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Unit 10: Human

Rights
Miss E. Siangandu

Learning Out
1.

2.

3.

Be aware of the instruments available for


the protection of Human Rights at an
interl level and nature.
Know the three categories of generation
rights.
Identify reasons for the weakness in the
enforceability of Human Rights.

Human Rights
Broad
Different types
International HRs
Regional HRs
Protection of HRs within a domestic settings
HRs in relations to Women
Refugees
Children

International Human Rights


Treaties
1.

2.

3.

4.

5.

Convention on the Elimination of all forms


of Racial Discrimination 1966 (CERD)
International Covenant on Civil & Political
Rights 1966 (ICCPR)
International Covenant on Economic,
Social & Cultural Rights 1966 (ICESCR)
Convention on the Elimination of All Forms
of Discrimination Against Women 1979
(CEDAW)
Convention Against Torture 1984 (CAT).

International Human Rights


Treaties cont.
6

Convention on the Rights of the Child


1989 (CRC)
Convention on the Protection of the Rights
of All Migrants Workers 1999 (CRMW)
Convention on the Rights of Persons with
Disabilities 2006 (CRPD)
Convention for the Protection of All
Persons from Enforced Disappearance
2006 (COPED)

UN GA Human Rights
Declaration
1.
2.

3.
4.
5.

6.

Universal Declaration of Human Rights 1948


Declaration on the Elimination of Religious
Freedom 1981
Declaration on the Right to development 1986
Declaration on the Rights of Minorities 1992
Declaration on the Rights & Responsibilities of
Individuals, Groups & Organs of Society to
promote & Protect Universally Recognised HRS
1998
Declaration on the Rights of Indigenous
Peoples 2007.

Introduction
Prior

to Ist WW a principle of Interl


law was state s treatment of its own
nationals was matters within its
domestic jurisdiction.
Exception Humanitarian intervention
Why are Human rights essential?

Following World War I


Establishment

of League of

nations
Covenant of League of Nations
(articles 22,23)
Provisions protection of minority
Emphasis on protection rather
than enforcement.

Atrocities committed before & during WWII


exposed need for protection of fundamental
HRs
Recognised in Preamble of Charter of United
Nations
We the peoples of the United Nations
determined to save succeeding generations
from the scourge of war..& to affirm in
fundamental human rights in the dignity &
worth of human person, in the equal rights of
men & women & of nations large & small

United Nations Charter


Member states are under obligation to
promote & encourage respect for HRs
& for fundamental freedoms for all.

Art 55,56- UN imposes an Obligation on


states to promote respect for & observance
of HRs & fundamental freedom

Post World War II


Since 1945 both treaty & customary law
has been developed for the purposes of
protecting HRs & fundamental freedoms
Effectiveness of the rules?
Existence of rules does not ensure its
observance
More has been achieved on the regional
level that global level.

What are Human Rights?

Fundamental & absolute rights which are


essential to life as human being.

The Source of Law


Interl HRs is a combination of customary IL
and treaty law
Treaties may be global or regional & general
or specialised.

General International
Agreements
Drafted by UN Commission on Human
Rights
Commission established by Economic &
Social Council (ECOSOC) art 68 UN Charter.
10th Dec 1948 Resolution 217A - Universal
Declaration of Human Rights (UDHR).
International Covenant on Economic,
Social & Cultural Rights 1966
International Covenant on Civil and
Political Rights 1966

Universal Declaration of Human


Rights (UDHR)
Declaration contains a list of civil, economic, social,
culture & political rights.
General Assembly resolution
Does not create binding legal obligations
UDHR serves to provide a standard for states to aim at.
Resolution was intended to urge states to establish
procedures for future protection of HRs
Commitment to provisions UDHR & other instrument
reaffirmed in Vienna Declaration & Programme of
Action 1993 made by states.
UDHR was considered to be a source of ICL in the
Filartiga case.

International Covenant on
Civil and Political Rights
(ICCPR)1966

Entered into force January 1976.


Treaty binding on parties.
State parties under obligation to adopt
legislation to effect the ICCPR (art 2(2).
To provide effective remedy for violation art
2(3).
Covenant establishes code of civil & political
rights similar to those in UDHR.
Right to Life (art. 6)
Prohibition of torture (art.7)

ICCPR

Prohibition on Slavery (art 8)


Right to liberty of person (art. 9)
Right to peaceful assembly (art 21)
Protection of minority rights (art. 27).
Violations of obligations results in interl
responsibility.
Derogation of rights permissible time of
public emergence (art 4).
But not fundamental rights such article 6
&7.

Consequence of been a party to


ICCPR

1997 North Korea sought to withdraw from the


ICCPR by informing the UN Secretary General
(UNSG).
UNSG responded
a withdrawal from the Covenant would not
appear possible unless all the states parties
agree.
HRC issued a comment:
ICCPR & its Second Optional Protocol neither of
them have a withdrawal clause
Thus are not open to withdrawal.

HRC has continued to regard North Korea as an ICCPR


party
North Korea has since reported under covenant.
In contrast, the ist Optional Protocol which provides
for individual petition expressly permits withdrawal
(art 12)
Jamaica withdrew in 1997
Trinidad & Tobago 1998
Guyana 1999
Trinidad & Tobago become a party again with new
reservations excluding death penalty cases
Reservations invalid so it withdrew from protocol.

International Covenant on
Economic, Social & Cultural Rights
(ICESCR) 1966
entered into force 1976.
Obligations are less specific
More promotional rather than mandatory.
Nature of rights?
But treaty has legally binding effect
ICESCR designed to promote social welfare
Are these rights justiciable?
What are the challenges in the
implementation of economical rights?

Report of the UN High Commissioner


for Human Rights 1996

HRs situation continues to be daunting &


challenging for the interl community.
Serious violations HRs
Impunity
Racism & xenophobia
Discrimination against women
Ethnic & religious intolerance
Mass exoduses & refugee flows
Armed conflicts
Terrorism
Lack of rule of law.

Customary Rules - I
Provisions in HRs instruments constitute
customary IL
i.e. provision in relation to Torture (See
Filartiga v Pena- Irala (1980)
D former chief of police in Paraguay
Case brought by two Paraguayan nationals
Allegation D had tortured to death a
member of their family
Crt held torture violated ICL citing that
UDHR had become ICL

Customary Rules- II

Genocide
Slavery
Torture
Causing disappearance of individuals
Commission of above acts constitute
violation of ICL
Constitute jus cogens
See The Case concerning the Application of the
Convention on the Prevention & Punishment of the Crime of
Genocide (Bosnia & Herzegovina v Serbia & Montenegro ICJ
2007)

Different types of Rights

Interl Law distinguishes between Civil &


political rights and Economic, social & cultural
rights
First generation rights - Civil & political rights
Second generation rights -Economic, social &
cultural rights
i.e. right to work, education, adequate standard
of living
Third generation rights -Development of rights
which can only be asserted by collection of
individuals

Third generation Rights


Collective rights are recognised.
Principal rights right of self-determination
& the right to development.

The right to self-determination


(SD)
Long been recognised as a political concept.
Assumed right of legal status since 1945.
Not always clear who possesses the right
Or what implementation rights entails.
UN Charter Art 1(2) -principle of equal
rights & self determination of peoples
Art 21 right to take part in govt. of his/her
country
Will of people basis of authority of the
government.

History of right to SD

Events of 1950
1960 UN GA adopted Declaration on Granting of
Independence to Colonial Territories and Peoples
Para (2) all people have a right to SD
Provision contained article 1 ICCPR & ICESCR.
Advisory Opinion of ICJ to the Western Sahara
(1975)
ICJ confirmed that right of SD is one recognised
by IL.
The validity of the principle is confirmed.

SD

Where religious or linguistic minorities exist


with a state they are entitled to right to
enjoy own culture, religion, language Art
27 ICPR

Badinter Arbitration Committee


Established by EU August 1991
To consider questions of whether the Serbs
living in Bosnia & Croatia had a right of SD.
Arbitration made four conclusions;

Badinter Arbitration Committee


1.

2.

Right of SD does not involve changes to


existing frontiers at the time of
independence unless state concerned
accepts
Where they are two or more groups within
a state constituting one or more ethnic,
religious or language communities they
have a right to recognition of their identity
under IL.

Badinter Arbitration Committee


cont.
3.

4.

Art 1 of ICCPR & ICESCR establishes right


of SD for purposes of safeguarding HRs
The Serbian population in Croatia & Bosnia
are entitled to rights accorded to
minorities & such rights must be protected
by the governments of Croatia & Bosnia.

Enforcement of Human
Rights

Implementation evident HRs law turns to be


breached than observed by most states
Interl treaties on HRs are little practical use
All nine HRs treaties has a committee if
independent experts which monitors compliance
with treaty.
Not all HRs treaties have monitoring bodies i.e.
The Genocide Convention 1948
The Convention Relating to the Status of
Refugees 1951
The Convention on the Crime of Apartheid 1974.

UN Mechanisms

ICCPR & ICESCR establish enforcement


machinery despite neither have proved
effective.
Art 40 ICPR every state party bound to submit
periodic reports to HRs Committee
established under part VI of Covenant.
Reports must indicate measures adopted by
states to implement the Covenant.
Committee under a obligation to produce report
but proved reluctant.
Committee is unable to criticise states

ICCPR Enforcement Mechanisms


Art 41 ICCPR procedure for inter-state
complaints
Provision for committee to receive
complaints from other states.
Committee is intended to attempt to
mediate
Decision not binding
Limited states have used procedure under
art 41.

Optional Protocol to the ICCPR


Individuals can refer complaints to HRs
Committee
Committee would then investigate
Issue a report through not binding
Report could be published for purposes of
shaming a state into action.

ICESCR Enforcement
Mechanisms
Less stronger
Parties must submit periodic reports to
Group Experts (GE) established by ECOSOC
But GE turn to be more open to political
influence than HRs

Human Rights Commission


Composed of 43 members representing
their states
Has jurisdiction to investigate allegations of
HRs violations
Capacity to establish independent working
groups
i.e. such a group was established to
investigate the state of Iranian prisons in
1990.