Human Rights

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In measuring the extent to which the European regional approach to human rights protection offers advantages over the United Nations international approach, the various mechanisms contained within both systems must be compared and analysed. An explanation of the various international treaties and the drafting of the European Convention will require some consideration in order to assess the overall effectiveness of the machinery’s established under both systems for the protection of human rights. Particular reference will be made to the right not to be subjected to ‘torture or to inhuman or degrading treatment or punishment’ who’s universal condemnation stems back to the impunity for horrific crimes against humanity committed during the First and Second World War thus prompting in 1945, the first formal recognition of the importance of protecting human rights in the international order through the United Nations Charter and the Nuremberg Charter. The United Nations Charter sets out its purposes as “promoting and encouraging respect for all human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”’ and although the declarations are no more than aspirational, they support principles of liberty and individual freedoms that have subsequently formed the content of specific rights treaties. Torture is received with strong universal condemnation, and although there is no absolute definition, its prohibition is emphasised in several international legal instruments such as; the Universal Declaration of Human Rights 1948 (UDHR), the European Convention on Human Rights 1950 (ECHR), and the International Covenant on Civil and Political Rights 1966 (ICCPR), each in similar language, providing that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ The Convention against Torture and Other Cruel Inhuman or degrading Treatment gives a precise definition in Article 1 and requires parties to take effective measures to prevent it in any territory under its jurisdiction calling on all States to ensure that all acts of torture are included offences under their domestic criminal laws, including attempts and complicity as well as participation. Similar steps are taken within the European Convention of Human Rights which imposes an obligation on each Contracting Party to secure those rights are within their jurisdiction. However, at international level, under the statutes of criminal tribunals, torture can only be prosecuted if it falls within the category of war crimes. In addition to this, the lack of effective enforcement mechanisms within some States undermines the effectiveness of the international human rights system. The International Court of Justice (ICJ) hears cases involving disputes between nation-states and Article 30 of the Convention provides that, “any dispute between two State parties concerning its interpretation or application which has not been possible to settle through negotiation or arbitration may be submitted to ICJ by one of the States.” A failure of this allows for a claim to be submitted to the ICJ requesting that the Court apply measures requiring the Respondent to take all steps within its power to ensure the rules of international law will be correctly applied.” The problem then lies in the fact that in order for the International Court of Justice to hear a case, the State parties to the dispute must accept its jurisdiction. This is borne from the fact that International lawyers will agree that an international agreement is not legally binding unless the parties intend it to be and is therefore more of an understanding or agreement between the States. This is considered a problem with enforcement at international level as rights contained in the Conventions need to be balanced with the States sovereignty. By contrast, where the United Kingdom and other countries have incorporated the Human Rights Act 1998 within its...
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