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A Manual on Human Rights for Judges, Prosecutors and Lawyers

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A Manual on Human Rights for Judges, Prosecutors and Lawyers OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS IN COOPERATION WITH THE INTERNATIONAL BAR ASSOCIATION PROFESSIONAL TRAINING SERIES No. 9 HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE: A Manual on Human Rights for Judges, Prosecutors and Lawyers UNITED NATIONS New York and Geneva, 2003 CONTENTS Foreword by the Office of the United Nations High Commissioner for Human Rights.................................xxvii Foreword by the International Bar Association.................................................xxix Acknowledgements.................................................................................................xxxi Addendum – Major Recent Developments (2002 – March 2003).................xxxii Abbreviations.........................................................................................................xxxiv Chapter 1 International Human Rights Law and the Role of the Legal Professions: A General Introduction ................1 Learning Objectives .....................................................................................................1 Questions.......................................................................................................................1 1. Introduction ..........................................................................................................2 2. Origin, Meaning and Scope of International Human Rights Law................2 2.1 The Charter of the United Nations and the Universal Declaration of Human Rights ............................................................................2 2.2 The ethical dimension of human rights ............................................................4 2.3 Human rights and their impact on national and international peace, security and development....................................................................................5 2.4 The sources of law................................................................................................6 2.4.1 International treaties.....................................................................................7 2.4.2 International customary law..........................................................................8 2.4.3 General principles of law recognized by the community of nations.................11 2.4.4 Subsidiary means for the determination of rules of law.................................11 2.5 International human rights law and international humanitarian law: common concerns and basic differences........................................................12 2.6 Reservations and interpretative declarations to international human rights treaties..........................................................................................13 2.7 Limitations on the exercise of rights...............................................................15 2.8 Derogations from international legal obligations..........................................16 2.9 International State responsibility for human rights violations ....................17 3. Business Corporations and Human Rights ....................................................19 4. International Human Rights Law at the Domestic Level............................20 4.1 Incorporating international law into domestic legal systems.......................20 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers iii Contents 4.2 The application of international human rights law in domestic courts: some practical examples.......................................................................22 5. The Role of the Legal Professions in the Implementation of Human Rights.....................................................................................................25 6. Concluding Remarks..........................................................................................25 Chapter 2 The Major Universal Human Rights Instruments and the Mechanisms for Their Implementation.......................27 Learning Objectives...................................................................................................27 Questions.....................................................................................................................27 1. Introduction........................................................................................................28 1.1 Scope of the chapter ..........................................................................................28 1.2 The international treaty-based control mechanisms .....................................28 1.3 Civil and political rights, and economic, social and cultural rights.............30 2. The Major United Nations Human Rights Treaties and their Implementation ..................................................................................................31 2.1 The International Covenant on Civil and Political Rights, 1966, and its two Protocols, 1966 and 1989 .............................................................31 2.1.1 The undertakings of the States parties.........................................................31 2.1.2 The rights recognized ..................................................................................32 2.1.3 Permissible limitations on the exercise of rights............................................34 2.1.4 Permissible derogations from legal obligations ..............................................36 2.1.5 The implementation mechanisms.................................................................38 2.2 The International Covenant on Economic, Social and Cultural Rights, 1966.........................................................................................................39 2.2.1 The undertakings of the States parties.........................................................40 2.2.2 The rights recognized ..................................................................................40 2.2.3 Permissible limitations on rights..................................................................41 2.2.4 The implementation mechanism ..................................................................42 2.3 The Convention on the Rights of the Child, 1989 and its two Optional Protocols, 2000 ..................................................................................43 2.3.1 The undertakings of the States parties.........................................................43 2.3.2 The rights recognized ..................................................................................44 2.3.3 Permissible limitations on the exercise of rights............................................46 2.3.4 The implementation mechanism ..................................................................47 2.4 The Convention on the Prevention and Punishment of the Crime of Genocide, 1948..............................................................................................47 2.4.1 The undertakings of the States parties.........................................................48 2.4.2 The legal scope of the Convention ................................................................48 2.4.3 International crimes: recent legal developments .............................................49 iv Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers Contents 2.5 The International Convention on the Elimination of All Forms of Racial Discrimination, 1965.........................................................................50 2.5.1 The undertakings of the States parties.........................................................50 2.5.2 The field of non-discrimination protected......................................................51 2.5.3 The implementation mechanism ..................................................................53 2.6 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984...................................................54 2.6.1 The undertakings of the States parties.........................................................54 2.6.2 The legal scope of the Convention ................................................................55 2.6.3 The implementation mechanism ..................................................................56 2.7 The Convention on the Elimination of All Forms of Discrimination against Women, 1979, and its Protocol, 1999................................................58 2.7.1 The undertakings of the States parties.........................................................58 2.7.2 The specific legal scope of the Convention.....................................................59 2.7.3 The implementation mechanisms.................................................................60 3. Other Instruments Adopted by the United Nations General Assembly..............................................................................................................61 3.1 The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 1981............................62 3.2 The Basic Principles for the Treatment of Prisoners, 1990.........................62 3.3 The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988..........................................63 3.4 The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 .......................................................................63 3.5 The Principles of Medical Ethics relevant to the Role
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