Are any human rights absolute?

There are certain human rights which can be said to be unchangeable in their nature. These ‘absolute’ rights cannot be suspended for any reason and there is no justification for limiting them.

Absolute rights have two key features. They are both:

-Non-Derogable: No external limitations

-Unqualified: No internal limitations

Thus meaning that no proportionality test need be applied when examining ‘absolute rights’.

 These rights are; Freedom from torture, Freedom from Slavery

There are certain human rights which are considered to be non derogable human rights and are often considered similar ‘absolute rights’. However, it is important to know that non-derogable can be either absolute or non-absolute, meaning that while they cannot be suspended, even in cases of emergency, certain non-absolute rights can be limited in their application. They include rights like the right to life, which we see limited in death penalty sentencing.

When can we say that a human right is violated?

When a person perceived that the right has been violated and can prove that the violating act was not proportionate and in violation of the right. As certain rights are derogable, it is necessary to understand the full context in which the right was violated.

Is it possible to speak of a truly American human rights protection system?

The applicable standards in the Inter-American system consist of the originally non-binding American Declaration on the Rights and Duties of Man (1948) and the American Convention on Human Rights (1969). The relationship between the two is comparable in some ways to that between the UDHR and the two International Covenants, institutional structure and normative provisions superficially are similar.  But they are distinctive in many ways. Conditions under which the two systems developed were radically different. For example, within the Council of Europe, military and other authoritarian governments have been rare and short-lived, while in Latin America they were close to be the norm until the 1980s. The issues American system has been forced to address also are often quite different and graver from those that have preoccupied the ECtHR, for example: Disappearances, killings, torture, arbitrary detentions, the death penalty, amnesty laws and related issues have been on the agenda of the Commission since 1970s and of the Court since the 1980s.

In terms of functions, the Inter-American Court’s advisory jurisdiction is much broader than that of the ECtHR. Similarly, in its contentious jurisdiction the former is authorized to interpret not only the American Convention but also other human rights treaties ratified by OAS (Organization of American States) member states. Another important difference it that the Inter-American Court no longer permits a state against whom a case is brought to have its own national or an ad hoc sitting in the case.

Among the significant contributions made by the Inter-American Court to human rights jurisprudence in general have been its defense of the rights of indigenous peoples and its emphasis on the provision of extensive and carefully tailored reparations by states found to have violated their human rights obligations.

Over the years also Inter-American Commission has evolved significantly in terms of its techniques. Significant success was with in-loco visits to countries experiencing human rights problems. Its reports on Argentina of the problem of disappearances (1978) remains a classic in terms of effective fact finding and follow-up

How does the African Charter for Human and People’s Rights differ from other major human rights instruments?

ACHPR was one of the first instrument, instead of drafting separate documents, combined and included all together in one charter jus cogens, civil and political, social, economic and cultural rights and reaffirmed in the preamble that all human rights are interdependent and some (namely social, economic and cultural) rights cannot be treated as secondary rights.

Another notable difference, from other major universal human rights instruments or regionals, is the existence of separate chapter directed toward the duties of individuals with the regards to the rights of others, collective security, morality and the common interest. In the Charter, most interesting are duties toward the one’s “family and society, the State and other legally recognized communities.” ACHPR is the first human rights treaty which gave the considerable attention to individuals’ duties. The existence of mentioned chapter may be caused by the traditions and culture of African States, communities or peoples. But, also many of duties listed in Charter are standard obligations that any modern state places on its citizens. Same time, Charter receives most criticism to be more group-oriented, than toward the individual.

In contrast to other human rights instruments, ACHPR making very strong accent not only of the rights of an individual but on the “rights of peoples,” which can be explained from the perspective of historical circumstances. Historically, African people and African wealth were exploited and monopolized by the different foreign powers, therefore ACHPR stressed in several articles about the people's right to free themselves from colonization (Art. 20), dispose its own natural resources without deprivation (Art.21), national and international peace and security (Art. 23), “general satisfactory environment favorable to their development (Art. 24). Rights listed above, people's right or collective rights are called “third-generation” human rights.

In contrast to ICCPR or other international instruments, according to the African charter states are not permitted to derogate from the Articles of the Charter in situations of national emergencies

Is the reporting system for overseeing the implementation of human rights efficient? Why?

The treaty bodies face a number of practical impediments in monitoring states parties' reports. In particular:

Many states parties have fallen significantly behind in the submission of reports. A significant number of states parties have never submitted their initial reports.

The treaty bodies do not have adequate resources to keep up with the burden of considering states parties' reports, and consequently there are considerable delays, sometimes of several years, between receipt of a report by a treaty body and the formal consideration of the report. This phenomenon is decreasing, however, as treaty bodies have adopted rules permitting states to expunge their whole record of overdue reports with the submission of a single report. It remains to be seen whether this approach will have the ultimate effect of encouraging or discouraging the submission of state reports at regular intervals (as required by the treaties).

When states have failed to produce a report for many years, some of the treaty bodies will now examine the country situation in the absence of a report. This process entails additional difficulties, concerning information-gathering and the ability of the process to encourage reform at the domestic level without the engagement of the state party.

Why do some groups require special human rights? Does this mean that they have more rights than others?

In the field of human rights, growing attention has been devoted to the rights of persons belonging to specific groups, often called "vulnerable groups". People belonging to these groups have certain common characteristics or are in a situation that have been shown to make these people more vulnerable to discrimination. They are especially "vulnerable", because these grounds for discrimination have been overlooked or insufficiently addressed in general human rights instruments. New instruments are therefore needed to protect and promote the rights of these people, focusing on specific characteristics and situations, such as age, gender, social situation etc. These groups include indigenous peoples, ethnic minorities, refugees, migrant workers, women, children, people with HIV/AIDS, persons with disabilities and older persons.

 some groups, such as the Roma in Europe, have suffered such long-term discrimination that they need special measures to enable them to access general human rights standards on an equal basis with others. Years of institutionalized discrimination and stereotypes, and outright hatred and obstacles, mean that just announcing generally applicable rights to them, and expecting that this is enough to ensure equality, would be absurd.

the doctrine of margin of appreciation entail

The doctrine allows the Court to reconcile practical differences in implementing the articles of the Convention. Such differences create a limited right, for Contracting Parties, "to derogate from the obligations laid down in the Convention". The doctrine also reinforces the role of the European Convention, as a supervisory framework for human rights. In applying this discretion, European Court judges must take into account differences between domestic laws of the Contracting States as they relate to substance and procedure. The margin of appreciation doctrine contains concepts that are analogous to the principle of subsidiarity, which occurs in the unrelated field of European Union law. The purpose of the margin of appreciation is to balance individual rights with national interests, as well as resolve any potential conflicts.

The doctrine of the “margin of appreciation" plays a fundamental role in the smooth functioning of the organs and institutions of Contracting States and Strasbourg. Given that Contracting States possess different legal and cultural traditions, it is inevitable that States shall occasionally view the application of their EHCR obligations differently. These differences have the potential to result in confrontations between the Strasbourg Court and a Contracting State. Whilst that is the case, the Strasbourg Court is not only obliged to interpret the ECHR, but is also obliged to respect the sovereignty of a Contracting State. The doctrine of the “margin of appreciation" provides the Strasbourg Court with the means by which to permit national authorities to enjoy the freedom to apply the Convention in accordance with their own unique legal and cultural traditions without flouting the ultimate objective and purpose of the Convention.