scholarly journals THE CHALLENGES OF IMPLEMENTING PROHIBITION OF TORTURE IN TWO LEVELS: ASEAN AND INDONESIA

2012 ◽  
Vol 1 (2) ◽  
Author(s):  
Erna Dyah Kusumawati
Keyword(s):  
Human Rights ◽  
Criminal Code ◽  
Customary Law ◽  
Customary International Law ◽  
Peremptory Norm ◽  
Degrading Treatment ◽  
The Law ◽  
Asean Countries ◽  
Cat States ◽  
Jus Cogens

<p align="center">ABSTRAK</p><p>Artikel ini menganalisis implementasi larangan penyiksaan level ASEAN dan Indonesia. Pembahasan diawali perkembangan pengaturan dan ratifikasi Konvensi PBB di tingkat ASEAN. Kemudian perkembangan dalam hukum nasional Indonesia. Selanjutnya analisis ditujukan kepada tantangan dan hambatan yang mungkin dihadapi dalam mengimplementasikan larangan penyiksaan di kedua level, regional dan nasional. Hasil analisis menyatakan bahwa larangan penyiksaan termasuk sebagai hak asasi yang bersifat fundamental dan tidak dapat dicabut (<em>non-derogable</em>). Norma larangan penyiksaan juga termasuk sebagai <em>ius cogen</em> atau <em>peremptory norm atau </em>norma yang memaksa<em> </em>dan sudah dianggap sebagai<em> </em>hukum kebiasaan internasional<em>. </em>Dengan demikian, meratifikasi atau tidak negara-negara anggota ASEAN dianggap terikat dan harus memenuhi kewajiban diatur dalam Konvensi Anti Penyiksaan. Terdapat kelemahan dalam tingkat ASEAN, yaitu dalam hal monitoring pemenuhan kewajiban-kewajiban Negara anggota. Badan HAM ASEAN tidak didesain sebagai pengawas yang independen, karena berada di bawah organisasi ASEAN. Pada level Indonesia, penyiksaan masih banyak ditemukan terutama untuk mendapatkan pengakuan tersangka dalam proses penyidikan dan penyiksaan dalam tahanan. Hukum di Indonesia belum berlaku maksimal. Konstitusi dan Hukum Hak Asasi Nasional sudah mengatur bahwa hak terbebas penyiksaan merupakan hak yang tidak dapat dicabut, namun demikian perlindungannya belum maksimal, mengingat KUHP tidak menjamin keseragaman pelaksanaan hukuman bagi pelaku penyiksaan. Demikian juga Pengadilan Hak Asasi Manusia tidak mempunyai kewenangan memeriksa perkara penyiksaan. Sehingga masih banyak diperlukan koreksi dalam hukum nasional, termasuk wewenang investigasi KOMNAS HAM dalam hal terjadi penyiksaan.</p><p>Kata Kunci : Implementasi, Anti Penyiksaan, Hak Asasi Manusia</p><p align="center">ABSTRACT</p><p>This article will address the issue regarding prohibition of torture and its challenges at two levels: ASEAN and Indonesia. The prohibition of torture is considered to be a rule of “<em>jus cogens</em>” or peremptory norm as well as customary law. In addition the prohibition of torture is absolute and non-derogable. Therefore, it entails some obligations for states whether or not they ratify the CAT. States have the universal obligations to prevent torture and inhuman degrading treatment in their jurisdiction under international customary law. Since many of ASEAN countries do not ratified ICCPR, the AICHR have to implement the prohibition of torture based on the customary international law. In addition, AICHR needs to monitor the national law regarding the prohibition of torture. However, the AICHR lacks of protection mandate and might not functioning well especially when dealing with the allegation of the prohibition of torture or other human rights’ allegations within ASEAN jurisdiction. In Indonesia, the use of torture to get the confession is widely used by the police. Not all the perpetrators are brought to the Court of Law and are given an equitable sentences; although, Indonesia does have a regulation on prohibition of torture; the Criminal Code, the Law No 39/1999 concerning Human Rights, and the Law No. 26/2000 concerning Human Rights Courts. There is lack of competence of the Indonesian Human Rights Court to hear the violation cases. Also, there is lack of competence of the Indonesian Commission on Human Rights to investigate cases concerning torture.</p>Keywords: Implementation, Prohibition of Torture, Human Rights

scholarly journals The legal meaning of the terms "torture", "inhuman treatment or punishment", "degrading treatment or punishment" and their distinction in the decisions of the European commission of human rights and the European court of human rights

2021 ◽  
pp. 26-33
Author(s):  
Khrystyna YAMELSKA
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Criminal Code ◽  
European Convention ◽  
European Court ◽  
Convention Against Torture ◽  
Degrading Treatment ◽  
The Individual ◽  
Jus Cogens ◽  
Legal Meaning

The paper reveals the legal meaning of the terms "torture", "inhuman treatment or punishment", "treatment or punishment that degrades human dignity". A distinction between these concepts is made on the examples of court decisions of European courts, taking into account the individual circumstances of each case. The genesis of the origin of the above concepts is investigated through a prism of the decisions of the European Commission of Human Rights and the European Court of Human Rights. The paper reveals the absolute nature of the "jus cogens" norm of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The author proposes to modernize the Ukrainian criminal legislation on the reception of the position of the European Court of Human Rights on the delimitation of these concepts. In contrast to the European convention regulation of ill-treatment, torture, inhuman or degrading treatment or punishment, the author notes that the Ukrainian legislation regulates this issue quite succinctly. The Article 127 of the Criminal Code of Ukraine provides a definition only of torture, which in essence coincides with the definition of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the position of the European Court of Human Rights. The paper notes that the practice of Ukrainian courts shows that a distinction (similar to that provided by the European Court of Human Rights) is not implemented.

Identifying the norms of the customary international law of human rights

2021 ◽  
pp. 40-101
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
Customary Law ◽  
Periodic Review ◽  
Customary International Law ◽  
Legal Obligations ◽  
Human Rights Treaties ◽  
State Practice ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
Regional Custom

References to customary law by national and international courts tend to be perfunctory, with only summary attempts to analyse the evidence. It is the same for jus cogens or peremptory norms. The Universal Declaration of Human Rights is increasingly viewed as a source of legal obligation. The near-universal ratification of human rights treaties facilitates the identification of custom, bearing in mind the phenomenon of reservations. Materials generated by the Universal Periodic Review mechanism of the Human Rights Council provide rich evidence not only of State practice but also of the views taken by States about the content of international legal obligations. Regional custom, jus cogens, and the persistent objector are examined.

The Law of Treaties Beyond the Vienna Convention

2011 ◽  
Keyword(s):  
International Law ◽  
Customary Law ◽  
Actual State ◽  
Vienna Convention ◽  
Customary International Law ◽  
Progressive Development ◽  
The Law ◽  
Jus Cogens ◽  
International Law Commission ◽  
The Impact

This book offers an analysis of the law of treaties as it emerges from the interplay between the 1969 Vienna Convention on the Law of Treaties and customary international law. It revisits the basic concepts underlying the provisions of the Vienna Convention, so as to determine the actual state of the law and its foreseeable development. In doing so, it examines some of the most controversial aspects of the law of treaties. The book first explores the influence exerted by the Vienna Convention on pre-existing customary law. Certain rules of the Convention which, at the time of its adoption, appeared to fall within the realm of progressive development, can now be regarded as customary international rules. Conversely, a number of provisions of the Convention, in particular those which have been the subject of subsequent codification work by the International Law Commission, have become obsolete. It then examines the impact exerted by the Vienna Convention on the development of other fields of international law, such as the law of international responsibility and the law of international organizations. The last section of the book is devoted to cross-cutting issues, with particular reference to the notion of jus cogens — a concept first used in the Vienna Convention in connection with the problem of the validity of treaties and which, afterwards, has acquired a legal significance going well beyond the Convention.

scholarly journals The Role of Customary International Law in Regulating the Activities of Armed Groups in the Field of Human Rights

2021 ◽  
Vol 16 (5) ◽  
pp. 195-204
Author(s):  
R. I. Sharipov
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflicts ◽  
International Human Rights Law ◽  
Armed Groups ◽  
Customary International Law ◽  
Protection Of Human Rights ◽  
Jus Cogens ◽  
Relationship Of ◽  
Peremptory Norms

Over the past decades, there has been a significant increase in the number of armed groups involved in armed conflicts around the world, as well as in their impact on the rights and freedoms of the population under their control. Facing various situations of systematic violations of human rights by non-state actors, experts in the field of international human rights law began to consider the theoretical justification for the mandatory nature of the provisions on the observance and protection of human rights for armed groups. In this regard, a number of scholars have turned to the theory of customary international law, the acceptability of which is being investigated by the author of this paper. The author examines the provisions underlying this theory and the persuasiveness of the argumentation used by its supporters. Based on an analysis of the nature of customary international law, its structural elements, their interpretation by the UN International Court of Justice in its decisions and the relationship of customary international law with peremptory norms of jus cogens, the author concludes that the theory under consideration is currently unable to explain the existence of obligations of armed groups in the field of human rights.

Introduction The customary law of human rights is hiding in plain sight

2021 ◽  
pp. 1-8
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
International Human Rights Law ◽  
Political Rights ◽  
Human Rights Law ◽  
Customary International Law ◽  
Regional Systems ◽  
Second World

Many areas of international law developed first as custom and were only subsequently, generally in the course of the twentieth century, subject to codification. Human rights law was different. It was viewed as quintessentially a matter of domestic concern, a subject shrouded in State sovereignty. Only following the Second World War was international human rights law recognised as a source of binding obligations, mainly through the adoption of the Universal Declaration of Human Rights and other instruments of the United Nations as well as the regional systems. Later, jurists began contending that the norms in these instruments might also be customary in nature. They struggled with identifying the two classic elements in the determination of custom, opinio juris and State practice. Most analysis of the content of customary international law was rather perfunctory and also quite conservative, confining itself largely to civil and political rights.

scholarly journals Treaty Bodies

2019 ◽  
Vol 21 (3-4) ◽  
pp. 344-368
Author(s):  
Kasey McCall-Smith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary International Law ◽  
State Practice ◽  
Peremptory Norm ◽  
Treaty Body ◽  
State Responses ◽  
Reporting Procedures ◽  
The Way

Abstract This article contributes to existing understandings about the influence of human rights treaty bodies on the development of customary international law. It offers a method of assessing State responses to treaty body jurisprudence for the purposes of determining to what extent the responses push toward the reaffirmation or crystallisation of a customary rule of international law, namely the prohibition against torture. It speaks to the way in which, despite its status as a peremptory norm, the content of the norm is often challenged, but also incrementally expanding due in large part to the way in which treaty bodies engage and guide States both inside and outside of the primary reporting procedures. Ultimately, this article demonstrates that State practice and opinio juris are increasingly influenced by treaty bodies.

Conclusion

2021 ◽  
pp. 341-346
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
Customary Law ◽  
Periodic Review ◽  
Customary International Law ◽  
Universal Periodic Review ◽  
Human Rights Treaties ◽  
Treaty Law ◽  
Recent Developments ◽  
Review Mechanism ◽  
The Right

Custom poses challenges for its identification but at the same time it offers a potential for dynamism that may often be superior to that of treaty law. Recent developments, most importantly the near-universal ratification of major human rights treaties and the Universal Periodic Review mechanism of the Human Rights Council, greatly facilitate the identification of customary law. It is clear that most of the rights in the Universal Declaration of Human Rights are unquestionably part of customary international law. Doubts may persist about a few rights, such as the right to property. Customary law also extends to ‘solidarity rights’ or ‘peoples’ rights’, whose reflection in treaty law is not so universal. Recognition of rights does not ensure that there are effective mechanisms for their enforcement and implementation.

The interrelation of the law of occupation and economic, social and cultural rights: the examples of food, health and property

2008 ◽  
Vol 90 (871) ◽  
pp. 629-651 ◽  
Author(s):  
Sylvain Vité
Keyword(s):  
Human Rights ◽  
Customary Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Law ◽  
Legal Regime ◽  
Cultural Rights ◽  
Standards Of Living ◽  
The Hague ◽  
The Law

AbstractThe current legal regime relative to occupation is no longer based solely on the contributions made by customary law and treaty-based law as set forth in the law of The Hague and the law of Geneva. It has undergone a thorough change with the progressive recognition of the applicability of human rights law to the situations which it governs, and their complementarity has been highlighted on several occasions. The question of the interrelation of international humanitarian law and human rights is not resolved merely by analysing their respective areas of application. The author examines the issue at the level of their individual rules. He considers whether the rules of international humanitarian law are confirmed, complemented, relativized or even contradicted by those deriving from human rights. The analysis focuses more particularly on the interrelation of the law of occupation and economic, social and cultural rights by concentrating on the promotion of adequate standards of living (right to food, right to health) and respect for property.

scholarly journals The Third United Nations Conference on the Law of the Sea: the 1976 New York Sessions

1977 ◽  
Vol 71 (2) ◽  
pp. 247-269 ◽  
Author(s):  
Bernard H. Oxman
Keyword(s):  
New York ◽  
United Nations ◽  
International Law ◽  
Customary Law ◽  
Law Of The Sea ◽  
Customary International Law ◽  
The Third ◽  
Geneva Conventions ◽  
State Practice ◽  
The Law

The law of the sea has changed, for good or for ill. The Revised Single Negotiating Text (hereinafter RSNT) issued in the spring of 1976 may prove to be the single most important document regarding the law of the sea since the 1958 Geneva Conventions in terms of its influence on state practice, whether by way of an ultimate treaty or otherwise. Important differences will exist regarding the extent to which portions of the text are declaratory of emerging customary international law and regarding the extent to which the text must be changed to be acceptable as a universal treaty or as customary law. Indeed, difficult questions of implementation of its principles in bilateral and other arrangements are already arising. Positions taken at multilateral conferences may differ from the positions taken in other contexts. But the text will not be ignored.

scholarly journals An Analysis of The Offense of Unpleasant Action in Article 335 Paragraph (1) of The Indonesian Criminal Code

2021 ◽  
Vol 5 (2) ◽  
pp. 151-159
Author(s):  
Xavier Nugraha ◽  
Kusuma Wardani Raharjo ◽  
Ahmad Ardhiansyah ◽  
Alip Pamungkas Raharjo
Keyword(s):  
Human Rights ◽  
Criminal Code ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Core ◽  
Core Elements ◽  
The Law ◽  
The Guardian

The Constitutional Court as the guardian of the constitution and the guardian of human rights has the duty to ensure that the Law does not contradict the constitution and does not violate human rights. One of the manifestations of this can be seen in the Constitutional Court Decision Number 1 / PUU-X / 2013, where the Constitutional Court removed the element "Some other deeds or unpleasant treatment/act" in Article 335 paragraph (1) of the Criminal Code. With the removal of the core elements of Article 335 paragraph (1) of the Criminal Code, raises questions related to the existence of the offense whether it still exists or not. Based on this, this study will examine 1) Application of Article 335 of the Criminal Code Before the Decision of the Constitutional Court Number 1 / PUU-X / 2013 and 2.) Application of Article 335 of the Criminal Code After the Decision of the Constitutional Court Number 1 / PUU-X / 2013. This research is a normative legal research with a statute approach, conceptual approach, and case approach. Based on this research, it was found that after the Constitutional Court Decision Number 1 / PUU-X / 2013 that offenses of unpleasant acts had been reconstructed into forced offenses.

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