1. LAW 221: INTERNATIONAL LAW
Dr. Başak Çalı

2. Outline International human rights law (IHRL) Part II
UN and Regional Human Rights Protection Mechanisms
General doctrines of IHRL
Outline

3. Treaty based Mechanisms Overview
Created through explicit consent of states’ parties (treaties allow for reservations)
Eight major international human rights treaties in force: ICCPR, ICESCR, CAT, CEDAW, CERD, MWC, CRC, CRPD
Legally binding obligations for state parties
Treaty based Mechanisms Overview

4. Key Terminology Treaty, Covenant, Convention, Protocol
Signature, Accession, Ratification
Reservation
Concluding Observation
General Comment, General Recommendations
Shadow Report
Communication, Decision
Key Terminology

5. Monitoring structure: The dialogical model
Committee Assessment
of State Reports or
individual communications
General/Specific
Recommendations
State reports
or individual
communications
Monitoring structure: The dialogical model

6. Concluding Observations
Positive aspects
Principle subjects of concern and recommendations
Deadlines to respond to questions of urgency
Concluding Observations

7. Individual complaints under UN Treaties
Voluntary mechanism: only applies to states that accept it.
Decisions are not legally binding.
Committees agree that states have a ‘good faith obligation’ to respect the decisions.
It is significant for countries that have not a supranational human rights court, i.e. Australia, Canada, Uzbekistan.
Individual complaints under UN Treaties

8. The status of monitoring bodies
Do not have coercive powers
Cannot issue sanctions, specific remedies
Make recommendations to state parties
Enter into a dialogue with states
Establish the normative content of specific rights and corresponding obligations
Establish benchmarks, indicators for monitoring purposes
The status of monitoring bodies

9. Human Rights Courts 3 regional human rights courts
The European Court of Human Rights has compulsory jurisdiction, the Inter-American Court and the African Court have voluntary jurisdiction.
They interpret their respective treaties (remember Belios)
Deliver binding judgments
Can award compensation, ask for reinstitution, reparation and assurances of no future violation
Human Rights Courts

10. Security: E.g. Life, freedom from torture, humane treatment
Liberty: E.g. freedom of expression, association, property, freedom, physical liberty
Subsistence: E.g. education, health, food
Equality: Equality before the law, non-discrimination
Recognition: E.g. Recognition of dignity, of worth
What Rights?

11. Doctrines of IHRL interpretation
There is a very high degree of convergence at the doctrinal level between regional courts and the UN system.
All interpretive bodies employ effective interpretation rather than restrictive interpretation when approaching Article 31 of the VCLT.
Doctrines of IHRL interpretation

12. Whose rights? ‘Everyone’
Individuals have human rights regardless of their citizenship status.
Asylum seekers, illegal immigrants, alien residents also have rights under human rights law.
Chalal v. United Kingdom (ECHR)
A v. Australia (HRC)
Whose rights?

13. Citizenship and human rights
UDHR Art 15 (right to have a nationality and to change it, no arbitrary deprivation)
ICCPR Art. 24(3) (right of every child to acquire a nationality)
Citizenship and human rights

14. States have primary duties duties in relation to the realisation of human rights.
Duties may be territorial or extra-territorial
Non-state actors have secondary duties.
Whose duties?

15. ‘..Every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms….’
UDHR Preamble

16. States collectively or through co-operation in international organisations:
‘Each state party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation”
Article 2 of the ICESCR

17. UDHR: ‘promote respect for rights, to secure their recognition, to secure their observance ‘
ICCPR: ‘respect and ensure’
ICESCR: ‘Achieving progressively the full realization’
What kinds of duties?

18. Types of Duties Respect Protect Fulfill:
Promote: Engagement in fighting societal prejudices
The duty to recognize
The duty to remove the consequences of human rights law violations
Types of Duties

19. ICCPR 2: ‘within its jurisdiction and subject to its jurisdiction”
ICESCR 2: ‘undertakes to take steps individually and through assistance and co-operation’
UDHR Preamble ‘among the peoples of Member States themselves and among the peoples of territories under their jurisdiction’
Where?

20. Circumstances for limiting rights
Derogation
Public interest
Circumstances for limiting rights

21. Article 4 of the ICCPR
1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

22. Non-derogable rights in the ICCPR
6: Right to life 7: Freedom from torture 8: Freedom from slavery and servitude 11: No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. 15: Freedom from retrospective criminal charges 16: Right to recognition as a person before the law 18: Freedom of thought, conscience and religion
Non-derogable rights in the ICCPR

23. Absolute Rights v. non absolute rights
Article 8 of the ICCPR
1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2. No one shall be held in servitude.
Article 7 of the ICCPR
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Absolute Rights v. non absolute rights

24. Limitation based on public interest
Izci v. Turkey (2013) ECHR Limitation must always be exception to the rule All limitations must be necessary in a democratic society They must be proportionate to the aim pursued
Limitation based on public interest

25. Rights with Fulfillment Duties in the ICESCR
Work (6)
enjoy just and favourable conditions of work (7)
form trade unions (8)
social security (9)
Social and economic safeguards for family, mothers and children (10)
An adequate standard of living, including food, clothing and housing (11)
Highest attainable standard of physical and mental health (12)
Education (13)
Plans of Action for Primary Education (14)
To take part in cultural life, benefit from scientific development, one’s right to benefit from production of which he is the author (15)

26. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 2 of the ICESCR