Human Rights Flashcards
UDHR Scope
The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in Paris on 10 December 1948. However, UN GA resolutions as such do notcreate any legal obligation for states to follow these recommendations (Art. 10 or Art. 14 UN Charter.
Therefore, the UDHR is of a non-binding nature and does not offer any kind of
protection for A.
What kind of enforcement system does the ICCPR provide?
The system of enforcement in the ICCPR itself is not designed to provide harmed individuals
with judicial or quasi-judicial remedies. As a control mechanism, Art. 40 ICCPR provides for
a reporting system. The states have to regularly report on the measures they have adopted
to give effect to the rights recognized in the ICCPR. After considering the contents of these
reports, the HRC publicly issues a report of its own and such general comments that it con-
siders appropriate.
- In addition, Art. 41 ICCPR establishes an inter-state complaints mechanism. A state party
may voluntarily declare, on a basis of reciprocity, that it recognizes the competence of the
Human Rights Committee to receive complaints from other states.
- However, there exists an optional protocol I to the ICCPR, which creates an individual com-
pliant procedure. An individual may file an application to the Human Rights Committee
(“HRC”), if this individual has exhausted all domestic means in regard to a violation of a
Covenant’s right.
What does an international wrongful act encompass?
An internationally wrongful act encompasses two elements: an attributable action or omission
of a state, and the breach of an international obligation (Art. 2 ILC Draft Articles).
1. Attribution:
An act or omission must be attributable to a state in order to justify its responsibility. The
general rule is that the conduct attributed to the state at the international level is that of its
organs of government, or of others who have acted under the direction, instigation, or control
18 of those organs, i.e. as agents of the state (Art. 4 ILC Draft Articles). Articles 5-11 of the ILC Draft Articles regulate further cases in which an act is attributable to a state.
- Breach of international obligation:
There is a breach of an international obligation by a state when an act or omission of that state
is not in conformity with what is required of it by that obligation, regardless of its origin or
character (Art. 11 ILC Draft Articles).
What is the Scope of Application of Right to Respect for Private and Family Life (Art. 8 ECHR)?
Right to family life: The first aspect covers families, both marital and non-marital partnerships, with or without children and is not only limited to formal relationship status. The only
condition being that all those partnerships must be closely knit and durable.
Respect of home: This aspect protects the place where one lives on a settled basis. Usually, it
is where private and family life takes place.
Respect of correspondence: This interest covers the right to uninterrupted and uncensored
communication with other individuals. Email, post and telephone communication are
protected by Art. 8 para. 1 ECHR.
Right to private life/privacy: The right to privacy extends to ensure the development of the
personality of any individual and its relations to others without outside interference. This
aspect of Art. 8 para. 1 ECHR covers also the collection and use of information, as well as the
capacity of an individual to determine its own identity, moral and physical integrity, or private
space.
Is the Application admissible? Discuss the preconditions…
The admissibility criteria for an individual application as stated in Art. 35 ECHR need to be fulfilled:
* Subsidiarity: Domestic remedies need to be exhausted.
- The application needs to be filed within 4 months after the last and highest national judicial
decision. - The applicant must be identifiable.
- There must be no other case with the same factual basis examined by the ECtHR or another international procedure.
In addition, four different types of compatibility must be considered:
* Ratione temporis: The ECtHR is limited in its jurisdiction to consider state acts which took place after the date of entry of the ECHR in the respective state.
- Ratione loci: To be compatible with ratione loci, the violation must have taken place within the jurisdiction of the respondent state.
- Ratione personae: First, the application must be brought against a state which has ratified
the ECHR. Second, the applicants must be considered victims and the acts should have affected the victims. - Ratione materiae: Only rights which are guaranteed by the ECHR can be grounds of
complaints. - The application is not manifestly ill-founded.
- An application might be dismissed in case there is an abuse of the right of petition.
- The applicant must have suffered a significant disadvantage. However, the ECtHR may declare an application admissible where respect for human rights requires so or where the
case has not been duly considered by a domestic authority.
Duties of a neutral state
- Above all, neutral states have a duty to refrain from participating in armed conflicts between other states. They cannot allow warring parties to use their territory for military purposes and a neutral state must be able to defend its own territory.
May a neutral State participate in Economic Sanctions taken by the UN Security Council?
- According to Art. 48 UN Charter, all members of the United Nations have agreed to carry out the decisions of the Security Council for the maintenance of international peace and security (Alternativ: According to Art. 25 UN Charter).
- The status of neutrality is not relevant in the case of economic sanctions because Art. 103 UN Charter provides that the obligations under the Charter prevail. Neutral states have to participate in economic sanctions adopted by the United Nations.
When can the ICC exercise jurisdiction over situation?
The different situations in which the ICC may exercise jurisdiction are:
i) state has ratified the Rome Statute
ii) state accepts the court’s jurisdiction ad-hoc;
ii) referral to the court by the UN Security Council acting under chapter VII UN Charter .
What is the concept of complementarity with regard to the International Criminal Court (ICC)?
The jurisdiction of the ICC is complementary to the national criminal jurisdiction. This means that the ICC will only exercise its jurisdiction if the concerned state is unwilling or unable to exercise its criminal jurisdiction.
