LAW 221: INTERNATIONAL LAW Dr. Başak Çalı

Outline International human rights law (IHRL) Part II UN and Regional Human Rights Protection Mechanisms General doctrines of IHRL Outline

Treaty based Mechanisms Overview Created through explicit consent of states’ parties (treaties allow for reservations) Eight major international human rights treaties in force: ICCPR, ICESCR, CAT, CEDAW, CERD, MWC, CRC, CRPD Legally binding obligations for state parties Treaty based Mechanisms Overview

Key Terminology Treaty, Covenant, Convention, Protocol Signature, Accession, Ratification Reservation Concluding Observation General Comment, General Recommendations Shadow Report Communication, Decision Key Terminology

Monitoring structure: The dialogical model Committee Assessment of State Reports or individual communications General/Specific Recommendations State reports or individual communications Monitoring structure: The dialogical model

Concluding Observations Positive aspects Principle subjects of concern and recommendations Deadlines to respond to questions of urgency Concluding Observations

Individual complaints under UN Treaties Voluntary mechanism: only applies to states that accept it. Decisions are not legally binding. Committees agree that states have a ‘good faith obligation’ to respect the decisions. It is significant for countries that have not a supranational human rights court, i.e. Australia, Canada, Uzbekistan. Individual complaints under UN Treaties

The status of monitoring bodies Do not have coercive powers Cannot issue sanctions, specific remedies Make recommendations to state parties Enter into a dialogue with states Establish the normative content of specific rights and corresponding obligations Establish benchmarks, indicators for monitoring purposes The status of monitoring bodies

Human Rights Courts 3 regional human rights courts The European Court of Human Rights has compulsory jurisdiction, the Inter-American Court and the African Court have voluntary jurisdiction. They interpret their respective treaties (remember Belios) Deliver binding judgments Can award compensation, ask for reinstitution, reparation and assurances of no future violation Human Rights Courts

Security: E.g. Life, freedom from torture, humane treatment Liberty: E.g. freedom of expression, association, property, freedom, physical liberty Subsistence: E.g. education, health, food Equality: Equality before the law, non-discrimination Recognition: E.g. Recognition of dignity, of worth What Rights?

Doctrines of IHRL interpretation There is a very high degree of convergence at the doctrinal level between regional courts and the UN system. All interpretive bodies employ effective interpretation rather than restrictive interpretation when approaching Article 31 of the VCLT. Doctrines of IHRL interpretation

Whose rights? ‘Everyone’ Individuals have human rights regardless of their citizenship status. Asylum seekers, illegal immigrants, alien residents also have rights under human rights law. Chalal v. United Kingdom (ECHR) A v. Australia (HRC) Whose rights?

Citizenship and human rights UDHR Art 15 (right to have a nationality and to change it, no arbitrary deprivation) ICCPR Art. 24(3) (right of every child to acquire a nationality) Citizenship and human rights

States have primary duties duties in relation to the realisation of human rights. Duties may be territorial or extra-territorial Non-state actors have secondary duties. Whose duties?

‘..Every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms….’ UDHR Preamble

States collectively or through co-operation in international organisations: ‘Each state party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation” Article 2 of the ICESCR

UDHR: ‘promote respect for rights, to secure their recognition, to secure their observance ‘ ICCPR: ‘respect and ensure’ ICESCR: ‘Achieving progressively the full realization’ What kinds of duties?

Types of Duties Respect Protect Fulfill: Promote: Engagement in fighting societal prejudices The duty to recognize The duty to remove the consequences of human rights law violations Types of Duties

ICCPR 2: ‘within its jurisdiction and subject to its jurisdiction” ICESCR 2: ‘undertakes to take steps individually and through assistance and co-operation’ UDHR Preamble ‘among the peoples of Member States themselves and among the peoples of territories under their jurisdiction’ Where?

Circumstances for limiting rights Derogation Public interest Circumstances for limiting rights

Article 4 of the 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, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Non-derogable rights in the ICCPR 6: Right to life 7: Freedom from torture 8: Freedom from slavery and servitude 11: No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. 15: Freedom from retrospective criminal charges 16: Right to recognition as a person before the law 18: Freedom of thought, conscience and religion Non-derogable rights in the ICCPR

Absolute Rights v. non absolute rights Article 8 of the ICCPR 1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 2. No one shall be held in servitude. Article 7 of the ICCPR No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Absolute Rights v. non absolute rights

Limitation based on public interest Izci v. Turkey (2013) ECHR Limitation must always be exception to the rule All limitations must be necessary in a democratic society They must be proportionate to the aim pursued Limitation based on public interest

Rights with Fulfillment Duties in the ICESCR Work (6) enjoy just and favourable conditions of work (7) form trade unions (8) social security (9) Social and economic safeguards for family, mothers and children (10) An adequate standard of living, including food, clothing and housing (11) Highest attainable standard of physical and mental health (12) Education (13) Plans of Action for Primary Education (14) To take part in cultural life, benefit from scientific development, one’s right to benefit from production of which he is the author (15)

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 2 of the ICESCR