INTERNATIONAL HUMAN RIGHTS:

History & Foundation of Human Rights

MIAN ALI HAIDERLL.B., L.L.M(Cum Laude) (UK)

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Where Do Human Rights Begin?“In small places, close to home, so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person, the neighborhood he lives in, the factory, farm, or office where he worked. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.”

Eleanor Roosevelt, 1958

DEFINITION

HUMAN RIGHTS are the rights that all people have by virtue of being human beings.

HUMAN RIGHTS are the rights that all people have by virtue of being human beings.

HUMAN RIGHTS are derived from the inherent dignity of the human person and are defined internationally, nationally and locally by various law making bodies.

Overview

Brief History of International Human Rights*Modern Protection of Human Rights

United NationsRegional OrganizationsLocal Non-Governmental Organizations

Health as a Human right

*Source: “International Human Rights: Law, Policy and Process,” David Weissbrodt, Joan Fitzpatrick and Frank Newman (3d ed. 2001)

Brief History

AntiquityCode of HammurabiRights of Athenian citizens

MedievalMagna Carta (1215)Sir Thomas Aquinas’ theory of natural rights (13th Century)

EnlightenmentEnglish Declaration of the Rights of Man (1689)U.S. Declaration of Independence (1776)French Declaration of the Rights of Man and of the Citizen (1789)United States Constitution and Bill of Rights (1789)

Brief History

Early Developments (cont.)International Committee for the Red Cross (1863)Geneva Convention (1864)Hague Conventions (1899 and 1907)League of Nations and the International Labor Organization (1919)

Brief History

Aftermath of World War IIRoosevelt’s Four Freedoms Speech(January 6, 1941)The Atlantic Charter Between the United States and Great Britain (August 14, 1941)The Nuremberg and Tokyo TribunalsCreation of the United Nations (1945)

Brief History

Modern Protection of International Human RightsThe Preamble to the United Nations Charter states that the “Peoples of the United Nations” are determined “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.”

Modern Protection of International Human RightsIn 1948, the UN General Assembly adopted the Universal Declaration of Human Rights.* The Declaration enumerates civil, political, economic, social, and cultural rights, but the Declaration contains no provisions for monitoring or enforcement.

* 48-0 with 8 abstentions (Eastern bloc, Saudi Arabia and South Africa)

Modern Protection of International Human RightsIn 1966, the General Assembly adopted:

The Covenant on Civil and Political Rights (and its First Optional Protocol)The Covenant on Economic, Social and Cultural Rights

which, together with the UDHR, are now known as the International Bill of Human Rights

Covenant on Civil and Political Rights:Prohibits discrimination on the basis of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” without regard to citizenshipProhibits torture and cruel, inhuman or degrading treatment or punishment (personal integrity)Prohibits slaveryLimits the death penalty (in countries that still allow it) to the most serious crimes committed by persons over 18

Covenant on Civil and Political Rights (cont.):Prohibits arbitrary arrest or detentionProtects freedom of movement and residenceProtects the right to trial, presumption of innocence, right to a lawyer, right to an appeal, freedom from self-incrimination, and freedom from double jeopardyProtects freedom of opinion and expressionProtects freedom of association and assemblyPublic emergency exception (but no torture, executions, or slavery is ever permissible)Ratified by the United States in 1992

Covenant on Economic, Social and Cultural Rights:Right to work and make a “decent living for themselves and their families”Safe and healthy working conditionsRight to form trade unions with the right to strikeRight of everyone to Social Security, including social insurance “widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society”

Covenant on Economic, Social and Cultural Rights (cont.):Right to adequate food, clothing and housing and to the continuous improvement of living conditionsRight to educationRight to heath careEconomic rights are subject to each county’s ability to provide such rights progressively as its resources permitSigned but not ratified by the United States

Modern Protection of International Human Rights

In addition to the International Bill of Human Rights, the United Nations has drafted and promulgated over 80 human rights instruments:

genocideracial discriminationdiscrimination against womenRefugee protectiontorturethe rights of disabled personsthe rights of the child

UN Human Rights Bodies

Security CouncilGeneral AssemblyEconomic and Social CouncilCommission on Human RightsSubcommission on the Promotion and Protection of Human RightsCommission on the Status of Women

UN Human Rights Bodies

Commission on Crime Prevention and Criminal JusticeInternational Court of JusticeInternational Criminal CourtOffice of the High Commissioner for Human Rights (created by the General Assembly in 1993)

UN Human Rights Bodies

Treaty Monitoring BodiesHuman Rights CommitteeCommittee on the Elimination of All Forms of Racial DiscriminationCommittee on the Elimination of Discrimination Against WomenCommittee Against TortureCommittee on the Rights of the ChildCommittee on Economic Social and Cultural Rights

Human Rights in International LawRegional Organizations and Law-Making

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) implemented by the European Commission of Human Rights and the European Court of Human RightsThe American Declaration of the Rights and Duties of Man adopted by the Organization of American States in 1948 and the American Convention on Human Rights adopted by the OAS in 1969 which are implemented by the Inter-American Commission on Human Rights and the Inter- American Court of Human Rights

Human Rights in International Law

Regional Organizations and Law-Making (cont.)

Organization of African Unity was founded in 1963 and adopted the African Charter on Human and Peoples’ Rights in 1981. The African Commission on Human and Peoples’ Rights is charged with supervising the implementation of the African Charter.

Use of Courts to Protect Human Rights

Federal and Provincial Legislatures may enact legislation that specifically incorporates international law into domestic lawJudicial interpretation and application of existing legislative or constitutional provisions

Local Non-Governmental Organizations

Advocates for Human RightsAmerican Refugee CommitteeCenter for Victims of TortureInstitute on Agricultural and Trade PolicyUniversities creating Human Rights Centers

NGO Activities

Monitor elections and political trialsInvestigate human rights and conditions

Analyze human rights practices in closed countries – Albania, North Korea, Saudi Arabia, Pakistan, IndiaIdentify and analyze conflicts in disputed territories.Child slavery in Haiti; child health in Mexico, Uganda and the United States

NGO Activities

Lobby United NationsDraft model statutes

Inquest proceduresForensic techniquesDomestic violence laws

Represent political asylum seekersPromote ratification of human rights treaties

Health Care and Human Rights

The revelations of the Nuremberg trials about experiments by physicians on concentration camp inmates led to the creation of the World Medical Association. One of the first acts of the WMA was the revision of the Hippocratic Oath in 1948 to include: “I will not permit consideration of race, religion, nationality, party politics, or social standing to intervene between my duty and my patient.”

Convention on the Elimination of All Forms of Discrimination Against Women

Articles 11 provides special protection to women during pregnancy with respect to types of work that are proven to be harmful to them.

Convention on the Elimination of All Forms of Discrimination Against Women

(cont.)Article 12 insures equality of men and women with respect to access to health care services including those related to family planning and specifically providing that women get appropriate services in connection with pregnancy, confinement, and the post natal period, including adequate nutrition during pregnancy and lactation.

Convention on the Elimination of All Forms of Discrimination Against Women

(cont.)Article 14 provides equal access to women in rural areas to health care facilities including counseling services and family planning.

Human Rights are more than

Values and behaviours that we think other countries don’t hold or implement, so we often claim they don’t value Human Rights as well as we do

Definitions in the CharterHuman Rights

– Basically Civil and Political Rights (ICCPR)– Include any other right or freedom recognised by law– Belong to people, not corporations

‘Public Authority’ must respect them, including:– Public servants and statutory officers, local

government– Statutory entity with functions ‘of a public nature’– Any entity with functions of a public nature when

exercising them on behalf of the state or a public authority

HUMAN RIGHTS PROTECTED BY THE CHARTER ARE:•Recognition and equality before the law

• As a person; • without discrimination; • To equal protection of the law;

and • special programs for

disadvantaged are permitted•Life•Protection from cruel, inhuman or degrading treatment•Forced work•Freedom of expression•Peaceful assembly and freedom of association•Freedom of movement•Privacy and reputation•Freedom of thought, conscience, religion and belief

•Protection of families and children

•Taking part in public life

•Cultural rights

•Property rights

•Right to liberty and security of person

•Humane treatment when deprived of liberty

•Children in the criminal process have special rights

•Fair hearing for an accused criminal

•Rights in criminal proceedings

•Right not to be tried or punished more than once

•Retrospective criminal laws not allowed

How the Charter works• Parliament should establish a culture of respect for Human Rights

• Statements of compatibility must be made in parliament when laws are introduced

• Parliament may override application of human rights in exceptional circumstances*

• Existing laws must be interpreted to be compatible with the Charter wherever possible

• All Public Authorities must act compatibly with the Charter

• Supreme Court can declare statutes incompatible, direct minister to amend them

Parliament remains supreme in determining whether to pass or retain legislation incompatible with the Charter principles.

Who is bound by the charter?

APPLIES TO ALL PUBLIC AUTHORITIES (and NGOs/private contractors performing public functions)

IS INTENDED TO PROMOTE INDIVIDUALS’ RIGHT TO BE HEARD

ALMOST A ‘SUPER LAW’ – SO FAR AS POSSIBLE ALL LEGISLATION HAS TO BE INTERPRETED TO BE COMPATIBLE WITH THE CHARTER or a Declaration of incompatibility will be issued by THE Supreme Court

DEMOCRATIC DIALOGUE – proposed laws have to be measured against human rights protected by the Charter. NB – this is one way for NGOs to hold government to account

Overall• Charter protects individuals who are natural persons,

not corporations• Duties on three branches of government

– Parliament – compatibility statements– Courts – interpret all Acts compatibly if possible– Executive – obligation to act compatibly, breach

may be relied on in some legal proceedings• In addition to FOI, Privacy, Administrative law,

Whistleblowers protection, Ombudsman, anti-discrimination laws etc. – and the rules of natural justice

THE CHARTER PROVIDES A human right can be limited

such reasonable limits as can be demonstrably justified in a free and democratic society based upon human dignity, equality and freedom and taking into account all relevant factors:

• The nature of the right

• The importance of the purpose of the limitation

• The nature and extent of the limitation

• The relationship between the limitation and its purpose

• Any less restrictive means reasonably available to achieve the purpose that the limitation seeks

Some UK Cases

R v Enfield London Borough Council 2002

Local authority may have a duty to take positive steps to secure a disabled person’s physical integrity and dignity, even if it had the right to evict him.

Robertson v Wakefield Metropolitan Council

2002

Public authorities must ensure their decision making processes take into account individuals’ human rights – they may be forced to do them all over again if they didn’t!

HOW NGOs CAN USE THE CHARTER• Demanding protection of human dignity• Challenging discrimination• Promoting participation and HR sensitive decision-

making• Challenging brutality• Taking positive steps to protect human rights• Using human rights principles where resources are

an issue• Using human rights to challenge blanket policies• Protecting human rights in contracted-out services

Some UK cases where human rights made a difference . . .DIGNITYStaff refused to clean the room of a man detained in a maximum security psychiatric centre in

seclusion, where he repeatedly soiled himself, or move him saying he would just ‘do it again.’ The advocate challenged the treatment of the man on the basis of inhumane and degrading treatment, and his right to privacy, successfully.

CHALLENGING DISCRIMINATIONA psychiatric hospital had a practice of sectioning asylum seekers who didn’t speak English

without an interpreter. An NGO successfully challenged this practice on human rights ground: it was a breach of their right not to be discriminated against on the basis of language, and their right to liberty.

PROMOTING PARTICIPATIONA disability support team had a policy of providing support to users who wanted to participate in

social activities, but refused to provide a worker for a gay man who wanted to go to a gay pub. Heterosexual users regularly went to clubs and pubs of their choice. The man’s advocate challenged this on the basis of the man’s right to respect for his privacy and not to be discriminated against on the basis of sexuality

HUMAN RIGHTS in a nutshell1. Belong to everyone – they can’t be taken away from marginalised individuals

2. Are about the relationship between the state and individuals

3. Provide a floor, not a ceiling, of basic standards, below which the state must not fall and which it must protect or fulfil

4. KEY PRINCIPLES:– Fairness– Respect– Equality– Dignity

» In a democratic society