Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Human rights 2- Traditional levels of protection: Who is protecting our human rights? Pavel Molek Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nWhy do we need International Law then? nWhat topics were not solved by domestic HR bills? n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nRights of foreigners nWhat to do after domestic remedies are exhausted? nConsular protection nInternational arbitration and International Law protection is better than „gunboat diplomacy“ nJay Commission 1794 nPermanent Court of International Justice Case concerning certain German interests in Polish Upper Silesia – 1926 – human being has HRs wherever she is nUN GA Declaration on the human rights of individuals who are not nationals of the country in which they live n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nProtection of diplomats nSince ancient Egypt nOn one hand protection of communication between states nOn the other hand protection of individuals realizing it nNow Vienna Convention on Diplomatic Relations 1961, and Vienna Convention on Consular Relations 1963 > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nHumanitarian Law – when? nBuilding on laws of war by Grotius - De jure belli ac pacis nParadox of Jules Verne era nLieber Code 1864 – American Civil War nHenry Dunant: A Memory of Solferino, International Committee of the Red Cross 1863, First Geneva Convention 1864 n1899, 1907 Haag, 1929 Geneva Conventions n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nHumanitarian Law today: 4 Geneva Conventions: nFirst Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1864 nSecond Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1906 nThird Geneva Convention relative to the Treatment of Prisoners of War, 1929 nFourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949 n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nHumanitarian Law today: 3 Protocols: nProtocol I (1977) relating to the Protection of Victims of International Armed Conflicts nProtocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts nProtocol III (2005) relating to the Adoption of an Additional Distinctive Emblem (for medical services) n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nHumanitarian Law today: Lowest common denominator of HR for time of war: nArt. 13 -14 of Third Geneva Convention: „Article 13 nPrisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. nLikewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. nMeasures of reprisal against prisoners of war are prohibited. n nArticle 14 nPrisoners of war are entitled in all circumstances to respect for their persons and their honour. nWomen shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. nPrisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires. > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nSlavery: nbiggest absurdity of modern age nLord Mansfield: Somerset case (1772): “Slavery is so odious, that nothing can be found to support it“. nVienna Congress 1815 nBilateral treaties with UK on prosecution of slavery on high sees nConvention to Suppress the Slave Trade and Slavery 1926 n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nMinorities: nVienna Congress 1815 – do protect your Poles…. nTurkey, be nice to your minorities! nCase Concerning the Question of Minority Schools in Albania (1935) nMinorities as pioneers of some HRs: right to education, freedom of religion n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nRefugees: nHuge trouble after WW1 (together with stateless people: Russian, Armenian and others nNansen International Office for Refugees 1930 nRefugee Convention 1933 nConvention relating to the Status of Refugees 1951 + UNHCR n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History and the Last Trouble nInternational Labour Organization 1919: risk of a race to the bottom at work conditions nConvention Limiting the Hours of Work in Industrial Undertakings to Eight in the Day and Forty-eight in the Week 1919 nConvention concerning the Employment of Women before and after Childbirth 1919 nConvention concerning the Age for Admission of Children to Employment in Agriculture 1921 n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection The End of History - 1945 nNew structure after WW2 and its levels – „postwar onion“ – perspective of anonymous European state… nInstruments, organs, procedures nGeneral versus special organs nNatural rights over positive rights nWestern versus socialistic versus Third world perspective nRecent situation – literal introduction > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – domestic level nLiteral trailer nNational bills of rights nCourts nConstitutional court nOmbudsman nMain function of all organs in modern liberal state……. n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – EU nBe patient….;-) > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – regional general nCouncil of Europe n1949 n47 members (Europe – except of Belarus) nCommittee of Ministers nSecretary General - Thorbjørn Jagland nCommissioner for Human Rights n LogoCoe > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – regional general nECHR – confusing abbreviation – Court or Convention nCourt: President Jean-Paul Costa n47 judges n5 sections or Grand chamber Costa > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – regional general nECHR – Convention for the Protection of Human Rights and Fundamental Freedoms + 14 Protocols (procedural and material) nBefore Protocol 11 – Court and Commission nCompetences (no quashing…): Art. 41: n„If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.“ nVictim of its own success – 57100 applications in 2009! cedh > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – regional special nUnder umbrela of CoE nEuropean Social Charter 1961 (European Committee of Social Rights) n European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1967 (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) nConvention for the protection of Human Rights and dignity of the human being with regard to the application of biology and medicine: Convention on Human Rights and Biomedicine 1997 (Steering Committee on Bioethics) nEuropean Charter for Regional or Minority Languages 1992 (Committee of experts) n and many more…. n n n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – super-regional nThe Organization for Security and Co-operation in Europe (OSCE): n56 member states „from Vancouver to Vladivostok“ nSet up to guarantee security in Cold war 1975 n3 baskets: military and political; economic cooperation and…..HR! (Charta 77) nWhat are they used for now…..? > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – other regions nAmerican Convention on Human Rights (Pact of San José) 1969: Inter-American Commission on Human Rights and Inter-American Court of Human Rights (Organization of American States) nAfrican Charter on Human and Peoples' Rights (Banjul Charter) 1979: African Commission on Human and Peoples' Rights and African Court on Human and Peoples' Rights (African Union) nCairo Declaration of Human Rights in Islam 1990 (Organisation of the Islamic Conference) nInspired by CoE… > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Charter based bodies nDocuments? nCharter + Universal Declaration of Human Rights 1948 (what is its character? Is it binding?) UDHR > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Charter based bodies nPreamble: n“The General Assembly Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that 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 and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.“ n nLegal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) – thanks to usus longaevus it is now customary law n n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Charter based bodies nBodies? nUN General Assembly nUN Security Council – both maintaining „peace and security“ – broad interpretation nICJ nUNHCR nOffice of the United Nations High Commissioner for Human Rights (since 1993) – co-ordinates human rights activities throughout the UN System - now Navanethem Pillay navanethem-pillay-2009-4-21-14-23-6 > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Charter based bodies nHuman Rights Council (plus Advisory Committee and its Working groups): established in 2006 (UN GA resolution A/RES/60/251) as a successor to the United Nations Commission on Human Rights nUniversal periodic review of all UN states nComplaints procedure (let us try it) nSpecial Procedures (on topics like Arbitrary Detention or country – which one is most often condemned?) – answer is in political bloc voting…. n n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Treaty based bodies nGeneral: The Human Rights Committee (CCPR) – monitoring implementation of International Covenant on Civil and Political Rights 1966 (ICCPR) and its 2 optional protocols (on individual complaints and on abolishment of the death penalty); 18 members, experts nominated by states: closed meetings, output is opinion… > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Treaty based bodies nICCPR „Article 2 n1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. n2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. n3. Each State Party to the present Covenant undertakes: n(a) To 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; n(b) 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; n(c) To ensure that the competent authorities shall enforce such remedies when granted.“ > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Treaty based bodies nSpecial: nCommittee on Economic, Social and Cultural Rights (CESCR) – monitors implementation of the International Covenant on Economic, Social and Cultural Rights 1966 by its States parties: soft law, reports to UN Economic and Social Council non 10 December 2008 the General Assembly unanimously adopted an Optional Protocol (GA resolution A/RES/63/117) to the International Covenant on Economic, Social and Cultural Rights which provides the Committee competence to receive and consider communications, now open to signatures n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Treaty based bodies nArticle 2 ICESCR: n„1. 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. n2. 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. n3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to nonnationals.“ > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Treaty based bodies nMichal Bobek: n„Constitutional texts are the most difficult ones to be compared on the level of simple texts. In a comparative assessment of for instance human rights issues, the mere text says little. It is the context and the case-law which defines its content. A strong example here would be the various socio-economic rights, which may, at their face value, read the same in perhaps every second national bill of rights. However, depending on the fine fabric of the case law, statutes and derived legislation, a “right to adequate care for senior people” might mean, in one jurisdiction, a full-fledged system of social benefits, in other just a “not starving to death guaranty”, in a third absolutely nothing and, in the forth one, which does not have such right in its list at all, there might actually be a very provident state whose duties to provide for older people were derived from human dignity or equality.“ > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Treaty based bodies nSpecial nCommittee on the Elimination of Racial Discrimination (CERD) 1965 nCommittee on the Elimination of Discrimination Against Women (CEDAW) 1979 nCommittee Against Torture (CAT) & Optional Protocol to the Convention against Torture (OPCAT) - Subcommittee on Prevention of Torture (SPT) 1984 nCommittee on the Rights of the Child (CRC) 1989 nCommittee on Migrant Workers (CMW) 1990 nCommittee on the Rights of Persons with Disabilities (CRPD) 2008 nInternational Convention for the Protection of All Persons from Enforced Disappearance 2006 – not in force yet > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Treaty based bodies nCompetences of committees: nGeneral comments – about concrete rights nReports procedure: general reports from states every X years (for CRC, CMW the only procedure) nInquiry procedure – visiting the countries (opt-out possibility) nExamination of inter-state complaints – not used nexamination of individual complaints (CCPR, CERD, CAT and CEDAW, now CESCR) – Opt-in provision n > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Recent structure – United nations – Treaty based bodies nWhy are they unpopular? nSeveral reasons: nToo many of them (back to Kafka)– not coordinated nToo many reports, not binding, no real power nOften politicized: HR Council nGeneral comments are useful (by balanced experts) > Human Rights in a Comparative Perspective 2 - Levels of protection Human Rights in a Comparative Perspective 2 - Levels of protection Other universal bodies nInternational Criminal Court (ICC) - Rome Statute of the International Criminal Court 1998 (since 2002 effective) – after specialized tribunals nInternational Labour Organization 1919 n >