INTERNATIONAL, REGIONAL, AND NATIONAL REMEDIES FOR PROTECTION, PROMOTION, AND ADDRESSING HR VIOLATIONS

Normie V. Batula
IHR Class/ 5 March 2012
(Some slides from Atty. Gonzaga (AHRC and Judge Llanderal)

SUMMARY OF REMEDIES
LEGAL REMEDIES A. International Venues ICC 2. ICJ B. Regional Venues C. National venues 1. Judiciary 2. CHR 3. Ombudsman 4. Administrative Agencies
I.

SUMMARY OF REMEDIES
D. Other mechanisms 1. Country Reporting 2. Inter-State Complaint System 3. Special Rapporteurs 4. 1503 Procedures

SUMMARY OF REMEDIES
II. Other Mechanisms A. Mass Media B. Concerted group/Community Action C. Indigenous ways of settling disputes and mechanisms D. Empowerment of the Community through education or capacity building E. Others

INTERNATIONAL MECHANISMS
United

Nations Office of the High Commissioner for Human Rights Charter-based mechanisms Human Rights Council Universal Periodic Review Special Procedures Treaty-based mechanisms International Court of Justice International Criminal Court

REPORTING AND MONITORING

When a UN member state ratifies a convention, it agrees to abide by the provisions of the convention, consent to be monitored, change its laws to conform to the convention, and report at regular intervals on its progress in doing so

REPORTING AND MONITORING

Every convention contains articles that establish procedures for monitoring and reporting how states parties are complying with it
Both Covenants provide for a body of independent experts to monitor governmental compliance with treaty provisions ICCPR has a Human Rights Committee consisting of 18 independent experts, who examine progress reports from states that are party to that Covenant The Committee also can consider complaints of one member state against another The ICCPR provides a complaint procedure through which individuals can have grievances against their government heard in an international forum

HIGH COMMISSIONER FOR HUMAN RIGHTS

Principal human rights official of the UN

Spearheads the UNs human rights efforts Takes action to empower individuals and assist States in upholding human rights. Part of the UN Secretariat Supports the work of the UN human rights mechanisms Works to ensure the enforcement of universally recognized human rights norms, including through promoting both the universal ratification and implementation of the major human rights treaties and respect for the rule of law.

HUMAN RIGHTS COUNCIL

Intergovernmental body created by the UNGA on 15 March 2006 Replaced the Commission on Human Rights Held its first meeting on 19 June 2006 Composed of 47 elected UN Member States who serve for an initial period of 3 years (no more than two consecutive terms) Forum empowered to prevent abuses, inequity and discrimination, protect the most vulnerable, and expose perpetrators. Main purpose: addressing situations of human rights violations and make recommendations on them. Responsible for strengthening the promotion and protection of human rights around the globe.

HR COUNCILS INSTITUTIONBUILDING PACKAGE

Universal Periodic Review

mechanism which will assess the human rights situations in all 192 UN Member States
serves as the Councils think tank providing it with expertise and advice on thematic human rights issues allows individuals and organizations to bring complaints about human rights violations to the attention of the Council

Advisory Committee

Revised Complaints Procedure mechanism

UNIVERSAL PERIODIC REVIEW

Created by UNGA on 15 March 2006 Unique process which involves a review of the human rights records of all 192 UN Member States once every four years.

by 2011, the human rights records of every country would have been reviewed reminds States of their responsibility to fully respect and implement all human rights and fundamental freedoms

State-driven process, under the auspices of the HR Council

provides opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations.

ADVISORY COMMITTEE
Composed of 18 experts Replaces the Sub-Commission on the Promotion and Protection of HR Established to function as a think-tank for the Council and work at its direction Function: to provide expertise in the manner and form requested by the Council, focusing mainly on studies and research-based advice Scope of advice limited to thematic issues pertaining to the mandate of the Council; namely promotion and protection of all human rights Urged to establish interaction with States, NHRIs, NGOs and other CS entities

COMPLAINTS PROCEDURE
Established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances. Confidential in nature, with a view to enhancing cooperation with the State concerned. Two working groups - the Working Group on Communications (WGC) and the Working Group on Situations (WGS) - are established with the mandate to examine the communications and to bring to the attention of the Council consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms.

WGC assesses admissibility and merits of a communication. All admissible communications & recommendations are sent to WGS. WGS examines communications, including replies of States, as well as the situations which the Council is already seized of under the complaint procedure. Subsequently, the Council takes a decision concerning each situation thus brought to its attention.

TREATY-BASED MECHANISMS

There are currently nine treaty bodies.

Eight monitor implementation of the core international human rights treaties The Subcommittee on Prevention of Torture monitors places of detention in States parties to the Optional Protocol to CAT.

There are three main procedures for bringing complaints of violations of the human rights treaties before the treaty bodies:

Individual communications State-to-state complaints Inquiries

Not all committees have the right to consider such complaints.

COMPLAINTS PROCEDURE

Individual Communications
Five bodies (CCPR, CERD, CAT, CEDAW & CRPD) may, under particular circumstances, consider individual complaints. CMW also; operative once 10 states parties have made the necessary declaration under article 77.

Inter-State Complaints

Some (e.g., CAT, CMW, CERD, CCPR) allow for State parties to complain to the treaty body about alleged violations of the treaty by another State party. These procedures have never been used.

Inquiries

CAT and CEDAW may, motupropio, initiate inquiries if they receive reliable information containing well-founded indications of serious or systematic violations of the conventions in a State party.

REMEDIES NOT COVERED BY UN TREATY THE 1503 PROCEDURE

An individual or any group of persons who feel that they have been prevented in exercising their human rights may take their complaint to the UN even on cases not covered by any UN Treaty. This system is known as the 1503 procedure.

INTERNATIONAL COURT OF JUSTICE (ICJ)

The principal judicial organ of UN Settle in accordance with international law, legal disputes submitted to it by States Give advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies Seat: Peace Palace in Hague, Netherlands 15 judges 2 Jurisdictions: > Contentious cases > Advisory jurisdiction

INTERNATIONAL CRIMINAL COURT (ICC)

Governed by Rome Statute; 1 July 2002 First permanent, treaty-based, international criminal court. To help end impunity for the perpetrators of the most serious crimes of concern to the international community Not part of UN but an independent institution Has 4 organs: 1. Presidency 2. Judicial Divisions (18 judges) 3. Office of the Prosecutor 4. Registry

ICC JURISDICTION
Genocide Crimes against Humanity War Crimes Aggression

REGIONAL MECHANISMS

European System for the promotion and protection of human

rights

EUROPEAN CONVENTION ON HUMAN RIGHTS

Entered into force on 3 September 1953 Adopted under the auspices of the Council of Europe, all 47 of whose member states are parties to the Convention Most progressive agreement and provides a singularly high degree of individual protection All member states of the Council of Europe are required to sign and ratify the Convention. Such ratification is a condition for new membership.

EUROPEAN COURT OF HUMAN RIGHTS

Location: Strasbourg, France Established by the European Convention on Human Rights in 1959 Supra-national court providing legal recourse of last resort for individuals (or other contracting parties) who feel that their human rights have been violated by a contracting party to the Convention. Instituted as a permanent entity with full-time judges in 1998, replacing then existing mechanisms, including the European Commission of Human Rights. A decision is binding on member states and must be complied with, unless it consists of an advisory opinion. The Committee of Ministers of the Council of Europe

Inter American System for the promotion and protection of human rights

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

Autonomous organ of the OAS Location: D.C. Responsible for 3 documents:

the OAS Charter the American Declaration of the Rights and Duties of Man the American Convention on Human Rights

Functions include: Receiving, analyzing, & investigating individual petitions alleging violations of the American Convention on Human Rights. Monitors the general human rights situation in the OAS's member states. Referring cases to the InterAmerican Court, and litigating those same cases before the Court. Asks the Inter-American Court to provide advisory opinions on matters relating to the

INTER-AMERICAN COURT ON HUMAN RIGHTS

Autonomous judicial institution Location: San Jos, Costa Rica. Purpose: to enforce and interpret the provisions of the American Convention on Human Rights. Functions: adjudicatory and advisory.

Hears and rules on the specific cases of human rights violations referred to it. Issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.

Note: The US signed but never ratified the Convention. Under the Convention, cases can be referred to the Court by either the Inter-American Commission or a state party.

African System for the promotion and protection of human rights

AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS

Location: Banjul, Gambia Areas of responsibility:

Promoting human and peoples' rights Protecting human and peoples' rights Interpreting the African Charter on Human and Peoples' Rights (including considering individual complaints of violations of the Charter) Preparing cases for submission to the African Court's jurisdiction.

AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS (NOW THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS)

Location: Arusha, Tanzania Created initially to make judgments on African Union states' compliance with the African Charter on Human and Peoples' Rights Established on January 25, 2004 with the ratification by 15 member states of the Protocol to the African Charter on Human and Peoples Rights Establishing the AfCHPR. On July 1, 2008, the Protocol on the Statute of the African Court of Justice and Human Rights was adopted by the Assembly.

AsiaPa cific

Art. 14, ASEAN Charter

1. In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body. 2. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting. During the ASEAN Ministerial Meeting in Phuket, Thailand in July 2009, the ASEAN Foreign Ministers adopted the Terms of Reference establishing the ASEAN Intergovernmental Commission on Human Rights (AICHR).
The AICHR was launched during the ASEAN Summit in Thailand in October 2009.

AICHR
PRINCIPLES AND PURPOSES

NATURE

Promote & protect human rights & fundamental freedoms Promote human rights within the regional context (particularities & diversities); balance rights & responsibilities Enhance cooperation to complement national & international human rights efforts Uphold international human rights standards Respect for international human rights principles

Intergovernmental and consultative Its members are representatives of ASEAN Member States Decision-making will be by consultation and consensus

MANDATE AND FUNCTIONS (SELECTED)

Develop an ASEAN Human Rights Declaration to establish a cooperation framework through HR instruments Enhance public awareness of HR Promote capacity building Encourage accession & ratification Promote full implementation of HR instruments Provide advisory services & technical assistance upon request

Engage in dialogue & consultation Consult other institutions & entities Obtain information from member states Develop common approaches & positions Prepare studies on thematic issues Submit annual report, or other reports Perform other assigned tasks

PHILIPPINE HUMAN RIGHTS LAW AND SYSTEM

The international law of human rights builds and depends on national law. One cannot appeal to international law or institutions until domestic laws have been invoked and domestic remedies exhausted. When a state is deficient in respecting or ensuring human rights, the international law of human rights does not supersede national laws and institutions, but seeks to induce the state to improve them and make them more effective. (Louis Henkin)

PHILIPPINE HUMAN RIGHTS LAW

Values + Structures

Constitution Bill of Rights Republic Acts Rules of Court

Courts Ombudsman Department of Justice Commission on Human Rights

VALUES
Declaration of Principles & Policies

Human Rights Standards

Economic, Social & Cultural Rights

Enforcement of HR Standards Civil Criminal Liabilities Liabilities

Civil & Political Rights

Art. II, Constitution

Art. III, Constitution, Statutes and Rules of Court

Art. XIII, Civil Code Constitution & & other Statutes statutes

Revised Penal Code & other special penal laws

STRUCTURES
Constitutional Mechanisms Government Mechanisms

International Mechanisms ECOSOC Human Rights Committee International Labor Organization NGOs: International Committee of the Red Cross, Amnesty International, International Commission of Jurists World Council of Churches, etc.

Judiciary Ombudsman Commission on Human Rights

Department of Justice Police & Military DFAs Office of Human Rights & Humanitarian Affairs Presidential Human Rights Committee

THE ROLE OF NONGOVERNMENTAL ORGANIZATIONS

OTHER REMEDIES AND WAYS OF

PROMOTING HUMAN RIGHTS
Mass

Media Concerted Group/Community Action Barangay Remedies Indigenous Institutions and mechanisms Empowerment of the Community through Education/Capacity Building Other metalegal Tactics

IN SUMMARY, REMEDIES FOR GROSS VIOLATIONS OF IHRL AND SERIOUS VIOLATIONS IHL INCLUDE THE VICTIM/S RIGHT TO:
1. Equal and effective access to justice 2. Adequate, effective and prompt reparation for harm suffered Restitution Compensation Rehabilitation Satisfaction and guarantees of non-repetition 3. Access to relevant information concerning violations and reparation mechanisms It is important to remember that both justice and reparation constitute an effective remedy.

CHALLENGES IN HR PROTECTION
Philip Alston: The normative-judicial model has significant shortcomings even in relation to some civil and political rights, but it is one to which the human rights community at national and international levels is firmly committed. That community is dominated by lawyers whose tools are traditional legal reasoning, the use of legal institutions and techniques and the pursuit of familiar types of remedies such as administrative legislations, legislative programmes and court judgments. There is, therefore, a need to expand the circle of actors in the human rights community in order to deal with the most pressing issues arising from a concern of economic, social and cultural rights.

Perhaps there may be a need to alter even structural frameworks of governments and United Nations mechanisms in order to bring the struggle for human rights protection beyond the arena of the courts, administrative tribunals, and legislative chambers. For ultimately, the playing field for human rights protection will be in the homes, schools, corporations, and communities.

HUMAN RIGHTS FOR ALL! ALL FOR HUMAN RIGHTS!

Padayon.