LAW 29 APRILE

THE CONCEPT OF JURISDICTION

Slide
Where do human rights apply?
• Human rights treaties apply in states that ratified them.
• Each state must ensure its human rights obligations
• Not all states have agreed to take on all human rights obligations
• Human rights for individuals correspond with human rights obligations of the relevant state
• Core human rights are customary law: their application is not dependent on a formal expression of
consent by the State.

Human rights obligation also provided by costumary rules, these obligations (since of costumary
law) apply to all the states of the international community. The scope of application of Human
rights treaties includes special rule as regards their application. Basic rules that apply to all human
rights treaties are that, these treaties apply in states that ratify them, therefore in order to be bound
to a treaty, states have to ratify them or sign them, so to express formally the will to be bound by the
treaty.
Problem Who are the individuals that are entitled to claim the protection of Human Rights. Under
that specific treaty.

Slide

2. Where do human rights apply?

3 Art.1, ECHR: The High Contracting parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in Section 1 of this Convention. Jurisdiction can imply responsibility
both inside and outside the territory of a State party

Art. 2, ICCPR: 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 recognized in the present
Covenant…

Human Rights Committee: General Comment No. 31/2004: States Parties are required by article 2,
paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their
territory and to all persons subject to their jurisdiction. This means that a State party must respect
and ensure the rights laid down in the Covenant to anyone within the power or effective control of
that State Party, even if not situated within the territory of the State Party.

What is the provision I this regard of the most common treaties of human rights?
We will focus on two treaties the European convention of human rights amd the international
covenant on civil and political rights.
Europeam human rights convention, art 1 -the states that ratified convention shall secure…
Jurisdiction in article one can imply responsibility both inside and outside the territory of a state
party. This concept was reteraited by the European court of human rights.
Art 2- reads,
So the criteria for limiting the application of human rights treaties are the concept of jurisdiction
And as regard the covenant of territory and also jurisdiction

Concept of territory : a state is bound to respect the rights of individuals on its territory. It doesn’t
matter wether these individuals are also nationals of the state.
2 problems:
1)What happens when the violation occurs in a territory which is not the territory of the state, does
the concept of jurisdiction also include the possibility that the state can commit violations of human
rights abroad? (state responsibility)
2 problem coordinate the concept of jurisdiction with the concept of international state
responsibility. In order for bringing a state before a court stating that the state has violated
The humn rights that it has to respect towards individuals, we have to demonstrate the responsibility
of the state.
The issue that remains unsettled is wether to establish a jurisdiction it is sufficient to prove tha an
action abroad belongs to a state under the law of state responsibility or it is a separate and distinct
requirement. (jurisdiction of the state)

Slide
THE CONCEPT OF JURISDICTION
This notion cannot be intended to limit the applicability of HR treaties only to the territory of a
State. Even in the case of the ICCPR, which refers to “individuals within [the State] territory and
subject to its jurisdiction”, it has been consistently held as not preventing the extraterritorial
application of HR treaties by (see HRC in General Comment n. 24 and ICJ in its advisory opinion
on the Legality of wall in Palestine).
The issue that remains unsettled is whether, to establish “jurisdiction”: it is sufficient to prove that
an action abroad is attributable to a State party under the law of State responsibility or it is a
separate and distinct requirement?

What are the rules that govern state responsibility?

According to general rules of state responsibility, a state is responsible when an act is performed by
its agents, by its organs. A state’s organ is responsible for violating human rights treaties even if
The violation/the act is performed abroad. If an italian soldier violates hr law abroad Italy will be
responsible for the violation of the right of that individual. But this is sufficient to say that the
individuals are under the jurisdiction of the state, which means that individuals can bring the case
before the European court of human rights,
or in order for demonstrating the existence of sates jurisdiction it is necessary to demonstrate
anything more?
Concept of jurisdiction is one of the most complex to deal with concerning human rights treaties.
In order to demonstrate that a state committed a unlawful act under international law according to
general rules of state responsibility, it occurs two demonstrate two elements. The classical elemennt
of the wrong of the state the subjective one and an objective one
The objective one , is a violation of an obligation of the state, the subjective element is the
possibility to attribute that violation (that can look the state???)
the general rule is that an act belongs to the state for sure when the act is committed by one of its
organs (the organs of the state are es army, administration, the government etc are all organs of the
state)
Another possibility for attributing the responsibility for ex individuls to the state is that these
individuals are de facto organsof the state, meaning that they depend from the state for their
survival and for the desition of this organ are overlpas with the decision of the state and
Another possibility is that individuals acted under the effective control of the state.
The question is to know wether the fact that the state is responsible for all the actions performed by
it’s agents even abroad also implies that individuals that are victims of the violation can bring an
act before the European court of human rights or wether there is the need of demonstrating
something more in order to obtain the protection of the court.
Because a state agent can engage the responsibility of the state even when it performs its conduct
abroad. Another state can caleim the responsibility of the state to which the agents belong,
If a soldier comits a hr violation in the territory of another state against a victim who is a national
of the other state, may the victim bring the case before the European court of human rights or not?
Or the state is just under a responsibility of violaton hr of the victim in resoect of the state of the
nationality of the victim. The state assumes an obligation directly towards the individual or we have
to assume that the state was responsible(one of his agents) but this does not mean that the victims
have the protection ensured by the European convention of human rights.
The concept of responsibility it is sufficient

Where do human rights apply slide (sopra)

Art 1 ECHR the high contracting parties shall secure to everyone within their jurisdiction the rights
and freedoms defined in section one of this convention : answer to the question

It is important that it is committed within the territory of the state. State bound by international law
to respect its citizens even abroad Giulio regeni, Italy has to protect his rights.
Criminal prosecution of crimes: a state is under the duty to criminally persecute that violation state
has jurisdiction over its nationals. Ex soldier commits war crime, the state is under obligation to
persecution of the crim 4 geneva convention protection victims of war. Commenti finiti
Ù
The European convention of Hr does not use the term citizenship nor nationality, it doesn’t matter if
person is a national of the state or not, the most important thing is that the person is under the
jurisdiction of the state. One thing rules responsibility of stae, state is responsible just when the state
violates an obligation, incoming on that state, a state should have ratified the treaties and when
rtified it it is bound to all the obligations of the treaties but only insofar the treaties applies to that
situation

Art1 EcHr And article to of the covenant has nothing to do with the question of responsibility, they
are just provisions that are aimed at delimiting the scope of application of the treaty. In order to see
if the European convention applies with regard to a specific situation we have to see wether the
individual is under the jurisdiction of the state is a specification of the state of the European
convention

If the convention doesn’t apply it does not mean that the state is not bound to respect the human
rights of people abroad, because there are customary rules on individuals that bound the states to
respect the rights of agents
Ex case of Russia commission of human rights violation by Russia in the territory of Ukraine and in
respect of ukranian population. But the European convention does not apply if we can’t
demonstrate that individuals were under the jurisdiction of the jurisdiction of the state, is not a
rulemon attribution it is a delimit of the scope of application of the treaty.

Extraterritorial jurisdiction ECTHR Lozidou v Turkey. slide

EXTRATERRITORIAL JURISDICTION ECtHR, Loizidou v. Turkey, 23 March 1995

The applicant complained, in particular, that her property rights had been breached as a result of the
continued occupation and control of the northern part of Cyprus by Turkish armed forces which
had, on several occasions, prevented her from gaining access to her home and other properties there.
The Court recalled that the concept of “jurisdiction” under Article 1 ECHR was not restricted to the
national territory of the Contracting States. In particular, State’s responsibility might also arise
when as a consequence of military action – whether lawful or unlawful – it exercised effective
control over an area outside its national territory. States’ obligation to secure in such areas the
Convention rights and freedoms derived from the fact that they exercised effective control there,
whether that was done directly, through the State’s armed forces, or through a subordinate local
administration. In the present case, Turkey had acknowledged that the applicant had lost control of
her property as a result of the occupation of the northern part of Cyprus by Turkish troops and the
establishment there of the “Turkish Republic of Northern Cyprus” (the “TRNC”). Turkey exercised
effective overall control over northern Cyprus through its military presence there, with the result
that its responsibility under the Convention was engaged for the policies and actions of the “TRNC”
authorities. Consequently, the acts of the “TRNC” authorities, supported by Turkish forces, fell
within Turkish jurisdiction.

The jurisprudence of the European court of human rights is not very coherent.
Unhuman treatment the question is does the European court of human right apply even if the
applicant is not a national of the state. Under the European conventions of human rights the
nationality is not the criteria for the application of the convention. When a state makes a violation of
human rights towards a national of another state provided that the individual is under the
jurisdiction of that state, otherwise if it’s not under the jurisdiction o the state this state will respond
for the violation but towards the state of the nationality of the victims which is different.
Individuals could ask to the state diplomatic protection but it’s a right of the state not of the
individual so the state decides if apply dipomaticl protection or not
This is why in many cases is loizidou vs turkey, individuals try to find arguments for stating that a
violation commited by state parties of the convention false into the scope of the convention since
the individuals are under the jurisdiction of a state party.

Cyprus outside the territory of Turkey and the violation of hr and in particular of property rights
was commited by Turkish armed forces. The question was , was the violation of human rights
commited in a territory under the jurisdiction of the state or towards an individual within the
jurisdiction of the state or not. In the case where the applicant was able to demonstrate that thr
violation within the jurisdiction of the state , the European court of human rights could declare the
competence to address the violation, to pronounce on that violation, otherwise it should hve
assumed that the violation fell outside the scope of the European convention of human rights,
I have to demonstrate two things
1) Responsibility of the state (violation was commited by Turkish armed forces so an organ of
the state
2) Thin to demonstrate: that brought the case before the court was under the jurisdiction of
the state when the violation was committed, and demonstrate that u were effective victim
of violation and that there was a nexus between the the armed Turkish forces and the
violation that u suffered.
The court reported that the jurisdiction under article one of the European convention of hr was not
restricted t the national territory of the contracting state
State responsibility may also rise wether as a consequence of military action, wether lawful or
unlawful.
Military action lawful when self-defense,
Another hypothesis of military lawful action its when it occurs with the consent of the state
Isis, Iraq asked intervention of international military intervention.
States responsibility consequence of military action, if exercise effective control over an area
outside its national territory, effective control. They exercised effective control through subordinant
organization
North part of cyprus not a part of territory of Cyprus but is. A part territory turkey
Government is able to exercise an effective control, it is the only body recognized there we can
consider that that area it is a state under international law and the government is the only
independent authority exercising it’s jurisdiction over that part of the territory
Case of Crimea and Mombasa , what happens if an area inside the territory of a state is outside the
control of the state but its under the control of another state, Other case is when a foreign state is
present with ist troops
Two conditions to establish if a state exercises an effective control is :
Forced the decisions taken by the authority on that part of the territory are not the decision of cyprys
but turkey, the mere physical presence is not sufficient it is necessary for effective control that
there is a sort of overlapping between the republic of northern Cyprus and turkey. This republic
depends for its survival to turkey , a part of turkey outside turkey
So it was actually easy to demonstrate that that part of the territory notwithstanding geographically
inside the territory of Cyprus was under the effect control of Turkey on one hand and on the outside
the control of Cyprus, two elements 1) effective control of turkey
2(the territorial state should loose complete control on it’s territory.
So its demonstrated that that area of the territory is under the effective control of the foreign state.
Therefor the applicant could demonstrate that the violation of her rights were committed by Turkish
armed forces(Turkey was responsible for the violation, committed by state agents of turkey, and so
demonstrated that the European convention applied and there European court was competent to
decide on the matter , that area is under the jurisdiction of turkey and outside the control of Cyprus

Bankovic CASEEE slide

Slide 1
ECHR (GC), Bankovic and Others v. Belgium, 19.12.200
1 Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on
23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid.
The court discussed the meaning of article 1: ‘As to the ‘ordinary meaning’ of the relevant terms in
Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international
law, the jurisdictional competence of a State is primarily territorial. While international law does
not exclude a State’s exercise of jurisdiction extraterritorially, the suggested bases of such
jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive
personality and universality) are as a general rule defined and limited by the sovereign territorial
rights of the other relevant States. …a State may not actually exercise jurisdiction on the territory of
another without the latter’s consent, invitation or acquiescence unless the former is an occupying
State (Loizidou), in which case it can be found to exercise jurisdiction in that territory, at least in
certain respects . . The Court is of the view, therefore, that Article 1 of the Convention must be
considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of
jurisdiction being exceptional and requiring special justification in the particular circumstances of
each case.
’slide 2
6 ECHR (GC), Bankovic and Others v. Belgium, 19.12.2001 …
In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in
exceptional cases that acts of the contracting states performed, or producing effects, outside their
territories can constitute an exercise of jurisdiction by them within the meaning of art 1 of the
convention.’ ‘Reference has been made in the court’s case law, as an example of jurisdiction ‘not
restricted to the national territory’ of the respondent state to situations where the extradition or
expulsion of a person by a contracting state may give rise to an issue under arts 2 and/or 3….
However, the court notes that liability is incurred in such cases by an action of the respondent state
concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such
cases do not concern the actual exercise of a state’s competence or jurisdiction abroad.’ ‘In sum, the
case law of the court demonstrates that its recognition of the exercise of extra-territorial jurisdiction
by a contracting state is exceptional: it has done so when the respondent state, through the effective
control of the relevant territory and its inhabitants abroad as a consequence of military occupation
or through the consent, invitation or acquiescence of the government of that territory, exercises all
or some of the public powers normally to be exercised by that government.’ and ‘Additionally, the
court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state
include cases involving the activities of its diplomatic or consular agents abroad and on board craft
and vessels registered in, or flying the flag of, that state. In these specific situations, customary
international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction
by the relevant state.

Controversial case , it regards the air strikes carried out by NATO forces against the Serbian ad.
Television during the conflict in jugoslavia 1999 . Misovoic was the president of Yugoslavia,
milosovic policy was to create a Serbian state with jugoslavia so expel all the people that did not
belong to the ethnic group of Serbian.it was a criminal project infact milosovic was accused before
the international tribunal for international crimes including genocide, he committed suicide in
prison.
During the conflict was discussed if during the serbs republic was under the effective control of
Serbia or not. During that conflict NATO intervened without having an authorization by the
security council and the effect nat
Justify intervention under the label of humanitarian intervention made that was carried out in order
to protect human rights people in the territory of Kosovo, during the military intervention of Nato
forces they hit the Serbian radio and the television facilities that are not military objective.
U have to abstain from causing damages to civilians, population and civilian buildings, they
destroyed a civilian building and caused the death of people working in the building. The relatives
of people that died, tried to obtain protection from the human rights violation suffered, by bringing
the case before the European court of human rights, why didn’t they act directly against the Nato,
why the case against member states of the NATO and not against the Nato? Against ex Belgium
and not against the international organization. Because the court has jurisdiction only against states
and individuals it does not have jurisdiction over international organizations.
Serbia wrote a case against all the members state of the NATO. Individuals that should demonstrate
that are under the jurisdiction of the state, it was difficult to demonstrate that they were under
jurisdiction of the state because the relatives brought before the court states that were already
members of the European convention of Human rights and that were also members of the NATO

The attack was performed by Nato forces and Nato forces are made by forces of different states
As regards for the responsibility on the states to which the troops belonged it was not a problem
But the relatives of the victim assumed that since the attack was performed by the troops of the
Nato, this automatically meant that the victims were under the jurisdiction of the state parties to the
organization. The problem is that.

One should say states members of the NAto have a certain control over the state, over the victims,
The troops of NATO were not inside the state, they were outside this was problem however court
said
The court applies as regards the interpretation of the norms of the europran convention , the rules
included in the Vienna convention.
The court said as the ordinary meaning of the terms of article one of the convention, objective
interpretation, first clarify the ordinary meaning of term within the treaty – Vienna convention, art 1
convention, the court said that from the stand point of public international law the jurisdictional
competence of a state is primarily territorial, the European court of human rights intends the
concept of jurisdiction in a sense that is also include possibility that jurisdiction is extraterritorial,
the suggested basis of such jurisdiction , including nationality, diplomatic and consular relations
effect protection, passive personality anc the universality are as a general rule defined and limied by
a sovereign territorial rights of other relevant state. A state may not exercise jurisdiction on the
territory of another state, without the latter consent, invitation or acquiescence, unless the former is
an occupied state in which case it can be found jurisdiction in that territory at least in certain
respects. There are very limited hypothesis were the state can exercise extraterritorial jurisdiction.
Es a state can exercise extraterritorial jurisdiction when the violation occurred on a boat with the
flag of that state or when the violation is committed within consular and diplomatic relations even
abroad or in the case her there is a military occupation but except these hypothesis it is very difficult
to demonstrate that the state may exercise extraterritorial jurisdiction. Art 4 must be considered to
reflect these ordinary and essentially territorial notion of jurisdiction.. exceptional and requiring
specil justification in the particular cirm
Testo slide “however…
Case when a state decide to extradite or expel a person o the territory of another state example
Libian nationals that are expelled from Italy and sent back to libia, they know that there they can be
subject to torture or unhuman acts this may fall on the first hypothesis mentioned by the court
Other hypothes
Legge
Intervention of NATO doesn’t fall into these hypothesis
Court excluded the jurisdiction of the state so the case did not fall under the European convention of
human rights
States can do abroad what they cant not do a
T home
Is the main critique to this decision
Critique Why so different if air attack from outside? its the same cause is sky of nation. This is war
crime

First responsibility of organizations fall on members of that organization, the sending state should
be responsible for acts committed by its soldier(of his state) international organization is
responsible too now, but problem is to find a tribunal to send international organization, there is not.
Problem is immunity of international organization in domestic court, immunity from foreign and
domestic jurisdiction.
conclusion only few cases jurisdiction are allowed

LAW 4 MAGGIO

The concept of jurisdiction is one of the most complex one when dealing with human
rights. What is the function of this notion of jurisdiction? The function of Is to limit
the scope of application of human rights treaties. Both the European convention of
human rights and the international convenant on civil and political rights, they all
make reference to the concept of jurisdiction.
slide 15 lez 7
To sum up…Three different forms of «jurisdiction» in HR matters
Territorial jurisdiction: obligations of the State relating to acts of possible human rights violations
that occur and have effects on the national territory. Extraterritorial jurisdiction: State’s obligations
relating to acts of its agents who operate on foreign territory (or in areas not subject to the
sovereignty of any State) and may commit human rights violations there. Two different situations
can be distinguished: (a) that in which military contingents or other agents of the State, usually in
the framework of military or peace-building or State-building missions, occupy a foreign territory
or exercise effective control over parts of a foreign territory; (b) that in which State agents operate
on foreign territory, without having effective control of that territory, and commit human rights
violations there. Jurisdiction with extraterritorial effects: i.e. the obligations of the State relating to
acts carried out on the national territory, but which produce effects contrary to human rights outside
that territory.

So we have three different forms of jurisdiction.

The concept of jurisdiction turns the function on limiting the obligation of the state.
In order to know if the European convention applies in that situation I am forced to
determine wether the individual was under the jurisdiction of the state.

Extraterritorial jurisdiction: we refer to the possibility that a state may commit human
rights violations even outside its territory. Two different possibilities
1) Military contigents or other agents occupy a foreign territory or exercise
effective control over parts of a foreign territory. For example as regard the
effective control of a foreign territory we can mention the situation.

Ilaşcu and Others v. Republic of Moldova and Russia, 8 July 2004

Last case occupation Russia on a territory part of Moldova. A part of Moldova is

occupied by Russian troops, Russia exercises an effective control over this part of
the territory, the decision adopted by the government of Transnistra are decisions
of the Russians
Ilascu and otherd
The applicants come within Russian jurisdiction and its re ia’s jurisdiction and its
responsibility was engaged with regard to the acts of which they complained.
People living on this part of the region could apply before the European court of
Human rights or ask for claiming violation of the right provided by the convention.
Since Russia was expelled by the council of Europe and therefore not memember of
European convention of human rights, this implies that is outside the system of the
european court of human rights. Inidivduals are obliged to present obligations against
Russia, until sept of this year.

Occupation of Ukraine 2014 by Russians, in particular crimea, we can say that people
living in that part of the territory could apply in the European court of human rights,
in the case where Russia committed violation of human rights in that regions, because
that region was occupied and is still occupied by Russian soldiers, in the case of a
military occupation, since the territory is occupied by military of another state , that
state has the responsibility to protect human rights in that region.
So Russia is ingaged till September 2022 to protect human rights within the regions
that are occupied by it’s military forces, under the European convention of human
rights.
The fact that individuals are not under the jurisdiction of a state which is member of
the European convention of human rights does not mean that the state doesn’t have
any responsibility to protect human rights we know that the European convention of
human rights, is just one of the treaties dealing with human rights obligations. Russia
continues to be a member of the political covenant on political instability right and is
obliged to respect human rights according to the covenant
So the European convention of hr is a regional treaty and a sort of specification of
rights included on other universal instruments. So even if a state is no more member
of the European convention it does not mean it doesn’t have to respect other HR
obligations from treaties or for example costumary law.

Nato forces in Kosovo

A suspect terrorist is hold in detention by British forces in Iraq, does he enjoy the protection
Against arbitrary detention under article 5 aechra or under article 9 of the international convenant
on civil and political rights.
Second case, the case where we cant say that state agents are exercisinga control and therefore
exercising jurisdiction of the state.

Have affected the jurisdiction of the court

We cannot find any precise indication or structure within the rule. Because the rule limits itself to
say
But the rule does not clarify what the concept of jurisdiction means. This is the reason why it is
difficult to reconstruct on a case by case basis the concept of jurisdiction, the only thing we can do
is to rely on the jurisprudence of the court. Remember all these cases and what was the decision of
the court in these hypothesis. For the teacher is important to know what jurisdiction is, wy we talk
of jurisdiction, when a state exercises jurisdiction over individuals on each territory and abroad. The
case of the individuals collocated in the territory of the state is easy, because a state exercises
jurisdiction over people that are within its territory.
The problem when a satte exercises extraterritorial jurisdiction but we have few hypothesis were
extraterritorial jurisdiction is recognized by the court

Echr bankovic vs Belgium

According to the court, the NATO forces did not exercise unexpected control over the state.
Nor their agents could exercise an effective control over single individuals within states? Court of
human rights in this case fell outside the jurisdiction of the state, this does not mean tha human
rights law did not apply in this case just echr that does not apply but states need to respect human
rights obligations even abroad, the only difference is that individual cannot apply before the echr.
The other way of delimiting obligations of states under human rights treatied is to take into
consideration also derogation clauses

Slide
Derogation clauses
These provisions provide for the possibility that a State Party may derogate (supspend) from many
of the rights guaranteed, when it is in a state of public emergency or even war. But the possibility of
derogation is subject to a number of procedural and substantive conditions

There are some situations where the state is allowed to suspend the rights provided by human rights
treaties, provided that a number of substantive conditions are met

Article 4 slide
of the international covenant of civil and political rights
art 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 origin

This first part of the norm includes several conditions. The state should be in a state of public
emergency that threatens the life of a nation (substantive condition)
Second condition (that is procedura)l is that the emergency is officially proclaimed. For
example states may could notify the state emergency to the secretary general of the united
nations or in echr, derogate to right of the convention releasing notification to the council of
Europe.
Concept of emergency of public condition was interpreted by the committee of human rights
and the European court of hr.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under
this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation
shall immediately inform the other States Parties to the present Covenant, through the intermediary
of the Secretary-General of the United Nations, of the provisions from which it has derogated and
of the reasons by which it was actuated. A further communication shall be made, through the same
intermediary, on the date on which it terminates such derogation.

a public condition threatening the life of a nation. Slide

after Bataclan attack France qualified it as a public emergency, considering that maybe other
terrorist attack may be committed against France. After the terrorist the terrorist, France declared
that the state was in a situation of public emergency, because the state was threatened by terrorist
attacks , so the fear that terrorist attacks may occur also in the future. And this state of emergency
justified the suspension of some of the rights provided by the international convention of human
rights and the European convention of human rights.
Second condition procedural one.
Legal basis article 4 again.
Ex pandemic states had to declare that they were in a condition of public emergency in order to take
measures restricting human rights people under their jurisdiction. The lockdown is a measure that
entails a restriction of right to a private life for example,
Schools closed is a limitation from right of education, because of state of public emergency because
of health emergency. The measures taken should be necessary, I don’t have other alternatives to
protect health of people and the measure shall also be proportionate, limited within the extent
require for ensuring the protection of public interest. controversial if total lockdown was necessary,
was really necessary, and the same time green test considered violation of human rights and in
principle it may be a violation of HR if u cannot justify the adoption on that measure under a
derogation clause. In this situation a state may justify the suspension of human rights provided that
all the conditions in the derogation clause are met.

measures are not inconsistent with their other obligations under international law
state cannot violate other norms of international law and do not involve discrimination.
Only people that had a second house you could move, that is a bit a discrimination.

Substantive rights. Non derogable rights slide

Right to life =Coordination with IHL •Death Penalty

Prohibition of torture •ECtHR, Saadi v. Italy [GC], 2008, §140
Prohibition of slavery •
Essential guarantees in criminal law and procedure. 1) No punishment without law 2)Right not
to be tried or punished twice for the same offence
Freedom of thought and religion
Right to personality

There are absolute rights and relative rights, there are rights that can never be suspended even in a
case of public emergency ex the right to life
Can’t be suspended unless two cases
1)coordination with international humanitarian law and the death penalty
During war international humanitarian law applies and some of human rights can be suspended
because of conflict, war considered a public emergency, maybe only a part of territory or the whole
territory but in general it is a public emergency and during the war laws that apply are those of
international humanitarian law. Is a soldier allowed to kill another soldier? Yes so right of life is
suspended. Principle of distinction, u are allowed to kill soldiers but not kill civilians, cause in that
case it’s a war crime.
Second exception is penalty, some states still have death penalty. Iccpr provision on abolition of
death penalty but that protocol is optional, this means that states are not bind to ratify the abolition
of the death penalty, it means that states may be members of the international covenant even in the
case where they still have provisions that consent death penalty.
It is different in the context of the European convention of human rights where death penalty is not
admitted. But in the international on civil and political rights if u are not a member of that special
protocol on death penalty, you are allowed to have a legislation, opening the application of this
penalty.

you have to respect essential guarantees in criminal law and procedures, a person has the right not
to be punished without the law even if a case of conflict.
(right of personality right to be recognized as a person, it has to do with human dignity. Your
identity should never be denied)
Substantive requirements

Restriction clauses slide

Restriction Clauses Restriction clauses allow national authorities to interfere in protected rights, and
to restrict their substance, in order to satisfy certain public interests, which are considered worthy of
particular protection. Many restriction clauses are general, others set out what objectives the State
can pursue in restricting the human rights in question.

Beyond derogation clauses another limit, situation where the state is allowed to limit human rights
is according to restriction closures. Different from derogation, since generally the norm that
provides restriction clauses specify exactly the objectives that the state can persue in restricting the
human rights in question, and in general they are included in the norm that consent the use of
restriction clauses. Another difference is that the right can only be restricted not suspended.
States in some specific situation and with specific regards to some rights, states are also allowed to
interfere in the enjoyment of the right provided that there is a specific interest, which is set out by
the norm that consents this restriction

Examples slide
Ex art 8 European convention human rights

Article 8(2) of the European Convention, on the right to private and family life, states that: There
shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others.
First condition, the restriction should be in accordance with the law
(Italian restrictive measure for covid were government decree and not by parliament, the problem
was this, restrictive measures not adopted in accordance with the law)
Example in Italy surrogacy is forbidden and this is object of specific criminal provision, there is a
law that provides that surrogacy is forbidden, in principle this restriction is in accordance with the
law. In principle Italy justifies that surrogacy is forbidden stating that it is in the interest of women
not to be exploited for surrogacy and according to the Italian legislator , surrogacy is forbidden to
protect women and be respected on their dignity. ( we can agree or not). In order to say that a
restriction of the right to private family right is consist Europe con hum right
U have to demonstrate that is provided by the law and that the restriction is necessary to protect one
of the public interest that is listed in the norm.

NECESSARY IN A DEMOCRATIC SOCIETY slide

Necessary means that the measure is the only way to protect the interest at stake. The notion of
necessity is strictly linked to that of a democratic. According to the Court “democracy does not
simply mean that the views of a majority must always prevail”. A balance must be achieved which
ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position

The measure needs to be necessary in democratic society, only way to protect the interest at stake.
Not the result of the will of only a part of the population but by overwhelming majority of the
population.

Proportionality slide

PROPORTIONALITY •Proportionality is a legal principle that allows (or requires) balancing

between competing values. This enables judges to decide whether a measure has gone beyond what
is required to attain a legitimate goal and whether its claimed benefits exceed the costs. •The
principle of proportionality requires that there be a reasonable relationship between a particular
objective to be achieved and the means used to achieve that objective. •In the context of the ECHR,
the competing values to be balanced are public interests on the one hand and individual rights on
the other. •The balancing approach requires that the intensity of the restriction not to be excessive in
relation to the legitimate needs and interests, which gave rise to it.

Proportionality refers to a balance between competing values. A statte is limiting a right and this
limitation shall be proportionate in respect of the importance of the protected. Measure should be
reasonable.
Example art 8
Procedural condition
In accordance wit a law should be provide but a legislative provision
It should protect one of the interests mentioned in the norm.

LAW 5 MAGGIO

The scope of application of Hr treaties derogation clauses

Included in a human right treaty by sayong that in all human right treaties it is provided the
possibility for states to suspend human rights on the occasion of particular situations – of public
emergency
The possibility by state to suspend human right is subjective to substantive consitions: it is required
that a situation of public emergency exists a situation that threatens the life of the whole nation an
reguarding the delegation the state should adopt measures that are proportionate with the reguards
to the need to protect its population and that and necessary to protect the individuals, this means that
in the case ad the states has an alternative as reguards the measure to be taken, the state should
adopt the less restrictive measure, if there is an alternative to suspending hamn rights u have to opt
to that alternative.
Other substantial conditions are that the measures should not discriminate among people and finally
the measures should not violate other provisions of international law that are bining on the state. On
the other side we saw that the state has to officially proclaim the state of public emergency

2015 the secretary general international convenant on civil and political rights new York 91966

Nov 2015 france decided to suspend the convenant of civil o rights as a consequence of the terrorist
attack of Bataclan.

13 nov 2015 large scale terrorist attacks took place in paris ,in a subsequent declaration made some
years later, France decided to reteirate its decision to suspend the rights, consistent with article 4 of
the convenant of civil and political rights.

Substantive limits: rights that can’t be derogated

Exeption es international humanitarian law in case of conflict. Another limitation consented by
states as human rights treaties reguards restriction clauses which are different from the regulation
clauses cause in the restriction clauses are specified what are the rights that a state may decide to
limit due to particular considerations that regard the protection of public interest, and the protection
of public interest are, public interests generally specified in the same provision
That consent the restriction.
Ex art 8 of the European convention of Human Rights , letter 1 individuals under jurisdiction of the
state have to provide rights—exsmple. This right czn be restrivcted by the state in the hypothesis
Art 8 paragr 2, there shall be no interference by a public authority for right of fam right
Ecxeptb such as is In accordance with the lawb….others
There shall be a law providing the restriction wether the dcree conducted by the Italian government
was consistent with these requirements
It was not adopted by the parliament but only the government is nececesssry in a democratic
society. There is specification ”necessary in a democratic society”, means that the majority of
people in that society , agree with the necessity of that measure.
Necessary means that is the only way to protect the interest of the state and necessary in a
democratic society means that the measure reflects the opinion of the views of the majority of the
society, in addition the m,easure should be proportionate

Proportionate with resoect of the interest that needs to protect. A limitation is sufficient. The state
is called to find a fair balance among all the interest at state, , so the public interest that it need to
protect and on the other the right that the government decides to sacrifice, so balance all the
interests at stakemin order to find the less restrictive measure that consents however to protect the
interests that you want to protect. AS the regsrds the decision opn the right measure to be adopted,
states enjoy the so called margin of appreciation which is a creation of the European court of
Human Rights, was used the first time by them , it was described as the measure of discretion
allowed to member states in the manner in which they implement the conventional standard, taking
into account their own particular national circumstances and conditions another way of describing
this concept, was mc Donald who said the margin of appreciation , illustrates the general approach
of the European court of human rights to the delicate task of balancing the sovereignty of
contracting parties with their obligation under the convention.
Rights of convention expressed in a very generic manner, the right to life, to fsmily rights, it is the
state that decides how to implement tha right an also it is the state to decide to what extent it is
necessary to restrict in which the state need to pr public interest, so implementations necessary fo
protecting the right

6MAGGIO human rights at sea

11 MAGGIO

The prohibition of discrimination

The principle of non discrimination is one of the core principles that govern the human rights law.
It was established for the first time in the Un charter (article 1)
WWII states started to think at human rights not just as a domestic question but as a matter of
interest of the intarnational community as a whole and the UN charter, first international
registration to protect human rights in general. Protection of hr is main objectives of UN.
1)achieve…
The principle of no discrimination is also repeated on the “universal declaration of human rights
slide 2 equal in dignity and rights.
Difference between the chart and the universal declaration of human rights is that the charter only
includes dome grounds of discrimination, ex race sex and religion while the universal declaration
broader another difference is tjate the universal declaration makes both reference to the principle of
non discrimination saying that HR should be granted with no distinction and also
To the principle of equality : there is a difference between equality and discrimination, and the two
notions are also used in oter international HR treaties like the covennatn on HR (slide 3), make
reference to distinction and to the concept of equaity
Slide conservat ive equality vs progressive
Equakity slide
Formal equality : equal treatment of equals, all the people equal before the law that is formal
equality
 and substantial equality, yoi have to change the existing situation the status quo, in order to remove
obstacles that prevent effective and concrete equality. Measures to put all the people at the same
level
art 7 declaration of human rights, everyone equal before law and are entitled without discrimination
to equal protection of the law. This means that law should apply in the same way to everybody,
equal protection,legislator ensure substantial equlity, judge should take into consideration
differences among people.
Non discrimination slide
International court of justice
Minorities have right to be treated in different way to respect diversity. Same treatement or some
differences? Court said sometimes it is necessary to use differentmeasures in order to take into
account differences amon people ex minorities that may have different needs.
We see human rights from western point of voew instead is useful to see hR with respect also tu
culturakl identities, violation of Hr . the concept of ewuality shoukd always keep in mind when
dealing with Hr some cases you cant introduce differences ex the discrimination according colour of
skin ,race, in establishing rights and duties of dynamics of the territory, is not considered reasonable
and just
“race and colour do not constitute inthemselves factors which can influence the duties of the
ihabitants of the territory art4
There are some differneces that can never be seen as a ground for discrimination, race can never be
by itself a ground for discrimination.
They can be treated differently according to nationality, nationals from foreign people but not on
question of colour of skin or race.
Discrimination on race costumary law
Slide prohibition of non discrimination,
Difference between equality ans treatment of non-discriminational law is a difference based on the
fact that provisions on equality are general , all the people are equal before the law while in general
prohibition of non discrimination is combined by the indication by some instructions on the ground
of discrimination s that are taken into account.
Article 2 universal declaration of human rights specifies race,colours, political etc
Proihibition of discrimination
Ex sex etc people can’t be discriminized forreasons that are parts of their identity
There are difference not constitute a discrimination because they don’t create a disadvantage, discr
if victim suffered form a disadvantefges cause taken different measures for similar situations.
If u want to demonstrate prohibition, reason of discrimination included in norm he wants to apply, if
there is nothing concerning discrimination of age can’t apply under that rule.
Some discrimination on sex used also including sexual orientation.
U can justify discrimination, but measure should be proportionate and necessary to the objective,
choose the less discriminative measure
Slide Czech republic
Discrimination special classes fro students that have handicaps etc (implimination of substantive
equality) ex people use computer have problems wrinig by hand, this is not discrimination but
facilitate these students
Czech language, minority discrimination, unequal treatment between people(all studentsand
children) they had a disadvantage and it was not justified, indirect discrimination, this measure was
applied with discrimination of roman children, not only the law to how the law is applied.

Pandemic situation
Wether the fact that children were bound to stay at home was indirect discrimination towards
women, they had to take care of children in addition to work
Other example eb vs France
French authorizes singke adoption, in Italy not allowed single persons to adopt a child.
This women lived with another woman and so couldn’t adopt, the justification given by French
authority was

HUDOC causes European court of human rights

Explain the facts – circumstances of the case

Applicant u should select relevant facts
Judge say facts as they are
After facts the court includes relevant law and practices, domestic law and foreign (one slide for
domestic law) , then international conventions , education international convemtion right of child.
Than the law relevant provition of convention of HR
U can put relevant
At the end reasoning of the court on the question. Right to adopt a child not protected art 8 no
guarantee the right to have a family or to adopt, art 8 protects existing relationship within family
And this right not provided by interational la or domestic
It is a choice of the state to adopt, if state ensures right to adopt it should be provided without any
explanation and the practice of administrative authorities was inconsistent because the authority did
not resfuse adoption to single hom person., the nly reason to refuse adoption to this women was the
fact that this women was homos, in this case the concept of sex shuls also inclue sex orientation,
and the court clarified that French domestic regulation recognizes adoption for singles , this case
fell in the scope of artyicle 8 of the convention and the court established that orientation had
decisive role on rejection to adopt and this rejection constitutes discrimination to single’s people
right to adopt.
1h

12 maggio conference sea

13 MAGGIO

Law 13 maggio

Lezione 9

No discrimination
Norms and treaties of human rights provide both an equality principle, people shall
be treated in the same wasy before the law, so states shall ensure same interpretation
of the law but equality also means that states shall take all the measures necessary in
order to put all the people on the same level.
Difference between equality and discrimination is that , according to international
human rights law, discrimination is not treated as human rights law, is not treated as a
general concept but it is regulated in a spefific way, human rights rukes only take into
consideration some grounds for discrimination.
Prohibition of non discrimination
In order for constraining under human rights lkaw that states discriminated and
violated the proihibition of non discrimination, we have basically to demonstrate the
existence of four elemnst:
1)unequal treatment between equal persons or situations
Similar situations or inidvisuals are treated in a different way
2) - Unequal treatment must create a disadvantage in relation to other persons who
have the same characteristics or who are in similar situations..
The different treatment shall produce a disadvantage to the people that claim to be
discriminated.

3)Unequal and disadvantageous treatment must be given on the basis of one of the
prohibited grounds of discrimination. The discrimination shall be based one of the
dpecific grounds included in the rules. Ex as reguards to the European convention of
human rightsthe difference made by satet shall fall in one of these grounds of
discrimination(sex, colour,language) and that shall be the only reason for
fiscrimination
Like EB VS France
Case about adoption of minors by a single person, and the problem was that the
person that applied was omosexuals, the problem was that considering the
circumnastances the European court of human rights concluded that the sexual
orientation of the claimant was the only reason that justified the denial for the request
for the adoprion, tates shouldn’0t have any other justification for treating differently
to situations, if the only reasons for difference is one of these (sex, colkour race etc),
u can demonstrate that the discrimination actualy existed.

4) it must be assessed whether the difference in treatment is objectively and

reasonably justified because it pursues a legitimate aim and, if so, whether the
difference is proportionate and necessary and not excessive to pursue that aim.
A discrimination does not exist if the state is able to demonstrate that the difference
In treatment was justified under an objective and important public interest. If the
treatment is provided by the law and it means to achieve a legitimate aim.
So that is not discrimination I’ts just different for public interest,
These 4 onditions must exist all together.
Ex moroccam nationals (slide 13) introduced a case against the Belgian authority
Claiming tht they were discriminated by Belgian nationals for waqnting to expel
them. And they claimed to be discriminated on the ground of nationality because they
held that the same treatment is not reserved to belguians nationals.
But there is objectively a difference between foreigners and national people.
Reguarding nationals the state ha a duty not to expel them from the state
Foreign pople inste, states are allowed to expel them.
In this case the legitimate aim that the state wants to achieve is to ensure security
within the state. If a person reteirates crie within the state and puts at risk3 the
security of the community of that state, the state may be justified to take a decision of
expulsion, according to the national legislation and that the aim is legitimate.
This is legislative objective justification.
The first condirtion for justifying a different treatment is that the state wants to
achieve a legit aim and the second is that THE MEASURE he adopts to achieve this
legitimate aim is proportionate and necessary in relations to the im that the states
wants to achieve.
Necessary, state has no other effective alternative in order to achieve the same
obkjevtibve

Specific treaties on discrimination slide

Two specioic treaties that deal with the topic of discriminations, two different kinds
of dicstimination considered particulary serious so that justify the adoption of tyese
two specific tresties to combat two kinds discrimination
Discrimination against women and discrimination based on race.
These 2 themes were adopted within the frame of UN ,
This mens that it was the organization to convene a conference among the members
of Un in order to adopt these two treties.
They address the most common , serious race and women.

Facts slide
Case of boat and migrants,
Orohibiiotion of intrenationakl law (Italians authorities decided to push migrants
back were people subject by torture)

Slide the proihibition of torture internstional law

Violation of human rights. Proihibition of torure provide dby all human rights
treaties, it also acquires a status of international costymary law, so not only procided
by treasties and convention also costumry in trinational law, it has a status of ius
cogens,
Under the Vienna convention of the law of traties 63, particular rules cannot be
derogated even if there is a rule tht provides, has a contrary content than the ius
cogens rule, a treaty against jus cogens is null.
They justify the legitimation all states part treaty to start a proceeding agajnst a state
that violates norms of jus cogens.
There is a generic proihibition of torture and a specific convention dealing with
torture, convention against torture and other,..
This convention includes a definition o what torture means : art 1
Torture is different from inhuman acts or other forms of great punishments
Due to two basic conditions
The intensity, the level of sufferance inflicted to the victim higher level,
Torture is also different due to the intent , to the purpose because of what the violator
has In mind. The typical situation where torture is committed , situation where an
official authority is involved (slide 4)
A public official is involved and what is the purpose of inflicting pain on the victim?
Ex to have information from the victim
Basic element of torture
1) The level of cruelty
2) Official envolvement

‘No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment’).
Statets are under a negative obligation in refraining from acts of torture, this
obligation also includes, according the convention of torture, that no Art. 3(1)
CAT: No State Party shall expel, return (“refouler”) or extradite a person to
another State where there are substantial grounds for believing that he would be in
danger of being subjected to torture

Not engage in complicity with other states that is well known commit torture to
people under their jurisdiction.
If the expulsion reguarded states thatwere at risk of torure,
States woukl not ve been allowedbto expel other people.
united states torture people in special prisions after terrorism

obligations slide
positive obligation a state is also under positive obligations, which implies that the
state shall prevent porsecute and punish acts of torture.
Example of positive obligation incorporating the prohibition of torture in national
law
Italy during G8 diaz school the ctios committed by Italian policemen fell under the
definition of torture but the Italian legislation at that time did not include the crime
of torture
Why should a styate refrain from adopting a specific legislation on torture? What
does torture imply?
After the diaz Italy was condemmed by the European court of human rights for
not having specific provisions

Possible extenctions to acts by non state actors. Slide, la legge tutta.

Committee against Torture

, General Comment No 2, 2008 18.
The Committee has made clear that where State authorities or others acting in official capacity or
under colour of law, know or have reasonable grounds to believe that acts of torture or ill-treatment
are being committed by non-State officials or private actors and they fail to exercise due diligence
to prevent, investigate, prosecute and punish such non-State officials or private actors consistently
with the Convention, the State bears responsibility and its officials should be considered as authors,
complicit or otherwise responsible under the Convention for consenting to or acquiescing in such
impermissible acts. Since the failure of the State to exercise due diligence to intervene to stop,
sanction and provide remedies to victims of torture facilitates and enables non-State actors to
commit acts impermissible under the Convention with impunity, the State’s indifference or inaction
provides a form of encouragement and/or de facto permission.
 If you accuse someone of torture you have to define the elements crimes.

Under international criminal law, torture is also. Onsidered an international crime.

A crime committed by public officials, considered personally responsible for
violation of jus cogens rules. International crime law only case in which
individuals are respoindasble for violations
§(shipmaster also respondible under international law
Public official criminal
Private persons can be accused as inhuman treatment under international law.
Public authorities responsible when they refrain from complying with their duties
Duties to prevent, investigate, and punish.
If a women denounces the husband , unhuman treatment from husband, the public
off should intervene otherwise they can be accused of complicity ofo viol human
rights.
State under duty to protect person against human acts.
Facts slide 2 case.

Facts slide
Facts – The applicants, eleven Somali nationals and seven Eritrean nationals, were part of a group
of about two hundred individuals who left Libya in 2009 aboard three vessels with the aim of
reaching the Italian coast. On 6 May 2009, when the vessels were within the Maltese Search and
Rescue Region of responsibility, they were intercepted on the high seas by ships from the Italian
Revenue Police (Guardia di finanza) and the Coastguard. The occupants of the intercepted vessels
were transferred in part (the Somali nationals) onto Italian military ships, in part (the Eritrean
nationals) on a boat operated by an NGO flying the Italian flag and returned to Tripoli. The
applicants stated that during that voyage they were not informed on their destination and that
nobody took steps to identify them. On arrival in the Port of Tripoli, following a ten-hour voyage,
the migrants were handed over to the Libyan authorities. According to the applicants’ version of
events, they objected to being handed over to the Libyan authorities but were forced to leave the
Italian ships. At a press conference held on the following day, the Italian Minister of the Interior
stated that the operations to intercept vessels on the high seas and to push migrants back to Libya
were necessary to protect Italian population from the threat of clandestine immigration. Are the
Somali nationals entitled to apply before the ECtHR? And the Eritrean nationals?

Does the european convention apply to bring the case eur court human rights.
Individual need to prove to be under the jurisdiction of the state when the violation was committed.
Jurisdiction of state. Italian authorities violated the convention against torture by expelling them
from Italy. Is the NgO RESPONSBL E TO BRING PEOPLE TO liBIA OR NOT?
State officials have a duty to prevent the commission of torture provided by the
convention.ùviolated also European convention of human rights since migrants were under
jurisdiction Italy,
Italian ship with Italian flag.
May the state invoke any May the State invoke any justification under the ECHR?
Referring to a possible threat of security if state represented by clandestine migration. = justification
of Italy
Ius cogens canno t be violated.
The role of malta in this case
Yiucan send back people but after you assess it’s a safe place for people.
Convention of refugees malta should identify them to see where they go.
International migration law violation
Pedrazzi.