CHAPTER 11 INTERNATIONAL HUMAN RIGHTS LAW

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CHAPTER 11 INTERNATIONAL HUMAN RIGHTS LAW Powered By Docstoc
					                                                        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.




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      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
                                                          individual rights.
• 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
                relativism
• 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
                                                          institutional structures.
• 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
  everywhere.




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• 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
                                                                          rights
• 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.
  countries.




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          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.




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                                                       11.3 The evolution of international human
                                                                       rights law
• 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.




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   11.3.2 The Universal Declaration of Human
                     Rights

• 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
  to 27].




                                                            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-
                                                              determination”.
                                                            •




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• 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
                                                         ICCPR;
• Art. 4: emergency threatening the
                                                       • (2) Optional inter-State complaints procedure;
  existence of the state.                                and
                                                       • (3) Individual complaints procedure.




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             inter-
    Optional inter-State complaints procedure
                                                      Complaints by victims of human rights violations
                     [Art. 41]

• 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
                                                       legislative measures.”




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   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
                      (CEDAW)
• 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
  equality.




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             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
             UNIVERSAL LEVEL
• 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.




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    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).




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                                                                  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.
  sanctions available.




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
                                                       sensitive.




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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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