HR Notes in Remedies.docx

7/27/2019 HR Notes in Remedies.docx

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BANCE NOTES IN HUMAN RIGHTS 1Module 10

Remedies

Remedies for the Promotion, Protection and Enforcement of Human Rights

Every Right has a RemedyIt is a basic principle that for every right violated, there must be an effective remedy. As one writer has

said human rights without effective implementation are shadows without substance.

Legal Basis for the Grant of Remedy

a. Universal Declaration of Human Rights (UDHR)

Everyone has the right to an effective remedy by the competent national tribunals for acts

violating the fundamental rights granted him by the constitution or by law.

b. International Covenant on Civil and Political Rights (ICCPR)

State parties shall ensure that any person whose rights or freedoms as herein recognized are

violated shall have an effective remedy, notwithstanding that the violation has been committed by

persons acting in an official capacity; and to ensure that any person claiming such a remedy shall have

his right thereto determined by competent judicial, administrative or legislative authorities or by any

other competent authority provided for by the legal system of the State and to develop the possibilities

of judicial remedy.

The United Nations and Human Rights: Remedies under the UNThe promotion and protection of human rights has been a major preoccupation for the UN since 1945,

when the founding nations resolved that the horrors of The Second World War should never be allowed to recur.

International Bodies, Rationale

The implementation of human rights treaties cannot be left to states alone. There is a need, even in the

case of those states committed to human rights, for some form of independent scrutiny. Human rights treaties,

therefore, universally provide for some mechanism of enforcement or supervision, which is usually seen by

an independent committee, commission or court. Each of the UN treaties has its own treaty body or committee.

Two Thrusts/Aspects of UN Protection and Promotion of Human Rights

The mechanisms for enforcement or supervision of human rights treaties take one of two forms:

a. Reporting System may also be called the monitoring or supervision system. Under thissystem, state parties are required to submit, on a periodic basis, a report to the relevant UNcommittee outlining the progress made and the problems encountered in the implementation of

the treaty. The committees are given the task of reviewing these reports during their annual

meetings. A constructive dialogue then takes place when state parties are made to respond toinquiries made by committee members, mainly taking questions from reports submitted by non-

governmental organizations and elicit assurances from the states concerned that problems will be

addressed and remedied.

b. Complaints System (System of Communications) - may also be called as the petition system.These operate in a manner analogous to domestic legal proceedings in which an independent body

is asked to deliberate upon a dispute between two parties and offer a decision or view as to the

legal solution. However, this is not a means of appeal but simply a means of ensuring that the

states concerned comply with their treaty obligations. The provision of remedies, in the sense

understood in domestic law, is therefore a subsidiary concern as to most human rights treaties. In

all cases, therefore, the emphasis is upon the provision of domestic remedies within the national

legal order, and international scrutiny will only follow when those remedies have been exhausted.

Classification of Mechanisms/Procedures

1. Charter-based Mechanisms are mechanisms based on the UN Charter which include:a. Human Rights Council (formerly/replaced The Commission on Human Rights) is the

main policy making body dealing with human rights issues. It is composed of 53 member

governments and does the following:


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Prepares studies, makes recommendations and drafts international HRconventions and declarations.

Investigates allegations of HR violations and handles communicationsrelating to them

Mechanisms/Procedures under the HRC

i. Universal Periodic Review unique process which involves a review ofthe human rights records of all UN Member States. This provides theopportunity for each State to declare what actions they have taken to

improve the human rights situations in their countries and to fulfill their

human rights obligations. This is designed to ensure equal treatment for

every country when their human rights situations are assessed.

ii. Advisory Committee provides expertise to the Council and mainlyfocuses on studies and research-based advice. It is focused and limited to

thematic issues pertaining to the mandate of the Council, namely

promotion and protection of all human rights. It does not adopt

resolutions or decision.

iii. Complaint Procedure addresses communications submitted byindividuals, groups or NGOs and examines the human rights situation

within a State. The council therefore does not decide on individual cases

but rather, check the complaints to see if there is a consistent pattern of

gross and reliably attested violations of human rights and fundamental

freedoms. This is confidential but the thrust is to enhance the cooperation

with the State concerned.

[Note] Also called Procedure 1503, it bears the number of the resolution

by the former UN Commission on Human Rights which established it.

iv. Special Procedures (Rapporteurs/Working Groups) are independenthuman rights experts with mandates to report and advise on HR from a

thematic or country-specific perspective. Special procedures undertake:

country visits; act on individual cases and concerns of a broader, structural nature

by sending communication to States and others n which they bring

alleged violations or abuses to their attention

conduct thematic studies and convene expert consultations contribute to the development of international human rights

standards

engage in advocacy, raise public awareness, and provide advice fortechnical cooperation.

2. Treaty-based Mechanisms (Conventional Mechanisms)International Law vs Domestic Law; Which takes Precedence

International law takes precedence over the domestic law of a state. Thus, when a nation signs a treaty,

it is pledging to adopt the provisions set forth within the treaty into the domestic law of a state. In this

way, treaty-based mechanisms vary from charter-based ones. Whereas the UN Charters mechanisms

are at times either not legally binding or require permission to be executed, treaties are backed by the

norms regulating international law and are therefore legally binding.

International legal instruments; bindingInternational legal instruments take the form of a treaty (also called agreement, convention, protocol)

which may be binding on the contracting states. When negotiations are completed, the text of a treaty

is established as authentic and definitive and is signed to that effect by the representatives of states.

Specific Treaty-based bodies

There are nine core international human rights treaties:

1. Human Rights Committee is the body of independent experts that monitorsimplementation of the International Covenant on Civil and Political Rights by its State

parties.


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BANCE NOTES IN HUMAN RIGHTS 3Tasks:

a. Monitoring System after one year of acceding to the Covenant and every fouryears, state parties submit a report to the Committee which it will examine and

give recommendations in the form of concluding observations.

b. Complaint System the committee may consider inter-state complaints and byvirtue of the First Optional Protocol to the Covenant, the Committee now has

the competence to examine individual complaints with regard to the violations

of the covenant by states party to the protocol.

[Note] As such, complaints may be filed by another state or by an individual of that

state.

2. Committee on Economic, Social and Cultural Rights monitors the implementation of theState parties to the International Covenant on Economic, Social and Cultural Rights.

Tasks:

a. Monitoring System after one year of acceding to the Covenant and every fouryears, state parties submit a report to the Committee which it will examine and

give recommendations in the form of concluding observations.

b. Complaint System by virtue of the Optional Protocol, the Committee hascompetence to receive and consider communications from individuals claiming

that their rights have been violated. They may also undertake inquiries on

grave or systemantic violations of any of the economic, social and cultural

rights set forth in the Covenant as well as consider inter-state complaints.

3. Committee on the Elimination of Racial Discrimination body that monitors theimplementation of the Convention on the Elimination of All Forms of Racial

Discrimination by its State parties.

Provides for the same tasks as the first two except that there are three othermechanisms in its monitoring functions:

a. Early-warning/Urgent Action procedureb. Inter-state complaintsc. Individual complaints

4. Committee on the Elimination of Discrimination against Women monitorsimplementation of the Convention on the Elimination of All Forms of Discrimination

Against Women.

5. Committee against Torture monitors implementation of the Convention AgainstTorture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Three

monitoring procedures: (a) individual complaints, (b) undertake inquiries, and (c) inter-

state complaints.

6. Subcommittee on Prevention of Torture by virtue of the Optional Protocol the SPTvisits places where persons are deprived of their liberty in state parties. Under the

Optional Protocol, state parties shall establish an independent national preventive

mechanism for the prevention of torture at the domestic places as well as to inspect

place of detention.

7. Committee on the Rights of the Child monitors implementation of the Convention onthe Rights of the Child. Also monitors implementation of two optional protocols to the

convention, (a) involvement of children in armed conflict and (b) sale of children, child

prostitution and child pornography.

8. Committee on Migrant Workers monitors implementation of the InternationalConvention on the Protection of the Rights of All Migrant Workers and Members of their

Families.


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9. Committee on the Rights of Persons with Disabilities monitors implementation of theConvention of the Rights of Persons with Disabilities.

10. Committee on Enforced Disappearances monitors implementation of the InternationalConvention for the Protection of all persons from Enforce Disappearance

International Court of Justice vs International Criminal Court

International Court of Justice

This is the principal judicial organ of the United Nations. It was established by the United Nations

Charter and is found in the Peace Palace, the Hague. This court is composed of 15 judges and performs a dual

role: (a) settling disputes between states by virtue of international law and (b) giving advisory opinions on legal

matters referred to it by duly authorized UN organs and specialized agencies.

Only State parties may appear before the court, thus, the court has no jurisdiction to deal withapplications from individuals, NGOs, corporations or any other private entity.

Issues tackled by the ICJ include:(a) sovereignty;(b) trade;(c) natural resources;(d) treaty violations;(e) treaty interpretations; etc.

International Criminal Court

The International Criminal Court is the first permanent, treaty-based, international criminal court

established to help end impunity for the perpetrators of the most serious crimes of concern to the international

community

The ICC is an independent international organization, and is not a part of the United Nations System. It

is primarily funded by State parties although it receives donations from governments, international

organizations, individuals, corporations and other entities.

Under the Rome Statute, the ICC can only assume jurisdiction or investigate and prosecute when the

states are unable or unwilling to do so themselves. The Court has jurisdiction over crimes only if they arecommitted in the territory of a state party or if they are committed by a national of a state party; except that ICC

may also have jurisdiction over crimes authorized by the UN Security Council.

As a permanent international criminal court, it has jurisdiction over cases of:

(a) genocide(b) crimes against humanity(c) war crimes(d) crimes of aggression

Rome Statute

This is the treaty that established the ICC. It was adopted at a diplomatic conference in 17 July 1998

and entered into force on 1 July 2002. The Rome Statute established four core international crimes: genocide,

crimes against humanity, war crimes and the crime of aggression.

International Criminal Court vs International Court of Justice

The International Court of Justice has no jurisdiction to try individuals accused of war crimes or crimes

against humanity for it is not a criminal court. It does not have a prosecutor able to initiate proceedings.

Commission on Human Rights

Powers and Functions

Under Sec. 3 of Executive Order No. 163, the CHR shall have the following powers and functions:

(a) investigate, on its own or by complaint of any party, all forms of human rights violations involving civiland political rights

(b) adopt operational guidelines and rules of procedure, and cite for contempt for violations thereof inaccordance with the Rules of Court;


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BANCE NOTES IN HUMAN RIGHTS 5(c) provide appropriate legal measures for the protection of human rights of all persons within the

Philippines

(d) exercise visitorial powers over jails, prisons or detention facilities;(e) establish a continuing program of research, education and information to enhance respect for the

primacy of HR;

(f) recommend to Congress effective measures to promote HR and provide compensation to victim ofviolations of HR;

(g) monitor Philipine government compliance with international treaty obligations on HR(h) grant immunity from prosecution to any person whose testimony or whose possession of documentsor other evidence is necessary or convenient to determine the truth;

(i) request the assistance of any department, bureau, office or agency in the performance of its functions;(j) appoints its officer and employees(k) perform such other duties;

Case: Brigido Simon vs CHR

Focus: Authority and power of the Commission on Human Rights

Facts: A Demolition Notice was issued to the North EDSA Vendors Association wherein they were given

a period of 3-days to vacate the premises of North EDSA. The Vendors approached the CHR to ask for a letter to

be addressed to Brigido Simon, then Mayor of EDSA to stop the demolition. Later, CHR issued an Order directing

the petitioners to desist from demolishing the stalls and shanties of the private respondents.

The demolition howevery proceeded and thus, CHR issued a resolution for the disbursement of

financial assistance of not more than P200,000.00 in favor of private respondents and an order to further desist

from further demolition with the warning that violation of said order would lead to a citation for contempt or

arrest.

Issue: The power and authority of the CHR and the investigative power of the CHR.

Held: Although the first power given to the CHR has a resemblance to adjudication, this is not

synonymous to the adjudicatory power itself. The CHR was not meant to be a court or quasi-judicial body. The

most that it can do is investigate, i.e. receive evidence and make findings of facts as regards claimed human

rights violations. The Court further ruled that the phrase HR violations involving civil and political rightsintended by the constitution does not include the demolition of the stalls, sari-sari stores and carinderia/ the act

of the petitioners.

Furthermore, the contempt powers of the CHR is limited to acts in violation of its rules and procedures.

The order to desist/restraining order, which was issued by the CHR, is not investigatorial in character but

prescinds from an adjudicative power that it does not possess.

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