Introduction to Human Rights Week 3: The sources of Human Rights VII. The importance of international monitoring We won't talk now in detail about the protection mechanisms of Human Rights. This will be discussed later with experts and specialists. Here, the idea is simply to link the concept of international protection to the sources of Human Rights, which are the subject of this week. The aim is to show the important role of these procedures in monitoring respect for Human Rights, as we mentioned many times, and also particularly in Human Rights concretization, in their implementation and sometimes even in their recognition. In other words, the monitoring process for the respect of Human Rights plays a crucial role in the very concept of these rights. Concision is indeed a characteristic feature of Human Rights. Most of the time, Human Rights are proclaimed, enshrined and recognized by simple phrases that only reveal and underline the values and the behaviors to be protected. They give an input to a later stage: their implementation which requires an extremely important process of interpretation and of concretization. Let us take an example of this. The right to life is protected by the International Covenant on Civil and Political Rights, by the American Convention on Human Rights, by the African Charter on Human and Peoples' Rights, and by the European Convention on Human Rights. All these instruments give a fundamental value to the right to life. This is why I think that nobody will contest that the right to life is the input to the respect of all other Human Rights. This is easy to understand. The question is: when does life legally start? When does a being under a gestation period legally acquire the status of human being? And when does life end? In other words, does the right to life bring the duty to live at any cost and in all conditions? Or does this guarantee also include the right not to live? That is to say, the right to put an end to one's life and, if needed, to profit from an active assistance to put an end to one's life. Nobody will deny that these questions are fundamental and crucial. Indeed, the legal status to the right of life allows to determine and to evaluate the conformity of national legislation such as voluntary abortion, the resort to certain forms of therapeutic treatments at the end of life, or even assisted suicide regarding the right to life guaranteed by international human rights law. Human Rights instruments do not aim at giving a categorical and definitive answer to these complex and delicate issues. Thanks to the guarantees that these instruments enshrine, they mark the input of a thought regarding the respect of the most precious values of human dignity. These questions can be discussed upon practical situations and concrete cases. They raise concerns and can lead to answers that can change in time and space. Answers to these type of questions regarding the right to life, its input, its potential limits and the moment when this right stops to express its legal effects come first to national bodies and then to international bodies which are responsible for the respect of Human Rights. This is the point we are making. According to us, the process of interpretation and of concretization of Human Rights represents a task at least as considerable and important as the normative establishment of these rights. In other words, the process of interpretation and of implementation of these guarantees, through the mechanisms that we are going to study later, is inseparable from the sources of Human Rights. This means that the practice of Human Rights, beyond their establishment by the process of recognition through international treaties, is at least as important as their establishment. Let me take another example: the prohibition against torture appears in all the international Human Rights instruments. Article 7 of the International Covenant on Civil and Political Rights mentions, for example, that: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. [...]" Article 3 of the European Court of Human Rights, Article 5 of the American Convention on Human Rights, and article 5 of the African Charter on Human and Peoples' Rights have similar content. Such provision are fundamental and linked to the human existence and to human respect and dignity. The interpretation of these provision can undergo an evolution over time. The case law of the European Court of Human Rights in Strasbourg is quite interesting in this respect. For example, what distinguishes torture from a "simply inhuman treatment" or from a "simply degrading treatment"? Human Rights instruments do not give an answer to this question. It is the European judge, the international judge, who had to specify during a developing case law, that a scale exists in the intensity of suffering and in the infringement of human dignity. First comes degrading treatments. Inhuman treatments are more serious. Finally comes torture. Only casuistry can give an answer to this kind of question. This is when article 3 of the European Court of Human Rights can apply. The Strasbourg Court also highlighted that prohibition against torture is absolute. This law has no restriction or exemptions. There is no deliberation possible in this field. Conflicts of World War II find their establishment here. It taught us that prohibition against torture must be unconditional. The Soering case was the subject of what you had to read for today. In July 1989, the European Court of Human Rights made clear that prohibition against torture has national and international effects because of the principle of non-refoulement which is a principle that acquired the value of binding imperative rule of international law. In other words, according to this perspective, the responsibility of the European State is committed when it gives a person over to non-European authorities, which are not part of the European Convention on Human Rights, knowing that this person incurs a likelihood of violation of the prohibition against torture in the place of destination that was destined to the person. This is what happened in the Soering case. Such a situation can commit the responsibility of the State that extradites, sends back or turns away someone while the State which commits the violation of the right in question is not part of the European Convention on Human Rights. Let us now talk about another very important decision pronounced in 1988 by the Inter-American Court of Human Rights. This is also a text that we asked you to read for today. The Court of San José in Costa Rica made clear that the prohibition against torture has not only to do with the prohibition for an agent of the State to engage in acts of torture. Of course, this is a material part of the prohibition against torture but there is also a procedural part which is integrated into prohibition against torture. In other words, States are not only responsible in case of violation of the right not to be tortured. They also share a procedural responsibility. According to international human rights law, States have to instigate a detailed and effective independent investigation. Considerable resources can be involved in order to identify the people who are responsible for acts of torture if the allegation of such a treatment is presented in a defensible manner. The aim is to identify and to punish those who committed this violation. These points could be made thanks to international monitoring procedures which aim at giving effect to the guarantees represented in the international Human Rights instruments. In other words, the case law derived from these International Courts of Justice or the practice of the bodies responsible for the respect of Human Rights even when they only have a judicial function, represent a source of protection of Human Rights which allows not only to reveal the content of these conventional guarantees but also to interpret them and even to complete their protection by fitting them with the needs of contemporary life. Case law, casuistry or international practice in terms of Human Rights thus represent a derived but indisputable source aiming at completing and at reinforcing Human Rights' legal effects.
