Hanski and Suski
A Summary of Chapters 1 – 20 by Marcel Stoessel
Preparation for the exam of International Human Rights
Law and Practice.
More scripts for students of international relations
at http://www.stoessel.ch/hei
Piechowiak
HR = Rights which belong
to any individual as a consequence of being human, independently of acts of law
HR = Complex of
relations which is constituted of real relations between individuals who
have the duty to act (or refrain from acting) towards each other,
and the relations of every human being to certain goods (things,
circumstances) securing his or her well-being. This complex of relations
exists independently of acts of law, and independently of whether any
individual apprehends it or not. The law of HR indicates these relations
and aims at formulating legal norms ensuring appropriate goods.
Fundamental instruments:
Universal Declaration of Human Rights (UDHR), 1948; International Covenants of
Human Rights, 1966. Semi-legal instruments: Vienna Declaration and Programme of
Action, 1993.
à Universality confirmed
Central place given to
the individual, his or her dignity prevails over the good of a group and over
that of the State à dignity = basis of justice
Liberal State: democratic
State governed by the rule of law, realizing an appropriate social policy.
M Not absolute will of the majority
Usually subjective
rights, which legally embrace protected claims, liberties, powers, privileges
Human Dignity and Human Rights
Zajadlo
Philosophical (why?),
sociological, political and normative (how?) planes of discussion.
How to translate the
axiology proposed by the philosophy of law into the language of law, and how to
move from these normative solutions to the world of values?
Universal character of
HR based upon natural law. Not accepted by those who see supra-positive norms
or those who reject Western individualistic, philosophy. Legal positivism. But
also more sophisticated concepts.
|
|
|
Source |
Natural Law |
Universality |
|
Religion |
|
Supra-positive law |
|
X |
|
Natural Law, Natural
Rights |
Stoics, Aristotle,
Grotius, Pufendorf, Locke |
Humans as social and
rational beings; law exists even without God |
X |
X |
|
Legal positivism |
Bergbohm |
State legislator |
|
|
|
Marxism |
|
Hardly recognizable |
- |
X |
|
Sociological school |
|
Rights provided for
goods in order to accomplish goals |
- |
- |
1st type of
dignity: “Inherent dignity of human being” (UDHR) vital element in
definition of HR both soft and hard law. UNC necessity “to reaffirm
faith in fundamental human rights, in the dignity and worth of the human
person”.
2nd type of
dignity: ‘Dignity’ independent of other international law instruments
ICCPR and ICESCR: “inherent dignity and ...
equal and inalienable rights of all members of the human family is the
foundation of freedom, justice, and peace in the world” (normative, binding).
References in Art. 10(1) ICCPR (detention) and in Art. 13(1) ICESCR (goal of
education)
Other instruments: Convention
on the Elimination of All Forms of Discrimination against Women, 1979; Declaration
on the Elimination of All Forms of Intolerance and Discrimination Based on
Religion or Belief, 1981; Convention on the Suppression and Punishment
of the Crime of Apartheid, 1973.
M Statute Council of Europe, European Convention
on Human Rights, European Social Charter: “inherent dignity” not used;
but appears in Preamble and Art. 5 of African Charter on Human and Peoples’
Rights, 1981; also American Declaration of the Rights and Duties of Man,
1948; American Convention on Human Rights, 1969.
In humanitarian law:
four Geneva Conventions, 1949 (common Art. 3(1)) & two Additional
Protocols, 1977 (Art. 75 and 4, respectively) ban any infringement of human
dignity
Principle “inherent
human dignity” both a principle (goal for the whole system) and a rule.
(Specific directive for an interpretation)
Internationalisation of HR and Their Juridization
Drzweicki
Eide:
1)
Idealization
1a) [Conceptualisation: Examination of the theoretical and feasibility
aspects of positivisation
2)
Positivisation
(first domestic, then also gradually international law)
2a) [Normativization: Examining the quality of a legal rule]
2)
& 2a)
Juridization
3)
Realisation
(transformation of whole social, economic and political order)
Resolution 41/120, GA,
1986, criteria and guidelines for standard-setting in HR:
a)
Consistent with
existing IHRL
b)
Be of fundamental
character and derive from inherent dignity
c)
Sufficiently
precise to give identifiable and practicable rights and obligations
d)
Realistic and
effective implementation machinery
e)
Attract broad international
support
Abi-Saab: From ‘value
into law’. Threshold will be passed when:
1)
Degree of
achieved consensus about social values
2)
Degree of
concreteness of the value
3)
Existence and
effectiveness of the mechanism of realization and supervision
Vertical (classical):
Public law relationship between human beings and public authorities
Horizontal (emerging):
Relationship between private parties.
3 classical elements
of HR:
1)
Active subject
(beneficiary)
2)
Passive subject
(duty-holder)
3)
Object (content)
Slightly different,
Abi-Saab:
1)
Definite subject
2)
Precise and
feasible object
3)
Should be opposed
to a determined entity obliged to respect it (opposabilité)
Problems:
Implementation component; ‘active’ and ‘passive’ distinction of subjects not
up-to-date; active subjects ¹ beneficiaries (e.g. child, bearer of rights,
but unable to claim it himself).
New:
1)
Right-holder
(individual, group of individuals or NGO)
2)
Duty-holder (entity
[normally states]; can be opposed to a Right-holder)
3)
Object (content
of rights and duties of bi-polar parties)
4)
Implementation
(set of measures aimed at realizing and supervising the realization of the
rights concerned)
à Only right-holder and object are commonly
found in formulations of HR
à Duty-bearer (together with right-holder and
object) formulated regularly in the context of economic, social, and cultural
rights
à Increasing number of treaties provide for
supervision, reporting
à Self-executing rule: must be sufficiently
clear, complete and precise for direct applicability by domestic authorities,
including judicial enforcement
Classical distinction
of State’s obligations:
New: Obligations of
States to:
UNC, 1945: Movement
towards lasting and stable internationalisation of HR. Framework for
progressive development and codification of HR. Principle of Respect for HR not
explicit, but implicit in many UNC Articles
Declaration on
Principles Guiding Relations between Participating States, CSCE, 1975:
Principle of ‘respect for human rights and fundamental freedoms’
Declaration also
refers to Respect for HR as one of the principles embodied in the UNC;
so does Vienna Convention on the Law of Treaties, 1969.
1st
stage (1945-48): Principle of international
respect for HR recognized. Implementation: Art. 68 UNC Commission on HR. First
instruments:
2nd
stage (1949-66): Codifying the
programme set out in the UDHR
3rd
stage (1967 – 1989): Four
trends:
1)
Entry into force
of Covenants and Optional Protocol (1976); implementation measures
2)
Further treaties
·
Convention on the
Suppression and Punishment of the Crime of Apartheid, 1973
·
Convention on the
Elimination of All Forms of Discrimination against Women, 1979
·
Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment,
1984
·
Convention on the
Rights of the Child, 1989
3)
Strengthen
implementation, its bodies and mechanisms
4)
Quest for new
areas and ways of protecting and promoting HR (background of peace,
development, environment)
à Reflected at debates and conclusions of
International Conference on Human Rights, Teheran, 1968
4th
stage (1989 – present): Wind
of change
·
World Conference
on Human Rights, Vienna, 1993
·
Continued
priority of implementation over further standard-setting
·
Preventive
diplomacy and early-warning
Three mechanisms based
on a binding treaty and with its own implementation mechanisms:
European system:
·
Statute of the
Council of Europe, 1949
Members must be representative democracies, respecting the rule of law and
ensuring fundamental HR and freedoms
·
Convention for
the Protection of Human Rights and Fundamental Freedoms, 1950
Mainly civil and political rights; European Commission; Court of Human Rights
·
11 Subsequent
Protocols to ECHR
·
European
Social Charter, 1961
Economic, Social and Cultural Rights
American system:
·
Organization of
American States (OAS)
·
American
Convention on Human Rights, 1969
Civil and political rights and freedoms; Inter-American Commission; Court of
Human Rights
African system:
·
Organization of
African Unity (OAU)
·
African
Charter on Human and Peoples’ Rights, 1981
Civil, political, socio-economic and third generation rights; African
Commission on Human and Peoples’ Rights
·
Protocol for the
establishment of a Court
Separate branch of
IPL: ILHR
General conventions;
specific conventions; conventions on group protection; conventions concerning
discrimination.
Some rules ius
cogens[1]
(peremptory rules: binding the whole international community, no derogation
possible)
Also soft law: resolutions,
declarations, basic principles, model treaties, etc. Can be declaratory or
first step towards the transformation of their provisions into ‘hard law’
1.
Internationalisation
of HR as a Reflection of the Anthropocentrism of modern IL: Art. 2(7) vs.
globalisation of crucial problems
2.
Coexistance and
Parallel Development of Universalism and Regionalism in HR: smallest common
denominator higher on regional level
3.
Evolution of
Substantive Standards of HR towards Special Regimes: personalization of rules
on human rights
4.
Evolution towards
Strengthening Implementation Standards of HR: universal: reporting; regional:
individual petitions and State complaints (except Africa). Resolutions of
international organizations. Strengthening existing bodies and creating new
organs.
5.
Recognition of
the Indivisibility and Interdependence of All HR: Priorities, hierarchy à wrong dispute. I&I: Resolution 32/130, GA, 1977
6.
Linking Human
Rights with Armed Conflicts: HR law extended application of non-derogatory
rules; humanitarian law à also non-international conflicts
7.
Promotion of New
HR: Privacy, etc. Third generation rights (peace, development, environment)
Three ‘generations:
1.
Civil and
Political Rights: easier to
enforce domestically; claims against own State; states have negative
obligations. Simple relations between rights and duty-holders.
2.
Economic,
Social and Cultural Rights:
objective or ‘programmatic’ rights; positive State obligations
3.
Collective
rights
à Simplistic characterization: also
semi-horizontal and horizontal application of HR
Covenants divided into
two for political reasons; e.g. ‘property’ lack in both conventions
Difficulties to
classify
ECHR, ESC, 1961. ECHR,
1979: “There is no water-tight division separating that sphere from the field
covered by the Convention”
Distinctions between
negative and positive, individual and collective rights do not follow the three
categories. But implementation mechanisms differ. Reporting systems vs.
complaints.
‘Rights of
Solidarity’, ‘collective rights’.
Not expressively
recognized in ICESCR.
Right to development
has come furthest: Declaration on the Right to Development, GA, 1986; Vienna
Declaration and Programme of Action, 1993: ‘reaffirms right to development’.
Right to
self-determination
Minority rights
Cultural rights of
minorities and indigenous peoples
HRC: Art. 27 ICCPR
interpretation: although formulated in a negative way, requires positive
measures not only of the State party itself, but also against the acts of other
persons
HRO for World Bank,
IMF, WTO?
Recent armed conflicts
à responsibility for non-governmental actors. Turku Declaration of
Minimum Humanitarian Standards, UN Commission on HR, 1990: must be respected
by, and applied to all persons, groups and authorities, irrespective of their
legal status and without any adverse discrimination
Part II: The United Nations: The Charter-Based and
Treaty-Based Procedures
Drzewicki
Broad and ambitious
objectives: HR significant but ambivalent reflection. Move towards
internationalisation of HR.
|
Preamble, paragraph
3 |
Reaffirm fundamental
HR; dignity of human person; equal rights for men and women in nations large
and small |
|
Art. 1(3) |
One of the substantive
and long term objectives of the UN: Promote and encourage respect for HR
and FF without distinction as to race, sex, language and religion |
|
Art. 55 Art. 56 |
International
economic and social cooperation: UN promotes universal respect and observance
of HR and FF for all; cooperation with UN |
|
Art. 76(c) |
Trusteeship system:
Encourage respect for HR and FF for all |
|
Art. 13(1)(b) |
Functions and
Organs: General Assembly studies and recommendations, assisting in the
realization of HR and FF for all |
|
Art. 62(2) |
Functions and
Organs: ECOSOC recommendations à promote respect for, and observance of, HR
and FF for all |
|
Art 62(3) |
Functions and
Organs: ECOSOC prepare conventions for submission to the GA |
|
Art. 68 |
Functions and
Organs: ECOSOC commissions for the promotion of HR à UN Commission on Human Rights [composed of government
representatives] |
à Covenant of LoN silent on HR; large number and
scope of provisions in UNC
+
Mandatory wording Art.
13, 55, 56, 68 à permanent and dynamic attitude of UN
Legally binding
HR in broader
background: prerequisites for ensuring international peace and security,
friendly relations among nations, welfare of peoples, other socio-economic
objectives. Interdependence lifted to the level of UN’s purposes
-
Lack of provisions on
colonialism (only trusteeship)
Definition of HR and
FF missing; no machinery to secure observance
Weak wording on
purpose: ‘promoting’, ‘encouraging’, ‘assisting in the realization of’ instead
of ‘protecting’, ‘maintaining’, ‘safeguarding’, ‘guaranteeing.
No power functions
(recommendations, studies) to GA and ECOSOC
Art. 2(7) Prohibition
of intervention by the UN in matters which are essentially within the domestic
jurisdiction of States (construed in terms of force).
No explicit
formulation principle of international respect for HR
à Framework conductive to the formation of UN
global HR policy
Agenda: International
Bill of Human Rights
1947 Commission on HR
1948 Draft declaration
à ECOSOC à General Assembly (& Third Committee) à adoption 10th of December
Resolution 217(III):
A. Text of declaration
B. Right of Petition
C. Fate of Minorities
D. Publicity
E. Preparation of a Draft Covenant on Human Rights and Draft Measures of
Implementation
In favour: 48;
against: 0; abstentions: 8 à USSR, Byelorussia, Ukraine, Czechoslovakia,
Poland, Yugoslavia, Saudi Arabia, South Africa
Inherent dignity &
Inalienable nature of HR = philosophical basis
Common understanding
important; common standard of achievement
Reference to pre-1945
Confirmation of
customary right of people to resist oppressive governance
|
Art. 1 |
Free and equal in dignity
and rights: Affirmation of the philosophical foundations of HR |
|
Art. 2 |
Principle 1: equality and non-discrimination |
|
Art. 28 |
Principle 2: Duties of states à Right of everyone to a social and international order in which the rights
and freedoms of the Declaration can be fully realized |
|
Art. 29 |
Principle 3: Duties of everyone to the community (Art.
29(1)) and permissible limitations in the exercise of HR and FF (Art.
29(2)) |
|
Art. 30 |
Principle 4: Prohibition of activities by any State,
group or person aimed at the destruction of the rights and freedoms of the
Declaration |
|
Art. 3 |
Life, liberty and
security of person |
|
Art. 4 |
Slavery and
servitude |
|
Art. 5 |
Torture and cruel, inhuman
or degrading treatment or punishment |
|
Art. 9 |
Arbitrary arrest,
detention or exile |
|
Art. 10 – 11 |
Fair trial, equality
before the law |
|
Art. 12 |
Privacy |
|
Art. 13 |
Freedom of movement
and residency |
|
Art. 14 |
Seek and enjoy in other
countries asylum from persecution |
|
Art. 15 |
Nationality |
|
Art. 16 |
Gender
discrimination as to marriage |
|
Art. 17 |
Property |
|
Art. 18 |
Freedom of thought,
conscience and religion |
|
Art. 19 |
Freedom of opinion
and expression |
|
Art. 20 |
Freedom of assembly
and association |
|
Art. 21 |
Representation in
government |
|
Art. 22 |
Social Security |
|
Art. 23 |
Right to work |
|
Art. 24 |
Rest and Leisure |
|
Art. 25 |
Adequate standard of
living |
|
Art. 26 |
Right to education |
|
Art. 27 |
Participation in
cultural life |
Art. 3 – 21 Civil and
Political Rights: Extensive
Art. 22 – 27 Economic,
Social and Cultural Rights: Rather modest
à First internationally adopted definition
(missing in UNC) of HR
à Great normative maturity
Legal and Political
Status and Significance of the Declaration
Has the UDHR become
legally binding?
YES: customary law;
absence of opposition to the principles
NO: customary law needs
a general, uniform and consistent practice followed by the emergence of an opinio
iuris; world-wide violations of HR before and after 1948
·
Influence of or
inclusion in domestic legal systems
·
Reference for
domestic courts
·
Resort to the
content by non-governmental actors
·
Quasi-authentic
interpretation of HR provisions in UNC
·
Basis for further
international law-making in HR field
·
Created
opportunities for developing international procedures and mechanisms for
implementation
The International Covenant on Civil and Political
Rights (ICCPR)
Nowak
|
Ratified by 144
States |
47 accepted
inter-State complaints |
95 accepted
individual complaints |
36 accepted not to
re-introduce the death penalty |
Impact of HRC on domestic
HR problems (legally non-binding)
Initially only one HR
treaty envisaged à Cold War à West succeeded in obtaining two separate
Covenants with different monitoring bodies and procedures à Commission on HR submitted draft in 1954
16 December 1966: 106
States adopt both Covenants unanimously; First Optional Protocol (possibility
of individual complaints) adopted with 66 to 2 votes (38 abstentions)
15 December 1989
Second Optional Protocol (abolition of the death penalty) adopted 59 to 26
votes (48 abstentions)
1976 Covenants and
first protocol entry into force
1979 inter-State
complaints procedure entry into force
1991 Second protocol
entry into force
1997 HRC: denunciation
of Covenants or withdrawal against international law (no provision), but
possible for First Optional Protocol
|
Preamble |
Inherent dignity; reference to UNC and
UDHR
|
|
Art. 1 |
Self-determination (colonial context, more
political than economic) [only collective right; case law: not subject to
monitoring by means of individual complaint]
|
|
Art. 2(1) |
Prohibition of any discrimination in the
enjoyment of the rights
Each State Party
undertakes to respect [negative] and to ensure [positive] to
all individuals within its territory and subject to its jurisdiction the
rights Progressive
realization of economic, social, and cultural rights |
|
Art. 2(2) |
Obligation to adopt necessary legislative
and other measures
|
|
Art. 2(3) |
Obligation to provide effective remedy to
victims of HRV
|
|
Art. 2, 3, 23 |
No gender discrimination as to rights of
Covenant, obligation of states to ensure equal right of men and women;
marriage.
|
|
Art. 4 |
Temporary derogation in public emergencies
|
|
Art. 6 |
Right to lifeDeath penalty
only for most serious crimes; not against juveniles; not carried out on
pregnant women |
|
Art. 7 |
Torture or cruel, inhuman or degrading treatment or punishment |
|
Art. 8 |
Slavery or servitude |
|
Art. 9 |
Liberty and security
of person Arbitrary arrest and
detention |
|
Art. 10 |
Human treatment of
detained people |
|
Art. 11 |
No imprisonment for
debt |
|
Art. 12 |
Freedom of movement |
|
Art. 13 |
Arbitrary expulsion |
|
Art. 14 |
Criminal procedure: Equality
before the courts; Presumption of innocence; Prompt trial |
|
Art. 15 |
No punishment
without crime (national or international) at the time of offence General
principles of law recognized by the community of nations |
|
Art. 16 |
Recognition of legal personality |
|
Art. 17 |
Privacy |
|
Art. 18 |
Freedom of
thought, conscience, religion and belief |
|
Art. 19 |
Freedom of opinion,
expression and information |
|
Art. 20 |
Prohibition of propaganda
for war and advocacy of national, racial or religious hatred |
|
Art. 21 |
Freedom of assembly |
|
Art. 22 |
Freedom of
association; including freedom to join trade unions |
|
Art. 23 – 24 |
Marriage, family,
child. |
|
Art. 25 |
Representation and participation
[for citizens] |
|
Art. 26 |
Equality before the
law |
|
Art. 27 |
Rights of ethnic,
religious or linguistic minorities |
|
Art. 28 – 45 |
Human Rights
Committee |
à Horizontal (e.g. slavery) and vertical
‘articles’ (e.g. right to protection before the law)
à Formulation in rather general terms
|
Art. 1, 2 |
Only individuals may address communications to HRC
|
|
Art. 2, 3, 5 |
Admissibility requirements
|
|
Art. 4 |
Admitted communications must be brought
to the attention of the government concerned
|
|
Art. 5(1) |
Confidentiality.
|
|
Art. 5(2) |
No simultaneous submission to different
complaints procedures
|
|
Art. 5(4) |
‘Final views’ of HRC
|
|
Art. 6 |
Obligation for HRC to submit annual
reports to ECOSOC
|
Amendment Art. 6
ICCPR.
Only few rights = absolute,
and even then some room for interpretation
Most of the Covenant
subject to reservations, derogations, restrictions and limitations in
conformity with the relevant provisions à fair balance between the aims of universalism
and cultural relativism.
Formal way of allowing
restrictions and limitations: ‘arbitrary’, limitation clauses. Decisive
criterion: proportionality
Reservation: Half of State parties have submitted 150+
reservations. Art. 19(c) VC: only permissible to the extent that = compatible
with the object and purpose of the Covenant.
1994 HRC highly
controversial general comment: Reservations contrary to CIL and to some
other provisions not permissible. M Provisions of VC inappropriate to address the
problem of reservations in HRT (principle of inter-State reciprocity has no
place). HRC considers itself as the only body entrusted by the Covenant to
judge reservations. If reservation deemed incompatible, HRC will not apply the
reservation.
Public emergency: Art. 4 allows measures derogating from
obligations. Conditions and restrictions; publicly declared emergency,
information to SG of UN; proportionality; consistent with other obligations
under international law; not based on discrimination. Art. 4(2): No derogations
from right to life, prohibition of torture, slavery, servitude, detention for
debt and retroactive criminal laws, rights of recognition of legal personality
and freedom of thought, conscience, religion and belief.
When derogation was
abused, the HRC considered the derogation measures as a violation of the
Covenant
Human Rights
Committee (HRC)
¹ UN organ
= Treaty monitoring
body, established by Art. 28 ICCPR.
Task: Monitoring the
compliance of State Parties with their obligations under the treaty.
Examination of State reports and individual complaints (no inter-State
complaints have been submitted so far)
Similar to Racial
Discrimination Committee, Committee on the Rights of the Child
18 independent experts
elected for four years, represent all geopolitical regions and major legal
systems of the world
HRC started working in
1977. Own rules of procedure, normally decision by consensus.
Art. 40. Submission
and examination of State reports only mandatory monitoring procedure.
Including about problems of implementation (Art. 40(2)).
Useful purposes:
·
Forces
governments to reflect on implementation in domestic legal systems
·
Examination in
public sessions
·
Principle of
constructive dialogue
·
Country-specific
comments
·
General comments
Art. 40(4): views of HRC on substantive and procedural provisions. Consensus à important and authoritative source of interpretation.
Most controversial, 1984: against nuclear weapons.
Art. 41/42
Optional à not very effective
HRC has to seek a
friendly solution à ad hoc Conciliation commission only with the
consent of the states
à Pure mediation or conciliation procedure
à Designed to respond to gross and systematic
HRV
First optional
protocol: Jurisdiction of HRC in cases of alleged individual HRV
Admission stage: First
exhaust all available domestic remedies; no simultaneous submission to
different complaints procedures; case law: allegations must be sufficiently
substantiated
Examination stage:
Confidential/written; governments may respond to allegations; HRC gives ‘final
views’; HRC may ask governments for remedy, e.g. release from prison.
1990 HRC appointed a Special
Rapporteur for the Follow-Up of Views
à More than 2/3 of UN members = parties to the
ICCPR
à Excellent framework for a truly universal
acceptance of first generation HR
à Lack of legally binding effects; HRC can’t
force governments to cooperate in a proper manner and to comply with its
recommendations resulting from the examination of State reports or with its
final views relating to individual complaints
à Most effective HR complaints system at the
universal level thanks to its quasi-judicial practise
à No clear separation between judicial and
political functions like under ECHR
The International Covenant on Economic, Social and
Cultural Rights (ICESCR)
Craven
141 State Parties
(January 1999)
“The enjoyment of
civil and political freedoms and economic, social and cultural rights are
interconnected and interdependent”, GA, 1952.
Differences ICCPR –
ICESCR:
|
|
ICCPR |
ICESCR |
|
Obligation clauses
(Art 2) |
Undertakes to respect
and to ensure rights… |
Undertakes to take
steps, to the maximum of its available resources, with a view to
achieving progressively….. |
|
Implementation
systems |
Immediate |
Progressive |
|
Supervision |
HRC (independent
experts) |
ECOSOC (political
organ of the UN) |
|
Reporting |
Yes |
Yes |
|
Complaints |
State and Individual |
N/a |
|
Common Articles |
Preambles, Art. 1 (self-determination), 3
(non-discrimination between men and women), 5 (general savings
clause), 22/8 (join and form trade unions), 23/10 (protection
of the family) |
|
Preamble |
Framework for interpretationInherent DignityRecalls UDHR; places ICESCR in the framework of UNCInterdependence and
indivisibility |
Art. 1 |
Self-determination (colonial context; economic more than political) |
|
Art. 2(1) |
Take steps, individually and through
international assistance and co-operation, ... to the maximum of its
available resources, with a view to achieving progressively the full
realization of the rights
But: Steps
must be immediate and to the maximum of available resources;
obligation = seeking assistance and international cooperation. [ECOSOC: a
number of ‘resource-free’ rights are capable of immediate implementation.] |
|
Art. 2(2) |
Prohibition of discrimination of any kind
to race, colour, sex, language, religion, political or other opinion,
national social origin, property, birth or other status.
|
|
Art. 2(3) |
Permission for developing countries [undefined]
to determine extent to which they would guarantee the economic rights
[undefined] to non-nationals (colonial context)
|
Art. 3 |
Equal rights of men and women |
|
Art. 4 |
Limitations: compatible with nature of
rights; solely for promoting the general welfare in a democratic society
|
Art. 5 |
General savings clause |
|
Art. 6 |
Right to work
|
|
Art. 7 |
Fair conditions of employment
|
|
Art. 8 |
Join and form trade unions
Art. 8(1)(d) Right
to strike |
|
Art. 9 |
Social security
|
Art. 10 |
Protection of the family |
|
Art. 11 |
Adequate standard of living, including
the right to food, clothing, and housing
|
|
Art. 12 |
Health
|
|
Art. 13 |
Education
|
|
Art. 15 |
Culture
|
|
Art. 16 & 17 |
Obligation to submit reports (measures, progress)
to SG of UN à ECOSOC à maybe Commission on HR (study, recommendation,
information) à maybe invite UN specialized agencies
ECOSOC general
reports and recommendations to GA |
à Only universal HRI, which deals extensively with
the whole range of economic, social and cultural rights
à A number of rights also in other instruments:
International Convention on the Rights of the Child, Convention on the
Elimination of All Forms of Racial Discrimination, Convention on the Elimination
of All Forms of Discrimination against Women; regional instruments
à Very general wording
à No identification of groups that may need
special protection, e.g. women, children, aliens, migrant workers, and elderly;
but: non-discrimination guaranteed
à Possibilities of inconsistencies: Form and
join trade unions = can be derogated under ICCPR, not under ICESCR
à No remedies foreseen
Only reporting,
no individual complaints
Supervision by ECOSOC,
a UN political organ
à Not clearly identified which organ has central
responsibility for supervision
à No body can interpret ICESCR in a way that is
binding for State Parties
ECOSOC not able to
fulfil its tasks under Covenant à Sessional Working Group, hampered by political
differences, only superficial evaluation of State reports.
Established by ECOSOC
in 1985 à UN organ
Composition: 18 independent experts, equitable geographic
distribution
Process: Report every five years à requests for further information à plenary session with State representative
present à further questions à concluding observations: principal subjects of
concern, suggestions, and recommendations.
Evaluation:
States often don’t cooperate,
can’t be forced to; information only from State reports
Committee officially
invited all concerned bodies and individuals to submit relevant and appropriate
documentation à UN specialized agencies, NGOs
à Increasingly quasi-judicial function
à Increasingly attempt to prevent future
violations
à Has requested to accept investigative missions
No individual
complaints:
1996 Draft Optional
Protocol adopted to allow for the receipt of individual or group complaints;
written communications; receivability, admissibility; domestic remedies;
reaction of State; adoption of a ‘set of views’, interim measures of protection
à Ambitious but likely to be more restrictive if
adopted
à Marginalized and ignored as a HRT; prevalent
conception that economic, social and cultural rights = programmatic,
progressive realization
à Vastly more limited supervision system
à Committee on Economic, Social and Cultural
Rights, from 1985: Much better reporting system. View that certain rights are
non-resource dependent or have non-resource dependent dimension and may be
capable of judicial scrutiny
Special Human Rights Treaties
Flinterman and
Henderson
à 153 ratifications (January 1999); 28 States
accept individual complaints procedure
Historical
background:
World emerging from
the Holocaust; struggle of Third World countries against colonialism; apartheid
in South Africa. UN becomes an important forum.
|
Art. 1 |
Definition of racial
discrimination Distinction citizens
– non-citizens allowed Temporary
affirmative action allowed |
|
Art. 2 |
Duties of State
Parties to condemn racial discrimination and to implement policies |
|
Art. 3 |
Apartheid |
|
Art. 4 |
Duties to declare
punishable by law certain offences concerning racism and racial discrimination
& prohibit racist organizations |
|
Art. 5 |
Take steps to
prohibit and eliminate racial discrimination & guarantee certain rights
(list provided) to everyone; equality before the law |
|
Art. 6 |
Effective
protection; remedies |
|
Art. 7 |
Duty to adopt
immediate and effective policy measures (teaching, education, culture,
information) |
|
Art. 8 – 10 |
Committee on the
Elimination of Racial Discrimination |
|
Art. 11, 12 & 13 |
State complaints |
|
Art. 14 |
Optional individual complaints procedure |
Three supervisory
mechanisms:
à 1st time committee of experts
à 1st time individual complaints
Historical
background: Women especially
affected by poverty, lack of health care, education, food. Trend towards
non-discrimination since WWII in various instruments, but rarely regarding
socio-economic rights
|
Preamble |
Change in traditional
role of men as well as the role of women in society required |
|
Art. 1 |
Definition of
discrimination: 1) Effect and purpose; 2) not limited to State;
3) and other fields |
|
Art. 2 |
Condemnation; obligation
to pursue policy of eliminating discrimination against women without delay |
|
Art. 3 |
Full development and
advancement of women; equally benefit from HR |
|
Art. 4 |
Affirmative action
and maternity protection ¹ discrimination |
|
Art. 6 |
Traffic in women,
exploitation of prostitution |
|
Art. 7 |
Eliminate
discrimination in the political and public life |
|
Art. 8 |
Representation |
|
Art. 10 |
Education |
|
Art. 11 |
Employment, e.g.
equal pay for equal work |
|
Art. 12 |
Health care |
|
Art- 14 |
Rural women |
|
Art. 15 |
Equality before the
law |
|
Art. 16 |
Marriage and family
relations |
|
Art. 17 – 22 |
Committee on the
Elimination of Discrimination against Women [23 independent women’s rights
experts] |
|
Art. 24 |
All necessary
measures at the national level aimed at achieving the full realization of the
rights |
|
Art. 28(2) |
Reservation
incompatible with object and purpose not permitted |
Committee on the
elimination of Discrimination against Women: 23 women’s rights experts
Reporting procedure: States must detail measures, difficulties.
Annual review of reports; reports to GA through ECOSOC
Reservations: HRI with the most reservations, even no Art.
28 prohibits reservations that are not compatible with the object and the
purpose of the Convention. E.g. reservations of Bangladesh, Egypt, Libya
(Sharia Law > Convention). Sweden & others objected to the reservation.
Problem of objectivity: States themselves judge if an objection is
contrary to object and purpose through their objections or acquiescence.
Vienna Declaration and
Programme of Action, 1993: Recommendation that Women Committee continues to
examine reservations; urges States to withdraw incompatible reservations
Draft Optional
Protocol: 1995 approved by
Women Committee, 1999 revised draft approved by Commission on the Status of
Women, 1999 to go before GA. Individual and group complaints. Admission stage à (interim measures) à report à statement of State Party à (conduct inquiries where allegations are grave and systematic) à findings
à Interrelation civil-political and
economic-social rights
à Also non-governmental sectors and activities
included
à Underdeveloped supervisory mechanisms
à Insufficient resources
à Reservations about many sustentative
provisions
Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
à 113 State Parties (January 1999), 42/40
accepted complaints procedures
Historical
background: Universal and
regional instruments recognize prohibition of torture or degrading treatment or
punishment (ius cogens norm), but couldn’t stop HRV. AI report in early
70’s à before GA.
|
Art. 1 |
Definition of
torture, all forms of severe physical or mental pain M: 1) Must be intentionally inflicted
for specific purposes, like obtaining information; 2) No horizontal effect;
3) Not included: Pain or suffering arising from lawful sanctions |
|
Art. 2 |
Obligation to take
effective measures to prevent acts of torture No derogation
possible whatsoever; order from superior irrelevant |
|
Art. 3 |
Obligation not to
expel, return or extradite a person to another State where there are substantial
grounds for believing that he would be subjected to torture |
|
Art. 4 |
Obligation to punish
acts of torture or attempts or complicity |
|
Art. 5 – 7 |
Details of universal
jurisdiction: obligation to persecute or extradite |
|
Art. 8 |
Extradition to other
State Parties |
|
Art. 9 |
Assistance to other
State Parties in connection with criminal proceedings |
|
Art. 14 |
Obligation to ensure
compensation of victims in domestic legal systems |
|
Art. 15 |
Obligation not to
invoke a statement established as a result of torture in any proceedings |
|
Art. 16 |
Prevent also acts of
cruel, inhuman or degrading treatment or punishment not necessarily on
purpose; lawful sanctions not excluded Extension of Art. 10,
11, 12, 13 to other forms of cruel, inhuman or degrading treatment or
punishment. |
|
Art. 17 – 24 |
Committee against
Torture |
|
Art. 20 |
Optional: Inquiry procedure by Torture Committee
(information from individuals or NGOs) |
|
Art. 21 |
Optional State complaints procedure |
|
Art. 22 |
Optional individual complaints procedure |
|
Art. 28 |
Opting out clause
for Art. 20. |
Reporting obligation
for States Parties (measures to implement obligations) à transmitted to all States Parties à Torture Committee: may make comments to a
State Party
Other supervision
mechanisms are optional: Inquiry, State complaints, individual complaints
à Number of ratifications not satisfactory
à Optional supervision procedures widely
rejected
à Reporting procedure serious shortcomings
(seldom precise and objective)
Extra-Conventional Standard-Setting and Implementation
in the Field of Human Rights
Flinterman
GA = ‘legislative HR
organ’ of the UN – adopted an impressive body of treaties and declarations on
HR, including UDHR, ICCPR, ICESCR, Racial Discrimination Convention, CEDAW, Torture Convention.
Names can vary:
standard minimum rules, basic principles, body of principles, code of conduct,
guidelines.
Non-binding
instruments (resolutions, declarations, bodies of principles, codes of conduct)
may be followed by binding treaties or conventions (Racial Discrimination,
Torture)
Legal value as
interpretation and elaboration of the general HR provisions in the HRC depend
on:
·
Number of states
that have voted in favour
·
Geographical
distribution
E.g. Declaration on
the Right of Peoples to Peace, GA, 1984 / Declaration on the Right to
Development, GA, 1986 à both opposed by most Western States
Covers a wide area.
Also relevant:
Proclamation of
Teheran, 1968
Vienna Declaration and
Programme of Action, 1993
à Great importance in the further development of
international HRN.
The Public 1235
Procedure:
ECOSOC Resolution
1235, 1967: Commission and Sub-commission authorized to debate question of the
violation of HR and FF
Information from:
States; members of the Sub-Commission, NGOs with consultative status at the UN
Course of action: a)
special rapporteur; b) thematic rapporteur or working group (torture, judicial
executions, arbitrary detentions, freedom of expression, xenophobia and racism,
violence against women. Annual reports to commission.
The Confidential
1503 Procedure:
ECOSOC Resolution
1503, 1970: confidential process designed to deal with a consistent pattern of
gross and reliably attested violations of HR and FF. Complaints from:
individuals, groups and organizations. Working group sub-commission à sub-commission à working group commission à commission (private annual
sessions) à ECOSOC
Course of action: a)
keep the matter under review; b) further study; c) special rapporteur; d)
transfer to public 1235 procedure. May also make recommendations to ECOSOC
à Gradually overshadowed by 1235 Procedure
à Non-binding instruments adopted at GA by a
consensus à important elements in the creation of CIL. Internationalisation of a
subject matter à restriction of domestic jurisdiction of
states.
à Since late 60’s emphasis on further refinement
of supervisory mechanisms
à Reserved domain in HR area decreasing
Part III Other United Nations Action in the Field of
Human Rights
Gallagher
In many parts of the
UN à HR too troublesome and too politically costly
Overview of recent
developments
Vienna Declaration,
1993 à UN agencies, bodies and institutions must engage themselves in the formulation,
promotion and implementation of HR
Programme for Reform,
1997 à Mainstream HR throughout the UN system, enhance HR programme and fully
integrate it into the broad range of activities. 1) Adoption of a right-based approach;
2) Programmes or projects addressing specific HR issues; 3) Reorienting
existing programmes; 4) Broader policy development and coordination should take
HR into account
Early acknowledgements
of the link between development cooperation and HR, true attempts for
integration only in the 90’s.
Rights-based
approach = Situations must be
analysed and responded to not just in terms of needs or development objectives,
but also in terms of a State’s legal obligations to protect and realize the HR
of individuals [e.g. right to education] à justice = entitlement ¹ charity
UNDP: Shift from economic development
(failing to confront States with their own responsibilities and legal
obligations) to sustainable human development (including the recognition
of the fundamental link between development cooperation and HR)
UNICEF: One of the first agencies to identify HRT
(CEDAW, Children’s Convention) as the policy framework for all its activities
& one of the first to develop a rights-based approach
United Nations
Population Fund (UNFPA): Sex
education; maternal mortality; adolescent reproductive health practices;
HIV/AIDS. Increasingly reference to CEDAW. Same applies to United Nations
Development Fund for Women (UNIFEM).
Common country
assessment à United Nations Development Assistance
Framework (UNDAF): translate global commitments into country-level action
plans; provisional guidelines reference to ‘international conferences, GA
resolutions, global summits and Conventions’ [Where are HRT?]
HR have not played a
significant role in UN peace and security work. In the past few years, HR have
become a critical element in the dispute settlement process partly due to the
nature of the conflicts. UN beginning to acknowledge that threats to security
include poverty, discrimination and inequality in access to resources.
UN increasingly trying
to prevent conflicts. Not just external threats, also human security:
poverty, disasters, ethnic tension and large-scale HRV. So far, political will
and resources to expand preventive capacities not abound.
Link conflict
prevention – development cooperation: Institution building, good governance, poverty reduction = preventive
peace-building.
Conflict economic
sanctions – HR: Recognized by
SG and ECOSOC.
Link HR –
Humanitarian Action:
Assistance and protection by UN can’t be undertaken in a legal or moral vacuum à IHR and humanitarian law principles
Organization and
Coordination of Humanitarian Action: Office for the Coordination of Humanitarian Affairs (OCHA), 1997 with
the functions of 1) Policy development [based on UNC, HR and IHL]; 2)
Humanitarian advocacy; 3) Coordination of humanitarian action.
Executive Committee
on Humanitarian Affairs:
brings together all bodies in the UN concerned with humanitarian policy;
includes High Commissioner for HR.
UN High
Commissioner for Refugees (UNHCR): Long recognized HR as key part of mission. Strategy 1) Prevention
[promotion and adoption of international standards for the treatment of
refugees]; 2) Emergency response; 3) Solutions.
UNICEF: Health, nutrition and education to children
and women; fight against child soldiers. Impartial delivery as a basic right
(rights-based approach).
Role of Protection
in Humanitarian Action:
Identifying HRV or threats à efforts to ensure that obligations to protect
and respect HR are fulfilled
FAO, ILO, UNESCO, WHO,
WTO, (IMF, WB), …
WTO has refused to
admit a HR dimension of international trade
HR à change the UN’s thinking and work
Programme of Reform à still no concrete results
Rights-based approach
must be developed
The Office of the United Nations High Commissioner for
Human Rights
Schmidt
Proposals already 40 years
ago. Part II, §18 of Vienna Declaration, 1993 à recommendation to GA to begin consideration
for the question of creating a HCHR à GA special working group à GA Resolution 48/141, December 1993
Mandate:
à Some right of initiative
à Greatly depends on personality, leadership,
vision and courage
Since 1st
HC, market shift from monitoring to preventive mechanisms
HR field presence: Invented in 90’s; can be effective
early-warning system; exact intersection with peace keeping & electoral
assistance unclear. Memorandum of understanding with host country difficult to
negotiate. Financing not yet on y regular basis.
Technical
cooperation: UNDP and others
need to coordinate with OHC
Human rights
education: Police, military,
prison officials, private actors, UN staff. Develop national plans of action.
(Need be encouraged and assisted)
Vienna Declaration
stresses implementation, both Commission and treaty-based
HC for
rationalization and increased effectiveness & maximal use of UN system to promote
universal ratification of principal HR conventions.
Commission: special procedures, rapporteurs, experts and
working groups broadened and strengthened; new thematic mandates (women,
children in armed conflicts, right to education, etc.)
Treaty-based bodies: progress in streamlining, simplifying
and extending procedures
UNHCHR delicate
position: must support the strengthening of existing mechanisms and can’t
oppose the creation of new ones by Commission; only limited support to treaty
bodies.
Financing of treaty-body and special procedures
activities through regular UN budget does not suffice if financial obligations
by Member states are not met. Solution: plans of action with voluntary
contributions. Example: HC’s plan of action for the Committee on the Rights of
the Child for its discussions with State Parties to the Convention on the
Rights of the Child.
Increasing interaction
OHCHR & UNDP
Strengthening of
implementation mechanisms for particularly vulnerable groups: HC urged field offices to include components
specifically to the rights of women and children.
à Need to review all mechanisms to
First World Conference
on Human Rights, Teheran, 1968
Declaration on the
Right to Development, 1986
Second World
Conference on Human Rights, Vienna, 1993: Universal consensus that right to
development is part of fundamental HR and universal
Right to Development
high on the OHCHR’s list of priorities; content and scope of Right to
Development will have to be spelled out further; should be more horizontal
cooperation
HR & sustainable
human development = interdependent & mutually reinforcing
Part of mandate.
1993-97: UNICEF,
UNESCO, UNDP, UNHCR important developments
Programme for
Reform, 1997, proposes OHCHR’s
concrete action:
à If implemented à effective integration of HR into all UN
activities
Proposed memoranda of
understanding, letters of intent, with all UN programmes and agencies
Broad mandate = chance
to take radical initiatives and strengthen UN’s role
Third Committee of the
GA supports the development of the UN’s HR programme; the 5th
Committee refuses more funds
Challenge 1: secure
adequate financial and manpower resources for conflict prevention; while
consolidating and strengthening the mechanisms of the Commission on HR and the
treaty bodies
Challenge 2:
Development of cooperation with programme partners & implementation of Programme
for Reform
The Standard-Setting and Supervisory System of the International
Labour Organization
Samson and Schindler
Founded in 1919 to
advance social justice [interpreted to incorporate HR] and better living
conditions throughout the world. In 1946 it became the first specialized agency
associated with the United Nations. It is a tripartite organization: workers'
and employers' representatives take part in its work with equal status to that
of governments. The number of ILO Member States is 174 as of February 2000. No
direct obligations in Constitution; framework for elaborating conventions and
recommendations
Relations between
employer and workers; labour standards and international trade
1919 – 1998: 181
Conventions and 189 recommendations on almost all labour-related subjects
Widely ratified:
Recommendation no
binding force, but if they supplement a Convention, their provisions can be
drawn upon by States and supervisory bodies as indicative of the type of
measures needed
International Labour
Conference: 2 government, 1 worker, 1 employer representative; governing body
same principle
1919 – 1998: four
Declarations
Declaration =
expression of the official policy of the organization and of the consensus of the
social partners. More than a recommendation, less than a binding instrument.
Standard-setting =
on-going process; International Labour Conferences; comprehensive body of
standards covering most areas of social concern
Fixed procedure for
adopting standards: Governing
Body, suggestions by the Office, sets agenda for ILC, well in advance;
Conference decides with 2:1:1 ratio à recommendation or Convention
Disagreements: Type of instrument to be used; level at which
to set international standards; degree of flexibility to be allowed in their
implementation
Effect: Communicated to all Member states; must be
brought before legislator within 18 months [public]
Obligations in Case
of Ratification: Make
effective in law and practise (Art. 19); submit Annual Reports (Art. 22)
Periodic reports on
the application of ratified conventions: Detailed and general reports
Committee of
Experts on the Application of Conventions and Recommendations = committee of 20 independent experts charged,
amongst other things, with the examination of reports by governments on the
measures taken to implement ratified ILO Conventions. Can issue observations or
direct requests.
Conference
Committee on the Application of Standards = tripartite committee of the International Labour Conference
constituted each year and charged with examination of the Report of the
Committee of Experts on the Application of Conventions and Recommendations and,
amongst other things, with the discussion of cases involving individual
country's application of ratified ILO Conventions.
Tripartite Conference
committee discusses it
Legal force: Interpretation = ICJ (Art. 37); persuasive
moral but no legal value
Investigation into
allegations that a State has failed to secure the effective observance of a
Convention
Representation = allegation made under article 24 of the ILO Constitution to the ILO
that a Member State is not implementing the terms of a Convention which it has
ratified. A representation must be made by an industrial organization of
employers or workers. Examined by Governing Body.
Complaints = what an allegation made under article 26 of
the ILO Constitution is called. Such an allegation, made by another State or
any delegate to the ILO Conference, asserts that an ILO Member State is not
applying fully within its territory the terms of a convention that it has
ratified. Governing Body can set up Inquiry Commission. Three months
afterwards, government can either accept the recommendations or refer it to the
ICJ. If government fails to comply, Governing Body can recommend to the
Conference measures (Art. 33).
Special Freedom of
Association Complaints Procedure:
against any State, even when it has not ratified the relevant conventions.
Fact-finding and Conciliation Commission on Freedom of Association = tripartite
committee of the ILO's Governing Body responsible for the examination of complaints
alleging violation of the principles of freedom of association. Only with
consent of State.
Consequences: In many cases, political and judicial
consequences in individual countries.
à Persistence of serious difficulties in securing
the full observance of ILO conventions
à Individual and collective improvements in many
cases
à Ratification of ILO Conventions due to will to
make them effective?
à Not legally binding determinations
à ILO standards » international common law available as a source
of guidance
UNESCO and Human Rights
Coomans
Specialized UN agency.
Contribute to peace and security by promoting collaboration among nations
through education, science, and culture in order to further universal respect
for justice, the rule of law, HR and FF without discrimination.
Broad and general
mandate outlined in Art I(1) of the Constitution.
Legal basis found in
Constitution, conventions and recommendations, resolutions of the General
Conference and decisions of the Executive board.
Promotion: Advancing the mutual knowledge and
understanding of peoples; impetus to popular education and the spread of
culture, and maintaining, increasing and diffusing knowledge and information.
Programmes, studies, conferences, publications.
Protection: Adoption of international standards and the
establishment of supervisory mechanisms and procedures relating to HR, which
fall within UNESCO’s field of competence. Art IV(4) Constitution: Conventions
and recommendations. Art I(3): Prohibited from intervening in matters, which
are essentially within the domestic jurisdiction of a State. But competence in
HR now not exclusively domestic or international.
Standard-Setting
Activities of UNESCO
General Conference of
UNESCO à recommendations, conventions
Right to Education:
Right to share in
scientific advancement, culture and Communication:
Right to participate
freely in cultural life:
Right to
information, including freedom of opinion and expression:
Racial
Discrimination:
Safeguarding HR for
future generations:
-
Supervisory
mechanisms and procedures within UNESCO
Periodic reporting
by Members:
Communication
procedure to be used by victims of alleged HRV: Art. VIII periodic reports on action taken.
General Conference examines reports. Committee on Conventions and
Recommendations (CCR). Composed by government’s representatives. No dialogue.
Complaints
procedure: Individual and
collective complaints made possible in 1978. Cases = individual,
specific [private meetings]; questions = massive, systematic or flagrant
HRV or accumulation of individual cases according to a consistent pattern
[public meetings]. Main concern: dialogue with gvmt. Executive Board will
discuss Committee’s confidential report. Fields: Education, science, culture,
information, freedom of thought, conscience and religion.
Looking for an
amicable solution throughout the complaints procedure.
à All Member states subject to this mechanism,
whether or not they have ratified the relevant HRT or not
à Wide access to individuals, groups and NGOs
à Not really public pressure
à Not a priority within UNESCO; little known
procedure; secrecy, isolation and obscurity
The Position of the World Bank and The International
Monetary Fund in the Fields of Human Rights
Skogly
IMF:
à Two most prominent sources of financial
assistance or catalyst of financial assistance to LDC’s
HR an issue for two
reasons
Projects &
adjustment lending à increased hardship for vulnerable groups (=
HRV). Not recognize the importance of HR promotion as such (no rights-based
approach). Never a HR evaluation of any programme.
Defence of Bank:
Promote economic, social and cultural rights » economic, social and cultural development
Operational
Directive on Indigenous Peoples:
ensure that the development process fosters full respect for … dignity, HR, and
cultural uniqueness. Sometimes special project components necessary.
Operational
Directives on Poverty Reduction
Inspection Panel of the Executive Directors: Can receive
a request for inspection from an affected party in the territory of the
borrower à rights or interests have been or are likely to be affected by an action
or an omission of the Bank in regards to its operational policies and
procedures? Not a judicial body. But: also individual/NGO, also at an early
stage.
Blurred distinction
between broadly defined environmental protection and HR.
Example: Arun III Hydroelectric Project, Nepal, 1994,
complaint by local NGO: no consultation with those affected by project, no adequate
compensation for involuntarily resettled people, no benefits for indigenous
communities [all written down in some Directive]. Investigation Panel
recommends to Executive Directors an investigation of the environmental,
indigenous, and involuntary resettlement issues. Bank decides to withdraw IDA’s
offer to fund the project.
Board of Executive
Directors may still go ahead and ignore recommendation à not independent mechanism
HR = completely
outside its activities
Critics à increase attention to impact on vulnerable groups; no real evidence of
change in IMF’s attitudes
No rationale for
possible human rights concerns in the Articles of Agreements. But:
à Minimum claim: they have to respect HR in
their operations
Conceptual ways:
Procedural changes:
Gallagher
Until 80’s: Second or
third-hand information received by Headquarters for reports
80’s: First ‘special’,
‘extra-conventional’ investigatory mechanisms to monitor and report HRV
1993: Special
Rapporteur for the Former Yugoslavia
1994: First HR field
operation under OHCHR, Rwanda
90’s: Central part of
the wider HRS à increase governmental accountability by documenting
and exposing violations; new way of constructing peace agreements;
peace-keeping operations sometimes intertwined with HR operations
Country-specific or
thematic procedures; most created by Commission on HR. Authorized to receive
information from a variety of sources, including NGOs & make
recommendations regarding prevention or amelioration
First wave of HR field
presences in El Salvador, Haiti, Cambodia and Guatemala.
UN Observer Mission in
El Salvador (ONUSAL), 1991, HR division
Oversee peace
agreement that includes the guarantee of HR
Verification and
investigation; Receive complaints from anyone
Institution-building
à Marked decrease in severity and level of HRV
UN Transitional
Authority in Cambodia (UNTAC), 1992; monitors, civilian police part of UNTAC
Prevent recurrence of
gross violations; contribute to the establishment of a neutral political
environment
Education programme,
general monitoring
Post-UNTAC: Commission
establishes a Special Representative of the SG on HR in Cambodia
Large OHCHR office
established à important protection role, both independently
and also as supporter of the Special Representative of the SG on HR in Cambodia
1993 UN-OAS
International Civilian Mission, gradual transition of power back to Aristide
Main task: protect and
promote HR
Complaints &
investigation without cooperation of police or army
Obstruction by de
facto government
à No sustainable achievements; but HR situation
would have been worse
MINUGUA, 1994
Oversee peace process;
verify HR Agreement
Complaints
HR = integral to the
effective discharge of basic peace-keeping and peace-building responsibilities;
sometimes explicit, sometimes footnote
United Nations
Operation in Mozambique (ONUMOZ), 1992; UNOSOM II: small role
Angola, SC allows
greatly expended HR component with 55 officers
1993, Commission asks
for field presence to support Special Rapporteur
Since then offices in
Sarajevo, Zagreb, Belgrade & Skopje.
1994, Commission
establishes Special Rapporteur to investigate HR situation in Rwanda;
supplemented by 147 HR monitors; investigation; monitoring; return of refugees,
technical cooperation; 1995 Special Investigation Unit à hands over information to ICTR
à Political difficulties
à Vacillation of the international community
à Poor management by OHCHR
1994 small field
office in Burundi; Mission of Observation & limited technical
assistance
1996 OHCHR office in Colombia
following pressure; monitoring, institution-building, training, …
1994 small field
office in Democratic Republic of the Congo; monitoring; training
à Each mission double mandate: monitoring and
technical assistance
1996 Gaza
institution-building, rule of law
1997 El
Salvador strengthening democracy & rule of law
1997 Mongolia
1998 South Africa &
regional office in Pretoria for Southern Africa/Indian Ocean
1998 Indonesia
Acquisition of
independent information on the HR situation; underlying goal: promote change by
reporting facts
Important due to these
reasons:
How to monitor:
information collection; information analysis; information dissemination
(usually to UN’s political organs SC and/or GA).
Need for high
standards of credibility; ascertain responsibility; & principle ‘do no
harm’
Empower States to deal
with HR issues:
TA of HR field
operations mostly go host governments, increasingly to civil society
à Frontier of effective HR protection and
promotion today
à UN must remain committed to integrating HR
into all aspects of its work
à More effective structure of field work
à Quality of staff must be assured
à Highly political and arbitrary nature of
current decision-making processes à Development of detailed, objective and
transparent criteria to guide the UN in the process of deciding when and how HR
field presence is to be established
Merrills
Peaceful association
of democratic States committed to the rule of law and their common spiritual
and moral traditions. Aims (Art. 1 of Statute) include ‘the maintainance and
further realization of HR and FF’.
Instruments (universal
approval)
Parliamentary Assembly
(Legal Affairs Committee) usually proposes new measures to CoM.
Committee of Ministers
(& committees of governmental experts) decides.
Convention for the
Protection of HR and FF (ECHR), 1950
European Social
Charter, 1961
Convention for the
Prevention of Torture, 1987
Some conventions allow
accession for non-members; EU has become a party to certain conventions.
CoE participates at sessions
of the UN Commission on HR and its Sub-Commission on Prevention of
Discrimination and Protection of Minorities
List of core civil and
political rights
Initial supervision:
European Commission, Court of HR, Committee of Ministers
Protocol 11 supervision:
European Court of HR, Committee of Ministers
Economic, social and
cultural rights
Complex supervision
mechanism
Impact of ESC less
than ECHR
Committee may visit any
place within jurisdiction; taking into account NGO information; no judicial
function.
Confidential report
can be published at the request of a party or my a 2/3 majority decision in the
Committee
à Can prevent torture
Bring treatment of
minorities into CoE jurisdiction Statement of objectives, no details for
implementation. Periodic reports evaluated by CoM.
Final Act of Helsinki,
1975
Sets out essentially political
undertakings that are not judicially binding.
Membership of OSCE
much wider than CoE
Treaty of Maastricht
Jurisprudence of
European Court of Justice: Reference to principles of ECHR
à Supra-national organization with strong
institutional support
à A lot is going on in the HR area
à HR in Europe = historical patchwork rather
than a single all-embracing system
The Council of Europe (I): The European Convention on
Human Rights
Merrills
Most fully developed and
observed HR instrument; first step in collective enforcement of UDHR
To join the ECHR, a
State needs to be a Member of the CoE. To become a Member of CoE à need to show commitment to the values of a free society & necessary
institutional support for democracy
Protocol 9:
Individuals can take complaints to the Court in certain circumstances
Protocol 11:
Reconstruction of the whole system of control
|
Art. 2 |
Life |
|
Art. 3 |
Torture and inhuman
or degrading treatment or punishment |
|
Art. 4 |
Slavery and
servitude |
|
Art. 5 |
Liberty and security
of person |
|
Art. 6 |
Fair trial |
|
Art. 7 |
Retroactivity of
criminal law |
|
Art. 8 |
Private and family
life, home and correspondence |
|
Art. 9 |
Freedom of thought,
conscience and religion |
|
Art. 10 |
Freedom of
expression |
|
Art. 11 |
Freedom of assembly
and association, including join and form trade unions |
|
Art. 12 |
Marriage |
|
Art. 13 |
Effective remedy in
case of violation of rights |
|
Art. 14 |
Prohibition against
discrimination |
|
Art. 15 |
Emergency situations
threatening the life of the nation |
|
Art. 17 |
General savings
clause |
|
Art. 18 |
Restrictions may not
be applied for any purpose other than those for which they have been
prescribed |
|
Art. 34 |
Petitions from
individuals, NGOs or group of individuals (victims) |
|
Art. 35 |
Admissibility |
|
Art. 46 |
Binding force;
execution of judgements supervised by CoM |
|
Art. 57 |
Reservations:
General r. not permitted |
|
P1 Art. 1 |
Property |
|
P2 Art. 2 |
Right to education
& parents |
|
P2 Art. 3 |
Right to free
elections |
|
P4 Art. 1 |
Imprisonment for
debt |
|
P4 Art. 2 |
Liberty of movement |
|
P4 Art. 3 |
Freedom from exile and
the right to enter the country of which one is a national |
|
P4 Art. 4 |
Collective expulsion
of aliens |
|
P6 Art. 1 & 2 |
Prohibition of the
death penalty in time of peace |
|
P7 Art. 1 |
Right of an alien not
to be expelled from a State without due process of law |
|
P7 Art. 2 |
Appeal in Criminal
cases |
|
P7 Art. 3 |
Compensation for a
miscarriage of justice |
|
P7 Art. 4 |
Immunity from being
prosecuted twice for the same offence |
|
P7 Art. 5 |
Equality of rights
and responsibilities of spouses as regards matters of private law & in
relations with their children |
Commission: inter-State complaints; optional [but accepted
by all Parties] right of individual petition (Art. 25), also NGOs or groups may
bring complaints
Conditions for admission
(Art. 26):
Additional conditions
for individual cases (Art. 27):
Afterwards: Asserting
the facts (Art. 28) à trying to achieve a friendly settlement à if no solution detailed report à CoM
Committee of
Ministers: If a case not
referred to Court, CoM can decide whether a violation has occurred (Art. 32) à quasi-judicial function.
Afterwards: Prescribe
a period for correction of violation à review
Final weapon: Can
suspend or expel from membership any State that has seriously violated respect
for the rule of law and enjoyment of HR (Art. 8 Statute CoE)
European Court of
HR: General or ad hoc
declaration necessary
Originally only
Commission or a State, with P9 also individuals under certain conditions
Commission and
European Court of HR à Court able to perform all functions of the
original organs
Chamber of seven
Grand Chamber of 17
Individual
complaints now mandatory
Committee of Ministers
supervises the execution of judgements but is not dealing with cases not
referred to the Court anymore
Lawless case, 1961: Detention without trial justified in
emergency
Greek case, 1967: No true emergency; withdrawal of Greece
from CoE until 1974
Golder case, 1975: Access to a Court of law; seeing a lawyer
while in detention
Luedicke, Belkacem
and Koç: Free interpretation
for the defendant in a criminal case
Marckx case, 1979: Inheritance rights for children born
out of wedlock
Campbell and Cosans, 1982: Schools can provide objective sex
education in Denmark
Soering cse, 1989: Prolonged detention on ‘death row’ may
involve inhuman treatment; extradition from GB into USA would be a violation of
obligation under Art. 3.
à A System of international supervision is
necessary and desirable for all States
à Convention = most effective international
system for protecting HR
The Council of Europe (II): The European Social
Charter
Harris
22 Contracting
Parties, revised ESC entry into force in 1999
States have to accept at
least half of the provisions and five out of seven Articles considered as
essential
|
Art. 1 |
Right to work As high and stable
level of employment [public and private] as possible Protect effectively
right of worker to earn his living in an occupation freely entered upon [¹ forced labour] |
|
Art. 2 |
Just conditions of
work [paid holidays] |
|
Art. 3 |
Safe and healthy
working environment |
|
Art. 4 |
Fair remuneration |
|
Art. 5 |
Right to organize [trade unions] Only armed forces
and, to some extent, police exempted Individual right of
workers; collective right of unions Negative and
positive obligation |
|
Art. 6 |
Right to bargain collectivelyPromote joint consultation ¹ real right Promote, where necessary and appropriate, machinery
for voluntary negotiations Promote appropriate machinery for conciliation and
voluntary arbitration for the settlement of labour disputes Right of workers and employers to collective
action, including strike |
|
Art. 7 |
Right of children
and young persons to protection |
|
Art. 8 |
Right of employed
women to protection [maternity leave] |
|
Art. 9 & 10 |
Vocational guidance
and vocational training |
|
Art. 11 |
Right of protection
of health |
|
Art. 12 |
Right to social
security Endeavour to raise
progressively … to a higher level |
|
Art. 13 |
Right to social and medical assistanceCreates a subjective
right |
|
Art. 14 |
Right to benefit
from social welfare services |
|
Art. 15 |
Vocational training,
rehabilitation and social resettlement of physically or mentally disabled
persons |
|
Art. 16 |
Rights of the familyPromote the economic, legal and social protection of
family life [social and family benefits, fiscal arrangements, provision of
family housing, etc.] |
|
Art. 17 |
Right children and young persons to
social and economic protection
|
|
Art. 18 |
Right to engage in gainful occupation in
the territory of other Contracting Parties
|
|
Art. 19 |
Rights of migrant workersMW and their
families who have jobs or are looking for them have the right to protection
and assistance; some extent of preferential treatment |
|
Art. 20 |
Gender
discrimination
|
|
Art. 23 |
Elderly persons
|
|
Art. 24 |
Termination of employment
|
|
Art. 26 |
Dignity at work
|
|
Art. 27 |
Equal opportunities and treatment for
workers with family responsibilities
|
|
Art. 30 |
Right of protection against poverty and
social exclusion
|
|
Art. 31 |
Housing
|
Amending Protocol,
1991
Complicated reporting
arrangements
Similar kind of role
like ILO Committee of experts
Discover what the law
and practice of the Parties is à ‘legal’ findings
Dialogue CIE – States
at the request of either one of them
GC supposed to check
out reports à sometimes other decisions than CIE
Amending
protocol: allocates to the CIE the
competence to interpret and apply the ESC. GC advises the CoM as to the cases
in which a recommendation should be made to a Party
May present its views
on CIE’s conclusions to CoM
Supposed to make
recommendations to individual States in the light of the CIE’s conclusions and
the GC’s report. Didn’t do it.
The OSCE and Human Rights
Amor and Estebanez
Comprehensive approach
to security; cooperative approach to security (Inter-State dialogue)
Decision by consensus
Final Act of Helsinki,
1975 (has been called ‘politically binding)
Human dimension’ in
third basket includes HR and FF, but also 1) human contacts; 2) information; 3)
cooperation and exchanges in the field of culture; 4) cooperation and exchanges
in the field of education. Development: Pluralist democracy, rule of law.
HD inside
participating States increasingly object of legitimate concern to the other
OSCE states
Main focus:
individuals, but no specific list of rights
National minorities;
Self-determination of peoples; Right of religious communities;
Non-discrimination
Second Conference on
the Human Dimension, 1990: national minorities à appropriate local or autonomous
administrations / protection against manifestations of intolerance, including
violence
Charter of Paris for a
New Europe, 1990: Culture, migrant workers
Conference on the
Human Dimension, 1991: Commitments in the field of HD = matters of direct and
legitimate concern to all PS, not internal affairs; possibility to request that
the ODIHR inquire whether a PS would agree to invite a mission of experts
Lisbon Declaration on
a Common and Comprehensive Security Model for Europe in the 21st
Century, 1996: Violations of rights of persons belonging to national minorities
= threat to stability, respect for minority rights = important contribution to
security
à Large number of States not yet bound by
international legal standards
à One of the most effective inter-State systems
for monitoring
Permanent Council
regularly deals with HD issues (Budapest, 1994)
Secretary General
High Commissioner on
National Minorities: address conflictual situations at the earliest possible
stage
Office for Democratic
Institutions and Human Rights:
election observation, organization of ‘implementation meetings’ on HD issues
OSCE Representative on
Freedom of the Media
OSCE Parliamentary
Assembly
Missions of experts
(1991)
The European Union and HR
Woods
Protection of HR not
primary function of EU
1997 Treaty of
Amsterdam à Justice, Home Affairs, Common Foreign and Security Policy
Treaty of Rome:
M Must be in community sphere
Treaty on European
Union (Maastricht), 1993
Increasingly direct
link between individuals and the EU
Single European Act,
1986 (-92)
Treaty of Amsterdam:
Joint Declaration on
HR: Approve the ECJ’s approach in case law
European Parliament
(Human Rights sub-commission), ACP Assembly
Not all precise enough
to be justiciable; programmatic rights…
Community Social
Charter, 1989
European Economic and
Monetary Union: shift away from Keynesian welfare State
Treaty of Rome:
Treaty on European
Union:
ECJ jurisprudence:
M Jurisprudence of ECHR and ECJ sometimes
conflicting
M Critics: Treats Community more favourable than
States
M Uneven level of judicial control
Part V: Extra-European Systems
The OAS System for the Protection of HR
Van der
Wilt and Kristicevic
|
Art. 1 |
Duty to respect and to ensure
[also private individuals] rights
|
|
Art. 2 |
Obligation of states to adapt legislative
or other measures to comply with ACHR à self-executing [AO]
|
|
Art. 3 |
Right to judicial personality
|
|
Art. 4 |
Right to life
|
|
Art. 5 |
Torture or cruel, inhuman or degrading
punishment or treatment
|
|
Art. 6 |
Slavery and servitude
|
|
Art. 7 |
Personal liberty and security
|
|
Art. 8 |
Fair trial
|
|
Art. 9 |
Non-retroactivity of criminal law
|
|
Art. 11 |
Privacy
|
|
Art. 12 |
Freedom of conscience and religion
|
|
Art. 13 |
Freedom of thought and expression
|
|
Art. 15 & 16 |
Assembly and Association
|
|
Art. 17 |
Family
|
|
Art. 18 |
Right to a name |
|
Art. 20 |
Right to a nationality |
|
Art. 21 |
Right to property |
|
Art. 22 |
Freedom of movement and residence
|
|
Art. 22(7) |
Right to seek and be granted asylum |
|
Art. 23 |
Right to participate in government |
|
Art. 24 |
Equal protection
|
|
Art. 27 |
Derogation clause: ‘independence or
security’ in danger
|
|
Art. 26 |
Achieve progressively the full
realization of economic, social and cultural rights in OAS Charter [e.g.
culture, work, remuneration, leisure time]
|
|
Art 29(d) |
Savings clause for American Declaration
on the Rights and Duties of Man
|
|
Art. 30 |
Derogation restrictions in accordance
with purpose of restrictions; list of non-derogable rights
|
|
Art. 41 |
Right of petition for any person or group
of persons or any NG entity; victim or not
|
|
Art. 42 |
[Commission: Non-cooperation of
government à facts held as true as long as other evidence does
not lead to a different conclusion]
May watch over the
promotion of economic, social and cultural rights |
|
Art. 46 |
Conditions for admissibility of
individual petitions: exhaustion of local remedies; not pending before
another international procedure for settlement
|
|
Art. 48 |
Friendly settlement procedure
|
|
Art. 62 |
Competence of IACHR: only with explicit
consent of States
|
|
Art. 63 |
If breach: reversal; remedy and fair
compensation
|
|
Art. 64 |
Advisory jurisdiction
|
|
Art. 68 |
Compensation part of judgement has
executory force
|
Seven independent HR
experts elected by General Assembly
Main functions:
May only examine
individual communications if the States Parties involved have recognized the
Court’s competence.
Only States and
Commission can present cases.
If breach à injured party must be ensured those rights denied and, where
appropriate, remedy and fair compensation [executory force]
Member states or OAS
organs can request AO on interpretation of AHCR or other HR treaties
Similarities with ECHR
and ICCPR, special rights listed above.
Commission relatively
extensive powers; Commission allowed itself to take precautionary measures,
e.g. halting the deportation of a journalist in Panama
Velasquez Rodriguez
case, 1988: Burden of proof
less formal in international proceedings when establishing State responsibility
(States frequently control all relevant information and evidence)
Extensive derogation
clause but must be in accordance with purposes of derogation & long list of
non-derogable rights
Few such rights in
ACHR, but broad protection in ADRDM [State Parties also bound by Declaration]
Not clear-cut system
of supervision and control.
Protocol of San
Salvador, 1988: Petition system applicable to trade union rights and the right
to education; keep reporting procedure for other rights; more economic, social
and cultural rights
à Evolution from promotion to protection;
important contribution of Commission: 1) Global assessment of HR situation in
OAS Member States; 2) Develop petition system
à Commission power to start investigations on
its own
à NGO can lodge complaints
The African Charter on Human and Peoples’ Rights
Flinterman and
Henderson
Adopted 1981 (1986)
Under auspices of the
Organization for African Unity (OAU)
Particular attention
to African tradition and the peoples’ right to development
Promote and protect individual HR and
collective peoples’ rights
|
Art. 2 |
Non-discrimination
|
|
Art. 3 |
Equality before the law; protection of
the law
|
|
Art. 4 |
Life
|
|
Art. 5 |
Slavery, torture and other cruel, inhuman
and degrading punishment or treatment
|
|
Art. 6 |
Arbitrary arrest and detention
|
|
Art. 7 |
Due process of law
|
|
Art. 8 |
Freedom of conscience, profession and
religion ‘subject to law and order’
|
|
Art. 9 |
Freedom of information, opinion and
expression ‘within the law’
|
|
Art. 10 |
Association … ‘abides by the law’
|
|
Art. 11 |
Assembly ‘necessary restrictions by the
law’
|
|
Art. 12 |
Freedom of movement; right to seek asylum;
prohibition of mass expulsion of non-nationals ‘which is aimed at national,
racial, ethnic or religious groups’.
|
|
Art. 14 |
Property
|
|
Art. 15 |
Work; equal pay for equal work
|
|
Art. 16 |
Health
|
|
Art. 17 |
Right to education
|
|
Art. 18 |
Family; Women [reference to other
international declarations and conventions]
|
|
Art. 20 |
Self-determination; Right to free
themselves from domination
|