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Human Rights/ Essay / Paper by AssignmentLab.com Document Transcript

  • 1. 1 A. The Deliberations of the Affogato Human Rights Commission, Particularly the Law Relating to Statehood and to Treaties. 1. Peculiar properties of the effect of international treaties within a certain state. One of the most issues that must be addressed in the process of state implementation is to establish the nature of the treaty, i.e., to determine whether it is self-fulfilling or nonself-fulfilling. Solving this problem is related to the definition of the volume of implementation power of a state, and further running and adjustment of the mechanism, which would properly trigger an international treaty and enforce it. In this context, there arise important questions on the dependence of the nature of the international treaty effect on the chosen by a state concept of the ratio of international and national law, as well as on the state powers to address the issue of self-fulfilling of international treaties. It is known that the national implementation of international agreements depends on the chosen by a state concept of the ratio of international and national law. When national law has primacy over international law, the direct effect of international legal norms is in every certain case sanctioned by the expression of consent to be bound by a specific treaty. Instead, primacy of international law provides for its direct effect beyond national law, whose prerequisite is a common tenet of the priority of the application of international law in case of divergence of its rules with the requirements of national law. Consequently, the thesis about the possibility of the direct effect of international law is not borne out in practice, since the interaction of international and domestic law from a practical point of view requires the assimilation of international law so that it could be practically applied in the legal system of a state. The analysis of such important international instruments as the Universal Declaration of Human Rights (1948) and the International Covenant on Economic, Social and Cultural
  • 2. 2 Rights (1966), does not give grounds to believe that these acts are self-fulfilling. In particular, the preamble of the Universal Declaration states that it should be considered as “a common standard of achievement for all peoples and all nations” (General Assembly resolution 217 (III) of 10 December 1948). The lack of clear legal obligations that should guide the subjects of national law indicates non-self-fulfillment of the standards of the Declaration. The same conclusion is got when analyzing the Covenant on Economic, Social and Cultural Rights, whose Article 2 (1) indicates that each State Party “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (General Assembly resolution 2200A (XXI) of 16 December 1966). Thus, it is clear that states adopted certain general obligations on the international level, but their concrete implementation depends on national legal measures, that is, the development of national legislation. Similarly, Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) states that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention” (CETS No.: 005, 1950). Also, in Article 7 (2) parties to the Covenant agreed that “This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations” (CETS No.: 005, 1950). Thus, there is no general indication of the need for specific measures of the implementation of the Convention. Likewise, norms of the Convention are directed at the grounds of criminal responsibility, and the lack of national legal determination of general principles of law recognized by civilized nations, even if they are understood as generally recognized principles and norms of
  • 3. 3 international law, as well as the lack of designation on the additional grounds for criminal responsibility in accordance with these principles, give reason to believe that these Articles of the Convention are non-self-fulfilling. Then, perhaps, the resolution of these issues requires a “national initiative”. Given analyzed rules of international law, it can be concluded that Macchiato was bound by obligations of the Affogato Convention on Human Rights in the period when it recognized it to be valid for it, if the consent to its obligatoriness was provided in due course. Therefore, if it is proved that authorising and using interrogation methods that amount to torture and failing to prevent acts of torture from being committed took place, Macchiato state can be recognized liable by the Affogato Human Rights Commission. Although its decisions are not legally binding, this recognition may result in political and economic consequences of a larger scale. Furthermore, in accordance with customary international law, torture is a violation of human rights and modern international community finds this practice unacceptable, even if an actor of international law is not currently a party to any human rights treaty. 2. International legal personality of peoples (nations). Modern international law contains provisions that entrench the right of peoples and nations to self-determination. One of the purposes of the UN Charter is to develop friendly relations among nations “based on respect for the principle of equal rights and selfdetermination of peoples” (Article 1. 2). In its Declaration on the Granting of Independence to Colonial Countries and Peoples the UN General Assembly inter alia declared that “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (General Assembly resolution 1514 (XV) of 14 December 1960).
  • 4. 4 The right of peoples (nations) to self-determination is applicable to every nation and is revealed through its national sovereignty, meaning that every nation has the sovereign right to autonomy in the achievement of statehood, to independent state existence, and to free choice of ways of development. If the peoples (nations) have the right to self-determination, all other states are obliged to respect this right. This obligation covers the recognition of those international relations, where the nation serves as a subject. Thus, inseparable from the people (nation) right to self-determination, associated with its national sovereignty, is the basis of its international legal personality. If it comes to self-determination of individual nations within the territory of an independent state, the issue should be resolved on the basis of given circumstances in the context of interrelated basic principles of international law. For example, commenting on Kosovo declaration of independence, U.S. Secretary of State Condoleezza Rice said that the unusual combination of factors in Kosovo, including the context of Yugoslavia’s disintegration, the history of ethnic cleansing and crimes against civilians in Kosovo, as well as the long period of being under UN administration, does situation in Kosovo a special case, which cannot be considered a precedent for other regions of the world (Unusual Circumstances and Serbian Cruelty Make Kosovo a Special Case, 2008). It is necessary to distinguish between self-determination of peoples (nations) that do not have any statehood from the self-determination of peoples (nations) that already attained statehood. In the first case the national sovereignty of a nation is not yet ensured by state sovereignty, while in the second case, a nation have exercised its right to self-determination and its national sovereignty finds protection from a state that is an independent subject of international law. However, self-determination of a nation inside a multinational state does not necessarily imply the mandatory separation and creation of an autologous independent state. First of all, self-determination is associated with an increased level of autonomy, but
  • 5. 5 without the threat of human rights and territorial integrity. It is important that implementation of self-determination by one nation in a multinational sovereign state should not lead to violation of the rights of other of its nations. The people (nation), fighting for independence and the establishment of a sovereign state by implementing their right to self-determination, possess the ability to have international rights and obligations as well as the ability to independently implement them. However, these organically related to each other abilities, which make up legal personality of the people (nation), have the specificity that distinguishes the international legal personality of a nation from the international personality of a state. The people (nation) while struggling for an independent state are able to participate in international relations only “in matters relating to the right to self-determination”. In this regard, the people (nation) have basic rights of a subject of international law, including the right to conclude agreements with states, international organizations, and other peoples implementing their national sovereignty, as well as to join the multilateral international agreements. When concluding international treaties or accessing to them on behalf of a nation there serve agencies representing it and established during the struggle for independence: a national liberation front, a transitional government, leaders of political parties supported by the majority of population, etc. Also, one of the fundamental rights of the people (nation) is the right to the international legal protection and support from other subjects of international law. Thus, if Espresso expresses the practical ability to bear international rights and obligations and to be responsible for their non-fulfillment, and, given the recognition of its independence by 50 states and inability of Macchiato to exercise effective control over the territory of Espresso, it can be assumed that the formal attributes of sovereignty as implementation of the right to self-determination are present. However, until the recognition of the legality of independence of Espresso by the United Nations further implementation of
  • 6. 6 its sovereignty seems to be limited. At least till this moment the withdrawal of “temporary managers” from the province is not urgently needed. In addition, as noted above, the implementation of the right to self-determination should not be implemented by methods that violate the rights of other nations. From this perspective, practices of revolutionary movement and new transitional government treating non-Mochans harshly, expropriating their property and forcibly evicting them from their homes, may be considered inconsistent to customary international law. 3. Ensuring respect for human rights. International human rights law is aimed at creating the initial standards in the protection of a certain set of rights guaranteed to all people under all circumstances and in any place. The backbone of the international human rights law is made by a number of United Nations instruments. Among them there are the United Nations Charter (as the fundamental basis of modern international human rights law, as far as it qualifies human rights and fundamental freedoms as a prerequisite to stability and peace, according to Article 55), the Universal Declaration of Human Rights (although not having binding force, an authoritative source of rights and freedoms, a part of customary international law and, thus, the basis of international human rights obligations applicable to all states, even those who are not involved in other human rights treaties), the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and others. It is significant for the topic under discussion that Article 1, constituting Part 1, of the International Covenant on Civil and Political Rights guarantees all people “the right of self-
  • 7. 7 determination” (1) and the right “to freely dispose of their natural wealth and resources” (2). “The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations” (3). This right differs from the other rights guaranteed in the Covenant by being reserved for the “peoples”, rather than individuals. This is also the only provision, which is common to both Covenants: Article 1 of the International Covenant on Economic, Social and Cultural Rights is identical. The exact meaning of the right to selfdetermination under international law is still in being formulated. Nevertheless, a prerequisite for complete and genuine self-determination of the certain people is the full implementation of the rights enshrined in the Covenant by representatives of these people (Frequently Asked Questions on International Law Aspects of Countering Terrorism, 2009). In addition to the UN mechanisms of aimed at ensuring respect for human rights, there are also mechanisms of regional organizations created in order to monitor and enforce respect for human rights and fundamental freedoms (for instance, The European Convention on Human Rights and Fundamental Freedoms of 1950, The Charter of Fundamental Rights of the European Union of 2000, The American Convention on Human Rights of 1969, The African Charter on Human and Peoples’ Rights of 1981, and assumedly the Affogato Convention on Human Rights of 1990). Key treaties developing provisions of the UN documents and, at the same time, reflecting the peculiarities of each region, judicial practice, standard procedures and conclusions of the regional bodies are a useful guide to the matter of development of international human rights standards. Due to the fact that many of the rights contained in regional treaties reflect the rights provided by the International Covenant on Civil and Political Rights, a degree of enrichment in the interpretation of provisions of international human rights treaties is noted between
  • 8. 8 them. In particular, the European Court of Human Rights, which develop the principles of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment contained in Article 3 of the European Convention on Human Rights and Fundamental Freedoms, can be used as a tool for interpretation of parallel provisions on the prohibition of such acts in Article 7 of the International Covenant on Civil and Political Rights. For example, in 2006 The Committee on Human Rights in case Alzery v. Sweden (CCPR/C/88/D/1416/2005) refers to the legal practice of the European Court of Human Rights (Bilasi-Ashri v. Austria, 3314/02) as well as UN Committee against Torture (Agiza v. Sweden, communication No. 233/2003) in support of the arguments presented by the Human Rights Committee regarding the principle of non-refoulement. The same assumption can be made about the 1990 Affogato Convention on Human Rights. B. The International Claims That Might Be Made by Madriz and Kona against Macchiato Arising out of the Treatment of Klatch and Klatch Manufacturing. 1. Mechanism of protection under international human rights standards. Human rights and fundamental freedoms are not only the declared ideals, but they must be feasible and effective. Every person subjects to protection of human rights. This means that a state must protect the rights of any person within its territory or under its jurisdiction irrespective of whether he/she is a citizen of this state or not. In the context of fight against crime this means that a state must take all measures to protect the rights of the population, in general, of victims of criminal activity, and of persons engaged in activities aimed at combating crime. Criminal acts of violence have devastating consequences for individual human rights such as the right to life, the right to health, the right to liberty and security. Exactly these
  • 9. 9 rights of Klatch were violated by Macchiato state in the face of its security forces, when at the time of the incident no attempt was made to assist Klatch being attacked and injured by persons engaged in a violent demonstration. International human rights instruments define the responsibilities of states towards individuals, but do not provide for criminal liability of individuals and organizations involved in criminal activity. Under certain circumstances a state can also be prosecuted for human rights violations that were committed by private individuals or state representatives. For example, particularly relevant to the subject is the fact that a state can be brought to justice for human rights violations when human rights violations are committed by private companies acting on behalf of a state (e. g., security sector); when adequate criminal law to regulate criminal activity is absent; when the measures necessary to prevent the activities of criminal violent groups within the territory of a state are not applied. As it is stated in the General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, “The obligations of the Covenant in general and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level - national, regional or local - are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”” (4).
  • 10. 10 2. Responsibilities of a state with regard to its obligations to respect human rights. When accessing international human rights treaties, states undertake obligations and commitments under international law to respect, to protect and to implement human rights. The obligation to respect means that a state must refrain from any interference in or restrictions of the enjoyment of human rights. The obligation to protect requires a state to protect individuals and groups against human rights abuses. The commitment to implement means that a state must take positive steps to promote the enjoyment of fundamental human rights. Thus, for example, the right to security has three dimensions: a) a state must not arbitrarily create dangerous conditions within its territory; b) a state must protect the security of a person, for example through the creation of the criminal justice system prohibiting violence, and c) a government must perform its promise to guarantee the right to security through the creation of social and economic conditions for the successful realization of the right to security. All three aspects of human right to security were violated in the case of Klatch and Klatch Manufacturing, which gives Madriz reason to turn to international institutions and sue Macchiato based on violations of civil, political, social and economic rights and freedoms of its citizen, and enables Kona to claim against Macchiato based on violations of economic rights of its citizens, who are running business on its territory. Again, as indicated in the General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, “The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required
  • 11. 11 by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities” (8).
  • 12. 12 References 1. Alzery v. Sweden. CCPR/C/88/D/1416/2005. 2. Agiza v. Sweden. Communication No. 233/2003. Committee against Torture. 3. Bilasi-Ashri v. Austria. 3314/02. European Court of Human Rights. 4. Charter of the United Nations. (24 October 1945). 1 UNTS XVI. 5. Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14. (4 November 1950). CETS No.: 005. Rome. Council of Europe. 6. Frequently Asked Questions on International Law Aspects of Countering Terrorism. United Nations Office on Drugs and Crime. (2009). United Nations, New York. 7. General Assembly resolution 39/46 of 10 December 1984 (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). 8. General Assembly resolution 217 (III) of 10 December 1948 (The Universal Declaration of Human Rights). 9. General Assembly resolution 1514 (XV) of 14 December 1960 (Declaration on the Granting of Independence to Colonial Countries and Peoples). 10. General Assembly resolution 2200A (XXI) of 16 December 1966 (International Covenant on Civil and Political Rights). 11. General Assembly resolution 2200A (XXI) of 16 December 1966 (International Covenant on Economic, Social and Cultural Rights). 12. General Assembly resolution 2625 (XXV) of 24 October 1970 (Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations).
  • 13. 13 13. General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant. (26 May 2004). UN Human Rights Committee. CCPR/C/21/Rev.1/Add.13. 14. Unusual Circumstances and Serbian Cruelty Make Kosovo a Special Case. (19 February 2008). Chron Editorial. Houston Chronicle. Retrieved from: http://www.chron.com. 15. Vienna Convention on the Law of Treaties. (23 May 1969). United Nations, Treaty Series, Vol. 1155, P. 331.