Rgmain010 Int. Law Of Human Right (Week 5)

Front 1

Wat is the purpose of ICCPR and ICESCR, compared to UDHR?

Back 1

(1) To give explicit legal form to the broad principles in UDHR.
(2) Establish monitoring mechanisms.

Front 2

What enshrines ICCPR?

Back 2

The traditional HR emerged in post-feudal europe, a counterweight to the increasingly powerful sovereign states. They put a limit to the state power.

Front 3

What is the difference between ICCPR and ICESCR described as obligation of the states in the provisions of the articles in the treaties themselves?

Back 3

ICCPR article 2 sais that states undertake to respect and ensure the rights in the treaty.
ICESCR "undertake to take steps...to the maximum of its available resources, with a view to achieving progressively the full realization"

Front 4

Is there any underlying philosophy behind those treaties?

Back 4

No

Front 5

Name a typical challenge to the rights in the ICCPR.

Back 5

That it is too individualistic. But it is not a good argument since the most of the right can be limited by fundamental community interests such as national security or public order.

Front 6

Which rights are non-derogable in ICCPR?

Back 6

-life (6)
-torture/ill-treatment (7)
-slavery (8)
-Non imprisonment for contractual debt. (11)
-Non-retroactivity of criminal offenses and punishment (15)
-recognition of legal personality (16)
-freedom of thought, conscience and religion (18)

Front 7

Can governments derogate from the articles in ICCPR.

Back 7

Yes but there are exceptions. And even for the articles that permit derogation during emergencies, the governments should not violate the rights more than strictly required.

Front 8

Can governments derogate from article 14 ICCPR

Back 8

Yes but they cannot make the trials totally unfair.

Front 9

What happens if there is no identifiable duty bearer?

Back 9

There is no right to claim. k 107

Front 10

What does the ICCPR exclude from possible interpretations of it?

Back 10

That one can engage in activities aimed at the destruction of the rights guaranteed by the treaty.

Front 11

Can one claim the right to self-determination before the Human Rights Committee?

Back 11

No, HRC sees it as a contextual right, but no individual can claim to be deprived of it.

Front 12

What is the scope of the application of ICCPR?

Back 12

It applies to all individuals under the effective control of a state (territory or jurisdiction). Two states interpreted it as only applying to the territory and the jurisdiction: U.S. and Israel.

HRC and ICJ rejected this.

Front 13

Does ICCPR apply always?

Back 13

U.S. and Israel contend that during armed conflict the humanitarian law is lex specialis and has priority.

(Wall and Congo)

Front 14

What realms encompasses the freedom in ICCPR?

Back 14

- what an individual may do within society.
- when does the individual and how she may be removed from society?

Front 15

Which freedoms are in ICCPR and UDHR?

Back 15

-expression
-opinion
-thought,
-conscience
-religion
-association
-assembly
-movement

Front 16

In what case did the HRC found a violation of article 19?

Back 16

Velichkin v. Belarus

Front 17

Wich rights might be absolute?

Back 17

freedom of opinion, thought, conscience and religion. The state has no right to demand that people accept or renounce any mode of opinion or belief. krause 11

Front 18

Can freedom of opinion, thought, conscience and religion be limited by the state?

Back 18

No they are absolute, but their public deployment (expression of opinion, manifestation of belief) can be restricted.

Front 19

Can states impose one religion?

Back 19

No. HRC interpreted ICCPR as guaranteeing the right to adopt, change the religion or atheistic views. Comments + krause 111

Front 20

What decided HRC in Faurisson v. France?

Back 20

The French conviction was justified to protect the rights and reputation of others.

Front 21

Can a state easily avail itself of the possibility to invoke national security, public safety, public order, health, morals etc. to limit human rights?

Back 21

No. HRC considers that the principle of necessity puts a heavy burden on the state to proof that there is a real and pressing need.

Front 22

When was the world slavery free in law?

Back 22

Since 1980 abolition in Mauritania.

Front 23

What does the ICCPR mean by "arbitrary"?

Back 23

it is not just unlawful, but can be interpreted more broadly, to include elements of inappropriateness, injustice and lack of perfectibility.

Van Alphen v. the Netherlands

Front 24

What does fair and impartial mean in ICCPR?

Back 24

That officials should treat all alike cases alike.

Front 25

Is positive discrimination allowed under ICCPR?

Back 25

HRC: certain preferential treatment' may be permissible 'to correct discrimination in fact.'

Stalla Costa v. Uruguay

Front 26

what is article 27 ICCPR about?

Back 26

minority rights

Front 27

Which rights are directly related to human dignity in ICCPR

Back 27

- right to life
- prohibition of torture and ill-treatment
- right of the persons deprived of liberty to be treated with humanity

Front 28

What can be said about the right to life under ICCPR?

Back 28

HRC called it the 'supreme right'

Front 29

Is the right to life under ICCPR absolute?

Back 29

non-derogable but not absolute. but no arbitrary deprivation is allowed.

Front 30

Is killing in armed conflict a violation of ICCPR?

Back 30

No.
-self-defence
-necessary measure of law enforcement to protect life
-and lawful killing in armed conflict.

Front 31

What does ICCPR say about the death penalty?

Back 31

The states that did not abolished it yet, should give it only for the most serious crimes, not for actions related to rights guaranteed in the ICCPR, only after fair trial and possibility of appeal and amnesty.

Front 32

Are states allowed to extradite people to other states where they might face the death penalty?

Back 32

According to HRC abolitionist states violate article 6(2) if they do it.

Front 33

What right have the families of the disappeared or executed prisoners?

Back 33

HRC: they have the right to know about their whereabouts.

Front 34

Is punishment administered extra-legally cruel, inhuman or degrading punishment?

Back 34

HRC: yes. only punishment after due process is permissible.

Front 35

What ICCPR article violates the arbitrary detention?

Back 35

Article 9 and 7.

Front 36

What does article 14 ICCPR guarantee?

Back 36

nullum crimen, nulla pena sine lege.
Article 15 prohibits prosecutions under Ex post facto law and the imposition of retrospective criminal penalties, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction.[43]

Front 37

Do military tribunals deliver justice to civilians?

Back 37

HRC expressed an increasing skepticism about the issue. Se General Comment no 32.

Front 38

Does ICCPR proscribe any form of government?

Back 38

No. But article 25 guarantees the right to participation to decisions affecting individuals. They take part in the public affairs 'directly or through freely chosen representatives."

Front 39

Is the value of "Accountability" expressed in ICCPR?

Back 39

Not directly, but some of the articles express it indirectly. For instance one has to provide judicial, administrative or legislative remedies.

Front 40

Can individuals submit complaints under ICCPR?

Back 40

If the state signed the First Optional Protocol, individuals can submit complaints (communications) to the HRC.

Front 41

How many states accepted the complaints procedure under the optional protocol ICCPR?

Back 41

111 from 164. over two-thirds.

Front 42

Can the HRC hand down binding judgements?

Back 42

No.