Ludwig Boltzmann Institut für Menschenrechte Ludwig Boltzmann Institute of Human Rights

3. International Human Rights ProtectionJulia Kozma und Johanna LoberLudwig Boltzmann Institute of Human Rights, ViennaUniversity of Vienna

Human Rights versus National Sovereignty

Promotion of Human Rights as purpose of the United Nations(Article 1 UN Charter)Protection of Human RightsUN Human Rights TreatiesUN Commission on Human Rights,since 1967/1970: fact-finding,reporting and complaints procedures- 1975 Helsinki Final Act- 1993 World Conference on Human Rights (‘legitimate concern’) - Binding measures set by the UN Security Council

Sovereign Equality of Statesas basic principle of international law (article 2(1) UN Charter)

Non-intervention in domestic affairs,(article 2(7) UN Charter)vs

•Individuals as subjects of international law

•Network of objective obligations, the enforcement of which is not primarily in the interest of other states

•Enforcement rather through international bodies (‘collective enforcement’)

•Only states as subjects of international law

•Reciprocity – mutual rights, obligations and state interests

•Enforcement rather through state

(re-)action

International Human Rights Law Classical International Law

• Primary responsibility of national authorities (duty bearers)

• Obligation to implement and execute international human rights through legislative and other measures

• Reservations, Incorporation of human rights treaties in national law desirable, but not obligation,

• Subsidiarity of international protection of human rights

• Effective remedy at national level

• Exhaustion of domestic remedies as condition for international complaints

International and National Law

Individualisation of International Human Rights Protection

International human rights

Individual (victim)

(individual complaint against state lodged with international body)

International criminal law

State International Criminal Tribunals

Individual (perpetrator)

(individual responsibility under criminal law)

•ICTY Yugoslavia•ICTR Rwanda•ICC•Universal Jurisdiction

Human Rights, Humanitarian Law, Refugee Law

Universal and Regional Human Rights Instruments

e.g. the four Geneva

Conventions 1949 and Additional

Protocols 1977

e.g. Refugee Convention1951 and Protocol

Interlinkage with other goals

• "…In the twenty-first century, all States and their collective institutions must advance the cause of larger freedom — by ensuring freedom from want, freedom from fear and freedom to live in dignity. In an increasingly interconnected world, progress in the areas of development, security and human rights must go hand in hand. There will be no development without security and no security without development. And both development and security also depend on respect for human rights and the rule of law…" Kofi Annan, "In Larger Freedom", 2005

• “…We recognise that development, peace and security and human rights are interlinked and mutually reinforcing” 2005 World Summit Outcome Doc

• Negative versus positive concept of peace

• Human rights as ingredient of peace – peace as condition for human rights

• Human rights violations as threat to international peace and security – ‘humanitarian intervention’/ ‘human security’

• Human rights as essential components of peace-keeping/peace-building operations

• Human rights: an obstacle in peace negotiations?

Human Rights and Peace

• Human right to development: development as a process for the realization of human rights

• 1993 VDPA, Art.8: “democracy, development and respect for human rights and fundamental freedoms are interdependent and reinforcing”

• Conditionalities: Democracy, popular participation, good governance, democratic governance

• Concept of human development/ HDI• Prevention of poverty as a bridge between human rights and

development• Human rights based development cooperation (2003)

Human Rights and Development

Democracy• ‘Rule by the people’ (demos – kratos)• Ideal of identity between those who govern and those who are

governed (Rousseau)• Right of peoples to internal self-determination• Political participation (in conduct of public affairs, elections, access to

public offices/service), political freedoms (freedom of expression, information, media, association, assembly, freedom to form a political party)

• Tolerance, pluralism, protection of minorities, equality and protection against discrimination are essential elements of modern democracies

Human Rights and Democracy, The Rule of Law, Good Governance and

Popular Participation (I)

Rule of Law• Legal certainty (legality, predictability, transparency)• Effective legal (judicial) remedy, procedural guarantees

Good Governance• Concept shaped in development context • World Bank concept: accountability, transparency, rule of law in public sector,

prevention of corruption• EU concept: broader, includes democracy, civil society, human rights

Popular participation• Concept shaped in development context• Grassroots involvement (the people) in decision-making at all levels• Human right to take part in conduct of public affairs, freedom of expression,

association, assembly, right to vote

Human Rights and Democracy, The Rule of Law, Good Governance and Popular

Participation (II)

Respect, Fulfil and Respect Human Rights

Obligation of states to:

(right to non-interference) (right to positive state action) (right to be protected)

Private person Private person Private person (horizontal interference)

ProtectFulfil

Ensure

Respect

Horizontal Effects of Human RightsRelevance of human rights for acts of private persons:

(measures for the protection of human rights in criminal, administrative, labour and social law)

State

Right to be protected by the state

Private Person Private Person

Interference (perpetrator)

• Most human rights can be limited under certain circumstances– Reservations under international law– Derogation in state of emergency– Prohibition of abuse– Limitation clauses

Restrictions and Limitations of Human Rights

• Few absolute human rights– Prohibition of torture– Prohibition of slavery– Recognition as a person before the law– Freedom of conscience

Restrictions and Limitations of Human Rights

• Scope of application – does the measure involve a human right?

• Interference – does the measure interfere with a human right?

• Justification – are there grounds for justifying an interference, provided the proportionality principle has been applied? Without justification (lawful restriction), an interference amounts to a violation.

Examining Human Rights Cases

• The measure – aim relation

• Aptitude of measure

• Necessity of measure

• Final balancing of interests (‘necessary in a democratic society’ – ‘pressing social need’)

The Principle of Proportionality

• Equality and non-discrimination as pillars of human rights protection• Equality in fact demands equality in law• Difference in facts demands differentiation in law• Highly disapproved distinction criteria: race, colour, sex, religion,

language, national and social origin, sexual orientation, age, disability, belonging to a minority/indigenous group

• Distinctions based on reasonable and objective grounds do not constitute discrimination

• Principle of proportionality as the test for the reasonableness of distinctions

Prohibition of Discrimination

• Right to effective remedy at the national level, e.g. article 2(3) CCPR; article 13 ECHR

• Access to justice

• Adequate, effective and prompt reparation (right to reparation)

• Access to factual information concerning violations (right to the truth)

• State obligation to investigate and punish perpetrators

• Are amnesty provisions permissible?

Right to Remedy and Reparation for Human Rights Violations

(Van Boven/Bassiouni – Guidelines)

• Restitution: restitution of property, release of prisoners• Compensation: for material and immaterial damage• Rehabilitation: legal, psychological, medical and social measures,

e.g. rehabilitation of torture victims• Satisfaction: truth commission, criminal persecution of

perpetrators, apology• Guarantees of non-repetition: e.g. amendments in the law

Forms of Reparation

• Interpretation ‘in light of object and purpose’• Dynamic interpretation (living instrument)• Effet utile (‘not theoretical and illusory, but practical and effective’)• Autonomous interpretation• Restrictive interpretation of national human rights limitations• In dubio pro libertate et dignitate

– Proportionality principle– Prohibition of discrimination

Rules of Interpretation of Human Rights Treaties

International Human Rights System