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MASTER THESIS

STATES AND HUMAN RIGHTS OBLIGATIONS:

“The tendency of states to tailor human rights obligations to ones

need.”

European and International law Master: Public

International law track

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Appendix:

This paper will focus on states and their human rights obligations. What will be discussed is how states nowadays often try to deviate from their human rights obligations. The purpose of this paper is to show that human rights obligations are often too flexible and thus that it allows states, too often to tailor their obligations in their own way.

To begin with, ways provided by the law that enables states to adjust their human rights obligations will be analyzed.

In an other part, the justifications and excuses brought by states that are actually not

explicitly provided by human rights law in order to explain their non-compliance with human rights obligations will be considered.

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I- INTRODUCTION

II- CHAPTER 1: The different ways provided by the law that enables states to get round human rights obligations.

• Section 1: The possibility for states to make reservations on Human Rights Treaties provisions.

• Section 2: Limitations, a way provided by the law to restricts human rights.

• Section 3 : Derogations, a legal way to adjust states’ human rights obligations.

III- CHAPTER 2: The issue of the use of ways not explicitly provided by the law, used by states to justify their non-compliance with human right treaties.

• Section 1 : Counter-Terrorism, the ticking bomb scenario a way to justify human rights violations?

▪ A) Terrorism and counter terrorism .

▪ B) The Ticking Bomb Scenario and the prohibition of torture.

• Section 2: Armed conflict context, a way for state to challenge their human rights obligations.

• Section 3: The extraterritorial application of human rights treaties, a notion often pointed out to defy the compliance of states with human rights law.

IV- CONCLUSION V- BIBLIOGRAPHY I- INTRODUCTION:

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“International human rights law is far from being a universal comprehensive system, to the contrary it consists of a patchwork of standards of varying reach, implemented through mechanism that range from the purely facilitative to the modestly coercive”, not capable of imposing a universal state accountability1.

This paper will analyze the problem of the need of flexibility of human rights obligations and the abuses and violations that too much flexibility may lead to.

It will explore the different ways and possibilities that enable states to adjust those

obligations. I will focus on the flexibility tools that states invokes when they join a human rights treaty or when they need to modify their human rights obligations.2 Those numerous

flexibility tools that are offered to states in order to tailor their human rights obligations shows that human rights obligations are in some way too flexible. The flexibility of human rights obligations is its true useful, needed and inevitable in some cases or situations however it should be well regulated and more supervised. Human rights obligations seem to be not rigid enough and too easy to challenge.

This topic seems important, as today this tendency to challenge and adjust human rights obligations is becoming more and more significant.

This subject appear to be also relevant because nowadays with all the conflict that are arising in different part of the world, the different cultures, religions or political regimes, states often forget that they are bound by human rights treaties, that they have ratified, and that they are supposed to respect and comply with. Even with provided ways to make exceptions and adjust their obligations, states too often and especially regarding the war against terrorism, find justifications and excuses regarding their human rights violations and abuses.

Indeed, some governments have tried to shift the barrier between what is prohibited and what is permitted3.

Some questions may be relevant regarding this issue. In fact, more than 150 states on the 193 that are part of the United Nations still engage in torture and will most of the time justify it as being in a particular framework. Moreover, in the several years a number of authoritarian countries have increased and violations of human rights obligations and abuses still continue, especially in certain countries regarding the conditions of children and women. This shows that even by being part of human rights treaties, states still manage and try to deal in their own 1

2 Laurence R. Helfer et al., Emergency and Escape: Explaining Derogations From Human Rights Treaties, 65 International Organizations 673-707 (2011).

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way with human rights issues. They still want to keep a certain sovereignty regarding their human rights obligations and thus be able to adjust in their way and then sometimes challenge human rights obligations.

It is particularly, after the 9/11 terrorist attacks that put the world in a climate of terror and fear, that this tendency of state to try to deviate and challenge their human rights obligations became more and more important.

States want to act quicker and without paying attention to all their obligations they are supposed to respect. What is also important is that the norms that are the most and usually challenged are civil and political rights, those norms are discursively put under pressure.4

This tendency to challenge human rights obligation may show a too flexible status of human rights law, as it seems quite easy for states to deviate in a non-legal way from their obligation. Moreover, as they also some times wants to adjust their obligations, human rights may seem to be in certain circumstances too strict when states want to limit or to derogate in ways that are provided by the law, from their human rights obligations.

Thus, states are bound by human rights obligations when ratifying human rights treaties. They have to comply with the provisions established in those human rights treaties. In case of non compliance with human rights treaties, which entail a human right violation, states may be accused of human rights abuses and complaints may brought to the qualified court in order to deal with the abuses.

When ratifying a human right treaty states, in a certain way agree to be part of and bound by the treaty and respect the obligations provided by it.

However, regarding those obligation, it is important to highlight that there are ways for states, to bypass, adjust in their way those obligations. This is what is going to be the focus of this paper. To understand the different ways provided or not by the law that enables states to softened their human rights obligations when they need or want to.

As a consequence, there are some formal ways, that is to say, provided by the law, that make it possible to change and make adjustment on human rights obligations.

First there is the possibility to make reservation on a certain provision of a treaty that is established by the article 19 of the Vienna convention on the law of treaties. Moreover, a vast majority of human rights are not absolute; it is possible limit and adjusts them.

4 Heller, Regina ; Kahl, Martin, Tracing and understanding “bad” norm dynamics in counterterrorism: the current debates in IR research, Critical Studies on Terrorism, 2013, Vol.6(3), p.414-428 [Peer Reviewed Journal], Routledge Routledge, Taylor & Francis Group.

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Furthermore, there are some ways that are not explicitly provided by the law and that can be understood as non-formal ways for states to adjust and modify their human rights obligations. They are usually used as a justification for their non-compliance with human rights

obligations. The international community usually sees those non-formal ways as non-legal ways.

The war against terrorism and its ways to fight it may sometimes be seen as violating human rights. Also the ticking bomb scenario is often used by states as a justification for bypassing human rights obligations.

Moreover, states often tries to deviate from human right obligations by justifying their conduct and action as being in the framework and circumstances of an armed conflict and that those circumstances would make it possible to forget and not respect their human rights obligations. However, it always must seen in a humanitarian law point of view and remember that still in a situation of armed conflict, human rights law applies.

Also, the question of the extraterritorial application of human rights obligation is relevant and will be discussed in this paper as it usually comes as a justification for states in order to explain and justify their human rights violation on a foreign territory.

When analyzing the different ways provided and used by states in order to justify their non-compliance with human rights obligation, it is important to take into account the role and reaction of international courts, non-governmental organization and international organization and how do they deal with this inclination of states to avoid their human rights obligations. Non-governmental organization are also important because they can have a huge impact on the conduct of states regarding human rights and may in different ways and manners influence them to comply with human rights treaties.

This paper will then be organized in two chapters. In a first chapter it will be

interesting to analyze the formal ways, provided by the law and at the disposition of states to adjust and modify their human rights obligations and to see how the international courts and non governmental organization deal with this tendency to often try to adjust human rights obligations. This chapter will be fragmented into different sections that will each one focus on a certain formal way to get round of an obligation and to adjust it.

In a second chapter it will be relevant to remark the other non formal ways that states are using in order to justify the fact that they do not respect their human rights obligations or in order to adjust in their own manner those obligations by which they are supposed to be bound. Regarding this issue of possibilities not explicitly provided by the law, it will also be

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interesting to focus on the position of the international courts and non governmental organization regarding this issue and how they deal with this tendency which is becoming more and more common.

II- Chapter 1: The different ways provided by the law that enables states to get round human rights obligations.

States have the opportunity and possibility in certain circumstances to adjust and adapt the human rights obligations to which they are bound.

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In fact, there are certain ways that are expressly provided by the law and establish in human rights treaties and that make it legal for states to sometimes make exceptions and in specific situations not respect their human rights obligations.

It seems then important to identify those different ways provided by the law. First, there is the possibility to make a reservation to a treaty, then a right may be limited and finally

derogations may be accepted regarding a certain human rights obligation.

• Section 1: The possibility for states to make reservations on Human Rights Treaties provisions.

Reservations have a huge importance in international law when talking about the

ratification of a treaty. States when ratifying an international law treaty have the possibility to make a reservation, to decide not to include, not to be bound by a certain provision of the treaty, that they find contrary with their own national law.

Reservations are defined in the article 2 of the Vienna Convention on the law of treaties as

“Unilateral statement, however phrased or named, made by a state when signing, ratifying, accepting or acceding to a treaty, whereby it purports to exclude or to modify the legal effect

of certain of the treaty in their application to that state”5.

The article 19 of the same Vienna Convention establishes and explains the formulation of a reservation6. Thus reservation may be formulated by states unless the treaty prohibits it, the

treaty provides that only specific reservations, which do not include the reservation in

question, may be made, or in cases the reservation is incompatible with the object and purpose of the treaty. This article shows that even if reservations are allowed under international law they have conditions and may not be used in every circumstance. Also, reservations are not allowed for Jus Cogens norms such as the prohibition of torture or war crimes and genocide. To add to this the article 21 of the Vienna Convention on the Law of Treaties7, presents the

legal effects of reservations and the objections to reservations. It is important to highlight that a reservation has the effect to modify the relations of the reserving states with the other parties to the treaty.

5 The Vienna Convention on the Law of Treaties, article 2. 6 The Vienna Convention on the Law of Treaties, article 19. 7 The Vienna convention on the Law of Treaties, article 21

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Moreover, as regards to the article 22 of the Vienna Convention on the Law of Treaties8, a

reservation may be withdrawn at any time and there is no need for the consent of the state that made the reservation.

This is how reservations are handled in international law and with international law treaties. However, regarding human rights law treaties it may be sometimes different, and human rights bodies may handle reservation a bit differently or have another approach regarding this way of not being bound by certain provisions of a treaty.

In the context of human rights treaties, reservations will be allowed because human rights bodies want to get as much states parties as possible but they do not want the same mechanism of reciprocity regarding reservation as for international law treaties.

Reservations may be seen as a help and will encourage states, which may have difficulties in guaranteeing all the rights established in the treaty in question and that they may exclude some provisions that they know they will not be able to respect. Still they will accept to be bound by the generality of obligations that are established in the human right treaty. With this opportunity to make reservations, states may adapt specific elements in their national laws to “the inherent rights of each person as articulated in the treaty”.

However, states usually do not object to this particularity and if they do other human rights bodies would involve themselves in those processes.

In order for a reservation to be valid under a human rights treaty, the object and purpose of the treaty will be examined and if the reservation made by a state is contrary to the object and purpose of the treaty, the reservation will then be declared invalid. As an example, it is possible to take a reservation made by the Kuwait regarding the a provision in the

International Covenant on Civil and Political Rights on the right to vote9, established in the

article 25(b) of the present covenant, which states “that every citizen has the right to vote and to be elected without any distinction and without unreasonable restrictions”. Kuwait made a reservation on this article because at the time of the ratification of the treaty, the right to vote in Kuwait was allowed only for men and not for women. Then Kuwait, declared that it was contrary to its national law and that it would not be bound by this provision of the treaty. This reservation was seen as invalid as it was contrary to the object and purpose of the treaty as the right to vote represent an important civil and political right.

The international Court of Justice in its advisory opinion on reservation to the Genocide Convention, explained that reservation is an important tool for states and that not all 8 The Vienna convention on the Law of Treaties, article 22

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reservations might offend the very purpose of the treaty. It however, emphasized on the fact that this right to make a reservation should not lead to the destruction of the essence of the treaty. This joins the need for reservation not to be contrary to the object and purpose of the treaty.10

A fact important to acknowledge is that reservations will most of the time be find valid as human rights bodies wants to have the assurance that states will be party to the treaty. This shows a certain flexibility of human rights treaties and human rights bodies that will validate reservations on human rights treaties.

Human rights bodies may assess the validity of reservation concerning provisions of human rights treaties contrary to international law treaties. In fact, the Human Rights Committee may assess whether a reservation is valid if it is dealing with a case with reservations. If the Human Rights Committee could not assess if the reservation was valid or not in those

situation, it would not be able to assess the case in general. This issue is illustrated in the case Trinidad and Tobago11 where the Committee assessed that the reservation made regarding the

possibility to single out one group from the possibility of addressing a communication was against the object and purpose of the International Covenant on Civil and Political Rights and then declared the reservation invalid. It then was able to deal with the case in question.

Furthermore, it must be noted that human rights bodies are often unease with this rights for state to make reservations to human rights treaty provisions as for them it would undermine the universality of human rights.

Thus, reservations consist of one of the formal ways provided by the law that enables states to adjust and modify a part of the treaty to which they accept to be bound. Nevertheless, it is important not to forget that even if reservations are allowed and provided by the law, they are regulated by a certain way of formulation and may not be applied for every provisions and may not always be declared valid, human rights bodies such as the Human Rights Committee may assess their validity.

Moreover, even if they are permitted it is really desirable in principle that states accepts the full range of obligations established in human rights treaties because the human rights norms

10 Ineta Ziemele and Lasma Liede, Reservation to Human Rights Treaties : From Draft Guidelines 3.1.12 to Guideline 3.1.5.6, The European Journal of International Law, Vol.24, n°4.

11 Inter-American Court of Human Rights, Caesar v. Trinidad and Tobago, 11th March

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are the legal expressions of the essential rights that every person is entitled to as human being12.

Nevertheless, it must be acknowledged that reservation may represent a slight problem of legal certainty as there are tensions between the idea of human rights and the notion that a state with the right to make a reservation is able to pick and choose the obligation to which it wishes to be bound or interpret those obligations as it wishes.

To conclude on reservation, they represent a legal mechanism provided for states regarding international and human rights treaties but they are more regulated under human rights law regarding in my opinion the importance and the human rights character expressed in those treaties.

The next way provided by the law that enables states to adjust their human rights obligations are the possibility for them to limit in certain circumstances human rights.

• Section 2: Limitations, a way provided by the law to restricts human rights .

Apart from reservations, which concerns more a provision of a treaty, there is another formal way provided by the law that enables states to adjust their human rights obligations and that help them to justify why they did not respect their human rights obligations. This other formal way is the possibility to limit and restrict human rights.

A vast majority of human rights are not absolute; it is possible to bypass them because some can be limited. Still, some states are trying to find justifications in order to make it possible to limit some rights.

In fact, human rights may be in certain circumstances limited. However, a number of them may not in any circumstances be the subject of limitations or restrictions and thus no justifications on those grounds may be invoked in order to explain the violation of those rights. Only absolute rights cannot be limited. Rights that may not be limited are the rights from freedom from torture and other cruel, inhuman or degrading treatment,13 the right of

freedom from slavery and servitude14, the freedom from imprisonment for inability to fulfill a

12 General Comment 24, adopted by the Human Rights Committee under article 40, p.4 of the International Covenant on Civil and Political Rights.

13 International Covenant on Civil and Political Rights, article 11. 14 International Covenant on Civil and Political Rights, article 8.

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contractual obligation,15, the prohibition against the retrospective operation of criminal laws16

and the rights to recognition as a person before the law.17

Limitations are allowed but they are as reservation strictly regulated and may not be applied and invoked in every circumstance.

Limitations must obey to certain regulations and must fulfill a number of criteria in order to be invoked and applied to the right in question.

Limitations on rights and freedoms are permissible but they must be applied only for the purpose and to the extent that the document expressly provides it.

There is a general clause for limitations in the Universal Declaration of Human rights that establishes in its article 29 (2):

“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for rights and freedoms of others and of meeting the just requirements of morality, public order

and the general welfare in a democratic society”18.

In the International Covenant on Civil and Political Rights, limitations clauses are enacted in the article 19(3):

“ It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For the respect of the rights and reputation of others;

(b) For the purpose of national security or of public order, or of public health or morale.19

It is possible to remark a slightly change between the general limitation clause enacted in the Universal Declaration on Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1966. Limitations clauses of the International Covenant are more specific that the ones established in the Universal Declaration, this reflects and is due to a desire to

15 International Covenant on Civil and Political Rights, article 11. 16 International Covenant on Civil and Political Rights, article 15. 17 International Covenant on Civil and Political Rights, article 16. 18 Universal Declaration of Human rights, article 29.

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tailor and regulate more limitation to the extent strictly necessary as to assure maximum protection of individuals.20

It is also, established in the General Comment 22 that limitation must also be consistent with the International Covenant on Civil and Political Rights provisions requiring equality before the law and prohibiting discrimination21. The articles 2, 3 and 26 of the ICCPR institute those,

requirements22.

First of all a limitation must be provided by law. This is the first requirement; it must be provided in the treaty that a certain right may be the subject of a limitation. As explained above, there are a number of rights like Jus Cogens norms that can never be limited. Thus, it must be expressly provided by the law that the right in question may be limited.

After, making sure that the law provides the possibility to limit a certain right, it must be shown that the limitation is because of a legitimate aim. A legitimate aim may be illustrated as the protection of other people’s rights. In fact, this may be illustrated by the interference that may arise between the right to freedom of expression and the right to private life. Those, two rights may interfere in each other and one may sometimes be the subject of limitation in order to assure the real protection of the other.

Moreover, national security, public safety, the prevention of crime or the protection of health, illustrate also what is considered as a legitimate aim.

Then, even if the law authorize the limitation of a right, its limitation must be justified by a legitimate aim, a specific reason that necessitate the restriction, limitation of the right.

The fact that the specific situation necessitates the restriction of the right, gives rise to the last requirement needed in order to invoke the limitation of the right, which is necessity.

The limitation after being provided by the law and arising because of a legitimate aim must be necessary in a democratic society. Necessity requires that any restriction be strictly necessary to achieve the objective.

It must be precised that in international law and human rights law, both the law itself and its application must meet the proportionality test. As regards to this, proportionality will play also a role in the validity of a limitation. In fact, the necessity requirement, mentioned earlier, also incorporates a proportionality precondition. It is true that permissible limitation may be applied only for those purpose for which they were prescribed, and must be directly related 20 General Comment 22, adopted by the Human Rights Committee under article 40, p.4 of the International Covenant on Civil and Political Rights.

21 General Comment 22, adopted by the Human Rights Committee under article 40, p.4 of the International Covenant on Civil and Political Rights.

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and proportionate to the specific need on which they are predicated.23 It then implies that

proportionality must also be taken into account when limiting human rights.

The Cameroon Case of 1991 may illustrate this proportionality and necessity test. The facts were that a journalist was trying to set up a party in Cameron; he was arrested for criticizing the president of Cameron. He then claimed that there was a violation of his freedom of expression, fair trial and of the prohibition of torture as he was detained and tortured in prison24. The state of Cameron justified this arrest with the article 19(3) of the International

Covenant on Civil and Political Rights by saying that the violations that occurred were justified in order to protect national security. Examining the case, the Human Rights Committee, tried to see the necessity and proportionality of the measures taken against the journalist. It declared that the measures were indeed disproportionate and that they were not the best and most fitting rule to achieve the goal of protecting national security as declared by the state of Cameron.

We can understand with this case, that when examining the validity of limitations regarding certain rights, a proportionality and necessity test is required.

To conclude on limitations, it is important to understand, that it is a formal way, provided by the law that enables states to limit some rights on their territory and that helps them to justify a violation if the limitation meets the compulsory requirements, which are a legitimate aim, that this limitation is provided by the law in human rights treaties such as the International Covenant on Civil and Political Rights or the Universal Declaration of Human Rights and that it is necessary and proportionate as regard to the specific situation that is arising in the state in question.

Finally it seems relevant to add that limitations may never by used to destroy a protected right,25 it only limits it for a certain period and in certain circumstances but it can never

abolish an established human right.

The last way provided by the law and which is relevant to highlight is the possibility for states to derogate in exceptional times from their human rights obligation.

23 General Comment 22, adopted by the Human Rights Committee under article 40, p.4 of the International Covenant on Civil and Political Rights.

24 Communication 458/1991: Albert Womah Mukong v. Cameroon

25 General Comment 22, adopted by the Human Rights Committee under article 40, p.4 of the International Covenant on Civil and Political Rights.

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• Section 3: Derogations, a legal way to adjust states’ human rights obligations.

At the end of this first chapter we have also to mention the last formal way enabling states to justify violations of human rights and to adjust their obligations towards human rights treaties.

Derogations are defined as a partial repeal of law that usually by a subsequent act diminishes its original intent or scope. Derogations are distinguishable from abrogation, which represent the total annulment of the law. Derogation only diminishes or restricts a part or for a certain time a right, it does not have the purpose of suppressing human rights.

Scholars see them as a rational response to domestic political uncertainty. In fact, derogations enables governments that are facing serious threats regarding their national security and public safety, to buy time and legal breathing space from voters, courts and interests groups, to comfort crises while signalling to these audiences that their rights deviation are lawful as prescribed by the law.26 Derogations are measures established in the International Covenant

on Civil and Political Rights, in its article 4(1):

“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, The States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their

other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin27.”

Derogations are also defined and enacted in the European Convention of Human Rights in its article 15(1):

“ In time of war or other public emergency threatening the life of the nation any high contracting Party may take measures derogating from its obligations under this convention to

the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law28.”

26 Laurence R. Helfer et al., Emergency and Escape: Explaining Derogations From Human Rights Treaties, 65 International Organizations 673-707 (2011).

27 International Covenant on Civil and Political Rights, article 4. 28 European Convention on Human Rights, article 15.

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Concerning those two definitions and implementation of derogations in Human Rights treaties, it seems important to highlight that derogation may not arise in every circumstance. Some rights may not be subject to derogations, such as Jus Cogens norms and non-derogable norms. In fact, the Convention Against Torture of 1984, prohibited derogations regarding the prohibition of torture. Also, derogations seem irrelevant regarding economic, social and cultural rights. On this point they have a similarity with limitations. Derogations and

limitations are ways provided by the law at the disposal of states parties to the human rights treaty. However, they are seriously regulated and may not arise all the time. As mentioned earlier, in order to invoke a limitation regarding a certain right, there must a legitimate aim, the law must prescribe the limitation and it must be necessary in a democratic society and proportionate.

For derogation, as established above in the articles, they can occur only in “time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed” or “In time of war or other public emergency threatening the life of the nation any contracting party may take measures derogating from its obligations.”

Thus this requirement of public emergency threatening the life of the nation is essential in order for a state to derogate from a human rights obligation.

This requirement of public emergency is understood as exceptional measures, then

derogations may arise only in exceptional circumstances, it is not a usual way for states to adjust their compliance with human rights.

The article 4(1) of the International Covenant on Civil and Political Rights expressly states, “Such measures are limited to the extent strictly required by the exigencies of the situation”29.

This lean on the fact that derogations are exceptional ways for states to justify their non-compliance with human rights treaties. They then differ and are clearly distinct from

restriction or limitation that may be allowed even in normal times under several provisions of the covenant30.

However, the article 4(1) also by imposing the obligation to limit any derogation to those strictly required by the exigencies of the situation reflects the principle of proportionality, which is then common to derogation and limitation powers31.

29 International Covenant on Civil and Political Rights, article 4.

30 General Comment 29, adopted by the Human Rights Committee on the article 4 of the International Covenant on Civil and Political Rights.

31 Laurence R. Helfer et al., Emergency and Escape: Explaining Derogations From Human Rights Treaties, 65 International Organizations 673-707 (2011).

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It also shows a certain will to strengthen human rights obligations and make it not that easy for states to use those adjustment ways. This reflect an idea to make human rights law less flexible.

Derogation must then be exceptional and also of a temporary nature, they may not be used for a permanent period, as it would entail the abolishment of the right subject of the derogation32.

Moreover, concerning this public emergency requirement, this must be linked with the obligation for state parties to officially proclaim a state of emergency in order to derogate from their obligations. States have the obligation to provide justification for the proclamation of the state of emergency in question but in addition they have to justify any specific

measures based on the proclamation in question33.

Concerning, the requirement in order to be able to derogate from a right, the Human Rights Committee has the power to review derogations when examining complaints filed by individuals.

The purpose of derogation must be the restoration of a state of normalcy where full respect for the International Covenant on Civil and Political Rights can again be secured and assured. This must be the predominant objective of a state party to a human rights treaty derogating from its obligations.34

Finally derogations are qualified as an escape mechanism from states human rights obligations in time of emergency, in time of exceptional circumstances, it is important to highlight the fact, that derogations are in fact allowed but are as limitations and reservations, regulated by conditions and requirements that are compulsory and that states have to fulfill in order to be able to declare a state of emergency and to use this possible mechanism enabling them to adjust their human rights obligations regarding the situation arising on their territory.

To conclude on this first chapter, it seems relevant to acknowledge that human rights treaties bind states once they ratify it. They are bound by the obligations enacted in those treaties. Nevertheless, they have sometimes in certain circumstances a margin of adjustment 32 General Comment 29, adopted by the Human Rights Committee on the article 4 of the International Covenant on Civil and Political Rights.

33 Laurence R. Helfer et al., Emergency and Escape: Explaining Derogations From Human Rights Treaties, 65 International Organizations 673-707 (2011).

34 General Comment 29, adopted by the Human Rights Committee on the article 4 of the International Covenant on Civil and Political Rights.

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or modification of that obligation. In fact, reservation enables them to adjust their compliance to the treaty in question by putting aside some provisions. This mechanism is of course regulated and a number of conditions have to by met by the state using this possibility to make a reservation. Moreover, with the possibility to limit some rights states must consider a legitimate aim for the necessary and proportionate protection of national security, adjust their human rights obligation. Finally, derogations as explain are the last legal way, the last way provided by the law at the disposal of states in order, in times of public emergency, to modify or adjust their human rights obligation. However it is important to keep in mind that states may abuse derogation to shield what they are called “permanent emergencies”. It is known that countries, states that once use derogation are far more likely to use it again and thus abuse of this escape mechanism.

States by abusing sometimes of those ways provided by the law may fall into situation where their actions cannot be justified or where the justification brought in order to show and explain why they did not respect their human rights obligation and thus violated them, are contrary to human rights law.

This may become a relevant problem nowadays as many states are trying to justify their violation of human rights obligation by behavior the law does not provide and that do not enable them to stop complying with their human rights obligations.

This issue of non legal ways, non legal behavior used by states in order to justify their non compliance with human rights treaties will be discussed and analyzed in the second chapter of this paper.

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III- CHAPTER 2: The issue of the use of ways not explicitly provided by the law, used by states to justify their non-compliance with human right treaties.

“ Researchers currently try more intensively to understand “how” states discursively challenges constitutive and identity building norms and codes laid down in international treaties.35

In this second chapter, I will discuss the fact that states often tries to justify their human rights violations by using circumstances or others ways that are actually not explicitly provided by the law.

They will try to challenge their human rights obligation by justifying their non-compliance as being in the framework of special circumstances or not on their territory.

It is important to highlight that nowadays its true that often, large democracies manage to challenge human rights in extrajudicial ways.

We can also, acknowledge that each of the six major human rights treaties has been ratified by more than 150 countries however, a lot of them still have a lot of issues and remain quite hostile concerning their duty to respect and comply with their human rights obligations.

35 Jackson R, 2011 “Culture, identity and hegemony: Continuity and the lack of change in US Counter Terrorism policy from Bush to Obama”, International Politics, 48 (2-3): 390-411.

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Thus it seems important to see and try to understand how and what are the most often justification used by states in order to challenge human rights obligations.

In a first section, the war against terrorism will be discussed and the prohibition of torture will be considered in the framework of the ticking bomb scenario.

In a second section, the violation of human rights in armed conflict circumstances will be approached.

Finally, I will address the extraterritorial application of human rights, as a numbers of states, and governments will show that as the abuse did not occur on their territory and that then they may not be responsible for human right violations.

• Section 1: Counter-Terrorism, the ticking bomb scenario a way to justify human rights violations?

Terrorist attacks have been arising all around the world, this led governments, states to take a number of measures and policies in order to fight those terrorist movements that are taking more and more place and power and who are establishing a climate of terror.

Nevertheless, when taking those specific measures and policies, states often forget that they still need to act within the law and especially within human rights law.

A) Terrorism and counter terrorism:

Terrorism aims completely at the very destruction of human rights, democracy and the rule of law. It is aimed at establishing terror between the people. It has a direct impact on the

enjoyment of a number of basic human rights. In fact, it targets especially the right to life, the right to liberty and the right to physical integrity but also a lot more.

This is why states regarding this growth of terrorist attacks have a duty to take effective measures in order to counter terrorism. It is not a right for states but a duty, to protect their country and ensure the security of their people.

It was shown and said that International Human Rights law is actually flexible enough to help states to address counter terrorism measures effectively and they have the obligation to ensure that all those counter terrorism measures themselves comply with human rights standard.

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It is true that effective counter terrorism measures and the protection of human rights are complementary and will mutually reinforce the objectives that must be pursed together as part of states duty to protect individuals within their jurisdiction.

However, more and more most countries when meeting their obligations to counter terrorism by rushing through legislative and practical measures have created negative consequences especially for civil liberties and fundamental human rights.

The big problem is that terrorism and thus counter terrorism triggers the will for states to derogate from non-derogable norms and thus to violate their human rights obligations.

It is especially after the terrorist attacks of the 9/11 that represented a new type and degree of threat that led to a sort of “close to panic” reaction of states and to rush to jettison familiar legal framework. In the context of the fight against terrorism we can see the fragility of the rule of law, the war against terrorism is becoming today a sort of war without rules, where states tries to eludes definitions, avoid legal constrains and shift policy objectives with minimal accountability.

Another important issue to acknowledge is the fact that a lot of governments that actually style themselves as champions of the rule of law against the absolutisms or nihilism of terrorist have at least temporarily in order to fight terrorism construed and established a sort of “right free zone” that would enable them to act without taking into account basic human rights.

The war against terrorism becomes then a justification for a number of abuses in the human rights context. States actors involved in counterterrorism have publicly justified the adoption of what we could call “bad measures” or “non legal measures” as the use of harsh

interrogation techniques, the practice of extraordinary rendition or the practice of holding prisoners. With those non-legal behaviors they try to persuade us of the necessity, usefulness and ethical defensibility of these measures. Here it is clearly obvious, that counterterrorism is the open door for human rights abuse, as states allows themselves, because of urgent and stressful aspect of the situation to completely bypass and challenge human rights obligations. It is relevant to signal the most challenged human rights obligations in the context of the war against terrorism. The right that is most often challenged and violated is the right to life. Human rights law permits indeed the use of lethal force when it is strictly regulated; death penalty is not prohibited but must be used in last resort, after a fair trial and under specific conditions. In order to consider lawful the use of lethal force it is necessary to use it for

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self-defence or the self-defence of another’s life. Moreover, it has to comply with the principle of proportionality.

In fact in the context of counter-terrorism, states will easily include deliberate or targeted killings into their measures in order to eliminate specific individuals as an alternative to arresting them and bringing them to justice. As terrorism is out of control most of the time, states and government act in a hurry, they rush into taking decisions and act without taking into account human rights law.

It is important to set out some examples regarding the war against terrorism that some states use in order to justify their action regarding terrorist.

One of the most well known is the Guantanamo Bay detention camp, which holds terrorist prisoners who are indefinitely detained without any charge or trial and with no access to counsel. In order to justify those abuses, the United States government is arguing that those detainees are not prisoners of war as the war against terrorism may not be qualified as an armed conflict in the context of humanitarian law and thus terrorist detainees may not fall under the Third Geneva Convention which regulates the conditions of detentions of prisoners of war. Thus, the standard of treatment of those terrorists’ prisoners are determined by discretionary executive policy and not legal norms. Moreover, they may not be qualified as civilians so they cannot fall under the fourth Geneva Convention.

Also, the prison of Abu Graib is a relevant abuse and violation of human rights regarding the conditions of detention of terrorists’ prisoners. Here the United States government gave as a justifications for its non compliance with the prohibition of torture and the condition of detention, that the violation of human rights and abuses were executed by only low level soldiers and then no more senior commanders so that their was not an effective control on those soldiers then the united states could not be held responsible.

Those examples shows and reflects a determination from states to fight terrorism

unconstrained by fundamental principles of international human rights and humanitarian law36.

This then can lead to dangerous excess, this is why human rights bodies, such as the Human Rights Committee urged states whose reports have come under review in the past years to conform their counter-terrorist policies to their human rights obligations37. Also,

Non-36 Kenneth Roth, Global Governance getting away with Torture, V.11, n°3 July-September 2005, p.389-406.

37 Joan Fitzpatrick, Speaking Law to Power : The War Against Terrorism and Human Rights, European Journal of International Law, 2003.

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Governmental Organizations with also the help of human rights monitoring bodies have reiterated fundamental principles and stressed that their preservation is vital in a time of crisis and asserted that their erosion would hand the terrorist a victory over tolerance, the rule of law and finally basic human dignity.

B) The Ticking Bomb Scenario and the prohibition of torture:

It seems adequate to join those two notions together as the prohibition of torture is the human rights obligation that is the most challenged and violated in the context of the ticking bomb scenario.

In is true that even if the prohibition of torture is a norm of Jus Cogens, it persists, countries that have ratified treaties outlawing torture are in some cases actually more likely to use torture than countries, which have not joined such international conventions.38

The ticking bomb scenario represents by far the most sophisticated advocacy of legalizing interrogational torture. In fact, here the excuse of necessity if often brought out, as torture would seem necessary to avoid a catastrophe. This represents the situation and context of the ticking bomb scenario. Torture is seen in this context with an utilitarian point of view, it is seen as an unfortunate but essential tool in the fight against terror to ensure the greater good. The term “torture” is defined in the Convention Against Torture of 1984 as:

“Any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from or a third person information or a confession, punishing for an act he or a third person has committed or is suspected of having

committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of

or with the consent or acquiescence of a public official or other person acting in an official capacity39.

The article 2 of the same convention prohibits the use by state party of torture in any territory under their jurisdiction. The prohibition of torture has the status of non-derogable norm and a 38 Rebecca Evans, The Ethics of Torture, The New Press, 2005

39 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

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jus cogens norm, this means that it can never be adjusted and thus no derogation, reservation or limitation to this obligation may be accepted. Moreover, the Statute of the International Criminal Court qualifies torture as a crime against humanity40.

The article 15 of the Convention Against Torture established the non-admissibility of evidence that would have been extracted by torture. This then leans on the relevance of this prohibition of torture.

However, state policies may decide in certain circumstances to evade from those absolute prohibition of human rights law. In fact, it has been argued for several years now that if the stake is high enough torture should be permissible. Indeed, certain scholars see this absolute and complete ban of torture in catastrophic and special circumstances as indefensible41.

Thus, the ticking bomb scenario has been used since the attacks of the 9/11 as a justification by leaders, states, to challenge and adjust in their way, their violation of the prohibition of torture.42

The ticking bomb scenario can be understood as a situation where the torture of a terrorist suspect in order to find the location of a bomb set to explode may be seen as justified. With the context of the ticking bomb scenario a state of urgency and exceptionalism was created, through which the established representation of norms such as the prohibition of torture may be challenged.

In this context, a debate is often arising on the physical integrity of a large number of people and the physical integrity of a terrorist43. Isn’t it better to save the life of thousands of person

by torturing only one? It is with this assumption that the ticking bomb scenario has been used most controversially to formulate arguments around the justification for torture of terrorist suspects.44

However, when and who would be able to evaluate the highness of the stake and the

emergency of the situation? The ticking bomb scenario has indeed been criticized as thought

40 Rome Statute of the International Criminal Court, 1998

41 Dr. Maureen Ramsay (2006), Can the torture of terrorist suspects be justified?, The International Journal of Human Rights, p. 103-119.

42 Dr. Maureen Ramsay (2006), Can the torture of terrorist suspects be justified?, The International Journal of Human Rights, p. 103-119.

43 Lucia Zedner, Terrorism, the Ticking Bomb Scenario and Criminal Justice Values, Criminal Justice Matters, V.73, 2008.

44 Lucia Zedner, Terrorism, the Ticking Bomb Scenario and Criminal Justice Values, Criminal Justice Matters, V.73, 2008.

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experiment that makes doubtful assumption about the existence, the imminence, the gravity and difficulty of averting the threat.45

If torture would be allowed for a certain type of emergency scenario, as the ticking bomb scenario, would we not be failing into an open door for every slightly emergency cases and fall into excess and misbehavior regarding torture?

It is argued in order to show that torture should be exercised in emergency circumstances that when there is a belief that a suspect might have vital information it would thus be preferable to act with harsh techniques.46 Then here only a belief would be good, no need for a certainty

of the suspect information? This would amount to real dangerous excess and torture would be used every time there is a little belief that someone may have information.

Some scholars have also explained that they do not want to legalize torture but that the executive could break the rules and assure and enable public officials to obtain political absolution for illegal conduct.47 This seems completely outrageous as it would be too easy for

public officials to get away with the abuses and violations they are actually culpable for. If states start making exceptions for some particular circumstances, at the end exceptions will be accepted for everything and in the case of torture it will become common to use harsh

techniques to interrogate suspect.

Then, to conclude on the ticking bomb scenario as a justification for using torture in order to gather information from terrorist suspect, it must be understood that its true that torture is a way that works and it may seem quicker to gather information from terrorist suspect in time of emergency, however, it must be shown that though we can never be sure of the true motivation of the terrorist, we can be sure that violation of human rights and

intelligence gathering through torture will not extinguish the threat terrorist pose.48 The use of

torture does not and will not yield to the threat posed by terrorism.

Thus, the ticking bomb scenario as a justification for the use of torture may be seen as the easiest way for a short time but would amount to dangerous excess if used as a normal way of dealing with terrorism. In fact, there is no determined end to torture, so accepting it fro certain 45 Lucia Zedner, Terrorism, the Ticking Bomb Scenario and Criminal Justice Values, Criminal Justice Matters, V.73, 2008.

46 Dr. Maureen Ramsay (2006), Can the torture of terrorist suspects be justified?, The International Journal of Human Rights, p. 103-119.

47 Dr. Maureen Ramsay (2006), Can the torture of terrorist suspects be justified?, The International Journal of Human Rights, p. 103-119.

48 Dr. Maureen Ramsay (2006), Can the torture of terrorist suspects be justified?, The International Journal of Human Rights, p. 103-119.

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situation would amount to a lot of abuses. Regarding this issue, they may not be any

permissible way of derogating from this prohibition of torture and states should not be able to adjust and try to make this obligation more flexible.

• Section 2: Armed conflict context, a way for state to challenge their human rights obligations.

In this second section, I will show that the armed conflict framework is often used as special circumstances in order to avoid human rights obligations, which are subject to abuses in those situations.

When talking about human rights violations and abuses it seems relevant to address the problem of the applicability of human rights law and human rights obligation in the context of armed conflict. In fact, the context of an armed conflict is often the object of gross violations of human rights that states may justify as being in the context of war and then human rights law may not be apply and they do not need to comply with their human rights obligation at all. The abuses regarding human rights in the context of armed conflict are mostly relevant regarding civilians and individuals who are actually not part of the conflict who then suffers from this context of war and of human rights abuses.

It is true that when there is an active armed violence and an unstable government or in constant upheaval, it creates a difficult context for documenting human rights violation and for developing programs to address war violence.49

It is in this context of armed conflict that human rights are challenged the most.

A lot of basic human rights are being challenged in the context of armed conflict. The right to life even, the right to fair trial, and the conditions of detentions of prisoners of war are often not respected.

Also, the international community has acknowledged that human rights abuses such as rape shows that sexual violence is used strategically within conflict. The United Nations repeatedly called it a “weapon of war”.50

49 The Lancet, Supporting local efforts to document human rights violations in armed conflict, V 357, 27th January 2001, p.302-303.

50 Anna Maedl, Rape as a Weapon of War in the Eastern DRC ? The Victims’ Perspective, Human Rights Quarterly

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It has been shown that other crimes against civilians that are carried out by groups of combatants’ underscores the fact that these crimes are part of their modus operandi.51

However, humanitarian law regulates the conditions of warfare and armed conflict. In fact, the article 75 of the protocol regulates the rights of the individuals; it states that the violence to the life, health or physical or mental well being of persons shall be prohibited.

Even if this is a provision from the Geneva Convention, which regulates international armed conflict and then enters in the scope of international humanitarian law, it follows the

principles of international human rights law.

There is a large debate on whether human rights law would still be of interest in the context of an armed conflict because; there is humanitarian law that is meant to regulate those situations. In fact, many scholars have asked themselves if human rights bodies would actually have the mandate and the expertise to evaluate military operation and then pronounce themselves on human rights violations. This debate concerns the relationship between human rights law and humanitarian law. Does human rights law continues to apply during armed conflict?

There are indeed apparently problems with the mandate and expertise of human rights bodies; a lot of terminological and conceptual differences are arising between those two bodies of law.

Regarding, those problems of violations of human rights law, human rights bodies and states should and must have the goal of a strict control not only of force indented to kill but also of any unintended outcome involving the deprivation of life as an example.52

However, it must be understood that as human rights law and humanitarian law combine to set a floor for fundamental standard of humanity, then even during the gravest crisis, this apparent indifference to humanitarian law on the part of the hegemonic power is legitimate concern to the human rights regime.

It is important to remember that when states tries to deviate from their human rights obligations, because of armed conflict context, it must always be seen with a humanitarian law point of view and acknowledge that human rights law still applies.

The International Court of Justice in its nuclear weapons advisory opinion states that human rights law does not disappear it is simply displaced by international humanitarian law.

51 Anna Maedl, Rape as a Weapon of War in the Eastern DRC ? The Victims’ Perspective, Human Rights Quarterly

52 Kenneth Watkin, Controlling the Use of Force : A Role for Human Rights Norms in Contemporary Armed Conflict, The American Journal of International Law, V.98, n°1, January 2004, p.1-34.

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Those two bodies of law must be seen as complementary and should work together.

Then states should not free themselves from their human rights obligation because of the fact that they found themselves in a context of war, of armed conflict and that human rights law should not apply.

Human rights law was before seen to only apply in times of peace and international humanitarian law was regulating times of war. However, international human rights law is inherent to all human beings and thus those rights can be affected both in times of peace and in times of war.

That is to say that, human rights law should and continues to apply and is of relevance in situation of armed conflict.

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• Section 3: The extraterritorial application of human rights treaties, a notion often pointed out to defy the compliance of states with human rights law.

The last justification that I will address, that states often use as an excuse to not comply with their human rights obligations is the issue of the extraterritorial application of human rights treaties. Extraterritorial application of human rights treaties is understood as the International Law Commission in its draft articles on the Vienna Convention on the Law of treaties

established:

“ Certain types of treaty, by reason of their subject matter, are hardly susceptible of territorial application in the ordinary sense. Most treaties, however, have application to territory and a

question may arise as to what is their precise scope territorially”53

It has indeed sometimes been contested that conventional human rights obligations bind states outside their territory.

It is true that the extraterritorial application, the scope ratione loci of human rights treaties is not very clear.

In its article 2, the International Covenant on Civil and Political rights states that:

“Each state party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present

covenant.54

As a result, the United States deny the extraterritorial applicability of the Covenant and also of the United Nation Convention Against Torture, which requires state to take effective measures to prevent torture in any territory under their jurisdiction. Then, here it is possible to acknowledge a challenge regarding the extraterritorial applicability of human rights treaties. Human rights are defined as of a territorial scope, limited to a state’s own territory where it exercise full jurisdiction.

Then it is often used as a justification for state to challenge and then bypass their human rights obligations.

53 International Law Commission, ‘Draft Articles on the Law of Treaties with Commentaries’, (1996) Yearbook of the International Law Commission 54 International Covenant on Civil and Political Rights, article 2.

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The situation where this debate on the extraterritorial application of human rights treaties usually arise is concerning “state conduct, which affects persons outside the state territory and causes a lack of enjoyment of human rights and which had it been taken on a state’s party territory would be qualified as a violation of a human rights treaty”55. In fact, usually those

situations that pose problems are for example the extraterritorial deprivation of life or of liberty.

The United States with the Guantanamo Bay detention camp, argue that it is not on United States territory, it is qualified as an offshores facility and thus they use this as a justification to challenge and adjust their human rights obligation.

However, United States official are working there and are taking part in the human rights abuses that are taking place in the camp.

The extraterritorial application of human rights treaties has been shown in the Lopez v. Burgos Case where a communication was brought in front of the Human Rights Committee. The fact where that a trade union leader fearing persecution in Uruguay, fled to Argentina. The Human Rights Committee established Uruguay jurisdiction in Argentina, Uruguay had indeed effective control over its agents in Argentina. It was then established in this case that when a state has effective control over its agents acting on the territory of another state, it should be responsible for their human rights violations and thus should comply with human rights obligations established in human rights treaties56.

In the Lopez v. Burgos Case, the court applied the extra-territorial dimension of human rights treaties and the extraterritorial applicability of human rights treaties.

Moreover, in the Bankovic Case, the European Court of Human Rights expressed itself on the extraterritorial use of military forces by western governments and addressed that human rights bodies reluctantly saw it57.

Thus the extraterritorial conduct of a military or law enforcement nature against a suspected terrorist with or without the consent of the territorial state may give rise to claims that human rights treaties or customary norms have been violated.

Regarding, the view of international courts on the extraterritorial application of human rights treaties, it must highlighted that there is a significant link between the topic of extraterritorial 55 Karen Costa, the Reach of Human Rights in a Globalising World: Extraterritorial Application of Human Rights Treaties, Journal of International Humanitarian Legal Studies, 2010, V.1, p.399-400.

56 Human Rights Committee, Lopez Burgos v Uruguay, Merits, Communication No 52/1979, 29th July 1981.

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applicability as a fundamental question and the relative experience of the International Court of Justice in addressing questions of this type.

It is true that most jurisprudence on human rights law at the International Court of Justice has been about the extraterritorial context.58

Finally, even if the extraterritorial application of human rights treaties seems to be still an on-going debate on the international law scene and that it seems difficult and problematic to reconcile universality and effectiveness, it must be highlighted that the Universal Declaration of Human Rights establishes a universal application of human rights and thus shows that states have pledged themselves to achieve “the promotion of universal respect for an observance of human rights and fundamental freedoms”.59

The universality and human dignity are then the foundational principles of international human rights law.

To conclude on this chapter, it was important to highlight in the non-legal ways that states uses in order to challenge their human rights obligations. We must acknowledge that those situations where states often violates their human rights obligations are nowadays especially the war against terrorism and armed conflict. It seemed for me important to

understand and highlight those circumstances and issues because I think nowadays especially with the war against terrorism, even if we have more human rights treaties and that human rights are taking more place in international community, states always find ways to challenge those obligation and to justify their abuses.

IV- CONCLUSION:

58 Ralph Wilde, Human Rights Beyond Borders at the World Court : The Significance of the International Court of Justice’s Jurisprudence on the Extraterritorial Application of International Human Rights Law Treaties, 2013, Oxford University Press.

59 Marco Milanovic, Extraterritorial Application of Human Rights Treaties, Oxford Monographs in International Law

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To conclude, what I wanted to point out during this thesis, is the problem that is today arising, with all those tensions and conflict in the world, which are bringing a climate of stress and emergency, countries and government still tend to use practices and faster ways to get

information or to deal with certain situations without taking into account the respect of human rights and especially regarding torture, the respect of human dignity.

In the first part of my thesis I decided to focus and analyze the ways provided by the law that enables states to adjust et make more flexible their human rights obligations. In fact, by the way of reservation, they have the possibility to adjust some terms and provisions of the treaties in their ways. Nevertheless, the possibility of reservation is still quite strictly regulated, as human rights bodies want states to comply with all the provisions of human rights treaties. Moreover, reservations need to be accepted, as states may not make a reservation on every provisions of the treaty.

The fact that states are able to reserve from a treaty is part of the respect of their sovereignty. However, human rights monitoring bodies sometimes have a sort of balanced point of view regarding this possibility for states to reserve from a treaty provision. In fact, they often validate those reservations as they want most states to be parties to human rights treaties, but sometimes they will be more severe as they fear that if they allow to many reservations, then human rights treaties would lose their goal and purpose.

This joins what I highlighted during this paper, is either the too flexible side of human rights law and in another way the fact that it might seem too strict in certain situations.

Another, legal way for states to soften and make more flexible their human rights obligations, is the possibility as was explain above in the first chapter, to limit and derogate from certain rights. Those two ways of adjusting and not complying with human rights obligations are here to allow states in special circumstances as the protection of national security and by being provided by the law to limit certain human rights or to derogate from them.

Those two possibilities are regulated in the sense that in order to make a limitation on a right the state has to fulfill a number of conditions.

Moreover, concerning the derogation of rights but also the limitation, states may not derogate from every rights, in fact some human rights norms are non derogable and states may not derogate and limit jus cogens norms which are peremptory norms.

The possibility for states to derogate from and limit certain of their human rights obligations is a way for them to act and take the necessary measures in order to restore national security and stop the state of emergency.

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However, scholars have shown that stables democracies and countries with a robust

judiciaries are likely to use this right of derogation and limitation for a long period, which can be really dangerous for the functioning of the state itself. Also, there is then a potential for abuse of those escape clauses and it is argued that regarding derogation it can easily

undermine the ‘raison d’être’ of human rights treaties. Human right treaties and norms, it is true, by being the target of derogations, limitation or reservation may easily lose their purpose and object and thus become ineffective if their obligation and provisions are too easy to adjust and modify.

In my belief, I think that regarding escape mechanism that are provided by the law, states need those when facing exceptional circumstances but, those mechanism need to be more strictly regulated as it appears to be too easy to abuse from those legal ways to modify and not comply with human rights obligations.

Also, those escape mechanism can weaken international agreements by authorizing deviant behavior precisely when treaty compliance is needed most.

In a way, the formal tools, the ways provided by the law that enables states adjust their human rights obligations may sometimes be seen as too flexible and too easy to modify but there must always be a balance because if they would be too strict, there would not be enough states that would ratify human rights treaties and thus be bound by human rights obligations.

Furthermore, concerning the second part of my thesis, I wanted to analyze and explain the other manners actually not explicitly provided by the law that states often use in order to deviate from their human rights obligations or in order to justify human rights violation. The first that comes in mind and especially in our present world is the war against terror. It is true that the fight against terrorism has led states and government to fall into enormous abuses of human rights. Terrorism, by bringing a climate of terror, fear and panic forces governments to act faster and quicker in most of time a disorganized way that lead them to bypass their human rights obligations.

Human rights law is the most affected and targeted in this context of terrorism as it is the basic rights of people that terrorists are violating and targeting.

Moreover as regard to counter-terrorism, states in this situation claim that it justifies the fact that they can breach their human rights obligations.

They in fact, justify the breaching of the prohibition of torture in the context of the ticking bomb scenario. The rights to life, the rights to fair trial and the condition of detentions are the most challenged and thus violated rights in the war against terrorism.

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