International Legal Order
Prof. Speedy Rice
Visiting Fulbright Scholar in Human Rights
University of Montenegro, Law Faculty
Serbia and Montenegro
International Legal Order in the
Context of Human Rights and
Criminal Law
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Domestic Remedies
Methods of International Enforcement
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Pre-Nuremberg
Nuremberg
Modern Tribunals
International Criminal Court
Sources of International Law
Domestic Remedies
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Who is in power?
Who has the power?
Who has jurisdiction?
Who has the right?
Whose law applies?
Why Domestic Remedies Will Not
Work for Certain Crimes
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Genocide
Terrorism
Crimes of Aggression
War Crimes
Trafficking in People, etc…
-- All stem from political power, not
individual action--
The Armenians
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In 1915 the Turkish government presided
over the killing by firing squad,
bayoneting, bludgeoning, and starvation
of nearly 1 million Armenians.
Efforts to bring the Turkish leaders to
justice after World War I fizzled and set
the stage for later atrocities in Europe.
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“It was knowingly and lightheartedly that
Genghis Khan sent thousands of women
and children to their deaths. History sees
in him only the founder of a state…. The
aim of war is not to reach definite lines
but to annihilate the enemy physically. It
is by this means that we shall obtain the
living space we need. Who today still
speaks of the massacre of the
Armenians?”
Hitler, August 1939
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One week later the Germans invaded
Poland and began the extermination of the
Polish Jews, Roma and undesirables.
By the end of World War II, some 6
million Jews and 5 million Poles, Roma,
Communists and other undesirables had
been slaughtered.
Nurnberg (Nuremberg)
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Nazi leaders tried for four crimes:
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Conspiracy to Commit Wars of Aggression Against
Independent Sovereigns
Crime Against Peace – AGGRESSIVE WAR
War Crimes - MURDER AND ILL-TREATMENT OF
CIVILIAN POPULATIONS OF OR IN OCCUPIED
TERRITORY AND ON THE HIGH SEAS; and
DEPORTATION FOR SLAVE LABOR AND FOR OTHER
PURPOSES OF THE CIVILIAN POPULATIONS OF AND
IN OCCUPIED TERRITORIES
COUNT FOUR
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MURDER, EXTERMINATION, ENSLAVEMENT,
DEPORTATION, AND OTHER INHUMANE ACTS
COMMITTED AGAINST CIVILIAN POPULATIONS
BEFORE AND DURING THE WAR
PERSECUTION ON POLITICAL, RACIAL, AND
RELIGIOUS GROUNDS IN EXECUTION OF AND
IN CONNECTION WITH THE COMMON PLAN
MENTIONED IN COUNT ONE
Included only acts from the date of the invasion
of Poland in 1939.
The Genocide Convention
First UN Convention, adopted December 9, 1948;
entry into force 12 January 1951
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“any of the following acts committed with the
intent to destroy, in whole or in part, a national,
ethnical, racial, or religious group, such as:
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Killing members of the group;
Causing serious bodily or mental harm to members of
the group;
Conditions of life calculated to bring about the
physical destruction of the group;
Measures intended to prevent births within the group;
Forcibly transferring Children away from the group.
Major Genocides Since 1948
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Cambodia: Over 2 million in 3.5 years
Iraq:
Over 200,000 Kurds by gas and
chemical attacks in 1989-90
Bosnia and Kosovo – Over 100,000 Muslims
massacred
Rwanda – Almost 1 million, mostly hacked to
death
Many others
Major International Treaties Specific
to International Criminal Law
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Genocide Convention 1948 (US ratification 1988)
Dec. 10, 1948 Universal Declaration of Human Rights, detailing human
rights and fundamental freedoms (Statement of principles, not a
treaty)
Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity; 26 November 1968, entry into
force 11 November 1970 (no US)
Principles of international co-operation in the detection, arrest,
extradition and punishment of persons guilty of war crimes and crimes
against humanity; Adopted by General Assembly resolution 3
December 1973
Rome Statute of the International Criminal Court
International Bill of Human Rights
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Universal Declaration of Human Rights
International Covenant on Economic, Social and
Cultural Rights (1966/1976; US signed 1977)
International Covenant on Civil and Political
Rights (1966/1976; US 1992)
Optional Protocol to the International Covenant
on Civil and Political Rights (1966/1976; no)
Second Optional Protocol to the International
Covenant on Civil and Political Rights, aiming at
the abolition of the death penalty (1989/ -- / no)
Selected International Treaties on
Conduct
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International Convention on the Elimination of All Forms of Racial
Discrimination (1965 /1969 US 1994)
Convention on the Elimination of All Forms of Discrimination against
Women (1979 /1981 US signed 1980)
Convention on the Rights of the Child (1989 /1990 US signed 1995)
Optional Protocols on armed conflict and prostitution/pornography
ratified by US 2002
Slavery Convention (1926 / 1955 US signed 1956)
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984 / 1987 US 1994, no to OP)
http://www.unhchr.ch/html/intlinst.htm
Language v. Action
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Though called for in the 1948 Genocide
Convention, efforts to establish a permanent
court were delayed for decades by the cold war
and refusal of governments to accept an
international legal jurisdiction.
While the language and forums for expressing
human rights concerns have existed since the
founding of the UN Human Rights Commission,
only in the last 10 years has actual intervention
over the objections of sovereignty become
acceptable.
International Criminal Tribunal
for the Former Yugoslavia
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In 1993, the conflict in
the former Yugoslavia
erupted, which led to
establishment of ad hoc
International Criminal
Tribunal for the former
Yugoslavia (ICTY)., to
hold individuals
accountable for war
crimes, crimes against
humanity and genocide.
International
Criminal
Tribunal for
Rwanda
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Established for the prosecution of persons
responsible for genocide and other serious
violations of international humanitarian law
committed in the territory of Rwanda between
1 January 1994 and 31 December 1994.
Other International Tribunal
Discussions
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Cambodia, none established
East Timor, none established
Sierra Leon, forming now
ICTY, ICTR and the ICC
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Each of these is a statement of
International Norms having supremacy
over national sovereignty.
US supports specific event / mandate
tribunals when in its interest but strongly
opposes the general events mandate of
the ICC
All since 1990
The Rome Conference
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The United Nations Diplomatic
Conference of Plenipotentiaries
on the Establishment of an
International Criminal Court
(Rome Conference).
Held in Rome, Italy, from 15
June to 17 July 1998, "to finalize
and adopt a convention on the
establishment of an international
criminal court".
The ICC established on
ratification by 60 countries. (July
2002) Currently the Rome Statute
of the ICC has 139 Signatories and
92 Ratifications.
-- Kofi Annan, United Nations
Secretary-General
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"In the prospect of an international criminal court lies the
promise of universal justice. That is the simple and soaring
hope of this vision. We are close to its realization. We will do
our part to see it through till the end. We ask you . . . to do
yours in our struggle to ensure that no ruler, no State, no junta
and no army anywhere can abuse human rights with impunity.
Only then will the innocents of distant wars and conflicts know
that they, too, may sleep under the cover of justice; that they,
too, have rights, and that those who violate those rights will be
punished."
What Crimes Are Covered?
Jurisdiction only since July 2002
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The crime of genocide
The crime of aggression
War crimes
Crimes Against Humanity
Crimes Against United
Nations and associated
personnel
Other Categories:
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Terrorism
Drug and Psychotropic
Trafficking
The Crime of Genocide
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Article 5 of the statute took the definition of “genocide”
verbatim as it was defined in Genocide Convention (1948).
“Genocide means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial
or religious group, as such:
 Killing members of the group;
 Causing serious bodily or mental harm to members of the
group;
 Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or
in part;
 Imposing measures intended to prevent births within the
group;
 Forcibly transferring children of the group to another group.
The Crime of Aggression
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Definition: In 1974 the United Nations General Assembly
defined aggression as “initiating, planning, preparing or
waging aggression.”
Problem: Finding a suitable Definition. Some do not want
this listed as a crime due to lack of suitable definition.
Others who want to include the crime of aggression
maintain the definition can rest with the U.N. Security
Council, and may be determined on an ad hoc basis.
Proposed Definition: “Planning, Preparing, Ordering,
Initiating, or Carrying out an armed attack, or the use of
force, or a war of aggression, or a war in violation of
international treaties or agreements, by a State, against
the territorial integrity of another State, against the
provisions in the U.N. Charter.”
War Crimes
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The statute enumerates four different categories of war crimes:
 Grave breaches of the four Geneva Conventions of 12
August 1949.
 Other serious violations of the laws and customs applicable
in international armed conflicts (largely derived from the
Hague law, limiting the methods of waging war).
 In case of an armed conflict not of an international
character, serious violations of article 3 common to the four
Geneva Conventions of 12 August 1949.
 Other serious violations of the laws and customs applicable
in armed conflicts not of an international character, within
the established framework of international law.
Grave Breaches of Geneva Convention
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The four Geneva Conventions of 1949 extend special
protections to certain categories of persons--wounded and sick
in armed forces in the field; wounded, sick and shipwrecked
members of armed forces at sea; POWs; and civilians during
wartime.
Willful killing; Torture or inhuman treatment
Willfully causing great suffering, or serious injury
Extensive destruction or appropriation of property
Compelling POWs to serve in the forces of a hostile Power
Unlawful deportation, transfer, or confinement
Crimes Against United Nations
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Crimes against United Nations and associated personnel is
currently not under the jurisdiction of the ICC, as the
Geneva Convention does not provide any protection or
guarantee that perpetrators will be brought to justice.
Due to the increasing safety concerns for the UN and
associated personnel after the 1990s, peacekeepers,
humanitarian workers and civilian staff members of the UN
are lobbying for this crime to fall within the jurisdiction of
the ICC.
Other Categories of Crime
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Terrorism
Crimes Involving the Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances
Trigger Mechanisms
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There are three possible mechanisms by which the
jurisdiction of the ICC may be triggered:
 Complaint by a State Party
 A State Party can lodge a complaint with the
Prosecutor and ask him to investigate the situation.
 State bringing complaint must be: State on territory
where act was committed; Custodial State where
accused officer is present; State of the nationality of
the suspect; or State of the nationality of the victims.
 Referral by the Security Council
 The United Nation’s Security Council can refer a specific
matter to the Court for an investigation.
 Trigger by the Prosecutor
 Prosecutor may bring a matter before the Court.
To Achieve Justice For All
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ICC = “the missing link” in the international legal system.
The International Court of Justice at The Hague handles only
cases between States, not individuals.
With no ICC, acts of genocide and egregious violations of
human rights often go unpunished.
Lack of accountability over the last 50 years.
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Cambodia in 1970s
Mozambique, Liberia, El Salvador, etc.
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Algeria and the Great Lakes region of Africa.
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To End Impunity
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"A person stands a better chance of being tried and judged for killing one
human being than for killing 100,000." -- José Ayala Lasso, former United
Nations High Commissioner for Human Rights
According to the Draft Code of Crimes against the Peace and Security of
Mankind, completed in 1996 (by the International Law Commission at the
request of the General Assembly) enforcement of international law
applies equally and without exception to any individual throughout
the governmental hierarchy or military chain of command.
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And the Convention on the Prevention and Punishment of the Crime of
Genocide adopted by the United Nations in 1948 recognizes that the crime
of genocide may be committed by constitutionally responsible
rulers, public officials or private individuals.
To Help End Conflicts
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"There can be no peace without
justice, no justice without law
and no meaningful law without
a Court to decide what is just
and lawful under any given
circumstance." -- Benjamin
Ferencz, former Nürnberg
prosecutor
The guarantee that at least
some perpetrators of war crimes
or genocide may be brought to
justice acts as a deterrent and
enhances the possibility of
bringing a conflict to an end.
To remedy the deficiencies of
ad hoc tribunals
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“Selective justice: " Why has there been no war crimes tribunal
for the "killing fields" in Cambodia? A permanent court could
operate in a more consistent way.
“Tribunal fatigue:” Problems with Ad Hoc Tribunals:
 crucial evidence deteriorated/destroyed;
 perpetrators can escape or disappear; and
 witnesses can relocate or be intimidated.
 Investigation increasingly expensive;
 Ad hoc tribunals are subject to limits of time or place.
 Crimes committed since that time are not covered.
To take over when national
criminal justice institutions are
unwilling or unable to act
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"Crimes under international law by their
very nature often require the direct or
indirect participation of a number of
individuals at least some of whom are
in positions of governmental authority
or military command." -- Report of the
International Law Commission, 1996
National institutions often either
unwilling or unable to act, usually for
one of two reasons:
 Governments often lack the
political will to prosecute their own
citizens; Or
 National institutions may have
collapsed, as in the case of Rwanda.
Argentines Face Human Rights
Trials in Europe
July 28, 2003
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At least 40 retired Argentine military officials accused of
human rights violations during the 1976-1983
dictatorship are now in custody in Argentina and facing
trials in Europe after the new government moved late
last week to strip them of their longstanding immunity
from extradition.
On Friday, President Néstor Kirchner, who took office two
months ago, revoked a government edict that prohibited
Argentine officials from being handed over to foreign
countries to face criminal charges abroad.
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Foreign governments seem especially
interested in trying Alfredo Astiz, a 50year-old naval captain who has become
perhaps the most notorious symbol of
Argentina's Dirty War. Nicknamed "the
blond angel of death," Captain Astiz
infiltrated human rights groups and is
accused of having designated which of
their leaders were to be kidnapped,
tortured and killed.
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The Spanish judge who made the extradition
request, Baltazar Garzón, is the same judge
whose efforts led to the detention of Gen.
Augusto Pinochet, Chile's former military
dictator, in Britain in 1998.
With the 30th anniversary of the coup that
brought General Pinochet to power now less
than two months away, Argentina's actions are
certain to add to an already heated debate in
Chile about how to deal with military human
rights abusers there.
"It sends a very powerful signal to those who
commit these types of crimes that today is a day
of international justice," the Chilean president,
Ricardo Lagos, said in a radio interview on
Saturday.
Why There is a Lot of Work Still To
be Done
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Spain's government decided on August 29th not to seek
the extradition of 40 Argentines indicted here for abuses
during their country's "dirty war" under military rule,
saying they should be tried at home.
The government rejected a Spanish judge's request
because Argentina's Congress this month voted to repeal
two laws that had shielded hundreds of military officers
from prosecution for abuses during the 1976-83
dictatorship.
Under the extradition treaty between Spain and
Argentina, the 40 suspects should now be tried in
Argentina, Deputy Prime Minister Mariano Rajoy said.
"When certain crimes are committed in a country and it
is possible to try them, it must be done in that country.
That's the principle of territoriality," Rajoy said after a
cabinet meeting.
Other Systems in the International
Legal Order – Human Rights
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The United Nations Human Rights System
The European System For The Protection Of
Human Rights
The Inter-American Human Rights System
The African System Of Human And Peoples’
Rights
Humanitarian Law
Non-Governmental Human Rights Organizations
THE UNITED NATIONS HUMAN
RIGHTS SYSTEM
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The UN Charter
The International Bill of Human Rights
Other Major UN Human Rights Treaties
UN Charter-Based Institutions
Specialized Agencies
The UN Charter
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The human rights provisions that ultimately
found their way into the Charter of the United
Nations fell far short of expectations.
That was to be expected, for each of the main
powers had troublesome human rights
problems. The Soviet Union had its Gulag, the
United States its de jure racial discrimination,
France and Great Britain their colonial empires.
Human Rights in the UN Charter
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Article 1(3) of the Charter of the United Nations
proclaims the following goal as one of the
“purposes” of the UN:
To achieve international co-operation in solving
international problems of an economic, social,
cultural, or humanitarian character, and in
promoting and encouraging respect for human
rights and for fundamental freedoms for all
without distinction as to race, sex, language, or
religion.
Article 55
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…the United Nations shall promote:
(a) higher standards of living, full employment,
and conditions of economic and social progress
and development;
(b) solutions of international economic, social,
health, and related problems; and international
cultural and educational cooperation; and
(c) universal respect for, and observance of
human rights and fundamental freedoms for all
without distinction as to race, sex, language, or
religion.
Article 56
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All Members pledge themselves to take joint and
separate action in co-operation with the Organization for
the achievement of the purpose set forth in Article 55.
The Charter confers similar power on the UN Economic
and Social Council (ECOSOC). It authorizes the ECOSOC
to “make recommendations for the purpose of promoting
respect for, and observance of, human rights and
fundamental freedoms for all” and requires it to “set up
commissions in economic and social fields and for the
promotion of human rights….” Arts 62(2) and 68.
International Bill of Human Rights
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Universal Declaration of Human Rights
International Covenant on Economic, Social and
Cultural Rights (1966/1976; US signed 1977)
International Covenant on Civil and Political
Rights (1966/1976; US 1992)
Optional Protocol to the International Covenant
on Civil and Political Rights (1966/1976; no)
Second Optional Protocol to the International
Covenant on Civil and Political Rights, aiming at
the abolition of the death penalty (1989/ -- / no)
Other Major UN Human Rights
Treaties
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The Convention on the Prevention and Punishment of
the crime of Genocide,
International Convention on the Elimination of All Forms
of Racial Discrimination,
International Convention on the Suppression and the
Punishment of the Crime of Apartheid,
Convention on the Elimination of all forms of
Discrimination against Women,
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment,
Convention on the Rights of the Child.
UN Charter-Based Institutions
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Commission on Human Rights
Sub-Commission on Promotion and
Protection of Human Rights
Commission on the Status of Women
The High Commissioner for Human Rights
Field Offices
Conferences and Resolutiuons
Specialized Agencies
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The International Labor Organization
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The International Labor Organization, established in
1919 by the Treaty of Versailles, focuses on those
human rights related to the right to work and to
working conditions, including the right to form trade
unions, the right to strike, the right to be free from
slavery and forced labor, equal employment and
training opportunities, the right to safe and healthy
working conditions, and the right to social security.
Specialized Agencies
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UNESCO (UN Educational, Scientific, and
Cultural Org.) promotes teaching and research
on human rights, adopts conventions and
recommendations on human rights related to
its subject areas.
It has also established a complaints procedure
available to individuals and NGOs.
World Health Organization, etc
THE EUROPEAN SYSTEM FOR THE
PROTECTION OF HUMAN RIGHTS
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The European Convention on Human Rights
The Enforcement Mechanism of the Convention
The European Social Charter
Council of Europe Human Rights Treaties
The European Union
Organization for Security and Cooperation in
Europe (OSCE)
The European Convention on
Human Rights
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The European Convention on Human Rights entered into
force on September 3, 1953
As originally adopted, the European Convention
guarantees the following rights: right to life; right not to
be subjected to torture, inhuman or degrading
punishment; freedom from slavery; right to liberty,
security of person; Due Process of Law; freedom from ex
post facto laws and punishment; right to private and
family life; freedom of thought, conscience and religion;
freedom of expression and of peaceful assembly; and
the right to marry and found a family.
A non-discrimination clause applies to the “enjoyment of
the rights and freedoms” the Convention proclaims.
The Enforcement Mechanism of the
Convention
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Jurisdiction of the European Court
Inter-State Complaints
Private Petitions
Admissibility: Incompatible, Ill-Founded, or Abuse of the
Right of Petition
Exhaustion of Domestic Remedies
The Individual’s Participation in the Proceedings
Judgments of the Court
Enforcement of Judgments by the Committee of
Ministers
Interpretation of the Rights Guaranteed
The European Social Charter
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, It complements the Convention, which
guarantees only civil and political rights,
by establishing a regional European
system for the protection of economic and
social rights
Council of Europe Human Rights
Treaties
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The European Convention against Torture
Protection of National Minorities
Human Rights and Biomedicine
The European Union
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The Charter of Fundamental Rights of the
European Union.
In June 1999 the EU decided that a European
Charter of Fundamental Rights should be drafted
to cover all rights that pertain to the Union’s
citizens, in effect combining the guarantees of
the European Convention on Human Rights, the
European Social Charter, and other human rights
instruments.
Organization for Security and
Cooperation in Europe (OSCE)
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The Conference on Security and
Cooperation in Europe (CSCE), which in
1994 became the Organization for Security
and Cooperation in Europe (OSCE), is not
strictly an European organization.
It has many members outside the EU such
as the US and Canada
THE INTER-AMERICAN HUMAN
RIGHTS SYSTEM
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Organization of American States (OAS)
The OAS discharges its functions through
various organs, including the General Assembly
and Permanent Council
The American Declaration of the Rights and
Duties of Man
The establishment of the Inter-American Commission on Human Rights was mandated in 1959
The Inter-American Court of Human Rights
THE AFRICAN SYSTEM OF HUMAN
AND PEOPLES RIGHTS
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THE RIGHTS AND DUTIES
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First, the African Charter proclaims not only rights but
also duties,
Second, it codifies peoples as well as individual rights,
Third, in addition to guaranteeing civil and political
rights, it protects economic, social and cultural rights,
Fourth, the treaty is drafted in a form that permits the
States Parties to impose very extensive restrictions
and limitations on the exercise of the rights it
guarantees
HUMANITARIAN LAW
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The Geneva Conventions and Protocals
Time of War and Armed Conflict
The End
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