Body of international law designed to promote human rights
International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law is primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them; and customary international law. Other international human rights instruments, while not legally binding, contribute to the implementation, understanding and development of international human rights law and have been recognized as a source of political obligation.[1]
International human rights law, which governs the conduct of a state towards its people in peacetime is traditionally seen as distinct from international humanitarian law which governs the conduct of states and non-state armed groups during conflict,[2] although the two branches of law are complementary and in some ways overlap.[3][4][5][6]
A more systemic perspective explains that international humanitarian law represents a function of international human rights law; it includes general norms that apply to everyone at all time as well as specialized norms which apply to certain situations such as armed conflict between both state and military occupation (i.e. IHL) or to certain groups of people including refugees (e.g. the 1951 Refugee Convention), children (the Convention on the Rights of the Child), and prisoners of war (the 1949 Third Geneva Convention).
More broadly, the UDHR has become an authoritative human rights reference. It has provided the basis for subsequent international human rights instruments that form non-binding, but ultimately authoritative international human rights law.
Regional systems of international human rights law supplement and complement national and international human rights law by protecting and promoting human rights in specific areas of the world. There are three key regional human rights instruments which have established human rights law on a regional basis:
the European Social Charter for Europe of 1961, in force since 1965 (whose complaints mechanism, created in 1995 under an Additional Protocol, has been in force since 1998); and
The African Union (AU) is a supranational union consisting of 55 African countries.[14] Established in 2001, the AU's purpose is to help secure Africa's democracy, human rights, and a sustainable economy, in particular by bringing an end to intra-African conflict and creating an effective and productive common market.[15]
Pursuant to Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986, in honour of which 21 October was declared African Human Rights Day.[16]
The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial organ of the African Union, tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent, as well as with interpreting the African Charter on Human and Peoples' Rights, and considering individual complaints of violations of the Charter. The commission has three broad areas of responsibility:[17]
In pursuit of these goals, the commission is mandated to "collect documents, undertake studies and researches on African problems in the field of human and peoples' rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights and, should the case arise, give its views or make recommendations to governments."[17][18]
With the creation of the African Court on Human and Peoples' Rights (under a protocol to the Charter which was adopted in 1998 and entered into force in January 2004), the commission will have the additional task of preparing cases for submission to the Court's jurisdiction.[19] In a July 2004 decision, the AU Assembly resolved that the future Court on Human and Peoples' Rights would be integrated with the African Court of Justice.
The Court of Justice of the African Union is intended to be the "principal judicial organ of the Union".[20][21] Although it has not yet been established, it is intended to take over the duties of the African Commission on Human and Peoples' Rights, as well as to act as the supreme court of the African Union, interpreting all necessary laws and treaties. The Protocol establishing the African Court on Human and Peoples' Rights entered into force in January 2004,[22] but its merging with the Court of Justice has delayed its establishment. The Protocol establishing the Court of Justice will come into force when ratified by fifteen countries.[23]
There are many countries in Africa accused of human rights violations by the international community and NGOs.[24]
The Organization of American States (OAS) is an international organization headquartered in Washington, DC. Its members are the thirty-five independent nation-states of the Americas.
Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America,[citation needed] and the thrust toward globalisation, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:[25]
strengthening democracy;
working for peace;
protecting human rights;
combating corruption;
the rights of indigenous peoples; and
promoting sustainable development.
The Inter-American Commission on Human Rights (IACHR) is an autonomous organ of the Organization of American States, also based in Washington, D.C. Along with the Inter-American Court of Human Rights, based in San José, Costa Rica, it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights.[26] The IACHR is a permanent body which meets in regular and special sessions several times a year to examine allegations of human rights violations in the hemisphere. Its human rights duties stem from three documents:[27]
The Inter-American Court of Human Rights was established in 1979 with the purpose of enforcing and interpreting the provisions of the American Convention on Human Rights. Its two main functions are therefore adjudicatory and advisory:
Under the former, it hears and rules on the specific cases of human rights violations referred to it.
Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.[28]
Many countries in the Americas, including Colombia, Cuba, Mexico and Venezuela,[29] have been accused of human rights violations.
The Council of Europe, founded in 1949, is the oldest organisation working for European integration. It is an international organisation with legal personality recognised under public international law, and has observer status at the United Nations. The seat of the council is in Strasbourg in France.
The Council of Europe is separate from the European Union, but the latter is expected to accede to the European Convention on Human Rights. The Council includes all the member states of European Union. The EU also has a separate human rights document, the Charter of Fundamental Rights of the European Union.[33]
The European Convention on Human Rights has since 1950 defined and guaranteed human rights and fundamental freedoms in Europe.[34] All 47 member states of the Council of Europe have signed this convention, and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg.[34] In order to prevent torture and inhuman or degrading treatment,[35][36] the Committee for the Prevention of Torture was established.[37]
The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals rather than states.[34] In early 2010, the court had a backlog of over 120,000 cases and a multi-year waiting list.[38][39][40] About one out of every twenty cases submitted to the court is considered admissible.[41] In 2007, the court issued 1,503 verdicts. At the current rate of proceedings, it would take 46 years for the backlog to clear.[42]
Although these same international bodies also hold jurisdiction over cases regarding international humanitarian law, it is crucial to recognise, as discussed above, that the two frameworks constitute different legal regimes.[44]
The enforcement of international human rights law is the responsibility of the nation state; it is the primary responsibility of the State to make the human rights of its citizens a reality.
In practice, many human rights are difficult to enforce legally, due to the absence of consensus on the application of certain rights, the lack of relevant national legislation or of bodies empowered to take legal action to enforce them.[46]
In over 110 countries, national human rights institutions (NHRIs) have been set up to protect, promote or monitor human rights with jurisdiction in a given country.[47] Although not all NHRIs are compliant with the Paris Principles,[48] the number and effect of these institutions is increasing.[49]
The Paris Principles were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris from 7 to 9 October 1991, and adopted by UN Human Rights Commission Resolution 1992/54 of 1992 and General Assembly Resolution 48/134 of 1993. The Paris Principles list a number of responsibilities for NHRIs.[50]
Universal jurisdiction is a controversial principle in international law, whereby states claim criminal jurisdiction over people whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence or any other relationship to the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish.[51] The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens.
In 1993, Belgium passed a "law of universal jurisdiction" to give its courts jurisdiction over crimes against humanity in other countries. In 1998, Augusto Pinochet was arrested in London following an indictment by Spanish judge Baltasar Garzón under the universal-jurisdiction principle.[52] Adolf Eichmann who was the former Nazi SS lieutenant colonel accused of overseeing the transfer of Jews to Holocaust death camps also persecuted in Israel in 1961. Adolf was living in Argentina after the war.[53]
The principle is supported by Amnesty International and other human rights organisations, which believe that certain crimes pose a threat to the international community as a whole, and that the community has a moral duty to act.
Others, like Henry Kissinger,[54] argue that "widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny—that of judges".[55]
^Koskenniemi, Martti (September 2002). "Fragmentation of International Law? Postmodern Anxieties". Leiden Journal of International Law. 15 (3): 553–579. doi:10.1017/S0922156502000262. S2CID146783448.
^Verdross, Alfred; Simma, Bruno (2010) [1984]. "Der völkerrechltiche Schutz von Menschen" [The protection of humans in Public International Law]. Universelles Völkerrecht: Theorie und Praxis [Universal Public International Law] (in German) (3rd. ed.). Berlin: Duncker & Humblot. p. 822. ISBN978-3-428-13296-6.
^"OHCHR". 30 May 2008. Archived from the original on 30 May 2008. Retrieved 9 October 2011.
^"Chart of the Status of National Institutions"(PDF). National Human Rights Institutions Forum. November 2007. Archived from the original on 16 February 2008. Retrieved 6 January 2008. ACCREDITED BY THE INTERNATIONAL COORDINATING COMMITTEE OF NATIONAL INSTITUTIONS FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS In accordance with the Paris Principles and the ICC Sub-Committee Rules of Procedure, the following classifications for accreditation are used by the ICC: A: Compliance with the Paris Principles; A(R): Accreditation with reserve – granted where insufficient documentation is submitted to confer A status; B: Observer Status – Not fully in compliance with the Paris Principles or insufficient information provided to make a determination; C: Non-compliant with the Paris Principles.
^HURIDOCS has developed extensive methodologies for monitoring and documenting human rights violations, and more resources can be found at Human Rights ToolsArchived 19 April 2012 at the Wayback Machine
^"National Human Rights Institutions – Implementing Human Rights", Executive Director Morten Kjærum, The Danish Institute for Human Rights, 2003. ISBN87-90744-72-1, page 6.
^Kissinger has himself been subject to calls for prosecution under universal jurisdiction. See Hitchens, Christopher, and David Rieff. "[3]." Prospect, 28 June 2001 (accessed 11 June 2013); Hitchens, Christopher. The Trial of Henry Kissinger. London: Verso, 2001.
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