Topic 3 - International Mechanisms of Human Rights Protection Flashcards
Overall themes of international mechanisms (3)
- Effectiveness limited by state consent – states must consent to the monitoring bodies
- Monitoring bodies restricted to the rights that the treaty it is founded by include
- Monitoring bodies are restricted to monitoring only the states who are party to the treaty
Protection under ICCPR (International Covenant on Civil and Political Rights)
- Guarantees rights to life, religion, private/family life, freedom of movement, fair trial, liberty, association, peaceful assembly, to vote/be elected
- Flexibility of the rights in 2 circumstances:
o Article 4 – public emergency which threatens life of the nation e.g. pandemic
o Limitation clauses – rights are not always absolute and can be adjusted to a State’s interest in safeguarding morals, public safety, health, national security - Article 2 – duty to safeguard these rights to all individuals on its territory and within its jurisdiction
o Duty to provide effective remedies - Human Rights Committee
o Created by Article 28
o Consists of 18 independent experts of ‘high moral character and competence in field of human rights’ – they do not represent their state (safeguards the objectivity of the committee) - Functions of Human Rights Committee
1. Examine Periodic State Reports
o Article 40 – makes it compulsory for every State party to ICCPR to provide a periodic report every 8 years in which they indicate their actions taken to comply with their obligations under ICCPR
- Issue General Comments
o Interpret ICCPR and can issue recommendations
o Recommendations not legally binding on States
o Naming and Shaming is powerful – States do not want to be publicly named as violating their obligations so recommendations are persuasive - Hear Inter-State Complaints
o OPTIONAL Article 41 – states must consent to inter-state complaint mechanism
o Human Rights Committee empowered to hear complaint and find peaceful resolution to dispute
o State must first exhaust domestic remedies before bringing complaint
o Not a court so its resolutions may be dismissed as not legally binding - Consider Individual Complaints
o OPTIONAL First Protocol – States must agree to First protocol to enable individual to bring complaint
o Individual must check the state they wish to bring claim about is a party to first protocol – principle of state consent
o UK not accepted First Protocol
o Only victims of violations can bring complaints
o Jonassen et al v Norway – Committee not an appellate body so findings not legally binding but are difficult to dismiss
o Rule 86 – Interim measures in which Committee can request the state concerned to pause its actions until the committee has the ability/time to look at the merits of the complaint
o Piandiong v Philippines – Committee requested Philippines to pause execution of individual until committee reviewed the evidence
- General Comment 36 – Human Rights Committee recognised direct link between right to life and how it must be protected during conflict (linked to Russian invasion of Ukraine)
Protection under ICESCR (International Covenant on Economic, Social and Cultural Rights)
- Guarantees right to work, trade unions, social security, adequate standard of living, free from hunger, health, education, cultural life
- Article 2 (1) – ICESCR to be implemented to the maximum of a State’s available resources (leaves room for flexibility due to weaker language than ICCPR)
- Committee on Economic, Social and Cultural Rights (CtteeESCR)
o Established by Economic and Social Council (ECOSOC)
o Examines the mandatory periodic reports States submit to ECOSOC and UN Secretary General, issues general recommendations and can consider complaints if a state agrees
o OPTIONAL Protocol to the ICESCR 2013 – allows for individuals to bring complaints (only available to individuals whose complaint concerns a State that has agreed to optional protocol)
Protection under United Nations Charter (security council, general assembly, ICJ, ECOSOC, Human Rights Council, Offices)
- Security Council
o Article 24 – Security Council has responsibility to safeguard international peace and security
o Can issue legally binding decisions – most authoritative body under UN Charter
o Chapter 7 – Security Council can implement sanctions against state that violates international obligations
o Highly politicised body – only 5 representatives who have a permanent seat and have power to veto any decision (not reliable mechanism to protect human rights) - General Assembly
o Most democratic body – all UN member states are members
o Article 13 – can make human rights recommendations
o Examines reports of treaty monitoring bodies through ECOSOC
o Resolutions to international human rights issues are not legally binding - International Court of Justice
o Has limited powers to monitor state compliance with human rights
o Cannot exercise jurisdiction unless has consent of states concerned - Economic and Social Council
o UN General Assembly subsidiary organ
o Consists of 54 members elected by the General Assembly
o Article 62 and 68 – empowered to establish commissions in economic/social matters, make recommendations on human rights issues and receive reports from UN treaty monitoring bodies - Human Rights Council
o Replaced Commission on Human Rights
o Human Rights Council is a subsidiary organ of General Assembly
Commission was subsidiary of ECOSOC
o 47 member states elected by General Assembly secret ballot – equitable /proportionate geographical representation
Commission dominated by powerful states and therefore biased e.g. Sudan held presidency of Commission but was significant human rights violator
o However council being representative of states means states can form alliances to elect states that will support their human rights beliefs – undermines protection of human rights
o Council meets 3 times a year
o General Assembly can reject/amend Council resolutions as it is a subsidiary body of GA – undermines its work
o Work must be accompanied by a judicial body
o Individual Complaint Procedure
Working Group on Communications will review admissibility of individual complaint
Working Group on Situations will consider complaints
Council receives report on the individual complaint and then issues its recommendations
o Functions of Human Rights Council:
1. Universal periodic Review
Every 4 years all states parties to UN Charter must produce report about actions taken regarding human rights obligations
Council issues a report summarising its recommendations to member states
States have to report on implementation of recommendations 2 years after the review – weak system of monitoring
Council not legally binding but recommendations, resolutions and declarations are influential
- Special Procedures
Special rapporteurs investigate/monitor human rights in states
Human Rights Council receives the report
States must consent to be investigated by rapporteurs – powers limited by state consent
o 2022 – Russia suspended from Human Rights Council for human rights violations in Ukraine
o However conflict in Ukraine is still ongoing so what effect did the suspension actually have
o Prevents mechanisms from being hypocritical as Russia no longer contributing to decisions on protection of human rights whilst violating them
- Office of High Commissioner of Human Rights
o Presence in various countries to offer first hand support and assistance to communities affected by human rights violations - Office of High Commissioner for Refugees
o Provide support to those who flee their country
o Supports both international refugees and those internally displaced
Advantages of world court of human rights
o Having a World Court of Human Rights would mean having one body looking at whether states comply with human rights provisions – would make system more coherent and less fragmented. Currently states have to report to different monitoring mechanisms depending on which treaties they are party to – time consuming process
o Each monitoring body may reach different findings on some things that may overlap between bodies – may create gaps and further fragmentation of international legal concepts and how we integrate human rights. World Court of Human Rights would prevent this as it would be responsible to monitor states with their specific human rights obligations they are a party to
o Would not be limited to hear about violations committed by state actors but could be extended to hear violations by non-state actors (would mean ISIS for example could be bound by the World Court of Human Rights or large businesses be bound by world court)
o World Court would ensure victims an effective remedy
o Nowak is advocate for World Court of Human Rights
Disadvantages of world court of human rights
o How would this work in practice? – how does one court manage every state and their obligations? Would it become overwhelmed with work? Strasbourg Court already struggles with limited resources
o How would we bring it about? – would we amend and revise existing treaties to take away authority of existing monitoring bodies and transfer to World Court of Human Rights – danger if we open up the treaties that are a product of years of negotiations and compromise for renegotiation, states may start to say parts of the treaties they do not agree with – if we allow states to renegotiate the treaties, we will lose what we already have and make system of human rights protection even weaker than it currently is
o Would still be limited by state consent - How possible is it for states to agree on one World Court of Human Rights? – UK currently has not given consent to be bound by existing monitoring mechanisms, so why would they agree to be bound to a new monitoring body. Unlikely that in the current international climate world court would be possible
o Issue of jurisdiction
o Closer to home the human rights mechanisms are, the more effective they are – when too far removed from state itself, human rights are harder to enforce
