İNSAN HAKLARI - Deneme Sınavı - 7

The CoE, which introduces itself as “the continent’s leading human rights organisation” was founded on 5 May 1949 by the Treaty of London that officially “constitute the Statute of the Council of Europe”

Organs As all international organisations, the CoE has its own authorities and organs. The principal ones that play a role in the human rights protection mechanism are the Secretary-General, the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe, the Venice Commission and, above all, the European Court of Human Rights-ECrtHR.

Admissibility Conditions The Court examines only cases where - the right to life; - one or more of the rights set out in the Convention and its Protocols are alleged to be violated; - the complaints are based on solid evidence; - the complaints are directed against a State that ratified the Convention or the Protocol in question; - the responsibility of a public authority (legislature, administrative body, court of law and so on) is at stake, not that of private individuals or private organisations; - acts or events subject to the complaint occurred after the date of ratification by the concerned State of the Convention or the Protocol in question; - the applicant is personally and directly affected by the breach of a fundamental right; - domestic remedies are exhausted; - the complete application is lodged with the Court within six months from the final domestic decision. - the complaints in question have not already been examined by the ECrtHR or another international body.

The case must be compatible with the requirements of ratione materiae, ratione temporis, ratione personae or ratione loci. That is to say, the subject matter of the application should be about a right protected under the Convention and its Protocols (ratione materiae), the alleged violation must have occurred after the date of entry into force of the Convention for the respondent State (ratione temporis), and the alleged violation must have been committed by the respondent State or must be attributable to it (ratione personae).

The case must be compatible with the requirements of ratione materiae, ratione temporis, ratione personae or ratione loci. That is to say, the subject matter of the application should be about a right protected under the Convention and its Protocols (ratione materiae), the alleged violation must have occurred after the date of entry into force of the Convention for the respondent State (ratione temporis), and the alleged violation must have been committed by the respondent State or must be attributable to it (ratione personae)

The subject matter of the application should be about a right protected under the Convention and its Protocols (ratione materiae), the alleged violation must have occurred after the date of entry into force of the Convention for the respondent State (ratione temporis), and the alleged violation must have been committed by the respondent State or must be attributable to it (ratione personae).

The subject matter of the application should be about a right protected under the Convention and its Protocols (ratione materiae), the alleged violation must have occurred after the date of entry into force of the Convention for the respondent State (ratione temporis), and the alleged violation must have been committed by the respondent State or must be attributable to it (ratione personae)

The Court is made up of full-time professional judges resident in Strasbourg. They are elected for a non-renewable term of nine years by the PACE with respect to each member “by majority of votes cast from a list of three candidates nominated by” it (Articles 22 and 23, ECHR). Member states do not necessarily nominate their citizens

According to Burke, rights discourse of his century suffers from metaphysical idealism and rationalism. The proponents of rights follow a clumsy metaphysical theory; they are metaphysical rationalists or “speculatists”, the worst insult in Burke’s rich vocabulary of abuse. For Burke, therefore, the standpoint of the absolute and universal discourse seems to blind the politicians to the realities of the particular and concrete and turns them into metaphysicians and prophets

Jeremy Bentham, regarded as a realist and utilitarian philosopher, put his reaction to the 1789 French Declaration with the phrase ‘From real law come real rights; but from imaginary laws . . . come imaginary rights.’ Bentham wrote an essay titled “Anarchical Fallacies,” in which he attacked the most popular manifesto of such rights in his day, the “Declaration of the Rights of Man and Citizen”. He claimed that any doctrine of natural rights is “simple nonsense, natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts”

the concept of “the right to have rights” introduced by H. Arendt triggered a chain of challenges to human rights as we observe in the accounts of scholars as Balibar, Agamben, Douzinas, Dembour and Rancière. Samuel Moyn decided to label human rights as The Last Utopia. Even though all of those scholars are partly sympathetic to the idea of human rights in principle and believe still its potential in creating a more human world, some argue that it has deviated its initial revolutionary discourse; and today “human rights have been turned from a discourse of rebellion and dissent into that of state legitimacy” (Douzinas, 2000, 7). M. Ignatieff identifies the crisis that human rights face today as a spiritual and cultural crisis related to both ‘intercultural validity of human rights norms’ and ‘the ultimate metaphysical grounding for these norms’ (Pedersen and Murray, 2012, 6). Many believe that human rights are in crisis in the beginning of 21th Century and the idea of human rights either will face an end or have to undergo some transformations to survive.

M. Ignatieff identifies the crisis that human rights face today as a spiritual and cultural crisis related to both ‘intercultural validity of human rights norms’ and ‘the ultimate metaphysical grounding for these norms’ (Pedersen and Murray, 2012, 6). Many believe that human rights are in crisis in the beginning of 21th Century and the idea of human rights either will face an end or have to undergo some transformations to survive.

Conceptual objections are mostly directed either to the vagueness and abstractness of the concept of human rights, and of human nature on which the idea of human rights supposed to be to rest, and of the claim of universality. Dembour tries to summarize these in the following three propositions which represents the main line of the conceptual critiques, “(1) the concept of human rights is wrongly presented as universal; (2) it pertains of a logic which focuses on the individual to the neglect of solidarity and other social values; (3) it derives from a reasoning which is far too abstract” (Dembour, 2006, 6). These three objections of human rights, namely the critiques of universality, of abstractness and of neglecting solidarity and other social values consist of the main critiques of human rights that will be elaborated in this chapter.

Though the objections of Dembour and Kapur portrait the conjuncture well, but do not cover all the critiques of human rights. “A different but complementary argument is developed by Alasdair Macintyre in After Virtue, when discussing the idea of human rights. According to him, not only are there no human rights, the notion of a right itself is not found in every society. After pointing out that claims to the possession of rights presuppose the existence of a set of socially established rules, he goes on, ‘Such sets of rules only come into existence at particular historical periods and in particular social circumstances. They are in no way universal features of the human condition’” (Milne, 1993, 4). Consequently, he comes to the idea that “‘It would of course be a little odd that there should be such rights attaching to human beings simply qua human beings ... .’Referring to the same linguistic facts, he then comments, ‘From this of course it does not follow that there are no natural or human rights, it only follows that no one could have known that there were ... .’ He concludes that there are no such rights’, adding that ‘Every attempt to give good reasons for believing that there are such rights has failed.’ His verdict is that ‘Natural or human rights are fictions’, and that ‘belief in them is at one with belief in witches and unicorns’”

Some objections have based on the practical failures or the huge gap between theory and practice of human rights movement, and questioned the idea of human rights itself, and have become cynical about the future of it. Some others have criticized human rights movement becoming a tool of government diverging from its revolutionary core. Furthermore, Douzinas accuses governments of hijacking human rights to legalize their abusive practices.

“There is another objection to equating human rights with liberal democratic and modern socialwelfare rights. The particular values and institutions which these embody have their roots in the Western tradition of culture and civilisation. But the Western is only one of a number of such traditions. Others are the Islamic, the Hindu and the Buddhist, to name only three, each of which is based upon a great religion” (Milne, 1993, 3). Milne acknowledges this objection that casts doubt upon any idea of human right which presents it as a universal ideal standard, and he believes that such an ideal must be drawn from a particular tradition of culture and civilisation. And the people who do not belong to this culture will have no reason to accept it (Milne, 1993, 4). This objection is known as critique of cultural relativism. The cultural relativists deny the possibility of any universal value and ethical norm, and identify human rights as merely and inherently with western culture (Kao, 2011, 11). American Anthropological Association (AAS) made a statement against the Universal Declaration during the process of drafting, and warned the committee members about the possible negative consequences of a universal declaration

The theory of human rights has led to various objections questioning both the theoretical foundations of human rights and the success of human rights movements. A rationally defensible idea of human rights must be able to meet all these objections. Some criticisms were so harsh that they have begun to talk about the dark sides of human rights or the end of a human rights utopia. Some express their reaction with the titles of their books as “The Last Utopia”, “The End of Human Rights”, “Who believes in Human Rights?”, “Can Human Rights Survive?” and “The Endtimes of Human Rights”.

“There is a continuous, developing notion of human rights running through this history—call it the ‘historical notion’. That is the notion with which I want to start. Start, but most likely not finish. I am looking for the notion of human rights that fits into the best ethics that we can establish, and it is unlikely that the notion that history has yielded is already in perfect form for its place in ethics. One of the first things that one notices about the historical notion is that it suffers from no small indeterminateness of sense. When during the seventeenth and eighteenth centuries the theological content of the idea was abandoned, nothing was put in its place. The term was left with so few criteria for determining when it is used correct, and when incorrectly, that we often have only a tenuous, and sometimes a plainly inadequate, grasp on what is at issue. Its indeterminateness of sense is not something characteristic of ethical terms in general; it is a problem specifically, though perhaps not uniquely, with the term ‘human right’. We today need to remedy its indeterminateness; we need to complete the incomplete notion, and thereby most likely change it” (Griffin, 2008, 2).

If a State becomes a Party to the Convention, this automatically paves the way for personal applications whereas intra-state applications can be made possible via the recognition by the States concerned of the jurisdiction of the Commission in this respect (Bozkurt, 2006, 136; Buergenthal, 1995, 199). There are some prerequisites of admissibility sought after by the Commission. The first one is the exhaustion of all local remedies. Article 46 seeks that “the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law. In addition; “the petition or communication is lodged within a period of six months from the date on which the party alleging violation of his rights was notified of the final judgement ” . Thus, the correct answer is D.

The Commission may request the states concerned to furnish any pertinent information and, if so requested, shall hear oral statements or receive written statements from the parties concerned. Thus, the correct answer is A.