Human Rights

Question 1

Restrictions on Human Rights

Answer 1

While certain rights are non-derogable (right to life, prohibition of torture, inhumane treatment, …), others may be derogated upon only under certain circumstances.
STATES MAY DEROGATE FROM OBLIGATIONS ON HUMAN RIGHTS IF THE REQUIREMENTS SPECIFIED IN THE CLAUSES OF THE TREATY ARE MET– the latters vary from treaty to treaty.
The typical requirement common to all treaties is the following: PUBLIC EMERGENCY THAT THREATENS THE LIFE OF THE NATION (the ECtHR describes the requirement in a similar way)
States’ derogations must take place according to certain requirements:

- PRINCIPLE OF PROPORTIONALITY AND NECESSITY: the exceptional measures that a State adopts must be exclusively of strict necessity required by the exigencies of the situation. 

- the adopted measures cannot conflict with other State's obligations under customary international law, for instance, or even stricter with jus cogens from which no derogation is possible. In cases of armed conflict international humanitarian law will apply as well

- the measures that are taken cannot violate rights from which no derogation is possible. Each Human Rights treaty contains a listed number of rights and freedoms that are inviolable under the Treaty itself (e.g.: right to life, prohibition of torture, prohibition of slavery, inhumane treatment)

- a notification shall be sent by the adopting State to the secretariat of the treaty specifying the measures that are to be adopted and the reasons thereof

Question 2

Other Restrictions on Human Rights

Answer 2

Treaties on Human Rights typically entail a limitation clause that specifies the circumstance under which some rights can be limited or denied apart from cases of “public emergency”.
LIMITATION CLAUSES NORMALLY ENTAIL THREE CONDITIONS FOR LAWFUL RESTRICTIONS:

1. the limitation shall be lawful, meaning it shall be prescribed by a law or in accordance with the law. The formulation of the restriction shall be in a clear and comprehensive manner in order for people to be able to foresee the potential restriction. 
	Let this be a condition in order to avoid that a State would prevent a protest without legal bases for restrictions 
	
2. the prescribed limitation shall serve one of the legitimate aims that are listed in the limitation clause at hand. 
	legitimate aims might include: national security, prevention of freedom of expression to protect rights to privacy, to prevent crimes or defend public order
	
3. some restrictions to rights are deemed to be necessary in order to protect the democratic regime of a country. The latter restriction in question shall be proportionate to the legitimate aim pursued.

Question 3

Treaty-based Mechanisms for Monitoring and Enforcement of Human Rights

Answer 3

For each international treaty on human rights there has been established along side of it a proper body for monitoring compliance with the treaty’s provisions.
The Committees are independent as they are composed by experts that act in a personal capacity and not State representatives.
The mechanisms that can be used to monitor compliance are:
i. periodic reporting:
basically every human rights treaty (except the Genovide Convention) crates an obligation for State Members to produce a report on compliance to their obligations every four years (evidence found in Article 40 ICCRP and Article 16(1) ICESCR).
Then the competent committee will analyze and review the reports– final observations are not legally binding but carry international weight given the authority.

		ii. individual complaints:
			human rights treaties give opportunity to submit complaints concerning rights violations to singular individuals. This case is rendered possible only under two circumstances: either the allegedly violating State has issued a declaration or it is part of an optional protocol of the treaty itself that produces this possibility. The only condition before appealing to the treaty relevant committee is that the individual must have exhausted all domestic remedies (= possibility for the State to "remede" to its errors). 
			This complaints are usually used at regional level.
			
		iii. inter-state complaints:
			State may submit complaints for violations of human rights against one another as envisioned in Article 41 of the ICCPR. This tool has been rarely used mainly because such complaints are deemed unfriendly and might damage bilateral relationships; it is in fact been used only in already troubled relations only. Such complaints are found exclusively on the regional level. Lastly, diputes concerning human rights violations are typically solved by other means: sanctions 
			
		iv. inquiry:
			it is a tool used directly by the treaty-based body or rather the committee that supervises compliance, following an investigation aftre a serious and grave human rights violation. This tool allows the committee to start an investigation by its own without prior complaint or denounciation. Such power is given only to few international bodies, namely the CAT (Committee against Torture), CEDAW, ICESCR's Committee. As always, the final inquiry is not binding but carries international weight.

Question 4

Charter-based Mechanism for Monitoring and Enforcement of Human Rights

Answer 4

The Office of the High Commissioner for Human Rights has the responsibility to protect and promote human rights.
Another permanent body was the Human Rights Commission entrusted with the duties to:
§ develop the instrument of human rights– the Commission brought to the promulgation of the Universal Declaration on Human Rights and the conclusion of the 1966 Covenants
§ monitor compliance with human rights and investigate violations– it established “special procedures” in order to do so
§ met once a year
COMPOSITION: State representatives rather than independent experts, therefore it was highly politicized

	THE COMMISSION WAS SUBSTITUTED BY THE HUMAN RIGHTS COUNCIL-- compsoed by 47 state representatives who are elected in secret ballot by absolute majority.
	NOVELTY: the GA could suspend membership to the Council if serious human rights violations were committed by the State represented in the Council (Lybia case of 2011)
		§ meets three times a year + scheduled sessions to examine urgent issues
		§ kept the "special procedures" created by the previous Commission + establishes:
			□ Working Group 
			□ Commissions of Inquiry 
			□ Independent Fact-Finding Missions 
		this to examine thematic or country-specific human rights issues
		§ established the Universal Periodic Rewiev-- allows to determine the compliance of all the 193 States with human rights obligations every four years. The evaluation is determined based on: compliance with human rights, UN Charter, the UDHR, applicable international law. The review is carried out by States with respect to one anther; reports are made as well as recommendations. Later the reviews will be adopted by the Human Rights Council 
		As any outcome report, this one as well is of non-binding nature.
	
	FUNCTION OF THE SECURITY COUNCIL WITH REGARD TO THE HUMAN RIGHTS
	The UN Charter does not apply to the SC in practice but it has competences in this respect. 
	CHAPTER VI 
	the SC may investigate in disputes when their continuance is likely to endanger the maintenance of international peace and security and recommend appropriate measures for adjustment. 
	CHAPTER VII
	the SC may determine the existence of a threat to the peace, breach of the peace, or act of aggression. Upon such determination, the SC may impose sanctions, including boycotts and embargoes, or even take military action to restore peace.
	BECAUSE THE SC IS HIGHLY POLITICIZED IT HAS ACTED INCONSISTENTLY IN RESPONDING TO HUMAN RIGHTS VIOLATIONS.

Question 5

International Covenant on Civil and Political Rights

Answer 5

Human Rights Committee, composed by 18 indipendent experts, has competences in:
§ carrying out reviews of reports produced by each State presented regularly
§ receiving and considering communications of States Parties claiming that another State Party is not fulfilling its obligations under the Covenant– then a friendly solution shall be reached
§ receiving and considering individual communications from States Parties to the Optional Protocol
Art. 1 of the Optional Protocol:
adds the competence to the Human Rights Committee of being reached by any individual subject to a State Parties’ jurisdiction in cases of violations by that State Party of any of the rights set forth in the Covenant. No communication can be submitted concerning a State which is part to the Convenant but not to the Protocol

Question 6

International Covenant on Economic, Social and Cultural Rights

Answer 6

State Parties produce regular reports on the implementation of the Covenant– reports are submitted to the Committee on Economic, Social and Cultural Rights, delegated by the ECOSOC
The Convention entails an Optional Protocol– individual and State communications:
- individuals may claim violation of their rights before the Court only after every possible remedy in the violating State has been exhausted.
- States Parties may claim violation of the present rights by another State Party to the Protocol only.
The Committee shall offer its good offices in both cases in order to reach a friendly solution.

Question 7

Convention for the Protection of Human Rights and Fundamental Freedoms

Answer 7

also known as European Convention on Human Rights
ADOPTED WITHIN THE COUNCIL OF EUROPE
= first general treaty on human rights
It is the most up-to-date and advanced international instrument on Human Rights and it has become entirely judicial.
The treaty has been concluded in 1950. The Council of Europe shall monitor compliance with the States’ obligations. The Council’s decisions are BINDING. The Court can hear inter-state and individual complaints.
IT IS GEORAPHICAL, REGIONAL ORGANIZATION– it is not the EU, it is completely different

- Art. 1 
	Aim= achieving greater unity among its members for the safeguarding of the ideals and principles that are of common heritage and for facilitating their economi and social progress
	
- Art. 3 
	Every Member State shall recognize:
		§ the rule of law 
		§ human rights 
		§ fundamental freedoms 
		§ collaborate for the effective realisation of the aim foretold in Article 1 

Adherence to the ECHR is now a requisite for entering the Council of Europe (CoE).
The Convention counts 46 European States; in the eraly days Turkey was present; and Russia was expelled after the events of 2022.
THE CONVENTION ONLY DEALS WITH CIVIL AND POLITICAL RIGHTS ALTHOUGH SOME RIGHTS PRODUCE ECONOMIC AND SOCIAL IMPLICATIONS.
The economic and social rights are treated by a later Convention: European Social Charter.

INTERNATIONAL MONITORING SYSTEM
After PROTOCOL NO. 11:
The European Court of Human Rights produces legally binding judgements, has jurisdiction over all States Members and functions on a permanent basis
Both States and individuals can apply to the European Court of Human Rights
CoE’s Committee of Ministers monitors the execution of the Court’s judgements.

Question 8

Charter of the fundamental Rights of the EU

Answer 8

• legally binding since 2009
  
  • comprises 50 rights largely recognized in the jurisprudence of the Court of Justice of the European Union or the ECHR. However it entails not only civil and political rights, but also economic, social and cultural
  • scope of application: EU bodies and institutions and agents of member States:
    
    • EU bodies and institutions: every action of the Court of Justice of the EU, the European Parliament and Council of Ministers shall be in conformity with the Charter of fundamental Rights
      member States’ agents: the Charter applies to the application of EU laws and regulations only. Beyon EU laws’ implementation, there are domestic constitutional rights and ECHR to protect the citizens

Question 9

Addressees of Human Rights

Answer 9

Whom do the obligations of human rights apply to?
Not only States.
AS A PART OF CUSTOMARY INTERNATIONAL LAW, HUMAN RIGHTS ALSO AFFECT INTERNATIONAL ORGANIZATIONS.
The latters nevertheless did not take part into any human rights treaty, so it is not bound by any of them.
Exception= EU– it acceded to the ECHR as established by Art. 6 of the Treaty on the EU
MULTINATIONAL CORPORATIONS (MNCs) are excluded from any obligation concerning human rights under IL, therefore their conduct remains punishable only under domestic legal systems, private contracts and self-imposed conducts, despite having them being the perpetrators of child labour and heavy pollution.