In that sense, even when the crime is committed by soldiers while they are still in service or based on acts of the same, this is not enough for their knowledge to correspond to the military criminal justice. Though the expansion of Mexican military jurisdiction is unconstitutional and inadequate compared to international standards, the State continues to allow the Army to try its personnel before its own tribunals, applying a special set of norms, violating procedural rights of the civilian victims and refusing to comply with its obligation to reform the CJM cfr. United Mexican States , that all judges in the country, before whom disputes over military jurisdiction might arise, must apply the IACHR criterion regarding the exclusion from their jurisdiction cases of human rights violations perpetrated by the Armed Forces, being the SCJN the court with the judicial power to decide in such situations eventual conflicts of jurisdiction between civil and military authorities.
In the case under discussion, what rendered the ordinary penal appeal illusory was the involvement of high military commands for the commission of the crimes denounced by the family members of Mr. When the relatives of Mr. Padilla attempted to bring the case before the ordinary trial court, the Court of the Second District declined its competence in favor of the military jurisdiction. However, the Court of the Sixth District immediately rejected the demand, deciding that:.
This resolution invokes a norm that violates the right of the parties to participate in the process. For all this, the Inter-American Court concluded that Mr.
The Court has reiterated that said obligation implies that the recourse be suitable to fight the violation and that its application by the competent authority be effective. This preservation requires achieving the recognition and realization of the rights consecrated in the instrument. The Government of the United Mexican States, in ratifying the Inter-American Convention on the Forced Disappearance of Persons, adopted in the city of Belem, Brazil, on June 9, , formulates a concrete reservation on Article IX, due to the fact that the Political Constitution recognizes the jurisdiction of war, whenever the military has committed any crimes while on duty.
The jurisdiction of war does not constitute a special jurisdiction in the sense of this Convention, due to the fact that in accordance with article 14 of the Mexican Constitution nobody may be deprived of life, liberty or properties, possessions or rights, unless there is a trial performed by tribunals established previously, in which the essential formalities of the procedures are observed in accordance with the laws issued before the act in question. Of course, this reservation renders Article IX of the CIDFP inapplicable, as it precisely intends to establish a procedural rule in which all actions of forced disappearance are to be investigated and tried by civilian authorities.
Article IX of the CIDFP puts a special emphasis on military jurisdiction by establishing that cases of disappearances may not be interpreted as actions committed in the performance of military duties. However, the Mexican reservation turns military jurisdiction into personal jurisdiction, violating the right to a natural judge and creating a rule instead of an exception. It thereby contradicts the subject and purpose of the Treaty and its Article IX, as well as the provisions set forth in Article 19 of the Vienna Convention. Finally, as the epilogue of this section, another pernicious effect stemming from the extensive application of military jurisdiction and considered by Inter-American jurisprudence is the concept of impunity that results from the application of laws or decrees of self-amnesty, the configuration of penal types that include the expiration of crimes against humanity or short-term expiration for other types of human rights-related crimes, or through the absolution of crimes against humanity, generally accompanied by ineffective investigations.
Peru para. The reasons used by the Court to reject this allegation revolved around the fact that, due to its characteristics, the crime of forced disappearance is a crime of permanent execution and non-lapsable, with effects that prolong over time as long as the location or whereabouts of the victim are not established. The court was comprised of two civilian judges and one military judge, in accordance with the Turkish Constitution before the Amendment to Article Six days later, the CNS issued the decision: a death sentence due to terrorist and separatist activities cfr.
Even after the military judge was substituted by a civilian judge, the doubts on the independence of the tribunal which includes independence of the Legislative Power continue to be valid, since the decisions made by the military judge outlived his substitution. This court also issued non-appealable sentences that had to be confirmed by the Executive Power. In relation to the right to a fair trial, we found several irregularities here as we did during the process before the CNS. To cite a few examples, during detention the detainee was held in seclusion for seven days and then was denied access to an attorney.
During the trial, the court restricted the number and duration of meetings between the accused and his attorneys cfr. In addition, the defense experienced substantially delayed access to evidence, thus violating the principle of procedural equity cfr. The first two hearings were performed without the presence of the accused, thus violating the right for parties to participate in their own proceedings cfr. There is a consensus on this subject in the most recent European regulations, among them the prohibition of the death penalty in common Article 1 of both Protocols No.
The Inter-American Court has also provided jurisprudence by stating in Hilaire, Constantine and Benjamin and others v. The standards of the four systems mentioned above universal, Inter-American, European and African generally require that the State recognize the rights related to due process and the right to both access to and protection by justice. For the purpose of explanation we consider the first category to consist of: 1 the recognition of judicial rights of every person presumption of innocence, right to defense, right to adequate time and means to prepare a defense, etc.
Download Citation on ResearchGate | The judicial application of human rights law: National, regional and international jurisprudence | Since the proclamation of. Cambridge Core - Human Rights - The Judicial Application of Human Rights Law - by Nihal National, Regional and International Jurisprudence. The Judicial.
In the second category we may find 1 the availability of appeals, 2 the guarantee of compliance with the judgment which include the right to investigate and sanction human right violations , and 3 the ease and speed of the process these two are contemplated in the American Convention. The problem with the extensive application of military jurisdiction in cases in which civilians are involved as either passive or active subjects is that it violates more than one of those principles, depending on the case and the regional jurisprudence mentioned above.
It also impacts the quality of democracy as applied by that State. The military jurisdiction completes the circle of State violence, in which civilian judicial interest in due process is violated by not having a competent, independent, fair and impartial trial, as established by international human rights law. Impunity is the most evident sign of a State that does not offer full guarantees for the realization of human rights, and it casts a shadow on the authenticity of its democracy. Military jurisdiction is, on the other hand, the most deceptive sign of impunity.
It is a sign that the State favors of arbitrariness and separation of society between the privileged and the excluded. It also punishes legitimate demands for respect and acknowledgment of human rights of hundreds of civilians who were victims of these abuses, as well as entire societies that are exposed to vulnerability before the excess of power.
Peace and justice are inconceivable when everything that is intended to be an exception becomes a rule. For all the above reasons, in a system that involves such a multiplicity of highs and lows that vary by country, the expansion of militarism would seek to evade judicial counterweights applied in democratic States. Therefore, the authors wish to share with readers their conviction that acting in accordance with international human rights law against the extensive application of military jurisdiction represents the vindication of judiciaries everywhere and the high principles promoted by modern democracies worldwide.
The American Convention indicates that the tribunal must be established by the law before the process. It is worth mentioning that the amparo proceeding needs the approval of the person affected in the case of acts of authority. In cases of forced disappearance, this requisite prevents the effectiveness of such remedy.
Directrices sobre derechos humanos y la lucha contra el terrorismo. Serie A No. Uniform impunity. This is true in civil law countries as well where, despite the propensity of judges to more rigidly adopt a predominately textual interpretation of the law, they have found ways in their interpretive work to give greater effect to ESC rights in a number of instances. This is reflected in the jurisprudence developed by the highest courts of different countries of various legal traditions and systems.
In addition to well-known examples of the highest jurisdictions in countries like Colombia and India, the Constitutional Chamber of the Supreme Court of El Salvador provides a good example of the role of a proactive judicial doctrine in favour of the protection of ESC rights. Box 91 Geneva 8, Switzerland. Language Switcher en es fr ru. See, for example, article 2 3 Each State Party to the present Covenant undertakes: a To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; b To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; c To ensure that the competent authorities shall enforce such remedies when granted.
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Effective protection through judicial or other means shall be guaranteed to individuals and groups who are in danger of extra-legal, arbitrary or summary executions, including those who receive death threats. Families of the deceased and their legal representatives shall be informed of, and have access to.
The family of the deceased shall have the right to insist that a medical or other qualified representative be present at the autopsy. When the identity of a deceased person has been determined, a notification of death shall be posted, and the family or relatives of the deceased shall be informed immediately. The body of the deceased shall be returned to them upon completion of the investigation. Every State should provide an effective framework of remedies to redress human rights grievances or violations.
The administration of justice, including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development. In this context, institutions concerned with the administration of justice should be properly funded, and an increased level of both technical and financial assistance should be provided by the international community.
It is incumbent upon the United Nations to make use of special programmes of advisory services on a priority basis for the achievement of a strong and independent administration of justice.
Right to an effective remedy. Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
According to the magistrate, Poasa had been subjected to cruel treatment contrary to Article 37 a . She added that his detention did not conform to the law and the detention was not used "only as a measure of last resort and for the shortest period of time" . After having referred to the plaintiff's Constitutional Rights under Section 25, 26, and 27, the Magistrate directly applied the facts of the case to the CRC.
In her deliberations, the Magistrate stated:. Poasa was subjected to cruel treatment , contrary to Article 7 a ".
It has to be stated as an observation that this decision did not refer to Article 43 2 of the Constitution, which would provide the authority for the application of the CRC as in the Mutch case. Patricia Molu v. Cidie Molu  Supreme Court of Vanuatu. The custody of the 3 children was disputed along with child maintenance and matrimonial property. When exercising its discretion in interpreting what is just with regards to custody matters, reference was made to the Convention on the CRC to which Vanuatu is bound by virtue of having ratified the convention in . Unlike the Fiji Island case of Semi Voliti v.
Louise Nauka v. Seth Kaurua . Supreme Court of Vanuatu. In this Custody case, the court used the best interest of the child provision from the CRC  , which has been ratified by the Vanuatu Parliament by Ratification Act  to decide on which parent should be given custody of the children. In the "Commonwealth Declarations and Strategies for Action", it is stated that Judges and Lawyers have a duty to familiarise themselves with the growing international jurisprudence of human rights . It further stated that judicial officers should be guided by the UNHRC when interpreting and applying the provision of the national constitutions and laws including the common law and customary laws when making the decisions.
The Fiji Islands has adopted this in Article 43 2 of its current Constitution. However, not all courts have adopted the conventions . It is possible that some Pacific Island courts have not applied the CRC is owing to the public international law principle of non-enforceability. There has been the tendency where states see UNHRC as instruments that are not directly enforceable domestically . Other courts could be trying to hold on to their sovereignty and refuse the intrusion of foreign laws and values.
Whilst these principles may be applicable to other public international laws, it should not be adopted in the application of human rights conventions . Jenkins was a New Zealand tourist holidaying in Fiji. Whilst staying in a hotel he was interrupted in his sleep by three children who went knocking three times on his door at around 1a. Mr Jenkins was charged with assault and admitted to having banged the heads of two children and also kicking two of them in the posterior.
The victims were Australian tourists whose ages were 6, 13 and 14 years. I am of the opinion that the accused was somehow provoked into committing this offence. The children are not entirely blameless. It is an act done in the spur of the moment without any element of pre-meditation. In my view this is an appropriate case to apply section 44 [of the Penal Code]. Accused is discharged without conviction. As to why the Magistrate did not consider the CRC is unknown . Below are some considerations the Magistrate could have made:. In Semi Voliti v. In the case of The State v. Under the common law, it was decided in Yin v.
The Director of Immigration  , that when exercising a discretion, the obligation of ratifying a treaty has to be a factor to be taken into account. Another persuasive authority is Molu v. Molu  Supreme Court of Vanuatu In exercising its discretion, reference was made to the CRC to which Vanuatu is bound by virtue of its ratification in The magistrate in the State v. Kini Uhila v. The Kingdom of Tonga  Supreme court of Tonga. He did not attend a test so the teacher decided to administer corporal punishment. Given the Statutory provisions in Tonga, the Supreme Court held that 10 strokes inflicted upon a nine year old for gross disobedience and wilful misconduct may be excessive abroad but not in Tonga!
However, to hit a child on the thighs with a solid object, as the teacher did, whether deliberate or negligently, is an actionable injury if measurable injury results. It did in this case and the Plaintiff was entitled to an award of damages in his favour. This case was decided in when Tonga had not ratified the CRC but a universal declaration of human rights had been made.
Article 9 of the Declaration stated that: The child shall be protected from all forms of cruelty and exploitation. The words used by the Supreme Court tend to suggest that it was aware of such declaration and it wanted to make the point that it does not apply to Tonga. It could have been influenced by the old public international law of non-enforceability.
Regina v. Rose  High Court of the Solomon Islands. A ten-year-old boy was involved in a disturbance at school assembly so the headmaster, caned him in sight of other children. The magistrate acquitted on the grounds of reasonable punishment.
Corporal Punishment does not constitute either torture or inhuman punishment per se; whether it is degrading is a matter of degree. Reasonable punishment is a possible defence under section 4 of the penal code and at common law. The inflicting of the caning in public rendered it degrading and thereby unreasonable so that the defence of reasonable punishment could not help the accused.
The point of interest in the above decision is that, despite the injuries sustained by the victim from the punishment inflicted, the court only objected to it because it was in public. Can this mean that teachers can inflict any form and amount of punishment as long as it is not done in public? The High Court refused to consider the excessiveness, which amounted to the bruising, admitted in court.
Bruises indicate that the body has rejected the contact and as a consequence has been injured. The infliction of such punishment should amount to physical assault, an actionable case in civil and criminal law. Eventhough the CRC had not been drafted then, the court referred to and applied the European Court of Human Rights test to determine its position on inhuman and degrading treatment.
However, Article 9 of the Universal Declaration of Human Rights stated that: The child shall be protected from all forms of cruelty and exploitation. Bruising may not be inhuman and degrading but is an indication of cruelty in the way the punishment was applied. In the UK, government has placed human rights at the heart of foreign and international development policy .
There are two clear examples of this trend. See Hitchens, Christopher, and David Rieff. In Hong Kong case of Yin v. The Committee has also supported a general prohibition of amnesties for grave human rights violations. Home Secretary "ex parte".
It is making a serious effort to turn the principles of UDHR into reality. It argues that this can only be brought about through a commitment with other governments and NGO communities committed to Human Rights . It adds that these international standards underpin the philosophy and aims of international development assistance programmes. Keeping in line with developmental goals and policies, Pacific Island Courts are aware of human rights.
Some have applied them cautiously whilst some have been reluctant. That some courts have applied them freely to the extent even it is not a signatory to a convention  , shows that Pacific Island States are not only developing economically, politically and socially but legally as well. In this modern age, to ignore human rights would be unjust; something the judicial system can not be seen to be doing.
As in the words of the former Chief Justice of India  :. Should there be a Human Rights Charter for the Pacific? It is common knowledge that the Pacific lacks the inter-governmental structures to protect human rights . It would therefore be proper to use existing groups like the South Pacific Forum or the South Pacific Community to address human rights issues. The advantage of using these groupings in existence is because of their closeness in terms of cultural affinity, a good degree f political understanding, historical involvement, trading relationships, and movement of people of a direct and continuous nature.
The realisation of this possibility is yet to eventuate but is not within the scope of this paper. UNHRCs can be applied and they affect domestic laws in the following ways:. Ratified treaties provide a legitimate guide in interpreting constitutional provisions. In The State v. Where two Constitutional provisions conflict and can not be harmonised, the Court must favour the realisation of fundamental rights. This was illustrated in the Vanuatu case of John Noel v. Obed Toto where the court preferred the Constitutional provisions of Fundamental Rights over Customary law.
Where a statute is capable of two interpretations, the courts will presume that parliament intended to legislate consistently with the UNHRCs . When construing statutes enacted to fulfil a Convention obligation, the courts will assume the Act achieves that end. If the common law is uncertain, unclear or incomplete, the courts will rule where possible, in manner, which conforms to the convention. In the Samoa case of Wagner v. Radke , the court had regard to the principles and the philosophy of the convention in applying common law rules. Where the courts have discretion, they seek to act in a way, which does not violate the Convention.
The case of Molu v. Molu had the Supreme Court of Vanuatu take into account the obligations of ratifying a treaty when exercising its discretion. When courts have to decide what public policy demands, regards will be had to international obligations as a source of guidance. In matters covered by the law of UNHRCs, courts may be bound to give effect to Convention rights where they are recognised as part of the United Nations. Radke applied Convention principles which Samoa was not a signatory. Semi Voliti v. Molu v. When exercising its discretion, the Vanuatu Supreme Court made reference to the CRC when determining the best interest of the child.
Louse Nauka v. Seth Kaurua. The paper also analysed cases that did not use any of the above applications when dealing with children. However, it is found that a majority of the Pacific Island Courts are in line with international legal development. It is important for the Pacific Island to come to terms with the human rights values for its dynamism makes it a potentially powerful tool for the promotion of social justice and the dignity of all people. Hong Kong, 20 - 22 May , p.
This was following the trauma of the Second World War, which saw the widespread of abuses of people, and groups including genocide, mass killing and other forms of violence against humanity. These motivated governments to demand and set standards for the treatment of people by their own governments. Incorporation of conventions into national laws can be done in many different ways.
Some of these ways are:. Pass certain pieces of legislation that cover certain principles of the convention making the legislation n line with the convention provided that it does not conflict with he Constitution. If a country finds that the convention is in line with its current Constitution, it can adopt the whole provision of the Constitution as part of its national legislation. Other countries might find that its legislation is as goo as the convention and find no needed to create new legislation. One of the issues before the court was whether the court should comply with the Hague Convention on the Civil Aspects of International Child Abduction of although Samoa is not a party to that Convention.
In the exercise of his [or her] rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others This has been the case since the French and American revolutions where the idea of freedom came about.
Whilst the United Nations concentrated on the UDHR, there was not much done specifically for the right of the child until when the UN adopted the second declaration on the rights of the child. The declaration contained 10 articles and incorporated the guiding principle of working in the best interest of the child. In all actions concerning children, whether undertaken by public or social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.
Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age. The arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. In the Pacific Islands, it is the Constitution that is the Supreme Law where as in the UK, Parliament is supreme and fundamental rights relegated to residual protection under the common law where parliament has no tread.
During the workshop, the leading Mutch Case was discussed. In the State v. Mark Lawrence Mutch , the High Court of Fiji in passing judgement highlighted Article 19 1 which states: S tate parties shall take all appropriate Definitions Human rights are those rights that every human being possesses and is entitled to enjoy by virtue of being human .
The former Chief Justice of India has stated that  : "Human Rights are as old as human society itself, for they derive from every person's need to realise his [or her] essential humanity. Background Human rights in the modern era can be traced back to the American Revolution and the French Revolution.
The body of human rights law includes any law that can be used to promote or protect human rights and these can be found in either of the following: i. State Constitutions  , ii. Legislation, iii. Treaties or Conventions,  and iv. Charter of the United Nations. The following terms are used frequently and require some basic explanation: Conventions. Ratification or Accession. Country obligations. Countries that have ratified a convention have the obligations to fulfil ratification in the following manner: i Amend national Laws to comply with the standards of the convention  , ii Amend policies to comply with the standards of the convention, iii Take affirmative action .
Implementing a convention. The convention comes into force after 30 days. Government may transform the convention into national law by passing new legislation. Effect on Constitutions  : i.