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CH 6: THE INTERNATIONAL PROTECTION OF

HUMAN RIGHTS

 The preamble to the Universal Declaration of

Human Rights

 adopted on: 10 December 1948

 Emphasizes that: ‘recognition of the innate

dignity and of the equal and absolute rights of

all members of the human family is the

foundation of freedom, justice and peace in the

world’.

THE NATURE OF “RIGHTS”

 controversial and the subject of intense

jurisprudential debate.

 immediately enforceable binding commitments

 others merely as specifying a possible future

pattern of behavior

 problem of enforcement and sanctions

 non-compliance

 violations of human rights laws

 The concept of human rights is closely allied with

ethics and morality.

 Positive rights:

 include those rights enshrined within a legal system

 Moral rights:

 not necessarily enforceable by law.

 The Natural Law view:

 Certain rights exist as a result of a higher law than

positive or man-made law.

 Constitutes a universal and absolute set of

principles governing all human beings in time and

space.

 John Locke

 inalienable rights as the rights to life, liberty and

property upon a social contract

 Ideological approaches to human rights in

international law

 international human rights law in general terms has

tended to emphasize the basic civil and political rights of

individuals, that is to say those rights that take the form of

claims limiting the power of government over the

governed.

 due process

 (fair treatment through the normal judicial system,

especially as a citizen's entitlement)

 freedom of expression

 assembly

 religion

 political participation in the process of government.

 The consent of the governed is seen as crucial in this

process

 the central function of the state

 the source of human rights principles was seen as the

state.

 the principle of respect for human rights in international

law may be expressed in three propositions:

 All states have a duty to respect the fundamental rights and

freedoms of all persons within their territories

 States have a duty not to permit discrimination by reason of

sex, race, religion or language

 States have a duty to promote universal respect for human

rights and to co-operate with each other to achieve this

objective

 tension between the universalism of human

rights and the relativism of cultural

traditions.

 can human rights only be approached within the

context of particular cultural or religious

traditions,

 Or human rights are universal or transcultural.

 customary international law

 Can they justify their actions by pleading

cultural differences

THE DEVELOPMENT OF INTERNATIONAL

HUMAN RIGHTS LAW

 Most human rights issues were at that stage universally

regarded as within the internal sphere of national jurisdiction.

 piracy jure gentium and slavery

 wounded soldiers and with prisoners of war 1864 League of

Nations in 1919

 set up the mandates system

 International Labour Organisation

 promotion of better standards of working conditions

 Second World War

 development of human rights law

 Basic Principles:

 Domestic Jurisdiction

 The exhaustion of domestic or local remedies rule

 Priorities of rights

 non-derogable Rights/ Inalienable

 possess a special place in the hierarchy of rights

 Customary international law and human rights

 prohibition of torture, genocide and slavery and the principle of non-discrimination

 constitute obligations erga omnes

 Prohibition of genocide:

 with intent to destroy, in whole or in part, a

national, ethnical, racial or religious group as

such’:

 (a) killing members of the group

 (b) causing serious bodily or mental harm to

members of the group

 (c) deliberately inflicting on the group conditions

of life calculated to bring about its physical

destruction in whole or in part

 (d) imposing measures intended to prevent births

within the group

 (e) forcibly transferring children of the group to

another group.

PROHIBITION OF DISCRIMINATION

 a principle relevant both to groups and to individual

members of groups.

 The International Convention on the Elimination

of All Forms of Racial Discrimination was signed

in 1965 and entered into force in 1969

 Racial discrimination is defined as:

 any distinction, exclusion, restriction or preference

based on race, color, descent or national or ethnic origin

which has the purpose or effect of nullifying or

impairing the recognition, enjoyment or exercise, on an

equal footing, of human rights and fundamental

freedoms in the political, economic, social, cultural or

any other field of public life.

THE PRINCIPLE OF SELF-DETERMINATION AS

A HUMAN RIGHT  International Covenants on Human Rights

provides that ‘all peoples have the right to self-

determination.

 ‘all peoples have the right, in full freedom, to

determine, when and as they wish, their internal

and external political status, without external

interference, and to pursue as they wish their

political, economic, social and cultural

development’

 It cannot be utilized as a legal tool for the

dismantling of sovereign states

 referred to the ‘right of every citizen to take part in

the conduct of public affairs at any level’.

 The protection of minorities

 International Covenant on Civil and Political

Rights in 1966

 in those states in which ethnic, religious or

linguistic minorities exist, persons belonging to

such minorities shall not be denied the right, in

community with the other members of their

group, to enjoy their own culture, to profess and

practice their own religion, or to use their own

language

THE UNITED NATIONS SYSTEM–

IMPLEMENTATION

--- United Nations

Third Committee Genera l Assembly Thematic rapporteurs

Human Rts Council Country rapporteurs

International tr ibunals Security Counci l

Sanctions committees

ECOSOC i------ expert bodies/standing committees eg permanent forum of indigenous issues Human Rights Committee (ICCPR) Committee on Economic, Social & Cultural Rights (CESCR) Committee on Elimination of Racial Discrimination (CERD) Committee on Elimination of Discrimination against Women (CEDAW)

i------i Treaty-based bodies i---+- Committee against Torture (CATI Committee on Rights of the Child (CRC) Committee on Migrant Workers (CMW) Committee on Rights of Persons with Disabilities (CRPD) Committee on Enforced Disappearances (CED)

-- Other UN agencies --- e.g. UN Children's Fund (UNICEF)

Regional institutions

European Court of Human Rights (ECHR) Inter-American Commission and Court of Human Rights (IACHR/IAC+HR) African Commission and Court of Human and Peoples Rights (ACHPR/AC+HPR) ASEAN Intergovernmental Commission Human Rights (AICHR)

Brief overview of global human rights institut ions

 Torture is defined in article 1 of the Convention against Torture to mean:

 [a]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or the acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions

THOUGHTS

 Most international human rights

conventions obligate states parties to take

certain measures with regard to the

provisions

 Most of the treaty bodies discussed above

require states parties to make periodic

reports

 The issue of proliferation of committees:

 problems concerned both with resources and

with consistency