TyroCity: Human Rights Law Notes

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.

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”

Art. 17: Privacy and WHR

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

Women’s privacy also relates to their personal life and reproductive functions. An example of such interference arises where the sexual life of a woman is taken into consideration in deciding the extent of her legal rights and protections

Reproductive rights: forced pregnancy, abortion, spacing etc.

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

Types of Human Rights

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

Individual (civil) rights
life, liberty, and security of the person; privacy and freedom of movement; ownership of property; freedom of thought, conscience, and religious belief and practice; prohibition of slavery, torture, and cruel or degrading punishment.

Rule of law
equal recognition before the law and equal protection of the law; effective legal remedy for violation of rights; impartial hearing and trial; presumption of innocence; and prohibition of arbitrary arrest.

Rights of political expression
freedom of expression, assembly, and association; the right to take part in government; and periodic and meaningful elections with universal and equal suffrage.

Economic and social rights
an adequate standard of living; free choice of employment; protection against unemployment; “just and favorable remuneration”; the right to form and join trade unions; “reasonable limitation of working hours”; free elementary education; social security; and the “highest attainable standard of physical and mental health.”

Rights of communities
self-determination and protection of minority cultures.

Three Generations (Phases) of Human Rights Philosophy

Enlightenment (17th-18th Century)
The first tier or “generation” consists of civil and political rights and derives primarily from the seventeenth and eighteenth-century political theories noted earlier which are associated with the English, American, and French revolutions. Think “life, liberty, and the pursuit of happiness.” This approach favors limiting government by placing restrictions on state action. The rights set forth in Articles 2-21 of the Universal Declaration of Human Rights include: freedom from discrimination; freedom from slavery; freedom from torture and from cruel, inhuman, or degrading treatment; freedom from arbitrary arrest and detention; the right to a fair and public trial; freedom of thought, conscience, and religion; freedom of opinion and expression; and the right to participate in government through free elections.

Socialist tradition (19th century)
The second generation of rights broadens the primarily political focus of of earlier views to include economic, social, and cultural rights. This view originates primarily in the socialist traditions of Marx and Lenin. According to this view, rights are conceived more in positive rather than negative terms, and thus encourage the intervention of the state. Illustrative of these rights are Articles 22-27 of the Universal Declaration of Human Rights. They include the right to social security; the right to work; the right to a standard of living adequate for the health and well-being of self and family; and the right to education.

The third generation of “solidarity rights” (20th century)
These views are a product of the rise and decline of the nation-state in the last half of the twentieth century. These rights have been championed by the Third World and remain somewhat controversial and debated. The specific rights include the right to political, economic, social, and cultural self-determination; the right to economic and social development; and the right to participate in and benefit from “the common heritage of mankind.”

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

Analytical Framework of Human Rights System

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

Under major systems, consider 4 “I”s:

Instruments (conventions, charters, etc.)
Institutions (commissions, courts, etc.)
Implementation (monitoring, reporting, complaints, etc.)
Impact (extent to which making a difference)

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.

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)

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

Basis of CRC

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

the child is an individual
the child has special needs
the child needs support and protection
the child’s integrity must be respected
the child’s right to express his/her opinion
the child has his/her own rights

The right to survival and development

The principle most directly related to children’s economic and social rights is formulated in the right to life article. The article goes further than just granting children the right not to be killed; it includes the right to survival and development which is formulated in Article 6:2 and states thus: “State parties shall ensure to the maximum extend possible the survival and development of the child.”

Non-Discrimination

One general principle as identified by the committee on the rights of the child is that all children should enjoy their rights and should never be subjected to any discrimination.
The obligation to provide equality of opportunities among children is expressed in Article 2, the first paragraph of which reads: “States parties shall respect and ensure the rights set forth in the present convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s parents or legal guardian, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, poverty, disability, birth or other status.”

The views of the child

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

The principle is formulated in Article 12:1 which states that “States parties shall assure to the child who is capable of forming his or her own views the rights to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.