COMPREHENSIVE ANALYSIS ON INTERNATIONAL HUMAN RIGHTS LAW

COMPREHENSIVE ANALYSIS ON INTERNATIONAL HUMAN RIGHTS LAW

Introduction

The meaning of Human Rights is providing freedoms, immunities and benefit to people. It is believed that modern values at international level, promise that every human being can claim his or her right in the society in which they live. Basically, the concept of human right acknowledges that human being is entitled to enjoy his rights without any distinction on the basis of color, sex, language, nationality or on any other ground. Human Rights are legally guaranteed by human rights law which protects individuals and group against actions which interfere with fundamental freedoms and human dignity. There are three important characteristics of human rights which are, dignity, universal applicability and inalienability.The protection of human rights globally is formally done by international human rights law. Ample of international law treaties and other instruments have evolved since 1945. The establishment of United Nations, provided an ideal forum for the development and adoption of other national human rightinstruments. Consequently, most states have also adopted constitution and other laws which formally protect basic human rights.

Historical Background

For the actual realization and recognition of human rights and to ensure, that gap between human rights is narrowed down, certain steps were taken and struggles had to be gone through. Past events make it clear that government does not generally grant rights. These rights are only secured through a successful challenge to absolutist authorities.

v The first sets of international legal standards were adopted under the auspices of the International Labour Organization, which was founded in 1919 as part of the Peace Treaty of Versailles. International Labour Organisation is meant to protect the rights of workers in an ever-industrializing world.

v After the First World War, provisional attempts were made to establish a human rights system under the League of Nations. For example, a Minority Committee was established to hear complaints from minorities, and a Mandated Commission was put in place to deal with individual petitions of persons living in mandate territories.

v The fundamental system of human rights promotion and protection under the United Nations has two basis. The UN Charter was adopted in 1945, and a network of treaties subsequently adopted by UN members. The Charter-based system, applies to all 192 UN Member States, while only those States, that have ratified or acceded to particular treaties are bound to observe that part of the treaty-based or conventional system to which they have explicitly agreed.

United Nation

Article 1(3) of the UN Charter provides for the pursuit of international cooperation by resolving international problems of economic, social, cultural or humanitarian character, promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. To this end, the United Nations has embarked on the continuous process of articulating human rights in order to translate them from morality and principles, into binding international law. These standards are the result of a gradual evolution over several decades with the participation of United Nation’s body, many nations, non-governmental organizations and individuals.The adoption of the Universal Declaration of Human Rights (Universal Declaration), in 1948, was the first step towards the progressive codification of international human rights. In the 50 years that have elapsed since then, the extraordinary visions enshrined in the principles of the Declaration have proved timeless and enduring.

International Bill on Human Rights

At its first meeting in 1946, the General Assembly transmitted a draft Declaration of Fundamental Human Rights and Freedoms to the Commission on Human Rights, through the Economic and Social Council, relative to the preparation of an international bill of human rights. In 1947, the Commission authorized its officers to formulate a draft bill of human rights which was later taken over by a formal Drafting Committee consisting of eight members of the Commission. This committee prepared two documents :-

1. Declaration – It would set forth general principles or standards of human rights.

2. Convention – It would define specific rights and their limitations.

Accordingly, the committee sent the draft of international declaration and convention to the Commission. The commission applied the term “International Bill of Human Rights” to the entire series of documents in 1947.

v In 1948, the draft declaration was revised and submitted through economic and social council to general assembly. On 10th December, 1948, the Universal Declaration on Human Rights was adopted and each year this day is celebrated as “Human Rights Day.”

v The commission on Human Rights then went on working a covenant on human rights. By 1950, General Assembly passed a resolution declaring that the “enjoyment of civil and political freedom and of economic, social and cultural rights are interconnected and interdependent.”

v Then, the General Assembly decided to give the draft the widest possible publicity in order, that government might study them thoroughly and public opinion might be expressed freely.

v In 1966, two international covenant on human rights were completed, first is International Covenant on Civil, Economic, Social and Cultural Rights (ICESCR)and second one is, International Covenant on Civil and Political Rights (ICCPR). They effectively translated the principle of Universal Declaration of Human Rights into treaty law. The Universal Declaration on Human Rights and two covenants jointly referred as, International Bill of Human Rights.

Regional Protection and Institutions

Regional System of International Human Rights Law, supplements national and international human rights law by protecting and promoting human rights in specific areas of the world. There are five key regional human right instruments which have established human rights law on a regional basis:

v The African Charter on Human and Peoples’ Right for Africa of 1981 came in existence in 1986

v The American Convention on Human Rights for the Americas of 1969, in force since 1978

v The European Convention on Human Rights for Europe of 1950, in force since 1953.

v The European Social Charterfor Europe of 1961.

v The Protocol of San Salvador to the ACHR for the Americas of 1988, in force since 1999.

Inter-American System

The Organisation of American States(OAS) is an international organization headquartered in Washington, DC. It has thirty five independent nations and states of the America as its members. During 1990s, when the cold war ended,the Organisation of American States, made efforts to reinvent itself to fit the scenario of globalisation. The stated priorities were as follows-

v To strengthen the democracy

v To work for peace

v To protect human rights

v To combat corruption

v The rights of indigenous people and

v Promoting sustainable development.

The Inter-American Commission on Human Rights (IACHR) is an independentbody of the Organisation of American States and is also based in Washington D.C with Inter-American court of Human Rights.It promotes and protects human rights as Inter American Court of Human Rights. It is a permanent body which meets in regular and special sessions, several times a year to examine allegations of human right violations in the hemisphere. It derives human rights’ duties from three documents:

The OAS CharterThe American Declaration of the Rights and DutiesThe American Convention on Human Rights.

To implement and interpret the provisions of the Inter-American Convention on Human Rights the Inter-American Court of Human Rights was established in 1979. Its two primary purposes are therefore adjudicatory and advisory:

v Under the former, it hears and rules on the specific cases of human rights’ violations referred to it.

v Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.

European System

The Council of Europe was established in 1949. It is the oldest international organisation with legal personality recognised under public international law which works for European integration. It also has the observer status at the United Nations.The Council of Europe is accountable for both the European Convention on Human Rights and the European Court of Human Rights. These institutions bind the Councilmembers to a code of human rights which, although strict, but more lenient than that of the UN Charter on human rights. The Council of Europe is distinct from the European Union, but the European Union is expected to accede to the European Convention on Human Rights. The Council takes in all the member states of European Union. The European Union also has separate human rights’ document, that is the Charter of Fundamental Rights of the European Union.

Monitoring, Implementation And Enforcement

The implementation of international human rights’ law, is the primary obligation of every state. Also, there are such human rights which are challenging to enforce legally due to the absence of harmony.There is presently no international court to specificallyadminister international human rights’ law; although there do exist quasi-judicial bodies, UN treaties (like the Human Rights Committee under the ICCPR). Like The International Criminal Court (ICC) has jurisdiction over the crime of genocide, war crimes, and crime against humanity. Regional Human Rights law are enforced by the European Court of Human rights and the Inter-American Court of Human Rights.Albeit, the international bodies also hold jurisdiction over cases regarding international humanitarian law.

Universal Jurisdiction

This has been debated in the international law, where states claim criminal jurisdiction over people whose alleged crimes were committed outside the boundaries of the prosecuting state, irrespective of country of residence, any relationship or nationality to the prosecuting country. The state also backs claim on the ground, that the crime committed is against every human being.

The state backs its claim on the ground, that the crime committed is considered a crime against all, which any state is authorised to punish. The concept of universal jurisdiction is therefore, closely linked to the idea that certain international norms areergaomnes (towards all or towards everyone) owed to the entire world community, as well as the concept of Jus Cogens (refers to certain fundamental, over riding principles on international law).Belgium passed a “Law of Universal Jurisdiction”, to give its courts jurisdiction over crimes against humanity in other countries.This principle is supported by Human Right Organisations, which believe that certain crimes pose a threat to the international community as a whole, and that the community has a moral duty to act. Others argue that widespread agreement of human right’s violations and crimes against humanity, must be prosecuted under the vigilance international courts.

Conclusion

There are many lacunae in the enforcement mechanisms of international human rights law. However, the weaknesses are due to unavoidable aspects of our anarchic global society, especially the principle of State sovereignty. The most powerful enforcer of human rights is the horizontal and vertical transnational legal process and the resulting internalisation and socialisation of human rights’ values. The acculturation of human rights within liberal democratic government framework, encourages domestic internalisation and the spread of these values amongst States, especially States who perceive they have commonalities, such as democracy, or who aspire to be counted amongst those ‘morally higher’ States. Whilst the enforcement of any kind of international law is fraught with issues that domestic laws do not have, due to the lack of an international authority, the value of socialisation and peer pressure is not to be underestimated when it comes to the enforcement of international human rights’ law. The next article will cover all the important conferences and conventions on Human Rights.

References:

  • Hand Book on Human Rights
  • Directory of OAS Authorities
  • Inter-American Commission Report on Human Rights
  • Inter-American Court on Human RightsRetrieved 3 January 2008
  • Black’s Law Dictionary 8th edition – pg. 2167 – human rights
  • Kissinger has himself been subject to calls for prosecution under universal jurisdiction. See Hitchens, Christopher, and David Rieff. .” Prospect, 28 June 2001 (accessed 11 June 2013); Hitchens, Christopher. The Trial of Henry Kissinger. London: Verso, 2001.
  • Directory of OAS Authorities
  • Image Credit to Wikipedia