international system protection of human rights within the framework of the UN significantly develop and supplement regional systems of human rights protection based on a territorial community, approximately the same level of social economic development and a number of other factors, that is, they include countries that are approximately in the same "historical time"
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Ministry of Education and Science Russian Federation
Federal State Budgetary Educational Institution
higher professional education
"KUBAN STATE UNIVERSITY"
(FGBOU VPO "KubGU")
Department of Civil Procedure and international law
Admit to protection in the SAC
Department head
Dr. jurid. sciences, professor
S.V. Potapenko
(signature)
"____" ______________ 2014
GRADUATE QUALIFICATION (DIploma)
WORK
international control for the protection of human rights
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Work completed K. P. Gorlova |
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(signature, date) |
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Faculty of Law |
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Speciality 031001.65 Law |
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scientific adviser cand. legal Sciences, Associate Professor A.V. Bahnovsky |
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(signature, date) |
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Comptroller |
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cand. legal Sciences, Associate Professor A.V. Bahnovsky |
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(signature, date) |
Krasnodar 2014
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Introduction ................................................ ................................................. ....................3 1 Universal Human Rights Monitoring Bodies .............................................. 10 1.1 Oversight functions of the UN bodies.................................................... ................10 1.2 Human rights monitoring mechanism within the ILO ............................................................. ................................................. ...........eleven
2 Regional Human Rights Monitoring Bodies...............................................28
2.2 European Committee for the Prevention of Torture.......................................................31 2.3 Monitoring the observance of human rights within the framework of the CIS .............................................36 2.4 The Inter-American Commission and the Inter-American Court of Human Rights.................................................................. ................................................. ...................46 2.5 The African Commission and the African Court of Human Rights.......................51 Conclusion…………………………………........…………………………….........54 List of sources used.......................................................................56 |
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INTRODUCTION
The modern international system of human rights protection includes three levels: international, regional and national. The formation of international mechanisms for the protection of human rights is associated with the United Nations, the UN Charter and the Universal Declaration of Human Rights. The political authority of the latter was so high that its provisions were included in the constitutions of many states of the world, had a significant impact on the subsequent development international relations and international politics, the formation of an international system for the protection of human rights.
The most effective monitoring mechanisms for all states are state reports (primary, supplementary, periodic).
Often used by the Committee and alternative reports provided by non-governmental organizations and capable of influencing the opinion of the members of the Committee. The latter has the right to issue recommendations to improve the human rights situation in the country. Although the decisions taken by the committee are not binding, a number of States have already taken action on them.
The most important bodies for the protection of human rights are the institution of the United Nations High Commissioner for Human Rights (hereinafter referred to as UNHCHR 1993). The scope of the UNHCHR is the promotion and protection of human rights throughout the world; strengthening international cooperation in the field of human rights; achieving dialogue with governments in order to ensure respect for human rights; coordination of efforts undertaken in this area by various UN bodies, etc.
The international human rights protection system within the framework of the UN is significantly developed and supplemented by regional human rights protection systems based on territorial commonality, approximately the same level of socio-economic development and a number of other factors, that is, they include countries located approximately in the same “historical time”. Adopted within the framework of the Council of Europe, the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) was the first international treaty at the regional level that transformed the principles proclaimed by the Universal Declaration.
Thus, the world community, recognizing the value of human rights and life, has reached agreement on international standards in the field of human rights. International standards are the result of a compromise between countries with different political and legal systems and traditions, which, for one reason or another, have come to a common expression of their positions, which often differ noticeably in practice. The membership of states in the universal and regional systems is made dependent on the conformity of national legislation with the Charter of the organization and the relevant convention on human rights. The functions of international and domestic protection of human rights are delimited as follows: at the international level, international standards in the field of human rights are developed and supervisory bodies operate for their observance; at the national level, states bring their legislation in line with international standards and guarantee their implementation. For the domestic implementation of international standards, there remains a certain scope of freedom of action for their adaptation and concretization, in the process of which national characteristics (culture, traditions, mentality) are reflected.
According to Art. 55 of the UN Charter promotes "universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion" 1 . The corresponding powers on behalf of the UN are exercised by ECOSOC.
Under his leadership, there was a commission on human rights, in which 43 states were represented. In order to strengthen the UN human rights mechanism, in September 2005 it was decided to establish a Human Rights Council, replacing the Human Rights Commission and competent to make recommendations on situations of violation of rights. In December 1993, the UN General Assembly adopted a resolution establishing the position of the UN High Commissioner for Human Rights. In May 1999, the post of Commissioner for Human Rights of the Council of Europe was established, which is competent to provide advisory services, submit reports, opinions and recommendations. Separate conventions provided for the creation of special bodies. These include: the Human Rights Committee on the basis of the Covenant on Civil and Political Rights; Committee on the Rights of the Child on the basis of the Convention on the Rights of the Child; Committee on the Elimination of Racial Discrimination on the basis of the Convention on the Elimination of All Forms of Racial Discrimination; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families on the basis of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Committee on the Elimination of Discrimination against Women; Committee against Torture on the basis of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Covenant on Economic, Social and Cultural Rights did not provide for a special body, having stipulated the possibility of acting through ECOSOC, its last decision in 1985 established a committee on economic, social and cultural rights. Each committee consists of experts (10 in the Committee against Torture, 18 in the rest), and it cannot include more than one citizen of one state; fair geographical distribution and representation of various forms of civilization and major legal systems.
States parties to the covenants and conventions have committed themselves to submit regular reports to the appropriate committee on the state of human rights and on the measures taken to make progress in the realization of rights. The Committee examines the reports, discusses them at its meetings and submits comments to its States on them. The Committee may also receive and consider communications from States which have made declarations recognizing such competence of each committee. The USSR, not immediately when signing a number of acts, but later in July 1991, recognized such competence of the committees under the Covenant on Civil and Political Rights, under the Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and punishment. In October 2004, the Russian Federation acceded to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, thereby recognizing the competence of the relevant Committee.
Covenants on human rights and other international acts provide legal protection of the proclaimed rights and freedoms, and, on the one hand, they fix the obligations of states to implement national remedies, and on the other hand, they introduce and directly regulate international remedies. The initial provision on the national (intrastate) mechanism was first formulated in Art. 8 of the Universal Declaration of Human Rights: “Everyone has the right to an effective remedy by competent national courts in the event of a violation of his fundamental rights granted to him by the constitution or law” 2 . The next step was the recognition that the “right to legal protection” (the term of the Covenant on Political Rights), which belongs to a person, is real only with the corresponding obligations of the state and its bodies.
At the same time, and this emphasizes the normative significance of the covenants, it was established that the rights and freedoms recognized in the covenants are subject to legal protection. Consequently, national courts and other competent state bodies were charged with protecting not only constitutional but also international treaty rights.
In accordance with paragraph 3 of Art. 2 of the Covenant on Civil and Political Rights, each state undertakes to provide: to any person whose rights and freedoms recognized in the Covenant are violated, an effective remedy; establishing the right to legal protection for any person through a judicial, administrative or legislative body; application by the competent authorities of legal remedies.
The OSCE participating States, in the Vienna Concluding Document of 15 January 1989, expressed their intention to provide “effective remedies” and defined their specific content in relation to the relationship of the competent authorities of the state with those who claim that their rights have been violated.
Supreme form legal regulation in this area was the establishment of special international mechanisms created in accordance with international regulations special bodies that were empowered to accept, consider and evaluate the appeals of individuals.
Such mechanisms in relation to certain areas of legal regulation were provided for in the International Convention on the Elimination of All Forms of Racial Discrimination and the Committee against Torture was authorized to receive and consider communications from individuals (or groups of individuals) who claim to be victims of a violation by the State party of the above in the Convention of Rights (respectively, Article 14 of the first and Article 22 of the second Convention).
After considering the communication and the information requested from the state, the Committee submits its opinions, proposals, recommendations to the relevant state and the person concerned.
The Human Rights Committee, established by the Covenant on Civil and Political Rights, has the additional competence set out in the first Optional Protocol to the Covenant. This refers to the function of considering individual applications in connection with the violation of the rights proclaimed in the Covenant. The condition for the Committee to exercise such a function is the participation of the state not only in the Covenant, but also in the Protocol and the recognition by the state of the specified competence of the Committee.
Any person under the jurisdiction of such a State who claims that any of the rights listed in the Covenant has been violated and who has exhausted all available domestic remedies may submit a written communication to the Committee. The Committee shall bring the communication to the attention of the State concerned, which shall, within six months, provide the Committee with written explanations and inform about the favorable measures. After considering all the submitted materials, the Committee sends its views to the relevant state and interested person.
The control mechanisms fixed in the agreements are reduced to the creation of control bodies within the framework of international organizations, the establishment by states of special control bodies, the use of national technical means control.
The successful implementation of control is facilitated by agreed additional measures, such as equipping military installations with special identification marks (Treaty between Russia and the United States on the Further Reduction of Strategic Offensive Arms of 1993); agreed rules for counting weapons systems; notifications of upcoming actions; exchange of quantitative data on weapons, their locations and technical specifications. As a method of control, the inspection provided for by international agreements is widely used.
1 Universal human rights monitoring bodies
1.1 Oversight functions of UN bodies
The creation of a system of international control over the implementation of the legal circumstances assumed by states in the field of human rights will be one of the most significant achievements in international regulation this area. The role of control bodies in modern conditions is constantly increasing. Increasing attention is paid to their functions and powers in the activities of the UN and in various universal and regional agreements. As you know, there is no supranational authority that could control the implementation of the principles and norms of international law. Therefore, the states provided for the creation of an international control mechanism. 3 In this process, a significant role is also played by the fact that a number of issues that previously belonged to the internal competence of states are now regulated by international law. The functions of international control are constantly expanding, while some of its forms and methods are borrowed from the internal practice of states. Control seriously increases the effectiveness of the application of agreed norms and principles of international law by each state party to international agreements. The forms of such control largely depend on the nature of human rights violations and can be very diverse. It is worth noting that they are determined by the Charter, decisions of the UN and its specialized agencies, international agreements of a universal and regional nature. 4 Let us note the fact that in modern interstate relations the implementation of human rights is carried out by legislative, administrative and other means available to each state, and international bodies exclusively control this process.
Therefore, one cannot agree with the statements of a number of international lawyers that the control bodies have the functions of directly ensuring human rights with the help of the means at their disposal. They do not have such means in the field of human rights. Today, a number of control bodies have been established in accordance with the UN Charter, while others have been established on the basis of international agreements of both universal and regional character. 5
1.2 Human rights monitoring mechanism within the ILO
The control mechanism primarily includes the activities of the committee of experts on the application of conventions and recommendations. The Committee of Experts consists of authoritative jurists from various states, who are personally appointed by the Administrative Council. 6
Annual reports are sent to the ILO (International Labor Office), international officials work with these reports and give their comments and assessment. Further, reports and recommendations are sent to the committee of experts, and there is a discussion. If necessary, the Committee of Experts may comment on the work of the government in relation to the ratified conventions and recommendations, or may send inquiries to governments on issues of interest, based on the results of the meeting. 7
For example, the report of the meeting of the Committee of Experts on the Regulation of the Labor of Migrant Workers was of great importance. The reports of the Committee of Experts are sent to the Committee for the Application of Conventions and Recommendations. This is a committee - an administrative body, which, based on the results of the work of specialists, gives a final assessment of the behavior of the state and compliance with the obligations that the state assumed upon becoming a member of the ILO by ratifying certain documents.
The control mechanism includes both consideration of complaints and violation by states of obligations to comply with international labor standards. Complaints can be of two main types:
Firstly, these are the so-called representations, which can be submitted by trade unions or representatives of entrepreneurs. In fact, these are complaints against states that have taken upon themselves by ratifying certain conventions. The submission is considered in a tripartite committee, which is specially, each time created under the Administrative Council. Any member state may file a complaint against another member state of the International Labor Organization, which, in the opinion of the complaining state, does not comply with one or another convention that was once ratified by these two states.
Complaints are submitted to the Investigation Committee, which is established on a priority basis and operates under the Administrative Council. 8 He can request special evidence, hear witnesses. Based on the results of the meeting, an assessment is made of the activities of the member state and the legislation that is adopted in this state. In the event that the results are disputable, the state wants to challenge the result of the work of the commission of inquiry, then the conclusions can be appealed to the International Court of Justice, whose decision is final. 9
With regard to sanctions, if a member state does not take into account the decision of the International Court of Justice, if it refuses to comply with the recommendations of the commission of inquiry, then the Administrative Council may put pressure on the state. Unfortunately, the ILO Constitution is silent about the nature of this pressure. 10 Sanctions can be anything, such as suspension of membership, and in some cases even expulsion. But in practice, the Charter formulates such a provision that the International Labor Organization does not seek to use coercive measures, it refers to the conscience of the state, to public opinion, to its strength, does not seek to exert pressure. In this regard, there are numerous wishes, firstly, to change the Charter in such a way that effective sanctions are introduced for non-compliance with the recommendations of the commission of inquiry, for non-compliance with the decision of the International Court of Justice. Secondly, the disadvantage is the lack of consideration of individual complaints. International Labor Organization in Lately very actively responds to such wishes, initiatives that relate to improving the activities of organizations.
Human Rights Committee
The Human Rights Committee was established in 1977 in accordance with article 28 of the International Covenant on Civil and Political Rights. 11
The Committee is composed of 18 members, citizens parties to the Covenant, of high moral character and recognized competence in the field of human rights. Members of the Committee are elected at the Meeting of the States Parties to the Covenant by secret ballot for a term of four years and serve in their personal capacity and not as representatives of their countries. The Human Rights Committee normally holds three sessions of three weeks each during the year. As a rule, sessions are held in New York in the spring and in Geneva in the summer and autumn. All States that have ratified or acceded to the International Covenant on Civil and Political Rights are required to report to the Committee on the measures they have taken to give effect to the rights set forth in the Covenant and on the progress made in the enjoyment of those rights. The initial report shall be submitted within one year of the entry into force of the Covenant in respect of the country concerned. Reports on further changes are due every five years. The meetings are organized in such a way that the representatives of the state have time to consult with the government and obtain the necessary information. The second important function of the human rights committee is to interpret the provisions of the International Covenant on Civil and Political Rights in order to dispel any doubts about the scope and meaning of its articles. The comments provide guidance to States parties in the application of the provisions of the Covenant, as well as in the preparation of their reports.
Under the Optional Protocol to the International Covenant on Civil and Political Rights, the Committee is empowered to receive and consider communications from individuals who claim to be victims of a violation by a State party to the Covenant of any of the rights set forth in the Covenant.
Any State party to the Covenant may submit a communication to the Committee alleging that another State party is not fulfilling its obligations under the Covenant. However, this can only be done where both parties have declared that they recognize the competence of the Committee to receive and consider such communications. Although this procedure entered into force in 1979, no complaints of this nature have yet been received by the Committee.
1.4 Committee on the Elimination of Racial Discrimination
The Committee on the Elimination of Racial Discrimination was established in accordance with article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination to monitor and review measures envisaged and taken by States to fulfill obligations under the Convention. The members of this committee act on their own, without receiving any instructions from outside, they cannot be removed or replaced from their duties without their consent. 12 States parties to the Convention are required to submit every four years reports on the judicial, administrative or other measures taken to give effect to the provisions of the Convention. There are many erroneous opinions regarding this committee, one of them is the opinion that a state is not obliged to comply with the Convention if it considers that racial discrimination does not exist on its territory. 13 In the Committee's view, a State party is not fulfilling its obligations under the Convention if it only condemns racial discrimination in its Constitution. All States Parties to the Convention recognize the competence of the Committee to receive complaints from a State Party that another State Party is not complying with the provisions of the Convention and to take appropriate measures in this regard. So far, no participating State has used this procedure, which provides for the establishment of a conciliation commission if the issue under consideration could not be resolved in any other way. Complaints from individuals may also be received before the Committee against their own State alleging that they are victims of racial discrimination if that State is a member of the Committee.
The Committee brings this information to the attention of the state concerned without publicity to the source, if this has been stipulated. After the State has provided an explanation of its position and possibly proposed a solution, the Committee considers the issue and makes a proposal and recommendations, which are transmitted both to the individual or group of individuals concerned and to the State party.
The task of eliminating the injustices underlying racial discrimination, as well as the dangers associated with it, is one of the goals of the activities carried out by the United Nations.
1.5 Committee on the Elimination of Discrimination against Women
The Committee on the Elimination of Discrimination against Women was established in accordance with article 17 of the Convention on the Elimination of All Forms of Discrimination against Women. 14 The Committee is composed of 23 experts of every moral character and recognized competence in the field covered by the Convention. Members of the Committee are elected for a four-year term and serve in their personal capacity, ie. are not representatives of their states. Since its inception in 1982, with only one exception, the Committee has been composed entirely of women representing wide range various professions (lawyers, teachers, diplomats, etc.). The Committee meets once a year, meeting for two weeks in Vienna or New York, and reports annually on its activities to the General Assembly through ECOSOC. 15 In accordance with article 17 of the Convention, the main task of the committee is to consider reports on legislative, judicial, administrative or other measures taken by States parties to implement the provisions of the convention. The initial report is submitted within one year of ratification of or accession to the Convention; subsequent reports are to be submitted every four years or as requested by the Committee. A pre-sessional working group, composed of five members of the Committee, prepares a list of issues identified and lists of questions, which are forwarded to reporting States in advance. This gives States the opportunity to prepare responses for submission to Committee sessions. Representatives of a State may attend a meeting of the Committee dedicated to the consideration of that State's report. First, the members of the committee make observations and comments on the form and content of the report, then they ask questions regarding specific articles of the Convention. Representatives can answer some of these questions right away and others in a day or two. At this stage, the Committee may ask further questions and request more detailed information before the next report is submitted. The Committee then prepares concluding observations on the report of individual States Parties so that these comments can be reflected in the report of the Committee to the General Assembly. These concluding remarks address the most important issues raised during the dialogue with the representatives of a given state, highlight both positive aspects and issues of concern to the committee, and indicate what information the state should include in its next report. The Committee's consideration of State reports is an adversarial process. The Committee never officially declares that a State is violating the Convention. Instead, he draws attention to the weaknesses in the policy of the state concerned through questions and comments. This approach also means that the Committee does not put pressure on states that openly violate the provisions of the Convention. Article 21 of the Convention provides that the Committee may make suggestions and recommendations of a general nature based on the examination of reports and information received from States Parties. To date, the committee's general recommendations have been limited in both scope and practical implications. Being intended for all participating States, and not for individual States, these recommendations are often too general, which makes it difficult to monitor their implementation, and are not binding. A valuable source of information for the Committee are non-governmental human rights and women's organizations.
Reports submitted by participating States do not always accurately reflect the situation of women's rights in a given country and do not always identify problems. Information and statistics from independent organizations is of great use to the committee in assessing the actual situation in individual states. To the extent possible, these submissions should contain references to specific articles of the Convention that are relevant to the issues or issues under consideration. NGOs may submit written communications to the Committee through the Division for the Advancement of Women. On October 6, 1999, the UN General Assembly adopted the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, which provides for the possibility of filing individual complaints (communications) by persons who claim to be victims of a violation by a state party to the Protocol of any of the rights, set out in the Convention. 16 The Protocol entered into force on 22 December 2000. Communications may be submitted by or on behalf of individuals or groups of individuals subject to the jurisdiction of a State Party who claim to be victims of a violation by that State Party of any of the rights set forth in the Convention. Reports are submitted in writing and must not be anonymous. The Committee does not consider a communication until it is satisfied that all available domestic remedies have been exhausted, unless the application of such remedies is unreasonably prolonged or unlikely to produce the desired result. The Committee declares a communication inadmissible if:
(a) The same matter has already been considered by the Committee or has been or is being considered under another procedure of international investigation or settlement;
B) it is incompatible with the provisions of the Convention;
C) it is clearly groundless or insufficiently substantiated;
D) it constitutes an abuse of the right to direct such communication;
e) the facts that are the subject of the communication occurred before the entry into force of this Protocol for the State concerned, unless those facts continued after that date. At any time after receipt of a communication and before a decision has been taken on its merits, the Committee may address to the State party concerned, for prompt consideration, a request that that State take such interim measures as may be necessary to avoid possible irreparable harm to the victim or victims of the alleged violation . Unless the Committee considers a communication inadmissible, and provided that the person or persons agree to disclose their name or names, the Committee shall confidentially bring any communication addressed to it under the Protocol to the attention of the State concerned. The notifying State shall, within six months, submit to the Committee written explanations or statements clarifying the matter and any action, if any, that the State may have taken. Investigation of information on serious and systematic violations in accordance with the optional protocol in cases where the committee receives reliable information indicating claims and systematic violations by a state party of the rights set forth in the convention, the committee invites that state to cooperate in examining the information and, in this regard, to submit comments regarding the relevant information. Where justified and with the consent of the State, the investigation may include a visit to its territory. After examining the results of such an investigation, the Committee shall transmit those results to the State concerned, together with any observations and recommendations.
- Committee Against Torture
Within the framework of the Council of Europe, in order to supplement the control mechanism created on the basis of the European Convention of 1950, the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment was adopted by an extrajudicial mechanism of a preventive nature. Based on the convention, a committee against torture was established. At present, 40 member states of the Council of Europe are parties to the Convention and therefore accept jurisdiction. 17
The task of the Committee against Torture is to study, through visits, the treatment of persons deprived of their liberty, with a view to strengthening, if necessary, protection against torture and inhuman or degrading treatment or punishment. The number of members of the Committee is equal to the number of parties to the convention. The members of the Committee shall be elected from among persons of high moral character, known for their competence in the field of human rights or having professional experience in this field. Obviously, these are not only lawyers, but also persons with experience in prison management and in various fields of medicine related to the detention of persons deprived of their liberty. This contributes to a more effective dialogue between the committee and the state and makes it easier for the committee's concrete proposals to pass through.
The members of the Committee shall serve in their personal capacity, they shall be independent and impartial and shall be able to carry out their functions effectively. Experts are subject to the same requirements of independence, impartiality and ability to perform their duties as committee members, and are subject to the instructions of the committee, which is responsible for their actions.
The Committee, its members and experts enjoy the privileges and immunities provided for in the annex to the convention to ensure the independent performance of their duties. The members of the Committee are elected by an absolute majority of the members of the Committee of Ministers of the Council of Europe for a term of four years. They can only be re-elected once. A State Party to the 1987 Convention must permit visits to any place within its jurisdiction where persons are deprived of their liberty by public authority. The objects of visits can be both state and honest institutions. The main criterion is the deprivation of liberty as a result of the actions of the state authorities. As a general rule, visits are made by at least two committee members. The Committee, if it considers it necessary, may use the assistance of experts and interpreters.
In addition to periodic visits, the committee may arrange for such visits as it deems necessary in the circumstances, with respect to such visits, it is left to the committee's discretion to decide whether visits are necessary and to determine the basis for such a decision. Thus, since the committee is not bound by the investigation of individual complaints, it is free to evaluate information from individuals or groups and to decide whether to take action based on such information. The committee notifies the government of the party concerned of its intention to make a visit. 18 After such notice, he may visit any place at any time. The state shall provide the committee with the performance of its tasks access to any place where these persons are located, as well as other information that the state has and which is necessary for the committee to carry out its tasks.
In seeking such information, the committee shall comply with applicable national law and professional conduct. The Committee has the right to talk with persons deprived of their liberty in private, freely to contact any person who can provide him with relevant information. In exceptional circumstances, the competent authorities of the party concerned may address the committee with a submission objecting to a particular time or place proposed by the committee for a visit. Such representations may only be made for reasons of national defence, public safety, in the event of serious disorder in places of detention of persons deprived of their liberty, the medical condition of a person, or in connection with an urgent interrogation regarding the commission of a serious crime. After each visit, the committee draws up a report on the facts established during the visit, taking into account all comments that may have been submitted to it by the State concerned. He sends a final report, including any recommendations the committee sees fit. If the state does not cooperate or refuses to remedy the situation in the light of the committee's recommendations, the committee may, after giving the state an opportunity to state its position, decide by a two-thirds majority of the members, make a public statement on the matter. 19
With considering specific features functions of the Committee provided for by this Convention, the Committee shall meet in private. This provision is supplemented by the principle contained in article 11 of the Convention that data collected by the Committee in connection with a visit, the content of its report and consultations with the State concerned are confidential information.
Subject to the rules of confidentiality, the Committee submits annually a general report on its activities to the Committee of Ministers. The report, which is presented to the Assembly and made public, contains information on the organization and internal work of the Committee and on its activities, indicating the states visited. The 1967 Convention applies not only in time of peace, but also in time of war or other state of emergency. The Committee shall not visit those places which are effectively controlled on a regular basis by representatives or delegations of the Protecting Powers or of the International Committee of the Red Cross, pursuant to the Geneva Convention of 12 August 1949 and its Additional Protocols of 8 June 1977. However, the Committee may make visits to certain places which the ICRC has not visited effectively or regularly. The 1987 Convention provides for an extrajudicial mechanism of a preventive nature that promotes cooperation between states in the field of human rights protection. All member states of the Council of Europe are parties to the Convention. In the future, after the entry into force of Additional Protocol No. 1, states that are not members of the Council of Europe will also be able to become its participants. It is also very significant that there is no duplication of the work of the Committee against Torture and the European Court of Human Rights. 20
- Committee on the Rights of the Child
The Committee on the Rights of the Child was established in 1991year in accordance with article 43 of the Convention on the Rights of the Child and consists of eighteen experts of high moral character and recognized competence in the field covered by the Convention23. Members of the Committee serve in their personal capacity, are elected for a four-year term and are eligible for re-election. Committee meetings are held annually in New York. Reports on the activities of the Committee are submitted once every two years to the General Assembly through ECOSOC. In accordance with article 44 of the Convention, States parties undertake to report to the Committee on the measures they have taken to secure the rights recognized in the Convention and on the progress made in the enjoyment of these rights. 21
The initial report must be submitted within two years of the entry into force of the Convention for the State Party concerned, and every five years thereafter. Under the Convention, States parties must ensure that their reports are widely publicized in their own countries. Based on the examination of the reports, the Committee may make suggestions and recommendations of a general nature, which are transmitted to the State concerned and communicated to the General Assembly, together with the States' comments, if any.
Similarly, States parties to the optional protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography are required to report to the Committee on the measures they have taken to secure the rights recognized in the optional protocols and on the progress made in the exercise of these rights.
- Committee on Economic, Social and Cultural Rights
Economic, social and cultural rights are designed to ensure the protection of people as full-fledged individuals on the basis of a concept that guarantees a person the opportunity to simultaneously enjoy the rights, freedoms and benefits of social justice. In a world where, according to the United Nations Development Program (UNDP), “a fifth of the population in developing countries go to bed hungry, a fourth cannot meet even such a basic need as the need for purified drinking water, and a third lives on the brink of survival in conditions of such appalling poverty that words cannot describe. Although much has been done to alleviate the plight of the world's population since the inception of the United Nations, over 1 billion people still live in extreme poverty, are homeless, suffer from hunger and malnutrition, unemployment, illiteracy and chronic disease. More than 1.5 billion people are deprived of the opportunity to drink purified drinking water and use water supply and sewerage systems; about 500 million children cannot even get a primary education, and more than 1 billion people cannot read and write.
The gigantic scale of social marginalization observed despite the continuation of global economic growth and development entails the emergence serious problems not only in relation to the development process, but also to fundamental human rights.
The International Covenant on Economic, Social and Cultural Rights was adopted and opened for signature, ratification and accession by a General Assembly resolution on December 16, 1966, after almost twenty years of debate during its development. Ten years later, it finally acquired the status of law and entered into force on January 3, 1976. The Covenant contains some of the most important international legal norms establishing economic, social and cultural rights, including the right to work in just and favorable conditions, the right to social protection, the right to an adequate standard of living and to the highest attainable standard of physical and mental health, the right to education and to enjoy the results of freedom in the field of culture and scientific progress. 22 Compliance by States parties with their obligations under the Covenant and the level of implementation of related rights and obligations is monitored by the Committee on Economic, Social and Cultural Rights. In its activities, the Committee relies on many information sources, including reports submitted by the participating States, and information from the UN specialized agencies - the International Labor Organization, the UN Educational, Scientific and Cultural Organization.
World Health Organization, Food and Agriculture Organization of the United Nations, as well as from the Office of the United Nations High Commissioner for Refugees, the United Nations Center for Human Settlements and other agencies. In addition, it is provided with information by non-governmental and community-based organizations operating in the territory of states that have ratified the Covenant, international human rights organizations and other non-governmental organizations, as well as other UN treaty bodies; in addition, the Committee uses publicly available sources.
2 Regional Human Rights Monitoring Bodies
2.1 Human rights monitoring within the Council of Europe
In 1949, the Council of Europe was founded as a result of the signing of the London Treaty. The Council of Europe relied on the principles of pluralistic democracy, human rights, and the rule of law. In order to join the Council of Europe, countries must demonstrate respect for and respect for human rights and the law. Further, the Council of Europe should also contribute to the development and promotion of the various cultures of the peoples of Europe. In this way, the Council of Europe contributes to the promotion of democracy and economic growth in the region.
Countries that join the Council of Europe retain their independence and political structure. However, these countries must comply with the obligations imposed by the agreement signed in the main building of the Council of Europe, in the Palais des Europe in Strasbourg (France). official languages Council of Europe are English and French. The Parliamentary Assembly also uses German, Italian, and Russian as working languages during its meetings. The Council is joined by 45 countries with a total population of 875 million. Also, more than 400 non-governmental organizations (NGOs) on this moment have consultative status with the Council of Europe. The following countries have been members of the Council of Europe (ten in total) since the beginning: Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. Greece and Turkey joined in 1949; Iceland and Germany in 1950. Austria became a member in 1956; Cyprus in 1961; Switzerland in 1963; Malta in 1965; Portugal in 1976; Spain in 1977; Liechtenstein in 1978; San Marino in 1988; Finland in 1989, Andorra in 1994. 23
After the collapse of communism in many European countries in 1989, new members from Central and Eastern Europe joined the Council of Europe. Hungary joined in 1990; Poland in 1991; Bulgaria in 1992; Estonia, Lithuania, Slovenia, Czech Republic, Slovakia and Romania joined in 1993. Latvia, Albania, Moldova, Ukraine and Macedonia became members of the Council of Europe in 1995, while Russia and Croatia in 1996. New members of the Council of Europe are Georgia (1999), Armenia and Azerbaijan (2001), Bosnia and Herzegovina (2002), Serbia and Montenegro (2003).
The Council of Europe has awarded observer status to several countries, including Canada, the Vatican, Japan, Mexico and the United States.
The Council of Europe consists of several departments:
The Committee of Ministers is the main body in the Council of Europe. It consists of the ministers of foreign affairs of all member countries.
The Parliamentary Assembly is an advisory body and consists of 313 members and 313 substitutes who are appointed by the national assemblies.
The Congress of Local and Regional Authorities of Europe is an advisory body with local and regional representatives. It consists of the Chamber of Local Authorities and the Chamber of Regions. The Secretary General of the Council of Europe manages and coordinates the organization's activities. The secretary is elected every 5 years. The Council of Europe has developed and is developing to promote and publicize human rights. The European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 is more familiar to the general public as a European convention on human rights. It was the first formal Council of Europe agreement aimed at protecting human rights, and it is also the first international human rights agreement with practical recommendations. The agreement was inspired by the 1948 Universal Declaration of Human Rights). It was signed in Rome on November 4, 1950. The agreement entered into force in September 1953. The Convention ensures the promotion and realization of human rights and fundamental human freedoms, which are the basis of justice and peace in the world, and the best way to achieve this is an effective political democracy on the one hand, and a common understanding and respect for the human rights on which they depend on the other hand. The Convention mainly protects civil and political rights, which are found in Articles 1-18. Articles 19-51 list the working mechanisms of the European court and commission, while Protocols 1, 4,6, 7, and 12 include additional rights. The right of individual complaint (Article 25) obliges states to accept the Court and recognize its decisions 24 .
Note that international legal instruments such as agreements (also called agreements, conventions and protocols) must be respected by countries that have signed these agreements.
When negotiations are completed, the text of the treaty is recognized as authentic and final. The document is signed by the representatives of the countries. There are many ways in which states demonstrate their agreement to sign a treaty, the most common and common being ratification or acceptance. The new agreement is ratified by the countries that made the agreement. A state that did not take part in the negotiations may later accept the agreement. The document enters into force when a predetermined number of states ratify or accept the agreement.
The European Court of Human Rights was established on September 3, 1953. The Court is based in Strasbourg and the Court has jurisdiction over the countries of the Council of Europe which have agreed to accept the optional jurisdiction of the Court. Once a state agrees, all decisions of the court concerning that state are binding. Judges are elected by the Parliamentary Assembly of the Council of Europe.
The initial structure of the Court and the mechanism for dealing with cases is based on a two-tier system of protection of rights, which is the European Commission of Human Rights (outdated or unnecessary today) and the Court.
The dichotomy between the two institutions initially worked well, as the Court dealt with a small number of cases. However, the number of pending cases has risen significantly from 16 cases between 1960 and 1975 to 119 in 1997 alone. On November 1, 1998, Protocol 11 entered into force, annulling the Commission on Human Rights as the new European Court of Human Rights and replacing the previous system. 25
The Court considers allegations of human rights violations from individuals as well as on behalf of countries. However, it rarely happens that states sue each other if the violations are not serious enough. In order for the Court to consider the application, it is necessary for the applicant to try all kinds of courts at the level of his state.
2.2 European Committee for the Prevention of Torture
Within the framework of the Council of Europe, in order to supplement the control mechanism established on the basis of the European Convention of 1950, with an extrajudicial mechanism of a preventive nature, on November 26, 1987, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment was adopted. The Committee against Torture was established on the basis of the Convention. At present, 40 member states of the Council of Europe are parties to the Convention and therefore accept the jurisdiction of the Committee.
The task of the Committee against Torture is to study, through visits, the treatment of persons deprived of their liberty in order to strengthen, if necessary, protection against torture and inhuman or degrading treatment or punishment (art. 1 ch. 1).
The number of members of the Committee is equal to the number of parties to the Convention. Members of the Committee are elected from among persons of high moral character, known for their competence in the field of human rights or having professional experience in this field (clause 1, article 4, chapter 2). Obviously, these are not only lawyers, but also persons with experience in prison management and in various fields of medicine related to the detention of persons deprived of their liberty. This contributes to a more effective dialogue between the Committee and the state and makes it easier for the concrete proposals of the Committee to come through.
Members of the Committee serve in their personal capacity, are independent and impartial and are able to carry out their functions effectively. Experts are subject to the same requirements of independence, impartiality and ability to perform their duties as members of the Committee. They are subject to the instructions of the Committee, which is responsible for their actions.
The Committee, its members and experts enjoy the privileges and immunities provided for in the Annex to the Convention (Article 16) to ensure the independent performance of their duties.
Members of the Committee are elected by an absolute majority of votes of the members of the Committee of Ministers of the Council of Europe for a term of four years. They can be re-elected only once (clause 3, article 5, chapter 2).
A state party to the 1987 Convention must permit visits to any place within its jurisdiction where persons are deprived of their liberty by public authority (Article 2 Chapter 1). The objects of visits can be both public and private institutions. The main criterion is the deprivation of liberty as a result of the actions of the state authorities. As a general rule, visits are made by at least two members of the Committee. The Committee, if it considers it necessary, may use the assistance of experts and interpreters. 26
In addition to periodic visits, the Committee may organize such visits as it deems necessary in the circumstances. For such visitsThe decision of the Committee on the need for a visit, as well as the grounds for making such a decision, is left to the discretion of the Committee. Thus, since the Committee is not associated with the investigation of individual complaints (which is provided for, for example, by the European Convention for the Protection of Human Rights and Fundamental Freedoms), it is free to evaluate information from individuals or groups and to decide whether to take action on the basis of such information.
The Committee shall notify the Government of the Party concerned of its intention to make a visit. After such notice, he may visit any place at any time.
The state must provide the Committee with access to its territory and the right to move without restrictions; complete information about the places of detention of persons deprived of their liberty; unrestricted access to any place where these persons are located; and other information held by the state and which is necessary for the performance of its tasks.
In seeking such information, the Committee shall comply with the applicable norms of national law and professional ethics (art. 8 ch. 3).
The Committee has the right to speak with persons deprived of their liberty in private, to freely contact any person who, in its opinion, can provide it with relevant information.
In exceptional circumstances, the competent authorities of the Party concerned may apply to the Committee with a submission objecting to a particular time or place proposed by the Committee for a visit. Such representations can only be made for reasons of national defense, public security, in the event of serious disturbances in places of detention of persons deprived of liberty, the medical condition of a person, or in connection with an urgent interrogation regarding the commission of a serious crime (paragraph 1 of Article 9 of Ch. 3).
After each visit, the Committee shall draw up a report on the facts established during the visit, taking into account any comments that may have been submitted to it by the State concerned. He sends a final report, including any recommendations that the Committee considers necessary. If the state does not cooperate or refuses to remedy the situation in the light of the recommendations of the Committee, the Committee may, after giving the state the opportunity to state its position, decide by a two-thirds majority of the members, make a public statement on the matter (art. 10 ch. 3).
Taking into account the specific features of the Committee's functions under this Convention, the Committee shall meet in private.
This provision is supplemented by the principle contained in article 11 of the Convention that the data collected by the Committee in connection with a visit, the content of its report and consultations with the State concerned are confidential information. Subject to the rules of confidentiality, the Committee submits annually a general report on its activities to the Committee of Ministers. The report, which is submitted to the Assembly and made public, contains information on the organization and internal work of the Committee and on its own activities, indicating the states visited. The 1987 Convention applies not only in times of peace, but also in times of war or other states of emergency. The Committee does not visit those places that are effectively controlled on a regular basis by representatives or delegations of the Protecting Powers or the International Committee of the Red Cross on the basis of the Geneva Convention of August 12, 1949 and its Additional Protocols of June 8, 1977 (Art. 17 Ch. 4). However, the Committee may visit certain places (particularly in cases of non-international armed conflict) that the ICRC has not visited "effectively" or "on a regular basis".
The 1987 Convention assumes its correlation with the European Convention for the Protection of Human Rights of 1950 (clause 2, article 17). The Commentary to the Convention provides that the fundamental importance of the right to individual petition, established by Article 25 of the European Convention on Human Rights, is not diminished. No refusal under paragraph 1 (b) of article 27 of the European Convention on Human Rights shall be allowed to a person whose case has been considered by the Committee if he subsequently applies to the European Court of Human Rights with a complaint that he was the victim of a violation of this Convention. The Committee against Torture does not deal with issues arising from cases pending before the European Court of Justice, as well as the interpretation of the provisions of the European Convention on Human Rights.
Thus, the 1987 Convention provides for an extrajudicial mechanism of a preventive nature that promotes cooperation between states in the field of human rights protection. All member states of the Council of Europe are parties to the Convention. 27
In the future, after the entry into force of Additional Protocol No. 1, states that are not members of the Council of Europe will also be able to become its participants. It is also very significant that there is no duplication of the work of the Committee against Torture and the European Court of Human Rights.
2.3 Monitoring the observance of human rights within the CIS
After the adoption of the UN Charter, the Covenants on Human Rights and other international agreements in the area under consideration, the process of establishing an international control mechanism for monitoring the fulfillment by states of their obligations begins. Its creation and functioning are one of the most significant achievements in the international regulation of human rights in the second half of the 20th century.
The role of control bodies in modern conditions is constantly increasing. Increasing attention is paid to their functions and powers in the activities of the UN and in various international agreements.
As you know, in international relations there is no supranational authority that could control the implementation of the principles and norms of international law, in necessary cases, enforce them or impose sanctions for violation of the obligations assumed. Therefore, the states have provided for the creation of an international control mechanism, which arose as a result of the expansion of international law-making, the complication of interstate relations, the emergence of global problems affecting the fate of all mankind.
In this process, a significant role is also played by the fact that a number of issues that previously belonged to the internal competence of states are now regulated by international law. The functions of international control are constantly expanding, while some of its forms and methods are borrowed from the internal practice of states.
The forms of such control largely depend on the nature of human rights violations and can be very diverse. They are determined by the Charter, decisions of the UN and its specialized agencies, international agreements of a universal and regional nature.
The purpose of the control mechanism is not to coerce or impose sanctions on states for failure to fulfill their obligations, but only to control the implementation and life of the provisions of international agreements. One of the main tasks of the control bodies is to assist and assist states in fulfilling their international obligations by adopting appropriate decisions and recommendations.
States, agreeing to the international legal regulation of fundamental human rights and freedoms, assume the corresponding obligations. The objects of such human rights obligations are implemented by the states themselves. However, their implementation is subject to monitoring by the international community. This is one of the fundamental specific features of the international legal regulation of human rights. Currently, a number of control bodies have been established in accordance with the UN Charter, others have been established on the basis of international human rights agreements, both universal and regional. 28 Matters relating to human rights are discussed mainly in the General Assembly, in its third committee, in the Economic and Social Council, in the Commission on Human Rights and the Commission on the Status of Women, and in the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The functions of these organs are extremely diverse. They make recommendations, make decisions, convene international conferences, prepare draft conventions, conduct research, provide advisory and technical assistance to individual countries.
In a number of cases, they also exercise control over the observance by states of their obligations under the UN Charter and international agreements.
Virtually all of the principal and a significant number of subsidiary bodies of the United Nations deal with human rights issues to some extent.
The practice of creating special bodies to study specific situations and conduct investigations of gross, massive and systematic violations of human rights, including the policy of apartheid and racial discrimination, as well as violations in the territories occupied as a result of aggression, has also become widespread in the UN.
In accordance with Resolution 2, the Commission on Human Rights established in 1967 an ad hoc working group of five experts tasked with investigating allegations of torture and ill-treatment of prisoners, detainees and persons under police supervision in South Africa. ECOSOC endorsed the Commission's decision, condemned the South African government for refusing to cooperate with the working group, and instructed it to also investigate allegations of violations of trade union rights in South Africa.
At its 24th session in 1968, the Commission on Human Rights decided to expand the working group's mandate. She was also assigned to investigate the mistreatment of prisoners in Namibia, Southern Rhodesia and the African territories under Portuguese rule; investigate the consequences of the illegal arrest and trial by the South African authorities of Namibian citizens in territory for which the UN was directly responsible; conduct a thorough investigation of one of the conclusions of the working group on the question of whether the policy pursued by South Africa contains elements of the crime of genocide.
The Ad Hoc Working Group of Experts organized visiting missions, heard witnesses, obtained necessary written information, prepared studies and submitted reports to the Commission on Human Rights with its findings and recommendations. Based on the reports of the group, various UN bodies, including the General Assembly, took decisions concerning specific aspects of the manifestation of the policy of apartheid and racism, and made recommendations on measures to combat them.
Monitoring the fulfillment by states of their obligations to put an end to apartheid and genocide, which are international crimes, is not limited to the framework of verification and can be combined with coercive measures taken by decision of the Security Council.
Special bodies were created by the UN to investigate violations of human rights by totalitarian regimes. The legitimacy of the creation of these bodies was determined by the fact that the policy pursued by such regimes is a denial of the goals and principles of the UN Charter and is accompanied by massive and systematic violations of elementary human rights and freedoms. The 31st session of the Commission on Human Rights, held in February-March 1975, set up an ad hoc working group of five members to conduct "an inquiry into the existing situation of human rights in Chile". The UN Commission on Human Rights in 1979 appointed a special rapporteur for Chile to study human rights violations in that country. Having visited Chile, in 1986 he presented a report in which he stated such facts of human rights violations in that country as murders and disappearances of persons, abductions, torture and torture of prisoners.
The UN Commission on Human Rights approved the work of the Special Rapporteur and condemned the government of Chile for massive and gross violations of human rights. Special rapporteurs or representatives of the UN Commission on Human Rights have been appointed for Iraq, El Salvador, Haiti and a number of other countries. 29
One of the common control forms of work of the UN Commission on Human Rights is the creation of so-called thematic mechanisms. The first such mechanism was the Working Group on Enforced or Involuntary Disappearances, established by the Commission in 1980. The Commission then appointed a Special Rapporteur on summary or arbitrary executions in 1982 and, in 1985, a Special Rapporteur on torture.
This Commission also appoints special rapporteurs for certain problems and for the protection of a special category of victims of human rights violations. Thus, in 1986, the institution of a special rapporteur on the implementation of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion and Belief was established. In 1990, a Special Rapporteur on the sale of children, child prostitution and child pornography was appointed, and in 1991, a Working Group on Arbitrary Detention was established, whose mandate includes detentions incompatible with fundamental freedoms such as freedom of expression, freedom of association and assembly, freedom of conscience. By the end of 1992, 11 thematic procedures had been established by the UN Commission on Human Rights, and their number continues to grow. Representatives of these bodies travel to countries where human rights are violated, establish a dialogue with the relevant states, and annually submit reports on their activities to the Commission on Human Rights.
The experience of many years of discussion of human rights issues in the UN has clearly shown that the well-thought-out organization and activities of control bodies are of paramount importance for the fruitful functioning of the entire system of relations between states in the area under consideration. However, at present, control activity is still far from perfect.
The system of control bodies in the field of human rights created by the UN is extremely cumbersome, there is duplication and parallelism in its work, the consideration of numerous agenda items is postponed from year to year to subsequent sessions. These bodies operate largely on a session-by-session basis and are incapable of taking emergency action in major crises.
The ongoing massive violations of fundamental human rights and freedoms are largely determined by the lack of political will of the UN member states to create an appropriate mechanism with the necessary powers, which would not only coordinate the program of work of numerous control bodies, but also act quickly, effectively and decisively in emergency circumstances. It is no coincidence that many scientists, diplomats and statesmen, analyzing the current situation, speak of a “crisis”, “dead end”, the need to reorganize the entire system of activities of UN bodies in the field of human rights on the basis of a “new approach”. At the same time, it should be borne in mind that not only the international community as a whole, but also individual states, in exceptional cases, can resort to coercive measures to stop criminal violations of human rights. They, on their own initiative, have the right to apply for this economic, diplomatic and other measures not related to the use of armed force. As interstate practice shows, such measures are effective under certain circumstances.
One of the most controversial and controversial in the doctrine of international law and in the practice of interstate relations is the question of the legitimacy of humanitarian intervention. Since the emergence of international law, many scholars have recognized the legitimacy of humanitarian intervention, i.e., the use of force, up to the unleashing of war by the state in the name of "humane" goals to protect national and other minorities, as well as the lives and property of its citizens located on the territory of another state .
Proceeding from the fact that for every person, regardless of his belonging to a particular state, certain natural rights are recognized, Hugo Grotius in his work “On the Law of War and Peace” (1625) justified the so-called just wars in order to protect not only their own, but also other people's subjects, if "clear iniquity" is being perpetrated on them.
The doctrine of humanitarian intervention was widely used at that time in the practice of international relations. It served as one of the many "justifications" for the enslavement of "uncivilized" peoples. After the Second World War and the formation of the United Nations, the right to use force in international relations is subject to serious restrictions. Nevertheless, even today the issue of the legitimacy of humanitarian intervention is widely debated, which is often used by individual states as a pretext for the use of armed force. The question of the legitimacy of humanitarian intervention and the limits of its application is being discussed at various international forums. This problem has been discussed at several conferences. 30
One of the goals of the Organization, as emphasized in paragraph 3 of Art. 1 of the UN Charter is to promote and develop respect for human rights. Moreover, the UN Charter, not limited to a reference to the promotion and development of respect for fundamental human rights and freedoms, obliges states to comply with them.
In order to promote universal respect for and observance of human rights, states, as emphasized in the UN Charter, undertake to take both joint and “independent actions in cooperation with the Organization” (Article 56). The expression "independent action", as is quite obvious, means that states not only can, but are obliged to take measures to protect human rights and freedoms, cooperating and consulting with the UN. Therefore, if the UN and the Security Council are inactive for one reason or another, then a separate state can use force to fear the lives of its citizens.
The use of armed force should be short in time and limited to a small contingent of troops. Large-scale military action aimed at seizing territory or overthrowing a government is absolutely unacceptable. As soon as the goal of humanitarian intervention is achieved, the armed forces must be immediately withdrawn from the territory of a foreign state. The response of the international community and individual states to criminal violations of fundamental human rights and freedoms must be swift and effective. Along with the activities of the UN, the functioning of convention bodies established on the basis of a number of international human rights agreements adopted after the creation of the UN is becoming increasingly important for the protection of the rights and freedoms of the individual at the international level. The current system of convention human rights bodies, one of the main functions of which is the consideration of State reports, is relatively recent. Prior to their creation, according to a decision taken by ECOSOC in 1965 on the recommendation of the UN Commission on Human Rights, UN member states submitted annual reports to the UN Secretary General on the implementation of certain rights. The Human Rights Committee, established by the Covenant on Civil and Political Rights, has the additional competence set forth in the first Optional Protocol to the Covenant.
This refers to the function of considering individual applications in connection with the violation of the rights proclaimed in the Covenant. The condition for the exercise of such a function is the participation of the state not only in the Covenant, but also in the protocol, and the recognition by the state of the specified competence of the Committee. Any person under the jurisdiction of such a State who claims that any of the rights listed in the Covenant has been violated and who has exhausted all available domestic remedies may submit a written communication to the Committee for its consideration (an appeal is also possible if if the use of internal remedies is unreasonably delayed).
The Committee brings the communication to the attention of the State concerned, which, within six months, submits written explanations to the Committee and informs about the measures taken. After considering all the submitted materials, the Committee sends its views to the relevant state and interested person.
At the regional level, a similar procedure is planned within the framework of the Commonwealth of Independent States. Article 33 of the CIS Charter provided for the establishment of the Commission on Human Rights as an advisory body designed to monitor the fulfillment of the obligations of member states in the field of human rights. According to the Regulations on this Commission of September 24, 1993 and in the context of the norms of the CIS Convention on Human Rights and Fundamental Freedoms of May 26, 1995, it is competent to consider both written requests from states on issues of human rights violations, and individual and collective appeals of persons who have exhausted all available domestic remedies. Based on the information provided, the Commission prepares an opinion. An effective procedure for considering applications from persons operates in the bodies of the Council of Europe.
One can note the general trend of supplementing national legal mechanisms with international ones. The approach of the Conference on Security and Cooperation in Europe, embodied by the participating states in the Charter of Paris for a New Europe of November 21, 1990, is characteristic. Along with the UN and bodies established on the basis of various conventions, many specialized institutions deal with issues related to human rights UN system. In some of them, a system of extensive international control has been created and is functioning, which has its own specific features. Among these specialized institutions, the International Labor Organization (ILO) should be especially noted, the experience of which can also be used in the activities of other international organizations. 31
This organization was created in 1919 within the framework of the League of Nations, and in 1946 became the first specialized agency of the UN. The main goal of the ILO is the international legal regulation of labor in order to improve its conditions. Feature characteristic of this organization lies in the fact that its work is attended not only by representatives of the member states, but also on an equal footing with them by representatives of workers and representatives of employers of these countries. The supreme body of the ILO is the annual General Conference, which is attended by four representatives from each member of the Organization, of which two are government delegates, and the other two represent workers and entrepreneurs, respectively. In this case, each of the delegates votes independently. Such representation ensures that all these different interest groups have an impact on the adoption of conventions and recommendations. Clear violations of human rights occurring in crises around the world often prompt States to demand a stronger response from the United Nations. In such cases, the Commission on Human Rights appoints a special rapporteur or a working group of inquiry.
Rapporteurs work in areas such as extrajudicial, summary or arbitrary executions; torture; the independence and impartiality of the judiciary; jurors and assessors and the independence of judges; religious intolerance; the use of mercenaries; freedom of opinion and free expression of one's opinions; racism, racial discrimination and xenophobia; trafficking in children, child prostitution and child pornography; elimination of violence against women; and the impact of toxic and hazardous products on the enjoyment of human rights. In addition, there are special rapporteurs assigned to individual countries, including Afghanistan, Burundi, Congo, Cuba, Equatorial Guinea, Iran, Iraq, Myanmar, Nigeria, Occupied Palestine, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia, Rwanda and Sudan.
Special Rapporteurs may use any resources, including individual submissions and reports from non-governmental organizations, in preparing their reports. Most of their research is conducted on the ground and consists of interviews with authorities and victims and the collection of local evidence whenever possible. Special Rapporteurs may also use the urgent action procedure to approach governments directly high level. Between 1992 and 1996, the Special Rapporteur on extrajudicial and arbitrary executions, for example, made 818 urgent appeals on behalf of more than 6,500 people in 91 countries and received replies to about half of his appeals. The reports of the special rapporteurs are published by the Commission on Human Rights and thus help to bring to light both the facts of human rights violations and the responsibility of governments for them.
2.4 Inter-American Commission and Inter-American Court of Human Rights
The system of human rights protection operating within the framework of the Organization of American States has a number of features in comparison with the regional system of the Council of Europe.One of the differences is that the functioning of the inter-American system for the protection of human rights is based on three documents at once: the Charter of the Organization of American States, the American Declaration of the Rights and Duties of Man and the Inter-American Convention on Human Rights.Noting the importance of the American Declaration of the Rights and Duties of Man, it should first of all be emphasized that, in terms of time of adoption, it was six months ahead of even the 1948 Universal Declaration of Human Rights. Along with a rather extensive list of rights and freedoms, the American Declaration also proclaimed ten duties of a person, among which are such as duty towards society as a whole; in relation to children and parents; obligation to receive education; obey the law; serve society and the nation, pay taxes; refrain from political activity in a foreign country; obligation to work, etc. There is nothing of the kind in the text of European documents.For almost 20 years (from 1959, when it was decided to create an Inter-American Commission on Human Rights within the framework of the OAS, until 1978, when the Inter-American Convention on Human Rights came into force), this Declaration was the very document that lay in basis of the work of the Inter-American Commission. With the entry into force of the Inter-American Convention, the Commission, in its law enforcement activities in relation to the states parties to the Convention, is guided by the provisions of the latter, while in relation to the OAS member states that have not ratified the convention, the Commission continues to apply the provisions of the American Declaration.
Thus, a unique situation has been created when two subsystems operate simultaneously within the framework of one regional system for the protection of human rights; for one, the basic document is the American Declaration (a non-legally binding document), for the other - the Inter-American Convention on Human Rights - an agreement binding on all participating States. The Inter-American Convention on Human Rights, adopted on November 22, 1969 and entered into force on July 18, 1978, is a multilateral international treaty of the “closed type”: only OAS member states have the right to sign, ratify or accede to it. 32
The entry into force of the Convention in 1978 completed the 30-year process of formation within the framework of the Organization of American States of a regional system for the protection of human rights and marked the transition from a predominantly rule-making phase in the activities of this organization to a phase of direct practical implementation of the norms and provisions contained both in the convention itself, and in the Charter of the OAS and the American Declaration of the Rights and Duties of Man. Thus, this process took the American countries much more time than the similar process within the Council of Europe.
The list of rights and freedoms contained in the Inter-American Convention does not go beyond traditional civil and political rights. He, as in the European Convention, is already on the list that is enshrined in the International Covenant on Civil and Political Rights. However, at the same time it should be noted that this list of rights in the Inter-American Convention is much broader than in the European Convention. In particular, it contains such rights as the right to a name, the rights of the child, the right to citizenship or nationality, the right to equality before the law, the right to asylum.
The control mechanism (the Commission and the Court) established under the Convention is based on the provision according to which any person or group of persons, as well as a non-governmental organization legally recognized in one or more Member States of the OAS, are entitled to represent themselves before the Inter-American Commission petitions alleging violations of the Convention by the State Party. While this provision is legally binding on any State Party to the Convention, the provision giving the Commission the right to receive and consider communications submitted by one State Party against another in connection with the latter's breach of its obligations under the Convention is optional and therefore imposes legal obligations. nature and applies only to those States which have made special declarations recognizing the competence of the Commission in this matter.
As of January 1997, a total of 13,000 petitions had been submitted to the commission, of which 13 were subsequently submitted to and considered by the Court. It is important to note that only two cases considered by the Court concerned violations of procedural rights, while the rest were related to alleged cases of enforced disappearances, extrajudicial or arbitrary executions (one of the realities of the American countries).
All petitions must be submitted to the Commission, which will initially examine them for admissibility. The eligibility criteria for a petition under the Inter-American Convention are broadly in line with those under the European Convention. If the complaint is declared admissible, the Commission investigates it. Based on the results of consideration of the complaint, the Commission draws up a report, which will contain a conclusion as to whether a violation of the Convention has been committed. This report may then be referred by the Commission to the Inter-American Court of Human Rights for consideration.
In general, the functions of the Commission are to promote and protect human rights. To perform these functions, the Commission is endowed with appropriate powers, including: submitting relevant recommendations to the governments of the OAS member states regarding the improvement of national human rights legislation, as well as promoting the implementation and observance of human rights proclaimed in the Inter-American Convention; preparing reports and studies as the Commission deems necessary for the performance of its functions; consideration of complaints about human rights violations by a state party to the Convention, etc. 33
The Inter-American Court of Human Rights is an autonomous judicial body charged with the application and interpretation of the Inter-American Convention. Only the States Parties to the Convention and the Inter-American Commission have the right to refer cases to the Court. Decisions of the Court on the cases considered by it are binding on the parties participating in the consideration and are not subject to appeal. At the request of one of the parties to the case, the Court may give an interpretation of its decision. One of the most important functions of the Court was the adoption of interim measures "in extremely important and urgent cases, as well as, if necessary, to prevent irreparable damage to persons" Lukyantsev, p. 243. Such measures may be taken by the Court both in cases already before it and in those still before the Inter-American Commission. Considering special conditions modern Latin America, these measures have played a positive role in protecting witnesses in cases of human rights violations from violence.
In addition, the Inter-American Court has advisory jurisdiction over the interpretation of the provisions of both the Convention itself and other treaties relating to the protection of human rights in the countries of the Americas. Thus, the range of issues on which the Court can give advisory opinions is much wider than the similar range under the European Convention. The Inter-American Court may, at the request of any member state of the OAS, give an opinion on the conformity of any law of such a country with the provisions of the Convention or other treaties in the field of human rights. The low number of judgments and advisory opinions issued by the Court allowed V. A. Kartashkin to conclude that the activities of the control bodies within the framework of the inter-American system “turned out to be practically ineffective.” One of the reasons for the low effectiveness of the inter-American system can be considered that when it was created, the authors of the Convention tried to mechanically transfer many elements of the European Convention onto American soil.
2.5 The African Commission and the African Court of Human Rights The African Charter on Human and Peoples' Rights, developed and adopted within the framework of the Organization of African Unity, is the basis of the regional system for the protection of human rights on the African continent, the purpose of which is to promote the development of respect for human rights and their protection on the African continent . The charter refers to treaties of a "closed" type, since only OAU member countries can be its participants. The text of the Charter was adopted and opened for signature in 1981, and entered into force in 1986. To date, 51 member states of the Organization of African Unity are parties to the Charter. Ethiopia and Eritrea signed but did not ratify the Charter, and Morocco is not a member of the OAU, which makes it impossible for it to participate in the Charter. Thus, the African Charter is the most universal regional treaty, i.e. within its region, this document enjoys almost unconditional recognition.
The peculiarity of the African Charter is that it reflects the political reality of the continent. As well as the historical traditions of African peoples and the value of African civilizations. It differs significantly from similar agreements of a regional nature adopted earlier within the framework of the Council of Europe and the Organization of American States. Among the most striking distinguishing features of the Charter, which at the same time represent conceptual innovations in the field of international human rights law, are the recognition, along with human rights, of the rights of peoples; recognition of the indivisibility of human rights, by which the Charter means political, civil, economic, social and cultural rights; recognition of the right to development as a human right; the proclamation of a number of fundamental obligations imposed on the individual in his relations with the family, community, society, state, as well as other legally recognized entities and the international community; a pronounced collectivist approach to human rights.
The individual must, according to the concept of the Charter, give priority to the interests of the community. As a response, the community assumes obligations to protect the rights of its members. 34
Thus, two conclusions can be drawn regarding the part of the African Charter on Human and Peoples' Rights that is devoted to rights: firstly, the Charter is the only international multilateral treaty that has established the so-called "third generation" of human rights. Secondly, a number of rights enshrined in the Charter are formulated very broadly, but at the same time much less meaningful. The Charter establishes a weaker mechanism (compared to the European Convention) for the protection of the human rights proclaimed in it: the only control body under the Charter is the African Commission on Human and Peoples' Rights; the establishment of a Human Rights Court is not provided for by the Charter. The Commission on Human and Peoples' Rights is composed of 11 members serving in their personal capacity, the members of the Commission are elected for a term of 6 years. In accordance with the Charter, the Commission performs the following functions: promotes the development of human rights; ensures the protection of human and peoples' rights; interprets all the provisions of the Charter at the request of a State party to the treaty, an organ of the OAU or an African organization recognized by the OAU; perform any other tasks that may be assigned to it by the Assembly of Heads of State and Government. All communications are treated confidentially until the Assembly of Heads of State and Government decides otherwise. Another specific function of the African Commission is to conduct visits to the territory of the States Parties to the Charter by members of the Commission. Each member of the Commission is responsible for certain countries.
The purpose of such visits is to formulate recommendations aimed at improving the guarantees of the rights of the participating states enshrined in the Charter.
Thus, the African regional system for the protection of human rights has a number of significant differences from European system both in terms of the rights and freedoms enshrined in the framework of the documents adopted in it, and in terms of the functioning of the control mechanism. In the case of the protection of civil and political rights, it seems that it is better to use the mechanism of the universal system of protection under the International Covenant.
It should be noted, first of all, the political nature of the control mechanism under the African Charter, which distinguishes the African system from the European one.
CONCLUSION
During the study, problems were identified:
1. Duplication of functions of international control bodies.
2. Non-submission or untimely submission of reports by Member States to international bodies, and, consequently, a lack of objective information from these bodies.
3. Lack of real mechanisms to control the execution of decisions of international control bodies, with the exception of the control mechanism operating within the Council of Europe.
4. The procedure for filing individual complaints is not provided for in all international human rights monitoring bodies.
The following measures could contribute to solving these problems:
- A clear delineation of the functions of international control bodies.
- Imposing harsh political sanctions for violations of reporting obligations by participating States.
- Creation of control mechanisms for the implementation of the instructions of international human rights monitoring bodies, or empowering already existing bodies with such functions.
- Introduction of an individual complaint procedure in all international human rights monitoring bodies.
The European human rights system evolves along with the development of society. In line with the European legal space a key role in this process of convergence between the legal systems of the EU and the European Convention for the Protection of Human Rights and Fundamental Freedoms is assigned to the European courts. Therefore, the problem of interaction between European judicial institutions comes to the fore. It can be solved by creating cooperation and coordination mechanisms. This will eliminate duplication of decisions, reduce the risk of conflicts and increase the level of legal protection of individuals.
A new aspect to be taken into account when considering remedies in Russia is the impact on them by European judicial institutions. For Russia, the harmonization of national human rights norms with the norms of the Council of Europe, the timeliness of measures taken at the stage of enforcement proceedings, the restructuring of legal consciousness and the training of qualified specialists in the field of European law are extremely important.
LIST OF USED SOURCES
Normative legal acts
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987 // Collected Legislation of the Russian Federation. 1998. No. 36. Art. 4465
Universal Declaration of Human Rights of December 10, 1948 // International Law in Documents. M., 1982.
Convention No. 153 on the duration of working hours and periods of rest in road transport of June 27, 1979 // International protection of human rights and freedoms. M., 1990.
Convention No. 148 on the Protection of Workers from Occupational Risk Caused by Air Pollution, Noise and Vibration at Work Places of June 20, 1977 // International Protection of Human Rights and Freedoms. M., 1990.
Convention No. 115 on the Protection of Workers from Ionizing Radiation of June 22, 1960 // International Protection of Human Rights and Freedoms. M., 1990.
Convention No. 138 on the minimum age for admission to work of June 26, 1973 // International protection of human rights and freedoms.
Vienna Convention on the Law of Treaties of 1969 //current international law. Documents in 2 volumes. V.1. / Comp. Yu.M. Kolosov, E.S. Krivchikov. M., 2002.
African Charter on Human and Peoples' Rights 1981 // International Human Rights Acts: Collection of Documents / Comp. V.A. Kartashkin, E.A. Lukashev. 2nd ed., add. M., 2002.
Official materials
Data of the European Court of Human Rights for 2009 // Human Rights. Practice of the European Court of Human Rights. 2010. No. 2.
Arbitrage practice
On the application by courts of general jurisdiction of the generally recognized principles and norms of international law and international treaties of the Russian Federation: Resolution of the Plenum of the Supreme Court of the Russian Federation dated 10.10.2003 No. 5 // Bulletin of the Supreme Court of the Russian Federation. 2003. No. 12.
Kalashnikov v. Russian Federation: Judgment of the European Court of Human Rights of July 15, 2002 // Rossiyskaya Gazeta. 2002. 17 Oct., 19 Oct.
Vladimir Krivonosov v. Russia: Judgment of the European Court of Human Rights of 27 Nov. 2008 // Bulletin of the European Court of Human Rights. 2008. No. 12.
monographs, textbooks, tutorials, comments
Bessarabov V.G. European Court of Human Rights. M., 2004.
Beknazar-Yuzbashev T.B. Human rights and international law. M., 1996.
Berestnev Yu.Yu., Razumov S.A., Reidy E. European Convention for the Protection of Human Rights and Basic Code. Article 3. Prohibition of torture. M., 2002.
David R. Basic legal systems of the present. M., 1988. - 425 p.
Danilenko G.M. International protection of human rights. Introductory course: study guide. M., 2000.
Gavrilov V.V. UN and human rights: mechanisms for the creation and implementation of normative acts. Vladivostok, 1998.
Kartashkin V.A. Human rights in international state law. M., 1995.
Kartashkin V.A. International mechanisms for the protection of human rights. How to file a complaint with international bodies. M., 2003.
Krylov S.B. History of the creation of the United Nations. 2nd ed., add. M., 1960.
Moskalenko K.A. International protection of human rights. M., 2001.
International law. Textbook for high schools. Responsible editors - prof. G.V. Ignatenko and prof. O.I. Tiunov. - M: Publishing group NORMA - INFRA. M, 1999 - 584 p.
International law: Tutorial. 2nd ed., revised. and additional - M.: Jurist, 2001. - 416 p.
Peter Calvocoressi. World politics after 1945. Book 1. Moscow, 2000.
A systemic history of international relations in two volumes / Edited by A.D. Bogaturova. Volume two. Events of 1945-2003. M.: Cultural Revolution, 2006. - 720 p.
Saidov A.Kh. generally recognized human rights. M., 2002.
Theory of Government and Rights. Textbook for law schools and faculties. Ed. V.M. Korelsky and V.D. Perevalova - M.: Publishing group NORMA - INFRA. M, 1998 - 570 p.
Utyashev M.M. A course of lectures on the history of political and legal teachings. - Ufa, 1999.
Khropanyuk V.N. Theory of Government and Rights. Tutorial. M.: Ed. 1997. - 396 p.
Science articles
Byring B. Russia's international obligations in the field of human rights protection: politics and practice // Constitutional Law: East European Review. 2001. No. 2.
Reports of the Russian Federation on the situation with discrimination and an alternative report were submitted to the UN NPO // http://www.sova-center.ru . Retrieved 02.10.2012.
Kartashkin V.A. Reforming the convention bodies for human rights // International Lawyer. 2007. No. 2.
Kurdyukov D.G. The right to complain in the context of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950: author. thesis…candidate of legal sciences. Kazan, 2001.
Moryakov D.A. International legal regulation of the prohibition and prevention of torture and the legal system of the Russian Federation: author. dis...cand.jur. Sciences. Kazan, 2008.
1 Charter of the United Nations of June 26, 1945 // Current international law. Documents in 2 volumes. V.1. / Comp. Yu.M. Kolosov, E.S. Krivchikov. M., 2002.
2 Universal Declaration of Human Rights of December 10, 1948 // Public International Law: Sat. documents / Comp. K.A. Bekyashev, D.K. Bekyashev: In 2 vols. T.1.M., 2006.
3 Universal Declaration of Human Rights. // International protection of human rights and freedoms. Collection of documents. M., 1990.
4 Charter of the United Nations of July 26, 1945 // International Law in Documents. M., 1982.
5 Universal Declaration of Human Rights. // International protection of human rights and freedoms. Collection of documents. - M., 1990. C 132.
7 International law. / Rev. ed. Yu.M. Kolosov, V.I. Kuznetsov. - M., 1995. C 35.
8 Vienna Convention on the Law of Treaties of 1969// Current international law. Documents in 2 volumes. V.1. / Comp. Yu.M. Kolosov, E.S. Krivchikov. M., 2002. S.190-215.
9 International law. / Rev. ed. Yu.M. Kolosov, V.I. Kuznetsov. M., 1995. C 42.
10 Saidov A.Kh. generally recognized human rights. M., 2002. From 30.
11 Moskalenko K.A. International protection of human rights. M., 2001. From 60.
12 Berestnev Yu.Yu., Razumov S.A., Reidy E. European Convention for the Protection of Human Rights and Basic Code. Article 3. Prohibition of torture. M., 2002. C 132.
13 Human Rights Commission. Report 45 session. UN. P.141.
14 Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 // Collection of Legislation of the Russian Federation. 2001. No. 2. P 163.
15 Universal Declaration of Human Rights. // International protection of human rights and freedoms. Collection of documents. - M., 1990.
16 Kartashkin V.A. Human rights in international state law. M., 1995. P. 121.
17 Ishchenko O.A., Ishchenko E.G. Problems of implementation of the norms of international law in Russian legislation // Public and private international law. 2008. No. 3.
18 International law. Textbook for high schools. Responsible editors - prof. G.V. Ignatenko and prof. O.I. Tiunov. - M: Publishing group NORMA - INFRA. M, 1999. P. 584.
19 David R. Basic legal systems of the present. M., 1988, p. 425.
20 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987 // Collected Legislation of the Russian Federation. 1998. No. 36. C 4465.
21 Constitution of the Russian Federation of 1993 (as amended). M., 2014.
22 General Assembly: Official. reports. Thirty-second session. Doc.44/A/32/44. New York, 1997.
23 Kurdyukov D.G. The right to complain in the context of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950: author. thesis ... candidate of legal sciences. Kazan, 2001. C 73.
24 Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 // Collection of Legislation of the Russian Federation. 2001. N 2, C 163.
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26 Utyashev M.M. A course of lectures on the history of political and legal doctrines. - Ufa, 1999. From 36.x
27 Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 // Collection of Legislation of the Russian Federation. 2001. No. 2. Art. 163.
28 General Assembly: Official. reports. Forty-sixth session. Doc.40/A/46/40. New York, 1991.
29 General Assembly: Official. reports. Thirty-second session. Doc.44/A/32/44. New York, 1997.
30 International law. / Rev. ed. Yu.M. Kolosov, V.I. Kuznetsov. - M., 1995.
31 Khropanyuk V.N. Theory of Government and Rights. Tutorial. M.: Ed. 1997. From 396.
32 Peter Calvocoressi. World politics after 1945. Book 1. Moscow, 2000
33 American Convention on the Rights of Man and Peoples of 1969 // International Human Rights Acts: Collection of Documents / Comp. V.A. Kartashkin, E.A. Lukashev. 2nd ed., add. M., 2002.
34 African Charter on Human and Peoples' Rights 1981 // International Human Rights Acts: Collection of Documents / Comp. V.A. Kartashkin, E.A. Lukashev. 2nd ed., add. M., 2002
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In the modern world, when the problem of protecting human rights has gone far beyond the boundaries of each individual state, there is a need to create universal international legal standards, which are also fundamental human rights. These fundamental rights are reflected in a number of important international legal acts that have established universal standards for the rights and interests of the individual, that have determined the level below which the state cannot fall. This means that human rights and freedoms have ceased to be the object of only the internal competence of the state, but have become the business of the entire international community. Today, the scope of individual rights and freedoms is determined not only by the specific features of a particular society, but also by the development of human civilization as a whole, the level and degree of integration of the international community. The more integral the world becomes, the more significant is the influence exerted on the rights and freedoms by international factors.
Adoption of the International Bill of Human Rights, including the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1976), the International Covenant on Economic, Social and Cultural Rights (1976), the Optional Protocol to the International the Covenant on Civil and Political Rights (1976), introduced fundamental changes in the legal personality of a person, who becomes the subject of not only domestic, but also international law. Under international law, all persons residing in a State party to the Covenants or subject to the jurisdiction of that State shall be able to enjoy the rights provided for in the Covenants without distinction as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, class or other status. This obliges all States that have acceded to the Covenants to bring their national legislation into line with the requirements of the Covenants. After accession to the Covenants, a legal situation is created in which international legal acts take precedence over domestic legislation. Therefore, a citizen whose political or civil rights have been violated has the right to apply directly to the UN Human Rights Committee if he has exhausted all available domestic remedies (Article 2 of the Optional Protocol to the International Covenant on Civil and Political Rights).
The act of ratifying a particular treaty means for the state the need to bring its legislation into line with its obligations. In a number of countries (USA, Spain, France, Germany), international treaties that have received state legal recognition automatically become an integral part of domestic law. However, not all norms of international agreements, especially in the field of human rights, are self-executing. The only way to fulfill them is to issue an appropriate legislative act. International law is gradually becoming universal, and its norms and principles are obligatory for all states - members of the international community.
Based on the foregoing, in modern conditions, fundamental human rights should be understood as the rights contained in the constitution of the state and international legal documents on human rights, in particular in the International Bill of Human Rights, as well as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), European Social Charter (1961). If any fundamental human right is not included in the constitution of the state, then it must be recognized in this state, regardless of its constitutional consolidation. The priority of international law in relation to domestic law in the field of human rights is a generally recognized principle of the international community.
The state publishes a system of organs for the protection of human rights, which must be based on certain principles. The system of bodies protecting human rights and freedoms includes judicial and administrative bodies, parliamentary and presidential structures, and specific legal mechanisms and procedures for such protection are established. Each country has its own set of procedures and mechanisms for the protection of the rights and freedoms of the individual, its own system of bodies for such protection. The rule of law is never limited to the legal fixation of the rights of citizens. Proclaiming the rights and freedoms of the individual, the state must guarantee their implementation not only by legal, but also by economic, political, cultural means.
The most effective institution of judicial protection of human rights in a modern democratic state and society is constitutional justice. It is carried out by specialized constitutional courts or competent bodies empowered to exercise constitutional control and ensure through their activities the supremacy of the constitution and the priority of human rights and freedoms.
The function of protecting rights and freedoms is carried out by bodies of constitutional jurisdiction through the use of three main forms of activity: through abstract, concrete and individual control over the compliance with the constitution and the rights and freedoms of man and citizen enshrined in it, laws and other regulations, as well as judicial and administrative decisions.
Abstract control provides for the possibility of submitting a request to the Constitutional Court on the constitutionality adopted laws and other normative acts, regardless of their application in specific legal relations. The purpose of this type of control is the observance by the legislator of the constitution and its provisions regulating human rights and freedoms in the process of adopting normative legal acts. The right to such a request is usually vested in the highest executive authorities in the person of the president, prime minister, a group of parliament deputies, executive authorities of the subjects of the federation and autonomous state entities, which reflects the principle of separation of powers. In some countries, the question of constitutionality may be raised on the own initiative of the body of constitutional control.
This type of control operates in countries with a centralized system of constitutional control, when only a specialized constitutional court can abstractly, without regard to the application of this norm, interpret it in the context of constitutional provisions. As an abstract control over the constitutionality of laws, the constitutional court eliminates possible violations of human rights and freedoms by the legislator.
Specific control, sometimes referred to as incidental, provides that the question of the constitutionality of the law to be applied is raised, considered and decided only in connection with a specific trial. This type of control is most widely used in countries with a decentralized system of constitutional control, where all courts are empowered to decide on the constitutionality of the rule of law they apply. The centralized system proceeds from the fact that the courts of general jurisdiction do not exercise control over the compliance of normative legal acts with the constitution. Here, general courts can only raise the question of the constitutionality of normative acts before the constitutional court in the form of a request in connection with the consideration of a specific court case and only within these limits ensure the conformity of the law with the constitution (Italy, Austria, Germany, etc.).
Constitutional control is carried out in the form individual or a collective complaint, which provides for empowering an individual - a subject of human rights and freedoms, as well as various associations of citizens, legal entities, with the right to file complaints with the constitutional court about the violation of their rights and freedoms by laws, regulations, court decisions. A constitutional complaint acts as an important legal means of protecting an individual from the arbitrariness of the state.
The broad powers of constitutional justice in protecting human rights and freedoms are due to a number of principles that have been established in the post-war period in the system of national, regional and international law. These primarily include the recognition of human rights and freedoms as natural, inalienable values, their priority in the system of domestic and international law; consolidation at the level of the constitution and the International Covenants on Human Rights, the principle from which it follows that rights and freedoms oblige the authorities of the state (legislative, executive, judicial) as a directly applicable law; recognition of an individual as a subject of international legal relations.
The Institute of Control is the most important component mechanism of international legal protection of a person. It is one of the most significant achievements in the international regulation of human rights in the second half of the last century.
Under international control over the observance of human rights, some authors understand the actions of the subjects of international law or the bodies created by them, which are carried out on the basis of international treaties and consist in checking the compliance of the activities of the state with its obligations in order to ensure their observance and protection.
The above definition refers only verification to the essence of international control, but does not imply the adoption of measures for the fulfillment by states of their obligations. This circumstance allowed the author to formulate the definition international monitoring of human rights as an activity of international non-judicial legal and political bodies, consisting of experts in their personal capacity or as representatives of states, to monitor (stating facts and assess them), verifying the completeness and legality of human rights observance in the states parties to the agreement and taking treaty measures to prevent their violation .
In accordance with international agreements on human rights, the tasks of international control include: 1) verification of the degree of fulfillment by the states parties of agreements of their obligations to ensure and observe human rights. The result of such a check may be the establishment of violations of international obligations or inconsistency of the behavior of the state with the obligations assumed, which may become the basis for the emergence of international legal responsibility; 2) maintenance of international legal order and the regime of international legality.
The solution of these tasks is carried out by the so-called international control mechanisms, which by their nature and functions are treaty bodies (legal or political), and by geography of action (coverage of countries) - either global or regional. In addition, according to the subjects and objects of controlled legal relations, they can be special global or special regional.
Among the treaty legal bodies of a global universal nature, for example, is the UN Human Rights Committee, established in 1976 on the basis of and for the purpose of implementing the International Covenant on Civil and Political Rights and designed to deal with a wide range of human rights issues, including and promoting the implementation of international human rights standards (art. 28 of the Covenant).
From the reports of States, the Committee seeks to obtain the following information on the observance and protection of fundamental human rights in these States:
a) what judicial and other competent authorities have jurisdiction to ensure fundamental human rights;
b) what remedies are available to a person claiming the infringement of any of his rights, and what systems for the restoration of violated fundamental rights exist for victims;
c) whether the protection of human rights enshrined in various international acts, the constitution and other legislative acts is envisaged;
d) to what extent the provisions of international treaties on the protection of fundamental human rights have been implemented in the legal systems of states;
e) whether the provisions of international human rights treaties are applied in the courts and administrative bodies of states;
f) whether domestic bodies or mechanisms are in place to monitor compliance with the principle of respect for and observance of human rights.
The functions of treaty monitoring bodies of a global special nature are also performed by the Committee on Racial Discrimination (established by the Convention on the Elimination of All Forms of Racial Discrimination of March 7, 1966, art. 8-15); Committee on the Elimination of All Forms of Discrimination against Women of 18 December 1979 (art. 17); Committee on Economic, Social and Cultural Rights (ECOSOC in 1985); Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984; Committee on the Rights of the Child (established by the Convention on the Rights of the Child of November 20, 1989); The Working Group of Three was established under the Convention on the Suppression and Punishment of the Crimes of Apartheid of November 30, 1973, and the International Fact-Finding Commission established by Additional Protocol I of June 8, 1977 to the Geneva Conventions of August 12, 1949. relating to the protection of victims of international armed conflicts (art. 90).
Regional universal treaty bodies today are the European Commission on Human Rights, established in accordance with Art. 19 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Inter-American Commission on Human Rights (Article 33 of the American Convention); African Commission on Human and Peoples' Rights (Article 30 of the African Charter on Human and Peoples' Rights); Commission on Human Rights of the Commonwealth of Independent States, which was established by the Decision of the Council of Heads of State of the Commonwealth of Independent States on September 24, 1993 in Minsk.
The following UN bodies and agencies are the global universal political control mechanisms in the field of human rights: General Assembly, Economic and Social Council (ECOSOC), Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission on the Status of Women, Security Council, Council on Guardianship, International Court of Justice, Secretariat, International Labor Organization (ILO), United Nations Educational, Scientific and Cultural Organization (UNESCO), World Organization healthcare, etc.
The regional universal political mechanism for monitoring the observance of fundamental human rights is considered, for example, the mechanism of the human dimension of the Organization for Security and Cooperation in Europe. This is such a mechanism that covers the cooperation of states in the field of respect and protection of all human rights and fundamental freedoms and related humanitarian issues.
Global and regional monitoring bodies and mechanisms are empowered to identify and consider violations of international legal treaties by participating countries and make specific recommendations on this basis. And although there are no mechanisms for implementing the decisions of control bodies, their decisions are of a binding nature, which is based on the moral authority of international bodies. The activities of all international control mechanisms are optional - their operation usually requires the consent of the state party to the convention (covenant).
In their activities to monitor the observance by states of international treaties on human rights, control bodies use quite a variety of procedures, methods and forms. Regarding the definition of the term "method" in the literature on international legal topics, there is no consensus. S. V. Chernichenko and some other authors consider consideration of reports of states, complaints, claims, petitions and messages to procedural ones. V. I. Zubrilin calls these same actions “methods”, and B. Petranov calls both “methods” and “forms”. Without going into polemics regarding the definition of these terms, we will accept "procedure" as the broadest concept in relation to the named ones and, therefore, covering them.
Among the international procedures used by control bodies, lawyers include: drawing up reports, conducting research, making decisions, conducting inspections by international organizations and states, convening and holding international conferences, investigating data on human rights violations, considering individual complaints (petitions), considering submitted states parties to agreements (treaties), reports on the measures they have taken to implement human rights, consideration of complaints and submissions from states parties to agreements and members of international organizations (ILO and others) against any other state party that, in their opinion, does not comply with its obligations under ratified conventions (treaties, pacts) on the observance of human rights, making public, coercion against a state that violates human rights, conducting field surveys, issuing general recommendations and general comments, creating and operating special x Working Groups of Experts to Investigate Human Rights Violations, specific measures to prevent and suppress aggression and mass and gross violations of human rights and freedoms.
The forms and procedures of control listed above are determined mainly by the nature of the infringement or alienation by states of fundamental human rights and freedoms. Many international lawyers believe that international control mechanisms do not have sufficient powers. One of the reasons for the insufficient efficiency of the work of, for example, the convention bodies is that international agreements to ensure respect for fundamental human rights, empowered them to make only “general comments” or “recommendations” to States.
In order to increase the effectiveness of the control activities of these bodies, some scientists believe, it is necessary to give them the right not only to make binding decisions, but also to determine the damage caused to a person, and also to use force to implement their decisions.
The current system of UN and regional control bodies is cumbersome, duplicative in work, numerous issues under consideration, sessional nature of activities, inability to quickly respond to cases of numerous and gross violations of human rights. Nevertheless, the work of monitoring bodies to ensure fundamental human rights is of enormous importance. It lies in the fact that they: a) make it possible to exert political pressure on states that violate international obligations in the field of ensuring fundamental human rights; b) are able to detect trends in the infringement of human rights by states, make them the subject of general discussion and condemnation, which is an important external factor holding back the undemocratic development of individual states, including Russia; c) promote the exchange of experience between states in solving problems arising in the process of ensuring fundamental human rights.
4. Mechanism for the protection of human rights in international courts
This mechanism in the international mechanism for the protection of human rights is relatively new and not fully developed, especially at the global level. Therefore, there are significant reserves for its further development and, consequently, for greater efficiency in the enforcement and protection of human rights.
modern history international legal relations in the field of protection of fundamental human rights, there are two types of courts: the international criminal court and the international non-criminal court.
Question about international criminal court has been discussed in various international forums for more than 50 years. The need to create such a court is explained by the fact that in international law such a concept as “international crime” has developed and exists. For such a crime, the perpetrators should be held criminally liable. However, to this day, many acts of this kind remain unpunished. A well-known situation has developed because international crimes are often committed by state officials, in connection with which the courts of states do not hold them accountable. Therefore, it became necessary to create an alternative court - the International Criminal Tribunal.
The first post-war international law that provided for the creation of an international criminal court was the Convention on the Prevention and Punishment of the Crime of Genocide (Art. VI), adopted on December 9, 1948. The Convention on the Suppression and Punishment of the Crime of Apartheid provided for the creation of the same international body (Art. V) of November 30, 1973
However, the preparation of the draft statute of the International Criminal Court in the conditions of " cold war has been delayed for a long time. And only on December 4, 1989, the UN General Assembly again proposed to the International Law Commission to study the issue of creating such a body with jurisdiction over persons accused of committing crimes that would fall under the Code of Crimes against the Peace and Security of Mankind. The draft of such a Code was adopted by the International Law Commission in 1991. On July 17, 1992, the same Commission completed work on the statute of the International Criminal Court.
In 1995, the UN General Assembly decided to establish a preparatory committee to develop the final text of the Statute of the International Criminal Court, acceptable to most states. In April 1998, the preparatory committee completed this work.
On July 17, 1998, in Rome, the Statute of the International Criminal Court was adopted by the Diplomatic Conference of Plenipotentiary Representatives of States under the auspices of the UN. As a result of a broad and detailed discussion of the draft, 120 states voted for its adoption, 21 states abstained, and 7 voted against.
The decision to establish the International Criminal Court and the adoption of its Statute is the beginning of a qualitatively new stage in the development of international relations and international law. For the first time since the Nuremberg Trials, the international community decided by an absolute majority to establish a permanent supreme court that will pronounce judgments on those who unleashed aggressive wars and committed war crimes against humanity, regardless of their official position.
The jurisdiction of the Court is very broad. Four types of crimes fall under it: genocide, war crimes, aggression and crimes against humanity (Part 1, Article 5 of the Statute). The Statute of the International Criminal Court contains provisions that cover almost all serious crimes that are of concern to the world community. Many of them are fixed in this document for the first time. Moreover, the list of these crimes can be revised no earlier than seven years after the entry into force of the Statute. This international treaty confirmed the principle of individual criminal liability of individuals for the commission of international crimes (Article 23). Such responsibility is subject not only to the direct perpetrators of crimes, but also to those who give the order to commit them.
The Statute of the International Criminal Court became international criminal law on July 1, 2002, 60 days after it was ratified by 60 states (Article 14).
In addition to the International Criminal Court, within the framework of the UN, there are regional international criminal courts . One of these is the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (the “International Tribunal”), established by a United Nations Security Council Resolution of 24 February 1993. The activities of the Tribunal are governed by the Charter .
In accordance with Art. 1 of the Statute of the International Tribunal, its jurisdiction includes the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. Thus, the jurisdiction of the International Tribunal has its own borders- territorial (land territory, airspace and territorial waters of the former SFRY) and temporary (since January 1, 1991, art. 8). Violations of humanitarian law committed outside these boundaries are not subject to the jurisdiction of the International Tribunal.
Individuals are prosecuted by the International Tribunal for committing four groups of violations and crimes. The Charter refers to the first group serious violations of the Geneva Conventions of August 12, 1949 (Article 2). Among them: premeditated murder; torture and inhuman experiments; intentional infliction of severe suffering or serious injury or damage to health; illegal, arbitrary and large-scale destruction and appropriation of property, not caused by military necessity; compelling a prisoner of war or a civilian to an impartial and normal trial; illegal deportation, transfer or arrest of a civilian; taking civilians as hostages.
The second group includes violations of the laws and customs of war (art. 3): the use of poisonous substances or other types of weapons designed to cause unnecessary suffering; senseless destruction of cities, towns or villages or devastation not justified by military necessity; attacking undefended cities, villages, dwellings or buildings, or shelling them using any means; seizure, destruction or deliberate damage to religious, charitable, educational, artistic and scientific works; looting of public or private property.
The third group of violations prosecuted by the International Tribunal is related to genocide in the sense that Art. 2 of the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948. The following acts are punishable (Article 4): genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempted genocide; complicity in genocide.
And, finally, the fourth group is crimes against humanity, that is, those that are committed during an armed conflict, whether of an international or internal nature, and directed against any civilian population (Art. 5): murders; extermination; enslavement; deportation; imprisonment; torture; rape; political, racial or religious persecution.
In accordance with Art. 9 of the Charter, the International Tribunal and national courts have concurrent jurisdiction to prosecute individuals for serious violations of international humanitarian law. The jurisdiction of the International Tribunal takes precedence over the jurisdiction of national courts.
The activity of the International Tribunal has as its goal not only the prosecution of persons for serious violations of international humanitarian law, but also the legal protection of victims and witnesses (Article 22 of the Charter). It may include: conducting closed proceedings, keeping the identity of the victim secret, returning any property and proceeds acquired as a result of criminal behavior to their rightful owners.
The penalty imposed by the Trial Chamber of the Tribunal is limited to imprisonment. In determining terms of imprisonment, the Trial Chambers are guided by the general practice of imposing prison sentences in the courts of the former Yugoslavia.
On April 26, 1995, for the first time after the Nuremberg and Tokyo trials, an accused of crimes against humanity appeared before the International Tribunal. It was 39-year-old Bosnian Serb Dusok Tadic, who is accused of killing at least 32 people, raping and torturing prisoners of the Omarska concentration camp, where in 1992 the Bosnian Serbs drove Muslims and Croats.
The charter of the International Tribunal for the Former Yugoslavia and its practical activities could become a prototype of the future international criminal court within the framework of the CIS. However, it has already become clear that the Hague Tribunal has become more of a political than a legal body. His work is biased and one-sided. He immediately took up the persecution of the Serbs, leaving alone the criminals in the camp of Muslims and Croats, which shamelessly demonstrated a double standard in assessing international offenses.
International non-criminal courts. Their consideration of human rights violations is established only by regional agreements. Such agreements, for example, include the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 19) and the American Convention on Human Rights (Article 33). These conventions established human rights courts. What is it for? It is considered that the judiciary, which consists of members enjoying functional and personal independence, not bound by partisan and political obligations and respecting the legal process, guarantees the best consideration of the case and the impartiality of the decision. The operation of an international non-criminal court is best seen on the example of the European Court of Human Rights.
For many years, almost 48 years, first the USSR and then Russia did not recognize the jurisdiction of this Court. But on March 30, 1998, the President of the Russian Federation finally signed the Federal Law "On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols." Article 1 of this law reads: “The Russian Federation, in accordance with the Convention, recognizes ipso facto and without special agreement the jurisdiction of the European Court of Human Rights as mandatory for the interpretation and application of the Convention and its Protocols in cases of alleged violation by the Russian Federation of the provisions of these treaty acts, when the alleged the violation took place after their entry into force in relation to the Russian Federation.”
Thus, the last point was put in the accession of Russia de jure to one of the most important documents concluded within the framework of the Council of Europe, an organization that includes 40 European states. Citizens of Russia have received the right to appeal against sentences, rulings, decisions of courts and other state bodies of Russia to the named international judicial institution, provided that all possibilities for restoring violated rights within the country have been exhausted.
The Russians use this right quite actively - as of September 20, 2005, 24,000 individual complaints had been filed against the Russian Federation. This number of complaints filed since November 1998 puts it in fourth place after Italy, France and Poland. They mainly concern such violations of the rights of citizens as long periods of detention pending trial; lengthy litigation; torture and ill-treatment of persons under investigation; non-payment of pensions and salaries; non-execution of court decisions; violation of the principle of competition in the process.
Most of the cases have not reached the “advanced stage”, however, about 160 are “at the level of communication”, that is, the Russian side has been informed about them. Considered even less - only 45 appeals. 30 decisions entered into force.
Prior to the adoption on November 6, 1990 of the Ninth Protocol to the European Convention, private individuals had no right to file complaints with the European Court. Only the High Contracting Parties and the Commission on Human Rights could be parties to a case (art. 44). The ninth protocol recognized the right to appeal to the Court also for individuals, groups of individuals and non-governmental organizations.
In connection with the ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and in order to ensure effective protection of the interests of the Russian Federation when considering cases in the European Court of Human Rights, the Decree of the President of the Russian Federation of March 29, 1998 established the position of the Commissioner of the Russian Federation at the European Court of Human Rights.
The court decides "all questions of fact and law" that arise in the course of cases submitted to it, and makes rulings on questions of competence and admissibility of complaints. These decisions state either the presence or absence of violations of a particular right recognized by the Convention.
The system of legal, including judicial, protection provided for by the Convention is, by its nature, subsidiary. This means that the protection of human rights as the first instance is provided by national authorities and, above all, national courts. The jurisdiction of the Court extends to cases concerning the interpretation and application of the European Convention.
The European Court of Human Rights is composed of a number of judges equal to the number of members of the Council of Europe. There can be no more than one citizen of the same state among the judges.
In accordance with Art. 32 of the European Convention, all matters relating to the interpretation and application of the Convention and its Protocols fall within the jurisdiction of the Court. The following may submit questions to the Court: a) States Parties (Article 33); b) any person, non-governmental organization or group of persons (art. 34); c) Committee of Ministers of the Council of Europe (art. 47).
On May 11, 1994, the members of the Council of Europe adopted Protocol No. 11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which made it possible for individuals, non-governmental organizations and groups of persons to submit petitions directly to the Court. According to the Protocol, the European Commission on Human Rights was abolished and the Court became the only body ensuring compliance with the obligations under the Convention.
In accordance with Art. 35 of the Convention, the Court may only take up a case after all domestic remedies have been exhausted, in accordance with generally recognized rules of law, and only within six months from the date of the final domestic decision.
The Court does not accept any individual applications submitted in accordance with Art. 34 which: a) are anonymous or b) are essentially the same as cases that have already been examined by the Court or are already the subject of another procedure of international proceedings and do not contain new relevant information.
The Court decides on the inadmissibility of any applications submitted in accordance with Art. 34 which it considers inconsistent with the provisions of the Convention or its Protocols, manifestly unfounded or in an abuse of the right to petition.
The Court rejects any application it deems inadmissible under Art. 35. He may do so at any stage of the proceedings.
If the Court finds that a decision or measure taken by the national authorities is in whole or in part contrary to the obligations arising for that State from the Convention, and also if the domestic law of a party allows only partial reparation for the consequences of such decision or measure, the Court must award just satisfaction to the injured party (Article 41 of the Convention). The State concerned must comply with the decision of the Court, which is final and not subject to appeal. It is submitted to the Committee of Ministers of the Council of Europe, which monitors its implementation. In case of non-execution of the decision of the European Court of Human Rights, the state may be excluded from membership of the Council of Europe.
The main form of activity of the Court is the interpretation of the Convention. In particular, the Court interprets very broadly the concepts of “rights and obligations of a civil nature” or “reasonableness of prosecution in criminal cases”. More than once, the interpretation of rights by the Court was open, since it was necessary to control the observance of rights that are not included in the catalog recognized by the Convention, but which, in its opinion, are constituent elements of these rights. When it comes to restrictions or limits relating to the exercise of rights, the Court carefully examines whether these restrictions or limits are provided for by law, whether they are supported by legal justifications and whether they are proportionate to their significance, whether they are necessary in a democratic society.
In accordance with Art. 27 of the Convention for the consideration of cases, the Court establishes committees of three judges, chambers of seven judges and grand chambers of seventeen judges. Questions about the possibility of considering complaints are resolved by committees of three judges. It is believed that only they can decide on the admissibility of individual applications in the significantly increased flow of applications, which is increasing due to the increase in the number of members of the Council of Europe. The cases themselves are decided in the chambers. The Grand Chambers are used to discuss the most serious issues of interpretation of the Convention, as well as cases referred to it at the request of the parties to the dispute.
Indicative of the daily activities of the Court is the case of "Kalashnikov v. Russian Federation". On July 15, 2002, the European Court of Human Rights announced its judgment in this case. In accordance with it, it was recognized that the provisions of Art. 3, 5 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. These violations relate to the conditions of his detention in pre-trial detention center No. 1 in Magadan, as well as the timing of the investigation and consideration of the criminal case in court on charges of embezzlement of funds.
The European Court ruled that the authorities of the Russian Federation, in connection with violations of the Convention, must pay 80,000 euros to V. E. Kalashnikov, including 5,000 euros for moral damages and 3,000 euros for reimbursement of legal costs. It should be noted that Kalashnikov's claims amounted to more than $12 million, and the claims related to at least six more articles of the Convention, but they were rejected by the European Court.
Characteristic of the activity of the Court is the example cited in the press by V. A. Tumanov. In May 1991, three Italian citizens applied to the European Court of Justice with a complaint about the excessive length of proceedings in their civil cases: from 4.5 to 20 years. The court considered that in all these cases there had been a violation of paragraph 1 of Art. 6 of the European Convention, which states that cases must be considered by the courts within a “reasonable time”. In accordance with Art. 41 of the Convention, the Court ordered the state to compensate the applicants for material and non-pecuniary damage up to 10 million lire, as well as all costs of the cases. In addition, the Committee of Ministers of the Council of Europe issued a special decision to the Government of Italy, which was immediately implemented.
The attitude towards the European Court among practicing Russian lawyers and human rights activists is ambiguous. Some tend to almost pray for his every decision. Others, on the contrary, completely deny the professionalism of these decisions. The truth, as usual, lies somewhere in the middle. In general, the activities of the Court are considered positive. In almost all cases, the states concerned obeyed his decisions. However, there is also a significant drawback in the activities of the Court - the duration of the procedure provided for by the Convention: an average of two years.
The mechanism of judicial protection created by the American Convention on Human Rights of November 20, 1969 is clearly copied from the mechanism created by the European Convention and therefore operates in the same way as the European Court of Justice. However, the activities of the Inter-American Court of Human Rights proved to be ineffective. Throughout the history of its existence, the Court has issued about 10 advisory opinions and decisions. The reasons for the inefficiency of its work lie in the fact that the states represented in it do not have similar political systems, common legal traditions and similar levels of socio-economic development.
Apart from Europe and America, in no region of the world, judicial bodies for ensuring human rights, unfortunately, have yet been created.
History shows that the search for international legal mechanisms for the implementation and legal protection of human rights, their improvement in a specific historical situation is a continuous process.
Although international organizations and bodies have been dealing with human rights issues for decades, it is clear that success in this direction can be achieved only with effective international monitoring of their actual observance.
Until 1997, the UN Secretariat had a Center for Human Rights, which was engaged, in particular, in collecting information from various sources on the situation with human rights in the world. Since 1997, its functions have been transferred to the Office of the UN High Commissioner for Human Rights.
Under him and under the auspices of the UN Commission on Human Rights, there is a procedure for considering private complaints on the basis of Resolution No. 1503 of May 27, 1970 of the Economic and Social Council. This procedure has a number of features. It is universal, since it does not depend on the consent of states; a citizen of any state can use it.
At the same time, in order for a complaint to be considered, it must meet certain certain minimum requirements, failing which it will be declared inadmissible.
This procedure is not judicial, and the consideration of such complaints does not have essentially serious consequences for the States concerned. However, such consideration is important for determining situations where systematic and gross violations of human rights occur.
In 1993, the UN General Assembly established the post of High Commissioner for Human Rights. This issue has been debated in the UN for several decades, but it is still too early to say whether the activities of the commissioner, who is currently former Irish President M. Robinson, will lead to a real improvement in human rights in the world.
Control mechanisms for monitoring the state of human rights in certain areas also operate in the UN specialized agencies. This work is carried out most consistently in the ILO, which regularly monitors through its supervisory bodies the situation with observance of labor rights in various countries.
The Council of Europe has a developed system of control bodies for human rights, based on the activities of the European Commission on Human Rights and the European Court of Human Rights. In November 1998, Protocol No. 11 to the European Convention on Human Rights and Fundamental Freedoms entered into force, providing for the abolition of the Commission and the Court and the creation on their basis of a single European Court of Human Rights.
This Protocol establishes an unconditional right to petition by individuals. Now there will be no need to wait for a special statement by the member states of the Council of Europe on this issue, as has been the case so far.
Thanks to the great practice of considering complaints, the European Court of Human Rights has become a significant factor in the legal development and improvement of the human rights protection system in Europe, and the case law it created can be used by states that have recently become members of the Council of Europe, and, in particular, Russia, to improve their legislation and law enforcement.
As already noted, the principles and norms in the field of observance of human rights are formulated in documents of both a universal and regional nature. TO regional human rights organizations, include the Organization of American States, the Council of Europe, the Organization of African Unity, the Organization for Security and Cooperation in Europe, and the Organization of the Islamic Conference.
On the American continent, there are a number of documents of a conventional nature on human rights, among which the Inter-American Convention on Human Rights occupies a central place.
African countries, emphasizing their specifics of developing states, adopted, in particular, the African Charter on Human and Peoples' Rights.
CURRENT ISSUES OF INTERNATIONAL LAW
INTERNATIONAL MONITORING AND ENFORCEMENT OF HUMAN RIGHTS
A.O. Goltyaev
Department of International Law Peoples' Friendship University of Russia Miklukho-Maklaya, 6, Moscow, Russia, 117198
The article discusses the formation and development of international control mechanisms in ensuring human rights and fundamental freedoms. It highlights the conceptual and normative foundations of international control over the provision of human rights by states, enshrined in international acts adopted within the framework of the UN, the OSCE and the Council of Europe. The main attention is paid to the activities of the UN human rights mechanisms, such as the Human Rights Council, the Universal Periodic Reviews (UPR), the Special Procedures of the UN Human Rights Council, the UN human rights treaty bodies.
Keywords Keywords: international control, ensuring human rights, the UN Human Rights Council, the Universal Periodic Review, the Special Procedures of the UN Human Rights Council, the human rights treaty (monitoring) bodies of the UN system.
Respect for human rights and the rule of law is an important factor for security and stability in democratic societies, as well as an incentive for sustainable development and economic progress. Today, the assertion that human rights have become an element of our civilization, a part of everyday life, is no longer questioned. The standards and principles proclaimed in the Universal Declaration of Human Rights and enshrined in universal international treaties governing the observance of human rights and fundamental freedoms are reflected in regional legal systems and in the legislation of states.
It is obvious that the creation and improvement at the state level of an effective system for the promotion and protection of human rights, which not only guarantees compliance with obligations under the relevant international treaties, but also prevents violations of human rights, provides victims of them with access to the means of effective restoration of their rights and contributes to the fullest implementation of all categories of rights for everyone, is a rather long and laborious process.
Its participants are required to have a clear understanding of the tasks and priorities, as well as knowledge of intrasystem problems. This, in turn, requires a detailed and continuous assessment of the performance of the system in order to make timely adjustments to it. In other words, control.
The system of international control in the field of human rights took shape gradually. This is due, first of all, to the fact that at the universal and regional level there is no supranational authority that could control the implementation of all the norms and principles of international law, including enforcement and sanctions for their execution. No international body can fully ensure and protect human rights. The agreement of states on any external (including international) control over the fulfillment of obligations in the field of human rights is purely voluntary.
Before the Second World War, even statements that human rights were being violated in other states could be regarded as an encroachment on sovereignty and interference in internal affairs. The Statute of the League of Nations did not mention human rights, and in general, the observance of human rights was not at that time an imperative of the domestic and foreign policy of states.
It can be said without exaggeration that a qualitative leap in the process of establishing international control in the field of human rights occurred after the Second World War. It is the duty of all states to respect human rights and fundamental freedoms for all without distinction as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (Art. 1 (3), 55 of the UN Charter). At the same time, the UN Charter does not imply any separate control over the observance of human rights, placing the main responsibility for it on states.
The beginnings of international control in the field of human rights appeared even before the war. Thus, in the Slavery Convention, which entered into force on March 9, 1927, disputes arising between high contracting parties regarding the interpretation or application of the provisions of the Convention "... will be referred to the decision of the Permanent Court of International Justice" (Article 8 of the Convention). The Forced Labor Convention (ILO Convention No. 29), which entered into force in 1932, provides for annual reports of the states that have ratified it on measures to implement its provisions and on specific issues related to the use of forced labor (Article 22 of the Convention). However, these sporadic actions differed both in effect and scale from the steps taken by the international community in the second half of the 20th century - early XXI v.
The progressive development of control mechanisms in the field of human rights at the universal and regional levels took place simultaneously with the development and adoption of international legal acts establishing
obligations of states in the field of observance of fundamental human rights and freedoms. International organizations - the UN, the OSCE, the Council of Europe - were actively involved in monitoring the observance of human rights. Most of the universal and regional treaties in the field of human rights provide in their text and relevant control procedures.
Of course, it is worth recognizing that at the universal level, the leading role in the field of control in the field of human rights belongs to the UN. To one degree or another, the General Assembly, the Security Council, the Economic and Social Council and its functional commissions, as well as divisions of the Secretariat, primarily the Office of the United Nations High Commissioner for Human Rights (OHCHR), are involved in control.
Separately, it is worth noting the control powers of the UN Human Rights Council. Within its framework, the universal periodic review procedure (UPR) of the human rights situation in the UN member states, the system of special monitoring procedures and the confidential procedure for individual complaints of gross and systematic violations of human rights function.
The rapid development of international control is explained by a number of factors. Globalization, the strengthening of the interdependence of states, the growth in the number and scale of problems of a transboundary nature have led to a tendency for issues that previously belonged to the purely internal competence of states to be regulated by international law. The emergence of modern means of disseminating information, the increased activity of non-governmental organizations and civil society institutions, and the development of international organizations also played their role.
Consistent control over the work of the human rights system provides accurate information that allows the state - the main guarantor of human rights and fundamental freedoms - to find and eliminate gaps in the provision of human rights, create conditions for their fuller implementation, determine priorities for channeling resources to strengthen existing institutions for the promotion and protection of human rights or the creation of new ones.
The main purpose of human rights monitoring is to ensure that States comply with applicable international human rights norms and standards. Monitoring is a tool that allows you to assess the quality and level of compliance, identify problems, get an idea of the effectiveness of measures taken to solve them, and also suggest additional corrective measures.
Control over the system of promotion and protection of human rights existing in the state implies an integrated approach that takes into account the work of the entire system as a whole, its individual elements and the relationships between them. Thus, law enforcement agencies, courts, lawyers, the press, national
human rights institutions, civil society structures, various kinds Supervisory bodies and mechanisms play an independent role in ensuring human rights, but the effectiveness of their functioning is significantly enhanced by well-established interaction with other institutions in this area. If a single institution fails to cope with its functions, the whole system may fail. It is very important that monitoring takes into account not only the difficulties that exist in individual areas of human rights work, but also their impact on the system as a whole.
In order to determine the extent to which international norms and standards in the field of human rights are observed in a particular state, it is necessary first of all to analyze the existing legislation. The independence of the judiciary, freedom of speech, assembly and press, the proper administration of justice, the prohibition of discrimination on the basis of sex, race, social origin and property, mechanisms for redress, the protection of vulnerable groups of the population - all this is the basis of respect for human rights and should be enshrined in law. Control is designed to determine the completeness of domestic laws, the presence of gaps in them that could potentially lead to violations of human rights or their non-compliance, the compliance of national legislation with international standards, the possibility of direct application of the latter, etc.
Equally important is the assessment of law enforcement practice. As history shows, the existence of even the most progressive and comprehensive legislation is not a sufficient condition for the observance of human rights, and no country in the world is free from violations. Therefore, control should be aimed at monitoring the real state of affairs with respect for human rights, identifying trends in rights violations and suggesting ways to correct them.
Another important aspect of control is the need to assess the functioning of the system for the promotion and protection of human rights in dynamics. Monitoring should not only provide a comprehensive picture of the strengths and weaknesses of the human rights protection system, but also assess its changes, the impact of policy measures, reforms and other external and internal factors.
The basic criteria according to which monitoring is carried out are universal and regional treaty norms in the field of human rights. In addition, customary international law and non-treaty rules are used. Depending on the status, mandate and practice of work of this or that control procedure, additional criteria are developed.
Thus, in the activities of the convention bodies on human rights, the leading place is occupied by general comments that interpret and develop the provisions of the relevant international treaties. Although these comments are not legally binding, they are taken into account and
Case law plays an important role in the work of the European Court of Human Rights. In similar cases of violation of the rights enshrined in the European Convention on Human Rights, “standard” decisions are made.
The competence of the universal periodic review, conducted by the UN Human Rights Council, includes not only the treaty obligations of states, but also the Universal Declaration of Human Rights, which per se is a body of customary law, and applicable international humanitarian law, and voluntary commitments. Therefore, the range of recommendations made under the UPR is extremely wide.
The special procedures of the UN Human Rights Council operate within the framework of the mandates established by the resolutions of the Council. Their recommendations are usually of a practical nature and are often based on non-treaty norms approved at the intergovernmental level - various kinds of declarations, guidelines, etc.
If the control is of a periodic nature, an important place in it is the evaluation of the implementation of the recommendations made earlier.
The control process involves several stages - the collection of information, its analysis, making recommendations and monitoring their implementation. It is obvious that the key element in it is the issuance of recommendations, which indicate the ways of real solution of the identified problems in ensuring human rights. Recommendations should be clear, understandable, constructive, objective and result-oriented. At the same time, they should be broad enough not only to take into account all aspects of the problem, but also to leave states with a certain “operational scope” for their implementation.
Recommendations can have both binding (1) and non-binding (2) status. At the same time, it should be noted that the recommendations adopted by the state under control are automatically equated with voluntary obligations and are considered as such during subsequent control.
The format and nature of recommendations varies depending on the authority of the supervisory body and the breadth of the issue under consideration. They may propose harmonization of domestic legislation with international law, the introduction of additional remedies, initiatives to change public policies, the creation of additional structures and positions, the establishment of mechanisms for ensuring the professional ethics and responsibility of public officials, administrative support, specific measures to eliminate violations, introduction of educational programs and legal assistance mechanisms, conducting propaganda and information campaigns, etc.
associations, non-governmental organizations). Some recommendations involve the joint work of the governmental and non-governmental sectors, sometimes - the involvement of the potential of international organizations and donor countries (3).
Practice shows that recommendations should be as close as possible to real conditions, take into account the priority needs of the state and, most importantly, the consequences of their implementation. For example, enforcing a ban on propaganda of racial, national or religious hatred may lead to unjustified restrictions on freedom of speech, and the introduction of strict measures to combat human trafficking - a violation of the right to freedom of movement. The financial implications of their implementation must also be taken into account.
In this context, it is difficult to overestimate the importance of objective and complete information about the situation in a particular state. In the process of control, it is important to take into account not only existing international norms and information from the state on their implementation, but also the real situation. It is no coincidence that the practice of “alternative” reports submitted by non-governmental organizations and civil society institutions has become stronger in the treaty bodies. In the universal periodic review, information from alternative sources is considered on a par with the State's report (4). At the same time, however, it is necessary to take into account that indirect information is less reliable than direct evidence, and also to make adjustments for the real situation in the state, the social and cultural characteristics of society, the level of economic development, etc.
The analysis should provide a holistic and accurate picture of the system for the protection and promotion of human rights, with all its shortcomings and advantages. An incident with a human rights violation may indicate an existing systemic problem (for example, the general weakness and inefficiency of the mechanisms for enforcing court decisions), but it may also be the result of unlawful actions of a particular official (judge, investigator, prosecutor). Attempts to present individual, albeit resonant, cases as a system can lead to politicization and undermine confidence in the control body.
It should be noted that most of the universal mechanisms of international control in the field of human rights deal with systemic problems. The authority to consider individual reports of violations is fixed separately - in the text of the relevant treaty (5) or in an optional protocol (6). The UN Human Rights Council's complaints procedure deals exclusively with reports of "systematic and credibly attested gross violations of all human rights and all fundamental freedoms" .
In general, the measure of the effectiveness of control is both the accuracy and depth of analysis, and the usefulness and practical applicability of the recommendations.
The mandate of the control mechanism plays a key role in the control process. Usually it is established either by an international treaty or by a decision of one of the UN bodies - the General Assembly, the Security Council, ECOSOC, the Human Rights Council. If necessary, it should be confirmed or specified in national legislation, or fixed by a memorandum or other agreement with the responsible structure at the state level. This is especially important in cases where monitors have access to certain institutions (eg places of detention), attendance at court hearings or access to information.
The most important factor is the level of qualification of controllers, their honesty and impartiality. It is no coincidence that the relevant provisions are included in the texts of international treaties (7) and other documents regulating the activities of control procedures (8). Not only the level of trust in this body, but also the overall return on its activities depends on the objectivity and reliability of the conclusions made by the regulatory body.
It is obvious that international control cannot replace the system of ensuring human rights that exists at the state level, especially when it concerns individual violations. Monitoring mechanisms, within their mandate, may influence individual cases and prescribe temporary measures, but these do not always help to strengthen the system for the promotion and protection of human rights as a whole. It is not uncommon, for example, that there are attempts to change an “unfair” court decision, which is contrary to the principle of independence and impartiality of the judiciary and undermines the credibility of the control mechanism.
In general, practice shows that international control has become one of the most important tools for ensuring the observance of human rights by all states of the world. Given that human rights are acquired by all more weight in global politics, it is quite possible to expect that the institutions of international control will develop, and the range of controlled rights and freedoms will expand. Another treaty body, the Committee for the Protection of All Persons from Enforced Disappearance, is expected to emerge at the universal level in the near future (9). In addition, it is possible that in the course of the review of the activities and functioning of the UN Human Rights Council, its control powers will change somewhat.
NOTES
post-conflict recovery, which are characterized by instability and weakness of the institutions of state power.
(4) Paragraph 15 of the HRC Institution Building Document states that the UPR “will be conducted on the basis of the following documents: (...) additional credible and reliable information submitted by other stakeholders for the universal periodic review, which the Council should also take into account Attention".
(5) Thus, art. 14 of the International Convention on the Elimination of All Forms of Racial Discrimination states that a State Party “may at any time declare that it recognizes the competence of the Committee [on the Elimination of Racial Discrimination] within its jurisdiction to receive and consider communications from individuals and groups of individuals, who claim to be victims of a violation by that State Party of any of the rights set forth in the Convention.”
(6) For example, the Optional Protocol to the International Covenant on Civil and Political Rights provides for the competence of the Human Rights Committee to consider individual communications regarding violations by States parties to the protocol of their obligations under the covenant.
(7) For example, art. 28 of the International Covenant on Civil and Political Rights determines that the Human Rights Committee shall be composed of "persons ... of high moral character and recognized competence in the field of human rights."
(8) Thus, art. 41 of the UN Human Rights Council Institution Building Document stipulates that candidates for Council Special Procedures mandate holders must be “highly qualified individuals with recognized competence, relevant expertise and extensive professional experience in the field of human rights.”
(9) Although the Convention for the Protection of All Persons from Enforced Disappearance has already entered into force, elections for this committee have not yet taken place.
LITERATURE
Doc. UN. A/HRC/RES/5/1. Annex 1.
Convention (No. 29) on forced labor of 1930 // Human Rights: Sat. international treaties. United Nations. - New York and Geneva, 2002. - V. 1. - S. 600-609.
Slavery Convention 1926 // Doc. ST/HR/1/Rev.6.
International Convention on the Elimination of All Forms of Racial Discrimination, 1965 // Doc. ST/HR/1/Rev.6.
International Covenant on Civil and Political Rights 1966 // Doc. ST/HR/1/Rev.6.
General Theory of Human Rights / Ed. E.A. Lukasheva. - M.: Norma, 1996.
Resolution of the UN General Assembly A/60/251.
Optional Protocol to the International Covenant on Civil and Political Rights of 1966 // Doc. ST/HR/1/Rev.6.
Weissbrodt D. Anti-Slavery International. Abolishing Slavery in Its Contemporary Forms. - Geneva, Office of the High Commissioner for Human Rights, 2002.
INTERNATIONAL CONTROL AND OBSERVANCE OF HUMAN RIGHTS
The Department of International Law Peoples" Friendship University of Russia
6, Miklukho-Maklaya st., Moscow, Russia, 117198
The thesis is devoted to analysis of the process of standing and development of the international control in the field of human rights. The conceptional and normative bases of international control on human rights witch set up in the framework of the UN" system, OSCE and CE are analyzed in this work. The special attention is given to analyzes of activities of the existing of the UN"s human rights mechanism, such as HRC, UPR, special proceeding, treaty bodies.
Key words: international control, insuring of human rights and fundamental freedoms, the UN "s Human Rights Council, Universal Periodic Review (UPR), Special Procedures of the UN" Human Rights Council, Treaty bodies on human rights.
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