Transcript Ensuring the Protection & Promotion of Human Rights

Ensuring the
Protection & Promotion of
Human Rights
Harkristuti Harkrisnowo
Sentra Ham
Fakultas Hukum Universitas Indonesia
International Human Rights Law
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A great number of international human rights treaties
and other instruments have been adopted by the United
Nations and accepted by States since 1945.
Other instruments have been adopted at a regional
level, reflecting the particular human rights concerns of
the region.
Every State's domestic constitution or other laws also
formally protect basic human rights.
In many States, the language used to proclaim human
rights has been drawn directly from international
instruments.
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Treaty: its legal effect in a country's domestic law
depends on the State's legal system. In some
countries, treaties are "self-executing" and are
considered to be superior to domestic legislation
and even the constitution. In other States, treaties
may prevail over domestic law but not over the
constitution. In yet other States, a treaty will have no
domestic legal effect unless it is formally
incorporated into domestic law by the appropriate
legislative process. Whatever a treaty's status may be
domestically, a State is legally bound to observe its
provisions at the international level.
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Customary international law
a widely accepted practice followed by States which derives from
a sense of legal obligation. Because customary law is, by
definition, not found by looking at a text, there is a great deal of
disagreement over its exact content.
However, most people today would agree that, at a minimum,
the following human rights norms have become part of
customary law: prohibition against genocide, prohibition against
slavery, prohibition against torture and prohibition against
systematic racial discrimination (such as apartheid).
Customary law is binding on all States (except those that may
have objected to it during its formation), whether or not they
have ratified any relevant treaty.
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Declarations and resolutions
adopted by UN organs
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Neither the UN General Assembly nor other
UN bodies have the authority to create rules of
law that are legally binding on States.
But they have adopted a wide range of
declarations, proclamations, recommendations, guidelines,
and principles, which represent important political
and moral commitments by States that may
influence their conduct of international relations.
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State Obligations to Respect, Protect and
Fulfill Human Rights
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The obligation to respect rights requires states to refrain from any
action that would interfere with citizens' enjoyment of their rights;
including actions people take in efforts to realize their rights.
The obligation to protect rights requires states to take action to
prevent violations of human rights by others. This obligation
involves encouraging individuals and organizations to respect the
rights of others, as well as imposing sanctions for violations that are
committed by private individuals or organizations.
The obligation to fulfill rights requires states to take action to achieve
the full realization of rights. These actions can include enacting laws,
implementing budgetary and economic measures, or enhancing the
functioning of judicial bodies and administrative agencies. Human
rights laws also need to be enforced by judges who have adequate
training and are supported by sufficient court staff. Other
institutions, such as human rights commissions, an ombudsman, or a
parliamentary commissioner, may also be established to resolve
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In addition….
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In March 1999 The General Assembly
adopted the following Resolution:
Declaration on the Right and Responsibility
of Individuals, Groups and Organs of
Society to Promote and Protect Universally
Recognized Human Rights and
Fundamental Freedoms
which stipulates, among others, the following:
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Article 1: Everyone has the right, individually and in association
with others, to promote and to strive for the protection and
realization of human rights and fundamental freedoms at the
national and international levels.
Article 2
1. Each State has a prime responsibility and duty to protect,
promote and implement all human rights and fundamental
freedoms, inter alia, by adopting such steps as may be necessary
to create all conditions necessary in the social, economic,
political and other fields, as well as the legal guarantees required
to ensure that all persons under its jurisdiction, individually and
in association with others, are able to enjoy all those rights and
freedoms in practice.
2. Each State shall adopt such legislative, administrative and other
steps as may be necessary to ensure that the rights and freedoms
referred to in the present Declaration are effectively guaranteed.
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Article 3
Domestic law consistent with the Charter of the United
Nations and other international obligations of the State
in the field of human rights and fundamental freedoms
is the juridical framework within which human rights
and fundamental freedoms should be implemented and
enjoyed and within which all activities referred to in the
present Declaration for the promotion, protection and
effective realization of those rights and freedoms
should be conducted.
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National level implementation
Who are the duty bearers?
 State (executive, legislative, judiciary)
 International organization
 Non Governmental Organization (NGO)
 Transnational Corporations
 Civil society
 National Human Rights Commission
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The National Human Rights
Commission
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Established only in some countries, based on the Paris Principle:
In regard to its structure, it is recommended that they should:
(a) Be so designed as to reflect in their composition, wide cross-sections
of the nation, thereby bringing all parts of that population into the
decision-making process in regard to human rights;
(b) Function regularly, and that immediate access to them should be
available to any member of the public or any public authority;
(c) In appropriate cases, have local or regional advisory organs to assist
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Functions of the NHRC….
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To act as a source of human rights information for the
Government and people of the country;
To assist in educating public opinion and promoting
awareness and respect for human rights;
To consider, deliberate upon, and make recommendations
regarding any particular state of affairs that may exist
nationally and that the Government may wish to refer to them;
To advise on any questions regarding human rights matters
referred to them by the Government;
To study and keep under review the status of legislation,
judicial decisions and administrative arrangements for the
promotion of human rights, and to prepare and submit reports
on these matters to the appropriate authorities;
To perform any other function which the Government may
wish to assign to them in connection with the duties of that
State under those international agreements in the field of
human rights to which it is party.
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NHRC’ s problems…
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Do not have the authority to issue a legally binding
power decision
Many recommendations are not followed up by the
institutions targeted
Lack of adequate resources (particularly in terms of
funding and expertise on investigation, mediation and
the like)
Subject to intervention by the State
Selective attention to media-covered issues or high
profile cases
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International level…
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United Nations
Other International Organizations
Regional organizations
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Workings at the international level
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Norm-setting
Monitoring through:
Examination of state reports
Receiving communications through complaint
mechanism (individual/interstate)
Fact-finding based on communications
Submitting report and
Recommending measures
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… and for gross violation of human
rights: criminal prosecution:
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Mostly via international prosecution :
extraterritorial jurisdiction instead of territorial
jurisdiction
Role & authority of Security Council
Customary nature of International Criminal Law
Reparations for persons erroneously prosecuted:
unresolved
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Human Rights Instruments…
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Differ in their legal status.
For example, declarations, principles, guidelines,
standard rules and recommendations do not need to be
ratified and do not impose binding legal responsibilities
on states that agree to them. At minimum, they have
moral force and indicate widely accepted principles of
the international community. In fact, some are
considered to be customary international law.
But international treaties (covenants, protocols and
conventions), are legally binding. States that ratify or
accede to them promise to abide by and fulfill the
duties set out in the agreement.
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The United Nations
Human Rights
Organizational Structure
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If a human rights violation is alleged
to be committed….
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Unlike violation of law, violation of human
rights are not automatically be processed legally
Various mechanism, some of the are quasi
judicial, other judicial, but the majority is non
judicial
Processing of complaint depends on the
magnitude of the violation, victim’s knowledge,
and the availability of mechanism
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United Nations Mechanisms
Charter bodies
 Commission on Human Rights (CHR)
 Special procedures of the Commission on Human Rights
 Sub-Commission for the Promotion and Protection of Human Rights
Seven Treaty bodies
 Human Rights Committee (HRC)
 Committee on Economic, Social and Cultural Rights (CESCR)
 Committee on the Elimination of Racial Discrimination (CERD)
 Committee on the Elimination of Discrimination Against Women
(CEDAW)
 Committee Against Torture (CAT)
 Committee on the Rights of the Child (CRC)
 Committee on Migrant Workers (CMW)
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Treaty-based…
TREATY
SUPERVISORY BODY
# of MEMBERS
ICCPR
Human Rights Committee
18 members
ICESCR
Committee on Economic,
Social and Cultural Rights
18 members
CERD
Committee on the
Elimination of Racial
Discrimination
18 members
CRC
Committee on the Rights of
the Child
10 members
CEDAW
Committee on the
Elimination of Discrimination
Against Women
23 members
CAT
Committee against Torture
10 members
CMW
Committee on Migrant
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10 members
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International Instrument &
Mechanism I
TYPE OF INSTRUMENT
NAME OF
INSTRUMENT
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Legally-binding
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ICCPR
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Equipped With
A Complain
Mechanism
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CERD
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CEDAW
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CAT
POSSIBLE ACTION ON
VIOLATIONS
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Decisions On Formal
Complaints Or
Communications By A
Treaty Body
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Comment On Or Criticism Of
A State's Periodic Report
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International Instrument &
Mechanism II
TYPE OF
INSTRUMENT
NAME OF
INSTRUMENT
Legally-binding
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ICESCR
Without complaints
mechanism
CRC
POSSIBLE ACTION ON
VIOLATIONS
Comment on or criticism
of a State's periodic report
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International Instrument &
Mechanism III
TYPE OF
INSTRUMENT
Not legallybinding
(only morally
or politically)
NAME OF
INSTRUMENT
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UDHR
POSSIBLE ACTION ON
VIOLATIONS
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Public criticism by UN
bodies of violations in
specific states
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Discussion of issues of
concern
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Development of new
principles, guidelines, etc.,
in order to influence State
conduct
Declaration
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Basic Principles
Standard Minimum
Rules
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Non-conventional mechanism
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United Nations Special Rapporteurs,
Representatives,
Experts and
Working groups, for example…
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Special Rapporteurs…
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Summary or Arbitrary Executions
Torture
Violence against Women
Independence of the Judiciary
Racism
Freedom of Opinion and Expression
Internally Displaced Persons
Various Country Rapporteurs
Human Rights and Human Genome
Working groups: Enforced Disappearance
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Whose mandates are ……..
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To conduct general studies and analysis on issues that fall within their
mandates
To make general recommendations on how to prevent human rights
violations and remedy the consequences
To receive communications (i.e. allegations about the violation of an
individual’s human rights, made by individuals, governments, NGOs
etc.)
To conduct communications with governments if an allegation is
considered as credible and falls within its mandate
To conduct country visits to study a specific situation in a country,
depending upon the acceptance of the government concerned
To submit an annual reports to HRC
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The 1503 Procedure
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As a confidential procedure this is adopted by
ECOSOC in 1970 as Procedure for Dealing with
Communications relating to Violations of Human Rights
and Fundamental Freedoms (reformed during the 65th
session of HRC in 2000)
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Complaints may be made against any country, even if it
is not a member of the UN
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A Working Group on Communication is designated on
a yearly basis by Sub-Commission on the Promotion
and Protection of Human Rights
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All initial steps in the process are confidential until a
situation is referred to the Economic and Social
Council.
Since 1978, however, the Chairperson of the
Commission on Human Rights has announced the
names of countries that have been under examination.
Thus, if a pattern of abuses in a particular country
remains unresolved in the early stages of the process, it
can be brought to the attention of the world
community through the Economic and Social Council one of the principal bodies of the United Nations.
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Criteria for a communication to be accepted
for examination
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It does not run counter to the principles of the Charter of the
United Nations or appears to be politically motivated.
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There are reasonable grounds to believe - also taking into account
any replies sent by the Government concerned - that a consistent
pattern of gross and reliably attested violations of human rights and
fundamental freedoms exists.
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Submitted by individuals or groups who claim to be victims of
human rights violations or who have direct, reliable knowledge of
violations. Anonymous or media-based communications are
inadmissible.
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Each communication must describe the facts, the purpose
of the petition and the rights that have been violated.
Communications containing abusive language or insulting
remarks about the State against which the complaint is
directed will not be considered.
Domestic remedies must have been exhausted before a
communication is considered - unless it can be shown
convincingly that solutions at the national level would be
ineffective or that they would extend over an
unreasonable length of time.
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REGIONAL INSTRUMENTS
INSTRUMENT
POSSIBLE ACTIONS
European
Convention on
Human Rights
Three institutions were entrusted with this responsibility:
 the European Commission of Human Rights (set up in ’54),
 the European Court of Human Rights (set up in 1959).
 the Committee of Ministers of the Council of Europe,
composed of the Ministers of Foreign Affairs of the member
States or their representatives.
Complaints could be filed by individual, group of individual
or other Contracting State, against a Contracting State
European
Framework
Convention for
the Protection of
National
Minorities
Periodic state reports filed by parties; conclusions and
recommendations adopted by Council of Europe, Council of
Ministers, based on opinions submitted to it by an Advisory
Committee. The Advisory Committee usually conducts an
on-site mission and consults with non-governmental groups
and others when it considers State reports; all actions are
normally made public.
European Charter
for Regional or
Minority
Languages
A Committee of Experts examines periodic reports submitted
by State parties and prepares a report and proposals for
recommendations which are submitted to the Council of
Ministers.
American Convention on
Human Rights
Formal complaints first considered by InterAmerican Commission on Human Rights, which
may issue public report with recommendations; for
those States that have accepted its jurisdiction,
there is a possible appeal to the Inter-American
Court of Human Rights for a legally binding
judgment. A complaint may brought by one State
against another, but only if both have accepted this
optional inter-State jurisdiction. The Court also
has the power to give Advisory Opinions, if
requested to do so by a State Party or the
Commission.
Additional Protocol to the
American Convention on
Human Rights in the Area of
Economic, Social & Cultural
Rights "Protocol of San
Salvador"
Right of petition to the Inter-American Commission
on Human Rights for alleged violation of trade
union or education rights, as set forth in the
Additional Protocol.
Charter of the Organization
of American States and
Declaration on the Rights
and Duties of Man
The Inter-American Commission on Human Rights
may prepare country reports on the human rights
situation in any OAS member State or may
investigate and adopt a report and
recommendations based on an individual petition
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filed with respect to any OAS member State.
Basic Documents in
The Inter-American System
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American Declaration Of The Rights And Duties Of Man
American Convention On Human Rights
Additional Protocol To The American Convention On Human Rights In The
Area Of Economic, Social And Cultural Rights "Protocol Of San Salvador"
Protocol To The American Convention On Human Rights To Abolish Death
Penalty
Inter-American Convention To Prevent And Punish Torture
Inter-American Convention On Forced Disappearance Of Persons
Inter-American Convention On The Prevention, Punishment And Eradication
Of Violence Against Women
Inter-American Convention On The Elimination Of All Forms Of
Discrimination Against Person With Disabilities
Statute Of The Inter-American Commission On Human Rights
Rules Of Procedure Of The Inter-American Commission On Human Rights
Statute Of The Inter-American Court On Human Rights
Rules Of Procedure Of The Inter-American Court On Human Rights
Declaration Of Principles On Freedom Of Expression
Charter Of The Organization Of American States
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Inter-American Democratic Charter
African Charter on Human
and Peoples Rights
Individual petitions may be considered
confidentially by the African Commission on
Human and Peoples' Rights, which may
eventually make its decisions and
recommendations public. The Commission
also can decide to refer to the OAU Assembly
of Heads of State and Government
communications relating to "special cases
which reveal the existence of a series of
serious or massive violations of human and
peoples' rights". The Commission considers
periodic reports from States in public. NGOs
recognized as "Observers may be invited
specially to be present at closed sessions
dealing with issues of particular interest to
them."
Protocol to the African
Charter on Human and
Peoples’ Rights` establishing
and African Court on Human
and Peoples' Rights
After it is ratified by 15 States, the 1998
Protocol will create an African Court on Human
and Peoples’ Rights, which will have the
authority to issue legally binding decisions on
individual complaints. Not yet in force as of
mid-2001.
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Mandates of The African Commission
on Human’s Rights & People’s Rights
1. the promotion of human and peoples' rights:
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To collect documents, undertake studies and researches on African problems
in the field of human and peoples' rights, organize seminars, symposia and
conferences, disseminate information, encourage national and local
institutions concerned with human and peoples' rights and should the case
arise, give its views or make recommendations to Governments; this is its
information and educational function.
To formulate and lay down principles and rules aimed at solving legal
problems relating to human and peoples' rights and fundamental freedoms
upon which African Governments may base their legislation. This is its "quasi
legislative function".
To cooperate with other African or, International institutions concerned with
the promotion and protection of human and peoples' rights. This is its
institutional co-operation function.
To consider the periodic reports of States on the legislative or other measures
adopted to give effect to the rights and freedoms recognized and guaranteed in
the African Charter.
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2. The protection of Human and People’s Rights
Within the framework of its protective role, the
Commission is charged with ensuring the protection of
human and peoples' rights under the conditions laid
down by the Charter and according to the rules
provided for in the Rules of Procedure of the
Commission.
3. The interpretation of the African Charter on
Human and Peoples' Rights
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The Judicial system…
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European Court of Human Rights
Inter-American Court of Human Rights
The International Court of Justice (International
Criminal Court)
International Criminal Tribunal for the former
Yugoslavia
International Criminal Tribunal for Rwanda
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Judicial v quasi-judicial mechanism
Judicial
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Quasi-judicial
Conducted by a
Court/Tribunal
Employing legal
mechanism
Decision has a legal
binding power
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Conducted by a
Committee
Does not employ legal
mechanism
Decision does not have
strong legal binding
power
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International Criminal Tribunal v
International Criminal Court
ICT
ICC
Based on UN Resolution
Based in the Rome Statute
Is not a permanent court
Is a permanent court
Usually an ex-post facto court Full recognition of nonretroactive principle
Significant role of the
Limited role of the Security
Security Council
Council
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