International law and human rights pdf

However, despite the distinction amongst them, there is a meeting point. I intend to critically analyze these various aspects of Law and subsequently identify the relationship amongst them. At the end of this paper, readers would have an overview of Public International Law, Human Rights and International Humanitarian Law particularly the relationship amongst them.

Thus, in traditional International Law, states were at the centre of the whole system and even today states and their activities remain the main focus of International Law. S P1. It may be universal or general, in which case the stipulated rules bind all the states or practically all depending upon the nature of the rule , or regional, whereby a group of states linked geographically or ideologically may recognize special rules applying only to them, for example, the practice of diplomatic asylum that has developed to its greatest extent in Latin America 3.

With the evolution of various individual human rights, some writers have clearly noted that individuals may be subjects of international law. It is noteworthy that the world has experienced fast rate in the rise of international organizations, this trend has contributed to the development of modern international law. As a matter of fact, international law cannot be properly understood in this present world without reference to the growth in number and influence or such intergovernmental institutions, and or these the most important is the United Nations.

The International Court of Justice in delivered an Advisory Opinion 5 in which it stated that the United Nations was a subject of international claims. By way of concluding this part, I would like to state the various sources of International law. They include custom, conventions ie treaties , general principles, judicial decisions and the writings of highly qualified publicists e.

It is also important to appreciate that international law lacks both a universal legislative 3 International Law: Malcom N. S 5th Edition P. See: International Law: Malcom N. However, with the end of the Second World War, the idea of human right has become a universal political idea and progressively a subject of international law.

What was once unthinkable had become normal by the end of the 20th Century. Individuals might seek for international remedies against its own government in the event that the government infringes on his rights as recognized by international law. This had been made possible with the existence of the various international inter- governmental organizations. Most cardinal of them all is the United Nations, as stated above. How a state treated persons within its territory was its own affair, implicit in its sovereignty over its own territory and in the freedom to act there as it would unless specifically forbidden by international law.

Generally speaking, in the European and Inter-American systems, the provisions on elderly rights are embodied in economic, social, and cultural rights treaties, while the African System protects those rights alongside civil and political rights in a unique instrument. This Charter, which applies exclusively to the states that are members of the European Union, includes an ambitious and innovative list of human rights covering the range of civil, political, economic, and social rights.

In relation to the protection of the elderly, Article 25 states: "The [European] Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.

The Inter-American human rights system adopted the first binding convention on the rights of older persons, the Inter-American Convention on Protecting the Human Rights of Older Persons on December 12, Tonolo: International Human Rights Law and the Protection of the Elderly in Europe 26 protected rights and also establishes a follow-up mechanism to monitor the implementation of the commitments under the Convention, which includes a reporting procedure and the ability of individuals to submit petitions alleging violations of the Convention to the Inter-American Commission on Human Rights.

The Convention lists general principles related to the rights and fundamental freedoms of older persons, with a focus on equality and non-discrimination stated at Art. Further, the Convention emphasizes the dignity, independence, and autonomy of older persons as well as their physical, economic, and social security. It also calls for the respect and appreciation of cultural diversity, effective judicial protection, proper treatment and preferential care.

The Convention lists several general duties of States parties, that have a duty to adopt measures to prevent, punish, and eradicate practices contrary to the Convention and to adopt affirmative measures and make the necessary changes in domestic legislation so that older persons can exercise the rights established in the Convention.

More specifically, Articles 5 through 31 of the Convention list the various protected rights of older persons: the right of older persons to safety and a life free of violence of any kind; right to receive long-term care; right to work; right to health, including physical, mental, and social health; right to education; right to housing, emphasizing policies that progressively adapt housing solutions so that they are architecturally suitable for older persons, policies that ensure expedited procedures for complaints regarding evictions, and measures to protect older persons from illegal forced evictions; and, the right to accessibility and personal mobility.

The rights of older persons receiving long-term care are detailed in Article 12 of the Convention. Article 12 encompasses the right to a comprehensive system of care that promotes the health of older persons, provides social services that cover food and nutrition security, promotes the ability of older persons to live in their own home and maintain their autonomy, and provides services for families and caregivers.

To ensure this right is fulfilled, the Convention calls on States parties to establish mechanisms that ensure long-term care services are subject to the free and express will of older persons and that such services have specialized personnel. The right to work encompasses anti-discriminatory policies and procedures that promote more inclusive labor markets guaranteeing the same rights, benefits, and protections to all workers for similar tasks and responsibilities, regardless of age.

Tonolo: International Human Rights Law and the Protection of the Elderly in Europe retirement and expand on labor policies that account for the needs and characteristics of older persons. Additionally, Article 36 authorizes individuals, groups of individuals, and non- governmental organizations to submit complaints of allegations of the Convention by a State party to the Inter-American Commission on Human Rights.

States parties may also submit a specific declaration recognizing the competence of the Inter- American Commission to hear inter-State complaints under the Convention. The Additional Protocol to the European Social Charter articulates protection for the rights of elderly persons in Article 4 Additional Protocol to the European Social Charter, opened for signature May 5, , art.

This is possible as the right to a fair trial and the right to non-discrimination are fundamental guarantees that can be used creatively to protect elder persons from certain practices such as forced retirement and slow judicial proceedings regarding health or social benefits.

Moreover, through the right to property, the elderly may protect their rights to pensions and social security benefits. In the Deumeland case Deumeland v. Germany, Eur. After her death during the proceedings before the ECtHR, her son continued the proceedings and brought the petition to the European Human Rights System upon exhausting domestic remedies. The applicant claimed that the German courts had not given the case a fair hearing within a reasonable time, which violated Article 6 paragraph 1 of the European Convention on Human Rights.

The Court assessed the reasonableness of the length of the Deumeland proceedings with regard to criteria established by the Court's case law, namely: the degree of complexity of the case, the behavior of the applicant, and the conduct of the competent courts. In several cases, the ECtHR affirmed that there is no prohibition in the Convention against the detention in prison of persons who attain an advance age. Nevertheless, a failure to provide the necessary medical care to prisoners may constitute inhuman treatment and there is an obligation on States to adopt measures to safeguard the well-being of persons deprived of their liberty.

Whether the severity of the ill- treatment or neglect reaches the threshold prohibited by Article 3 prohibition of inhuman or degrading punishment or treatment of the Convention will depend on the particular circumstances of the case, including the age and state of health of the person concerned as well as the duration and nature of the treatment and its physical or mental effects see Sawonjuk v.

UK, 29 May ; Priebke v. Italy, 5 April ; Enea v. Italy, 17 September In the case Contrada v. Italy 11 February , the Court held that there had been a violation of Article 3 prohibition of inhuman or degrading treatment of the Convention. It observed in particular that it was beyond doubt that the applicant had suffered from a number of serious and complex medical disorders, and that all the medical reports and certificates that had been submitted to the competent authorities during the proceedings had consistently and unequivocally found that his state of health was incompatible with the prison regime to which he was subjected.

Poland, 9 March ; Schlumpf v. Switzerland, 8 January ; Georgel and Georgeta Stoicescu v. Romania, 26 July However, many NGOs, as well as some UN member states, argue that these instruments fail to provide explicit support and are easily subject to ageist interpretation see, for example, HelpAge International, These organisations argue for the need for a new international human rights instrument explicitly for the protection on older persons - a Convention on the Rights of Older Persons.

The Plaintiff, one of the 51 Mexican prisoners expressly named in the ICJ decision, filed an application for a writ of habeas corpus in the Texas Court of Criminal Appeals, which the Texas Court subsequently dismissed.

The Supreme Court affirmed the judgment of the state court. In contradiction to the U. Charter a treaty signed and ratified by the U. As in the Foster case, the criterion used by the court for this pronouncement is its analysis of the text of the treaty.

The Court found that, 25 Supra at 26 S. In the judgment the United States argued that even if the ICJ decision is not self- executing, it becomes law of the land by reason of the issuing of the Memorandum of the President.

Further, the government retained that the President, according to the Youngstown31 decision, had an implicit power in order to comply with the ICJ decision, created by the ratification of the Optional Protocol of Vienna Convention on Consular Relation32 and the U. The court instead held that the President cannot transform a non-self-executing international obligation into a self-executing one: he needs the approval of the Congress, which can implement a non-self-executing treaty The Supreme Court too strictly applies the dualistic principle; decision by decision, the Court has deformed the Constitutional provision.

In Medellin v. Texas the Court held that a Treaty is self-executing only when a clear statement contained in the text of the treaty or approved by the two thirds majority of the Senate and the President indicates so. However, in the Foster decision the terms were inverted: Judge Marshall found that only when the text of the treaty implied an implementation is it non-self- executing.

Yet this much older decision appears more in compliance with the Constitution provision and the will of the Framers; in fact, if only few treaties have domestic effect, why does the Constitution require not only the signature of the President but also the approval of the Senate with a large majority two-thirds?

What is the value 30 Note 27 at 31 U. Justice Breyer34 was right in his dissenting opinion in Medellin, where he maintains that hardly any international agreement contains a clear statement about its self-execution. However, the two cases analyzed are different in one important aspect. In the U. Thus it was reasonable that the state court or the Supreme Court applied the Avena decision.

Some treaties, like those which enumerate a human right or the U. Charter, are more important than, for example, an international commercial agreement. If a self-executing treaty that obligates the U. However, if the ratification of a treaty establishing a right could not be modified or abrogated by the Congress, the U.

Paust35 suggests a solution to this dilemma citing two very old decisions; in Holden v. Part 2 The Custom Section 1- The Human Rights and the International Customary Law From reading the international law textbooks and numerous articles about international customary law, a student can compare it to two human sentiments: love and friendship.

Everyone knows what these important components of life are; however, few people can explain what love or friendship mean, and the opinions expressed often are opposite. Similarly, the scholars recognize that custom is a source of international law, in compliance with Article 38 of the Statute of the ICJ, but there are many different opinions about the elements required and the exact provisions.

This part explains the opinions of the main academic commentators in order to clarify the differences between 35 Note 12 at 74 36 84,U. Court, 37 Idem at 38 U. However some scholars do not accept this definition.

Kelsen and Gugennheim in the first half of the twentieth century tried to dispense with the objective element, theorizing that customary international law arises from state practice alone. The post-World War II era, the creation of the UN, and the sentiment that human rights needed to be protected not only with treaties which for some scholars are insufficient , have led to the creation of new theories for international customary law, in order to identify human rights as custom.

Numerous academic commentators43, for different reasons, maintain that the 40 Statue of the ICJ, art. Regarding his definitions of opinion iuris and state practice, they depart too far from the traditional meanings to carry much weight. According to other views, only some human rights obligations exist as customary law. The author, then, International Law: Process and Prospect pp The provisions identified by Schachter as customary international law are the prohibitions of genocide, slavery, torture, mass killings, prolonged arbitrary imprisonment, systematic racial discriminations and any consistent pattern of gross violations of internationally-recognized human rights Similar cases are enumerated in the Restatement The Carter administration50 and some academic commentators51 supported an alternative approach in order to affirm human rights obligations under international law independently of specific treaty.

Government acknowledged the obligatory character of the Charter's human rights provisions and appeared to accept the Universal Declaration as an authoritative interpretation of those provisions, see eg "Address by President Carter to the United Nations General Assembly" 76 Dept.

I agree with the traditional theory of the customary international law. The need to protect human rights and the fact that many national constitutions provide the automatic incorporation of customary international law54 has caused the distortions of the definition of international custom in order to recognize human rights as customary international law, which is accepted by some scholars as though it were religious dogma.

From my perspective, according to the Restatement and Schachter, only a few select human rights provisions are truly customary law in compliance with the two aforementioned primary requirements. The other theories affirm more easily the binding character of human rights provisions, but their view of international customary law creates total uncertainty: the rights recognized as international law under such inclusive theories are not written and potentially are infinite.

Human rights are not like a car or other material good: they cannot be exported and cannot be imposed only with rules agreed to by a part of the global community for example, Western nations.

In my opinion, the most efficient 53 Art. Chart 54 For example, art 10 Italian Costitution: The Italian legal system conforms to the generally recognized rules of international law.

The world would thus have new legislators, governments and judges more likely to create and apply norms respecting international rules of human rights. In sum, the best solution to the biggest problem of international law, its enforceability, is the creation of a strong culture of respect of human beings and of positive relations between the States.

Most scholars affirm that it is part of federal common law; however, some academic commentators criticize this position In order to understand these two theories, the following sections analyze some important decisions of U. Before , federal courts applied customary international law in some decisions in the absence of statutory or constitutional authorization. An article about the implication of this decision for international custom in the U.

Guyot: International law. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. International customary law was applied, I think correctly, in the Filartiga69 case. In this case the plaintiff, a Paraguayan immigrant to the U. Filartiga brought the action under the Alien Tort Statue, 28 U. Jessup, now a judge of the International Court of Justice, recognized the potential dangers were Erie extended to legal problems affecting international relations.

He cautioned that rules of international law should not be left to divergent and perhaps parochial state interpretations. Pena-Irala, F. However, I think correctly, the Court decided to apply the contemporaneous international law.

The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens. I think that in this case and in similar cases the application of international customary law in American courts is established by the Alien Tort Statute. In the Restatement third was published by the American Law Institute. The Reporters compared customary international law to treaties: both sources are federal common law and thus the supreme law of the land In Committee of U.

Citizens Living in Nicaragua v. The Court, then, cited Paquete Habana