Thursday, March 7, 2019
In measuring the outcome to which the europiuman regional burn down to world in good orders protection offers advant elds over the join Nations planetary admission, the heterogeneous mechanisms contained deep d let twain systems essential be comp ard and analysed. An explanation of the various transtheme treaties and the drafting of the European Convention will require or so consideration in order to assess the over tout ensemble(prenominal) effectiveness of the machinerys established beneath both(prenominal) systems for the protection of gentlemans gentleman race rights.Particular deferred payment will be made to the right non to be subjected to bedevil or to in kind or debasing intercession or penalty whos universal condemnation stems back to the impunity for horrific crimes against humanity attached during the start-off and Second World war thus prompting in 1945, the first get upal recognition of the importance of protect human rights in the transnat ional order by heart of the United Nations c all in all for and the Nuremberg Charter.The United Nations Charter sets place its purposes as promoting and encouraging respect for all human rights and for total exemptions for all without distinction as to race, sex, language, or worship and although the firmness of purposes atomic number 18 no much than aspirational, they support principles of liberty and respective(prenominal) freedoms that have subsequently organize the content of specific rights treaties. excruciation is accredited with strong universal condemnation, and although at that place is no absolute definition, its prohibition is emphasised in several planetary legal instruments such as the Universal Declaration of homophile Rights 1948 (UDHR), the European Convention on homophile Rights 1950 (ECHR), and the world(prenominal) Covenant on genteel and Political Rights 1966 (ICCPR), severally in similar language, providing that no unity shall be subjected to frustrate or to cruel, inhuman or degrading treatment or punishment The Convention against Torture and Other Cruel cold or degrading Treatment gives a precise definition in clause 1 and requires parties to take effective measures to pr in timet it in any ground beneath its jurisdiction calling on all States to check that all exercises of wo(e) ar include offences under their domestic criminal fair bets, including attempts and complicity as well as participation.Similar steps are interpreted indoors the European Convention of Human Rights which imposes an obligation on to each unmatched detection ships company to secure those rights are at heart their jurisdiction. However, at global level, under the statutes of criminal tribunals, torture weed only be prosecuted if it waterfall at bottom the category of war crimes. In addition to this, the neediness of effective en coercement mechanisms within close to States undermines the effectiveness of the foreign huma n rights system.The foreign Court of justness (ICJ) hears cases involving disputes mingled with nation- renders and hold 30 of the Convention provides that, any dispute between both State parties concerning its interpretation or action which has not been potential to settle through negotiation or arbitration may be submitted to ICJ by one of the States. A failure of this allows for a claim to be submitted to the ICJ requesting that the Court gull measures requiring the Respondent to take all steps within its compress-out to ensure the rules of worldwide uprightness will be right applied. The problem accordingly lies in the fact that in order for the International Court of Justice to hear a case, the State parties to the dispute must(prenominal) accept its jurisdiction. This is borne from the fact that International impartialityyers will fit in that an international commensurateness is not legally binding unless the parties intend it to be and is therefore more of a n understanding or agreement between the States.This is considered a problem with enforcement at international level as rights contained in the Conventions need to be equilibrate with the States sovereignty. By contrast, where the United Kingdom and new(prenominal) countries have incorporated the Human Rights Act 1998 within its juridical system, a natural consequence of this is that to an extent, they minify and undermine the position of Parliament as an exclusive law giver for the UK providing that all domestic law is compatible with the rights contained within the Human Rights Act. whatsoever former(a)wise fundament difference at regional level is where the Convention establishes its own machinery for the enforcement of these rights.Applications made based on a violation of Article 3 atomic number 50 be bought either by a member state on behalf of an individual victim by another High undertake Party, or by a member state bringing an practical application against anothe r state and allows for a more effective and immediate compensate at the domestic level as opposed to using the international machinery at Strasbourg. The latter is highlighted in Ireland v United Kingdom where an application was brought by the Irish government in relation to the treatment of Irish nationals by the British authorities.The ECtHRs general approach on purpose a violation of Article 3 relied on the concept that the saddle of proof was borne not by one or other of the two Governments have-to doe with, but mainly on the evidence of the ne hundred witnesses perceive in, and on the medical reports relating to each case. Based on the allegations against the UK, the Commission estimated that the basketball team techniques administered by the police constituted a practice of inhuman and degrading treatment.In finding this, the Commission emphasised that ill treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 and asserted that i t depends on all the mass of the case, such as the duration of the treatment, its mental effects, and in some cases the sex, age and state of health of the victim. The scope of the Convention was extended so as to imply intention within its meaning in accordance with the UN Resolution.The approach is further laid down in Askoy v Turkeywhich concerned a Turkish national who had been subjected to a form of torture known as Palestine hanging which resulted in him losing the movement of his arms and bargains. Due to the form of torture requiring the applicant to be stripped naked with his hands level(p) behind his back, as well as cosmos strung up by his arms, the courts found that such an act would have required expression and was therefore deliberately carried out. Damages, were awarded on behalf of the Turkish state. The methods adopted under each case in their application under the law has imposed upon its members the Courts power to make judicial decisions that are enforceable on the offending State. more than of its success can be placed on the basis that each Contracting State is, in an frugalal sense, more equipped and politically empowered with the resources to adhere to the principles laid down within the Convention. This was the situation in 2009 where Belgium instituted proceedings before the International Court of Justice against Senegal on the case that a dispute existed regarding Senegals compliance with its obligation to prosecute a suspect for acts of torture under the Convention. The main reason for non compliance rest on financial difficulties which pr crimsonted Senegal from organising a trial more important, on the rationality that crimes against humanity did not form part of Senegalese criminal law. other advantage the European regional approach to human rights protection has over international law is its rights contained in Part I of the Convention. These rights identify a number of civil and political rights requiring protection fro m arbitrary and despotic governments amongst other important rights, such as the right to life. In this context, the individual holds a overtly defined right against the State in that the violation of that right can be tested in a court of law. So it is questionable whether international law is equipped to deal with individual rights of an economic and cultural nature, and in picky, where third generation rights are concerned.This is illustrate in the ICCPR Article 2(1) which states that Each Party to the expose Covenant undertakes to respect and to ensure that all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, without distinction of any kind However, Article 2(1) of the ICESCR states that Every State Party to the present Covenant undertakes to take steps to the maximum of its available resources, with a view of achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means So although the international approach provides a mechanism by which all States can agree universal standards of human rights, there exists in some States, a pecking order of rights that are considered perhaps, less important than others, where importance on a limited right is based on social, cultural and political factors. In further support of his view, it is suffice to say that the right to freedom of religion and legal opinion is accompanied by constraints of Article 5 in that such violations can lead to such things as imprisonment, torture and restrictions on freedom of belief and association.An important example is the Peoples Republic of chinas one-child policy and forced abortions which has been check up onn as restrictions on not only freedom of religion and belief, but also the torture of detainees in Chinese wait centres and prisons. Although the policy was designed as a temporary measure, it portrays a clear violation of human rights derived out of politic al necessity to limit commie Chinas population growth. In the promotion and protection of human rights, the Committee against Torture (CAT) considers periodic reports from High Contracting States every four days and deals with both inter-state complaints and individual complaints.Alongside this, the 2006 Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) provides for the mental institution of a system of regular visits undertaken by independent international and national bodies to places where pot are deprived of their liberty, in order to disallow torture and other cruel, inhuman or degrading treatment or punishment, to be overseen by a Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In addition, the Human Rights Council requires its members to go through a periodic review of their own human rights. This allows individual or group complaints to be examined for evidence of a pattern of human rights by the Sub-Commission Council on Prevention of Discrimination and Protection of Minorities which are then referred to the Working Group on Situations.In accordance with General gathering Resolution 60/251, Rapporteurs can undertake visits with the consent of the State concerned and report back to the Human Rights Council. In a upstart UN exceptional Rapporteur on Torture, the Rapporteurs findings highlighted the gap between Chinas obligations under five of the international human rights treaties and the reality on the ground. In particular, Dr Nowak pointed out the incentives for the police and security officials to obtain confessions through torture and the lack of independent, removed and accessible courts and prosecutors, as well as ambiguity of the domestic law regarding political crimes. The Rapporteur found that in all cases it observed, each victim had been convicted of a political crime, possibly on the basis of information ext racted by torture.On these facts, the Special Rapporteur appealed to the Government to release its victims, and added in their conclusions that considering the gravity of such findings, the international community must not waste further time and act immediately to pressure China to end all use of torture and bring justice to those responsible. The report included a set of 23 recommendations for China to act upon, as matter of urgency, in-order to abolish the use of torture. These included setting up mechanisms of investigation and prosecution of perpetrators of torture prevention through safeguards in the criminal law system ratification of international conventions and their executing the abolition of political crimes from domestic law the guaranteeing of freedom of speech, assembly, association and religion and the abolition of forced re-education in detention.The UN Commission on Human Rights referred all reports of its mechanisms to the newly established Human Rights Council f or further consideration at its First Session in June 2006. In response, the General Assembly adopted resolutions aimed in general at the principles contained in the Charter of the United Nations and the UDHR by re-emphasising, reaffirming and re-acknowledging human rights However, scorn the Rapporteur visits and attempts to expose Chinas go bades, a United Nations review of Chinas human rights record highlighted the weakness of a new occasion that was supposed to be the chief improvement in the U. N. s ameliorate human rights system.In despite of this, China continues to in its pursuit of human rights violations as it was reported no soon after that China has a network of secret black jails for people who dare to complain rough life under the Communist regime. Findings suggested up to 10,000 citizens a year are hauled off the streets, locked up and beaten in the makeshift prisons. By contrast, the European regional system has in place a mechanism whereby a Committee, establis hed under the European Torture Convention 1987, visits detention centres in order to ascertain whether conditions contained within the Convention are being adhered to. This in itself places pressure on its member states to conform to the standards set by the ECHR bandage prolonging protective measures for individuals considered at put on the line.In this sense, the Convention adopts a preventative approach to the publication of torture, and in doing so, highlights the fact that where States are poorly monitored and enforced, countries face weensy or no penalty for failure to uphold human rights standards. On the contrary, where all else has failed under international measures and a government refuses to uphold the declaration and instead treats its members of its own society in a cruel or inhuman manner, the United Nations and has the power to authorise army action against that arena in violation of the Declaration. Perhaps the first experiment of UN intervention is the Korea n War where in 1950 America called on the United Nations to use force to get the North Koreans out as they had ignored the Security Councils resolution of June 25th. This later resulted in U.S military intervention. The Korean War provides sufficient evidence that when the U. N. Security Council threatens the use of force to enforce its resolutions, it can follow through. Although in reality, the Council has passed a significant number of resolutions over the years that have not been carried out which signifies reluctance by the Council to enforce a resolution in circumstances where intervention is necessary unless such enforcement carries with it a political dilemma. In support of this point is the use of force in Iraq where the UN enforced resolution 1441 through Baghdads failure to liberate itself of its alleged weapons of mass destruction.The Iraq situation raised a similar issue for the Council regarding Korea whereby they could either approve Bushs request to use force in Ira q based on American intelligence and on an American timetable, and risk being seen by other countries as complicit with the Bush administration, or defy the U. S. president and risk being considered irrelevant by the worlds largest military power. Chesterman, a senior associate at the International Peace academy stated in response that, the issue of the U. N. s relevance comes up regularly, and every couple of years the United Nations faces a crises over its legitimacy citing debate over its roles in the Balkans, the Gulf War and Somalia.The protection and enforcement mechanisms industrious by international law suggests that it is focussed primarily on correct state behaviour, whereas European regional law has its objectives aimed in the movement towards protecting individuals from the state. And although international law has increasingly been involved in identifying individual rights and retention individuals accountable, is still to an extent has in or so cases been those wh o have been involved in political affairs. As mentioned earlier, states have a duty to investigate, prosecute or rescue individual perpetrators, and if they fail or are unwilling to do so, other states and international courts can step forward instead. In 1998, agent Chilean President Augusto Pinochet was arrested in London following the request for fork up from Spain.The charges involved forms of torture committed during his term in office. In 2000, Hissene Habre, designer president of Chad was indicted by the state prosecutor of Senegal for similar offences. That same year, a Belgian Tribunal de premiere instance issued an international arrest kisser against Abdoulaye Y. Ndombasi, the then Foreign Minister of the Democratic Republic of the Congo. This was a channelize application of the principle of universal jurisdiction which allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states.However, the International Court of Justice found that the arrest warrant against Ndombasi failed to respect the resistance from criminal jurisdiction and the inviolability which he could enjoy under international law. The 2001 extradite of former naval officer Ricardo Cavallo highlights the first case in whereby as person can be accused of crimes committed on one country, be arrested in a second, and then extradited by a third. Where Europe is concerned, the Courts tend to delve deeper into the interpretation and application of the right to freedom from torture by distinguishing the terms torture, inhuman, degrading treatment and punishment separately.This has enabled the courts the discretion to apply the wording of Article 3 more widely. In particular, where there is the risk of a future violation of this right. Peers v Greece provides another example of the extent to which the Courts have laid down the importance of s uch treatment that falls below torture. In this case the applicant complained that he had been detained in fasten cell conditions with no ventilation and an open toilet. Although the Court held there to be no evidence of a positive intention to humiliate or debase the applicant, the fact that the state had taken no measures to improve the conditions amounted to a lack of respect for the applicant and was therefore a violation of Article 3.What is apparent between the two systems is the objective on the one hand by the international system, to act as a potential means of conflict resolution, and although to an extent Europe provides its own mechanisms for maintaining its state affairs, the system it has in place has greater level of cooperation which allows the emphasis to be placed specifically on individual rights. At the same time, although many States have decease party to the United Nations Convention against torture, there appears to be a lack of effective enforcement mechani sms in place within some States, which in fleck violates the general obligations to punish crimes against international humanitarian law.And where the UN has, passim the fifty years, in amended and reformed its treaties so as to bring those violators in breach of the declaration to justice, it has still, in many instances lacked the will or faced the veto, and as a result, murderous regimes enjoy impunity. The root of this lies perhaps, in the fact that the UN organises a legal institution by letting States decide by mass vote who does and who does not deserve to be shamed for human rights abuses, which in turn creates a political process in which political factors play a major role. Countries that are shamed tend to be both violators and politically dangerous in multilateral settings. This is the case in particular where, although the UN and NATO is willing to go into Yugoslavia and launch air strikes in order to prevent violations of human rights, there are continuous reports of violations in China and by the Chinese upon its people.To conclude, it could be argued that that the UN is less likely to enforce human rights in countries that are permanent members, and where this could be the case, international law will potentially be the nigh influential source of law. In support of this view, recent reports have suggested that countries like China simply sidestepped censure by garnering sufficiency support to block attempts by the U. S. or other Western nations to scrutinise their records. Meanwhile, Cuba and others complained that the U. S. was too powerful to face thorough examination. By contrast, European law has effective measures that ensure state supremacy is spread evenly throughout the system. At the same time, both international law and European law can be deemed as wakelessly Western as most international law is based on Western notions.On that disgrace alone, and in measuring the extent to which the European regional approach to human rights protection offers advantages over the United Nations international approach, the overall effectiveness of both systems, if based entirely on their Western notions, combined with both political and economical factors, present a framework which is more compliant with the international laws on human rights, in particular where cases of torture are concerned. And with that being said, one fundamental advantage that exists within the regional system is that when compared to international law, Europe does not have to deal with the majority of the more vulnerable states that fall within the realms of international law.Human Rightsthe question of human rights has received a great deal of attention. Today, violation of human rights is seriously taken note of by international bodies and by champions of democracy. It is in this backdrop that most countries have set up their own independent National Human Rights Commissions. Human rights are those rights which are fundamental for living and fo r normal human existence. They are based on the concept that every man and woman, regardless of caste, creed, colour, race and nationality is born with certain fundamental rights such as, right to live, speech, freedom, justice, etc.These rights are, therefore, enshrined in the constitution of the countries. In order, that these basic rights are maintained and adhered to by the nations of the world, United Nations Organisation adopted a Charter of human rights soon after its formation. The Universal Declaration of Human rights which UN adopted on 10th Dec. 1948 enumerates some of these basic rights of man. These are rights to live, liberty and security of person, right to freedom of speech, judicial remedy, freedom of movement, right to take part in the governance of ones country, etc. The second types of rights are economic and social rights.These are the right to work, right to live with dignity, right to rest and leisure, right to education, come to pay for equal work, right t o equality, etc. The problem of human rights is that people and countries have a different understanding of the term and its protection. In some counties political and civil rights are not given or guaranteed to all its citizens. In some other countries, economic and social rights are not enforced, Therefore, the basic idea behind stressing human rights is that all governments should try to maintain these fundamental rights and see that all types of discrimination in this respect are rooted out.Nevertheless, many types of discrimination and violation of human rights are seen in different parts of the world. It is true that racial discrimination known as Apartheid as existed in South Africa formerly no longer exists in the world. Yet today, people are forced to flee their land of race and forced to live in refugee camps under miserable conditions. Today minorities in many parts of the world have no political rights. The stage of Ms. Suu Kyi Myanmar is a shining example in this resp ect. Cruelty to prisoners of war, unjust treatment of prisoners in jail, economic discrimination, casteism, rape, child labour, child prostitution, etc. are other forms of violation of human rights. Protection and maintenance of human rights is a fundamental duty of every government. International organisations and watchdogs such as, UNO, International Human Rights Commission, etc. , can play a vital role in ensuring the execution of these basic rights. Countries, particularly the democratic countries, must stand together in this respect and take necessary persuasive and even coercive actions, to see that these fundamental human rights are adhered to by people, organisations and countries all over the world.