Microsoft Powerpoint - 11. International Human Rights

8/11/2019 Microsoft Powerpoint - 11. International Human Rights

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CHAPTER 11CHAPTER 11

INTERNATIONAL HUMANINTERNATIONAL HUMAN

RIGHTS LAWRIGHTS LAW

PROFESSORPROFESSOR

DR. ABDUL GHAFUR HAMIDDR. ABDUL GHAFUR HAMID

11.1 THE CONCEPT OF HUMAN11.1 THE CONCEPT OF HUMAN

RIGHTSRIGHTS [Textbook, p. 339][Textbook, p. 339]

The crux of international human rights law: to

afford legal protection of every human being on

the planet earth.

All individuals, solely by virtue of being human

beings, have rights which no society or State

should deny.

Unfortunately, however, there are radically

different definitions, and interpretations of

human rights, and different approaches.

11. 1.111. 1.1 Categorisation of human rightsCategorisation of human rights

Human rights are generally divided into three maincategories:

(1)civil and political rights;

(2) economic, social and cultural rights; and

(3) group or peoples rights.

They are often confusingly expressed in terms ofgenerations of human rights: the first, thesecond, and the third generation respectively.

Civil and political rightsCivil and political rights

Civil and political rights (freedom ofexpression, freedom of peaceful assembly,freedom from torture, freedom from arbitraryarrest and detention, right to a fair trial, etc.)derive from the natural rights philosophy of JohnLocke, Rousseau and others.

They protect against encroachments ofgovernment.

These rights have traditionally been given

priority by Western States.


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Economic, social and cultural rightsEconomic, social and cultural rights

Economic, social and cultural rights (e.g.,

right to work, right to education, right to access

to health care) attained recognition in the

twentieth century with the advent of socialism.

They argued that achievement of economic and

social rights was a pre-condition for other rights.

That is, until the economic and social rights were

realized a State was not in a position to provide

civil and political rights.

Group or peoplesGroup or peoples rightsrights

Group or peoples rights emerged as recentlyas the 1970s and are supported by developingcountries.

The focus is on collective as opposed toindividual rights.

The right to development and the right to self-determination are two main examples.

In the early 1970s, thanks to their numericalsuperiority, the developing countries managed toelaborate their own philosophy of human rights.

11.1.211.1.2 Universalism and CulturalUniversalism and Cultural

relativismrelativism

The question of the universal or relative

character of the human rights has been a source

of debate from the beginning of the human rights

movement.

The proponents of the universalism claim that

international human rights like rights to equal

protection by law, physical security, freedom of

speech, freedom of religion and freedom of

association are and must be the sameeverywhere.

Advocates of cultural relativism claim that most(or some) rights depend on cultural context, theterm culture being used in a broad way toinclude political and religious ideologies andinstitutional structures.

Hence notions of right (and wrong) necessarilydiffer throughout the world because the culturesin which they take root differ.


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On their face, human rights instruments

are on the universal side of this debate.

The landmark instrument is the Universal

Declaration of Human Rights (UDHR).

The two Covenants (ICCPR, ICESCR)

also speak in universal terms: everyone

has the right to liberty, all persons are

entitled to equal protection, etc.

To the relativists, these instruments are the

indicators of the so-called cultural imperialism

of the West. The West view their own beliefs as

universal, and attempt to universalise them.

Moreover, the push to universalization is said by

some relativists as an attempt to destroy

diversity of culture and hence amounts to

cultural homogenisation in the modern world.

During the Cold War, such debates were mainlybetween the Communist and the Western.

The West charged the Communist world withviolating many basic rights of a civil and politicalcharacter. The Communist world charged theWest with violations of the more importanteconomic and social rights.

Today the universal-relative debate takes placeprimarily in a North-South (or West-East)

framework between developed and developingcountries.

11.1.311.1.3 The Islamic perspective of humanThe Islamic perspective of human

rightsrights

Islam has its own values and standards of

human rights, founded on Shariah, the

Divine Law, the essence of which is

absolute submission to the Will of God

Almighty.

However, it appears that Islamic jurists are

divided on how to interpret the original

sources of Shariah.


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Reformists and traditionalistsReformists and traditionalists

Ijtihad: Whether the door for ijtihad has

been closed or not.

Traditionalists: must strictly follow the

classical interpretations.

Reformists: should not interpret theoriginal sources literally but consider the

rationale behind the revelation in question.

Islamic values versus Human rights instrumentsIslamic values versus Human rights instruments

Human rights instruments are mainly based on

universalism.

There are arguments that Islamic values conflict

with some norms of the human rights

instruments (esp. in respect of family law, the

notion of Qawama (guardianship and authority),

the notion of al-hijab, and the law of apostasy).

To counter these, many Islamic jurists rely

on the concept of cultural-relativism.

For us, we believe that it is not appropriate

to test whether an injunction of the Divine

Law is just, fair or reasonable with a

system of justice made by man.

The practice of Islamic countriesThe practice of Islamic countries

Although most of the Islamic countries apply the

Western legal systems in the field of public law

(with the exception of a few, like Saudi Arabia;

countries like Pakistan is practising hudud law),

their family laws are based on Shariah.

When these countries adopt human rights

instruments, they find that some of the

provisions are in conflict with Islamic law.


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In view of this, they made reservations whenratifying the Convention on the Elimination of AllForms of Discrimination Against Women, 1979(CEDAW), and the Convention on the Rights ofthe Child, 1989.

See: Abdul Ghafur Hamid, Reservations toCEDAW and the Implementation of IslamicFamily Law: Issues and Challenges, (2006)

Asian JIL, vol. 1 No. 2, 121-155. ConferencePaper, International Conference on IslamicFamily Law (2006).

11.3 The evolution of international human11.3 The evolution of international human

rights lawrights law

The concept of the international protection of

human rights is revolutionary in nature given the

fact that the traditional doctrine of international

law had no place for it at all.

The turning point for this change of the paradigm

is the Charter of the United Nations, which is

usually referred to as the starting point for any

study of the protection of human rights.

11.3.1 Human rights clauses of the Charter11.3.1 Human rights clauses of the Charter

Preamble: reaffirmed their faith in fundamentalhuman rights, in the dignity and worth of humanperson, in the equal rights of men and women.

Article 1: the achievement of internationalcooperation in promoting and encouragingrespect for human rights and for fundamentalfreedoms for all without distinction as to race,sex, language, or religion.

Also Arts. 55 and 56 (All members pledge

themselves to take joint and separate action).

Some argue that the human rights clauses of the

Charter do not impose any legal obligation on

member States with regard to their own

nationals.

The better view, however, is that the use of the

word pledge in Article 56 implies a legal

obligation, although the obligation is weak in

view of the fact that there is no enumeration in

the Charter of the fundamental human rightswhich are to be observed by States.


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11.3.2 The Universal Declaration of Human11.3.2 The Universal Declaration of Human

RightsRights

The adoption by the General Assembly of theUniversal Declaration of Human Rights on 10December 1948, by 48 votes to nil, with 8abstentions.

The abstaining states were Saudi Arabia, SouthAfrica and the communist countries(Byelorussia, Czechoslovakia, Poland, Ukraine,USSR and Yugoslavia).

Two main categories of human rights, namely:civil and political rights [Articles 3 to 21] andeconomic, social and cultural rights [Articles 22

to 27].

Many laymen imagine that States are under a

legal obligation to respect the rights listed in the

Declaration. It is not so. As it is not a treaty, the

Declaration as such is not legally binding.

It is simply a list of human rights which member

states pledge themselves to promote under

Articles 55 and 56 of the Charter.

In spite of its limitations, the Declaration is ofgreat importance in stimulating and promotingthe international protection of human rights.

It has impact in shaping subsequent treaties onhuman rights, and upon the content of theconstitutions of new States.

It is possible that at least some part of theDeclaration, like the prohibition of torture, maysubsequently have become binding as a new

rule of customary international law.

11.3.4 The International Covenant on Civil and11.3.4 The International Covenant on Civil and

Political Rights 1966 (ICCPR)Political Rights 1966 (ICCPR)

The idea to draft a single convention failed.

The International Covenant on Civil and PoliticalRight (ICCPR) and the International Covenanton Economic, Social and Cultural Rights(ICESCR) were finally adopted by the General

Assembly on 16 December 1966. Both cameinto force in 1976.

As of now, there are 160 State parties to theICCPR and 156 States parties to the ICESCR.

Both Covenants contain a common article(Article 1) reaffirming the right of self-determination.


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The ICCPR provides, among others, for the rightof self-determination, the right to life, theprohibition of torture, the prohibition of slaveryand forced labour, the right to liberty, theprohibition of arbitrary arrest and detention, theright equality before the courts, the right tofreedom of thought, conscience, religion andexpression, the right of peaceful assembly andthe right to freedom of association including theright to form and join trade unions, and the rightto take part in the conduct of public affairs, tovote and to be elected at elections.

The ICCPR imposes the obligation on States

Parties to respect and to ensure to all

individualsthe rights recognized in the present

Covenant [Art. 2(1)].

It also contains provisions obliging the Parties to

undertake the necessary steps to adopt such

legislation or other measures as may be

necessary to give effect to the rights recognised

in the Covenant. [Art. 2(2)]

Each State Party to the Covenant also

undertakes to ensure that any person

whose rights are violated has an effective

remedy, notwithstanding that the violation

has been committed by persons acting in

an official capacity. [Art. 2(3)]

Art. 4: emergency threatening the

existence of the state.

Human Rights CommitteeHuman Rights Committee

The Human Rights Committee, establishedunder Article 28 of the Covenant, has 18members.

It has three main monitoring mechanisms:

(1) Compulsory reporting procedure whereby allState parties are obliged to present reports(initial and period) indicating compliance with theICCPR;

(2) Optionalinter-State complaints procedure;and

(3) Individual complaints procedure.


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OptionalOptional interinter--State complaints procedureState complaints procedure

[Art. 41][Art. 41]

A contracting party may, on condition ofreciprocity, accept the right of the othercontracting parties to bring a claim to the HRCalleging a violation of the Covenant by it.

Negotiations between the two parties must havebeen completed without success.

If satisfied that local remedies have beenexhausted, the Committee shall make availableits good offices.

The Committee must, within twelve months,submit a report, which is not legally binding.

Complaints by victims of human rights violationsComplaints by victims of human rights violations

The most significant monitoring mechanism isthe individual complaints procedure under theFirst Optional Protocol to the ICCPR, 1966.There were 107 Parties to it.

The victims of human rights violations, if theyhave exhausted all available domestic remedies,may submit a written communication to theCommittee for consideration.

There is a Second Optional Protocol whichdeals with abolition of death penalty.

11.3.5 International Covenant on Economic, Social11.3.5 International Covenant on Economic, Social

and Cultural Rights 1966 (ICESCR)and Cultural Rights 1966 (ICESCR)

The ICESCR provides for the right of self-

determination for all peoples, the right to

work, the right to form trade unions and to

strike, the right to social security, the right

to an adequate standard of living, the right

to health, the right to education and theenjoyment of certain cultural rights.

The nature of the obligation of State PartiesThe nature of the obligation of State Parties

Article 2 (1) provides that each StateParty to the present Covenant undertakesto take steps to the maximum of itsavailable resources, with a view toachieving progressively the full realizationof the rights recognized in the presentCovenant by all appropriate means,including particularly the adoption of

legislative measures.


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ICCPR and ICESCR: compare andICCPR and ICESCR: compare and constrastconstrast

(1) Obligation of state parties:

(a) The obligation under ICESCR is very

general and limited to taking steps with a view

to achieving progressively the full realization

of the rights whereas ICCPR imposes a more

stringent obligation on States to respect and to

ensure.

(b) The obligation under ICESCR is also

limited To the maximum of its available

resources.

(2) Favourable condition for developing countries:

A significant feature of the ICESCR is thatdeveloping countries, with due regard to humanrights and their national economy, maydetermine to what extent they would guaranteethe economic rights recognized in the Covenantto non-nationals. [Art. 2(3)]

(3) Individual complaints procedure: There is anOptional Protocol to the ICCPR establishingindividual complaint procedure while there is nosuch procedure in ICESCR.

11.3.6 The Convention on the Elimination of All11.3.6 The Convention on the Elimination of All

Forms of Discrimination Against Women 1979Forms of Discrimination Against Women 1979

(CEDAW)(CEDAW)

The CEDAW was adopted by the GeneralAssembly on 18 December 1979 and enteredinto force on 3 September 1981.

There are 185 States Parties to the Convention.

Malaysia acceded to CEDAW on 5 July 1995.

CEDAW Art. 2: To embody the principle ofequality of men and women in their nationalconstitutions or other appropriate legislation.

Art. 8 (2) of the Federal Constitution wasamended (in 2001) to guarantee genderequality.

The Convention establishes a Committee

on the Elimination of Discrimination

against Women (CEDAW), which consists

of 23 independent experts as members, to

monitor its implementation.


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Reservations to CEDAWReservations to CEDAW

Even though 185 States have becomeparties to the Convention, 57 States havecurrently reservations to it.

Most reservation are made on thefollowing provisions: Arts. 2, 5, 7, and 16.

Art. 28: A reservation incompatible withthe object and purpose of the Conventionshall not be permitted.

Especially the rights granted to women in

Article 16 (regarding marriage and family

relations) raised widespread opposition,

particularly from many Islamic States.

11.4 ENFORCEMENT OF11.4 ENFORCEMENT OF

INTERNATIONAL HUMAN RIGHTS LAW:INTERNATIONAL HUMAN RIGHTS LAW:

UNIVERSAL LEVELUNIVERSAL LEVEL The best means of ensuring respect for a right is

to back it up with legal guarantees to beadministered by a court of law.

In the case of human rights, however, oppositionto international adjudication is much stronger.

A compromise is the establishment of a numberof monitoring mechanisms, which of course aremuch weaker than international adjudication.Two principal monitoring mechanisms: those set

up by the United Nations, and those establishedby international treaties.

11. 4. 1 Monitoring mechanisms established by11. 4. 1 Monitoring mechanisms established by

the United Nationsthe United Nations

Under Article 13 of the Charter, the UN GeneralAssembly can initiate studies and makerecommendations on human rights issues.

A principal organ of the United Nations which isprimarily responsible for human rights matters isthe Economic and Social Council (ECOSOC).

Article 62. The ECOSOC can makerecommendations on human rights, draftconventions, convene international conferences,

and hear reports from various bodies.


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Commission on Human Rights (alreadyCommission on Human Rights (already

replaced by the Human Rights Council)replaced by the Human Rights Council)

A Commission on Human Rights wasestablished by the ECOSOC in 1946 under

Article 68.

Its primary function was to carry out researchand to draft treaties implementing Articles 55and 56 of the Charter.

It had no authority to deal with complaints onviolations of human rights. However,subsequently, it has been entrusted by means ofresolutions of the ECOSOC and the GA withsome monitoring and enforcement functions.

(a)(a) Resolution 1235 (XLII) of the ECOSOCResolution 1235 (XLII) of the ECOSOC

The Commission was empowered by resolution

1235 to examine information relevant to gross

violations of human rights and to study

situations which reveal a consistent pattern of

violations of human rights.

The Commission may eventually adopt

resolutions deploring or condemning a particular

State for its breaches of human rights.

(b)(b) Resolution 1503(XXVIII) of the ECOSOCResolution 1503(XXVIII) of the ECOSOC

Since 1970, the public procedure underResolution 1235 has been complemented by aconfidential procedure, established underECOSOC Resolution 1503.

It is private and confidential in the sense that thecommunications from individuals and groupsalleging human rights violations are not madepublic. The final outcome of the procedure ismade public only when the Commission decides

to submit a situation to the ECOSOC.

(c)(c) The procedure of appointing country orThe procedure of appointing country or

thematic specialthematic special rapporteursrapporteurs

This procedure has gradually evolved in the1990s to take account of special needs.

Under this procedure, the Commission entrustseither working groups of expert, or individualexperts, with the task of examining, monitoringand publicly reporting on the human rightssituation in a certain country

(e.g. Afghanistan, Cambodia, East Timor, theformer Yugoslavia, Iraq, Burma / Myanmar,

Rwanda, Somalia, Sudan).


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Although the Commissions monitoring andenforcement work mentioned above was to becommended, its value was limited.

First, politics played a role in choice andtreatment of particular cases.

Where infringements of human rights werefound, the Commissions powers were restrictedto persuasion, public criticism and, in the mostserious cases, attempts at isolation of theoffending state; there were no legally bindingsanctions available.

Human Rights CouncilHuman Rights Council

On 15 March 2006, the General Assemblyadopted Resolution A60/251 to establish theHuman Rights Council to replace the highlypoliticized Commission on Human Rights (as asubsidiary organ of the General Assembly).

The Council consists of 47 Member States,which are elected directly secret ballot by theGeneral Assembly; the membership is based onequitable geographical distribution.

Malaysia is one of the founding members.

11. 4. 2 Monitoring mechanisms established by11. 4. 2 Monitoring mechanisms established by

treatiestreaties

International human rights treaties have theirown monitoring mechanisms for compliance.E.g., for the ICCPR, the monitoring body is theHuman Rights Committee (HRC); for CEDAW the CEDAW Committee.

Three general monitoring procedures:

(1) Period reports

(2) Inter-State complaints

(3) Complaints (communications) by individuals.

Effectiveness of the human rights monitoringEffectiveness of the human rights monitoring

mechanism at the universal levelmechanism at the universal level

Human rights monitoring bodies are not courtsof law and as such their views or findings are notbinding on States parties.

There are neither sanctions nor legally bindingenforcement methods entrusted to these bodies.

This is because they operate in an area whereStates are not prepared to submit tointernational adjudication.

Further, the area of the international protectionof human rights covers matters that arepolitically, socio-economically and culturallysensitive.


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International protection of human rights on

the universal level is effective only to the

extent to exert pressure upon States with

a view to inducing them gradually to

improve their human rights record.

Compare with successful protection of

human rights at the regional level: The

European Court of Human Rights.

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