In measuring the extent to which the European regional approach to human rights protection offers advantages over the United Nations international approach, the various mechanisms contained within both systems must be compared and analysed. An explanation of the various international treaties and the drafting of the European Convention will require some consideration in order to assess the overall effectiveness of the machinery’s established under both systems for the protection of human rights. Particular reference will be made to the right not to be subjected to ‘torture or to inhuman or degrading treatment or punishment’ who’s universal condemnation stems back to the impunity for horrific crimes against humanity committed during the First and Second World War thus prompting in 1945, the first formal recognition of the importance of protecting human rights in the international order through the United Nations Charter and the Nuremberg Charter. The United Nations Charter sets out its purposes as “promoting and encouraging respect for all human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”’ and although the declarations are no more than aspirational, they support principles of liberty and individual freedoms that have subsequently formed the content of specific rights treaties. Torture is received with strong universal condemnation, and although there is no absolute definition, its prohibition is emphasised in several international legal instruments such as; the Universal Declaration of Human Rights 1948 (UDHR), the European Convention on Human Rights 1950 (ECHR), and the International Covenant on Civil and Political Rights 1966 (ICCPR), each in similar language, providing that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ The Convention against Torture and Other Cruel Inhuman or degrading Treatment gives a precise definition in Article 1 and requires parties to take effective measures to prevent it in any territory under its jurisdiction calling on all States to ensure that all acts of torture are included offences under their domestic criminal laws, including attempts and complicity as well as participation. Similar steps are taken within the European Convention of Human Rights which imposes an obligation on each Contracting Party to secure those rights are within their jurisdiction. However, at international level, under the statutes of criminal tribunals, torture can only be prosecuted if it falls within the category of war crimes. In addition to this, the lack of effective enforcement mechanisms within some States undermines the effectiveness of the international human rights system. The International Court of Justice (ICJ) hears cases involving disputes between nation-states and Article 30 of the Convention provides that, “any dispute between two State parties concerning its interpretation or application which has not been possible to settle through negotiation or arbitration may be submitted to ICJ by one of the States.” A failure of this allows for a claim to be submitted to the ICJ requesting that the Court apply measures requiring the Respondent to take all steps within its power to ensure the rules of international law will be correctly applied.” The problem then lies in the fact that in order for the International Court of Justice to hear a case, the State parties to the dispute must accept its jurisdiction. This is borne from the fact that International lawyers will agree that an international agreement is not legally binding unless the parties intend it to be and is therefore more of an understanding or agreement between the States. This is considered a problem with enforcement at international level as rights contained in the Conventions need to be balanced with the States sovereignty. By contrast, where the United Kingdom and other countries have incorporated the Human Rights Act 1998 within its...
“Sources of HumanRights Law: Custom, Jus Cogens and General Principles” by Brunno Simma and Philip Alston.
The issue of establishment, authentication and protection of humanrights and freedoms is of significant prominence nowadays. The adoption of the Universal Declaration of HumanRights and of subsequent Covenants in 1948 and 1966 respectively, the establishment of the European Court of HumanRights, Inter American Court of HumanRights and African Court of Human and People’s Rights is an example of a growing States’ involvement in the subject-matter. The world community as a hole is undoubtedly concerned with the humanrights violations arising in different parts of the globe and is trying to resolve the problem. But to do so one needs to have defined judicial instruments which can be used to reach the peaceful solution. That’s why having a settled and agreed algorithm of the identification and application of the sources of international law on humanrights is so crucial.
The scope of the present article comprises the problem of the relevance of different sources of international law stated in the Article 38 of the Statute of the International Court of Justice (Statute) in their...
...Should evidence that was obtained illegally or in violation of human privacy be admissible in court? The Exclusionary Rule in the United States protects the privacy of citizens, and evidence proved to be obtained in such a manner is not admissible. However, this rule has stirred up a lot of controversy in the United States and not all countries have the same perspective on this issue. In Europe, The European Court of HumanRights holds a slightly different position on the rights people have and the way evidence is obtained.
The exclusionary rule is defined as “The principle based on federal Constitutional Law that evidence illegally seized by law enforcement officers in violation of a suspect's right to be free from unreasonable searches and seizures cannot be used against the suspect in a criminal prosecution.” (Farlex, 2011) The rule was fashioned in the early 1900s, before then any relevant evidence was admissible in a criminal trial, no matter what manner it was obtained. In 1914, the case of Weeks v. United States, a federal agent entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery ticking through the mail. The search was conducted without a warrant, and on appeal the court held the way the papers were seized from Weeks’ residence directly violated his Fourth Amendment rights. Weeks’s conviction was reversed in the first...
...Does the pursuit of humanrights strengthen or weaken the structure of international society?
The concept of humanrights can be traced as far as back as the theories of Natural Law which proposed the existence of universal moral standards, and Charter rights such as the Magna Carta. However, they began to rise in importance after the horrors of the Second World War and then towards the end of the Cold War, which gave us many core humanrights treaties such as the International Covenant on Civil and Political Rights (ICCPR). Solidarists would claim that this increasing pursuit of humanrights strengthens the structure of international society because as the fundamental members of the international community, the rights of individuals should take priority over the rights of states, and that this should be the main purpose of the United Nations. However, even if the rights of individuals should be prioritised, it is crucial to preserve Westphalian principles to maintain international order. This essay will use a realist lens to argue that individuals are best served by protecting the rights of states, and therefore the integrity of the state should always be maintained. It will demonstrate how this prioritisation of national interests has meant that in fact the pursuit...
...when compared to men. They have been thought as tools to do such things as reproduce, cook, clean, and to do the bidding of all males (especially their husbands). Without these qualities woman were considered nothing until the woman’s rights movement of the twentieth century. One of the people who supported this movement was Hillary Clinton. In one of her most famous speeches: “Woman’s Rights Are HumanRights.”, Clinton tried to address the world in the United Nations Fourth World Conference on woman in order to target those who thought less of women. This speech was given on September 5th, 1995 in Beijing, China.
Some of Hilary Clinton’s credentials for the speech included being first and foremost a female, a first lady, a constant advocate, and being a success in strengthening the local legal aid offices. “She also traveled to more than 80 countries as a representative of our country, winning respect as a champion of humanrights, democracy and civil society” ("U.S Department of State. Diplomacy in Action") and therefore is knowledgeable not only in persuading others but also in humanrights. This is what gave her the right (or ability) to speak of the topic previously mentioned.
In Clinton’s speech she focuses completely on woman’s rights and so as to grab the attention of the nation she compared the meeting of the United Nations...
...Terrorism and HumanRights
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COUNTER-TERRORISM & HUMANRIGHTS
The duty to comply with HumanRights while countering terrorism
Since the end of the Second World War, and the Cold War, terrorism has been one of the main issues of the international community. Not only has terrorism been perceived as a threat to the peace and the security, but also, an aggression of the fundamental rights and to the democracy.
Following the 9/11 attacks, which have shaken the civilized world to its core foundations, the fight against terrorism became even more significant. The Security Council, in 2001, has adopted the Resolution 13731 (which is indicative of the importance of this issue). This resolution constitutes a general framework of the international campaign against terrorism, by defining all the measures that can actually be done to fight against it and by declaring the necessity to fight against terrorism by all “legal” mean. Therefore, the Security Council Counter-Terrorism Committee has also been established2. De facto, with a general framework and an institutional framework, nothing could possibly prevent States in fighting terrorism under the aegis of the United Nations. However, if the Resolution claims to fight against terrorism, it does not define it, which is not surprising knowing that before the resolution,...
One of the most undeniable and challenging foreign policy debates of the last several years has concerned the future of democracy and its role in human-rights law. The idea of Western societies encouraging democratization of non-western societies is believed to be cultural imperialism, which abuses the power of states in the developing world. However for the purpose of this paper, I view the support of democratization by Western societies as a positive approach to achieving the core significance of the Universal Declaration of HumanRights that is supposedly recognized by all states.
The Universal Declaration of HumanRights was created on the notion of a common human race. It represents the first global expression of rights to which all human beings are naturally entitled. Of the fifty-eight countries that were members of the United Nations in 1948, forty-eight countries initially approved the document. Essentially all of the world’s states have approved it since then, which indicates that in any event its principle articles should be used by all states as an instrument in binding international law
in spite of the presence of treaty ratification or state of war. Considering the fact that most countries have agreed to abide by the Declaration of HumanRights, it can...
Humanrights are protected under Australian law in three key ways; statute law, the constitution and common law. It could be argued that if Australia adopted a bill of rights, humanrights would be more clearly defined, consistent in all states and territories and more easily understood.
Humanrights are protected in Australia through statute law. Statute law refers to laws made by parliament, also known as legislation. Moreover statute laws set up administrative bodies whose responsibility it is to carry out the workings of these acts.Occasionally, judges are required to interpret legislation or make decisions about the application of statute law. These decisions will have binding impacts on humanrights protection. Examples of statute laws that protect humanrights in Australia include the Anti-Discrimination Act 1977 (NSW), the Sex-Discrimination Act 1984 (cth) and the Racial-Discriminations Act 1975 (cth). The HREOC is one of the administrative bodies that are extremely effective in protecting humanrights. An example of this involved the case of Scarlett Finney in 1998. In this case they found that the Hills Grammar School discriminated against Scarlett Finney on the ground of her disability by refusing her enrolment to the kindergarten class at the school in 1997 in breach...
...Abortion: A Violation of HumanRights?
A medical procedure designed to end a pregnancy is called an abortion. Why a woman would no longer want to be pregnant after conception is a question of many answers in which only the individual woman can answer. Some people are against abortions and believe for one reason or another they should not take place. Others argue, saying that because the pregnancy exists within their body they have theright to do with it as they please, regardless of how it affects the fetus inside of them. Thus the argument begins, pro- or anti-abortion.
Here in the United States there are two different methods of abortions. A woman can either end her pregnancy by taking medicine (called medical abortion) or having surgery (called surgical abortion) (National Institute of Health; Medline Plus). The method of medical abortion involves a two-part medication which is ingested orally at different time intervals and requires the woman be less than eight weeks pregnant. The first part called mifepristone is given to the woman by a doctor. Mifepristone blocks the hormone progesterone needed to maintain the pregnancy. The second part of the medicine called misoprostol is taken twenty four to seventy two hours after the first. Misoprostol causes contractions resulting in a miscarriage. With the later addition of the second medication the uterus contracts and the pregnancy is usually...