TyroCity: Human Rights Law Notes

Distinct features of Minorities and Indigenous Peoples

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

Distinguished characteristics.
Group Identity.
Individual belonging to the group.
Protection of the rights under international standards.

Basic needs and its legal administration

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

Basically, basic needs mean the elementary conditions of existence for every human being. Basic necessity must mean the irreducible minimum prerequisite for a human being. Broadly it means that it is indispensable for lying human life within a society as an equal at last principle

From the “Homoestatic” concept, we can divide Basic Needs into two types:

Physical/Medical sense: In this type, basic needs are same for every person. These needs are very essential for the existence of biological. For example: water, food and nutrition, shelter, movement, amount of heat, etc.
Non-Physical sense: This is an aspirational need. The Marxist community called this need as ‘social solidarity’. For example: cooperation among people, communication, and emotional need.

Distinguish between Right and Basic Needs

To get clearly explanation on basic needs, therefore we also have to know the distinguish between rights and basic needs, as following:
Rights imply an autonomous and fully capable of agent, but basic needs can hardly be described as capable and autonomous.
Rights generally understood in the negative sense as absence of constraint or interfere from others. While basic needs can for positive action or interference in view to secure them.
Usually rights relate to the political and property interest while basic needs widely relates with economical and social interest in nature.

Basic needs get transformed into rights depends upon the prevalent legal and political consciousness.

Prioritizing Basic Needs

The arrangement of needs in ranks involves not only for better identification but also for fixing social priority of various human need. One of the earliest thinker which gives the priority of human needs was given by Buddhism:

Food
Cloths
Shelter
Medical Services

United Nations has identified basic need as following:

Nutrition
Shelter
Health
Education
Leisure
Security
Environment

Similarly, International Labour Organization (ILO) has identified in their scheme, namely:

Clothing
Shelter
Pure water
Sanitation
Public transport
Health
Education Facilities

Abraham Moslow was the first person who propounds the theory of hierarchy of human needs. It mechanism is emerged for higher needs only after a reasonable satisfaction of lower needs. In the same context, Christian Bay says about “New and Higher” motives are born as more basic ad essential motives received satisfaction and the individual receive their satisfaction for granted.

INDIAN CONTEXT

The idea of prioritizing human needs has assumed significant results in the wake of widespread hunger and starvation. It is true that food need might no more be a serious problem for various developed societies. In the word of Professor Conrad, “The problem of basic needs is no longer pressing in the West. It is affluent that no one dies because of starvation involuntary.”

That is the reason why basic needs concept is more significant to be implemented for the 3rd countries, such as India and Indonesia. It evolves to the concern of larger masses.

1. Constitutional Guarantees

There are various provisions in Indian Constitution which gives special guarantees for the basic needs, namely:

Article 14:
The equality guarantee may be invoked for all cases of inequality access to certain basic needs related to food, health case, water, education, etc.

Article 15:
Prohibition of discrimination on certain grounds (sex, race, etc), including in its practice to get basic needs to be fulfilled.

Article 17:
It prohibits the practice of untouchability. The problem of untouchability in the context of basic need is more than discrimination.

Article 21:
This article has been developed in assures of certain fundamental needs for the citizen by judiciary.
The significant of sovereignty in India is that the satisfaction for human needs not merely responsibility of the state, but also for each well-off member of society.

2. Basic Needs Seeker

The economist have used level of food for constructing “poverty lines” by relating it into level of food that required for the making of the minimum calorie intake to the body. According to the works by Dandekar and Rath in 1971, each people at least need 2.250 calories per adult.

In 1995, Operation Research Group Barada estimates the categories of Below Poverty Line (BPL) by converting the calorie into some amount of money in the following:

Rs. 6.500 – 5001 : Poor
Rs. 5.001 – 2501 : Very Poor
Rs. 3.500 – 2251 : Very Very Poor
Rs. 2251 – Below : Destitute

However, in a recent BPL assessment in census 2001, the government has modified its methodology that is based on 13 categories scorable socio-economic indicators, including literacy, migration, and health.

3. Government Measures

The measure for providing basic needs for the citizen can be divided into two broad categories:

Legislative initiatives
Judicial initiatives
Legislative initiatives

Among the legislative initiatives, the notable ones are those relating to:

Minimum wage protection:
- The Minimum Wages Act, 1948
Untouchability abolition and its incident:
- The Untouchability Offences Act, 1955
- The Prevention of Atrocities, 1989
Bonded Labour Abolition
- The Bonded Labour System (Abolition) Act, 1976
Child Labour (Prohibition) Act, 1986
Legal and Aid
- The Legal Services Authorities, 1987
Employment Guarantees
- The National Rural Employment Guarantees Act, 2005 which gives 100 hours of work for every unemployment person in 200 districts.

Judicial initiatives
One of the greatest achievement and one which have gabled the court to make its invaluable contribution to protection of human right, has been the liberalization of the rule of “Locus Standi”.The liberalization of the rule of locus standi in the field of public law has fostered the development of Public Interest Litigation (PIL) or Upendara Baxi called it as Social Action Litigation (SAL).

4. Landmark Cases

Krishan Pattanayak v. State of Orissa

It was the first significant initiative to get food recognized as a fundamental right came up, because of wide-spread famine and starvation condition. The Supreme Court took over three years in disposing-off the petition, that too without either recognizing any right of the poor and hapless to food or fastening administration with any kind of obligation.

Peoples Union for Civil Liberties v. UOI

In this ongoing petition before the S.C till April 2004, eleven orders had been passed. Two of most important orders are Order II and Order IV.

Order II : Court set the stage for taking on the problem of hunger and starvation
Order IV: The Court gave elaborate directions in respect of the right schemes for the amelioration of the weaker sections.

Olga Tellis v. Bombay Municipal Corp.

It was the first case where the shelter needs of pavement dwellers came to focus. The court passed directions for giving alternatives site to those who were staying there.

CONCLUSION

In the word of Professor B.B. Pande, “the current judicial and administrative policy in the context for providing certain basic need as fundamental rights of citizen can be questioned both on moral and political grounds.

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

Meaning, Nature & Sources of Human Rights

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

International human rights law refers to the body of International Law designed to promote & protect human rights at the international, regional and domestic levels. As a form of international law, international human rights law is primarily made up of treaties, agreements between states intended to have binding legal effect between the parties that have agreed to them; and customary international law, rules of law derived from the consistent conduct of states acting out of the belief that the law required them to act that way. Other international human rights instruments while not legally binding contribute to the implementation, understanding and development of international human rights law and have been recognized as a source of political obligation.

Enforcement of International Human Rights Law can occur on either a Domestic, Regional or International Level. States that ratify human rights treaties commit themselves to respecting those rights and ensuring that their domestic law is compatible with international legislation. When Domestic Law fails to provide a remedy for human rights abuses parties may be able to resort to regional or international mechanisms for enforcing human rights.

International Human rights law is closely related to, but distinct from International Humanitarian Law. Similar, because the substantive norms they contain are often similar or related – for example both provide a protection from torture. Distinct because they are regulated by legally distinct frameworks and usually operate in different contexts and regulate different relationships. Generally, human rights are understood to regulate the relationship between states and individuals in the context of ordinary life. While humanitarian law regulates the actions of a belligerent state and those parties it comes into contact with, both hostile and neutral, within the context of an armed conflict

The Concept of Human Rights

International Bill of Human Rights

Universal Declaration of Human Rights
Economic, Social, and Cultural Rights
Civil and Political Rights

Universal Human Rights?

Different Generations of Rights
Asian Values
Indivisible and Interdependent Rights

Sources
The Concept of Human Rights
Human rights are the rights a person has simply because he or she is a human being. They are the basic entitlements or minimum standards to be met for individuals to live with dignity.

Most notably, human rights are:

founded on the respect for the dignity and worth of each person;
universal in that they are applied equally without discrimination to all people;
inalienable in that no one can have their human rights take away (though they can be limited); and
indivisible, interrelated, and interdependent in that all human rights are equal in importance and equally essential for the respect and dignity of each person.

Human rights are formally expressed and legally guaranteed by international human rights law. The law obligates states to ensure and implement human rights and/or restrains states from violating human rights. Their proponents argue that human rights law does not establish human rights, as human rights are inherent entitlements that adhere to individuals even if official laws or actors do not recognize or protect them.

International Bill of Human Rights
The International Bill of Human Rights is said to be “a summary statement of the minimum social and political guarantees internationally recognized as necessary for a life of dignity in the contemporary world.” (Donnelly 1998). It consists of the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols.

The Universal Declaration of Human Rights (UDHR) is the primary UN document articulating human rights standards and norms. At inception, the declaration was intended to be a nonbinding statement of objectives to be followed by all states. However, now, many if not all of its provisions are accepted as declaratory of customary international law, i.e. law that is binding on all states as it is derived from the consistent conduct of states acting out of the belief that the law requires them to act that way.

The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) translate into legally binding instruments the rights articulated in the Universal Declaration of Human Rights (UDHR).

The ICCPR and ICESCR were both adopted in 1966 and entered into force in 1976. Approximately one-quarter of UN Members, including Singapore, are not party to the covenants and accordingly are not bound by their provisions.

Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is the first international instrument to articulate the rights to be accorded to all people. On 10 December 1948, the UN General Assembly unanimously adopted the Declaration as an enduring international commitment to human rights. Recoiling from the massacres of the Holocaust and desiring peace in the aftermath of World War II, the UDHR represented an unprecedented step as states acknowledged the treatment of individuals was not solely subject to state governance.

The Declaration represents the global consensus or “common standard” of entitlements for all persons. It comprises a broad range of rights that are drafted with sufficient breadth to cover people of all cultures and religions. It does not distinguish between or elevate civil-political versus socio-economic rights. Instead, the Declaration affirms the equality and inalienability of all its codified rights and freedoms.

The UDHR’s main provisions are:

Equality of rights without discrimination (art. 1 & 2);

Life (art. 3 & 6);
Liberty and security of person (art. 3 & 9);
Protection against slavery (art. 4);
Protection against torture and cruel and inhuman punishment (art. 5);
Recognition as a person before the law (art. 6);
Equal protection of the law (art. 7);
Access to legal remedies for rights violations (art. 8);
Protection against arbitrary arrest or detention (art. 9);
Hearing before an independent and impartial judiciary (art. 10);
Presumption of innocence (art. 11);
Protection against ex post facto laws (art. 11);
Protection of privacy, family, and home (art. 12);
Freedom of movement and residence (art. 13);
Seek asylum from persecution (art. 14);
Nationality (art. 15);
Marry and found a family (art. 16);
Own property (art. 17);
Freedom of though, conscience, and religion (art. 18);
Freedom of opinion, expression, and the press (art. 19);
Freedom of assembly and association (art. 20);
Political participation (art. 21);
Social security (art. 22);
Work under favorable conditions (art. 23)
Free trade unions (art. 23);
Rest and leisure (art. 24);
Food, clothing and housing (art. 25);
Health care and social services (art. 25);
Special protections for children (art. 25);
Education (art. 26);
Participation in cultural life (art. 27);
A social and international order needed to realize rights (art. 28).

The effect of UDHR has exceeded its drafters’ initial conception of it as an articulation of shared values. The Declaration is now heralded as the most authoritative statement of international human rights norms. It has become a point of reference for state constitutional questions and an interpretive tool or gage for accepted international practice. And as stated above, some human rights proponents would argue that many of the rights that it declares are part of customary international law or at minimum that the declaration is evidence of custom. However, the UDHR is not a legally binding document unlike the ICCPR and ICESCR.

For Singapore, while it was not a state when the Declaration was adopted, its leaders have referred positively to the UNHDR as the basis of international expectations of human rights.

Civil and Political Rights
The ICCPR unequivocally obligates contract parties to promote and protect important civil and political rights. State parties are to respect and ensure the individual enjoyment of the rights recognized; legislate or otherwise give effect to the rights promulgated; and effectively remedy any violations of rights or freedoms suffered by any person.

The ICCPR has two Optional Protocols. The First Optional Protocol creates an individual complaints mechanism. The Second Optional Protocol abolishes the death penalty.

The ICCPR currently has 155 state parties. Singapore is not a party.

The Rights:

The ICCPR details the basic civil and political rights of individuals and states.

Among the rights it recognizes are:

Self-determination (art. 1);

Freely own, trade, and dispose of property; subsistence (art. 1);
Legal recourse when rights are violated (art. 2);
Right to life; no arbitrary deprivation of life; no death penalty except for the most serious crimes (art. 6);
Protection against torture or cruel, inhuman, or degrading treatment (art. 7);
Protection against slavery, involuntary servitude, or forced or compulsory labour (art. 8);
Liberty and security of person; protection against arbitrary arrest or detention (art. 9);
Humane treatment when detained or imprisoned (art. 10);
Freedom of movement (art. 12);
Equality before the law; fair and public trial; presumption of innocence (art. 14);
Protection of privacy, family, home (art. 17);
Freedom of thought, conscience, and religion (art. 18);
Freedom of opinion, expression, and the press (art. 19);
Protection against advocacy of racial & religious hatred (art. 20);
Freedom of peaceful assembly and association (art. 21 & 22);
Marry and found a family (art. 23);
Special protection for children (art. 24);
Political participation; vote (art. 25);
Equality before the law and equal protection; no discrimination based on race, sex, color, national origin, or language (art. 26);
Protection of minority culture (art. 27).

Implementation:
Implementation of the ICCPR is monitored primarily through state reports to the Human Rights Committee.

State parties must submit regular reports on the measures they have taken to give effect the promulgated rights. HRC examine each state report and addresses it concerns and recommendations to the state parties in “concluding observations.”

In addition, article 41 of the ICCPR enables states to recognize the competence of the HRC to consider inter-state complaints.

Also, the First Optional Protocol to the Covenant provides for an individual complaint procedure. Any individual whose rights under the ICCPR have been violated by a state that has ratified the Optional Protocol can present a complaint to the HRC so long as effective means of domestic redress have been exhausted.

Economic, Social, and Cultural Rights
The International Covenant on Economic, Social, and Cultural Rights (ICESCR) charges state parties to “take steps,” whether individually or through international cooperation, to the extent of its available resources to achieve “progressively” the full realization of a wide range of economic, social, and cultural rights.

There are 152 parties to the ICESCR. Singapore is not a party.

The Rights:

The ICESCR is the foundational treaty on economic, social, and cultural rights.

Among the rights it recognizes are:

Self-determination (art. 1);

Equality of rights without discrimination (art. 2 and 3);
Rest and leisure (art. 7);
Work under favourable conditions (arts. 6 and 7);
Form and join trade unions (art. 8);
Social security (art. 9);
Protection of the family, mothers, and children (art. 10);
An adequate standard of living, including adequate food, clothing and housing (art. 11);
The highest attainable level of health and health care (art. 12);
Education (art. 13);
Free and compulsory primary education (art. 14);
Take part in cultural life; benefit from scientific progress: and benefit from the protection of scientific, literary or artistic production of which one is the author (art. 15).

Implementation:

The Committee on Economic, Social, and Cultural Rights (CESCR) monitors implementation of the ICESCR by its state parties. Implementation is primarily by state reports. State parties submit periodic reports detailing how ESC rights are being advanced. These reports may serve as a basis for UN assistance, e.g. technical assistance, to help the state achieve the rights.

The rights articulated in the ICESCR have been slow to achieve international consideration in part because of their conception as secondary or lesser rights.

Universal Human Rights
International debate has raged about whether there is or should be a hierarchy of human rights, i.e. whether civil and political rights are paramount to social, economic, and cultural rights or vice versa.

Generally, the dispute juxtaposes the principle of universal, indivisible, and interdependent human rights against arguments forwarding an order of priority between categories of rights.

In specific, the dominant, liberal Western view associates human rights with civil and political rights and de-emphasizes social, economic, and cultural rights and other collective rights.

Alternatively, in opposition to a perceived Western hegemony over the content of human rights, ASEAN states forwarded an “Asian values” argument that asserted civil and political freedom must play second fiddle to economic development.

Dominant Liberal Hierarchy of Rights
The dominant view of human rights, often associated with the liberal Western perspective, asserts the hierarchical ascendance of civil and political rights.

According to the three generations of human rights paradigm, states in time progressively move from paramount “first generation” rights to other “second generation” and “third generation” rights that offer broader definitions of human rights that are more idealistic and accordingly less realizable.

In brief, “first generation” rights are civil and political rights, such as the right to life, liberty, and a fair trial. “Second generation” rights are economic, social, and cultural rights, such as the right to education, appropriate housing, and adequate leisure and rest. “Third generation” rights are effectively group or collective rights, such as the right to self-determination and an environment conducive of development.

The priority of “first generation” civil and political rights is justified on several grounds. Civil and political rights are perceived to be easier to legislate for while certain economic and social rights, e.g. right to education and housing, are contingent on sufficient resources, i.e. the injection of financial and technical aid into a state’s economy for their implementation. Similarly, “negative” civil and political rights are seen as more readily attainable than “positive” economic and social rights. A “negative” right is a right not to be subjected to an action of the state or others. A “positive right” is a right to be provided something by the state or others. As such, “negative” civil and political rights forbid certain actions and accordingly deserve priority as their violation involves a direct injury. In contrast, “positive” economic and social rights require certain actions, i.e. provision of goods or services, and their violation merely involves an inability or unwillingness to confer a benefit.

Evidence of this rights hierarchy can be seen in international covenants and enforcement mechanisms. For example, the ICCPR obligates state parties to “respect and ensure to all individuals within its territory… the rights recognized in the present Covenant.” On the other hand, the ICESCR merely commits signatories to “take steps… to the maximum of its available resources, … to achieving progressively the full realization of the rights recognized in the present Covenant…” In addition, the preoccupation by major human rights NGOs on civil and political rights and the consignment of economic and social matters in the U.N. to development agencies, separate and apart from the human rights organs, typify the dominant liberal Western perspective.

Asian Values: “Liberty trade-off”
In response to perceptions of a western-dominated international human rights discourse, spokesman from some ASEAN states, e.g. Singapore and Malaysia, championed an alternative “Asian values” conception of human rights.

The “Asian values” argument rests on several central tenants. First, human rights are said to be culturally specific. In other words, though many human rights are accepted as universal, states will differ in their understanding and practice of human rights according to their history, social system, cultural traditions, and economic development. Accordingly, in Asian states, historical-cultural legacies dictate a more communitarian outlook on human rights, i.e. the precedence of duty to the community over individual rights. Also, Asian societies are said to proceed by “consensus” and not conflict, favoring cooperative versus coercive measures for human rights, and trusting and enhancing as opposed to suspecting the authority and dominance of state leaders. Lastly (and the focus here), “Asian values” claims that social and economic rights take precedence over civil and political rights.

Termed the “liberty trade-off” or the “Lee Kuan Yew hypothesis” of rights and development, this tenant of “Asian values” asserts that Asian governments are justified in restricting civil and political rights in some circumstances in favor of social stability and economic growth. Subsistence is argued to be of the most fundamental importance. Civil and political rights are immaterial when people are destitute and society is unstable. Accordingly, as luxuries to be enjoyed once there is social order, civil and political liberties must be temporarily suspended so as to not inhibit the government’s delivery of economic and social necessities and so as to not threaten or destroy future development plans. In sum, certain civil and political freedoms must be “traded off” for the social stability and discipline required for economic growth.

Indivisible and Interdependent Human Rights
Nonetheless, most human rights proponents insist that because human rights are literally the rights one has simply because one is a human being, all human rights are universal, indivisible, and interdependent.

The dichotomy between civil and political rights and economic, social, and cultural rights was in fact largely the product of Cold War political and ideological divisions between the “capitalist West” and the “socialist East.” The end of the Cold War ushered in a increased focus on the equal promotion of human rights. Both social and economic rights and civil and political rights have grown in the last few decades. In fact, in 1993, 171 states adopted by consensus the Vienna Declaration and Programme of Action that stressed the indivisibility and equal implementation of human rights. It reads in part:

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic, and cultural systems, to promote and protect all human rights and fundamental freedoms. (Vienna Declaration 1993).

This equal pursuit of human rights is echoed by academics and NGOs alike who assert that effective implementation of civil and political rights is allied with respect for economic, social, and cultural rights. Economic and social progress allows for the entrenchment of the basic institutions necessary, e.g. administrative and judicial bodies, for the practice of civil and political liberties, e.g. the rights to a fair trial. Moreover, economic and social development enables and equips the citizenry with the literacy and education needed for their effective political participation.

In addition, in opposition to the “Lee Kuan Yew hypothesis,” academics argue that civil and political rights can fuel social and economic growth. The exercise of civil and political freedoms, e.g. the right to vote and freedom of speech, calls governments to attend to real economic needs and immediately respond to acute suffering. The right of political participation fortifies the government’s public mandate to continue to work for greater prosperity. In sum, civil and political rights and economic and social rights reinforce one another and together ensure greater respect for human dignity and well-being.

Human rights – basic needs: human rights must include the ability to survive – the basic means by which to live
Human rights must include the ability to survive – the basic means by which to live. And yet, despite improvements in overall poverty figures, progress has been uneven and much human deprivation still remains, especially in the Majority World.

More than a quarter of the people in the Third World still live below the income-poverty line; half a million women die each year in childbirth and education is still largely for the privileged.

Poverty (1)

One of the great achievements of the twentieth century, says the latest Human Development Report from the UN, is the dramatic reduction of poverty. In the South, more than three-quarters of the population can now expect to survive to the age of 40. Adult illiteracy has been reduced by nearly half. Infant mortality has been cut by nearly three-fifths.

This still meants that 507 million people are not expected to survive until they are 40; there are 1.2 billion people without access to safe water, 842 million illiterate adults, and 158 million malnourished children under five.

Education (2)

Overall, adult-literacy rates have improved considerably in the last 50 years. But there are 538 million women who still cannot read – nearly two-thirds of the adult illiterates in developing countries. More than 140 million children between the ages of 6 and 11 do not attend school. This is 23 per cent of primary-school-age children in developing countries. Perhaps an equal number drop out of school.

Health (3)

In 1993 more than 12 million children under the age of five died. But the number dying from vaccine-preventable diseases was reduced by 1.3 million. This leaves 2.4 million deaths which are due to diseases like malaria, poliomyelitis and diphtheria – diseases which are preventable. Globally, the infant-mortality rate has dropped from 82 per 1,000 live births in 1980 to about 62 in 1993.

Common Standards of Fair Trial in Administration of Justice

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

Explicit prescription of prosecution and adjudication by statutory law;

Determination and imposition of penal sanctions (imprisonment) only by judicial authority;

Competency, Independency and impartiality of adjudication officer;

Reasonable time period for investigation and access of accused for his/her representation by defence lawyer;

Information to the accused of his/her arrest, detention, charge and notification to family and lawyers;

Prohibition on corporal punishment, torture, inhuman treatments and application of coercive measures;

Provision of compensation or indemnity in terms of miscarriage of justice and mistreatment;

Ensured right to judicial remedy during investigation, pre-trial, trial and post- trial and appeal against decisions;

Free legal aid under State’s sponsorship;

Access to appeal against trial court jurisdiction and second appeal;

Burden of proof rests on the shoulder of prosecutor;

Statutory guarantee of the procedural safeguards (statutory law should specify the proceedings and may not delegate to formulate proceeding by adjudicator on his/her own);

Public hearing and trial.

Application of reasonable and moderate bail;

Application of special standards enhancing the notion of fair trial (camera hearing, arrest of women by police women, hearing the cases of juveniles in presence of defence lawyer and child specialists etc.);

Applications of non-custodial measures as alternatives of imprisonment; and,

Application of corrective and rehabilitative measures in punishment in the interest of community and victims.

Historical Documents and Declarations

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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.

Freedom of movement and WHR

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Legal provision or any practice which restricts women’s right to freedom of movement, for example the exercise of marital powers over the wife or of parental powers over adult daughters; legal or de facto requirements which prevent women from travelling, such as the requirement of consent of a third party to the issuance of a passport or other type of travel documents to an adult woman.

European Human Rights Instruments

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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

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.

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.

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 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.