaties in good faith, as noted, in particular, in the third paragraph of the preamble, and in Article 26, of the 1969 Vienna Convention on the Law of Treaties.”20 The reference of the Court to the ECHR’s preamble first has no other effect than emphasizing the importance of the instruments, as creating a special regime prevailing over rules of general international law.
By contrast, at the universal level, the Human Rights Committee, which is empowered to monitor the implementation of the ICCPR, did not try to ascertain the existence of the ICCPR regime as a special one. In one of its General Comment, the Committee stated indeed that “[u]nder international law, a failure to act in good faith to take such steps amounts to a violation of the Covenant.”21
Express references to other International rules into Human Rights instruments can also be found. One illustration of this is related to the particular issue of reservations to treaties. Article 75 of the ACHR expressly relies upon the rules codified on the subject in the VC 1969 indeed, by providing for the right of State parties to make reservations to the Convention but “only in conformity with the provisions of the Vienna Convention on the Law of Treaties.”