International human rights law

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  • 1. International Human Rights Law 1.0 The concept of human rights 1.1 Categorization of human rights  civil and political rights (freedom of expression, freedom from arbitrary arrest and detention – protection for the governed from government’s conduct) 2)economic, social and cultural rights (right to work, education, access to health care 3) group of people’s rights (collective protection of rights – the right to development and right to self determination) 1.2 Universalism and cultural relativism  Proponents of the universalism – human rights should be the same everywhere ; landmark instrument – Universal Declaration of Human Rights, the two Covenants also speak in universal terms (‘everyone’ has the liberty, ‘all persons’ are entitled to equal protection)  Cultural relativism – human rights should depend on cultural context (term culture being used in a broad way to include indigenous traditions, customary practice and political and religious ideologies – notions of right and wrong differ throughout the world)  Islamic perspective – Islam has its own values and standard of human rights ; according to Syariah law. Islamic countries made reservation when ratifying the Conventions on the Elimination of All Forms of Discrimination Against Women 1979 and the Convention on the Rights of the Child 1989 – these countries proclaimed a distinct human rights code in 1981 2.0 The Evolution of International Human Rights Law 2.1 Human rights clauses of the Charter  Preamble of the Charter ; the peoples of the UN reaffirmed their faith in fundamental human rights, in the dignity and worth of human person, in the equal rights of men and women and of nations large and small
  • 2.  Article 1 ; list the among the purposes of the UN and the achievement of international cooperation in promoting and encouraging respect for human rights and for fundamental freedom for all without distinction as to the race, sex, language or religion  Article 55 ; the UN has the duty to promote universal respect for and observance of human rights and fundamental freedoms for all without discrimination as to the race, sex, language, religion  Article 56 ; all members pledge themselves to take joint and separate action in cooperation with the organization for the achievement of the purposes set forth in Article 55  However – Charter does not define specifically what are the fundamental human rights and freedom / make any machinery to secure the protection – Article 2 (7) prohibits the UN to interfere with domestic jurisdiction ; how war the UN is entitled to look into the breaches of human rights (but it’s a general agreement that human rights are a matter of international concern – testified by human rights treaties and state practice, state may not claim it to be under domestic jurisdiction) 2.2 The Universal Declaration of Human Rights  First step of the UN to draw up an international document acceptable to all members of UN in the field of human rights – the adoption of the UDHR  Declaration contains a comprehensive list of two main category of human rights ; civil and political rights (Article 3-21) and economic, social and cultural right (Article 22-27)  States under no legal obligation ; it not legally binding ; simply a list of human rights which the members pledge themselves to promote under Article 55 and 56  But it is shown to be the benchmark of the subsequent execution of human rights treaties – has impact to the content of constitution for new state –some part of the declaration are deemed to be legally binding as they formed customary international law
  • 3. 2.3 The development of human rights treaties  States agreed to transform its general principle into legally binding instruments (to be done both at the universal level and regional level)  Universal level – International Covenants on Human Rights of 1966  Regional level – The European Convention On Human Rights, Inter American Convention on Rights, African Charter on Human and Peoples Rights 1981  Specific human rights treaties – The Convention on Genocide 1948, the Convention on Racial Discrimination 1966, the Convention on Discrimination against Women 1979 3.0 International Covenant on Civil and Political Rights (ICCPR) Original plan – to draft a single convention covering all fundamental human rights ; but in view of the rivalry between the West and the socialist countries and the emergence of newly independent countries – impossible to do so ICCPR adopted by the GA on 16th December 1966 3.1 Obligation of States parties and applicability (Article 2) Article 2 provides that 1) Each state party to the present Covenant undertakes to respect and ensure all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant 2) Each state party undertake to adopt such legislative/other measures s may be necessary to give effect to the rights recognized in the present Covenant 3) Each state party to the Covenant undertakes a) To ensure that any person whose rights are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity b) To ensure that any person claiming such remedy shall have his right determined by competent judicial, legislative, administrative authorities c) To ensure that the competent authorities shall enforce such remedies when granted
  • 4.  Legal obligation of states under Article 2 (1) is both positive and negative in nature (positive obligation ; will be discharged if individuals are protected by the states, against state organ, private persons/entities)  State may be held liable for its failure to take appropriate measures/exercise due diligence to prevent/punish/investigate/redress the harm caused by private persons Scope of application  State parties are required to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction (anyone within the power/effective control of the state) – not only to nationals but also to all individuals such as refugee/asylum seekers who is in the territory of the state  Also applies to those within the power/effective control of the forces of state party acting outside its territory (Al-Qaeda and Taliban suspects detained by the US at its base in Guantanamo Bay, away from US territory Applicability during armed conflict  Applies in situation of armed conflict where international humanitarian law is applicable (only non derogable rights are applicable) 3.2 Derogation in times of national emergency and non derogable human rights (Article 4) National emergency  Article 4 – in the event of a public emergency which threatens the life of the nation and the existence of which is officially proclaimed – states may derogate from certain of their obligations under the Covenant  To the extent strictly required by the exigencies of the situation (provided that such measures are not inconsistent with other obligation under IL and do not involve discrimination) – measures take does not involve discrimination solely on the ground of race, religion, colour, sex, language, social origin  State which want to invoke the right to derogate must justify 1) There exist a public emergency which threatens the life of the nation 2) All their measures derogating from the Covenant are strictly required by the exigencies of the situation
  • 5. Term public emergency –  interpreted in Lawless v Ireland ; exceptional situations of crisis/emergency which afflicts the whole population and constitutes a threat to the organized life of the community  Greek case ; public emergency must have these four characteristics 1) It must be actual/imminent 2) Its effects must involve the whole nation 3) The continuance of the organized life of the community must be threatened 4) The crisis/danger must be exceptional, in that normal measures/restriction, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate Second requirement of strictly required by the exigencies of the situation  Refers to the duration, geographical coverage and material scope of the state emergency – reflects the principle of proportionality Non derogable rights  Article 4 (2) – no derogation may be made from Article 6 (right to life), Article 7 (prohibition against torture/cruel, inhuman or degrading treatment/punishment), Article 8(1) and (2) (prohibition of slavery and slave trading), Article 11 (no imprisonment for failure of contractual obligation), Article 15(non retroactivity of criminal law), Article 16 (recognition as a person before the law), Article 18 (freedom of thought, conscience and religion), Article 26 (non discrimination) Procedure for derogation  Article 4 (3) – any state party availing itself of the right of derogation shall immediately inform the other state parties to the present Covenant, through the intermediary of the Secretary General of the UN, of the proviso vision from which it has derogated and of the reason by which it was actuated. Further communication shall be made, through the same intermediary, on the date on which it terminates such derogation 3.3 Human Rights Committee and individual complaint procedure
  • 6.  Implementation of ICCPR is based on Human Rights Committee established under Article 28 of the Covenant – consist of 18 elected members (person of high moral character and competent in the field of human rights, legal experience)  HCR has three main monitoring mechanism 1) Compulsory reporting procedure ; all state parties are obliged to present reports (initial and period) indicating compliance with the ICCPR 2) Optional inter state complainst procedure ; provided in Article 41 3) Individual complain procedure – the most significant monitoring mechanism of HCR under the Optional Protocol to the ICCPR 1966 Written communication  Article 1 of the Optional Protocol – state parties recognize the competence of the committee to receive and consider communication from individuals subject to its jurisdiction who claim to be victims of a violation by state of any rights states in the Covenant  Article 2 – individuals who claim that any right in the Covenant have been violated and who have exhausted all available remedies, may submit a written communication to the committee for consideration  Requirement for admissibility of a communication to HCR 1) The communication must be made by the individual Individual – human being/natural legal person Acting on behalf of another – require to state the capacity in which he/she is acting on behalf of the victim and provide information why the victim is unable to submit the communication (close family, lawyer, person given specific authority by the victim) 2) Individual must be the victim of violation  Aumeruddy-Cziffra v Mauritius  Meaning of victim ; a person can only claim to be a victim in the sense of article 1 if she/he is actually affected by way of action popularis, challenge a law or practice to be contrary to the Covenant
  • 7. 3) The violation must be committed by a state party  State must at the time of the violation, have been a party to both the ICCPR and the Optional Protocol  State must be in breach of its obligation to the individual concerned either through action or inaction of its organ/agents 4) The individual must be subject to the jurisdiction of the state  No nationality requirement in these provision  Foreigner who is present in the state territory and whose right are violated enjoys the same right of communication as a national of that state  Massioti and Baristussio v Uruguay – the authors who made their communication from the Netherland alleges that they had been victims of arbitrary arrest and detention while they were in Uruguay. HCR rejected Uruguay’s contention that the communication was inadmissible since the individuals were not within jurisdiction of the state at the time of its making 5) Exhaustion of local remedies 4.0 An analysis of important civil and political right 4.1 The right to life Supreme right - no derogation is permitted even in times of emergency Article 6 – 1) Every human being has the inherent right to life. This right shall be protected by the law. No one shall be deprived of his life 2) Death penalty – may be for the most serious crime Protection against arbitrary deprivation of life Take measure not only to prevent and punish deprivation of live by criminal act but also to prevent arbitrary killing by their own police/security forces Police raids and arbitrary killings of suspected criminal Guerero v Colombia ; a police raid was carried out in a house where it is believed that a kidnapped ambassador was held there. The ambassador was not found but the the police officers waited the arrival of the suspected kidnapper. Seven persons who were
  • 8. never proved to be connected with the kidnapping were shot without warning. Evidence showed that they have been killed at point blank range and some were shot in the head. HCR decided that the action of the police to go far beyond the requirement of enforcement of law and in violation of Article 6. Death in detention Article 5 – provides an obligation for medical care to ensure lives of the prisoners – to do so regardless of the cost Lantsov v Russia ; the applicant’s son died while in pre-trial detential. While healthy on being detained, he fell ill due to poor condition of the detention 0 HRC found breach of Article 6 and state will be responsible The duty to punish those who commit arbitrary killing In the above case of Guerero v Columbia, the act committed by the security forces even though justified by the Colombia court, is found to be in breach of Article 6 The death penalty Article 6 (2) to (6) – does not impose obligation for state to abolish death penalty but to reduce its use and limit the use to the most serious crime only – exceptional measure Second Optional Protocol ; abolition of death penalty Second Optional Protocol to the ICCPR – Aiming to abolish death penalty, 73 states parties to the Protocol – impose obligation for the state to take all necessary measures to abolish death penalty 4.2 Freedom from torture/cruel, inhuman or degrading treatment/punishment Article 7 – no one shall be subjected to torture/cruel, inhuman degrading treatment/punishment - non derogable right Definition of torture ICCPR does not adopted any definition – Article 1 of the Convention Against Torture applies 1) Article 1 CAT – torture means any act by which severe pain and suffering, physical/mental intentionally inflicted on a person for the purpose of obtaining information/confession, Such pain is inflicted by or at the instigation of or with the consent of public official / other person acting in an official capacity
  • 9. Requirement to constitute torture 2) Infliction of severe pain and suffering – severity an important factor (physical/mental) 3) Infliction is intentional 4) Torture is inflicted for a purpose – obtaining information/confession 5) Such pain is inflicted by or at the instigation of or with the consent of public official / other person acting in an official capacity Consent / acquiescence of state party Dzemail et al v Yugoslavia ; addresses whether such failure on the part of the state amount to acquiescence for the purpose of CAT. 65 people of Romani origin were either tortured or treated cruelly or inhumanely by ethnic Montenegrins. The complainant submitted that these torturous act was committed for the purpose of punishing them for an act committed by a third person (the rape of a Montenegrin girl) and these act took place in the presence of and thus with the consent of the police who’s duty is to secure their safety. CAT committee decided that CAT had been violated. The public official requirement Design to prevent state from holding responsibility beyond their control – but state will be held liable if they fail to respond adequately /take measure to prevent them 4.3 The right to liberty and security of a person Article 9 of ICCPR – 1) Everyone has the right to liberty and security of person, no one shall be subjected to arbitrary arrest/detention. No one shall be deprived of his liberty except on such ground and in accordance with law 2) Anyone who is arrested shall be informed, at the time of arrest of his reason of arrest and shall be promptly informed of any charges against him 3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge/ other officer authorized by law to exercise judicial power and shall be entitled to reasonable trial or release 4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceeding before a court in order to determine the lawfulness of his detention and If it is unlawful, he shall be released 5) Anyone subjected to unlawful detention shall be entitled for compensation
  • 10. Article 9 (1) – the right to security of person Does not allow state to ignore threats to personal security of the non detained person subject to its jurisdiction Delgado v Colombia The author was a teacher who had made complaints against the education authorities concerning discrimination against him. He received death threats as a result of the complain and being attacked once. HRC decided that Colombia violated Article 9 (1) Article 9 (1) – right to liberty Applicable to all forms of deprivation (criminal case, immigration control) Limitation ; ground and in accordance with the law + the law and its enforcement is not arbitrary Article 9 (2) – to inform reasons for arrest at the time of arrest Grant v Jamaica ; Grant was not informed of the reasons of his arrest until seven days later because the arresting officer thought that he was aware of his reasons for arrest. HRC decided that there was a breach of Article 9 (2) Article 9 (3) – bringing promptly before a judge Meaning of promptly – A delay of three days in the case of Borisenko v Hungary and four days in Freemantle v Jamaica were decided to be in breach of Article 9 (3) Judge or other officer authorized by law to exercise judicial power Kulomin v Hungary ; after his arrest, the author’s pre trial detention was ordered and subsequently renewed on several occasion by the public prosecutor before he was brought before a judge. HRC Is not satisfied that the public prosecutor could be considered as an officer authorized to exercised judicial power Length of pre trial detention – should be within reasonable time , as short as possible (Fillastre v Bolivia ; there was a delay for over three years before the adjudication of the case Article 9 (4) – right of habeas corpus Entitled a person to challenge the lawfulness of his detention Muteba v Zaire ; HRC ruled that holding a person incommunicated is an effective bar against the ability to challenge the validity of one’s arrest – on breach of Article 9 (4)
  • 11. Article 9 (5) – right ot compensation 4.4 The right to a fair trial Article 14 (1) – equality and right to a fair hearing Equality before the courts – article guarantees equality before the court – law should be applied without discrimination by the judiciary Access to court Avellanal v Peru - a violation of Article 14 (1) was found in Peruvian Law which precludes access for married women in respect of suits for matrimonial property – violate requirement that all persons be equal before the court Competent, independent and impartial tribunal established by the law Bahamonde v Equatorial Guinea ; the President controlled the judiciary in Guninea/ HRC considered that ‘a situation where the functions and competence of the judiciary and the executive are not clearly distinguishable/the later was able to control/direct the former – incapable with the notion of an independent and impartial tribunal. Elements of a fair hearing Indispensable aspect – equality of arms between the prosecution and the defence. John Campbell v Jamaica ; the author’s son was detained in order to force him to testify against the author and this was found to be in breach of Article 14 (1) Audi alteram partem – hear the other side. The right to a fair trial also requires compliance to the rules of natural justice Hermoza v Peru ;the administrative authorities dismissed the author without giving him any chance of a hearing – violation of Article 14 (1) Article 14 (2) – presumption of innocence ; everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty – no guilt can be proved until the charge has been proved beyond reasonable doubt. Article 14 (3) (a) – the right to be informed of the charge – right to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him
  • 12. Article 14 (3) (b) – Preparation of the defence and counsel of her own choice Guarantees right of the accused’to have adequate time and facilities for the preparation of his defence and communicate with the counsel of his choice Gridin v Russian Federation The author claimed that he requested a lawyer soon after his detention and that this request was ignored. He also claimed that he was interrogated without the benefit of consulting a lawyer after he repeatedly requested such consultation – Article 14 (3) (b) was violated. Article 14 (3) (c ) – trial without undue delay This guarantee not only to the time which the trial should commence, but also to the time when such trial should end and judgment be rendered - all stages must take place without undue delay The determination of undue delay depends on the complexity of the case Hill and Hill v Spain The delay was three years between arrest and final appeal. The state argues that it was due to the complexity of the case. The HRC found otherwise since there was no indication that further investigation was required – violation of Article 14 (3) © Article 14 (3) (d) – Trial in one owns presence and right to counsel of own choice Trial in absentia ; when the accused person is informed of the proceeding in advance but decline to exercise his right to be present is permissible in the interest of the administration of justice. HRC held that trial in absentia is only permissible if the accused is informed of the charge against him Right to counsel of one’s own choice ; Lopez Burgos v Uruguay – Lopez was forced to refrain from seeking any legal counsel other than a colonel assigned by the Government – violation of Article 14 (3) (d) 4.5 Freedom of expression Article 19 provides that 1) Everyone shall have the right to hold opinion without interference
  • 13. 2) Everyone shall have the right to freedom of expression – include right to seek receive and impart information and ideas of all kind, regardless of frontiers, either orally or in writing.in print/form of art/through any media of his own choice 3) But subjected to duties and responsibilities (restriction) – provided by the law and are necessary a) For respect of the rights/reputation of others b) Protection of national security/public order/health/moral Article 19 (1) – right to hold opinion without interference HRC provides no restriction/exception – absolute freedom Article 19 (2) – right to freedom of expression Freedom to seek, receive and impart information ; Gauthier v Canada – the author was a publisher of a newspaper. He applied for membership in the Parliamentary Press Gallery , a private association that administer the accreditation for the access to the precincts of the Parliament. He was provided with a temporary pass that gives limited privileges. Repeated request for the equal access on the same term as other reporters were denied. He claimed that it constitute to violation to Article 19. States justified the action on the ground to achieve the balance between the right to freedom of expression and the need to ensure both the dignified and safety of the Parliament operation – rejected by the HRC due to the facts that accreditation system should have provided a more specific, relevant and fair criteria. Freedom of press HRC states in its General Comment 10 that ‘effective measure are necessary to prevent such control of the media as would interfere with the right to freedom of expression” – Government monopolies on the media ownership are therefore incompatible with Article 19 Permissible restrictions to freedom of expression Article 19 (3) lays down three conditions 1) The restriction must be provided by the law 2) They may only be imposed for one of the purposes set out in paragraph a and b 3) They must be justified as being necessary by that state party for one of these purposes Public order and national security
  • 14. PO – sum of rules which ensure the peaceful and effective functioning of society – may include prohibition on speech which may incite crime, violence or mass panic Mukong v Cameroon The author was a journalist who had long advocated multi-party democary in the one party state of Cameroon. He was arrested in 1988 following a BBC broadcast in which he criticized the President of Cameroon and the government. The state party indirectly justified its action on grounds of national security and public order – rejected by HRC by saying that national security is invoked when the political independence or territorial integrity of the state is at risk Rights and reputation of others Defamation, contempt of court 4.6 Equality and non discrimination Heavy emphasis on non discrimination Contains prohibition on discrimination in Article 2(1) and Article 26 Article 26 enunciates the right to equality and non discrimination – all persons are equal before the law and entitled without any discrimination to the equal protection of the law. The law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as race, colour, religion, sex Definition of discrimination – no definition in ICCPR but Article 18 provides understanding of the concept The term discrimination implies any distinction, exclusion, restriction or preference which is based on any ground which has the effect of nullifying or impairing the recognition, enjoyment or exercise by all person, on equal footing, of all rights and freedom. Means – one who receive less favourable treatment on one of the grounds stated in Article 26 can be regarded as victim of discrimination Waldman v Canada ; a complaint was made against an Ontario Law which gave the government power to provide special funding for Catholic schools while excluding other religious school from funding - there was discrimination
  • 15. 5.0 International Covenant on Economic, Social and Cultural Right (ICESCR) ICESCR provides – right of self determination for all peoples, right to work, right to form trade union and strike, right to social security, right to adequate standard of living and etc Article 2 (1) ; each state party to the present Covenant undertakes to take step to the maximum of its available resources with a view of achieving progressively the full realization of the rights recognized in the present covenant by all appropriate means, including the adoption of legislative measure General obligation – taking steps with a view to achieving progressively the full realization of the rights – much less specific, obligation less mandatory and enforcement machinery is less strong 6.0 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 7.0 The Convention on The Rights of the Child (CRC) 8.0 Enforcement of international human rights ; universal level Two principle monitoring mechanism created 1) Monitoring mechanism established by the UN Article 13 of the UNC ; General Assembly can initiate studies and make recommendations on human right issues Principle organ in UN for human right issues – Economic and Social Council (ECOSOC) Article 62 of the UNC – ECOSOC can make recommendations on human rights, draft conventions, convene international conference and hear reports from various bodies A commission of Human Rights established by ECOSOC under Article 68 of the UNC – entrusted by means of resolutions of the ECOSOC and the GA with some monitoring and enforcement function Human Rights Council – GA adopted Resolution A60/251 to establish the Human Rights Council to replace the highly politicized Commission on Human Rights – council as subsidiary organ of the GA, member have further strengthened the organization’s human right machinery – aimed at creating a stronger, efficient and less politicized organization to respond promptly in any human rights issues. 2) Monitoring mechanism established by treaties
  • 16. International human rights treaties have their own monitoring mechanism Eg for ICCPR – The monitoring body is the Human Rights Committee and for ICESR, The committee on Economic, Social and Cultural Rights The monitoring mechanism of the above human rights treaties can be summarized into three general types of monitoring procedure a) Period reports – provision in the convention to submit reports by state parties – weakest form b) Inter state complaints – state party can make complaint against another state for violation of human rights – but this can only be possible when the parties in addition to ratifying the treaty, accepts a special clause providing for the procedure c) Complaints made by individuals – individuals may file with the monitoring body a communication stating the violation allegedly committed by the state 9.0 Enforcement of International Human Rights Law ; regional level It is difficult to reach agreement on human rights issues at the universal level due to different ideologies and interest – agreements are easier to reach at the regional level where states are more likely to trust one another and to have common values and interest Eg ; European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) had been adopted by Europe – reflects similarities with the principles in UDHR THE Convention sets up the European Commission and a European Court of Human Rights which then replaced by a single court – The European Court of Human Right due to the amendment made to Protocol no 11 of the Convention (due to increase of complaints, backlog cases) The ECHR has inter state as well as individual complaints procedure for redress of grievences