JUR 5710 Institutions and Procedures

3 September 2008 Maria Lundberg, NCHR 1

JUR 5710Institutions and Procedures

Introduction


Today

• Expectations

• Practical information – see web page– Course content and learning outcomes– Required readings– Lectures and seminars– Assignments and Mock Exam– Exam

• Introduction to human rights


Expectations

• What are your expectations?

• What is your interest in human rights, the background for it?

• How can this course be useful to you?

• Review of the course


Course content and learning outcomes

• Course content• Focus on the institutions,

treaties and practices of intergovernmental organisations, in addition to international criminal tribunals

• Provide a perspective of both the normative standards defining international human rights and the means by which they are monitored and implemented.

• Learning outcomes• a good understanding of

different aspects the institutions and procedures at universal and regional levels,

• giving you the ability to describe and critically analyze the achievements and shortcomings of the international protection of human rights.


Required Readings

• Three books:– Burgenthal, Thomas et.al, International Human Rights

in a Nutshell, 3rd.ed,(49pp)– Economic, Social and Cultural Rights. A Textbook.

Second Revised Edition, Asbjørn Eide, et.al.(eds.),.(97pp):

– Smith, Rhona, Textbook on International Human Rights, 3rd edition (234pp):

• Handouts consisting of UN Documents, relevant decisions and cases to support the text books


Lectures and seminars

• Lectures:• The United Nations • Regional systems, in

Europe, in the Americas, and in Africa

• Selected rights: Self-determination, Freedom from torture, Minority rights and the right to Development and Economic, Social and Cultural Rights

• International Humanitarian Law and International Criminal Tribunals

• Seminars1. Taking a case to European

Court of Human Rights2. Working methods of CAT (UN

Committee against Torture). Case examples.

3. Human Rights Council - Where it stands today?

4. National Human Rights Institutions

5. NGOs and Human Rights: Possibilities, Prospects and Personalities


Lecturers

• Maria Lundberg– Associate Professor, Norwegian Centre for Human Rights– [email protected]– Reception hrs: Tuesday 13.15-14

• Cecilia Bailliet– Associate Professor, Institute of Public Law– [email protected]

• Richard Hustad– PhD candidate, Norwegian Centre for Human Rights– [email protected]

• Morten Bergsmo– Senior Researcher, International Peace Research Institute – [email protected]

mailto:[email protected]




Assignments and Mock Exam• Present cases from

international institutions/mechanisms

• Summarize the facts, rights involved, procedural questions, substantive legal arguments, holding, your own opinion

• 1 page • Handed in 2 days before the

for the lecture to Elisabeth Reien, [email protected]

• [email protected]

• Discussed and presented in class

• Mock exam

• Old exam – now a new exam

• Corrected and graded • Review and questions• Dates for mock exam

to be decided• Review 14 November




Exam

• 10. December kl. 10:00

• Written 4 hours

• How to?– Describe– Analyze – Comment up-on


Introduction

• Historical background• UN Charter • Sources• Obligations – implementation, monitoring

and enforcement• International Instruments • Actors


Historical background and international law

• Traditionally a law among nations• The treatment of individuals within the

jurisdiction of the State • Exceptions:

– Aliens– Diplomats– International humanitarian law– Slaves– Minorities– Workers


UN Charter (1)• Article 1 of the Charter of the United Nations (1945): “

The Purposes of the United Nations are:

– To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

– To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

– To achieve international co-operation in solving international problems of an

economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

– To be a centre for harmonizing the actions of nations in the attainment of these common ends.


UN Charter (2)

• Article 55– With a view to the creation of conditions of stability and well-

being,… the United Nations shall promote:

– c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

• Article 56– All Members pledge themselves to take joint and separate

action in co-operation with the Organization for the achievement of the purposes set forth in Article 55


Sources (1)• Article 38.1 ICJ Statutes:• The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply:

– a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

– b. international custom, as evidence of a general practice accepted as law;

– c. the general principles of law recognized by civilized nations;

– d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.


Sources (2)

• Art. 53 Vienna Convention on the Law of Treaties (1969)• Treaties conflicting with a peremptory norm of general

international law (“jus cogens”)• A treaty is void if, at the time of its conclusion, it conflicts

with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.


Sources (3)

• Acts of international organisation

• Binding or non-binding?

• UN Charter in Chapter VII:– Threats to the peace, breaches of the peace

and acts of aggression

• Declaration and resolutions etc, ”Soft law”?– New non-binding concerns of int.org


Obligations (1)

• Namibia case, ICJ, Advisory Opinion, I.C.J. Reports 1971, p.57,para.131 (http://www.icj-cij.org/docket/files/53/5595.pdf)

• To establish … and enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitutes a denial of fundamental human rights is a flagrant violation of the purpose and principles of the Charter.

http://www.icj-cij.org/docket/files/53/5595.pdf


Obligations (2)

• )Rights or obligations erga omnes• Norms which are considered to be owed to all

States – not only the State affected by a violation

• Certain human rights: basic rights of the human person:– genocide, racial discrimination and slavery, Barcelona

Traction case ICJ, Belgium v. Spain (Second Phase), I.C.J. Reports 1970, p.3, para.33-34

(http://www.icj-cij.org/docket/files/50/5387.pdf)


Obligations (3)

• Article 1 of ”European Convention of Human Rights”:

• The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention

• Compare:– Article 2 of the International Covenant on Civil

and Political Rights and – Article 2 of the International Covenant on

Economic Social and Cultural Rights


Monitoring, implementing and enforcing human rights

• Procedures in UN system– Charter based– Treaty based

Actors involvedStates

Individuals

NGOs


International instruments

• United Nations– International Bill of Rights– UDHR– ICCPR– ICESCR– Major human rights treaties

• Regional levels– Africa– Americas– Europe


Major human rights treaties (1)• Nine major treaties are included in the UN treaty system and “treaty bodies”

monitor their implementation:• (1) the International Covenant on Economic, Social and Cultural Rights

(CESCR), which is monitored by the Committee on Economic, Social and Cultural Rights;

• (2) the International Covenant on Civil and Political Rights (CCPR), which is monitored by the Human Rights Committee;

• (2a) the Optional Protocol to the International Covenant on Civil and Political Rights (CCPR-OP1), which is administered by the Human Rights Committee; and

• (2b) the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at the abolition of the death penalty (CCPR-OP2-DP);

• (3) the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which is monitored by the Committee on the Elimination of Racial Discrimination;

• (4) the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which is monitored by the Committee on the Elimination of Discrimination against Women;

• (4a) the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW-OP);


Major human rights treaties (2)• (5) the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (CAT), which is monitored by the Committee against Torture;

• (6) the Convention on the Rights of the Child (CRC), which is monitored by the Committee on the Rights of the Child;

• (6a) the Optional Protocol to the Convention on the Rights of the Child (CRC-OP-AC) on the involvement of children in armed conflict;

• (6b) the Optional Protocol to the Convention on the Rights of the Child (CRC-OP-SC) on the sale of children, child prostitution and child pornography.

• (7) the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC).

• (8) International Convention for the Protection of All Persons from Enforced Disappearance (not yet into force)

• (9) the Convention on the Rights of Persons with Disabilities (not yet into force)• (9a) the Optional Protocol to the Convention on the Rights of Persons with Disabilities

(not yet into force)


Principal organs • Art. 7 of the UN Charter

– a General Assembly

– a Security Council

– an Economic and Social Council

– a Trusteeship Council

– an International Court of Justice

– and a Secretariat.

– Such subsidiary organs as may be found necessary may be established in accordance with the present Charter.


General Assembly

• Art. 13 UN Charter • The General Assembly shall initiate studies and make

recommendations for the purpose of:

– a. promoting international co-operation in the political field and encouraging the progressive development of international law and its codification;

– b. promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

– The further responsibilities, functions and powers of the General Assembly with respect to matters mentioned in paragraph 1 (b) above are set forth in Chapters IX and X.


Human Rights Council

• General Assembly Resolution,

• 60/251 Human Rights Council:– 1. Decides to establish the Human Rights

Council, based in Geneva, in replacement of the Commission on Human Rights, as a subsidiary organ of the General Assembly; the Assembly shall review the status of the Council within five years;


The methods

• The treaty bodies use a number of methods to monitor the State compliance with the treaties:

• A. State reporting:

• B. Interstate communications

• C. Individual Communications

• D. Investigative mechanisms


Seven treaty bodies:

• The compliance with the obligations set out in the treaties (their implementation) is monitored by seven treaty bodies:

• The Committee on Racial Discrimination (CERD)• The Human Rights Committee (HRC)• The Committee on Economic, Social and Cultural

Rights (CESCR)• The Committee on the Elimination of Discrimination

Against Women (CEDAW)• The Committee Against Torture (CAT)• The Committee on the Rights of the Child (CRC)• The Committee on Migrant Workers (CMW)


NGOs (1)

• Article 71 UN Charter:• The Economic and Social Council may make suitable arrangements

for consultation with non-governmental organizations which are

concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.

• Procedure ECOSOC Res 1296(XLIV) and 1996/31 see (http://daccessdds.un.org/doc/UNDOC/GEN/N97/775/21/IMG/N9777521.pdf?OpenElement)

• Consultative status should serve to secure expert advise and information and expression of public opinion ECOSOC Res 1996/3, para.20

http://daccessdds.un.org/doc/UNDOC/GEN/N97/775/21/IMG/N9777521.pdf?OpenElement

http://daccessdds.un.org/doc/UNDOC/GEN/N97/775/21/IMG/N9777521.pdf?OpenElement


NGOs (2)

• Work at international level:– Development of hr standards– Strengthening international monitoring

procedures– Filing human rights complaints

• Work at the national level:– National legal developments– Foreing policy


UN Charter (3)

• General Assembly Resolution,

• 60/251 Human Rights Council:– 1. Decides to establish the Human Rights

Council, based in Geneva, in replacement of the Commission on Human Rights, as a subsidiary organ of the General Assembly; the Assembly shall review the status of the Council within five years;

JUR 5710 Institutions and Procedures

Documents

Transcript of JUR 5710 Institutions and Procedures