TyroCity: International Human Rights Law Notes

ICCPR: Article 27

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

ICCPR provides that, “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 other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”
In 1994, the Human Rights Committee, the ICCPR’s treaty body, issued General Comment 23 on Article 27 of the ICCPR.
General Comment 23 was at pains to assure states that Article 27 did not envision the grant to minorities the right of self-determination (Art 1 of the Covenant)
Several other regional and universal human rights documents continue the theme of equal protection and anti-discrimination.
The Council of Europe undertook similar commitments in the 1995 Framework Convention for the Protection of National Minorities.
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) 1965-Art. 1
The 1981 UN anti-discrimination declaration on religion or belief also made a useful contribution to minority rights
Genocide Convention, 1948
ICC-Article 6
Others
The UN Commission on Human Rights [Human Rights Council] established the open-ended Working Group on Minorities, the body that drafted the 1992 Declaration on the Rights of Minorities.

Issues and Rights of the child

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

Standard of child.
Sex selective abortion.
Female genital mutilation.
Best interest of the child should be protected.
Right to life, to have identity, name, nationality.
Right against separation from family,
Right to contact with parents
Right against illicit transfer
Right to expression, freedom of thought, religion
Right to association, assembly
Right against arbitrary interference, right to privacy

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.

Standardized Indicators of Fair Trial

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

Recognized Principles of Criminal Law and Justice

To adhere to the fair trial standards, characteristics and principles of criminal law require following components:

Characteristics

Legitimacy: Criminal law requires to be framed by legitimate source, i.e., the crime should be defined in law made by the people’s legislative organ and it may not be authorised to be governed by delegated legislation. Similarly, substance and procedure of legislation should be from legitimate, formal and authentic source;

Specificity: Criminal law should provide strict definitions of particular act/omission as crime;

Regularity: Criminal law should be originated form legitimate source with full guarantee of its applicability to all persons regardless of their social status;

Uniformity: Enforcement of the laws against anyone who violates them, regardless of his/her social status; and,

Punishability: Law violators should be punished or at least be warned of punishment by State.

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.

Rights of Indigenous Peoples

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

It is not possible to discuss the rights of minorities without any reference to the rights of indigenous peoples, a category of peoples whose issues are analogous to those of minorities.
Many indigenous peoples also tend to be minorities, they have pressed for, and been accorded, a separate regulatory regime under international law.

Concept of Fair Trial

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

Fair means having the qualities of impartiality and honesty. It is free from prejudice, favoritism and self interest. A fair trial does not mean fair judgment but it means, “Getting a fair judgment through legal means or due process.” Means to get the truth includes the investigation conducted by the police, Prosecutors defense lawyers, and how to prove evidence during the trial.

The right to fair trial is a core element in the concept of rule of law, as well as for the protection of human rights.

The protection of the right to a fair trial in civil and criminal proceedings is vital in any democratic society.

The term ‘fair trial’ comprise all processes of criminal justice commencing from the investigation to ultimate stage of trial.

Fair trial is for ensuring scientific mechanism of crime investigation and imposition of punishment for public safety. Therefore, notion of fair trial requires very scientific approach of functioning of all the agencies involved in investigation, prosecution, adjudication and administration of correctional systems.

Fair trial has been central concern of international community in respect of protection, promotion and fulfilment of civil and political rights throughout world. It has been considered as most crucial measure required to be applied for the administration of justice, particularly, the criminal justice.

In a fair trial,

Examination of allegation is done. It is performed by prosecutor.

Examination of evidence is done. It is performed by defense lawyer.

Liability is determined. It is carried out by the Judge.

Why is Fair Trial needed?

State v. Individual

Suspect is in Custody

Suspect is affected by Circumstances

Suspect May Lack Resources

How Fair Trial work in the Criminal Proceedings?

Minimize the Danger of Police Power being Abused.
Safeguards against Illegal and Improper Interference,
Protects Suspects Rights relating to Arrest and Detention.

Female Prisoners and Reproductive health

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

Pregnant women who are deprived of their liberty should receive humane treatment and respect for their inherent dignity at all times, and in particular during the birth and while caring for their newborn children;

States parties should report on facilities to ensure this and on medical and health care for such mothers and their babies.

Dissolution of marriage

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

Women should also have equal inheritance rights to those of men when the dissolution of marriage is caused by the death of one of the spouses.

The grounds for divorce and annulment should be the same for men and women, as well as decisions with regard to property distribution, alimony and the custody of children.

Complaint Mechanism

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

The Inter-American Commission on Human Rights is competent to receive petitions concerning alleged human rights violations:

from any person or group of persons, or any legally recognized non-governmental entity; this competence is mandatory (art. 44); from one State party against another State party, if such competence has been recognized (art. 45).
The Inter-American Court of Human Rights is competent to examine cases submitted to it by the States parties and the Commission provided that these cases have first been considered by the Commission (art. 61).

Access to justice and WHR

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

State parties should report the situation whether there are legal provisions preventing women from direct and autonomous access to the courts (see communication No. 202/1986, Ato del Avellanal v. Peru, Views of 28 October 1988);
Examine whether women may give evidence as witnesses on the same terms as men.
whether measures are taken to ensure women equal access to legal aid, in particular in family matters.
States parties should report on whether certain categories of women are denied the enjoyment of the presumption of innocence under article 14, paragraph 2, and on the measures which have been taken to put an end to this situation.

The African Charter on Human and Peoples’Rights, 1981

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

It entered into force on 21 October 1986
The Charter contains a long list of rights, (Human and peoples’ rights) covering a wide spectrum not only of civil and political rights, but also of economic, social and cultural rights.
Duty towards groups and individual.
fundamental human rights stem from the attributes of human beings, which justifies their national and international protection”.

Duty

Article 27 states: “every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community”.
Next, article 28 concerns the individual’s duty towards other individuals.
The African Charter further created the African Commission on Human and Peoples’ Rights, “to promote human and peoples’ rights and ensure their protection in Africa” (art. 30).
In 1998, the Protocol to the Charter on the Establishment of an African Court of Human Rights was also adopted.

Enforcement

It has the twofold function,

first, of promoting human and peoples’ rights, and, (reporting every after two years by state parties)
second, of protecting these rights (art. 30), including the right to receive communications both from States and from other sources.

AU Instruments: African Charter on Human and Peoples’ Rights

Pioneered HR protection in Africa (EIF in 1986); 53 State members today (2d largest!)
Lists rights & duties of individuals and groups

African-oriented; promotes and protects traditional community values

Lack clear definitions; harder to enforce
States may not derogate during emergency

But limitations exist (e.g., right to leave country)