1. Explain the non-recognition of stare decisis under Art.

59 of the International Court of

Justice (ICJ) Statute and contrast it with the phenomenon of comparative jurisprudence in
human rights adjudication. Are certain uses of comparative jurisprudence in human rights
adjudication good for the cause of human rights, while others are not? (In answering these
questions, consider the five cases discussed in class on the topic of the emergence of jus
commune of human rights.)

Stare decisis, in other words, is rejected as a generator of rules of international law. Third States are
therefore not bound by the decision- they may ignore the decision as to its operative part and reasons,
they may consider the decision to be wrong and they may refuse to recognize its content.

Article 59 of the International Court of Justice (ICJ) Statute provides that “the decision of the Court has
no binding force except between the parties and in respect of that particular case.”

In human rights adjudication, the phenomenon of comparative jurisprudence or judicial borrowing of

decisions from foreign sources has been practiced by the Courts set out as basis for its decision. The
Courts act as national constitutional courts to maintain the constitutional legal orders based on the
Conventions. Domestic courts also have the tendency to reconcile conventionality and constitutionality
controls within the domestic legal orders.

In Dante Piandiong, Jesus Morallos and Archie Bulan v. Philippines, the norms of the practice guide the
interpretation and application of human rights, the appropriateness of criticism in terms of human rights,
adjudication in human rights courts and to serious violations of human rights, states are not entirely shut
out of the process nor their sovereignty are challenged but what is if most at all is requested of them is
respect and recognition of the Human Rights Committee review based on their consent and agreement
through signing of the Optional Protocols to which they are signatories .

2. Are there dangers that may be associated with adapting the classic definition of custom as
a source of international law illustrated in the Continental Shelf Cases of Federal Republic of
Germany v. Denmark and Federal Republic of Germany v. The Netherlands to the
specificity of human rights, considering especially the fact that the universality, indivisibility,
interdependence and equal importance of all human rights have been regularly affirmed in
various UN resolutions and at world conferences on human rights?

When looking at the universality, indivisibility, interdependence, and equal importance of all human rights
as affirmed by UN resolutions and world conference, we see a clear danger in reference to the definition
given in the North Sea Continental Shelf Case. For in the North Sea Continental Shelf Case if any of the 3
elements are lacking then the custom cannot be binding on such country. This is especially problematic
when a country is a persistent objector to these customs. One argument is that persistent objection
cannot affect or look to absolve the state’s obligations of jus cogens norms (ex. Genocide) but they do
affect human rights obligations that do not form jus cogens norms.

For example, a state objected initially and persistently to the freedom of expression or religion. In this
case, would the state be excused if it violated people’s rights to freedom and religion? Or would we say
that these people did not have the rights because the state chose the path of a persistent objector? This
would then be contrary to the affirmations of the UN and world conference.

3. Explain briefly the regime of reservations under the Vienna Convention on the Law of
Treaties (VCLT). When is it allowed? What do you see as a consequence of allowing
reservations in human rights treaties? Do the benefits of reservations in human rights
treaties outweigh the disadvantages? State your reasons.

The regime of reservations under the Vienna Convention on the Law of Treaties (VCLT) are made by
states make upon ratification of international treaties. States declare under which conditions they
consider themselves to be bound by a treaty.

Article 19-21 of the Vienna Convention on the Law of Treaties 1969 allows states to enter reservations
unless these are refused by other states or contrary to the objective of the treaty in question.

Article 19 provides that a State can, while signing, ratifying, accepting, approving or acceding to a treaty,
formulate reservations if the treaty does not expressly prohibit them, or they are included in the specific
reservations provided for in the treaty. Where a reservation is not prohibited by the treaty or falls within
the specified categories, a State may make a reservation provided it is not incompatible with the object
and purpose of the treaty. These continue to be the conditions for and the extent to which a state can
validly make reservations to human rights treaties.

The benefits and advantages in allowing reservations include the phenomenon that more countries are
more willing to enter into a treaty for as long as reservations are made.

4. What is the import of the ICJ declaration on independent existence of a treaty and a
customary international law in Nicaragua v. US.? How may this “independent existence” of
the different sources of international law affect the regime of reservations generally allowed
in human rights treaties?

In Nicaragua v. US, the ICJ Court had to decide whether the U.S. reservation stripped the Court of its
jurisdiction. Eventually it concluded that the reservation is applicable in this case because (1) U.S. did not
specially agree to the jurisdiction in this case, and (2) Parties to the treaty affected by the decision were
not all parties before the court. As a result, the Court determined that the reservation barred it from
applying the multilateral treaties to this case. But the Court did not stop there, however. The Court
viewed the reservation as a limitation on the type of law that the court could apply (multilateral treaties),
not as a limitation on its overall jurisdiction to hear the case. Thus, sources of law under Art. 38 of the
Statute of the ICJ were still applicable, including customary international law.

U.S. argued that customary rules whose content is identical to that of the treaties cannot be applied due
to the U.S. reservation. The Court rejected this and held that just because a treaty incorporates
customary international law it does not deprive the customary law of its applicability distinctly from the
treaty. Therefore, treaties and customary law have independent existence and apply separately, even
when both deal with the same subject matter.
5. The ICJ issued statement that the right to self-determination provided by the UDHR is
already a principle of law recognized by the community of nations in the case of Portugal v.
Australia; while in the case of US v. Iran, the Court made a statement that to detain persons
in conditions of hardship is a violation of basic principles of the UN Charter recognized by
member nations. Is there any significance of these ICJ declarations enunciated in these
two cases to the cause of human rights?

In Portugal vs. Australia, the ICJ dismissed the complaint lodged by Portugal due to the fact that
Indonesia was not made a party thereto but it still made declaration furthering the cause of Human
Rights. Portugal questioned Australia’s act of entering into a treaty to Indonesia which resolved issues
relating to the undefined continental shelf between Australia and Indonesia known as the “Timor Gap”.
Portugal, claiming to be the administering power of East Timor as stated under United Nations Chapter
XI, asserted that Australia failed to observe the obligation to respect the powers and duties of Portugal as
administering power of East Timor, as well as the rights of the people of East Timor relating to self –
determination.

The ICJ dismissed Portugal’s complaint mainly on the ground that it had not acquired jurisdiction over the
matter since Indonesia was not made a party thereto. The court reasoned out that to adjudicate the
lawfulness of Australia’s acts of concluding the treaty with Indonesia would necessitate a determination
as to whether or not Indonesia could have acquired the power to conclude treaties in behalf of Indonesia.
In this case, the ICJ pronounced that a people’s right to self-determination had already acquired an erga
omnes character. The ICJ recognized East Timor’s right to self – determination as a “Non-SelfGoverning-
Territory”.

6. What is the ratione temporis rule in filing communications before a human right treaty
body? In regard to the ratione temporis rule, how are the phrases “continuing violations”
and “violations whose effects have not been erased” illustrated in these assigned cases :
J.L. v. Australia, 2.) E. and A. Konye v. Hungary, 3.) Kurowski v. Poland, 4.) Aduayom et al.
v.Togo

The Ratione Temporis is a rule where claims may be brought against State parties to human rights
treaties only when they relate to violations alleged to have occurred after the entry into force of the
treaty on the basis of which the communication is filed as regards the defending State, or after the
declaration by the State concerned that it accepts that individual communications can be filed against it.
Violations which, while they have begun prior to the entry into force of the treaty on which the complaint
is based, have continued after that date may still be filed.

In E. and A. Konye v. Hungary, the Committee finds that the violations complained of does not continue
after the entry into force of the Optional Protocol. For one, the authors' passports have been returned to
them and such harassment as they may have been subjected to prior to 7 December 1988 has stopped.

In J.L. v. Australia, the Committee noted that the author’s claim that he was unlawfully detained is
inadmissible ratione temporis because such event occurred prior to the entry into force of the Optional
Protocol for Australia. However, with regard to the author’s claim that he was denied a fair and impartial
hearing, the Committee notes that although the relevant court hearings took place before the entry into
force of the Optional Protocol for Australia, the effects of the decisions taken continue until the present
time. Hence, they are not excluded ratione temporis.

In Kurowski v. Poland, the Committee declares that the communication was inadmissible ratione temporis
because the violations complained of by the author are not continuing violations after the entry into force
of the Optional Protocol.

In Aduayom, et al. v. Togo, the Committee finds that the communication was not excluded ratione
temporis. Although the Committee notes that the authors' arrest and detention occurred prior to the
entry into force of the Optional Protocol for Togo (30 June 1988), the alleged violations had continuing
effects even after the entry into force of the Optional Protocol for Togo.

7. Explain the exhaustion of local remedies in filing human rights communications. How is
this exhaustion of local/domestic remedies illustrated in these assigned cases: 1.) Chief
Bernard Ominayak and the Lubicon Lake Band v. Canada; 2.) Henry v. Jamaica; 3. Hendriks
v. Netherlands

The rule that the complainant must have exhausted all relevant remedies that are available in the State
party before bringing a claim to a Committee is a cardinal principle governing the admissibility of a
complaint. The claims must be brought to the attention of the relevant national authorities, up to the
highest available instance in the State concerned. Doubts about the effectiveness of a remedy do not
dispense with the obligation to exhaust it in the Committees’ view.

1. Ominayak and the Lubicon Lake Band v. Canada

In this case, the Committee impliedly recognized, as an exception to the general rule on the exhaustion
of domestic remedies, that domestic proceedings were unreasonably prolonged. As such, even in the
absence of a final judicial determination on the controversy, and while negotiations were still under way,
the Committee considered the communication as admissible.

2. Henry v. Jamaica

In this case, the Committee found that the recourse under the Jamaican Constitution is not a remedy
within the meaning of the Optional Protocol to the ICCPR nor was the alleged breach of the right to a fair
trial the subject matter to the Court of Appeals and Judicial Committee. In holding that a further appeal
would unreasonably prolong the proceedings, the Committee considered the communication as
admissible.

3. Hendriks v. Netherlands

In this case, the Committee also did away with the general rule on the exhaustion of domestic remedies.
The remedy of requesting an access order from the same courts based on “changed circumstances”,
notwithstanding the procedural change in domestic law, would prove to be ineffective or futile. As such,
the communication was held to be admissible.
8. One of the requirements for a communication to be admissible is that it must not have
been examined already under any other international Discuss how this requirement has
been interpreted in these assigned cases: 1.) Sanchez Lopez v. Spain; 2. ) Leirvag v.
Norway; 3.) Karakurt v. Austria

In Leivrag v. Norway, The Committee noted that though the authors’ claims were joined with the claims
of another set of individuals before the domestic courts, it does not obviate or change the interpretation
of the Optional Protocol. The authors have demonstrated that they are individuals distinct from those of
the three sets of parents that filed a complaint with the ECHR. The authors in the present communication
chose not to submit their cases to the ECHR.

In Sanchez Lopez v. Spain, The Committee stated that the words "the same matter", within the meaning
of article 5, paragraph 2 (a), of the Optional Protocol, must be understood as referring to one and the
same claim concerning the same individual, as submitted by that individual, or by some other person
empowered to act on his behalf, to the other international body. Since the State party has itself
acknowledged that the author of the present communication has not submitted his specific case to the
European Court of Human Rights, the Human Rights Committee considers that it is not precluded from
considering the communication under the said stipulation in the Optional Protocol.

In Karakurt v. Austria Though the state party stated that it has made a reservation to article 5 of the
Optional Protocol which excludes the Committee's competence to consider the communication, the author
is advancing free-standing claims of discrimination and equality before the law, which were not and could
not have been made before the European organs as grounds in his communication. Due to this, the
Committee did not consider itself precluded by the State party's reservation to the Optional Protocol from
considering the communication.

9. Describe the salient similarities and differences of the procedures for individual
communications under the Human Rights Council and any of the human rights treaty body.
As a lawyer, where would you opt to file individual communications on behalf of a client?
Why?

In the Human Rights Council, a complaint can be brought against any state member of the United
Nations. A communication in one of the nine treaty bodies can only be brought against a state that
satisfies two conditions: First, that it must be a party through ratification to the treaty in question and
second, that the state party must have recognized the competence of the committee monitoring the
relevant treaty and consider complaints from individuals.

In the Human Rights Council, any individual, group of individuals, or non-governmental organization can
submit a complaint to the complaint procedure of the Human Rights Council. For treaty bodies, anyone
can lodge a complaint with a committee against a state if it satisfies the two conditions above. The
Human Rights Council consists of four stages: the initial screening, the working group on
communications, the working group on situations, and the human rights council. The Treaty bodies
involve two steps, the admissibility phase and merits phase.

If I were the lawyer advising my client, I would advise him to file a complaint with the treaty body that
has jurisdiction over the specific human rights violation complained of, it the state he or she is in has
ratified the treaty and recognized the competence of the committee monitoring the said treaty because
the complaint may request for interim measures in case it is necessary which cannot be found in the
complaint with the HRC.

10. What are the instances, and briefly describe each, in which a state may limit its human
rights obligations under a particular human rights treaty?

Under some treaties a state party may be permitted to limit its legal obligations by entering reservations
to some of the provisions of the treaty. A reservation renders the provision concerned non-binding or
limits its effects. States may also in some instances enter a declaration concerning the extent to which
they wish to be bound by a certain provision or how they interpret the provision.

There can be reservations and declarations wherein when becoming party to a treaty, a state may
formulate reservations, declarations and interpretative statements in order to limit its domestic
application beyond what is permissible under the limitations referred to above. Although it is desirable
that states become party to a convention unconditionally, this is often not the case.

Conventions and other instruments may also contain a number of restrictions or limitations to the rights
they stipulate. It is generally accepted that only few rights and freedoms are ‘absolute’. Some human
rights instruments allow states to take measures derogating temporarily from some of their obligations.
Derogating measures must be of an exceptional and temporary nature.