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considerations can be found in the writing of the fathers of


Academic year: 2021

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International law from its

inception has been concerned with the protection of human beings

against acts of barbarism. These

considerations can be found in the writing of the fathers of

international law: Francisco de

Vittoria, Hugo Grotius, Samuel von




Human rights are inherent to human beings

All men are born and remain free

and equal in their rights



Traditionally only states were subjects of international law.

Individuals had no enforceable

rights of international law


Initiatives under the auspices of the League of Nations:

Protection of minorities

The creation of the mandate system in the respect of colonies

The supervision of prohibition of traffic in women and children

The supervision of prohibition of traffic in dangerous drugs

The establishment of first arrangements for the international protection of refugees


Initiatives after the Second World War

Internationalisation (recognition that the treatment of citizens in one country has

become the business of other countries) and universalisation (general acceptance of

human rights by national governments) of the system of human rights law

The initiatives of the United Nations –

genocide, atrocities and suffering inflicted upon millions of human beings by the Nazi and totalitarian regimes gave a new impetus to those demanding international recognition and enforcement of fundamental human

rights and freedoms



The Charter of the United Nations: the foundations for the international protection of human rights,

cooperation in promoting and encouraging respect for human rights and for fundamental freedoms for all

without distinction as to race, sex, language or religion

The Universal Declaration of Human Rights: the Declaration constitutes an authoritative interpretation of the Charter obligations and provides a

comprehensive list of human rights and freedoms to be protected. It represents a consensus of the

international community regarding human rights which each of its members must respect, promote and observe.


The Declaration sets out a wide range of

human rights and freedoms to be protected, ranging from traditional civil and political

rights to economic, social and cultural rights:

the right to life, liberty and security;

freedom from slavery, servitude, torture or cruel, inhuman or degrading treatment or punishment;


the right to recognition as a person before the law, the right to judicial

remedy, freedom from arbitrary arrest, detention or exile, the right to a fair trial and a public hearing by an independent and impartial tribunal, the right to be presumed innocent until proven guilty;

freedom from arbitrary interference with privacy, family, home or correspondence, and freedom from attacks upon honour and reputation;

freedom of movement, the right to seek

asylum, the right to a nationality;


the right to marry and to found a family, the right to own property;

freedom of thought, conscience and

religion, freedom of opinion and expression;

the right to peaceful assembly and association;

the right to take part in government and the right to equal access to public services;


 the right to work, social

security, equal pay, join trade unions, rest and leisure;

 the right to the adequate standard of living;

 the right to the education;

 the right to participate in the

cultural life of the community.


The 1966 International Covenants on Human Rights

The Covenants have legal force (opposite to the Universal

Declaration) as treaties for the

Parties to them and constitute a

detailed codification of human



The Covenant on Economic, Social and Cultural Rights

contains various articles in which the Parties recognize such rights as the right to work,

the right of everyone to social security and to an adequate standard of living for himself and his family. The type of obligation is

programmatic and promotional.


The Covenant on Civil and Political Rights is more specific in its delineation of rights, stronger in statement of the obligation to respect the rights specified, and better

provided with means of review

and supervision.



The UN human rights machinery consists of three categories of institutions:

bodies which have been established directly on the basis of the UN Charter, such as the General Assembly, the Security Council, the Commission on Human Rights;

bodies which have been established indirectly by the UN Charter, that is whose creation was authorized by one of the bodies belonging to the first category, eg the Commission on the Status of Women, the Office of High Commissioner for Human Rights, etc;

bodies which have been established on the basis of international treaties, for example the Committee against Torture, the Committee on the Elimination of All Forms of Racial Discrimination etc.


The UN Commission on Human Rights

The Commission is made up of 53

representatives of member states of the UN who are selected for a three-year term by

ECOSOC on the basis of equitable geographic distribution.

In the first 20 years of its existence the Commission focused on preparing an

impressive number of international instruments and thus translating the rights proclaimed in

the Universal Declaration into binding provisions.


1967 – Resolution 1235 of ECOSOC: holding an annual public debate on gross human rights


1970 – Resolution 1503 of ECOSOC: the Sub- Commission n the Promotion and Protection of Human Rights is charged with the examination of individual petitions (between 1972 and 1999 75 states were investigated under the


2000 – Resolution 2000 of ECOSOC: the criteria for admissibility of individual complaints


Since 1990 the priority of the

Commission has been to provide advisory and technical assistance to member states in the field of

human rights and to focus on social, economic and cultural rights, including the right to

development and to an adequate

standard of living


The Office of the High Commissioner for Human Rights

The General Assembly created this office on

1993. The main tasks of the High Commissioner are:

to promote and protect the enjoyment of all human rights, including the right to


to provide all forms of assistance (including financial and technical aspects) in the field of human rights at the request of a state;

to stimulate and to co-ordinate action on human rights within the UN system at international




There are a number of arrangements aimed to protecting human rights within a specific

region. There are human rights initiatives in the Americas, Africa, Asia and Europe.

Among regional arrangements the

European system of protection of human rights is the best in terms of

effectiveness and maturity.


The inter-American human rights system is based on the Charter of the

Organisation of American States, the American Declaration of the Rights and Duties of Man and

the Inter-American Convention

on Human Rights



African Charter on Human

and Peoples’ Rights



Asian Human Rights




The main element of the European system for the

protection of human rights is the European Convention for the

Protection of Human Rights and Fundamental Freedoms 1950

(ECHR), together with nits

enforcement mechanisms


The main objectives of the Council of Europe (one of the most efficient and

competent inter-governmental organizations in Europe) are:

the promotion of European Unity by

proposing ad encouraging common European action in economic, social, legal and

administrative matters;

the protection of human rights,

fundamental freedoms and pluralist democracies;

the development of a European cultural identity.


The European Convention on Human Rights

is the greatest achievement of the Council of Europe.

But among important conventions prepared b the

Council of Europe which complement and extend the protection of human rights in Europe are:

The European Social Charter;

The Framework Convention for the Protection of National Minorities;

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (the

Convention on Human Rights and Biomedicine


The European Convention on Human Rights

The ECHR was opened for signatures on 4 November 1950 and entered into force in September 1953

44 European states are contracting states to the ECHR

The ECHR, together with its Protocols and procedures for enforcement, constitutes the first and the most efficient regional

arrangement for the protection of human rights.

Rights protected under the Convention are both civil and political rights.


Substantive rights protected under the ECHR

Right to life;

Prohibition of Torture;

Prohibition of Slavery and Forced Labour;

Right to a Fair Trial;

Right to No Punishment without Law;

Right to Respect for Private and Family Life;


 Freedom of Thought, Conscience and Religion;

 Freedom of Expression;

 Freedom of Assembly and Association;

 Right to Marry;

 Right to an Effective Remedy;

 Prohibition of Discrimination.


The European Court of Human Rights

The number of judges is the same as the number of contracting states (44)

The criteria for the office of judges are:

A judge sits in his individual capacity and does not represent ant state;

He or she must hold a high moral standing;

Have relevant qualifications in his/her country for holding position of high office;

Must act with total impartiality and independence


 Judges are nominated by a contracting state

 There are two categories of applicants under the ECHR:

contracting states and




The conditions of admissibility:

There must be a prima facie violation of one or more of the provisions of the ECHR;

The available domestic remedies must be exhausted;

The application must be lodged within six months of the final decision of the highest domestic court or authority.


An application will be rejected if:

It is anonymous;

If it is similar to a case already been submited to another procedure or international

investigation or settlement;

If it constitutes an abuse of the right complaint (for example it s brought for political propaganda purposes);

If it concerns matters falling outside the scope of ECHR.


Procedure on the merits

Chambers decide cases by a majority vote

The judges are allowed to give separate dissenting or concurrent judgements

Within three months of the judgment of a Chamber, any party may ask for a referral to a Grand

Chamber – it is possible if the case raises a serious question affecting the interpretation or application of the Convention or the protocols or a serious

issue of general importance

A final judgment is binding on te respondent state concerned and its execution is supervised by the Committee of Ministers


The European Union

In the EU the protection of human rights has acquired two dimensions:

1. First many issues relating to human rights arise under the EU internal and external competences;

2. The second dimension is that human rights are envisaged in a broad context i respect of all EU policies as being part of the

general principles of EC law


Article 2 of the Treaty on European Union:

„The Union is founded on the values of respect for human dignity, freedom,

democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to

minorities. These values are common to

the Member States in a society in which

pluralism, non-discrimination, tolerance,

justice, solidarity and equality between

women and men prevail. „


Article 6

„1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7

December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law. „


The European Charter of Fundametal Rights

First the document adopted by the

Intergovernmental Conference in Nice (December 2000) as the declaration - non-binding

proclamation, after the Treaty of Lisbon (December 2009) it should be treated as a primary law of the EU

The Charter contains 50 articles.

Its main purpose is to make fundamental rights and freedoms more visible more explicit and

more familiar to EU citizens



Efforts made by the international community to ensure the protection of human rights

(which have just been established or

proclaimed) are certainly encouraging but they must be assessed in the light of what many nations are actually doing.


 The respect for human rights ca not be confined to mere

declarations (soft law). So far as the UN system is concerned its

effectiveness in the enforcement of human rights is still weak for many reasons, the most important being:

 it is not mandatory, therefore there are many states unwilling to

submit themselves to any external



there is no judicial mechanism within the UN to deal with individual complaints;

the reporting and monitoring system is still based on confidentiality;

the Security Council has not taken any consistent and firm stand in respect of states violating basic human rights. The principle of non-interference in domestic matters, and the political assessment of human rights situations, often prevail.


At the regional level (apart from Europe where the protection of human rights is well advanced) there is a very large credibility

gap between promises, which are easy to make, and performance

which either seems to be very

hard to effect or in respect of

which there is not the will to

carry through.


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