TyroCity: Human Rights Law Notes

UN Charter and Human Rights

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

Pre-UN International Effort: The League of the Nations (LN)

President Wilson in 1918 presented 14 points programme to end war and create a world dedicated to JUSTICE and FAIR Dealing.
The War ended after the Paris Peace Conference 1919.
Treaty of Versailles 1919 created the league of Nations.
The Covenant of the LN, including amendment, 1924
Total 26 Articles

Objectives of the LN

Adopted in order to promote international co-operation
To achieve international peace and security
Understanding of International Law as the actual rule of conduct among Governments
Maintenance of Justice for people.

Contribution of the LN towards Human Rights

Restoration of peace by friendly international relations
Dispute resolution through Council

Article 22 and 23 are Contributory

Article 23:

Principle of Well-being and Development of people of colonial territories
Freedom of Conscience and religion
Prohibition of abuses such as the slave trade

Article 23: Landmark

Secure and maintain fair and Humane conditions of labour for men and women and children
Just treatment
Traffic in women and children and drugs
Trade in arms
Freedom of communications and of transit and equitable treatment for the commerce
International concern for the prevention and control of disease.

Contribution of LN on Slavery

LN convinced most of the world to eradicate slavery and to halt the slave trade.
In 1924, the Council established a Temporary Slavery Commission and charged it with studying the existence of slavery throughout the world.
This led to the promulgation of the Slavery Convention of 1926.

Slavery: First Issue of Human Rights

According the Slavery and, Forced Labor Conventions
“the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”

WWII and establishment of UN

Franklin Roosevelt, in his 1941 State of the Union address, had stressed the importance of “four freedoms”

Freedom from Want
Freedom from Fear
Freedom of expression
Freedom of worship

UN History:

(International Peace Conference in The Hague in 1899 over 25 nations met for ten weeks to codify the laws of war)

1941 – Roosevelt and Churchill sign “Atlantic Charter”
1942 – 26 Allied nations sign Declaration by United Nations.
1944 – Blueprint of UN developed during Dumbarton Oaks Conference
1945 – 50 countries adopt Charter of United Nations on June 25 in San Francisco

UN HR System: 3 main components

Adoption of International HR Standards (binding and non-binding)
Monitoring mechanisms: Treaty-based Committees and Charter-based bodies such as Special Rapporteurs, experts, working groups,
Technical assistance through the Voluntary Fund for Advisory Services and Technical Assistance in the field of Human Rights.

UN HR Mechanisms

Charter-based
Treaty-based

UN Charter and Human Rights

Preamble
recognition of the inherent dignity and of the equal and unalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world…

Article 1 (3)
respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.
Article 55. Principle of equal rights and self-determination of peoples, the United Nations shall promote:

higher standards of living, full employment, and conditions of economic and social progress and development;
solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and
universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Article 56

All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.

Role of ECOSOC for Human Rights

Articles 61-72 of the UN Charter

Studies and reports with respect to international economic, social, cultural, educational, health, and related matters
Makes recommendations to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned.
Recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.
Prepares draft conventions for submission to the General Assembly
Calls international conferences with the rules prescribed by the UN
Coordinates the activities of the specialized agencies through consultation
Takes appropriate steps to obtain regular reports from the specialized agencies.
Communicates its observations on these reports to the General Assembly.
functions as within its competence in connection with the carrying out of the recommendations of the General Assembly.
Performs services at the request of Members of the United Nations and at the request of specialized agencies.
The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions. (Article 68)

Charter-based HR System

1946- Commission on Human Rights (CHR)
The Name and mandate was changed to COUNCIL OF HUMAN RIGHTS in 2006 by GA Resolution)
Sub-Commission on the Promotion and Protection of Human Rights.
Commission on Status of Women (CSW)
Commission on Crime Prevention and Criminal Justice,
UN specialized agencies, such ILO and WHO.
OHCHR since 1994

Role of NGOs:

The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned. (Article 71)

Development of HR treaty system

UDHR as Guardian of ALL HR Standards.
Drafted between January 1947 and December 1948 by eight-members Commission on Human Rights headed by Eleanor Roosevelt
Following over 1,400 votes the GA unanimously passed the Declaration on December 10, 1948,
eight abstentions Belarus, Czechoslovakia, Poland, Saudi Arabia, South Africa, the Soviet Union, Ukraine, and Yugoslavia.
Adopted in 10th Dec. 1948
As Landmark Declaration
30 Articles
Individual as a subject matter
Rights-based (Art. 29 Duty)
Both CPR and ESCR
Guidelines for Human Rights

Pregnancy test and privacy

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

Women’s privacy may also be interfered with by private actors, such as employers who request a pregnancy test before hiring a woman

States parties should report on any laws and public or private actions that interfere with the equal enjoyment by women of the rights under article 17.

Basic Contents of Child Right Convention

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The Convention is extraordinarily comprehensive.
best interest of the child as primary consideration (Article 3),
preservation of identity (Article 8),
children’s right to express opinions (Article 12),
prevention of abuse by those have care (Article 19)
adoption (Article 21),
health and access to care (Article 24),
right against torture and corporal punishment (Article 37),
consideration in treatment in penal matters (Article 40) and
dissemination of the principles and provisions of the Convention (Article 42).

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

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“(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.

Provision under UN and Regional Conventions

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Possibility for the States parties to resort to derogations in particularly serious emergency situations.

International Covenant on Civil and Political Rights (art. 4),
American Convention on Human Rights (art. 27)
European Convention on Human Rights (art. 15)

African Charter on Human and Peoples’ Rights and Commission’s view

There is no provision of emergency in the charter
According to the African Commission on Human and Peoples’ Rights “ the restriction of human rights is not a solution to national difficulties”
“the legitimate exercise of human rights does not pose dangers to a democratic State governed by the rule of law”
The civil war could not therefore be used as a legal shield for failure to fulfil the legal obligations under the African Charter,
(3ACHPR, Commission Nationale des Droits de l’Homme et des Libertés v. Chad, Communication No. 74/92, decision adopted
during the 18th Ordinary session, October 1995, para. 40 of the text of the decision as published at: http://www.up.ac.za/chr/)

Article 4 (1) of ICCPR

“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
The introduction of a derogation provision into the Covenant was first proposed by the United Kingdom in a Drafting Committee of the United Nations Commission on Human Rights in June 1947.
United Kingdom expressed the view that “if such a provision were not included, in time of war it might leave the way open for a State to suspend the provisions of the Convention.” It was “most important that steps should be taken to guard against such an eventuality”.
The arguments for and against the advisability of a derogation provision continued during the subsequent sessions of the Commission on Human Rights.
The USSR was “in favour of the least possible limitation” by adding the phrase “directed against the interests of the people” after “in time of war or other public emergency”
United States and Philippines were against the derogation provision.
the condition of a “public emergency which threatens the life of the nation.
the condition of strict necessity
official proclamation
non-derogability of certain Rights and obligations (Art. 4(2) ICCPR)
consistency with other international legal obligations
The condition of non-discrimination:
The measures of derogation may not “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin” (art. 4(1) of ICCPR)

International Notification:

a State party must immediately submit a notification of derogation to the other States parties through the Secretary-General.
describe “the provisions from which it has derogated and … the reasons by which it was actuated”.
A second notification must be submitted “on the date on which it terminates such derogation”

Historical Overview

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

Gov’t authorities in Arab, Europe and Ottoman seen as White Slaver Traders forcing white women into prostitution.

Agreement for the Suppression of White Slave Trade, 1904.

International Convention for the Suppression of the White Slave Traffic, 1910.

International Convention for the Suppression of the Traffic in Women and Children, 1921

Art. 24: Protection of Children (HR of girl child)

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Report on measures taken to ensure that girls are treated equally to boys in education, in feeding and in health care, and provide the Committee with disaggregated data.

Eradicate, both through legislation and any other appropriate measures, all cultural or religious practices which jeopardize the freedom and well‑being of female children.

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.”

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.

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.”

Philosophers Views

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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.

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.