HUMAN RIGHTS TREATIES & LAWS

REMEDIES AND ENFORCEMENT

It has been said that for every right violated, an effective remedy is needed. Human rights without effective implementation are shadows without substance .1 This amplifies Article 8 of the Universal Declaration of Human Rights which explicitly states: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by him by the constitution or by law . Further, Article 2 [3] of the International Covenant on Civil and Political Rights asserts that the State parties shall ensure that any person whose rights or freedoms as herein recognized are violated shall have an affective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; and to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities . Nevertheless, the gap between universal right and remedy has become inescapable and inexcusable, threatening the integrity of the international human rights legal regime. There are overwhelming numbers of overdue reports, untenable backlogs, minimal individual complaints from vast numbers of potential victims, and widespread refusal of states to provide remedies when violations of individual rights are found. 2

Remedies under UN Treaties

Remedies for the enforcement of human rights may be through international bodies and tribunals or through national or domestic agencies. But there is no definite international organ or tribunal to enforce human rights. The ability of individuals to complain about the violation of their rights in an international arena brings real meaning to the rights contained in the human rights treaties. There are three main procedures for bringing complaints of violations of the provisions of the human rights treaties before the human rights treaty bodies: individual communications;

state-to-state complaints; and

1 Humphrey, International Committee on Human Rights, International Law

BERAYE

JOQUINO

MUYUELA

PALMAIRA

Association, Buenos Aires, 1968. 2 Bayefsky, Anne. The UN Human Rights Treaty System: Universality at the Crossroads (A Report), 2001

inquiries. There are also procedures for complaints which fall outside of the treaty body system through the Special Procedures of the Human Rights Council and the Human Rights Council Complaint Procedure. There are nine core international human rights treaties. Each of these treaties has established a treaty body (Committee) of experts to monitor implementation of the treaty provisions by its States parties. Treaty bodies (CCPR, CERD, CAT, CEDAW, CRPD, CED, CMW, CESCR and CRC) may, under certain conditions, consider individual complaints or communications from individuals. A complaint under one of the nine treaties can be brought only against a State that satisfies two conditions: First, it must be a party (through ratification or accession) to the treaty in question providing for the rights which have allegedly been violated; Second, the State party must have recognized the competence of the Committee monitoring the relevant treaty to receive and consider complaints from individuals. But not all treaty body based complaint mechanisms have entered into force. Currently, seven of the human rights treaty bodies (CCPR, CERD, CAT, CEDAW, CRPD, CED and CESCR) may, under certain conditions, receive and consider individual complaints or communications from individuals There are three special cases, however, where an individual may file a complaint for the violation of human right protected by Human Rights Treaties. 3 These are:

party to the Optional Protocol recognize the competence of the Human Rights Committee a panel of 18 independent experts who meet three times a year to receive complaints from persons within their jurisdiction alleging violations of their rights under the Covenant

2. The International Covenant on the Elimination of All Forms

of Racial Discrimination: This was adopted and opened for signature by the United Nations General Assembly on 21 December 1965, and entered into force on 4 January 1969. As of June 2013, it has 86 signatories and 176 parties. The individual complaints mechanism has led to a limited jurisprudence on the interpretation and implementation of the Convention. So far 45 complaints have been registered with the Committee; 17 of these have been deemed inadmissible, 14 have led to a finding of no violation, and in 10 cases a party has been found to have violated the Convention. Four cases are still pending4. Article 14 of the Convention establishes an individual complaints mechanism similar to that of the First Optional Protocol to the International Covenant on Civil and Political Rights, Optional Protocol to the Convention on the Rights of Persons with Disabilities and Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Parties may at any time recognise the competence of the Committee on the Elimination of Racial Discrimination to consider complaints from individuals or groups who claim their rights under the Convention have been violated. 5 The Committee on the Elimination of Racial Discrimination (CERD) is a body of human rights experts tasked with monitoring the implementation of the Convention. It consists of 18 independent human rights experts, elected for four-year terms, with half the members elected every two years. Members are elected by secret ballot of the parties, with each party allowed to nominate one of its nationals to the Committee

1. The Optional Protocol to International Covenant on Civil and Political Rights:

This was adopted on December 16, 1966 and was ratified by the Philippines on August 22, 1989. The Protocol is a procedural measure for implementing the Covenant, and as such, is only open to States bound by the substantive obligations set forth in the Covenant. The essence of the Protocol is expressed in its Preamble: to enable the Human Rights Committee ... to receive and consider, as provided in the present Protocol, communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant. Individual rights that may be invoked before the Committee are set out in Articles 6 to 27 inclusive, comprising Part III of the Covenant. The complaint mechanism for alleged violations of those articles is contained in the First Optional Protocol to the Covenant, a separate treaty open to States parties to the Covenant. States that have become a 3 Coquia, Jorge. Human Rights, Central Book Supply. Inc., 2012, p. 276.

3. The Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (the Torture Convention): This was adopted by the General Assembly of the United Nations on 10 December 1984 (resolution 39/46). The Convention entered into force on 26 June 1987 after it had been ratified by 20 States. The Torture Convention was the result of many years work, initiated soon after the adoption of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Declaration) by the General Assembly on 9 December 1975 (resolution 3452 (XXX)). 4 "Status of communications dealt with by CERD under Art. 14 Procedure". UN CERD. 22 July 2010. Retrieved 2010-08-03. 5 ICERD, Article 14 (1).

As the effectiveness of the Torture Convention, like that of many other human rights conventions, would depend to a large extent on the supervision system, the implementation at the international level gave rise to extensive discussions. It was finally decided that a Committee against Torture would be set up (article 17 of the Torture Convention) with the following tasks: (i) To receive, study and comment on periodic reports from the States parties on the measures they have taken to give effect to their undertakings under the Convention (article 19);

(ii) To initiate an investigation when there is reliable information which appears to

contain well-founded indications that torture is being systematically practised in the territory of a State

A considerable number of other avenues exist for bringing individual complaints. Under the United Nations Secretariat, complainant can consider submitting a complaint before the Human Rights Council Complaint Procedure (previously known as 1503 procedure) and the mandate-holders (special rapporteurs and working groups) of the Human Rights Council. Moreover, complainants can consider submitting also complaints before the organizations forming part of the wider United Nations family such as the International Labour Organization and the United Nations Educational, Scientific and Cultural Organization.

Remedies Not Covered by UN Treaty

The United Nations 1503 procedure is a universal mechanism. It applies in respect of all countries in the world. The 1503 Procedure is named after the resolution of the United Nations Commission on Human Rights which established it. It enables 2 bodies of the UN (the Sub-Commission on the Promotion and Protection on Human Rights and the Commission on Human Rights) to examine complaints which appear to show consistent patterns of gross and reliably attested human rights violations received from individuals or NGOs.6 Main features and usefulness of the UN 1503 procedure 1. Examination of the human rights situation in a country This procedure examines the human rights situation in countries. It does not examine individual cases. When a large number of individual cases are received which, taken together, seem to show a pattern of gross and reliably attested violations of human rights, the UN may decide to examine the situation in that country. This procedure is not useful if you, or the person you represent, has been the victim of a violation of human rights and you want an international mechanism to investigate the case. If you are looking for such a mechanism, the 1503 procedure is not for you. 2. Confidentiality In its early stages, the 1503 procedure is confidential. It involves communications between the UN and the state under examination which are not made public. Individuals or NGOs which submit complaints are not informed of any action taken regarding their complaint. Usually, the only communication they receive from the UN is a letter acknowledging receipt of their complaint. 6 http://www.un1503petition.com/vP/whatIsTheUN1503.htm

(iii) To receive and examine complaints by one State party of violations of the
Convention by another State party (article 21); and party (article 20);

(iv)

To receive and examine applications by individuals claiming to be victims of a violation of the Convention by a State party (article 22).

However, the competences of the Committee against Torture under (ii), (iii) and (iv) were not made compulsory but apply with the following modifications: A State party may opt out and declare that it does not recognize the Committees competence to initiate investigations under article 20 (article 28);

The Committees competence to examine inter-State complaints only

applies when a State party has specifically recognized this competence (article 21);

The Committees competence to examine applications by individuals only

applies when a State party has specifically recognized this competence (article 22). For complaints to the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee on the Rights of Persons with Disabilities, and the Committee on Enforced Disappearance, correspondence and inquiries may be directed to: Mail Petitions and Inquiries Section Office of the High Commissioner for Human Rights United Nations Office at Geneva 1211 Geneva 10, Switzerland + 41 22 917 90 22 (particularly for urgent matters) petitions[at]ohchr.org

Fax Email

Remedies NOT Binding:

The remedies provided for are not legally binding. The reports have only persuasive effect on the offending state.

The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine. In addition, the ICC only tries those accused of the gravest crimes. In all of its activities, the ICC observes the highest standards of fairness and due process. The jurisdiction and functioning of the ICC are governed by the Rome Statute.7 The European Court of Human Rights The European Court of Human Rights is an international court set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Since 1998 it has sat as a full-time court and individuals can apply to it directly. In almost fifty years the Court has delivered more than 10,000 judgments. These are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas. The Courts case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe. The Court is based in Strasbourg, in the Human Rights Building designed by the British architect Lord Richard Rogers in 1994 a building whose image is known worldwide. From here, the Court monitors respect for the human rights of 800 million Europeans in the 47Council of Europe member States that have ratified the Convention. National Human Rights Institutions National human rights institutions (NHRI) are State bodies with a constitutional and/or legislative mandate to protect and promote human rights. They are part of the State apparatus and are funded by the State. 7 http://www.icc-cpi.int/en_menus/icc/about%20the%20court/icc%20at%20a
%20glance/Pages/icc%20at%20a%20glance.aspx

Universal Jurisdiction on Gross Violations of Human Rights

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a body of the United Nations established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their perpetrators. The tribunal is an ad hoc court which is located in The Hague, the Netherlands. The Court was established by Resolution 827 of the United Nations Security Council, which was passed on 25 May 1993. It has jurisdiction over four clusters of crimes committed on the territory of the former Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of the laws and customs of war, genocide, and crimes against humanity. The maximum sentence it can impose is life imprisonment. Various countries have signed agreements with the UN to carry out custodial sentences. The International Criminal Tribunal for Rwanda (ICTR) is an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of international lawin Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994. The International Criminal Court The International Criminal Court (ICC), governed by the Rome Statute, is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. The ICC is an independent international organisation, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands. Although the Courts expenses are funded primarily by States Parties, it also receives voluntary contributions from governments, international organisations, individuals, corporations and other entities.

National human rights institutions (NHRIs) are not only central elements of a strong national human rights system: they also bridge civil society and Governments; they link the responsibilities of the State to the rights of citizens and they connect national laws to regional and international human rights systems. At the same time, NHRIs often find themselves criticizing the actions of the very Governments that created and fund them, which is not surprising since States are frequently the targets of human rights complaints.8 There is no standard nomenclature for NHRIs, just as there is no standard model. National human rights institutions have different names, depending on the region, legal tradition and common usage. There are many different kinds of national institutions in the broad sense of that term. Auditors-general and classic ombudsmen with no human rights mandates in their enabling laws are autonomous, national institutions that may touch on human rights issues in their work, but are not NHRIs. On the other hand, ombudsman institutions often have specific responsibility for human rights. Only by carefully reading the enabling law and the mandate can it be determined if an institution is an NHRI. That said, some ombudsman offices take the position that they can handle human rights matters in practice, even if the country has a separate NHRI. In such cases, the institutions should be encouraged to work together to avoid duplication or confusion. It should be noted that some NGOs also have the word commission in their name, but an NGO is not an NHRI.

The Philippine Commission on Human Rights (CHR) is mandated to monitor government compliance and undertake independent review and reporting of the different international treaties and agreements entered into by the Philippines. To fulfill this mandate, the CHR launched the Treaties and Monitoring Program with the primary aim to formulate and be responsible for the application of policies, standards, guidelines and operating mechanisms, and procedures on the conduct of major treaties monitoring; Most of human rights violations in the Philippines are now considered as criminal offenses. If the Offender is a public official or employee, the CHR refers the case to the administrative head of the agency for appropriate action. If the human rights violation is not a criminal offense, the offended party can file a civil action for damages. The CHR recognized the need of their presence at the grassroots level, advocating for the protection and promotion of the human rights of all people. Hence, the Barangay Human Rights Action Center (BHRAC) project was launched. As a flagship program of the Commission, BHRAC has been conceived so that the CHR will be within the reach of the people specially in the far flung areas. The Commission believes a strong and effective BHRAC program will provide all individuals, from those living in the busiest city to those living in the most secluded barrio, easy access to the services of the Commission. The BHRAC program will help spread awareness of human rights and fundamental freedom to all corners of the archipelago.

Local Remedies in the Philippines

The Philippines has ratified major human rights treaties which, as a State Party, it is under obligation to comply with. There is still no definite jurisprudence on human rights in the Philippines except the court decisions dealing on constitutional guarantees of Civil and Political Rights of the Philippine Constitution. There is no human rights courts in the Philippines. The Commission on Human Rights (CHR) was established as a constitutional, independent body to pursue state policy on the promotion and protection of human rights. It is only an investigative body on civil and political rights but not on economic rights. The BHRAC has two functions/services: 1. Complaints Referral: The BHRAO is primarily (at the very least) tasked to receive complaints of alleged human rights violations and refer the same to the nearest CHRP regional or sub-office for investigation.

8 United Nations. National Human Rights Institutions: History, Principles, Roles,

Responsibilities, Professional Training Series No. 4, 2010.

2. Awareness-Raising on Human Rights : The BHRAO is tasked to coordinate with the CHRP Regional offices in conducting for seminars, training, symposia and other human rights information and education activities. He/she is also tasked to mobilize community for the mobile education and develop human rights advocates within the barangay. In fine, the problem of a more effective enforcement of human rights as well as the speedy prosecution of violations of human rights cannot be solved by merely giving the CHR either prosecutor or quasi judicial powers. There are some countries that have established quasi-judicial bodies to try and adjudicate human rights violations, but such bodies are not constitutional bodies. They derive their powers from statutory legislation or under a human rights code of conduct defining the jurisdiction of said quasi-judicial human rights bodies. Recommendations: The United Nations possess no adjudicatory powers. A variety of methods has been developed by UN to stop human rights violations such as appealing to states to bring about changes in its foreign policy. The UNCHR conducts public discussions on situations in areas where gross human rights violations occur upon written information of special rapporteurs and NGOs using the 1503 procedures. The UN agencies, bodies and programmes are key partners in the effective functioning of the human rights treaty system. Neither OHCHR, nor the treaty bodies, has the capacity to engage as broad a constituency in the treaty system as these agencies/organs. The culture of the UN should promote the genuine integration of human rights into the functions and operations of existing mechanisms. Efforts should be made by OHCHR and the treaty bodies to maximize the involvement of the agencies/organs in the treaty system.9 In the Philippines, there is still the increase in the number of human rights violation cases. But the active role of various human rights advocacy groups and private institutions, even churches, as human rights watchdogs compel the national government with the CHR to observe UN treaties and commitments on human rights. #

9 Bayefsky, Anne. The UN Human Rights Treaty System: Universality at the

Crossroads, 2001., p.170.