TyroCity: Human Rights Law Notes

Meaning and Purpose of Examination and Cross Examination

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

Examination means testified to the witness about relevancy to find out witness knowledge, confidence, so no for the subject matter. Interrogative of witness by the opposition party is called cross examination. Cross examination is also said to be ‘ the greatest engine even invented for the discovery of earth.

Cross examination is’ the questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify.

Cross-examination ‘the most effective art of the skilled trial lawyer; the interrogative of a witness for the opposing party by questions formed to test the accuracy and truthfulness of his/her testimony on direct examination and to bring out the truth of matter in issue; an absolute rights in action and proceeding.

According to Taylor, cross-examination is ‘the motives to prevent truth are so much numerous in judicial investigation than in the ordinary affairs of life that the danger of injustice arising from this cause’

Cross-examination of the witness is the process of purity the fact from the witness of the opposite party. It does not protect the rights of the party, must have both the right and opportunity of cross-examination. Cross-examination is one of the greatest weapon of the testing the veracity of a statement made by a person. It is both, sword of attack and a side of defense.

Purpose:

Cross-examination is designed to serve one or more of the following purposes as

To damage or destroy the opponent,
To substantially discredit the witness,
To support one’s own the case

According to Cross and Wilkins, the objective of cross-examination on conducted or on behalf of the opposite party are

to elicit evidence directly relevant to the issued which is favorable to the cross-examiners case and
To discredit the witness.

The very purpose of the cross-examination is to ask the question regarding to what the witness has stated in the examination in –chief are in the case of that witness and particularly when the witness is a party to the proceeding of that party.The entire questions which are asked with a new challenge the evidence-in – chief are permissible .The motives to prevent truth are so much more numerous in judicial investigation than in the ordinary affairs of life and the danger of injustice arising from this cause.

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.

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.

Female Prisoners and Reproductive health

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

Pregnant women who are deprived of their liberty should receive humane treatment and respect for their inherent dignity at all times, and in particular during the birth and while caring for their newborn children;

States parties should report on facilities to ensure this and on medical and health care for such mothers and their babies.

European Human Rights Instruments

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

European Conv. on HR and FF (ECHR) (1950).
European Social Charter (1961).
European Conv. for the Prevention of Torture
and IDTP (1989).
European Charter for Regional & Minority Languages (1992).
Framework Conv. for the Protection of National Minorities (1995).
European Conv. on Exercise of Childrens Rights (1996)
European Conv. on Human Rights & Biomedicine (1997)

Europe: CoE System – Institutions

Secretary-General

Head of CoE Secretariat
Serves as depository for ratifications, reservations, renunciations
Receives collective complaints under Europ. Social Charter

Committee of Ministers

Primary decision-making body
Consists of foreign ministers or
deputies of member States
Executes Court judgments; considers new applications; monitors compliance; adopts resolutions.

Europe: European Union System

European Court of Justice (ECJ)

Highest court interpreting EU law
Initially reluctant to address HR issues but had to reconcile EU provisions with rights of nationals
European Court of HR (CoE) and ECJ
Overlaps jurisdictionally; may have conflict

Impact of EU System in HR

Pioneer in economic rights, incl. labor regulations
Strong work in combating discrimination
Regional authority on social rights

Human rights during emergency

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

Some human rights are absolute and may never, in any circumstances, be suspended.
However, states may suspend certain rights in emergencies under the terms of several international human rights treaties.
Derogations have therefore also been called “extraordinary limitations” on the exercise of human rights

UN Charter and Human Rights

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

Pre-UN International Effort: The League of the Nations (LN)

President Wilson in 1918 presented 14 points programme to end war and create a world dedicated to JUSTICE and FAIR Dealing.
The War ended after the Paris Peace Conference 1919.
Treaty of Versailles 1919 created the league of Nations.
The Covenant of the LN, including amendment, 1924
Total 26 Articles

Objectives of the LN

Adopted in order to promote international co-operation
To achieve international peace and security
Understanding of International Law as the actual rule of conduct among Governments
Maintenance of Justice for people.

Contribution of the LN towards Human Rights

Restoration of peace by friendly international relations
Dispute resolution through Council

Article 22 and 23 are Contributory

Article 23:

Principle of Well-being and Development of people of colonial territories
Freedom of Conscience and religion
Prohibition of abuses such as the slave trade

Article 23: Landmark

Secure and maintain fair and Humane conditions of labour for men and women and children
Just treatment
Traffic in women and children and drugs
Trade in arms
Freedom of communications and of transit and equitable treatment for the commerce
International concern for the prevention and control of disease.

Contribution of LN on Slavery

LN convinced most of the world to eradicate slavery and to halt the slave trade.
In 1924, the Council established a Temporary Slavery Commission and charged it with studying the existence of slavery throughout the world.
This led to the promulgation of the Slavery Convention of 1926.

Slavery: First Issue of Human Rights

According the Slavery and, Forced Labor Conventions
“the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”

WWII and establishment of UN

Franklin Roosevelt, in his 1941 State of the Union address, had stressed the importance of “four freedoms”

Freedom from Want
Freedom from Fear
Freedom of expression
Freedom of worship

UN History:

(International Peace Conference in The Hague in 1899 over 25 nations met for ten weeks to codify the laws of war)

1941 – Roosevelt and Churchill sign “Atlantic Charter”
1942 – 26 Allied nations sign Declaration by United Nations.
1944 – Blueprint of UN developed during Dumbarton Oaks Conference
1945 – 50 countries adopt Charter of United Nations on June 25 in San Francisco

UN HR System: 3 main components

Adoption of International HR Standards (binding and non-binding)
Monitoring mechanisms: Treaty-based Committees and Charter-based bodies such as Special Rapporteurs, experts, working groups,
Technical assistance through the Voluntary Fund for Advisory Services and Technical Assistance in the field of Human Rights.

UN HR Mechanisms

Charter-based
Treaty-based

UN Charter and Human Rights

Preamble
recognition of the inherent dignity and of the equal and unalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world…

Article 1 (3)
respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.
Article 55. Principle of equal rights and self-determination of peoples, the United Nations shall promote:

higher standards of living, full employment, and conditions of economic and social progress and development;
solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and
universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Article 56

All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.

Role of ECOSOC for Human Rights

Articles 61-72 of the UN Charter

Studies and reports with respect to international economic, social, cultural, educational, health, and related matters
Makes recommendations to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned.
Recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.
Prepares draft conventions for submission to the General Assembly
Calls international conferences with the rules prescribed by the UN
Coordinates the activities of the specialized agencies through consultation
Takes appropriate steps to obtain regular reports from the specialized agencies.
Communicates its observations on these reports to the General Assembly.
functions as within its competence in connection with the carrying out of the recommendations of the General Assembly.
Performs services at the request of Members of the United Nations and at the request of specialized agencies.
The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions. (Article 68)

Charter-based HR System

1946- Commission on Human Rights (CHR)
The Name and mandate was changed to COUNCIL OF HUMAN RIGHTS in 2006 by GA Resolution)
Sub-Commission on the Promotion and Protection of Human Rights.
Commission on Status of Women (CSW)
Commission on Crime Prevention and Criminal Justice,
UN specialized agencies, such ILO and WHO.
OHCHR since 1994

Role of NGOs:

The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned. (Article 71)

Development of HR treaty system

UDHR as Guardian of ALL HR Standards.
Drafted between January 1947 and December 1948 by eight-members Commission on Human Rights headed by Eleanor Roosevelt
Following over 1,400 votes the GA unanimously passed the Declaration on December 10, 1948,
eight abstentions Belarus, Czechoslovakia, Poland, Saudi Arabia, South Africa, the Soviet Union, Ukraine, and Yugoslavia.
Adopted in 10th Dec. 1948
As Landmark Declaration
30 Articles
Individual as a subject matter
Rights-based (Art. 29 Duty)
Both CPR and ESCR
Guidelines for Human Rights

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”.

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.

Principles of Fair Trial

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

Natural Justice;

Equality in arms;

No double jeopardy;

Res judicata

No retrospective application of law;

Presumption of innocence of the suspects and accused;

Benefit of doubt goes to the accused; and,

Proportionate punishment with the nature and gravity of crime.

Core provisions

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

Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.

Necessary steps:

To prevent and suppress the slave trade;
To bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.

Note:

The Convention also mentioned that “compulsory or forced labour may have grave consequences”

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.)