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  1. Introduction
  2. I. Concept of HR / Fundamental Rts
  3. II. Fundamental Responsibilities
  4. United Nations Human Rights System
  5. Regional Systems of Human Rights Protections
  6. International Human Rights in the Domestic Order
  7. Obligations Imposed on States by International Human Rights Treaties
  8. Right to Life

Introduction

Orientation: HR is the basis of legal structure, both Nx and Int'l. This course will have International approach, although HR initially developed in National context.

Themes:

Specific Human Rights:

Course Materials: 2 sets – not ready yet. HR texts of int’l treaties on HR 100p. Basic texts used in class. Cases and Materials – 400p Illustrative of class work. Mixture. Paper form – Studenten Cursus Dienst – 00.20 of new law bldg. Toledo site for practical info and updates. Also calendar.

Course methodology – introduction and explanation will precede every section. Discussions will also be held in class. Can ask questions during presentations. Okay for nonlawyers. Tutorials for non-lawyers

Exams – Written, closed book, except HR texts – not annotated – underlined or colored, but not annotated. 2Qs. A theoretical, critical analysis question and a practical, hypo. – short essay – 1.5 pages. Structure of answer is impt. 2.5 hrs.

I. Concept of HR / Fundamental Rts

Common Characteristics – why are some rts fundamental?
Philosophically:

Holders of Fundamental Rights

Individuals without regard to citizenship, however some fundamental rts can be reserved for nationals: political rts, suffrage. But this has to be justified.

Private entities can enjoy rights corp. assn. groups, etc. Many rts can apply: expression, religion, fair trial

Peoples – collectivities. Self-determination – what about succession? Right of disposal of wealth and national resources. E.g. african protection of national resources.

Bearers of duty to respect fundamental rights

Primarily the state. They have signed on to treaties. All organs of the state.

Private individuals. E.g. right to privacy from landlord, press – not clear just now Generally legislature applies rights and duties in the state (vertical) Rarely is this applicable between individuals (horizontal) We won’t deal with this.

Human rights are not absolute. There may be governmental interests – balancing process. However, this doesn’t apply to torture – there is an absolute prohibition.

E.g. if there are two persons’ human rights in conflict

II. Fundamental Responsibilities

UDHR – Individuals have a duty to the community. Respect for others and the community. Attempts have been made for Univeral Declaraton on Fundamental Responsibilities. Controversial – more opposition than proponents.

Opponents say it is difficult because the stressing of citizen responsibilities could get out of hand. Governments and states are already stressing that. Gives tool to dictators to abuse this power against citizens.

Proponents: more balanced view. Limits of responsibilities would be a protection. The applicability of Human Right between individuals should also discuss responsibilities.

E.g. UN Subcommission on Human Rights. Some years ago asked a cuban to draft Human Responsibilies:

Duty to behave in a fraternal manner to others.

Duty to preserve the environment.

Duty to participate in political life.

Duty to work

Western States opposed and lost votes, but Economic and Social Council 25-23 decided to stop the discussion. It will rearise. Many former heads of states (also western states) – have assisted.

Corporate Fundamental Responsibilities: Multinationals, Transnational Human Rights violations are hard to localize. Companies have drafted ethical codes – a good step. But at this point this doesn’t exist. State’s Fundamental Responsibilities – States vis-à-vis other states and categories of states. Cuban expert also had duties for the richer nations to poorer nations. Rich nations may accept moral obligation, even historical obligation. But they don’t want a legal obligation.

United Nations Human Rights System

International Human Rights Instruments

UN system and regional systems – especially european ECHR During many decades. HR were important, but not that important. Protection mechanisms weren’t discussed as much as regional systems. This has changed because UN has come to play a more important role, especially with fall of communist regimes. This opened new possibilities. HR got new impetus. But now there is not so much consensus on Rights, protections, sanctions, etc. It is now an issue of political controversy. Fundamental Distinction between two types of protection in UN.

Treaty Based Mechanisms: Human Rights treaties. Inter-state agreements Charter Based Mechanisms: those that apply to all member states Impt because

1. TB are legalistic where as Charter Based are more political

2. Treaties apply only to signatories / ratifiers – All states have ratified some, but some states have only ratified a few. For these states, Charter Based are more important.

Treaty based system Major treaties:

Covenant on Civil and Political Rts CCEPR – fundamental freedoms. Compare also to ECHR. Art 26 on Equality doesn’t appear in ECHR. Also Art 27 protection of minorities. 1st Protocol (independent but related to treaty) 1966 right of individual complaint to HR committee. States might not accept this part. 2nd Protocol abolition of death penalty.

Covenant on Economic and Social and Cultural Rts CESCR – another kind of right.

Civil Political

“Everyone has the rt to”

Control mechanism – independent body with experts that can give independent assessments of HR issues. Enforcement is not clear either. It depends on the state’s responsibilitiy. Issues come up in two ways

1. National reports, e.g. every five years. Explains implementation fo treaty.

2. Complaints individual or other states (never finished). As per 1st protocol

Political Mechanism delegated to a committee of experts ECOSOC No individual complaint, although there is a draft that has been pending for 11 years. It is gathering momentum in the last few years. It may be an optional protocol. Western states oppose.

These were made right after Universal Declaration on Human Rights 1948. draft 1950 UN Convention on Human Rights. 1966 Gen Assy adopted – article by article. Cold War was on. Human Rights was divided to two covenants

Racial Discrimination Convention

Committee set up that examines complaints and national reports

Covenant on elimination of all forms of racial discrimination

Guarantee of Rights

Committee on Elimination of all forms of Racial Discrimination – examinations complaints and national reports.

Convention on elimination of all forms of discrimination against women

Guarantee of Rights

Committee on Elimination of all forms of discrimination against women – examinations complaints and national reports. Also they can begin their own investigation ­

Anti Torture Convention

Guarantee of Rights

Complaints, National reports. Also a growing number of people who don’t want to be deported to another country where they might be tortured.

Optional protocol sets up subcommittee to inspect places of detention. Following the system of the european model.

Convention on the Rights of the Child

Guarantee of Rights

Committee examines national reports. This convention has more in it than initially people were aware of.

Tries to change concern of children from protection to rights. Protectionist gives rts to adults – but childrens are subject of their own rights. Listen to their opinions, etc.

Convention on protection of rights of Migrant Workers and Families Lot of hesitation on this. Ratified by states that send migrants, but by no states that receive migrants. Victims don’t have protection.

Convention on Persons with Disabilities – after the first, there are protections for vulnerable groups. Not yet in force –

Int’l Conv on victims of Forced Disappearances – special protection mechanism – finding information. Force states to provide information. Not yet in force.

Treaties in force, being implemented but decisions are not enforced. All have a backlog. Part-time organizations. E.g. Human Rights Committee 3wks 3 times a year.

Nation-states have so many reports to generate for so many committees. So hesitant to ratify another treaty with another reporting obligation. States want to have streamlining of reporting. Make reports consistent so information can be used for all reports. Merger of Committees – a further step that would assist. The committees oppose it. Those that are against it are the members of the committees themselves.

Charter based system The focus is almost exclusively the Human Rights Council (2005).

Western states complained about UN Commission on Human Rights (Old system). States sat on the Comm for a number of years. Political discussions of Human Rights. Prepared texts of treaties and declaration on Human Rights. And did a good job then. Gradually the Comm also came to address the serious patterns of violations of Human Rights. This became politicized. Choice of countries to examine was political. Countries with powerful friends didn’t get examined. Small countries will less violations but no friends had more examinations. Some examinations were one-sided. Comm met one session of 6wks each year. This often allowed only current topics to be discussed and delt with.

Human Rights Council Some say the result of the reform may be worse states with poor Human Rights records also had a hand in the reform. 47 states are in the Council. Meets much more regularly. Special sessions are possible. Special session on Myanmar (most current example). Previously they had special sessions on Palestine and Darfur. Too early to judge this organization. Composition of council – Western states have less representation. Innovations:

Universal Periodic Review – reivew of all member states HR record. Even states who are not in treaties. National reports every 4 years reviewed by 3-state Troika (drawn by lot). Discussed in council ½ day per state. Conclusions and recommendations are given. Implementation of recommendations is reviewed in next review.

Special Procedures – from old commission – Individual experts can be comissioned to follow a theme, issue or country. Rapporteur. Manfred Novac – on torture. Visit, report, etc. In urgent situations, they may act sua sponte, but generally just advise the Council.

Advisory Committee – an expert body. 18 independent experts to carry out studies for the Council. They can’t operate on their own as their predecessor and most delicate issues will not be sent to this committee. Not the best

Complaint procedure – individuals complain. Examination by working group of advisory committee only to see if there is a pattern. Findings go to working group of Council and if it finds problems, there may be further investigation. Confidential procedure. If there are serious violations and lack of cooperation, the council can go public.

Regional Systems of Human Rights Protections

I. Europe - Systems base for human rights: Council of Europe, European Union, Organization for Security and Cooperation in Europe. These are three very distinct organizations.

1. Council of Europe

A. Introduction – started just after World War II, 6 states. It was the organization of the western democracies of Europe to promote reconciliation in Europe, and to promote democratic values and human rights. Seat of the council in Strasbourg – in Alsace, it is a mixed region. Symbolic, deliberate step. Currently many changes. Gradually this is expanded, now 47 states, the largest is Russia. Now there are new problems. It has developed treaties and laws.

B. Treaties – Human Rights Treaties – website has legal affairs which has all the treaties.

1. European Convention on Human Rights (1950) – most important of the Human Rights treaties.

a. History – Signed in 1950. Drafted on the basis of a UN treaty. Concentrated on Civil and Political rights. Served as basis for other continents. Two parts: Rights and Control. It has been amended often; each time there is a protocol added, now there are 14 protocols, the most recent in 2004. About half of these have added new rights to the list. The other half changes the articles themselves in the control mechanisms. So it is a living instrument. There is an effort to make it easier to change. E.g to change control mechanism, all states have to agree.

b. Rights guaranteed – just an overview for now. It deals only with civil and political rights.

c. Control mechanism – this was a revolutionary mechanism when created in the 50s. One is well known the other is not known so well. Inter-State and individual applications to the European Court of Human Rights is the best known and most used. But also secretary general of Council of Europe can act to intervene for human rights. This is more used in recent times.

1. Inter-State and individual applications to the European Court of Human Rights – this was the first time that an international body would accept applications both from states (already known) and also from individuals. At first you could ratify just the state applications, then later accept individual applications. Nowadays, there are almost no inter-state applications. The bulk now are individual applications. Inter-state applications are exceptional.

a. Organization – have to make a distinction between the old and the new system.

- Before Protocol No. 11 (Before Nov 1 1998)

European Commission on Human Rights – had to filter out the admissible applications. Dismiss them as soon as possible 95% of the cases. Commission also gave an opinion on the merits of the court, (thought it was not a court). It then went to one of two organs:

Committee of Ministers of Europe – could make a final decision in a case. It usually just rubber stamped the European Commission on Human Rights. This was done with cases that were in a settled area of law.

European Court of Human Rights – handled more exceptional cases, or novel areas of law. The commission or the state involved could bring it to the Court. The applicant could not bring it to the Court. (This has changed however.)

Later people asked why the committee as a political body should decide cases.

Also, why have two bodies: Commission and then the Court. - Since Protocol No. 11 (adopted 1994, effective 1998)

Now only the European Court of Human Rights which now handles everything. There is still a committee of ministers. The Commission is completely abolished - Court performs this function.

It is now a permanent court – with full time judges in Strasbourg. Before they were part time, often they had their own job or were retired. Now they have to cut ties with the home country. This is better for having more time. But now judges are losing contact with their own country.

Each country proposes three candidates to the parliamentary assembly of the Council of Europe and they elect one judge for each country. That need not be a national of that country. Russia one judge, Monaco one judge.

b. Admissibility – Articles 34 and 35

- Victim – Personally injured (standing). Amnesty International cannot bring a case. Heirs or Parents could bring it. They must remain a victim throughout the proceeding (mootness)

- Exhaustion of domestic remedies – Characteristic of international complaint mechanisms. Shouldn't embarrass state unless they have given the state the opportunity to correct. (E.g. Pellegrini) (1) Go through the national system all the way to the top. (2) You have to invoke the human rights issue in the national system. It is sufficient to use the national law covering the same right as in the European Convention. An exception to the requirement of exhaustion of remedies: there is clear case law that you will loose. The state will try to show that there are still remedies to be pursued. The court is leaning toward having cases disposed at the national level an is less likely to allow an exception to the requirement of exhaustion of national remedies.

E.Ct.H.R., 28 July 1999, Selmouni v. France;

E.Ct.H.R., 28 September 1999, Civet v. France;

E.Ct.H.R., decision 11 September 2002, Mifsud v. France;

E.Ct.H.R., 28 April 2004, Azinas v. Cyprus.

- Time limit – six months after the end of process in the national system.

- Requirements relating to the merits – (1) complaint can't be incompatible with the Convention, e.g. Invoking a right not guaranteed by the convention. (2) complaint cannot be manifestly ill-founded. This is determined in the early stage and disposed of early on. These first stages are very summary stages. At first glance it is dismissed.

c. Procedure – this is seen as a jewel in the crown of Europe.

1. Filing of the application – this can be initiated with a simple letter – you will receive a form to be filled out. Date of letter is filing date. You don't have to use any of the official languages (English or French), it can be in any of the European languages. Don't have to have a lawyer. If a lawyer is needed, the EU will provide for a lawyer.

2. Interim measures – Court can invite the government concerned to take some interim measures in exceptional cases. E.g. When there is something irreversible, such as deportation or extradition. In most cases the request is honored. Sometimes not, sometimes it is an administrative snafu, other times, it is a flat denial.

E.Ct.H.R., 4 February 2005, Mamatkulov and Askarov v. Turkey. - The state decided that by not complying with the request, it interfered with the right of access to the court in violation to article 34 of the European Convention. Now there are less incidents of refusal to comply.

3. Examination of admissibility – goes to a judge, not necessarily the judge of the country concerned. Some countries have massive volumes of cases. President of chamber assigns cases. Lawyers in the registry examine these cases. Decide which track the case will follow in the admissibility stage:

1. summary proceedings before a panel of three judges – can only say it is inadmissible. Decisions must be unanimous. Ends proceedings. These decisions are not formalized. Applicant just gets a letter stating one sentence reason for non-admissibility. No Appeal. (Cert)

2. Chamber of Seven Judges – ordinary composition of the court. It is sent to this chamber if there is hesitation about admissibility. It can decide it is inadmissible. It must send it to the government involved for it's opinion. The state must be heard before an opinion of admissibility.

4. Examination of merits – it may be admissible only on certain counts. Same Chamber of Seven Judges continues with examination of the case. It may request consideration by a Grand Chamber if 17 judges, the president, vice president and other judges drawn by lot. This is an exceptional procedure, only for very important cases. This is where the Human Rights case law is made in the European Court.

The parties may also come to a friendly settlement after the decision of admissibility.

Examination of written briefs and adversarial proceeding, rarely is there an oral hearing.

(Ad hoc judge for three Belgian cases. It goes at a break neck pace. It is almost unbelievable. Judges don't have a thorough deliberation. It is quite summary in the chamber cases. Grand Chamber is more deliberate.

5. Judgment – Judgment on the merits, but there is only a Decision on admissibility. Court gives Statement of Facts and Principles of Law and Conclusion. Judges of the Chamber vote, and the vote is recorded – dissenting judges can write a separate opinion. If a violation is found, the court can order the state to pay the applicant. It should be just but may not be a full compensation. It has given extremely high amounts, especially if there is property involved. Judgment itself may be determined to be sufficient recompense. (? attorney fees)

6. Review of judgment – if it is decided by chamber – parties can apply for review by grand chamber. Not appeal of right, there is a filtering mechanism. Appeal only of judgments. Decisions on admissibility are not reviewable.

7. Execution of judgment – State involved must execute the judgment. Committee of Ministers oversees the execution of judgments.

d. Towards a new reform of the European Court

1. Statistics – started with enthusiasm in November 1998. After a few months statistics weren't good, and there is concern. The President of the European Court has been lobbying because of the volume of cases. The court is becoming the victim of its own success.

2006: approximately 50,000 new applications came in. 12,000 disposed of as incomplete. 28,000 decisions on admissibility, 1,000 determined admissible. 93% of the inadmissibility decisions are by a chamber of 3 judges. 1,560 judgments on the merits. Huge backlog. Most recent figures cases pending: 104,000. Opening up of Europe to states without a democratic tradition is increasing the backlog.

2. The Court’s attempts to deal with the mass of cases – court is adapting its methods. In its case law there are things that relate to the volume of case, e.g. exhaustion of remedies. Pilot judgments that deal with structural problems. There are hundreds of victims of the same problems. The first case is examined and the court examines the root of the problem and gives an indication to the state to avoid the problem. It gives time to the state to take care of it at the national level. In the interim, it doesn't examine other cases of the same type till the state has had time to respond to the pilot judgment. (Class action-ish) If the state doesn't respond the court will process the 'clone cases'.

3. Protocol No. 14 - Added to help deal with the overburdened caseload of the European Court of Human Rights – 15th anniversary of the Convention

1. New inadmissibility criteria – The court needs an element of discretion – it should be a manner of constitutional court, focusing on the most pressing issues.

But this would disadvantage the citizens who now have a right of access to the court. The new system would let the court pick and choose.

How do you fairly access which cases will be heard and which will be dismissed.

E.g. It raises no substantial issue of law. But this is a court perspective, and doesn't focus on applicant perspectives.

"Article 12: The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that :

a. the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or

b. the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

Do any human rights violations not involve a significant disadvantage?

Fall back clauses: e.g. Tyrer on corporal punishment of a child in class. - not big disadvantage, but it's an important issue.

Vondermeussele case – pro bono is forced labor. EU Ct. HR may say it's not a big disadvantage but it's an important issue.

Certain cases now admissible will be inadmissible. E.g. Reasonable time cases are many, so you could dispose of many cases.

2. Processing procedures – single judge formation. 95 % of cases are declared inadmissible. The 2nd class judges would hear lower level cases. But this can be problematic. E.g. Russian judge of Polish applicant. He can only apply the law, but there might be the problem of how it is applied.

3 judge panel currently can declare cases inadmissible and they must be unanimous. The proposal is to expand their powers to also declare it admissible and also to examine the merits. The case must be a matter of settled law.

This doesn't change the way cases are dealt with on the merits. E.g. 7 judges hearing the merits of cases, or the grand chamber with 17 judges.

3. Extras

Formerly renewable term of 6 years, now nonrenewable term of 9 years for judges.

3rd party intervention by the Commissioner for Human Rights. He would be amicus curiae – helping the court with systemic or structural weaknesses in the law of a certain state. Initially this was proposed as a public prosecutor, but that was not accepted.

Infringement procedure for non implementation of a judgment.

4. Accession to the Convention – Protocol amends article 59 of the Convention, allowing for the European Union to accede to it. It is due to join with the ratification of its Reform Treaty, which contains a protocol binding it to accede. It has been expected to join for a number of years and may also join the Council of Europe as a full member in the future.

4. Group of Wise Persons – May 2005 established to formulate further proposals. November 2006.

They did not endorse regional courts of human rights because they wanted to avoid developing different jurisprudence (margin of appreciation).

They reject the pick and choose system.

They sought a new filtering mechanism, but this would go back to the old commission system.

Proposed domestic judges seeking advisory opinions from the European Court. These wouldn't be binding. Would this reduce workload?

Place a specific obligation on state parties to introduce a domestic system to address violation of the convention. Pinto law: When the italian state has exceeded time on a case, then you can complain to an italian court set up for this purpose.

Make it possible to refer the case to the state after a determination of a violation. The state court would then award compensation.

Reduce the number of judges – too much diversity with 47 judges (one from each state). Increase the support staff. (Some judges don't work very hard – always side with the majority and never write a dissenting opinion.)

2. Requests for information by the Secretary-General of the Council of Europe - Article 52 provides that Secretary General can request information on a particular issue from a particular country. E.g. 1999 he asked a particular question regarding Chechnya on human rights. They gave a cursory report. There was political pressure. But the only fallout was 3 members of the council of Europe were allowed to visit a Russian Federation Human Rights Commission. More recent cases, the Russian Federation is more compliant. Another example was secret detentions from US flights; the Secretary General asked states (it was a little delicate) but there was political pressure.

2. European Social Charter (1961)

. Protocol providing for a system of collective complaints (1995).

. Original Charter is gradually replaced by Revised European Social Charter (1996).

. European Committee of Social Rights (state reports; collective complaints).

3. European Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data

4. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987)

. Two protocols, of a merely technical nature (1993).

. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (visits of places of detention; no individual complaints).

5. European Framework Convention for the Protection of National Minorities (1994)

Advisory Committee (state reports).

6. European Convention on the Exercise of Children’s Rights

7. European Convention on Human Rights and Biomedicine

EU Court can hand down advisory opinions

First protocol prohibits the cloning of human beings.

C. Commissioner for Human Rights

Gives workshops and seminars on the implementation of human rights

Point to shortcomings in the law and practice of individual states.

Make suggestions to state parties.

He is a silent diplomat. But he can speak out more publicly if it is required, but in a diplomatic forum. He isn't an ombudsman dealing with individual cases.

D. Monitoring - Completely a political matter. Assesses the global situation in a country. Two systems one by the committee of ministers and secondly by the parliamentary assembly of the council of Europe.

1. Committee of Ministers (1) Monitoring a crisis situation in a particular state; (2) Thematic monitoring is also done

2. Parliamentary Assembly - Assess how states implement the Human rights convention of Europe. It meets behind closed doors, but it publishes state reports. The assembly can make its own decision on opening and closing discussions on a particular state.

2.European Union - 27 countries (47 in council of Europe) Also EU is vastly stronger than council of Europe (though the council is very effective for a small organization). You have to respect the legal principles and respect human rights.

A.Respect for human rights

1. Normative framework

a. General principles of Community law – states have to respect human rights because this is general principles of the EU – the institutions in the EU have to observe this

b. Treaty on EU – article 6 paragraph 1 & 2. If an organization violates human rights it can be quashed by the court.

c. EU Charter of Fundamental Rights – 2000 in Nice. Non-binding treaty both civil and political and economic social and cultural rights. The 52.3 said:

d. Treaty establishing a Constitution for Europe; Reform Treaty – part two was the entire charter of the Charter on Human Rights. This is not yet adopted – France and Nederlands have refused to adopt. But Lisbon agreement has drafted a treaty to reform the European Union. Article 6. Recognizes Charter and incorporates by reference. Some states had a problem with that, Poland and UK have as special solution. A second paragraph says the Union shall accede to the treaty. This is welcomed by Costa, president of the European Court - it solidifies its position on Human Rights in Europe. What is the consequence of the EU acceding to the Charter on Human Rights?

2. EU Agency for Fundamental Rights - Seat in Vienna Austria. 2007.

Article 2: objective is to provide relevant organizations and states with assistance and expertise relating to fundamental rights.

Scope of the agency is dealing with the competences of the European Community, in a nutshell it deals with economic matters. EU matters such as police and security aren't dealt with. Also purely internal matters are not dealt with. They don't deal with third party states outside Europe.

Tasks: Collate information, encourage scientific research, publish thematic conclusions, publishes and annual report

It has been criticized because a political organ will set up its agenda. The council will set up a multiannual agenda.

3. Control of EU acts by the European Court of Human Rights - there has been a clash before because if the EU acts, the EU court couldn't act. But if it accedes,

a. De lege lata

- E.Ct.H.R., 18 February 1999, Matthews v. United Kingdom.

- E.Ct.H.R., 30 June 2005, Bosphorus Airways v. Ireland. Is this a UN case? In the fight against terrorism. UN Chapter 7 said certain measures had to be taken against terrorism. If an aircraft is in your territory from Yugoslavia, you have to impound it. EU drafted a similar resolution. Ireland so impounded 2 aircraft from Bosphorus. The EU court said there is a legal basis, Ireland complied with its obligations. Was it justified in the present context: EU court described the extent to which it could control national measures based in implementation of binding provision of EU law. Although states are responsible, state action will be presumed ok as long as the state protections of human rights are okay???? In this case, Court said the EU offers sufficient protection and there is adequate control. Court of Human Rights respects the Court of Justice.

b. De lege ferenda: accession of EU to European Convention on Human Rights?

B.Human rights policies

1. Within the EU - primarily a matter of domestic law. Within the field of competence of the EU, certain specific human rights can be protected. E.g. Citizenship rights, right to vote, fight against discrimination.

2. In external relations - Most important area – 11.1 Treaty on EU CFSP.

a. Democracy, rule of law and human rights as objectives of the common foreign and security policy

b. Implementation of the human rights policy

1. General instruments – common strategies, positions, actions, etc. Guidelines on human rights – most known is the one on the death penalties. EU should focus on those issues. There is pressure to abolish death penalty. EU intervened in US case on death penalty for juvenile.

2. Specific actions vis-à-vis third countries –

Human rights clause in treaties: “Human rights are an essential element in the relation between the parties.” EU can make positive measures to promote human rights. If serious violations occur, the EU can express its concern, discuss it, even suspend the execution of the agreement. A smaller country, that may be powerful pressure to protect human rights.

Human rights dialogs

3. Funding of projects – e.g European initiative for democracy and human rights EIDHR – funding activities in third world countries to strengthen democracy and the rule of law.

3. Organisation for Security and Cooperation in Europe

Largest organization 55 states – from Helsinki agreement to maintain stability. All EU states and US Canada and most of the Caucus states of former Soviet Union. Security organization – highly political with the aim of protecting security in Europe. Now focusing on ethnic conflicts in eastern Europe: Frozen conflicts. This organization is just security, but human rights contribute to security and peace. But the primary focus of this course is human rights. Unlike the EU it is a low level organization.

II. America

American Convention on Human Rights (1969), setting up an Inter-American Commission on Human Rights and an Inter-American Court of Human Rights

American Convention on Human Rights (1969), setting up an Inter-American Commission on Human Rights and an Inter-American Court of Human Rights in force 1978. Civil and Political rights like European Convention on Human Rights. There is a reference to economic, cultural and social rights. Two protocols one on economic social and cultural rights and one on the death penalty. Control mechanism is like previous system in Europe with commission and court.

US and Canada aren't members.

III. Africa

- African Charter on Human and Peoples’ Rights (1981), setting up an African Commission on Human and Peoples’ Rights

- Protocol establishing an African Court on Human and Peoples’ Rights (1998)

Another important innovation is rights of peoples. We don't know what it means since the African court has not yet handed down any judgments. The court was composed in 2006 and it will probably merge with the African Court of Justice. This difficult because they have to collaborate with the African Commission and that is not yet happening, perhaps for political reasons.

IV. Asia

There is no current system, there is a lot of diversity in the region. Currently the only recourse is the UN system. Now the UN is only handing down nonbinding views.

International Human Rights in the Domestic Order

Can the treaties be used by citizens. What happens if you get a ruling? Will you actually improve your situation?

I. Status of international human rights norms in the domestic legal order.

A. Direct application in the domestic legal order. As an individual you can rely directly on the provisions of an international treaty in a case before a domestic court. Most treaties don't speak about this issue. It is up to the constitutional law in each of the states. In some few cases, the treaties have said that the monist system countries have got it right.

Monist System – law is law, whether created domestically or internationally. This is the position of most states in the world.

Dualist System – if a state ratifies a treaty, there is no change in domestic law. An implementing act must be done. E.g. British system – used to be they couldn't access the rights directly. But law has changed: Human Rights Act allows them to access the rights directly.

There is some ambiguity nevertheless. Courts are not always sure if they can force the authorities to act in favor of a right protected by treaty. Some say that official actions and legislation and even court actions can be measured against European Convention on Human Rights.

Some say that a competent authority can annul an act, but there isn't clarity about what comes in its place. Could the court resolve the matter completely? Here there is often a misunderstanding. If there is direct access to the rights, this should be possible. Sometimes there is blurring of the line between mere review and actually declaring a remedy.

Example: Judicial Review: Someone wants a building permit – this is determined to be a disproportionate burden to property rights. Now they have to go back to the commission – maybe it will be refused again for other (prejudicial?) reasons. Courts are much more reluctant to impose obligations on individuals and public authorities. But where is the punch of the right

There may also be primacy of treaties over domestic law. E.g. Belgian law yields to treaties. That is after all, what a treaty means. What about treaties that are in conflict with the constitution.

B. Right to an effective remedy, in case of an alleged violation of fundamental rights and freedoms. Article 13 of EU Convention on Human rights – “Everyone whose rights and freedoms as wet forth in this convention shall have a remedy before the national authority. Notwithstanding that the violation is made by a person acting in an official capacity.” The machinery of human rights is subsidiarity. In the first years of the European Court this wasn't that important, but now the court is insisting on domestic remedies. Creates a clear link between the international treaty and the domestic system. This applies only to violations of fundamental rights and freedoms as guaranteed by the Convention itself. So you have to invoke this article together with another article. E.g. Article 13 + Article 6 on fair trial and reasonable time. So there must be a domestic remedy for this. Pinto – delay in the delay proceedings.

Effectiveness of the remedy -

Procedural Element – Examine complaint in a way that ensures procedural fairness.

Substantive Element – Grant appropriate relief in case the domestic organ agrees there is a violation. This still needs through and development. Inter American court of human rights is more imaginative. Generally only financial compensation is offered.

Discretion left to the States: form in which rights of the treaty are secured; form of remedy.

II. Effects of finding of a violation by an international control organ. - Cases in which the international human rights court found a violation. What are the results of that?

A. European Court of Human Rights

States have an obligation to comply. (Article 46.1)

There is an obligation toward the applicant the put an end to be breach and redress the effects “restore as far as possible” to how things were before the violation (stop it and fix it). The state may choose the means, very exceptionally, the court may order the state to take certain measures – so far this has only happened in cases of arbitrary detention.

Assadnidze v Georgia – Release ordered – Georgia complied immediately

Ilascu v Moldova and Russia – Two states already indicates complexity of the case. The region is technically part of Moldova, but was in the hands of Russian puppet. Release ordered – 3 years before compliance. Russians flatly refused. Moldovians really had no power. Probably just wore them down till they just released them just to get over the case.

Reopening Domestic procedures may be an effective remedy. Recommended by the Committee of Ministers – This committee also has the obligation of oversight – so it will bring this before the states.

Court itself has timidly indicated in its judgment that retrial may be a good idea. It hasn't ordered it, but it has encouraged it. In this type of case, .... seems to be a good idea. Typical way to make victim whole – restore the right, or financial reparation. Article 41 requires a just satisfaction – I.e. A financial reparation. Gives competence to the European Court to order such an action. The court is becoming more hesitant about this, especially because the amounts were disproportionate – And generally to the rich. Whereas those who were tortured and killed received less. There is a schema – but it is secret. The InterAmerican Court is much more creative – e.g. With disappearances or torture. Structural changes are needed.

Obligations of a more general nature to avoid similar violations in the future. How many laws have been changed because of judgments of the European Court. Sometimes there is a simple statement of the violation from the court, and the state won't see a need to make structural changes. The committee of ministers may have a discussion with the state to ensure the matter won't arise again, before closing the case. The Committee of Ministers has asked the Court to indicate when it believes there is a structural problem and what measures might be needed. This saves the Committee's political capital. This will help to defray the court's docket. (Pilot Judgments are also a way of responding to the Committee of Ministers' request. Some states will rely on judgment of the European Court in a Pilot Judgment to make changes in similar situation.

Broniowski v Poland – families who lost property when land was annexed by Russia. Polish legislator had to give reparation, and till this happened, the court suspended clone cases. Law changed.

Supervision of the execution (Article 46.2) Final judgment of the court shall be transmitted to the Committee of Ministers which shall supervise its execution. Committee on Human Rights and InterAmerican Court have to supervise their own judgments. For many years, this was very easy, and states were very compliant. More recently there has been delay and reluctance to comply. Loisydu – Turkey controlling northern Cyprus. Property lost to Turks and their supporters. Two judgments: 1995 – violation of property rights, 1998 – pay satisfaction to property owner. Turkey recognizes Turkish Cyprus as a separate state and they won't comply. Committee of Ministers is becoming more urgent with the Turks. Possible accession of Turkey to the EU. Some years later, the Turkish government made the payment. The committee of Ministers thanked for payment, but said she still needs here property.

Obligations Imposed on States by International Human Rights Treaties

Obligation to secure human rights to everone within the jurisdiction of the state
Nature of the state's obligations and internationa review of state action or inaction
See HRC General comment # 31 (80) of 29 March 2004 on the nature of obligation imposed on states parties ot the covenant
Negative and positive obligations
Negative obligations - States to refrain from interfering with the rights of the people.
Principle obligation to respect the human rights of its people.
Conditions for lawfulness of an interference in human rights
Explicitly admitted limitations on the unbridled freedom of the citizens - E.g. Article 8 of the European Convention on Human Rights. E.g. here telephone tapping.
Legality
Existence of a basis in domestic law
General rule - it must be there an clear enough for civil servants to comply - otherwise there is danger of arbitrary act by civil servants. e.g. telephone tapping statute
Compliance with general rule. - There is also some specificity as to how human rights will be protected, as little interference with rights, consistent with the policies reflected in the General Rule. E.g. telephone tapping only in the case of certain crimes.
An international court examining the matter should examine not only the international compliance, but should also verify compliance with domestic law. However it is almost impossible for the international court to have the necessary expertise. They will generally defer to national supreme court.
Quality of the law
Accessibility - Published law - unwritten princples are problematic. But if they have been acknowledged by courts, you can find them.
Precision - Law can't be overly broad or ambiguous. Citizens should know when they are putting their human rights at risk. General rule must be sufficiently precise - need not be too detailed; no magic formula: Professional rules more precise and technical, criminal provision on 'immoral acts' needs more specificity.
Maestri v Italy 2004
Protection against arbitrary interferences in particular in cases of discretionary power of authorities should be contained within the law itself. Circumstances to use the power, e.g. list of crimes, internal review of the measure.
Finality - there has to be a particular aim when restricting human rights - generally it is very easy to find legitimate aims. Protection of health, morals, rights and freedom, public order and security.
Izmir Savas Karsitlari Demgi v Turkey 2006
Necessity, in a democratic society - primary area of discussion
Concept of necessity: pressing social need that requires this particular measure. It need not be indispensable - but it need not be merely reasonable or desireable.
Based on the casuistry of the case law of the European court:
A democratic society must protect itself
Look to the stated reasons of the national authority
Relevant - there is a plausibility and a reasonable link between the measure you are taking and the aim you are pursuing
Sufficient - the reasons given should make it reasonable to take the measure
Proportionality - effects on the individual concerned are in proportionate to the aim pursued. This is a fact specific inquiry. A measure may begin by being propriate and only after a time, the measure became inappropriate. Did the authorities attempt to find a less intrusive measure?
Put all the government values and aims on one side.
Put the citizen's interests on the other side.
It is often a subjective determination.
Dudgeon v UK 1981 - The court finds that the Irish law goes to far in restricting human rights in the interest of protecting public morality. However, prohibition for younger persons, e.g. 18 or 21 would be okay.
Legality - Law existed and was validly passed.
Finality - Aim of the law - preserve morals - court said this was met. But complete prohibition seems too much for the court. This isn't consistent with other european states.
Necessity - some regulation is justifiable especially where a minor is involved or other cases where there may be dimished capacity for consent. Court takes note of the consensus on morality in the EU. Disproportionate. Consistency with developing moral standards in Europe. It is a strong argument before the European Court when you can argue that your state is lagging behind the rest of the EU.
The states have grumbled about the international court's intervention, but generally they have complied.
Implied Limitations - Hirst v UK - Felons can't vote. Legal, Finality, but disproportionate. It should be narrowly taylored.
States have some restrictions on the rights, e.g. there is a right to free elections, but what of the right to vote, or stand for elections. And what about the conditions for these rights. Realism says some conditions can be placed. The court will read reasonability and implicit conditions.
It used the three conditions above: Legality, Finality and Necessity (Pressing social need: relevance, sufficiency and proportionality of measure).
Positive Obligations
Aspects of the positive obligation - e.g. providing for education: schools, universities, etc.; health: providing for hospitals, doctors, regulation of the professions, etc.
Obligation to fulfill - to ensure effective respect for fundamental rights and effective enjoyment of rights
Obligation to protect - to regulate relations between individuals
Criteria for determining the scope of a positive obligation - public authorities don't like this question - they believe this is purely political and at the discretion of the state actors and that judges should not interfere.
Fair balance (proportionality) between the general interest and the interests of the individual, having regard for the diversity of situations in states and the choices which must be made in terms of priorities and resources - Ilascu v Moldova and Russia 2004.
National margin of appreciation and international control of state action or inaction. Margin of appreciation is typically European. Present court is much more conservative and takes governmetnal interests very seriously.
Notions of margin of appreciation - deference to discretion of public authorities. Found originally articulated in 1976 Handiside vs UK. "The Little Red Schoolbook"
Scope of margin of appreciation
It is difficult to define since it it quite an abstract principle. One can speak of wide or narrow margin of appreciation - it is a matter of judicial restraint or judicial activitism.
Relevant factors: human right in issue, nature of the measure in question - e.g. broad policy issue versus applicability to an individual, subject matter e.g. personal sexual conduct narrow margin, versus wide margin for economic rights, views in other states - consensus in the EU. "Strict scrutiny for certain rights, rational review for policy and ethical issues."
Started with negative obligations, then with positive obligation
In case of wide margin court will still look for compensation by procedural safeguards protecting human rights interests.
European supervision - Margin of appreciation goes hand in hand with european supervision. The state have wide latitude do business as needed, but the court will oversee to see if that latitude is abused. This is sometimes understood in other areas of the world that wanted the latitude, but didn't have any oversight.
Examples
Handyside v UK 1976 - Little red schoolbook - anti-authoritarian style - originally danish - spread over europe that had lots of opposition. English publisher convicted of publishing a book harmful to morals of minors. Legality and Finality met. But Necessity - the country is in a better position to make that assessment. They have a margin of appreciation there is a range of possible lawful actions the state can take and it it stays in that range, it is lawful. Also found this deference of national courts to administrative officials. In this case, the court found the English courts went beyond the margin.
Sabin v Germany and Sommerfeld v Germany 2003
Hatton v. UK 2003 - see margin of appreciation in this case. Two decisions, chamber and grand chamber.
Human rights - noise is related to private life, family, property.
State has acted to allow private action - but it balanced interests in legitimate legislative action. Margin should be narrow. Government studied and saw not sufficient research to balance the interests.
Grand chamber leaves open negative or positive obligation. But it gives a wide margin of appreciation - difficult policy decision - lots of interests and the planes will go somewhere. Further, a lot of possible solutions are possible - as long as the issue was studied and a rational balance was made, the UK is okay.
Case shows that states don't have to choose a solution that is the least restrictive of human rights. But there is a risk in choosing to burden human rights - what other state interests are at issue.
Obligation to redress violations of human rights

Right to Life

(Art. 2 ECHR abd Art. 6 CCPR)
Supreme value in the hierarchy of human rights - however, it is not so self evident that the court speaks of a hierarchy of rights can you say some rights are less important or unimportant.
E.Ct.H.R 22 March 2001. Streletz. Kessler and Krenz v. Germany and K.-H.Wv. Germany ECHR 2001-II
Scope of Application: protection of the 'life' of individuals - Article 2 of EU Convention and Article 6 of UN convention. Physical life of the individual, when is the beginning? Is there a moment before death when the right to life has already stopped - euthanasia, persistent vegitative state.
Protection of unborn life - Vo v. France 2004 - Identity mistake leads to medical procedure leading to abortion. Vo prosecuted for involuntary homicide. Court said they didn't have to apply Article 2, but even if applicable, they said not violated. However, the court was utterly divided 17 judges: 4 groups with concurring and dissenting opinions:
Article 2 completely inapplicable - no violation - 5 judges
Article 2 - not sure if it applies - in any event sufficiently protected, no violation - 8 judges - Judgment of the court - but this isn't the majority of the court.
Article 2 applies - but sufficiently protected - no violation - 1 judge
Article 2 applies - and it was violated 3 judges.
So it is still an open question in the court. This will have to be decided if a case comes where if article 2 applied, there would be a violation.
Scope of Protection - assuming article 2 is applicable, what rights are guarantees.
Negative Obligation: Prohibition of arbitrary interference with a person's life - applies to intentional and unintentional killing.
Principle
Prohibition of interference with a person's life
Applicability of Art. 2 to ill-treatment that has not resulted in the victim's death?
Ilhan v Turkey 2000
Makaratzis v Greece 2004
Exceptions
Use of force under certain conditions -
State responsibility for the interference with a person's life - You have to prove state action, but what about when that isn't clear, e.g. disappearances.
Kurt v Turkey 1998
Cakici v Turkey 1999
Situations susceptible to justify the use of force - structure is not legality finality application, here it is situation and proportionality of force. Situation is broader than the few seconds of the shooting, etc. What lead up to the act, what control measures were there. E.g. who sent the police, how were they prepared, who decided how they woule be armed.
Generalities
Three Situations
Defense of a person or persons from unlawful violence
Lawful arrest and detention
Lawfully quelling a riot or insurrection
Force no more than absolutely necessary
Applications
McCann v UK 1995 - Killing of 3 IRA members in Gibraltar (part of UK of tip of Spain). It is a rock, you can't slip in unnoticed. Soldiers sent to prevent IRA attack, suspected remotely activated carbomb. IRAs came in and were followed. IRAs meet at a car and leave 2 and 1. Soldier jumps to conclusion the bomb is activated, the three are suspected of trying to push button - all three shot to death. Problems: Shot in the back, no bomb, weeks later keys of IRA were linked to car in Spain. Highly detailed judgment said that soldiers justified, but whole action was more than absolutely necessary. 3 defects:
Why not arrest them at the border - UK: they hadn't done anything yet.
They were too convinced that they would find a bomb - if you are going to use deadly force, you should be more cautious.
Soldiers were trained to shoot to kill - not shoot to stop.
Case is a handbook on what is necessary for deadly force, but it was a 9-10 decision. Criticized because it is hard to know all this under the pressure. The composition of the court had more senior judges in the minority - Margaret Thatcher was outraged.
Nachova v Bulgaria 2005
Situations susceptible to justify the use of force - obligation to protect life, especially the lives of third persons.
Need for an effective official investigation - Gulec v Turkey 1998 Death should be investigated especially killing by state action. Efforts must be made to make sure that the investigation is impartial.
Death Penalty
Developments in international law - Europe is a death penalty free zone. Death penalty is abolished in all the European states.
6th and 13th protocol to ECHR and 2nd protocol to CCPR
6th protocol - abolish death penalty except in time of war
13th protocol - abolish the death penalty categorially
2nd protocol - abolish death penalty except in time of war
Ocalan v Turkey 2005 - pkk leader sentenced to death, before appeals ran out it was commuted to life without. Court didn't quite say that the death penalty exception to article 2 has been tacitly abolished.
Judge v Canada
Conditions upon which the lawfulness of death penalty depends, assuming that it is not prohibited per se
Specific conditions -
Compatibility with other Human Rights
Soering v UK 1989
Ocalan v Turkey 2005
Positive Obligation "Right to life shall be protected"
Protection against risks created by public authorities
LCB v UK 1998 - long term effects of exposing soldiers to effects of atomic bombs - sit on beaches when bombs were exploded.
Makaratis v Greece 2004 - wild car chase by one then a group of police cars - with shooting. Even though he survived he won the case. State has to regulate use of firearms by police.
Protection against risks created by other individuals - also hazardous activities.
Effective criminal law provisions and law-enforcement machinery
Preventive regulations - Oneryildiz v Turkey 2004
Preventive operational measures - also hazardous activities.
Protection of an identified individual - Osman v UK 1998 - there were threats - did authorities have sufficient indications: insane, but would he act on it. No violation. Stalker
Protection of society as a whole - Mastromatteo v Italy 2002
Protection of an individual against self
Suicide Keenan v UK 2001 - if there is a manifest attempt by an inmate in jail, state must intervene.
Hunger Strike Nevmerzkitsky v Ukraine 2005 - force feeding - conflict of rights: life and right of expression - only means of self expression. Where it becomes life threatening, the state can intervene. But at this point the court has not yet said if the state can let the person die.
Euthanasia Pretty v UK 2002 - Article 2 doesn't protect right to die - respect for privacy (Article 8) not violated due to compelling state interest - vulnerable people could be left unprotected. This was an expedited procedure - 2 weeks later she died. Court hints to british prosecutors that they shoudl use their discretion not to prosecute.
Prohibition Against Torture
Scope of Application
Cruel, inhuman or degrading treatment or punishment
Minimum level of severity
Distinction between different forms of ill-treatment
Cruel or inhuman treatment or punishment
Degrading treatment or punishment
Only in case of involvement of public official (UN Convention against Torture)
Torture
Relevance of the qualification of an ill-treatment as torture
Constitutive elements
Ireland v UK 1984
Selmouni v France 1999
Prosecutor v Kunarac 2002
Scope of Protection
Negative obligations
Absolute prohibition
State responsibility for ill-treatment - Labita v Italy 2000
Examples of ill-treatment
Ill treatment by police and security forces
Ribitsch v Austria 1995
Selmouni v France 1999
Nevmerzhitsky v Ukraine 2005
Jalloh v Germany 2006
Prison conditions
Kudla v Poland 2000
Kalashnikov v Russia 2002
Ramirez Sanchez v France 2006
Death row
Soering v UK 1989
Kindler v Canada 1993
Johnson v Jamaica 1996
Life-long prison sentence Leger v France
Deportation or extradition of aliens
Sexual violence
Treatment of children
Corporal punishment
Criminal prosecution and trial
Positive obligations
Preventive measures - A. v. UK 1998
Redress
Need for an effective official investigation
Punishment of perpetrator
Torture
Other forms of ill-treatment MC v Bulgaria 2003
Reparation for victim
Prevention
European Convention 1987
Visits of place of detention by European committee for the prevention of torture
Standards
Relevance of Committee's findings for European court of human rights
Optional protocol to UN Convention against Torture 2002
Right to Liberty and Security

Object and purpose of Article 5 ECHR
Notions of liberty and security
Obligations of the state:
Negative obligation: prohibition of arbitrary deprivation of liberty
Positive obligation: protection against deprivation of liberty by other individuals
Notion of deprivation of liberty
State of liberty Weeks v UK 1987
State of custody - borderline cases:
Compulsory residence of mafiosi in an isolated island Guzzardi 1980
Placement fo child in a psyciatric institution at the request fo parents Nielsen v Denmark 1988
Holding of aliens in the transit zone of an international airport Amuur v France 1996
Confinement of sect members in a hotel for deprogramming Reira Blume v Spain 1999
Placement of an elderly person in a nursing home against his or her will HM v Switzerland 2002
Justification of deprivation of liberty of an individual
Initial arrest or detention
Situations in which a person can be deprived of liberty
Detention after conviction by a compentent court
Conviction
Competent Court
After conviction by a compentent court - Quid revocation, by administrative authority, of conditional release of a person previously convicted by a court Weeks v UK, 1987, Stafford v UK 2002
Arrest or detention for non-compliance with an order of a court or in order to secure the fulfillment of an obligation prescribed by law Art 5.1.b
non-compliance with an order of the court.
To secure the fulfilment of an obligation prescribed by law - e.g. to order to undergo examination of physical or mental state, e.g. Berlinski v Poland 2001
Lawfulness
Continuation of the detention
Detention on remand
Other cases of deprivation of liberty
Guarantees afforded to persons deprived of their liberty
Right to compensation
Right to Respect for Private Life, Family Life, Home and Correspondence
Freedom of Expression
Right of Property
Right to a Fair Trial
Equality and Non-Discrimination
Protection of Minorities
Economic, Social and Cultural Rights

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