Eckart Klein

Zum (völker-)rechtlichen Unter- und Hintergrund von Menschenrechtsverträgen – Gibt es ein menschenrechtliches corpus iuris? -

Rubrik: Abhandlungen
Archiv des Völkerrechts (AVR)

Jahrgang 55 () / Heft 3, S. 303-323 (21)

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The first section of this article discusses the transformation of moral considerations into legal human rights norms and the consequences following therefrom. The moral values become legally tamed, and thus the norm in question can also be respected by those who do not share the underlying moral judgment. The decisive basis of the rules contained in human rights treaties is law, not morality, and it is law that governs their application. The application of human rights law must be effected in legal surroundings and under specific legal conditions. As far as treaties are concerned the 1969 Vienna Convention on the Law of Treaties contains the essential rules. This article examines whether the Vienna Convention's rules on reservations (Articles 19–23) are appropriate in view of the particular character of human rights treaties. Another problem relates to the practice by many international human rights bodies, especially the European Court of Human Rights, of refering to other treaties or international instruments, including soft law, in order to interpret the relevant treaty provision. In this respect a strict line must be drawn between Article 31, paragraph 3 (c) on the one hand and the teleological interpretation according to Article 31, paragraph 1 of the Vienna Convention on the other. While in the first case the instruments taken into account directly influence the content of the rule itself, the material used in the latter is only a means to understand the correct bearing of the respective rule. In this context the question of possible interpretive set-backs is discussed also. In sum, the article essentially pleads in favour of a holistic view of human rights norms, but by the same token warns against the view of human rights as a catch-all providing ready-made solutions.

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