Tutorial 5
What is the structure of international human rights law, what are the
enforcement mechanisms and how do they apply human rights law?
International human rights law refers to the body of law that is composed of customary and written
sources of international law that are aimed at protecting human dignity. This grants individuals
certain fundamental rights vis-à-vis their governments and imposes corresponding obligations on
states to ensure compliance with such individual entitlements. Under certain circumstances, States
may also be under a legal obligation to ensure the protection of human rights vis-à-vis other
individuals. The state may be held accountable for not respecting human rights or for not
protecting such rights sufciently vis-à-vis non-state-actors.
The UN was founded on 26 June 1945 with the adoption of the Charter of the United
Nations. The UN Charter as the founding document of the UN is actually not a 'human rights nor a
legally binding document'.
The preamble states that the peoples of the United Nations are determined: ''to reafri
faith in fundaiental huian rights, in the dignity and worth of the huian person, in the equal
rights of ien and woien and of nations large and siall...''
Article 1, paragraph 3 formulates as a principal objective of the United Nations to:
''achieve international co-operation in solving international probleis of an econoiic, social,
cultural, or huianitarian character, and in proioting and encouraging respect for huian rights
and for fundaiental freedois for all without distinction as to race, sex, language, or religion...''
Later the UN General Assembly adopted the Universal Declaration of Human Rights
(UDHR). This non-binding instrument was the frst document to have constituted the
universally fundamental human rights and is still considered as an authoritative guide
under the UN Charter. The general standards of the UDHR were later translated into
legally binding treaties.
Main characteristics:
- Duty bearers and Rights holders
The mechanism that underlies international human rights law is mainly the state.
It’s the principal duty bearer, whilst the individual is the primary rights holder and
the main benefciary of this body of law.
- Types of huian rights: content
There are 3 different 'generations' of rights uuropean, Inter-American, African
- Types of huian rights: benefciary
'Individual rights' vs. 'group rights'.
The benefciary 'rights holder' is the typically considered to be the individual.
However, certain rights are enjoyed collectively. u.g. article 27 ICCPR.
- Negative vs. positive obligations
States that have ratifed an international human rights convention, do not only
have to refrain from certain harmful actions, but also to take actions: negative
and positive duties.
There are three major regional human rights systems
I. uuropean System
The Council of uurope adopted the uuropean Convention on Human Rights (uCHR). It
mostly deals with civil and political rights, whereas the Council of uurope's uuropean
Social Charter deals with Social and economic rights.
Member state compliance under the uCHR is monitored by the uuropean Court of
Human Rights. This judicial body considers both state and individual complaints
about human rights violations by member states articles 33 and 34 uCHR.
In order to be able to fle an individual complaint at the uCtHR, the individual must
have an individual right to complain article 34 uCHR.
The admissibility criteria are in article 35 uCHR: fle within a reasonable period of
time; claim must not be anonymously;
1. Domestic remedies must be exhausted
The Court allows for wide approach.
ECTHR SALAH SHEEKH V. THE NETHERLANDS
This case concerned a Somali national belonging to the minority Ashraf
population group who applied for asylum in the Netherlands. Salah Sheekh had
Literature: Chapter 6 – International Law, Part 20 & 21 – E-learning, 1
Cases: Salah Sheekh/ Karpenko V. Russia/
, Tutorial 4
been subjected to ill-treatment in Somalia, his sister had been raped and his
brother killed. However, Salah Sheekh's asylum application had been rejected as
the Dutch government argued that he could live in other 'relatively safe' areas in
Somalia (i.e. there was an internal fight alternative). The applicant lodged a
complaint with the uCtHR alleging that his Article 3 uCHR right (prohibition of
torture) had been breached. In the proceedings before the Court, the Dutch
government contended that the Court should declare the complaint inadmissible
as the applicant had not made avail of the opportunity to lodge an appeal with
the Administrative Jurisdiction Division of the Council of State (Afdeling
Bestuursrechtsspraak, Raad van State ). He had not exhausted all available domestic
remedies.
Court did not agree given the previous track-record of the Raad van State on
considering similar cases.
2. The complaint may not be manifestly ill-founded
The criterion was intended to weed out nonsensical claims. The word 'manifestly'
seems to suggest that the complaint will only be dismissed on this ground
whenever any average reader can easily spot that the complaint lacks merit.
However, this does not prevent the Court from taking decisions on this ground
after lengthy considerations on the merits of the case.
ECTHR KARPENKO V. RUSSIA
In this case, multiple Article 6 uCHR claims were made, one of which related to a
murder charge, a charge of possession of fre arms and a charge of documents
forgery.
Final judgments of the uuropean Court are legally binding on the states parties
article 44 and 46 uCHR.
There is no system of opt-out for individual complaint rights under the uCHR, thus all
states are subjected to this jurisdiction. It is thus an integral part of the Convention's
human rights protection. This aspect differs from the protection under the ICCPR and
ICuSCR. In fact, most cased pending before the uCtHR stem from the individual right to
complain, rather than from the inter-state right to complain.
ECTHR OPUZ V. TURKEY
This case was about Mrs. Nahide Opuz, and her mother who had been threatened and assaulted by
H.O., her husband. These incidents were brought to the attention of the authorities and criminal
proceedings were brought against H.O. for actual, aggravated and grievous bodily harm and
attempted murder. However, on all of these occasions, the applicant and her mother withdrew the
complaints. Thus, the cases were discontinued by the domestic courts in accordance with the
Criminal Code.
The applicant fled another criminal complaint with the prosecution authorities requesting that they
take measures to protect her life. In the complaint she noted that H.O. visited the applicant’s new
boyfriend and had threatened him and told him that he would kill the applicant.
In 2008 the applicant’s representative informed the uuropean Court of Human Rights that no such
measures had been taken and the Court requested an explanation. H.O. would be arrested if
spotted near the applicant’s place of residence. The applicants claimed that the state had violated
Article 2 (the right to life), Article 3 (right not to be subject to torture or cruel, inhumane or
degrading treatment) and Article 14 (the right of non- discrimination) under the uuropean
Convention on Human Rights.
Court The State’s duty under Article 2 extended to ensuring that the right to life was
not violated by individuals. Whether the State had violated Article 2, the Court
considered:
- Firstly, the Court found that the authorities knew, or ought to have known at the time,
of the existence of a real and immediate risk to the life of the individual from the
criminal acts of a third party and therefore incurred responsibility to act positively in
response to the applicant and her mother’s claimed risks to life. In fnding this, the
Court considered that the authorities were aware of the violent record of H.O.’s
behaviour towards the applicant and her mother. The authorities failed to take
measures within the scope of their powers which, judged reasonably, might have
been expected to avoid that risk. They did not order the protective measures against
domestic violence provided for under the Family Protection Act and did not issue an
injunction to prevent H.O from being in contact with the applicant and her mother.
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