aust handbook of international law

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Aust Handbook of International Law

Chapter 11 Human Rights

International Humanitarian Law (IHL) refers to that area of international law concerned with

the protection of members of armed forces and civilians during an armed conflict or militaryoccupation of territory.

Human rights do not cease completely to apply once IHL applies, continues except forspecial rules or human rights treaties have been derogated from

IHL and human rights should not member states of NATO, since under European Courtof Human Rights (ECHR) jurisdiction is essentially territorial

Rights applies to natural person and some cases (ex: respect of property) apply to legalpersons

Legal Nature of a human right and exhaustion of domestic remedies

Rights are against the state, not private persons Remedies available in domestic law must first be exhausted, unless it would be

unreasonable to insist

Universal human rights treaties

In 1948, United Nations adopted the Universal Declaration of Human Rights whichprovides for the foundation for the treaties, universal and regional

Same year, Genocide Convention was adopted Commission on Human Rights (CHR) and the Third and Sixth Committees of the

General Assembly

Universal Declaration was followed by treaties on specific subjects such as:o Refugee Convention 1951o Conventions on Statelessness of 1954 and 1961o Convention on the Elimination of All Forms of Racial Discrimination 1966

(CERD)

Two general treaties adopted on 1966:o International Covenant on Civil and Political Rights (ICCPR)

More influential than ICESCR and has a monitoring mechanism, theHuman Rights Committee

o International Covenant on Economic, Social and Cultural Rights (ICESCR) Concerned with collective rights such as right of people to self-

determination

Does not include the right to development and despite the importance ofdevelopment, the assertion that it is a right in international law cannot be

sustained


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Other:o Convention on the Elimination of All Forms of Discrimination against Women

1979 (CEDAW)

o Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment 1989

Outline of the principal civil and political rights

A. Right to life ECHR Article 2, ICCPR Article 6 Taking a persons life must be in accordance with law, not arbitrarily ECHR provides for the specific circumstances when a person can be killed

such as in self-defence or to effect an arrest

Protocol No. 6, ECHR abolished death penalty except in connection with awar

The said protocol is binding on all parties to ECHR except Russia Protocol No. 13 abolishes death penalty in all circumstances ICCPR does not itself prohibit the death penalty but it must be limited to the

most serious crimes and not to be imposed retrospectively or carried out on a

pregnant woman.

United States reserved the right to execute a person (except pregnant woman)even if at the time of the crime he or she was under eighteen.

B. Prohibition of torture ECHR Article 3, ICCPR Article 7 No one shall be subjected to torture or inhuman or degrading treatment or

punishment

ICCPR adds cruel treatment or punishment and no one shall be subjected tomedical or scientific experiments without his free consent

Prohibition is also a customary international law Definition of torture (Article 1 of the Torture Convention 1984) Soering Case: extradition of a person to any (in practice, non-ECHR) state

where he is wanted for a crime for which he could be sentenced to death,

would, if he would then be likely to spend a lengthy period on death row, be a

breach of Article 3

The prohibition in Article 3 is absolute and not subject to any national securityexception, express or implied

C. Prohibition of slavery and forced labour ECHR, Article 4, ICCPR Article 8


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Forced or compulsory labour does not include labour as part of a criminalpunishment, military service, to deal with emergencies or normal civil

obligations

D. Right to liberty and security No one shall be deprived of his liberty except in accordance with law Anyone arrested or detained shall be told the reason and the charge, and shall

be brought promptly before a judge and entitled to trial within a reasonable

time

He shall be entitled to challenge without delay the lawfulness of his detentionbefore a court

E. Freedom of thought, conscience and religion ECHR Article 9, ICCPR Article 18 Freedom to change ones religion or belief either alone or in community,

public or private ICCPR adds that no one shall be coerced to adopt a religion or belief

F. Freedom of expression ECHR Article 10, ICCPR, Article 19 Everyone has the right to hold opinions and to receive and impart information

and ideas without inference by public authority and regardless of frontiers

G. Freedom of assembly and association ECHR Article 11, ICCPR Articles 21-22 Everyone has the right to peaceful assembly, freedom to associate with others,

and to form and join a trade union. Elaborated in Article 8 of the ICESCR

H. Right to marry ECHR Article 12, ICCPR Article 23 Goodwin case: It was a breach of the Article to bar totally a (male to female)

transsexual from marrying a man

I. Freedom of movement ECHR Protocol No. 4, ICCPR Article 12 Everyone lawfully within the territory of the state has liberty of movement

and the freedom to choose his residence

He is also free to leave a country, including his own A national shall not be expelled from his own state or arbitrarily prevented

from entering it

United Kingdom is not a party to the Protocol and has entered a reservation tothe Covenant in effect reserving the right to control immigration

J. Right to free elections


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ECHR Protocol No. 1, Article 3, ICCPR Article 25 Elections must be held by secret ballot to allow every citizen to give free

expression

K. Right to property ECHR Protocol No. 1 The right not to deprived of possession enjoyed by natural and legal persons,

except in the public interest and in accordance with the law

General rule: Deprivation without compensation would be a breacho However, right of a state to enforce such laws as is deems necessary to

control the use of property in accordance with the general interest is

not affected and usually not require compensation

L. Right to education ECHR Protocol No. 1 and ICESCR Article 13

M.Prohibition of discrimination ECHR Article 14, ICCPR Article 26 No one shall be discriminated against on any such grounds by a public

authority

o Sexo Raceo Colouro Languageo Religiono Political or other

opinion

o Nationalo Social origino Association with a national minorityo Propertyo Birth or other status

General qualifications to rights

Although some in the ECHR and the ICCPR are absolute, others either have specificconditions or are qualified in general terms

ECHR allows margin of appreciation in complying with the broader cases involvingpersonal morality

o The margin of appreciation doctrine allows the court to take into effect the factthat the Convention will be interpreted differently in different member states

Enforcement

Human rights convention needs not only an international machinery, such as aninternational court or tribunal, but also domestic legal mechanisms by which


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judgements of the international court or tribunal can be properly implemented, either

by paying compensation or by changing the law or both

A. European Court of Human Rights (ECHR) The Courts jurisdiction extends to all matters concerning the interpretation or

application of the ECHR.

Who can make an application: individual, legal person, NGO or group of individuals,member state against another member state (inter-state case)

Application will not be admissible unless all local remedies have first been exhausted Applications and pleadings available to the public Requirements:

o It must be made within six monthso Applications can be made in any official language of a member state, but if

declared admissible, all subsequent documentation must be in an official

language of the Court (English or French)

The Court sits either as:o Committees of three judgeso Chambers of seven judgeso Grand chamber of seventeen judges

Application is first examined by a Rapporteur (one of the judges) who decideswhether it should go to a Committee or straight to a Chamber

Committee by unanimous vote may declare inadmissible or strike out an individualapplication

Chamber will decide by majority vote the admissibility of the case If the case raises a serious question of interpretation of ECHR or judgement is

inconsistent with the previous judgement of the Court, the Chamber may, before

giving judgement, relinquish jurisdiction to the Grand Chamber

o Provided, no party to the case objects Most of facts and legal arguments are presented in writing Human Rights Commission is composed of nationals of parties, mostly judges or

professors of law elected by secret ballot of the parties to serve in a personal capacity

for a four year, renewable term.

HRC meets three times a year in New York and GenevaB. Reports

A state must submit a report in how it is implementing the ICCPR to the HRCwithin one year of becoming a party and every five years, ad hoc reports can also

be requested

HRC also accepts information from NGOs Representatives of each state are questioned in a public hearing about the reports


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If a state fails to submit a report, the HRC can still consider the matter and give itsviews

C. General Comments HRC is empowered to issue General Comments on implementation of ICPPR It has issued thirty-one general comments May be regarded as a secondary source of international law

D. Individual Complaints Petitioner must first exhausted all available domestic remedies, provided those

remedies have not been unreasonably prolonged

State has six months to respond HRC will not consider a communication that is already being investigated under

another international procedure

Difference of HRC to ECHR:o HRCs views are not binding and there is no prescribed sanction for

ignoring them, chief weapon of the HRC being publicity

Summary of Activities is published in the HRCs annual report to the UN GeneralAssembly

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