|Background Information on Human Rights >
Legal Protection of human rights
Legal Protection of human rights
"The law does not change the heart,
but it does restrain the heartless."
Martin Luther King
We already know that human rights are inalienable
rights possessed by every human being, but how can we access these
rights? Where can we find evidence that these rights have been
formally recognised by states? And how are these rights implemented?
Human rights are recognised by agreements
At international level, states have come together to draw up
certain agreements on the subject of human rights. These agreements
establish objective standards of behaviour for states, imposing
on them certain duties towards individuals. They can be of two
kinds: legally binding or non-binding.
A binding document, often called a Treaty, Convention or Covenant,
represents a commitment by states to implement rights at national
level. States must individually show their willingness to be bound
and this can be done through ratification or accession. (Simply
signing the document does not make it binding.) States are generally
allowed to make reservations or declarations which exempt them
from certain provisions in the document, the idea being to get
as many of them as possible to sign. After all, it is better to
have a state promising to comply with some human rights provisions
than with none! This mechanism, however, can sometimes be abused
and used as a pretext for denying basic human rights, allowing
a state to 'escape' international scrutiny in certain areas.
Why do you think that even states with a very poor record on human
rights are ready to sign international human rights treaties?
By contrast, a non-binding instrument is basically just a declaration
or political agreement by states to the effect that all attempts
will be made to meet a set of rights but without any legal obligation
to do so. This usually means, in practice, that there are no official
(or legal) implementation mechanisms.
What is the value in a mere 'promise' to abide by human rights
standards, when this is not backed up by legal mechanisms? Is
it better than nothing?
A United Nations declaration or non-binding document is usually
the result of a meeting of the United Nations General Assembly
or a conference held on a specific issue. All states, by simply
being members of the United Nations or by taking part in the conference,
are considered to be in agreement with the declaration issued.The
recognition of human rights can also be, at national level, the
result of an agreement between a state and its people. When human
rights are recognised at national level, they become primarily
a commitment of a state towards its people.
Key international documents
The importance of Human rights is increasingly acknowledged,
and are receiving ever wider protection. This should be seen as
a victory not only for human rights activists, but for all people
in general. A corollary of such success is the development of
a large and complex body of human rights texts (instruments) and
Human rights instruments are usually classified under 3 main
categories: the geographical scope (regional or universal), the
category of rights provided for and the specific category of persons
or groups to whom protection is given.
At UN level alone, there are more than a hundred human rights
related documents, and if we add in those at different regional
levels, the number increases further. We can not consider all
these instruments here, so this section will only deal with those
that are most relevant:
- documents which have been widely accepted and have laid the
ground for the development of other human rights instruments
- the major European documents
- documents which touch on the global issues explored in the
The International Bill of Rights
The most important global human rights instrument is the Universal
Declaration of Human Rights (UDHR), adopted in 1948 by the General
Assembly of the UN. This is so widely accepted that its initial
non-binding character has altered, and it is now frequently referred
to as legally binding on the basis of customary international
The UDHR consists of a preface and 30 articles setting forth
the human rights and fundamental freedoms to which all men and
women everywhere in the world are entitled, without any discrimination.
It guarantees both civil and political as well as social, economic
and cultural rights.
The International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social and Cultural
Rights (ICESCR) both came into force in 1966 and are the main
legally binding instruments of worldwide application. Together
with the UDHR, they form the International Bill of Rights. Each
of them, as their names indicate, provides for a different category
This is the first human rights document
of the European Union. It combines in a single text the civil,
political, economic, social and societal rights already laid down
in a variety of international, European and national sources.
It was jointly proclaimed by the European Council, together with
the European Parliament and the European Commission in Nice, between
December 7 and 9, 2000. Unlike the Council of Europe's conventions,
it is not legally binding and it covers only the European Union.
Whereas the rights included in the ICCPR
apply as soon as a state has agreed to be bound by it, the rights
of the ICESCR may be implemented gradually. (This puts states
under an obligation to develop policies and legislation that will
assist the full realisation of the rights). The covenants are
treated differently because, generally speaking, economic, social
and cultural rights cannot be realised instantly.
Do you think it is right that civil and political rights are supposed
to be implemented straight away, and social and economic rights
Four of the five world regions have established human rights
systems for the protection of human rights. In the Americas, there
is the Organization of American States, and the main binding document
is the American Convention on Human Rights of 1969. In Africa,
we find the African Charter on Human and Peoples' Rights, adopted
in 1986 within the African Union (formerly known as the Organisation
of African Unity). On the Asian continent, no real system
has been developed to date and the only regional human rights
instrument is a non-binding declaration - the Asian Declaration
on human rights. And Europe? Europe, of course, has a well-established
system within the Council of Europe for the protection of human
Why do you think different regions have found it necessary to
establish their own human rights systems?
The main human rights instrument is the European Convention
on the Protection of Human Rights and Fundamental Freedoms (also
known as the European Convention on Human Rights - ECHR). This
has been accepted by all the member states in the Council of Europe,
since it is a requirement for membership. It was adopted in 1950
but only came into force three years later. It provides for civil
and political rights and its main strength is its implementation
machinery - the European Court of Human Rights. This court and
its jurisprudence are admired throughout the world and are often
referred to by the UN and by constitutional courts of numerous
countries and other regional systems.
Just as at the UN level, social and economic rights in Europe
are provided for in a separate document. The (Revised) European
Social Charter is a binding document that covers rights to safeguard
people's standard of living in Europe. The charter has been signed
by 32 member states and, by the end of 2001, it had been ratified
by 12 of them.
Protection of specific
see myself in every stranger's eyes."
As well as recognising the fundamental rights
of individuals, some human rights instruments recognize the rights
of specific groups. These special protections are in place because
of previous cases of discrimination against groups and because
of the disadvantaged and vulnerable position that some groups
occupy in society. Examples of groups that have received special
These are protected:
- at UN level by a Declaration on the Rights of Persons Belonging
to National or Ethnic, Religious and Linguistic Minorities adopted
in 1992 and a Sub-Commission on the Prevention of Discrimination
and the Protection of Minorities
- at European level by a binding instrument - the Framework
Convention for the Protection of National Minorities, which
created a monitoring body of independent experts: the Advisory
Committee on the Framework Convention.
- by having a special place in the Organization on Security
and Co-operation in Europe (OSCE) by the High Commissioner on
National Minorities, and by relevant OSCE documents.
Their main protection is given at UN level with the Convention
on the Rights of the Child (CRC) of 1990, the most widely ratified
convention (not ratified only by the United States and Somalia).
At the African level, the African Charter on the Rights and Welfare
of the Child provides basic children's rights, taking into account
the unique factors of the continent's situation. It came into
force in 1999.
The rights of refugees are specially guaranteed in the Convention
relating to the Status of Refugees of 1951 and by the United Nations
High Commissioner on Refugees (UNHCR). The only regional system
with a specific instrument on refugee protection has been Africa
with the adoption, in 1969, of the Convention Governing the Specific
Aspects of Refugees, but in Europe the ECHR also offers some additional
In an attempt to promote worldwide equality between the sexes,
the rights of women are specifically protected by the UN Convention
on the Elimination of All Forms of Discrimination against Women
Groups such as workers and detained persons are also given special
protection because of their vulnerable positions, which are easily
open to abuse. Other groups, for example indigenous peoples, have
not been lucky enough to receive specific protection and have
been fighting for years for their rights as groups.
Can you think of groups in your society that are in need of special
Fighting racism and intolerance
Protocol 12 of the
A new protocol to the
ECHR was adopted in 2000: Protocol 12. At the moment it has been
signed by 27 states and ratified by one. It will enter into force
after 10 ratifications. Its main focus is the prohibition of discrimination.
The ECHR already guarantees the right not to be discriminated
against (Article 14) but this is thought to be inadequate in comparison
with those provisions of other international instruments such
as the UDHR and the ICCPR. The main reason is that article 14,
unlike the others, does not contain an independent prohibition
of discrimination; that is, it prohibits discrimination only with
regard to the 'enjoyment of the rights and freedoms' set forth
in the Convention. When this protocol comes into force, the prohibition
of discrimination will have an 'independent life' from other provisions
of the ECHR
The European Commission Against Racism and
Intolerance (ECRI) is a mechanism which was established by the
first Summit of Heads of State and Government of the member States
of the Council of Europe in 1993. ECRI's task is to combat racism,
xenophobia, antisemitism and intolerance at the level of Europe
as a whole and from the perspective of the protection of human
rights. ECRI's action covers all necessary measures to combat
violence, discrimination and prejudice faced by persons or groups
of persons, notably on grounds of race, colour, language, religion,
nationality and national or ethnic origin.
ECRI's members are designated by their governments on the basis
of their in-depth knowledge in the field of combating intolerance.
They are nominated in their personal capacity and act as independent
ECRI's main programme of activities comprises:
- a country-by-country approach consisting of carrying out
in-depth analyses of the situation in each of the member countries
in order to develop specific, concrete proposals, matched by
- work on general themes (the collection and circulation of
examples of good practice on specific subjects to illustrate
ECRI's recommendations, and the adoption of general policy recommendations).
- activities in liaison with the community, including awareness-raising
and information sessions in the member states, co-ordination
with national and local NGOs, communicating an anti-racist message
and producing educational material.
Enforcing human rights
How can we ensure that these protection mechanisms work? Who,
or what compels states to carry out their obligations? The main
supervisory bodies are commissions or committees and courts, all
of which are composed of independent members - experts or judges
- which do not represent a single state. The main mechanisms used
by these bodies are:
1. Complaints (brought by individuals, groups
2. Court cases
3. Reporting procedures.
Since not all human rights instruments or regional systems use
the same procedures for implementing human rights, a few examples
will help to clarify.
Complaints against a state are brought before a commission or
committee in what is usually referred to as a quasi-judicial procedure.
The supervisory body then takes a decision and States are expected
to comply with it, though no legal enforcement procedure exists.
Often a state needs to give an additional declaration or ratification
of an optional protocol to signify its acceptance of the complaints
system.The Human Rights Committe and the Committee on the Elimination
of Racial Discrimination (within the United Nations system), and
the Inter-American Commission on Human Rights (within the Organisation
of American States) are examples of bodies dealing with complaints.
Should there be a legal mechanism for enforcing compliance with
human rights standards? What sanctions could exist?
European Committee for the Prevention of Torture (CPT)
CPT delegations periodically visit states
that are party to the Convention but may organise additional ad
hoc visits if necessary. During 2001, the CPT conducted 18 visits,
including visits to Switzerland, the Russian Federation (Chechen
Republic), Malta and Spain.
An important function of the CPT's work
was seen in the case of the hunger strikes in Turkish prisons.
When the Turkish government was drawing up changes to the prison
system, a number of prisoners used hunger strikes to protest against
some of the reforms. Their demonstrations became violent. The
CPT became actively involved in negotiations with government and
hunger strikers, investigating the events surrounding the hunger
strikes and looking at how the draft laws could reform the Turkish
prison system. The CPT visited Turkey 3 times in 2001 in connection
with hunger strikes in Turkish prisons.
The reports of the CPT are usually public:
There are only two permanent courts which
exist as supervisory bodies specifically for the implementation
of human rights: the European Court of Human Rights and the Inter-American
Court of Human Rights. However, a new international court is due
to be established, once the Statute has been ratified by 60 countries.
This court, the International Criminal Court (ICC), will exist
to try individuals accused of crimes against humanity, genocide
and war crimes. In this respect, it is different from, and complementary
to, the European and Inter-American Courts, which consider complaints
Reports and reviews
The majority of human rights instruments require states to submit
reports. These are compiled by states themselves, following the
directions of the supervisory body, and contain general information
on how rights operate at national level. The reports are publicly
examined and NGOs usually play an active role at this stage, developing
shadow reports alongside the states' reports. The ICCPR, ICESCR,
and the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) are examples of instruments requiring the
submission of reports.
Most of these enforcement mechanisms are there to remedy the
violation of a particular human right. The European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (1987) is of a different kind. It is based on a
system of visits by members of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT) to places of detention - for example, prisons and places
of youth detention, police stations, army barracks and psychiatric
hospitals. Members of the CPT observe how detainees are treated
and, if necessary, recommend improvements in order to comply with
the right not to be tortured or to be inhumanly treated.
The European Court of Human Rights
The European Court in Strasbourg is famous for a number of reasons,
but perhaps above all, because it gave life and meaning to the
text of the ECHR. One of its main advantages is the system of
compulsory jurisdiction, which means that as soon as a state ratifies
or accedes to the ECHR, it automatically puts itself under the
jurisdiction of the European Court. A human rights case can thus
be brought against the state party from the moment of ratification.
Another reason for its success is the force of the Court's judgement.
States have to comply with the final judgement. Their compliance
is supervised by the Committee of Ministers of the Council of
In every case brought before the European Court, the procedure
also includes the possibility of having a friendly settlement
based on mediation between the parties.
The Court has also been able to develop over time. When it was
initially set up in 1959, it was only a part-time court working
together with the European Commission of Human Rights. With the
increase of cases, a full-time court became necessary and one
was set up in November 1998. This increase in the number of cases
is clear evidence of the Court's success. People know that the
Court is there and able to step in when they feel their fundamental
rights are being infringed.
Important cases of the European Court of Human
"Neither in men's hearts nor in the
ways of society will there be peace until death has been outlawed"
Below are some important cases, which have
been consulted by the European Court.
- Soering v. the UK (June 1989): This was a case involving
a man who was to be extradited to US to face charges of murder,
where the crime was punishable by the death penalty. The Court
took the view that to send him back to the US would be against
the prohibition of torture, inhuman or other degrading treatment
or punishment (Article 3, ECHR). One consequence of this decision
was that the protection of individuals within a member state
of the Council of Europe went beyond European borders. This
principle has already been followed in other cases, such as
Jabari v. Turkey (July 2000), and has protected asylum seekers
from being sent back to a country where they would have their
- Tyrer v. the UK (March 1978): In this case, the Court considered
that corporal punishment as a punishment for juvenile offenders
was against the ECHR because it violated the right not to be
tortured or to have degrading and inhuman treatment or punishment,
as guaranteed under article 3. In the Court's words: "his
punishment - whereby he was treated as an object in the power
of the authorities - constituted an assault on precisely that
which it is one of the main purposes of Article 3 (Art. 3) to
protect, namely a person's dignity and physical integrity".
This case is a good example of the living nature of the ECHR,
where the Court keeps pace with the changing values of our society.
- Kokkinakis v. Greece (April 1993): This was an interesting
case, which dealt with the conflict between the rights of different
people. It was based on the issue of proselytising and whether
the teaching of a religion (guaranteed under article 9 of ECHR)
violates another person's right to freedom of religion. The
court thought it necessary to make a clear distinction between
teaching, preaching or discussing with immoral and deceitful
means to convince a person to change his/her religion (such
as offering material or social advantages, using violence or
The European Court hears cases concerning any of the rights
guaranteed in the ECHR, such as the right to life, a fair trial
and freedom of expression. However, since it stems from the period
immediately after the Second World War, it focuses exclusively
on civil and political rights, and as a result, it lacks the capacity
to consider cases concerning economic, social and minority rights.
In spite of these limitations, it is widely revered for its registry
Have there been any cases against your country at the European
ECJ, ECHR, ICJ: What's the difference?
European Court of Human Rights in numbers
- There are 43 judges.
An average of 180 phone calls and 800
letters were received daily in 2001.
- 19 815 cases were waiting to be considered
by early January 2002 ('pending applications').
- Applications have increased by 523%
per year from 1990 to 2000; in 1990 the Court received 1657 applications,
in 2000 it received 10 486.
- There were 889 judgements delivered
by the court in 2000, which means means more than 2 cases per
day (including weekends and holidays!).
There is often confusion surrounding the
roles of the European Court of Human Rights (ECHR), the European
Court of Justice (ECJ) and the International Court of Justice
(ICJ). In actual fact, the three bodies are very different in
terms of their geographical jurisdiction and the types of cases
they examine. The ECJ is a body of the European Union. This is
a court whose main duty is to ensure that Community law is not
interpreted and applied differently in each member state. It is
based on Community law and not human rights law; but sometimes
Community law may involve human rights issues. A famous case decided
by the ECJ was the Bosman case, which concerned transfer rules
between football teams. These were judged to be incompatible with
the Treaty of Rome rules on competition and the free movement
The International Court of Justice (ICJ) is the principle judicial
organ of the United Nations. It has a dual role: to settle in
accordance with international law the legal disputes submitted
to it by states, and to give advisory opinions on legal questions.
Only states can bring a case against another state and usually
the cases are to do with treaties between states. These treaties
may concern basic relations between states, (for example commercial
or territorial) or may relate to human rights issues.
How do these different legal mechanisms help the ordinary citizen?
The Commissioner for Human Rights
The office of the Council of Europe Commissioner for Human Rights
was first approved at the Summit of Heads of State and Government
held in Strasbourg in October 1997. The purpose of this independent
institution is both to promote the concept of human rights and
to ensure effective respect for and full enjoyment of these rights
in Council of Europe member States. The Commissioner is elected
by the Parliamentary Assembly for a non-renewable term of office
of six years.
The Commissioner is a non-judicial institution whose action
is to be seen as complementary to the other institutions of the
Council of Europe which are active in the promotion of human rights.
The Commissioner is to carry out its responsibilities with complete
independence and impartiality, while respecting the competence
of the various supervisory bodies set up under the European Convention
on Human Rights or under other Council of Europe human rights
The fundamental objectives of the Commissioner for Human Rights
- to promote education in and awareness of human rights in
the member States;
- to identify possible shortcomings in the law and practice
of member States with regard to compliance with human rights;
- to help promote the effective observance and full enjoyment
of human rights, as embodied in the various Council of Europe
The Commissioner can deal ex officio with any issue within its
competence. Although it may not take up individual complaints,
the Commissioner may act, within the context of its function of
promoting human rights, on any relevant information concerning
general aspects of the protection of human rights, as enshrined
in Council of Europe instruments.
Such information and requests to deal with it may be addressed
to the Commissioner by governments, national parliaments, national
ombudsmen or similar institutions, as well as by individuals and
Is this sufficient?
Many people would argue that the poor human rights record in
the world is a result of the lack of proper enforcement mechanisms.
It is often left up to individual states to decide whether they
carry out recommendations. In many cases, whether an individual
or group right will in fact be guaranteed depends on pressure
from the international community and, to a large extent, on the
work of NGOs. This is a less than satisfactory state of affairs,
since it can be a long, wait before a human rights violation actually
reaches the ears of the UN or the Council of Europe.
Can anything be done to change this? Firstly, it is essential
to ensure that states guarantee human rights at national level
and that they develop a proper mechanism for remedying any violation.
At the same time, pressure must be put on states to commit themselves
to those mechanisms that have enforcement procedures.