M. R. :
§ A key contemporary schism remains divides religions and seculars
e.g. fundamental principles of morality contained by religious scriptures, which guide all human interactions against such beliefs.
§ Liberalists and socialists retained context of HR are concept by definition and should not be … by religion…
§ Liberalists and socialists are also divided on the nature of HR:
Liberalists:
à Place great emphasis on civil and political rights (political liberal rights)
Socialists:
à Stress economic equity and legal equity
Enlightenment
Contemporary + historical HR lies both in human strands in religion and secularisation:
§ Redefined as Liberal, Civil and Political rights (contemporary times à general divide)
§ Civil + Poll used as 1st generation rights or more open rights (e.g. judicial enforcement)
§ 2nd generation rights = Economical, Social and Cultural, are programmatic and social oriented in nature
§ Schism clear under European convention – empowered only to enforce 1st gem rights (Liberal rights are contained in a different instrument)
Socialists: 2nd generation rights is more important, it is a precondition. Division of 1st and 2nd generations are rejected.
20th C introduced 3rd generation of HR, e.g. environment, indigenous, feminist values and self-determination
Enlightenment – emergence of nation state as foundation of HR
Enlightenment of 16th, 17th C
§ Characterised by effort to use emerging nation state as form of securing secular rights…
§ Divine right to rule questioned by philosophical and political leaders by ref to natural law
Thomas Hobbs defined “secularisation” as:
à “an entity designed to protect an endive’s natural right to life and security.”
1652 – Hobbs sought to establish system of peace (or peaceful society). Once entered into social covenant, one is guaranteed of safety.
à Abide by sovereign state in exchange for protection (if fails, then void social contract)
à Hob’s idea based on natural right and natural law
à This opened doors for 1st generation rights
This dep’t led to:
Habits Corpus Act 1689 – fundamental law document to persecute violations of human liberty
Key functions of Habits Corpus:
Checking illegal imprisonments (right shall not be suspended unless safety is compromised)
10yrs later, Eng Boor 1689 (?) declared rights and liberties of subjects and sub-sexed Eng Crown to protect citizens from arbitrariness of go’s and members of Pariah must have freedom of speech.
Loch: go’s are only legitimate insofar as…e.g. right to life, liberty and property.
à Advocated the proper separation of powers:
1. Legislature
2. Judiciary
3. Executive
These appeared in constitution of 1766.
1789 – French rights of man
US declared Independence in 1796 (?) influenced by above (social contracts and rights)
Independence written by T. Jefferson influenced by Loch & Payne – based on fundamental definition of natural rights:
à All men are created equal, endowed by their creator of inalienable rights, life, liberty and pursuit of happiness.
Political leaders secularising humanist ideas and … have alternative ideas of running it
This also include philosophers who act in favour of international organisations for purposes of maintaining peace
EU – e.g. Abe Shalier (?)
à EU Ct in Luxembourg – more powerful Ct
Kant – world federation of states will ultimately emerge as republican and other states expand
Abolition of slavery and trade influenced by enlightenment thinking. Slavery etc are hallmarks of feudal society, they are moving away from feudal and towards liberal.
Thomas Payne 1792 write “Rights of Man”:
à Rights belonging to man as part of society, e.g. right to land, not constrained by monarchy
M. Wollstonecraft – equal natural rights for women and men (1792 writing on rights)
à deplored women’s dependence on husbands, manners rather than morals, duty to remain innocent and submit themselves blindly to society
à believed the key is EDUCATION
Deluges – women during the French Revolution
à criticised declarations (given to Marie Antoinette)
1789 declaration – women equal rights to men
à Then: women were dependant socially and economically on men, were passive citizens
à Declaration: right to have unmarried women to be provided by the state (and their children)
Challenges of Socialism
Marxist / Socialist: capitalism unleashed had failed to secure fundamental HR
e.g. universal health care, education, emancipation of women, prohibition on child labour
Socialists – ossified property rights: only collective ownership could secure fundamental rights of protection
Socialists rejected 1st, 2nd and 3rd generation rights
Diminished emphasis on separation of powers
Under communism – shared values (same social group)
à Less need for indep Judiciary (part of same working class). Judiciary only another branch of admin
Late 20th C debate between Socialist and Liberalist views:
Many groups opposed to both, inch Indigenous pal and non-Western states
E.g. Indian scholar Shiva – applies HR as close to socialism, criticise West as taking women away from their traditional law (deplores passivity and unproductiveness). Calls for recovery of feminist principles (to combat destructiveness of current regime)
3rd generation rights
West – in conflict with, or against the idea of national cohesion, e.g. self determination (Indigenous have no right)
J. J. She stack:
Builds on previous concepts, e.g. Marxism
But why look at foundations at all?
à because our view is obscure and difficult to understand unless we look at the philosophy that underpins them
à because it establishes the translation formula for people to talk across dogma
Marx: man should be recognised as a specie of being. Men and women are not autonomous endives, but a group
In society where capitalism-monopolised means of production, the notion was a mere illusion
à Rights were determined by material conditions and social circs
à Sees a person’s essence as potential to use ability to fullest ability to fulfil one’s needs, which could not be satisfied in this system
à Maximisation of human potential could only occur in communist soc devoid of class conflict
Until this is reached, there will be unequal social collectivist.
There will be no endive rights but those granted by the state, the exercise contingent on fulfilment of obligations to society and endives
Utilitarianism – Another Challenge
Leads from 19th C
J. Bentham – proponent of utilitarianism: “every human decision is carried by some notion of pleasure or pain, same with politicians and the state: to maximise pleasure over pain.
Guv’s judged in terms of promoting the greatest pleasure to the greatest number of people (no abstract notion of endive)
Benefits must outweigh sacrifices, hence some will be sacrificed to yield maximum benefit
See She stack’s article
Optimal society where rights are protected
Rules agreed upon by group
Good society = choosing options that benefits all members not just some
Justice and morality acceptable to human beings
2 principles of justice:
Each person have equal right (equal basic liberties) e.g. after European conventions
Justice (like 2nd gem rights): “social and eco inequalities are to be the of the greatest advantage to the least benefited,” and “no discrimination”, i.e. fairness
à notion of equality permeating these instruments
Walker: view that “right” is too vague to be meaningful
à Forget liberties, rather the advocacy of specific liberties:
Freedom of speech, worship, rights of association, personal and sexual relations (view: require special protection against go’s interference)
à Why? These liberties if left to the utilitarian calculation of the group, it would almost inevitably lead to abuse (endive prejudice and personal press would corrupt its rationale)
Universalism (see African material)
One of the hottest debate concerns: Universalism vs. Cultureless
Is it possible to introduce values no group will contest?
African Charter: instrument contains rights and duties that are seated in an African culture and those that are also universal
Cultural relativism: used by repressive rulers as justification
à Post war: new indep societies resistant to Western influences
Ordinal:
Pre and post-colonial formation, Africa has been disabled from playing its role as a guarantor, but a violator of HR
“Unrealistic to expect that post-colonisation will protect HR when it is a product of colonialism.”
BUT
Clear that colonialism is incapable of creating and sustaining…
“State itself = external construct” therefore how can it protect fundamental HR
à Competition of multiple identities within state boundaries (ethnic, tribunal)
Ordinal’s answer: develop citizenship (concept of society)
Four priorities for protection of HR:
State building and citizenship (enhance morality)
Enhance domestic values
General improvement of education and health (disagree these are 2nd gem rights)
Displacements
UN – Sheet
UN needs to curtail power
Look more closely at 2nd gem rights (eco, social and cultural) as opposed to 1st gem
Map: complicated, ram shackled system
Why? à ad hoc UN system – consensus is a big issue, need to accommodate different interests
Euro eco community – smaller states, more consensus
Inter-American – probably least powerful
Treaty-based bodies
Charter-based bodies
E.g. Article 2 ICCPR – some opinions are legally binding
Charter-based bodies have a broader mandate. It is a soft-law body distinguished by:
Focus on diverse range of issues
Insist every state is an actual or potential respondent, regardless of its specific treaty obligations
Work on basis of constantly expanding mandate, responsible to cries as they emerge
Engage as a last resort, in adversarial actions against the state
Rely heavily on NGO inputs and public opinion generally to ensure the effectiveness of their work
Take decisions, often strongly contested, by majority voting
Are very wary about establishing specific procedural frameworks within which to work, preferring an ad hoc approach.
Amnesty – very activity involved in all of these
Treaty-based bodies
Limited clientele, consisting of state parties to the treaty in question
A clearly delineated set of concerns reflecting the terms of treaty
A particular concern with developing the normative understanding or relevant rights
A limited range of procedure options for dealing with matters of concern
Caution in terms of setting precedents
Consensus based decision making to the greatest extent possible
A non-adversarial relationship with states parties based on constructive dialogue.
Security Council
Role: à Ordering interventions, e.g. Iraq, East Timor
à Impose sanctions for peace and welfare
General Assembly
à Treaty-based
Economical and Social Council
§ Commission on status of women
§ Each body entitled to create sub-bodies (leads to proliferation)
§ Reports to Eco and Social CCH
§ Consists of 45 governmental references who meet for 8 days of the year
o 1999: key achievement – Cedar committee (for endives who have exhausted domestic remedies can petition to HR Committee, BUT not Aust Committee as not signed up for Cedar)
§ Disc rim against women case
1946 – Eco Soc
Commission on HR
50 go’s members elected on 3yr terms
Meets annually for 6 weeks
Since 1992, provisions for emergency sessions, e.g. Palestinian pole
Most important work of commission:
Set up detailed procedures to address a wide range of violations
1) Confidential consideration of a situation under the 1503 procedure
2) Public debate under the 1235 procedure, which may lead to the appointment of a Special Reporter of the commission, a Special Representative of the Security Council or some other designated group or endives to investigate situation
3) Designation of a thematic Reporter or Working Group to consider violations anywhere relating to specific theme (e.g. torture, disappearances or arbitrary detention).
Explanations:
1) First endive personal complaint situation – seen as forerunner to Optional Protocol (OP) (1503 of 1970 Resolution authorised commission to organise protocol of complaint…)
Gross and systematic violation (leads to setting up of Working Group)
§ Sub-commission can request commission to take thorough study, investigate, then submit to eco soc
§ Sub-com receive endive communications – see key legal principles:
A. Must show domestic remedies have been exhausted
à If remedies are ineffective or unreasonably prolonged, then don’t have to show they have been exhausted
B. Submitter has direct and reliable knowledge of this (author must be a victim) i.e. can’t ask Amnesty to go to commission on your behalf
C. Country must agree to accept all communications.
§ UN receives 50,000 complaints a year
§ About 75 states subject to scrutiny
Leading Case about Saudi Arabia (p 616 – 678 Steiner & Olsten) – how this procedure works
2) 1235 – procedure which commission hold an annual public debate focusing on go’s violations under different states
§ NGOs and states are given the opportunity to identify the merits of detentions, e.g. can adopt resolution criticising go’s in question
§ Can appoint Reporter to investigate matter further – whole range of measures can be taken
§ P 623 – 629 S & O – examples of Iran and China à very political bodies
à See comment by Ambassador to China – cultural relativism
3) Commissions are empowered to do this. By Jan 2001 there were 21 violation themes.
Secretariat
§ Created in 1993 – High Commission appoint Secretary General
§ Task of Comer includes the promotion and protection of civil, cultural rights including the right to development to provide advisory assistance in HR, co-ordinate UN education programs in HR and engage go’s in dialogue
§ Major development in 20yrs – investigating field operations
§ P 675 S & O – case study of East Timor – wide range of charter-based mechanisms used to stop HR violations in E Timor
The Committee (Treaty-based)
§ Committee on the Rights of the Child
§ Committee on the elimination of Racial Discrimination
à International convention on the elimination of all forms of race discrimination
§ Committee on the elimination of discrimination against women – convention on the elimination of all forms of discrimination against women
§ HR Committee – ICCPR à more rights but UK not signed up for it
(a number of countries signed up to both, e.g. Sweden, Norway – OP)
§ Committee Against Torture – UN Convention against Torture and Inhumane or Degrading Treatment or Punishment
§ Committee on eco, social and cultural rights – covenant on eco, social and cultural rights
What the Committee does:
§ Periodic reports***
§ India reports
§ Interstate complaints procedure*
§ “Early warning” and “urgent” procedures**
§ Missions by treaty body experts
* Aust can petition Sweden against breach of ICCPR (but rare at UN level) Cyprus v Turkey
** Activated successfully when Aust changed its land rights a few years ago
*** General cycle of reports = 5yrs. General content: parties must adopt measures and chart progress of rights and difficulties encountered in this progress (see UN website)
§ Aust must reply and concluding observations are made on whether compliance has been secured.
§ Periodic reports Interstate system: subject to most scrutiny – “empty diplomatic ritual…” JEW thinks it will be missed once it is gone.
ICCPR Articles:
Credit:ivythesis.typepad.com
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