11.1 THE CONCEPT OF HUMAN
CHAPTER 11 RIGHTS [Textbook, p. 339]
INTERNATIONAL HUMAN • The crux of international human rights law: to
afford legal protection of every human being on
RIGHTS LAW the planet earth.
• “All individuals, solely by virtue of being human
beings, have rights which no society or State
PROFESSOR should deny”.
DR. ABDUL GHAFUR HAMID • Unfortunately, however, there are radically
different definitions, and interpretations of
human rights, and different approaches.
11. 1.1 Categorisation of human rights Civil and political rights
Human rights are generally divided into three main • Civil and political rights (freedom of
categories: expression, freedom of peaceful assembly,
(1)civil and political rights; freedom from torture, freedom from arbitrary
(2) economic, social and cultural rights; and arrest and detention, right to a fair trial, etc.)
derive from the natural rights philosophy of John
(3) group or peoples’ rights. Locke, Rousseau and others.
They are often confusingly expressed in terms of • They protect against encroachments of
“generations” of human rights: the first, the government.
second, and the third generation respectively.
• These rights have traditionally been given
priority by Western States.
Economic, social and cultural rights peoples’
Group or peoples’ rights
• Economic, social and cultural rights (e.g., • Group or peoples’ rights emerged as recently
right to work, right to education, right to access as the 1970s and are supported by developing
to health care) attained recognition in the countries.
twentieth century with the advent of socialism. • The focus is on collective as opposed to
• They argued that achievement of economic and
social rights was a pre-condition for other rights. • The right to development and the right to self-
determination are two main examples.
• That is, until the economic and social rights were
• In the early 1970s, thanks to their numerical
realized a State was not in a position to provide superiority, the developing countries managed to
civil and political rights. elaborate their own philosophy of human rights.
11.1.2 Universalism and Cultural
• The question of the ‘universal’ or ‘relative’ • Advocates of “cultural relativism” claim that most
character of the human rights has been a source (or some) rights depend on cultural context, the
of debate from the beginning of the human rights term ‘culture’ being used in a broad way to
movement. include political and religious ideologies and
• The proponents of the “universalism” claim that • Hence notions of right (and wrong) necessarily
international human rights like rights to equal differ throughout the world because the cultures
protection by law, physical security, freedom of in which they take root differ.
speech, freedom of religion and freedom of •
association are and must be the same
• On their face, human rights instruments • To the relativists, these instruments are the
are on the ’universal’ side of this debate. indicators of the so-called ‘cultural imperialism’
The landmark instrument is the Universal of the West. The West view their own beliefs as
universal, and attempt to universalise them.
Declaration of Human Rights (UDHR).
• Moreover, the push to universalization is said by
• The two Covenants (ICCPR, ICESCR) some relativists as an attempt to destroy
also speak in universal terms: ‘everyone’ diversity of culture and hence amounts to
has the right to liberty, ‘all persons’ are cultural homogenisation in the modern world.
entitled to equal protection, etc.
11.1.3 The Islamic perspective of human
• During the Cold War, such debates were mainly • Islam has its own values and standards of
between the Communist and the Western.
human rights, founded on ‘Shari’ah’, the
• The West charged the Communist world with
violating many basic rights of a civil and political
Divine Law, the essence of which is
character. The Communist world charged the absolute submission to the Will of God
West with violations of the more important Almighty.
economic and social rights.
• However, it appears that Islamic jurists are
• Today the universal-relative debate takes place
primarily in a North-South (or West-East) divided on how to interpret the original
framework between developed and developing sources of Shari’ah.
Reformists and traditionalists Islamic values versus Human rights instruments
• Ijtihad: Whether the door for ijtihad has • Human rights instruments are mainly based on
been closed or not. ‘universalism’.
• Traditionalists: must strictly follow the • There are arguments that Islamic values conflict
classical interpretations. with some norms of the human rights
instruments (esp. in respect of family law, the
• Reformists: should not interpret the notion of Qawama (guardianship and authority),
original sources literally but consider the the notion of al-hijab, and the law of apostasy).
rationale behind the revelation in question.
The practice of Islamic countries
• To counter these, many Islamic jurists rely • Although most of the Islamic countries apply the
on the concept of cultural-relativism. Western legal systems in the field of public law
(with the exception of a few, like Saudi Arabia;
• For us, we believe that it is not appropriate countries like Pakistan is practising hudud law),
to test whether an injunction of the Divine their family laws are based on Shariah.
Law is just, fair or reasonable with a • When these countries adopt human rights
system of justice made by man. instruments, they find that some of the
provisions are in conflict with Islamic law.
11.3 The evolution of international human
• In view of this, they made reservations when The concept of the international protection of
ratifying the Convention on the Elimination of All human rights is revolutionary in nature given the
Forms of Discrimination Against Women, 1979 fact that the traditional doctrine of international
(CEDAW), and the Convention on the Rights of law had no place for it at all.
the Child, 1989.
• See: Abdul Ghafur Hamid, “Reservations to The turning point for this change of the paradigm
CEDAW and the Implementation of Islamic is the Charter of the United Nations, which is
Family Law: Issues and Challenges”, (2006) usually referred to as the starting point for any
Asian JIL, vol. 1 No. 2, 121-155. Conference study of the protection of human rights.
Paper, International Conference on Islamic
Family Law (2006).
11.3.1 Human rights clauses of the Charter
• Preamble: reaffirmed their “faith in fundamental • Some argue that the human rights clauses of the
human rights, in the dignity and worth of human Charter do not impose any legal obligation on
person, in the equal rights of men and women”. member States with regard to their own
• Article 1: the achievement of international nationals.
cooperation “in promoting and encouraging
respect for human rights and for fundamental • The better view, however, is that the use of the
freedoms for all without distinction as to race, word “pledge’ in Article 56 implies a legal
sex, language, or religion”. obligation, although the obligation is weak in
• Also Arts. 55 and 56 (All members pledge view of the fact that there is no enumeration in
themselves to take joint and separate action). the Charter of the fundamental human rights
which are to be observed by States.
11.3.2 The Universal Declaration of Human
• The adoption by the General Assembly of the • Many laymen imagine that States are under a
Universal Declaration of Human Rights on 10 legal obligation to respect the rights listed in the
December 1948, by 48 votes to nil, with 8 Declaration. It is not so. As it is not a treaty, the
abstentions. Declaration as such is not legally binding.
• The abstaining states were Saudi Arabia, South
Africa and the communist countries • It is simply a list of human rights which member
(Byelorussia, Czechoslovakia, Poland, Ukraine, states ‘pledge’ themselves to promote under
USSR and Yugoslavia). Articles 55 and 56 of the Charter.
• Two main categories of human rights, namely:
civil and political rights [Articles 3 to 21] and
economic, social and cultural rights [Articles 22
11.3.4 The International Covenant on Civil and
Political Rights 1966 (ICCPR)
• In spite of its limitations, the Declaration is of • The idea to draft a single convention failed.
great importance in stimulating and promoting • The International Covenant on Civil and Political
the international protection of human rights. Right (ICCPR) and the International Covenant
• It has impact in shaping subsequent treaties on on Economic, Social and Cultural Rights
human rights, and upon the content of the (ICESCR) were finally adopted by the General
constitutions of new States. Assembly on 16 December 1966. Both came
• It is possible that at least some part of the into force in 1976.
Declaration, like the prohibition of torture, may • As of now, there are 160 State parties to the
subsequently have become binding as a new ICCPR and 156 States parties to the ICESCR.
rule of customary international law. • Both Covenants contain a common article
(Article 1) reaffirming the “right of self-
• The ICCPR provides, among others, for the right • The ICCPR imposes the obligation on States
of self-determination, the right to life, the Parties “to respect and to ensure to all
prohibition of torture, the prohibition of slavery individuals…the rights recognized in the present
and forced labour, the right to liberty, the Covenant” [Art. 2(1)].
prohibition of arbitrary arrest and detention, the
right equality before the courts, the right to • It also contains provisions obliging the Parties to
freedom of thought, conscience, religion and undertake the necessary steps to adopt such
expression, the right of peaceful assembly and legislation or other measures as may be
the right to freedom of association including the necessary to give effect to the rights recognised
right to form and join trade unions, and the right in the Covenant. [Art. 2(2)]
to take part in the conduct of public affairs, to
vote and to be elected at elections.
Human Rights Committee
• Each State Party to the Covenant also • The Human Rights Committee, established
under Article 28 of the Covenant, has 18
undertakes to ensure that any person members.
whose rights are violated has an effective • It has three main monitoring mechanisms:
remedy, notwithstanding that the violation • (1) Compulsory reporting procedure whereby all
has been committed by persons acting in State parties are obliged to present reports
an official capacity. [Art. 2(3)] (initial and period) indicating compliance with the
• Art. 4: emergency threatening the
• (2) Optional inter-State complaints procedure;
existence of the state. and
• (3) Individual complaints procedure.
Optional inter-State complaints procedure
Complaints by victims of human rights violations
• A contracting party may, on condition of • The most significant monitoring mechanism is
reciprocity, accept the right of the other the individual complaints procedure under the
contracting parties to bring a claim to the HRC First Optional Protocol to the ICCPR, 1966.
alleging a violation of the Covenant by it. There were 107 Parties to it.
• Negotiations between the two parties must have • The victims of human rights violations, if they
been completed without success. have exhausted all available domestic remedies,
• If satisfied that local remedies have been may submit a written communication to the
exhausted, the Committee shall make available Committee for consideration.
its good offices. • There is a Second Optional Protocol which
• The Committee must, within twelve months, deals with ‘abolition of death penalty’.
submit a report, which is not legally binding.
11.3.5 International Covenant on Economic, Social
The nature of the obligation of State Parties
and Cultural Rights 1966 (ICESCR)
• The ICESCR provides for the right of self- • Article 2 (1) provides that “each State
determination for all peoples, the right to Party to the present Covenant undertakes
work, the right to form trade unions and to to take steps… to the maximum of its
strike, the right to social security, the right available resources, with a view to
achieving progressively the full realization
to an adequate standard of living, the right of the rights recognized in the present
to health, the right to education and the Covenant by all appropriate means,
enjoyment of certain cultural rights. including particularly the adoption of
ICCPR and ICESCR: compare and constrast
(1) Obligation of state parties: (2) Favourable condition for developing countries:
(a) The obligation under ICESCR is very A significant feature of the ICESCR is that
general and limited to ‘taking steps’ with a view developing countries, with due regard to human
to ‘achieving progressively the full realization rights and their national economy, may
determine to what extent they would guarantee
of the rights’ whereas ICCPR imposes a more the economic rights recognized in the Covenant
stringent obligation on States ‘to respect and to to non-nationals. [Art. 2(3)]
ensure’. (3) Individual complaints procedure: There is an
(b) The obligation under ICESCR is also Optional Protocol to the ICCPR establishing
limited To the maximum of its available individual complaint procedure while there is no
resources. such procedure in ICESCR.
11.3.6 The Convention on the Elimination of All
Forms of Discrimination Against Women 1979
• The CEDAW was adopted by the General • The Convention establishes a Committee
Assembly on 18 December 1979 and entered
into force on 3 September 1981.
on the Elimination of Discrimination
• There are 185 States Parties to the Convention.
against Women (CEDAW), which consists
• Malaysia acceded to CEDAW on 5 July 1995. of 23 independent experts as members, to
• CEDAW Art. 2: To embody the principle of monitor its implementation.
equality of men and women in their national
constitutions or other appropriate legislation.
• Art. 8 (2) of the Federal Constitution was
amended (in 2001) to guarantee gender
Reservations to CEDAW
• Even though 185 States have become • Especially the rights granted to women in
parties to the Convention, 57 States have Article 16 (regarding marriage and family
currently reservations to it. relations) raised widespread opposition,
• Most reservation are made on the particularly from many Islamic States.
following provisions: Arts. 2, 5, 7, and 16.
• Art. 28: A reservation incompatible with
the object and purpose of the Convention
shall not be permitted.
11.4 ENFORCEMENT OF
INTERNATIONAL HUMAN RIGHTS LAW: 11. 4. 1 Monitoring mechanisms established by
the United Nations
• The best means of ensuring respect for a right is • Under Article 13 of the Charter, the UN General
to back it up with legal guarantees to be Assembly can initiate studies and make
administered by a court of law. recommendations on human rights issues.
• In the case of human rights, however, opposition • A principal organ of the United Nations which is
to international adjudication is much stronger. primarily responsible for human rights matters is
• A compromise is the establishment of a number the Economic and Social Council (ECOSOC).
of “monitoring mechanisms”, which of course are • Article 62. The ECOSOC can make
much weaker than international adjudication. recommendations on human rights, draft
Two principal monitoring mechanisms: those set conventions, convene international conferences,
up by the United Nations, and those established and hear reports from various bodies.
by international treaties.
Commission on Human Rights (already
(a) Resolution 1235 (XLII) of the ECOSOC
replaced by the Human Rights Council)
• A Commission on Human Rights was • The Commission was empowered by resolution
established by the ECOSOC in 1946 under 1235 “to examine information relevant to gross
Article 68. violations of human rights” and “to study
• Its primary function was to carry out research situations which reveal a consistent pattern of
and to draft treaties implementing Articles 55 violations of human rights”.
and 56 of the Charter.
• The Commission may eventually adopt
• It had no authority to deal with complaints on
violations of human rights. However, resolutions deploring or condemning a particular
subsequently, it has been entrusted by means of State for its breaches of human rights.
resolutions of the ECOSOC and the GA with
some monitoring and enforcement functions.
(c) The procedure of appointing country or
(b) Resolution 1503(XXVIII) of the ECOSOC
thematic special rapporteurs
• Since 1970, the ‘public procedure’ under • This procedure has gradually evolved in the
Resolution 1235 has been complemented by a 1990s to take account of special needs.
‘confidential procedure’, established under • Under this procedure, the Commission entrusts
ECOSOC Resolution 1503. either working groups of expert, or individual
• It is private and confidential in the sense that the experts, with the task of examining, monitoring
communications from individuals and groups and publicly reporting on the human rights
alleging human rights violations are not made situation in a certain country
public. The final outcome of the procedure is • (e.g. Afghanistan, Cambodia, East Timor, the
made public only when the Commission decides former Yugoslavia, Iraq, Burma / Myanmar,
to submit a ‘situation’ to the ECOSOC. Rwanda, Somalia, Sudan).
Human Rights Council
• Although the Commission’s monitoring and • On 15 March 2006, the General Assembly
enforcement work mentioned above was to be adopted Resolution A60/251 to establish the
commended, its value was limited. Human Rights Council to replace the highly
• First, politics played a role in choice and politicized Commission on Human Rights (as a
treatment of particular cases. subsidiary organ of the General Assembly).
• Where infringements of human rights were • The Council consists of 47 Member States,
found, the Commission’s powers were restricted which are elected directly secret ballot by the
to persuasion, public criticism and, in the most General Assembly; the membership is based on
serious cases, attempts at isolation of the equitable geographical distribution.
offending state; there were no legally binding • Malaysia is one of the founding members.
11. 4. 2 Monitoring mechanisms established by Effectiveness of the human rights monitoring
treaties mechanism at the universal level
• International human rights treaties have their • Human rights monitoring bodies are not courts
own monitoring mechanisms for compliance. of law and as such their views or findings are not
E.g., for the ICCPR, the monitoring body is the binding on States parties.
Human Rights Committee (HRC); for CEDAW – • There are neither sanctions nor legally binding
the CEDAW Committee. enforcement methods entrusted to these bodies.
• Three general monitoring procedures: • This is because they operate in an area where
(1) Period reports States are not prepared to submit to
(2) Inter-State complaints international adjudication.
(3) Complaints (communications) by individuals. • Further, the area of the international protection
of human rights covers matters that are
politically, socio-economically and culturally
• 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”.