TyroCity: International Human Rights Law Notes

Cultural Relativism

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

Cultural Relativism is a philosophy that believes that when it comes to matters of right and wrong, and other values of a moral nature, that there are no absolutes, or any fixed truth, but rather that all is relative.

Cultural background is one of the primary sources of identity.
It is the source for a great deal of self-definition, expression, and sense of group belonging.

As cultures interact and intermix, cultural identities change. The current insecurity of cultural identity reflects fundamental changes in how we define and express who we are today.
Cultural relativism is the assertion that human values, vary a great deal according to different cultural perspectives.
Some would apply this relativism to the promotion, protection, interpretation and application of human rights which could be interpreted differently within different cultural, ethnic and religious traditions.

The relativist position can be understood simply to assert as an empirical matter that the world contains diversity in views about right and wrong linked to the diverse underlying cultures.

According to Jack Donnelly,

Radical CR: Culture as a sole source
Strong CR: Culture as Important Source
Weak CR: Culture may be one of the important sources.

Can Cultural Relativism go along with Human Rights?

If cultural tradition alone governs state compliance inconsistent with international standards, then widespread disregard, abuse and violation of human rights would be given legitimacy.
By rejecting or disregarding their legal obligation to promote and protect universal human rights, States advocating cultural relativism could raise their own cultural norms and particularities above international law and standards.

Accommodating Culture:

Cultures should be approached and recognized as partners to promote greater respect for and observance of human rights.
Drawing on compatible practices and common values from traditional cultures would enhance and advance human rights promotion and protection. This approach not only encourages greater tolerance, mutual respect and understanding, but also fosters more effective international cooperation for human rights.
Traditional culture is a cultural context in which human rights must be established, integrated, promoted and protected.
Human rights must be approached in a way that is meaningful and relevant in diverse cultural contexts.
The traditional value can be used as best tool if incorporated in a reciprocal manner (for example gender roles)

Concerns and Consensus of Human Rights

Addressed numerous concerns, including genocide, slavery, torture, racial discrimination, discrimination against women, rights of the child, minorities and religious tolerance etc.
The international consensus is embodied in the language of the Universal Declaration itself.
The universal nature of human rights is literally written into the title of the Universal Declaration of Human Rights.
Its Preamble proclaims the Declaration as a “common standard of achievement for all peoples and all nations”.

UDHR

Everyone has the right freely to participate in the cultural life of the community (Article 27 )

ICESCR

Right of everyone: …To take part in cultural life. (Art, 15)

ICCPR

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.

Protection of Cultural Rights

Human rights which relate to cultural diversity and integrity encompass a wide range of protections, including: the right to cultural participation; the right to enjoy the arts; conservation, development and diffusion of culture; protection of cultural heritage; freedom for creative activity; protection of persons belonging to ethnic, religious or linguistic minorities and so on.

Vienna Declaration states in its first paragraph that “the universal nature” of all human rights and fundamental freedoms is “beyond question”.
The unquestionable universality of human rights is presented in the context of the reaffirmation of the obligation of States to promote and protect human rights.
he Vienna Declaration, however, provides explicit consideration for culture in human rights promotion and protection, stating that “the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind”.
This is deliberately acknowledged in the context of the obligation of States to promote and protect human rights regardless of their cultural systems. While its importance is recognized, cultural consideration in no way diminishes States’ human rights obligations.
The legal obligation is reaffirmed for all States to promote “universal respect for, and observance and protection of, all human rights and fundamental freedoms for all”.
It is clearly stated that the obligation of States is to promote universal respect for, and observance of, human rights. Not selective, not relative, but universal respect, observance and protection.
All Member States of the United Nations have a legal obligation to promote and protect human rights, regardless of particular cultural perspectives.
Everyone is entitled to human rights without discrimination of any kind.
To deny human rights on the grounds of cultural distinction is discriminatory. Human rights are intended for everyone, in every culture.

State responsibility

Human rights are the birthright of every person.
If a State dismisses universal human rights on the basis of cultural relativism, then rights would be denied to the persons living under that State’s authority.
The denial or abuse of human rights is wrong, regardless of the violator’s culture.

Human Rights, Cultural Integrity and Diversity

Universal human rights do not impose one cultural standard, rather one legal standard of minimum protection necessary for human dignity.
Like most areas of international law, universal human rights are a modern achievement, new to all cultures. Human rights are neither representative of, nor oriented.
towards, one culture to the exclusion of others. Universal human rights reflect the dynamic, coordinated efforts of the international community to achieve and advance a common standard and international system of law to protect human dignity.

Cultural Rights: Limitation

Every human being has the right to culture, including the right to enjoy and develop cultural life and identity .
The right to culture is limited at the point at which it infringes on another human right.
No right can be used at the expense or destruction of another, in accordance with international law.

Violation of Human rights

This means that cultural rights cannot be invoked or interpreted in such a way as to justify any act leading to the denial or violation of other human rights and fundamental freedoms.
As such, claiming cultural relativism as an excuse to violate or deny human rights is an abuse of the right to culture.
There are legitimate, substantive limitations on cultural practices, even on well-entrenched traditions. For example, no culture today can legitimately claim a right to practice slavery.
Despite its practice in many cultures throughout history, slavery today cannot be considered legitimate, legal, or part of a cultural legacy entitled to protection in any way.
All forms of slavery, including contemporary slavery-like practices, are a gross violation of human rights under international law.

Similarly, cultural rights do not justify torture, murder, genocide, discrimination of any kinds.

In Sum,

Cultural as ways of life
Particular identity
Non-interference
No harm culture
National and international concern
Cultural right as human rights

European Human Rights Instruments

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

European Conv. on HR and FF (ECHR) (1950).
European Social Charter (1961).
European Conv. for the Prevention of Torture
and IDTP (1989).
European Charter for Regional & Minority Languages (1992).
Framework Conv. for the Protection of National Minorities (1995).
European Conv. on Exercise of Childrens Rights (1996)
European Conv. on Human Rights & Biomedicine (1997)

Europe: CoE System – Institutions

Secretary-General

Head of CoE Secretariat
Serves as depository for ratifications, reservations, renunciations
Receives collective complaints under Europ. Social Charter

Committee of Ministers

Primary decision-making body
Consists of foreign ministers or
deputies of member States
Executes Court judgments; considers new applications; monitors compliance; adopts resolutions.

Europe: European Union System

European Court of Justice (ECJ)

Highest court interpreting EU law
Initially reluctant to address HR issues but had to reconcile EU provisions with rights of nationals
European Court of HR (CoE) and ECJ
Overlaps jurisdictionally; may have conflict

Impact of EU System in HR

Pioneer in economic rights, incl. labor regulations
Strong work in combating discrimination
Regional authority on social rights

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.

Historical Documents and Declarations

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

The Magna Carta of 1215 and 1225

Magna Carta 1215

King John in 1215, was forced to sign Magna Carta.
In Chapter 52 of this Magna Carta, King John agreed to restore the rights.
Chapter 55 provided that all “fines made with us unjustly and against the law of the land imposed unjustly and against the law of the land, shall be entirely remitted.”
Chapter 39 Concept of due process of law: “No freeman shall be taken or [and] imprisoned or diseased or exiled or in any way destroyed … except by the lawful judgment of his peers or [and] by the law of the land.”
Accordingly, the king agreed that in the future he would not deprive freemen of their lives, liberties, or properties unless it was required by a legitimate law, and then, only pursuant to fair and proper procedures.
He thereby ordered authority not to apply retroactive or other oppressive laws destroying or damaging freemen as had previously been his practice.

Magna Carta 1225

King John died in October 1216. After the death of King John, his nine years old son Henry III succeeded.
Chapter 29 of the 1225 charter broadened and replaced Chapter 39 of King John’s charter and provided as follows:
“No freeman shall be taken, or imprisoned, or be diseased of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.”
By its terms, Chapter 29 of the 1225 Charter was a greater limitation on royal powers than Chapter 39 of John’s Charter, but its meaning, and that of subsequent confirmatory statutes, had to await interpretation by the common-law judges. The English people regarded Henry’s Magna Carta – and subsequent statutes broadening its guarantees – as preserving and protecting their lives, liberties, and properties. Those who migrated to America, and their descendants who lived there, asserted these “rights of Englishmen” against restraints imposed by the English authorities.
In sum,
- The Magna Carta has been considered as a Great Charter contributing in the development of concept of rule of law
- The concept of fair trial can be seen landmark in the Charter.
- Similarly it recognized the concept of rule of law intending a legal system that would no longer be based on an individual ruler’s system of laws, but a system of laws that even a ruler would have to abide by.
- Until Magna Carta, English Kings ruled with absolute power and the people had only little freedom the kings chose to give them.

Petition of Rights 1628:

It is called a second greatest constitutional charter of the liberties of England.
Clauses 1, XI were related to the rights and freedoms of the citizens. These rights and freedoms include trial by court/jury.
No tax without permission of the represent
atives of people.
Principle of due process.
Unnecessary search and seizure were restricted.

English Bill of Rights 1689

Another important document from the early history of human rights is English Bill of Rights from 1688, an act declaring rights and liberties of citizens. It was a tremendous step towards the development of a true limited government. Among other things, the English Bill of Rights prohibited the king from forming armies without authorization from parliament, (By raising and keeping a standing army within this kingdom in time of peace without consent of parliament, and quartering soldiers contrary to law.)
Prohibited summarily increasing taxes and using unreasonable fines or cruel and unusual punishment
It also provided the “suspending laws without the consent of parliament is illegal, “
“election of members of parliament ought to be free”, and
“Freedom of speech ought not to be impeached or questioned.”

Habeas Corpus Act, 1679

Amendments in 1888, 1967, 1971, and 1976
Habeas corpus Act was intended to protect personal liberty and security of person.
Earlier there were severe prerogatives of the king and king could make an order punishing the individuals without any case.
The writ of habeas corpus was first time England and perhaps even the world was introduced to protect personal liberty.
There was a provision that the writ of habeas corpus was to be issued even in the vacations by the judge.

Historical Declarations:

The French and American Declarations:

In the eighteenth century, two historical events and two documents made a remarkable contribution to the constitutional development of the concept of human rights.

American Declaration of Independence, 1776
In 1776, most of the British colonies in North America proclaimed their independence from the British Empire.

French Declaration of the Rights of Man and of the Citizen, August 26, 1789
In the 1789, the people of overthrew their monarchy and established the first French Republic. Later that year the National Assembly of France adopted Declaration of the Rights of Man and of the Citizen.

American Declaration of Independence, 1776

The American Declaration of Independence begins by proclaiming the people’s dissolution of the existing political bands, “to assume among the powers of the earth the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”
According to the Declaration of Independence, it is a “self-evident” truth that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights,” which include “Life, Liberty, and the pursuit of Happiness.”
These rights are prior to government and legitimate government is a convention based upon consent: “to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed.”
The people retain the right to dissolve a government: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.”

The French Declaration of the Rights of Man and Citizen of 1789

“ignorance, forgetfulness or contempt of the rights of man, are the sole causes of the public miseries and of the corruption of governments,” and then sets forth the “natural, inalienable, and sacred rights of man.

Basic Features of The Declaration of the Rights of Man:

Men are born and remain free and equal in rights.
The aim of every political association is the preservation of the natural and imprescriptible rights of man.

These rights are liberty, property, security, and resistance to oppression.

Art. 4. Liberty consists in the power to do anything that does not injure others; accordingly, the exercise of the natural rights of each man has no limits except those that secure to the other members of society the enjoyment of these same rights. These limits can be determined only by law.

Art. 6. Law is the expression of the general will. It must be the same for all, whether it protects or punishes. all citizens are equal in its eyes..

Art. 11. The free communication of ideas and opinions is one of the most precious of the rights of man; every citizen then can speak, write, and print, subject to responsibility for the abuse of this freedom in the cases determined by law. . . .

Art. 17. Property being a sacred and inviolable right, no one can be deprived of it, unless a legally established public necessity evidently demands it, under the condition of a just and prior indemnity.

Both Declarations invoked the concept of rights, in roughly the same sense as this notion was formulated by the social contract theorists:

First, rights inhere in individuals and precede the formation of the state.
Second, the original rights held by individuals pertain to their self-interest–their sustenance, their self-preservation, their freedom to pursue their own ends and desires. This freedom is a negative freedom, that is, freedom from prohibitions.
Finally, these rights speak to the relation between the individual and the state.

Africa: African Union System (2002)

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

Formerly Organization of African Unity (OAU)

Created in 1963 in wake of decolonization; 53 members.
Facilitates inter-African relations and
provides forum for African policy vis-à-vis 3d States.

Youngest of developed regional systems

HR not major priority in OAU Charter
OAU States reluctant to intervene in cases of systematic HR abuses

Less homogeneous than other regional systems

Different legal and linguistic traditions due to colonialism
BUT strong tradition of rights and individual-community link

Adoption of Slavery Convention

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

Report of the temporary Slavery Commission appointed by the Council of the League of Nations on June 12th, 1924.

Prohibited Slavery to prevent forced labour from developing into conditions analogous to slavery.

Complete abolition of the slave trade.

Adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions (violations).

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.

Art. 27: Minorities and WHR

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

The rights which persons belonging to minorities enjoy under article 27 of the Covenant in respect of their language, culture and religion do not authorize any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law.

(communication No. 24/1977, Sandra Lovelace v. Canada, Views adopted July 1981)

Art. 19: Information and WHR

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

Any laws or other factors which may impede women from exercising the rights protected under this provision on an equal basis.

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.

Art. 17: Privacy and WHR

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

Women’s privacy also relates to their personal life and reproductive functions. An example of such interference arises where the sexual life of a woman is taken into consideration in deciding the extent of her legal rights and protections

Reproductive rights: forced pregnancy, abortion, spacing etc.

Art. 18: Religion and WHR

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

These freedoms, protected by article 18, must not be subject to restrictions other than those authorized by the Covenant and must not be constrained by, inter alia, rules requiring permission from third parties, or by interference from fathers, husbands, brothers or others.

States parties should therefore provide information on the status of women as regards their freedom of thought, conscience and religion, and indicate what steps they have taken or intend to take both to eliminate and prevent infringements of these freedoms in respect of women and to protect their right not to be discriminated against.