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Critics on Human Rights Protection Mechanism

Author: DaiShanShan
Tutor: HeZhiPeng
School: Jilin University
Course: International Law
Keywords: Reasons for Problem Protection System International Law Dilemmas the Obedience of International Law
CLC: D998.2
Type: Master's thesis
Year: 2010
Downloads: 215
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Abstract


This article chooses Convention on Protection of All Persons from Enforced Disappearance which was signed in 2007 as the logical starting point. Enforced Disappearance is one of the most serious human rights violations. 2006 is the year of the adoption of the International Convention on Protection of All Persons from Enforced Disappearances, which represents the result of several legislative and jurisprudential developments. This article will retrospect the regulation system regarding the enforced disappearance in human right protection mechanism with the methods of historical analysis and comparative analysis. This study also aims to reveal the current state of the system and to analyze the dilemma this new convention faces, the dilemma of how it can effect. By applying interaction theory between Research of International Relations and Research of International Law, the article will analyze the cause of the dilemma, and will reflect the influence cast by the country’s calculation of its own benefit and the country’s need of the recognition of its legitimacy on obeying the international norms.The first part of this study is to summarize the four crucial elements to definite enforced disappearance: subject, manners, behaviors and results by applying the comparative analysis between the three specification documents addressing the problem of enforced disappearance: the Inter-American Convention on Forced Disappearance of Persons(1994), the International Convention for the Protection of All Persons from Enforced Disappearance(2006) and the Rome Statute of the International Criminal Court(1992). Nowadays, enforced disappearance is not a phenomenon of the past, nor is it geographically limited to Latin America: such scourge is widespread today and on the increase in other continents. Sometimes enforced disappearance happened in armed conflict; sometimes it is used by some entities as means to eliminate opponents or anti-terrorism. All in all, it is necessary to build up some International legally binding instruments against enforced disappearances.Chapter Two: This part summarizes the protected system of enforced disappearance, including International standardized documents, WGEID and NGO. Part one differentiates the International standardized documents into specialized and non-specialized. Furthermore, ICRC plays an essential role in preventing persons from going missing in situations of armed conflict or internal violence. Section Two: Clarify the working mechanism of WGEID .Section Three: Emphasize NGO’s important role in accelerating acceptance of UN convention, transmitting cases to WGEID, helping to locate the missing people.Chapter Three: A contrast study on International standardized documents. Firstly, section one differentiates between enforced disappearance and crimes against humanity. Secondly, section two analyzes the differences between International Law and domestic law regarding to victims’definition. Thirdly, section three reviews the International mechanism for monitoring written in the UN Convention. It provides a Committee on enforced disappearances that, in addition to functions of monitoring and consideration of individual and inter-state complaints has a humanitarian urgent procedure, the power to undertake field inquiries and the ability to bring to the attention of the UN General Assembly situations of widespread and systematic practice of enforced disappearance.Chapter Four: We can find some plights that international legally instruments addressing to enforced disappearance have encountered in practice. Plight one elaborates whether the UN Convention will come into force. Plight two tells that Regional Human Rights Protection Mechanisms have un-balanced protection level. Plight three illustrates that International Criminal Court actually plays a weak role in handling widespread and systematic enforced disappearance.On the review and prospect of above-mentioned dilemma, we can find the similar situation during many conventions’signatory course. Firstly, country will quickly acknowledge some relating declarations to receive recognition of their role in the international community. However, it will be still far away from signing to formally ratifying a legally binding convention. Usually, it is merely a matter of time for countries to recognize such kind of convention. Secondly, we should coordinate between the global and regional human rights protection mechanism. This part emphasizes that the foundation of human rights protection mechanism is the domestic legislative measures. Thirdly, the ICC statute, includes enforced disappearance in the definition of crime against humanity, the practice has to be widely promoted, systematic and be directed against the civilian population. However, ICC actually plays a weak role in handling these problems. This part provides background information of signing the statute. There are two reasons which complexes this problem. Roman Statute choose principle of prohibiting retrospect, the other is the supplementary of the jurisdiction rules of the ICC. It is the reason that many articles of international conventions are expressed in non-neat phase. So it can offer countries a wide range of options to participate in international conventions.As far as I am concerned, the reason why international law is called coordinative law or soft law is the De facto anarchy state in international community. On one hand, international society needs to build up a more reasonable mechanism which can allocate benefits better. On the other hand, it should instruct the countries to shape their culture identities and to form appropriate concepts of interest. Only by harmonizing these two things can the international law norms be firmly obeyed.

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CLC: > Political, legal > Legal > International law > Nationality Act > International Protection of Human
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