Public International Law 1 Dersi 8. Ünite Özet

Introduction

The concept of ‘human rights’ is used to denote a broad spectrum of rights, ranging from the right to life to the right to a cultural identity. They involve all elementary preconditions for a dignified human existence. However, it is difficult to give one definition of human rights. Generally speaking, human rights are said to be those fundamental and inalienable rights which every individual inhabiting any part of the world is inherently entitled merely by virtue of having been born a human being.

The Concept of Human Rights and Ideological Approaches

Human rights are the basic rights or natural rights that are essential for the adequate development of human personality and for the happiness and progress of the human society. The core element of such rights is universal and consists of freedom, equality, and liberty. Being fundamental rights, they cannot be taken away by any act of the government or by the legislature of the country. Human rights law imposes a responsibility on the state to respect and protect these rights and, as such, it is largely a post-1945 phenomenon.

The concept of human rights is based on the belief that every human being is entitled to enjoy her/his rights without discrimination. Human rights differ from other rights in two respects. irst, human rights are characterized by being:

• Inherent in all human beings by virtue of their being humans;
• Inalienable;
• Equally applicable to all. Second, the main duties deriving from human rights fall on states and their authorities or agents, not on individuals.

The idea of basic rights originated from the need to protect the individual against the arbitrary use of state power. Human rights in this category are generally referred to as fundamental freedoms. The specific nature of human rights, as an essential precondition for human development, implies that they can have a bearing on relations both between the individual and the state, and between individuals themselves. While human rights primarily establish rules for relations between the individual and the state, several of these rights can also have implications for relations between individuals. This implies, among other things, that a government has not only an obligation to refrain from violating human rights but also a duty to protect the individual from infringements by other individuals. Although human rights have been classified in a number of different manners, it is important to note that international human rights law stresses that human rights are universal, indivisible and interrelated. At the international level, a distinction has sometimes been made between civil rights and political rights, on the one hand, and economic, social and cultural rights on the other.

The term “human rights,” fulfils two different but consistent functions:

1. the phrase ‘universal human rights’ is used to assert that universal norms of standards are applicable to all human societies. This assertion has its roots in the medieval notions of natural law.
2. The idea of human rights is used to affirm that all individuals, solely by virtue of being humans, have moral rights which no society or state should deny. This idea has its roots in the classical theories of natural rights. Despite these consistent functions, there are different approaches to human rights:
   1. Natural law theory;
   2. Positivism;
   3. The Marxist approach;
   4. The sociological approach;
   5. The modern approach.

Development of International Human Rights Law

The concept of human rights dates back to antiquity. One can find reference to rights in many national documents. The first reference of personal liberties is found in the Magna Carta of 1215 in England. Other notable references prior to the 19th century are the 1776 Virginia Declaration of Rights and the 1789 French Declaration of the Rights of Man and of the Citizen. The institutionalization of human rights in national documents penetrated into the international system at the end of the 18thcentury.

Prior to the Second World War, persons under the jurisdiction of a state were categorized as either nationals or aliens, but not as individuals per se. Aliens were protected from state actions under international law, but the treatment of nationals was regarded entirely as a part of the domestic jurisdiction of a state and not regulated by international law. The Second World War demonstrated that human rights, peace, and progress were related, because without the protection of human rights, there can be neither lasting security nor sustained economic and social development. Naturally, the promotion and protection of human rights and fundamental freedoms without any distinction became one of the purposes of the United Nations (Art. 1/3 of the Charter).

The four Geneva Conventions, 1949; two additional Protocols to these Conventions, 1977; and the Final Act of the Conference on Security and Cooperation in Europe, 1975 (the Helsinki Accords) also contain important provisions on human rights. Progress in the evolution of the international law of human rights has so far been made mainly through treaties. International treaties and even declarations can also gradually become a part of customary international law. However, the actual formulation and enforcement of these rights is relatively more important than their recognition. Especially the enforcement mechanism of these rights is yet to be perfected.

Scholars started classifying human rights under “three generations.” The two Covenants (the 1966 Covenant on Civil and Political Rights and the 1966 Covenant on Economic, Social and Cultural Rights) together represent the first two generations of human rights. The first generation consists of civil and political rights, mainly based on natural rights philosophy of the eighteenthcentury thinkers such as Locke and Rousseau. The second generation consists of economic, social and cultural rights, which were propagated and recognized after the advent of socialism in the twentieth century. The emphasis in both has been on the individual’s rights. The Universal Declaration of Human Rights, which is the embodiment of the rights of both these generations, attaches equal importance to political and economic rights and consider them as interdependent. However, in the 1970s, a “third generation” rights emerged with the predominant support of the developing countries. In contrast to the individual’s rights (i.e., the first two generations rights), these are collective or group rights such as the right to development, right to healthy human environment, right to peace, and right to self- determination. They are enshrined in the 1986 Declaration on the Right to Development.

Human Rights and The United Nations System

The UN Charter, which has played the catalyst role in the human rights movement, does not give a definition of fundamental freedoms and human rights, nor does it provide any machinery to secure their observance. This task has been fulfilled by the subsequent United Nations instruments. The First critical instrument was the Universal Declaration of Human Rights, adopted by the General Assembly on December 10, 1948. It defined expressly certain human rights and fundamental freedoms that need to be protected.

Among the human rights agreements, the most important are the two Covenants adopted by the General Assembly in 1966:

1. The International Covenant on Civil and Political Rights and its two Optional Protocols, and
2. The International Covenant on Economic, Social and Cultural Rights. These two Covenants, Optional Protocols to the Covenant on Civil and Political Rights, and the Universal Declaration on Human Rights together form the International Bill of Rights. The Covenants are treaties that are binding on the parties. They impose legal obligations in respect of these rights and provide machinery for dealing with complaints of violation of the obligations.

Enforcement of human rights: Under the Charter, the United Nations is obliged to promote “respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (Art. 55/c). Toward this objective, the ECOSOC, in February 1946, established the Commission on Human Rights (CHR- under Art. 68). The Office of the United Nations High Commissioner for Human Rights (UNHCHR) assisted in its work. The Commission came closest to establishing permanent machinery for the protection and promotion of human rights.

The Human Rights Council (HRC) is a subsidiary organ of the General Assembly. Unlike the CHR, which was a subsidiary body of the ECOSOC and reporting to the ECOSOC, the Human Rights Council reports to the General Assembly. “The Council is made of 47 Member States, which are elected by the members of the General Assembly of the United Nations through direct and secret ballot. Members of the Council serve for a period of three years and are not eligible for immediate re-election after serving two consecutive terms. The Council’s Membership is based on equitable geographical distribution.

These developments at the international level, however, have clearly established that the treatment by a state of its own nationals does not pertain to its exclusive domestic jurisdiction. However, the acceptance of the jurisdiction of the Human Rights Commission/Council by states by responding to the allegations against them has brought the subject of protection of human rights within the domain of international law.

Procedure and practice under the covenants: The two UN International Covenants of 1966 provide their own review and supervision mechanism of the rights enshrined therein. These Covenants came into force in 1976. Out of these covenants, the International Covenant on Civil and Political Rights (ICCPR) is relatively stronger than the International Covenant on Economic, Social and Cultural Rights (ICESCR) in creating obligations and enforcing these obligations.

Procedure under other human rights conventions: The machinery, in the form of treaty monitoring bodies for the enforcement of human rights also exists, albeit imperfect, under other United Nations conventions. Generally, a committee of independent experts monitors the compliance of a state party with the treaty concerned. For example, the ILO Constitution requires member states to submit annual reports on the measures adopted by them to give effect to the ILO conventions. They are examined by a Committee of Experts. The provision also exists to make inter-state complaints to the International Labour Office by one member against another for the nonobservance of a convention to which both of them are parties (Art. 26). Such a complaint is referred to a Commission of Inquiry. Failing a settlement based on the Commission’s report, the findings can be referred to the ICJ. Treaty-based reporting or petition systems for monitoring or ruling on compliance exist also under the following conventions:

• Convention on the Elimination of all Forms of Racial Discrimination, 1966 (CERD);
• Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW);
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, 1984 (CAT);
• Convention on the Rights of the Child, 1989 (CRC);
• Convention on the Protection of the Rights of All Migrant Workers, 1990;
• Convention on the Rights of Persons with Disabilities, 2006;
• Convention for the Protection of All Persons from Enforced Disappearance, 2006.

Regional Approaches to The Protection of Human Rights

The European Convention for the Protection of Human Rights and Fundamental Freedoms: The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), adopted by the Council of Europe on 4 November 1950, by far is the most established regional human rights treaty whose jurisprudence is well developed. It incorporates mainly the civil and political rights enshrined in the Universal Declaration of Human Rights. The economic, social and cultural rights in the Universal Declaration find their way in the European Social Charter of 18 October 1961. All the members of the Council of Europe are parties to the European Convention, which is also applicable to their overseas territories. The Convention imposes binding commitments on the states parties to enforce and secure to “everyone within their jurisdiction,” the rights and freedoms enlisted in the Convention. These rights have been precisely defined and the exceptions and restrictions are created to them. For example, the Convention allows a state party to take measures in derogating from its obligations under the Convention “in times of war or other public emergency threatening the life of the nation”. However, no derogation is permitted under this provision from the right to life (except in case of lawful acts of war), torture and inhuman punishment, slavery or servitude, and ex-post facto (retrospective) punishment.

The Council of Europe: The Council of Europe is an organization of European countries. It was founded in 1949 by ten West European countries. Currently it has 47 members. It aims “to achieve a greater unity between its members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economic and social progress” (Article 1/a of the Statute of the CoE). Membership is open to all European States who seek harmony, cooperation, good governance and human rights, accepting the principle of the rule of law and are able and willing to guarantee democracy, fundamental human rights and freedoms.

The Organization for Security and Co-operation in Europe (OSCE): Apart from the Council of Europe, the Organization for Security and Co-operation in Europe (OSCE) is also tasked, among others, to promote human rights. The OSCE has its origins in the 1975 Conference on Security and Cooperation in Europe (CSCE) held in Helsinki, Finland. It has 57 participating states from Europe, Northern and Central Asia, and North America. Its secretariat is based in Vienna. The OSCE is primarily a security-oriented intergovernmental organization that deals with issues such as arms control, human rights, freedom of the press, and fair elections. The commitments made by the OSCE members aim to ensure full respect for human rights and fundamental freedoms; to abide by the rule of law; to promote the principles of democracy by building, strengthening and protecting democratic institutions; and to promote tolerance throughout the OSCE region. Since 2003, the OSCE has had an established mechanism for combating trafficking in human beings.

The American Convention on Human Rights: The American Convention on Human Rights (ACHR, also known as the Pact of San José), which was signed in 1969 and entered into force in 1978, draws upon the 1950 European Convention on Human Rights, the 1948 American Declaration of the Rights and Duties of Man, and 1966 the International Covenant on Civil and Political Rights. Only states members of the Organization of American States (OAS) can be the parties to the Convention. Most of the English-speaking Caribbean nations, Canada, and the United States are not parties to the Convention. The Convention guarantees primarily the civil and political rights. Except a reference in Article 26 of the Convention to economic, social, educational, scientific and cultural standards of the OAS Charter, it does not deal with these rights. It has been supplemented by two protocols. The 1988 Additional Protocol to the Inter-American Convention on Human Rights in the area of Economic, Social, and Cultural Rights (also known as “Protocol of San Salvador”) is mainly about second- generation rights in the economic, social, and cultural spheres. The Protocol provides compulsory system of individual petitions (as under the ACHR) for the right of education and trade union rights. It came into effect in November 1999. In June 1990, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty was adopted. This Protocol is enforceable between the states ratifying it.

The African Charter on Human Rights and Peoples’ Rights: The heads of the Organization of African Unity (OAU, now replaced by the African Union) adopted the African Charter on Human Rights (also known as the Banjul Charter) on 17 June 1981. The Charter came into effect on 21 October 1986. As of 2016, all the 54 member states of the African Union have ratified the Charter. This is the first human rights document that has emphasized the peoples’ rights (Arts. 1924), i.e., the “third generation” rights, viz., right to self-determination, right to development, the right to freely dispose of their wealth and natural resources etc. Every individual has been guaranteed certain civil and political rights (Arts. 3-14), and economic, social and cultural rights (Arts. 15-18). An individual is also subjected to duties to the state, society and family (Arts. 27-29).

The Arab Charter on Human Rights: The first version of the Arab Charter on Human Rights (ACHR) was adopted by the League of Arab States in 1994. However, no state ratified it. The revised version of the Charter was adopted by the Council of the League of Arab States on 22 May 2004, and it entered into force on 16 March 2008. The Charter draws upon the Universal Declaration of Human Rights, the two International Covenants on Human Rights and the Cairo Declaration on Human Rights in Islam. The Charter contains 53 articles. It includes civil and political rights as well as the economic, social and cultural rights. It also incorporates the collective rights of self-determination, territorial integrity, sovereignty over natural resources (Art. 2), the right to basic health-care services (Art. 39), and the right to development (Art. 37). It also guarantees a number of traditional human rights, including the right to liberty and security of persons, the right of equality and non-discrimination (Art. 3), protection against torture and inhuman treatment, the right to own private property, freedom of thought, belief, and religion (Art. 30), and freedom of peaceful assembly and association (Art. 24). However, the Charter leaves many important rights to national legislation. For example, it allows for the imposition of the death penalty against children if national law allows it. It also leaves the regulation of rights and responsibilities of men and women in marriage and divorce to national laws (Art. 33). In 2014, the member States of the Arab League, by way of a treaty, adopted the Statute of the Arab Court of Human Rights. It allows inter-state litigation concerning violations of the Charter provisions. The Statute will enter into force after seven ratifications received from states parties.