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Human Rights

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Origins, philosophical discourse and development until WW II. Three ... Clawback clauses, No general clause (jfr ECHR art 15) instead 'clawback clauses' ... – PowerPoint PPT presentation

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Title: Human Rights


1
Human Rights PIL 2007 Mark Klamberg

2
  • 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

3
  • Philosophical Discourse
  • Natural Law Based on Religion
  • Natural Law Based on Reason
  • Renaissance after WW II

4
  • Three Phases After WW II
  • Articulation of Rights
  • Binding Norms and Control Mechanisms
  • Consolidation and Unification

5
  • The Universal Declaration of Human Rights
  • Eleanor Roosevelt chairperson of the HR
    commission
  • Ratification?
  • Binding?
  • Importance?
  • Content

6
  • 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

7
  • 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)

8
  • 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.

9
  • Treaty Committees
  • Independent experts
  • States submits reports on their implementations
    of the rights in the instrument
  • Inter-state complaints
  • Individual complaints procedure
  • General comments

10
  • 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

11
  • 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)

12
  • 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)

13
  • 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

14
  • 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.

15
  • 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

16
  • 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

17
  • 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)

18
  • 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)

19
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.
20
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

21
  • 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

22
  • 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

23
  • 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

24
  • 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)

25
  • 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
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