Public Law and Human Rights - Research Paper Example

Public Law 1 Table of Contents Special Procedures of the United Nations Human Rights Council Introduction … 2 Mechanisms for monitoring and promoting compliance … 2 Powers and limitations of the United Nations … 7 Conclusion … 8 Sources … 9 EFFECTIVENESS OF THE HUMAN RIGHTS ACT 1998 WITHIN THE UNITED KINGDOM Introduction … 10 Purpose of the Human Rights Act 1998 … 10 Manner in which Human Rights Act 1998 has been applied … 12 Conclusion … 15 Sources … 17 PUBLIC LAW Special Procedures of the United Nations Human Rights Council Introduction “The special procedures of the Human Rights Council (HRC) of the United Nations are independent human rights experts with mandates to investigate, report and advise on human rights from a thematic or country-specific perspective. Currently, there are 31 thematic and 8 country mandates. The Office of the High Commissioner for Human Rights (OHCHR) provides these mechanisms with personnel, policy, research and logistical support for the discharge of their mandates. “Special procedures are either an individual called ‘Special Rapporteur’, ‘Special Representative of the Secretary-General’, or ‘Independent Expert’ or a working group usually composed of five members (one from each region). The mandates of the special procedures are established and defined by the resolution creating them. Mandate-holders of the special procedures serve in their personal capacity and do not receive salaries or any other financial compensation for their work. The independent status of the mandate-holder is crucial in order to be able to fulfill their functions in all impartiality” (UN Human Rights Council, 2009). Mechanisms for monitoring and promoting compliance with global human rights law There are various mechanisms for monitoring and promoting compliance with global human rights laws. These mechanisms have been drawn up by human rights experts known as special procedures and have stood the test of time. It is not always easy to make these mechanisms work. Human rights violations are taking place even today and it is difficult to make these mechanisms work under extremely harsh conditions. The United Nations have, however, effectively intervened in major crises in Afro-European nations such as Congo, Rwanda, and former Yugoslavia. Mechanisms are basically norms or actions of the United Nations in any region of the world facing grave economic, social or cultural situations. These mechanisms are intended to neutralize or normalize conditions from such economic, social or cultural disturbances. Mechanisms derived from eight human rights treaty bodies are: 1. The Human Rights Committee (CCPR) 2. The Committee on Economic, Social and Cultural Rights (CESCR) 3. The Committee on the Elimination of Racial Discrimination (CERD) 4. The Committee on the Elimination of Discrimination Against Women (CEDAW) 5. The Committee Against Torture (CAT) & Optional Protocol to the Convention against Torture (OPCAT) - Subcommittee on Prevention of Torture 6. The Committee on the Rights of the Child (CRC) 7. The Committee on Migrant Workers (CMW) 8. The Committee on the Rights of Persons with Disabilities (CRPD) (The United Nations Human Rights System: How to Make it Work for You, p21). The treaty bodies enumerated here cover the entire gamut of economic, social, cultural racial discrimination, women rights, child rights, and prevention of torture issues. Whenever regional disturbances have occurred, international human rights mechanisms in the form of tribunals were set up to handle criminal issues such as the ones formed in former Yugoslavia in 1993 and in Rwanda in 1994. These tribunals had the mandate to prosecute individuals responsible for genocide, crimes against humanity and other breaches of international humanitarian laws (The United Nations Human Rights System: How to Make it Work for You, p23). The United Nations is flexible on the question of mechanisms. Existing mechanisms can be supplemented with fresh ones in new developments. “There are two distinctive types of supervisory mechanisms: a) Treaty-based mechanisms: supervisory mechanisms enshrined in legally binding human rights instruments or conventions. Within the UN framework these mechanisms are often called ‘treaty bodies’, e.g., the Human Rights Committee and the Committee on the Rights of the Child. The African Commission and future Court of Justice and Human Rights, the European Court of Human Rights and the Inter-American Court and Commission of Human Rights are also treaty bodies.  b) Non-treaty based mechanisms: supervisory mechanisms not based on legally binding human rights treaty obligations. Generally, this type of mechanism is based on the constitution or charter of an intergovernmental human rights forum, or on decisions taken by the assembly or a representative body of the forum in question. Under the UN framework, the non-treaty-based mechanisms are referred to as ‘charter- based’ mechanisms, which include the Human Rights Council 1503 procedure, the Universal Peer Review and ‘special procedures’” (International Supervisory Mechanisms for Human Rights). The mechanisms for monitoring and promoting compliance with global human rights law are complex and wide ranging. They are complex because although explicit they are accepted in varying degrees by different countries. Member states may have their own reasons and compulsions for accepting, partly accepting of rejecting these mechanisms. It is not possible to enforce mechanisms on any state without a clear mandate (Davis, Megan; 2003). The United Nations was basically formed to protect human rights in 1945 after cessation of World War II. The purpose of the United Nations was to prevent genocide on the pattern witnessed during World War II when half the world population of Jews was wiped out. “The various supervisory procedures established in human rights treaties can be divided into four main groups: Reporting procedures Inter-state complaint procedures Individual complaint procedures Inquiries and other procedures” (International Supervisory Mechanisms for Human Rights). Reporting procedure is the routine procedure of periodical reporting concerning a treaty to the HRC. The HRC reviews these reports and if necessary, may raise questions or require clarifications. Member states are normally provided guidelines on the format and contents for the information needed. Although the thrust of the reporting procedures is extensive, it is not possible to expect cent percent compliance. There are states that may not want to share certain information. There are also states that delay their reports for a very long time. In such cases, the HRC responds appropriately after looking at the track record of the errant member. The HRC has to refrain from acting swiftly and decisively because it has its own constraints. The HRC may not have enough staff or funds for immediate action. However, the HRC has other sources to get relevant information such as non-governmental organizations (NGOs), educational institutions or reliable individuals. When one state initiates any form of complaint against another state, it is known as inter-state complaint procedure. In this procedure both states must recognize the United Nations’ competence to find solution to their issue. The individual complaint procedure is a powerful instrument by which an individual can lodge complaint against the state government in the UN. However, there are certain conditions the individual must satisfy before lodging the complaint. ” In order for an individual to bring a case/communication/petition under a human rights convention, the following requirements have to be met: a) the alleged violating state must have ratified the convention invoked by the individual; b) the rights allegedly violated must be covered by the convention concerned; and c) proceedings before the relevant body may only be initiated after all domestic remedies have been exhausted” (International Supervisory Mechanisms for Human Rights). Inquiries and other procedures cover issues that do not fall under the other three procedures, viz. reporting procedures, inter-state complaint procedures and individual complaint procedures. There may be issues that an individual has against his government for not following certain human rights cause or section. All such issues are covered under inquiries and other procedures (International Supervisory Mechanisms for Human Rights). “In order to determine which supervisory mechanism applies in a specific case, the following questions may be used for guidance:  Which specific human right has been violated?  Where has the alleged violation taken place?  Which government is held responsible and to what extent?  Which convention protects this human right? Is the responsible state a party to an applicable human rights treaty? If yes, how does the supervisory procedure work? If no, is there some supervisory procedure outside the relevant convention that could be invoked?” (International Supervisory Mechanisms for Human Rights). Powers and limitations of the United Nations The United Nations has sufficient powers in emergency situations to ensure compliance of the errant state to the verdict of the special procedures. The United Nations ensured compliance in the cases of former Yugoslavia and Rwanda. It is also keeping a watchful eye on the activities of states like Iran and North Korea with regard to their nuclear activities. “The Secretary-General of the United Nations can use his good offices to raise human rights issues with member states. These issues may specially have to do with release of prisoners or commutation of death sentences. The High Commissioner of Human Rights can act on behalf of the Secretary-General on crisis management, assistance to states in periods of transition, and co-ordination and rationalization of human rights program” (The United Nations and Human Rights, 1996). Conclusion The UN is a responsible organization that has evolved strategically over the years with trials and experience. It has played active roles not only in containing crimes and violence but also in times when any region was ravaged by natural calamity such as floods and earthquakes. It is not possible to confidently state that the UN has proved to be useful in every case where its assistance was needed. This is because of its limited role. It cannot go beyond its resources to intervene militarily or provide logistic support in times of devastation. However, with experience as a nodal organization it has time and again proved its usefulness as a focal point of the world community. Whenever required it has voiced its opinion or acted decisively as the occasion demanded. Sources: Course 10E10: The United Nations Human Rights System, 2010, http://www.hrea.org/index.php?base_id=401 Davis, Megan; “Civics Education and Human Rights” (2003), Australian Journal of Human Rights, http://www.austlii.edu.au/au/journals/AJHR/2003/10.html Government, citizens and rights; 01 May 2010, http://www.direct.gov.uk/en/governmentcitizensandrights/index.htm Human Rights Bodies, 2010, http://www.ohchr.org/en/hrbodies/Pages/HumanRightsBodies.aspx Human Rights Council Hears Presentations on Arbitrary Detentions, Enforced Disappearances, and Human Rights of Internally Displaced Persons, 08 March 2010, http://www.reliefweb.int/rw/rwb.nsf/db900SID/SNAA-83E9Q2?OpenDocument Human Rights Index of United Nations Documents, 2008, http://www.universalhumanrightsindex.org/hrsearch/search.do;jsessionid=E054B032A0726FC89558FBB4C16DC255?accessType=category&categories=71&orderBy=country&clusterCategory=category&lang=en International Supervisory Mechanisms for Human Rights, http://www.humanrights.is/the-human-rights-project/humanrightscasesandmaterials/humanrightsconceptsideasandfora/theconceptsofhumanrightsanintroduction/internationalsupervisorymechanismforhumanrights/ Protecting and promoting your rights, http://www.nihrc.org/index.php?Itemid=14&id=9&option=com_content&task=view Special Procedures of the Human Rights Council, 2010, http://www2.ohchr.org/english/bodies/chr/special/index.htm The United Nations and Human Rights, February 1996, http://www.un.org/rights/dpi1774e.htm The United Nations Human Rights System: How to Make it Work for You, http://www.un-ngls.org/IMG/pdf/Final_logo.pdf UN Human Rights Council, 2009, http://www.equalityhumanrights.com/human-rights/international-framework/un-human-rights-council/ EFFECTIVENESS OF THE HUMAN RIGHTS ACT 1998 WITHIN THE UNITED KINGDOM Introduction The Human Rights Act 1998 has come to be known as one of the most important legislation affecting almost all areas of law and policy. The United Kingdom is the last country in Europe to legislate human rights as a landmark law and policy. “Five years after its implementation and seven years after its introduction to Parliament, the Act is said to have changed the way the UK’s immigration law is interpreted and applied, while immigration policies are being adapted to be in line with the principles underlying the Act” (What Impact Has The Human Rights Act 1998 Had On The UK Immigration Law, 2010). Human rights have played significant role across the globe since World War II ended. Nations realized the importance of this concept after the genocide of World War II when millions of military personnel and civilians died only because of the war. Since then, human rights have played useful role in raising awareness and providing safeguards against repeating mistakes that led to catastrophic confrontations. Purpose of the Human Rights Act 1998 Introducing the Human Rights Act 1998 bill to Parliament, Lord Irvine of Lairg observed, “Our legal system has been unable to protect people in the 50 cases in which the European Court has found a violation of the convention by the United Kingdom. That is more than any other country except Italy. The trend has been upwards. Over half the violations have been found since 1990. This Bill will bring human rights home. People will be able to argue for their rights and claim their remedies under the convention in any court or tribunal in the United Kingdom. Our courts will develop human rights throughout society. A culture of awareness of human rights will develop.” (What Impact Has The Human Rights Act 1998 Had On The UK Immigration Law, 2010) The significance of the Human Rights Act 1998 was that any citizen in the UK, along with duties and responsibilities, enjoyed rights and privileges as citizen of a free state. This Act brought home the view point that while a citizen could not injure the sentiments of others he has every right to participate in the judicial, legal, political, religious and social affairs of the nation (The impact of the Human Rights Act 1998 on medical decision making, 2000). The Act went beyond the local citizen and brought him within reach of law to initiate proceedings against the state in any court or tribunal in the UK if the state did not take interest in his rights. The Act virtually brought the citizen to the hallowed precincts of the region that the rulers felt belonged to them as birth right. This Act has been particularly severe on the UK immigration law that it helped change fundamentally. It affected the procedures of the UK immigration law and spared thousands by establishing freedom from torture or inhuman or degrading treatment or punishment. The Articles of the Act makes it explicit that no one shall be subjected to torture or to inhuman or degrading treatment or punishment (Article 3), everyone’s life shall be protected by law (Article 2), no one shall be required to perform forced or compulsory labor (Article 4), and everyone has the right to liberty and security (Article 5) (Human Rights Act 1998). This focus of the Act on the individual at once raised the standard of the UK citizen to very high levels in the eyes of the law and gave him something to think about and act upon, should it become necessary, at any point of time henceforth. The guarantees provided by the Act cannot be glossed over as a political gimmick as the Articles come with “enforceable right to compensation” (Human Rights Act 1998). The manner in which Human Rights Act 1998 has been applied by the Courts “The HRA came into force on 2nd October 2000. It incorporated into UK law most of the rights and freedoms enshrined in the ECHR, which was signed on 4 November 1950 and came into force on 3 September 1953. The Convention was the product of the Council of Europe, a regional body that was formed after World War II to unify the continent and secure peace and prosperity” (What Impact Has The Human Rights Act 1998 Had On The UK Immigration Law, 2010). Human Rights did not apply domestically in the UK before 2nd October 2000. This is because Human Rights did not exist then in the way it does now. The laws of Human Rights as it existed under the influence of the European Court did prevail in the UK. However, this was subject to the interpretation of the courts in the UK. The absence of a Human Rights Act in the UK did complicate issues should the court feel that a law outside of the UK could not have precedence over domestic laws. It could be argued that domestic laws had better chance at enforcement in domestic situations. The argument was one of compatibility. If the court found that the domestic laws that existed before 2nd October 2000 were not compatible with the Human Rights Act that existed with the European Court, the courts had the powers to strike down the Act that existed with the European Court. The existing situation is different. “Any individual or group of individuals who believe that their rights have been breached can bring a claim in a domestic court using the Human Rights Act 1998, and where violation is established, then the Act provides procedures for compensation” (What Impact Has The Human Rights Act 1998 Had On The UK Immigration Law, 2010). The European Convention on human rights is now part of the law in the UK. However, HRA 1998 cannot overlap or strike down any other Act of the British Parliament. In case there is such an overlap or conflict, the courts can declare that particular Act to be incompatible with the HRA 1998. This is a clear message to the Parliament to format corrective law as quickly as possible. Nonetheless, the declaration of incompatibility does not achieve anything else for the person whose right has been violated. Courts are not empowered to declare an Act of the Parliament as invalid (Your Rights, 2010). Hence, the euphoria over the HRA 1998 is still limited. The courts can rule against the application of the HRA 1998 if it is found to be incompatible with any other Act of Parliament. That is why it is important that any individual or groups considering action against violations of HRA 1998 also do so circumspectly so that he is not found violating any other Act. Thus, there is an element of balance in HRA 1998. Also, “all types of new legislation must be interpreted so far as it is possible to do so in a way that is compatible with the HRA. When applying domestic legislation, national courts should now proceed on the basis that Parliament is deemed to have intended that all legislation be compatible with the HRA” (What Impact Has The Human Rights Act 1998 Had On The UK Immigration Law, 2010). “It is worth noticing that the HRA does not intend to extinguish existing legal provisions safeguarding human rights in UK law. On the contrary, it introduces the minimum standards protected by the ECHR leaving room for their development and expansion by individual member states. This can be achieved for instance through their case law and interpretation. However, all national courts and tribunals must take into account the case law of the European Court of Human Rights. This rule applies to England, Wales, Scotland and Northern Ireland. In consequence, one of the principal objectives of the HRA was to give national courts as much space as possible to protect human rights, short of powers to set aside Acts of parliament” (What Impact Has The Human Rights Act 1998 Had On The UK Immigration Law, 2010). No government would want to give citizens unfettered powers. There is a place for every piece of legislation. No Act of the Parliament can be made subservient to the HRA 1998. One can try and make it as compatible as possible. Now there is a particular piece of legislation that the majority of European judges uphold as sacrosanct. “The UK government argues that the guarantee in Article 3 is not absolute and therefore it must be balanced against competing interests such as national security where a state is planning to expel or deport an individual. However, the majority of the European judges explicitly rejected this argument, noting that Article 3 enshrines one of the most important values of a democratic society and contains a guarantee which is absolute in expulsion cases. In other words, the Council and its regional court was telling to its 46 member states that they cannot rely on their national security interests to justify the deportation of foreign nationals where there are grounds to believe that Article 3 will be violated” (What Impact Has The Human Rights Act 1998 Had On The UK Immigration Law, 2010). Deportation is the ticklish issue between the courts in the UK and the European Court. The issue does not appear to be heading towards any solution. A persona non grata will be a persona non grata anywhere. Is this why the European Courts are against deportation? In the final analysis, the European judges maintain that no country can deport an individual on account of national security. The dimension of this argument is vast and it is not possible to comment for or against this argument. That will call for another research. Conclusion Whatever the argument, the fact remains that HRA 1998 brought about a sea change in the annals of the British judiciary. It has provided the citizen with legal options for remedial actions when confronting the government. It has not only provided legal redress but also compensatory procedures should violation be established. This provides the citizens with breathing space. A responsible and informed citizen can challenge the government in a court and expect justice. The government can no longer afford to hide behind Acts that afforded protection and immunity. Sources: A Guide to the Human Rights Act 1998: Third Edition, http://www.justice.gov.uk/guidance/docs/act-studyguide.pdf A Guide to the Human Rights Act 1998 Questions and Answers, December 2000, http://www.justice.org.uk/images/pdfs/HRAINT.PDF Human Rights Act: What the articles say, http://news.bbc.co.uk/2/hi/uk/946400.stm A to Z of legislation: Human Rights Act 1998, 2010, http://www.guardian.co.uk/commentisfree/libertycentral/2009/jan/14/human-rights-act Human Rights Act 1998, http://www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_1 Human Rights Act 1998 (c.42), http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1851003 The impact of the Human Rights Act 1998 on medical decision making, October 2000, http://www.cirp.org/library/legal/BMA-human-rights/ The Human Rights Act 1998 UK Law, 2006, http://www.solarnavigator.net/embassies/human_rights_act_1998.htm What Impact Has The Human Rights Act 1998 Had On The UK Immigration Law, 2010, http://www.law-essays-uk.com/free-essays/human-rights-act-and-immigration.php Your Rights, 15 April 2010, http://www.yourrights.org.uk/ Read More