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Human Rights: an Introduction

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Title: Human Rights: an Introduction


1
Human Rights an Introduction
  • Harkristuti Harkrisnowo
  • Sentra HAM Universitas Indonesia
  • January 2006

2
Universal Declaration of Human Rights
  • Whereas recognition of the inherent dignity and
    of the equal and inalienable rights of all
    members of the human family is the foundation of
    freedom, justice and peace in the world,
  • Whereas disregard and contempt for human rights
    have resulted in barbarous acts which have
    outraged the conscience of mankind, and the
    advent of a world in which human beings shall
    enjoy freedom of speech and belief and freedom
    from fear and want has been proclaimed as the
    highest aspiration of the common people,
  • Whereas it is essential, if man is not to be
    compelled to have recourse, as a last resort, to
    rebellion against tyranny and oppression, that
    human rights should be protected by the rule of
    law,

3
Thus
  • Equality is to be promoted in order for the
    social development better standards of living
    are to be achieved
  • Such is that it is necessary to have a common
    standard of Human Rights for all peoples, AND
  • Each country is obliged to ensure that provide
    that Human Rights are to be protected and
    promoted

4
Characteristics of Human Rights
  • Internationally guaranteed
  • Legally protected
  • Focus on dignity of the human being
  • Protect the individual groups
  • Oblige states and state actors
  • Cannot be waived/taken away
  • Equal and interdependent
  • Universal

5
Main Principles of Human Rights
  • A. Equity
  • Equality
  • Non discrimination
  • Equality of opportunity
  • Equality of access on public services
  • Participation
  • B. Dignity
  • Freedom
  • Freedom to choose
  • Autonomy
  • C. Humanity
  • Respect to rights of others
  • Saling menghormati
  • Solidarity

6
Sources of Human Rights Law
  • Customary International Law
  • General consistent practice of states followed
    because of sense of legal obligations
  • Treaty Law
  • UN Charter
  • ICCPR its Protocols
  • ICESCR
  • Genocide Conventions
  • Convention against Torture
  • Convention on the Elimination of all forms of
    Racial Discrimination

7
  • Convention on the Elimination of all forms of
    Discrimination against Women
  • Conventions on the Rights of the Child
  • Migrant Worker Convention
  • Convention relating to the Status of Refugees and
    its Protocol
  • For Geneva Conventions 0f 1949 and its Protocols

8
Human Rights history in a nutshell
  • Holly Scriptures
  • Magna Carta (1215)
  • The Great Golden Bull (1223) (Hungary)
  • Westphalia Treaty (1648)
  • Declaration of Independence (1776) (USA)
  • Bill of Rights (1791) (USA)
  • Declaration des droit de lhomme et du citoyen
    1789 (France)
  • Bill of Rights (1889) (United Kingdom)

9
Human Rights...
  • the twentieth century is marked by various
    international treaties on Law on War and Labor
    issues
  • Universal Declarations of Human Rights (1948)

10
Development of Human Rights
  • The Cyrus Cylinder
  • 538 BC, the King of Persia, Cyrus or Kourosh-e
    Kabeer issued a declaration, inscribed on a clay
    barrel known as the Cyrus Cylinder
  • It contains an account of his victories and
    merciful acts, as well as a documentation of his
    royal lineage
  • the cylinder of Cyrus is sometimes referred to as
    the "first charter of human rights ,
  • it states that the Persian Empire freely lets the
    people of the empire practice their own religious
    beliefs.
  • The cylinder also introduces such concepts as the
    abolishment of slavery (the kings of Persia
    commanded that all palaces were built by paid
    workers, an unusual concept at the time)

11
  • The Stoa during the Greek period
  • Rome
  • Thomas Aquinas (13th century)
  • Hugo Grotius (16th century)
  • John Locke (the Father of Human Rights) 17th
    century
  • Enlightenment Period (18th century) Montesquieu,
    Voltaire, Rousseau

12
Hence the Human Rights theories
  • Natural Law and Positivism
  • Individualism and collectivism
  • Negative and positive rights
  • Civil political rights and economic, social
    cultural rights
  • Universalism and cultural relativism

13
Generations of Human Rights (developed by Karel
Vasak)
  • 1st Generation I
  • Negative rights or civil liberties (may stem from
    liberal freedoms advocated by JS Mill in On
    Liberty)
  • obligation on the states not to interfere with
    individual freedom (ICCPR)
  • 2nd Generation
  • Positive rights (may be linked to Rousseaus
    Continental European legal tradition, denote
    rights that the state is obliged to protect and
    provide)
  • rights to individuals or groups on the provision
    of public goods and social services (ICESCR)
  • 3rd Generation
  • Composite rights
  • right to development, peace and clean environment
  • this is the most debated generation of rights,
    and lacks both legal and political recognition

14
Some notes
  • Some theorists discredit these divisions by
    claiming that rights are interconnected.
    Arguably, for example, basic education is
    necessary for the right to political participation

15
International Human Rights Instruments
16
  • Universal Declaration of Human Rights (1948)
  • International Covenant on Civil and Political
    Rights (1966)
  • International Covenant on Economic, Social
    Cultural Rights (1966)
  • Convention on the Elimination of All Forms of
    Discrimination against Women (1979)
  • Convention against Torture and Other Cruel,
    Inhuman or Degrading Treatment or Punishment
    (1984)

17
  • International Convention on the Elimination of
    All Forms of Racial Discrimination (1965)
  • Convention on the Rights of the Child (1989)
  • Convention on the Protection of the Rights of All
    Migrant Workers and Members of Their Families
    (1990)
  • International Convention on the Suppression and
    Punishment of the Crime of Apartheid (1973)

18
Normative development of Human Rights
UN Charter
UDHR
ICCPR ICESCR
CERD, CEDAW, CAT, CRC, MWC
DECLARATION GUIDELINES BODIES OF
PRINCIPLES MINIMUM RULES DECISION GENERAL
COMMENTS OF TREATY BODIES
19
The Rules who make them ?
  • States from all regions
  • Through the development of custom
  • Through the development of declarations,
    guidelines, etc
  • Through the development of treaties
  • The are made at international bodies meetings
  • Human Rights Commission
  • General Assembly
  • UN Crime Congress
  • Regional Organizations

20
Who monitors Human Rights?
  • National level
  • Government agencies
  • National human rights institutions
  • Courts
  • Parliaments
  • Civil society (academics, professional
    associations, NGOs etc)
  • International level
  • Regional organizations
  • International NGOs
  • The UN (through conventional non-conventional
    mechanism and other human rights operations)

21
UDHR
  • Based on a holistic approach
  • Article 3 commences civil and political rights
    (articles 4-21) fundamental rights and freedom
    entitled to every individual from his or her
    government
  • Article 22 commences economic, social cultural
    rights (Article 22) everyones rights as members
    of society

22
Lacking in the UDHR are
  • Freedom of the press
  • Restriction on death penalty
  • Freedom of scientific research
  • Rights to strike
  • Rights to use ones language and name
  • Individual rights to complain
  • Protection of women and children
  • Right to development
  • Right to self-determination
  • No prohibition on war propaganda or hate speech

23
ICCPR is divided into .
  • Rights of self-determination
  • Protection of integrity
  • Fair and human procedural rights whenever ones
    freedom is curtailed by the state
  • Equal protection in terms of race, religion,
    gender etc
  • Freedom of religion, speech and assembly
  • Rights to political participation
  • Rights of minority groups to their own culture

24
While ICESR .
  • Obligation of state parties
  • Enumeration of substantive rights
  • International implementation
  • International application
  • Legal rules

(Adopted in 1966, entry into force 1976)
25
ICESR
  • Rights to work, good working condition
  • Rights to rest and leisure
  • Rights to form and join a trade union
  • Social security
  • Protection for the family, children and mothers
  • Adequate standard of living
  • Rights to health (physically and mentally)
  • rights to the development and the diffusion of
    science and culture.

26
The Mechanism .
27
OHCHR (Office of the High Commissioner for Human
Rights)
  • UN Official with primary responsibility for UN
    Human Rights activities
  • Mandated to promote and protect the enjoyment and
    full realization of all rights established in the
    Charter of the United Nations and in
    international human rights laws and treaties,
    especially
  • preventing human rights violations,
  • securing respect for all human rights,
  • promoting international cooperation to protect
    human rights,
  • coordinating related activities throughout the
    United Nations,
  • strengthening and streamlining the United Nations
    system in the field of human rights, and
  • leading efforts to integrate a human rights
    approach within all work carried out by United
    Nations agencies.

28
Supervisory (Treaty-based) Bodies (Conventional
Mechanism)
  • HRC Human Rights Committee
  • CESCR Committee on Economic, Social Cultural
    Rights
  • CERD Committee on the Elimination of Racial
    Discrimination
  • CEDAW Committee on the Elimination of
    Discrimination Against Women
  • CAT Committee Against Torture
  • CRC Committee on the Rights of the Child
  • CMW Committee on Migrant Workers

29
And their responsibility are
  • Considering reports from the State Parties,
    making suggestions recommendation on how a
    States implementation efforts might be improved
  • Holding public meetings where State Parties
    present their reports, and constructive dialogues
    with the Committee are conducted
  • Making general comments on the interpretation of
    specific treaty articles
  • Receiving individual complaints alleging that a
    State has violated their rights under relevant
    treaty

30
Extra-conventional or thematic mechanism
  • Gross systematic violations of human rights
    (1503 procedure)
  • Summary or arbitrary Executions (Special Rappr)
  • Torture (SR)
  • Disappearance (Working Group)
  • Violence against Women (SR)
  • Independence of the Judiciary (SR)
  • Racism (SR)
  • Freedom of Opinion and Expression (SR)
  • Internally Displaced Persons (SR)
  • Various country Rapporteurs
  • Human Rights and Human Genome (SR), etc

31
Mandates of thematic mechanism
  • Conducting general studies and analysis on issues
    that fall within their mandates
  • Making general recommendations on how to prevent
    human rights violations and remedy the
    consequences
  • Receiving communications (i.e. allegations about
    the violation of an individuals human rights,
    made by individuals, governments, NGOs etc.)
  • Conducting communications with governments if an
    allegation is considered as credible and falls
    within its mandate
  • Conducting country visits to study a specific
    situation in a country, depending upon the
    acceptance of the government concerned
  • Submitting an annual reports to HRC

32
Other regional mechanism..
  • African Commission on Human Rights Peoples
    Rights
  • European Commission of Human Rights
  • European Court of Human Rights
  • Inter-American Court of Human Rights
  • International Criminal Tribunals

33
The 1503 Procedure..
  • A confidential procedure adopted by ECOSOC in
    1970 on Procedure for Dealing with Communications
    relating to Violations of Human Rights and
    Fundamental Freedoms (reformed during the 65th
    session of HRC in 2000)
  • It is confidential in that neither the author of
    the complaint nor the government concerned has
    the rights to information about the progress of
    the complaint (but since 1978, the names of the
    country have been announced by the Chair of HRC)
  • Not an individual complaint procedure per se,
    only complaints that allege a pattern practice
    of human rights violations will be accepted.
  • Complaints may be made against any country, even
    if it is not a member of the UN
  • A Working Group on Communication is designated on
    a yearly basis by Sub-Commission on the Promotion
    and Protection of Human Rights

34
And international NGOs
  • Amnesty International
  • Ansar Burney Trust
  • Carter Center
  • Forum 18
  • Freedom House
  • Human Rights Campaign
  • Human Rights Watch
  • International Freedom of Expression Exchange
  • International Helsinki Federation for Human
    Rights
  • Montagnard Foundation
  • Network Against Prohibition
  • Prisoners Overseas
  • Southern Poverty Law Center
  • Bahrain Centre for Human Rights

35
Thats all, folks !
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