UNIVERSAL DECLARATION OF HUMAN RIGHTS UDHR

The Universal Declaration of Human Rights, adopted in 1948, elaborated the scope of human rights. Article 1 summarizes all of the subsequent articles states, "All human beings are born free and equal in dignity and rights." More than 20 years after adopting the Universal Declaration of Human Rights, the international community agreed on two covenants spelling out in more detail the rights embodied in the declaration. UDHR therefore have been grouped into two separate covenants for further developing into an enforceable set of principles. These were the International Covenant on Civil and Political Rights (often referred to as the political covenant) and the International Covenant on Economic, Social and Cultural Rights (often referred to as the economic rights covenant). Both entered into effect in 1976. These are legally binding on states that have ratified them. However, many member states have not done so, and many others have done so only with substantial reservations. (States can make reservations to treaty articles that they do not wish to be bound by, as long as these are not contrary to the meaning of the treaty). The concept of national sovereignty is a dominant argument for the states to prevent interference in the home affairs of other nations.

The International Covenant on Civil and
Political Rights (ICCPR) and the International
Covenant on Economic, Social, and Cultural
Rights (ICESCR) were completed in 1966 and
entered into force in 1976. Together with the
UDHR, these three instruments comprise what
is known as the International Bill of Rights,
which provides the international legal framework
for the promotion and protection of all human
rights.

These rights include:

ICCPR:
• the right to life
• the right to a fair trial
• the right to freedom of expression
• prohibition against torture
• the right to liberty and security
• the right to freedom of religion and conscience


ICESCR:
• the right to work
• the right to the highest attainable standard of health
• the right to education
• the right to an adequate standard of living
• the right to social security




THE EUROPEAN CONVENTION ON HUMAN RIGHTS

In general, treaties protecting civil and political rights have incorporated complaints mechanisms, enabling individuals alleging violations of their
rights to submit petitions for adjudication. By contrast, treaties protecting ESC rights were accorded more restricted methods of supervision, namely monitoring of reports submitted to them by States Parties (i.e. those States that ratified the treaties). Thus, at the UN level, both the ICCPR and the ICESCR require States
Parties to submit periodic reports to their respective treaty-monitoring bodies on measures taken to comply with the provisions of the Covenants. However, only the ICCPR has a complaints mechanism; a comparable procedure under the ICESCR is under consideration but has so far eluded agreement. As a consequence, while the ICCPR has generated a wealth of case law which interprets and gives life to its provisions, the ICESCR has not had the benefit of such a system.

The Council of Europe drafted the European Convention for the Protection of Human Rights and Fundamental Freedom, with the view to political considerations within the framework of rights that the member states have adopted therefore are enforceable. The two main parts of the Convention is initially the substantive rights protected by the Treaty and further those rights that deal with procedural matters, namely rules and procedures for the admissibility of complaints.

The Convention, Article 1, Guarantees that all rights are to be secured for everyone; Article 2 Protects the right to life but allows courts to issue death penalty, Article 3 Prohibits torture, Article 4 Prohibits slavery, Article 5 Protects the right to liberty and security of person, Article 6 requires minimum rules for fair civil and criminal hearings, Article 7 Prohibits the retrospective application of criminal law or increased sentencing, Article 8 Protects the right to privacy and respect for family life, home and correspondence, Article 9 Protects the right to freedom of thought, conscience and religion, Article 10 Protects the right to freedom of expression, Article 11 Protects the right to freedom of association with others, Article 12 Protects the right to marry and found a family, Article 13 Requires an effective domestic remedy for any violation, Article 14 Prohibits discrimination in relation to the enjoyment of the Convention’s rights, Article 15 Allows certain rights to be restricted in times of “war or other public emergency threatening the life of the nation”, Article 16 Allows restrictions on the political activity of aliens, Article 17 Specifies that activities aimed at the destruction of the Convention’s rights and freedoms are not protected by the Convention, Article 18 Emphasises that where the Convention permits certain restrictions on a right, those restrictions will be strictly construed.

Part two of the Convention Article 19-51, deals with the judicial enforcement to ensure observance, and it has been further revised by Protocol 11 which came into effect on Nov 1998.

The Economic, Social, and Cultural Rights

The implementation of the Human Rights Act represented a significant milestone in the
promotion of human rights in the UK. For the first time, human rights standards are directly applicable and enforceable in UK law, and will be binding on government and public administration. The introduction of the Act also raises questions about the nature, status, and implementation of other key human rights instruments. In relation to social and economic and cultural rights, these include the International Covenant on Economic, Social and Cultural Rights, the Social Charter of the Council of Europe, other more specific UN and ILO Conventions, and the European Union’s
Charter of Fundamental Rights.

The UK government’s Annual Human Rights Report, published in 1999 by the Foreign
and Commonwealth Office (FCO), stressed the importance of recognising the ‘indivisibility’ (i.e. the equal value) of the whole family of rights
– not just civil and political rights, but also social and economic rights. The two sets of rights are indivisible: that is, they form a single unified body of rights.
Until relatively recently, the link between poverty, social exclusion, and the denial of human rights was rarely recognised. However, understanding has grown of the close interrelationship between these issues. At the international level, the UN
General Assembly reaffirmed in 2001:

… that extreme poverty and exclusion from society constitute a violation of human dignity and that urgent national and international action is therefore required to eliminate them;

Criteria for Admissibility

A pioneering act in international law was put forward by Protocol 11 that has given the right to individuals to make states accountable before an international court in case of breaching their international obligations. This is an unprecedented permission given by an international procedure to persons to have direct access to an international court with the power to deliver judgments which are binding in international law. The judgments are enforceable by the Committee of Ministers.

Under Article 34 of the Convention the right of individual petition is now a mandatory part of the Convention, though it remains optional for overseas territories. The jurisdiction of the court is limited. Complaints can only be considered if they meet the admissibility criteria set out in Article 35. These can be summarised as:

Submission by an eligible person, the issue of concern in the Convention, the time limit that the state was bound by the treaty, in the extend of jurisdiction of the Convention, all domestic remedies have been exhausted, within six months of the last remedy, as well as raising the arguments in the domestic courts. The states are further obliged not to restrict the effective practice of these rights and to allow individuals to put forward their cases of abuse.


Eligible Person to Complain, Who and about Whom?

Any person, NGO or group of individuals claiming to be the victim of a violation can bring forward their complains under the Convention. This can include physical persons, including children and other victims of violence, whether or not represented by their legal representative, their parents, legal persons such as companies, NGOs, religious groups, and political parties. Individuals or legal persons do not have to be citizens of the state concerned. Similarly they don’t have to be the nationals of any state of the Council of Europe, though this may involve their rights under Article 1 of Protocol 1. Anonymous complains are not acceptable, but complainants can ask for confidentiality of their identity although they must be named for the abusive state.

Group Complaints

The right of complaint extends to NGOs and groups. This local government councils are not allowed to complain, but politicians in their personal capacity or political parties have given this right. NGOs or groups cannot bring complaint simply because they wish to challenge a particular action of the state. The Convention does not recognise a complaint brought by concerned persons who are not themselves victims of a violation. Trade Unions and NGOs can only provide representation of their members and cannot themselves bring complaints on behalf of their members - however, they can complain about an act directed towards the Union or the organisation.

CHILDREN may appear personally for the complaints or through their parent, guardian, or their official representative such as the Official Solicitor in the United Kingdom, or through their lawyer. The rules have been adopted to be more flexible than the national laws.

VICTIMS - Article 34 requires that the applicant must claim “to be the victim of a violation”, that is to say, s/he has been personally affected or is at risk of being affected by a law, or at least affected as an indirect person such as close family member of the victim who is imprisoned or deported.



The Accountable State

The Convention signed by the states, therefore only signatory states can commit violations. Complaints must therefore allege that a state which is a party to the Convention has failed to carry out its obligations.

Complaints cannot be brought against private persons or institutions, and the Court has continuously repeated that it does not deal with decisions of national courts. However. There are other ways to approach the Court as non state actors are also obliged and consequently include in the jurisprudence of the Convention. States are obliged to secure the rights and freedom therefore they must support legal procedures that ensure these rights.


The Time limit

Article 35 requires that complaints be introduced within six months of the final decision of the national authorities. The Court can only examine complaints which allege that the state has violated its obligations under the Convention.

Place of Violation

States can only be liable for violations which occur within their jurisdiction. All events which occur on their territory will normally be within their jurisdiction.


Complaint Subjects

The Court can only examine complaints which relate to the rights and freedoms contained in the Convention. Not all Member States have ratified all the protocols to the Convention. Complaints cannot be brought in relation to protocols which a state has not ratified. Since Protocol 11 came into force, states are no longer able to exclude from the right of individual petition complaints relating to any protocol which they have ratified. Many human rights issues are outside the Convention’s provisions: for example there is no right to divorce, to a particular nationality, to diplomatic protection or to use the language of one’s choice in dealings with the authorities. Other rights may appear be outside the scope of the Convention’s provisions, for example it contains no right to refugee status, no right to social security, no right to work or to question the length of a sentence duly imposed by a court. However these rights may be indirectly protected in some way by cognate provisions. Asylum seekers for example may be protected by the prohibition on torture or inhuman and degrading treatment, which includes a prohibition on impulsion to face the risk of such treatment. Refusal of social security benefits which have a contributory element may involve the determination of civil rights under Article 6, as may the right to compensation for unfair dismissal.

Some protected rights are not clearly marked out in the text of the Convention, such as physical safety as an example. Article 3 of the Convention prohibits inhuman and degrading treatment but since this prohibition is absolute, the threshold of severity test is very high. In Article 5 it guarantees the right to liberty and security of the person, it does not guarantee personal safety but only protection from arrest and detention. Physical or psychological ill treatment falling short by Article 3 might appear to fall outside the scope of the Convention’s protection. However, the right to “moral and physical integrity” could be found in the private life rubric of Article 8.

Exhaustion of domestic remedies

The most important procedural aspects of the Convention is the exhaustion of domestic remedies that limit further admissibility if it is undermined by the victim and his/her representative. Under Article 1 of the Convention, states are under an obligation which includes mandatory legal framework to ‘secure’ the rights and freedoms to everyone within its jurisdiction. The fundamental obligation under Article 1 is enhanced and highlighted by Article 13 which requires that ‘everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority….’ It clearly points out that unless it is proved that the state had breached its obligations - approved in a national court of law - the complaints can not go any further.



Process of the Complaint

The applicant’s aim must be to use each opportunity to express the complaint clearly and to relate it directly, in simple language, to one or more of the Convention Articles. The Court’s investigation is divided into two separate parts. Initially as the admissibility stage - the screening process takes place where it assesses whether the complaint has crossed the procedural barriers. The following phase is the Court’s investigation of the truth of the complaint and includes the possibility of a friendly settlement. Although the two parts are dealt with separately below, the Court inevitable has regard to the merits of a complaint as it considers admissibility. Where observations on admissibility are sought to or an oral hearing arranged, the Court will also use the opportunity to obtain comment and information on the merits at the same time.

NA, 4 June

Oxfam GB, Beyond Civil Rights, Developing Economic, Social and Cultural Rights in the UK, Sandy Ruxton and Razia Karim, First published in 2001 by Oxfam GB