Transcript INTRODUCTION TO INTERNATIONAL LAW

OVERVIEW OF THE GLOBAL PRACTICE AND
PROMOTION OF HUMAN RIGHTS
BY
PROF. MUHAMMED TAWFIQ LADAN (PhD)
DEPARTMENT OF PUBLIC LAW, FACULTY OF LAW
AHMADU BELLO UNIVERSITY, ZARIA, KADUNA STATE, NIGERIA.
Email: [email protected], [email protected], [email protected]
Blogsite: http://mtladan.blogspot.com/
BEING A PRESENTATION MADE AT
THE INTERNATIONAL HUMAN RIGHTS TRAINING
PROGRAMME
ORGANIZED BY
NIGERIAN INSTITUTE OF ADVANCED LEGAL STUDIES, LAGOS
VENUE: - NIALS LAGOS
DATE: - 31ST October -2nd November, 2012
2.
SOURCES OF INTERNATIONAL LAW
Today, there are 8 sources of international law divided
into traditional and non-traditional sources.
5 Traditional Sources
Subsidiary (2)
Principal (3)
Treaty
Customary
Rules of
International
Law
General
Principles
of Law
Judicial
Decisions
Writings of the
most highly
qualified Scholars
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SOURCES OF INTERNATIONAL LAW (Cont’d)
According to Article 38(1) of the Statute of the ICJ
the five traditional sources recognized under
international law are as follows: Treaty: - means an international agreement
concluded between states or parties – may be
bilateral /multilateral and may be called any of the
following names/types: - charter, convention,
covenant, Protocol.
– Effect of ratification of a treaty.
– Effect of domestication of a treaty into national law:
- See Agbakoba v. director of SSS (1994) 6 NWLR
(pt.351) 475; Abacha v. Fawehinmi (2000)6 NWLR
(pt. 660) 228.
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SOURCES OF INTERNATIONAL LAW (Cont’d)
Custom: - is evidence of a general practice accepted
as law. This can be established by the existence of
bilateral/multilateral relations between states based
on the belief of the existence of a legal obligation (i.e.
opinion juris-legal belief or state practice). E.g., the 4
Geneva Conventions and the Hague Conventions (on
conduct of war, treatment of prisoners of war etc) and
the entire provisions of the Universal Declaration of
Human Rights of 1948.
General Principles of Law: - Are principles of equity
and rules emanating from justice and considerations
of public policy.
4
SOURCES OF INTERNATIONAL LAW (Cont’d)
Judicial Decisions: - of international courts and
tribunals such as the ICJ, ICC, ICTY, ICTR, UN Special
Court for Sierra-Leone, European Court of Justice,
European Court of Human Rights, African Court of
Human Rights, Inter-American Court of Human Rights,
ECOWAS Court of Justice, etc.
5
SOURCES OF INTERNATIONAL LAW (Cont’d)
Writings of Scholars/Jurists/Commentators: - of long
standing research and experience rooted in their fields of
specialization are relied upon for trustworthy evidence of
what the law really is and not what it ought to be.
Non Traditional Sources
Pre-emptory Norms
Resolutions of International
Organizations
Non-Binding Standards
(Soft Law)
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SOURCES OF INTERNATIONAL LAW (Cont’d)
The three non-traditional sources of international law
are: Pre-emptory Norms: - are final/absolute/mandatory
norms recognized and accepted by the international
community as a whole from which no derogation is
allowed by any treaty or municipal law, else void.
– Also known as Rules of Jus Cogens.
– E.g., the absolute prohibition of torture and slavery or the general
norm prohibiting the use of force in the internal affairs of a
sovereign state or the promotion and protection of the right to
life.
Resolutions of public international Organisations/
Institutions: - UN, AU, EU, ECOWAS etc resolutions on
given subject matters constitute a source of international
law with respect to the matters in question.
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SOURCES OF INTERNATIONAL LAW (Cont’d)
Non-binding standards (Soft law): - Are those rules of
conduct, statements, principles, policies not intended to be
legally binding but are expressions of intent by the
international or regional community in a given topical/critical
issue of interest to all.
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INTERNATIONAL HUMAN RIGHTS LAW
The scope of this lecture is restricted to the
following Classification of International Human
Rights Law.
1. International Human Rights Law (IHRL)
Meaning and Scope: - IHRL is that branch of public
international law that aims at protecting the
internationally guaranteed rights of individuals and
groups against violations by state etc.
9
INTERNATIONAL HUMAN RIGHTS LAW (Cont’d)
Scope of Internationally Guaranteed Human Rights
1st Generation
Civil & Political Rights
Life, liberty, human dignity,
expression, movement, assembly,
religion, fair hearing association,
equality before the law, equal
protection, own property, political
participation, etc.
Migrants,
Refugees &
IDPs
Women
and
Children
2nd Generation
Economic, Social &
Cultural Rights
Persons Living
with HIV-AIDS
3rd Generation
Rights of Vulnerable
Groups
Victims of trafficking,
crime (genocide,
CAH, War Crimes)
and abuse of power
Housing, food, self determination, work/employment ,
social security, family protection and assistance, adequate
standard of living, gender equality, health (physical,
mental, reproductive and sexual health), education and
cultural life
Environmental,
Developmental Rights
Minorities
Disabled
Persons/ the
Aged
Ethnic, Linguistic, Cultural,
Political, Religious, Racial,
Sexual, indigenous people
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INTERNATIONAL HUMAN RIGHTS LAW (Cont’d)
Development and Impact: - The post 1945 phenomenon led
to the emergence of this branch of international law resulting
into the coming into force of the UN Charter of 1945, the
Universal Declaration of Human Rights of December 10, 1948,
the 1966 International Covenants on Civil and Political Rights
and on Economic, Social and Cultural Rights among others, the
regional human rights instruments in Africa, Europe and
America: - i.e. the African Charter on Human and Peoples’
Rights, the European Convention of Human Rights, the InterAmerican Convention on Human Rights etc.
IHRL is said to have impacted on the concept of legal
personality in international law which pre-2nd World War
excluded individual human beings. This was done by explicitly
recognizing individual human beings as legal persons
deserving protection of their human rights against the state.
Also IHRL rejected the claim of states under the concept of
sovereignty of exclusive domestic jurisdiction in human rights
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violations
INTERNATIONAL HUMAN RIGHTS LAW (Cont’d)
Enforcement and Monitoring Mechanisms: - There are 3 perspectives to
this effect.
Enforcement/Monitoring Mechanisms of Human Rights
UN Treaty Monitoring Bodies
Regional Human
Rights Bodies
ICCPR = Committee on CCPR
ICESCR = Committee on CESCR
ICEDR = Committee on CERD
UN CEDAW = Committee on CEDAW
UN CRC = Committee on CRC
UN CAT = Committee on CAT
Africa
African Commission on
Human & Peoples’
Rights
UN Charter-based
Bodies
Economic and Social Council (ECOSOC)
UN Commission on Human Rights
UN High Commissioner for Human Rights
UN Human Rights Council – Universal Peer Review (UPR)
Europe
Africa Court of
Human Rights
European Court of
Human Rights
America
Inter-American
Commission on Human
Rights
Inter-American Court of
Human Rights
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INTERNATIONAL HUMAN RIGHTS LAW (Cont’d)
Domestic Implementation of International/Regional Human Rights Instruments
Ratification of
Human Rights
Treaties
Incorporation into
National Law
Enforcement in a Court of
Law (case law: - Abacha v.
Fawenhimi and Agbakoba v.
DSSS)
Monitoring Compliance by
National Human Rights
Commissions and Public
Complaints Commission,
Consumer Protection Councils
etc
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TABLE ON STATUS OF RATIFICATION OR SIGNATURE BY NIGERIA OF
INTERNATIONAL AND REGIONAL LEGAL INSTRUMENTS ON HUMAN
RIGHTS: AS OF JUNE 2010
PREPARED BY PROF. M.T. LADAN, FACULTY OF LAW, ABU, ZARIA
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15
16
17
The Table below indicates the United Nations International Legal
Instruments on Human Rights that Nigeria has neither signed nor
ratified: As of October 2010
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19
20
LIST OF DOMESTICATED IHL/IHRL TREATIES/NATIONAL IMPLEMENTING
LEGISLATIONS/DRAFT DOMESTICATION BILLS IN NIGERIA: - 1960 - 2009
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WHY ARE HUMAN RIGHTS OF FUNDAMENTAL
VALUES TO ECOWAS
First, because all ECOWAS member states are committed to
their obligations under the ECOWAS revised treaty to promote
and protect community citizens’ rights guaranteed under
international human rights law (including the African Human
Rights regime).
Hence, in July 1991, ECOWAS Heads of States adopted a
Declaration of Political Principles, the preamble of which
reaffirmed the need for the creation of a Stable and secure region
in which peoples of West Africa can live in freedom under law
and for concerted regional action to promote democracy “on the
basis of political pluralism and respect for fundamental rights as
embodied in universally recognized international instruments on
human rights and in the African charter on Human and peoples’
Rights. In the Declaration, the ECOWAS States undertook as
follows:
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WHY ARE HUMAN RIGHTS OF FUNDAMENTAL
VALUES TO ECOWAS ( Cont’d)
We will respect human rights and fundamental freedoms in
all their plenitude, including in particular, freedom of thought,
conscience, association, religion or belief for all our peoples
without distinction s to race, sex, language or creed. We will
promote and encourage the full enjoyment by all our peoples of
their fundamental human rights, especially their political,
economic, social, cultural, and other rights inherent in the dignity
of the human persons and essential to his free and progressive
development.
In the framework of the Revised ECOWAS Treaty, including
its accompanying protocols, human rights are recognized as
fundamental principles of the Community, rights in factor mobility,
substantive State obligations, and as obligations enforceable by
the ECOWAS Court of Justice.
23
WHY ARE HUMAN RIGHTS OF FUNDAMENTAL
VALUES TO ECOWAS ( Cont’d)
Second, because all ECOWAS member states are either
signatories to, or both signatories and state parties to, the core African
human rights treaties (African Charter on Human and Peoples’ Rights,
Protocol to the African Charter on Human and Peoples’ Rights on the
rights of women in Africa, Protocol on the establishment of an African
Human Rights Court to the African Charter and AU Charter on the
Rights and Welfare of the Child). Hence, their commitments to the
African Charter on Human and Peoples’ Rights of 1981 which came
into force in 1986. By recognizing the above values of International
human rights standards, the African Charter provides for the following
five main categories of rights and duties:
– Individual civil and political rights under articles 2 – 13 including the right to
free movement, seek asylum and to participate in democratic governance;
– Economic, social and cultural rights under articles 14 – 18 ranging from
right to own property, work, health, education, family protection, and
special protection to the elderly and the disabled;
24
WHY ARE HUMAN RIGHTS OF FUNDAMENTAL
VALUES TO ECOWAS ( Cont’d)
– Rights of peoples’ under articles 19 – 24: self determination,
socio-economic and cultural development, peace and security
and a healthy and safe environment;
– Duties of states under articles 1, 25 and 26: respect, promote,
protect the rights: guarantee independence of the judiciary,
etc.
– Duties of individuals under articles 27 – 29: promote welfare/to
other individuals, family, community, state for peace and
security.
25
REGIONAL MECHANISMS FOR HUMAN RIGHTS
PROTECTION: AFRICA, EUROPE AND AMERICA
The African human rights system for long endured
the lack of an effective protection mechanism for the
rights guaranteed in the African Charter. The African
Commission, which was charged with responsibility to
promote and ensure the protection of these rights, was
constrained in its protective function by the mere
advisory powers given to it by the Charter. The African
court was, therefore, established to complement and
reinforce the protective mandate of the African
Commission.
26
REGIONAL MECHANISMS FOR HUMAN RIGHTS
PROTECTION: AFRICA, EUROPE AND AMERICA (Cont’d)
The African Commission on Human and Peoples’ Rights
was established under the African Charter on Human and
Peoples’ Rights in 1987. The Commission consists of 11 parttime commissioners and is based in Banjul, The Gambia the
Commission meets twice a year for up to two weeks at a time in
regular sessions, either in The Gambia or in other African
countries. The current Rules of Procedure of the Commission,
prescribing how it functions internally, were adopted by the
African commission in Praia, Cape Verde, in October 1995.
With the establishment of the African Court it is foreseen that
these Rules of Procedure will be revised in the near future.
The ACHPR has also developed guidelines for National
Periodic Reports since 1998 to monitor compliance with human
rights in Africa by state parties. It has issued several concluding
observations on periodic reports.
27
REGIONAL MECHANISMS FOR HUMAN RIGHTS
PROTECTION: AFRICA, EUROPE AND AMERICA (Cont’d)
It has decided on several human rights cases and passed
the following resolutions: Electoral Process and Participatory Governance (1996)
Observer Status for National Human Rights Institutions (1998)
Criteria for Observer Status for NGOs (1999)
Dakar Declaration on the Right to a Fair Trial (1999)
Death Penalty (1999)
HIV/AIDS (2001)
Principles on Freedom of Expression (2002)
Robben Island Guidelines on Torture (2002)
Principles and Guidelines on the Rights to a Fair Trial (2003)
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Resolutions (Cont’d)
Human Rights Defenders (2004)
Refugees (2004)
Special Rapporteur on Freedom of Expression (2004)
Economic, Social and Cultural Rights in Africa (2004)
Status of Women in Africa (2005)
Impunity (2005)
Terrorism (2005)
Darfur (2005)
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REGIONAL MECHANISMS FOR HUMAN RIGHTS
PROTECTION: AFRICA, EUROPE AND AMERICA (Cont’d)
See sample guidelines for periodic reporting:
Guideline for National Periodic Reports under the African
Charter (1998)
The general guidelines (adopted in 1989) for the reports for
the reports that the state parties are required to submit every
two years (per article 62 of the Charter) and that are considered
by the African Commission are reprinted in Human Rights Law
in Africa 2004 p 569 and further, and are also available on
www.chr.up.ac.za. The African Commission adopted the
simplified guidelines reprinted below as a supplement to the
initial guidelines in 1998.
An initial report (the first report) should contain a brief history of
the state, its form of government, the legal system and the
relationship between the arms of government.
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Guideline for National Periodic Reports under the
African Charter (1998) (Cont’d)
The initial report should also include the basic
documents – the constitution, the criminal code and
procedure and landmark decisions on human rights.
The major human rights instruments to which the
state is a party and the steps taken to internalize
them.
How is the state party implementing the following
rights protected by the Charter:
– Civil and political rights;
– Economic, social and cultural rights; and
– Group rights?
31
Guideline for National Periodic Reports under the
African Charter (1998) (Cont’d)
What is the state doing to improve the condition of the
following groups mentioned in the Charter:
– Women;
– Children; and
– The disabled?
What steps are being taken to protect the family and
encourage its cohesion?
What is being done to ensure that individual duties are
observed?
What are the problems encountered in implementing
the Charter with regard to the political, economic or
32
social circumstances of the state?
Guideline for National Periodic Reports under the
African Charter (1998) (Cont’d)
How is the state carrying out its obligations
under article 25 of the Charter – on human
rights education?
How is the state, as an interested party, using
the Charter in its international relations,
particularly in ensuring respect for it?
Any other information relevant to the
implementation and promotion of the Charter.
33
REGIONAL MECHANISMS FOR HUMAN RIGHTS
PROTECTION: AFRICA, EUROPE AND AMERICA (Cont’d)
The African Court holds great promise for the defence and
advancement of human rights in Africa. Its jurisdictional and
jurisprudential evolution should, therefore, be systematically tailored
to ensure its effectiveness. Accordingly, this fledging continental
cum judicial human rights institution would benefit, by gleaning
lessons, from the example and experiences of similar continental
courts like the European Court of Human Rights and the InterAmerican court of Human rights.
The Protocol on the establishment of African Human Rights
Court was adopted on June 9, 1998 and came into force on 25
January 2004. Presently 24 out of the 53 AU member countries
have ratified the Court’s Protocol. Of this number, 9 West African
States have ratified the Protocol.
Since 2nd July 2006 when the first eleven judges were sworn in,
the African Human Rights Court obtained temporary offices for the
34
seat of the court in Arusha, Tanzania in September 2007.
COMPOSITION OF THE COURT
The African court consists of 11 judges of high moral character
and competence, each a national of a member state of the AU but
elected in an individual capacity (Art. 11 of the Protocol to the
African Court). The judges are elected for six-year terms and may
be re-elected once. They serve on part-time basis except for the
president (art. 15). This is basically the same system as the InterAmerican Court while the judges of the European Court work full
time. The possible challenge here is that as the African Court proves
its effectiveness over time, its caseload would grow beyond what
part-time judges can handle.
Also, although judicial independence is guaranteed in the same
way in all three courts, judges in the African Court, unlike their
counterparts in the European Court of Human Rights and the Inter
American Court of Human Rights, do not sit in cases which affect a
country of which they are a national (Art. 17).
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JURISDICTION
The African Court is competent to interpret and apply the
African charter (Art. 3), the same way the European Court of
Human Rights and the Inter American Court of Human Rights
have jurisdiction to interpret and apply their respective regional
instruments for the protection of human rights. For the European
Court, this is an exclusive competency, while the African and
Inter-American Courts share it with their respective Regional
Human Rights Commissions.
But the jurisdiction of the African Court is, in some respects,
wider than that of the other two Courts. The African Court
protects not only civil and political rights, following the example of
other regional conventions, but also social, economic and cultural
rights. More so, the jurisdiction of the African Court, unlike the
other two courts, extends to “any other relevant human rights
instruments ratified by the states concerned”.
36
ACCESS TO THE COURTS
Access to the African Court is open, by right, to the African
Commission, State parties and African intergovernmental
organizations (Art. 5). The right of individuals and NGOs with
observer status before the Commission is dependent on
whether the State has made a declaration on Art. 34(6) of the
Protocol accepting the competence of the Court to receive
such petitions.
In the Inter-American Court system only State Parties and
the Inter-American Commission can submit cases to the Court.
Individuals and legally recognized NGOs can only submit
cases to the Commission. If the Commission so decides, it can
pass the case on to the Court for a ruling. In both cases, the
competency of the Court is optional and is limited to states,
which have explicitly accepted its jurisdiction.
37
ACCESS TO THE COURTS (Cont’d)
The system in the European Court, before the coming into
force of Protocol II to the European Convention, was similar to
that adopted by the African Court. However, since the
ratification of Protocol II in 1998, the right of individuals or
NGOs who believe that they have been victims of a human
rights violation is guaranteed by the European Convention. On
23 October 2007, in the case of Colibaba v. Moldova, the
European Court of Human Rights handed down a judgement
reaffirming the right of individual petition to the Court.
The African system could take a cue from the reforms in
the European court and make provisions to enhance individual
and NGO access to the Court. This would require encouraging
state parties to make declarations on Art. 34(6) of the Protocol.
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RELATIONSHIP WITH REGIONAL
HUMAN RIGHTS COMMISSION
By Article 2 of its Protocol, the African Court has a
complementary relationship with the African Commission in its
protective mandate; the promotion of human rights being the
exclusively reserve of the Commission. Thus, the Court shall
receive cases from the Commission (Art. 5(1)), may request
the opinion of the Commission when deciding the admissibility
of a case instituted under Art. 5(3) (Art. 6(1)) and may transfer
cases to the Commission (Art. 6(3)). The Court shall also
consult the Commission as appropriate in drawing up its rules
and procedure (Art. 33). However, the Court shall not give
advisory opinion to state parties on any subject matter related
to a matter being examined by the Commission (Article 4).
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Relationship with Regional Human
Rights Commission (Cont’d)
In the Inter-American Court, all communications must pass before
the Inter-American Commission before being submitted to the Court.
The Commission decides on its admissibility and prepares a report on
the facts of the case and its conclusions. Only the state concerned or
the Commission can decide to send the matter to the Court. This
system functions badly and during the first ten years of its existence,
the Inter-American court received no cases from the Commission. In
the European court, a similar system existed until 1998 and the
ratification of Protocol II of the European Convention. Protocol II
abolished the European Human Rights Commission and enlarged the
European Court, assigning to it functions and powers which were
previously held by the Commission.
The African Court, to be effective in the discharge of its shared
protective function, must, therefore, build and maintain a good
complementary relationship with the African Commission, otherwise it
might repeat the first-decade experience of the Inter-American Court.
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PROCEDURE BEFORE THE
REGIONAL HUMAN RIGHTS COURTS
The procedures in all three regional courts are
basically the same. Hearings are held in public except
in exceptional circumstances and all three Courts
receive both oral and written evidence. They also all
follow the adversarial principle. The African Court can
interpret and review its decisions (Art. 28). The InterAmerican Court can also interpret its decisions.
However, the European Court is the only Court of the
three where there is a possibility of appeal.
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COURTS’ DECISIONS AND ENFORCEMENT
Unlike the African Commission, the African Court can make
final and binding decisions through a judgement by a majority of the
judges. The African Court can also order the payment of fair
compensation or reparation (Art. 27). States parties undertake to
comply with and to carry out the decisions of the Court (Art. 30).
This system is the same in the other two Courts. More so,
compliance with the decisions of the African Court is monitored by
the Council and Ministers of the AU, which follows the example of
the European Court.
In conclusion, the African Court, if effective, holds a guarantee
of redress and remedy for the many violations of human rights within
the African system. It cannot, therefore, afford to be anything less
than effective in protecting the rights of the peoples of Africa. To this
end, it should be optimally operated, adequately accessed, and
substantially supported by state parties, civil society, individuals,
and indeed all stakeholders in the African human rights system. 42
THANK YOU
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