Chapter 9 Guidance on Answering the Questions in the Book

Question 1:
What is the basis of the cultural relativist critique of human rights law?

Guidance:
The question seeks to engage the students in one of the recurring debates in human rights law. The book notes that the alleged universal character of human rights has been criticized by so-called ‘cultural relativists’ who argue that human rights impose one conception of justice on everybody else. It also notes that the contemporary variant of the critique often takes the form of a disagreement between the developed and the less developed world about which rights merit priority as well as arguments for greater deference on the part of human rights for religious sensibilities.

Question 2:
The chapter notes that the human rights debate before the Human Rights Council is (still) highly politicized. Can you think of some examples?

Guidance:
The question asks the students to identify some examples that reflect a politicization of the HRC. In practice, of course, the examples may relate to both cases that are discussed in the book. An obvious – and most discussed – example of politicization of the HRC is the excessive focus on Israel noted in the book. 

Question 3:
What are some of the common features of the various monitoring organs that have been established with a view to monitoring compliance with specific UN human rights conventions?

Guidance:
The question asks the students to consider some of the monitoring tools available in international human rights law, more specifically within the UN. The book notes that a series of human rights committees have been created to monitor implementation and compliance with the nine specific universal human rights treaties. Among their core features, the committees are composed of experts serving in their independent capacity and chosen for their expertise in the given subject matter. The book uses the CCPR to illustrate that the committees in most cases make comments on periodic reports submitted by states on the national measures of relevance to their obligations under the relevant treaty ending with the adoption of ‘concluding observations’. Some of the committees also adopt General Comments on the interpretation and application of the particular convention and a number of them may also hear complaints regarding a contracting state’s non-fulfillment of its obligations under the treaty.

Question 4:
The interpretational style of the ECtHR has been criticized for, among other things, disregarding state consent or intention. Why do you think that has been the case?

Guidance:
The question seeks to engage the students in a discussion about the interpretational style of the European Court of Human Rights. As the book notes, the Court has adopted a ‘dynamic’ style of interpretation that treats the Convention is a ‘living instrument’ whose provisions must be interpreted in the light of the current social and political climate rather than in accordance with the sentiments at the time the Convention was adopted. A reference could be made to the overview on treaty interpretation in Chapter 3 where it is also noted that human rights conventions are generally interpreted less according to the original intention of the parties and more in order to ensure the effective, real and concrete protection of the individuals who find themselves under the jurisdiction of the states in question. The dynamic interpretation has been criticized because the Court has expanded the reach of the Convention into areas that were not covered – and therefore not consented to – at the time of its adoption. In recent years, the criticism has been reflected in a number of reports adopted on the basis of periodic conferences of state representatives; see for instance the “Brighton Declaration” from 2012. As the book also notes, it is also worth noting that the Court grants a state a certain margin of appreciation and thus a substantial degree of deference in particularly sensitive matters in which there is no common European position.

Question 5:
Case law from the ECtHR illustrates that a state party to the ECHR is not always bound by its obligations under the Convention when it acts abroad. Why could that be problematic when considered from the perspective of the alleged universal nature of human rights law?

Guidance:
The question concerns the hotly debated topic of the territorial reach of human rights conventions, notably that of the ECHR. Art. 1 of the Convention stipulates that state parties shall secure the rights and freedoms of the Convention to ‘everyone within their jurisdiction’. The book notes that the currently most authoritative case on the territorial reach of the Convention is the Grand Chamber’s judgment in the al Skeini case where the Court listed a number of instances where extra-territorial acts fall within the concept of ‘jurisdiction’ in article 1. Since there may be situations where a state’s extraterritorial acts are not covered by these instances it would seem that a state is not always bound by the ECHR when it acts abroad. The book notes that this is hard to reconcile with the alleged ‘universal’ nature of human rights law and the book also offers some of the arguments that have been advanced by those who find that a state ought to be bound by the Convention whenever it acts abroad.

Question 6:
What are the conditions for lawful derogation from a human rights convention?

Guidance:
The question concerns the issue of derogation from human rights obligations and asks the students to consider what the conditions for lawful derogations are. In the ICCPR and the ECHR derogation is covered by, respectively, articles 4 (1) and 15 (1). The right to derogate requires the existence of a public emergency of certain gravity and that the measures taken are strictly required by the situation and comply with the prohibition against discrimination. A decision to derogate must also be communicated and justified to the other state parties to the convention. It must also be noted that a decision to derogate from a human rights convention does not alter a state’s obligations under other parts of international law, such as customary international law.