In measuring the extent to which the European regional approach to human rights protection offers advantages over the United Nations international approach, the various mechanisms contained within both systems must be compared and analysed. An explanation of the various international treaties and the drafting of the European Convention will require some consideration in order to assess the overall effectiveness of the machinery’s established under both systems for the protection of human rights.
Particular reference will be made to the right not to be subjected to ‘torture or to inhuman or degrading treatment or punishment’ who’s universal condemnation stems back to the impunity for horrific crimes against humanity committed during the First and Second World War thus prompting in 1945, the first formal recognition of the importance of protecting human rights in the international order through the United Nations Charter and the Nuremberg Charter.
The United Nations Charter sets out its purposes as “promoting and encouraging respect for all human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”’ and although the declarations are no more than aspirational, they support principles of liberty and individual freedoms that have subsequently formed the content of specific rights treaties.
Torture is received with strong universal condemnation, and although there is no absolute definition, its prohibition is emphasised in several international legal instruments such as; the Universal Declaration of Human Rights 1948 (UDHR), the European Convention on Human Rights 1950 (ECHR), and the International Covenant on Civil and Political Rights 1966 (ICCPR), each in similar language, providing that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’
The Convention against Torture and Other Cruel Inhuman or degrading Treatment gives a precise definition in Article 1 and requires parties to take effective measures to prevent it in any territory under its jurisdiction calling on all States to ensure that all acts of torture are included offences under their domestic criminal laws, including attempts and complicity as well as participation. Similar steps are taken within the European Convention of Human Rights which imposes an obligation on each Contracting Party to secure those rights are within their jurisdiction.
However, at international level, under the statutes of criminal tribunals, torture can only be prosecuted if it falls within the category of war crimes. In addition to this, the lack of effective enforcement mechanisms within some States undermines the effectiveness of the international human rights system. The International Court of Justice (ICJ) hears cases involving disputes between nation-states and Article 30 of the Convention provides that, “any dispute between two State parties concerning its interpretation or application which has not been possible to settle through negotiation or arbitration may be submitted to ICJ by one of the States.”
A failure of this allows for a claim to be submitted to the ICJ requesting that the Court apply measures requiring the Respondent to take all steps within its power to ensure the rules of international law will be correctly applied.” The problem then lies in the fact that in order for the International Court of Justice to hear a case, the State parties to the dispute must accept its jurisdiction.
This is borne from the fact that International lawyers will agree that an international agreement is not legally binding unless the parties intend it to be and is therefore more of an understanding or agreement between the States. This is considered a problem with enforcement at international level as rights contained in the Conventions need to be balanced with the States sovereignty. By contrast, where the United Kingdom and other countries have incorporated the Human Rights Act 1998 within its judicial system, a natural consequence of this is that to an extent, they diminish and undermine the position of Parliament as an exclusive law giver for the UK providing that all domestic law is compatible with the rights contained within the Human Rights Act.
Another fundament difference at regional level is where the Convention establishes its own machinery for the enforcement of these rights. Applications made based on a violation of Article 3 can be bought either by a member state on behalf of an individual victim by another High Contracting Party, or by a member state bringing an application against another state and allows for a more effective and immediate remedy at the domestic level as opposed to using the international machinery at Strasbourg. The latter is highlighted in Ireland v United Kingdom where an application was brought by the Irish government in relation to the treatment of Irish nationals by the British authorities.
The ECtHR’s general approach on finding a violation of Article 3 relied on the concept that the burden of proof was borne not by one or other of the two Governments concerned, but mainly on the evidence of the one hundred witnesses heard in, and on the medical reports relating to each case. Based on the allegations against the UK, the Commission estimated that the ‘five techniques’ administered by the police constituted a practice of inhuman and degrading treatment.
In finding this, the Commission emphasised that ill treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 and asserted that it depends on all the circumstances of the case, such as the duration of the treatment, its mental effects, and in some cases the sex, age and state of health of the victim. The scope of the Convention was extended so as to imply intention within its meaning in accordance with the UN Resolution.
The approach is further laid down in Askoy v Turkeywhich concerned a Turkish national who had been subjected to a form of torture known as ‘Palestine hanging’ which resulted in him losing the movement of his arms and hands. Due to the form of torture requiring the applicant to be stripped naked with his hands tied behind his back, as well as being strung up by his arms, the courts found that such an act would have required preparation and was therefore deliberately carried out. Damages, were awarded on behalf of the Turkish state.
The methods adopted under each case in their application under the law has imposed upon its members the Courts’ power to make judicial decisions that are enforceable on the offending State. Much of its success can be placed on the basis that each Contracting State is, in an economical sense, more equipped and politically empowered with the resources to adhere to the principles laid down within the Convention.
This was the situation in 2009 where Belgium instituted proceedings before the International Court of Justice against Senegal on the grounds that a dispute existed regarding Senegal’s compliance with its obligation to prosecute a suspect for acts of torture under the Convention. The main reason for non compliance rested on financial difficulties which prevented Senegal from organising a trial more important, on the grounds that “crimes against humanity did not form part of Senegalese criminal law.” Another advantage the European regional approach to human rights protection has over international law is its rights contained in Part I of the Convention.
These rights identify a number of civil and political rights requiring protection from arbitrary and despotic governments amongst other important rights, such as the right to life. In this context, the individual holds a clearly defined right against the State in that the violation of that right can be tested in a court of law. So it is questionable whether international law is equipped to deal with individual rights of an economic and cultural nature, and in particular, where third generation rights are concerned.
This is illustrate in the ICCPR Article 2(1) which states that “Each Party to the present Covenant undertakes to respect and to ensure that all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, without distinction of any kind” However, Article 2(1) of the ICESCR states that “Every State Party to the present Covenant undertakes to take steps to the maximum of its available resources, with a view of achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means...”
So although the international approach provides a mechanism by which all States can agree universal standards of human rights, there exists in some States, a hierarchy of rights that are considered perhaps, less important than others, where importance on a particular right is based on social, cultural and political factors. In further support of his view, it is suffice to say that the right to freedom of religion and belief is accompanied by constraints of Article 5 in that such violations can lead to such things as imprisonment, torture and restrictions on freedom of belief and association.
An important example is the People’s Republic of China’s ‘one-child’ policy and forced abortions which has been seen as restrictions on not only freedom of religion and belief, but also the torture of detainees in Chinese detention centres and prisons. Although the policy was designed as a temporary measure, it portrays a clear violation of human rights derived out of political necessity to limit communist China's population growth. In the promotion and protection of human rights, the Committee against Torture (CAT) considers periodic reports from High Contracting States every four years and deals with both inter-state complaints and individual complaints.
Alongside this, the 2006 Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) provides for the establishment of “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment,” to be overseen by a Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
In addition, the Human Rights Council requires its members to go through a periodic review of their own human rights. This allows individual or group complaints to be examined for evidence of a pattern of human rights by the Sub-Commission Council on Prevention of Discrimination and Protection of Minorities which are then referred to the Working Group on Situations. In accordance with General Assembly Resolution 60/251, Rapporteurs can undertake visits with the consent of the State concerned and report back to the Human Rights Council.
In a recent UN Special Rapporteur on Torture, the Rapporteur’s findings highlighted the gap between China’s obligations under five of the international human rights treaties and the reality on the ground. In particular, Dr Nowak pointed out the “incentives for the police and security officials to obtain confessions through torture and the lack of independent, far and accessible courts and prosecutors, as well as ambiguity of the domestic law regarding political crimes.”
The Rapporteur found that in all cases it observed, each victim had been convicted of a political crime, possibly on the basis of information extracted by torture. On these facts, the Special Rapporteur appealed to the Government to release its victims, and added in their conclusions that considering the gravity of such findings, “the international community must not waste further time and act immediately to pressure China to end all use of torture and bring justice to those responsible.”
The report included a set of 23 recommendations for China to act upon, as matter of urgency, in-order to abolish the use of torture. These included setting up mechanisms of investigation and prosecution of perpetrators of torture; prevention through safeguards in the criminal law system; ratification of international conventions and their implementation; the abolition of political crimes from domestic law; the guaranteeing of freedom of speech, assembly, association and religion; and the abolition of forced re-education in detention.
The UN Commission on Human Rights referred all reports of its mechanisms to the newly established Human Rights Council for further consideration at its First Session in June 2006. In response, the General Assembly adopted resolutions aimed primarily at the principles contained in the Charter of the United Nations and the UDHR by re-emphasising, reaffirming and re-acknowledging human rights However, despite the Rapporteur visits and attempts to expose China’s breaches, a United Nations “review” of China’s human rights record highlighted the weakness of a new procedure that was supposed to be the chief improvement in the U.N.'s reformed human rights system. In despite of this, China continues to in its pursuit of human rights violations as it was reported no soon after that China has a network of secret ‘black jails’ for people who dare to complain about life under the Communist regime.
Findings suggested up to 10,000 citizens a year are hauled off the streets, locked up and beaten in the makeshift prisons. By contrast, the European regional system has in place a mechanism whereby a Committee, established under the European Torture Convention 1987, visits detention centres in order to ascertain whether conditions contained within the Convention are being adhered to.
This in itself places pressure on its member states to conform to the standards set by the ECHR while maintaining protective measures for individuals considered at risk. In this sense, the Convention adopts a preventative approach to the issue of torture, and in doing so, highlights the fact that where States are poorly monitored and enforced, countries face little or no penalty for failure to uphold human rights standards.
On the contrary, where all else has failed under international measures and a government refuses to uphold the declaration and instead treats its members of its own society in a cruel or inhuman manner, the United Nations and has the power to authorise military action against that country in violation of the Declaration. Perhaps the first experiment of UN intervention is the Korean War where in 1950 America called on the United Nations to use force to get the North Koreans out as they had ignored the Security Council’s resolution of June 25th. This later resulted in U.S military intervention.
The Korean War provides sufficient evidence that when the U.N. Security Council threatens the use of force to enforce its resolutions, it can follow through. Although in reality, the Council has passed a significant number of resolutions over the years that have not been carried out which signifies reluctance by the Council to enforce a resolution in circumstances where intervention is necessary unless such enforcement carries with it a political dilemma. In support of this point is the use of force in Iraq where the UN enforced resolution 1441 through Baghdad’s failure to rid itself of its alleged weapons of mass destruction.
The Iraq situation raised a similar issue for the Council regarding Korea whereby they could either approve Bush’s request to use force in Iraq based on American intelligence and on an American timetable, and risk being seen by other countries as complicit with the Bush administration, or defy the U.S. president and risk being considered irrelevant by the world's largest military power. Chesterman, a senior associate at the International Peace Academy stated in response that, “the issue of the U.N.’s relevance comes up regularly, and every couple of years the United Nations faces a crises over its legitimacy” citing debate over its roles in the Balkans, the Gulf War and Somalia.
The protection and enforcement mechanisms employed by international law suggests that it is focussed primarily on regulating state behaviour, whereas European regional law has its objectives aimed in the movement towards protecting individuals from the state. And although international law has increasingly been involved in identifying individual rights and holding individuals accountable, is still to an extent has in most cases been those who have been involved in political affairs.
As mentioned earlier, states have a duty to investigate, prosecute or extradite individual perpetrators, and if they fail or are unwilling to do so, other states and international courts can step forward instead. In 1998, former Chilean President Augusto Pinochet was arrested in London following the request for extradite from Spain. The charges involved forms of torture committed during his term in office.
In 2000, Hissene Habre, former president of Chad was indicted by the state prosecutor of Senegal for similar offences. That same year, a Belgian Tribunal de premiere instance issued an international arrest warrant against Abdoulaye Y. Ndombasi, the then Foreign Minister of the Democratic Republic of the Congo.
This was a direct application of the principle of universal jurisdiction which allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states. However, the International Court of Justice found that the arrest warrant against Ndombasi failed to respect the immunity from criminal jurisdiction and the inviolability which he could enjoy under international law.
The 2001 extradite of former naval officer Ricardo Cavallo highlights the first case in whereby as person can be accused of crimes committed on one country, be arrested in a second, and then extradited by a third. Where Europe is concerned, the Courts tend to delve deeper into the interpretation and application of the right to freedom from torture by distinguishing the terms torture, inhuman, degrading treatment and punishment separately.
This has enabled the courts the discretion to apply the wording of Article 3 more widely. In particular, where there is the risk of a future violation of this right. Peers v Greece provides another example of the extent to which the Courts have laid down the importance of such treatment that falls below torture. In this case the applicant complained that he had been detained in cramped cell conditions with no ventilation and an open toilet.
Although the Court held there to be no evidence of a positive intention to humiliate or debase the applicant, the fact that the state had taken no measures to improve the conditions amounted to a lack of respect for the applicant and was therefore a violation of Article 3. What is apparent between the two systems is the objective on the one hand by the international system, to act as a potential means of conflict resolution, and although to an extent Europe provides its own mechanisms for maintaining its state affairs, the system it has in place has greater level of cooperation which allows the emphasis to be placed specifically on individual rights.
At the same time, although many States have become party to the United Nations Convention against torture, there appears to be a lack of effective enforcement mechanisms in place within some States, which in turn violates the general obligations to punish crimes against international humanitarian law. And where the UN has, throughout the fifty years, in amended and reformed its treaties so as to bring those violators in breach of the declaration to justice, it has still, in many instances lacked the will or faced the veto, and as a result, murderous regimes enjoy impunity.
The root of this lies perhaps, in the fact that the UN organises a legal institution by letting States decide by majority vote who does and who does not deserve to be shamed for human rights abuses, which in turn creates a political process in which political factors play a major role. Countries that are shamed tend to be both violators and politically vulnerable in multilateral settings. This is the case in particular where, although the UN and NATO is willing to go into Yugoslavia and launch air strikes in order to prevent violations of human rights, there are continuous reports of violations in China and by the Chinese upon its people.
To conclude, it could be argued that that the UN is less likely to enforce human rights in countries that are permanent members, and where this could be the case, international law will potentially be the most influential source of law. In support of this view, recent reports have suggested that countries like China simply sidestepped censure by garnering enough support to block attempts by the U.S. or other Western nations to scrutinize their records.
Meanwhile, Cuba and others complained that the U.S. was too powerful to face thorough examination.By contrast, European law has effective measures that ensure state supremacy is spread evenly throughout the system.At the same time, both international law and European law can be deemed as fundamentally Western as most international law is based on Western notions.
On that note alone, and in measuring the extent to which the European regional approach to human rights protection offers advantages over the United Nations international approach, the overall effectiveness of both systems, if based entirely on their Western notions, combined with both political and economical factors, present a framework which is more compliant with the international laws on human rights, in particular where cases of torture are concerned. And with that being said, one fundamental advantage that exists within the regional system is that when compared to international law, Europe does not have to deal with the majority of the more vulnerable states that fall within the realms of international law.
-------------------------------------------- [ 1 ]. Article 3 ECHR [ 2 ]. Nuremberg Principle VI provides that crimes against peace are punishable under international law. [ 3 ]. Article 1(3) of the United Nations Charter 1945 [ 4 ]. Article 68 of the Charter provides that the Economic and Social Council of the United Nations shall set up commission for, inter alia, the promotion of human rights, and the council established the Commission on Human Rights, who in turn drafted the Universal Declaration of Human Rights 1948. [ 5 ]. Art.5 UDHR
[ 6 ]. Art. 3 ECHR [ 7 ]. Art 7 ICCPR [ 8 ]. See ibid 4, 5, and 6. [ 9 ]. The United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, adopted by the UN General Assembly on 10 December 1984. [ 10 ]. Art. 2- Convention against Torture 1984.
[ 11 ]. Art 4. Convention against Torture 1984. [ 12 ]. Signed by the High Contracting Parties in 1950 and entered into force in 1953. In particular, the United Kingdom joined in 1957. [ 13 ]. Art 1 ECHR. [ 14 ]. Art 5. Convention against Torture 1984. [ 15 ]. See Belgium v Senegal (International Court of Justice) November 3, 2009. [ 16 ]. To found the Court’s jurisdiction, the State must first invoke the unilateral declarations recognising the compulsory jurisdiction of the Court made by the Parties pursuant to Article 36 paragraph 2, of the Statute of Court. [ 17 ]. See Schatcher , The Twilight Existence of Non-Binding International Agreements (1977) 71 AJIL. [ 18 ]. See Costa v Enel case 6/64  ECR 585 with reference to the interpretation of Article 37(2) of the EEC Treaty which creates a Community rule capable of giving rise to individual rights that national courts are bound to safeguard. [ 19 ]. Article 34 and 35 ECHR
[ 20 ]. Article 33 ECHR [ 21 ]. AC.25 (1978) 2 EHRR 25 [ 22 ]. See Ibid at 8 part 1B at para 160 and 161 [ 23 ]. The term five techniques refer to certain interrogation practices adopted by the Northern Ireland and British governments during Operation Demetrius in the early 1970’s. They were wall standing, hooding, and subjection to noise, deprivation of sleep, and deprivation of food. For further discussion of this see, Greenwood and Lauterpacht, International Law Reports (Cambridge Universal Press 1980) [ 24 ]. Part C at 162.
[ 25 ]. Reference made to Article 1, Resolution 3452 (XXX) adopted by the General Assembly of the United Nations. [ 26 ]. 1996-VI 2287, (1996) 23 EHRR 553 [ 27 ]. See in particular concerning the case, Article 5, paragraph 2, Article 7, paragraph 1, Article 8, paragraph 2, and Article 9, paragraph 1 [ 28 ]. See the - International Court of Justice (Belgium v Senegal 2009) [ 29 ]. Definition: International Covenant on Social and Economic Rights 1966. [ 30 ]. In particular, the case of Mao Hengfeng, a victim of forced abortion whose ongoing attempts to receive justice have resulted in her sentencing to 18 months of hard labour during which she has been tortured, denied vitally-needed medicine, and whose life is in danger today. See Committee on International Relations 2004. [ 31 ]. Art, 19 CAT.
[ 32 ]. See both Art. 21 and 22 CAT. [ 33 ]. Adopted by the General Assembly on 18 December 2002 and in force since 22 June 2006. [ 34 ]. OPCAT, Article 1 [ 35 ]. Free Tibet: News and Media, 2008-09. [ 36 ]. See Ibid at 18. [ 37 ]. UN Human Rights Council, First Session, 2006. [ 38 ]. See United Nations General Assembly Sixtieth Session, 2006. [ 39 ]. See Goodenough P, 2009. CSNNews.com. [ 40 ]. See the Mail Foreign Service, 2009. Mail Online [ 41 ]. Iraq and Afghanistan [ 42 ]. Resolution from the united Nations calling for North Korea to withdraw its forces to the 38th parallel and for hostilities between North and South Korea to Cease. – available at: http://www.trumanlibrary.org/whistlestop/study_collections/korea/large/week1/kw_3_1.htm [ 43 ]. For full Resolution see- Press Release CS/7464 Security Council 4644th Meeting at: http://www.un.org/News/Press/docs/2002/SC7564.doc.htm [ 44 ]. See Chesterman and Byers, Has U.S Power destroyed the UN? (1999) LRB. [ 45 ]. See Amnesty International, Chad: The Harbre Legacy, 15th October 2001. [ 46 ]. See facts of case online at - International Court of Justice, Case concerning the arrest warrant of April 11 2002 (Democratic Republic of Congo v Belgium) 14th February 2002. [ 47 ].
See United Nations Information Service, UN in Vienna: ICJ rejects Belgian arrest warrant for Foreign Minister of Democratic Republic of Congo. 15TH February 2002. [ 48 ]. See Schweimler D, ‘Cavallo Case sets precedent’ BBC News online. 29th June 2003. [ 49 ]. See in particular, Batayov v Home Secretary  EWCA civ. 1489 where the Court of Appeal took into account the Europeans in Kalashnikov v Russia (200) 63 EHRR 587 to support the applicants argument that he faced a real risk of being subjected to prison conditions that were in violation of Article 3 if he was returned to the Russian prison form which he had escaped. [ 50 ]. (2001) 33 EHRR 51.
[ 51 ]. Such mechanisms are enforced by the European Committee for the Prevention of Torture whereby the courts have taken into account their findings from State Reports. For an example, see Dougoz v Greece (2002) 34 EHRR 61 [ 52 ]. For instance, Pol Pot in Cambodia and Idi Amin in Uganda who enjoyed impunity. For further reading see Armenian Foreign Ministry Report, 20th April 2005. See also Amnesty International Online, ‘End Impunity: Justice for the victims of Torture”19th November 2001. [ 53 ]. Definition: North Atlantic Treaty Organisation.
[ 54 ]. For example, because much of the law is formed by the U.N, the Security Council has disproportionate influence in shaping it. [ 55 ]. See Goodenough, China Eases Through Human Rights Review (CSNNews.com 2009) [ 56 ]. Under the Treaties (Article 226 of the EC Treaty and Article 141 of the Euratom Treaty) the Commission of the European Communities is responsible for ensuring that Community law is correctly applied. Consequently, where a Member State fails to comply with Community law, the Commission has powers of its own (action for non-compliance) to try to bring the infringement to an end and where necessary, may refer the case to the European Court of Justice. [ 57 ]. See Henkin, The Age of Rights, (Columbia University Press 1990).