The definition of human rights “Recognition of the inherent dignity of and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
- Human rights are the basic rights and freedoms that belong to all human beings
- Human rights differ from ordinary rights as they are considered to be universal (everybody has them), inalienable (cannot be taken away) and inherent (automatic and born with these rights) and indivisible (no human right is more important than another).
“The government does not give you those rights; it is the responsibility of the state to recognise them” Rights must be balanced with responsibilities, SMH, 2010 Aim of human rights;
- To set a standard by which to measure inequality and fairness in society.
- Outline standards to ensure a free, fair and just society.
- Protect individuals from injustice, recognise and respect the dignity of all people and prevent discrimination against groups based on race, religion, sex, gender and physical characteristics
Human rights discussed prior to the declaration:- Philosophy of Plato, Aristotle
- Codes of Hammurabi, Cyrus the Great
- The Declaration of Independence 1776
- The French Declaration on the Rights of Man 1789
Statements of Human rights:
- UDHR – 1948
- International Covenant on Civil and Political Rights (ICCPR) – 1966 (Hard law)
- International Covenant on Economic, Social and Cultural Rights (ICESCR) – 1966 (Hard law)
- This is called the international Bill of Rights
- Both covenants coming into force in 1976.
Development of the UDHR
- The UN was created, with the UN Charter (1945), wanting to ensure that another war like WWII did not occur ever again. The UN Charter only mentions that all humans have rights, but did not go into detail about what those rights are, not enough to protect people’s rights.
- Commission of human rights was established and told to develop a Declaration of Human Rights. This was called the ‘Human Rights Project’, chaired by Eleanor Roosevelt. !
UN Charter Legislation -> Created the UN Organisation -> Developed the Commission on Human Rights -> Presented the UDHR.
On 10th December 1948, the UDHR voted on in the UN General Assembly (The UN’s parliament), 48 and 58 countries signing. (Germany was a signatory of the UDHR surprisingly…). Soft law – Statements such as declarations which do not create legal obligations. They do however influence and creature pressure on signatories. For e.g the UDHR cant enforce anything and has no jurisdiction over any country. The UDHR is not a fully bringing treaty and does not contain enforceable laws or obligations. Hard law – Conventions and treaties that create legally binding obligations on their members. E.g ICCPR.
Human rights are indivisible, they cant be separated from one another. One is no more important than the other and individuals cannot favour one right over another nor ignore one at the expense of another.
International Bill of Rights:
- UDHR (Universal Declaration of Human Rights)
- ICCPR (International Covenant on Civil and Political Rights)
- ICESCR (International Covenant on Economic, Social and Cultural Rights)
The UDHR was so well received by countries, the Human Rights Commission wanted to move to the next phase: Make a binding version..
- Some things in the UDHR were easy enough to be converted into binding international law. Such as:
- Conventions on Genocide
- Geneva Conventions (about whats not acceptable during war)
- Refugee Convention
- They tried to get a formalised version of the UDHR but there were problem with getting a binding agreement on the rest of the UDHR;
- The major powers were worried about their sovereignty (especially their control over ‘internal’ issues) would be violated
- The developing countries were worried that facing them to provide ‘economic’ rights for their people would make it impossible for them to become advanced economies.
“Western” countries (US, etc) favoured Civil and political rights “Eastern” countries (Soviets, etc) favoured economic rights
- The ‘divorce’ of Human Rights; Divorce- contradictory to the definition of Human Rights as one fo the key characteristics of human rights is indivisible.
- The rights in the UDHR got split into two binding conventions
- The main parts are known by a lot of people as “negative rights” ;
- right to freedom from torture, slavery. etc.
- But it says that countries have to organise their society (eg. voting) to allow all people to exercise these rights
- Creates an obligation on state parties to respect civil and political rights of individuals
- Not all rights are absolute. Meaning they can be altered or changed for a legitimate purpose. This occurs when one right is limited in order to protect national security or the general welfare of a democratic society.
- Some rights are known as non-derogable (absolute). These rights cannot be changed. These are listed under article (4) of the ICCPR.
- The ICCPR also created the: Human Rights Committee (which has the power to);
- Hear complaints brought by one country against another (but this hasn’t been used yet)
- Hear complaints brought by individuals against their own government
International Covenant on Economic, Social and Cultural Rights:
- The United Nations Committee on Economic, Social and Cultural Rights (the CESCR) monitors compliance with the ICESCR and provides guidance on how countries should interpret the ICESCR.
- Australia has signed the ICESCR so its gets a report card on how well we are protecting Economic, Social and Cultural rights, and what we can do to improve;
- The committee was concerned about problems like:
- We don’t have a national charter of rights
- The imprisonment of mentally ill people
- high level of homelessness (given how wealthy we are) !
The Contribution of these documents to the development of human rights:
- The ‘international bill of rights’ (UDHR/ICCPR/ICESCR) has inspired over 200 other international treaties, conventions, declarations, constitutions etc
- A lot of older treaties are being upgraded through the use of ‘Optional Protocols’ eg. ‘The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in Armed Conflict (2002)’, which adds some extra rights for children (and responsibilities for government) to avoid having children involved in fighting wars)
- The ‘3rd Generation Rights’ (collective rights, that belong to groups rather than just individuals) are really only just getting recognised internationally (with the Declaration on the Rights of Indigenous Peoples (2007)
Historically, human rights have been developed through various campaigns, which achieved partial and scattered recognition, and finally resulted in a formal declaration and international treaties. However the effectiveness of recognition depends on the will of the community to implement the rights and mechanism in place to ensure that they are respected, promoted and enforced. Human rights are presented and enforced in a variety of ways due to different international and domestic conditions and values. Whether international or domestic, there will be governing bodies responsible for complying with and promoting human rights, courts responsible for enforcing them and various organisation and pressure groups that report on them and expose violations.
Human rights in the international community Despite the recognition and importance of human rights in the international community, the concept remains controversial. Nation states have argued that human rights treaties and their implementation impact on state sovereignty and there are many UN member states which are divergent in cultural, religious and social views and priorities. Therefore despite formal recognition and the development of treaties, progress has been gradual in securing government’s respect for human rights and universal conformance with the treaties.
- The promotion and enforcement of human rights commands a great deal of attention from
the international community, including;
- numerous branches of the UN
- International courts, tribunals and other authorities
- intergovernmental organisations (IGOs)
- non-government organisations (NGOs) ((e.g amnesty international & red cross))
- media groups
State sovereignty The authority of an independent state to govern itself (eg. to make and apply laws and form treaties with foreign states). The concept of state sovereignty is central to international law and to the capacity of the world to enforce states compliance with recognised human rights. Statehood A state is the basic unit of the international system. Generally known as countries, states are the only entities in the international law capable of exercising full political capacity. In international law, recognition as a state requires a number of factors, which was outlined in Article 1 of the Montevideo Convention on the Rights and Duties of States (1993), which include:
- a defined territory
- a permanent population
- effective government
- the capacity to enter into international relations
A sovereign state is a geographical area that is controlled by a central government which exercises supreme me independent authority over that area internally and externally. A state must therefore also be recognised by a number of other states so that it can exercise its full political and legal capacity. This recognition is sometimes controversial. In most cases, membership of the United Nations will be the clearest mark of statehood, but there is no clear definition of statehood that binds the international community, and in practice the granting is usually a political manner, with recognition by leading nations being the most influential factor rather than legal considerations. The issues of statehood can have implications for human rights. People may be unable to claim protections under the international human rights regime if they live within the territory of an unrecognised state, or if they live in a state with which relations have broken down. For example, in 2009 the Taiwanese Parliament ratified both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights into domestic law. However as they are an unrecognised state without UN membership, Taiwan’s 23 million citizens do not have access tot he international human rights framework, which includes the right to complain to the UN Human Rights Committee. It also means that no other state can submit any complaint about Taiwan to the Committee.
Sovereignty is one of the most essential components of the international system and it refers tot he ultimate law-making power of a state. Its independence and freedom from external interference in its affairs. Sovereignty is the source of a states legal and political powers. It is a major issues to human rights, as in its strictest sense it means that no foreign state or law can interfere in another states domestic jurisdiction. According to Article 2(1) of the UN Charter, ‘the UN is based on the principle of the sovereign equality of all its members.’
State sovereignty and human rights Not all governments equally accept that idea that their own people have certain rights, which is a major problem of state sovereignty, considering that some countries without democratic processes may rely on sovereignty to justify mistreatment of their own citizens. In extreme cases, such countries may commit human rights abuses with impunity, with little or no avenue for their citizens to response. In such cases, state sovereignty may be used as a shield against outside interference.
Defining state sovereignty: State sovereignty mean that each country has:
- absolute power over its own laws
- supreme courts control over its territory
- absolute control over its legal system
- the ability to make decision without outside interference
State sovereignty & Human Rights
-Each state has the right to choose wether or not to recognise IGO’s such as the UN. They also have the right to choose whether or not they recognise human rights -Because ‘state sovereignty’ exists, human rights must be accepted and enforced by each country individually in order to be truly protected -The UN recognise ding human rights in formal statements (UDHR, ICCPR, ICESCR) means little if countries do not enact legislation domestically to protect them. !
BONUS FACT: enacted – means that a human right/s has been taken out of an international document and turned into domestic (Australian) legislation. Enacting this type of legislation is the only way to protect human rights in Australia.
- “States are simultaneously a threat to human rights and their principal protector”
- In assessing the role of State Sovereignty you will find that there are many more negate aspects to discuss then positive
- Human rights instruments such as the ICCPR and ICESCR are made to protect people from human rights abuses (including those committed by the state)
- But it is the states that have the power to sign, ratify, monitor and enforce their own compliance (not individuals). This means we have a reliance on the government to put human rights above all other interest.This does not always happen
- Governments are supposed to protect human rights although they are also the ones that violate them.
- EG. China
- They believe that human rights issues are internal issues that each country has to work
- They don’t think there is such a thing as human rights. They believe rights are only those that your sovereign government allows you to have
- Here you have a state in charge of protecting human rights that doesn’t believe in human rights. This is the problem with state sovereignty
- Some countries don’t have the capacity to enforce human rights (eg. Columbia, theres too much corruption and violence against the government for it to effectively protect people).
- In light of this, the UN should do more to increase the capacity of countries to protect their own people (the UN already does this for the basic right to vote freely from the ICCPR by sending election monitors around the world to make sure that there in no electoral fraud, or threats of violence against voters, etc).
- Some government have been conceding/giving away parts of their sovereignty in order to be part of something beyond state and ‘higher powers’ to decide on human rights issues (eg. the European Court of Human Rights)
- The 2005 UN Summit, created the Responsibility to Protect (R2P), which is based on the idea that, even though sovereignty, exists, it is a privilege that can be taken away (through force if necessary) if a government refuses to protect its people from crimes like genocide. The UN reminded Libya of its R2P, but the government continued its actions and the UN Security Council authorised military action against them.Make a judgment
- But basically, state sovereignty is really a barrier in protecting human rights because states are not built to protect human rights
- Country borders and government were not constructed upon the idea of human rights, there were made to maintain power and control without external influence. Unfortunately when the UN was created, the fundamental problem of sovereignty was built into its structure – the UN is not a group of individuals, but rather a group of states, unless the UN becomes more representative an individuals become the centre of international relations, state’s will need to voluntarily give up some sovereignty to ensure human rights protection.
State Sovereignty has a significant impact on the protection of human rights, considering that state sovereignty allows states to choose whether or not to uphold human rights or not. State sovereignty can have a negative impact on the protection of human rights as governments violating the basic human rights of individuals..… Whilst human rights are recognised internationally, and many international instruments have been made to protect individuals from violations of humans rights, including the ICCPR and the ICESCR, nation states aren’t obliged to enforce such rights. Positively, however, governments are able to voluntarily concede parts of their sovereignty to higher powers including the European Court of Human rights who decide on human rights issues. Essentially governments were constructed to maintain power and control without external influence, and therefore regardless of the United Nations and other international bodies and instruments, state sovereignty is a barrier in protecting human rights considering that nation states and governments are not legally obliged to uphold human rights and therefore humans rights are not always protected by legislation.
The United Nations Promoting and enforcing human rights in the international community:
- The United Nations
- Intergovernmental organisations
- Courts, tribunals and independent statutory authorities
- Non-government organisations (e.g amnesty international, red cross, etc )
- The media
Process to use for each international response;
- Promoting human rights + enforcing human rights
- Discuss both sides ‘for and against’ (we need to know what things are effective and what is ineffective)
- discussing both international and national
- Make an overall judgment
The UN Summit basically brought together 170 governments to take bold decisions in the areas of development, security, human rights and reform of the UN. www.un.org/en/events/pastevents/worldsummit_2005.shtml
- The UN has done a great job in promoting human rights
- The UN’s weakness is enforcing its decisions on human rights, because of:
- State sovereignty
- Veto power
- Lack of political will
- The UN has done a good job in regards to less controversial human rights issues (e.g rights for clean water, disease control etc).
IGO’s – is the two below also organs of the UN????? Office of the High Commissioner for the Human Rights;
Administrative agency under the UN Secretariat that works to promote and protect the human rights contained in the UDHR and international law. The OHCHR’s purposes include:
- advancing universal ratification and implementation of the UDHR and human rights standards and treaties
- promoting universal enjoyment of human rights and international cooperation, including education, information and technical assistance, taking preventive action and responding to serious human rights violations
- providing support and information for other UN human rights bodies and treaty-monitoring bodies, including the Human Rights Council and the Human Rights Committee
*UN Human Rights Council (UNHRC); Relatively new intergovernmental body under the UN General Assembly, made up of representatives of member states, (47 member seats are rotated on three year terms). It aims to address human rights violations worldwide and made recommendations, and works closely with the OHCHR to perform in duties. The human rights council has recently adopted a series of specific measures that aim to increase its power to address human rights abuses, including:
- a complaints procedure allowing individual people to bring issues to the Council’s attention if they have been a victim of human rights abuse in a state
- compulsory periodic reviews of the human rights situation in all 193 member states (not just those who are signatories to the ICCPR and other treaties)
- an advisory committee to provide expertise add advice and recommend issues for the Council to consider
However the Human Rights Council has received some criticised for acting not in the interests of human rights but according to political considerations. Also influential states such as China and Russia have also been accused of backing and controlling certain candidates to block criticism of themselves.
Intergovernmental organisations (IGOs)
- An intergovernmental organisation is an international institution made up of member states. IGOs are created by agreement between states, and each has an international treaty that acts as a charter outlining the organisations purpose and operation. They are usually permanent, meet regularly and have international legal ‘personality’, which means they can enter into enforceable agreements and are subject to international law.
- One of the first worldwide IGOs was the International Telegraphic Union in 1865 and by 1909, there were 37 IGOs in the world. Today the number stands at around 1000. The United Nations, created by the 1945 UN Charter, is the most important of all IGOs. Other powerful IGOs include the World Trade Organisation (WTO), the International Monetary Fund (IMF), the North Atlantic Treaty Organisation (NATO) and INTERPOL.
- Commonwealth of Nations – stated aims include the promotion of democracy, the rule of law, human rights, individual liberty and good governance. Several members have been suspended due to serious or persistent violations and human rights abuses, including Zimbabwe in 2002 and Fiji on various occasions due to military coups.
- African Union (AU) – aims include achieving peace and security in Africa, and promoting democratic institutions, good governance and human rights.
- Organisation of American States – responsible for overseeing the regional human rights instrument, the American Convention on Human Rights.
Courts, tribunals and independent authorities → International Court of Justice (ICJ) The ICJ hears and judges disputes between states, and to issue advisory opinions on matters of international law. In the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), presented on 9th July 2004, the ICJ issued an important, though controversial advisory opinion that the Israeli West Bank barrier – a 700 km wall dividing up the Palestinian-occupied West Bank from Israeli territory, was contrary to international law and trespassed disputed territory. International NGOs sick as the International Committee of the Red Cross (ICRC) and Amnesty International have claimed that the barrier causes humanitarian problems or violates Israel’s obligations under international humanitarian law. Israel has debated these claims, and the Security Council has yet to accept and enforce the ICJ’s ruling. The strongest criticism of the ICJ is that it requires the consent of state parties to hear matters and so has very little jurisdiction. The court is unable to hear cases brought by individual people or private organisations, is restricted to states themselves, and has very little power of enforcement, with Security Council members being able to reject any enforcement action.
→ International Criminal Court (ICC) and ad hoc tribunals The ICC was established in 2002 to prosecute international crime and was preceded by various tribunals established by the UN Security Council or the UN to deal with specific events involving serious international crimes. The ICC is not a court for human rights violations specifically, but it does prosecute and hear matters that fall under international humanitarian law, such as genocide, crimes against humanity and war crimes, although these acts would also constitute serious human rights abuse. It also has jurisdiction to hear crimes of aggression (illegal war). Importantly, the ICC has jurisdiction to prosecute individual people rather than states, which makes it a powerful institution for combating individuals who seek to sue state sovereignty as a defence for their abusers.
→ European Court of Human Rights (ECtHR) The ECtHR was set up in 1959 in France to apply and protect the human rights of the citizens of Europe. It considers cases brought by individuals, as well as by organisations and states, against all countries bound by the European Convention on Human Rights (ECHR). This convention, like the UDHR, was a landmark human rights treaty drawn up after WWII. The ECHR is an extremely influential human rights body, and compliance has been incorporated into the treaties of the European Union (EU). This means that the laws of all 27 member states of the EU must comply with the rulings of the ECHR. The ECHR has proved successful in 2010 as it announced various procedural reforms that would allow it to deal with a backlog of 120 000 cases across Europe.NGO’s
- Are separable and independent from governments
- They have no authority to enforce human rights however they promote human rights (hoping that governments decide to enforce human rights instruments)
- Their aim is to expose human rights violations in the world
- They have both direct (e.g emails to governments) and indirect actions (e.g press releases)
- They can now be officially accredited by the UN (so that they can report to the UN, participate in UN conferences, etc)
- Eg. Amnesty International is the worlds largest IGO
- E.g Human Rights Watch reports about human rights abuses (based on countries and ‘themes’).