Comparisons and assessments of the two mechanisms, factual reference to vietnam

ACKNOWLEDGEMENTS Upholding a graduation thesis is the dream and also the target which every final year student has strived for during years at the university I myself find lucky and honorable to be one of the 15 students in the list for graduation thesis of the International Law Faculty Just only one month and a half for searching and working on the thesis is quite a hard time for me but I am now happy enough with what I’ve done From the bottom of my heart, I would like to express my sincere gratitude to those who gave me supports and encouragement to complete this thesis First, I am deeply indebted to my supervisor Mr Dang Tran Nam Trung and my Professor Doan Dung who helped me a lot with valuable suggestions, precise guidance and useful materials I am very lucky to be under the supervision of such enthusiastic and devoted people The second thank I want to give to all Professors in the International Law Faculty_ Diplomatic Academy of Vietnam You have inspired my interest in International Law and made me strongly believe in the choice for law major I also would like to give special thanks to my English teacher Doan Van Thang who looked closely at the final version of the thesis for English style and grammar correction The last thank I want to save for my family and my dear friends who are always by my side whenever I have difficulties, and whose love, sympathy and encouragement have increased my strength to overcome obstacles and complete the thesis successfully TABLE OF CONTENT ACKNOWLEDGEMENTS TABLE OF CONTENT INTRODUCTION .4 CHAPTER I: OVERALL VIEW .6 Concepts of individual petition .6 1.1 General concepts 1.2 Individual petition mechanism within international human rights system The recognition of individual petition in international human rights 2.1 Individual petition in the evolution of international human rights .9 2.2 Individual petition in international human rights law 10 CHAPTER II: INDIVIDUAL PETITION MACHANISM WITHIN THE UNITED NATIONS HUMAN RIGHTS SYSTEM 14 A brief overview of the UN human rights bodies 14 Individual petition under the Charter-based bodies 15 2.1 The special procedures .16 2.2 The 1503 procedure 18 Individual petition under the Treaties-based bodies .24 3.1.States against whom a complaint may be lodged .25 3.2 Who can lodge a complaint to the committees 25 3.3 Subject matter 26 3.4 The admissibility 27 3.5 The procedure 28 3.6 The decision .29 CHAPTER III: INDIVIDUAL PETITION MECHANISM WITHIN HUMAN RIGHTS SYSTEMS OF THE COUNCIL OF EUROPE .31 Introduction of the Council of Europe 31 The European on Human Rights and Fundamental Freedoms and its Protocols 32 Individual petition procedure through the Convention organs .34 3.1 Before Protocol No.11 34 3.2 After Protocol No.11 37 CHAPTER IV: COMPARISONS AND ASSESSMENTS OF THE TWO MECHANISMS, FACTUAL REFERENCE TO VIETNAM .42 Comparisons between the two mechanisms 42 Assessments and recommendations of the two mechanisms 45 2.1 Assessments 45 2.2 Recommendations 47 Vietnam with individual petition mechanism in international human rights system 48 3.1 Vietnam with the individual petition procedure within the UN human rights system 48 3.2 Vietnam’s perspective of joining the UN individual petition mechanism 49 CONCLUSION 52 BIBLIOGRAPHY 53 ANNEX .56 INTRODUCTION The history of international human rights is a demonstration for “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”1 The international human rights movement is therefore based on the notion that every nation has an obligation to respect human rights of its citizens and that if states not adhere to this obligation, other nations, international community and especially each citizen or individual has a right, responsibility to oppose That arouses the question of individual petition in international human rights which will be discussed within the scope of this thesis Although the concept of individual petition may be familiar with Domestic Law, it is quite new to International Law including International Human Rights Law of which the principal subjects are nation-states, not individual citizens This means only a state can lodge a complaint against another not a person But in the effort of protecting and promoting human rights, international and regional human rights mechanisms have recognized the right of individuals to address a petition of human rights violations by state parties to international conventions or organizations to the supervising bodies or judicial organs (the court) More than half of century for development, Individual petition mechanism in both international and regional human rights systems has marked a remarkable innovation in international law but also revealed some issues of concern This thesis will provide an overview at individual petition mechanism through studying one at the international level: the United Nations human rights system, and one at the regional level: the Council of Europe, the comparison between these two and factual reference to Vietnam The Preamble to the Universal Declaration of Human Rights adopted on 10 December 1948 Chapter one will bring about a general view on individual petition in the evolution of human rights Chapter two and Chapter three introduce individual petition mechanisms within the United Nations human rights system and the Council of Europe so that we can understand well how individual petition is implemented Some assessments, comparisons and recommendations to make these two mechanisms more effective will be covered by the Chapter four _ the final one Vietnam with individual petition within the UN human rights system will also be referred in this Chapter As it is the limitation of time and materials, this thesis can’t avoid shortcomings and mistakes Furthermore, it is a relatively new topic, the author can’t more than giving basic knowledge for this issue This topic should be given more research in the future and the author would be very grateful for receiving criticisms from experts, teachers and friends for the better thesis CHAPTER I: OVERALL VIEW Concepts of individual petition 1.1 General concepts There are no exact definitions about petition but in general sense, it can be stated like that: A petition is a request to an authority, most commonly a government official or public entity In the colloquial sense, a petition is a document addressed to some official and signed by numerous individuals A petition may be oral than written, and in this era may be transmitted via the internet The term also has a specific meaning in the legal profession as a request, directed to a court or administrative tribunal, seeking some sort of relief such as a court order2 A petition can also be termed a complaint or a communication within the framework of the United Nations which will be mentioned in other parts Thus, individual petition or individual complaint that can be referred from this definition is a petition made by an individual and in wider range, is a complaint from non-stated subjects including individuals, non-governmental organizations The right to petition is one of basic human rights needed to be recognized and protected It is the freedom of individuals (and sometimes groups and corporations) to petition their government or an international entity for a correction or repair of some form of justice without fear of punishment for the same Although often overlooked in favor of other more famous freedoms and sometimes taken for granted, many other civil liberties are enforceable against the government only by exercising this basic right, making it a fundamental right in democracy The right to petition, per se, is Petition definition, not mentioned in the Universal Declaration of Human rights, but the related freedom of assembly and right to take part in the government3 In term of international human rights, if a violation occurs and the real party in interest is the individual whose rights have been denied, and in most cases this will be the results of acts by organs or agencies of his own government, individuals have the right to bring their cases to an international organization and its organs to which a state is a member or a contracting party of international treaties 1.2 Individual petition mechanism within international human rights system It‘s so-called individual petition mechanism because what is going to say in other chapters below will mention contents composing a mechanism: individual petition regulations, system of bodies and operational measures to implement the individual petition right Individual petitions or individual complaints are the third mechanism in series of measures used to monitor, implement and enforce human rights (the other mechanisms are the reports systems, the inter-State complaints provisions and other methods such as rapporteurs and special investigators, ancillary bodies)4 A petition can be brought either through a court-like mechanism or through reports to an independent body Individual complaint mechanism has been set up and made into procedures within international human rights supervision and protection systems Generally, international human rights mechanism consists of a system of organs in charge of supervising, supporting for the realization of human rights worldwide At the international level, it is mandated to the United The right to petition definition, Rhona K.M Smith, “monitoring, implementing, and enforcing human rights”, Text book on International Human Rights, page 145-page157 Nations human rights system At the narrower level, it is known as regional mechanisms among which the author chose to introduce the Council of Europe to be one of the most effective international human rights systems in implementing individual petition right together with the UN Both established individual complaints mechanisms that contribute to protecting and promoting international human rights At the regional level, major organs in charge are mainly judicial ones, namely the European Court of Human rights, the Inter-America Court of Human Rights and the Africa Court of Human rights whose decisions have binding on states to some extent The United Nations, on the other hand, are not as judicialized and known as treaties committees or charter-based bodies Their decisions are more recommendatory rather than compulsory Unlike individual petition at the national level, individual complaint mechanism at the international level requires more complicated procedures and it is such a sensitive question that it is made optional, and so applies only in relation to states which have expressly accepted it through ratifying international treaties or declaring to accept the judicial bodies’ competence The reasons perhaps result from the nature that the issue of human rights is always delicate and directly affects nations’ sovereignty and territorial integrity That throughout most of human history, the way a government treated its own citizens including their right to petition was considered solely its own business and not to be intervened by other states or international community; it is normal for a state to confront with another in front of an international tribunal but it is unusual for a person to challenge a state at international judicial bodies However, the individual petition mechanisms of the UN and regional systems (hereinafter the Council of Europe) implemented over the 50 years has proved that freedoms of individual is more and more respected The recognition of individual petition in international human rights 2.1 Individual petition in the evolution of international human rights The great evolution of international human rights did not occur until the Second World War (1941-1945) when humankind was obsessed by the holocaust and other Nazi denials of human rights These serious crimes committed by fascism have stirred up people’s awareness of human rights and fundamental freedoms The nations of the world decided that the promotion of human rights and freedoms should be one of the principal purposes of the United Nations established in the wake of the war From then on, international human rights have developed dramatically in many aspects First, numerous numbers of human rights instruments have been adopted in the scope of international, regional and national Best known of all is the international Bill of Human Rights composed by the UN, consisting of the UN Charter, the Universal Declaration on Human Rights, the two covenants 1966 and other five conventions The UN’s regulations on human rights have now reached more than 60 major declarations, conventions and protocols The human rights revolution has also swept over regions and nations through the establishment of many of regional treaties or conventions on human rights as well as national laws, regulations, administrative decisions and policy pronouncements relevant to enforcing human rights Nowadays, more and more nations in the world have ratified international human rights treaties, which shows increasing trend of countries’ acceptance of international legal obligations to respect human rights Second, together with instruments, there are now dozens of human rights supervision and protection mechanisms over the world, which helps to ensure each individual’s access to basic rights and fundamental freedoms Since their inception, these systems have made significant progress in operational measures reform to fulfill their role much better as the guard of human rights Outstandingly, they are the UN human rights mechanism, regional mechanisms such as Europe, Inter-America and Africa ones Third, to monitor, implement and enforce human rights objectives and international human rights obligations more effectively, there is a system of measures set at international standard including the reports system, the interstate complaint provisions and especially the mechanism for receiving individual complaints That is to say the recognition of individual’s right to petition through individual complaint mechanism has marked a great turningpoint in the evolution of international human rights It is doubled by the judicialization tendency to which many courts on human rights are established to receive not only states’ complaints but also individual petitions and thus, human rights obligations have more legal binding on states The evolution of human rights has brought about benefits to everyone, people of all ages and all social circles even criminals now enjoy all basic rights and fundamental freedoms and best of all, they have chance to raise their voice for justice without fear of punishment 2.2 Individual petition in International human rights Law Up till now, there has been no international human rights legal document specifically on individual petition but the right to petition and individual complaint mechanism were recognized in international human rights Law through conventions and treaties at both universal and regional level This section continues to give a glimpse only at individual petition in