Transcript Slide 1

Day 1: Part II
Implementation and
identification of human rights
Key Questions
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Who is responsible for the implementation of
human rights?
What is the nature of their obligations?
How are these obligations operationalised in
the context of:
(a) civil and political rights; and
(b) economic social and cultural rights?
1. The burden bearers – perhaps not as
simple as it seems
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Under the Vic Charter….[day 2 detail]
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Under INL ….
2. The nature of the burden – how far
does it spread??
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Vic Charter [see day 2]
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INL – the tripartite typology
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Respect
Protect
Fulfill
Example: right to life – McCann v UK (ECHR);
Osman v UK (ECHR); Colle and Colle v Chief
Constable of Hertforshire [2007] EWCA Civ 325;
infant mortality
3. Operationalisation(I): civil and political
rights
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(a) general obligation
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Article 2(2)
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… each State party undertakes to take the
necessary steps… to adopt such legislative and
other measures as may be necessary to give
effect to the rights recognised in the present
Covenant
(b) Non derogable rights
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Article 4 ICCPR
1 . In time of public emergency which threatens the life of the nation
and the existence of which is officially proclaimed, the States Parties
to the present Covenant may take measures derogating from their
obligations under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such measures are
not inconsistent with their other obligations under international law
and do not involve discrimination solely on the ground of race,
colour, sex, language, religion or social origin.
2. No derogation from articles 6 (life), 7 (torture) 8 (paragraphs I and
2) (slavery), 11 (prison for K) 15 (non retrospective) 16 (person b/4
law) and 18 (thought, conscience and religion) may be made under
this provision
Example: torture
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Article 7 ICCPR
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No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment
[Cf: Vic Charter s 10
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A person must not be subjected to torture or
treated in a cruel, inhuman or degrading
way…(also prohibits medical experimentation)
Note also…
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Other treaties
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CAT art 1
CRC art 37
Rome Statute art 7
ECHR art 3
Geneva Conventions Common art 3
Giving meaning to c and p rights
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Consider:
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Principles of interpretation: ordinary meaning etc
Other treaties/resolutions/declarations etc
IN Jurisprudence: treaty bodies (General
Comments and concluding observations); IN
tribunals (ICJ and IN crim courts); other UN
mechanisms eg: special rapporteurs
Regional jurisprudence: Euro Court; Inter
American Court
Domestic jurisprudence
Case study: Giving meaning to torture
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Human Rights Committee General Comment 20 – conjunctive
approach
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Duty of states to protect against acts prohibited under art
7 whether inflicted by people acting in their official
capacity, outside their official capacity or in a private
capacity (para 1)
Complemented by requirement to treat all persons
deprived of their liberty with humanity and respect for the
inherent dignity of the human person (para 2)
Prohibition extends to physical and mental suffering
(para 5)
Not necessary to draw sharp distinctions between
different kinds of treatment; depend on nature, purpose
and severity of treatment applied (para 4)
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HRC cont’d
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Corporal punishment and prolonged solitary
confinement may violate prohibition (para 56)
Must not expose individ to danger of torture
et al upon return to another country by way of
extradition, expulsion or refoulement (para 9)
Compare: Euro Crt of Human Rights
Disjunctive Approach (Vic approach)
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Torture
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‘deliberate inhuman treatment causing very
serious and cruel suffering’:
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Ireland v United Kingdom (1978) 2 EHRR 35 para 167
special stigma attached
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eg: rape: Aydin v Turkey (1997)
Inhuman treatment or punishment
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Must attain minimum level of severity: depends on
c/t of case including duration of treatment, physical
and mental effects and sometimes the sex, age, and
state of health of the victim: Ireland v United
Kingdom (1978)
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No requirement that suffering be intended: Selcuk
and Asker v Turkey (1998) 26 EHRR 477
Degrading treatment
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Level of humiliation or debasement more than lawful
treatment: assessment relative and depends on all c/t
case, nature and context of punishment and method of
execution: Tyrer v United Kingdom
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Irrelevant that state or even public does not consider
treatment to violate prohibition and may well suffice
that the victim is humiliated in his own eyes even if
not in the eyes of others (para 32): Tyrer v UK
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Treatment which arouses feelings of fear, anguish or
inferiority capable of humiliating or breaking the
resistance of a person will amount to degrading
treatment: Ireland v United Kingdom (1978) 2 EHRR 25
Increasing standard…
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Eg: Tyrer v United Kingdom
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Convention is a living instrument which must be
interpreted in light of present day conditions
Thus court cannot but be influenced by the developments
and commonly accepted standards in the penal policy of
the member states of the COE in this field (judicial cp)
THUS degrading punishment
Selmouni v France (2000) 29 EHRR
403
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Having regard to the fact that the Convention is a living
instrument which must be interpreted in light of present day
conditions… certain acts which were classified in the past as
inhuman and degrading as opposed to torture could be
classified differently in the future… the increasingly high
standard being required in the area of the protection of human
rights and fundamental liberties correspondingly and
inevitably requires greater firmness in assessing breaches of
the fundamental values of democratic societies (para 101)
Examples
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Imprisonment: Price v UK (Euro Court)
Corporal punishment: A v UK (Euro Court)
Protection of kids: Z and others v UK (Euro Court)
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Art 3 enshrines one of the most fundamental values of
democratic society. It prohibits in absolute terms torture or
inhuman or degrading treatment or punishment. The
obligation requires States to take measures designed to
ensure that individuals within their jurisdiction are not
subjected to torture and other ill treatment administered by
private individuals. The measures should provide effective
protection in particular of children and other vulnerable
persons and include reasonable steps to prevent ill
treatment of which the authorities has or ought to have had
knowledge (see also Osman v UK re right to life)
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Death penalty: Pratt v Morgan (PC); Atkins v
Virginia(USSCrt); Roper v Simmons (US
SCrt); Makwanyane (SAfrican ConCrt)
Deportation/ Extradition: HRC; Soering
(Euro Court); Chalal (Euro Court)
Interrogation: Ireland v UK (Euro Court);
Public Committee against Torture (Israel
SCrt)
Detention conditions: Dybeku v Albania
(ECHR)- mental health care; Mamedova v
Russia (ECHR) - resources
(c) Rights subject to limitation
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Why are limitation clauses significant?
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*Sub Commission on Prevention of Discrimination
and Protection of Minorities ‘The Siracusa Principles
of the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights’
E/CN4/1985/4 (1985)
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[cf: section 7 Vic Charter – day 2]
Example: respect for privacy et al
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Eg: Article 17 ICCPR (see s13 Charter)
1. No one shall be subjected to arbitrary or
unlawful interference with his privacy, family,
home or correspondence, nor to unlawful
attacks on his honour and reputation.
2. Everyone has the right to the protection of
the law against such interference or attacks.
Ascertaining Meaning - what are the steps?
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1. General Principles
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2. Institutional commentary
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3. Comparative case law
Institutional Commentary
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Human Rights Committee General Comment 16
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Term unlawful means that no interference can take place except
in cases envisaged by law
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Arbitrary inference = intended to guarantee that even
interference guaranteed by law should be in accordance with the
provisions , aims and objectives of the Covenant and should be
reasonable in the circumstances
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Family = broad interpretation to include all those comprising the
family as understood in the society of the State concerned
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Home = place where person resides or carries out usual
occupation
Comparative Case law
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Eg: Privacy
Pretty v UK (2002) 35 EHRR 1 (ECHR)
Broad term which covers all aspects of
a person’s physical, psychological and
social identity and relationships
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Lawrence and Garner v Texas (USA)
… entitled to respect for their private lives and state
cannot demean their existence or control their destiny
by making their private sexual conduct a crime
It is a promise of the Constitution that there is a realm
of personal liberty which the govt may not enter
… times can blind us to certain truths and later
generations can see that laws once thought
necessary and proper in fact serve only to
oppress
Case study: freedom of
religion/expression - which one(s) would
you ban?
What kind of judge would you be?
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See:
R (on the application of Begum (by her
litigation friend, Rahman)) (Respondent) v.
Headteacher and Governors of Denbigh High
School (Appellants) [2006] UKHL 15
Multani and Multani v Commission Scolaire
Marguerite-Bourgeoys and AG of Quebec
2006 SCC
4. Operationalisation II: economic social
and cultural rights
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Questions for consideration
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What is an economic, social and cultural right?
What is the nature of State’s obligations with respect
to economic, social and cultural rights?
How do we determine the content of economic, social
and cultural rights - Case study: health
[Note: consider relevance to 4 year review]
(a) What are eco, soc and cultural rights?
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Any thoughts?
Mere aspiration?
Indeterminate?
Resource dependent?
Unenforceable?
Responding to the myths
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False dichotomy between ‘negative’ cp rights and
‘positive’ esc rights
ESC rights are justiciable
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Eg: Government of South Africa v Grootboom [2001] 1 SA
46
Occupiers Oliva Road v City J’burg [2008] ZACC 1
Adjudication does not usurp parliamentary
sovereignty
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Soobramoney (1997) 12 BCLP 1969 or Treatment Action
Campaign [2002] 5 SA 271
(b) General obligations of states
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Article 2(1)
Each state party to the present Covenant
undertakes to take steps individually and through
international assistance and cooperation especially
economic and technical to the maximum of its
available resources with a view to achieving
progressively the full realisation of the rights
recognised in the present Covenant by all
appropriate means including particularly the
adoption of legislative measures
Making Meaning of the obligations
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See generally:
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General Comment No 3 C’tee ESCR;
Limburg Principles on the Implementation of the
International Covenant on Economic Social and
Cultural Rights E/CN4/1987/17 Annex (reprinted
in (1987) 9 Human Rights Quarterly 122-135
Maastricht Guidelines on Violation of Economic
Social and Cultural Rights, Maastricht 22-26
January 1997 (reprinted in (1998) 20 Human
Rights Quarterly 691-701
(i) Progressive obligation
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General Comment No 3 C’tee ESCR
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imposes obligation to move as expeditiously and effectively as
possible towards goal of realisation of rights
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any deliberately retrogressive measures would require careful
consideration and would need to be justified by reference to
the totality of the rights provided for in the Covenant and in
the context of the full use of the maximum available resources
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[consider relevance at budget time?]
(ii) Minimum Core: C’tee GC 3 para 10
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Each right has minimum core which requires State to
ensure satisfaction of at the very least minimum essential
levels of each of the rights under ICESCR
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Where fail to realise minimum core state must
demonstrate that every effort has been made to use all
resources at its disposition in an effort to satisfy as a
matter of priority those minimum obligations
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State where significant number of households deprived
essential foodstuffs, essential primary health care of
basic shelter and housing or most basic forms of
education is prima facie failing to discharge obligations
under the Covenant
(iii) Tripartite typology of duties
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Right to food
General Comment No 12 (1999)
Right to food includes:
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Right to respect: State cannot take steps to prevent
enjoyment of right
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Right to protect: State must protect individual against 3p
d/n deprive individual of right
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Right to fulfill: State must take measures to facilitate
realisation of right
Making meaning of the content of esc rights
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Case study: Right to housing
Article 11
1. The States Parties to the present Covenant
recognize the right of everyone to an adequate
standard of living for himself and his family,
including adequate food, clothing and housing, and
to the continuous improvement of living conditions.
The States Parties will take appropriate steps to
ensure the realization of this right, recognizing to
this effect the essential importance of international
co-operation based on free consent..
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Consider role of:
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Text and principles of interpretation
ESC Committee:
http://www.ohchr.org/english/bodies/cescr/index.
htm
Special Rapporteurs: eg: Right to housing
http://www.ohchr.org/english/issues/housing/inde
x.htm
Commentators
Case law (judicial implementation)
See General Comment 4 (attached)
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What does GC 4 tell us about the right to
housing?
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See also:
Special Rapporteur
Case law:
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Grootboom (2000) 3 CHRLD 199