TyroCity: International Human Rights Law Notes

Complaint Mechanism

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

The Inter-American Commission on Human Rights is competent to receive petitions concerning alleged human rights violations:

from any person or group of persons, or any legally recognized non-governmental entity; this competence is mandatory (art. 44); from one State party against another State party, if such competence has been recognized (art. 45).
The Inter-American Court of Human Rights is competent to examine cases submitted to it by the States parties and the Commission provided that these cases have first been considered by the Commission (art. 61).

ECHR Jurisprudence

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

“Continued detention could be justified in a given case only if there were specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighed the rule of respect for individual liberty.” (Shalimov v Ukraine [2010] ECHR 20808/02, Decided by European Court of Human Rights on 26 Jan. 2010)

“The right to form and join trade unions was a special aspect of freedom of association, and the notion of a freedom implied some measure of freedom as to choice as to its exercise. Therefore, art 11 of the ECHR had also to be viewed as encompassing a negative right of association. (Sorensen v Denmark (App no 52562/99); Rasmussen v Denmark (App no 52620/99) ECtHR(Grand Chamber), [2006]

The use of a combination of five techniques, such as hooding and sleep- and food-deprivation, in the course of interrogation of detainees, amounted to a practice of inhuman and degrading treatment contrary to art 3 of the Convention. The use of the techniques fell short of torture as the pain occasioned to detainees lacked the ‘intensity and cruelty’ inherent in the notion of torture as understood by the Court.” (Tanase v Moldova (App. No. 7/08), EUROPEAN COURT OF HUMAN RIGHTS (grand chamber), 10 March 2010)

Human Rights Committee : jurisprudence

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

Even if not listed in article 4(2), some rights may not be derogated from because they are considered to be “inherent to the Covenant as a whole”
one such example is the right to judicial remedies in connection with arrests and detentions as set out in article 9(3) and (4)
Right to a fair trial for persons threatened with the death penalty.
The Committee has further held under the Optional Protocol that “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception”

General Comment 29 (2001)

In General Comment No. 29 adopted in July 2001, which replaces General Comment No. 5 of 1981, the Human Rights Committee confirms that “article 4 subjects both this very measure of derogation, as well as its material consequences, to a specific regime of safeguards.
With regard to the purpose of derogation, the Committee states that:
“The restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party derogating from the Covenant.”
As noted by the Committee, a State party must comply with “two fundamental conditions” before invoking article 4(1) of the Covenant, namely
(1) “the situation must amount to a public emergency which threatens the life of the nation” and(2) “the State party must have officially proclaimed a state of emergency”
condition of exceptional threat
The Covenant requires that even during an armed conflict measures derogating from the
Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation.
If States parties consider invoking article 4
in other situations than an armed conflict, they should carefully consider the justification.
“In order to discharge its function and to assess whether a situation of the kind described in article 4 (1) of the Covenant exists in the country concerned, it needs full and comprehensive information.

Provision under UN and Regional Conventions

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Possibility for the States parties to resort to derogations in particularly serious emergency situations.

International Covenant on Civil and Political Rights (art. 4),
American Convention on Human Rights (art. 27)
European Convention on Human Rights (art. 15)

African Charter on Human and Peoples’ Rights and Commission’s view

There is no provision of emergency in the charter
According to the African Commission on Human and Peoples’ Rights “ the restriction of human rights is not a solution to national difficulties”
“the legitimate exercise of human rights does not pose dangers to a democratic State governed by the rule of law”
The civil war could not therefore be used as a legal shield for failure to fulfil the legal obligations under the African Charter,
(3ACHPR, Commission Nationale des Droits de l’Homme et des Libertés v. Chad, Communication No. 74/92, decision adopted
during the 18th Ordinary session, October 1995, para. 40 of the text of the decision as published at: http://www.up.ac.za/chr/)

Article 4 (1) of ICCPR

“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
The introduction of a derogation provision into the Covenant was first proposed by the United Kingdom in a Drafting Committee of the United Nations Commission on Human Rights in June 1947.
United Kingdom expressed the view that “if such a provision were not included, in time of war it might leave the way open for a State to suspend the provisions of the Convention.” It was “most important that steps should be taken to guard against such an eventuality”.
The arguments for and against the advisability of a derogation provision continued during the subsequent sessions of the Commission on Human Rights.
The USSR was “in favour of the least possible limitation” by adding the phrase “directed against the interests of the people” after “in time of war or other public emergency”
United States and Philippines were against the derogation provision.
the condition of a “public emergency which threatens the life of the nation.
the condition of strict necessity
official proclamation
non-derogability of certain Rights and obligations (Art. 4(2) ICCPR)
consistency with other international legal obligations
The condition of non-discrimination:
The measures of derogation may not “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin” (art. 4(1) of ICCPR)

International Notification:

a State party must immediately submit a notification of derogation to the other States parties through the Secretary-General.
describe “the provisions from which it has derogated and … the reasons by which it was actuated”.
A second notification must be submitted “on the date on which it terminates such derogation”

The American Convention on Human Rights,1969, and its Protocols of 1988 and 1990

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

The Convention reinforced the Inter-American Commission on Human Rights, which since 1960 had existed as “an autonomous entity of the Organization of American States”.
It became a treaty-based organ which, together with the Inter-American Court of Human Rights, “shall have competence with respect to matters relating to the fulfilment of the commitments made by the States Parties” to the Convention (art. 33).
In 1988, the General Assembly of the OAS further adopted the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, also called the Protocol of San Salvador.
Lastly, in 1990 the General Assembly also adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which entered into force on 28 August 1991
American Convention on Human Rights also expressly recognizes “that the essential rights of man are not derived from one’s being a national of a certain State, but are based upon attributes of the human personality”.

Distinct features of Minorities and Indigenous Peoples

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Distinguished characteristics.
Group Identity.
Individual belonging to the group.
Protection of the rights under international standards.

ILO and its Constitution

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

Hours of work including the establishment of a maximum working day and week,
the regulation of the labour supply,
the prevention of unemployment,
the provision of an adequate living wage,
the protection of the worker against sickness, disease and injury arising out of his employment,
The original text of the Constitution, established in 1919,
Modified by the amendment of 1922 which entered into force on 4 June 1934
Declaration concerning the aims and purposes of the International Labour Organisation adopted at Philadelphia on 10 May 1944,
Amendments of 1945, 1946, 1953, 1962 and 1972

Preamble

the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own,
recognition of the principle of equal remuneration for work of equal value,
recognition of the principle of freedom of association, the organization of vocational and technical education and other measures;

Governing body of ILO consist of 56 persons

28 representing governments,
14 representing the employers, and
14 representing the workers

ILO Governing Body

Tripartite Representative Framework: government, employer and worker.

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

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“(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.

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.

Protection mechanism for minority and Indigenous People

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

Constitutional Recognition.
Land Rights.
Language protection.
Self-determination.
Education and health facility.
protection of culture.
Commerce, employment and development process
Public awareness
Miscellaneous

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

International Standards

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

In 1919 the League of Nations developed the first modern regime for the protection of minorities.
Thus a number of new states, including Albania, Turkey, Austria, Greece, Poland, Hungary, Czechoslovakia, Yugoslavia, Bulgaria, and Romania were required by the victors to sign special treaties for the protection of the ethnic, linguistic, and religious minorities within their borders.
Jurisprudentially, the League’s system protected a wide array of minority rights, including the right to equal treatment and non-discrimination; the right to citizenship, with an option to retain a second citizenship; the right to use the group’s language; the right to establish and control charitable, religious, and social institutions; a duty on the state to support minority schools,
The UN Charter itself proclaimed, in part, that one of its “purposes” was to promote and encourage “respect … for fundamental freedoms for all without distinction as to race, sex, language, or religion.”
In 1947, the UN established the Sub-Commission on Prevention of Discrimination and Protection of Minorities.
In 1960, the United Nations Educational, Scientific and Cultural Organization [UNESCO], adopted the Convention Against Discrimination in Education, which recognized the right of minority groups to carry out their own educational activities, establish their own schools, and instruct students in their own language.