The Fundamentals of International Human Rights Treaty Law

304 Pages·2011·3.006 MB·English

by  Bertrand G. Ramcharan

The Fundamentals of International
Human Rights Treaty Law
International Studies in Human Rights
Volume 106
The titles in this series are listed at the end of this volume.
The Fundamentals of International
Human Rights Treaty Law
By
Dr. Bertrand G. Ramcharan LI.M (LSE), Ph.D. (LSE)
Barrister-at-Law (Lincoln’s Inn)
Distinguished Fellow, Human Rights Law Centre,
University of Nottingham
Previously: First Swiss Chair of Human Rights,
Geneva Graduate Institute of International and Development Studies;
Chancellor of the University of Guyana
UN High Commissioner for Human Rights
(A · I, 2003-2004)
LEIDEN • BOSTON
2011
This book is printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data
Ramcharan, B. G.
The fundamentals of international human rights treaty law / By Bertrand G. Ramcharan.
p. cm. — (International Studies in Human rights ; 106)
Includes bibliographical references and index.
ISBN 978-90-04-17608-9 (hardback : alk. paper)
1. Human rights. 2. Treaties. I. Title.

K3240.R3556 2011
341.4’8026—dc22
2010050173
ISSN 0924-4751
ISBN 978 90 04 17608 9
Copyright 2011 by Koninklijke Brill NV, Leiden, The Netherlands.
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“Th e Convention is a living instrument which…must be interpreted in light of
present-day conditions”
The European Court of Human Rights 1
“…(I)ts function is to determine whether the requirements of a given Convention are
being met, whatever the economic and social conditions existing in a given country.
Subject only to any derogations which are expressly permitted by the Convention
itself, these requirements remain constant and uniform for all countries. In carrying
out this work, the Committee is guided by the standards laid down in the Conven-
tion alone, mindful, however, of the fact that the modes of their implementation may
be diff erent in diff erent States. Th ese are international standards, and the manner in
which their implementation is evaluated must be uniform and must not be aff ected
by concepts derived from any particular social or economic system.”
ILO Committee of Experts on the Application of Conventions and Recommendations2
“Treaty-based human rights petitions procedures take the State down from the ped-
estal of sovereignty to the level of the individual. One of their great merits is the
principle of equality of arms.”
Judge Jakob Th. Möller 3
2 August, 2009
“Th e production, testing, possession, deployment and use of nuclear weapons should
be prohibited and recognized as crimes against humanity .”
Human Rights Committee4
1 Tryer v. the United Kingdom , Judgment of 25 April, 1978, Series A No. 26, pp. 15-16,
para. 31; the Soering judgment, p. 40. para. 102; Lozidou v. Turkey, judgment of 23
March, 1995, Series A. No. 310, pp. 27-27, para. 71.
2 International Labour Conference, 63rd Session, 1977, Report III, Part 4A, Report of
the Committee of Experts on the Application of Conventions and Recommendations,
ILO , Geneva, 1977, pp. 10-11, para. 31.
3 Author (with A. de Zayas), United Nations Human Rights Committee Case Law 1977-
2008. N.P. Engel, 2009.
4 General Comment No. 14: Article 6 (Right to Life), Adopted at the twenty-third ses-
sion (1984).

Table of Contents
Foreword J.Th. Möller xiii
Introduction 1
Chapter One The Nature and Characteristics of International Human
Rights Treaty Law 9
Introduction 9
I. International Judicial Organs and the Nature of Interna-
tional Human Rights Treaty Obligations 9
II. The Primacy of International Human Rights Law 11
III. The Relationship between International Legal Obliga-
tions and Domestic Law: From Dualism, Monism, and
Coordination, to Responsibility 14
IV. The Nature of Treaty Obligations 16
V. Obligations under the United Nations Charter 20
VI. Mandatory Decisions of the United Nations Security Council 22
VII. Treaties and International Customary Law 23
VIII. Jus Cogens Rights and Rights That May Never Be
Suspended or Abrogated 28
IX. The Progressive Development of International Human
Rights Treaty Law 31
Conclusion 31
Chapter Two The Requirement of a National Protection System 33
Introduction 33
I. The National Responsibility to Protect 33
II. The Recommendations of Human Rights Treaty Bodies 35
A. Implementation at the National Level (General Comment
No. 3 (1981) of the Human Rights Committee) 35
B. Developing a Comprehensive National Strategy (General
Comment No. 5 of the Committee on the Rights of the Child) 36
C. The Role of National Human Rights Institutions in the
Protection of Economic, Social and Cultural Rights (Gen-
eral Comment No. 10 (1998) of the CESCOR) 37
D. CERD General Recommendation XVII (1993) on the
Establishment of National Institutions to Facilitate the
Implementation of the Convention 38
viii Table of Contents
E. CEDAW General Recommendation 6 (1988) on Eff ective
National Machinery and Publicity 39
F. Other Treaty Bodies 39
I. The Concept of a National Protection System 39
Constitutional Dimension 40
Legislative Dimension 41
Judicial Dimension 42
Institutional Dimension 43
Monitoring Dimension 43
II. The Prevention of Human Rights Violations 44
A. Preventive Protection of the Right to Life 45
B. Preventive Dimensions of the Right to an Eff ective Remedy 46
C. Interim Measures of Protection 48
D. Deportation and Extradition to Countries Where There
Is Risk of Serious Violation of Human Rights: Preventive
Protection 49
III. Remedies for Human Rights Violations 50
IV. The Role of the Courts and of Law Enforcement Agencies 51
V. The Role of National Human Rights Institutions 53
The Preventive Role of National Human Rights Institutions 56
VI. The Role of Human Rights Education in a
National Protection System 57
VII. The Role of National Human Rights Plans of Actions in
National Protection Systems 58
Conclusion 60
Chapter Three Democracy and the Rule of Law 63
Introduction 63
I. The European Court of Human Rights 64
II. General Comment No. 25 of the Human Rights Commit-
tee (1996) 64
III. General Comment No. 12 of the Human Rights Committee 65
IV. Democracy and Human Rights 66
V. The Content of Democracy 69
VI. The Rule of Law 72
A. Essential Requirements of a Society Under the Rule of Law 72
B. The Legislature and the Rule of Law 72
C. The Executive and the Rule of Law 73
D. The Criminal Process and the Rule of Law 73
E. The Judiciary and the Rule of Law 73
F. The Legal Profession and the Rule of Law 73
G. Economic and Social Development 73
VII. The Role of the Courts and of Law Enforcement Agencies 74
VIII. The European Court of Human Rights and the Rule of Law 74
Table of Contents ix
• Principle of lawfulness 76
• Principle of legal certainty 77
• Principle of equality before the law 78
C. Due process: Judicial Review, Access to Courts and
Remedies, Fair Trial 78
IX. Democracy and Freedom of Association in the Jurispru-
dence of ILO Supervisory Bodies 80
X. The Jurisprudence and Practice of Other Treaty Bodies 82
Conclusion 84
Chapter Four Human Rights in Times of Crises or Emergencies 85
Introduction 85
I. The Core Provisions 86
A. The European Convention 87
B. The ICCPR 87
C. The American Convention 88
II. 1968 Resolution of the Inter-American Commission on
Human Rights 89
III. General Comment No. 29 of the Human Rights Committee 90
A. Essential Requirements 90
B. The Meaning of a Public Emergency 91
C. Proportionality 91
D. Peremptory Norms 91
E. Crimes Against Humanity 92
F. Notifi cation 92
IV. The Prohibition of Torture 93
V. Judicial Guarantees 93
VI. Margin of Appreciation 95
VII. The Legality of Nuclear Weapons 95
Conclusion 96
Chapter Five Preventive Strategies:
Obligations to Prevent under International Human
Rights Treaties and Jurisprudence 99
Introduction 99
I. General Recommendations of Treaty Bodies 100
A. The Prevention of Torture 100
B. Preventing Racial Discrimination in the Administration
and Functioning of the Criminal Justice System 101
C. Avoiding Discrimination Against Women in National
Strategies for the Prevention of AIDS 102
D. Preventing Deprivation of Liberty of Children and
Treatment in Cases Thereof 103
E. Preventive Protection of the Right to Life 103
II. The Convention on the Prevention and Punishment of
the Crime of Genocide 104
x Table of Contents
III. Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment 106
IV. Optional Protocol to the Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or Punish-
ment 111
V. European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment 116
VI. Preventive Procedures of UN Human Rights Treaty Organs 119
Conclusion 121
Chapter Six The Duty to Respect, Protect and Ensure 123
Introduction 123
I. The Duty to Respect 124
II. The Duty to Protect 125
The Responsibility to Protect 128
Preventive, Curative and Remedial or Compensatory
Protection 129
Shades of Protection: Direct and Indirect 131
III. The Duty to Ensure 133
IV. Violations of the Obligations to Respect,
to Protect and to Fulfi l 134
Conclusion 135
Chapter Seven The Duty to Provide Redress 137
Introduction 137
I. The Jurisprudence and Practice of Treaty Bodies 137
A. Inter-American Court of Human Rights 137
B. Human Rights Committee 138
C. Committee on Economic, Social and Cultural Rights 138
D. Committee on the Elimination of Discrimination Against
Women (CEDAW) 139
E. Committee on the Elimination of Racial Discrimination
(CERD) 139
II. The UN Basic Principles and Guidelines 140
A. Obligation to Respect, Ensure Respect for and Imple-
ment International Human Rights Law and International
Humanitarian Law 140
B. Scope of the Obligation 140
C. Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law
that Constitute Crimes under International Law 141
D. Statutes of Limitations 142
E. Victims of Gross Violations of International Human
Rights Law And Serious Violations of International
Humanitarian Law 142