day 1: part ii implementation and identification of human rights

Day 1: Part IIImplementation and identification of human rights

Key Questions

Who is responsible for the implementation of human rights?

What is the nature of their obligations? How are these obligations operationalised in

the context of: (a) civil and political rights; and (b) economic social and cultural rights?

1. The burden bearers – perhaps not as simple as it seems

Under the Vic Charter….[day 2 detail]

Under INL ….

2. The nature of the burden – how far does it spread?? Vic Charter [see day 2]

INL – the tripartite typology Respect Protect Fulfill

Example: right to life – McCann v UK (ECHR); Osman v UK (ECHR); Colle and Colle v Chief Constable of Hertforshire [2007] EWCA Civ 325; infant mortality

3. Operationalisation(I): civil and political rights (a) general obligation

Article 2(2)

… each State party undertakes to take the necessary steps… to adopt such legislative and other measures as may be necessary to give effect to the rights recognised in the present Covenant

(b) Non derogable rights

Article 4 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 (life), 7 (torture) 8 (paragraphs I and 2) (slavery), 11 (prison for K) 15 (non retrospective) 16 (person b/4 law) and 18 (thought, conscience and religion) may be made under this provision

Example: torture

Article 7 ICCPR

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment

[Cf: Vic Charter s 10 A person must not be subjected to torture or

treated in a cruel, inhuman or degrading way…(also prohibits medical experimentation)

Note also…

Other treaties CAT art 1 CRC art 37 Rome Statute art 7 ECHR art 3 Geneva Conventions Common art 3

Giving meaning to c and p rights Consider:

Principles of interpretation: ordinary meaning etc Other treaties/resolutions/declarations etc IN Jurisprudence: treaty bodies (General

Comments and concluding observations); IN tribunals (ICJ and IN crim courts); other UN mechanisms eg: special rapporteurs

Regional jurisprudence: Euro Court; Inter American Court

Domestic jurisprudence

Case study: Giving meaning to torture Human Rights Committee General Comment 20 – conjunctive

approach

Duty of states to protect against acts prohibited under art 7 whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity (para 1)

Complemented by requirement to treat all persons deprived of their liberty with humanity and respect for the inherent dignity of the human person (para 2)

Prohibition extends to physical and mental suffering (para 5)

Not necessary to draw sharp distinctions between different kinds of treatment; depend on nature, purpose and severity of treatment applied (para 4)

HRC cont’d

Corporal punishment and prolonged solitary confinement may violate prohibition (para 5-6)

Must not expose individ to danger of torture et al upon return to another country by way of extradition, expulsion or refoulement (para 9)

Compare: Euro Crt of Human Rights Disjunctive Approach (Vic approach) Torture

‘deliberate inhuman treatment causing very serious and cruel suffering’: Ireland v United Kingdom (1978) 2 EHRR 35 para 167

special stigma attached eg: rape: Aydin v Turkey (1997)

Inhuman treatment or punishment

Must attain minimum level of severity: depends on c/t of case including duration of treatment, physical and mental effects and sometimes the sex, age, and state of health of the victim: Ireland v United Kingdom (1978)

No requirement that suffering be intended: Selcuk and Asker v Turkey (1998) 26 EHRR 477

Degrading treatment Level of humiliation or debasement more than lawful

treatment: assessment relative and depends on all c/t case, nature and context of punishment and method of execution: Tyrer v United Kingdom

Irrelevant that state or even public does not consider treatment to violate prohibition and may well suffice that the victim is humiliated in his own eyes even if not in the eyes of others (para 32): Tyrer v UK

Treatment which arouses feelings of fear, anguish or inferiority capable of humiliating or breaking the resistance of a person will amount to degrading treatment: Ireland v United Kingdom (1978) 2 EHRR 25

Increasing standard…

Eg: Tyrer v United Kingdom

Convention is a living instrument which must be interpreted in light of present day conditions

Thus court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member states of the COE in this field (judicial cp)

THUS degrading punishment

Selmouni v France (2000) 29 EHRR 403

Having regard to the fact that the Convention is a living instrument which must be interpreted in light of present day conditions… certain acts which were classified in the past as inhuman and degrading as opposed to torture could be classified differently in the future… the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (para 101)

Examples

Imprisonment: Price v UK (Euro Court) Corporal punishment: A v UK (Euro Court) Protection of kids: Z and others v UK (Euro Court)

Art 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture and other ill treatment administered by private individuals. The measures should provide effective protection in particular of children and other vulnerable persons and include reasonable steps to prevent ill treatment of which the authorities has or ought to have had knowledge (see also Osman v UK re right to life)

Death penalty: Pratt v Morgan (PC); Atkins v Virginia(USSCrt); Roper v Simmons (US SCrt); Makwanyane (SAfrican ConCrt)

Deportation/ Extradition: HRC; Soering (Euro Court); Chalal (Euro Court)

Interrogation: Ireland v UK (Euro Court); Public Committee against Torture (Israel SCrt)

Detention conditions: Dybeku v Albania (ECHR)- mental health care; Mamedova v Russia (ECHR) - resources

(c) Rights subject to limitation Why are limitation clauses significant?

*Sub Commission on Prevention of Discrimination and Protection of Minorities ‘The Siracusa Principles of the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ E/CN4/1985/4 (1985)

[cf: section 7 Vic Charter – day 2]

Example: respect for privacy et al Eg: Article 17 ICCPR (see s13 Charter) 1. No one shall be subjected to arbitrary or

unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Ascertaining Meaning - what are the steps? 1. General Principles

2. Institutional commentary

3. Comparative case law

Institutional Commentary

Human Rights Committee General Comment 16

Term unlawful means that no interference can take place except in cases envisaged by law

Arbitrary inference = intended to guarantee that even interference guaranteed by law should be in accordance with the provisions , aims and objectives of the Covenant and should be reasonable in the circumstances

Family = broad interpretation to include all those comprising the family as understood in the society of the State concerned

Home = place where person resides or carries out usual occupation

Comparative Case law

Eg: Privacy

Pretty v UK (2002) 35 EHRR 1 (ECHR)

Broad term which covers all aspects of a person’s physical, psychological and social identity and relationships

Lawrence and Garner v Texas (USA)

… entitled to respect for their private lives and state cannot demean their existence or control their destiny by making their private sexual conduct a crime

It is a promise of the Constitution that there is a realm of personal liberty which the govt may not enter

… times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress

Case study: freedom of religion/expression - which one(s) would you ban?

What kind of judge would you be? See: R (on the application of Begum (by her

litigation friend, Rahman)) (Respondent) v. Headteacher and Governors of Denbigh High School (Appellants) [2006] UKHL 15

Multani and Multani v Commission Scolaire Marguerite-Bourgeoys and AG of Quebec 2006 SCC

4. Operationalisation II: economic social and cultural rights Questions for consideration

What is an economic, social and cultural right? What is the nature of State’s obligations with respect

to economic, social and cultural rights? How do we determine the content of economic, social

and cultural rights - Case study: health

[Note: consider relevance to 4 year review]

(a) What are eco, soc and cultural rights?

Any thoughts? Mere aspiration? Indeterminate? Resource dependent? Unenforceable?

Responding to the myths False dichotomy between ‘negative’ cp rights and

‘positive’ esc rights ESC rights are justiciable

Eg: Government of South Africa v Grootboom [2001] 1 SA 46

Occupiers Oliva Road v City J’burg [2008] ZACC 1 Adjudication does not usurp parliamentary

sovereignty Soobramoney (1997) 12 BCLP 1969 or Treatment Action

Campaign [2002] 5 SA 271

(b) General obligations of states Article 2(1) Each state party to the present Covenant

undertakes to take steps individually and through international assistance and cooperation especially economic and technical to the maximum of its available resources with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means including particularly the adoption of legislative measures

Making Meaning of the obligations See generally:

General Comment No 3 C’tee ESCR; Limburg Principles on the Implementation of the

International Covenant on Economic Social and Cultural Rights E/CN4/1987/17 Annex (reprinted in (1987) 9 Human Rights Quarterly 122-135

Maastricht Guidelines on Violation of Economic Social and Cultural Rights, Maastricht 22-26 January 1997 (reprinted in (1998) 20 Human Rights Quarterly 691-701

(i) Progressive obligation

General Comment No 3 C’tee ESCR

imposes obligation to move as expeditiously and effectively as possible towards goal of realisation of rights

any deliberately retrogressive measures would require careful consideration and would need to be justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources

[consider relevance at budget time?]

(ii) Minimum Core: C’tee GC 3 para 10

Each right has minimum core which requires State to ensure satisfaction of at the very least minimum essential levels of each of the rights under ICESCR

Where fail to realise minimum core state must demonstrate that every effort has been made to use all resources at its disposition in an effort to satisfy as a matter of priority those minimum obligations

State where significant number of households deprived essential foodstuffs, essential primary health care of basic shelter and housing or most basic forms of education is prima facie failing to discharge obligations under the Covenant

(iii) Tripartite typology of duties

Right to food General Comment No 12 (1999)

Right to food includes:

Right to respect: State cannot take steps to prevent enjoyment of right

Right to protect: State must protect individual against 3p d/n deprive individual of right

Right to fulfill: State must take measures to facilitate realisation of right

Making meaning of the content of esc rights Case study: Right to housing Article 11 1. The States Parties to the present Covenant

recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent..

Consider role of: Text and principles of interpretation ESC Committee:

http://www.ohchr.org/english/bodies/cescr/index.htm

Special Rapporteurs: eg: Right to housing http://www.ohchr.org/english/issues/housing/index.htm

Commentators Case law (judicial implementation)

See General Comment 4 (attached) What does GC 4 tell us about the right to

housing?

See also: Special Rapporteur Case law:

Grootboom (2000) 3 CHRLD 199