7. How are human rights protected at the domestic level? Flashcards
A core obligation of States is to provide effective remedy to victims of human rights violations. Is it necessary that this always constitutes judicial remedies?
No. While international human rights instruments prefer judicial remedies, effective remedies do not require that courts or domestic authorities directly apply international law; it is sufficient that they protect the right by whatever means.
Courts have sometimes been reluctant to recognise the justiciability of social rights such as the right to food, water, education, health and housing. Why is this so?
a) The issue of multi-polarity and competence - the courts cannot address society wide issues on a case by case basis alone as this would unduly favour those who brought their issues to court. The judiciary setting is inappropriate to deal with social policy issues.
b) Indeterminancy - social rights are not sufficiently well defined to allow for adjudication meaning the judge would have to act arbitrarily, making the law rather than applying it
c) democratic self-determination - courts would not have the required legitimacy to second guess the choices of the democratically elected reps
d) the courts can be the least able to address social and economic rights owed to the marginalised and disempowered.
Note that the UDHR Art 8 refers to the obligation to ensure effective remedies for violations of all human rights without making distinctions between different categories of rights
Why is the role of national authorities (eg. domestic courts) so important in maintaining human rights obligations?
a) the lack of incentives States have to police the non-compliance of other States
b) weak mechanisms available to enforce treaties at the international level
c) most international treaties require that the individuals exhaust local remedies before accessing international courts
d) most human rights breaches are resolved through domestic courts
What are the range of non judicial remedies available at the domestic level?
a) National Human Rights Institutions
b) Parliamentary Committees
c) Administrative or legislative authorities or any other competent authority provided by the State
What does the ‘right to an effective remedy’ entail?
That an individual whose rights have been violated has the right to
a) have the right examined impartially by an independent authority with the
b) power to order a cessation of the alleged violation or
c) claim reparation.
d) Remedies should be accessible and effective
What are the conditions upon which an individual has the right to access effective remedy?
When the individual can put forward a plausible allegation that their rights have been violated.
Govt of South Africa & Others v Grootboom and others, 2000. This group of people, including children, were living in intolerable conditions for an extended period while waiting in queue for low cost housing. When in desperation, after being evicted by the government, they camped on private land, their belongings were destroyed and burnt. The Court noted the State’s obligation to take a) reasonable legislative and other measures, b) within it’s available resources to c) achieve the progressive realisation of the right to adequate housing and to take positive actions to meet the needs of those living in extreme poverty or homelessness. While the Court noted that the relevant human rights obligations do not entitle people to housing on demand, the Court ruled in favour of the applicants - what was their argument?
a) that to be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise and that failing to respond to the needs of the most desperate may not pass the test of reasonableness
b) that the nationwide housing program falls short of its obligations due to the lack of temporary measures in place to support those waiting for housing with no end date in sight - the interests of those in crisis cannot be ignored in the interests of the overall program.
c) that progressive realisation imposes an obligation on the State to move as expeditiously and effectively as possible toward the realisation of the goal
d) That the State had an obligation to ensure that the eviction was, at the very least, humanely executed and
e) that in the context of the Bill of Rights as a whole, the respondents have a right to reasonable action by the State, noting that the State also failed to engage with the respondents as soon as they became aware of the occupation on private land.
People’s Union for Civil Liberties v Union of India and Others, Supreme Court of India, 2003. The Indian Supreme Court derived from the right to life mentioned in Art 21of the Constitution, a series of requirements articulating how various social programs should be implemented in order to ensure that the population is guaranteed a basic nutritional floor. How did the Court rule?
a)The Supreme Court considered that a set of public programs at the State level protected the right to food and ordered that such programs be maintained and further expanded. The Court argued that 8 schemes provided under the Mahatma Gandhi Rural Employment Guarantees Act could not be withdrawn and ordered the universalisation of the scheme, dramatically increasing the number of recipients.
b) The Court also strengthened the schemes to ensure that they provided for the effective protection against hunger including raising the level of old age pensions for women.
c) The Court also established two independent Commissioners to monitor the implementation of the schemes.
What are some of the limitations domestic courts may face in adjudicating human rights claims?
Limitations include:
a) some human rights abuses can remain widespread (particularly if they are minor) due to the burden placed on individuals when filing a claim. Courts can only intervene when asked to do so.
b) courts are not set up to prevent future abuses from occurring; they are not set up to make structural or systemic changes to bring about the type of change that would prevent human rights abuses
c) courts may be corrupt or insufficiently independent from the State
d) not all domestic courts are able to apply international law
e) courts address individual situations as opposed to designing solutions based on the views of a whole segment of a population being affected by a human rights abuse
f) courts can only grant a limited range of remedies
What is the role of National Human Rights Institutions according to the Paris Principles on NHRIs?
What forms can NHRIs take?
The role of NHRIs may include:
a) To promote and protect human rights at the domestic level
b) To be independent and determine their own agenda, priorities and recommendations
c) to be given as broad a mandate as possible
d) to be an advisor to government
e) to promote the harmonisation of legislation, regulations and practices within the human rights instruments
f) to contribute to the States reporting obligations to the UN vis a vis their treaty obligations
g) to contribute to teaching and research
h) to hear complaints or petitions
i) to develop relationships with NGOs
j) to collaborate with different parts of society
NHRIs can take the form of
a) committees
b) expert bodies
c) ombudsman
