Course 4

Question 1

What are the levels of international law?

Answer 1

1. Global universal level = UN
2. Regional levels: European Court of HR

Question 2

What is the UN?

Answer 2

• The creation of the UN goes hand in hand with the development of the idea of international human rights protection after world war II. Made the famous UN-charter: It is a fundamental document to understand the UN, the organization dealing with human rights on global level.
  
  • No such thing as a comprehensive list of human rights. That is not what the UN charter does, it does not contain or mention human rights, there are references to peace but it’s an institutional charter with definitions of broad missions.

Question 3

What is the universal declaration of HR?

Answer 3

• Basic human rights document is the Universal Declaration and this is the first global declaration of human rights. And the universal declaration of ’48, references to the French revolution.
• Sets standards, defines human rights and makes a list of human rights. Both first and second generation rights are here. Surprising to have both categories in 1 document because of the differences in conceptions of human rights between traditional Atlantic and American conception of human rights (=focus on states not interfering). Also with the Eastern-European states and the communist states.
• No one votes against = overwhelming amount of states adopt it.
• Resolution adapted by the General Assembly of the UN

Question 4

What is the legal status of the general declaration?

Answer 4

• Non-binding = explains why so many states reached an agreement because it is non-binding.
• Could we say that it is international customery law = because if was adopted by all states:
  
  • But no opinion iuris.
• Consider maybe that some of these provisions are general principles of international law. But which provisions?
• So we have a document that is strictly speaking and legally speaking non-binding but it has a huge moral status but still no legal binding force. Still a lot of discussion on what the status of the Universal Declaration is.

Question 5

What else do we need apart from the universal declaration?

Answer 5

• What else do we need?
• Effective system: standards, bodies, institutions, venues to check them  control mechanism.
• Could we put it into a binding treaty = pacta sunt servenda? That is now impossible with all those states, even in the ‘50s it was gone with the Korea crisis and then later the Cold War.
• Solution: 2 treaties but took 20 years: So states can choose one of the treaties: so 1 declaration leads to 2 treaties = International Bill of Rights.

Question 6

What is the tw-track system?

Answer 6

1. Charter = Universal Declaration of human rights
2. Covenants = Treaties with their controlling mechanisms:
   
   1. Covenant on Civil and Political Rights
   2. Covenant on Social, Economic and Cultural Rights

Question 7

What are the list of conventions?

Answer 7

• Overtime you’ll see that new conventions or treaties or whatever be the name are adopted:
  • International convention on the elimination of racism or and all forms of racial discrimination
  • Convention on the protection of the rights of women
  • Anti-torture convention for the prohibition of inhumane and degrading treatment
• List of conventions: specific needs  that is why we adopt specific conventions: is this a step back?
  • French revolution: step forward: everyone has those rights, everyone is entitled  same with the Universal Declaration.
  • But now: specific needs for those groups but there is a risk of complete fragmentation of human rights protection and a feeling that many by states that they are no longer concerned with what is happening in those specific areas over citizens thinking here, these are not specific areas. So, you have that devolution.

Question 8

What is the committee on human rights and why should you go there?

Answer 8

• Most people/states won’t do that because you have a stronger document: namely: the European Convention on Human Rights. Same thing in the domestic legal order: if you have a constitutional right = constitutional court, not to the international court. You could but it is usually not necessary.
• But: countries where there is very little protection or states that do not benefit from an Asian regional system = they can only use what is ratified.
  *

Question 9

What is strategic litigation?

Answer 9

• Nuance: sometimes you could prefer the international covenant over the European Convention because you have recognized that you have no chance to win under the Strasbourg case law and with the Controlling Committee Monitoring Committee of the ICCP = better chance = strategic litigation:
• Check for reservations: if Belgium made a reservation then the Strasbourg standard = international standard.

Question 10

What was the case against France with the Human rights committee?

Answer 10

• France has a very strict separation of state and religion  public servants are not allowed to wear religious symbols: even for Muslims = under Franch law no problem and they went to the ECHR: no discrimination because they do not target anyone and France has a marge of appreciation.
• Human rights committee might come up with another understanding so the ECHR: that is not what we would have done but we don’t see any problem in view of our convention.

Question 11

When is the committee important?

Answer 11

1. There is nowhere else to go
2. There are no specific reservations made, you can use it for strategic litigation.

Question 12

Which 2 conventions are important from a Belgium perspective that exist on a regional level?

Answer 12

1. Convention for the rights of the child: helped boost the protection to bring awareness. Lots of progress because now that there is a convention = lawyers have to be taken seriously.
2. Convention on the rights of people with disabilities: we had a paternalist approach but they were not taken seriously. Now there is a social conception of disability where before it was kind of a fixed category = inherent problem of the person. Now there is an awareness that there can be solutions provided through reasonable accommodations: eg. ramps for wheelchairs for autonomy. Small things but they help so much for the person involved. This convention was again a boost for the lawyers to take it seriously because we simply did not consider it.

Question 13

What is interesting about monitoring the treaties?

Answer 13

• Professor not interested in learning by heart the mechanisms of controlling: What is interesting to see however is that all those conventions have things in common there is let’s say a kind of a basket of techniques that are used by those drafters to guarantee the compliance with the obligations following those conventions or those treaties.

Question 14

What are the possibilities of monitoring the treaties?

Answer 14

1. State report: under women’s rights convention, anti-racism convention = state reporting themselves how they implement these conventions.
2. State complaints: intra-state: not often used.
3. Individual complaints: something that is not recognized by all countries and is often optional: you as an individual can go to a body: And that is of course the aspect or the mechanism that comes most close to what you know before international courts. Sometimes they can also do inquiries. So that’s, when the bodies, the expert communities, the monitoring bodies, work on specific cases.
4. General comments: Interpret the convention, the treaty, the text, they are supposed to monitor. So that’s not on the basis of a specific incident, on the basis of a specific complaint. But it rather is interpreting.
5. Panel of independent experts: quasi-judicial bodies, not judges but independent experts appointed because of their expertise: they are representatives of a certain state, not there for diplomatic reasons.

Question 15

What is an example of a general comment?

Answer 15

• General comments: Interpret the convention, the treaty, the text, they are supposed to monitor. So that’s not on the basis of a specific incident, on the basis of a specific complaint. But it rather is interpreting.
• Example: the committee says: we are going to draft a general comment on the interpretation on the right the freedom of expression, under the ICCPR. That’s a general comment. Or you could have a general comment on the right to health. So that is a kind of interpretation of those treaties. So there you see that a leading role is

Question 16

What is the problem with the amount of bodies?

Answer 16

• Problem: too many bodies and because they are not judges, they think differently so there is a feeling of states that these experts tend to give a very extensive interpretation of the convention because they have so much experience but they are accountable to no one and they can really push things and it is full of activitists = always a violation.
• States do not always value this: France had a violation but they were not forced to change because of the Strasbourg Court: they react differently to those committees.
  
  • Connection with the states not always great: complicated issue, certainly for the victims who want to have their rights protected & secured.
• Monitoring body: come up with findings stating that states have not complied  diplomacy because it is only quasi-judicial body.

Question 17

Should we merge all those bodies into 1 treaty body?

Answer 17

• Con: specialisation. And the argument goes that, since you have so many areas covered, that you would never find people that would be sufficient all-rounders to cover everything. That is the treaty side mechanism.

Question 18

What is the second stream of the charter-based mechanisms?

Answer 18

Second stream: charter-based mechanism: That is human rights protection based on the organs that are foreseen by the UN charter or by their sub organs. Central role: human rights council = not the human rights committee.

Question 19

What is the human rights council?

Answer 19

• The human rights council replaces what was formerly known as the human rights commission. The human rights commission was a critiqued in the past because of it being a non-permanent organ, because of overly pollicised institution, and because of states being member of it that were human rights violators. In the end, it has been decided that the old system has been replaced, and we got a human rights council. It is made up of 47 states. There are of course regional quota.
• So there is a spread of the geographical distribution. In theory no states can be excluded of membership. But if states are member and are violating human rights, the general assembly can suspend membership of the human rights council, with a 2/3 majority.
• Now, this human rights council has more meetings a year without being really permanent, but it meets much more than the commission. So that problem is solved.

Question 20

What is the procedure/mechanism of the human rights council?

Answer 20

• Form of state reporting: not the states only that are explaining how they implement human rights, but based on 4 annual review cycle. Civil society is also involved = kind of a dialogue.
• Leads to national reports. That then are discussed with the human rights council. And at the end that leads to an outcome. If you want to know something about the human rights situation in a country, those reports on national states are extremely useful. Useful in two ways.

1. You will learn a lot about the states under review
2. You also learn to downplay it a little bit whenever you read things on your own country, that they are maybe understating/overstating it

• So may point is that is extremely useful information, but it is of course not an absolute truth. It is decent work, but of course is not necessarily perfect. When you compare the human rights council to the bodies, I’d say that the bodies are more about experts.

Question 21

What is the power play with the council?

Answer 21

• In the council, we are dealing with people coming for diplomacy. They follow a different logic. There are sometimes when states defend themselves in the hearing, how these mechanisms can be completely hijacked by some states being extremely clever in making alliance with other states and their diplomats will take the time, so there is no time to be very critical. There is a kind of power play we should not be naive on that.

Question 22

What are the special procedures of the Human Rights council?

Answer 22

1. Special reporters on a given right: where they write a report on their findings but it all depends on the person who writes it = thematic issues.
2. Also reports on specific countries if there are serious problems in some countries.

• So basically, the human rights council receive communications and complaints about gross violations on human rights. But what is fundamental is that you’re not going to go there with an individual problem. That is typically something for the monitoring body, when it becomes serious, then it is human rights council. Then it is dealt with in a more diplomatic way.

Question 23

What is the list of political/diplomatic approach in the track of the charter based mechanism?

Answer 23

• Long list of specific monitoring bodies and on the other hand: list of political/diplomatic approach in the track of the charter based mechanism.
• We do not have a HR court for the world. We have the international court of justice, but that is very limited. That has no general human rights jurisdiction, we have the international criminal court. By no means can we say that it is an international human rights court.
  
  • Some people advocated the idea of creating a world court for human rights. And that world court would be an answer to the argument that some mechanism is too political, that quasi-judicial bodies are not judges and it would be an answer to the problems of continents where there is no regional human rights court.
• Prof is more reluctant: same argument = diversity:
  
  • If you have a world court, maybe it is based on a conservative assessment that some of those regional human rights courts, they work quite well. The European Human rights court is really working well.

Question 24

What is the problem with a world court?

Answer 24

• How they would relate to the world court?
• An extra step? An extra appeal?
• The other point is that you do not introduce an extra level, but the regional courts become specialised chamber of the world court. Then of course the question is: to what extend are you creating a true world court? Aren’t you then creating a kind of network of international regional courts and only providing for Asia?
• Very little enthusiasm so not a real interest in establishing a world court on HR.