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IHR LEGAL Newsletter

IHR LEGAL Newsletter

October – December 2021

News concerning the universal and regional systems for the promotion and protection of human rights from October to December 2021

I. UNIVERSAL HUMAN RIGHTS SYSTEM

1. Office of the United Nations High Commissioner for Human Rights (OHCHR)

The OHCHR is the leading human rights entity of the United Nations. Its functions include promoting and protecting all human rights, helping to empower people, and developing a human rights perspective into all United Nations programs. The current United Nations High Commissioner for Human Rights is Mrs. Michelle Bachelet.

News concerning the OHCHR:

– On November 23, 2021, the OHCHR urged the Government of Nepal to pursue a truly comprehensive and transparent transitional justice process. In this respect, 15 years ago, the Comprehensive Peace Agreement (CPA) put an end to a bitter 10-year conflict in Nepal that left over 13,000 people dead, mainly civilians. During the conflict, gross human rights violations were committed by Maoist guerrillas and the Government, including extrajudicial killings, torture, sexual violence and enforced disappearances. Since then, Nepal has remained at peace, promulgated a new Constitution in 2015, and is transitioning into a federal government structure. However, the OHCHR expressed its concern about the lack of tangible progress on transitional justice, which was a key commitment in the CPA.

Successive governments have committed to advancing the transitional justice process through an open, consultative, and victim-centered approach. But, according to the OHCHR, these commitments have not been fulfilled. Concretely, there has been no progress to amend the transitional justice legal framework in accordance with Nepal’s obligations under international law and the principles established by the judgments of the Supreme Court of Nepal in 2014 and 2015. Thus, the OHCHR urged the Government of Nepal to conduct a truly fair, comprehensive, and transparent transitional justice process that is capable of gaining the trust of key stakeholders and ensuring accountability for serious violations, as well as truth, justice, and reparation for victims. It further stated that such a process would help to prevent the recurrence of the violations and abuses that afflicted the country during the decade-long conflict and set the basis for lasting peace in Nepal. The press release can be found here.

– On December 17, 2021, the OHCHR issued a press release expressing concern about the harsh sentencing of human rights defenders in Vietnam. The situation refers to the fact that in the span of three days, four prominent human rights defenders —Trinh Ba Phuong, Nguyen Thi Tam, Do Nam Trung, and Pham Doan Trang— were sentenced to up to 10 years in jail and 5 years on probation, all after prolonged pre-trial detention.

The OHCHR noted that such cases follow similar worrying patterns that raise serious questions concerning the presumption of innocence, the legality of their detention, and the fairness of the trial. Furthermore, the cases were characterized by prolonged incommunicado pre-trial detention, prosecution under the vaguely worded offense of “spreading anti-State propaganda”, denial of access to legal counsel, and closed trials that did not respect international fair trial standards. Thus, the OHCHR believes that the prosecution of these individuals may be part of a strategy to silence and intimidate those who speak out in defense of human rights.

The OHCHR urged the Vietnamese authorities to immediately release all these individuals as well as the many others who have been arbitrarily detained for exercising their rights to freedom of opinion and expression. It also called the Government to repeal all legal provisions that violate fundamental freedoms. The press release can be found here.

2. Human Rights Committee (HRC)

The HRC is the United Nations body of independent experts that monitors the implementation of the International Covenant on Civil and Political Rights by its States parties.

News concerning the HRC:

– On October 26, 2021, the HRC concluded its review of the eighth periodic report of Ukraine on measures adopted to implement the International Covenant on Civil and Political Rights. A Committee expert recognized the current limitations on Ukraine’s ability to fully implement the Covenant in territories controlled by the self-proclaimed “People’s Republic of Donetsk” and “People’s Republic of Luhansk”, the Autonomous Republic of Crimea and the city of Sevastopol temporarily occupied by the Russian Federation. However, the HRC remember that this situation does not exempt Ukraine from its positive obligations to protect individuals in those territories, irrespective of whether they are Ukrainian citizens or not.

Valeriia Kolomiiets, Deputy Minister of Justice of Ukraine for European Integration and head of the delegation, affirmed that public authorities in Ukraine continue to take measures aimed at strengthening human rights protection mechanisms in the country. Furthermore, she stated that the Russian Federation is still violating human rights in the temporarily occupied territories of Ukraine. She also indicated that the activity of independent media in such territories was practically stopped, and persecution on national and religious grounds was carried out systematically. Similarly, the possibility of obtaining education in the Ukrainian and Crimean Tatar languages was eliminated, and the mass issuance of Russian passports to Ukrainian citizens was imposed. The press release can be found here.

– On November 11, 2021, the HRC, in the context of its 133rd session, issued its findings on Germany, Ukraine, Armenia, and Botswana. The findings contain positive aspects of each country’s implementation of the International Covenant on Civil and Political Rights, as well as the Committee’s main human rights concerns and recommendations.

Regarding Germany, the HRC was concerned about the extensive surveillance power of the authorities, including online surveillance, and the hacking of encrypted communications data during criminal investigations. Therefore, it recommended that the State party ensures that all types of surveillance are in full compliance with the Covenant; and that surveillance is subject to effective and independent oversight mechanisms. The HRC, while acknowledging the adoption of a Climate Change Act and a Climate Action Plan, questioned the lack of specific information on preventive measures taken to avoid the negative impacts of climate change and called for the adoption of a precautionary approach to prevent climate catastrophes.

In respect to Armenia, the Committee’s experts expressed concern about undue legal restrictions on the freedom of peaceful assembly, unjustifiable police interference in peaceful demonstrations as well as arbitrary and prolonged detention of demonstrators. They recommended that Armenia reduces police presence at demonstrations and investigates all allegations of excessive use of force and arbitrary detention by State agents during protests. They also called on Armenia to ensure that domestic laws on the use of force are in full compliance with the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the Guidance on the Use of Less-Lethal Weapons in Law Enforcement. The findings can be found here and the press release here.

3. Committee Against Torture (CAT)

The CAT is the United Nations body of independent experts that monitors the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by its State parties

News concerning the CAT:

– On November 17, 2021, the CAT concluded its initial dialogue with Nigeria about its fight against terrorism and the conditions of detention. A Committee expert noted that Nigeria is facing one of the worst humanitarian crises in Africa due to the security threats and threats of violent extremism by the Islamist group “Boko Haram”. Several reports accuse the Nigerian army of having used torture in its efforts to eradicate the terrorist group. Thus, security operations against “Boko Haram”, instead of contributing to eradicate terrorism, have led to acts of violence, torture, and extrajudicial executions. As for conditions of detention, a Committee expert stated that generally prison conditions were difficult, with overcrowding, inadequate medical care, and food and water shortage, which had resulted in deaths.

Finally, the HRC thanked the Nigerian delegation for its attendance to the meeting and declared that, in the absence of a report, the Committee will choose the issues of greatest concern regarding the human rights situation in Nigeria, on which the State should report on in one year. The press release can be found here.

4. Committee on the Rights of the Child (CRC)

The CRC is the United Nations body of independent experts that monitors the implementation of the Convention on the Rights of Child by its State parties.

News concerning the CRC:

– On November 25, 2021, the CRC urged to stop the execution of juvenile offenders in Iran. The CRC condemned that more than 85 people are currently on death row in Iran for alleged acts committed when they were still minors and following criminal proceedings that significantly violated international human rights law. The majority of those sentenced to death are from marginalized groups or are individuals who have been victims of abuse. This plea followed the execution of Arman Abdolali on 24 November 2021, convicted for an alleged murder committed when he was 17 years old. The press release can be found here.

II. AFRICAN HUMAN RIGHTS SYSTEM

1. African Commission on Human and People’s Rights (ACHPR)

The ACHPR is a quasi-jurisdictional body, within the framework of the African Union, whose main function is to protect and promote human and peoples’ rights in African countries. Its functions include processing complaints from individuals or States about human rights violations committed by States in the region, and receiving periodic reports from States on the human rights situation in their country.

News concerning the ACHPR:

– On October 27, 2021, the ACHPR issued a press release expressing its deep concern regarding the events following the coup d’état that took place on October 25, 2021, in the Republic of Sudan. In this regard, the ACHPR was informed that the demonstrations against the coup were marred by violence. Specifically, some members of the army fired live ammunition at the demonstrators, killing at least 7 people and injuring more than 140 others. The ACHPR noted that such acts are undeniably serious and contrary to Sudan’s international obligations. Thus, the perpetrators must be held responsible in accordance with the applicable standards. The HRC also recalled that the victims must receive adequate reparation. The press release (in French) can be found here.

2. African Court on Human and Peoples´ Rights (ACtHPR)

The ACtHPR, which is also an institution of the African Union, resolves contentious cases of human rights violations, orders provisional measures, and presents its expert opinion on human rights issues.

News concerning the ACtHPR:

– On November 2, 2021, the ACtHPR commended the Republic of Guinea Bissau regarding its ratification of the Protocol establishing the African Court on Human and Peoples’ Rights, and the simultaneous deposition of a declaration recognizing its contentious jurisdiction. Specifically, the State deposited a declaration under Article 34(6) of the Protocol to allow individuals and non-governmental organizations to bring cases before the ACtHPR. The ratification and the declaration were officially handed over on November 3, 2021, by its representative, Mr. Alamara Quessangue, to a representative of the Office of the Legal Counsel of the African Union Commission, Ms. Tsion Bhergano, during the Conference on the Implementation and Impact of Decisions of the African Court on Human and Peoples’ Rights. The press release can be found here.

III. EUROPEAN HUMAN RIGHTS SYSTEM

1. European Court of Human Rights (ECtHR)

The ECtHR is a judicial body of the Council of Europe whose main function is to monitor the compliance of States parties with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The ECtHR is responsible for analyzing complaints from individuals, groups of individuals, or States for human rights violations committed by States that have accepted the ECtHR’s jurisdiction.

News concerning the ECtHR:

– On December 16, 2021, the ECtHR condemned Georgia for a homophobic and transphobic assault by a gang against LGBT demonstrators. The case “Women’s Initiatives Supporting Group and Other v. Georgia” concerns an attack by a gang against LGBT demonstrators on the International Day Against Homophobia, in 2013, in the city of Tbilisi. The ECtHR found that the authorities had failed to protect peaceful demonstrators from homophobic and transphobic aggression, despite being aware of such a risk. Furthermore, it referred to the evidence of State acquiescence in the acts of violence and underlying prejudice. In addition, the Tribunal found the State responsible for the failure to carry out an adequate investigation and sanction those responsible. The judgment can be found here.

IV. INTER-AMERICAN HUMAN RIGHTS SYSTEM

1. Inter-American Commission on Human Rights (IACHR)

The IACHR is the autonomous body of the Organization of American States (OAS) responsible for the promotion and protection of human rights in the Americas. One of its duties is to receive and review complaints from individuals for human rights violations and to monitor human rights situations.

News concerning the IACHR:

– On October 25, 2021, the IACHR and the Office of the Special Rapporteur on Economic, Social, Cultural, and Environmental Rights (REDESCA) expressed their concern over the lack of universal and equitable access to COVID-19 vaccines in the Americas, calling for regional solidarity with low- and middle-income countries. The IACHR and the REDESCA note that, of the global deaths from COVID-19, the region accounts for approximately 30%, although it represents only 8.4% of the population. They also observed a significant disparity at the regional level, where, as of July 2021, while in some North American countries the proportion of the population with complete vaccination scheme was approximately 49.3%, in Latin America and the Caribbean the rate was 16.8%, with some countries not even reaching 1% of inoculation.

This situation, according to the IACHR, has the potential to prolong the global and regional health emergency, stemming not only from the presence of dangerous variants with greater viral load and transmission capacity but also due to unequal access to vaccines between and within countries.

Thus, the IACHR and the REDESCA called on States to: (i) implement national plans that ensure equitable and universal access to vaccines without discrimination; (ii) guarantee, under differentiated, intersectional and intercultural approaches, the active dissemination of adequate and sufficient information on vaccines; and (iii) address public skepticism toward vaccines by implementing concrete actions to strengthen security in public health institutions and scientific-based knowledge about the safety of vaccines. The press release can be found here.  

– On December 1, 2021, the IACHR issued a follow-up resolution on the precautionary measures in favor of protected groups of the Wayúu indigenous people in La Guajira (Colombia). This resolution was issued after a public hearing convened by the IACHR, in which the applicants for the measures —the indigenous leader Javier Rojas, the lawyer Carolina Sáchica, and the Executive Director of IHR Legal, Ignacio Álvarez— denounced that, despite the existence of the precautionary measures, children, adolescents, pregnant and breastfeeding women, as well as older persons of the Shipia Wayúu community, continue to die from malnutrition and live in extreme conditions, without access to water, food or health services.

In this scenario, the IACHR (i) asked the State to adopt necessary measures to effectively protect the lives, personal integrity, and health of the beneficiaries of these precautionary measures; (ii) asked the parties to create platforms for internal agreement and coordination to implement the precautionary measures; and (iii) expressed its willingness to conduct an on-site visit to Colombia. The press release can be found here and the follow-up resolution (in Spanish) here. 

– On December 9, 2021, the IACHR welcomed the recognition of same-sex marriage in Chile following the enactment of the law recognizing and granting protection to diverse families. The measure reflects the commitments of the State of Chile in the context of the friendly settlement agreement in Petition 946-12 (“César Antonio Peralta Wetzel et al. v. Chile”), filed before the IACHR to address the lack of access and recognition of same-sex marriage. Beyond recognizing same-sex marriage, this new piece of legislation strengthens judicial protection for diverse families, among others by providing safeguards for equality and non-discrimination in the field of parentage and care. In addition, the IACHR called on States to promote laws and public policies that recognize and protect the human rights of LGBTI people in light of their rights to equality and non-discrimination, in efforts to build more inclusive and egalitarian societies that are free from all forms of violence, discrimination, and prejudice. The press release can be found here.

2. Inter-American Court of Human Rights (IACtHR)

The IACtHR is a regional human rights court responsible for applying and interpreting the American Convention on Human Rights and other human rights instruments in the region. Its main function is to decide cases on human rights violations committed by States that have accepted its jurisdiction.

News concerning the IACtHR:

– On October 14, 2021, the IACtHR ruled and endorsed the friendly settlement agreement in the case “Lemoth Morris et al. v. Honduras”. The case relates to several human rights violations to the detriment of 42 persons belonging to the Miskito Indigenous People. The victims in the case worked for diving fishing companies. As a result of its activities, 34 divers suffered accidents due to deep dives that caused them decompression sickness and other diving-related ailments. Twelve divers died after those accidents and another seven died after the boat in which they were traveling caught fire, due to the explosion of a butane tank. In addition, a 16-year-old boy was abandoned by the boat owner and his whereabouts are unknown.

The IACtHR concluded that the State is responsible for the violation of the rights to life, to personal integrity, to judicial guarantees, to the rights of the child, to equal protection before the law, to judicial protection, to work in just, equitable and satisfactory conditions that ensure the safety, health, and hygiene of the worker, and to health and social security, established in articles 4.1, 5.1, 8.1, 19, 24, 25.1 and 26 of the American Convention on Human Rights.

Under the friendly settlement agreement signed between the parties, the IACHR Court approved the various measures of reparation agreed on. Among other measures, the State must provide comprehensive medical and psychological care for victims and their families. The judgment can be found here.

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