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Use of Indicators by the Human Rights Committee Martin Scheinin bo Akademi University Institute for Human Rights Background Paper No. 3 Is the CESCR a special case? – PowerPoint PPT presentation

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Title: Use of Indicators by the Human Rights Committee


1
Use of Indicators by the Human Rights Committee
  • Martin Scheinin
  • Ã…bo Akademi University
  • Institute for Human Rights

2
Background Paper No. 3
  • Is the CESCR a special case? Article 2.1
  • Each State Party to the present Covenant
    undertakes to take steps, to the maximum of its
    available resources, with a view to achieving
    progressively the full realization of the rights
    recognized in the present Covenant
  • Compare to CCPR article 2.1
  • Each State Party to the present Covenant
    undertakes to respect and to ensure to all
    individuals within its territory and subject to
    its jurisdiction the rights recognized in the
    present Covenant,

3
The Method Applied
  • The UNCOM database at SIM
  • http//sim.law.uu.nl/SIM/CaseLaw/uncom.nsf
  • indicator(s) 228
  • benchmark(s) 13
  • statistics gt250
  • disaggregated gt250
  • ... and a bit of intuition

4
What is an Indicator?
  • A quantitative or qualitative parameter that is
    empirical (data-based) in nature but is being
    used as a step in the legal/normative/
    interpretive assessment of treaty compliance
  • Rather the first than the last step precedes the
    contextual assessment of all relevant data and
    arguments
  • An indicator gives a direction for the process of
    compliance assessment, or, at best, creates a
    presumption of compliance/non-compliance

5
Right to Life (Article 6)
  • 2. In countries which have not abolished the
    death penalty, sentence of death may be imposed
    only for the most serious crimes in accordance
    with the law in force at the time of the
    commission of the crime and not contrary to the
    provisions of the present Covenant...
  • Abdool Saleem Yasseen and Noel Thomas v. Guyana
    (Communication No. 676/1996) The Committee
    recalls that it is axiomatic that legal
    assistance be available in capital cases. -gt
    violation of article 14 -gt violation of article 6

6
Humane Treatment of Detainees (Article 10.1)
  • All persons deprived of their liberty shall be
    treated with humanity and with respect for the
    inherent dignity of the human person.
  • Albert Womah Mukong v. Cameroon (458/1991),
    para. 9.3 As to the conditions of detention in
    general, the Committee observes that certain
    minimum standards regarding the conditions of
    detention must be observed regardless of a State
    party's level of developm-ent. These include, in
    accordance with Rules 10, 12, 17, 19 and 20 of
    the U.N. Standard Minimum Rules for the Treatment
    of Prisoners ... minimum floor space and cubic
    content of air for each prisoner, adequate
    sanitary facilities, clothing which shall be in
    no manner degrading or humiliating, provision of
    a separate bed, and provision of food of
    nutritional value adequate for health and
    strength.
  • Rule 19 Every prisoner shall, in accordance with
    local or national standards, be provided with a
    separate bed, and with separate and sufficient
    bedding which shall be clean when issued, kept in
    good order and changed often enough to ensure its
    cleanliness.

7
Delays before or pending trial (Articles 9 and
14)
  • 14.3 In the determination of any criminal charge
    against him, everyone shall be entitled to the
    following minimum guarantees...
  • (c) To be tried without undue delay
  • 9.3 Anyone arrested or detained on a criminal
    charge shall be brought promptly before a judge
    or other officer authorized by law to exercise
    judicial power and shall be entitled to trial
    within a reasonable time or to release.
  • The Committee uses comparative tables of its
    earlier case law, although emphasizing the
    contextual nature of its assessment

8
Electoral Rights (Article 25)
  • Every citizen shall have the right and the
    opportunity, without any of the distinctions
    mentioned in article 2 and without unreasonable
    restrictions (b) To vote and to be elected at
    genuine periodic elections which shall be by
    universal and equal suffrage and shall be held by
    secret ballot, guaranteeing the free expression
    of the will of the electors
  • Istvan Mátyus v. Slovakia (923/2000) 9.2 As
    regards the question whether article 25 of the
    Covenant was violated, the Committee notes that
    the Constitutional Court of the State party held
    that by drawing election districts for the same
    municipal council with substantial differ-ences
    between the number of inhabitants per elected
    representative, despite the election law which
    required those voting districts to be
    prop-ortional to the number of inhabitants, the
    equality of election rights required by the State
    party's constitution was violated. In the light
    of this pronouncement, based on a constitutional
    clause similar to the requir-ement of equality in
    article 25 of the Covenant, and in the absence of
    any reference by the State party to factors that
    might explain the differ-ences in the number of
    inhabitants or registered voters per elected
    repr-esentative in different parts of Rožòava,
    the Committee is of the opinion that the State
    party violated the author's rights under article
    25

9
Minority and Indigenous Peoples Rights (Article
27)
  • ... shall not be denied the right, in community
    with the other members of their group, to enjoy
    their own culture...
  • Ilmari Länsman et al. v. Finland (Communication
    No. 511/1992) the Committee notes that
    economic activities must, in order to comply with
    article 27, be carried out in a way that the
    authors continue to benefit from reindeer
    husbandry

10
Nondiscrimination (art 26)Indirect Discrimination
  • Cecilia Derksen, on her own behalf and on behalf
    of her daughter Kaya Marcelle Bakker v. the
    Netherlands (Communication No. 976/2001) The
    Committee recalls that article 26 prohibits both
    direct and indirect discrim-ination, the latter
    notion being related to a rule or measure that
    may be neutral on its face without any intent to
    discriminate but which nevertheless results in
    discrimination because of its exclusive or
    disproportionate adverse effect on a certain
    category of persons.

11
National Human RightsInstitutions/Paris
Principles
  • CCPR art. 2 (2) each State Party to the
    present Covenant undertakes to take the necessary
    steps, in accordance with its constitutional
    processes and with the provisions of the present
    Covenant, to adopt such laws or other measures as
    may be necessary to give effect to the rights
    recognized in the present Covenant
  • Concl.Obs. on Mali (2003) The State party should
    take appropriate measures to allow the National
    Advisory Comm-ission on Human Rights to function,
    in accordance with the Principles relating to the
    status of national institutions for the promotion
    and protection of human rights ("Paris
    Principles"), as set forth in General Assembly
    resolution 48/134
  • Project by the International Council on Human
    Rights Policy indicators and benchmarks approach
    to assess the performance of NHRIs.
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