Human Rights Law

Presentation - 2

Human Rights Systems

 Review of the Last Class
 Point out the core ideas we have
discussed in the last session?
 Summary and conclusion of the
discussion.
 Questions before we move a head.
 Human Rights Systems
 Human rights system refer to substantive
agreements made in respect of human rights
in general, and theme or group specific
conventions, and the institutions and
procedure established for enforcement and
facilitation thereof.
 The international (UN) system is designed to
create a peaceful world order as a
consequence of atrocities committed against
humanity in the previous world wars and
disrupted relationships of states.
The International Legal Framework
of Human Rights
 The UN Charter
◦ The giant legal regime of the universal human rights
system is represented by the UN System.
◦ Part of the UN purpose is respect for human rights
and their internationalization (universality) as
envisaged in its establishing Charter.
◦ Agencies of the UN are entrusted with the task of
making recommendations and promoting human
rights in their field of mandate.
◦ The emphases given to human rights and the number
of provisions devoted to human rights in the UN
Charter is impressive as contrasted to its
predecessor, the Covenant of the League of Nations.
Cont’d
 The UDHR
◦ After the establishment of the organization, the
Commission on Human Rights has presented a
draft declaration to the General Assembly, and in
1948, it is declared as the UDHR.
 It consists of 30 articles, having a preamble setting out the
philosophy and objectives of the document.
 The Declaration incorporates both civil and political
rights, and socio-economic rights in its operative part.
 the declaration is not a binding treaty instrument; rather it
is a resolution of intention by member states, that has
been stipulated in later human right conventions.
 It is further affirmed by consistent practice of states with no
opposition.
 The Declaration exerted a profound influence and laid down a
stepping stone for future developments.
 Cont’d
 The ICCPR & ICESCR
◦ After the adoption of the UDHR, the Commission on Human
Rights drafted instruments that will be binding treaties
incorporating the contents of the UDHR.
◦ Consequently, the ICESCR and ICCPR and its additional protocol
are adopted by General Assembly and put on table for ratification
by states.
 Are there any states that haven't ratified any of these covenants?
◦ The first optional protocol of the ICCPR establishes a individual
complaint procedure.
 How many states are parties to this protocol as of today?
 What are the central points of the protocol?
◦ The second optional protocol is about abolition of death penalty
 How many states are parties to this protocol as of today?
 What are the central points of the protocol?
 Both covenants have a treaty bodies established to supervise
and examine reports of member states.
 Theme or Group Specific
International Human Rights Regime
 IC on Elimination of Racial Discrimination
◦ This convention expands the definition of the racial
discrimination. Indicate?
◦ It criminalizes dissemination of ideas preaching racial
superiority and hatred.
◦ It established a treaty body i.e. a Committee
empowered to deal with complaints, conduct an
inquiry and conciliation.
◦ Can you tell a scenario where a state would lodge a
complaint on basis of racial discrimination against
other state?
 What is the philosophy behind enabling states to compliant
against others on the basis of what the a state party does
domestically?
Cont’d
 The Convention on the Elimination of Discrimination against
Women
 Gender cannot be a justified basis for discrimination in enjoyment and
exercise of human rights in any field of life.
 Women are equal with men. Is there any other way to think of?
 The Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, having a Committee
for its supervision
 The Convention of the Right of the Child. Its profound
principles include:
◦ Best interest of the child as a primer consideration in any matter
involving the interest of a child
◦ Children have the right to form their own views and express it,
which shall be respected.
 Does this mean that parents of the child may not instill values and
outlooks to the mind of the child? Is it to mean that the child may hold
other views other than what is being communicated to him either in
speech or conduct?:
Reservations and Declarations
 Reservation is an exclusion certain provisions of a
treaty in as far as the state is concerned.
◦ In effect, reservation alters the legal obligation of the state.
 Declaration is a statement of interpretation or
understanding of a specific provision of a convention.
 Explain the difference between reservation and
declaration? Reservation alters the extent of
obligation of the concerned state; whereas
declaration does not.
◦ According to VCLT, a reservation should not be defeat the
object and purpose of the convention. And it agreed
among international and regional human rights courts and
treaty bodies that reservation should not be general which
necessarily goes against the objective of the treaty and
difficult to be enforced properly.
 Restrictions and Derogations
 Restrictions
◦ Human rights are not absolute entitlements; as
asserted by international and domestic legal
instruments, many of the rights have limitations for
various reasons related to the interest of the public at
large and the right of others.
◦ The restriction imposed must be relevant to and
compatible with the nature of the right; and the
limitation must be proportionate to the reason and
the situation justifying restriction which is to be
determined case by case (the degree of restriction).
 Limitation shall not have the effect destroying the right at all.
 In other words, the legitimacy of restriction is determined by its
compatibility with the nature of the right and proportionality.
◦ For few rights such as torture and slavery, no limitation
is allowed.
Cont’d
 Derogations
◦ Besides restrictions, some serious emergency
circumstances such as maintaining peace and order may
justify the suspension of of human rights except few.
◦ This is a temporary and exceptional ban in some rights.
Ex: at the time of widespread violence and disruption of
peace, the right to assembly can be prohibited until the
situation is arrested.
◦ The principle is that derogation can be made to every
human rights except few. These few human rights
standards are not proper justifications to suspend and
their ban have no role in maintaining any of the public
interests that are oft-mentioned to be strong reasons for
derogation.
 The non derogable rights include the right to life, freedom from
slavery, torture and imprisonment for debt, the principle of
legality in the field of criminal law, freedom of thought, conscience
and religion and the right to juridical personality.
 The Institutional Framework for
Global Human Rights System
 The institutional framework of human rights refer
to the mechanisms and procedures set up for
promoting and controlling observance of state
obligations.
 There are two types of institutional frameworks:
◦ Treaty based mechanisms
◦ Non-treaty (Charter) Based Mechanisms
 Treaty Based mechanisms
◦ These are bodies established by human rights treaties
themselves. Ex: Human Right Committees, Int’l and
Regional Human Rights Courts etc.
 The members of treaty bodies act in their personal capacity
even though represent state parties to the treaty.
Cont’d
◦ The supervisory mechanisms and procedures
undergone by treaty bodies include:
 Reporting procedures: that they receive periodic
reports from signatory states about the state of
human right enforcement at domestic level.
 They also collect information from other organs such as
NGOs, chartered a agencies (like UN agencies), academic
institutions and the press to verify the credibility of the state
report. And finally, the committee gives a concluding
observations.
 Inter-state complaint procedure
 This has not been an ideal mechanism because it involves a
political and diplomatic interests among state parties; and
triggers a reprisal on the part of the accused states.
Cont’d
◦ Individual Complaint Procedure
 Individual complaints can only be received if domestic
remedies are exhausted; hence international supervisory
bodies are last judicial resorts.
 Regarding the procedure of complaint, there are two major
stages: admissibility and merit stage. In the admissibility stage,
the case would be assessed in terms of fulfillment of the
formality requirements; and at the merit stage, the
committee/court decides whether or not the rights at issue
have been violated.
◦ Inquiries and other Procedures
 Inquiries upon the initiative of an independent applicants
including in loco visits by the committee itself or through fact-
finding commissions.
 Initiatives may also taken to prevent possible violations and
promote compliance.
 Cont’d
 Non-treaty (Charter) Based Mechanisms
 Non-treaty (charter) based mechanisms refer to
intergovernmental organizations and other non-
governmental organizations that play a certain role to
secure the respect and protection of human rights.
 The big structure ever that has been leading the
international effort in instilling the human right values
across different levels of governments and societies is the
UN.
 There are many agencies under the UN that play their own
respective role in promoting and lobbying the enforcement of
human rights.
 Even those that are categorized as treaty bodies are with the UN
framework in that the treaties are formulated under the auspices
of the UN and adopted universally by the General Assembly.
Cont’d
 The International Court of Justice (ICJ)
 One of the UN organs that is formed based its
charter is the ICJ; that signatories to the charter are
ipso facto parties to the statute of the court.
 In relation to human rights, the court has an advisory
and contentious jurisdiction to entertain alleged
breach of human rights treaties.
 Does this amount to overlap of jurisdiction where, on the one
hand, complaints can be lodged to treaty bodies, and on the
other to ICJ? Or is this intended to widen the alternatives, one
complaint can be filed on the basis of the charter and
resolutions of the General Assembly, and one to the Human
Rights Committees on the basis of the treaties themselves?
Cont’d
 The Security Council
◦ State parties to the Charter have agreed to entrust
the mandate of maintaining international peace and
stability to the Security Council; hence the Council
may take necessary action to the point of use of force
to stop any act of aggression or any situation which
may lead to disruption of international peace and its
values in violation of international law.
◦ Is it plausible to consider massive infringement of
human dignity as amounting to gross breach of
international peace.
◦ But owing to the politically motivated vetoes of the
permanent members, the Security Council could not
have been successful in its role toward securing the
respect of human rights.
Cont’d
 United Nations General Assembly
◦ The GA initiates studies and makes recommendations for
the purpose of assisting in the realization of human rights.
◦ It established a number of subsidiary organs concerned
with human rights:
 The International Law Commission; as part of its general
mandates to work on the development international laws, it has
prepared many conventions such as refugees convention and
genocide convention.
 The Office of the United Nations High Commissioner for
Refugees.
 Economic and Social Council
 The UN Human Rights Council
 International Labor Organization (ILO)
Cont’d
 Office of High Commissioner for
Human Rights (OHCHR)
◦ The OHCHR is a UN agency established in
1993 with the aim of coordinating and
streamlining the dispersed human right efforts
of the UN.
◦ OHCHR also functions as a secretariat of the
Human Rights Council, the treaty bodies, the
special procedures mandate holders, and the
Universal Periodic Review.
Regional Human Rights Systems
 Basically, the human rights systems that exist at the regional
level are similar to the system of human rights at the
international level; that it is a blend of substantive human
treaties among states in the respective regions and the
institutions and procedures, either intergovernmental or
treaty bodies, set up to monitor the implementation of
regional obligations at domestic levels.
 Read by yourself about the regional human rights systems in
Europe, Asia, America and Africa which are working side by
side with the international UN human rights system.
 The purpose of the study should to identify and take lessons
from each other in terms of establishing a better system of
human right in general , and setting out meritorious treaties
and effective institutional structures fro the promotion and
protection of human rights across the regions and the globe.
END OF SESSION