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Right to property (press the link title for further information)

Property is the highest right that any person can have to a thing it is also a social-political principle by which individuals may not be prohibited or prevented by anyone from acquiring, holding and trading (with willing parties) valued items not already owned by others. In the understanding of western European constitutions, long before the enactment of any international human rights instrument, the Right to Property safeguards individual freedom by limiting interventions by the State as both a precondition for and consequence of democracy and market economy.

It is mentioned in several human rights instruments. It is contained in Article 17 of the Universal Declaration of Human Rights, but was not included in the Human Rights Covenants. In regional instruments where the legal and social traditions of geographical areas are more similar it has been possible to include the right to property, thus in Europe it is in Article 1 of Protocol No 1 of the European Convention on Human Rights, in the Americas in Article 21 of the American Convention on Human Rights and in Africa in the AfCHRR (less detailed- right to property guaranteed and can be encroached. Art. 21 noteworthy since it deals with the right to compensation). Also in instruments of a specific nature: Intellectual property rights protected in a number of conventions adopted by the World Intellectual Property Organisation. ILO Conventions particularly the Convention concerning the protection of wages.

It is a negative right as for non-interference rather than requiring positive active measures by states to ensure that everyone in fact enjoys the right to property. The negative aspect of the right is emphasised by the spelling out of the conditions under which it is permitted to interfere with one's property. It seems therefore to be a civil liberty rather than there being a social element unless it is given a broader approach, placing positive state obligations in relation to the right.

The content is ultimately a question for the supervisory organ as there is no definition. Art. 21 AmCHR distinguishes between deprivation and control and one reason for this is due to the compensation. Article 1 of Protocol No 1 to the European Convention on Human Rights (our main focus here), protects a person's peaceful enjoyment of his or her possessions. This embraces the right to own, possess, use, lend or dispose of property without interference by the State. This guarantee only protects existing property rights and does not give a person a right to property which they do not already own. Therefore a homeless person cannot claim a right to receive a home. Nor does the guarantee require the State to take measures to ensure that all privately owned property is protected from any reduction in value. It is important to appreciate that Article 1, Protocol 1 is a qualified right. This means that it is lawful for the State to interfere with a person's possessions in certain circumstances. It is important to bear in mind that corporate bodies, as well as natural persons, may invoke Article 1 of the Protocol.

When considering whether there has been a violation of the right to property guaranteed by Article 1 of Protocol No. 1 you should ask yourself the following questions:

(i) Is there a property right, or possession, within the scope of Article 1?
(ii) Has there been an interference with that possession?
(iii) Under which of the three rules of Article 1 does the interference fall to be considered?
(iv) Does the interference serve a legitimate objective in the public or general interest?
(v) Is the interference proportionate? That is, does it strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights?
(vi) Does the interference comply with the principle of legal certainty, or legality?

This survey will help you answering to these questions for your particular case. However, in any event, an interference with your possessions will be incompatible with Article 1 of Protocol No. 1 if the answer to any one of questions (4) to (6) is "no".

Enforced disappearances (press the link title for further information)

Until today, no specific human right not to be subjected to enforced disappearance has been recognized, although this human rights violation has occurred systematically for almost 30 years. It is generally considered as a multiple human rights violation.

The international community has only recently taken steps to develop further standards, which would explicitly prohibit the practice of "disappearances" and deal with both the victims and the perpetrators. In 1992 the UN Commission on HR adopted a Declaration on the Protection of All Persons from Enforced Disappearances. In the context of standard setting, reference should also be made to the efforts made by the OAS to draft a convention against disappearances: Inter-American Convention on the Forced Disappearances of Persons.

It has proved very difficult to produce a definition of "disappearances" which encompasses all the elements of this crime. We could just list the different rights that are violated however in view of the legal consequences of the crime it is necessary to have a at least a working definition.

'disappearances', are a special criminal phenomenon, which distinguishes itself, through its complex particularities, from other human rights crimes. In defining the nature of this crime a lot of difficulties arise (for the crime is committed in different phases) and that explains - partly - why in fact there is no coherent definition that embraces all the elements.

Different perspectives need to be taken into account in order to make a clear distinction with other similar situations as for instance an unacknowledged detention. The time element is of paramount importance; whereas a secret detention, lasting for a couple of hours cannot be regarded as 'disappearance', the unacknowledged detention of a person during a couple of weeks is clearly something else. It is very hard to draw the border; the time factor remains elusive.

Discrimination (press the link title for further information)

Non Discrimination together with equality before the law and equal protection of the law constitute a basic and general principle relating to the protection of human rights. Discrimination is illegal whether based on Race, Ethnicity, Political opinion, Gender, or any other status. Discrimination, as prohibited by international human rights law, can be defined as an adverse distinction not found on objective criteria and without reasonable justification.

As none of the major general human rights treaties care to define what discrimination is, one must turn to the issue-specific treaties, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

CEDAW's Article 1:

For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

CERD's Article 1(1) :

In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life

The UN Human Rights Committee has drawn on these to arrive at the following interpretation:

Any distinction, exclusion, restriction of preference which is based on any ground such as race, colour, sex, language, religion political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.

Minority rights (press the link title for further information)

Many states are composed of, on the one hand, a majority population and, on the other, ethnic, religious or linguistic minorities. Different kinds of minorities may be distinguished, among others, ethnic, religious and linguistic minorities. Combinations of these are also found. They have often lived in a certain country for a long time. For tha reason the usual term in the OSCE is "national minorities" (who have the nationality of the country concerned). Some scholars, however, also consider as minorities "modern migrants" (those who have settled outside their own country only recently, including "guest workers", refugees and stateless people).

Such minorities often think of themselves as nations. Some of these even aspire to independent statehood. Further, in some states, unfortunately, in addition to suffering from social and economic exclusion and violations of the full range of human rights, minorities are directly affected by violent conflict to a disproportionate degree. International law guarantees individuals against discrimination by virtue of this minority status. To what extent does it recognise special rights for them? To what extent does it recognise rights inhering in the minority group as a whole? Can a "national minority" invoke the right to self-determination to claim separate statehood?

With the rise of ethno-nationalism in many parts of the world, the status of ethnic minorities and other groups in international law has again become a central issue.

Humanitarian intervention (press the link title for further information)

The civil wars which are raging in many parts of the globe are mainly the result of intra-state conflict and/or ethnic violence and are often characterised by the collapse of state institutions and the breakdown of law and order. In these wars, civilians have become the main targets and resulted in enormous human suffering and often devastating humanitarian crises.

The international community has, on occasion, both unilaterally by States and within the United Nations system, responded to some of these crises justifying its intervention on a variety of reasons, such as to prevent or stop gross and widespread violations of human rights and international humanitarian law, or the potentially destabilising effect of transborder refugee flows. Such action has included the provision of humanitarian assistance, peacekeeping, and the use of force to provide such assistance.

However, there has been a longstanding debate surrounding the doctrine of humanitarian intervention and in particular the right of states to intervene militarily in another state, without Security Council authorisation, in order to prevent gross violations of fundamental human rights and international humanitarian law. What underlies the debate is a perceived tension between the values of ensuring respect for fundamental human rights and the primacy of the norms of sovereignty and non-intervention which are considered essential factors in the maintenance of peace and international security. These values are set out in the United Nations Charter as fundamental purposes of the United Nations.

It has been put forward by many Western states and academics that the development of international human rights norms and international humanitarian law has modified the traditional concept of sovereignty. Thus, it has been suggested that human rights can no longer be considered a purely domestic concern and the concept of sovereignty cannot be used by governments to shield themselves from responsibility for gross violations of these rights, or from shirking their obligations with respect to the protection and treatment of civilians in situations of intra-state conflict.

When if at all may humanitarian intervention be justified?

Is the threat or use of force by a state, group of states, or international organization be justified for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights? Is there an emerging legal right or norm that allows humanitarian enforcement action outside of the Charter regime? What are the possible criteria for humanitarian intervention which could inform governmental decision-making in a situation where the Security Council is unable to take action?

Non-state actors (press the link title for further information)

The emergence of international Human Rights law recognizing private individuals as subjects of international law had a revolutionary impact on an international legal system which regulated essentially the behavior of state actors, as international law existed to mainly govern relations between states. Yet, since its inception, Human Rights Law has been regarded as regulating the relationship between unequal parties, namely the citizen and the state and as a protection mechanism against state intrusion into individuals’ freedoms, hence individuals became principally the holders of rights and states consequently the holders of duties. States are responsible for safeguarding the rights of everyone within their jurisdiction and the main focus of this guide is on State compliance with international human rights law.

Indeed, international human rights law primarily imposes human rights obligations on the state. The principle of state responsibility reflects the focus of the human rights law regime on state/citizen relations and actions by non-state actors (regarded as falling into the realm of a private sphere consisting of relationships between free, equal and autonomous parties) are generally, regarded as falling within the sphere of the ordinary national law. An abuse by a private individual will normally be a criminal offence rather than a human rights violation. The International Law Commission made it clear in Article 11 (1) of the Draft articles on State Responsibility by stating that “the conduct of a person or a group of persons not acting on behalf of the State shall not be considered as an act of the State under international law.”

However human rights standards do not contain merely limitations on State's authority, they also impose positive obligations on States to prevent and sanction private violations of human rights. Indeed human rights law imposes obligations on States to protect citizens or individuals under their jurisdiction from the harmful acts of others. Thus, an act by a private individual and therefore not directly imputable to a State can generate international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or for not taking the necessary steps to provide the victims with reparation. Private actors, therefore, become indirectly responsible for human rights.

A failure to exercise due diligence to prevent or remedy an attack on an alien, or failure to apprehend the individuals committing such an act give rise to State responsibility even if committed by private individuals . This standard developed in regard to the protection of aliens has subsequently been applied in regard to acts again nationals of the State. The Inter-American Court of Human Rights in the Velàsquez Rodriguez Case, affirmed that: “ An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.”

In fact, international and regional human rights standards expressly require states to regulate the conduct of non-state actors containing explicit obligations for States to take effective measures to prevent private violations of human rights. Several supervisory bodies and various declarations have also acknowledged the usefulness of this due diligence test developed by the Inter-American Court as an appropriate test for determining whether the state should be liable for acts of private actors. Under this test States are required to take reasonable or serious steps to prevent or respond to a violation by a private actor, including investigation and provision of remedies as compensation.

International Humanitarian Law (press the link title for further information)

International humanitarian law (IHL) or the Law of Armed Conflict is a special branch of international law governing situations of armed conflict. IHL is designed to ensure respect for general principles of humanity in situations of international armed conflict, and (to a lesser extent) to internal armed conflict. It does not seek to “outlaw” war, but instead it aims to restrain the parties to an armed conflict from wanton cruelty and ruthlessness, and to provide essential protection to those most directly affected by the conflict.

IHL has two branches: the Law of Geneva which tends to safeguard military personnel placed hors de combat and persons not taking part in the hostilities and the Law of The Hague, or the Law of Warfare, which determines the rights and duties of belligerents in the conduct of operations and limits the choice of warfare means and methods.

International humanitarian law is applicable in two situations:

a) International armed conflicts:

In such situations the Geneva Conventions and Additional Protocol I apply. They protect every individual or category of individuals not or no longer actively involved in the conflict, i.e.: Wounded, sick or shipwrecked military personnel in land or naval warfare, and members of the armed forces' medical services; Prisoners of war; the civilian population (for example: foreign civilians on the territory of parties to the conflict, including refugees; civilians in occupied territories; civilian detainees and internees; medical and religious personnel or civil defence units).

Wars of national liberation, as defined in Article 1 of Protocol I, are classified as international armed conflicts.

b) Non-international armed conflicts

The set of rules applicable in case of a non-international conflict is composed of common Article 3 of the Geneva Conventions of 12 August 1949. Common article 3 provides that:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

Article 1 of the Protocol states that it “develops and supplements Article 3 Common to the Geneva Convention”.

The Additional Protocol to the Geneva Conventions relates to the protection of victims of non-international armed conflict (hereinafter Protocol II). The Convention for the protection of cultural property in the event of armed conflict and some principles of customary law are also applicable.

In the event of a non-international conflict, Article 3 common to the four Conventions and Protocol II are applicable. Article 3, the text of which is repeated in all four Geneva Conventions, is the only part of the conventions that applies explicitly to internal armed conflicts. It has been called a "treaty in miniature," and sets forth the minimum protections and standards of conduct to which the State and its armed opponents must adhere. The protections it spells out are at the core of international humanitarian law. Additional Protocol II of 1977 also covers internal armed conflicts, but it is less widely accepted among States than the 1949 Conventions. In such situations, humanitarian law is intended for the armed forces, whether regular or not, taking part in the conflict, and protects every individual or category of individuals not or no longer actively involved in the hostilities.

It should be noted that the conditions of application of Protocol II are stricter than those provided for by Article 3. Indeed, common article 3 which lays down rules described by the International Court of Justice as «  general principles of humanitarian law » refers to « an armed conflict of a non international character » but does not define it, no indication is given of the intensity of the armed force necessary to make the provision applicable. However common article 3 is generally understood to apply to low intensity and open armed confrontations between relatively organised armed forces. Application of common article 3 does not require the existence of large scale and generalised hostilities; there is no minimum threshold of violence to trigger off its application. Furthermore, it is neither necessary that dissident armed groups exercise control over parts of national territory nor that they satisfy organisational requirements. According to the ICRC commentary to the 1949 Geneva Conventions, « common article 3 should be applied as widely as possible ».

Further, in the Preamble to Protocol II it is stated that « in cases not covered by the law in force, the human person remains under the protection of the principles humanity and the dictates of the public conscience », this is the so-called Martens Clause which shows that rules of customary international law can apply above and beyond existing treaty rules to non-international conflicts. In fact, some treaty rules have already attained the status of norms of customary law, this holds true for common article 3 which reflects « elementary considerations of humanity » applicable under customary law to any armed conflict as was held by the ICJ, and it might be the case for the core of Protocol II.

In 1968 the General Assembly adopted resolution 2444, recognising « the necessity of applying basic humanitarian principles in all armed conflicts ». Among this principles, were: the principle that the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited; that it is prohibited to launch attacks against the civilian populations as such; that distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible. In 1970, The General Assembly adopted resolution 2675 on « Basic Principles for the Protection of Civilian Populations in Armed Conflicts », recalling again those principles. Both resolutions were declaratory of the principles of customary law in armed conflicts of any kind; they evidenced that there exists a corpus of general principles on internal armed conflicts embracing common article 3 but having a much greater scope.
     

Rule of law and fair trial (press the link title for further information)

When an individual is brought into contact with the Criminal Justice System, he/she is confronted with the might of the State. The State has the resources of the police, prosecution, court administration and judiciary at its disposal, whereas an accused stands alone. How an individual is treated when accused of a crime is a test of a State’s commitment to respect for the Rule of Law.

In order to balance the scales of fairness, the Rule of Law prescribes certain principles in criminal proceedings, such as the right to legal representation, the right to be presumed innocent until proven guilty by a court established by law, the right of habeas corpus for those held in detention and, as discussed above, the right to have a charge determined in public, by an authorised judicial body within a reasonable time. These principles, embodied into the Rule of Law, go to the very cornerstone of any democratic society.

In the criminal context, the right to a fair trial applies to the determination of a “criminal charge”.  The meaning of “criminal charge” is autonomous and not solely dependent upon the definition under domestic law. In order to ascertain whether proceedings concern the determination of a criminal charge, one must consider:
i.  the classification under domestic law;
ii. the nature of the conduct in question; and
iii. the severity of the penalty.

As for when a person may be considered to have been charged, this is the moment at which the individual has received the official notification by the competent authority of an allegation that a criminal offence has been committed.

The right to a fair trial in criminal proceedings includes, in addition to those guarantees discussed above, a number of minimum rights to an accused. These include the following:

§ The right to be presumed innocent until proven otherwise according to law;
§ The right to be informed promptly of any criminal charge against him/her in a language that he/she understands;
§ The right to adequate time and facilities to prepare a defence;
§ The right to defend oneself in person or to choose a legal representative of one’s own free choice;
§ The right to free legal representation if one cannot afford private representation and if in the interest of justice;
§ The right to examine witnesses and to secure the attendance of witnesses under the same conditions as the prosecution; and
§ The right to have the free assistance of an interpreter if he/she cannot understand the language of the court, irrespective of his/her financial means.

In addition to the above a number of additional safeguards exist for those held in pre-trial detention. For example, pre-trial detention must be strictly in accordance with a procedure prescribed by domestic law. It must have been imposed for the purpose of bringing a person before a competent legal authority on reasonable suspicion of having committed a criminal offence, or if it is reasonably necessary to prevent a person from committing an offence or to prevent a person from fleeing after having committed an offence.

Upon arrest, or immediately thereafter, the reasons for the arrest must be given in clear, non-technical language. The person arrested shall be entitled to consult with a lawyer in private, unless under exceptional circumstances there are reasons to delay. Thereafter, a detained person is entitled to be brought promptly before a judge authorised by law to exercise judicial power. Pre-trial detention under “reasonable suspicion” of having committed an offence will only be justified for a limited period. If the individual is detained awaiting trial for lengthy periods, then additional “relevant and sufficient” grounds must be put forward:
 fear of absconding;
 fear interference with evidence or witnesses;
 fear that the accused will re-offend;
 preservation of public order.

If the courts fail to consider “relevant and sufficient” grounds for detention the accused must be released pending trial. Under any circumstances, any period spent in detention on remand must be kept to the shortest period possible. The length of any period spent in detention on remand must not exceed a “reasonable time”. To this end, the domestic authorities are required to examine the circumstances arguing for and against the existence of a general requirement of public interest justifying a departure from the respect for individual liberty and to set them out in their decisions ordering or extending detention. In determining the reasonable length one must consider the reasons put forward by the domestic authorities, the complexity of the case, the conduct of the accused and finally whether the domestic authorities have exercise “special diligence” in expediting the case of an individual held in detention.

Any detained person must be entitled to challenge detention before a judicial body and request to be released on bail. By entitling a person to be brought before a judicial body, this prevents arbitrary detention. An important safeguard against arbitrary detention imposes a duty on the police and prosecuting authorities to inform an arrested individual of the reasons for his arrest and any charges against him. This means that the individual must be informed in simple, non-technical language, the essential legal and factual grounds for arrest in order to be able to challenge its lawfulness.
 
During this period, there is also a requirement for the individual to be granted free access to a legal representative and to be legally represented during police interrogation. This right applies to the early stages of arrest and detention and the arresting officers are required to inform the arrested individual of this right.

Conceivably the most important protection against arbitrary detention is the right of habeus corpus. This right entitles a detained person to bring proceedings by which the lawfulness of his detention is decided “speedily” by a court.  The right applies to all forms of detention and is not dependant upon detention being unlawful. The right is also to be considered independent of applying for release on bail, as the right is solely to test the lawfulness.

Any procedure must comply with the requirement that determination is conducted speedily, with respect to the requirement of fairness and the requirement of equality of arms between the parties. In this respect, one must consider whether an accused is on an equal footing, vis-à-vis the prosecution, whether the proceedings are purely adversarial in nature, and that hearings are scheduled at reasonable intervals. In respect to the latter requirement, grounds that may be considered relevant during the early stages of detention may not be considered as such after the passage of time.

Additional safeguards against abuse are contained under Articles 3 and 8 of the ECHR.

These pages © F.Javier Leon Diaz 2002. All rights reserved