The International Law of Human Rights and States of Exception: With Special Reference to the Travaux Preparatoires and Case-Law of the International Monitoring Organs. (International Studies in Human Rights, Vol. 54.) By Anna-Lena Svensson-McCarthy. The Hague, Boston, London: Martinus Nijhoff Pub... (original) (raw)

1999, American Journal of International Law

HAPTER 6-THE NOTION OF PUBLIC EMERGENCY IN THE AMERICAS ... 242 I. t:ltesof siege-an early concem ... 244 2. The American Convention on Human Rights _ Art. 27 ... 247 Xl A. A brief history ... 247 B. The emergency provisions in the three draft conventions 248 C. The Inter-American Conference on Human Rights, 1969 250 3. The work of the Inter-American Court and Commission on Human Rights ... 253 A. The Court ... 253 B. The Commission ... 254 a. Application of regional conventional law 255 b. Application of the most accepted doctrine 268 c. The doctrine on the limits of state repression ... 274 d. Application of universal conventional law... 277 Conclusions ... 281 CHAPTER 7-THE NOTION OF PUBLIC EMERGENCY IN EUROPE ... 285 1. The preparatory works ... 286 2. The case-law of the European Court and Commision of Human Rights ... 290 A. The definition of the emergency notion in Art. 15(1)... 291 a. The Lawless case 291 b. The Greek case 300 c. The Irish case 307 d. The case of Brannigan and McBride 309 B. Power of review and grant ofdiscretion 313 C. Propio motu application of Art. 15... 319 D. Reservations and interpretative declarations under Art. 15... 322 Conclusions ... 324 CHAPTER 8-THE INTERNATIONAL LABOUR CONVENTIONS AND THE NOTION OF PUBLIC EMERGENCY ... 326 1. The International Labour Code 327 2. The Forced Labour Conventions 329 A. The 1930 Convention (No. 29)-the preparatory works 329 a. The interpretation of Art. 2(2)(d) by the ILO organs 333 i. The general interpretative approach ... 333 ii. Public emergencies and economic problems ... 335 B. The 1957 Convention (No. 105)... 338 3. Freedom of association and collective bargaining... 342 A. The Commissions ofinquiry (Art. 26 of the ILO Constitution) ... 342 ii, The duty to provide special prOtection against illtreatrnent ... 412 xin iii. The duty to provide effective guarantees and remedies .. .414 iv. The scope of individual responsibility .. .415 v. The meaning of treatment contrary to Art. 7 and its relationship to Art. 10(1) .. .415 vi. Prison treatment in general .. .418 vii. Solitary confinement...419 viii. Detention on death row ... 427 ix. Corporal punishment ... 428 x. Medical and scientific experimentation .. .429 c. The right to freedom from slavery and servitude-Art. 8(1) and (2).. .429 d. Prohibition on imprisonment for inability to fulfil a contractual obligation-Art. 11.. .430 e. Non-retroactivity of criminal law-Art. 15 .. .431 f The right to recognition as a legal person-Art. 16 .. .433 g. The right to freedom of thought, conscience and religion-Art. 18 ... 433 i. General understanding of the three freedoms ... 434 ii. The freedom to choose and change religion .. .434 iii. The freedom to manifest one's beliefs .. .435 iv. Limitations on the freedom to manifest one's beliefs .. .437 v. Non-discrimination between religions and churches .. .439 vi. Religious and philosophical education .. .441 vii. Conscientious objection to military service .. .442 C. The widening field of non-derogabiliry .. .445 a. Arts. 2,9 and 14 ... 445 b. Art. 10(1) ... 447 Conclusions ... 448 CHAPTER 10-THE NON-DEROGABLE OBLIGATIONS UNDER THE AMERICAN CONVENTION ON HUMAN RIGHTS .. .451 1. The preparatory works ... 451 2. Opinions of the Inter-American Court and Commission on Human Rights .. .453 A. The obligation to respect and ensure human rights-Art. 1(1) .. .453 B. The right to juridical guarantees-Art. 27(2) i"jine .. .455 C. The right to juridical personality-Art. 3 .. .463 D. The right to life-Art. 4 ... 463 a. Enforced or involuntary disappearances and extrajudicial executions ... 464 I. The preparatory works ... 498 2. The case-law of the European Commission and COUrt of Human Righrs ... 499. The right to life-Art. 2 of the Convention and Art. 1 of Protocol No. 6 ... 499 a. The general protection of the right to life _ Art. 2(1) ... 501 b. The right of the unborn child _ Art. 2(1) ... 505 c. The death penalty-Art. 2(1) of the Convention and Art. 1 of Protocol No.6 ... 505 d. Deprivations oflife for a lawful purpose _ Art. 2(2) 506 e. Deaths resulting trom lawful acts of war _ Art. 15(2) 515 B. The nght to freedom from tOrture, inhuman, degrading treatment or punishment-Art. 3... 516 a. General interpretative approach ... 516 b. Torture, inhuman and degrading treatment. .. 5 17 xv c. Inhuman and degrading punishment.. .523 d. Expulsion and extradition ... 528 e. Solitary confinement ... 535 f. Conditions of detention and imprisonment in general ... 538 g. Detention of persons of ill health ... 542 h. Medical and psychiatric examination ... 545 i. Medical experimentation without consent. .. 545 j. Environmental problems ... 546 C. The right to freedom from slavery and servitude-Art. 4(1)... 546 D. Freedom from ex post facto laws and the principle ne his in idem-Art. 7 of the Convention, Art. 4 of Protocol No. 7... 547 a. Retroactivity and unreasonable uncertainty oflega! provisions ... 548 b. Preventive measures... 551 c. The definition of offences... 554 d. Proceedings falling outside the framework of Art. 7(1) 554 e. The principle tie his il'l idetn-Art. 4 of Protocol No.7

The international law of human rights and states of exception : with special reference to the travaux préparatoires and case-law of the international monitoring organs

1998

HAPTER 6-THE NOTION OF PUBLIC EMERGENCY IN THE AMERICAS ... 242 I. t:ltesof siege-an early concem ... 244 2. The American Convention on Human Rights _ Art. 27 ... 247 Xl A. A brief history ... 247 B. The emergency provisions in the three draft conventions 248 C. The Inter-American Conference on Human Rights, 1969 250 3. The work of the Inter-American Court and Commission on Human Rights ... 253 A. The Court ... 253 B. The Commission ... 254 a. Application of regional conventional law 255 b. Application of the most accepted doctrine 268 c. The doctrine on the limits of state repression ... 274 d. Application of universal conventional law... 277 Conclusions ... 281 CHAPTER 7-THE NOTION OF PUBLIC EMERGENCY IN EUROPE ... 285 1. The preparatory works ... 286 2. The case-law of the European Court and Commision of Human Rights ... 290 A. The definition of the emergency notion in Art. 15(1)... 291 a. The Lawless case 291 b. The Greek case 300 c. The Irish case 307 d. The case of Brannigan and McBride 309 B. Power of review and grant ofdiscretion 313 C. Propio motu application of Art. 15... 319 D. Reservations and interpretative declarations under Art. 15... 322 Conclusions ... 324 CHAPTER 8-THE INTERNATIONAL LABOUR CONVENTIONS AND THE NOTION OF PUBLIC EMERGENCY ... 326 1. The International Labour Code 327 2. The Forced Labour Conventions 329 A. The 1930 Convention (No. 29)-the preparatory works 329 a. The interpretation of Art. 2(2)(d) by the ILO organs 333 i. The general interpretative approach ... 333 ii. Public emergencies and economic problems ... 335 B. The 1957 Convention (No. 105)... 338 3. Freedom of association and collective bargaining... 342 A. The Commissions ofinquiry (Art. 26 of the ILO Constitution) ... 342 ii, The duty to provide special prOtection against illtreatrnent ... 412 xin iii. The duty to provide effective guarantees and remedies .. .414 iv. The scope of individual responsibility .. .415 v. The meaning of treatment contrary to Art. 7 and its relationship to Art. 10(1) .. .415 vi. Prison treatment in general .. .418 vii. Solitary confinement...419 viii. Detention on death row ... 427 ix. Corporal punishment ... 428 x. Medical and scientific experimentation .. .429 c. The right to freedom from slavery and servitude-Art. 8(1) and (2).. .429 d. Prohibition on imprisonment for inability to fulfil a contractual obligation-Art. 11.. .430 e. Non-retroactivity of criminal law-Art. 15 .. .431 f The right to recognition as a legal person-Art. 16 .. .433 g. The right to freedom of thought, conscience and religion-Art. 18 ... 433 i. General understanding of the three freedoms ... 434 ii. The freedom to choose and change religion .. .434 iii. The freedom to manifest one's beliefs .. .435 iv. Limitations on the freedom to manifest one's beliefs .. .437 v. Non-discrimination between religions and churches .. .439 vi. Religious and philosophical education .. .441 vii. Conscientious objection to military service .. .442 C. The widening field of non-derogabiliry .. .445 a. Arts. 2,9 and 14 ... 445 b. Art. 10(1) ... 447 Conclusions ... 448 CHAPTER 10-THE NON-DEROGABLE OBLIGATIONS UNDER THE AMERICAN CONVENTION ON HUMAN RIGHTS .. .451 1. The preparatory works ... 451 2. Opinions of the Inter-American Court and Commission on Human Rights .. .453 A. The obligation to respect and ensure human rights-Art. 1(1) .. .453 B. The right to juridical guarantees-Art. 27(2) i"jine .. .455 C. The right to juridical personality-Art. 3 .. .463 D. The right to life-Art. 4 ... 463 a. Enforced or involuntary disappearances and extrajudicial executions ... 464 I. The preparatory works ... 498 2. The case-law of the European Commission and COUrt of Human Righrs ... 499. The right to life-Art. 2 of the Convention and Art. 1 of Protocol No. 6 ... 499 a. The general protection of the right to life _ Art. 2(1) ... 501 b. The right of the unborn child _ Art. 2(1) ... 505 c. The death penalty-Art. 2(1) of the Convention and Art. 1 of Protocol No.6 ... 505 d. Deprivations oflife for a lawful purpose _ Art. 2(2) 506 e. Deaths resulting trom lawful acts of war _ Art. 15(2) 515 B. The nght to freedom from tOrture, inhuman, degrading treatment or punishment-Art. 3... 516 a. General interpretative approach ... 516 b. Torture, inhuman and degrading treatment. .. 5 17 xv c. Inhuman and degrading punishment.. .523 d. Expulsion and extradition ... 528 e. Solitary confinement ... 535 f. Conditions of detention and imprisonment in general ... 538 g. Detention of persons of ill health ... 542 h. Medical and psychiatric examination ... 545 i. Medical experimentation without consent. .. 545 j. Environmental problems ... 546 C. The right to freedom from slavery and servitude-Art. 4(1)... 546 D. Freedom from ex post facto laws and the principle ne his in idem-Art. 7 of the Convention, Art. 4 of Protocol No. 7... 547 a. Retroactivity and unreasonable uncertainty oflega! provisions ... 548 b. Preventive measures... 551 c. The definition of offences... 554 d. Proceedings falling outside the framework of Art. 7(1) 554 e. The principle tie his il'l idetn-Art. 4 of Protocol No.7

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ILSA Journal of International and Comparative Law, 1997

Forty-five years after the adoption of the Universal Declaration of Human Rights the international community met in Vienna to elaborate the human rights agenda for the next twenty-five years. The second United Nations World Conference on Human Rights was intended to focus on the implementation of the human rights standards that had been adopted since the Universal Declaration, but found itself challenged instead by a number of Asian countries on the very issue of the universality of these rights, which they argued reflected Western values and not their own. Paragraph 5, inter alia, of the Vienna Declaration and Programme of Action,' reaffirmed the universality of human rights using the English language in such a way that only a non-native-English speaker could appreciate: Paragraph 5: All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural * Senior Specialist in Human Rights at the Inter-American Commission on Human Rights of the Organization of American States. Affiliation for identification purposes only. The opinions expressed are those of the author alone and are not to be attributed to the Organization of American States or to any of its organs. This article expands upon the author's presentation on Friday, November 1, 1996, at the International Law Weekend (organized by the American Branch of the International Law Association, the American Society of International Law, and other similar associations) at a panel of the same name organized by Christiane Bourloyannis-Vrailas, of the U.N. Office of Legal Affairs.

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