Group 3-International Human Rights Law.ppt
MauriceBryanRoslinda1
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About This Presentation
The Contemporary World
Slide Content
CHAPTER 11CHAPTER 11
INTERNATIONAL HUMAN RIGHTS INTERNATIONAL HUMAN RIGHTS
LAWLAW
Atty. Maurice Bryan G. Roslinda, JD, MPAAtty. Maurice Bryan G. Roslinda, JD, MPA
INTERNATIONAL HUMAN RIGHTS INTERNATIONAL HUMAN RIGHTS
LAWLAW
Atty. Maurice Bryan G. Roslinda, JD, MPAAtty. Maurice Bryan G. Roslinda, JD, MPA
11.1 THE CONCEPT OF HUMAN11.1 THE CONCEPT OF HUMAN
RIGHTS RIGHTS [Textbook, p. 339][Textbook, p. 339]
•The crux of international human rights law: to
afford legal protection of every human being on
the planet earth.
•“All individuals, solely by virtue of being human
beings, have rights which no society or State
should deny”.
•Unfortunately, however, there are radically
different definitions, and interpretations of
human rights, and different approaches.
RIGHTS RIGHTS [Textbook, p. 339][Textbook, p. 339]
•The crux of international human rights law: to
afford legal protection of every human being on
the planet earth.
•“All individuals, solely by virtue of being human
beings, have rights which no society or State
should deny”.
•Unfortunately, however, there are radically
different definitions, and interpretations of
human rights, and different approaches.
11. 1.1 11. 1.1 Categorisation of human rightsCategorisation of human rights
Human rights are generally divided into three main
categories:
(1)civil and political rights;
(2) economic, social and cultural rights; and
(3) group or peoples’ rights.
They are often confusingly expressed in terms of
“generations” of human rights: the first, the
second, and the third generation respectively.
Human rights are generally divided into three main
categories:
(1)civil and political rights;
(2) economic, social and cultural rights; and
(3) group or peoples’ rights.
They are often confusingly expressed in terms of
“generations” of human rights: the first, the
second, and the third generation respectively.
Civil and political rightsCivil and political rights
•Civil and political rights (freedom of
expression, freedom of peaceful assembly,
freedom from torture, freedom from arbitrary
arrest and detention, right to a fair trial, etc.)
derive from the natural rights philosophy of John
Locke, Rousseau and others.
•They protect against encroachments of
government.
•These rights have traditionally been given
priority by Western States.
•Civil and political rights (freedom of
expression, freedom of peaceful assembly,
freedom from torture, freedom from arbitrary
arrest and detention, right to a fair trial, etc.)
derive from the natural rights philosophy of John
Locke, Rousseau and others.
•They protect against encroachments of
government.
•These rights have traditionally been given
priority by Western States.
Economic, social and cultural rightsEconomic, social and cultural rights
•Economic, social and cultural rights (e.g.,
right to work, right to education, right to access
to health care) attained recognition in the
twentieth century with the advent of socialism.
•They argued that achievement of economic and
social rights was a pre-condition for other rights.
•That is, until the economic and social rights were
realized a State was not in a position to provide
civil and political rights.
•Economic, social and cultural rights (e.g.,
right to work, right to education, right to access
to health care) attained recognition in the
twentieth century with the advent of socialism.
•They argued that achievement of economic and
social rights was a pre-condition for other rights.
•That is, until the economic and social rights were
realized a State was not in a position to provide
civil and political rights.
Group or peoples’ rightsGroup or peoples’ rights
•Group or peoples’ rights emerged as recently
as the 1970s and are supported by developing
countries.
•The focus is on collective as opposed to
individual rights.
•The right to development and the right to self-
determination are two main examples.
• In the early 1970s, thanks to their numerical
superiority, the developing countries managed to
elaborate their own philosophy of human rights.
•Group or peoples’ rights emerged as recently
as the 1970s and are supported by developing
countries.
•The focus is on collective as opposed to
individual rights.
•The right to development and the right to self-
determination are two main examples.
• In the early 1970s, thanks to their numerical
superiority, the developing countries managed to
elaborate their own philosophy of human rights.
11.1.2 11.1.2 Universalism and Cultural Universalism and Cultural
relativismrelativism
•The question of the ‘universal’ or ‘relative’
character of the human rights has been a source
of debate from the beginning of the human rights
movement.
•The proponents of the “universalism” claim that
international human rights like rights to equal
protection by law, physical security, freedom of
speech, freedom of religion and freedom of
association are and must be the same
everywhere.
relativismrelativism
•The question of the ‘universal’ or ‘relative’
character of the human rights has been a source
of debate from the beginning of the human rights
movement.
•The proponents of the “universalism” claim that
international human rights like rights to equal
protection by law, physical security, freedom of
speech, freedom of religion and freedom of
association are and must be the same
everywhere.
•On their face, human rights instruments are on
the ’universal’ side of this debate. The landmark
instrument is the Universal Declaration of
Human Rights (UDHR).
•The two Covenants (ICCPR, ICESCR) also
speak in universal terms: ‘everyone’ has the
right to liberty, ‘all persons’ are entitled to equal
protection, etc.
• To the relativists, these instruments are the
indicators of the so-called ‘cultural imperialism’
of the West.
the ’universal’ side of this debate. The landmark
instrument is the Universal Declaration of
Human Rights (UDHR).
•The two Covenants (ICCPR, ICESCR) also
speak in universal terms: ‘everyone’ has the
right to liberty, ‘all persons’ are entitled to equal
protection, etc.
• To the relativists, these instruments are the
indicators of the so-called ‘cultural imperialism’
of the West.
•During the Cold War, such debates were mainly
between the Communist and the Western.
•The West charged the Communist world with
violating many basic rights of a civil and political
character. The Communist world charged the
West with violations of the more important
economic and social rights.
•Today the universal-relative debate takes place
primarily in a North-South (or West-East)
framework between developed and developing
countries.
between the Communist and the Western.
•The West charged the Communist world with
violating many basic rights of a civil and political
character. The Communist world charged the
West with violations of the more important
economic and social rights.
•Today the universal-relative debate takes place
primarily in a North-South (or West-East)
framework between developed and developing
countries.
11.3 The evolution of international human 11.3 The evolution of international human
rights lawrights law
The concept of the international protection of
human rights is revolutionary in nature given the
fact that the traditional doctrine of international
law had no place for it at all.
The turning point for this change of the paradigm
is the Charter of the United Nations, which is
usually referred to as the starting point for any
study of the protection of human rights.
rights lawrights law
The concept of the international protection of
human rights is revolutionary in nature given the
fact that the traditional doctrine of international
law had no place for it at all.
The turning point for this change of the paradigm
is the Charter of the United Nations, which is
usually referred to as the starting point for any
study of the protection of human rights.
11.3.1 Human rights clauses of the Charter11.3.1 Human rights clauses of the Charter
•Preamble: reaffirmed their “faith in fundamental
human rights, in the dignity and worth of human
person, in the equal rights of men and women”.
•Article 1: the achievement of international
cooperation “in promoting and encouraging
respect for human rights and for fundamental
freedoms for all without distinction as to race,
sex, language, or religion”.
•Also Arts. 55 and 56 (All members pledge
themselves to take joint and separate action).
•Preamble: reaffirmed their “faith in fundamental
human rights, in the dignity and worth of human
person, in the equal rights of men and women”.
•Article 1: the achievement of international
cooperation “in promoting and encouraging
respect for human rights and for fundamental
freedoms for all without distinction as to race,
sex, language, or religion”.
•Also Arts. 55 and 56 (All members pledge
themselves to take joint and separate action).
•Some argue that the human rights clauses of the
Charter do not impose any legal obligation on
member States with regard to their own
nationals.
• The better view, however, is that the use of the
word “pledge’ in Article 56 implies a legal
obligation, although the obligation is weak in
view of the fact that there is no enumeration in
the Charter of the fundamental human rights
which are to be observed by States.
Charter do not impose any legal obligation on
member States with regard to their own
nationals.
• The better view, however, is that the use of the
word “pledge’ in Article 56 implies a legal
obligation, although the obligation is weak in
view of the fact that there is no enumeration in
the Charter of the fundamental human rights
which are to be observed by States.
11.3.2 The Universal Declaration of Human 11.3.2 The Universal Declaration of Human
RightsRights
•The General Assembly adopted of the Universal
Declaration of Human Rights on 10 December 1948.
•Two main categories of human rights, namely: civil and
political rights [Articles 3 to 21] and economic, social and
cultural rights [Articles 22 to 27].
•Many laymen imagine that States are under a legal
obligation to respect the rights listed in the UDHR. It is
not so.
•As it is not a treaty, the Declaration as such is not legally
binding.
•It is simply a list of human rights which member states
‘pledge’ themselves to promote under Articles 55 and 56
of the Charter.
RightsRights
•The General Assembly adopted of the Universal
Declaration of Human Rights on 10 December 1948.
•Two main categories of human rights, namely: civil and
political rights [Articles 3 to 21] and economic, social and
cultural rights [Articles 22 to 27].
•Many laymen imagine that States are under a legal
obligation to respect the rights listed in the UDHR. It is
not so.
•As it is not a treaty, the Declaration as such is not legally
binding.
•It is simply a list of human rights which member states
‘pledge’ themselves to promote under Articles 55 and 56
of the Charter.
UDHR UDHR [Cont.][Cont.]
•In spite of its limitations, the Declaration is of
great importance in stimulating and promoting
the international protection of human rights.
•It has impact in shaping subsequent treaties on
human rights, and upon the content of the
constitutions of new States.
•It is possible that at least some part of the
Declaration, like the prohibition of torture, may
subsequently have become binding as a new
rule of customary international law.
•In spite of its limitations, the Declaration is of
great importance in stimulating and promoting
the international protection of human rights.
•It has impact in shaping subsequent treaties on
human rights, and upon the content of the
constitutions of new States.
•It is possible that at least some part of the
Declaration, like the prohibition of torture, may
subsequently have become binding as a new
rule of customary international law.
International human rights treaties and their International human rights treaties and their
ratification statusratification status
Convention …………….. State parties
•ICCPR 164
•ICESCR 160
•CEDAW 185
•Convention on the Rights of the Child 193
•Convention on Racial Non-Discrimination 173
•Convention against Torture 146
•Genocide Convention 140
ratification statusratification status
Convention …………….. State parties
•ICCPR 164
•ICESCR 160
•CEDAW 185
•Convention on the Rights of the Child 193
•Convention on Racial Non-Discrimination 173
•Convention against Torture 146
•Genocide Convention 140
11.3.4 The International Covenant on Civil and 11.3.4 The International Covenant on Civil and
Political Rights 1966 (ICCPR)Political Rights 1966 (ICCPR)
•As UDHR is not legally binding, States strived for
adopting binding international conventions on human
rights.
•The International Covenant on Civil and Political Right
(ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR) were finally
adopted by the GA on 16 December 1966. Both came
into force in 1976.
•As of now, there are 164 State parties to the ICCPR and
160 States parties to the ICESCR.
•Both Covenants contain a common article (Article 1)
reaffirming the “right of self-determination”.
Political Rights 1966 (ICCPR)Political Rights 1966 (ICCPR)
•As UDHR is not legally binding, States strived for
adopting binding international conventions on human
rights.
•The International Covenant on Civil and Political Right
(ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR) were finally
adopted by the GA on 16 December 1966. Both came
into force in 1976.
•As of now, there are 164 State parties to the ICCPR and
160 States parties to the ICESCR.
•Both Covenants contain a common article (Article 1)
reaffirming the “right of self-determination”.
Human Rights Committee (HRC)Human Rights Committee (HRC)
Art. 28Art. 28
•The Human Rights Committee has 18 members.
•It has three main monitoring mechanisms:
(1) Compulsory reporting procedure whereby all State
parties are obliged to present reports (initial and period)
indicating compliance with the ICCPR;
(2) Optional inter-State complaints procedure; and
(3) Individual complaints procedure.
Art. 28Art. 28
•The Human Rights Committee has 18 members.
•It has three main monitoring mechanisms:
(1) Compulsory reporting procedure whereby all State
parties are obliged to present reports (initial and period)
indicating compliance with the ICCPR;
(2) Optional inter-State complaints procedure; and
(3) Individual complaints procedure.
11.3.5 International Covenant on Economic, Social 11.3.5 International Covenant on Economic, Social
and Cultural Rights 1966 (ICESCR)and Cultural Rights 1966 (ICESCR)
•The ICESCR provides for the right of self-determination
for all peoples, the right to work, the right to form trade
unions and to strike, the right to social security, the right
to an adequate standard of living, the right to health, the
right to education and the enjoyment of certain cultural
rights.
• Art. 2 (1): “each State Party undertakes to take steps…
to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative
measures.”
and Cultural Rights 1966 (ICESCR)and Cultural Rights 1966 (ICESCR)
•The ICESCR provides for the right of self-determination
for all peoples, the right to work, the right to form trade
unions and to strike, the right to social security, the right
to an adequate standard of living, the right to health, the
right to education and the enjoyment of certain cultural
rights.
• Art. 2 (1): “each State Party undertakes to take steps…
to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative
measures.”
11.3 FUNDAMENTAL HUMAN RIGHTS11.3 FUNDAMENTAL HUMAN RIGHTS
•Some of the civil and political rights, as
enshrined in the ICCPR, need to be
discussed further because they are of
fundamental importance.
•Some of the civil and political rights, as
enshrined in the ICCPR, need to be
discussed further because they are of
fundamental importance.
Art. 6: The Right to lifeArt. 6: The Right to life
1. Every human being has the inherent right to
life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death
penalty, sentence of death may be imposed
only for the most serious crimes in accordance
with the law in force at the time of the
commission of the crime (and not contrary to
the provisions of the present Covenant and to
the Convention on the Prevention and
Punishment of the Crime of Genocide).
1. Every human being has the inherent right to
life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death
penalty, sentence of death may be imposed
only for the most serious crimes in accordance
with the law in force at the time of the
commission of the crime (and not contrary to
the provisions of the present Covenant and to
the Convention on the Prevention and
Punishment of the Crime of Genocide).
Second Optional Protocol to the ICCPR, aiming Second Optional Protocol to the ICCPR, aiming
at the abolition of the death penalty, 1989at the abolition of the death penalty, 1989
[70 States parties][70 States parties]
•No one within the jurisdiction of states
parties to the Second Optional Protocol
may be executed and States are required
to take all necessary measures to abolish
the death penalty within their jurisdiction.
at the abolition of the death penalty, 1989at the abolition of the death penalty, 1989
[70 States parties][70 States parties]
•No one within the jurisdiction of states
parties to the Second Optional Protocol
may be executed and States are required
to take all necessary measures to abolish
the death penalty within their jurisdiction.
Art. 7: TortureArt. 7: Torture
•No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.
•In Ambrosini v Uruguay, immediately after his detention,
the accused was subjected to various forms of torture
such as (i) being forced to remain standing for 14 hours at
a time, (ii) electric shocks, and (iii) physical blows to the
body. The Committee considered that these facts
disclosed violation of Art. (7).
•The Committee also found violation of Art. 10(1) because
he was detained under conditions seriously detrimental to
his health; Art. 9(3) because he was not brought to trial
within a reasonable time; art. 9(4) because he was denied
any effective remedy to challenge his arrest and detention;
and Art. 10(1) because he was held incommunicado for
months and was denied the right to be visited by any
family member.
•No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.
•In Ambrosini v Uruguay, immediately after his detention,
the accused was subjected to various forms of torture
such as (i) being forced to remain standing for 14 hours at
a time, (ii) electric shocks, and (iii) physical blows to the
body. The Committee considered that these facts
disclosed violation of Art. (7).
•The Committee also found violation of Art. 10(1) because
he was detained under conditions seriously detrimental to
his health; Art. 9(3) because he was not brought to trial
within a reasonable time; art. 9(4) because he was denied
any effective remedy to challenge his arrest and detention;
and Art. 10(1) because he was held incommunicado for
months and was denied the right to be visited by any
family member.
Art. 9: Deprivation of liberty; Art. 9: Deprivation of liberty;
Freedom from arbitrary arrest or detentionFreedom from arbitrary arrest or detention
1.Everyone has the right to liberty and security of person.
No one shall be subjected to arbitrary arrest or
detention….
2.Anyone who is arrested shall be informed, at the time
of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall
be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to
release….
4. Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay
on the lawfulness of his detention and order his release
if the detention is not lawful.
Freedom from arbitrary arrest or detentionFreedom from arbitrary arrest or detention
1.Everyone has the right to liberty and security of person.
No one shall be subjected to arbitrary arrest or
detention….
2.Anyone who is arrested shall be informed, at the time
of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall
be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to
release….
4. Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay
on the lawfulness of his detention and order his release
if the detention is not lawful.
Freedom from arbitrary arrest or detention [Cont.]Freedom from arbitrary arrest or detention [Cont.]
•The question of arbitrariness - Art. 9(1):
inappropriateness, injustice and lack of due process of
law.
•Bringing a detainee ‘promptly’ before a competent court -
Art. 9(3):
In Kennedy v Trinidad and Tobago, the accused was not
brought before a judge until 6 days after arrest. The
Human Rights Committee (HRC) stated that delays
should not exceed a few days. In the current case, the
Committee considered that the accused was not brought
‘promptly’ before a judge, in violation of Art. 9(3).
•The question of arbitrariness - Art. 9(1):
inappropriateness, injustice and lack of due process of
law.
•Bringing a detainee ‘promptly’ before a competent court -
Art. 9(3):
In Kennedy v Trinidad and Tobago, the accused was not
brought before a judge until 6 days after arrest. The
Human Rights Committee (HRC) stated that delays
should not exceed a few days. In the current case, the
Committee considered that the accused was not brought
‘promptly’ before a judge, in violation of Art. 9(3).
Freedom from arbitrary arrest or detention [Cont.]Freedom from arbitrary arrest or detention [Cont.]
•Art. 9(4) - Habeas Corpus: This paragraph
guarantees the right of every person deprived of
liberty by arrest or detention to take proceedings
before a court, in order to determine, without
delay, the lawfulness of the detention and order
the person’s release if the detention is not lawful.
•This falls squarely within the traditional common
law writ of habeas corpus.
•Holding a person incommunicado has been seen
as an effective bar against the ability to challenge
the validity of one’s arrest, and thus in breach of
Art. 9(4).[Muteba v Zaire]
•Art. 9(4) - Habeas Corpus: This paragraph
guarantees the right of every person deprived of
liberty by arrest or detention to take proceedings
before a court, in order to determine, without
delay, the lawfulness of the detention and order
the person’s release if the detention is not lawful.
•This falls squarely within the traditional common
law writ of habeas corpus.
•Holding a person incommunicado has been seen
as an effective bar against the ability to challenge
the validity of one’s arrest, and thus in breach of
Art. 9(4).[Muteba v Zaire]
Art. 10: The rights of detaineesArt. 10: The rights of detainees
1.All persons deprived of their liberty shall be
treated with humanity and with respect for the
inherent dignity of the human person.
- Allowing visits, in particular by family
members, is a measure that is required for
reasons of humanity.
- A lack of sanitation, light, ventilation and
bedding can be treated as a violation of Art.
10(1).
1.All persons deprived of their liberty shall be
treated with humanity and with respect for the
inherent dignity of the human person.
- Allowing visits, in particular by family
members, is a measure that is required for
reasons of humanity.
- A lack of sanitation, light, ventilation and
bedding can be treated as a violation of Art.
10(1).
Art. 14: The right to a fair trialArt. 14: The right to a fair trial
1.…everyone shall be entitled to a fair and public hearing
by a competent, independent and impartial tribunal
established by law.
2. Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty.
3. …everyone shall be entitled to the following minimum
guarantees…:
(a) To be informed promptly and in detail … of the nature
and cause of the charge against him;
(b) To have adequate time and facilities for the
preparation of his defence and to communicate with
counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in
person or through legal assistance of his own choosing.
1.…everyone shall be entitled to a fair and public hearing
by a competent, independent and impartial tribunal
established by law.
2. Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty.
3. …everyone shall be entitled to the following minimum
guarantees…:
(a) To be informed promptly and in detail … of the nature
and cause of the charge against him;
(b) To have adequate time and facilities for the
preparation of his defence and to communicate with
counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in
person or through legal assistance of his own choosing.
Art. 18: Freedom of thought, conscience and Art. 18: Freedom of thought, conscience and
religionreligion
1.Everyone shall have the right to freedom of thought,
conscience and religion. This right shall include freedom
to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others
and in public or private, to manifest his religion or belief
in worship, observance, practice and teaching.
2.No one shall be subject to coercion which would impair
his freedom to have or to adopt a religion or belief of his
choice.
3. Freedom to manifest one's religion or beliefs may be
subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order,
health, or morals or the fundamental rights and
freedoms of others.
religionreligion
1.Everyone shall have the right to freedom of thought,
conscience and religion. This right shall include freedom
to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others
and in public or private, to manifest his religion or belief
in worship, observance, practice and teaching.
2.No one shall be subject to coercion which would impair
his freedom to have or to adopt a religion or belief of his
choice.
3. Freedom to manifest one's religion or beliefs may be
subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order,
health, or morals or the fundamental rights and
freedoms of others.
Art. 26: Equality and Non-discriminationArt. 26: Equality and Non-discrimination
•Equality of treatment and the prohibition of discrimination
is a pervasive theme of the ICCPR to which reference
can be found in Arts. 2(1), 3, 4(1), 14(1), 20, 23, 24, 25
and 26.
•HCR has identified Art. 26 as a autonomous right, i.e., a
general right of non-discrimination which exists
independently of other rights.
•Art. 26: All persons are equal before the law and are
entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or
other status.
•Equality of treatment and the prohibition of discrimination
is a pervasive theme of the ICCPR to which reference
can be found in Arts. 2(1), 3, 4(1), 14(1), 20, 23, 24, 25
and 26.
•HCR has identified Art. 26 as a autonomous right, i.e., a
general right of non-discrimination which exists
independently of other rights.
•Art. 26: All persons are equal before the law and are
entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or
other status.
Convention on the Elimination of All Forms of Convention on the Elimination of All Forms of
Racial Discrimination, 1965Racial Discrimination, 1965
[173 State parties; almost universal][173 State parties; almost universal]
Preamble:
•Convinced that any doctrine of superiority based on
racial differentiation is scientifically false, morally
condemnable, socially unjust and dangerous, and that
there is no justification for racial discrimination, in theory
or in practice, anywhere,
•Reaffirming that discrimination between human beings
on the grounds of race, colour or ethnic origin is an
obstacle to friendly and peaceful relations among nations
and is capable of disturbing peace and security among
peoples and the harmony of persons living side by side
even within one and the same State,
Racial Discrimination, 1965Racial Discrimination, 1965
[173 State parties; almost universal][173 State parties; almost universal]
Preamble:
•Convinced that any doctrine of superiority based on
racial differentiation is scientifically false, morally
condemnable, socially unjust and dangerous, and that
there is no justification for racial discrimination, in theory
or in practice, anywhere,
•Reaffirming that discrimination between human beings
on the grounds of race, colour or ethnic origin is an
obstacle to friendly and peaceful relations among nations
and is capable of disturbing peace and security among
peoples and the harmony of persons living side by side
even within one and the same State,
Art. 1: Meaning of racial discriminationArt. 1: Meaning of racial discrimination
1. In this Convention, the term "racial discrimination" shall mean any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise, on
an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions,
restrictions … made by a State Party … between citizens and non-
citizens.
4. Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals
requiring such protection as may be necessary in order to ensure
such groups or individuals equal enjoyment or exercise of human
rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a
consequence, lead to the maintenance of separate rights for different
racial groups and that they shall not be continued after the objectives
for which they were taken have been achieved.
1. In this Convention, the term "racial discrimination" shall mean any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise, on
an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions,
restrictions … made by a State Party … between citizens and non-
citizens.
4. Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals
requiring such protection as may be necessary in order to ensure
such groups or individuals equal enjoyment or exercise of human
rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a
consequence, lead to the maintenance of separate rights for different
racial groups and that they shall not be continued after the objectives
for which they were taken have been achieved.
11.4 ENFORCEMENT AT THE 11.4 ENFORCEMENT AT THE
UNIVERSAL LEVELUNIVERSAL LEVEL
•The best means of ensuring respect for a right is
to back it up with legal guarantees to be
administered by a court of law.
•In the case of human rights – no international
human rights court.
•There are only “monitoring mechanisms”, which
are much weaker than international adjudication.
•Two principal monitoring mechanisms:
(i) those set up by the UN, and
(ii) those established by international treaties.
UNIVERSAL LEVELUNIVERSAL LEVEL
•The best means of ensuring respect for a right is
to back it up with legal guarantees to be
administered by a court of law.
•In the case of human rights – no international
human rights court.
•There are only “monitoring mechanisms”, which
are much weaker than international adjudication.
•Two principal monitoring mechanisms:
(i) those set up by the UN, and
(ii) those established by international treaties.
11. 4. 1 Monitoring mechanisms established by 11. 4. 1 Monitoring mechanisms established by
the United Nations the United Nations
•Art. 13 of the Charter: the General Assembly can initiate
studies and make recommendations on human rights
issues.
•Art. 62: The ECOSOC can make recommendations on
human rights, draft conventions, convene international
conferences, and hear reports from various bodies.
•Under Art. 68, a Commission on Human Rights was
established by the ECOSOC in 1946 (now replaced by
Human Rights Council).
•It had no authority to deal with complaints on violations of
human rights. However, subsequently, it had been
entrusted by means of resolutions of the ECOSOC and
the GA with some monitoring and enforcement functions.
the United Nations the United Nations
•Art. 13 of the Charter: the General Assembly can initiate
studies and make recommendations on human rights
issues.
•Art. 62: The ECOSOC can make recommendations on
human rights, draft conventions, convene international
conferences, and hear reports from various bodies.
•Under Art. 68, a Commission on Human Rights was
established by the ECOSOC in 1946 (now replaced by
Human Rights Council).
•It had no authority to deal with complaints on violations of
human rights. However, subsequently, it had been
entrusted by means of resolutions of the ECOSOC and
the GA with some monitoring and enforcement functions.
Powers of Commission on Human RightsPowers of Commission on Human Rights
(a)ECOSOC resolution 1235 “to examine information
relevant to gross violations of human rights” and “to
study situations which reveal a consistent pattern of
violations of human rights”. This is public procedure.
May adopt resolutions deploring or condemning a
particular State for its breaches of human rights.
(b) ECOSOC Resolution 1503 (confidential procedure): the
communications from individuals and groups alleging
human rights violations are not made public. The final
outcome of the procedure is made public only when the
Commission decides to submit a ‘situation’ to the
ECOSOC.
(a)ECOSOC resolution 1235 “to examine information
relevant to gross violations of human rights” and “to
study situations which reveal a consistent pattern of
violations of human rights”. This is public procedure.
May adopt resolutions deploring or condemning a
particular State for its breaches of human rights.
(b) ECOSOC Resolution 1503 (confidential procedure): the
communications from individuals and groups alleging
human rights violations are not made public. The final
outcome of the procedure is made public only when the
Commission decides to submit a ‘situation’ to the
ECOSOC.
Powers of Commission on Human Rights [Cont.]Powers of Commission on Human Rights [Cont.]
(c ) The procedure of appointing country or thematic special
rapporteurs: The Commission entrusts either groups of
expert, or individual experts, with human rights situation
in a certain country.
Its value was limited. Politics played a role in choice and
treatment of particular cases.
•The Commission’s powers were restricted to persuasion,
public criticism and, in the most serious cases, attempts
at isolation of the offending state.
•There were no legally binding sanctions available.
(c ) The procedure of appointing country or thematic special
rapporteurs: The Commission entrusts either groups of
expert, or individual experts, with human rights situation
in a certain country.
Its value was limited. Politics played a role in choice and
treatment of particular cases.
•The Commission’s powers were restricted to persuasion,
public criticism and, in the most serious cases, attempts
at isolation of the offending state.
•There were no legally binding sanctions available.
Human Rights CouncilHuman Rights Council
•On 15 March 2006, the GA adopted Resolution
A60/251 to establish the Human Rights Council
to replace the highly politicized Commission on
Human Rights (as a subsidiary organ of the GA).
•The Council consists of 47 Member States,
which are elected directly secret ballot by the
GA; the membership is based on equitable
geographical distribution.
•Malaysia is one of the founding members.
•On 15 March 2006, the GA adopted Resolution
A60/251 to establish the Human Rights Council
to replace the highly politicized Commission on
Human Rights (as a subsidiary organ of the GA).
•The Council consists of 47 Member States,
which are elected directly secret ballot by the
GA; the membership is based on equitable
geographical distribution.
•Malaysia is one of the founding members.
Art. 8: EqualityArt. 8: Equality
(1)All persons are equal before the law and entitled to the equal
protection of the law.
(2)Except as expressly authorized by this Constitution, there shall be
no discrimination against citizens on the ground only of religion,
race, descent, place of birth or gender in any law or in the in any law or in the
appointment to any office or employmentappointment to any office or employment under a public authority
or in the administration of any law relating to the acquisition,
holding or disposition of property or the establishing or carrying on
of any trade, business, profession, vocation or employment.
* [Exception: Art. 153]
(5) This Article does not invalidate or prohibit—
(a) any provision regulating personal law;
(b) any provisions or practice restricting office or employment
connected with the affairs of any religion …;
(c) any provision for the protection, well-being or advancement of
the aboriginal peoples of the Malay Peninsula (including the
reservation of land) or the reservation to aborigines of a
reasonable proportion of suitable positions in the public service;
(1)All persons are equal before the law and entitled to the equal
protection of the law.
(2)Except as expressly authorized by this Constitution, there shall be
no discrimination against citizens on the ground only of religion,
race, descent, place of birth or gender in any law or in the in any law or in the
appointment to any office or employmentappointment to any office or employment under a public authority
or in the administration of any law relating to the acquisition,
holding or disposition of property or the establishing or carrying on
of any trade, business, profession, vocation or employment.
* [Exception: Art. 153]
(5) This Article does not invalidate or prohibit—
(a) any provision regulating personal law;
(b) any provisions or practice restricting office or employment
connected with the affairs of any religion …;
(c) any provision for the protection, well-being or advancement of
the aboriginal peoples of the Malay Peninsula (including the
reservation of land) or the reservation to aborigines of a
reasonable proportion of suitable positions in the public service;
Article 10. Freedom of speech, assembly and Article 10. Freedom of speech, assembly and
associationassociation
(1) Subject to Clauses (2), (3) and (4)—
(a) every citizen has the right to freedom of speech and expression;
(b) all citizens have the right to assemble peaceably and without
arms;
(c) all citizens have the right to form associations.
(2) Parliament may by law impose—
(a) on the rights conferred by paragraph (a) of Clause (1), such
restrictions as it deems necessary or expedient in the interest of the
security of the Federation…, friendly relations with other countries,
public order or morality and restrictions designed to protect the
privileges of Parliament…;
(b) on the right conferred by paragraph (b) of Clause (1), such
restrictions as it deems necessary or expedient in the interest of the
security of the Federation…or public order;
(c) on the right conferred by paragraph (c) of Clause (1), …the
security of the Federation or any part thereof, public order or
morality.
associationassociation
(1) Subject to Clauses (2), (3) and (4)—
(a) every citizen has the right to freedom of speech and expression;
(b) all citizens have the right to assemble peaceably and without
arms;
(c) all citizens have the right to form associations.
(2) Parliament may by law impose—
(a) on the rights conferred by paragraph (a) of Clause (1), such
restrictions as it deems necessary or expedient in the interest of the
security of the Federation…, friendly relations with other countries,
public order or morality and restrictions designed to protect the
privileges of Parliament…;
(b) on the right conferred by paragraph (b) of Clause (1), such
restrictions as it deems necessary or expedient in the interest of the
security of the Federation…or public order;
(c) on the right conferred by paragraph (c) of Clause (1), …the
security of the Federation or any part thereof, public order or
morality.
Article 11. Freedom of religionArticle 11. Freedom of religion
(1)Every person has the right to profess and practise his
religion and, subject to Clause (4), to propagate it.
(2)…
(3)…
(4) State law and in respect of the Federal Territories of
Kuala Lumpur, Labuan and Putrajaya, federal law may
control or restrict the propagation of any religious
doctrine or belief among persons professing the religion
of Islam.
(5) This Article does not authorize any act contrary to any
general law relating to public order, public health or
morality.
(1)Every person has the right to profess and practise his
religion and, subject to Clause (4), to propagate it.
(2)…
(3)…
(4) State law and in respect of the Federal Territories of
Kuala Lumpur, Labuan and Putrajaya, federal law may
control or restrict the propagation of any religious
doctrine or belief among persons professing the religion
of Islam.
(5) This Article does not authorize any act contrary to any
general law relating to public order, public health or
morality.
Functions and powers of human Rights Functions and powers of human Rights
Commission [Cont.]Commission [Cont.]
(2) For the purpose of discharging its functions, the Commission may exercise
any or all of the following powers:
(a) to promote awareness of human rights and to undertake research by
conducting programmes, seminars and workshops…;
(b) to advise the Government and/or the relevant authorities of complaints
against such authorities and recommend to the Government and/or such
authorities appropriate measures to be taken;
(c) to study and verify any infringement of human rights in accordance with the
provisions of this Act;
(d) to visit places of detention in accordance with procedures as prescribed by
the laws …and to make necessary recommendations;
(e) to issue public statements on human rights as and when necessary; and
(f) to undertake any other appropriate activities as are necessary….
Commission [Cont.]Commission [Cont.]
(2) For the purpose of discharging its functions, the Commission may exercise
any or all of the following powers:
(a) to promote awareness of human rights and to undertake research by
conducting programmes, seminars and workshops…;
(b) to advise the Government and/or the relevant authorities of complaints
against such authorities and recommend to the Government and/or such
authorities appropriate measures to be taken;
(c) to study and verify any infringement of human rights in accordance with the
provisions of this Act;
(d) to visit places of detention in accordance with procedures as prescribed by
the laws …and to make necessary recommendations;
(e) to issue public statements on human rights as and when necessary; and
(f) to undertake any other appropriate activities as are necessary….
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