Humanitarian Law

What is international human rights law?

International human rights law is part of international law. There is a close relationship between international humanitarian law (IHL) and international human rights law.

International human rights law codifies human rights in various international treaties. The right to life, the right to freedom of thought and expression and the right to health and housing are examples of human rights.

Applicability

International human rights law is applicable to the territory of a state but also extends to any territory which is under its effective jurisdiction, even if it is outside its borders. Effective jurisdiction refers to the de facto level of control of one state over another territory or people, for example during an occupation.

Derogations and limitations of human rights law

In exceptional cases, such as in times of public emergency which threaten the life of the nation, a state can derogate (temporarily depart) from some of its obligations under human rights law. A derogation from a right means that the right is suspeeded for a certain period of time. An example of a right that can be derogated from under times of emergency is the right to peaceful assembly. The derogation must be proportional and must not be introduced on a discriminatory basis.

Certain human rights can be limited, but only if such limitations are provided for by law and necessary for the protection of national security or public safety etc. Contrary to a derogation the right is not taken away but continues to be valid, however, in a limited manner. Examples of rights which can be limited are the right to freedom of expression and the freedom of association.

Fundamental human rights, such as the right to life and the prohibition on torture and slavery, can never be derogated from or limited.

The relation to international humanitarian law (IHL)

The International Court of Justice (ICJ)in its Advisory Opinion on the Wall of July 2004 considered the inter-relation between the two bodies of law – international humanitarian law and human rights law. It concluded that when dealing with a situation of armed conflict, IHL is lex specialis (governs a specific subject matter) while human rights law, which is applicable both in times of armed conflict and in times of peace, governs general matters. It elaborated three possible inter-relations between the two bodies of law:

situations in which only IHL applies;
situations in which only human rights law applies;
and situations where the legality of the actions needs to be examined under both branches of law, for example during armed conflict.

Therefore, each action needs to be examined under IHL, human rights law or both together depending on the circumstances.

Jurisdiction

Jurisdiction refers to the power exercised by a state over persons, property or events through its legal instruments. This power is usually restricted to the state’s own territory. In exceptional cases, jurisdiction can be extended beyond a country’s borders. Effective jurisdiction refers to the de facto level of control that one state has over another territory or people, for example during an occupation.

Jurisdiction can also mean the power of a court to hear and decide a case before it.

What is the right to self-determination?

The right of self determination is a fundamental principle of international law giving peoples the right to decide their own governmental structure.

“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.” (The United Nation General Assembly Resolution 2625 (XXV): Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970)

The right to self-determination is mentioned in article 1 paragraph 2, of the UN Charter.

To the UN Charter and Article 1(2)

To the UN declaration of Friendly Relations

Revised
03/09/2009 Sara Yarden ihl_diakonia@palnet.com

Easy Guide to International Humanitarian Law in the Occupied Palestinian Territory (oPt)