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The “Essence” of International Human Rights

  • Pierre Thielbörger

Abstract

While the “essence” of EU fundamental rights has received much attention following the CJEU’s Schrems decision, the concept of “essence” remains much less examined in international human rights law. Nonetheless, a concept of “essence” for human rights can also be found in international law. This Article discusses different aspects of the “essence” concept in international human rights law, namely non-derogability, non-restrictability, and minimum core, in three steps. First, the Article looks at civil political rights and socioeconomic rights separately and identifies two different approaches to the concept of essence for each of the two categories: While for civil and political rights the concept of essence is mainly linked to the notions of non-derogability and non-restrictability, for socioeconomic rights, the concept refers mainly to the states’ obligation to guarantee an essential level of protection independent of their resource limitations. Second, the Article continues by reading the two approaches together and identifies certain elements of an overarching “essence” concept. Finally, the Article discusses the relationship between the CJEU’s “essence” jurisprudence and the related concepts in international law and concludes with two theses: First, international law deserves more attention when reflecting on the EU’s concept of essence. It equally employs concepts of “essence” and also informs the development and interpretation of EU law. Second, when engaging with the question of whether the EU law should draw lessons from its international counterpart on the notion of “essence,” one must contemplate drawbacks for EU law that the concept has presented for international law.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

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Pierre Thielbörger is a professor of German public law and public international law at Ruhr University Bochum and the Executive Director of the Institute for International Law of Peace and Armed Conflict (IFHV) at said university. Thanks to Marius Fritz, Rouven Diekjobst and Maximilian Bertamini for their help with editing and research.

Footnotes

References

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1 Case C-362/14, Schrems v. Data Protection Comm’n, 2015 E.C.R. 627.

2 Tuomas Ojanen, Making the Essence of Fundamental Rights Real: The Court of Justice of the European Union Clarifies the Structure of Fundamental Rights under the Charter, 12 Eur. Const. L. Rev. 318, 318–29 (2016); Maja Brkan, The Concept of Essence of Fundamental Rights in the EU Legal Order: Peeling the Onion to its Core, 14 Eur. Const. L. Rev. 332, 332–68 (2018).

3 Schrems, Case C-362/14 at para. 94.

4 Schrems, Case C-362/14 at para. 95.

5 Joined Cases 293 & 594/12, Digital Rights Ireland, Ltd. v. Minister for Commc’n, 2014 E.C.R. 238, paras. 38–40.

6 Case C-203/15, Tele 2 Sverige, 2015 E.C.R. 572, para. 101.

7 This Article uses the notion “essence“ as this is the terminology in EU law which is the starting point for this Article. The international literature, however, has used terminology for the same or similar concepts, such as “minimum” core, see Katharine Young, The Minimum Core of Economic, Social and Cultural Rights: A Concept in Search of Content, 33 Yale Int’L L.J. 113, 113 (2008); David Bilchitz, Towards a Reasonable Approach to the Minimum Core: Laying the Ground for Future Socio-Economic Rights Jurisprudence, 19 S. Afr. J. Hum. Rts. 1, 1 (2003); or “absolute” core, see Julian Rivers, Proportionality and Variable Intensity of Review, 65 Cambridge L.J. 174, 181 (2006). How these different terminologies are relating to each other will be developed in the following.

8 For a good overview, see Gerhard van der Schyff, Cutting the Core of Conflicting Rights: The Question of Inalienable Cores in Comparative Perspective, in Conflicts Between Fundamental Rights 131, 131–47 (Eva Brems ed., 2008).

9 Jochen von Bernstorff, Kerngehaltsschutz durch den UN-Menschenrechtsausschuss und den EGMR: vom Wert kategorialer Argumentationsformen, 50 Der Staat 165, 171 (2011); Armin von Bogdandy et al., Reverse Solange-Protecting the Essence of Fundamental Rights Against EU Member States, 49 Common Mkt. L. Rev. 489, 510 (2012); Brkan, supra note 2, at 340–41.

10 In the German original, this reads, “In keinem Falle darf ein Grundrecht in seinem Wesensgehalt angetastet werden.“ German is, of course, the relevant—authentic—text for interpretation, and “Wesensgehalt” could also be translated in other ways, such as in its “core,” “spirit,” “very substance,” or “fundamental character.”

11 Konstytucja Rzeczypospolitej Polskiej [Constitution] Apr. 2, 1997, art. 31(3)(2) (Pol.). “Ograniczenia te nie mogą naruszać istoty wolności i praw,” which means, “These limitations shall not violate the essence of freedoms and rights.” “Istoty” can be translated as the “essence.”

12 Constitución Española, B.O.E. n. 311, art. 53(1)(2) Dec. 29, 1978 (Spain). “Sólo por ley, que en todo caso deberá respetar su contenido esencial, podrá regularse el ejercicio de tales derechos y libertades, que se tutelarán de acuerdo con lo previsto en el artículo 161, 1, a)”, which means, “Only by law, which in any case must respect its essential content, may the exercise of such rights and freedoms be regulated, which shall be protected in accordance with the provisions of article 161., 1, a).” “Su contenido esencia“ describes the rights’ “essential content.”

13 Other EU-examples include the constitutions of Hungary, Austria, and Poland. For a good overview, see Brkan, supra note 2, at 341–44. Other non-EU examples are Turkey, Argentina, Namibia, Switzerland, and South Africa. See Brkan, supra note 9, at 340.

14 This Article is concerned with public international law in general, not with the certainly equally important question of “essence” under ECHR law. See Sébastien Van Drooghenbroeck & Cecilia Rizcallah, The ECHR and the Essence of Fundamental Rights: Searching for Sugar in Hot Milk?, 20 German L.J. 904 (2019).

15 See, for instance, Brkan, supra note 2, at 338, who argues that, when seeking to understand the notion of essence in EU law, national constitutions and the ECHR also have to be taken into account. No reference is made by Brkan to public international law in general.

16 There is also a third generation of human rights in international law. These rights are group rights, such as the right to self-determination, the right to development, or the right to a clean environment. The analysis omits these from the analysis, as the concept of essence has not been applied to group rights in the past. The third generation will, however, become important for the analysis again in the conclusion, see infra Section F.

17 Frédéric Mégret, Nature of Obligations, in International Human Rights Law 97, 98 (Daniel Moeckli et al. eds., 3rd ed. 2018). For a good overview, see also Christian Tomuschat, Human Rights 146 (2014) (who, however, distances himself from such a limited understanding of civil political rights).

18 U.N. Human Rights Committee (HRC), General Comment No. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004); CESCR General Comment No. 3, The Nature of States Parties’ Obligations (Art. 2, para. 1, of the Covenant), para. 9 U.N. Doc. E/1991/23 (Dec. 14, 1990).

19 Henry Shue, Basic Rights, Subsistence, Affluence, and US Foreign Policy 52 (2d ed. 1996).

20 First recognized in U.N. Commission on Human Rights, The Right to Adequate Food as Human Right, U.N. Doc. E/CN.4/Sub.2/1987/23 (Mar. 7, 1988). The previous notion of a four-partite system of obligation—respect, protect, ensure, and promote—as conceptualized in E/CN.4/Sub.2/1983/25 (1983) was dropped and replaced by the trias of obligation.

21 Frédéric Mégret, Nature of Obligations, in International Human Rights Law 97, 99 (Daniel Moeckli et al. eds, 3d ed. 2018).

22 Theo van Boven, Categories of Rights, in International Human Rights Law 136, 136–37 (Daniel Moeckli et al. eds., 3d ed. 2018); Christian Tomuschat, Human Rights 26 (2014); Pierre Thielbörger, The Right(s) to Water, The Multi-Level Governance of a Unique Human Right 117–19 (2014). For the U.N. explicitly, out of many documents, see G.A. Res. 60/251 para. 3 (Apr. 3, 2006) (“Reaffirming further that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing, and that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis.”).

23 Michael J. Dennis and David P. Stewart, Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?, 98 U.S. J. Int’l L. 462, 462–515 (2004).

24 For a good—albeit by now outdated—summary of the US position on non-ratification of the ICESCR, see Philip Alston, U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy, 84 U.S. J. Int’l L. 365, 367–68 (1990).

25 Currently, the ICCPR OP has 116 signatories. See Optional Protocol to the International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 171, https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-5.en.pdf.

27 World Conference on Human Rights, Vienna Declaration and Programme of Action, para. 5, U.N. Doc. A/CONF.157/23 (June 25, 1993); G.A. Res. 60/1, para. 3 (Apr. 3, 2006).

28 Shue, supra note 19, at 24–27.

29 Manfred Nowak, The Need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 55 Rev. Int’l Comm’n Jurists 153, 153 (1995), available at https://www.icj.org/wp-content/uploads/2013/08/ICJ-Review-55-1995-eng.pdf; Kitty Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects 16–18 (1999).

30 These are: The International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195 [hereinafter ICERD]; Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13 [hereinafter CEDAW]; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT]; Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC]; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, 2220 U.N.T.S. 3 [hereinafter ICMW]; International Convention for the Protection of All Persons from Enforced Disappearance, Dec. 20, 2006, 2716 U.N.T.S. 3 [hereinafter ICPED]; Convention on the Rights of Persons with Disabilities, Dec. 13 2006, 2515 U.N.T.S. 3 [hereinafter ICRPD].

31 These are the rights to life, no torture, cruel or inhuman treatment, no slavery, no servitude, no imprisoned on the ground of inability to fulfil a contractual obligation. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed, right to recognition everywhere as a person before the law, right of freedom of thought etc. International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 [hereinafter ICCPR].

32 The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government). It also does not authorize the suspension of the judicial guarantees essential for the protection of such rights. American Convention on Human Rights, Nov. 21, 1969, 1144 U.N.T.S. 143 [hereinafter ACHR].

33 No derogation from Article 2 (the right to life), except in respect of deaths resulting from lawful acts of war, or from Article 3 (prohibition of torture), Article 4 paragraph 1 (prohibition of slavery and servitude), and Article 7 (no punishment without law) shall be made under this provision. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Europ.T.S. No. 5; 213 U.N.T.S. 221 [hereinafter ECHR].

34 U.N. Human Rights Committee (HRC), CCPR General Comment No. 29, Derogations during a State of Emergency, para. 13, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001). See also Clementine Olivier, Revisiting General Comment No. 29 of the United Nations Human Rights Committee: About Fair Trial Rights and Derogations in Times of Public Emergency, 17 Leiden Int’l L.J. 405, 405–19 (2004).

35 In particular, Article 27 ACHR declares the freedom of conscience and religion non-derogable, whereas a similar provision is lacking in the other treaties.

36 This is the similar to the conceptualization of “absolute breach of essence” that Brkan suggests for EU law. See Brkan, supra note 2, at 358.

37 U.N. Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, para. 58, U.N. Doc. E/CN.4/1985/4 (Sept. 28, 1984) [hereinafter Siracusa Principles].

38 Id. para. 61.

39 The consensus principle states that international law derives only from the consensus of States and restrictions to State sovereignty may therefore not easily be presumed. See case concerning the S.S. Lotus (Fr. v. Turk), Judgment, 1927 P.C.I.J. (ser. A) No. 10, ¶ 18 (Sept. 7).

40 See for a good overview, Teraya Koji, Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-Derogable Rights, 12 Euro. Int’l L.J. 917, 917–41 (2001).

41 Different, but related is the question to whom the protection of these rights is owed other than the protected individuals; arguably, the owed obligations could be understood as “erga omnes” or at least “erga omnes partes” obligations.

42 Cf. Christian Tomuschat, Human Rights 44–45 (2014); Antonio Cassese, A Plea for a Global Community Grounded in a Core of Human Rights, in Realizing Utopia, 136, 139 (Antonio Cassese ed., Oxford Univ. Press 2012).

43 Italics added.

44 Siracusa Principles.

45 Id. at I(A)(2).

46 The Committee here refers explicitly to Article 5, paragraph 1 ICCPR (although the wording of ‘essence’ is not used in Art. 5 ICCPR explicitly).

47 U.N. Human Rights Committee (HRC), CCPR General Comment No. 27, Freedom of Movement, para. 13, U.N. Doc. CCPR/C/21/Rev.1/Add.9 (Nov. 2, 1999).

48 General Comment No. 31, supra note 18, at para. 6.

49 Ben Emmerson (Special Rapporteur), Rep. on the Promotion and protection of human rights and fundamental freedoms while countering terrorism, para. 18, U.N. Doc. A/69/397 (Sept. 23, 2014).

50 Id. at para. 51.

51 Id. at para. 51 (referring back to U.N. Human Rights Committee (HRC), CCPR General Comment No. 16, The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, para. 8, U.N. Doc. A/HRC/27/37 (Apr. 8. 1988)).

52 Id. at para. 59.

53 Arguably, however, this could then be seen as a violation of different judicial rights rather than the right to privacy. Schrems found violations of the essence of both rights—right to privacy and right to effective judicial protection. For a convincing critique why only the latter should have been found to be violated in its essence, see Brkan, supra note 2, at 360–61.

54 U.N. Human Rights Committee (HRC), Yeo-Bum Yoon and Myung-Jin Choi v. Republic of Korea, U.N. Doc. CCPR/C/88/D/1321-1322/2004 (Jan. 23, 2007).

55 Id. at para. 8(3).

56 Such an understanding is mirrored for instance in the case of the German, the Spanish and the legal understanding of essence. See Brkan, supra note 2, at 341 (Brkan also suggests an absolute theory for the notion of essence in EU law), as well as Koen Lenaerts, Limits on Limitations: The Essence of Fundamental Rights in the EU, 20 German L.J. 779 (2019).

57 As is, for instance, the predominant approach in the legal systems of Austria and Hungary. See Brkan, supra note 2, at 342–43.

58 Yeo-Bum Yoon, supra note 54, at para. 8(4).

59 U.N. Human Rights Committee, Note verbale dated 5 December 1986 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights (“Limburg Principles”), Annex, U.N. Doc. E/CN.4/1987/17 (Jan. 8, 1987).

60 Id. at para. 56.

61 Ben Saul et al., The International Covenant on Economic, Social and Cultural Rights, Commentary, Cases, and Material 237 (2014). The authors use the word “non-derogability,” but in the terminology used in this Article, non-restrictability is the more appropriate term.

62 U.N. Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3, The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), para. 10, U.N. Doc. E/1991/23 (Dec. 14, 1990). See also Danilo Türk, Special Rapporteur on Problems, Policies and Progressive Measures relating to a More Effective Realization of Economic, Social and Cultural Rights, Second Progress Rep. on the Realization of Economic, Social and Cultural Rights, para. 52(d), U.N. Doc. E/CN.4/Sub.2/1991/17 (July 18, 1990).

63 U.N. Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3, The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), para. 10, U.N. Doc. E/1991/23 (Dec. 14, 1990).

64 Cf. Ahmadou Sadio Diallo (Rep. of Guinea v. Dem. Rep. Congo), Judgment, 2010 I.C.J. Rep. 103, ¶ 66 (Nov. 30).

65 These are commonly considered to be “to take [at least some] steps” and doing so in a manner that is non-discriminatory. See International Covenant on Economic, Social and Cultural Rights arts. 2(1), 2(2), Jan. 3, 1976, 993 U.N.T.S. 3 [hereinafter ICESCR]. See also Saul, supra note 61, at 137.

66 This interpretation is mirrored in Art. 31(1) VCLT which, however, does not apply retroactively to the Covenant. Vienna Convention on the Law of Treaties art. 31(1), opened for signature May 23, 1969, 1155 U.N.T.S. 331. [hereinafter VCLT].

67 An interesting argument, albeit going beyond the scope of this Article, concerns the question whether the understanding of essence differs dependent on whether a state of emergency has been declared or not under Article 4 ICCPR. If Article 18(1) ICCPR, for instance, can be restricted in “normal times“ according to Article 18(3) ICCPR, shouldn’t this possibility of restrictability hold even more for times of emergency? Otherwise, a person would enjoy more protection under Article 18(1) ICCPR in times of emergency than she would in non-emergency times. This would in turn mean that the declaration of emergency would make it harder for States to curtail human rights while the purpose of the declaration is to make it easier for them. Thus, an interesting question for future research is the relationship between Article 4 ICCPR and Article 5 ICCPR—is the level of essence under Article 5 ICCPR influenced by the declaration of an emergency, or not?

68 Brkan, for instance, admits that the claim that each (emphasis added) fundamental right has an inalienable essence has not yet been empirically proven, but follows from Brkan from “argumentative logic.” Brkan, supra note 2. Admittedly, the EU Charter of Fundamental Rights and Freedoms itself gives the impression that all fundamental rights have an essence given its wording in Art. 52(1), although this wording is not unambiguous.

69 Article 19(2) German Grundgesetz in connection with Article 1 German Grundgesetz.

70 Just to give one example, the German principle of “Völkerrechtsfreundlichkeit des Grundgesetzes” is well established in the case law of the Bundesverfassungsgericht.

71 For example, the EU has been called an “international organization in the framework of the applicable international legal system” by Oliver Dörr, EUV Art. 47, in Eberhard Grabitz, Meinhard Hilf and Martin Nettesheim (Eds.), Das Recht der Europäischen Union, 66. Ergänzungslieferung February 2019, available through Beck Online, point 11 (author’s own translation).

72 For this important distinction, see for instance—out of many—the ECJ’s landmark decision in Case 176/12, Association de Médiation Sociale, 2014 E.C.R. (concerning the question of horizontal effect of the workers’ right to information and consultation (Article 27 of the Charter of Fundamental Rights) as implemented in Directive 2002/14, establishing a framework for informing and consulting employees in the Union, Case-176/12, Association de Médiation Sociale, 2014 E.C.R.). For the opinion of the Advocate General of July 18, 2013, coming to a different conclusion, see Case C-176/12, Association de Médiation Sociale, 2013 E.C.R.

73 See Case C-341/05, Laval un Partneri, Ltd. v. Svenska Byggnadsarbetareförbundet, 2007 E.C.R. I-11845; Case C-438/05, Int’l Transp. Workers’ Fed’n v. Viking Line ABP, 2007 E.C.R. I-10806 (establishing right to strike in EU law).

* Pierre Thielbörger is a professor of German public law and public international law at Ruhr University Bochum and the Executive Director of the Institute for International Law of Peace and Armed Conflict (IFHV) at said university. Thanks to Marius Fritz, Rouven Diekjobst and Maximilian Bertamini for their help with editing and research.

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