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International Human Rights Law week 2 notes
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International Human Rights Law week 2 notes
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W2: UN Standard setting and monitoring systemSources: art 38 Statute ICJ
- Treaties, Conventions, Covenants (hard law documents)
- Customary law: state practice+ Opinio iuris: state act as they are used to+ and they also
are convinced that they have to act like this
- General principles of law
- Judicial decisions
- Teaching of learned writers
Other sources IHRL:
- Ius cogens: art 53 Vienna Convention Treaties: ‘high norms in our community, every
state has to accept/obey these norms, they can be written or unwritten’. Court
recognizes these norms by applying it in a certain way
- Declarations, resolutions, recommendations (soft law documents; not binding) – accept:
resolutions of the Security Council is binding!
Human rights instruments
- Charter of the United Nations; ‘preamble, article 1(3), article 2(7)
- Universal Declaration of Human Rights
- Human Rights Treaties; rights/subjects
- Core Human Rights Treaties: ICESCR, ICCPR (2 camps- east/west), ICEFRD, CEFDW,..
UN Human Rights Machinery
- Political bodies: General Assembly, Security Council, ECOSOC
- Experts bodies: ICJ, Advisory Committee of the Council, Officer of the High Commissioner
for Human Rights
- Charter-based bodies: ICJ, Human Rights Council
- Treaty-based bodies: Human Rights Committee, Committee on the ESC Rights,
Committee on the Rights of the Child
www. ohchr.org – here you can find all the information about human rights machinery
Human rights council <-> Commission
New:
- Less members
- Sessions: 3 times a year+ emergency sessions
- Universal Periodic Review
- Suspension procedure (against Libya)
Kept:
- Advisory Committee
- Special Procedures (Rapporteurs and Working Groups)
- Individual Complaints Procedure – mogelijkheid om voor individu klacht in te dienen
,Universal Periodic Review
- Purpose
- Basis for review: information of State, UN entities and NGO’s,..
- Outcome and follow up
Complaint Procedure
- When? If there is a consistent pattern of gross violations of human rights
- Who can file a complaint?Any individual or group claiming to be the victim of the
violations OR Any other person or group with direct and reliable information
- Criteria:Exhaustion of local remedies,No overlap with other procedures, not manifestly
politically motivated
- The complaint procedure is a confidential procedure
Effective or not?
Positive:
- Review of and complaints against all countries, no relation with ratification of treaties
- General participation in UPR process
- Urgent sessions
- Special procedures (Rapporteurs, Working Groups)
Negative:
- Complaint procedure: confidentiality; no individual redress
- States protect each other – diplomacy or justice?
Treaty bodies
- European Convenant on Human Rights (Europees Verdrag voor de Rechten van de Mens)
Human Rights Committe
- International Covenant on Economic, Social and Cultural Rights (1966)
Committee on Economic, Social and Cultural Rights
- International Convention on the Elimination of all Forms of Racial Discrimination (1965)
Committee on the Elimination of Racial Discrimination
- Convention on the Elimination of all Forms of Discrimination against Women (1979)
Committee on the Elimination of Discrimination against Women
- Convention against Torture (1984)
Committee against Torture
- Convention on the Rights of the Child (1989)
Committee on the Rights of the Child
- International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (1990)
Committee on Migrant Workers
- Convention on the Rights of Persons with Disabilities (2006)
Committee on the Rights of Persons with Disabilities
- International Convention for the Protection of all Persons from Enforced Disappearance
(2006)
Committee on Enforced Disappearances
, Treaty body mechanisms
- State reports (Periodic reports, NGO shadow reports and concluding observations)
- State complaints procedures
- Individual complaints procedures
- Interpretation: general comments
Individual Complaints Procedure
- International Covenant on Civil and Political Rights – Optional Protocol
- International Covenant on Economic, Social and Cultural Rights – Optional Protocol (in
force since May 2013)
- International Convention on the Elimination of all forms of Racial Discrimination -
Declaration under Article 14
- Convention against Torture – Declaration under Article 22
- Convention on the Elimination of all Forms of Discrimination against
- Convention on the Rights of Persons with Disabilities – Optional Protocol
- International Convention for the Protection of all Persons from Enforced Disappearance
– Declaration under Article 31
- Convention on the Rights of the Child – Optional Protocol
- International Convention on the Protection of All Migrant Workers and Members of
Their Families – Declaration under Article 77 (NOT operational)
Individual Complaints
- State must have ratified the treaty
- State must have recognized the competence of treaty body
- Exhaust local remedies
Effective or not?
Positive:
- Reporting (regular debate with states on implementation)
- Complains (complaints to UN bodies, development on international human rights case
law)
Negative:
- Selection of members of treaty bodies
- Financial constraints
- Reporting(Burden of reporting/no reports, No comprehensive follow-up)
- Complaints(Several years of procedure, Views or opinions binding or not?)
Treaty Body Reform
- Proposals High Commissioner for HR
- GA Resolution April 2014
Simplified focused reporting procedure
Enhancing independence and impartiality of members, strengthening election
process
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