Transcript Non-discrimination under general human rights treaties

Use of Indicators by the
Human Rights Committee
Martin Scheinin
Åbo Akademi University
Institute for Human Rights
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, …
The Method Applied
• The UNCOM database at SIM
http://sim.law.uu.nl/SIM/CaseLaw/uncom.nsf
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indicator(s) 228
benchmark(s) 13
statistics >250
disaggregated >250
... and a bit of intuition
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
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.” ->
violation of article 14 -> violation of article 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 development. 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.
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
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 differences between the number of inhabitants per elected representative,
despite the election law which required those voting districts to be proportional 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 requirement 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 differences in the number of inhabitants or registered voters per elected representative in different parts of Rožòava, the Committee is of the opinion
that the State party violated the author's rights under article 25
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”
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 discrimination, 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.”
National Human Rights
Institutions/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 Commission 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.