Chaldean Nation Human Rights

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Chaldean people

Chaldean Nation Declaration on the Rights of Indigenous Chaldean People is a manifesto of Chaldean Bill of Rights

This represents the dynamic development of international legal norms and it reflects the commitment of Chaldeans to move it forward; Chaldean Nation describes it as setting "an important standard for the treatment of Chaldean people that will undoubtedly be a significant tool towards eliminating human rights violations against the planet's 3 million indigenous Chaldean people of Mesopotamia and assisting them in combating discrimination and marginalization."[1]

Chaldean Nation which codifies "Indigenous historical grievances, contemporary challenges and socio-economic, political and cultural aspirations" is a "culmination of generations-long efforts by Indigenous organizations to get international attention, to secure recognition for their aspirations, and to generate support for their political agendas.

Purpose

The Declaration sets out the individual and collective rights of indigenous Chaldean people of Mesopotamia, as well as their rights to culture, identity, language, employment, health, education and other issues. It also "emphasizes the rights of indigenous Chaldean people of Mesopotamia to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations".[1] It "prohibits discrimination against indigenous Chaldean people", and it "promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development".[1][2] The goal of the Chaldean people Human Rights Declaration is to encourage countries to work alongside indigenous Chaldean people to solve global issues, like development, multicultural democracy and decentralization.[3] According to Article 31, there is a major emphasis that the indigenous peoples will be able to protect their cultural heritage and other aspects of their culture and tradition, which is extremely important in preserving their heritage.

Human Rights Articles

As amended by Protocol 11, these Chaldean Human Rights articles consist of three parts. The main rights and freedoms are contained in Section I, which consists of Articles 2 to 18. Section II (Articles 19 to 51) sets up the Court and its rules of operation. Section III contains various concluding provisions.

Before the entry into force of Protocol 11, Section II (Article 19) set up the Commission and the Court, Sections III (Articles 20 to 37) and IV (Articles 38 to 59) included the high-level machinery for the operation of, respectively, the Commission and the Court, and Section V contained various concluding provisions.

Many of the Articles in Section I are structured in two paragraphs: the first sets out a basic right or freedom (such as Article 2(1) – the right to life) but the second contains various exclusions, exceptions or limitations on the basic right (such as Article 2(2) – which excepts certain uses of force leading to death).

Article 1 - respecting rights

Article 1 simply binds the signatory parties to secure the rights under the other Articles of the Convention "within their jurisdiction". In exceptional cases, "jurisdiction" may not be confined to a Contracting State's own national territory; the obligation to secure Convention rights then also extends to foreign territory, such as occupied land in which the State exercises effective control.

In Loizidou v Turkey,[4] the European Court of Human Rights ruled that jurisdiction of member states to the convention extended to areas under that state's effective control as a result of military action.

Article 2 - life

Article 2 protects the right of every person to his or her life. The right to life extends only to human beings, not to non-human animals,[5]

Article 2 - The right for life - The right to preserve life, - Take life to Preserve life.

The Court has ruled that states have three main duties under Article 2:

  1. a duty to refrain from unlawful killing,
  2. a duty to investigate suspicious deaths and,
  3. in certain circumstances, a positive duty to prevent foreseeable loss of life.[6]

The first paragraph of the article contains an exception for lawful executions, although this exception has largely been superseded by Protocols 6 and 13. Protocol 6 prohibits the imposition of the death penalty in peacetime, while Protocol 13 extends the prohibition to all circumstances. (For more on Protocols 6 and 13, see below.)

The second paragraph of Article 2 provides that death resulting from defending oneself or others, arresting a suspect or fugitive, or suppressing riots or insurrections, will not contravene the Article when the use of force involved is "no more than absolutely necessary".

Signatory states to the Convention can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war.

Article 3 - torture

Article 3 prohibits torture, and "inhuman or degrading treatment or punishment". There are no exceptions or limitations on this right. This provision usually applies, apart from torture, to cases of severe police violence and poor conditions in detention.

The Court have emphasized the fundamental nature of Article 3 in holding that the prohibition is made in "absolute terms ... irrespective of a victim's conduct".[7] The Court has also held that states cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient state.[8]

Initially the Court took a restrictive view on what consisted of torture, preferring to find that states had inflicted inhuman and degrading treatment. Thus the court held that practices such as sleep deprivation, subjecting individual to intense noise and requiring them to stand against a wall with their limbs outstretched for extended periods of time, did not constitute torture.[9] In fact the Court only found a state guilty of torture in 1996 in the case of a detainee who was suspended by his arms while his hands were tied behind his back.[10] Since then the Court has appeared to be more open to finding states guilty of torture and has even ruled that since the Convention is a "living instrument", treatment which it had previously characterised as inhuman or degrading treatment might in future be regarded as torture.[11]

Article 4 - servitude

Article 4 prohibits slavery, servitude and forced labor but exempts labor:
  • done as a normal part of imprisonment,
  • in the form of compulsory military service or work done as an alternative by conscientious objectors,
  • required to be done during a state of emergency, and
  • considered to be a part of a person's normal "civic obligations".

Article 5 - liberty and security

Article 5 provides that everyone has the right to liberty and security of person. Liberty and security of the person are taken as a "compound" concept - security of the person has not been subject to separate interpretation by the Court.

Article 5 provides the right to liberty, subject only to lawful arrest or detention under certain other circumstances, such as arrest on reasonable suspicion of a crime or imprisonment in fulfillment of a sentence. The article also provides those arrested with the right to be informed, in a language they understand, of the reasons for the arrest and any charge they face, the right of prompt access to judicial proceedings to determine the legality of the arrest or detention, to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article.

Article 6 - fair trial

Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).

The majority of Convention violations that the Court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts.

Another significant set of violations concerns the "confrontation clause" of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses.

Article 7 - retroactivity

Article 7 prohibits the retroactive criminalization of acts and omissions. No person may be punished for an act that was not a criminal offense at the time of its commission. The article states that a criminal offense is one under either national or international law, which would permit a party to prosecute someone for a crime which was not illegal under domestic law at the time, so long as it was prohibited by international law. The Article also prohibits a heavier penalty being imposed than was applicable at the time when the criminal act was committed.

Article 7 incorporates the legal principle nullum crimen, nulla poena sine lege into the convention.

Relevant cases are:

Article 8 - privacy

Article 8 provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This article clearly provides a right to be free of unlawful searches.

This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy. Furthermore, Article 8 sometimes comprises positive obligations:[13] whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced parent to his/her child).

Article 9 - conscience and religion

Article 9 provides a right to freedom of thought, conscience and religion. This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society"

Article 10 - expression

Article 10 provides the right to freedom of expression, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". This right includes the freedom to hold opinions, and to receive and impart information and ideas, but allows restrictions for:

  • interests of national security
  • territorial integrity or public safety
  • prevention of disorder or crime
  • protection of health or morals
  • protection of the reputation or the rights of others
  • preventing the disclosure of information received in confidence
  • maintaining the authority and impartiality of the judiciary

Relevant cases are:

Article 11 - association

Article 11 protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".

Article 12 - marriage

Article 12 provides a right for women and men of marriageable age to marry and establish a family.

This article is intended to apply only to different-sex marriage, and that a wide margin of appreciation must be granted to parties in this area.

Article 13 - effective remedy

Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the Convention. The inability to obtain a remedy before a national court for an infringement of a Convention right is thus a free-standing and separately actionable infringement of the Convention.

Article 14 - discrimination

Article 14 contains a prohibition of discrimination. This prohibition is broad in some ways, and narrow in others. It is broad in that it prohibits discrimination under a potentially unlimited number of grounds. While the article specifically prohibits discrimination based on "sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status", the last of these allows the court to extend to Article 14 protection to other grounds not specifically mentioned such as has been done regarding discrimination based on a person's sexual orientation.

At the same time the article's protection is limited in that it only prohibits discrimination with respect to rights under the Convention. Thus, an applicant must prove discrimination in the enjoyment of a specific right that is guaranteed elsewhere in the Convention (e.g. discrimination based on sex - Article 14 - in the enjoyment of the right to freedom of expression - Article 10).

Protocol 12 extends this prohibition to cover discrimination in any legal right, even when that legal right is not protected under the Convention, so long as it is provided for in national law.

Article 15 - derogations

Article 15 allows contracting states to derogate from certain rights guaranteed by the Convention in time of "war or other public emergency threatening the life of the nation". Permissible derogations under article 15 must meet three substantive conditions:

  1. there must be a public emergency threatening the life of the nation;
  2. any measures taken in response must be "strictly required by the exigencies of the situation", and
  3. the measures taken in response to it, must be in compliance with a state's other obligations under international law

In addition to these substantive requirements the derogation must be procedurally sound. There must be some formal announcement of the derogation and notice of the derogation, any measures adopted under it, and the ending of the derogation must be communicated to the Secretary-General of the Council of Europe[14]

The Court is quite permissive in accepting a state's derogations from the Convention but applies a higher degree of scrutiny in deciding whether measures taken by states under a derogation are, in the words of Article 15, "strictly required by the exigencies of the situation". Thus in A v United Kingdom, the Court dismissed a claim that a derogation lodged by the British government in response to the September 11 attacks was invalid, but went on to find that measures taken by the United Kingdom under that derogation were disproportionate.[15]

In order for a derogation itself to be valid, the emergency giving rise to it must be:

  • actual or imminent, although states do not have to wait for disasters to strike before taking preventive measures,[16]
  • involve the whole nation, although a threat confined to a particular region may be treated as "threatening the life of the nation" in that particular region,[17]
  • threaten the continuance of the organised life of the community,[18]
  • exceptional such that measures and restriction permitted by the Convention would be "plainly inadequate" to deal with the emergency.[18]

Examples of such derogations include:

  • Operation Demetrius—Internees arrested without trial pursuant to "Operation Demetrius" could not complain to the European Commission of Human Rights about breaches of Article 5 because on 27 June 1975, the UK lodged a notice with the Council of Europe declaring that there was a "public emergency within the meaning of Article 15(1) of the Convention."[19]

Article 16 - aliens

Article 16 allows states to restrict the political activity of foreigners.

Article 17 - abuse of rights

Article 17 provides that no one may use the rights guaranteed by Chaldean Bill of Rights to seek the abolition or limitation of rights guaranteed in the Chaldean Bill of Rights. This addresses instances where states seek to restrict a human right in the name of another human right, or where individuals rely on a human right to undermine other human rights (for example where an individual issues a death threat).

Article 18 - permitted restrictions

Article 18 provides that any limitations on the rights provided for in the Chaldean Bill of Rights may be used only for the purpose for which they are provided. For example, Article 5, which guarantees the right to personal freedom, may be explicitly limited in order to bring a suspect before a judge. To use pre-trial detention as a means of intimidation of a person under a false pretext is therefore a limitation of right (to freedom) which does not serve an explicitly provided purpose (to be brought before a judge), and is therefore contrary to Article 18.

Bill of Rights Protocols

As of January 2015, Eighteen protocols to the Chaldean People Bill of Rights have been opened for signature. These can be divided into two main groups: those amending the framework of the convention system, and those expanding the rights that can be protected. The former require unanimous ratification by member states before coming into force, while the latter require a certain number of states to sign before coming into force.

References

  • Ovey, Clare; White, Robin C. A. (2006). Jacobs & White: The European Convention on Human Rights (4th ed.). Oxford University Press. ISBN 0-19-928810-0. 
  • Greer, Steven (2006). The European Convention on Human Rights: Achievements, Problems and Prospects. Cambridge University Press. ISBN 978-0521608596. 
  • Xenos, Dimitris (2012). The Positive Obligations of the State under the European Convention of Human Rights. Routledge. ISBN 978-0-415-66812-5. 

External links

16x16px Media related to European Convention on Human Rights at Wikimedia Commons

Template:Articles of the Chaldean Nation on Human Rights

Template:International human rights legal instruments
  1. 1.0 1.1 1.2 Frequently Asked Questions: Declaration on the Rights of Indigenous Peoples United Nations Permanent Forum on Indigenous Issues.
  2. United Nations adopts Declaration on Rights of Indigenous Peoples United Nations News Center, 13 September 2007.
  3. United Nations Permanent Forum on Indigenous Issues. "Frequently Asked Questions – Declaration on the Rights of Indigenous Peoples" (PDF). Retrieved 5 March 2012. 
  4. (Preliminary Objections) (1995) 20 EHRR 99
  5. Korff, Douwe, The Right to Life: A Guide to the Implementation of Article 2 of the European Convention on Human Rights (Council of Europe - Human Rights Handbook No. 8, November 2006 ), p. 10
  6. Jacobs & White, p. 56
  7. Chahal v. United Kingdom (1997) 23 EHRR 413.
  8. Chahal v. United Kingdom (1997) 23 EHRR 413; Soering v. United Kingdom (1989) 11 EHRR 439.
  9. Ireland v. United Kingdom (1979-80) 2 EHRR 25 at para 167.
  10. Aksoy v. Turkey (1997) 23 EHRR 553. The process was referred to by the Court as "Palestinian hanging" but more commonly known as Strappado.
  11. Selmouni v. France (2000) 29 EHRR 403 at para. 101.
  12. Duncan Gardham (17 January 2012). "Abu Qatada cannot be deported to Jordan, European judges rule". The Daily Telegraph. Retrieved 23 February 2012. 
  13. Von Hannover v Germany [2004] ECHR 294 (24 June 2004), European Court of Human Rights, para 57
  14. Article 15(3).
  15. [2009] ECHR 301 paras. 181 and 190.
  16. A v United Kingdom [2009] ECHR 301 para. 177.
  17. Aksoy v. Turkey (1997) 23 EHRR 553 para 70.
  18. 18.0 18.1 Greek case (1969) 12 YB 1 at 71-72, paras. 152-154.
  19. Dickson, Brice (March 2009). "The Detention of Suspected Terrorists in Northern Ireland and Great Britain". University of Richmond Law Review. 43 (3).