TyroCity: Human Rights Law Notes

Human Rights Committee : jurisprudence

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

Even if not listed in article 4(2), some rights may not be derogated from because they are considered to be “inherent to the Covenant as a whole”
one such example is the right to judicial remedies in connection with arrests and detentions as set out in article 9(3) and (4)
Right to a fair trial for persons threatened with the death penalty.
The Committee has further held under the Optional Protocol that “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception”

General Comment 29 (2001)

In General Comment No. 29 adopted in July 2001, which replaces General Comment No. 5 of 1981, the Human Rights Committee confirms that “article 4 subjects both this very measure of derogation, as well as its material consequences, to a specific regime of safeguards.
With regard to the purpose of derogation, the Committee states that:
“The restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party derogating from the Covenant.”
As noted by the Committee, a State party must comply with “two fundamental conditions” before invoking article 4(1) of the Covenant, namely
(1) “the situation must amount to a public emergency which threatens the life of the nation” and(2) “the State party must have officially proclaimed a state of emergency”
condition of exceptional threat
The Covenant requires that even during an armed conflict measures derogating from the
Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation.
If States parties consider invoking article 4
in other situations than an armed conflict, they should carefully consider the justification.
“In order to discharge its function and to assess whether a situation of the kind described in article 4 (1) of the Covenant exists in the country concerned, it needs full and comprehensive information.

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

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.

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).

Protection mechanism for minority and Indigenous People

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

Constitutional Recognition.
Land Rights.
Language protection.
Self-determination.
Education and health facility.
protection of culture.
Commerce, employment and development process
Public awareness
Miscellaneous

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.

Measures and Issues of Rights of Minorities and Indigenous Peoples

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

Full measure of human rights and fundamental freedoms without hindrance or discrimination.
Special measures for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.
Such special measures shall not be contrary to the freely-expressed wishes of the peoples concerned.

Issues

Land right (Adequate procedures shall be established within the national legal system)
Enjoyment of the general rights of citizenship
life and work and levels of health and education
assess the social, spiritual, cultural and environmental impact on them of planned development activities.
effective protection with regard to recruitment and conditions of employment
Social security and health
Education and means of communication (special needs, and shall incorporate their histories, their knowledge and technologies)
Children belonging to the peoples concerned shall, wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong
Contacts and co-operation across borders: Governments shall take appropriate measures, including by means of international agreements, to facilitate contacts and co-operation between indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields.

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.

CEDAW Principles : Equality Between men and women

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

Three basic principles

Principle of non-discrimination,
Principle of state obligation, and
Principle of substantive equality (equality of results)

CEDAW obligates the State

to recognize women’s rights,
to provide the material and spiritual conditions so that women can enjoy them, and
to create the mechanisms for denouncing their violation and obtaining redress.

CEDAW defines discrimination as

an act that violates the principle of equality and it recognizes women as legal subjects equal to men in human dignity, establishing a concept of equality based on the protection of women’s human rights.

Article 1 also specifies that discrimination is prohibited “irrespective of their marital status” to emphasize that the Convention intends to eliminate all discrimination against women, including discrimination within matrimony.

the Convention’s definition prohibits discrimination in all spheres.
The last phrase “or any other field,” clearly includes the private or family sphere where so many violations of women’s human rights occur.
It also means that discrimination against any woman based on other conditions such as race, class, disability, or sexual identity is prohibited.
The convention intends to achieve not only de jure equality but de facto equality not only between men and women but also between women.
The goal is social transformation, social change that goes far beyond legislative change, though including it.

The Principle of State Obligation

The adoption of CEDAW was a first step in the necessary development of a judicial doctrine that joins equality between women and men and nondiscrimination against women with the principle of state responsibility.

Substantive Equality and Equality of Results

To achieve substantive equality in all spheres CEDAW requires two types of actions by the State:

actions to achieve equality of opportunity between men and women, and
actions to correct the inequalities of power between men and women.

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).

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

Meaning and Purpose of Examination and Cross Examination

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

Examination means testified to the witness about relevancy to find out witness knowledge, confidence, so no for the subject matter. Interrogative of witness by the opposition party is called cross examination. Cross examination is also said to be ‘ the greatest engine even invented for the discovery of earth.

Cross examination is’ the questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify.

Cross-examination ‘the most effective art of the skilled trial lawyer; the interrogative of a witness for the opposing party by questions formed to test the accuracy and truthfulness of his/her testimony on direct examination and to bring out the truth of matter in issue; an absolute rights in action and proceeding.

According to Taylor, cross-examination is ‘the motives to prevent truth are so much numerous in judicial investigation than in the ordinary affairs of life that the danger of injustice arising from this cause’

Cross-examination of the witness is the process of purity the fact from the witness of the opposite party. It does not protect the rights of the party, must have both the right and opportunity of cross-examination. Cross-examination is one of the greatest weapon of the testing the veracity of a statement made by a person. It is both, sword of attack and a side of defense.

Purpose:

Cross-examination is designed to serve one or more of the following purposes as

To damage or destroy the opponent,
To substantially discredit the witness,
To support one’s own the case

According to Cross and Wilkins, the objective of cross-examination on conducted or on behalf of the opposite party are

to elicit evidence directly relevant to the issued which is favorable to the cross-examiners case and
To discredit the witness.

The very purpose of the cross-examination is to ask the question regarding to what the witness has stated in the examination in –chief are in the case of that witness and particularly when the witness is a party to the proceeding of that party.The entire questions which are asked with a new challenge the evidence-in – chief are permissible .The motives to prevent truth are so much more numerous in judicial investigation than in the ordinary affairs of life and the danger of injustice arising from this cause.