TyroCity: Human Rights Law Notes

Best interests of the child

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

The principle of the best interest of the child, has been formulated in Article 3:1.
“In all actions concerning children whether undertaken by public or private social welfare institution, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”

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

Development Projects v. Rights of Indigenous peoples rights

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

World Commission on Dams finds that:

Large dams have had serious impacts on the lives, livelihoods, cultures and spiritual existence of indigenous and tribal peoples. Due to neglect and lack of capacity to secure justice because of structural inequities, cultural dissonance, discrimination and economic and political marginalization, indigenous and tribal peoples have suffered disproportionately from the negative impacts of large dams, while often being excluded from sharing in the benefits.

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”

State of Emergency as Exceptional Situation

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

States may apply various terms to the special legal order introduced in crisis situations such as “state of exception”, “state of emergency”, “state of alarm”, “state of siege”, “martial law” and so forth.
These exceptional situations often involve the introduction of special powers of arrest and detention, military tribunals etc.
State of emergency may be declared under exceptional circumstance or condition.
Some fundamental rights may never in any circumstances be derogated.
The right to derogate must be interpreted so as not to sap (undermine) the individual rights of their substance.
Derogations are not permitted under the African Charter on Human and Peoples’ Rights.

Note: compare Article 4 of ICCPR/General Comment 29 with provisions of constitution on emergency.

Regional Human Rights Framework

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

European Human Rights Standards and Mechanisms.
Inter-American Human Rights Standards and Mechanisms.
African Human Rights Standards and Mechanisms.
Asian

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.

The right to free, informed and prior consent by indigenous people

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

“(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;

“(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them …”.

Conflicts over development projects on the lands of indigenous peoples lead to further violations of human rights. For instance, forced evictions from their traditional lands may lead to breaches of civil and political rights such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home, and the right to the peaceful enjoyment of possessions.

Some States legislation

The Aboriginal Land Rights (Northern Territory) Act 1976 (amended in 1987) of Australia
The Indigenous Peoples Rights Act 1997 of the Philippines recognizes the indigenous right to ancestral domain and the land title to traditional lands.

Human rights during emergency

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

Some human rights are absolute and may never, in any circumstances, be suspended.
However, states may suspend certain rights in emergencies under the terms of several international human rights treaties.
Derogations have therefore also been called “extraordinary limitations” on the exercise of human rights

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 American Convention on Human Rights,1969, and its Protocols of 1988 and 1990

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

The Convention reinforced the Inter-American Commission on Human Rights, which since 1960 had existed as “an autonomous entity of the Organization of American States”.
It became a treaty-based organ which, together with the Inter-American Court of Human Rights, “shall have competence with respect to matters relating to the fulfilment of the commitments made by the States Parties” to the Convention (art. 33).
In 1988, the General Assembly of the OAS further adopted the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, also called the Protocol of San Salvador.
Lastly, in 1990 the General Assembly also adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which entered into force on 28 August 1991
American Convention on Human Rights also expressly recognizes “that the essential rights of man are not derived from one’s being a national of a certain State, but are based upon attributes of the human personality”.

Declaration on Minorities, 1992

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

Persons belonging to minorities the right to participate effectively in cultural, religious, social, economic and public life.
It guarantees individual members of minority groups the right “to participate effectively” in national and regional decisions concerning them.

International Standards:

Draft Declaration on the Rights of Indigenous Peoples, 1994
Indigenous and Tribal Populations Convention, ILO 107, which was revised
Indigenous and Tribal Peoples Convention, 1989 (No. 169) entered into force September 5, 1991.