TyroCity: International Human Rights Law Notes

Best interests of the child

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

The principle of the best interest of the child, has been formulated in Article 3:1.
“In all actions concerning children whether undertaken by public or private social welfare institution, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”

The right to free, informed and prior consent by indigenous people

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

“(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;

“(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them …”.

Conflicts over development projects on the lands of indigenous peoples lead to further violations of human rights. For instance, forced evictions from their traditional lands may lead to breaches of civil and political rights such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home, and the right to the peaceful enjoyment of possessions.

Some States legislation

The Aboriginal Land Rights (Northern Territory) Act 1976 (amended in 1987) of Australia
The Indigenous Peoples Rights Act 1997 of the Philippines recognizes the indigenous right to ancestral domain and the land title to traditional lands.

The Framework Convention for the Protection of National Minorities, 1995

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

This Convention contains the right to equality before the law, freedom of expression, freedom of religion, freedom of association and assembly, linguistic freedoms, education, promotion of culture and national identity, and the encouragement of tolerance and intercultural dialogue.

Standardized Indicators of Fair Trial

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Recognized Principles of Criminal Law and Justice

To adhere to the fair trial standards, characteristics and principles of criminal law require following components:

Characteristics

Legitimacy: Criminal law requires to be framed by legitimate source, i.e., the crime should be defined in law made by the people’s legislative organ and it may not be authorised to be governed by delegated legislation. Similarly, substance and procedure of legislation should be from legitimate, formal and authentic source;

Specificity: Criminal law should provide strict definitions of particular act/omission as crime;

Regularity: Criminal law should be originated form legitimate source with full guarantee of its applicability to all persons regardless of their social status;

Uniformity: Enforcement of the laws against anyone who violates them, regardless of his/her social status; and,

Punishability: Law violators should be punished or at least be warned of punishment by State.

Common Standards of Fair Trial in Administration of Justice

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Explicit prescription of prosecution and adjudication by statutory law;

Determination and imposition of penal sanctions (imprisonment) only by judicial authority;

Competency, Independency and impartiality of adjudication officer;

Reasonable time period for investigation and access of accused for his/her representation by defence lawyer;

Information to the accused of his/her arrest, detention, charge and notification to family and lawyers;

Prohibition on corporal punishment, torture, inhuman treatments and application of coercive measures;

Provision of compensation or indemnity in terms of miscarriage of justice and mistreatment;

Ensured right to judicial remedy during investigation, pre-trial, trial and post- trial and appeal against decisions;

Free legal aid under State’s sponsorship;

Access to appeal against trial court jurisdiction and second appeal;

Burden of proof rests on the shoulder of prosecutor;

Statutory guarantee of the procedural safeguards (statutory law should specify the proceedings and may not delegate to formulate proceeding by adjudicator on his/her own);

Public hearing and trial.

Application of reasonable and moderate bail;

Application of special standards enhancing the notion of fair trial (camera hearing, arrest of women by police women, hearing the cases of juveniles in presence of defence lawyer and child specialists etc.);

Applications of non-custodial measures as alternatives of imprisonment; and,

Application of corrective and rehabilitative measures in punishment in the interest of community and victims.

Rights of Indigenous Peoples

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

It is not possible to discuss the rights of minorities without any reference to the rights of indigenous peoples, a category of peoples whose issues are analogous to those of minorities.
Many indigenous peoples also tend to be minorities, they have pressed for, and been accorded, a separate regulatory regime under international law.

Phases of Trial

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

1. Pre-trial: before a judicial body accepts the accusation

2. Trial: accusation to conviction or acquittal at initial jurisdiction

3. Post-trial: punishment/recovery and revision

Pretrial Protections

Right against arbitrary arrest and detention
Right against arbitrary interference on privacy
Right to humane treatment and protection of human dignity
Right to have judicial supervision and remedy
Clear notice of charge, rights and consequences.
Sound health, access to outside world.
Facilities for defense preparation.

Trial Protections

Equality of arms
Ensured safe and fearless environment and full respect of dignity
Review and recourse of the Pretrial protections
Public hearing
Counsel and defense support
Timely disposal
Fair examination of witnesses
Well-informed about charges and possible
Use of appropriate punishment among alternatives
Reasoned judgment

Post-trial Protections

Informed punishment and appealing process
Explaining the consequences and duration of punishment and role thereafter
Correctional programmes and protection against potential abuses
Preparation of reintegration
Rehabilitation
Compensation (Redress, financial support and Rehabilitation)

ILO 169

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Self-identification, right to decide their own priorities
Assimilationist orientation of the earlier standards.
full realisation and respect of their social and cultural identity, their customs and traditions and their institutions.
eliminate socio-economic gaps
The integrity of the values, practices and institutions of these peoples shall be respected

ICCPR: Article 27

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

ICCPR provides that, “in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”
In 1994, the Human Rights Committee, the ICCPR’s treaty body, issued General Comment 23 on Article 27 of the ICCPR.
General Comment 23 was at pains to assure states that Article 27 did not envision the grant to minorities the right of self-determination (Art 1 of the Covenant)
Several other regional and universal human rights documents continue the theme of equal protection and anti-discrimination.
The Council of Europe undertook similar commitments in the 1995 Framework Convention for the Protection of National Minorities.
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) 1965-Art. 1
The 1981 UN anti-discrimination declaration on religion or belief also made a useful contribution to minority rights
Genocide Convention, 1948
ICC-Article 6
Others
The UN Commission on Human Rights [Human Rights Council] established the open-ended Working Group on Minorities, the body that drafted the 1992 Declaration on the Rights of Minorities.

International Human Rights Law

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Evolution of Human Rights

Basic Concept of Human Rights

Human Rights and Cultural Relativism

Cultural Relativism

Protection of Human Rights during Civil Strife

Protection of Human Rights during State of Emergency

Administration of Justice and Fair Trial

Regional Human Rights Framework

CEDAW Principles

Contribution of League of Nations in Abolition of Slavery

Rights of Minorities and Indigenous Peoples

Basic Features of Child Right Convention

IACHR Jurisprudence

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

“The exercise of public authority has certain limits which derive from the fact that human rights are inherent attributes of human dignity and are, therefore, superior to the power of the State”.

The obligation to “ensure … the free and full exercise of those rights and freedoms” thus “implies the duty of the States Parties.

The legal obligation to “ensure” the rights and freedoms contained in the American Convention on Human Rights means that the States parties must prevent, investigate and punish human rights violations and that they must, if possible, restore the rights violated, and provide compensation as warranted for damages.

Inter-American Court of HR’s Advisory Opinion

The rights protected by the Convention cannot, per se, be suspended even in emergency situations, because they are “inherent to man”.
“what may only be suspended or limited” under the Convention is the “full and effective exercise” of the rights contained therein.

(I-A Court HR, Habeas Corpus in Emergency Situations (arts. 27(2), 25(1) and 7(6), Advisory Opinion OC-8/87 of January 30, 1987, Series A, No. 8, para. 18 at p. 37.)

Regional Human Rights Framework

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

European Human Rights Standards and Mechanisms.
Inter-American Human Rights Standards and Mechanisms.
African Human Rights Standards and Mechanisms.
Asian