It goes without saying that the protection and understanding of human rights ultimately depends mainly on developments and mechanisms at the national level. Existing laws, policies, procedures and mechanisms at the national level are essential to the enjoyment of human rights in each country. It was therefore crucial that human rights be part of national constitutional and legal systems, that members of the judiciary be trained in the application of human rights standards and that human rights violations be condemned and punished. National standards have a more direct impact and national practices are more accessible than those at the regional and international levels. As Eleanor Roosevelt pointed out, the Commissioner can deal ex officio with any matter within his or her jurisdiction. Although the Commissioner cannot receive individual complaints, he can act on the basis of all relevant information on general aspects of human rights protection as enshrined in Council of Europe instruments. Such information and requests for treatment may be addressed to the Commissioner by governments, national parliaments, national ombudsmen or similar bodies, as well as by individuals and organisations. The Commissioner`s thematic work included the preparation of reports, recommendations, opinions and positions on the human rights of asylum seekers, immigrants and Roma. On the basis of provisions such as article 19 of the International Covenant on Civil and Political Rights for the protection of freedom of expression (other examples are articles 18, 21 and 22), human rights courts and treaty bodies have developed a test for determining whether a measure restricting a non-absolute right is legitimate. The following questions need to be asked: At the international level, States have joined forces to develop certain human rights agreements.
These agreements set objective standards of conduct for States and imposed certain obligations on them. They can be of two types: legally binding or non-binding. A binding document, often referred to as a treaty, convention or covenant, represents a voluntary commitment by states to implement human rights at the national level. States individually undertake to be bound by these standards through ratification or accession (the mere signature of the document does not make it binding, although it represents the will to facilitate this). States may formulate reservations or declarations in accordance with the 1979 Vienna Convention on the Law of Treaties, which exempts them from certain provisions of the document in order to encourage as many of them as possible to sign. After all, it is better to have a state that promises to respect certain human rights provisions than nothing! However, this mechanism can sometimes be abused and used as a pretext to deny fundamental human rights, allowing a state to “escape” international control in certain areas. However, human rights have also permeated binding law at the national level. International human rights law has prompted states to enshrine these standards in national constitutions and other laws.
They can also provide redress for human rights violations at the national level. A number of tools have also developed more robust procedures to allow intrusive visits not only to respond to human rights violations, but also to prevent them. Contract-based systemThe contract-based system has developed even faster than the Charter-based system. The first treaty adopted in 1948 was the Convention on the Prevention and Punishment of the Crime of Genocide, which dealt with the most direct experiences of the Nazi Holocaust. Since then, various treaties have been adopted under the auspices of the United Nations, covering a wide range of issues, including eight on human rights – each with a treaty monitoring body. There have also been recent promising developments towards the subregional protection of human rights within the Association of South-East Asian Nations (ASEAN), which brings together the founding States of Indonesia, Malaysia, Singapore, Thailand and the Philippines. Although ASEAN was founded in 1967, a formal founding treaty (the ASEAN Charter) was only adopted in 2007. The Charter provides for the establishment of an ASEAN human rights body, a process that is still ongoing. 2 www.un.org/en/globalissues/briefingpapers/humanrights/quotes.shtml The role of civil society is of particular importance when the dispute over an issue impedes State action.
The Yogyakarta Principles on the Application of International Human Rights Law on Sexual Orientation and Gender Identity are a good example. Although adopted in November 2006 by 29 experts from just 25 countries, the 29 principles contained in the document – which relate to States` obligations regarding sexual orientation and gender identity – are becoming an internationally accepted reference point and are likely to guide future discussions. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) both entered into force in 1976 and are the main legally binding instruments of global application. Both covenants sought to extend the rights described in the UDHR and give them the force of law (within the framework of a treaty). Together with the UDHR and their respective Optional Protocols, they form the International Bill of Human Rights. Each of them provides for a different category of rights, although they also share concerns, for example with regard to non-discrimination. Both instruments have been widely ratified, with the ICESCR having 166 ratifications and 160 ratifications as of November 2010. Finally, some rights are subject to so-called “inherent” restrictions. An example is the right of a person accused in criminal proceedings to be brought to trial without “undue delay”. What constitutes a reasonable time must be assessed taking into account the complexity of the case (which can be considerable in terrorism cases), the conduct of the accused and the manner in which the case has been handled by investigating and judicial authorities. These restrictions are not set out in human rights treaty texts, but have been developed by national and international courts and other treaty bodies that apply human rights standards to specific cases pending before them. The first, adopted in 1965, is the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), followed by the ICCPR and the ICESCR in 1966.
The international human rights regime then began to move away from a general approach and instead focus on particularly marginalized and oppressed groups or issues: the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); the Convention on the Rights of the Child (1989); the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990); and the Convention on the Rights of Persons with Disabilities (2006). The most recent treaty is the International Convention for the Protection of All Persons from Enforced Disappearance (ICED), which was also adopted in 2006 but has not yet entered into force. With the adoption in 2008 of an optional protocol to the International Covenant on Economic, Social and Cultural Rights allowing individual complaints of alleged violations of socio-economic rights, the United Nations treaty system now also embodies the principle that all rights are justiciable. Twenty years after the adoption of the Universal Declaration, the first International Conference on Human Rights was held in Tehran in 1968. When the world was caught in the grip of the Cold War at this point, little consensus emerged and little was achieved. The situation was quite different when the Second World Conference was held in Vienna in 1993. The Cold War was over, but the genocide in Bosnia and Herzegovina was taking place. In that context, 171 heads of State and Government met and adopted the Vienna Declaration and Programme of Action. He affirmed that all rights are universal, indivisible and interdependent. Subsequently, several resolutions adopted therein had been implemented, including the adoption of an optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women and the establishment of the Office of the United Nations High Commissioner for Human Rights, with the first High Commissioner (José Ayala Lasso) having been elected in 1994. The High Commissioner has primary responsibility for human rights at the United Nations. The growing presence in the field of human rights in the countries affected by Ratschen also falls within this function.
Not all human rights principles enjoy the same level of protection. Instead, they may have different legal characteristics, be absolute or non-absolute, or have inherent limitations. Question: What good is a simple “promise” to respect human rights standards if it is not backed up by legal mechanisms? Is it better than nothing? Other conferences also focused on important issues such as racism and xenophobia, which were discussed at the World Conference against Racism, held in Durban, South Africa, in 2001. This led to the adoption of the Durban Declaration and Programme of Action. A review conference was held in April 2009 to assess progress in the implementation of the Declaration. A number of international human rights treaties and other instruments adopted since 1945 have given legal form to inherent human rights and developed the corpus of international human rights.
