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Tamás Lattmann, Balázs Vizi

INTERNATIONAL PROTECTION

OF HUMAN RIGHTS

Tamás Lattmann – Norbert Tóth – Balázs Vizi

INTERNATIONAL PROTECTION

OF HUMAN RIGHTS

Edited by

Tamás Lattmann – Balázs Vizi

National University of Public Service

Institute of International Studies

Budapest, 2014

National University of Public Service

Institute of International Studies

Authors:

Chapter 4.1; Chapter 4.6; Chapter 6.); Norbert Tóth (Chapter 2.3.3; Chapter 3.1–3.2;

Chapter 3.4–3.5 (except 3.5.5), Balázs Vizi (Chapter 3.3; Chapter 3.6–3.7; Chapter

5.), 2014

Editors:

Tamás Lattmann, Balázs Vizi

Reader:

Elisabeth Sándor-Szalay

system, or transmitted, in any form or by any means, without the prior permission in

writing of the publisher.

Typeset and design by National Publisher of Civil Service and Textbook co. Ltd.

Printed and bound by Pauker Printing House

ISBN 978-615-5491-42-9

TABLE OF CONTENTS

1. Introduction to international human rights law ............................................... 9

1.1 Nature of human rights ................................................................................. 9

1.2 Categories of human rights .......................................................................... 10

1.3 International protection of human rights ..................................................... 11

1.3.1 Need of international protection ........................................................ 11

1.3.2 Historical development of international protection

of human rights ................................................................................. 14

1.4 International law and human rights ............................................................. 17

1.4.1 Human rights documents in international law .................................... 17

1.4.2 International treaties protecting human rights .................................... 18

1.4.3 Reservations and objections to human rights treaties .......................... 18

1.4.4 Violation of international human rights treaties ................................. 20

1.5 Overview of human rights protection mechanisms ...................................... 20

1.6 Universalism v cultural relativism ................................................................. 21

2. Protection of human rights in the framework of the UN ............................... 23

2.1 UN basic documents and human rights ....................................................... 23

2.1.1 Human rights in the UN Charter ....................................................... 23

2.1.2 Universal Declaration of Human Rights ............................................. 24

2.2 UN main bodies and human rights .............................................................. 25

2.2.1 UN General Assembly ........................................................................ 26

2.2.2 Economic and Social Council ............................................................ 27

2.2.3 UN Security Council ......................................................................... 28

2.3  e institutional centre of human rights protection of the UN .................... 29

2.3.1 UN Commission on Human Rights (1946-2006) .............................. 29

2.3.2 UN Human Rights Council (2006- ) ............................................. 30

2.3.3 Universal Periodic Review ................................................................... 32

2.3.4 UN High Commissioner for Human Rights ...................................... 32

2.4 UN treaty-based expert bodies ..................................................................... 33

2.4.1 Common elements to treaty bodies .................................................... 34

2.4.2 Current problems with the operation of treaty body system ............... 35

2.5 UN international human rights treaties ....................................................... 36

2.5.1 Convention on the Elimination of All Forms

of Racial Discrimination .................................................................... 37

2.5.2  e UN human rights covenants ....................................................... 39

2.5.3 International Covenant on Civil and Political Rights ......................... 40

2.5.4  e International Covenant on Economic, Social

and Cultural Rights ........................................................................... 45

2.5.5 Convention on the Elimination of All Forms of Discrimination

against Women .................................................................................. 46

2.5.6 Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment .............................. 48

2.5.7 Convention on the Rights of the Child .............................................. 50

2.5.8 International Convention on the Protection of the Rights

of All Migrant Workers and Members of  eir Families ..................... 52

2.5.9 International Convention for the Protection of All Persons

from Enforced Disappearance ............................................................ 54

2.5.10 Convention on the Rights of Persons with Disabilities ..................... 55

3. European protection of human rights ............................................................. 59

3.1 Historical development of the Council of Europe ........................................ 59

3.2 Convention for the Protection of Human Rights and Fundamental

Freedoms and its Protocols .......................................................................... 61

3.3  e European Social Charter ....................................................................... 75

3.3.1 Human rights under the Charter ........................................................ 75

3.3.2  e reporting procedure and the European Committee

of Social Rights (ECSR) ..................................................................... 77

3.3.3 A collective complaints procedure ...................................................... 78

3.4 Other human rights conventions concluded in the framework

of the Council of Europe ............................................................................. 79

3.5  e European Court of Human Rights ........................................................ 79

3.5.1 Composition of the Strasbourg Court ................................................ 80

3.5.2 O ce holders, bodies and organs of the ECthR ................................. 82

3.5.3 Sections of the Court .......................................................................... 83

3.5.4 Proceedings of the ECtHR ................................................................. 86

3.5.5 Execution of judgments and decisions of the European Court

of Human Rights ............................................................................... 91

3.6  e European Union and Human Rights ..................................................... 93

3.6.1 A historical development .................................................................... 93

3.6.2  e Charter of Fundamental Rights of the European Union .............. 96

3.6.3  e Fundamental Rights Agency ........................................................ 97

3.7  e Organisation for Security and Co-operation in Europe

and Human Rights ...................................................................................... 98

4. Regional protection of human rights ............................................................. 101

4.1 American system of protection of human rights ......................................... 101

4.1.1 Organisation of American States (OAS) ............................................ 101

4.1.2 Historical development in the framework of the OAS ...................... 102

4.1.3 Institutional development – the Inter-American Commission

on Human Rights ............................................................................ 102

4.1.4 American Convention on Human Rights and its protocols .............. 103

4.1.5 American institutions of human rights protection

after the Convention: the Commission and the Court ...................... 104

4.1.6 Other OAS human rights conventions ............................................. 106

4.2 African System of Human Rights ............................................................... 107

4.2.1 Historical development in the framework of the OAU / AU, AU

and the African system ..................................................................... 107

4.2.2  e Banjul Charter and its protocols ................................................ 107

4.2.3 Enforcement of African regional human rights treaties .....................109

4.2.4 Other relevant OAU/AU treaties on human rights ........................... 110

4.3  e regional mechanism of protecting human rights in Asia ...................... 110

4.4 Arab system of protection of human rights ................................................ 112

5. International protection of minorities ........................................................... 115

5.1 Introduction ..............................................................................................115

5.2 De nition of "minority"............................................................................. 116

5.3 Security concerns and human rights in international minority

protection .................................................................................................. 117

5.4 Minority rights and the international protection of human rights .............. 118

55 International organisations and the implementation

of minority rights ...................................................................................... 119

5.6 Normative Principles in Minority Rights Protection .................................. 120

5.6.1 Non-discrimination and equal rights ................................................ 120

5.6.2 Special rights .................................................................................... 121

5.6.3 Individual vs group rights ................................................................. 122

5.6.4  e right to autonomy...................................................................... 122

5.6.5 A rmative action (positive discrimination) ...................................... 123

5.6.6 Control mechanisms for the implementation

of international standards ................................................................. 124

5.7 International Instruments of Minority Rights Protection ........................... 124

5.7.1  e United Nations .......................................................................... 124

5.7.2 Council of Europe ............................................................................ 128

5.7.3 OSCE and minority rights ............................................................... 131

5.7.4 Minorities and the European Union .................................................132

6. Protection of human rights in armed con icts .............................................. 135

6.1 Introduction to international humanitarian law ......................................... 135

6.2 Sources of international humanitarian law ................................................. 136

6.3 Situations of armed con icts – applicability of IHL norms ........................ 138

6.3.1 International armed con icts ............................................................ 138

6.3.2 Non-international armed con icts .................................................... 139

6.4 Protection of civilians ................................................................................. 139

6.4.1  e principle of distinction .............................................................. 140

6.4.2 Collateral damage ............................................................................. 141

6.4.3 Use of civilians as shields .................................................................. 142

6.5 International humanitarian law and the international human

rights law regime ....................................................................................... 142

6.6 Application of derogations in times of armed con icts ............................... 143

1. Introduction to international human

rights law

1.1 Nature of human rights

To discover the nature and importance of human rights, with the application of a basic

approach we may conclude that human rights provide for individual freedom and

liberty in relation to state (which may exercise public power over individuals, but also

in relation to other individuals, who may also be capable of violation of these liberties.

In some cases human rights not only provide for these freedoms against the above

mentioned, but at the same time may mean a legal possibility to the individual to force

them to refrain from doing something against him – these human rights are often called

justiciable human rights.

 e basic concept of individuals bearing liberty against the state is not new, it has

always been present during the development of societies and mankind. Of course this

has not been recognised as "human rights" in today's meaning, rather than a society-

organising principle: given social groups has duties and liberties in a society. You can

 nd this basic phenomenon in ancient tribes, archaic societies and feudal societies as

well.

Social tensions have been present already at the feudal times, which has led to clashes

similar than of today's.  e society organised with the monarch on top and the nobles

serving as the "society", so early human rights documents can be identi ed in the form

of the contemporary legal documents providing for liberties of the nobles of the country.

 ey had duties towards the monarch, representing the state (for example and most

importantly military duty), but they also had liberties and exemptions (for example

exemption from taxation). Early examples are the famous Magna Carta Libertatum

from 1215, which has provided for the liberties of the English nobles from the King.

It was the result of a given political situation, where the monarch (the state) has lost

signi cant power, thus the nobles (the individuals forming the contemporary society)

could secure their liberties (rights of theirs under the contemporary society). It may

be interesting to mention, that in Hungarian history similar event have happened just

a few years later, and in 1222 the so-called "Golden Sealed Bill" has been adopted by the

King to the pressure of the nobles.  is document serves as one of the leading sources

of Hungarian historical constitutionality.

 ough these documents have an utmost historical importance, they cannot be

quali ed as being human rights documents in today's sense as they serve protection of

privileges of certain social groups instead of all human beings.  e modern concept

International Protection of Human Rights

of human rights has been born with the recognition of the equality of human beings,

the roles of the states and the governments,  rst by philosophers and scienti c authors,

followed by states' practice in their domestic laws. Of course this has not happened

from one day to an other and this advancement has taken place at di erent times in

di erent countries.  e historical role of the philosophy of the enlightenment era has

been realised by the process as a result of which modern constitutions have been created

with the interpretation of human rights being the recognised result of human dignity

being equal to all.

 e most important documents in the post-feudal societies are the Bill of Rights

of Great Britain adopted in 1689, and the constitutional developments of the United

States it has in uenced.  e 1774 Declaration of Rights in Philadelphia, the 1776 Bill

of Rights of Virginia and the adoption of the Constitution of the United States in 1787,

amended by the Bill of Rights in 1791.  ese  rst ten amendment to the Constitution

has inserted human rights into the founding document of the federal state, thus making

a protection and respect of human rights the obligation of not only the states creating

that entity but also of the federal government. In France, the 1789 Declaration of Rights

of Men and Citizens of 1789 has turned these theoretical principles into practice, later

followed by the Constitution of 1791.

During the nineteenth century, most of the states and domestic legal systems has

provided for some protection of human rights. Of course the pace of this development,

the human rights recognised, the strength of this protection were di erent in the various

countries, depending on the level of development of society, of economy and plenty

other factors that may determine this.

1.2 Categories of human rights

Human rights can be categorized many ways and according to many aspects. In

international human rights law, the most widely applied method is that one that has

been introduced by a milestone study, prepared by Karel Vasak and published in 1977

in the UNESCO Courier. Taking the famous motto of "Freedom! Equality! Solidarity!",

Vasak has developed the interpretation based on the "three generations" of human

rights.  is creates groups of rights based on the kind of obligation they pose on states,

but it also represents a chronological development.

 e " rst generation" of human rights are the civil and political rights. States shall

respect these rights and a very important factor is that this respect usually requires:

passive action or just minimal action from the states. To simplify it: by not doing

anything, the states will not violate these human rights. As a logical consequence,

ensuring these human rights is usually not a question of  nancial abilities, so the often

heard argument about human rights being privileges of rich states simply does not

stand. Another consequence is, that international treaties dealing with these human

rights often pose the obligation of states party to ensure human rights covered by the

treaty immediately, as soon as the given treaty enters into force.  ese treaties often

1. Introduction to international human rights law

provide for some sort of complaint procedure, to make sure that states meet their

obligations, and these obligations are easily measured.

Economic, social and cultural rights are often referred to as the "second generation"

of human rights. Contrary to the previous group of human rights, these require active

action from the states, they have to allocate funds, initiate governmental programmes

and facilitate other actions to ful l their obligations deriving from these human rights. It

is easy to understand that in the most cases this takes time and money. And as a historical

fact, states have di erent  nancial capacities and di erent levels of social development,

which means that sometimes it is very di cult to  nd common standards or even to

settle common expectations. Because of all these reasons, international human rights

conventions covering economic, social and cultural rights operate di erently than the

ones dealing with civil and political rights. Instead of expecting prompt ful lment of

all human rights concerned, they are usually satis ed with states recognising them and

taking the obligation to gradually implement them or to endeavour to that.

 e so-called "third generation" of human rights is the result of the social-technological

development of the second half of the twentieth century and of the phenomenon of

globalisation. Professional literature is vivid on this subject. Some authors refer to it as

"solidarity" rights, some as the "rights of future generations", depending on the focus.

Some build the concept of third generation of human rights around the requirements

of developing countries, with the result of identifying human rights like "people's right

for equal share of the world's resources", some around political ideas with human rights

like "people's right for peace", while some around recognised necessities with human

rights like "right to a clean environment" as a result.  ere is no speci c international

treaty dealing with these human rights, as the whole idea has not been formed into one

single concept, right now it is more of a philosophical than a legal category. In the same

time, states' evolving practice may give some indications about the future directions of

development, and now this seems to be organised around building stronger rules about

protection of environment.

1.3 International protection of human rights

1.3.1 Need of international protection

As we could see before, domestic legal systems have started to provide for protection of

human rights already at the nineteenth century via constitutions and laws. It may be

worthy to examine the question of international protection.

Nearly two hundred years of state practice and experience has made professional

literature able to evaluate the advantages and disadvantages of international protection of

human rights. Here we summarize the more important points as a general introduction

before examining this  eld in more details – and we will get back to them in later

chapters of the present volume.

International Protection of Human Rights

 e advantages of international protection of human rights may be summed up

around the following factors:

1. Ensuring better control;

2. Development of common values and common standards;

3. Possibility to apply political pressure.

Positioning protection of human rights on the level of international law provides

for a possibility of a better and stronger control over actions of states. Unfortunately

sometimes states' domestic provisions prove to be ine ective or insu cient in this

matter. In some occasions, mankind has also experienced that states use their legal

system to violate human rights systematically and on a large scale. In a situation like

that, domestic law becomes completely useless – the experience of the horrors of the

Nazi and the communist regimes has proven this painfully. International law may

become a second line of defence for human rights to make sure that states and their

domestic legal systems do not lose outer control. Of course, this results in the possible

weakening of the concept of state sovereignty, but this does not mean any conceptual

problem, as human rights have always served as a possible limit to states' powers – as

re ected already in early interpretations of sovereignty, for example in the writings of

Jean Bodin in the sixteenth century.

International protection of human rights leads to the development of common

values and standards on the level international relations.  is is extremely important in

a globalised world: while many di erences may exist in the practice of states and various

cultures, some basic values can be identi ed regarding human rights. For the protection

of these values common standards have been developed, most of which are based on

domestic legal solutions.  ese have gradually been introduced to international practice,

for example via various international bodies, which has had its e ect after on various

domestic practice of states as well. By this, strong international protection of human

rights makes a more robust domestic protection of human rights as well.

If the question of human rights raises to the level of international relations, the

possibility of application of political pressure becomes real.  ough this may be

a dangerous advancement (examined in more details in the next paragraphs), in the

present system of international relations politics is a very important piece of the set

of tools available to in uence actions of states. State practice violating human rights

may lead to international condemnation, shaming of a government and altogether

a weakening in international relations, a lack of ability to pursue a states' own interests.

Of course it does not always work perfectly, as states usually calculate the e ects of their

behaviour, and as a result of this calculation they may  nd that human rights violations

may not have such a bad e ect on their international position.  is is possible, but

still, the fact that they have to calculate with this is a very serious advancement and

contributes to a better protection of human rights.

Some of the disadvantages or de ciencies of international protection of human rights

also have to be mentioned here. Some of them have political or ideological nature, some

1. Introduction to international human rights law

of them are the consequence of the nature of the present system of international law.

 ese can be organised around the following main points:

1. Existing political and ideological di erences;

Questions about states' willingness to develop new or even enforce existing norms;

3. Chances of states to avoid legal binding power made possible by the system of

international law.

International law by its nature has to tolerate some amount of the existing political

and ideological di erences between states.  at means that its tools, like international

treaties are not always capable of overcoming all existing di erences and only have

a limited capacity of creation of new norms, subject to the consensus of states.  e latter

is determined by many factors, most of them being far out of the reach of international

law, but rather subject to domestic political or ideological relations and situations. With

human rights this poses the danger of human rights also becoming subject to these,

which can have bad e ects uncalled for.  is can be especially dangerous, when a group

of states developing interpretations and practice providing for a stronger protection

meets that of other states with a weaker system.  is can be well visible in actual cases

related to freedom of speech or religion.

State willingness is a de ning question related to international human rights law. As

international law is not built on a supreme legislation power capable of creating new

norms but rather on consensus and cooperation of sovereign states, the genuine will

of the states to operate this system gains vital importance. We can say that states are

usually interested in developing new legal norms and enforcing already existing ones,

but in many cases this does not re ect a genuine will, rather a political goal. We have

identi ed international politics as an important tool to help ensuring human rights – in

many cases human rights are used the other way around, to pursue states' foreign policy

goals, for example to gain higher ground to their political adversaries in international

relations. Sometimes international politics produces an enormous amount of hypocrisy

within the framework of various international human rights organisations and bodies.

 is may have a seriously detrimental e ect on the whole body and operation of the

system of international human rights law.

 e characteristics of international law provides for many chances to states if they

want to avoid legal binding power.  is is strongly connected to the question of the

genuine will of states related to international protection of human rights: if a state

does not want to take human rights obligations, but wants to project an image of

being serious about those, it can  nd methods of achieving this goal.  is can happen

both to creation of new norms and to enforcement of existing ones.  e  rst one is

possible with the extensive application of so-called reservations to international human

rights treaties. International law, according to customary law and the provisions of the

Vienna Convention on the Law of Treaties, make reservations possible usually to help

states overcome minor di erences related to the text of a treaty being adopted or to put

unresolvable questions out of the way of the future treaty – but many times are used by

some states to tackle binding power of the treaty itself (reservations will be addressed in

International Protection of Human Rights

a later chapter in more details). Additionally, human rights enforcement mechanisms

are often made weak by states' actions claiming to protect their sovereignty, while they

rather serve to get rid of international control and observance: these can surface in form

of reservations or the state simply not consenting to the proceedings of various treaty

bodies. It may be fully legal under international law, but it is contra productive related

to international protection of human rights.

1.3.2 Historical development of international protection

of human rights

 e historical development of international human rights law can be separated into

three big periods of time. Not surprisingly, the sections are separated by the two world

wars, which have brought such changes into international politics and to many aspects

of international law that had their e ect on international human rights law as well.

 e historical era before the First World War has not been the prime time of

international human rights law, but this is not a surprise as this period (especially

the nineteenth century) has just seen the birth of modern international law as such.

International protection of human rights in general has not been accepted at that time,

this question was considered to be fully subject to domestic jurisdiction, to be domestic

a air, with no international intervention allowed. While international human rights

law has not existed in this form, some of its seeds could have already be seen in forming

state practice: a few results have started the emergence of a new body of law.

For example international action has been insisted against slavery and slave trade

during the century – unfortunately this was not really aimed at building up

a new  eld of international law, rather it was utilized by some states to pursue

political goals, namely the endeavour of the US federal government to assert

economic pressure on the southern "slave states" of the Union.

tAnother  eld of international law that has started development at this age was

the one protecting the rights of aliens – but this has not really shown a human

rights pro le, the subject of the protection was not the individual, but the

subject of the other sovereign.

Early international treaties of international humanitarian law, the rules

regulating the conduct of states and of armed forces in cases of armed con icts

have forged some human rights into legally binding provisions.  e basic rules

protecting the life of persons not taking part in hostilities or the provisions

providing for respect to civilian property and limitation of requisition can

already be quali ed as recognition of human rights in international law – but

these have only been applicable in times of war between states and they were to

be applied only related to the enemy.

 e end of the First World War has brought tremendous change in international

politics, which has had a serious e ect on international law, and on international human

1. Introduction to international human rights law

rights law as well.  e reason of this is basically the fact that the new world order

designed for the period after the war required stronger international rules, and some

aspects have expectedly were to touch upon human rights-related matters.

t e human rights novelty in the period between the two world wars has been

emerged in the form of a new body international law providing for the rights

of minorities.  is subject had to be regulated because of the new geopolitical

situation created by the peace treaties and the post-war redrawing of the state

borders. A painful consequence of this was the threat of problems with national

minorities and of a de-stabilization of the new alliance system in Central and

Eastern Europe. To circumvent this, rules providing for the protection of

minorities have been incorporated into the peace treaties, and by ratifying these,

the states gaining territories under these treaties have also taken the obligation

of respect and protection of minority rights. Some methods of settlement of

disputes have also been created in the framework of these treaties and the

League of Nations – but unfortunately this new body of law has never properly

been tested.  e post-war political tensions unfortunately has just not made

this possible, and after the Second World War, the question of protection of

minorities have been incorporated into international human rights law.

tSome of the human rights questions originating from the pre-war period has

gained the form of an international treaty during this period. For example the

initiatives from the time before the war has led to the adoption of the Slavery

Convention in 1926.

t e period after the war has seen the emergence of the economic, social and

cultural rights in international relations.  ese rights had already been subject

to serious debates within states' domestic legal sphere, and they have gradually

become subject to international attention. With the globalisation of economy,

states have gained interest to introduce some international cooperation on this

matter, too. As a result, their attention has turned to international law and

organisations and as a  rst step, the International Labour Organisation has

been created in 1919.  e success of this organisation was proven by the fact

that later it has become a specialized agency of the UN.

After the Second World War the question of international protection of human

rights have raised into a new dimension.  e horrors of the war, and especially its e ect

on human rights has caused a paradigmatic changes on thinking about international

human rights law.  is has supplemented other major changes in international law,

 rst of all the creation of the United Nations which has meant a brand new era in the

history of international relations.

 e  rst important change was the general change in thinking about the relationship

between state sovereignty and human rights.  e earlier understanding has changed:

states have had to realize that trusting human rights solely to domestic jurisdiction is

not only wrong but politically dangerous.  e practices of the Nazi Germany, with

special attention to human rights violations against its own citizens have proven that

International Protection of Human Rights

some sort of international protection is needed to ensure basic protection of human

rights. For that reason, they have included provisions in the UN Charter, which have

provided for a signi cant change related to human rights: state sovereignty could not

be invoked any more to hide violations of human rights, which could not be considered

to be domestic matter anymore.

Another change was the individualization of human rights in general. As the practice

of collective human rights, which minority protection had been built on after the First

World War could not prove its worth, and the ideas of collective responsibility has

been rejected by many, the strict individualist reading of human rights have become

favoured.  ough this also has been criticised by some important actors (for example

states following the communist ideology), this has become the leading interpretation.

 e collective interpretation of general human rights still can be quali ed as a dangerous

concept, as it can  nd easy justi cations for violations of individual liberties, it is

important to stress, that for protection of minorities collective measures can be more

e cient in some situations – however, today recognising collective rights of minorities

is the exception, not the general rule.

A very important development after the Second World War is the transformation

of the world order, which has an e ect on international human rights law, too.  e

international order is organised on at least two levels: the so-called universal system,

represented by the United Nations and the regional level, which is represented by various

international organisations covering a continental group of states. Currently there

are three well-developed regional structures with their own human rights protection

structure and mechanisms:

1. European regional system, with the Council of Europe;

2. American regional system, with the Organisation of American States;

3. African regional system, with the African Union.

 e general international human rights provisions are adopted on universal level, in

the framework of the United Nations.  e regional systems are capable of creating some

more detailed rules or others for which the consensus cannot be reached at the universal

level. Generally speaking, regional level organisations have a better chance of reaching

state consensus on certain matters because of tighter and closer historical, political

and cultural relationship. Regional cooperation is also strengthened by the fact that it

may lead to a more e ective foreign policy on the universal level. As a consequence,

regional systems have more e ective human rights mechanisms, for example all three

of them has an operating international human rights court, which the UN system still

misses. Some regional systems are not necessarily organised on a geographical but on

a political-cultural basis, for example the Arab League, the Organisation of Islamic

Cooperation.  e Association of Southeast Asian Nations (ASEAN) is a very important

regional organisation, but its human rights activities are in an embryonic phase. ( ese

organisations and their human rights activities will be presented in more details in later

chapters.)

1. Introduction to international human rights law

1.4 International law and human rights

1.4.1 Human rights documents in international law

Most common documents adopted by states or other entities in the  eld of international

human rights law are various declarations and international treaties.  ey serve as

sources of law with a varying legal binding force.

Declarations are usually adopted by states and quite often by international

organisations or their institutions in the form of resolutions. As these are not

international treaties, their binding power is questionable – it has to be analysed on

a case by case basis. Usually they serve to recognise and to set political goals and aims

to future codi cation, so generally the content of these documents are not obligatory

at the time of adoption, but later it may gain either customary power or get rea rmed

by an international treaty.

Some of these declarations may be of extreme signi cance, as being milestone

founding documents regarding a given system or subsystem of international human

rights. For example the Universal Declaration of Human Rights, adopted in 1948 by

the UN General Assembly has become the  rst and most often referred human rights

document of the United Nations for a long time.  e American Declaration of the

Rights and Duties of Man, adopted nearly the same time has the same importance

regarding the American regional subsystem.  e adoption of the Cairo Declaration

on Human Rights in Islam in 1990 has shown the birth of a new regional-political

subsystem, the Arab system of human rights protection. In 2012, members of the

organisation have adopted the ASEAN Human Rights Declaration, which hopefully

will lead to the emergence of a new human rights regional subsystem.  e contents of

these declaration are usually deemed to be having binding power, as re ecting customary

law, even some of their provisions may be debated at the time of adoption.

Other declarations serve to set goals of smaller gravity, like recognising or giving

political power to a newly recognised human right. For example the recognition of

the explicit right to "safe drinking water and sanitation" is the result of last years'

development, it is not recognised in international treaties yet, but by numerous non-

binding UN and other resolutions, supported by professional interpretation – it is on

its way to gain general recognition and binding power.  ese declarations have a strong

role in that.  ey can be quali ed as the  rst step of codi cation.

Codi cation of international human rights generally happen via international treaties.

 ose are adopted by states, often in the framework of international organisations,

the UN or a regional organisation. Exceptionally non-state entities may also get into

contractual relationships but that is very rare related to human rights.

International treaties are the primary sources of international law so they have

undebated binding power, which means that states party to them are bound to comply

with their provisions.  ese documents are results of compromise between states, many

times after long negotiations, so sometimes the  nal and adopted version of their text

International Protection of Human Rights

di ers from the states' original ideas and proposals.  is is a very important factor when

we examine states' relations to those and their willingness to enforce them.

Contents of international treaties in the  eld of international human rights law

are usually organised around the same scheme.  ey identify and recognise human

rights, either complete catalogues of rights or just a speci c one, and provide for state

obligations which are deemed to be necessary for ensuring it, both domestic and

international. Finally, they may set up institutions responsible for monitoring states'

ful lment of these obligations.

1.4.2 International treaties protecting human rights

International human rights law creates legal obligations to states, which are of binding

nature. States becoming parties to international human rights treaties take on international

legal obligation to respect and to protect human rights covered by those treaties – as it

is their obligation under international customary law and the Vienna Convention on

the Law of Treaties.

 is is a complex obligation. First, it means that they have to refrain from interfering

with or curtailing the enjoyment of human rights. Second, states have to protect

individuals (and groups, if needed) against violations of human rights.  ird, they also

have to take e ective steps towards facilitation of the enjoyment of human rights, even

by legislative actions, if necessary.

Under rati ed international human rights treaties, states party undertake to respect

these and to introduce appropriate domestic measures and legislation to satisfy their

obligations and duties deriving from these treaties – compatible with their general

obligations under any other international treaty, as set out by general international law.

States' own domestic legal system, therefore, has to provide the primary legal protection

for human rights, even if they are guaranteed by international law, as it is usually

re ected by states' constitutions. In the case of domestic law and proceedings are not

capable or simply just fail to deal with human rights abuses or violations, international

law is set into motion: mechanisms and procedures for complaints by individuals or by

groups may be available in the framework of various international organisations, both

at the regional and at the universal level. International human rights treaties usually

address the possible procedures by expert bodies or international human rights courts

for individual complaints, or the International Court of Justice for inter-state debates

related to the given treaty.

1.4.3 Reservations and objections to human rights treaties

 e binding force of international human rights treaties may only be weakened by the

application of reservations according to customary law and the provisions of the Vienna

Convention on the Law of Treaties. International law basically allows for reservations

1. Introduction to international human rights law

to help the creation of multilateral treaties: by their application states may amend

their obligations from the given treaty, for example with excluding some provisions or

applying their own interpretation to those.  is is useful, because this way states are

able to circumvent di erences of smaller gravity related to the text of the treaty being

adopted or unresolvable debated questions with other states party, but still they do not

lose the chance to become a party to that treaty themselves. In most of the cases, it is

more important to have more states party to a treaty that to have a full consensus on

every small detail – that is the basic idea behind this possibility. To make sure that states

do not use it to get rid of their obligations in whole, some restrictions apply.  e most

important is that reservations that are capable of jeopardising the general aim of the

treaty, that are incompatible with the object and purpose of the given treaty or otherwise

lead to tackling binding power of the treaty itself are prohibited.

With international human rights treaties, a very common reservation is the one

which aims to limit the jurisdiction of the International Court of Justice. For example

the countries of the communist bloc has all applied that kind of reservation to all human

rights treaties they have rati ed and which had this possibility. Similar reservations are

also applied by states with regard to other institutions and their possible proceedings

under various treaties. Some reservations are applied to provide for harmony between

international human rights norms and states' domestic legal provisions – this may have

a particular importance related to constitutional provisions. For example, a speci c

rule of the Convention against Racial Discrimination, the one providing for states'

obligation to penalise various forms of hate speech may easily get into con ict with

constitutional provisions guaranteeing freedom of speech: to avoid this, those states,

for example the United States or the United Kingdom have applied a reservation when

ratifying the convention.  is happens very often with international human rights

treaties so it is always very important to check not only the text of an international

treaty, but also the reservations applied by states party to it.

A reservation may attract so-called objections from other states party to the given

convention. Objections are applied when a reservation is either deemed to be illegal

(because of it is against the aim and goal of the convention) or another state party

simply does not want to accept it. An objection may be just a communication without

any legal e ect, or it may lead to the given convention not entering into force between

the state with the reservation and the other one objecting. In the case of human rights

treaties the latter is not usual, and it would not make too much sense anyway as

human rights treaties are not based on mutual obligations between states party, so

objections serve much more as very important political messages but also have a very

important e ect on development of international human rights law as they may

represent the interpretation of states related to certain human rights questions. For

example many Muslim states party to the Convention on the Elimination of All Forms

of Discrimination against Women have applied reservations aiming to the applicability

of norms of the Islamic Shari'ah law – most of these were claimed to be incompatible

with the object and purpose of the Convention by other states party, and they have

objected to those.

International Protection of Human Rights

1.4.4 Violation of international human rights treaties

As indicated before, the goal of international human rights treaties is not to create

mutual obligations between states party for their own good, but for the sake of the

individuals under their jurisdiction, to protect their human rights.  is means that

in case of a violation of one party to the convention the applicability of the general

solution provided by international law would not do any good to help the situation,

what's more, it would just make it worse.

 e principle is reciprocity is usually applied by the practice of international law in

contractual relations.  at means that for a violation of a state party, other states in

that legal relationship may react with an in kind violation of the same gravity.  e idea

behind this is that states following the provisions of the treaty shall not get into less

favourable position because of their legal bonds than the one actually violating those.

However, the application of the same method with human rights treaties would lead

to a situation completely against the original ideas behind the system. If states had been

allowed to react with violations to an existing violation of a human rights treaty, that

could immediately to the collapse of the whole human rights protection mechanism. For

this reason, violations in international human rights law have to be treated according to

the provisions of the conventions, utilising the mechanisms provided for, and not the

"classic" international legal solutions.

1.5 Overview of human rights protection mechanisms

More kind of human rights protection mechanisms are in existence in the present

system of international human rights law. All of these can be found within the di erent

organisations. Here we summarize their common elements and detail them in later

chapters. Institutions providing for human rights protection mechanisms can be

categorized according to the following:

1. Political bodies;

2. Expert bodies;

3. Judicial bodies.

Political bodies are usually institutions of international organisations, not necessarily

with protection of human rights as their sole responsibility.  eir members are usually

states, that means that state representatives, diplomats are present at the sessions, who

follow orders given to them by their respective governments.  e working method of

these bodies is not surprisingly political, meaning that states are working here to pursue

their political aims and goals.  ey follow their interests, assist their allies, form ad hoc

or permanent coalitions, depending on the circumstances. While this may seem to

be far from the values behind the idea of human rights, it is important to realise that

under speci c circumstances this may be an e ective way to stand up against violations

of human rights. Systematic, mass atrocities can hardly been handled without a strong

1. Introduction to international human rights law

political element – it all depends on the seriousness of states in their politics related

to human rights. Politics can be bad and ine ective, unless it is used e ciently, that is

the responsibility of states.  e most important political body on the universal level is

the UN Human Rights Council, on the regional level for example the Committee of

Ministers in the Council of Europe.

Non-judicial, expert bodies are usually set up by various human rights treaties to

provide monitoring and observance of the performance of states party to that given

treaty.  eir members are independent experts acting in their own capacity.  e

activities of these bodies may cover a wide array of responsibilities: monitoring states'

actions, evaluation of reports prepared by them, examining situations, in some cases

even entertaining complaints regarding states' activities.  ese bodies can be e ective

against individual violations and also represent a very important professional authority

regarding the content of the given treaty, so their role is of utmost importance related to

further development of law. On the universal level, the UN treaty bodies ful l this role,

while on the regional level the most important expert bodies are the Inter-American

Commission on Human Rights and the African Commission on Human and Peoples'

Rights.

Judicial bodies are international human rights courts, which provide for the

highest possible level of protection of human rights within the present framework of

international law.  ey are set up by treaties, which regulate in details the operation

of these bodies, and especially their procedures and conditions of complaints to reach

these fora.  e members of these courts are judges, who adopt judgments, which can be

legally binding on states. Currently three of these institutions exist, one in each regional

system, in Europe, in America and in Africa.  ere is no human rights court on the

universal level, though plans of the creation of a "World Court of Human Rights" have

been existing for a long time, but currently this is far from being a reality.

1.6 Universalism v cultural relativism

One of the most intriguing and exciting debate within the  eld of international human

rights law is organised around the question of universality of human rights and the

possible role of regionalism when it comes to respect of human rights.

 e general concept of international human rights law is its universal nature, building

on the assumption that respect for human rights constitute a universal nature, binding

all states equally, regardless of ideological or cultural di erences.  ere is a well-founded

fear that other interpretations could lead to states  nding excuses for violating their

obligations regarding human rights.  e Universal Declaration of Human Rights had

been adopted in 1948, building on this foundation.  ough its provisions have never

been directly denied by any states, the past years have seen some di ering ideas emerging

in the  eld of international politics.

In 1990, the Cairo Declaration on Human Rights in Islam was adopted by the

Organisation of the Islamic Conference (today: Organisation of Islamic Cooperation)

International Protection of Human Rights

with the aim of building up an Islamic human rights subsystem. Some of its provisions

has stirred serious debate not only in international politics, but human rights experts'

circles. While its supporters claimed that it is complementary to the Universal

Declaration and not willing to become its alternative, its text has made this very hard

to believe to many. For example it has stated that all the rights and freedoms stipulated

by it are "subject to the Islamic Shari'ah" and also made the Shari'ah the "only source of

reference for the explanation or clari cation of any of the articles of this Declaration".

Many states, human rights experts, NGOs and even liberal Muslim groups have

addressed heavy criticism to it, stating for example that the Cairo Declaration attempts

to circumvent the principles of freedom and equality.

 e Bangkok Declaration has been adopted in 1993 by ministers from Asian states.

 ough the Declaration has seemingly rea rmed these states' commitment to the

Universal Declaration of Human Rights, at the same time they have emphasized the

principles of sovereignty and non-interference, and also have called for greater emphasis

on economic, social, and cultural rights, placing for example the right to economic

development over civil and political rights, di ering from the principles and widely

considered to be a critique of universalism of human rights.  is declaration has been

followed by the ASEAN Human Rights Declaration, adopted in 2012, which was

criticized again by many for failing to include many key basic rights and fundamental

freedoms. Additionally, some of its provisions are feared by numerous analysts to be

capable of being used to undermine protection of human rights, for example the one

stating that "the realization of human rights must be considered in the regional and

national context".

 e concept of "cultural relativism" may be useful as cultural di erences unarguably

exist within the ranks of mankind. But the ideas of domestic laws being able to precede

over universally recognised human rights norms, or of creating regional human rights

rules directly inconsistent with general international human rights standards is not

acceptable and does not serve the interest of protection of human rights.

2. Protection of human rights in the framework

of the UN

 e creation of the United Nations at the end of the Second World War has raised the

question of protection of human rights into the sphere of international law.  is meant

a serious novelty as in the historical era before the war human rights had already been

recognised by most domestic constitutional systems, but were largely unprotected by

international law. Exceptions can be mentioned, for example, some of the provisions

of contemporary international humanitarian law and some of the protection of rights

of aliens, but generally human rights have been considered as being subject to domestic

legislation.

2.1 UN basic documents and human rights

2.1.1 Human rights in the UN Charter

 e founding treaty of the United Nations, the UN Charter, adopted in 1945 has made

a serious change. Among the purposes of the UN, it has included, the "promotion and

encouragement of human rights and fundamental freedoms". A very early prohibition

to discrimination has also been added to this as the text stipulates "without distinction as

to race, sex, language, or religion", which can be considered as an exact legal obligation,

stretching beyond general principles and political purposes. Additionally to this material

legal base, methodological and institutional fundaments have also been created by the

Charter. According to it, member states have to be committed to promote "universal

respect for, and observance of, human rights and fundamental freedoms for all".  e

previously mentioned prohibition of discrimination is once again rea rmed related to

this obligation, too.

 e provisions of the Charter thus has made clear, that the new world order after 1945

does not consider human rights being domestic issue, under the absolute protection

of state sovereignty. Ever since this giant step, the UN has proven to be instrumental

in the process of developing international standards of human rights protection, by

adopting international treaties and other documents setting out universally recognised

human rights.

 e  rst and most famous step had been the adoption of the Universal Declaration

of Human Rights (UDHR) in 1948, which has been followed by (a few years later)

International Protection of Human Rights

a series of international treaties protecting numerous human rights and human rights-

related state obligations.

But written legal rules are not enough: the UN has also created more internal

institutions and bodies with the aim to monitor and supervise states' actions and

behaviour related to recognition and implementation of human rights.  ere are organs

providing for political protection, such as the UN Human Rights Council (and its

predecessor, the UN Commission on Human Rights) and bodies providing for experts'

protection (treaty bodies, established under the various UN human rights treaties),

monitoring implementation and enforcement of the relevant treaties.

2.1.2 Universal Declaration of Human Rights

 e  rst list of human rights recognised by the United Nations appears in the Universal

Declaration of Human Rights.

No state has voted against it on 10 December 1948 (10 December is "International

Human Rights Day" ever since), as none of them has ever expressed any intention to

denounce it.  ough this may re ect a worldwide consensus, a disturbing element has

to be pointed out. When decision has been made about the proposed document in the

General Assembly, eight states abstained from the voting.  e Soviet Union and its

allies (Belarus, Czechoslovakia, Poland, Ukraine, Yugoslavia), Saudi Arabia and South

Africa has not supported it with their votes.  is does not necessarily mean a strong

opposition against it, but is de nitely a sign of the lack of full consensus on the matter

of human rights.

Later, the Universal Declaration of Human Rights has been rea rmed in the Vienna

Declaration and Programme of Action, adopted after the World Conference on Human

Rights in 1993 (see: GA Resolution 48/121 of 14 February 1994), and still remains

the basic document to express universal human rights values. Its importance is shown

by the fact that all international human rights treaties refer to the Declaration in their

preambles.

As a resolution of the UN General Assembly, the Declaration was not adopted as

a legally binding instrument. Today its binding force is not questionable any more,

this argument stands on at least three legs. First, it is arguable that the content of

the Declaration can be quali ed as an authentic interpretation of the human rights

provisions of the UN Charter, most of which are today recognised as peremptory

international norms, or jus cogens, which mean provisions legally binding under all

circumstances. While it may be questioned in the whole corpus of the Declaration,

the second possible argument is aimed on that the Declaration's norms have turned

to customary international law by today. While most of the rights embodied in the

Declaration may satisfy the test of customary international law, that means the presence

of a state practice, backed by appropriate opinio juris, such as the prohibition of torture,

some questions can be asked in relation to all of those. For example the right to enjoy

asylum, embodied in Article 14 has not been echoed by later conventions, only the

2. Protection of human rights in the framework of the UN

right to seek it. A third possible argument is that contents of the Declaration can be

considered as re ecting internationally accepted principles of law, as they are enshrined

by the constitutions and domestic legal provisions of many states. Whatsoever, today it

is nearly impossible to argue against the legally binding nature of its norms, especially

that all of them has been rea rmed by legally binding international conventions.

 e structure of the Declaration was compared to the portico of a Greek temple

by René Cassin, who has had the leading role in its drafting: the steps leading to the

entrance, four columns with foundations, and a pediment on the top had all had their

role in his vision.  e seven paragraphs of the preamble, which set out the reasons of

the Declaration, represent the steps that take to the entrance, which is behind the four

columns – meaning the main body of the Declaration. Articles 1 and 2 of the Declaration

provide for the principles of dignity, liberty, equality, and brotherhood, more exactly,

prohibition of discrimination.  ese represent the foundation blocks of the columns,

without which the structure cannot stand. Human rights embodied in Articles 3-11

form the  rst column, constituting basic rights of the individual such as the right to life,

or the prohibition of slavery and other human rights.  e second column is built up by

human rights embodied in articles 12-17, constituting rights of the individual related

to the public power.  e third column is represented by human rights in articles 18-21,

which guarantee political freedoms, such as freedom of thought, conscience, religion,

or association. Articles 22-27 make the fourth column, which provide for economic,

social, and cultural rights.  e last three articles of the Declaration is envisaged by

René Cassin as the pediment which binds the structure together: those deal with the

duty of the individual towards the society and the obligations of states vis-à-vis. It also

emphasises the prohibition of use of rights in contravention of the purposes of the UN.

 e UN's human rights protection activities, which have got o to a seemingly

successful start with the relatively early adoption of the Universal Declaration of Human

Rights, have soon had the face di culties because of the emergence of the Cold War.

Seamless operation of the UN's institutions themselves have become victim of this

con ict. As a result, no new legal standards have been adopted in the UN until 1965,

with the adoption of the International Convention on the Elimination of all Forms of

Racial Discrimination and the two covenants of 1966, thus initiating a new period of

time in the history of international human rights law.

2.2 UN main bodies and human rights

If we consider the protection of human rights as a goal and a duty of international law

and the UN, it is important to examine the competence of various UN bodies and

institutions. Our present system of international law is organised around and built on

the concept of state sovereignty, so this factor is still an inevitable factor. It also plays

a crucial role in relation to enforcement of human rights, as mentioned earlier. It has

long been regarded as the "Achilles heel" of international human rights protection

system, as states have plenty of possibilities to oppose any possible international action.

International Protection of Human Rights

Regardless of the fact that international human rights law has developed to a certain

level, where states can no longer argue human rights being solely a domestic matter,

there are still some serious limits to the ability and the capacity of the international

community to react to violations or abuses of human rights by states, especially if they

persist in their practices. Existing enforcement mechanisms seem to lag behind the

development of legal norms which they should stand for.

As a result, enforcement mechanisms in the UN generally speaking are quite weak,

the UN Security Council being the only body able to apply political-legal sanctions

going beyond mere condemnation by the international community. Still, it is important

to examine the various institutions of the UN and see what their tasks may be related

to our subject.

Human rights institutions within the UN may be catalogued either as "Charter

bodies" or as "treaty bodies", depending on their origin. Charter bodies are created

either by the UN Charter, or by bodies which exist on the Charter itself. On the other

hand, treaty bodies are the results of UN human rights treaties, which usually always

set up these institutions.  e previous ones provide for "political", while the latter ones

for "experts" protection, based on the classi cation drafted up in a previous chapter.

 e political UN human rights institutions are usually made up by the representatives

of member states, while the treaty bodies are composed of human rights experts acting

in their individual capacity, regardless of their nationality and origin. All of these bodies

are served and supported by the High Commissioner for Human Rights, whose O ce

is responsible for their operation.

Here we analyse the main UN bodies' role in protection of human rights, some of

them will be examined in details in a later chapter.

2.2.1 UN General Assembly

 e  rst Charter body worth mentioning is the UN General Assembly (UNGA). It

is the principal organ of the United Nations, comprising all members states of the

organisation (currently 193 member states), with one vote allocated to each of them.

While its authority and competences are at best vague (sometimes problematic and even

contra productive according to some authors) in international matters and politics, its

political weight gives it a special role related to human rights. Article 13 of the UN

Charter gives the Assembly the task of initiating studies and making recommendations

to help realization of human rights and fundamental freedoms. From the institutional

side, as the Assembly is the UN organ that all other UN human rights bodies report

back to (also the Security Council through its annual report, which can be important

related to situations with possible grave human rights problems), it has a general

overview of the global human rights situation.

 e General Assembly can also make recommendations for action via resolutions

or declarations, which both are legally non-binding documents, but still may have

a signi cant e ect. Firstly because of their possible political weight in certain situations

2. Protection of human rights in the framework of the UN

(re ecting a majority opinion of member states), secondly because those resolutions are

usually followed by the UN human rights and other bodies even if some states oppose

them, and thirdly because of the possibility of gaining binding power after all. As in

the case of resolutions re ecting unanimous opinion of states or a wide consensus:

these may constitute strong evidence of the existence of a customary – thus binding

– international legal norm. Many of the human rights-related UNGA resolutions are

considered to have customary power, which is backed up by strong arguments from

professional sources.

One of the most important subsidiary organ of the UNGA is the UN Human Rights

Council (established by GA resolution 60/251), which holds the primary role among

Charter bodies in the present UN system (examined in a later chapter).

2.2.2 Economic and Social Council

 e Economic and Social Council (ECOSOC) is responsible for the UN's wide range

of activities related to economic and social issues. It consists of 54 member states, with

equal voting status, like in the General Assembly. Member states are elected by the

UNGA for three-year terms. Seats on the Council are allocated on the basis of equal

geographical representation, with fourteen to African states, eleven to Asian states, six

to Eastern European states, ten to Latin American and Caribbean states, and thirteen

to Western European and other states.

Similarly to the General Assembly, the ECOSOC has a wide mandate related to

protection of human rights. Article 62 of the UN Charter vests some important tasks

to it, in general to "make or initiate studies and reports with respect to international,

economic, cultural, educational, health and related matters".  e task is followed by

competences, for example that the ECOSOC may "make recommendations for the

purpose of promoting respect for, and observance of, human rights and fundamental

freedoms".  is provision supplements the general idea of protection of human rights

embodied in the Charter, by entitling the ECOSOC to take a leading institutional

role on this  eld.  is leadership role is also re ected by the fact, that it receives the

reports of the treaty human rights bodies and transmits them to the General Assembly,

and that it is also responsible for the coordination of a wide array of UN programmes

related to human rights.

 e ECOSOC has plenty of subsidiary bodies, mostly commissions, many of

which are responsible for various  elds of human rights: the Commission for Social

Development, the Commission on the Status of Women, the Commission on Narcotic

Drugs and the Commission on Crime Prevention and Criminal Justice are just a few

worth mentioning.

International Protection of Human Rights

2.2.3 UN Security Council

While not a human rights organ per se, the UN Security Council (UNSC) also has

signi cant importance related to protection of human rights. While under the UN

Charter its primary responsibility is the maintenance of international peace and security,

its leading political role makes it inevitable in situations of crises going hand in hand

with human rights violations, sometimes on a massive scale.

 e UNSC has 15 members, each member states have one vote. Out of the  fteen,

 ve are so-called "permanent members" with veto power, which means that a decision

cannot be made in the UNSC without their consent or against their will.  e other

ten, so-called "non-permanent members" are elected by the General Assembly for

a two-year term with a two-third majority. Permanent members are China, France,

Russian Federation, the United Kingdom and the United States. Currently the ten

non-permanent members are (with end of term date):

1. Argentina (2014)

2. Australia (2014)

3. Chad (2015)

4. Chile (2015)

5. Jordan (2015)

6. Lithuania (2015)

7. Luxembourg (2014)

8. Nigeria (2015)

9. Republic of Korea (2014)

10. Rwanda (2014)

As the present membership system of the Security Council is under serious criticism,

the reform of the body, including its membership is under consideration, as part of

the UN reform.

Meetings of the UNSC are called at times when the need arises.

 e most important responsibility of the Security Council is to determine the

existence of a threat to the peace or act of aggression. But it also has an important role

in situations not of such gravity yet: it may call upon the parties to a dispute to employ

settlement by peaceful means and may recommend methods of adjustment or terms

of settlement to prevent the situation from getting more serious. In some cases, if the

situation poses a threat to international peace and security, the Security Council can –

acting under Chapter VII of the Charter – decide to impose sanctions or in the worst

case, even to authorize use of force.

Under the UN Charter, all member states are obliged to comply with these

"Chapter VII" resolutions of the Council, which is an exception in the present system

of international law. Sovereign states has to accept and obey these orders from the

Council.  is may have a very strong e ect on human rights, because massive human

rights violations may amount to the level of a threat to international peace and security,

thus making the Security Council a very important actor related to human rights.

2. Protection of human rights in the framework of the UN

Unfortunately, the political nature of the behaviour of the UNSC (because of the

actions of some of its members, usually permanent members) does not always help it

to meet this expectation.

2.3  e institutional centre of human rights protection

of the UN

Based on Article 68 of the UN Charter, the ECOSOC has delegated its human rights

functions to the Commission on Human Rights in 1946. It has become the leading

political institution of the UN's human rights activities, for example it has drafted most

of the UN human rights documents and of the treaties. It was replaced by the Human

Rights Council in 2006, which is now the main Charter body responsible for human

rights-related activities of the UN.

2.3.1 UN Commission on Human Rights (1946-2006)

 e Commission on Human Rights had 53 states as members (in its  nal form), elected

by the ECOSOC for three-year terms, which was renewable. Members were acting in

their capacity as representatives of the governments of UN member states gaining a seat

in the Commission.

Over its 60 years of existence, the Commission has made signi cant contribution to

the establishment of the UN's constantly developing international human rights legal

framework. It has taken a leading role in codifying international treaties, developing

complaints mechanisms and special procedures. It had a very important role as being

the most accessible UN body for non-government organisations: NGOs were present at

its sessions, and the Commission has proven a standing opportunity to provide NGO

input on human rights issues.

 e Commission has not had any role in enforcement at the beginning, and was

not entitled to take any action until 1967.  en the so-called "1235 procedure" was

adopted (named after ECOSOC resolution 1235 (XLII) of 6 June 1967), which has

provided for public debate focusing on violations in particular States.  is has not only

led to the possibility of public identi cation and discussion of country-speci c human

rights situations (with a possibility of political pressure), but also the appointment of

a "special rapporteur" with a mandate to investigate and report on the human rights

situation in a speci c country. Later this possibility has evolved to the practice of not

country-speci c, but thematic situations.  ematic procedures could involve the

appointment of experts to investigate and report on all aspects (including violations) of

human rights relevant to a speci c theme. Even though country-speci c mandates have

raised debates among states and those have not been applied many times, the special

procedures (both country and thematic) have been considered to be the Commission's

major achievements.

International Protection of Human Rights

 e so-called "1503 procedure" was another technique developed by the Commission

to deal with alleged human rights violations (named after ECOSOC resolution 1503

(XLVIII) of 27 May 1970).  is provided for a complaint procedure to be applied

in the case of a "consistent pattern of gross and reliably attested violations of human

rights and fundamental freedoms". In a situation like this, the Commission could work

with the a ected State in relation to the complaint on a con dential base. While this

was an advancement, the relative weakness of the Commission, the secrecy around the

complaints and the ine ciencies in their processing have not lead to an overall success,

as other institutions could at this time provide better results.

Despite its initial successes and important role in advancement of protection of

human rights, the Commission has become more and more unable to properly ful l

its functions, which has become increasingly visible during the years after 2000. Its

declining credibility and professionalism was the result of many factors, for example the

manipulation of its mechanisms by member states in order to achieve their own or their

allies' political goals.  is has resulted in selectivity in the choice of states singled out

for country-speci c measures, or the election of states with poor human rights records

into the ranks of the Commission. All these has led to the view that the Commission

has to be radically reformed.

2.3.2 UN Human Rights Council (2006– )

 e Human Rights Council has started its operation on 15 March 2006.  e creation

of the Council was to replace the Commission as the key political UN human rights

body (via GA Resolution 60/251). It has the general mandate to address human

rights issues, in more details, it is responsible for promoting the protection of human

rights, for fostering international cooperation on human rights, for providing capacity

building assistance to states to help them to meet their human rights obligations, and

for responding to violations of human rights.

 e newly created Council has not become substantially di erent in composition

to the Commission and has retained all of its same general mechanisms. Special

procedures, complaints mechanism, signi cant access of NGOs have all been kept to

the new institution. A new mechanism was introduced, the so-called universal periodic

review (presented in a later chapter).  e practice of thematic procedures has been

continued under the Council, currently they include working groups on enforced or

involuntary disappearances, the right to food, and the situation of human rights and

freedoms of indigenous persons.

 e question of membership in the Council was an important question during the

reform debates as membership issues had become a leading factor in the political demise

of the Commission.  e size of the Council has been reduced to 47 members from

the 53 of the Commission. Members may serve maximum two consecutive three-year

terms. Membership can be suspended by a two-thirds majority of the UN General

2. Protection of human rights in the framework of the UN

Assembly, in the case of committing systematic and gross violations of human rights.

 is happened so far only once, in 2011, with Libya.

 ere have been proposals for a more dramatic cut to allow for a stricter selection of

nominees and for universal membership as well, to simply circumvent the problem of

political selectivity.  ere have also been ideas to avoid the risk of further politicisation

with composing the Council only of non-state actors.

Seats for membership are allocated based on the equitable geographical distribution

of member states via the regional groups formed in the framework of the UN.  e

distribution of seats is the following:

t13 African states

t13 Asian states

t6 Eastern European states

t8 Latin American and Caribbean states

t7 Western European and other states

Some important new features have been introduced to keep states with poor human

rights records from nomination to, being elected to, or keeping membership of the

Council. During the elections, members of the General Assembly shall take into account

the candidates' human rights record. Regional groups can nominate more candidates

than the positions available to that group, which ensures a genuine vote taking place.

 e Human Rights Council has gained a higher status in the UN as it is a subsidiary

organ to the General Assembly, while the Commission had only been a sub-commission

of the ECOSOC.  is re ects a growth of importance of human rights within the

institutional system of the United Nations. Other institutional novelties are present

as well: compared to the Commission, which only met for one annual session (six

weeks long), the Council is a standing body that meets for at least three sessions per

year. Additionally, it has the possibility to convene special sessions if the need arises,

at the request of a Council member with the support of one-third of the members of

the Council.

Early performance of the Council has drawn mixed evaluations. It has successfully

adopted important new human rights conventions, for example the Convention on the

Rights of Persons with Disabilities and the Optional Protocol to International Covenant

on Economic, Social and Cultural Rights. But unfortunately the Council has shown lot

of elements of negative dynamics, last seen with the Commission, as it has been accused

by applying of double standards and declining credibility. One of the worst practice

was the continuous singling out of Israel's human rights violations, while no resolutions

have been supported by the majority of the Council on other, equally serious situations.

 e majority of the special sessions convened by the Council, a vast proportion of these

have focused only on Israel, and what's worse, the resolutions adopted has constantly

shown a one-sided focus on these situations.

International Protection of Human Rights

2.3.3 Universal Periodic Review

One of the main tasks of the Human Rights Council is to run the Universal Periodic

Review (hereinafter: UPR) mechanism of the UN. By means of UPR, the United

Nations is capable to monitor and review regularly the situation of human rights in

each UN-members by forming a troika composed of three UNHRC-members.  ere

are so-called UPR-cycles within which the UN-members shall prove in every four

and a half years their commitment to the human rights obligations and standards and

explain their improvement in this  eld. UNHRC is authorized to gather information

about states from di erent kind of sources. Firstly, States are obliged to submit o cial

reports based on the structure requested by the UNHRC on the situation of human

rights in the State under review. Furthermore, both the so-called National Human

Rights Institutions (usually the ombudsman-type institution of a given state) of each

State and the NGOs interested are authorized to  le 'shadow reports' about the States

under review. In addition, each member of the Human Rights Council as well as

NGOs can provide information and also ask questions to the States under review either

about general or particular issues. Finally, the so-called stake-holders of the UN (mainly

rapporteurs of a particular question that relates to human rights) are also authorized to

inform the UNHRC about such issues.

 e most spectacular part of the UPR review process is when the State that is under

UPR review ought to defend its standpoint in public at a regular session of the UNHRC.

During this open public session, the member states and NGOs can ask questions about

the situation of human rights in a particular state and also make recommendations

to the State under review.  e State under review must reply on these questions and

recommendations (either immediately or some months later) whether it can accept,

consider or even reject these recommendations. In case of accepting recommendations

(compiled later by the HRC itself) the State under review shall take the necessary steps

to be comply with the recommendations within four and a half years since it must

explain the improvements on these questions at the forthcoming UPR-review cycle.

2.3.4 UN High Commissioner for Human Rights

 e post of a high commissioner responsible for human rights has been created by the

UN General Assembly in 1993.  e High Commissioner for Human Rights is the

principal human rights o cial of the United Nations, the position itself is at the level of

under-secretary-general, with the general aim of coordination of the UN's human rights

activities.  e activities cover many duties, one of the most important is the supervision

of the Human Rights Council.  is is a very important position, not only because of

direct connection to states and the ability to in uence their human rights practices but

because of serving as a "face" to UN's human rights activities.

 e present high commissioner is Navi Pillay from South Africa, she was approved

by the General Assembly on 28 July 2008. Her mandate has been renewed for two years

2. Protection of human rights in the framework of the UN

beginning on 1 September 2012. From September 2014 she will most probably be

followed by Zeid Ra'ad Zeid al-Hussein from Jordan, who was named as the successor

by the UN Secretary General during late spring of 2014.

 e most well-known high commissioner has been Sergio Vieria de Mello from

Brazil, who tragically has only served less than one year. After he was appointed, he

was asked by the UN Secretary-General, Ko Annan, to serve in Iraq as his Special

Representative. On 19 August 2003, he and 22 colleagues have been killed in a bomb

attack against the UN headquarters in Baghdad.

 e tasks of the High Commissioner are numerous. He/she has to play the leading

role on human rights issues and to emphasize the importance of human rights at both

the international and national levels. He has to promote international cooperation

for human rights, and stimulates and coordinate action for human rights throughout

the UN system.  e Commissioner has important tasks regarding to codi cation of

new norms: promotes universal rati cation and implementation of international legal

norms, and assists in the development of new ones. He/she supports human rights

organs and treaty monitoring bodies, responds to serious violations of human rights

with the means at disposal. Many of the tasks include activities not professional but

of political nature, which requires the holder of this position not only human rights

expertise but also a good ability to maneuver in international political relations.

 e O ce of the High Commissioner for Human Rights (OHCHR) employs more

than thousand sta in Geneva, New York, and other country and regional o ces,

and a workforce of nearly seven hundred international human rights o cers serving

in various UN peace missions or political o ces. Financial conditions are covered

from the United Nations regular budget and from voluntary contributions from states,

intergovernmental organizations, foundations and individuals.

2.4 UN treaty-based expert bodies

Based on the nine core international human rights treaties, ten human rights treaty

bodies have been created.  ese are the institutions responsible for non-judicial, "expert"

or "professional" protection of human rights, serving as the second level of protection.

Nine of these bodies has the task of monitoring implementation and enforcement

of one given core international human rights treaty.  e tenth treaty body has a special

scope of activities, aiming rather on prevention: the Subcommittee on Prevention of

Torture (established under the Optional Protocol to the Convention against Torture) is

responsible for monitoring places of detention in states parties to the protocol.

 ese bodies are the following:

1. Human Rights Committee (CCPR)

2. Committee on Economic, Social and Cultural Rights (CESCR)

3. Committee on the Elimination of Racial Discrimination (CERD)

4. Committee on the Elimination of Discrimination against Women (CEDAW)

5. Committee against Torture (CAT)

International Protection of Human Rights

6. Subcommittee on Prevention of Torture (SPT)

7. Committee on the Rights of the Child (CRC)

8. Committee on Migrant Workers (CMW)

9. Committee on the Rights of Persons with Disabilities (CRPD)

10. Committee on Enforced Disappearances (CED)

All of the treaty bodies are created and have to work in accordance with the provisions

of the treaty that they monitor.

2.4.1 Common elements to treaty bodies

All of these bodies are committees of independent experts. As all of the relevant treaties

require, these persons have to be "experts of high moral standing and recognized

competence in the  eld covered by" the given convention. Members of these committees

shall be elected by secret ballot by the states party to the given convention, nominated

from among their nationals. Each state party may nominate one person. All of the

treaties set the expectation regarding to elected circle of members, that due consideration

has to be given to equitable geographical distribution and the representation of all the

principal legal systems of the world.  is factor is very important to ensure a wide

acceptance of the committees' activities.

Members of the committees are usually elected for a  xed term, re-election is usually

possible in case of re-nomination. In case of the death, resignation or any other reason of

not being able to perform the duties of an elected member, usually the state party which

nominated that member shall appoint another expert from among its nationals to serve

for the remainder of the term, if that person is approved by the relevant committee.

Members of these committees shall serve in their personal capacity. Every treaty

expects independency, neutrality, impartiality from the members and that their activities

shall be driven by professionalism and professional standards rather than politics and

especially not the pursuance of interests of the nominating states.  ough it may be

important for UN member states to have more experts in more committees as this

re ects a moral-political weight and recognition within the UN, and for this reason,

states usually lobby for their nationals, their activities has to stay non-political.  is

is helped by the fact that the committees' activities are closely scrutinized by NGOs,

academic and public attention, and expert members jeopardize their professional

reputation.

If the UN General Assembly decides so, the members of the committees may receive

emoluments from United Nations resources. Terms and conditions of these have to be

decided by the General Assembly.

Every committee establishes its own rules of procedure and elects its own o cers for

a  xed time period, according to the detailed provisions of the treaty it overlooks.  e

meetings of the committees are organized according to a  xed time period, usually once

or twice in a year, and they are usually held at the UN headquarters in Geneva, except

2. Protection of human rights in the framework of the UN

for the meetings of the CEDAW, which are usually held in New York.  e conventions

usually address the UN Secretary-General to provide the necessary sta and facilities

for the e ective performance of the functions of these committees, which practically

means that the O ce of the High Commissioner for Human Rights is responsible for

supporting their work and for assisting them in their work.  e o ce provides them

with basic capacities of secretariats to handle their administrative duties.

2.4.2 Current problems with the operation of treaty body system

While the treaty bodies constitute a fundamental pillar of the UN's international

human rights protection system, and it has grown signi cantly during the past decades

(especially doubled in size over the last decade), some serious problems have also

surfaced during this period.

One of these is the accumulation of asigni cant backlog of state reports and individual

communications. Two reasons of this can be easily identi ed: under-resourcing of the

treaty bodies and insu cient compliance by states with their reporting obligations. It

may be interesting to mention, that the latter has its counterpart on the other side,

too: during the last years, states tend to complain more and more about the growing

burden of their reporting obligations, causing aserious workload to national authorities.

An additional reason is the insu cient harmonization of working methods among the

various treaty bodies, which results in anumber of ine ciencies.

Since 2009, aprocess has been initiated by the High Commissioner for Human

Rights, to address this problem,  rst as a process of consultation about possible

remedy to that. In 2012, the High Commissioner has published a100-page report

with recommendations as the result of these consultations, which have focused on

strengthening the system rather than reforming it, as the High Commissioner had

come to the conclusion that "legal parameters of the treaties should not be altered".

Among many other elements, the report has called attention to the utilization of new

technologies, for example including webcasting and videoconferencing in operation

of the bodies, which on one hand, could increase visibility and accessibility to these

treaty bodies. But on the other hand, online activities – for example holding of online

sessions – could lead to lower costs of operation as well.

 e report was followed by a General Assembly resolution. It has launched an

intergovernmental process to strengthen and enhance the e ective functioning of the

treaty body system.  e next step of this process is afresh General Assembly resolution

adopted in April 2014 (GA resolution 68/268).  e most important results of this

resolution are additional meeting time and human and  nancial resources from the

regular budget of the UN are granted to the treaty bodies. Additionally, acapacity

building package was agreed upon to assist states in ful lling their obligations deriving

from the treaties. It recommends the harmonization of working methods by the ten

treaty bodies.

International Protection of Human Rights

2.5 UN international human rights treaties

Currently there are nine core international human rights treaties in force.  e last one,

entering into force on 23 December 2010 is the convention on enforced disappearance.

 ese treaties are widely accepted by UN member states – all of them have rati ed

at least one out of the core international human rights treaties, and 80 percent of all

member states have rati ed four or more. Some of these convention enjoy anear-

universal acceptance, meaning that they are rati ed by nearly or by all member states.

 e nine core human rights treaties are:

1965 – International Convention on the Elimination of All Forms of Racial

Discrimination (ICERD)

1966 – International Covenant on Civil and Political Rights (ICCPR)

1966 – International Covenant on Economic, Social and Cultural Rights (ICESCR)

1979 – Convention on the Elimination of All Forms of Discrimination against

Women (CEDAW)

1984 – Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT)

1989 – Convention on the Rights of the Child (CRC)

1990 – International Convention on the Protection of the Rights of All Migrant

Workers and Members of  eir Families (ICESCR)

2006 – International Convention for the Protection of All Persons from Enforced

Disappearance (CPED)

2006 – Convention on the Rights of Persons with Disabilities (CRPD)

Optional protocols to the conventions aim to amend their provisions, to extend the

protection they o er or to strengthen the monitoring and control mechanisms they

provide for.  ese protocols are:

1966 – Optional Protocol to the International Covenant on Civil and Political

Rights (ICCPR-OP1)

1989 – Second Optional Protocol to the International Covenant on Civil and

Political Rights, aiming at the abolition of the death penalty (ICCPR-OP2)

1999 – Optional Protocol to the Convention on the Elimination of Discrimination

against Women (OP-CEDAW)

2000 – Optional protocol to the Convention on the Rights of the Child on the

involvement of children in armed con ict (OP-CRC-AC)

2000 – Optional protocol to the Convention on the Rights of the Child on the sale

of children, child prostitution and child pornography (OP-CRC-SC)

2002 – Optional Protocol to the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (OP-CAT)

2006 – Optional Protocol to the Convention on the Rights of Persons with

Disabilities (OP-CRPD)

2008 – Optional Protocol to the Covenant on Economic, Social and Cultural Rights

(ICESCR-OP)

2. Protection of human rights in the framework of the UN

2.5.1 Convention on the Elimination of All Forms of Racial

Discrimination

 e International Convention on the Elimination of All Forms of Racial Discrimination

(ICERD) has been adopted by the United Nations General Assembly in 1965, and it

has entered into force in 1969. It is awidely accepted international treaty, with nearly

180 states party to it. It is avery important human rights treaty, aiming the elimination

of racial (and also other sort of) discrimination and the promotion of understanding

among all races.

 is treaty was the  rst UN human rights convention adopted after the long-time

of apparent inactivity of the organization in the  eld of human rights following the

adoption of the Universal Declaration of Human Rights. Another reason that makes

this avery important international treaty is that it addresses afundamental question

without which the protection of human rights is hardly imaginable.  e obligation of

states embodied in the introductory part and Article 55 of the UN Charter, namely the

prohibition of discrimination has lead the questions of discrimination widely open.  e

Convention can be considered as being the authentic interpretation of the text of the

Charter on this  eld – and it is needed to be able to answer those questions.

 e  rst of these questions is the de nition of "racial discrimination". Article 1 of

the Convention de nes it as:

"any distinction, exclusion, restriction or preference based on race, colour, descent,

or national or ethnic origin which has the purpose or e ect of nullifying or

impairing the recognition, enjoyment or exercise, on an equal footing, of human

rights and fundamental freedoms in the political, economic, social, cultural or

any other  eld of public life."

 e de nition introduced by the convention represents an attempt to cover awide

array of possible discriminatory actions.

For the application of the Convention, discrimination does not need to be based

on race or ethnicity. When considering if acertain action is falling under the ambit

of the Convention or not, its e ects have to be evaluated. To determine, whether the

action's e ects are contrary to the Convention or not, that action's unjusti able disparate

impact must be present to agroup distinguished by race, colour, descent, or national

or ethnic origin. Belonging to aparticular group can be decided by self-identi cation,

if no other factor is identi able.

Additionally, as anthropologists had not produced a clear distinction between

"ethnicity" and "race", the convention does not distinguish between discrimination

based on ethnicity and on race.  e criticism of the practices of some societies have

been given force to by the inclusion of descent, speci cally covering discrimination on

the basis of inherited status (for example caste).

 e treaty makes for exceptions. A rmative action policies and other measures taken

to redress inequalities and develop equality are also possible. Distinctions made on the

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basis of citizenship are speci cally excluded from the de nition, as these are widely

applied by states' practice and not necessarily constitute discrimination.

 e structure of the Convention re ects structure of the Universal Declaration of

Human Rights, and has served as an example for other UN human rights conventions

adopted in the future, for example one can see the same with the International Covenant

on Civil and Political Rights, the International Covenant on Economic, Social and

Cultural Rights, adopted later.  e preamble is followed by twenty- ve articles, which

are divided into three parts – obligation, enforcement and closing provisions.

 e  rst part details the obligations of the states party to the Convention.  eir

general obligation is to eliminate all forms of racial discrimination and to promote

understanding among all races.

According to the Convention, States party take the obligation of not applying and

not supporting discrimination prohibited by its provisions.  ey have to take e ective

measures against it, that includes prohibition by legislation and revision of its policies

and actions to make that no discrimination is being applied. Article 5 lists speci c areas

and human rights in which discrimination shall be eliminated. Some discriminatory

actions are even quali ed to be crimes by the Convention, apart from the crime of

apartheid (which has been criminalized by aprevious speci c international treaty),

the incitement of racial hatred shall be prosecuted as acrime by states party according

to Article 4. ( is provision has drawn numerous reservations from states, as we have

referred to it in aprevious chapter.)  eir additional obligations are to ensure judicial

remedies for acts of racial discrimination, and as apreventive measure, to promote

understanding and tolerance in public education.

 e second part provides for the enforcement mechanism of the Convention.

It establishes the  rst of the institutions we know today as "UN treaty bodies", the

Committee on the Elimination of Racial Discrimination (CERD). It may exercise the

following tasks and powers:

1. to make general recommendations based on the Convention;

to conduct adispute-resolution mechanism between parties, related to alleged

violations of the Convention;

3. to hear individual an complaint, if the state party addressed by that recognises

such competence of the Committee.

Article 22 of the Convention, similarly to other UN human rights conventions

creates the possibility to refer any dispute between states party over the interpretation

or application of aprovision of the Convention to the International Court of Justice.

 is clause has been invoked only once ever since, by Georgia against Russia after

their 2008 war. Georgia has argued that Russia had applied wide scale and systematic

discrimination in South Ossetia, aterritory in the process of succession from Georgia

and tried to put the armed con ict in the context of this allegation, but the Court has

found that it does not have jurisdiction.

 e issue of positive discrimination is also surfaced in the Convention, which states

that "when the circumstances so warrant" states party to it shall employ a rmative

2. Protection of human rights in the framework of the UN

action policies for speci c racial groups to guarantee "the full and equal enjoyment of

human rights and fundamental freedoms".  is is important, because the Convention

itself denies the popular misunderstanding that "positive discrimination is the same as

the negative, just the other way round", often used by political actors to criticize equal

treatment e orts.

2.5.2  e UN human rights covenants

1966 has been avery important year in the history of the UN's human rights activities.

 is year has marked the birth of the two human rights covenants serving as treaties

of fundamental importance.

As their title shows, the International Covenant on Civil and Political Rights was

adopted for the protection of civil and political (or " rst generation") human rights,

while the International Covenant on Economic, Social and Cultural Rights has dealt

with economic, social and cultural (or "second generation") human right. As it is often

called, "international bill of human rights" is comprised of the Universal Declaration of

Human Rights from 1948 and the two covenants of 1966 (and the optional protocols)

together.

 e covenants has been supplemented by optional protocols.  e  rst one, to the

International Covenant on Civil and Political Rights was adopted together with the

covenants and aimed for astronger enforcement mechanism in relation to states party

willing to accept that.  e second optional protocol to the same covenant, adopted in

1989, has aimed to abolish the death penalty. 2008 has seen the birth of an optional

protocol to the International Covenant on Economic, Social and Cultural Rights, too,

which has also aimed on amore e ective enforcement mechanism of this covenant.

Some common elements of the two covenants can easily be identi ed. In their

preambles, both of the covenants remind states to their obligations under the UN

Charter to promote and respect human rights, recognize the importance of the Universal

Declaration of Human Rights and the idea that free human beings enjoying freedom

and freedom from fear and want can only be achieved by creating the conditions

whereby everyone may enjoy his human rights, being civil and political or economic,

social and cultural rights.

Articles 1, 3 and 5 of the two covenants also show serious similarities, they are almost

the same in the two documents.  ey all serve as provisions of fundamental importance.

Article 1 of the covenant recognize the right to self-determination of peoples as

being universal, meaning that they may freely determine their political status and freely

pursue their economic, social and cultural development".  is reference and its unusual

positioning into ahuman rights treaty is explained by the contemporary international

political environment, strongly determined by decolonization, and the tension it has

caused in the system of states.

Article 3, using the same wording, rea rms the equal right of men and women to

the enjoyment of all human rights in both of the conventions, meaning in relation

International Protection of Human Rights

to all of the human rights recognized by those, and obliges states party to provide for

this principle areality. Apart from this common provision, Article 2 of both of the

covenants, which de nes states' general obligations (di erent in the two, see later in

the present chapter) provide for ageneral prohibition of discrimination, as it obliges

states to ful l their obligations "without discrimination of any kind as to race, colour,

sex, language, religion, political or other opinion, national or social origin, property,

birth or other status". With this, prohibition of discrimination is also avery important

common element of the covenants.

Article 5 with identical wording, in both covenants provides for protection

against the destruction or undue limitation of human rights, and against misuse or

misinterpretation of any of the provisions of the covenants to justify human right

infringements. It also establishes aprevention against states limiting already recognized

and existing human rights in their domestic regime on the ground that those human

rights are not recognized yet, or recognized only to alesser extent in the covenants.

 e main di erences of the covenants derive from their di erent nature. As previously

mentioned, the  rst Covenant stands for  rst generation human rights, while the second

one provides for those of the second generation. As presented already in an earlier

chapter, presenting the di erent generations of human rights, international treaties

usually can not install obligations on the states party on the same way with these

di erent kind of rights.

 is is very well re ected in the system of the two di erent covenants, and the

obligations they impose on states, which are completely di erent. International

Covenant on Civil and Political Rights require states to recognize, respect and ensure

every human right contained in the Covenant immediately when enters into force related

to that state, and to do it to afull extent, limitation is only possible with the conditions

and to the extent that the Covenant provides for. On the other hand, according to the

International Covenant on Economic, Social and Cultural Rights, astate party only

"undertakes to take steps (…) to the maximum of its available resources, with aview

to achieving progressively the full realization of the rights recognized", which means

much less of an obligation.  is duality of international legal obligations related to

di erent kind of human rights is not unusual, this approach is being applied in the

regional systems as well.

2.5.3 International Covenant on Civil and Political Rights

 e International Covenant on Civil and Political Rights (ICCPR) serves as the

fundamental UN treaty for the protection of civil and political rights, or  rst generation

human rights. It has practically turned the moral and philosophical goals and aims of

the Universal Declaration of Human Rights into legal reality.

 is transformation could not be "perfect" though, as some important elements

in the  eld of human rights have not been mentioned in the Declaration, but they

surface in the Covenant, and the other way round, while some human rights elements

2. Protection of human rights in the framework of the UN

already had been addressed by the Declaration, they have been left out of the Covenant.

Among the novelties of the Covenant we can mention minority rights and children's

rights – both of these have become issues of higher importance in international politics

than have been shortly after the Second World War, this explains their presence.

Novelties aside, the questions of human rights seemingly disappearing from the list

of recognized rights are even more interesting. To the sixties, some di erent human

rights interpretations have already found weight in international politics: that explains

for example the absence of the right to property from the Covenant, which was very

much opposed most importantly by states of the Soviet power block, accepting the

communist dogma of private property is not to be respected, what's more, it shall be

abolished at all. Regardless of the correctness of this interpretation, if it is represented by

numerous states, universal consensus on the matter is hardly possible. Another reason

stands with the rights of refugees, already embodied in the Declaration but missing

from the Covenant: nearly right after the Declaration, the Convention relating to the

Status of Refugees has been adopted (in 1951), thus this  eld of law has started to

develop asingle new legal corpus (international refugee law), and it was not needed to

drive these questions back to the territory of general human rights. It would not have

been agood idea anyway: international refugee law have already come across serious

criticism from the communist countries (who have usually been the origins of refugees

and had the tendency to consider the legal regime protecting them apropaganda tool

in the hands of the "west"), and nobody wanted to have those debates related to the

Covenant as well.

 e obligation of states party to the Covenant is easy and simple: to ensure the

human rights embodied in it. Article 2 sets out more details of this:

1. they undertakes to respect and to ensure rights recognized by the Covenant to

all individuals within their territory or subject to their jurisdiction, without

discrimination;

they take the obligation of domestic legislation, that may be necessary to give

e ect to the rights recognized in the Covenant;

they take obligations regarding to the enforcement of these rights.  ey have

to ensure that victims of human rights violations have an e ective remedy, these

claims have to be evaluated by competent judicial, administrative or legislative

authorities, and  nally they have to ensure that also competent authorities shall

enforce these remedies, if those are granted.

 e Covenant draws up acomplex catalogue of  rst generation human rights, and

provides for categories of these rights.  ese categories of rights are determined from

the direction of the extent of states' obligations related to them.  e here categories

are the following:

1. human rights of absolute nature, from which no derogation is possible;

2. human rights of absolute nature, but derogation is possible;

3. human rights of not absolute nature.

International Protection of Human Rights

 e  rst category means human rights of absolute nature, meaning that no limitation

is possible at all, and from which no derogation is possible under any circumstances. Not

even wars, natural or other disasters threatening the existence of the state, whatsoever.

 ese are the most important human rights and freedoms recognized by the Covenant.

Under the Covenant these human rights are:

tRight to life (embodied in Article 6).  e Covenant itself does not consider

the death penalty being the violation of the right to life, if it is imposed and

executed by the judicial system in alawful manner – its prohibition is added

only later with the second Optional Protocol in 1989;

tProhibition of torture, cruel, inhuman or degrading treatment or punishment

and the prohibition of forced medical or scienti c experimentation (embodied

in Article 7);

Prohibition of slavery and servitude (embodied in Article 8, Paragraph 1 and 2);

Prohibition of imprisonment merely on the ground of inability to ful l

acontractual obligation (embodied in Article 11);

t e freedom provided for by the principles of nullum crimen sine lege and nulla

poena sine lege (embodied in Article 15).  ese principles of criminal law provide

for rule of law in case of criminal cases;

Right to recognition everywhere as aperson before the law (embodied in Article

16);

tRight to freedom of thought, conscience and religion (embodied in Article 18,

Paragraph 1 and 2). It is important to emphasize here, that this freedom does

not extend to the practice or dissemination of the same.

 e second category of human rights are those which are considered to be of absolute

nature, but under extreme circumstances it is allowed for the states party to derogate

from them. Of course this possibility has to be allowed very carefully to avoid states'

attempts to misuse it.

Article 4 of the Covenant makes this possible in cases of "time of public emergency

which threatens the life of the nation" and sets the additional condition that "the

existence of which is o cially proclaimed" by the application of the relevant domestic

rules. Additionally to this condition of domestic nature, international ones are also

present: states deciding to derogate shall immediately inform other states party to the

Covenant via the UN Secretary-General, and it shall inform them of the reason of

derogation and the provisions this derogation touches upon. Termination of these

derogations have to be communicated in the same manners.  e possibility of these

derogations are also limited by the Covenant: they may be applied only to the extent

strictly required by the exigencies of the situation, and they must not be inconsistent

with states' other obligations under international law, and additionally, they must not

involve any prohibited discrimination, namely on the ground of race, colour, sex,

language, religion or social origin.

2. Protection of human rights in the framework of the UN

 ese human rights are:

Prohibition of forced or compulsory labor (embodied in Article 8, Paragraph 3);

tRights of detained persons (embodied in Article 10);

tJudicial guarantees, except for the publicity of trials (embodied in Article 14);

Protection of privacy, family, home, correspondence against unlawful or

arbitrary interference (embodied in Article 17);

tProtection of family life, right to marriage (embodied in Article 23);

tChildren's rights (embodied in Article 24);

tEquality before the law (embodied in Article 26);

tRights of ethnic, religious or linguistic minorities (embodied in Article 27).

 e third category of human rights are those which may be subject to limitations

by states to ensure the operation of the state and the society. most of the human rights

are subject to these, but under the Covenant, these limitations has to meet the rules set

by its provisions and those may not extend beyond the necessities justi ed, and they

have to be imposed in conformity with the states' domestic constitutional provisions.

 is category of rights covers most of the "classic" civil and political rights:

tRight to liberty and security of person (embodied in Article 9);

Liberty to enter or leave acountry and the movement within (embodied in

Article 12);

tRights of aliens on the territory of the state party (embodied in Article 13);

tRight to public trial (embodied in Article 14);

tExercise of the right to freedom of thought, conscience and religion (embodied

in Article 18, Paragraph 3);

tFreedom of expression (embodied in Articles 19). Some limits are provided for

by the Covenant itself, as it explicitly prohibits propaganda for war and any

advocacy of national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence (embodied in Article 20);

tRight of peaceful assembly (embodied in Article 21);

tRight to freedom of association (embodied in Article 22);

tRight to participate in public matters (embodied in Article 25).

 e enforcement of the provisions of the Covenant is observed by the Human Rights

Committee (CCCPR – not to be confused with the UN Commission of Human

Rights, existing between 1946-2006), which is similarly to UN treaty bodies, abody

of eighteen independent individuals, composed of nationals of the states party to the

Covenant who shall be "persons of high moral character and recognized competence

in the  eld of human rights", elected by the states party. After getting elected, they

shall serve in their personal capacity, similarly to the obligations of members of all UN

treaty bodies.

 e Committee has the main task of monitoring states' performance related to the

Covenant. For this reason it examines regular reports prepared by states party in every  ve

years, and after their analysis, it addresses the state party with its conclusions and opinions.

International Protection of Human Rights

As adevelopment of the interpretation and assistance to practical application, the

Committee adopts so-called general comments to given provisions of the Covenant

or relevant human rights questions.  ese are important documents in international

human rights law as they re ect aprofessional interpretation of the text and additionally,

they can be considered to be experts' opinions with serious relevance as auxiliary sources

of international law.

In case of alleged violations, the Committee can entertain inter-state complaints, if

this possibility if accepted by adeclaration by the state the complaint was issued against.

 e two optional protocols to the Covenant provide for important additional rules.

 e  rst Optional Protocol to the International Covenant on Civil and Political

Rights (ICCPR-OP1), adopted at the same time, enables the Human Rights Committee

to receive and consider communications from individuals, with which they claim that

any of their right recognized by the Covenant has been violated by astate party. Any

state party to the Covenant becoming aparty to the Protocol as well, recognizes the

competence of Committee to entertain these complaints, apossibility that is missing

from the Covenant itself.

Individuals, who want to make such aclaim,  rst have to exhaust all available

domestic remedies, and then are entitled to submit awritten communication to the

Committee. It has to decide on the admissibility of the complaint, the conditions of

which are laid down in Articles 3 and 5, Paragraph 2.  e complaint has to be brought

to the attention of the state party it is directed against, who has to provide written

explanations or statements clarifying the matter (and indicating the remedy applied, if

any) within six months. Admissible communications are considered by the Committee

at closed meetings, based on the written information made available to it by the state

party and the complaining individual.  e views of the Committee on the matter is

then forwarded to both of them.

 ese views adopted as a result of individual complaints are not legally binding

judicial decisions, or judgments.  ey are decisions of abody, which can be considered

aquasi-judicial body of an immense professional experience, so their views can be

considered as being authoritative interpretation of the text of the Covenant.

 e Second Optional Protocol to the International Covenant on Civil and Political

Rights (ICCPR-OP2), adopted by the General Assembly in December 1989, aims at

the abolishment of the death penalty. States ratifying the Protocol take the obligation

that nobody within their jurisdiction shall be executed.  e provisions of the Protocol

are considered to be additional provisions to the Covenant, thus amending its original

rules related to right to life, which – as we have seen earlier – has not seen the death

penalty as aviolation of the right to life yet.  e Human Rights Committee has an

observation and control function regarding to this protocol as well, with respect to

states party to the  rst Optional Protocol, it can receive and consider communications

related to the provisions of the Second Optional Protocol as well, unless the state party

has made acontrary statement when ratifying or accessing the Protocol.

2. Protection of human rights in the framework of the UN

2.5.4  e International Covenant on Economic, Social and Cultural

Rights

 e International Covenant on Economic, Social and Cultural Rights (ICESCR) aims

to ensure the protection of economic, social and cultural rights. As mentioned in an

earlier chapter, these second generation human rights require adi erent scheme of state

actions than civil and political rights, which is re ected for example in the di erence

of obligations deriving from the two di erent covenants. While states party to the

 rst Covenant are obliged to ensure human rights recognized and enumerated, the

International Covenant on Economic, Social and Cultural Rights sets the obligation of

states party to asomewhat lower level: they have to do their best to ensure these human

rights.  is is well shown in the text of the relevant Article 2:

"Each State Party to the present Covenant undertakes to take steps (…) to the

maximum of its available resources, with aview to achieving progressively the

full realization of the rights recognized in the present Covenant by all appropriate

means, including particularly the adoption of legislative measures."

 e obligation of "taking steps" and especially "to the maximum of its available

sources" may indicate no hard direct obligations of states, but this is only true at

 rst sight.  e  rst very important element of the Covenant is that economic, social,

cultural rights have to be ensured by states party without discrimination, asecond

one is that as the Convention creates the obligation of at least trying to reach the

"full realization", the non-activity of astate party is considered to be aviolation of the

Covenant. Additionally, the Committee on Economic, Social and Cultural Rights later

has also asserted (in its General Comment No. 3) that for all the rights enshrined in

the Covenant, minimum requirements, so-called "core obligations" exist, which bind

states party regardless of their available resources.

 e Covenant recognizes the following human rights:

tRight to work (embodied in Articles 6 and 7);

tRight to form and join trade unions (embodied in Article 8);

tRight to social security (embodied in Article 9);

tProtection and assistance to the family (embodied in Article 10);

tRight to an adequate standard of living (embodied in Article 11);

tRight to health (embodied in Article 12);

tRight to education (embodied in Articles 13 and 14);

tRight to cultural freedoms (embodied in Article 15).

Article 4 provides for the possibility of the states parties to apply limitations of the

rights contained in the Covenant. But it also emphases that any such limitations must

be determined by law, and this limitation must still be compatible with the nature of

the rights included in the Convention and its overall aims and goals as well, as the

requirements of ademocratic society.

International Protection of Human Rights

Enforcement mechanism of the Covenant have been formed gradually.

 e Committee on Economic, Social and Cultural Rights (CESCR) is abody of

independent experts responsible for monitoring the performance of states party to the

Covenant.  e Covenant originally has not provided for this body, it has given this

task to the United Nations Economic and Social Council.  e Committee was created

in 1985, by ECOSOC Resolution 1985/17, with the aim of having abody to which

this task can be delegated, as the Covenant has assigned the monitoring function to the

ECOSOC, but later it was found, that this task could be ful lled better by an organ

similar to other UN treaty bodies.  e Committee has its meetings in Geneva, normally

holds two sessions per year.

States party have to submit regular reports to the Committee on their actions

regarding the rights recognized by the Covenant in every  ve years.  ese reports are

examined by the Committee, which then addresses its concerns and recommendations

to the state party examined.  is takes the form of "concluding observations".

 e Committee also has the practice similar to other UN treaty bodies of publishing

its interpretation of the provisions of the Covenant, titled as general comments.

However, call for astronger mechanism has been present, and as aresult, additional

to the reporting procedure, the drafting of acomplaint procedure has been initiated. It

has turned reality, as the Optional Protocol to the International Covenant on Economic,

Social and Cultural Rights (OP-ICESCR) has entered into force in 2013,  ve years

after its adoption in 2008.  e protocol has provided the Committee competence to

receive and consider communications from individuals claiming for the violations of

their rights under the Covenant by astate party. Next to the individual complaint

procedure, inter-state complaint may also be entertained by the Committee, if states

speci cally consent to this. Similarly, on the same condition, the Committee may

undertake inquiries on grave or systematic violations of any of the economic, social

and cultural rights set forth in the Covenant.  ese new developments have not yet

shown their full strengths, as they are fairly new procedures, but their existence may

prove that second generation human rights may be justiciable, similarly to of  rst

generation ones.

2.5.5 Convention on the Elimination of All Forms of Discrimination

against Women

A long debt has been settled by the adoption of the Convention on the Elimination of

All Forms of Discrimination against Women (CEDAW) in 1979 by the UN General

Assembly.  e convention, which consists of apreamble and thirty articles is often

described as an „international bill of rights for women". It de nes „discrimination

against women" and aims for international and national action to end such practices.

Of course the convention, while setting up strong ambitions, has been facing and still

faces serious challenges.

2. Protection of human rights in the framework of the UN

According to the Convention, discrimination against women means:

„any distinction, exclusion or restriction made on the basis of sex which has the

e ect or purpose of impairing or nullifying the recognition, enjoyment or exercise

by women, irrespective of their marital status, on abasis of equality of men and

women, of human rights and fundamental freedoms in the political, economic,

social, cultural, civil or any other  eld."

By becoming aparty to the Convention, states take the obligation to undertake

aseries of measures to end discrimination against women in all forms.  ese measures

may vary, the Convention sets aseries of examples. First of all, states shall incorporate

the principle of equality of genders in their domestic legal system, which means the

abolishment of all discriminatory laws and adoption of appropriate legislation capable

of prohibiting further discrimination against women. An institutional guarantee is

also needed, thus the establishment of ajudicial system, tribunals or other e ective

public institutions to ensure protection of women against gender-based discrimination

is amust. An additional aspect is to make sure that elimination of acts of discrimination

against women is ensured not only by the state and o cial institutions, but also by

individuals, natural persons, organizations or enterprises.  is last obligation de nitely

requires domestic legislation and is the greatest challenge as it may require an incursion

into private sphere by law, which can be adi cult task because of many states' robust

constitutional protection provided to this  eld.

Provisions of the Convention name some of the most important elements of realizing

equality between women and men. For example, ensuring women's equal access to

political and public life (the right to vote and the right to stand for election), to

education, to health and to employment is of crucial importance, thus the convention

emphasizes these. An early seed of gender studies can also be discovered: while the

Convention a rms the reproductive rights of women, it also targets culture and

tradition as in uential forces shaping gender roles and family relations. To protect

women, it a rms their right to acquire, change or retain their nationality and their

children's nationality. To face the problem of protection against special dangers women

have to face, the states have added the obligation of taking appropriate measures against

all forms of tra cking and other exploitation of women.

States parties to the Convention have to implement its provisions into their domestic

law and put them into practice.  eir basic obligation regarding control is to submit

national reports at least every four years to the Committee.  ese reports have to give

an overview on measures they have taken to comply with their obligations deriving

from the treaty or with the earlier conclusions by the Committee.

 e control mechanism has been strengthened in 1999 by the adoption of the

Optional Protocol to the Convention on the Elimination of all Forms of Discrimination

against Women (OP-CEDAW), which is in force since December of 2000.  e states

ratifying this protocol recognize the additional competence of the Committee to receive

and consider individual complaints and to conduct astronger examination – very

International Protection of Human Rights

similar to the practice of other UN human rights committees. Two procedures are

created under the protocol:

Communications procedure, which creates the possibility of individuals or groups

to submit complaints against of violations of the Convention.

Inquiry procedure, which enables the Committee to initiate an inquiry into

situations of grave or systematic violations of rights protected by the Convention.

2.5.6 Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment

Prohibition of torture had been settled  rmly in international law for along time

without adopting any exact de nition.  is gap has been  lled by the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(CAT), which has been adopted by the General Assembly of the United Nations on 10

December 1984, and has entered into force in 1987.

 e drafting of the Convention was conducted by the Commission on Human

Rights in 1977, by the request of the General Assembly to complete the earlier

preparatory work embodied in previous resolutions (see for example the "Declaration

on the Protection of All Persons from Being Subjected to Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment" by the General Assembly on 9

December 1975, GA resolution 3452 (XXX) and GA resolution 3453). e working

groups vested with the task have encountered some problems and debates for example

around the questions of de nition of torture, or jurisdiction, but  nally these have been

settled and the Convention (presented by Sweden) has been adopted.  e general aim

of the Convention is to prevent and punish torture, and to achieve this, it has obliged

states party to cooperate when necessary.

 e de nition of torture under the Convention is the result of lengthy discussions,

resulting in acomplex text, found in Article 1, paragraph 1. According to this, torture

is severe physical or mental pain or su ering in icted by apublic o cial, or aperson

acting in an o cial capacity or anybody with consent, acquiescence, or at the instigation

of the previous persons, for speci c purposes. It may the obtainment of information or

aconfession from him or any third person, punishment for an act he or athird person

has committed or is suspected of having committed, it can be intimidation or coercion

against him or athird person. Furthermore, the Convention considers any reason

based on discrimination of any kind as speci c purpose qualifying for the commission

of torture.

 e general obligations of states party are to take e ective measures to prevent acts

of torture in any territory under their jurisdiction, to make acts of torture punishable,

and to prohibit extradition to another state where there are substantial grounds for

believing that aperson would be in danger of being subjected to torture.

2. Protection of human rights in the framework of the UN

According to the Convention, astate party undertakes the following obligations:

 ey have to take e ective legislative, administrative, judicial or other measures

to prevent acts of torture. It is of utmost importance, that the prohibition

against torture shall be considered as being of absolute nature and shall be

upheld under any kind of exceptional circumstance (like in astate of war),

which would otherwise usually serve as apossibility to derogate from other

human rights obligations;

tStates party shall not expel or extradite any individual to astate where there

are substantial grounds for believing that the individual would be in danger of

being subjected to torture;

tStates party have legislative obligations: they shall ensure that acts of torture are

considered to be serious criminal o ences within their domestic legal system;

States party has to prosecute torture: they have to take aperson suspected of the

o ence of torture into custody and make apreliminary inquiry into the facts,

their authorities have to make investigations when there is reasonable ground

to believe that an act of torture has been committed;

tStates party have an obligation regarding international criminal cooperation:

they shall either extradite aperson suspected of the o ence of torture or if

not willing to do so, they have to submit the case to its own authorities for

prosecution, to avoid impunity (see universal jurisdiction below);

tUnder the Convention, states also have to mind victims: they shall ensure that

an individual who alleges that he has been subjected to torture will have his case

examined by the competent authorities, and that victims of torture shall have

an enforceable right to fair and adequate compensation.

To give weight to the prohibition and to help states stepping up against this violation,

Article 5 of the Convention has introduced the applicability of universal jurisdiction. It

means that each state party shall exercise its jurisdiction in respect of torture, regardless

of the territory the act is committed on or the o ender's nationality. Any act of torture

committed anywhere, outside of their territory, by any persons shall be prosecuted by

them.  is principle of universal jurisdiction had already been introduced by earlier

international conventions, for example against terrorist acts, but most importantly

related to grave breaches of international humanitarian law by the 1949 Geneva

Conventions – which consider torture as one of these serious violations, awar crime.

To coordinate the international implementation of the Convention, similarly to other

human rights conventions, acommittee has been created. Article 17 of the Convention

creates the Committee against Torture with the following wide array of tasks:

To receive, study and comment on periodic reports from states party to the

Convention on the measures they have taken to give e ect to their undertakings

under that;

To initiate investigations in case of reliable information about torture being

systematically practiced in the territory of astate party;

International Protection of Human Rights

tTo entertain complaints by states party against another state party of violations

of the Convention;

tTo entertain individual complaints against astate party.

While the above mentioned tasks seem to give certain power to the Committee, the

investigation and the complaints procedures have not been made compulsory, so states

party can  nd away to weaken the competence of the Committee.  ese provisions

apply with some modi cations, as that a state party may declare that it does not

recognize the Committee's competence to initiate investigations, and the Committee's

competence to examine either inter-state or individual complaints only applies if the

respective state party had speci cally recognized this competence.  ese limitations

clearly serve as possible protective elements to state sovereignty, but they can also be

used to cover astate's unlawful actions, thus not helping the Convention's ful lment.

 e Committee holds two annual sessions, where it examines reports from states

party.  ese examinations are conducted in the presence of representatives of the state

concerned, who are informed in advance of the questions the Committee wishes to

address. Usually the Committee collects information not only from o cial sources and

the states' o cial reports (which are often quite optimistic), but it often uses  ndings

and facts provided for example by human rights NGOs. After the examination, the

Committee prepares adocument, which sums its conclusions and recommendations.

Apart from the reports procedure, the Committee may also adopt so-called general

comments either on speci c provisions of the Convention or other issues related to

their implementation.  ese comments are widely considered to be authentic experts'

commentaries of the Convention text, thus having serious relevance in application of that.

In relation to the communications the Committee may receive (if the above mentioned

conditions ful l), it has also set up aworking group to prepare the examination of

those.  e working group has to examine the admissibility and the merits of these

communications and has to make recommendation to the Committee.

To strengthen prevention, the Optional Protocol to the Torture Convention (OP-

CAT) has been adopted by the UN General Assembly on 18 December 2002 (GA

Resolution 57/199), which has entered into force on 22 June 2006. Its goal was

to establish asystem of regular visits to possible places of detention by states party,

with the aim to prevent torture and other cruel, inhuman or degrading treatment or

punishment. For this reason the Subcommittee on Prevention of Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment has been set up (within the

Committee) with the task of carrying out such visits and to support states and their

domestic institutions.

2.5.7 Convention on the Rights of the Child

Protection of the rights of the child is avery important and quickly evolving  eld of

international human rights law. Today it also forms asubsystem, often referred to as the

2. Protection of human rights in the framework of the UN

"international bill of rights for children". It consists of the Convention on the Rights of

the Child (CRC) along with the Optional Protocol on the Involvement of Children in

Armed Con ict (OP-CRC-AC) and on the Optional Protocol on the Sale of Children,

Child Prostitution and Child Pornography (OP-CRC-SC). Currently, there is athird

optional protocol under consideration, which would provide for apossibility for

individual complaints.

 e Convention is the  rst legally binding international treaty giving universally

recognized norms for protection of children's rights in asingle document. Its overall

objective is to protect children from discrimination, neglect and abuse. It covers

arange of civil, political, economic, social and cultural rights, and to provide for the

implementation of those rights. It can be considered to be the most rapidly and widely

rati ed international human rights treaty in the world, with 193 states party to it.

 is unprecedented wide participation shows astrong consensus and political will to

improve the situation of children.

Its provisions are applicable not only in peacetime, but also during armed con icts,

which strictly narrows the ordinary derogation possibilities, known from other treaties

– usually which allow for derogation in case of war.

 e Convention combines civil and political rights with economic, social and

cultural rights and recognizes that the enjoyment of one right cannot be separated from

the enjoyment of others, the enjoyment of which is avery important factor related to

the situation of human rights. It considers the child as aholder of participatory rights

and freedoms, whose rights shall be ensured by provisions aimed at protecting the

rights and promoting positive action by both the state and the parents.  e latters are

acknowledged by the Convention as having the primary role in this task.

 e system of the Convention builds on four general principles, which express the

philosophy in the background and the general aim of the treaty. Understanding of these

is essential to any national programme that aims to put that philosophy into e ect and

to implement the treaty into domestic law and practice.

 ese are

1. Prohibition of discrimination

2. Best interests of the child shall be made aprimary consideration

3. Child's right to life, survival and development

4. Views of the child

Next to strengthening already existing human rights, the Convention recognises new

ones in relation to children, which have not been covered by previous international

human rights treaties. One of these is the right of the child to freely express views and

to have those views taken seriously, which adds an additional element to the well-known

freedom of expression.  e right of the child to aname and nationality from birth is also

an important novelty, which is very important related to the protection of children.  e

Convention also mentions alternative care, the rights of disabled children, and refugee

children. It emphasises the importance of juvenile justice and the need for recovery and

social reintegration of achild victim of any violations of law.

International Protection of Human Rights

For observation of the practice of states party, the Convention establishes the

Committee on the Rights of the Child. It is the monitoring body consisting of ten

experts whose task is to examine the progress states party to the Convention make via

examining reports, and to develop its practice by adopting recommendations. Currently

there is no complaint procedure present, but an additional optional protocol will

provide for this possibility, which may be adopted in the upcoming years.

 e  rst additional protocol to the Convention was adopted in 2000, under the title

Optional Protocol to the Convention on the Rights of the Child on the Involvement

of Children in Armed Con ict. As the title shows, the objective of this protocol was to

re ect to serious problem of international humanitarian law, to limit the participation,

but especially the use of children in armed con icts.  e most important provision of

the protocol is that it raises the minimum age for recruitment and actual participation in

hostilities to eighteen years, while the Convention had previously set it to  fteen years.

 e protocol prohibits governments and other groups from recruiting people under

this age, and requires that states shall do everything possible to keep individuals under

this age from direct participation in hostilities. On the other hand, in case of voluntary

recruitment, to which this prohibition is not applicable, states shall be mindful of it,

and shall make sure, that such recruitment is genuinely voluntary, the individuals are

fully informed of the duties involved in military service and that it is carried out with

the informed consent of the parents or legal guardians. States party to the protocol

also have to report to the Committee on their compliance with the provisions and the

implementation of the Protocol.

A second protocol to the Convention has also been adopted in 2000, addressing

another very serious danger children have to face.  e Optional Protocol to the

Convention on the Rights of the Child on the Sale of Children, Child Prostitution

and Child Pornography supplements the Convention with provisions needed to create

the possibility, but even more the international legal requirement to criminalise actions

in relation to the sale of children, child prostitution and child pornography. It de nes

"sale of children", "child prostitution" and "child pornography" as punishable criminal

o enses under international law thus making creating the obligation of states party to

implement it into their domestic legal systems. It also sets legal standards to prevention

e orts and to the protection of victims. Similarly to other treaties, it creates aframework

for increased international criminal cooperation related to these crimes and to the

prosecution of o enders.

2.5.8 International Convention on the Protection of the Rights

of All Migrant Workers and Members of  eir Families

 e International Convention on the Protection of the Rights of All Migrant Workers

and Members of  eir Families (ICMW) has been adopted in 1900 and entered

into force in July 2003. It focuses on the rights of agroup of particularly vulnerable

individuals, migrant workers and their families, whose situation has become aconstantly

2. Protection of human rights in the framework of the UN

growing concern as migration itself has become amore and more important issue both

in international relations and domestic politics of many states.

 e Convention de nes the rights of migrant workers organised under two main

categories:

1. Part III of the Convention recognises the human Rights of migrant workers and

members of their families in general, which are applicable to all migrant workers,

even illegal or undocumented.

2. Part IV of the Convention recognises additional other Rights of migrant workers

and members of their families, which are applicable only to migrant workers in

aregular situation.

Related to human rights of all migrant workers and their families, the Convention

does not propose new human rights for migrant workers, just reiterates those human

rights which are recognised by earlier international human rights documents and

treaties adopted by states. By this, the Convention reacts to the grave problem of

dehumanization of migrant workers and members of their families, many of whom

being deprived of their fundamental human rights in many states, often assisted by

insu cient domestic legal provision and practice. In some states, domestic legislation

seems to be su cient in providing all of the relevant human rights to its citizens and

residents, but many migrants, especially those in irregular situations seem to be excluded

from the enjoyment of these.

 e Convention reassures the right to leave and enter the state of origin. Right to

life and prohibition against cruel, inhuman or degrading treatment of punishment

is rea rmed as areaction to the often inhumane living and working conditions and

physical (and often sexual) abuse that many migrant workers often have to face. Slavery

or servitude, forced or compulsory labour is also avery common problem with migrants,

that is why the Convention rea rms this prohibition as well.  e protection of these

individuals' basic freedoms like the freedom of thought, conscience and religion,

the right to hold and express opinions, and the right to property is an additional re-

enforcement in relation to these individuals.

Due process rights are extremely important regarding migrant workers and their

families, as these people are in close connection with states' authorities, thus they may

be subject to many violations in this  eld.  e Convention lays special emphasis on

these rights, investigations, arrests and detentions have to be carried out by states in

accordance with established procedures, as equality with nationals of the state before

courts and other authorities must be respected as well. Necessary legal assistance as

well as interpreters and information in alanguage understood by the migrant has to be

provided, and arbitrary expulsion of the migrant is prohibited.

Additional provisions apply to migrant workers' right to privacy, equality with

nationals regarding labour rules, the possibility to the transfer of their earnings and

their right to information, which means they have the right to be informed by the states

about their rights and obligations, which information should be made available to them

free of charge and in alanguage they understand.

International Protection of Human Rights

Part IV of the Convention recognises some other rights to those migrant workers and

members of their families, who are documented or are in aregular situation. Providing

additional rights for this group of individuals, the Convention seeks to discourage illegal

labour migration,  rst of all because human problems are worse in the case of irregular

migration, secondly because this approach meets the expectations and interests of states

party to the Convention.

Documented migrant workers have the right to be temporarily absent, meaning that

they shall be allowed to leave temporarily, for reasons of family needs and obligations,

and it shall not have any e ect on their authorization to stay or work. Similarly, they

have the freedom of movement, so they can move freely in the territory of the state of

employment and shall also be free to choose where they reside.  ey shall enjoy equal

treatment with nationals of the state in many matters, for example access to educational,

social and other services, together with their family members. Documented migrant

workers shall enjoy equality of treatment in respect of labour law rules, like protection

against unlawful dismissal, or other employment contract violations, just as they shall

have the same access to competent authorities and courts established by law and capable

of providing legal protection.  ey have the same right as the nationals of the state to

enjoy unemployment bene ts, the access to public work schemes intended to combat

unemployment, or other alternative employment in the event of loss of work.

As it can be seen, the Convention favours documented migrant workers, thus it

provides stronger legal protection for them. But it contains other provisions as well to

prevent and eliminate illegal labour migration, for example it proposes collaboration

by states concerned against dissemination of misleading information, to help detecting

and eradicating illegal or clandestine movements of migrant workers and to impose

sanctions on those who are responsible for organising and operating such movements,

and employers of illegal migrant workers.

To monitor states' practice and implementation of the Convention, the Committee

on the Protection of the Rights of All Migrant Workers and Members of their Families

has been created. Like other treaty bodies, it is acommittee of independent experts

acting in their personal capacity. States party to the Convention are obliged to submit

regular reports to the Committee on their activities every  ve years.  ese reports are

examined and then "concluding observations" are prepared.  e Commission is currently

not entitled to consider individual complaints or communications from individuals

claiming that their rights have been violated – according to the Convention this will

be possible, when at least ten states party will accept this procedure in accordance with

its article 77.

2.5.9 International Convention for the Protection of All Persons

from Enforced Disappearance

 e International Convention for the Protection of All Persons from Enforced

Disappearance (CPED) aims to prevent forced disappearance and make the practice

2. Protection of human rights in the framework of the UN

punishable. While this act may have constituted acrime under international law,

as awar crime in an armed con ict, the Convention makes it an o ence under all

circumstances as acrime against humanity. It was adopted in 2006 and entered into

force in 2010.

 e Convention's structure is very similar to the Convention against Torture,

examined in an earlier chapter. It de nes the action as apunishable o ence, and provides

provisions to prevent or to punish it. Article 2 de nes "enforced disappearance" as:

"the arrest, detention, abduction or any other form of deprivation of liberty by

agents of the State or by persons or groups of persons acting with the authorization,

support or acquiescence of the State, followed by arefusal to acknowledge the

deprivation of liberty or by concealment of the fate or whereabouts of the

disappeared person, which place such aperson outside the protection of the law."

Similarly to torture, the Convention excludes any exceptional circumstances (state

of war or athreat of war, internal political instability or any other public emergency) as

ajusti cation for enforced disappearance. It de nes the widespread or systematic use

of enforced disappearance as acrime against humanity.

States party to the Convention take acomplex set of obligations: to make enforced

disappearance an o ence under domestic criminal law and to investigate acts of enforced

disappearance, and bring those responsible to justice. States party to the Convention

has to establish jurisdiction over the o ence, even if the perpetrator is not acitizen or

resident.  ey have to cooperate with other states so that o enders are prosecuted or

extradited, and they also have to assist the victims of enforced disappearance.  ese

obligations are followed by others aiming protection of victims, reparations and

compensation.

 e Convention is monitored by a treaty body: the Committee on Enforced

Disappearances is consisted of ten expert members, elected by states party.  e

Committee examines the reports states have to prepare on the steps they have taken

to enforce and implement the Convention.  e Convention optionally provides for

the possibility for communications to the Committee, which allows individuals and

groups to issue petitions, and to undertake inquiries in the case of grave and systematic

violations. Article 30 provides for aspecial procedure: a request may be submitted

to the Committee related to adisappeared person, as amatter of urgency, and the

Committee (is some conditions are met) may request the State Party concerned to

provide it with information on the situation of the person sought, within atime limit

set by the Committee.

2.5.10 Convention on the Rights of Persons with Disabilities

 e goal of the Convention on the Rights of Persons with Disabilities (CRPD) is to

elaborate the rights of persons living with disabilities in details and to set out acode of

International Protection of Human Rights

implementation in domestic legal systems.  e treaty has been adopted in 2006 and

entered into force in 2008. Currently it has 147 states party, which shows astrong

consensus among states in its subject-matter. It was the  rst human rights treaty that

has been rati ed not only by states, but by aregional integration organization, namely

the European Union.

States ratifying the Convention engage themselves to recognise the rights embodied

in the Convention, to develop and carry out policies as well as domestic laws and

administrative measures for securing these rights and to abolish any laws, regulations,

or practices that constitute discrimination towards persons with disabilities.  ey also

take the obligation to combat stereotypes and prejudices, and to promote awareness

of the capabilities of persons with disabilities, as this sort of change of perceptions is

essential to improve their situation.

 e Convention – similarly to the migrant workers' convention – recognises many

already long-existing and well-known human rights, but applies them respectively to

persons with disabilities. Some of these are the general prohibition of discrimination,

inherent right to life on an equal basis with others, equal rights and advancement of

women and girls with disabilities and protection of children with disabilities.

States party have to ensure persons with disabilities to have access to justice on

an equal basis with others and to provide for their basic freedoms, for example the

enjoyment of the right to liberty and security and not to be deprived of their liberty

unlawfully or arbitrarily.  ey have to protect the physical and mental integrity of

persons with disabilities, guarantee freedom from torture and from cruel, inhuman or

degrading treatment or punishment, and prohibit medical or scienti c experiments

without the consent of the person concerned – these are basic human rights, but the

Convention puts emphasis on them.

States also have to recognise rights which are needed for every day's life of persons

with disabilities. For example their equal right to property, including the control of

 nancial a airs and equal access to banking services.  eir privacy has to be respected

like that of others.

Domestic laws and any administrative measures has to provide for freedom from

exploitation, violence and abuse, otherwise states have to promote the recovery,

rehabilitation and reintegration of the victim and also is bound to investigate the abuse.

Accessibility is afundamental issue to the life of persons with disability, so the

Convention requires states party to identify and eliminate any obstacles and barriers

to ensure that they can access their environment.  at means for example means of

transportation, public facilities and services, and information and communications

technologies as well.  e Convention also provides for persons with disabilities to

be able to live independently, to be included in the community, to choose where and

with whom to live and to have access to in-home, residential and community support

services. All these obligations pose aserious challenge to states as the ful lment of those

require not only  nancial investments, but also e orts to transform social thinking.

Accessibility is extended to public information intended for the general public, which

shall be made public also in accessible formats and technologies, by facilitating the use

2. Protection of human rights in the framework of the UN

of Braille, sign language and other forms of communication. States shall encourage

the media and Internet providers to make on-line information available in accessible

formats.

Enforcement of the Convention is helped by more factors. It obliges states party

to designate afocal point in their governments and to create domestic mechanism to

promote and monitor its implementation. On the international level, atreaty body, the

Committee on the Rights of Persons with Disabilities has been created with the same

goals. It is made up of eighteen independent experts, its main task is to receive periodic

reports from states party on their progress made in implementing and enforcing the

Convention.  e Optional Protocol to the Convention on the Rights of Persons with

Disabilities (OP-CRPD), that has entered into force at the same time as the Convention

provides for the possibility for communications to the Committee, which allows

individuals and groups to issue petitions after domestic remedies have been exhausted,

just as well as to undertake inquiries in the case of grave and systematic violations of

the Convention.

3. European protection of human rights

3.1 Historical development of the Council of Europe

 e Council of Europe (hereinafter: CoE) had been set up on the 5th of May in

1949 by signing its London Statute. Founders of the CoE were ten States of Western

Europe: Belgium, Denmark, France, Ireland, Italy, Luxemburg, the Netherlands,

Norway, Sweden and the United Kingdom. In fact, the Council of Europe was one

of the  rst political organizations of Europe that were established after the end of the

Second World War. CoE is both aproduct of the idea of pan-Europeanism and the

right emerging Cold War. Speaking of CoE, it is important not to be confused with

other European regional international organizations such as the European Union or

certain institutions of the EU as its Council or the European Council.  e seat of the

CoE is in Strasbourg, France.

As the Statute of the CoE states:

" e aim of the Council of Europe is to achieve agreater unity between its

members for the purpose of safeguarding and realising the ideals and principles

which are their common heritage and facilitating their economic and social

progress."

Principles on which the cooperation is based are the following: principle of the rule

of law and the enjoyment by all persons within the jurisdiction of the member states

the human rights and fundamental freedoms.  ese principles form the basis of all

genuine democracy according to the preamble of the Statute of the Council of Europe.

Any European country may become the member of the CoE if it accepts the principles

mentioned and 'collaborates sincerely and e ectively in the realization of the aim of the

Council.' However, there is no formal possibility of applying for the membership, the

Committee of Ministers is authorized to invite States to become amember instead. In

addition, any member may quit the organization at any time by notifying the Secretary

General of the CoE on this issue. Also the Committee of Ministers has the possibility

to either suspend or exclude amember from the organization if it fails to comply with

the aim of the Council of Europe. Fourty-seven European States have amembership

in CoE so far.  is means, all European countries are members, however with the

exception of Belorussia and certain partially or non-recognized de facto States as

Kosovo, Transnistria, North-Cyprus or South-Ossetia for instance.

Greece was not among the founders because of the Greek Civil War. Right after

this con ict ended, Greece immediately acceded to the organization in 1949. Iceland,

International Protection of Human Rights

Turkey and the Federal Republic of Germany became member in 1950. Austria acceded

to the organization in 1956 after getting back its sovereignty and Cyprus in 1961 after

becoming independent. Each European countries from the Western Bloc acceded until

the end of the Cold War (except some micro States), whilst the former socialist States

joined the CoE after the breakthrough years of 1989 an 1990.

Two of the organs of the Council of Europe were created by the London Statute,

namely the Committee of Ministers and the Consultative Assembly of which the latter

had been renamed to Parliamentary Assembly in 1974. Each of these organs are assisted

by the Secretariat of the CoE headed by the Secretary General of the organization.

 e Committee of Ministers is composed of the Ministers for Foreign A airs, but

usually their delegates (the Permanent Representatives to the Council of Europe) are

taking part in the majority of the sittings of the Committee of Ministers, in practice.

 is means, Ministers for Foreign A airs meet at least once in ayear ('ministerial

session') and their deputies once in aweek ("meetings of the ministers' deputies').  e

role and the responsibilities of the Committee of Ministers are multifaceted.  ese

include the admittance of new member States and the suspension or even termination

of their membership, the interaction with other organs of the CoE, drafting conventions

and agreements, monitoring the respect of commitments of member States, adoption

of recommendations to member States and serving as the principal guardian of the

principles and values of the CoE.

 e Parliamentary Assembly (hereinafter: PACE) is the deliberative organ of the

CoE, it may 'debate matters within its competence and present its conclusions, in the

form of recommendations, to the Committee of Ministers.' Each legislative assemblies

elect from among their members delegates and their deputies to the PACE. Seats are

allocated in the PACE on aproportional method based on the size of their members

States' population, where none of the States is entitled to more than eighteen and less

than two delegates. Under this rule, PACE is composed of 318 representatives and 318

substitutes. PACE meets in ordinary session once ayear and it may create committees

and other organs in order to be assisted during the ful llment of its tasks.

Besides, the Council of Europe has other organs and bodies as well.  e Congress

of Local and Regional Authorities (hereinafter: CLRAE) is the assembly and forum of

dialogue of the member States' local and regional municipalities. CLRAE may initiate,

draft, prepare or simply comment on (draft) international conventions worked out under

the aegis of the CoE.  e Commissioner for Human Rights was  rst elected in 1999

however with alimited and non-ombudsman-like but rather advisory scope of authority.

 e European Commission against Racism and Intolerance (ECRI) is the body of

CoE monitoring xenophobic and related hatred of any kind composed of forty-seven

experts. CoE also has avery special body called European Commission for Democracy

through Law or as it better and informally known the 'Venice Commission'.  e Venice

Commission is entitled to give advice and assistance to member States when drafting

their most important pieces of legislation such as the constitution for instance. Finally,

one of the most reputable institution that was established in the framework of CoE is

the European Court of Human Rights what is to be reviewed in aforthcoming chapter.

3. European protection of human rights

3.2 Convention for the Protection of Human Rights

and Fundamental Freedoms and its Protocols

 e Convention for the Protection of Human Rights and Fundamental Freedoms

(hereinafter: European Convention on Human Rights or ECHR (not to be confused

with the former European Commission of Human Rights) or simply as Convention),

as the core document of the entire system of human rights within the Council of

Europe was adopted on the 4th of November in 1950 in Rome by the then fourteen

members of the Council of Europe, namely: Belgium, Denmark, France, the Federal

Republic of Germany, Greece, Iceland, Ireland, Italy, Luxemburg, the Netherlands,

Norway, Sweden, Turkey and the United Kingdom. Only ten rati cations is required for

entering into force it was done very soon, so that in 1953. Drafters of the ECHR took

into consideration the Universal Declaration of Human Rights of 1948 and considered

the Convention as asigni cant step to collectively enforce certain of the rights stated

in the Universal Declaration. Legitimacy of the ECHR directly relies on the London

Statute of the Council of Europe of 1949. According to the London Statute the main

aims of the CoE is 'to achieve agreater unity between its members for the purpose of

safeguarding and realizing the ideals and principles which are their common heritage

and facilitating their economic and social progress.' Furthermore, this aim can be

achieved 'through (…) agreements (…) in legal matters (…) and in the maintenance

and further realization of human rights and fundamental freedoms.'

Originally States and only those being the members of the Council of Europe could

sign and ratify the European Convention for Human Rights only and all the current

forty-seven member states are party to this convention. Even though formally it is

not an obligation of members-to-be of the CoE to sign and ratify the ECHR, such

obligation can be derived from the London Statute. According to the London Statute

Article 3:

"Every member of the Council of Europe must accept the principles of the rule

of law and of the enjoyment by all persons within its jurisdiction of human

rights and fundamental freedoms, and collaborate sincerely and e ectively in the

realization of the aim of the Council as speci ed in Chapter I."

However, the European Union, aseparate international organization and its members

in the 2007 Lisbon Treaty prescribed that the EU

"(…) shall accede to the European Convention for the Protection of Human

Rights and Fundamental Freedoms. Such accession shall not a ect the Union's

competences as de ned in the Treaties.

Fundamental rights, as guaranteed by the European Convention for the

Protection of Human Rights and Fundamental Freedoms and as they result

from the constitutional traditions common to the Member States, shall constitute

general principles of the Union's law"

International Protection of Human Rights

In order to be able to receive the EU's request for accession, the ECHR was amended

in 2010 by 'Protocol 14 to the Convention for the Protection of Human Rights and

Fundamental Freedoms, amending the control system of the Convention' by inserting

anew paragraph to article 59 as follows:

" e European Union may accede to this Convention."

 is means, CoE member states and the European Union are allowed to be aparty

to the ECHR this time. Rati cations shall be deposited with the Secretary General of

the Council of Europe who noti es all the members of the Council of Europe of the

entry into force of the Convention, the names of the High Contracting Parties who

have rati ed it, and the deposit of all instruments of rati cation which may be e ected

subsequently. ECHR was done both in French and in English and in these languages

are the Convention authentic.

According to article 1 of the ECHR,

" e High Contracting Parties shall secure to everyone within their jurisdiction

the rights and freedoms de ned in Section I of this Convention."

Section I. of the ECHR enumerates the human rights and fundamental freedoms

being protected by the Convention being one of the most important part of the ECHR.

Personal scope of the ECHR covers not only citizens but every human being within

the jurisdiction of the State Parties. However, under the territorial application of the

Convention, the ECHR itself, allows to make some exceptions when aState can at the

time of ratifying the ECHR or later on notify the Secretary-General about on what

exact territories under its jurisdiction the ECHR it wishes to apply or not to apply. Such

declarations were made by Azerbaijan, France, Moldova, the Netherlands, Georgia, and

the United Kingdom so far. Azerbaijan declared in 2002 that it could not guarantee the

application of ECHR on certain territories being under the control of Armenia (mainly

Nagorno-Karabakh and some neighboring settlements). Similarly, Georgia noti ed the

Secretary-General of the CoE in 2002, that:

"due to the existing situation in Abkhazia and Tskhinvali region (widely known

as South Ossetia), Georgian authorities are unable to undertake commitments

concerning the respect and protection of the provisions of the Convention and

its Additional Protocols on these territories."

Both Abkhazia and South Ossetia are disputed territories and self-proclaimed and

partially recognized de facto states on the territory of Georgia, albeit Georgia is not able

to fully control these territories. Moldova informed the Secretary-General in 1997, that

it would be unable to guarantee the compliance with the provisions of the Convention

in respect of omissions and acts committed by the organs of the self-proclaimed Trans-

Dniester republic within the territory actually controlled by such organs, until the

3. European protection of human rights

con ict in the region is  nally settled. France noti ed the Secretary-General in 1974,

that it applies the ECHR to the whole territory of France including overseas territories

having due regard – and in conform with the Convention's relevant article – to local

requirements.  e Netherlands informed the Secretary-General in 1955 that it recognized

the territorial application of ECHR to Suriname and the Netherlands Antilles. Due to

Suriname became independent in 1975, the scope of the Convention cannot extend

to this country anymore because of geographical reasons. In addition, the Netherlands

Antilles split to two separate subjects: Aruba on the one hand and Curaçao, Sint Maarten

and the Caribbean part of the Netherlands on the other. Despite these facts, the ECHR

can be still applied to these parts of the Kingdom of Netherlands as well.  e United

Kingdom extended the scope of application of the ECHR step by step to those territories

whose international relations the UK is responsible for.  ese territories include: Gibraltar,

the Isle of Man, Guernsey and Jersey and some overseas territories and islands.

ECHR expressly allows to submit reservations by states when signing or when

depositing the instrument of rati cation, however with certain limitations. According

to article 57 of the ECHR:

"1. Any State may, when signing this Convention or when depositing its

instrument of rati cation, make areservation in respect of any particular

provision of the Convention to the extent that any law then in force in its

territory is not in conformity with the provision. Reservations of a general

character shall not be permitted under this Article.

2. Any reservation made under this Article shall contain abrief statement of

the law concerned."

To be more precise:

tAny state can make reservations to any provision of the ECHR; if

ta certain law already in force is not in conform with the given provision(s) of

the ECHR; and

tthe reservation must be limited to the extent of the said inconformity referred

above; and

treservations of ageneral character are not permitted.

Approximately the half of the State Parties made such reservations so far. Eight

of the ECHR articles are touched with reservations like these. Fifteen States made

reservations to Article 6 (right to afair trial), thirteen States made reservations to article

5 (right to liberty and security), four States made reservations to article 10 (freedom

of expression), three States made reservation to article 11 (freedom of assembly and

association), two States made reservations to article 8 (right to respect for private and

family life), while one State made reservations to article 7 (no punishment without law),

article 13 (right to an e ective remedy) and article 14 (prohibition of discrimination)

respectively. Interestingly, Monaco made reservations to  ve, Spain to four, Azerbaijan

to three, Andorra, Austria, the Czech Republic, France, Liechtenstein, Malta, Slovakia,

International Protection of Human Rights

Ukraine to two articles, whilst Armenia, Croatia, Estonia, Finland, Ireland, Moldova,

Montenegro, Portugal, Russia, and San Marino to one article of the ECHR respectively.

Certainly, any reservations can be withdrawn at any time by the State Parties, however

only Serbia (entirely) and Finland (partially) did so, yet.

ECHR can be denounced by State Parties due to the rules contained in article 58:

"1. A High Contracting Party may denounce the present Convention only after

the expiry of  ve years from the date on which it became aparty to it and after

six months' notice contained in anoti cation addressed to the Secretary General

of the Council of Europe, who shall inform the other High Contracting Parties.

2. Such adenunciation shall not have the e ect of releasing the High Contracting

Party concerned from its obligations under this Convention in respect of any act

which, being capable of constituting aviolation of such obligations, may have

been performed by it before the date at which the denunciation became e ective.

3. Any High Contracting Party which shall cease to be amember of the Council

of Europe shall cease to be aParty to this Convention under the same conditions.

4.  e Convention may be denounced in accordance with the provisions of the

preceding paragraphs in respect of any territory to which it has been declared to

extend under the terms of Article 56."

Looking over the evolution of the number of State Parties to the ECHR, each State

Parties could denounce – in theory – the Convention at any time.  e only State

that once denounced the Convention was Greece in 1970 (it also left the CoE at the

same time) because of the Greek military junta regime, the country's membership was

suspended in 1969. After the downfall of the military junta, Greece rati ed the ECHR

in 1974 again and returned to the system of CoE.

Important to know, that the ECHR cannot be interpreted as limiting or derogating

from any of the human rights and fundamental freedoms which may be ensured under

the laws of any State Party or under any other agreement to which it is aparty.

As it was referred above, Section I. of the ECHR enumerates the human rights and

freedoms being protected by the Convention itself. Article 2 of the ECHR regulates

the right to life as follows.

"1. Everyone's right to life shall be protected by law. No one shall be deprived of

his life intentionally save in the execution of asentence of acourt following his

conviction of acrime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as in icted in contravention of this

Article when it results from the use of force which is no more than absolutely

necessary:

(a) in defence of any person from unlawful violence;

(b) in order to e ect alawful arrest or to prevent the escape of aperson lawfully

detained;

3. European protection of human rights

As it can be seen, right to life is not ahuman right of an absolute nature under the

relevant provisions of ECHR. Due to article 2, both the State (and its authorities) and

an individual or individuals could limit one's right to life in certain circumstances.

One of the most important possible dimension in which one's right to life could be

limited is the capital punishment. Death sentence is not banned by article 2 of the

ECHR, the Convention only states the principle of nulla poena sine lege, so that one

cannot be sentenced to death unless this kind of punishment is prescribed by law

for the crime committed by the convict and this prescription was due at the time of

committing the given crime. Moreover, one can be sentenced to death only by the

verdict of acourt. As a rst major step to abolish capital punishment under the aegis

of the CoE, the 'Protocol No. 6 to the Convention for the Protection of Human

Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty' was

adopted in 1983. In its article 1 Protocol 6 states:

" e death penalty shall be abolished. No-one shall be condemned to such

penalty or executed."

Despite this fact, in the next article, Protocol 6 makes an exception from under the

rule as follows:

"A State may make provision in its law for the death penalty in respect of acts

committed in time of war or of imminent threat of war; such penalty shall be

applied only in the instances laid down in the law and in accordance with its

provisions.  e State shall communicate to the Secretary General of the Council

of Europe the relevant provisions of that law."

Provisions of Protocol 6 should be read as additional articles to the Convention.

All CoE members but Russia has rati ed Protocol 6 so far. In spite of this fact, the

Russian Constitutional Court nulli ed the provision of the Criminal Code that let

the use of capital punishment either in wartime or peacetime in 2009. By adopting

'Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental

Freedoms, concerning the abolition of the death penalty in all circumstances' in 2002, the

Council of Europe aimed at completely abolishing death penalty. According to article

1 of Protocol 13:

" e death penalty shall be abolished. No one shall be condemned to such penalty

or executed."

Each CoE member states are party to this protocol with the exception of Armenia,

Azerbaijan and Russia.  is means – taking into consideration of Russia's position

mentioned before – it is possible to enforce death penalty during wartime in Armenia

and in Azerbaijan. In fact, both Armenia and Azerbaijan abolished capital punishment

acouple of years ago. Interestingly, Denmark made adeclaration previously in which

International Protection of Human Rights

it stated that both Protocol 6 and Protocol 13 cannot be applied on the autonomous

territories of Greenland and the Faroe Islands, but abit later on Denmark noti ed the

Secretary-General of the CoE that it wished to withdraw these declarations. It is also

important to mention that no reservations or derogations whatsoever could be made

to these protocols.

In addition, tight to life is not infringed if the deprivation of life is aresult from the

use of force which is no more than absolutely necessary. In its case-law, the European

Court of Human Rights enshrined by carving out the 'principle of necessity', that

'Article 2 allows for exceptions to the right to life only when it is "absolutely necessary ",

aterm indicating "that astricter and more compelling test of necessity must be employed

than that normally applicable when determining whether State action is "necessary in

ademocratic society" under paragraphs 2 of Articles 8 and 11 of the Convention"

Furthermore, use of force of the authorities must comply with the 'principle of

proportionality' as well. States Parties must also take some positive measures – putting

in place e ective criminal law provisions for instance – in order to be fully complied

with article 2 of the ECHR. Finally, the rightful self-defense might not infringe the

right to life either, if it met with certain strict conditions.

Article 3 of ECHR contains the 'prohibition of torture' principle as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or

punishment."

 is prohibition is of an absolute in its nature and has to parallel goals. On the

one hand it protects the dignity of the individual and it protects also, the individual's

physical and mental integrity on the other.

No exception to the prohibition contained in Article 3, under Article 15 paragraph 2

can be made even in emergency situations.  us, for example, nobody can refer to any

extreme circumstances such as the order of the superior in proving his or hers act of torture

or other related acts. In addition, the principle of the prohibition of torture was considered

as aperemptory norm of public international law in ajudgment delivered in the so-

called 'Furundžija case' by the International Criminal Tribunal for the former Yugoslavia.

It is important also to note that not only physical pain, but causing mental su ering

is also prohibited by article 3. Furthermore, article 3 covers situations that occur not

only in prisons but in certain medical and educational institutions as well. Looking

over the relevant cases of the European Court of Human Rights the prolonged solitary

con nement or life sentence can also lead to the breach of Article 3. In those states

where death penalty is permitted, it shall be implemented to minimize the possible

physical and mental su ering act together in order to avoid the infringement of article

3. Finally, asingle and separate international treaty was adopted to make more e ective

the prohibition of torture and related acts in 1987, namely the 'European Convention

for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment'

of which each CoE members states are aparty to.

3. European protection of human rights

Article 4 of the ECHR prohibits slavery and forced labor:

"1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this article the term "forced or compulsory labour" shall

not include:

a) any work required to be done in the ordinary course of detention imposed

according to the provisions of Article 5 of this Convention or during conditional

release from such detention;

b) any service of amilitary character or, in case of conscientious objectors in

countries where they are recognised, service exacted instead of compulsory

military service;

c) any service exacted in case of an emergency or calamity threatening the life or

well-being of the community;

d) any work or service which forms part of normal civic obligations."

According to the relevant case-law of the European Court of Human Rights, article

4 of the ECHR enshrines one of the fundamental values of democratic societies.

Article 4 paragraph 1 contains an obligation of which no derogations is possible at any

circumstances. In de ning slavery, the European Court of Human Rights considers the

de nition used by the 1926 Slavery Convention as suitable for interpreting article 4.

According to the Slavery Convention, slavery is the status or condition of aperson over

whom any or all of the powers attaching to the right of ownership are exercised. Contrarily,

servitude means an obligation to provide one's services that is imposed by the use

of coercion, and is to be linked with the concept of slavery. Servitude is a speci c,

aggravated form of forced or compulsory labor in interpreting article 4. Similarly,

what was seen in interpreting article 4 paragraph 1, the European Court of Human

Rights took another document, namely the ILO Convention No.29. to de ne forced or

compulsory labor. Accordingly, "forced or compulsory labour" means "all work or service

which is exacted from any person under the menace of any penalty and for which the said

person has not o ered himself voluntarily". In addition to refrain from certain acts to do,

Sates have positive obligations in relation to article 4.

One of the most complex articles of the ECHR is article 5 and article 6. Article 5

deals with the right to liberty and security and sounds as follows:

"1. Everyone has the right to liberty and security of person. No one shall be

deprived of his liberty save in the following cases and in accordance with

aprocedure prescribed by law:

(a) the lawful detention of aperson after conviction by acompetent court;

(b) the lawful arrest or detention of aperson for noncompliance with the lawful

order of acourt or in order to secure the ful lment of any obligation prescribed

by law;

International Protection of Human Rights

him before the competent legal authority on reasonable suspicion of having

committed an o ence or when it is reasonably considered necessary to prevent

his committing an o ence or  eeing after having done so;

(d) the detention of aminor by lawful order for the purpose of educational

supervision or his lawful detention for the purpose of bringing him before the

competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious

diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his e ecting an

unauthorised entry into the country or of aperson against whom action is being

taken with aview to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in alanguage which he

understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph

1 (c) of this Article shall be brought promptly before ajudge or other o cer

authorised by law to exercise judicial power and shall be entitled to trial within

areasonable time or to release pending trial. Release may be conditioned by

guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled

to take proceedings by which the lawfulness of his detention shall be decided

speedily by acourt and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of

the provisions of this Article shall have an enforceable right to compensation."

Even though of containing old and well-established legal principles, rights and

guarantees in criminal procedure crystallized mainly in British law, more than aquarter of

States Parties made reservations to article 5. Majority of the states (Armenia, Azerbaijan,

Czech Republic, France, Moldova, Portugal, Russia, Slovakia, Spain, Ukraine) that

made reservations to this article because their legislation contains provisions contrary to

the right to liberty in the  eld of the armed forces due to disciplinary reasons. Andorra

wished only to specify the time limits what it considered as being contradictory to article

5, while Austria and Montenegro noti ed the Secretary-General about some minor

con icts between their administrative law and the article in question.

Article 6 relates to the right to afair trial. Accordingly,

"1. In the determination of his civil rights and obligations or of any criminal

charge against him, everyone is entitled to afair and public hearing within

areasonable time by an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and public may be excluded

from all or part of the trial in the interests of morals, public order or national

security in ademocratic society, where the interests of juveniles or the protection

of the private life of the parties so require, or to the extent strictly necessary in

3. European protection of human rights

the opinion of the court in special circumstances where publicity would prejudice

the interests of justice.

2. Everyone charged with acriminal o ence shall be presumed innocent until

proved guilty according to law.

3. Everyone charged with acriminal o ence has the following minimum rights:

a) to be informed promptly, in alanguage which he understands and in detail,

of the nature and cause of the accusation against him;

b) to have adequate time and facilities for the preparation of his defence;

c) to defend himself in person or through legal assistance of his own choosing or,

if he has not su cient means to pay for legal assistance, to be given it free when

the interests of justice so require;

d) to examine or have examined witnesses against him and to obtain the

attendance and examination of witnesses on his behalf under the same conditions

as witnesses against him;

e) to have the free assistance of an interpreter if he cannot understand or speak

the language used in court."

Right to afair trial has an extraordinary position in the system of human rights,

since there can be no e ective mechanism of protecting rights without it. Article 6 is

one of the most complicated and most frequently cited articles in ECHR. Some CoE

members as Hungary, Croatia, and Poland often have troubles to secure this right at

domestic level. About 80 percent of the complaints against Hungary, for instance, are

lodged because of the allegedly infringement of article 6. Right to fair trial has two

main dimension. Firstly, there is afundamental norm (article 6 paragraph 1) of this

right which deals with three questions: who should be the judge in one's case, in what

cases should it be ajudges, and how should the case be judged?  e European Court

of Human Rights interprets these questions independently from the domestic legal

regimes of the member states. In theory, article 6 paragraph 1 covers all kind of cases

with the exception of certain decisions having asupervisory character. Right to fair

trial include each type of criminal and civil law matters. In addition the fundamental

norm, which must prevail in every cases, there are some guarantees stemming from

the rights to fair trial which should be respected only in criminal procedures.  ese

include the rights enumerated in article 6. paragraphs 2 and 3. Fifteen of the States

Parties to the Convention made reservations to article 6. Analyzing thoroughly the

reservations made by the States Parties, one can see that they wishes to limit the scope

in which the provisions of article 6 must prevail. Six states excluded some cases of the

military penal procedure. While the others intended to exclude some other matters.

According to the Austrian reservation, article 6 shall be no prejudice to the principles

governing public court hearings laid down in Article 90 of the 1929 version of the

Federal Constitution Law. Reservations of Croatia and Montenegro relate to procedures

of supervising individual administrative acts in which it cannot guarantee the right

to apublic hearing, whilst Estonia did the same manner in cases before the Appellate

Court and Finland and Liechtenstein before the Supreme Court and certain special

International Protection of Human Rights

courts and tribunals. Ireland does not interpret in its reservation Article 6.3. of the

Convention as requiring the provision of free legal assistance to any wider extent than

is now provided in Ireland. Malta made areservation rather of an interpretative than an

excluding or amending character against the presumption of innocence rule contained

in article 6 paragraph 2. According to the Maltese reservation the Government of Malta

declared that it interpreted paragraph 2 of Article 6 of the Convention in the sense that

it does not preclude any particular law from imposing upon any person charged under

such law the burden of proving particular facts. Finally, Monaco made areservation of

an interpretative character against article 6. paragraph 1. in which it excluded the prince

from legal proceedings under its constitution and noted that the Monacan fundamental

law gives priority to Monacan citizens in professional activities.

Article 7 of ECHR contains the nullum crimen sine lege and the nulla poena sine lege

principles as follows:

"1. No one shall be held guilty of any criminal o ence on account of any

act or omission which did not constitute acriminal o ence under national

or international law at the time when it was committed. Nor shall aheavier

penalty be imposed than the one that was applicable at the time the criminal

o ence was committed.

2.  is article shall not prejudice the trial and punishment of any person for

any act or omission which, at the time when it was committed, was criminal

according to the general principles of law recognised by civilised nations."

 is article in fact aims at prohibiting the retroactive legislation and law enforcement

in criminal law cases. Article 7 does not require to read criminal law provisions

restrictively it only means that these rules must be clear enough and foreseeable by

anybody. Only Portugal made areservation to this article in which it noted that certain

criminal o ences remain applicable to police o cers of the military junta after the coup

d'état. Interestingly, the provision of the constitution – which allowed this possibility –

had already been repealed, but Portugal not yet revoked its reservations.

Article 8 refers to the 'right to respect for family and private life' which is often

interpreted together with the right to marry contained by article 12 of the ECHR.

Article 8 regulates as follows:

"1. Everyone has the right to respect for his private and family life, his home

and his correspondence.

2.  ere shall be no interference by apublic authority with the exercise of this

right except such as is in accordance with the law and is necessary in ademocratic

society in the interests of national security, public safety or the economic well-

being of the country, for the prevention of disorder or crime, for the protection

of health or morals, or for the protection of the rights and freedoms of others."

3. European protection of human rights

While article 12:

"Men and women of marriageable age have the right to marry and to found

afamily, according to the national laws governing the exercise of this right."

In one of its landmark cases the European Court of Human Rights clari ed the

object of article 8. Accordingly,

"the object of the Article 8 is "essentially" that of protecting the individual against

arbitrary interference by the public authorities. Nevertheless it does not merely

compel the State to abstain from such interference: in addition to this primarily

negative undertaking, there may be positive obligations inherent in an e ective

"respect" for family life."

Interesting to know that under the relevant jurisprudence of the European Court

of Human Rights, article 12 does not protect the right to marry of same sex couples

unless the state interested recognized this right in its domestic legislation previously.

Only Liechtenstein and Monaco made reservations to article 8. Both of them wished

to emphasize the relevance of their own citizens in this question.

Article 9 of the ECHR relates to the freedom of thought, conscience and religion:

"1. Everyone has the right to freedom of thought, conscience and religion; this

right includes freedom to change his religion or belief and freedom, either alone

or in community with others and in public or private, to manifest his religion

or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such

limitations as are prescribed by law and are necessary in ademocratic society in

the interests of public safety, for the protection of public order, health or morals,

or for the protection of the rights and freedoms of others."

 e European Court of Human Rights emphasized the fundamental value of this

right in ensuring democratic principles. Right to religion or belief includes the view if

someone choose not choosing any religions or beliefs as well. In interpreting this article,

the Court found that Jehova's Witnesses or the Church of Scientology are considered

beliefs instead of religion.

Article 10 of ECHR regulates the freedom of expression:

"1. Everyone has the right to freedom of expression.  is right shall include

freedom to hold opinions and to receive and impart information and ideas

without interference by public authority and regardless of frontiers.  is article

shall not prevent States from requiring the licensing of broadcasting, television

or cinema enterprises.

International Protection of Human Rights

2.  e exercise of these freedoms, since it carries with it duties and responsibilities,

may be subject to such formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in ademocratic society, in the interests

of national security, territorial integrity or public safety, for the prevention of

disorder or crime, for the protection of health or morals, for the protection of the

reputation or rights of others, for preventing the disclosure of information received

in con dence, or for maintaining the authority and impartiality of the judiciary."

Freedom of expression is acore human right in agenuine democratic society being

one of the most important political right. Lack of freedom of expression, democracy

is not possible. Article 10 protects: political opinions and expression, artistic opinion

and expression, and commercial expression. According to the well-established case law

of the European Court of Human Rights, freedom of expression

"is applicable not only to "information" or "ideas" that are favorably received

or regarded as ino ensive or as amatter of indi erence, but also to those that

o end, shock or disturb. Such are the demands of pluralism, tolerance and

broadmindedness, without which there is no "democratic society".  is freedom

is subject to the exceptions set out in Article 10 § 2, which must, however, be

stri ctly construed."

Four States made reservations to article 10. Azerbaijan noted that its internal law

limited the establishment of mass media broadcasters by foreign nationals and legal

persons. Malta noti ed the Secretary-General that 'the Constitution of Malta allows

such restrictions to be imposed upon public o cers with regard to their freedom of

expression as are reasonably justi able in ademocratic society.  e Code of conduct of

public o cers in Malta precludes them from taking an active part in political discussions

or other political activity during working hours or on o cial premises.' Monaco and

Spain made reservations of an interpretative character about the monopoly situation of

public broadcasters in Monaco and the situation of broadcasting in Spain, respectively.

Article 11 refers to another extremely important political right, namely the 'freedom

of assembly and association'.

"1. Everyone has the right to freedom of peaceful assembly and to freedom of

association with others, including the right to form and to join trade unions for

the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such

as are prescribed by law and are necessary in ademocratic society in the interests

of national security or public safety, for the prevention of disorder or crime, for

the protection of health or morals or for the protection of the rights and freedoms

of others.  is article shall not prevent the imposition of lawful restrictions on

the exercise of these rights by members of the armed forces, of the police or of the

administration of the State."

3. European protection of human rights

According to the jurisprudence of the European Court of Human Rights, the

exceptions set out in Article 11 are, where political parties are concerned, to be construed

strictly; only convincing and compelling reasons can justify restrictions on such parties'

freedom of association. In determining whether anecessity within the meaning of

Article 11 § 2 exists, the Contracting States have only alimited margin of appreciation,

which goes hand in hand with rigorous European supervision embracing both the law

and the decisions applying it, including those given by independent courts.  e Court

has already held that such scrutiny was necessary in acase concerning aMember of

Parliament who had been convicted of pro ering insults (see the Castells judgment

cited above, pp. 22–23, § 42); such scrutiny is all the more necessary where an entire

political party is dissolved and its leaders banned from carrying on any similar activity

in the future. San Marino and Andorra made reservations to article 11 in which they

noti ed the Secretary-General about the special status and situation of trade unions in

their domestic legislations. In addition, Spain wishes to limit the scope of application of

article 11 to certain professions such as judges, law o cers, members of the military etc.

Article 13 of the ECHR regulates the right to an e ective remedy:

"Everyone whose rights and freedoms as set forth in this Convention are violated

shall have an e ective remedy before anational authority notwithstanding that

the violation has been committed by persons acting in an o cial capacity."

 e European Court of Human Rights clari ed the scope of article 13 very soon

in interpreting as it can be invoked without the infringement of another human right,

too. Monaco made areservation to this article also, in which it stated the person of

the prince is sacrosanct and he or she cannot be the subject alegal proceeding at all.

Article 14 of the ECHR contains the so-called anti-discrimination clause of the

Convention:

" e enjoyment of the rights and freedoms set forth in this Convention shall be

secured without discrimination on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social origin, association with

anational minority, property, birth or other status."

In its relevant case law the European Court of Human Rights clari ed, article 14

invoked by in conjunction together with aparticular human right of ECHR does not

prohibit every kind of distinction except among people being in the same situation.

Di erence in treatment is considered to be discriminatory, if it cannot objectively

and reasonably be justi ed and it is not aiming at a legitimate purpose, or there is

no justi able proportionality between the means employed and the aim sought to

be achieved.  is argument is being deducted from the jurisprudence and traditions

of democratic European states. However, the enumeration of the anti-discrimination

clause is not exhaustive, and the 'other status' category is broad enough to cover every

kind of distinctions such as on the basis of rank, or place of residence, disability,

International Protection of Human Rights

fatherhood or discrimination based on sexual orientation. Monaco made areservation

to this article which deals with the advantages enjoyed by Monacan citizens in applying

for certain type of jobs and professions.

From certain human rights it is possible to derogate in the event of emergency.

Article 15 of the ECHR de nes the conditions and the framework of such derogations:

"1. In time of war or other public emergency threatening the life of the nation any

High Contracting Party may take measures derogating from its obligations under

this Convention to the extent strictly required by the exigencies of the situation,

provided that such measures are not inconsistent with its other obligations under

international law.

2. No derogation from Article 2, except in respect of deaths resulting from lawful

acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this

provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep

the Secretary General of the Council of Europe fully informed of the measures

which it has taken and the reasons therefor. It shall also inform the Secretary

General of the Council of Europe when such measures have ceased to operate and

the provisions of the Convention are again being fully executed."

Interestingly, Andorra and France made reservations even to this article in order to

conciliate their Constitutions with article 15 of the Convention. Besides, only Armenia

and Ireland informed the Secretary-General of the CoE about the derogation of certain

human rights because of astate of emergency so far.

Remaining articles of Section I. of the ECHR are containing principles such as the

'possibility of restricting the political activity of aliens', the 'prohibition of abuse of

rights' and the 'limitation on use of restriction on rights'.

Sixteen plus one (Protocol 14bis) protocols have already been adopted in relation to

the ECHR.  ere are two types of these protocols in practice:

tProtocols amending the ECHR; and

tAdditional (and optional) protocols.

Each protocols to the ECHR amends the system of the Convention in away, but

formally only Protocols amending the ECHR modify the text of the Convention while

supplementary protocols add new human rights to the system of ECHR. A further

di erence between these two types of protocols that to be highlighted is the following.

Protocols amending the ECHR must be rati ed by all States Parties to the Convention,

while in the case of supplementary protocols it is not required for coming into force.

Protocols No.2, No. 3, No. 5, No. 8, No. 9, No. 10, No. 11, No. 14, No. 14bis, No.

15 are such as they amend the ECHR's text including mainly the control mechanism

of the Convention. Protocol 16 is aunique one in the sense that it does not add anew

human right to the ECHR's system, but it allows highest courts and tribunals to request

advisory opinions from the European Court of Human Rights 'on questions of principle

3. European protection of human rights

relating to the interpretation or application of the rights and freedoms de ned in the

Convention or the protocols thereto.' Despite it concerns on the human rights control

mechanism of the ECHR, Protocol 16 is an optional one. Protocols No. 15 and No.

16 are not yet in force. Protocol 10 had never entered into force due to Protocol 11 and

Protocol 9 had been repealed by Protocol 11. Of the supplementary protocols, protocol

No. 1 added the 'right to property', 'right to education', 'right to free elections'; protocol

No. 4 added the 'prohibition of imprisonment for debt', the 'freedom of movement', the

'prohibition of expulsion of nationals', the 'prohibition of collective expulsion of aliens';

protocol No. 7 added 'procedural safeguards relating to expulsion of aliens', the 'right of

appeal in criminal matters', the 'compensation for wrongful conviction', the 'right not to

be tried or punished twice', the 'equality between spouses'; protocol 12. added the ' general

prohibition of discrimination' and Protocol 6 and 13 deals with the abolition of death

penalty.  ese human rights, fundamental freedoms and prohibitions are the additional

articles of ECHR.

3.3  e European Social Charter

 e Council of Europe (CoE) at its origins was  rst of all working on the promotion

of classic liberal rights and the work on elaborating adocument on social rights started

in the late 1950s as aresponse to the growing importance of economic and social issues

in Europe.  e adoption of the European Social Charter in 1961 (signed in Turin on

18 October) was asigni cant step ahead in extending the umbrella of CoE human

rights protection regime.  e Charter has been substantially revised in 1996 and is

gradually replacing the original text. All the 47 member states of the CoE have signed

the original document or any of its revised versions (and 39 member states have rati ed

it). An Additional Protocol to the Charter was concluded in 1988, it extended the list of

rights covered under the Charter. In 1995 another Additional Protocol was signed that

established asystem for collective complaints (it entered into force on 1 July 1998).  e

full revision of the Charter in 1996 updated the previous documents and added some

new rights as well (and entered into force on 1 July 1999). Hereinafter the description

of the Charter refers only to this revised version.

3.3.1 Human rights under the Charter

 e Charter declares alist of 31 "rights and principles" which shall guide the States

Parties in their policies.  ese rights are proclaimed in general terms under Part I of the

Charter, where States Parties declare that they "(…) accept as the aim of their policy, to

be pursued by all appropriate means both national and international in character, the

attainment of conditions in which (…) [these] rights and principles may be e ectively

realised."  e list includes among others, the right to just, safe and healthy conditions of

work, the right to fair remuneration, the right to social security, to organize and bargain

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collectively. It recognized the special rights of children, young people and of employed

women.  e Charter recognized also the right of the family to social, legal and economic

protection, the right of mothers and children to social and economic protection, and

even the right of migrant workers and their families to protection and assistance. Other

rights recognized in the Charter include the right to social and medical assistance, the

right to vocational training, and the right of persons with disabilities to independence,

social integration and participation in the life of the community. It also includes the

right of workers to equal treatment and non-discrimination on the grounds of sex, the

right to be informed and consulted, and the right to take part in the determination

and improvement of the working conditions and environment in their place of

employment. It declares that "every elderly person has the right to social protection"

and o ers guarantees in case of termination of employment or employer insolvency.

As it was seen above, despite the fact that Part I of the Charter speaks about "rights

and principles" these are more policy objectives then e ective rights. Indeed the purpose

of the Charter is to transform them into enforceable rights. To understand better states'

obligations under this instrument, Part II de nes the meaning and elaborates in detail

the "rights and principles" merely listed in Part I. For example, the "right of elderly

people to social protection" is explained under Art. 23 as follows:

"With aview to ensuring the e ective exercise of the right of elderly persons to

social protection, the Parties undertake to adopt or encourage, either directly

or in co-operation with public or private organisations, appropriate measures

designed in particular:

to enable elderly persons to remain full members of society for as long as

possible, by means of:

– adequate resources enabling them to lead adecent life and play an active

part in public, social and cultural life;

– provision of information about services and facilities available for elderly

persons and their opportunities to make use of them;

to enable elderly persons to choose their life-style freely and to lead independent

lives in their familiar surroundings for as long as they wish and are able, by

means of:

– provision of housing suited to their needs and their state of health or of

adequate support for adapting their housing;

– the health care and the services necessitated by their state;

tto guarantee elderly persons living in institutions appropriate support, while

respecting their privacy, and participation in decisions concerning living

conditions in the institution."

 is drafting method was aimed at establishing various types of obligations and to

give states di erent compliance options. Part III of the Charter describes the speci c

undertakings by states. First, by becoming aparty to the Charter, aState undertakes

"to consider Part I of this Charter as adeclaration of the aims which it will pursue by

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all appropriate means…" (Art. A(1)a) Second the State must accept as binding upon

it the undertakings contained in at least six out of nine articles found in Part II.  e

nine provisions are Art. 1. (right to work), Art. 5. (right to organize), Art. 6. (right to

bargain collectively), Art. 7. (the right of children and young persons to protection),

Art. 12. (right to social security), Art. 13 (right to social and medical assistance), Art.

16. (right of the family to social, economic and legal protection), Art. 19. (right of

migrant workers and their families to protection and assistance) and Art. 20, (right to

equal opportunities and equal treatment in matters of employment and occupation

without discrimination on the grounds of sex). As athird element, each State Party

has an obligation to select another speci ed number of rights with which it agrees to

comply (Art. A(1)c).

 is  exible system encourages states to ratify the Charter and gives them ample

room to select among speci c obligations. In this way states do not need to make

complex reservations, and still all States Parties will be bound to guarantee some of the

most basic rights.

 e Charter established a reporting system to monitor the compliance by States

Parties with their undertakings and asystem of collective complaints.

3.3.2  e reporting procedure and the European Committee

of Social Rights (ECSR)

States Parties regularly submit areport indicating how they implement the provisions

of the Charter. Each report concerns some of the accepted provisions of the Charter.

 ese provisions are divided into the following four thematic groups: i) employment,

training and equal opportunities; ii) health, social security and social protection; iii)

labour rights; iv) children, families, migrants.  ey are requested to present areport

on apart of the provisions annually and each provision of the Charter in this way will

be reported once every four years.

 e state reports are examined by the European Committee of Social Rights.  e

ECSR consists of 15 members who are independent experts "of the highest integrity

and recognized competence in international social questions."  ey are elected by the

Committee of Ministers for aterm of six years and their mandate is renewable once.

 e Committee examines the situation in the country concerned and decides

whether or not the situations are in conformity with the Charter. Its "conclusions", are

published every year.

If astate takes no action on aCommittee decision to the e ect that it does not

comply with the Charter, the Committee of Ministers may issue arecommendation

to that State, asking it to change the situation in law or in practice. A Governmental

Committee prepares the work of the Committee of Ministers.  e Governmental

Committee is comprising representatives of the governments of the States Parties to

the Charter, assisted by observers representing European employers' organisations and

trade unions.

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3.3.3 A collective complaints procedure

Under aprotocol opened for signature in 1995, which came into force in 1998,

complaints of violations of the Charter may be submitted to the European Committee

of Social Rights.

In the case of all states that have accepted the procedure the following organisations

are entitled to lodge complaints to the ECSR: European Trade Union Confederation

(ETUC), BusinessEurope (formerly UNICE) and International Organisation of

Employers (IOE). Non-governmental organisations (NGOs) with participative status

with the Council of Europe which are on alist drawn up for this purpose by the

Governmental Committee.

In the case of states which have also agreed to this, even national NGOs may submit

complaints to the Committee.

 e complaint  le must contain the following information:

– the name and contact details of the organisation submitting the complaint;

– proof that the person submitting and signing the complaint is entitled to

represent the organisation lodging the complaint;

– the state against which the complaint is directed;

– an indication of the provisions of the Charter that have allegedly been violated;

– the subject matter of the complaint, i.e. the point(s) in respect of which the

state in question has allegedly failed to comply with the Charter, along with the

relevant arguments, with supporting documents.

 e complaint must be drafted in English or French in the case of above mentioned

international labour organisations and those NGOs having participative status with

the CoE. Other organisations (national NGOs, etc.) may draft their complaints in the

o cial language, or one of the o cial languages, of the state concerned.

 e Committee examines the complaint and, if the formal requirements have been

met, declares it admissible. Once the complaint has been declared admissible, awritten

procedure starts, with an exchange of memorials between the parties.  e Committee

may decide to hold apublic hearing.

 e Committee then takes adecision on the merits of the complaint.  is decision

will be forwarded to the parties concerned and the Committee of Ministers in areport.

 e report is made public within four months after its being forwarded.

Finally, the Committee of Ministers adopts aresolution. If appropriate, it may

recommend that the state concerned take speci c measures to bring the situation into

line with the Charter.

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3.4 Other human rights conventions concluded

in the framework of the Council of Europe

In addition to the Convention for the Protection of Human Rights and Fundamental

Freedoms and its protocols, there are other international treaties being concluded under

the aegis of the Council of Europe as well. 'European Convention for the Prevention

of Torture and Inhuman or Degrading Treatment or Punishment' (hereinafter: ECPT)

and its two protocols are of agreat importance. ECPT was signed in 1987 and all CoE-

members have rati ed it until now. Article 3 of the ECHR regulates the 'prohibition

of torture' principle as follows: 'no one shall be subjected to torture or to inhuman

or degrading treatment or punishment.' ECPT in fact was drafted to promote the

enforcement of article 3 by establishing aspecial monitoring body called the 'European

Committee for the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment' (hereinafter: CPT). CPT is authorized to conduct visits in institutions

where persons are deprived from their liberty to examine the treatment of such persons

and each State is obliged to permit such visits. Members of CPT are chosen from

individuals having speci c knowledge on human rights issues including especially areas

covered by ECPT and the number of members are equal to the number of States Parties

to the Convention. CPT makes reports on its work to the Committee of Ministers each

year. It is important to know, no reservations are allowed to make to the provisions of

ECPT.

For combating against tra cking in human beings, the 'Convention on Action

against Tra cking in Human Beings' was adopted in 2005 of which fourty-two of

the CoE-members are aparty to.  is treaty makes an emphasis on the prevention of

such acts and oblige the contracting parties to pursue this phenomenon by any means.

Finally, the 'Convention on preventing and combating violence against women and

domestic violence' (hereinafter: 'Istanbul Convention') needs to be stressed. Adopted

in 2011, the Istanbul Convention has been rati ed by eleven CoE-members so far.

 e primary aim of this Convention is to e ectively combat against the violence

against women including domestic violence as well, and for achieving this, the Istanbul

Convention launched aspecial monitoring tool called the 'Group of experts on action

against violence against women and domestic violence' or as it is commonly known:

'GREVIO'. GREVIO is – inter alia – authorized to make general recommendations to

the States Parties to the Istanbul Convention on the implementation of it.

3.5  e European Court of Human Rights

 e European Court of Human Rights (hereinafter: ECtHR or the 'Strasbourg Court')

was set up by the ECHR and it started to function in 1959. ECtHR had no exclusive

role in implementing the legal body under the aegis of ECHR until 1998 when Protocol

11 completely revised the control mechanism and abolished the European Commission

of Human Rights. Instead of describing the historical evolution of this system, this

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chapter mainly concentrates on the contemporary legal background of ECtHR. Section

II of ECHR deals with the composition, the structure and the proceedings of the

ECthR.

ECtHR functions on apermanent basis being a permanent international court of

justice primarily responsible for observing the engagements undertaken by the States

Parties to ECHR and its protocols.  e seat of ECtHR is in Strasbourg, France and

that is why the Court is often dubbed informally as the 'Strasbourg Court'.  e Court

may, however, perform its functions elsewhere in the territories of the member States

of the Council of Europe.

3.5.1 Composition of the Strasbourg Court

Composition of the ECtHR is based on the 'one judge per member state'-principle, which

means the number of judges equal to the number of States Parties to the ECHR but it

is not necessary that ajudge elected on behalf of agiven State Party to be the national

of that State Party. San Marino or Liechtenstein sometimes nominates non-nationals

as ECtHR-judges. It is not necessary also for judges to be anational of aEuropean

country. A judge elected once on behalf of Liechtenstein was aCanadian national.  e

Parliamentary Assembly of the Council of Europe elects the judges with respect to each

States Parties to the ECHR by amajority of votes cast from alist of three candidates

(in alphabetical order) nominated by the State Party. In the Court's view, any of the

States Parties may withdraw and replace alist of candidates for the post of judge at the

Court, but only on condition that they do so before the deadline set for submission of

the list to the Parliamentary Assembly. After that date, the High Contracting Parties

will no longer be entitled to withdraw their lists.  e selection of the three candidates

nominated by the given State has to re ect the principles of democratic procedure,

transparency and non-discrimination.

Important to know, in the absence of areal choice among the candidates submitted

by astate party to the Convention, the Assembly rejects lists submitted to it. In addition,

in the absence of afair, transparent and consistent national selection procedure, the

Assembly may reject such lists.

candidates should possess an active knowledge of one o cial language of

the Council of Europe and apassive knowledge of the other, and the o cial

languages of the CoE (and certainly that of the Court) are English and French

('language requirement'); According to the Court's view, even though not

mentioned explicitly, the language requirement 'can be legitimately considered

to  ow implicitly from' the wording of the ECHR;

Gender balance which means that among the tree candidates both sexes should

be represented ('gender requirement'), however the ECthR in one of its

advisory opinions noted, that 'where aState had taken all the necessary and

appropriate steps with aview to ensuring that the list contains acandidate of

the under-represented sex, but without success, and especially where it has

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followed the Assembly's recommendations advocating an open and transparent

procedure involving acall for candidatures, the Assembly may not reject the list

in question on the sole ground that no such candidate features on it.'

when submitting the names of candidates to the Parliamentary Assembly,

States should describe the manner in which they were selected (requirement of

transparency');

 e Parliamentary Assembly urges the governments of member states to set up

appropriate national selection procedures to ensure that the authority and credibility

of the ECtHR are not put at risk by ad hoc and politicized processes in the nomination

of candidates.

 e Parliamentary Assembly worked out amodel curriculum vitae for candidates

seeking election to the European Court of Human Rights. Before electing, each

nominees are being interviewed by the Sub-Committee on the Election of Judges to

the European Court of Human Rights of the Committee on Legal A airs and Human

Rights of the Parliamentary Assembly.

In addition there are other requirements directly stemming from the ECHR:

tJudges should be of high moral character ('moral requirement'); and they must

be holders of alaw degree:

t ey must either possess the quali cations required for appointment to high

judicial o ce ('professional requirement'); or

 ey must be jurisconsults of recognized competence ('professional

requirement').

After entering into force, Protocol 15 will add anew criterion to those enumerated

above, as follows:

Candidates shall be less than 65 years of age at the date by which the list

of three candidates has been requested by the Parliamentary Assembly ('age

requirement'). Besides, there is no age of candidacy (a minimum age for

instance) of any kind to become ajudge of the ECtHR.

After electing them, they sit on the Court in their individual capacity and during

their term of o ce they shall not engage in any activity which is incompatible with

their independence, impartiality or with the demands of afull-time o ce; all questions

arising from the application of this paragraph shall be decided by the Court. According

to the Court's Rules the judges shall not during their term of o ce engage in any

political or administrative activity or any professional activity which is incompatible

with their independence or impartiality or with the demands of afull-time o ce. Each

judge shall declare to the President of the Court any additional activity. In the event of

adisagreement between the President and the judge concerned, any question arising

shall be decided by the Plenary Court.

Judges are elected for anon-renewable term of nine years in accordance with the

amendments of Protocol 14. Terms of o ce of the judges expire automatically when they

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reach the age of 70, albeit this rule will be repealed by Protocol 15. Before taking up o ce,

each elected judge at the  rst sitting of the Plenary Court at which the judge is present

or, in case of need, before the president of the Court, take an oath or make asolemn

declaration.  e judges shall hold o ce until replaced. An elected judge holds o ce

until asuccessor has taken the oath or made the declaration. However, they continue

to deal with such cases as they already have under consideration. Summing up the fact

mentioned before, terms of o ce of ajudge can be ceased due to the following matters:

tBy completing the period of nine years;

tReaching the age of 70 (this rule will be repealed by Protocol 15);

tResignation;

Judges can resign at any time by awritten noti cation forwarded to the president

of the Court, who transmits this noti cation to the Secretary General of the Council

of Europe.

tDeath;

tDismissal from o ce

Any judge may set in motion the procedure for dismissal from o ce.  e plenary

Court must hear the judge intended to be dismissed and by amajority of two-thirds

the plenary Court may dismiss the judge if he or she has ceased to ful l the required

conditions for holding that o ce.

3.5.2 O ce holders, bodies and organs of the ECthR

3.5.2.1 President of the ECtHR

 e president of the ECtHR is elected by the Plenary Court from among the judges of

ECtHR for aonce renewable term of three years by an absolute majority of the elected

judges who are present by asecret ballot.  e President is the supreme o ce holder of

the Court.  e president of the Court has the following functions:

tDirecting the work and the administration of the Court;

tRepresenting the Court;

tContacting with the authorities of the Council of Europe;

tPresiding at the meetings of the Plenary Court;

tPresiding at the meetings of the Grand Chamber;

tPresiding at the meetings of the Panel of Five Judges;

tTaking part in the consideration of cases being heard by Chambers only if he or

she is the judge elected in respect of aContracting Party concerned.

3.5.2.2 Vice-President(s) of the ECtHR

 e two Vice-Presidents are elected by the Plenary Court under the same conditions

and terms as the President of the Court.  e Vice-Presidents of the Court assist the

President of the Court.  ey take the place of the President if the latter is unable to

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carry out his or her duties or the o ce of President is vacant, or at the request of the

President.  ey also act as Presidents of Sections.

3.5.3 Sections of the Court

Sections are administrative entities of the Court which refer to geographical distribution

and the gender balance and also the di erent legal systems of the CoE-members. Each

judges must be amember of aSection.  ere shall be four Sections at least, while

currently there are  ve of them. Sections are set up by the Plenary Court on the motion

of the President of the ECtHR. In, addition of the 'regular' Sections, there is aFiltering

Section composed of the judges are allowed to sit as asingle-judge as well.

3.5.3.1 Presidents of Sections

 e two Vice-Presidents of the Court are ex o cio presidents of Sections and the other

presidents of the Sections are elected by the Plenary Court. Presidents of Sections

preside the Sections and the Chambers and direct the Section's work.  ey are ex o cio

members of the Bureau.

3.5.3.2 Bureau

 e Bureau of the Court is composed of the President and the Vice-Presidents of the

Court and the Presidents of the Sections.  e main task of the Bureau is to assist the

President in carrying out his or hers duty in directing the work and the administration

of the Court. Bureau also coordinates between the Sections and it can forward any

questions to the Plenary Court.

3.5.3.3 Plenary Court

 e Plenary Court is the supreme organ having non-judicial functions of the ECtHR

presided by the President of the Court. Obviously, each judges are members of the

Plenary Court. Functions of the Plenary Court are:

1. Electing the President, one or two Vice-Presidents, the Presidents of the Sections

and the Chambers of the Court, the Registrar and one or more Deputy Registrars;

2. Setting up Sections and Chambers;

3. Adopting the Rules of the Court;

4. Making request to the Committee of Ministers to reduce the number of judges

in Chambers from seven to  ve.

5. Dealing with questions  led by the Bureau.

Sessions of the Plenary Court are convened by the President when it is required.

If atl least the one-third of the judges so request, the President should convene the

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session of the Plenary Court. In addition, at least once ayear the Plenary Court must

be convened for dealing with administrative matters. Quorum of the Plenary Court is

the two-thirds of the elected judges.

3.5.3.4 Registry

 e Court has aRegistry consisted of Section Registries equal to the number of Sections

set up by the Court and of the departments necessary to provide legal and administrative

background to the Court. In fact the Registry is functioning as the o ce of the Court.

Besides, the President of the Court has his or hers own o ce. Mainly lawyers, translators

and technical and administrative sta work at the Registry. Currently, more than six

hundred people work for the Registry. Registry is headed by the Registrar.  e Registry

has alibrary and also an archives.

Registrar and Deputy Registrars

Registrar and the two Deputy Registrars are elected for arenewable term of  ve years

by the Plenary Court from among candidates of ahigh moral character and they must

possess the legal, managerial and linguistic knowledge and experience necessary to carry

out the functions attaching to the posts.  e election process of these o ce-holders is

the same as the process of electing the President or the Vice-Presidents of the Court.

Core functions of the Registrar are:

tOperating the work of the Registry under the authority of the President of the

Court;

tHaving custody of the archives of the Court;

tBeing the channel for communications and noti cations made by or addressed

to the ECtHR.

Non-judicial Rapporteurs

According to the ECHR, when sitting in asingle-judge formation, the ECtHR is

assisted by rapporteurs who function under the authority of the President of the Court.

 ey form part of the Registry.  ese 'non-judicial rapporteurs' are being appointed by

the President of the Court on aproposal by the Registrar. Heads and deputy heads of

the Sections of the Registry ('Section Registrars' and 'Deputy Section Registrars') are ex

o cio acting as non-judicial rapporteurs. Non judicial Rapporteurs are not be confused

with 'Judge Rapporteurs'.

According to the provisions of the ECHR:

"[T]o consider cases brought before it, the Court shall sit in asingle-judge

formation, in committees of three judges, in Chambers of seven judges and in

aGrand Chamber of seventeen judges."

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3.5.3.5 Grand Chamber

Grand Chamber consisted of seventeen judges (and at least three substitute judges)

is the principal judicial organ of the ECtHR. Members of the Bureau (permanent

members) and the judge elected in respect of aState Party (ad hoc member) concerned

are ex o cio members of the Grand Chamber. If aChamber relinquishes its jurisdiction

under certain circumstance in favor to the Grand Chamber in agiven case, the President

of the Chamber concerned become also amember (ad hoc member) of the Grand

Chamber. If aparty refers the case to the Grand Chamber after the judgment of the

Chamber, the Chamber's president become amember of the Grand Chamber (ad hoc

member).  e remaining seats in the Grand Chamber are allocated from case to case

by drawing of lots by the President of the Court and in the presence of the Registrar. In

case of advisory proceedings only the members of the Bureau act as ex o cio members of

the Grand Chamber. If the case is referred to the Grand Chamber by the Committee of

Ministers to decide whether aparticular state ful ls its obligation to enforce ajudgment,

the judges of the Committee or the Chamber that delivered the judgment are also acting

as ex o cio members of the Grand Chamber.

Panel of Five Judges

 e Panel of Five Judges is the body of the Grand Chamber having the function to  lter

cases that referred to the Grand Chamber by parties of that case after the judgment

of the Chambers. As arule, members of the Panel of Five Judges are the President of

the Court, two presidents of Sections designated by rotation and two other judges

designated by rotation.

3.5.3.6 Chambers

Chambers are composed of seven judges and constituted from Sections. President of

the Chambers are the presidents of Sections. In addition the judge elected on behalf

of the state concerned in the procedure is also an ex o cio member of the Chamber.

 e other members of the Chamber are designated by the president of the Section on

arotational basis. Number of members of the Chambers can be decreased from seven to

 ve for a xed period if on the motion of the Plenary Court the Committee of Ministers

of the CoE unanimously decides so.

3.5.3.7 Committees

Committees can be set up within each Chambers for a xed period of twelve months

by rotation among the members of each Section. Total number of committees to be set

up is decided on by the President of the Court.

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3.5.3.8 Single Judges

Single judges are elected judges of the Court who are – if sitting as single judges –

responsible for  ltering the applications on grounds of the admissibility criteria. Single

judges are appointed by the President of the Court and there are some ex o cio single

judges. When sitting as asingle judge, ajudge cannot examine any application against

the State Party in respect of which that judge has been elected.

3.5.3.9 Ad hoc Judges

Ad hoc judges can be nominated by the States Parties in the same manner as 'ordinary'

judges. When an elected judge in respect of State Party concerned is 'unable to sit in

the Chamber, withdraws, or is exempted, or if there is none, the President of the Court

shall choose an ad hoc judge, from alist submitted in advance by the Contracting

Party containing the names of three to  ve persons whom the Contracting Party has

designated as eligible to serve as ad hoc judges for arenewable period of two years.'

3.5.3.10 Common-interest Judges

In case of two or more States Parties have common interest either as applicants or

respondents, the President of the Court may call on them to appoint acommon-interest

judge acting on behalf one of the States Parties concerned. Common-interest judges

are ex o cio members of the judicial formation in which the case of the States Parties

having common interest is to be debated.

3.5.4 Proceedings of the ECtHR

According to the provisions of the ECHR, the ECtHR has jurisdiction to all matters

concerning the interpretation and application of the ECHR and the protocols thereto

which are referred to it. In the question of whether the ECtHR has ajurisdiction or

not, the Court decides.

Procedures of the Court can be initiated by  ling acomplaint at the Registry.  is

means also there is no procedure ex o cio at the ECtHR.  ere are two main types of

procedures of the Court:

tAdversary procedure ('inter partes procedure') or

tAdvisory procedure.

3.5.4.1 Adversary procedure at the ECtHR

Adversary procedure can be initiated either by individuals ('individual application') or

aState Party ('inter-state cases'). While applicants can be both individuals and States

Parties, only States Parties can be respondents in this type of procedure.

3. European protection of human rights

Individual applications

Any individual claiming to be the victim of aviolation by one of the States Parties of

the rights set forth in the ECHR or its protocols may submit an application to the

ECtHR.  e term 'individual' covers any person, non-governmental organization and

group of individuals. States Parties must not hinder in any way the e ective exercise

of this right. Before applying so, individuals should meet with certain preconditions

called the admissibility criteria.

 e Admissibility Criteria

ECtHR rejects any application which it considers inadmissible at any stage of the

proceedings.  e application can be inadmissible on three type of grounds:

tInadmissibility on procedural grounds;

tInadmissibility on grounds relating to the Court's jurisdiction; and

tInadmissibility based on the merits.

Inadmissibility on procedural grounds

 e ECtHR consider an application inadmissible on the following grounds:

tNon-exhaustion of domestic remedies;

According to the generally recognized rules of international law, exhaustion of

domestic remedies in such situations is an obligation stemming from customary rules

that was recognized – inter alia – by the case law of the International Court of Justice

and it was con rmed by other international treaties, too. ECtHR is not an appellate

body of the domestic judiciary but it has only asubsidiary function in this sense.

Primary aim of this admissibility criterion is that the human rights violations should

be remedied at domestic. Lack of e ective and available domestic remedy in agiven

case, the applicant can directly apply for the ECtHR.

tNon-compliance with the time-limit;

 ere is areasonable time-limit in which the victim of the alleged human rights

violation should  le his or hers application to the Court. Accordingly, the complainant

must apply for the Court within aperiod of six months from the date on which the

 nal domestic decision in his or hers case was taken. After entering to force, Protocol

15 will decrease this time-limit to four months. Starting point of the time period runs

from the date on which the applicant and/or his or her representative has su cient

knowledge of the  nal domestic decision. If there is no e ective remedy available the

time-limit runs from the date on which the act complained of took place or the date

on which the applicant was directly a ected by or became aware of such an act or had

knowledge of its adverse e ects.

tAnonymous application;

ECtHR does not deal with any application that is anonymous.

tRedundant application;

International Protection of Human Rights

ECtHR does not deal with any application that is substantially the same as amatter

that has already been examined by the Court. An application is considered as being like

this, where the parties, the complaints and the facts are identical.

tApplication already submitted to another international body;

ECtHR does not deal with any application that has already been submitted to

another procedure of international investigation or settlement and contains no relevant

new information.

tAbuse of the right of application.

 e following facts can be constituted as the abuse of the right of application:

misleading information, use of o ensive language, violation of the obligation to keep

friendly-settlement proceedings con dential; application manifestly vexatious or devoid

of any real purpose; and some other cases.

Inadmissibility on grounds relating to the Court's jurisdiction

 e Court declares inadmissible an application if it is incompatible with the provisions

of the ECHR or its protocols.  is relates to the question of whether the Court has

ajurisdiction to decide, or not.  e following aspects have relevance in connection

with this issue:

tIt is required, the alleged violation of the ECHR or its Protocols to have been

committed by aContracting State or to be in some way attributable to it

('rationae personae');

It is not possible to bring an application against an individual ('rationae

personae');

Applicants must be individuals in the sense of the provisions of the ECHR

('rationae personae');

tApplicant must be able to show that they are victim of the alleged violation

('rationae personae');

tApplications can be brought only against states or international organizations

that are parties to the ECHR or its protocols concerned ('rationae personae');

 e alleged violation had to be taken place within the jurisdiction of the

respondent State or in territory e ectively controlled by it; ('rationae loci');

If the alleged violation was taken place in dependent territory of the respondent

state, it is inevitable the state concerned made adeclaration before the application

was lodged, in which it extended the application of ECHR to the dependent

territory in question; ('rationae loci');

tFirstly, the alleged violation should be occurred after the ECHR or its protocol

concerned entered into force and also after the rati cation of the respondent

state; (rationae temporis')

t e right that was allegedly violated must be protected by the ECHR or its

protocols ('rationae materiae').

3. European protection of human rights

Inadmissibility based on the merits

Inadmissibility of the application can be established in two cases:

t e ECtHR declares inadmissible any individual application if it is manifestly

ill-founded; or

t e applicant has not su ered asigni cant disadvantage.

Proceedings at the Court

 e o cial languages of the ECtHR are the English and the French language. However,

in case of individual applications, all communications between the applicants and the

Court may be carried out in one of the o cial languages of the Council of Europe until

the respondent has been given notice of the application. As arule, after the respondent

latch on to the proceeding the language of the procedure is one of the o cial languages

of the Court. States Parties are represented by agents, who can call for the assistance

of advocates or advisers. Individuals are either by represented or represent themselves

in the initial stages of the proceedings. As arule, individuals must be represented by

advocates authorized to practice in any of the States Parties and resident in the territory

of one of them, or any other person approved by the President of the Chamber after

the respondent had been noti ed about the application.

First of all, asingle judge examines the application on whether it is admissible. If he

or she  nds the application inadmissible based any of the criteria mentioned above, the

ECtHR rejects the applications and the decision on admissibility is  nal. If the single

judge considers the application admissible, he or she forwards it either to aCommittee

or aChamber for further examination. Both the Committee and the Chamber can

consider the application as inadmissible at any stage of the proceedings and reject the

application. Decision on rejecting an application is  nal. If the application is admissible

and it relates to an issue that is already the subject of the well-established case law of

the ECtHR the Committee judge on the merits. One of the Chambers will render

the judgment in any other cases. As arule, the judgments of both the Committees

and the Chambers are  nal. Judgments of Chambers are not  nal, if – under certain

circumstances – the Grand Chamber renders ajudgment.  e Grand Chamber decides

in the most important cases having the possibility to render judgments in the occasions,

as follows:

tRelinquishment of jurisdiction;

Any of the Chambers may relinquish its jurisdiction in favor of the Grand Chamber

in acase pending before it that raises aserious question a ecting the interpretation

of the Convention or its protocols, or where the resolution of aquestion before the

Chamber might have aresult inconsistent with ajudgment previously delivered by the

Court.  e Chamber is not allowed to relinquish its jurisdiction if one of the parties

to the case objects this step. After the Protocol 15 enters into force, the parties to the

case cannot object the relinquishment any more.

tReferral to the Grand Chamber;

International Protection of Human Rights

After the Chamber rendered ajudgment in acase, any party to that case may request

the case be referred to the Grand Chamber within three months from the date of the

judgment if certain conditions occur. A panel of  ve judges of the Grand Chamber

shall accept the request if the case raises aserious question a ecting the interpretation

or application of the Convention or the protocols thereto, or aserious issue of general

importance. If the panel accepts the request, the Grand Chamber shall decide the case

by means of ajudgment.

tDecision on issues whether aState Party refuses to abide by a nal judgment

in acase to which it is aparty.

 is question can be referred to the Grand Chamber by the Committee of Ministers

and by amajority of two-thirds. If the Grand Chamber  nds aviolation of the obligations

of aState Party, it refers the case to the Committee of Ministers for consideration of

the measures to be taken. All these judgments and decisions of the Grand Chamber

are  nal. Final judgments and decisions of any kind are to be published. Reasons must

be given for judgments as well as for decisions of any kind. Any judge may deliver

aseparate opinion if he or she, in whole or in part does not agree with the judgment.

States Parties to the case undertake to abide by the  nal judgment of the Court.

Inter-State cases

According to the provisions of the ECHR, any State Party may refer to the ECtHR any

alleged breach of the provisions of the Convention and its protocols by another State

Party. Chambers have jurisdiction to make decisions in inter-state applications. Inter-

State cases are extremely rare as compared to individual applications. Only seventeen

applications of this kind have been  led so far.

3.5.4.2 Advisory procedure

Similarly to many other international courts or tribunals, the ECtHR is also authorized

to deliver advisory opinions under certain circumstances. Aim of the advisory procedure

is to deal with legal questions concerning the interpretation of the ECHR and its

protocols. Such opinions shall not deal with any question relating to the content or

scope of the concrete human rights de ned in the ECHR and its protocols or with any

other question which the Court or the Committee of Ministers might have to consider

in consequence of any such proceedings as could be instituted in accordance with the

Convention. Only one organ of the Council of Europe is entitled to request an advisory

opinion, namely the Committee of Ministers. Under the relevant provisions of ECHR

the Committee of Ministers may request an advisory opinion by amajority vote of

the representatives entitled to sit on the Committee. Request for an advisory opinion

should indicate fully and precisely the question on which the opinion of the ECtHR

sought and the date on which the Committee of Ministers adopted the decision on

this issue. Besides, the rquest for an advisory opinion should also contain the name and

address of the person appointed by the Committee of Ministers to give the ECtHR any

3. European protection of human rights

explanations which it may require in this case. States Parties are allowed to make written

and oral comments in the advisory proceeding to the question asked by the Committee

of Ministers. It is the duty of the Grand Chamber to decide on the admissibility of

the request and also to deliver the advisory opinion. Contrary to judgments, advisory

opinions have no binding e ect but they are communicated to the Committee of

Ministers. Similarly to judgments, advisory opinions are reasoned as well. Only in three

occasions were the Court called up to deliver an advisory opinion so far, while only two

of them felt within the jurisdiction of the ECtHR. One of the cases was related to the

question of whether the ECHR's criteria for o ce of the judges are exhaustive, while

the other was concerning on the issue whether the list of judges submitted by aState

Party could be revoked or not.

 e system of the advisory procedure will be signi cantly improved by Protocol

16 if it enters into force. Highest courts and tribunals may request advisory opinions

from the Court under the new provisions on questions of principle relating to the

interpretation or application of the rights and freedoms de ned in the Convention or

in the protocols. Possible highest courts and tribunals include only those which were

authorized by doing so by the declaration of States Parties made at the time of singing

or ratifying Protocol 16. In addition, these tribunals and courts are allowed to request

such advisory opinions only in the context of cases pending before them. When sending

the request, courts or tribunals should indicate the reasons for the request and provide

the relevant legal and factual background of the pending case. After checking the request

by the Panel of Five Judges, the Grand Chamber delivers the advisory opinion. Such

advisory opinions are not binding either.

3.5.5 Execution of judgments and decisions of the European Court

of Human Rights

In case of adversary procedures, the execution of the Court's judgments and decisions

becomes aquestion of vital importance.

Under the European Convention of Human Rights (Articles 46 and 39, Paragraph

4), states party have undertaken the obligation to comply with  nal judgments of the

European Court of Human Rights, if it  nds violations of the Convention.  e same

obligation is applicable to the cases, where aCourt decision takes note of friendly

settlement of adispute.

 e execution of decisions and judgments of the Court, and the adoption of the

necessary execution measures needed for that is supervised by the Committee of

Ministers of the Council of Europe.  is is the most important political body of

the Council of Europe, made up of ministerial representatives of the governments of

the 47 member states, representing its whole political community. For this task, it is

assisted by aseparate department, the Department for the Execution of Judgments

of the Court, which operates within the Directorate General of Human Rights and

Rule of Law.

International Protection of Human Rights

While states are under unconditional legal obligation to remedy the violations found

by the Court, they enjoy aconsiderable margin of appreciation regarding the means

they have to apply.  e reason is, that many times the actual cases are so di erent that

it would be nearly impossible to provide for ageneral solution, applicable to each and

every situation.  at is the reason, why the Convention itself does not address explicit

and detailed solutions. Methods of execution of judgments are decided by the state

concerned, but it has to calculate with the strict supervision of the Committee of

Ministers, which generally does not allow states to ignore this obligation of theirs. If

needed, even the Court itself can assist the execution of the judgment, this is the case

in particular with the pilot-judgment procedure, which is to be used in situations of

some major structural problems, resulting in abig number of human rights complaints

against aparticular state.

Depending on the case the Court's judgment was brought on, execution measures

to be taken may be of individual or of general nature.

Individual measures are of utmost important as the primary aim of the execution of

ajudgment is to end the human right violation in the situation and provide remedy

to the maximum possible extent for its negative consequences for the applicant.  e

most often method is the ordering of the payment of any sum by the Court as just

satisfaction or in case of friendly settlement, according to the agreement between the

parties. For the case of alate payment, adefault interest to be paid is ordered by the

Court's practice. However, in alot of cases monetary compensation can not adequately

handle the consequences of aviolation, what's more, they would not help the prevention

of other violations, for this reason, the Committee of Ministers has to make sure that

the states' authorities remedy the violation by any other individual measures capable to

achieve this goal. Even the judgments of the Court themselves may contain additional

recommendations, if it is deemed to be necessary.

Individual measures may be (examples):

treopening of criminal proceedings with aresult or procedural elements found

to be contrary to the Convention;

treopening of any other o cial proceedings with aresult or procedural elements

found to be aviolation of human rights recognised by the Convention;

revocation of expulsion orders that are found to be contrary to the Convention,

for example with which the applicant would be exposed to the risks of torture

or ill-treatment, in the country of destination;

restoration of contacts between children and parents separated either unlawfully

or in amanner or due to aprocedure later found aviolation of the Convention.

General measures may be needed not only to execution judgments, but also to

prevent possible violations of similar nature.  ese can be changes of legislation,

changes in the practice of state authorities or the case law of domestic courts or other

measures. In some cases the interpretation of the domestic constitution may depend

on the Court's decisions, as states' constitutions usually provide for the supremacy of

norms of international law, and legally binding judgments delivered as aresult of an

3. European protection of human rights

adversary procedure are considered to be authoritative interpretations of the provisions

of the Convention, having the same legal binding power. Whatever the solution applied

by the states, e ectiveness of these possible domestic remedies is of utmost importance.

Application of general measures may be considered obligatory by the states in

situations, when it seems obvious from an actual case, that asimilar cases will produce

the same result in front of the Court. Still, in can be seen that sometimes states may tend

to pre-calculate possible consequences of their actions, for example non-application of

general measures, rather taking the risk of more lost cases – especially if the Court's

decision meets considerable resistance from the state's political actors.

In many states domestic authorities are responsible for giving direct e ect to the

Court's judgments and overall practice. On one hand, this is very useful as execution

is not fully subject to the government, rather the (theoretically) independent judiciary.

In these cases, publication and dissemination of the Court's practice (translated and

commented, if necessary) is also needed to ensure proper application and the existence

of e ective domestic remedies.

As mentioned earlier, the Committee of Ministers is responsible for supervision of

the execution of judgments and decisions of the European Court of Human Rights.

Every case is held under supervision right until it gets closed by the required measures,

and a rmed by a nal resolution from the Committee.  is proceeding starts with the

Court's judgments and decisions becoming  nal. At this time, states have to inform

the Committee about the measures they plan to take or have taken, which "action

plan" is later evaluated in an "action report".  e supervision process provides for an

additional very important possibility that serves the interests not only of the applicants,

but the whole community and European system of human rights: the applicants, NGOs

and the National Institutions for the promotion and protection of Human Rights

can submit communications in writing, which my draw the Committee's attention to

possible malpractices or non-compliance of the states.

 e execution of results of advisory procedures is adi erent issue: as these do not lead

to alegally binding decision, this question does not seem to be important. However, it

is important to mention that advisory opinions have avery important role in forming

the Court's own practice, state practice, and with the entering into force of Protocol

16, even the directly the practice of states' domestic courts.

3.6  e European Union and Human Rights

3.6.1 A historical development

When the EU's predecessor, the European Economic Community was founded in 1957,

the protection of human rights was not seen as being apriority of the organization.

 e founding member states of the EEC were also members of the Council of Europe

and they assumed international undertakings on human rights protection under the

European Convention on Human Rights. At the core of integration process within the

International Protection of Human Rights

EEC economic interests prevailed and little attention was paid to the question of human

rights. Besides the existing international standards elaborated within the Council of

Europe, each EEC member state was considered to have asolid constitutional structure

for guaranteeing the protection of human rights, thus this question was considered to

be irrelevant within the EEC. Nonetheless serious concerns emerged for the respect for

fundamental rights in the activities of Community institutions, since these institutions

were supranational in their character and in this way were not bound by the national

constitutional law of any of its member states.  e risk existed that EEC bodies may

violate fundamental rights of individuals guaranteed them under their own domestic

law and under CoE European Convention without there being aremedy against such

violations.

 ese worries have become even more visible after the European Court of Justice

(ECJ) proclaimed the principle of the supremacy of Community law over the domestic

law of member states (Costa v. ENEL Case, 1964).  is doctrine was challenged by

various domestic courts on constitutional basis and as areaction to these concerns the

ECJ held in aseries of decisions that fundamental rights are enshrined in the general

principles of Community law protected by the Court and inspired by the constitutional

traditions of member states (Stauder v. Ulm Case, 1969).  e European Court of

Justice was established in the EEC as ajudicial forum entitled to interpret Community

law and to take decisions in the legal disputes between community institutions and

member states. Individuals and companies were also entitled to submit complaints

at the ECJ against community institutions in disputes related to the application of

community law. Under its legal authority the ECJ could set up the basic principles for

the respect for human rights within the EEC even if special provisions on fundamental

rights were missing for along time in community law.  is caused serious problems in

understanding the speci c content of human rights protection in the EEC.

For the  rst time, the Single European Act (1987) adopted the view of taking

the European Convention as abasis in the EEC as well, and explicitly referred to

the ECHR. In its Preamble it stated that signing states are determined "…to work

together to promote democracy on the basis of the fundamental rights recognized in

the constitutions and laws of the Member States, in the Convention for the Protection

of Human Rights and Fundamental Freedoms and the European Social Charter,

notably freedom, equality and social justice". A big step was taken on this road with

the establishment of the European Union in 1992 by the Maastricht Treaty.  e

Treaty of European Union made human rights an obligation of the Union. Later, the

Treaty of Amsterdam (1999) formally incorporated human rights by requiring that the

"union shall respect fundamental rights, as guaranteed by the European Convention

(…) as general principles of Community law" (at that time Art. 6). Parallel with these

internal developments, the respect for human rights has become – in the so-called

1993 Copenhagen Criteria on membership – one of the political preconditions for any

candidate country's accession to the EU. Still in its external relations, the EU is seen as

apowerful promoter of human rights. Human rights clauses are included in more than

 fty trade or aid agreements stipulated by the EU with foreign states.  e European

3. European protection of human rights

Parliament is also active in this  eld, since 1998 it has issued annual reports on human

rights in the world.  ese reports help determine the EU's bilateral and multilateral

policies with non-member states.

 e Treaty of Amsterdam introduced anew non-discrimination provision in Article

13 EC, which expressly confers legislative competence on the Community to combat

discrimination based on sex, racial or ethnic origin, religion or belief, disability, age,

or sexual orientation. For its part, the ECJ also contributed to the strengthening of

the principle of non-discrimination (among others see Defrene v. Sabena Case 1976;

Mangold v. Helm Case 2005), and it also decided in cases which deal with freedom of

religion, association and expression.  e Treaty of Amsterdam also introduced asanction

mechanism for those member states which do not comply with the fundamental values

of the European Union.

As it is formulated today under Art. 2:

" e Union is founded on the values of respect for human dignity, freedom,

democracy, equality, the rule of law and respect for human rights, including the

rights of persons belonging to minorities.

 ese values are common to the Member States in asociety in which pluralism,

non-discrimination, tolerance, justice, solidarity and equality between women

and men prevail."

According to present Art. 7:

"On areasoned proposal by one third of the Member States, by the European

Parliament or by the European Commission, the Council, acting by amajority of

four  fths of its members after obtaining the consent of the European Parliament,

may determine that there is aclear risk of aserious breach by aMember State of the

values referred to in Article 2. Before making such adetermination, the Council

shall hear the Member State in question and may address recommendations to it,

acting in accordance with the same procedure.  e Council shall regularly verify

that the grounds on which such adetermination was made continue to apply."

As areal sanction under this provision those member states that are found in "serious

and persistent breach" of these values are threatened that

"(…) the Council, acting by aquali ed majority, may decide to suspend certain

of the rights deriving from the application of the Treaties to the Member State

in question, including the voting rights of the representative of the government

of that Member State in the Council."

 e Lisbon Treaty (2007) was innovative in di erent aspects in developing human

rights protection within the EU. First of all, the Treaty proclaims under Art. 6:

International Protection of Human Rights

"(2)  e Union shall accede to the European Convention for the Protection of

Human Rights and Fundamental Freedoms. Such accession shall not a ect the

Union's competences as de ned in the Treaties.

(3) Fundamental rights, as guaranteed by the European Convention for the

Protection of Human Rights and Fundamental Freedoms and as they result

from the constitutional traditions common to the Member States, shall constitute

general principles of the Union's law."

Even if the accession of the EU raises some legal problems – like the relation of

the European Court of Human Rights to the Court of Justice, or the exceptional

participation, representation of the EU in the CoE Committee of Ministers – it is

usually seen as an important step towards auni ed European human rights regime.

Secondly the Treaty incorporated into primary EU law the European Charter of

Fundamental Rights.

3.6.2  e Charter of Fundamental Rights of the European Union

 e Council (representing the governments of member states) decided to elaborate

aCharter of Fundamental Rights in 1999 at its meeting in Köln.  e Charter was

adopted – as alegally non-binding declaration – in 2000 at Nice as ajoint declaration

of the Council, the European Parliament and the European Commission. Later during

the drafting of the European Constitution the Charter was incorporated in the Treaty

as Chapter II of the Constitution. Since the Constitution of the EU was rejected in

France and the Netherlands by referendum, it did not enter into force.  e Lisbon

Treaty replacing the failed Constitution rea rmed that "the Union recognises the rights,

freedoms and principles set out in the Charter of Fundamental Rights of the European

Union (…) which shall have the same legal value as the Treaties" (Art. 6). Nonetheless

the same article also rea rms that "the provisions of the Charter shall not extend in

any way the competences of the Union as de ned in the Treaties."

 e Preamble of the Charter expresses its aim "to strengthen the protection of

fundamental rights in the light of changes in society, social progress and scienti c and

technological developments by making those rights more visible in aCharter" and by

rea rming those rights deriving

"from the constitutional traditions and international obligations common to the

Member States, the Treaty on European Union, the Community Treaties, the

European Convention for the Protection of Human Rights and Fundamental

Freedoms, the Social Charters adopted by the Community and by the Council

of Europe and the case-law of the Court of Justice of the European Communities

and of the European Court of Human Rights."

3. European protection of human rights

 e rights enlisted in the Charter are divided into six categories (chapters): dignity,

freedoms, equality, solidarity, citizens' rights, and justice. Chapters I-III and VI

basically restate the rights enshrined in the ECHR, but in some parts the Charter

goes beyond the Convention guarantees: for example the Charter recognises the right

to conscientious objection to military service (Art. 10(2)) and one may  nd other

rights expressly mentioned in these chapters of the Charter but not incorporated in

the Convention.  ese rights include: aprohibition on tra cking in human beings

(Art. 5(3)); protection of personal data (Art. 8); respect for academic freedom (Art.

13); freedom to conduct abusiness (Art. 16); and rights of the child, elderly and

disabled (Arts. 24-26). It is likely that the most innovative approach of the Charter is

re ected in "Citizens' Rights" under Chapter V.  is chapter o ers abroad catalogue of

political rights and principles of democratic governance: the right to vote and to stand

for o ce in domestic and European Parliament elections (Arts. 39-40); the right to

good administration (Art. 41); the right of access to documents (Art. 42); the right to

petition (Arts. 43-44); and the right to diplomatic and consular protection (Art. 45).

3.6.3  e Fundamental Rights Agency

 e Fundamental Rights Agency (FRA) has been built upon the former European

Monitoring Centre on Racism and Xenophobia (EUMC), established by Council in

1997.  e EUMC's task was to provide the Community and its Member States with

objective, reliable and comparable information and data on racism, xenophobia and

anti-Semitism in the EU.  e FRA was established in 2007 with amore extended

mission.  e FRA is requested to provide the EU institutions and Member States with

independent, evidence-based advice on fundamental rights.  e FRA works as aspecial

agency of the EU and performs the following main tasks:

i) collecting and analysing objective and reliable information and data on the situation

of fundamental rights in the EU;

ii) developing reliable methodology for comparative analysis of the data;

iii) executing and funding research activities and publication of scholar reports on

issues related to the protection of fundamental rights

iv) providing assistance and expertise, writing reports and recommendations upon

request – or on its own initiative – for the European Council, the European

Commission or the European Parliament;

v) communicating and raising rights awareness, establishing good relations with the

civil society in promoting the culture of fundamental rights.

 e FRA maintains particularly close links with the European Commission, the

European Parliament and the Council of the European Union and also with other

international organisations, such as the Council of Europe, the United Nations (UN)

and the Organization for Security and Co-operation in Europe (OSCE). To ful l its

mission it is also important to keep good contacts with governments, civil society

International Protection of Human Rights

organisations, academic institutions, equality bodies and National Human Rights

Institutions (NHRIs).

FRA covers the EU and its 28 Member States. In addition, candidate countries can

participate in the work of the Agency as observers (Turkey, the FYROM – Former

Yugoslav Republic of Macedonia), following adecision by the relevant Association

Council determining the particular nature, extent and manner of their participation in

FRA's work.  e Council may also invite countries that have concluded aStabilisation

and Association Agreement with the EU to participate in FRA.

3.7  e Organisation for Security and Co-operation

in Europe and Human Rights

 e Conference on Security and Co-operation in Europe was created by the Helsinki

Final Act in 1975 by 33 European states, including the Soviet Union, the USA and

Canada as well.  e original mission of the CSCE was to o er apolitical forum for

discussion of security and human rights issues in Europe bridging all European states

independently of their deep ideological divides. After the collapse of the socialist bloc,

the CSCE became in 1994 the Organisation for Security and Co-operation in Europe.

Today the membership of the OSCE has grown to 57 nations, covering much of the

Northern Hemisphere.  e CSCE made signi cant contribution to the extension of

international human rights principles in the socialist countries and this special mission

on strengthening human rights protection has not changed in the past 25 years either.

 e experiences of the Cold War enabled the OSCE to continue to play amajor role

– often in close co-operation with the Council of Europe – in today's Europe and to

in uence human rights policies in many di erent states.

 e Helsinki Final Act is amassive document consisting of four chapters or so-called

"baskets". Human rights issues are dealt with primarily in Basket I that proclaimed the

guiding principles. Among these two deal with human rights: Principle VII (respect

for human right and fundamental freedoms) and Principle VIII (equal rights and self-

determination of peoples). I 1989 the Vienna Concluding Document consolidated

the subject of human rights. It also established amechanism for dealing with non-

observance by states with their human dimension commitments.  e Copenhagen

Document (1990), the Moscow (1991) and Helsinki (1992) Documents also extended

the scope of the Mechanism to make it more e ective. Today this Mechanism consists of

various processes including negotiations, mediation, and fact- nding. OSCE missions

of experts and rapporteurs are assisted by the OSCE O ce for Democratic Institutions

and Human Rights (ODIHR).

 e OSCE catalogue of rights is largely di erent from that of traditional human

rights treaties – like the ICCPR, the IESCR or the European Convention on Human

Rights – in that, besides proclaiming basic individual human rights it also deals with

the rights of minorities, rule of law issues, democratic values, elections, etc.  us OSCE

commitments cover abroad set of democratic and human rights values.

3. European protection of human rights

OSCE undertakings do not have alegally binding character. Member States consider

OSCE documents as non-binding instruments proclaiming political commitments.

 is implies that any Member State violating these commitments will face political but

not legal consequences. Still, even if non-compliance will not have legal implications,

it could have serious political repercussions. Nevertheless OSCE instruments even

without legally binding force proved to be auseful tool for national and international

NGOs seeking to promote the protection of human rights.

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4.1 American system of protection of human rights

4.1.1 Organisation of American States (OAS)

Regional human rights protection system on the American continent has been developed

in the framework of the Organization of American States (OAS).

Its founding document, the Charter of the Organisation of the American States has

been adopted in Bogota in April, 1948. It has entered into force in 1951, and it has been

amended later more times. Major amendments have been later the Protocol of Buenos

Aires (in 1967, entering into force in 1970); the Protocol of Cartagena de Indias (in

1985, entering into force: 1988); the Protocol of Washington (in 1992, entering into

force: 1997) and the Protocol of Mangua (in 1993, entering into force: 1996).

Today all thirty- ve independent states are members of the organisation, some of

them as founding members, while others have gained independency and membership

later, during the sixties and the seventies. Membership has also been in uenced by

political tensions arising on the continent, for example membership of Cuba was

suspended as aresult of pressure by the United States, as aconsequence of the Castro

coup and communist takeover.  e chance for its restoration has been opened by

aresolution of the General Assembly in 2009, partly due to political changes on the

continent after the end of the cold war, namely the weakening of the in uence of the

United States.  is resolution on Cuba (AG/RES. 2438) has terminated the one of

1962, but it has only created the chance to Cuba to get his membership back, it has not

created an automatic return. Cuba has declared numerous times ever since, that it does

not wish to become amember again.  e membership of Honduras has been suspended

between 2009 and 2011, as an objection of member states against the ousting of the

head of state deemed to be legitimate by them. Membership rights of Honduras have

only been restored after democratic elections have been held.

 e main body of the OAS is the General Assembly, which collects ministers of

foreign a airs and responsible for decision making since 1970. It employs simple or

two-third majority voting, and usually has one ordinary session every year. It can adopt

legally binding resolutions or legally not binding declarations.

 e Permanent Council is an executive organ, operated by diplomats delegated by

member states. Its task is to execute decisions of the General Assembly and operation

of the organization.

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4.1.2 Historical development in the framework of the OAS

 e Charter of the OAS, similarly to the UN Charter does not contain much reference

or exact provisions related to human rights. Protection of human rights is mentioned

in Article 3 Paragraph 1, among basic principles of the organization, but apart from

that, it does not contain enumeration of human rights or any guarantee of institutional

system for their protection.

But in the very same conference in Bogota, not only the OAS has been founded,

but also avery important resolution has been adopted at the same time.  e American

Declaration of the Rights and Duties of Man is considered as being the founding

document of today's American human rights system. Similarly to the Universal

Declaration of Human Rights, this resolution has not had direct binding power as

adeclaration, but it can be considered as an authentic interpretation of the OAS Charter

and later its content has also gained recognized customary power.  is very important

document has recognized twenty-seven human rights (both civil and political, and

economic, social and cultural rights), and identi ed ten duties. Although many of its

provisions have been developed and some of those have also been made obsolete by

future development, it still has an enormous e ect.

Unfortunately, right after the adoption of the Declaration, the development has

slowed down.  e American continent had to face similar political and ideological

di erences, which were present in the UN system, and this has not provided for

achance to aquick development (contrary to the Council of Europe at that time).

4.1.3 Institutional development – the Inter-American Commission

on Human Rights

To strengthen the institutional environment of the American protection of human

rights, the OAS Council has created the body called Inter-American Commission on

Human Rights.  ough this was an important step forward, there were some serious

concerns at that time about the fact that this had not happened by an international

treaty, and as aresult, the Commission had to face some problems: its status was weak

and argued by some OAS member states.

Its competences have also been limited, its primary task has been the preparation

of studies and reports. Later the Commission has developed the practice of country

reports based on these: that is being the practice of examining and analyzing agiven

state's human rights performance on aperiodic base. An amendment of the rules of

the Commission in 1965 has made it possible to the body to entertain individual

complaints, but the lack of asound international treaty basis of the operation of the

Commission itself has still posed asigni cant problem.

 is was redressed by the Protocol of Buenos Aires in 1967. It has introduced

numerous amendments to the OAS Charter, its most important results have been

the preparation of ageneral American human rights convention (later becoming the

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4. Regional protection of human rights

American Convention on Human Rights) and the settlement of the status of the

Commission.

4.1.4 American Convention on Human Rights and its protocols

Finally in 1969, the American Convention on Human Rights has been adopted in

San José (entering into force in 1978).  is serves as the basic treaty of the American

human rights system. Twenty-four out of thirty- ve OAS member states are party to

the Convention, but unfortunately there are some important countries missing from

this list. For example the United States or Canada has never rati ed the treaty, and

many smaller states also have not done it. What's more, in 1998 Trinidad and Tobago

has withdrawn from the Convention.

By examining the reasons of some states staying away from it, we can  nd many

reasons, but luckily none of these would indicate a general rejection against the

Convention. For example Canada refuses to ratify the treaty because of its norms

prohibiting abortion, drafted by states with strong catholic roots.  e United States

also  nds aproblem with these provisions, as ratifying the treaty with this interpretation

could result in aserious domestic constitutional problem. While some commentators

argue that the Convention does not impose an absolute prohibition on abortion at all.

 e Convention enumerates  rst generation human rights and obliges states party

to respect those. Next to these rights it also mentions second generation human rights

in one article, but does not provide for detailed rules.

Similarly to other human rights treaties, the Convention allows for states derogating

from its provisions in cases of war, public emergency, or dangers to the state's

independency or security. But this is only possible for areasonable and limited time, and

other member states shall immediately be informed other states party via the secretary

general of the OAS. Additionally, the Convention also sets up acategory of human

rights of "absolute" nature, regarding to which this derogation is not allowed to any

states party.

 ese human rights are: right to juridical personality, embodied in Article 3; right to

life, embodied in Article 4; right to humane treatment, embodied in Article 5; freedom

from slavery, embodied in Article 6; freedom from ex post facto laws, embodied in Article

9; freedom of conscience and religion, embodied in Article 12; rights of the family,

embodied in Article 17; right to aname, embodied in Article 18; rights of the child,

embodied in Article 19; right to nationality, embodied in Article 20; right to participate

in government, embodied in Article 23.  e prohibition of derogation from these rights

extend to all the judicial guarantees essential for the protection of these rights.

 e Convention has later been amended by two additional protocols.  e Additional

Protocol to the American Convention on Human Rights in the Area of Economic,

Social and Cultural Rights (or just "Protocol of San Salvador") has added economic,

social and cultural rights to the catalogue of human rights protected by the Convention.

 e Protocol to the American Convention on Human Rights to Abolish the Death

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Penalty (or "Protocol of Asunción") amends the Convention in connection with the

right to life, and abolishes the death penalty – but this has not become widely accepted

yet, currently only thirteen states party to the Convention has rati ed it.

 e most important result of the Convention is the creation of the Inter-American

Court of Human Rights, which is the highest organ of human rights protection on the

American continent.

4.1.5 American institutions of human rights protection after

the Convention: the Commission and the Court

By the Protocol of Buenos Aires in 1967, the Inter-American Commission of Human

Rights has  nally become an o cial organ of the Organisation of American States.

With this, it has gained inarguable legal basis for its future operation, so the member

states had to accept its existence, even if some of its competences could raise serious

questions to be decided.

 ese questions have been raised around the core element of competences to be

exercised by the Commission respective of various OAS member states.  e adoption

of the American Convention on Human Rights has become areality in the close future,

but it was foreseeable that not all OAS member states will ratify it immediately and

de nitely not in the same time, some of them may not even ratify at all. As aconsequence

of this fact, three possible set of competences have been allocated to the Commission:

1. competences related to every OAS member states;

competences related to OAS members who become party to the American

Convention on Human Rights, thus becoming subject to other proceedings as

well;

3. competences related to OAS members who do not become party to the American

Convention on Human Rights.

 e seat of the Commission is Washington D.C., United States. Its members are not

states but individuals, seven human rights experts who are elected by the OAS General

Assembly from the nominees put forward by OAS member states. Every member

state may nominate three persons, at least one of which must be acitizen of another

member state. Members of the Commission are eligible for re-election once. Elected

members have to act in their individual capacity, independently and has to meet strict

incompatibility criteria.  e Commission acts on behalf of the whole Organisation of

American States.

Tasks of the Commission are complex, they are organized around the general duty

to supervise OAS member states' human rights performance, via complaints by other

states, NGOs or individuals, if needed. It may examine violations of the provisions of

either the American Convention on Human Rights (if the state is aparty to it) or the

Declaration of 1948, if its preconditions are met (for example, domestic remedies have

been exhausted).  e results of its examinations are recommendations of con dential

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4. Regional protection of human rights

nature, which are addressed to the member state a ected, and the publication of

which are the ultimate sanction. Member states may subject themselves to astronger

jurisdiction, in these cases the Commission may examine the complaint on the merits.

If the proceeding leads to no result or any party requests, it may forward the complaint

to the Inter-American Court of Human Rights. Contrary to the European system, there

is no direct complaint procedure, so this is the only way for an individual complaint

to reach the Court.

 e Inter-American Court of Human Rights, the main body responsible for

protection of human rights on the American continent with aseat in San José, the

capital of Costa Rica, has been created by the American Convention on Human Rights.

It has started its operation after the Convention has entered into force in 1979. Its

most important task is to observe states' practice related to the Convention, its most

important tool is that as ajudicial organ, it is capable of adopting legally binding

judgments. It has seven judges, elected by the OAS General Assembly for the term of

six years, and they can be re-elected only once. During their activities they have to act

in their personal capacity, independently and impartially.

Two kind of procedures are possible at the Court:

1. it can examine complaints leading to alegally binding judgment (adjudicatory

function) or

2. give advisory opinions, which are recommendations (advisory function).

 e adjudicatory function of the Court may be exercised only if some conditions

are met. A very important di erence from the European system is that individual

complaints may only reach the Court through the Commission, as introduced

earlier, which means that there is no direct individual complaint procedure yet – the

Commission has to decide to take the case to the Court against the state concerned,

not the individual. Additionally, another di erence is, that the Court may only hear

the case if that state had accepted its contentious jurisdiction by adeclaration.  is

declaration may be given on ablanket basis or only related to aspeci c, individual

case. Until today Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican

Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua,

Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela have consented to the

Court's jurisdiction on apermanent basis.

 e proceeding consists of awritten and an oral phase, the judgment is binding

on the parties. Appeal is not possible, only an interpretation of the judgment may be

requested from the Court within 90 days. Judgments may oblige the state concerned

to pay compensation or even to amend its domestic legal provisions if needed.

 e advisory function of the Court is avery important tool to develop asingle legal

practice related to human rights recognized by the Convention, and other American

human rights treaties. It can be initiated by any OAS agencies or member states (not

only states party to the Convention), and it is interpreted widely by the Court: it can

even extend to questions regarding of member states' domestic legal provisions' or

planned provisions' consistency with the provisions of the Convention.

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Based on an agreement between the Court and Costa Rica, the Inter-American

Institute of Human Rights has been founded in 1980. It is an independent international

scienti c institution, with the aim of the support and development of human rights

education and research, with special attention paid to American matters.

4.1.6 Other OAS human rights conventions

Next to the Convention, more other international human rights law treaties have been

adopted in the framework of the OAS, gradually building up aregional human rights

system of the Americas.

Among the most important ones we  nd the Inter-American Convention to Prevent

and Punish Torture, adopted in 1985, which has followed the UN Torture Convention

(see Chapter 17).  e de nition of torture, obligations of states party is very similar to

the provisions of the UN treaty.  e Convention vests the Inter-American Commission

on Human Rights with the task of observation of practice of states party, which includes

any legislative, judicial, administrative, or other measures they adopt in application of

the Convention.

Two human rights treaties of basic importance has been adopted on the twenty-

fourth regular session of the OAS General Assembly, held in Belem do Para, Brazil,

on September 6, 1994: the Inter-American Convention on Forced Disappearance

of Persons and the Inter-American Convention on the Prevention, Punishment and

Eradication of Violence Against Women.

 e Inter-American Convention on Forced Disappearance of Persons addresses

a human rights problem that has unfortunately been a serious issue through the

history of some American states, which explains its codi cation under these regional

framework.  e Convention quali es forced disappearance acrime similarly to torture

and provides for asimilar set of legal rules being applicable regarding it. So far it has

been rati ed by  fteen OAS member states.

 e Inter-American Convention on the Prevention, Punishment and Eradication

of Violence Against Women, often referred to only as the "Convention of Belem do

Para" addresses "any act or conduct, based on gender, which causes death or physical,

sexual or psychological harm or su ering to women, whether in the public or the private

sphere".  is widely accepted Convention (only Canada and the United States have

failed to ratify it so far) applies the same method as other OAS human rights treaties in

relation to these actions, while additionally, its Article 5 also provides for gender equality

concerning the enjoyment of civil, political, economic, social and cultural rights, and

the full protection of those.

A very speci c and important treaty has been adopted in 1999 by the OAS Assembly,

the Inter-American Convention on the Elimination of All Forms of Discrimination

against Persons with Disabilities.

 e Inter-American Democratic Charter has been adopted by the OAS General

Assembly at its special session held in Lima, Peru, on September 11, 2001.  e states

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4. Regional protection of human rights

party recognise respect for human rights as ageneral obligation and democracy as

aprecondition to it.  e Charter provides for the right to democracy, to rule of law, fair

elections and transparent character of the operation of states. Special attention is being

paid by the Charter to possible joint actions in situations of unconstitutional changes

of governments, to prevent these, election observers or sanctions can be applied.

4.2 African System of Human Rights

4.2.1 Historical development in the framework of the OAU / AU,

AU and the African system

 e Organization of African Unity (hereinafter: the OAU) was established by thirty-two

African states by signing the OAU Charter in 1963 as the  rst regional (continental)

international organization of Africa. OAU was based in Addis-Ababa, Ethiopia and its

primary aim was to serve as aforum for dialogue and cooperation among the African

states and also to foster the decolonization process throughout the continent. Each

African States gained membership in the OAU in line with decolonization, however,

Morocco renounced its membership in 1984 due to the admission of the Sahrawi Arab

Democratic Republic (commonly known as 'Western Sahara') as amember of the

organization. OAU was an international organization of a'traditional type' since its

functions could be sorted to three main areas: representative, executive and administrative

functions. One of its purposes were 'to promote international cooperation, having

due regard to the Charter of the United Nations and the Universal Declaration of

Human Rights'.  e OAU Charter was replaced and the OAU was disbanded by the

Constitutive Act of the African Union (hereinafter: the Constitutive Act) that was

signed in Lomé in 2000 by  fty-three African states.  e Constitutive Act entered into

force ayear later and every African states have amembership in the African Union

(hereinafter: AU), however with the only exception of Morocco.  e structural and

the functional framework of the African Union was based both on 'traditional type'

organizations as the UN and non-traditional organizations such as the European Union.

AU is featured by organizational and functional diversity. One of the objectives of the

AU is 'to promote and protect human and peoples' rights in accordance with the African

Charter on Human and Peoples' Rights and other relevant human rights instruments'

and for achieving this, the AU functions in accordance with the principle of respecting

human rights.

4.2.2  e Banjul Charter and its protocols

Signed in Nairobi, the core human rights instrument of Africa is the African Charter on

Human and People's Rights (hereinafter: Banjul Charter) that was adopted unanimously

by the Assembly of the OAU in 1981 and entered into force in 1986. Each member

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International Protection of Human Rights

of the AU is party to the Banjul Charter with the only exception of South Sudan.

'Convention' would have been the title of these document originally, and by adopting

the term 'charter', the drafters wished to emphasize the signi cance of this instrument.

Unlike European regional human rights treaties, Banjul Charter contains provisions

of unusual and di erent kind.  e preamble refers to Zionism pejoratively for instance

which the signatories undertake to eliminate. One can  nd similar provisions only in

certain UN General Assembly resolutions and in the Arab Charter of Human Rights.

Furthermore, Banjul Charter protects not only individual human rights, but certain

collective rights of peoples and even it regulates the duties of individuals either. Article

1 of the Banjul Charter concerns on the commitments of the States Parties including

the legislative and other measures that the signatories should take to give e ect to the

rights and duties enlisted in the Charter. Certainly, the Banjul Charter contains anon-

discriminatory clause in which besides the regular protected statuses one unusual feature

occurs only such as the 'distinction on fortune'. Banjul Charter contains both civil and

political rights and economic, social and cultural rights and even some 'third generation'

rights that often overlap with certain collective rights as the 'right to development' or

the 'right to general satisfactory environment'.  e  rst and the second generations of

human rights are considered as interrelated and dissociated by the Charter. It is obvious

from the wording of the Banjul Charter, that the drafters and as amatter of course, the

African States prefer men vis-à-vis women instead of being neutral in this sense. Even

though the Charter intends to eliminate expressly the discrimination against women, it

uses arather paternalistic and androcentric approach through the text. Peoples are equal

and for promoting this principle the Banjul Charter covers the following peoples' rights:

tRight to existence;

tRight to self-determination (which is unquestionable and inalienable); relating

to the practice of this right, all peoples

– have the right to the assistance of the States parties to Charter in their

liberation struggle against foreign domination, be it political, economic or

cultural; and all colonized and oppressed peoples

– have the right to free themselves from the bonds of domination by resorting

to any means recognized by the international community.

tRight to freely dispose natural resources and wealth;

Right to the lawful recovery of property as well as to an adequate compensation

in case of spoliation;

tRight to economic, social and cultural development;

tRight to national and international security;

tRight to ageneral satisfactory environment favorable to development.

States have the duty to promote, ensure and safeguard the collective rights enumerated

above.

In addition, the Banjul Charter also have some provisions on the duties of individuals.

In general, individuals have duties towards 'his family and society, the State and other

legally recognized communities and the international community.'

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Accordingly, every individual should:

trespect and consider his fellow beings without discrimination, and to maintain

relations aimed at promoting, safeguarding and reinforcing mutual respect and

tolerance;

preserve the harmonious development of the family and to work for the

cohesion and respect of the family;

trespect his parents at all times, to maintain them in case of need;

tserve his national community by placing his physical and intellectual abilities

at its service;

tNot to compromise the security of the State whose national or resident he is;

preserve and strengthen social and national solidarity, particularly when the

latter is threatened;

tpreserve and strengthen the national independence and the territorial integrity

of his country and to contribute to its defense in accordance with the law;

twork to the best of his abilities and competence, and to pay taxes imposed by

law in the interest of the society;

preserve and strengthen positive African cultural values in his relations with other

members of the society, in the spirit of tolerance, dialogue and consultation and,

in general, to contribute to the promotion of the moral wellbeing of society;

Contribute to the best of his abilities, at all times and at all levels, to the

promotion and achievement of African unity.

4.2.3 Enforcement of African regional human rights treaties

 e African Commission on Human and Peoples' Rights (hereinafter: ACHPR) has

been created to ensure the enforcement and the applicability of the Banjul Charter.

ACPHR is consisted of eleven members of high morality elected by the Assembly of

Heads of States and Governments of the AU for arenewable period of six years. Even

if not being mandatory, legal experience is an advantage for becoming a member of

this Commission. Members of ACHPR must be nationals of States Parties and no

more than one national of each State is allowed to be amember at the same time.  e

most important functions of ACHPR are the interpretation of the Banjul Charter and

the deliberation of complaints submitted to it. Only States Parties, organs of the AU

and any other African international organization may request the interpretation of

the Banjul Charter. As regarding to complaint procedure, the Charter seems to prefer

States that may  le complaints against another State Party if the latter allegedly violated

aprovision of the Charter. Interestingly, it is obligatory to exhaust local remedies – if

any – even in inter-State complaints. However, ACHPR may receive complaints other

than those from States parties (practically from individuals). All such cases the ACHPR

is allowed to decide on the merits and request the respondent State to do or not do

something. ACHPR is seated in Banjul, the Gambia.

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 e Assembly of the Heads of States and Governments of the OAU adopted

aProtocol to the Banjul Charter in 1998 by which the African Court on Human and

Peoples' Rights (hereinafter: the African Court) was created.  e Protocol came into

force in 2004, but only twenty-seven States among the AU members are parties to

it. According to the signatories' goal, the African Court is aiming at complementing

the ACHPR by which it strengthens the African system of protecting human rights.

Unfortunately, it is not easy to access to the African Court by individuals since only

the ACHPR, the applicant or the respondent States of aparticular case, the State Party

whose citizen is avictim of human rights violation, and African Intergovernmental

Organizations are entitled to initiate aprocedure at the African Court. In case of

deciding on the merits, the African Court renders ajudgment that is  nal. Parties to the

case undertake to comply with the judgment.  e African Court composed of eleven

judges whom elected by the Assembly of the AU for arenewable term of six years.  e

seat of the Court is in Arusha, Tanzania. A separate international court, namely the

Court of Justice of the African Union was established by the Constitutive Act of the

AU acouple a years later. To avoid the duplication of courts, aprotocol was signed

under the aegis of the AU in 2008 aiming at the merging of the two courts in question

and establishing the African Court of Justice and Human Rights. However, this latter

protocol has not come into e ect, yet.

4.2.4 Other relevant OAU/AU treaties on human rights

In addition to the Banjul Charter, some other human rights-related international

treaties have also been adopted in the framework of the African regional cooperation

of which mainly two of them need aparticular attention. Firstly, the African Charter on

the Rights and Welfare of the Child that was adopted in 1990.  is Charter provides

athorough protection of the rights of children in Africa and monitoring body, namely

the Committee on the Rights and Welfare of the Child was created as amonitoring

mechanism of this instrument.  e Committee is authorized to receive communications

either from States or individuals in case of violation of its articles. Finally, an additional

protocol, the Protocol on the Rights of Women in Africa to the Banjul Charter

was adopted in 2003 with special emphasis on parental rights and widows' rights.

Unfortunately, the implementation mechanism of this protocol looks not su cient

enough, since nobody is entitled to turn to any of the African intergovernmental judicial

or quasi-judicial bodies when aState Party allegedly violates its provisions.

4.3  e regional mechanism of protecting human rights

in Asia

As it is well known, asingle and comprehensive regional human rights mechanism have

not emerged in Asia so far. Documents of the vast majority of the di erent regional

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4. Regional protection of human rights

and subregional Asian international organizations remain silent on this issue. Only the

Charter of the Shanghai Cooperation Organization (SCO) adopted in 2002 refers to

human rights as one of the main goals and tasks of the cooperation:

"to promote human rights and fundamental freedoms in accordance with the

international obligations of the member States and their national legislation."

However, another subregional forum, the Association of Southeast Asian Nations

(ASEAN) has some achievements on this matter, therefore it seems important to present

brie y the milestones of this organization.

ASEAN was founded by  ve Southeast Asian States, namely Indonesia, Malaysia,

the Philippines, Singapore, and  ailand by signing aDeclaration in Bangkok (ASEAN

Declaration or Bangkok Declaration) in the year of 1967. Further  ve States acceded

the organization since then: Brunei (1984), Vietnam (1995), Laos and Myanmar

(1997), and Cambodia (1999). Papua New Guinea (observer but not submitted

aformal application yet) and Timor-Leste (submitted its application in 2011) can

gain membership in the future.  e headquarters of the ASEAN is located in Jakarta

(Indonesia).  ree States of the East Asian subregion such as China, South Korea

and Japan cooperate the organization within the so-called ASEAN Plus  ree (APT).

Both the ASEAN and the APT have goals mainly relevant to economic,  nancial and

cultural  elds and also to promote regional peace and stability. To achieve these, ASEAN

established aFree Trade Area (AFTA) in 1992 and APT created an Asian Currency Unit

in 2005. ASEAN members strengthened their cooperation in 2007, when they adopted

the ASEAN Charter in Singapore.  e supreme organ of the ASEAN is the Summit

(held at least twice ayear) composed of the heads of states or governments of the

Member States. Besides the ASEAN has other organs: Coordinating Council (comprises

the ministers for foreign a airs), Community Councils, aSecretariat (headed by the

Secretary-General) and other bodies.  e organization wishes to establish the ASEAN

Community by the end of 2015 which will be based on following three pillars:

It was in 1993 when the question of human rights was  rst raised on the agenda

of the organization. ASEAN Member States adopted adeclaration in Vienna on this

issue. One of the purposes of the ASEAN under the ASEAN Charter is to promote

and protect human rights and fundamental freedoms. Cooperation in the ASEAN is

based on the principle of respecting fundamental freedoms, promotion and protection

of human rights and the promotion of social justice. Also in the ASEAN Charter the

Member States decided to establish an ASEAN Human Rights Body which started

to work in 2009 as the ASEAN Intergovernmental Commission on Human Rights

(AICHR). One of the  rst and key task of AICHR was to draft and elaborate an

ASEAN Human Rights Declaration which was  nalized and adopted unanimously in

2012 (hereinafter: Phnom Penh Declaration).  e Phnom Penh Declaration is featured

by abalance of rights and duties in uenced by certain Asian philosophical traditions.

 e Phnom Penh Declaration contains both civil and political rights and economic,

social and cultural rights. Right to life is not absolute in this system since the Phnom

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International Protection of Human Rights

Penh Declaration does not ban capital punishment for instance.  e Phnom Penh

Declarations also recognizes some rights both as an individual and acollective human

right such as the right to peace or the right to development.

AICHR is an advisory body entrusted with promoting human rights but it is not

authorized to receive complaints from States or individuals or even reports from States.

However every individual is allowed to send the AICHR information on human rights

abuses about which the advisory body can get information from the State concerned.

AICHR shall report on its work each year to the ASEAN.

4.4 Arab system of protection of human rights

 e  rst Arab Human Rights Charter has been adopted in the framework of the League

of Arab States in 1994, but it has never entered into force, mostly because of concerns

regarding to some elements of its text and the overall political criticism it has been

drawing.  ese concerns have been so serious that not even one single Arab state has

ever rati ed the Charter, and it had only been signed by Saddam Hussein's Iraq.  e

Charter's text was very political, while it has lacked of any human rights enforcement

mechanism. After its adoption, acontinuous criticism of its de ciencies (by experts,

NGOs etc.) has ensured amomentum, and numerous experts' meetings and conferences

have been organised to pressure Arab governments to amend it.

During 2002 and 2003 the Council of the League of Arab States adopted resolutions

with the aim of "modernizing" the 1994 Charter, with the help of the Arab Standing

Committee on Human Rights. After lengthy consultations with member states,

independent experts and NGOs, the revised Arab Charter was adopted during the 16th

Ordinary Session of the Arab Summit, held on 23 May 2004 in Tunis. It has entered

into force according to Article 49, after the seventh rati cation, in 2008. Currently,

the Charter has been rati ed by thirteen states, namely Algeria, Bahrain, Iraq, Jordan,

Kuwait, Lebanon, Libya, Palestine, Qatar, Saudi Arabia, Syria, the UAE and Yemen.

 e revised Charter still gives reason for debate. For example, the UN High

Commissioner for Human Rights in o ce at that time, Louise Arbour, in 2008 has

expressed concern over several of its provisions, similarly to some states and NGOs

ever since its adoption.

 e Charter protects civil, political, economic, cultural and social rights. States party

undertake the obligation to implement and protect the rights and freedoms recognised

by the Charter. In more than 40 articles it enumerates acatalogue of human rights very

similar to other international human rights documents, on the basis of the principle

non-discrimination, embodied in Article 3.

Similarly to other treaties, the Charter makes it possible to astate party to take

measures derogating from its obligations under the Charter in some cases. But only

in exceptional situations of emergency, which threaten the life of the nation, and

with the condition that the state may only invoke this if it had o cially proclaimed

such an emergency, and these measures must not be inconsistent with their other

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4. Regional protection of human rights

obligations under international law and must not involve any unlawful discrimination.

Additionally, some provisions of the Charter are of absolute nature, from which no

derogation is possible.  ese are for example, the right to life, prohibition of torture

and slavery, right to fair trial and the right to not be imprisoned for being unable to

ful l acontractual obligation.

 e new and important elements of the revised Charter are the con rmation of

equality between men and women, guarantee of children's rights and of handicapped

persons.

But not all of the criticism of the 1994 version have found areassuring answer with

the amended revised Charter. Gender equality, mentioned in the previous paragraph

is vague at best: as Article 3 Paragraph 3 of the Charter provides for this equality

"within the framework of the positive discrimination established in favour of women

by the Islamic Shariah, other divine laws and by applicable laws and legal instruments",

assurance of real equality is uncertain.  e Charter clearly fails to reassure doubts of the

international community, which had been echoed earlier in the objections to Islamic

states' reservations to the CEDAW.

An other serious  aw of the Charter is the still obvious political nature of its text

at some point.  e statement of the Preamble "Rejecting all forms of racism and

Zionism, which constitute aviolation of human rights and a threat to international

peace and security" and of Article 2 Paragraph 3., stating "All forms of racism, zionism,

occupation and foreign domination pose achallenge to human dignity and constitute

afundamental obstacle to the realization of the basic rights of peoples.  ere is aneed to

condemn and endeavour to eliminate all such practices." are both directed against Israel,

which is apolitical element quite unusual in international human rights documents.

Paragraph 4 of the same article, which says "All peoples have the right to resist foreign

occupation." is also adirect referral to the Palestinian-Israeli con ict.

Additionally, the main criticism of the 1994 version unfortunately remains

unresolved, as no e ective enforcement mechanism has been created.  e Arab Human

Rights Committee remains the only body responsible of monitoring states' execution

and compliance. It has seven members, who are elected for four years by the states

party, and then they shall serve in their personal capacity and fully independently and

impartially.  ough the Committee receives periodic reports from states parties, but the

Charter creates no mechanism for accepting any petitions or complaints for violations

of the Charter. And although there were ideas for apossible "Arab Court on Human

Rights", the Charter has not made any steps towards this direction.

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5. International protection of minorities

5.1 Introduction

E orts by non-dominant groups to preserve their cultural, religious or ethnic di erences

emerged with the creation of modern nation-states in the eighteenth and nineteenth

centuries.  e ideal of aunitary nation-state dominated political discussion about

the future of European nations in the 19th-20th century. Especially in this European

context, national homogeneity has become a nal goal for most nation-states. After

World War I the creation of new states in Central Europe referring to the principle

of peoples' right to self-determination lead to the need to address also the problems

of national minorities.  e recognition and protection of minority rights under

international law began with the League of Nations through the adoption of several

"minority treaties".

When the United Nations was set up in 1945 to replace the League of Nations,

the international community largely lost interest in idea of creating anew regime

of international protection of minority rights.  e universal protection of human

rights, the prohibition of discrimination in particular was thought to o er aremedy

for minority rights claims. Nevertheless problems related to minorities did not fade

away and later even the UN gradually developed anumber of norms, procedures and

mechanisms concerned with minorities.

 e promotion and protection of the rights of minorities require particular attention

to be paid to issues such as the recognition of minorities' existence; e orts to guarantee

their rights to non-discrimination and equality; the promotion of multicultural and

intercultural education, nationally and locally; the promotion of their participation in

all aspects of public life; the inclusion of their concerns in development and poverty-

reduction processes; disparities in social indicators such as employment, health and

housing; the situation of women and the special concerns of children belonging to

minorities. Persons belonging to national or ethnic, religious and linguistic minorities

are also often victims of multiple discrimination and they may lack access to, among

other things, adequate housing, land and property, and even anationality. Nevertheless

until the 1990s there have been only afew special instruments relevant for minorities at

international level. Among these for along time Art. 27 of the International Covenant

on Civil and Political Rights (1966) was an outstanding provision in international

treaty law.

From the 1990s parallel to the democratic transition of former socialist countries in

Central and Eastern Europe, ethnic tensions and con icts related to minorities raised

concerns at international level as well. Minorities on other parts of the world are also

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International Protection of Human Rights

often the victims of armed con icts and internal strife. Partly as aresponse to these

challenges several documents have been adopted on the protection of minority rights

within the UN (1992 Declaration – see below), the Council of Europe (1992 Language

Charter, 1995 Framework Convention – see below) and the Organization for Security

and Co-operation in Europe (1990 Copenhagen Document – see below).

5.2 De nition of "minority"

 e discussion on the legal protection of minority rights at an international level,

primarily regards minorities, which distinguish themselves from the majority on

the basis of their "national or ethnic, religious and linguistic" identity (as most UN

documents list minorities).

 e brief overview of terminological problems will show below, that  rst of all

political considerations impede the adoption of auniversal terminology on minorities.

Noting that the de nition of "minority" is surely not asine qua non of the e ective

protection of minorities OSCE High Commissioner on National Minorities Max van

der Stoel stated:

"[t]he existence of aminority is aquestion of fact and not of de nition. [...]

I may not have ade nition of what constitutes aminority, I would dare to say

that I know aminority when I see one."

 e de nition of "minority" is ahighly sensitive issue: the inclusion or exclusion

of speci c groups or individuals from the de nition is acrucial point, as it necessarily

delimits the addressees of speci c policy and legislative instruments. First, one has to face

the conundrum of liberal democratic regimes built on the respect for individual human

rights and fundamental freedoms, guaranteed to all citizens without any distinction.

Second, there is anatural expectation in every legal order to de ne in objective terms

the addressees of speci c legal regulations, and it is atruism that minority protection

ipso facto a ects only apart of the population. To meet both pre-requisites has always

been agreat challenge.

It shall be noted that besides 'minorities' in international documents, other terms

such as 'people' and 'nation' are also used interchangeably, without any clear de nition.

And existing practice in international relations does not always help in identifying the

clear-cut boundaries of these terms and especially the rights and right-holders associated

with them.

 e case with the de nition of 'minority' is very similar, inasmuch as the lack of alegal

de nition o ers in many cases arelatively large margin of discretion to governments in

selecting those minorities to which they want to provide legal protection.

After 1945 the  rst endeavours for a clari cation of the term "minority" have

appeared in the UN Sub-Commission on Prevention of Discrimination and Protection

of Minorities on the basis of amemorandum prepared by the Secretary General in

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5. International protection of minorities

1949 on the De nition and Classi cation of Minorities. Without reaching aconsensus,

within the Sub-Commission various working de nitions were formulated, still today

the best re ecting the classic approaches. According to the de nition provided by

Capotorti as aspecial rapporteur, in 1978 (with regard to Article 27 of the ICCPR),

a'minority' is:

"[a] group numerically inferior to the rest of the population of aState, in anon-

dominant position, whose members – being nationals of the state – possess

ethnic, religious or linguistic characteristics di ering from those of the rest of the

population and show, if only implicitly, asense of solidarity, directed towards

preserving their cultures, traditions, religion or language."

International documents on minority rights protection neither provide ade nition

of minorities nor set up clear-cut preferences on which minorities would be entitled

to international and domestic protection. Recent international political initiatives to

tackle minority problems in the Central and Eastern Europe have expressively focused

on traditional national or ethnic minorities.

5.3 Security concerns and human rights in international

minority protection

From alegal point of view, the actual regime of international minority protection is

arelatively recent development in international human rights law. Particularly relevant

were the adoption of the Universal Declaration of Human Rights (UDHR) in 1948 and

in aEuropean context, the European Convention on Human Rights (ECHR) which

do not provide any speci c provision for minority rights, however the inclusion of the

principle of non-discrimination and equality also at international level could be seen as

avery important instrument also for the protection of the rights of persons belonging

to minorities. Similarly the adoption of the Convention on Genocide or the inclusion

of discrimination based on "national or ethnic origin" in the International Convention

on Racial Discrimination reinforced respectively the right of minorities to existence and

the principle of equality irrespective of belonging to the ethnic or national majority

or minority within the state (on the principle of non-discrimination see also below).

 e post-WWII pattern developed in the  rst place by the United Nations signalled

aperiod of exclusive individual rights approach, and this was re ected also in the

adoption of the International Covenant on Civil and Political Rights (ICCPR) in 1966

which declared for the  rst time in aUN treaty the speci c rights of minorities under

its Art. 27.  ough this provision had alimited scope and was strongly rooted in the

individualistic approach of human rights protection.

 e international protection of minorities started to get more attention only in

the 1990s, when  rst the UN General Assembly adopted adeclaration on the rights

of persons belonging to minorities, and when especially in Europe the rights of

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International Protection of Human Rights

minorities have become acentral issue in international relations. In aEuropean context

international organizations took an active role in addressing minority rights protection

in the 1990s both in the perspective of extending international human rights protection

and in reinforcing international stability and security.  e protection of minority

rights emerged also strongly in asecurity perspective, signed by the adoption of CSCE

Copenhagen Document and other CSCE/OSCE declarations including references to

minorities. On the other hand in their legal protection under international law, the

adoption of the Framework Convention for the Protection of National Minorities

(FCNM) in 1995 and that of the European Charter for Regional or Minority Languages

(Language Charter) in 1992 were the most determining developments, which codi ed

the speci c rights of minorities in di erent areas from linguistic to political rights.  e

FCNM was the  rst international treaty exclusively dedicated to the rights of minorities

under international law as alegally binding document, establishing also asupervisory

mechanism on its implementation.

 e 'new regime' of international minority rights protection, which emerged in

the 1990s however remains deeply embedded in the post-WWII international system

of human rights protection and features some basic characteristics. 1.) In principle it

does not depart from the individualist approach of modern human rights protection;

2.) it builds on the principle of equality and non-discrimination; 3.) minorities are not

acknowledged as political communities, the right to self-determination is not assigned

to them; 4.) the group character of minorities is not, or only, implicitly acknowledged;

5.) the rights of minorities are usually formulated in vague terms, o ering an ample

room for divergent governmental policies and interpretations.

 e concept of international minority rights protection – in arather simplistic

formulation – may be seen as building on two equally powerful arguments: on one

side it is seen as the full extension of human rights to persons belonging to minorities,

while on the other hand from apolitical, security approach it is often conceived as

an appropriate political instrument of con ict-prevention/con ict-resolution. Today

most documents on minority rights – either, legally binding international treaties or

political declarations – adopted after 1989 in aEuropean framework, encompass both

approaches.

5.4 Minority rights and the international protection

of human rights

In broad terms, internationally protected human rights – as embodied in major UN

and CoE documents – have been said to present anumber of basic properties.  ey

are declared to be universal and inherent (they belong to each and every human being

because of the inherent dignity of each and every human being and they are inalienable);

protected on the basis of equality and non-discrimination (di erential treatment has to

be based on proper reasons and justi cations); primarily designed to enable free choices

and individual development; and they are indivisible and interdependent.

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5. International protection of minorities

In this sense not only international legitimacy became closely related to the protection

of human rights in individual states, but also the responsibility of the international

community in promoting and protecting human rights gained apre-eminent role.

International legal instruments grant protection to the right to identity, from which

most of other speci c minority rights can be derived.  e protection from genocide,

apartheid and from discrimination based on ethnic or national origin – which are

also corner-stones of the present international protection of human rights, as they are

declared in the relevant UN documents, mentioned above – all re ect the acceptance

of the right to existence.

5.5 International organisations and the implementation

of minority rights

Under international law, international organisations are by rule formed by states,

consequently the ambiguities characterising the treatment of minorities in general,

and the conceptualisation of minority rights in particular, are necessarily re ected in

the documents and actions adopted by international organisations.

 e fundamental principles of the present international system are normatively based

upon the classic nation-state ideal, as unitary, politically independent and sovereign

entities of international relations.  us, while human rights norms had become fully

internationalised, their implementation and enforcement remained almost completely

national.  e values identi ed in human rights protection are common, but their

realisation primarily belongs to national competence. It implies that despite the strong

internationalisation of human rights protection, in practice the centrality of states has

not been questioned in this  eld.  is is particularly relevant for the international

protection of minority rights. First of all, the establishment of peoples' right to self-

determination, as auniversal human right, often surfaces in debates over minority

claims for any form of political control over aterritory or agroup of citizens (i.e. the

minority community).

As it usually happens, the state cannot necessarily provide an identity neutral

environment for its citizens in exercising their civil and political rights, thus substantial

minority claims (for preserving minority identity) require more than formal equality.

It also implies, that states, and international organisations face achallenge in de ning

identity-sensitive speci c rights, without questioning the historical foundations

of existing nation-states. Ideas on shared sovereignty, multi-level governance, and

autonomy are only marginally present in international documents.

In sum, international documents on minority rights regularly reinforce both aspects

of minority protection: acknowledging that speci c rights of minorities form an integral

part of universal human rights, while on the other hand stressing that the exercise of

minority rights shall contribute to political stability and peace, and shall not in any

way infringe the sovereignty of states. As the CSCE Copenhagen Document (1990)

stated under art. 30. that

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International Protection of Human Rights

"[ e participating states] rea rm that respect for the rights of persons belonging

to national minorities as part of universally recognized human rights is an essential

factor for peace, justice, stability and democracy in the participating States."

But the Document also rea rms under art. 37 that

"None of these commitments may be interpreted as implying any right to

engage in any activity or perform any action in contravention of the purposes

and principles of the Charter of the United Nations, other obligations under

international law or the provisions of the Final Act, including the principle of

territorial integrity of States."

 e duality of political (security) and normative-ideational (human rights)

considerations necessarily poses aquandary to the accommodation of minority claims,

and minority rights always trigger acombined approach.

5.6 Normative Principles in Minority Rights Protection

5.6.1 Non-discrimination and equal rights

 e very basis of the legal status of aminority is the principle of non-discrimination.

Non-discrimination means that the law must not attach any negative consequences to

the fact that an individual belongs to aminority.  e prohibition of discrimination

is indeed afundamental element for the e ective enjoyment of all human rights.

It is adeeply embedded norm in international law on human rights and it's widely

acknowledged also as apre-requisite of the protection of minorities.

Equality in this sense requires abstention from and prevention of discrimination. In

fact equality in dignity requires respect for the self-identi cation of the individual with

her/his group, and hence aright for the community to preserve its identity.

Although, minorities bene t from the principles of equality and non-discrimination,

an important distinction has to be made between the anti-discrimination approach

and minority rights.  e UN Sub-Commission on Prevention of Discrimination and

Protection of Minorities gave useful indication on the matter by explaining the themes

of its mandate:

Prevention of discrimination is the prevention of any action which denies to

individuals or groups of people equality of treatment which they may wish.

2. Protection of minorities is the protection of non-dominant groups which, while

wishing in general for equality of treatment with the majority, wish for ameasure

of di erential treatment in order to preserve basic characteristics which they

possess and which distinguish them from the majority of the population (…)

[if] aminority wishes for assimilation and is debarred, the question is one of

discrimination.

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5. International protection of minorities

So, the prohibition of discrimination is the  rst step or the indispensable basis

for 'real' minority protection policy or legislation, but in itself cannot be asu cient

instrument.

If the principle of non-discrimination is converted from its negative aspect (no

negative consequences) into apositive formula, it says that minority members must

not have fewer, but the same rights (and duties) as any other citizen.

5.6.2 Special rights

As it was seen, non-discrimination and equal rights—even in a minority-centred

approach—do not normally su ce to enable the minority to maintain a distinct

collective identity.  e special features of their identity are – by the very fact of

being di erent - threatened numerically, socially, economically and culturally by the

surrounding majority.  e majority identity - or, as one could put it, the majority

culture - exercises acertain pressure for assimilation, which is all the stronger the more

aminority is integrated into the overall society, the more dispersed its members live and

the more exposed they are to the majority culture and assimilation to it. Maintaining

adistinct minority identity thus entails a' ght' against the pressure of the majority

culture. Special rights serve to equip the minority with the necessary means of defence.

 us, special rights go further than mere equal rights (even in their minority-centred

approach): they give the minority and/or its members rights which are di erent from

those of the majority and which are speci cally addressed to them.  ese special rights

are designed to account for the cultural di erences of the minority.

 e basic forms of special minority rights are individual rights.  e bearer of these

rights is the individual member of the minority community. Indeed speci c minority

rights can be formulated as an identity-sensitive extension of universal human rights,

i.e. there are few special individual human rights that are aimed exclusively at the

protection of minority identity. To acertain extent though, the individual rights of

minority members can create aspace where minority identity can be expressed. In

fact, speci c minority rights, as they are embedded in international documents usually

cover three main areas which are particularly relevant for the preservation of minority

culture and identity: a.) linguistic rights may comprise awide set of private and public

relation and areas where the use of minority languages is acknowledged; b.) the second

group of speci c rights are related to education on minority language; and c.) the third

speci c group of rights can be delimited as covering the right of minorities to e ective

participation in political, economic and social life.  e most important problems in

this regard root in the vague formulation of state obligations which leave asubstantial

margin of discretion for states in shaping their legislation on minority rights. Even the

legally binding treaties re ect afragile consensus on speci c minority rights.

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5.6.3 Individual vs group rights

Furthermore, from aconceptual standpoint, it is also doubtful, whether rights assigned

to persons on an individual basis can ful l the primary goal of minority protection, i.e.

the protection of aspeci c minority culture and identity.

Indeed, many minorities feel the need to be granted rights which address the

minority as agroup.

In fact an additional limitation to the concept of "minority" is that international

documents in most cases acknowledge only the speci c rights of individuals belonging

to minorities, even if their rights can be exercised "in community with other members of

the group," (wording used in Art. 27 of ICCPR) the community as such is not overtly

entitled to these rights.  is legal formulation does not deny the existence of minority

groups as such, but nor does it o er explicit legal protection to the group either.

Existing legal formulations of minority rights under international law are usually

exclusively interpreted in an individualist context.  is was re ected also in the rejection

of CoE Parliamentary Assembly's Recommendation 1201(1993) on the additional

protocol on the rights of national minorities to the European Convention on Human

Rights. Art. 11. of the Recommendation reads as follows: "In the regions where they are in

amajority the persons belonging to anational minority shall have the right to have at their

disposal appropriate local or autonomous authorities or to have aspecial status, matching the

speci c historical and territorial situation and in accordance with the domestic legislation of

the state."  is reference to a"special status" or to "appropriate autonomous authorities"

of minorities was seen by many member states as unacceptably o ering group rights.

 is restrictive interpretation of minority rights re ects indeed the cautious approach

and the fears of many governments that the legal reinforcement of the community-

character of minorities potentially would lead to con ict between majority and minority

populations and this leads us to the more political justi cation of minority rights, i.e.

the concerns of international community to maintain peace and security.

Minorities with access to collective rights would come to enjoy widely assured

and accepted individual rights of persons belonging to minorities. Even though

when collective rights are interpreted as rights conferred to minority institutions -

either private or public - they typically centre on cultural issues.  e establishment,

maintenance and administration of minority schools (perhaps even including the

drafting of teaching plans) are atypical example. However, culture is not necessarily the

only  eld of collective rights. As amatter of fact, states can transfer competences to the

institutions of minority communities on awide range of policy areas from education,

through cultural matters to local territorial governance.

5.6.4  e right to autonomy

In this aspect it is noteworthy to distinguish between the right to autonomy and

other special minority rights.  e right to autonomy has scarcely been addressed at

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the international level. In fact, in minority demands for autonomy, states often see

hidden claims for future secession.  us the question of minority autonomy is often

linked to security concerns and to the interests in maintaining political stability. While

personal autonomy could hardly be seen as providing any basis for territorial claims,

the main problem is seen in the close interrelation perceived existing between the right

to autonomy and peoples' right to self-determination.  e right to self-determination,

as it is formulated under the UN Charter or the 1966 UN Covenants on human rights

 rst and foremost describes the process whereby apeople freely determines its own

political status, which should not necessarily imply the creation of an independent state.

Nevertheless, by o ering speci c competences to the minority community, minority

autonomy - especially territorial autonomy - nourishes in many states political concerns

on questioning the ruling concept of unitary nation-state.

Nonetheless, there are afew – legally non-binding – international documents, which

may seem to accept the right of minorities to autonomy also at an international level.

As amatter of fact, all forms of autonomy (territorial or personal) are dependent on

domestic political developments, but in each case the community itself gains special

institutions for the e ective protection of the rights of the community and the

individuals belonging to that minority group.

5.6.5 A rmative action (positive discrimination)

When talking about minority rights, the term 'a rmative action' or 'positive

discrimination' is also often mentioned.  is, however, does not denote aspecial class

of rights such as the ones discussed above, but rather describes an attitude astate

may take towards its minorities. A rmative action means that the state does not only

tolerate and accept the minority, but actively feels responsible for it and its well-being.

Sometimes this attitude is enshrined in acountry's constitution by pronouncing it as

an objective principle without conferring subjective rights as such. International legal

documents, such as the CoE Language Charter or the FCNM refer to the need of such

abenign approach necessary on behalf of the state in implementing minority rights

in afavourable environment.  is responsibility, be it mandated by the constitution

or not, may be legally codi ed.  is takes place when the granting of special rights to

minority members allots them more rights in fact than majority members legally have.

 e exemption of minority parties from su rage thresholds in the electoral system is

just aform of active care of the state as is the reservation of certain quotas for minority

members in the public service. Most forms of a rmative action, however, take place

outside the legal sphere, they are formulated in speci c political programs and policies

adapted for particular situations, for instance especially in the distribution of public

funds for minority issues or in e orts to teach the spirit of tolerance and acceptance

in state schools.

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5.6.6 Control mechanisms for the implementation of international

standards

One of the main criticisms formulated in regard to the international protection

of minority rights is the lack of an e ective supervisory mechanism sanctioning

governmental violations of minority rights. While individuals have the right to challenge

their states when their human rights are infringed under the ECHR at the European

Court of Human Rights, no such alegal remedy has been established for sanctioning

minority rights violations.

A non-judicial 'model' of supervising the protection of minorities has been

introduced in the Council of Europe both under the Framework Convention and the

Language Charter. Both the monitoring mechanism applied under the FCNM and the

similar procedure of the Language Charter re ect afunctional approach: they have been

purposely set up to review the implementation of aspeci c international instrument,

moreover expert and political bodies involved in the reviewing take both the opinions

of the states and those of minorities interested into consideration and the mechanism

is primarily focusing on implementation .  ese non-judicial procedures, despite the lack

of apowerful sanctioning mechanism, proved to be rather e ective in raising awareness

in international public on the speci c problems of minorities in individual countries.

5.7 International Instruments of Minority Rights Protection

5.7.1  e United Nations

In the recognition of minority rights after the Second World War the UN played

a primary role.  e international community and academic scholars were both

convinced that the pre-war system of minority treaties under the aegis of the League

of Nations failed in adramatic way.  us instead of promoting speci c minority

rights, within the UN the international recognition of universal human rights gained

pre-eminence. Within the context, the prohibition of discrimination was seen as an

appropriate provision for safeguarding minorities as well.  us speci c references to

minorities were omitted from the Universal Declaration of Human Rights (1948) and

the  rst provision relevant for minorities was incorporated in the 1966 International

Covenant on Civil and Political Rights.

Art. 27 of ICCPR reads as follows:

"In those States in which ethnic, religious or linguistic minorities exist, persons

belonging to such minorities shall not be denied the right, in community with the

other members of their group, to enjoy their own culture, to profess and practise

their own religion, or to use their own language."

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5. International protection of minorities

 is provision o ers acautious approach to the recognition of minority rights,

in theory one could have the impression that the expression used in the Article, "in

those states…" gives alarge room of discretion for states to recognise the existence of

minorities on their territory, simply declaring that they are not belonging to "those

states". In asimilar logic, the wording of the Article "shall not be denied the right…"

may suggest that such aright already exists in state legislation and are guaranteed by

the state.  us there may not be any need for special state action in ensuring minority

rights. And in the same way, one may argue that the right of persons belonging to

minorities "to enjoy their own culture, to profess and practise their own religion, or to

use their own language…" does not necessarily require any state action.

 e Human Rights Committee however clari ed in amore constructive way the

meaning of this provision. In its commentary on Art. 27, the Committee argued that the

existence of an ethnic, religious or linguistic minority in aState Party does not depend

on the decision of that State, but shall be judged on objective criteria.  e Committee

also underlined the di erence between the prohibition of discrimination (Art. 26) and

the protection of minority rights and argued that for guaranteeing the latter states shall

take special actions for guaranteeing the protection of minority identities.

On the other hand Art. 27 strengthens the individualistic language of human rights

protection, when it uses the expression of "persons belonging to minorities…" even if

it adds that these rights shall be enjoyed "in community with the other members of the

group…". Commenting on this approach the Human Rights Committee noted that

individuals' right to participate in certain  elds of minority community life may be

limited, but only if such alimitation does not endanger the survival and well-being of

the minority group concerned. In sum, the Committee stressed the positive side of this

provision, underlining the added value of Art. 27 to the principle of non-discrimination

for the protection of minority identities.

For along period of time Art. 27 was the only reference to the rights of minorities

under international law.  e UN General Assembly already in 1948 envisaged the

adoption of aspecial instrument dedicated to the rights of minorities, the resolution

on the Declaration on the Rights of Persons belonging to National or Ethnic, Religious

and Linguistic Minorities was adopted only in 1992.

5.7.1.1 UN Declaration on the Rights of Persons belonging to National or Ethnic,

Religious and Linguistic Minorities

 e Declaration sets essential standards to ensure the rights of persons belonging to

minorities and as such is akey reference for United Nations work. It o ers guidance

to States as they seek to manage diversity and ensure non-discrimination, and for

minorities themselves, as they strive to achieve equality and participation. It is alegally

non-binding document which was adopted by the UN General Assembly in 1992.

 ough it has no legal force under international law, its global approach and its universal

language make it an important reference document on minority rights protection in

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international law.  e Declaration sets out anumber of basic principles, which include

among others the followings:

States must protect the existence of minorities. States must take measures to protect

and promote the rights of minorities and their identity. Minorities should not have to

hide away their cultures, languages and religions. Minorities have the right to participate

fully in every aspect of society. Political participation enables the voices of minorities

to be heard. Minorities can set up associations, clubs or cultural centres to maintain

their cultural or religious life, including educational or religious institutions. Peaceful

contacts of minorities must not be restricted. Members of minorities can exercise their

rights individually or with others. Defending minority rights must not be punished.

States are required to take positive action to help minority cultures  ourish. Minority

language education is akey component of protecting the identity of minorities.

Within the UN system in 2005 the Commission on Human Rights established the

position of an Independent Expert on minority issues.  is position was rede ned

as aUN Special Rapporteur on Minority Issues in 2014.  e mandate of the Special

Rapporteur was de ned by the Human Rights Council in 2014 and according to this

latest mandate, the Special Rapporteur is requested:

"(a) To promote the implementation of the Declaration on the Rights of

Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,

including through consultations with Governments, taking into account existing

international standards and national legislation concerning minorities;

(b) To examine ways and means of overcoming existing obstacles to the full and

e ective realization of the rights of persons belonging to minorities;

O ce of the High Commissioner, at the request of Governments;

(d) To apply agender perspective in his/her work;

(e) To cooperate and coordinate closely, while avoiding duplication, with existing

relevant United Nations bodies, mandates and mechanisms and with regional

organizations;

(f) To take into account the views of and cooperate closely with nongovernmental

organizations on matters pertaining to his/her mandate;

(g) To guide the work of the Forum on Minority Issues, prepare its annual meetings,

to report on its thematic recommendations and to make recommendations

for future thematic subjects, as decided by the Human Rights Council in its

resolution 19/23;

(h) To submit an annual report on his/her activities the Human Rights Council

and to the General Assembly, including recommendations for e ective strategies

for the better implementation of the rights of persons belonging to national or

ethnic, religious and linguistic minorities"

It can be seen that the Rapporteur's main task is to promote the implementation

of the Declaration. In ful lling her task, the Rapporteur may start consultations with

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5. International protection of minorities

UN member states, and based on her/his country visits, may publish country reports

as well, call the attention to eventual violations of minority rights, and issue press

releases. Another important responsibility of the mandate is to guide the work of the

UN Forum on Minority Issues.  e Forum was established by the Human Rights

Council in 2007

"to provide a platform for promoting dialogue and cooperation on issues

pertaining to national or ethnic, religious and linguistic minorities, as well as

thematic contributions and expertise to the work of the Special Rapporteur."

5.7.1.2  e rights of indigenous peoples

It may be debated why to include the rights of indigenous peoples in the overview

of minority rights.  ere is asigni cant distinction between indigenous peoples and

minorities, which is related to the "colonial" past, so indigenous peoples are those

who lived on aterritory before colonization. It allows arather broad interpretation of

colonialism, since even in European context, there are indigenous minorities, like the

Sami in Scandinavian countries. But on the other hand the special rights claimed by

indigenous peoples are close to those of minorities: afundamental element for both

groups is the right to preserve their special identity.

Within the International Labour Organisation in 1989 aspecial convention was

adopted concerning "Indigenous and Tribal Peoples in Independent Countries" (No.

169).  e Convention takes adistinction between indigenous and tribal peoples. It does

not give ade nition of indigenous peoples, but it establishes some criteria for describing

the peoples it aims to protect. In this aspect the following elements can be identi ed for

indigenous peoples: traditional life styles; culture and way of life di erent from the other

segments of the national population; own social organization and political institutions;

and living in historical continuity in acertain area, or before others "invaded" or came

to the area.  e ILO Convention underlines the principle of non-discrimination and

stresses the need to respect the free wishes of indigenous peoples in pursuing their

life-styles. On the other hand the Convention acknowledges the importance of social

integration as well.  e spirit of consultation and participation is the core principle of

the Convention, thus indigenous and tribal peoples shall be consulted or involved in

taking decisions on issues which a ect them.

Within the UN, the General Assembly adopted aDeclaration on the rights of

indigenous peoples in 2007.  e Declaration uses only the expression of "indigenous

peoples" and it does not o er ade nition to that, just stresses the importance of self-

identi cation of peoples.  is Declaration recognises the indigenous peoples' right to

self-determination.  e Declaration establishes auniversal framework of minimum

standards for the survival, dignity, well-being and rights of the world's indigenous

peoples.  e Declaration addresses both individual and collective rights; cultural

rights and identity; rights to education, health, employment, language, and others.

 e document reinforces the principle of non-discrimination as well and promotes the

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e ective participation of indigenous peoples in decision-making, especially in those

issues which directly a ect them.

5.7.2 Council of Europe

5.7.2.1  e European Charter for Regional or Minority Languages

 e European Charter for Regional or Minority Languages was adopted only on 5

November 1992 and entered in force on 1 March 1998. Unlike most documents related

to the protection of minority rights, the Language Charter is not aimed at the protection

of minority communities, its primary goal is the "protection of historical regional and

minority languages of Europe" and it stresses that the "protection and promotion

of regional or minority languages" is an "important contribution to the building of

aEurope based on (…) cultural diversity" (see the Preamble).

 e Charter does not acknowledge individual or collective minority rights,

its fundamental goal is to provide an appropriate framework for the protection of

regional or minority languages.  e explanatory report explains that the ECRML

does not conceive of regional, minority languages and o cial languages "in terms of

competition or antagonism", but it stresses the importance of amulticultural approach

"in which each category of language has its proper place".  us, the terms "regional"

and "minority" in regard to languages were used in the ECRML in reference to less

widespread languages.

 e fundamental concept of the ECRML is that regional or minority languages should

be protected in their cultural functions, in the spirit of amultilingual, multicultural

European reality.  e Language Charter is composed of three main parts: the  rst part

displays general provisions, including basic de nitions. As Art. 1 states: (a) „regional

or minority languages" means languages that are: i) traditionally used within agiven

territory of aState by nationals of that State who form agroup numerically smaller

than the rest of the State's population; and ii) di erent from the o cial language(s) of

that State; it does not include either dialects of the o cial language(s) of the State or

the languages of migrants;

(b) "territory in which the regional or minority language is used" means the

geographical area in which the said language is the mode of expression of anumber

of people justifying the adoption of the various protective and promotional measures

provided for in this Charter;

di er from the language or languages used by the rest of the State's population but

which, although traditionally used within the territory of the State, cannot be identi ed

with aparticular area thereof."

Part II of the Language Charter enlists under the title "objectives and principles"

general obligations, binding all signatory states. While the third part of the Charter

o ers concrete provisions for di erent activities of the use of language, providing for

each activity di erent levels of commitments.

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It should be stressed that the Charter explicitly excludes the languages of migrants.

 e  rst part of the Charter (under Art. 2) requires each state party to specify in the

rati cation instrument all the languages on its territory which come under the de nition

of Art. 1, as regional or minority languages. But this selection is not exclusively based

on the discretion of states; in essence, this is aquestion of fact.

 e objectives and principles enshrined in Part II cover awide area of application.

 e basic principles are among others: elimination of discrimination; promotion of

respect and understanding between linguistic groups; recognition of the languages as

an expression of cultural richness; respect for the geographical area of each regional

or minority language (the ECRML is against devising administrative divisions which

would constitute an obstacle to the survival of the languages); the need for positive action

for the bene t of these languages; ensuring the teaching and study of these languages;

relations between groups speaking aregional or minority language; establishment of

bodies to represent the interests of regional or minority languages (see e.g. Art. 7.).

Probably the most important part of the Language Charter is its third part, however

these obligations are open to states party's discretional commitments, inasmuch it o ers

amenu á la carte for states, i.e. within limited boundaries states party can choose freely

among the di erent levels of obligations at the time of signing the Charter. Usually

states attach to the Charter aseparate protocol in which they enlist those languages

which they acknowledge as falling under the provisions of the Charter and the speci c

provisions which they take as legal obligations under the third part of the Language

Charter.

Part III covers most of the relevant areas of minority language use: education (Art.

8.); judicial authorities (Art. 9.); administrative authorities and public services (Art.

10); media (Art. 11); cultural activities and facilities (Art. 12); economic and social life

(Art. 13); transfrontier exchanges (Art. 14). In all these areas the Charter provisions

cover awide range of commitments among which each state party can select those

which itself acknowledges as legal obligations towards minority languages recognised

on the state's territory.

 e Charter requires states to submit regular reports on the implementation of Part

II and Part III, the  rst time within the year following entry into force for the state,

and after that at each third year. State parties shall make their reports public; and

the examination of the reports is delegated to acommittee of independent experts.

On the basis of country reports and information, the experts prepare areport for the

Committee of Ministers.  is report shall contain proposals for recommendations by

the Committee of Ministers to one or more state parties.  e Committee of Ministers

take note of the report without changing the content, but it is free to adapt the

suggestions for recommendations.

5.7.2.2  e Framework Convention for the Protection of National Minorities

 e Framework Convention for the Protection of National Minorities (FCNM) is the

most extensive document in the Council of Europe regarding the protection of minority

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rights.  e text was adopted on 10 November 1994 and opened for signature on 1

February 1995.  e FCNM entered in force on 1 February 1998.  e Convention is

usually considered to be the  rst legally binding multilateral treaty on national minority

rights.  e FCNM makes clear that the protection of minority rights is an integral part

of the protection of human rights and as such "falls within the scope of international co-

operation".  e title of the Convention immediately draws attention on its "framework"

character suggesting, that FCNM does not provide strict normative standards, it o ers

aset of goals to be followed by states. Many observers see the title of the Convention as

softening of legal obligations on states party, however from astrictly legal point of view

the FCNM is atreaty under international law and it creates obligations in international

law for states.

Still the explanatory report on the FCNM underlines that the Convention

"contains mostly programme-type provisions setting out objectives which the

parties undertake to pursue" and it also states that "these provisions, which will

not be directly applicable, leave the States concerned ameasure of discretion in

the implementation of the objectives which they have undertaken to achieve, thus

enabling them to take particular circumstances into account."

However, some states already seem to have committed themselves to understand

obligations as rights. In general human rights treaties employ di erent mechanisms

for supervising implementation, but the most important issue is that states transpose

adequately the norms and guarantee rights to individuals through amechanism which

is appropriate for the goals of the treaty in question.

Even though, the task of interpreting the FCNM coherently is rather di cult: the

Convention employs di erent quali ers which formulate rather vague state obligations.

Terms, like "promote" (Articles 5 and 12), "recognise" (Articles 8, 9, 10, 11, and 14.),

"respect" (Articles 7, 19, and 20) have to gain areal meanings, and the Committee of

Ministers assisted by the Advisory Committee in monitoring the implementation of

the FCNM have great tasks in that.

 e FCNM contains anon-judicial implementation procedure which is based on

periodic state reporting placed under amixed political and independent expert review.

 e procedure adopted is very similar to that implemented for the revision of the CoE

Language Charter in 1992. States parties to the FCNM are asked to present areport

containing full information on legislative and other measures taken to give e ect to

the principles of the Framework Convention, within one year of the entry into force.

Further reports are requested to be made on aperiodical basis (every  ve years) and

whenever the Committee of Ministers so requests.  e evaluation of the reports  led

by states is evaluated by the Committee of Ministers, which is assisted in this work by

an Advisory Committee (composed by independent experts).  e Advisory Committee

adopts an opinion, upon which the Committee of Ministers elaborates its decision on

the implementation of the FCNM in individual countries.

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5.7.3 OSCE and minority rights

 e Organisation for Security and Co-operation in Europe (OSCE; before 1994

Conference for Security and Co-operation in Europe – CSCE) adopted only political

– i.e. legally non-binding – documents on minority rights. In 1975 the Helsinki Final

Act in alimited approach already addressed minority issues, but the real turn in the

OSCE's activities in this  eld was the result of democratic transition in Central and

Eastern Europe.

5.7.3.1  e Copenhagen Document

 e so-called human dimension was reinforced under the Copenhagen Document

(1990) which for the  rst time included adetailed list of minority rights. Chapter IV of

the Copenhagen Document is dedicated exclusively to minority rights. It o ers detailed

provisions on the protection of national minorities: it recognises the right of persons

belonging to minorities for afree choice of identity, their linguistic, cultural rights,

acknowledges the right to keep contacts with minorities' kin-states, etc.  e document

recognises the important role of non-governmental and minority organisations in

promoting the peaceful co-existence of minority and majority populations. Paragraph

33 requires states to create conditions for the promotion of minority identities.

Furthermore the document stresses the importance of prohibiting discrimination,

hatred, xenophobia and anti-Semitism as well (para. 40)

 e Copenhagen Document is considered to be amilestone in the international

recognition of minority rights, in later years it was an important point of reference for

the elaboration of detailed standards on minority rights within the Council of Europe

as well, especially for the adoption of the Framework Convention for the Protection

of National Minorities.

5.7.3.2 OSCE High Commissioner on National Minorities

 e Conference for Security and Co-operation in Europe (CSCE; now the Organization

for Security and Co-operation in Europe – OSCE) decided to establish the post of High

Commissioner on National Minorities (HCNM) in 1992 to be an instrument of con ict

prevention at the earliest possible stage in regard to tensions involving national minority

issues. Mr. Van der Stoel was followed in the position from 2001 by Rolf Ekéus of

Sweden, from 5 July 2007 who was succeeded by Ambassador Knut Vollebaek, aformer

Foreign Minister of Norway, as the High Commissioner on National Minorities. After

his mandate ended in 2013 Astrid  ors of Finland was appointed by the OSCE as

the new High Commissioner.

 e High Commissioner's function is to identify and seek early resolution of

ethnic tensions that might endanger peace, stability or friendly relations between the

participating States of the OSCE.  e mandate describes the HCNM as "an instrument

of con ict prevention at the earliest possible stage."

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 e successive High Commissioners have employed an approach that can be

characterized in three words: impartiality, con dentiality and co-operation.

 e High Commissioner is not an instrument for the protection of minorities or

asort of international ombudsman who acts on their behalf; he or she is the High

Commissioner on , and not for National Minorities. Adequate protection of the rights

of persons belonging to national minorities contributes greatly towards aState's success

in minimizing ethnic tension that could create acontext for wider con ict.  e High

Commissioner's recommendations to States often focus on such concerns, but they are

by no means restricted to these concerns.  e co-operative and non-coercive nature of

the High Commissioner's involvement is crucial. Durable solutions are only possible

if there is asu cient measure of consent from the parties involved.  e o ce of the

High Commissioner on National Minorities is in  e Hague.

5.7.4 Minorities and the European Union

 e founding principles of European integration within the European Union are still

based on the deep economic ties that helped the creation of acommon market and

acommon currency. Although since the adoption of the Maastricht Treaty (1992)

member states of the EU are increasingly extending the competencies of the Union

to some core political areas, like security and foreign policy and more recently to

the protection of human rights, the role of the EU in these policy areas remains

complementary to the role of the member states. In the  eld of human rights protection

regional international organisations like, the OSCE and the Council of Europe have

been much more active in codi cation than the EU. And this di erence is even more

striking in regard to the protection of minority rights. While the principle of equality and

the prohibition of discrimination has surfaced in EU law as well, one would hardly  nd

any consensus among EU member states regarding the protection of minority rights.

 us it is hard to believe that the member states would ever extend EU competencies

for the protection of minority rights.

 e EU was mainly confronted with minority issues in the context of its Eastern

Enlargement, having witnessed the violent inter-ethnic con icts in the former Yugoslavia.

When the member states set up the conditions of future accessions and formulated it in

the Copenhagen criteria, among others the „respect for and protection of minorities"

was included as aprerequisite for candidate states.  is opened grounds for criticism

as the member states required from candidate states aprecondition what themselves

have never been asked to meet.  e argument of applying „double standards" in this

 eld was later overpassed by the inclusion of areference to the respect for the „rights

of persons belonging to minorities" among the fundamental values of the EU in Art.

2. of the Lisbon Treaty.

Besides the enlargement context, even within EU law there are some elements what

may be relevant to minorities.

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5.7.4.1  e principle of non-discrimination

 e prohibition of discrimination emerged in EU law in regard to the principle of

equality between men and women in the labour market which was already incorporated

in the Treaties of Rome in 1957. Today, under Art. 19 of the Treaty on the Functioning

of the European Union o ers room for taking actions against discrimination under EU

law. As para. 1 of Art. 19 formulates it:

"Without prejudice to the other provisions of the Treaties and within the limits of

the powers conferred by them upon the Union, the Council, acting unanimously

in accordance with a special legislative procedure and after obtaining the

consent of the European Parliament, may take appropriate action to combat

discrimination based on sex, racial or ethnic origin, religion or belief, disability,

age or sexual orientation."

 e Racial Equality Directive (2000/43/EC) is the most important piece of EU

legislation combating racial/ethnic discrimination. It was adopted in 2000 and prohibits

discrimination in the areas of employment, education, social protection (including

social security and healthcare), and access to and the supply of goods and services

including housing.

 e Directive provides the reversion of proof on the alleged perpetrator and requires

the creation of specialised Equality Bodies promoting equal treatment in each Member

State. One of the most important functions of these bodies is to provide victims of

discrimination with assistance in making the legal system more accessible to them.  e

Directive is still today the most important legal instrument a ecting in any ways the

lives of minorities living in EU member states.

5.7.4.2 European Charter of Fundamental Rights

In 2009, when the Lisbon Treaty entered into force, the European Charter of

Fundamental Rights has become part of primary EU law. Art. 21. of the Charter states:

"Any discrimination based on any ground such as sex, race, colour, ethnic or

social origin, genetic features, language, religion or belief, political or any other

opinion, membership of anational minority, property, birth, disability, age or

sexual orientation shall be prohibited."

 is list of prohibited grounds of discrimination is much more extensive than

the formulation used in Art. 19. TFEU, but the Charter does not confer legislative

competencies to the EU institutions, thus the di erence between the two approaches

is clear.  e fact that prohibition of discrimination on the grounds of belonging to

anational minority may gain legal relevance in ahypothetic case before the European

Court of Justice when there may emerge the need to interpret Art. 19 TFEU and the

Charter in acomplementary way.

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Another provision, potentially relevant to minorities in the Charter is Art. 22. which

declares:

„ e Union shall respect cultural, religious and linguistic diversity".

 e declaration of the respect for diversity in the Charter opens the debate over

how diversity shall be interpreted within the EU: is it only the respect of diversity

characterising the member states or it shall be extended to the diversity within member

states. Art. 22 of the Charter does not resolve this debate since it is formulated in

avague and generalising way, nevertheless, minority representatives may claim that

the concept of diversity here shall be interpreted as arecognition of diversity within

member states.

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6. Protection of human rights

in armed con icts

International protection of human rights is important not only in peacetime, but it

gets aspecial relevance during times of armed con icts, which situations are usually

especially dangerous to the ful lment and respect of them.  ese situations are covered

by the provisions of international humanitarian law or the laws of war (with this "classic"

term), the treaty sources of which date back to 1864, the adoption of the  rst Geneva

Convention, regulating and limiting military activities for humanitarian reasons.

 e international norms have made asigni cant advancement during the upcoming

decades, moving from the basic protection of the wounded to acomplex set of body of

international law providing for legal protection of civilian, civilian property, prisoners

of war, creating prohibition to certain type of weapons, means and methods of warfare.

At the  rst half of the twentieth century the development of norms of international

humanitarian law have exceeded the norms of the international human rights regime, as

aconsequence of what we could have seen earlier, that until the revolutionary changes

in the international order brought by the Second World War, states have not considered

the question of human rights to be the subject of international relations. After that the

constant development of international human rights regime parallel to international

humanitarian law has made the question of human rights in armed con ict, and the

duality of the two regimes more and more interesting.

6.1 Introduction to international humanitarian law

 e  elds of international humanitarian law and international human rights law are

two separate bodies of law, but in some cases they can be complementary to each

other.  ey have many common elements: both of them serve for protection, and the

subject of this protection is often the same. Both of the two regimes aim to protect life,

health and dignity of individuals. A big di erence is, that international humanitarian

law applies only in cases of armed con icts, while international human rights law

has to be applied at all times, in peace and in war. Sometimes another interpretation

tends to rise permanently (in the practice and communication of some states): that

international human rights law is only applicable in peacetime, in wartime it is replaced

by international humanitarian law. As of today, this is interpretation is not supported

by the vast majority of commentators, decisions of the International Court of Justice

(see for example the "Wall" case), practice of most of the states and the International

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Committee of the Red Cross, and the texts of human rights treaties and observation

bodies addressed with their monitoring.

As aconclusion, we can say that in case of an armed con ict, norms of international

humanitarian law and of human rights are applicable parallel. However, there are

signi cant di erences. One of those is the fact that international human rights law

allows states to derogate from anumber of human rights in cases of situations of

emergency, while international humanitarian law may not be suspended. We will

analyse this in more details in alater chapter.

States are obliged to respect, ensure and implement the norms of both legal  elds.

 e obligations are similar with humanitarian law: states have to introduce domestic

legislation to implement its obligations from international law, they have to train

military forces to help preventing any violations, and if that happens, they have to

enforce these rules, mainly with bringing to trial the individuals responsible for breaches

of law – this is very similar to obligations of states related to international human rights

law also contains provisions requiring aState to take legislative and other appropriate

measures to implement its rules and punish violations.

6.2 Sources of international humanitarian law

Present system of international humanitarian law is based on the four 1949 Geneva

Conventions.  ese are:

1. Convention (I) for the Amelioration of the Condition of the Wounded and Sick

in Armed Forces in the Field. Geneva, 12 August 1949.

Convention (II) for the Amelioration of the Condition of the Wounded, Sick

and Shipwrecked Members of the Armed Forces at Sea. Geneva, 12 August 1949.

Convention (III) Relative to the Treatment of Prisoners of War. Geneva, 12

August 1949.

Convention (IV) Relative to the Protection of Civilian Persons in Time of

War. Geneva, 12 August 1949.

Today these conventions are universally accepted, with every country in the world

have rati ed them. Additionally, most of their provisions are accepted as binding

customary legal norms.

 e Geneva Conventions of 1949 re ect the newer vision for international human

rights, becoming dominant after the Second World War (presented in more details in

an earlier chapter). For this reason, the Conventions have astrong connection to human

rights and as having ahumanitarian nature, it has not dealt extensively with rules of

warfare. At the time of adoption of the Conventions, these rules have still been based

on the provisions of the fundamentally important "regulations of war on land" included

in the Hague Conventions of 1899 and 1907:

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6. Protection of human rights in armed con icts

Convention (II) with Respect to the Laws and Customs of War on Land and

its annex: Regulations concerning the Laws and Customs of War on Land.  e

Hague, 29 July 1899.

Convention (IV) respecting the Laws and Customs of War on Land and its annex:

Regulations concerning the Laws and Customs of War on Land.  e Hague, 18

October 1907.

Most of the provisions of these regulations have remained to be applicable after

the adoption of the 1949 Geneva Conventions, as they had covered many questions

the Conventions have not.  ey are also widely accepted today as re ecting binding

customary law related to questions not regulated di erently by the Conventions or their

Additional Protocols adopted later.  ese are:

1. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating

to the protection of victims of international armed con icts (Protocol I). Geneva,

8 June 1977.

2. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating

to the protection of victims of non-international armed con icts (Protocol II).

Geneva, 8 June 1977.

Protocol Additional to the Geneva Conventions of 12 August 1949, and

relating to the adoption of an additional distinctive emblem (Protocol III).

Geneva, 8 December 2005.

 ese protocols have provided for some very important rules missing from the

Conventions.  e  rst one is of special importance, as it has re-codi ed the provisions

contained in the Hague regulations and create the new body of law regulating warfare.

 e reason why the Hague regulations have not completely lost their relevance is the

fact, that many states have not rati ed Protocol I (for various possible reasons, many

of which are closely connected to their political or other situations) and because of

this, their rules having customary force are still applicable beyond doubts, which is

recognised by these states as well.

Many of the provisions of the Additional Protocols are also recognised to re ect

customary law, and these are binding on non-ratifying states as well. For example,

provisions of Protocol I prohibiting attacks against the civilian population have

customary power regardless of rati cation.

A series of international treaties has also been adopted during the past details to

govern many additional questions related to waging war: these aim to provide special

protection (for example to cultural objects or the environment) or to prohibit the use of

certain weapons (for example di erent kind of mines, biological and chemical weapons,

blinding laser weapons).  e complete number of international treaties applicable

to situations of war, raises over one hundred. A complete database of international

humanitarian law treaties, compiled by the International Committee of the Red Cross

is available on the internet: http://www.icrc.org/ihl

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As indicated previously many times, international customary law has a special

signi cance with international humanitarian law. Legal norms recognised to have

customary power are binding even to those states who for any reason fail to ratify any

international humanitarian law treaty. For this reason, the International Committee of

the Red Cross has created an additional web-based database of legally binding customary

norms. It is available under: http://www.icrc.org/customary-ihl/eng/docs/home

Compared to the  eld of international humanitarian law, international human rights

law is more complex and it has also developed regional subsystems.  e provisions of

the global legal instruments (the Universal Declaration of Human Rights of 1948, the

International Covenant on Civil and Political Rights, the International Covenant on

Economic, Social and Cultural Rights of 1966, etc.) serve as fundamental norms, while

regional instruments may create di ering or more detailed or stricter human rights

rules. While theoretically possible, the practice of international humanitarian law does

not follow this scheme.

In situations of armed con icts, the human rights obligations of states complement

and reinforce the protections provided by the rules of international humanitarian law.

6.3 Situations of armed con icts – applicability

of IHL norms

While warfare is commonly considered to be astate of armed con ict between two

separate states, today the vast majority of armed con icts do not follow this simple

pattern.  e importance of classi cations of armed con icts is aconsequence of the

fact, that di erent types of armed con icts require the applicability of di erent rules,

and this is very important as this determines the legal norms party to the con ict have

to accept and respect. For example, an international armed con ict is regulated by the

Geneva Conventions, which are applicable entirely, while in anon-international con ict

situation the legal picture can be abit more di cult, in many cases the domestic law of

the state concerned may mean the only applicable set of rules – but even in these cases

with the norms of international human rights law still in the background.

 e existence of an armed con ict triggers the applicability of international

humanitarian law. Without an armed con ict, the norms of international humanitarian

law are not applicable, and domestic law governs the situation.

6.3.1 International armed con icts

An international armed con ict (IAC) means acon ict between states.  e existence

of an armed con ict is usually determined by the fact of intervention of states' armed

forces.  ough there are some di ering opinions on this matter, generally we can

conclude that neither the scope nor the duration of the con ict does not matter related

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6. Protection of human rights in armed con icts

to the question of qualifying the situation.  e existence of aformal declaration of war

is neither needed to the applicability of international humanitarian law.

 e analysis of Common Article 2 of the four Geneva Conventions shows us how

the applicability of international humanitarian law is provided for:

"the present Convention shall apply to all cases of declared war or of any other

armed con ict which may arise between two or more of the High Contracting

Parties, even if the state of war is not recognized by one of them.

 e Convention shall also apply to all cases of partial or total occupation of the

territory of aHigh Contracting Party, even if the said occupation meets with

no armed resistance."

An international armed con ict is regulated by the entire body of the Geneva

Conventions adopted in 1949 and the Additional Protocol I of 1977 in their entirety,

additionally with all other international treaties. Of course, domestic law is always

applicable, and international human rights norms serve as background rules for them.

6.3.2 Non-international armed con icts

Non-international armed con icts (NIAC) are armed con icts not involving or not

touching the territory of more states.  e rules applicable to a non-international

armed con ict are of the Common Article 3 of the 1949 Geneva Conventions, which

originally has created some basic obligations, like all people have to be treated humanely

and the wounded and sick shall be taken care of.  ese rules have been supplemented

by the provisions of Additional Protocol II of 1977, but today most provisions of an

international armed con ict are applicable in anon-international con ict as well, as

aresult of agradual development of customary international law and states' and judicial

practice. Some exceptions exist though: for example the rules regarding combatant

status, prisoner of war status, or occupation are still only applicable in an international

armed con ict.

International human rights law may get more signi cant in anon-international

armed con ict. In these situations the provisions of domestic law are dominant, and

therefore international human rights law may provide for the basic human rights rules.

6.4 Protection of civilians

 e other basic question related to human rights in armed con icts, is the status of

individuals: contrary to international human rights law, international law is building up

categories of persons and provides for di erent protections and rights to them. Based

on this, various human rights-related provisions are created and has to be applied by

states party to an armed con ict.

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International Protection of Human Rights

Protection of civilians is abasic obligation under international humanitarian law.

Geneva Convention IV builds up abody of law generally responsible to this task. It

deals with the protection of aliens in the territory of aparty to the con ict, persons

living in occupied territory, and internees. Its provisions specially focus on especially

vulnerable individuals, like children under  fteen, the elderly, women, pregnant women,

or mothers of children under seven.

6.4.1  e principle of distinction

Principle of distinction is one of the basic principles regarding the conduct of hostilities.

It obligates parties to acon ict to distinguish between those who actively take part in

hostilities and those who do not, or simply said, between combatants and civilians

at all times.  is rule is widely recognized as having customary force in its wider

interpretation, meaning that the prohibition of attack applies to every person who by

the legal de nition could be considered a"combatant", but is recognized to be hors de

combat in agiven situation, and to individuals who are legally "civilian", but only if

they do not take an active part in hostilities.

"Combatants" are those individuals who have the right recognised by international

law (and usually aduty imposed by domestic law) to take part in hostilities. Currently

the circles of individuals belonging to this category is de ned by Article 4 of the  ird

Geneva Convention, when it regulates who shall have prisoner of war status when

captured – and enjoy impunity for their legitimate, though harmful activities, like

killing enemy soldiers. According to this, all members of the armed forces of aparty

to an international con ict are considered to be combatants, except medical and

religious personnel. While civilians accompanying the armed forces are not classical

combatants, but the Geneva Convention provides this status for them, and they have

to accept the fact, that they can legitimately come under attack if acting together with

the armed forces.  e de nition of "armed forces" means individuals who are acting

on behalf of aparty to acon ict and who subordinate themselves to its commands,

and acting in asystem of chain of responsibility. Members of militias and volunteer

corps are also regarded as combatants, if they ful l the conditions prescribed by the

Geneva Convention, that is they are under command of aperson responsible for the

subordinates, they wear adistinctive emblem recognizable from adistance, they carry

arms openly and they have to conduct their operations in accordance with the laws

and customs of war. All of these conditions have to be met, otherwise the combatant

status will not be granted. Combatant status may also be granted exceptionally without

any action of the state in the situation of aso-called levée en masse. It means, that the

inhabitants of aterritory not yet been occupied, on the approach of the enemy forces,

spontaneously, without explicit state order or authorization take up arms to resist the

invading troops without having the needed time – or even the intention – to form

themselves into regular armed forces. In acase like this, such individuals are civilians,

but they are considered to be combatants as long as they carry arms openly and respect

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6. Protection of human rights in armed con icts

the laws and customs of war with their activities.  ey are entitled to prisoner of war

status if captured, but they can be attacked as long as they participate in the levée.

 e category of "civilian" is usually de ned negatively: all individuals not belonging

to the category of combatants, are considered to be civilians. Civilian immunity is

the privilege of persons who are neither members of the armed forces of aparty to

the con ict nor participants in a levée en masse presented earlier, and they enjoy

protection under the principle of distinction.  e obligation of the protection of

civilians is one of the basic rules applicable in armed con icts and it is of utmost

importance related to protection of human rights in these situations. Articles 22 and

25 of the Hague Regulations has formed this rule into an international treaty  rst and

are widely accepted customary norms. It is rea rmed by Article 48 and Articles 51-57

of Additional Protocol I.

 e prohibition applies to direct targeting of civilians, indiscriminate attacks and

any actions whose primary purpose is to spread terror among the civilian population.

 ese prohibited actions are quali ed not only as human rights violations but also are

war crimes.

 is distinction is applied to non-international armed con icts as well, but as in

these type of con icts the "combatant" status is not recognised, we have to apply the

wider interpretation. State practice and professional literature is currently not clear as to

whether members of armed opposition groups are considered to be civilians and enjoy

protection or not.  e common element is the rule that civilian immunity from attack

is binding on parties to the con ict as long as the individuals do not take adirect part

in hostilities. Similarly to the rules applicable in an international armed con ict, in

anon-international armed con ict, the Common Article 3 to the Geneva Conventions

provide for aprohibition to attack civilians, and for aprohibition of acts or threats of

violence whose primary purpose is "to spread terror among the civilian population".

 e prohibition is later rea rmed in Article 13 of Additional Protocol II.

6.4.2 Collateral damage

Collateral (or incidental) damage is an unfortunately common phenomenon of

every situation of armed con icts. We talk about collateral damage when an attack

targeted at military objectives cause civilian casualties or damage to civilian objects.

It occurs especially often, when legitimate military objectives, targets (for example

military equipment, groups of combatants) are situated close to civilians or civilian

objectives.  e reality of warfare lead to international humanitarian law to accept this

phenomenon, but it has provided for rules trying to create protection against it as much

as possible. Attacks that are expected to cause collateral damage are not prohibited per

se, but indiscriminate attacks or attacks leading to the disproportionate loss or damages

are prohibited.

 e provisions contained in Article 57, Paragraph 2 of Additional Protocol I serves

as the basic treaty rule regarding collateral damage. It applies another principle of

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international humanitarian law, the principle of proportionality to set states' obligations.

In case of an armed attack presumably leading to disproportionate collateral damages,

the attacker has to refrain from launching the attack, if already launched, suspend it, or

re-plan it in away that the amount of collateral damage stays proportional.

Ignoring this obligation may result in criminal liability for war crimes. But it is

important to emphasise, that responsibility is not exclusively on the shoulder of the

attacker.  e defending party is also under an obligation to keep civilians away from

war activities. In case of for example positioning military objectives in densely populated

areas can lead to the responsibility of the defender as well.

6.4.3 Use of civilians as shields

A grave violation of international humanitarian law is the use of civilians to shield

military objectives or military operations from attack. Article 28 of Geneva Convention

IV creates ageneral protection for civilians related to this. Article 51, Paragraph 7 of

Additional Protocol I rea rms this prohibition of this action as amethod of warfare.

It is also considered to be awar crime.

6.5 International humanitarian law and the international

human rights law regime

By having alook at norms of international humanitarian law, one can  nd many of

those being of human rights nature, which is not surprising. At the time of codi cation,

most of the rules of humanitarian law have aimed to make legal norms internally

already acknowledged and established compulsory in situations of armed con icts.

State practice for along time has simply been lagging behind in acknowledging these

obligations at the level of international law, especially in cases which have been deemed

to belong to internal a airs.  is process has not necessarily begun at the exact time of

the adoption of today's Geneva Conventions in 1949. Looking back to the time prior

to their adoption –keeping in mind that the protection of human rights was not in

an embryonic phase at best at that time – it is clearly visible that early documents of

international humanitarian law and the laws of war has also served the protection of

certain human rights.

For example the legal norms of warfare adopted in the Hague regulations have

included limitations to warring parties for requisitions from inhabitants of the occupied

territory under strict legal conditions, as well as they have strictly regulated services

that can be demanded from them. Similarly to these provisions, personal belongings

of prisoners of war could not be con scated either. Concluding, these provisions, states

have upheld the possibility to limit the right to private property during periods of

emergency, but the rules set by Hague Regulations have acknowledged the rights to

property and ensured the protection of that even in an armed con ict.

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6. Protection of human rights in armed con icts

Of course neither professional literature, nor state practice is willing to accept an

absolute unity of international humanitarian law and international human rights law,

as this kind of unity does not exist. Nevertheless, it is afact that the core documents

of international humanitarian law and their normative provisions – especially those

embodied in the Geneva Conventions of 1949 and their Additional Protocols adopted

in 1977 – were signi cantly built on the norms of modern human rights law.  e

Geneva Conventions of 1949 – as well as their predecessors – included many regulations

of human rights nature. One can observe such kind of norms of human nature while

examining the four Geneva Conventions, especially the third one, dealing with the

status of prisoners of war, and the fourth one, dealing with protection of civilians.

To some extent, this is logical as these two conventions address situations where the

individual directly meets astate's public power, which is usually dangerous to human

rights, especially if this happens with ahostile state in awartime environment.

 e Geneva Convention III regulates asituation when the individual combatant

gets under the direct power of the enemy state. Some obligations of the state party to

an armed con ict had already been recognised here, which later become human rights

obligations based on international law. Geneva Convention IV gains signi cance in

cases of occupations, which means asituation, when one state gains e ective control

over the territory of the adversary state. In asituation like that the occupying power

directly takes the role of the source of public power over that territory – human rights

provisions of international humanitarian law are of vital importance in this case.  e

Convention provides for awide catalogue of human rights that occupying powers

have to respect – these provisions have later been incorporated to international human

rights treaties.

6.6 Application of derogations in times of armed con icts

As mentioned earlier, international human rights treaties usually provide for the

possibility of states to derogate from their human rights obligations under international

law in cases of emergency situations. Article 4 of the International Covenant for Civil

and Political Rights, Article 15 of the Convention for the Protection of Human Rights

and Fundamental Freedoms creates this possibility, but it can be found in other

documents as well.

One can argue that an armed con ict (either international or non-international)

can be considered to be these situations, as international or internal violence can pose

adanger to the state, and also it is capable of put obstacle to its normal operation.

 is has been surfaced on many analysis and interpretation, for example the UN

Human Rights Committee has recognised it in its General Comment No. 29, which

has examined states of emergency and the applicability of Covenant, especially Article

4 of it.  e European Court of Human Rights has also had to deal with this question:

in its earlier cases it had accepted the application of derogations in certain situations

(see for example the cases Lawless v. Ireland, Application no. 332/57; Ireland v.  e

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International Protection of Human Rights

United Kingdom, Application no. 5310/71; Brannigan and McBride v.  e United

Kingdom, Application no. 14553/89; 14554/89), but these derogations must not be

applied based on an extensive interpretation.

 e fact of the existence of armed con ict may not mean an authorisation of

automatic application of derogations, as the Court's newer practice has clearly pointed

out, for example in cases against the United Kingdom, related to the Iraq war and

occupation of that country (see for example Al-Saadoon and Mufdhi v. the United

Kingdom, Application no. 61498/08 or Al-Jedda v.  e United Kingdom, Application

no. 27021/08), where the Court has not accepted the fact of the armed con ict solely

in itself as areason for the application of derogations.  e restrictive interpretation and

application of the possibility of derogations becomes vital when it comes to "armed

con icts" not of the classical sense, but of political, not always in line with the de nitions

of international law, for example to "war on terror".  e various institutions and bodies

of the Council of Europe have expressed their opinion on this matter.  e Parliamentary

Assembly's resolution 1271, adopted in 2002, under the title "Combating terrorism and

respect for human rights" has clearly re ected the view that counter-terrorism operations

per se do not constitute asituation which could serve as abasis to derogations.  is

has been supported by the opinion of the Commissioner for Human Rights, Alvaro

Gil-Robles, when he had addressed certain aspects of the United Kingdom's derogation

from Article 5 paragraph 1 of the European Convention on Human Rights in 2001.

 is interpretations has been rea rmed by the House of Lords (acting as the supreme

court of the UK at that time) and by the European Court of Human Rights as well

(see in more details: A & others v. Secretary of State for the Home Department [2004];

A and others v. the United Kingdom, Application no. 3455/05).

Even if we accept the possibility of derogations in times of war, some human rights

must be respected under all circumstances.  e right to life, the prohibition of torture

and inhuman punishment or treatment, the prohibition of slavery or servitude, the

principle of legality and non-retroactivity of the law, and the right to freedom of thought,

conscience and religion are all such "core" human rights that cannot be derogated from.

... The Law on the Constitution of the Kingdom of Swaziland (Eswatini) dated July 25, 2005, does not include social rights in the list of fundamental human rights and freedoms, but at the constitutional level it secures (Article 32) the rights of workers, including the right of a woman to protection by the employer before and after the birth of a child, and parliament must pass laws guaranteeing the right to work in satisfactory conditions, the right to rest, a reasonable restriction on working hours and paid rest periods. It seems very interesting the interpretation of Article 16 of the Constitution of measures related to the care, training and social security of minors as permissible restrictions on their right to personal freedom (Lattmann et al. 2014). ...

... The current labour legislation and regulations demand better working conditions for operators in potentially hazardous environments, but also enhanced possibilities for the direct or remote control of equipments by operators and a minimal reaction time [3,4]. ...

Alina Maria Gligor

Natural gas compressor stations are very important components of a natural gas life cycle. Unfortunately, in Romania most of the existing natural gas compressor stations are equipped only with old-type automation systems, with a high degree of physical and moral wear. The current paper describes the main elements and functions of an automation system that was implemented in a natural gas compressor station, offering an improved pressure control function, but also the possibility to control the compressors from a distance, for example from a central dispatching station.

... An explosion risk area represents an industrial space in which, under normal functioning conditions, there can accumulate, permanently or accidentally, gases, vapors of flammable liquids, dusts or powders in sufficient amounts to give birth to an explosive atmosphere. Explosion risk areas are consequently very important from the point of view of the work safety legislation [7,8] and require a special training of the personnel working within or near them. [9] Explosion hazard areas can be classified into several types, function of the length of the periods during which the explosive atmosphere is present: [5,10] area 0 -is the area in which the explosive atmosphere is present during the normal functioning of the technological installations, permanently or for a period of more than 1000 hours per year. ...

Compressor stations are important components within natural gas transportation networks. The current paper analyses some of the safety aspects involved in the operation of such facilities – on the one hand related to the explosion risk for employees working in compressor stations and on the other hand related to determining to the areas with increased explosion hazard in such a station, in order to help reducing work-related accidents and the occurrence of professional illnesses. The explosion risk is determined based on a method devised by the National Institute for Research and Development for Environmental Protection Bucharest, while the explosion hazard areas are determined and displayed with the help of the software package AutoCAD Plant 3D.

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Source: https://www.researchgate.net/publication/301221198_International_Protection_of_Human_Rights