TyroCity: International Human Rights Law Notes

Art. 16: recognized everywhere as a person before the law

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

laws or practices that prevent women from being treated or from functioning as full legal person.
particularly pertinent for women, who often see it curtailed by reason of sex or marital status.
this right implies that the capacity of women to own property, to enter into a contract or to exercise other civil rights may not be restricted on the basis of marital status or any other discriminatory ground.

Female Juveniles

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Compliance with the rule that accused juvenile females shall be separated from adults and on any difference in treatment between male and female persons deprived of liberty, such as access to rehabilitation and education programmes and to conjugal and family visits.

Distinct features of Minorities and Indigenous Peoples

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Distinguished characteristics.
Group Identity.
Individual belonging to the group.
Protection of the rights under international standards.

ILO 169

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Self-identification, right to decide their own priorities
Assimilationist orientation of the earlier standards.
full realisation and respect of their social and cultural identity, their customs and traditions and their institutions.
eliminate socio-economic gaps
The integrity of the values, practices and institutions of these peoples shall be respected

Who are Minority

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

All states have minority populations that belong either to a national, ethnic, religious, cultural, or linguistic group, and which may be distinguished from the numerical majority.

There is no formal definition in international law of who constitutes a minority, there appears to be a consensus that a “numerically smaller, non-dominant group distinguished by shared ethnic, racial, religious, or linguistic attributes” captures the meaning of the term.

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992.

In 1979, Francesco Capotorti, who was the Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, formulated the most widely used definition of a minority.

A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the state – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.

Basis of CRC

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the child is an individual
the child has special needs
the child needs support and protection
the child’s integrity must be respected
the child’s right to express his/her opinion
the child has his/her own rights

The right to survival and development

The principle most directly related to children’s economic and social rights is formulated in the right to life article. The article goes further than just granting children the right not to be killed; it includes the right to survival and development which is formulated in Article 6:2 and states thus: “State parties shall ensure to the maximum extend possible the survival and development of the child.”

Non-Discrimination

One general principle as identified by the committee on the rights of the child is that all children should enjoy their rights and should never be subjected to any discrimination.
The obligation to provide equality of opportunities among children is expressed in Article 2, the first paragraph of which reads: “States parties shall respect and ensure the rights set forth in the present convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s parents or legal guardian, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, poverty, disability, birth or other status.”

Core provisions

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.

Necessary steps:

To prevent and suppress the slave trade;
To bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.

Note:

The Convention also mentioned that “compulsory or forced labour may have grave consequences”

International Standards

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

In 1919 the League of Nations developed the first modern regime for the protection of minorities.
Thus a number of new states, including Albania, Turkey, Austria, Greece, Poland, Hungary, Czechoslovakia, Yugoslavia, Bulgaria, and Romania were required by the victors to sign special treaties for the protection of the ethnic, linguistic, and religious minorities within their borders.
Jurisprudentially, the League’s system protected a wide array of minority rights, including the right to equal treatment and non-discrimination; the right to citizenship, with an option to retain a second citizenship; the right to use the group’s language; the right to establish and control charitable, religious, and social institutions; a duty on the state to support minority schools,
The UN Charter itself proclaimed, in part, that one of its “purposes” was to promote and encourage “respect … for fundamental freedoms for all without distinction as to race, sex, language, or religion.”
In 1947, the UN established the Sub-Commission on Prevention of Discrimination and Protection of Minorities.
In 1960, the United Nations Educational, Scientific and Cultural Organization [UNESCO], adopted the Convention Against Discrimination in Education, which recognized the right of minority groups to carry out their own educational activities, establish their own schools, and instruct students in their own language.

Philosophers Views

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Existence of Human Rights:

The earliest rules about standards of behaviour among people dealt with prescribing or prohibiting conduct that experience proved was likely to lead to conflict.
The great religions of the world – Hinduism, Christianity, Buddhism, Islam, and others – have all sought to establish comprehensive, coherent moral codes of conduct based on divine law.

Philosophic Writings

The Natural or Divine Law
Social Contract
State Sovereignty
But until the 17th century such attempts to establish a framework for such rules, laws and codes, whether in social, legal, secular or theological debate, emphasised duties and privileges that arose from peoples’ status or relationships, rather than abstract rights that, philosophically, preceded or underlay those relations or laws.
attention moved from social responsibilities to the individual’s needs and participation.
It was seen as fundamental to the well-being of society, under the influence of philosophers such as Grotius, Hobbes and Locke, Then, these rights were called ‘natural’ rights, or ‘the rights of man’.
These natural or moral rights became part of the political agenda.

PLATO

for Plato, the gods are not absolute, but their authority comes from their participation in an ultimate order, which is here called “the just”
This order is what justifies the religious claims of the gods on humans the same way it justifies the moral claims of humans on other humans.
Developing this notion in the Republic, Plato designates as “ideas,” not in the modern sense of being produced by human minds, but in the ancient sense of being realities which are capable of being thought by human minds in acts of truly intelligent discovery.
The principles are not subject to the control of kings (representative of god). That is why natural law is much more than what is postulated by human reason, which could just as easily take it away as give it.
Human reason intends this divine order. Human reason is discovered, not invented. It alone is autonomous.

Aristotle calls this reality both “the divine” and “the God”. Common to Plato, Aristotle admits that “nature” is divine.

Since human rationality and human sociality are two sides of the same coin, this access to the cosmic order is of immediate political significance.
Only a society whose law is based on nature is worthy of the moral allegiance of any rational person.

Hobbes' political writings set out the rational grounds for obedience to authority; while maintaining that those grounds consisted in the natural rights of individuals, prior to and outside of the existence of the state. The state of nature was characterized by a fundamental equality:

According to Locke “the State of Nature has a Law of Nature to govern it,” which is the reason; and that reason “teaches all Mankind . . . that . . . no one ought to harm another in his Life, Health, Liberty, or Possessions.”

Reason, as law of nature, likewise indicates that everyone is bound to preserve himself and to preserve the rest of mankind as well. Since the “Fundamental Law of Nature” dictates that man should be preserved, he has a right to destroy anyone who threatens him with destruction or enslavement.

–Locke says that “men being, as has been said, by Nature, all free, equal and independent, no one can be put out of this Estate, and subjected to the Political Power of another, without his own Consent.”

He says that “the Freedom then of Man and Liberty of acting according to his own Will, is grounded on his having Reason, which is able to instruct him in that Law he is to govern himself by . . . .” Thus, he says, “we are born free, as we are born Rational.

A state of nature as the origin of rights and consent as the basis for legitimate sovereignty.

Rousseau

“Man is born free, and everywhere is in chains,” he writes in the beginning of On the Social Contract. “Since no man has a natural authority over his fellow man,” Rousseau writes, “and since force does not give rise to any right, conventions, therefore, remain the basis of all legitimate authority among men.”

The transition from the state of nature to the civil state takes place when each individual alienates his rights to the whole community, which is expressed in the general will.
the state of nature was characterized by simplicity and innocent goodness.
In civil society, the individual alienates his rights to the community as a whole: “Each of us places his person and all his power in common under the supreme direction of the general will; and as one we receive each member as an indivisible apart of the whole.”
Sovereignty is then “merely the exercise of the general will,” and the sovereign is the “collective being” that the general will represent. Since the citizen participates in the general will by virtue of his membership in the body politic, the citizen is–in some sense–the sovereign. However, the exercise of sovereign power concerns only public (civil) matters.
The social contract, according to Rousseau, involves a transformation from inequality to equality.
Within the social contract tradition, the claim that individuals possess rights prior to and apart from the state is the basis for determining both the legitimacy and the limitations of the acts of the state. At the same time, the state is the only body which enforces and protects one’s rights.
For the social contract theorists, the individual in the state of nature had “rights.” But this did not mean that he or she would be able to unlimited exercise or act on those rights.
“having” natural rights to everything did not mean that an individual actually had everything.
To have rights, after the formation of society, means that there are limits on the acts of the sovereign and the individual is entitled to take certain actions against the sovereign if these limits are violated.

Hugo Grotius is considered to be the founder of modern natural right theory as well as the founder of modern international law

Grotius’s statement that “the Mother of Right, that is, of Natural Law, is Human Nature.”
There is a body of law adequate for the basic normative needs of any human society.
This body of law is independent of any divine command, being accessible to human reason.

Types of Human Rights

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Individual (civil) rights
life, liberty, and security of the person; privacy and freedom of movement; ownership of property; freedom of thought, conscience, and religious belief and practice; prohibition of slavery, torture, and cruel or degrading punishment.

Rule of law
equal recognition before the law and equal protection of the law; effective legal remedy for violation of rights; impartial hearing and trial; presumption of innocence; and prohibition of arbitrary arrest.

Rights of political expression
freedom of expression, assembly, and association; the right to take part in government; and periodic and meaningful elections with universal and equal suffrage.

Economic and social rights
an adequate standard of living; free choice of employment; protection against unemployment; “just and favorable remuneration”; the right to form and join trade unions; “reasonable limitation of working hours”; free elementary education; social security; and the “highest attainable standard of physical and mental health.”

Rights of communities
self-determination and protection of minority cultures.

Three Generations (Phases) of Human Rights Philosophy

Enlightenment (17th-18th Century)
The first tier or “generation” consists of civil and political rights and derives primarily from the seventeenth and eighteenth-century political theories noted earlier which are associated with the English, American, and French revolutions. Think “life, liberty, and the pursuit of happiness.” This approach favors limiting government by placing restrictions on state action. The rights set forth in Articles 2-21 of the Universal Declaration of Human Rights include: freedom from discrimination; freedom from slavery; freedom from torture and from cruel, inhuman, or degrading treatment; freedom from arbitrary arrest and detention; the right to a fair and public trial; freedom of thought, conscience, and religion; freedom of opinion and expression; and the right to participate in government through free elections.

Socialist tradition (19th century)
The second generation of rights broadens the primarily political focus of of earlier views to include economic, social, and cultural rights. This view originates primarily in the socialist traditions of Marx and Lenin. According to this view, rights are conceived more in positive rather than negative terms, and thus encourage the intervention of the state. Illustrative of these rights are Articles 22-27 of the Universal Declaration of Human Rights. They include the right to social security; the right to work; the right to a standard of living adequate for the health and well-being of self and family; and the right to education.

The third generation of “solidarity rights” (20th century)
These views are a product of the rise and decline of the nation-state in the last half of the twentieth century. These rights have been championed by the Third World and remain somewhat controversial and debated. The specific rights include the right to political, economic, social, and cultural self-determination; the right to economic and social development; and the right to participate in and benefit from “the common heritage of mankind.”

Phases of Trial

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

1. Pre-trial: before a judicial body accepts the accusation

2. Trial: accusation to conviction or acquittal at initial jurisdiction

3. Post-trial: punishment/recovery and revision

Pretrial Protections

Right against arbitrary arrest and detention
Right against arbitrary interference on privacy
Right to humane treatment and protection of human dignity
Right to have judicial supervision and remedy
Clear notice of charge, rights and consequences.
Sound health, access to outside world.
Facilities for defense preparation.

Trial Protections

Equality of arms
Ensured safe and fearless environment and full respect of dignity
Review and recourse of the Pretrial protections
Public hearing
Counsel and defense support
Timely disposal
Fair examination of witnesses
Well-informed about charges and possible
Use of appropriate punishment among alternatives
Reasoned judgment

Post-trial Protections

Informed punishment and appealing process
Explaining the consequences and duration of punishment and role thereafter
Correctional programmes and protection against potential abuses
Preparation of reintegration
Rehabilitation
Compensation (Redress, financial support and Rehabilitation)

The views of the child

Human Rights Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

The principle is formulated in Article 12:1 which states that “States parties shall assure to the child who is capable of forming his or her own views the rights to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.