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Module 10 Remedies Remedies for the Promotion, Protection and Enforcement of Human Rights Every Right has a Remedy It is a basic principle that for every right violated, there must be an effective remedy. As one writer has said human rights without effective implementation are shadows without substance. Legal Basis for the Grant of Remedy a. Universal Declaration of Human Rights (UDHR) Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. b. International Covenant on Civil and Political Rights (ICCPR) State parties shall ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; and to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the State and to develop the possibilities of judicial remedy. The United Nations and Human Rights: Remedies under the UN The promotion and protection of human rights has been a major preoccupation for the UN since 1945, when the founding nations resolved that the horrors of The Second World War should never be allowed to recur. International Bodies, Rationale The implementation of human rights treaties cannot be left to states alone. There is a need, even in the case of those states committed to human rights, for some form of independent scrutiny. Human rights treaties, therefore, universally provide for some mechanism of enforcement or supervision, which is usually seen by an independent committee, commission or court. Each of the UN treaties has its own treaty body or committee. Two Thrusts/Aspects of UN Protection and Promotion of Human Rights The mechanisms for enforcement or supervision of human rights treaties take one of two forms: a. Reporting System may also be called the monitoring or supervision system. Under this system, state parties are required to submit, on a periodic basis, a report to the relevant UN committee outlining the progress made and the problems encountered in the implementation of the treaty. The committees are given the task of reviewing these reports during their annual meetings. A constructive dialogue then takes place when state parties are made to respond to inquiries made by committee members, mainly taking questions from reports submitted by nongovernmental organizations and elicit assurances from the states concerned that problems will be addressed and remedied. Complaints System (System of Communications) - may also be called as the petition system. These operate in a manner analogous to domestic legal proceedings in which an independent body is asked to deliberate upon a dispute between two parties and offer a decision or view as to the legal solution. However, this is not a means of appeal but simply a means of ensuring that the states concerned comply with their treaty obligations. The provision of remedies, in the sense understood in domestic law, is therefore a subsidiary concern as to most human rights treaties. In all cases, therefore, the emphasis is upon the provision of domestic remedies within the national legal order, and international scrutiny will only follow when those remedies have been exhausted.

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Classification of Mechanisms/Procedures 1. Charter-based Mechanisms are mechanisms based on the UN Charter which include: a. Human Rights Council (formerly/replaced The Commission on Human Rights) is the main policy making body dealing with human rights issues. It is composed of 53 member governments and does the following:

Prepares studies, makes recommendations and drafts international HR conventions and declarations. Investigates allegations of HR violations and handles communications relating to them

Mechanisms/Procedures under the HRC i. Universal Periodic Review unique process which involves a review of the human rights records of all UN Member States. This provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations. This is designed to ensure equal treatment for every country when their human rights situations are assessed. ii. Advisory Committee provides expertise to the Council and mainly focuses on studies and research-based advice. It is focused and limited to thematic issues pertaining to the mandate of the Council, namely promotion and protection of all human rights. It does not adopt resolutions or decision. iii. Complaint Procedure addresses communications submitted by individuals, groups or NGOs and examines the human rights situation within a State. The council therefore does not decide on individual cases but rather, check the complaints to see if there is a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. This is confidential but the thrust is to enhance the cooperation with the State concerned. [Note] Also called Procedure 1503, it bears the number of the resolution by the former UN Commission on Human Rights which established it. iv. Special Procedures (Rapporteurs/Working Groups) are independent human rights experts with mandates to report and advise on HR from a thematic or country-specific perspective. Special procedures undertake: country visits; act on individual cases and concerns of a broader, structural nature by sending communication to States and others n which they bring alleged violations or abuses to their attention conduct thematic studies and convene expert consultations contribute to the development of international human rights standards engage in advocacy, raise public awareness, and provide advice for technical cooperation.

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Treaty-based Mechanisms (Conventional Mechanisms)

International Law vs Domestic Law; Which takes Precedence International law takes precedence over the domestic law of a state. Thus, when a nation signs a treaty, it is pledging to adopt the provisions set forth within the treaty into the domestic law of a state. In this way, treaty-based mechanisms vary from charter-based ones. Whereas the UN Charters mechanisms are at times either not legally binding or require permission to be executed, treaties are backed by the norms regulating international law and are therefore legally binding. International legal instruments; binding International legal instruments take the form of a treaty (also called agreement, convention, protocol) which may be binding on the contracting states. When negotiations are completed, the text of a treaty is established as authentic and definitive and is signed to that effect by the representatives of states. Specific Treaty-based bodies There are nine core international human rights treaties: 1. Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its State parties.

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Tasks: a. Monitoring System after one year of acceding to the Covenant and every four years, state parties submit a report to the Committee which it will examine and give recommendations in the form of concluding observations. b. Complaint System the committee may consider inter-state complaints and by virtue of the First Optional Protocol to the Covenant, the Committee now has the competence to examine individual complaints with regard to the violations of the covenant by states party to the protocol. [Note] As such, complaints may be filed by another state or by an individual of that state. 2. Committee on Economic, Social and Cultural Rights monitors the implementation of the State parties to the International Covenant on Economic, Social and Cultural Rights. a. b. Monitoring System after one year of acceding to the Covenant and every four years, state parties submit a report to the Committee which it will examine and give recommendations in the form of concluding observations. Complaint System by virtue of the Optional Protocol, the Committee has competence to receive and consider communications from individuals claiming that their rights have been violated. They may also undertake inquiries on grave or systemantic violations of any of the economic, social and cultural rights set forth in the Covenant as well as consider inter-state complaints.

Tasks:

3.

Committee on the Elimination of Racial Discrimination body that monitors the implementation of the Convention on the Elimination of All Forms of Racial Discrimination by its State parties. Provides for the same tasks as the first two except that there are three other mechanisms in its monitoring functions: a. Early-warning/Urgent Action procedure b. Inter-state complaints c. Individual complaints

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Committee on the Elimination of Discrimination against Women monitors implementation of the Convention on the Elimination of All Forms of Discrimination Against Women. Committee against Torture monitors implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Three monitoring procedures: (a) individual complaints, (b) undertake inquiries, and (c) interstate complaints. Subcommittee on Prevention of Torture by virtue of the Optional Protocol the SPT visits places where persons are deprived of their liberty in state parties. Under the Optional Protocol, state parties shall establish an independent national preventive mechanism for the prevention of torture at the domestic places as well as to inspect place of detention. Committee on the Rights of the Child monitors implementation of the Convention on the Rights of the Child. Also monitors implementation of two optional protocols to the convention, (a) involvement of children in armed conflict and (b) sale of children, child prostitution and child pornography. Committee on Migrant Workers monitors implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.

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Committee on the Rights of Persons with Disabilities monitors implementation of the Convention of the Rights of Persons with Disabilities.

10. Committee on Enforced Disappearances monitors implementation of the International Convention for the Protection of all persons from Enforce Disappearance International Court of Justice vs International Criminal Court International Court of Justice This is the principal judicial organ of the United Nations. It was established by the United Nations Charter and is found in the Peace Palace, the Hague. This court is composed of 15 judges and performs a dual role: (a) settling disputes between states by virtue of international law and (b) giving advisory opinions on legal matters referred to it by duly authorized UN organs and specialized agencies. Only State parties may appear before the court, thus, the court has no jurisdiction to deal with applications from individuals, NGOs, corporations or any other private entity. Issues tackled by the ICJ include: (a) sovereignty; (b) trade; (c) natural resources; (d) treaty violations; (e) treaty interpretations; etc.

International Criminal Court The International Criminal Court is the first permanent, treaty-based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community The ICC is an independent international organization, and is not a part of the United Nations System. It is primarily funded by State parties although it receives donations from governments, international organizations, individuals, corporations and other entities. Under the Rome Statute, the ICC can only assume jurisdiction or investigate and prosecute when the states are unable or unwilling to do so themselves. The Court has jurisdiction over crimes only if they are committed in the territory of a state party or if they are committed by a national of a state party; except that ICC may also have jurisdiction over crimes authorized by the UN Security Council. (a) (b) (c) (d) As a permanent international criminal court, it has jurisdiction over cases of: genocide crimes against humanity war crimes crimes of aggression

Rome Statute This is the treaty that established the ICC. It was adopted at a diplomatic conference in 17 July 1998 and entered into force on 1 July 2002. The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. International Criminal Court vs International Court of Justice The International Court of Justice has no jurisdiction to try individuals accused of war crimes or crimes against humanity for it is not a criminal court. It does not have a prosecutor able to initiate proceedings. Commission on Human Rights Powers and Functions Under Sec. 3 of Executive Order No. 163, the CHR shall have the following powers and functions: (a) investigate, on its own or by complaint of any party, all forms of human rights violations involving civil and political rights (b) adopt operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court;

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(c) provide appropriate legal measures for the protection of human rights of all persons within the Philippines (d) exercise visitorial powers over jails, prisons or detention facilities; (e) establish a continuing program of research, education and information to enhance respect for the primacy of HR; (f) recommend to Congress effective measures to promote HR and provide compensation to victim of violations of HR; (g) monitor Philipine government compliance with international treaty obligations on HR (h) grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth; (i) request the assistance of any department, bureau, office or agency in the performance of its functions; (j) appoints its officer and employees (k) perform such other duties; Case: Brigido Simon vs CHR Focus: Authority and power of the Commission on Human Rights Facts: A Demolition Notice was issued to the North EDSA Vendors Association wherein they were given a period of 3-days to vacate the premises of North EDSA. The Vendors approached the CHR to ask for a letter to be addressed to Brigido Simon, then Mayor of EDSA to stop the demolition. Later, CHR issued an Order directing the petitioners to desist from demolishing the stalls and shanties of the private respondents. The demolition howevery proceeded and thus, CHR issued a resolution for the disbursement of financial assistance of not more than P200,000.00 in favor of private respondents and an order to further desist from further demolition with the warning that violation of said order would lead to a citation for contempt or arrest. Issue: The power and authority of the CHR and the investigative power of the CHR. Held: Although the first power given to the CHR has a resemblance to adjudication, this is not synonymous to the adjudicatory power itself. The CHR was not meant to be a court or quasi-judicial body. The most that it can do is investigate, i.e. receive evidence and make findings of facts as regards claimed human rights violations. The Court further ruled that the phrase HR violations involving civil and political rights intended by the constitution does not include the demolition of the stalls, sari-sari stores and carinderia/ the act of the petitioners. Furthermore, the contempt powers of the CHR is limited to acts in violation of its rules and procedures. The order to desist/restraining order, which was issued by the CHR, is not investigatorial in character but prescinds from an adjudicative power that it does not possess.