Human Rights

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Human Rights PIL 2007 Mark Klamberg

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• Outline
• Background
• Origins, philosophical discourse and development
  until WW II
• Three phases after WW II
• The UN system
• The Universal Declaration System of Human Rights
• Interlude I
• The Nature of Human Rights at Dispute
• The Core UN Human Rights Instruments
• Interlude II
• The Current UN Perspective of the Nature of Human
  Rights
• Treaty Monitoring Bodies
• The Human Rights Council
• The High Commissioner for Human Rights
• Control mechanisms summarized
• Regional mechanisms

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• Philosophical Discourse
• Natural Law Based on Religion
• Natural Law Based on Reason
• Renaissance after WW II

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• Three Phases After WW II
• Articulation of Rights
• Binding Norms and Control Mechanisms
• Consolidation and Unification

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• The Universal Declaration of Human Rights
• Eleanor Roosevelt chairperson of the HR
  commission
• Ratification?
• Binding?
• Importance?
• Content

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• Interlude I The Nature of Human Rights at
  Dispute
• Three generations
• Civil and Political Rights
• Economic, Social and Cultural Rights
• Group Rights
• Negative and Positive Rights
• Justiciability
• The Cost of Human Rights

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• The Core UN Human Rights Instruments
• International Convention on the Elimination of
  All Forms of Racial Discrimination (ICERD)
• International Covenant on Civil and Political
  Rights (ICCPR)
• International Covenant on Economic, Social and
  Cultural Rights (ICESCR)
• Convention on the Elimination of All Forms of
  Discrimination against Women (CEDAW)
• Convention against Torture and Other Cruel,
  Inhuman or Degrading Treatment or Punishment
  (CAT)
• Convention on the Rights of the Child (CRC)
• International Convention on the Protection of the
  Rights of All Migrant Workers and Members of
  Their Families (CMW)
• International Convention for the Protection of
  All Persons from Enforced Disappearance (not yet
  into force)
• Convention on the Rights of Persons with
  Disabilities (not yet into force)

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• Interlude II The Current UN Perspective on the
  Nature of HR
• Adopted at World Conference on Human Rights,
  Vienna 1993
• The Vienna Declaration and Programme of Action
• All human rights are universal, indivisible and
  interdependent and interrelated. The
  international community must treat human rights
  globally in a fair and equal manner, on the same
  footing, and with the same emphasis. While the
  significance of national and regional
  particularities and various historical, cultural
  and religious backgrounds must be borne in mind,
  it is the duty of all States, regardless of
  their political, economic and cultural systems,
  to promote and protect all human rights and
  fundamental freedoms.

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• Treaty Committees
• Independent experts
• States submits reports on their implementations
  of the rights in the instrument
• Inter-state complaints
• Individual complaints procedure
• General comments

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• Individual Complaints Procedure in Regard to the
  UN Core Conventions
• Committee on the Elimination of Racial
  Discrimination (CERD) may receive individual
  complaints in regard to states that have made a
  declaration in accordance with article 14 of
  ICERD
• Human Rights Committee (CCPR) may receive
  individual complaints in regard to states that
  have ratified the first optional protocol of
  ICCPR
• Committee on the Elimination of Discrimination
  against Women (CEDAW) may receive individual
  complaints in regard to states that have ratified
  the optional protocol of CEDAW
• Committee against Torture (CAT) may receive
  individual complaints in regard to states that
  have made a declaration in accordance with
  article 22 of CAT
• No individual complaint procedure in regard to
  ICESCR and CRC

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• Individual Complaints Procedure in Regard to the
  UN Core Conventions (continued)
• Quasi-judicial
• Exhaustion of domestic remedies (for example art
  41(1)(c) First Optional Protocol to ICCPR)

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• The Human Rights Council - schematics
• UNGA
• Human Rights Council Special
  rapporteurs
• i) Country
• ii) Issue
• Advisory Committee
• Complaint
• Procedure
• Working Group Working Group (HRC resolution
• on Communications on Situations 5/1, 2007)

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• The Human Rights Council
• Key features
• UNGA resolution 60/251 (2006) replaces Human
  Rights Commission
• Directly under the UNGA (not with ECOSOC as
  intermediary)
• 47 members
• UNGA may suspend member (requires two-thirds
  majority)
• Universal Periodic Review
• Three regular sessions per year, no less than ten
  weeks
• Possibility to hold special sessions

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• The High Commissioner for Human Rights (OHCHR)
• Secretarial support for the treaty monitoring
  bodies and special rapporteurs
• Mainstreaming of human rights ithroughout the UN
  system
• OHCHR's priorities are set out in its Strategic
  Management Plan and follow the Vienna Declaration
  and Programme of Action of the 1993 World
  Conference on Human Rights, and the Charter of
  the United Nations.

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• Control mechanisms summarized
• Prosecution
• States submits reports
• Inter-state complaints
• Individual complaints procedure
• Periodical Review in the Human Rights Council
• Complaint Procedure in the Human Rights Council
  (previously 1503-procedur)
• Special rapporteurs
• NGOs
• IGOs

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• Regional Mechanisms - Europe
• Council of Europe and the European Court of Human
  Rights
• The European Convention on the Protection of
  Human Rights and Fundamental Freedoms (1950)
• European Social Charter (1961)
• EU
• ECJ and Human Rights
• The Charter of Fundamental Rights of the EU
• OSCE

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• Regional Mechanisms
• ECHR and complaints
• 1. Admissibility,
• screening by committee, art 28
• chamber, art 29
• 2. Merits
• Chamber, art 29
• Relinquish jurisdiction, art 30
• 3. Appeal
• Panel of five, art 43(2)
• 4. Enforcement
• The committee of ministers, art 46(2)

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• Regional Mechanisms ECHR
• Individual Complaints
• Inter-State Complaints
• Jurisdiction may concern violations committed
  beyond the territory of a contracting party
• First generation rights
• Derogation in time of emergency (art 15)
• Domestic remedies must be exhausted (art 35)

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Regional Mechanisms ECJ and Human
Rights Stauder (1969) and Handelsgesellschaft
(1970) Respect for fundamental rights forms
an integral part of the general principles of law
protected by the Court of Justice and that the
protection of such rights, whilst inspired by the
constitutional traditions common to the Member
States, must be ensured within the framework of
the structure and objectives of the
Community. Nold (1974) Fundamental rights are
an integral part of the general principles of law
the observance of which the court ensures. In
safeguarding these rights the court is bound to
draw inspiration from the constitutional
traditions common to the member states and cannot
uphold measures which are incompatible with the
fundamental rights established and guaranteed by
the constitutions of these states.
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Example of Overlap Beetween the Two Courts

• Open Doors Counselling and Dublin Well (ECHR)
• At issue unjustified interference with the right
  to impart and receive information
• Freedom of corporate applicants to impart
  information (service lawful in other countries
  and crucial to womens health and well-being)
• Right of women of child-bearing age to receive
  information in event of pregnancy

• Grogan (ECJ)
• At issue the existence of a right to distribute
  information about services abroad
• Freedom to supply and advertise services
• Right to receive services and information on
  behalf of an economic operator abroad

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• Regional Mechanisms - Africa
• African Union (AU) replaced OAU
• The African Charter on Human and Peoples Rights
  (1981)
• The African Court on Human and Peoples Rights,
  established 2005
• The African Commission on Human and Peoples
  Rights

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• The African Charter on Human and Peoples Rights
• Distinctive features
• Provides both rights and obligations for
  individuals
• Three generations of rights
• States can limit rights, the rights are subject
  to national law
• Influenced both by the UN system and the
  historical tradition of Africa
• Three generations
• Civil and political rights art 3-14
• Economical, social and cultural rights art 15-18
• Peopless rights art 19-24

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• The African Charter on Human and Peoples Rights
• continued
• Clawback clauses,
• No general clause (jfr ECHR art 15) instead
  clawback clauses
• Does not need to be justified with democratic
  principles
• No principle of proportionality
• The states have full discretion
• Obligations in articles 27-29

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• Regional Mechanisms - America
• The Organisation of American States
• The Inter-American Commission on Human Rights
• The Inter-American Court of Human Rights
• American Convention on Human Rights (pact of San
  José)
• Additional Protocol to the American Convention on
  Human Rights in the Area of Economic, Social and
  Cultural Rights (Protocol of San Salvador)

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• Regional Mechanisms America
• Three mechanisms
• Residual power of the commission over non State
  Parties
• The commission monitor contracting States which
  accepts its compulsory jurisdiction
• The Court considers cases brought to it from
  States which accepts its compulsory jurisdiction