Aust Handbook of International Law Chapter 11 Human Rights International Humanitarian Law (IHL) refers to that area of international

law concerned with the protection of members of armed forces and civilians during an armed conflict or military occupation of territory. Human rights do not cease completely to apply once IHL applies, continues except for special rules or human rights treaties have been derogated from IHL and human rights should not member states of NATO, since under European Court of Human Rights (ECHR) jurisdiction is essentially territorial Rights applies to natural person and some cases (ex: respect of property) apply to legal persons

Legal Nature of a human right and exhaustion of domestic remedies Rights are against the state, not private persons Remedies available in domestic law must first be exhausted, unless it would be unreasonable to insist

Universal human rights treaties In 1948, United Nations adopted the Universal Declaration of Human Rights which provides for the foundation for the treaties, universal and regional Same year, Genocide Convention was adopted Commission on Human Rights (CHR) and the Third and Sixth Committees of the General Assembly Universal Declaration was followed by treaties on specific subjects such as: o Refugee Convention 1951 o Conventions on Statelessness of 1954 and 1961 o Convention on the Elimination of All Forms of Racial Discrimination 1966 (CERD) Two general treaties adopted on 1966: o International Covenant on Civil and Political Rights (ICCPR) More influential than ICESCR and has a monitoring mechanism, the Human Rights Committee o International Covenant on Economic, Social and Cultural Rights (ICESCR) Concerned with collective rights such as right of people to selfdetermination Does not include the right to development and despite the importance of development, the assertion that it is a right in international law cannot be sustained

Other: o Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW) o Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1989

Outline of the principal civil and political rights A. Right to life ECHR Article 2, ICCPR Article 6 Taking a persons life must be in accordance with law, not arbitrarily ECHR provides for the specific circumstances when a person can be killed such as in self-defence or to effect an arrest Protocol No. 6, ECHR abolished death penalty except in connection with a war The said protocol is binding on all parties to ECHR except Russia Protocol No. 13 abolishes death penalty in all circumstances ICCPR does not itself prohibit the death penalty but it must be limited to the most serious crimes and not to be imposed retrospectively or carried out on a pregnant woman. United States reserved the right to execute a person (except pregnant woman) even if at the time of the crime he or she was under eighteen. B. Prohibition of torture ECHR Article 3, ICCPR Article 7 No one shall be subjected to torture or inhuman or degrading treatment or punishment ICCPR adds cruel treatment or punishment and no one shall be subjected to medical or scientific experiments without his free consent Prohibition is also a customary international law Definition of torture (Article 1 of the Torture Convention 1984) Soering Case: extradition of a person to any (in practice, non-ECHR) state where he is wanted for a crime for which he could be sentenced to death, would, if he would then be likely to spend a lengthy period on death row, be a breach of Article 3 The prohibition in Article 3 is absolute and not subject to any national security exception, express or implied C. Prohibition of slavery and forced labour ECHR, Article 4, ICCPR Article 8

Forced or compulsory labour does not include labour as part of a criminal punishment, military service, to deal with emergencies or normal civil obligations D. Right to liberty and security No one shall be deprived of his liberty except in accordance with law Anyone arrested or detained shall be told the reason and the charge, and shall be brought promptly before a judge and entitled to trial within a reasonable time He shall be entitled to challenge without delay the lawfulness of his detention before a court E. Freedom of thought, conscience and religion ECHR Article 9, ICCPR Article 18 Freedom to change ones religion or belief either alone or in community, public or private ICCPR adds that no one shall be coerced to adopt a religion or belief F. Freedom of expression ECHR Article 10, ICCPR, Article 19 Everyone has the right to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers G. Freedom of assembly and association ECHR Article 11, ICCPR Articles 21-22 Everyone has the right to peaceful assembly, freedom to associate with others, and to form and join a trade union. Elaborated in Article 8 of the ICESCR H. Right to marry ECHR Article 12, ICCPR Article 23 Goodwin case: It was a breach of the Article to bar totally a (male to female) transsexual from marrying a man I. Freedom of movement ECHR Protocol No. 4, ICCPR Article 12 Everyone lawfully within the territory of the state has liberty of movement and the freedom to choose his residence He is also free to leave a country, including his own A national shall not be expelled from his own state or arbitrarily prevented from entering it United Kingdom is not a party to the Protocol and has entered a reservation to the Covenant in effect reserving the right to control immigration J. Right to free elections

ECHR Protocol No. 1, Article 3, ICCPR Article 25 Elections must be held by secret ballot to allow every citizen to give free expression K. Right to property ECHR Protocol No. 1 The right not to deprived of possession enjoyed by natural and legal persons, except in the public interest and in accordance with the law General rule: Deprivation without compensation would be a breach o However, right of a state to enforce such laws as is deems necessary to control the use of property in accordance with the general interest is not affected and usually not require compensation L. Right to education ECHR Protocol No. 1 and ICESCR Article 13 M. Prohibition of discrimination ECHR Article 14, ICCPR Article 26 No one shall be discriminated against authority o Sex o o Race o o Colour o o Language o o Religion o o Political or other opinion

on any such grounds by a public National Social origin Association with a national minority Property Birth or other status

General qualifications to rights Although some in the ECHR and the ICCPR are absolute, others either have specific conditions or are qualified in general terms ECHR allows margin of appreciation in complying with the broader cases involving personal morality o The margin of appreciation doctrine allows the court to take into effect the fact that the Convention will be interpreted differently in different member states

Enforcement Human rights convention needs not only an international machinery, such as an international court or tribunal, but also domestic legal mechanisms by which

judgements of the international court or tribunal can be properly implemented, either by paying compensation or by changing the law or both A. European Court of Human Rights (ECHR) The Courts jurisdiction extends to all matters concerning the interpretation or application of the ECHR. Who can make an application: individual, legal person, NGO or group of individuals, member state against another member state (inter-state case) Application will not be admissible unless all local remedies have first been exhausted Applications and pleadings available to the public Requirements: o It must be made within six months o Applications can be made in any official language of a member state, but if declared admissible, all subsequent documentation must be in an official language of the Court (English or French) The Court sits either as: o Committees of three judges o Chambers of seven judges o Grand chamber of seventeen judges Application is first examined by a Rapporteur (one of the judges) who decides whether it should go to a Committee or straight to a Chamber Committee by unanimous vote may declare inadmissible or strike out an individual application Chamber will decide by majority vote the admissibility of the case If the case raises a serious question of interpretation of ECHR or judgement is inconsistent with the previous judgement of the Court, the Chamber may, before giving judgement, relinquish jurisdiction to the Grand Chamber o Provided, no party to the case objects Most of facts and legal arguments are presented in writing Human Rights Commission is composed of nationals of parties, mostly judges or professors of law elected by secret ballot of the parties to serve in a personal capacity for a four year, renewable term. HRC meets three times a year in New York and Geneva B. Reports A state must submit a report in how it is implementing the ICCPR to the HRC within one year of becoming a party and every five years, ad hoc reports can also be requested HRC also accepts information from NGOs Representatives of each state are questioned in a public hearing about the reports

If a state fails to submit a report, the HRC can still consider the matter and give its views C. General Comments HRC is empowered to issue General Comments on implementation of ICPPR It has issued thirty-one general comments May be regarded as a secondary source of international law D. Individual Complaints Petitioner must first exhausted all available domestic remedies, provided those remedies have not been unreasonably prolonged State has six months to respond HRC will not consider a communication that is already being investigated under another international procedure Difference of HRC to ECHR: o HRCs views are not binding and there is no prescribed sanction for ignoring them, chief weapon of the HRC being publicity Summary of Activities is published in the HRCs annual report to the UN General Assembly