Unit 10: Human Rights

Miss E. Siang’andu

1. Be aware of the instruments available for the protection of Human Rights at an inter’l level and nature.

2. Know the three categories of generation rights.

3. Identify reasons for the weakness in the enforceability of Human Rights.

Learning Out

Broad Different types International HRs Regional HRs Protection of HRs within a domestic settings HRs in relations to Women Refugees Children

Human Rights

1. Convention on the Elimination of all forms of Racial Discrimination 1966 (CERD)

2. International Covenant on Civil & Political Rights 1966 (ICCPR)

3. International Covenant on Economic, Social & Cultural Rights 1966 (ICESCR)

4. Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW)

5. Convention Against Torture 1984 (CAT).

International Human Rights Treaties

6 Convention on the Rights of the Child 1989 (CRC)

7 Convention on the Protection of the Rights of All Migrants Workers 1999 (CRMW)

8 Convention on the Rights of Persons with Disabilities 2006 (CRPD)

9 Convention for the Protection of All Persons from Enforced Disappearance 2006 (COPED)

International Human Rights Treaties cont.

1. Universal Declaration of Human Rights 19482. Declaration on the Elimination of Religious

Freedom 19813. Declaration on the Right to development 19864. Declaration on the Rights of Minorities 19925. Declaration on the Rights & Responsibilities of

Individuals, Groups & Organs of Society to promote & Protect Universally Recognised HRS 1998

6. Declaration on the Rights of Indigenous Peoples 2007.

UN GA Human Rights Declaration

Prior to Ist WW a principle of Inter’l law was state ‘s treatment of its own nationals was matters within its domestic jurisdiction.

Exception Humanitarian intervention Why are Human rights essential?

Introduction

Establishment of League of nations

Covenant of League of Nations (articles 22,23)

Provisions protection of minorityEmphasis on protection rather than enforcement.

Following World War I

Atrocities committed before & during WWII exposed need for protection of fundamental HRs

Recognised in Preamble of Charter of United Nations

We the peoples of the United Nations determined to save succeeding generations from the scourge of war…..& to affirm in fundamental human rights in the dignity & worth of human person, in the equal rights of men & women & of nations large & small……

Member states are under obligation to promote & encourage respect for HRs

& for fundamental freedoms for all.

Art 55,56- UN imposes an Obligation on states to promote respect for & observance of HRs & fundamental freedom

United Nations Charter

Since 1945 both treaty & customary law has been developed for the purposes of protecting HRs & fundamental freedoms

Effectiveness of the rules? Existence of rules does not ensure its

observance More has been achieved on the regional

level that global level.

Post World War II

Fundamental & absolute rights which are essential to life as human being.

What are Human Rights?

Inter’l HRs is a combination of customary IL and treaty law

Treaties may be global or regional & general or specialised.

The Source of Law

Drafted by UN Commission on Human Rights

Commission established by Economic & Social Council (ECOSOC) art 68 UN Charter.

10th Dec 1948 Resolution 217A - Universal Declaration of Human Rights (UDHR).

International Covenant on Economic, Social & Cultural Rights 1966

International Covenant on Civil and Political Rights 1966

General International Agreements

Declaration contains a list of civil, economic, social, culture & political rights.

General Assembly resolution Does not create binding legal obligations UDHR serves to provide a standard for states to aim at. Resolution was intended to urge states to establish

procedures for future protection of HRs Commitment to provisions UDHR & other instrument

reaffirmed in Vienna Declaration & Programme of Action 1993 made by states.

UDHR was considered to be a source of ICL in the Filartiga case.

Universal Declaration of Human Rights (UDHR)

Entered into force January 1976. Treaty binding on parties. State parties under obligation to adopt

legislation to effect the ICCPR (art 2(2). To provide effective remedy for violation art

2(3). Covenant establishes code of civil & political

rights similar to those in UDHR. Right to Life (art. 6) Prohibition of torture (art.7)

International Covenant on Civil and Political Rights (ICCPR)1966

Prohibition on Slavery (art 8) Right to liberty of person (art. 9) Right to peaceful assembly (art 21) Protection of minority rights (art. 27). Violations of obligations results in inter’l

responsibility. Derogation of rights permissible time of

public emergence (art 4). But not fundamental rights such article 6

&7.

ICCPR

1997 North Korea sought to withdraw from the ICCPR by informing the UN Secretary General (UNSG).

UNSG responded ‘a withdrawal from the Covenant would not

appear possible unless all the states parties …agree.

HRC issued a comment: ICCPR & its Second Optional Protocol neither of

them have a withdrawal clause Thus are not open to withdrawal.

Consequence of been a party to ICCPR

HRC has continued to regard North Korea as an ICCPR party

North Korea has since reported under covenant. In contrast, the ist Optional Protocol – which provides

for individual petition expressly permits withdrawal (art 12)

Jamaica withdrew in 1997 Trinidad & Tobago – 1998 Guyana – 1999 Trinidad & Tobago –become a party again with new

reservations excluding death penalty cases Reservations – invalid so it withdrew from protocol.

entered into force 1976. Obligations are less specific More promotional rather than mandatory. Nature of rights? But treaty has legally binding effect ICESCR designed to promote social welfare Are these rights justiciable? What are the challenges in the

implementation of economical rights?

International Covenant on Economic, Social & Cultural Rights (ICESCR) 1966

HRs situation continues to be daunting & challenging for the inter’l community.

Serious violations HRs Impunity Racism & xenophobia Discrimination against women Ethnic & religious intolerance Mass exoduses & refugee flows Armed conflicts Terrorism Lack of rule of law.

Report of the UN High Commissioner for Human Rights 1996

Provisions in HRs instruments constitute customary IL

i.e. provision in relation to Torture (See Filartiga v Pena- Irala (1980)

D former chief of police in Paraguay Case brought by two Paraguayan nationals Allegation D had tortured to death a

member of their family Crt held torture violated ICL citing that

UDHR had become ICL

Customary Rules - I

Genocide Slavery Torture Causing disappearance of individuals Commission of above acts constitute

violation of ICL Constitute jus cogens See The Case concerning the Application of the

Convention on the Prevention & Punishment of the Crime of Genocide (Bosnia & Herzegovina v Serbia & Montenegro ICJ 2007)

Customary Rules- II

Inter’l Law distinguishes between Civil & political rights and Economic, social & cultural rights

First generation rights - Civil & political rights Second generation rights -Economic, social &

cultural rights i.e. right to work, education, adequate standard

of living Third generation rights -Development of rights

which can only be asserted by collection of individuals

Different types of Rights

Collective rights are recognised. Principal rights – right of self-determination & the right to development.

Third generation Rights

Long been recognised as a political concept. Assumed right of legal status since 1945. Not always clear who possesses the right Or what implementation rights entails. UN Charter Art 1(2) -principle of ‘equal

rights & self determination of peoples Art 21 – right to take part in govt. of his/her

country Will of people basis of authority of the

government.

The right to self-determination (SD)

Events of 1950 1960 UN GA adopted Declaration on Granting of

Independence to Colonial Territories and Peoples Para (2) all people have a right to SD Provision contained article 1 ICCPR & ICESCR. Advisory Opinion of ICJ to the Western Sahara

(1975) ICJ confirmed that right of SD is one recognised

by IL. The validity of the principle is confirmed.

History of right to SD

Where religious or linguistic minorities exist with a state they are entitled to right to enjoy own culture, religion, language – Art 27 ICPR

Badinter Arbitration Committee Established by EU August 1991 To consider questions of whether the Serbs

living in Bosnia & Croatia had a right of SD. Arbitration made four conclusions;

SD

1. Right of SD does not involve changes to existing frontiers at the time of independence unless state concerned accepts

2. Where they are two or more groups within a state constituting one or more ethnic, religious or language communities they have a right to recognition of their identity under IL.

Badinter Arbitration Committee

3. Art 1 of ICCPR & ICESCR establishes right of SD for purposes of safeguarding HRs

4. The Serbian population in Croatia & Bosnia are entitled to rights accorded to minorities & such rights must be protected by the governments of Croatia & Bosnia.

Badinter Arbitration Committee cont.

Implementation – evident HRs law turns to be breached than observed by most states

Inter’l treaties on HRs are little practical use All nine HRs treaties has a committee if

independent experts which monitors compliance with treaty.

Not all HRs treaties have monitoring bodies i.e. The Genocide Convention 1948

The Convention Relating to the Status of Refugees 1951

The Convention on the Crime of Apartheid 1974.

Enforcement of Human Rights

ICCPR & ICESCR establish enforcement machinery despite neither have proved effective.

Art 40 ICPR every state party bound to submit periodic reports to HRs Committee established under part VI of Covenant.

Reports must indicate measures adopted by states to implement the Covenant.

Committee under a obligation to produce report but proved reluctant.

Committee is unable to criticise states

UN Mechanisms

Art 41 ICCPR procedure for inter-state complaints

Provision for committee to receive complaints from other states.

Committee is intended to attempt to mediate

Decision not binding Limited states have used procedure under

art 41.

ICCPR Enforcement Mechanisms

Individuals can refer complaints to HRs Committee

Committee would then investigate Issue a report through not binding Report could be published for purposes of

shaming a state into action.

Optional Protocol to the ICCPR

Less stronger Parties must submit periodic reports to

Group Experts (GE) established by ECOSOC But GE turn to be more open to political

influence than HRs

ICESCR Enforcement Mechanisms

Composed of 43 members representing their states

Has jurisdiction to investigate allegations of HRs violations

Capacity to establish independent working groups

i.e. such a group was established to investigate the state of Iranian prisons in 1990.

Human Rights Commission