TyroCity: Human Rights Law Notes

Basic Contents of Child Right Convention

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

The Convention is extraordinarily comprehensive.
best interest of the child as primary consideration (Article 3),
preservation of identity (Article 8),
children’s right to express opinions (Article 12),
prevention of abuse by those have care (Article 19)
adoption (Article 21),
health and access to care (Article 24),
right against torture and corporal punishment (Article 37),
consideration in treatment in penal matters (Article 40) and
dissemination of the principles and provisions of the Convention (Article 42).

Article 26: Equality before the law and equal protection of law

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

Examples of violation of article 26

Discrimination against women in areas such as social security laws (Broeks v. Netherlands, 1987; Zwaan de Vries v. the Netherlands, 1987)

Citizenship or rights of non‑citizens in a country (Aumeeruddy‑Cziffra et al. v. Mauritius, 1981).

Laws which impose more severe penalties on women than on men for adultery or other offences also violate the requirement of equal treatment.

States parties should review their legislation and practices and take the lead in implementing all measures necessary to eliminate discrimination against women in all fields, including private fields.

Art. 27: Minorities and WHR

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

The rights which persons belonging to minorities enjoy under article 27 of the Covenant in respect of their language, culture and religion do not authorize any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law.

(communication No. 24/1977, Sandra Lovelace v. Canada, Views adopted July 1981)

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.

Provision under UN and Regional Conventions

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

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”

Who are Minority

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

All states have minority populations that belong either to a national, ethnic, religious, cultural, or linguistic group, and which may be distinguished from the numerical majority.

There is no formal definition in international law of who constitutes a minority, there appears to be a consensus that a “numerically smaller, non-dominant group distinguished by shared ethnic, racial, religious, or linguistic attributes” captures the meaning of the term.

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992.

In 1979, Francesco Capotorti, who was the Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, formulated the most widely used definition of a minority.

A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the state – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.

Public participation Art. 25: Political rights and WHR

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

Positive measures to promote and ensure women’s participation in the conduct of public affairs and in public office, including appropriate affirmative action.

Statistical information on the percentage of women in publicly elected office, including the legislature, as well as in high‑ranking civil service positions and the judiciary.

Concept of Fair Trial

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

Fair means having the qualities of impartiality and honesty. It is free from prejudice, favoritism and self interest. A fair trial does not mean fair judgment but it means, “Getting a fair judgment through legal means or due process.” Means to get the truth includes the investigation conducted by the police, Prosecutors defense lawyers, and how to prove evidence during the trial.

The right to fair trial is a core element in the concept of rule of law, as well as for the protection of human rights.

The protection of the right to a fair trial in civil and criminal proceedings is vital in any democratic society.

The term ‘fair trial’ comprise all processes of criminal justice commencing from the investigation to ultimate stage of trial.

Fair trial is for ensuring scientific mechanism of crime investigation and imposition of punishment for public safety. Therefore, notion of fair trial requires very scientific approach of functioning of all the agencies involved in investigation, prosecution, adjudication and administration of correctional systems.

Fair trial has been central concern of international community in respect of protection, promotion and fulfilment of civil and political rights throughout world. It has been considered as most crucial measure required to be applied for the administration of justice, particularly, the criminal justice.

In a fair trial,

Examination of allegation is done. It is performed by prosecutor.

Examination of evidence is done. It is performed by defense lawyer.

Liability is determined. It is carried out by the Judge.

Why is Fair Trial needed?

State v. Individual

Suspect is in Custody

Suspect is affected by Circumstances

Suspect May Lack Resources

How Fair Trial work in the Criminal Proceedings?

Minimize the Danger of Police Power being Abused.
Safeguards against Illegal and Improper Interference,
Protects Suspects Rights relating to Arrest and Detention.

Possible HR Violations

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

Ill behavior or treatment
Illegal or arbitrary arrest and detention
Torture, cruel, inhumane or degrading behavior
Extra Judicial Killings
Disappearance
Excessive use of force
Others

Development of Rights of the Child in the UN

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

First mention of the ‘rights of the child’ in 1924 when the Assembly of the League of the Nations passed a resolution endorsing the ‘Declaration of the Rights of the Child’ promulgated by the Council of the non-governmental ‘Save the Children International Union.’
In 1948, it served as the basis for a slightly expanded, seven-point Declaration adopted by the General Assembly of the newly constituted UN.
Declaration of the Rights of the Child adopted by UN GA on November 20, 1959, which is still valid today.
The essential theme underlying all of these non-binding declarations was that children need special protection care and priority .
In 1978, Poland tabled a proposed convention, modeled closely on the 1959 Declarations but it failed to gain support.
An open-ended Group of the UN Commission on HR was established, and met from 1979 until 1988 when the draft of the present Convention was completed and sent to the General Assembly for adoption.
The convention not only covers the traditionally defined human rights like, civil, political, economic, social and cultural rights but it constitutes a major leap forward in standard-setting on children’s issues.

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

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.