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

Human Rights:an Introduction

Harkristuti HarkrisnowoSentra HAM Universitas Indonesia

January 2006

copyrights @harkrisnowo 2006

Universal Declaration of Human Rights Whereas recognition of the inherent dignity and of the

equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,


Thus…

Equality is to be promoted in order for the social development & better standards of living are to be achieved

Such is that it is necessary to have a common standard of Human Rights for all peoples, AND

Each country is obliged to ensure that provide that Human Rights are to be protected and promoted


Characteristics of Human Rights

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


Main Principles of Human Rights

A. Equity Equality Non discrimination Equality of opportunity Equality of access on public services Participation

B. Dignity: Freedom Freedom to choose Autonomy

C. Humanity Respect to rights of others Saling menghormati Solidarity


Sources of Human Rights Law

I. Customary International Law General & consistent practice of states

followed because of sense of legal obligations

II. Treaty Law: UN Charter ICCPR & its Protocols ICESCR Genocide Conventions Convention against Torture Convention on the Elimination of all

forms of Racial Discrimination


Convention on the Elimination of all forms of Discrimination against Women

Conventions on the Rights of the Child

Migrant Worker Convention Convention relating to the Status of

Refugees and its Protocol For Geneva Conventions 0f 1949 and

its Protocols


Human Rights history in a nutshell Holly Scriptures Magna Carta (1215) The Great Golden Bull (1223) (Hungary) Westphalia Treaty (1648) Declaration of Independence (1776)

(USA) Bill of Rights (1791) (USA) Declaration des droit de l’homme et du

citoyen 1789 (France) Bill of Rights (1889) (United Kingdom)


Human Rights...

the twentieth century is marked by various international treaties on Law on War and Labor issues

Universal Declarations of Human Rights (1948)


Development of Human Rights

The Cyrus Cylinder: 538 BC, the King of Persia, Cyrus or Kourosh-e

Kabeer issued a declaration, inscribed on a clay barrel known as the Cyrus Cylinder

It contains an account of his victories and merciful acts, as well as a documentation of his royal lineage

the cylinder of Cyrus is sometimes referred to as the "first charter of human rights ,“

it states that the Persian Empire freely lets the people of the empire practice their own religious beliefs.

The cylinder also introduces such concepts as the abolishment of slavery (the kings of Persia commanded that all palaces were built by paid workers, an unusual concept at the time)


The Stoa during the Greek period Rome Thomas Aquinas (13th century) Hugo Grotius (16th century) John Locke (the Father of Human

Rights) 17th century Enlightenment Period (18th century)

Montesquieu, Voltaire, Rousseau


Hence the Human Rights theories

Natural Law and Positivism Individualism and collectivism Negative and positive rights Civil political rights and economic,

social & cultural rights Universalism and cultural relativism


Generations of Human Rights (developed by Karel Vasak)

1st Generation I: Negative rights or civil liberties (may stem from liberal

freedoms advocated by JS Mill in On Liberty) obligation on the states not to interfere with individual

freedom (ICCPR) 2nd Generation:

Positive rights (may be linked to Rousseau’s Continental European legal tradition, denote rights that the state is obliged to protect and provide)

rights to individuals or groups on the provision of public goods and social services (ICESCR)

3rd Generation: Composite rights right to development, peace and clean environment this is the most debated generation of rights, and lacks both

legal and political recognition


Some notes…

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


International Human Rights Instruments


Universal Declaration of Human Rights (1948) International Covenant on Civil and Political

Rights (1966) International Covenant on Economic, Social &

Cultural Rights (1966) Convention on the Elimination of All Forms of

Discrimination against Women (1979) Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (1984)


International Convention on the Elimination of All Forms of Racial Discrimination (1965)

Convention on the Rights of the Child (1989) Convention on the Protection of the Rights of

All Migrant Workers and Members of Their Families (1990)

International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)


Normative development of Human Rights

UN Charter

UDHR

ICCPR & ICESCR

CERD, CEDAW, CAT, CRC, MWC

DECLARATIONGUIDELINES

BODIES OF PRINCIPLESMINIMUM RULES

DECISION & GENERAL COMMENTS OF TREATY BODIES


The Rules: who make them ?

States from all regions Through the development of custom Through the development of declarations,

guidelines, etc Through the development of treaties

The are made at international bodies & meetings: Human Rights Commission General Assembly UN Crime Congress Regional Organizations


Who monitors Human Rights?

National level: Government agencies National human rights institutions Courts Parliaments Civil society (academics, professional

associations, NGOs etc) International level:

Regional organizations International NGOs The UN (through conventional & non-

conventional mechanism and other human rights operations)


UDHR

Based on a holistic approach Article 3 commences civil and political

rights (articles 4-21): fundamental rights and freedom entitled to every individual from his or her government

Article 22 commences economic, social & cultural rights (Article 22): everyone’s rights as members of society


Lacking in the UDHR are…

Freedom of the press Restriction on death penalty Freedom of scientific research Rights to strike Rights to use one’s language and name Individual rights to complain Protection of women and children Right to development Right to self-determination No prohibition on war propaganda or hate

speech


ICCPR is divided into ….

Rights of self-determination Protection of integrity Fair and human procedural rights whenever

one’s freedom is curtailed by the state Equal protection in terms of race, religion,

gender etc Freedom of religion, speech and assembly Rights to political participation Rights of minority groups to their own culture


While ICESR ….

Obligation of state parties Enumeration of substantive rights International implementation International application Legal rules

(Adopted in 1966, entry into force: 1976)


ICESR

Rights to work, good working condition Rights to rest and leisure Rights to form and join a trade union Social security Protection for the family, children and

mothers Adequate standard of living Rights to health (physically and mentally) rights to the development and the

diffusion of science and culture.

The Mechanism ….


OHCHR (Office of the High Commissioner for Human Rights)

UN Official with primary responsibility for UN Human Rights activities

Mandated to promote and protect the enjoyment and full realization of all rights established in the Charter of the United Nations and in international human rights laws and treaties, especially preventing human rights violations, securing respect for all human rights, promoting international cooperation to protect human

rights, coordinating related activities throughout the United

Nations, strengthening and streamlining the United Nations

system in the field of human rights, and leading efforts to integrate a human rights approach

within all work carried out by United Nations agencies.


Supervisory (Treaty-based) Bodies (Conventional Mechanism)

HRC: Human Rights Committee CESCR: Committee on Economic, Social &

Cultural Rights CERD: Committee on the Elimination of

Racial Discrimination CEDAW: Committee on the Elimination of

Discrimination Against Women CAT: Committee Against Torture CRC: Committee on the Rights of the Child CMW: Committee on Migrant Workers


And their responsibility are…

Considering reports from the State Parties, making suggestions & recommendation on how a State’s implementation efforts might be improved

Holding public meetings where State Parties present their reports, and constructive dialogues with the Committee are conducted

Making general comments on the interpretation of specific treaty articles

Receiving individual complaints alleging that a State has violated their rights under relevant treaty


Extra-conventional or thematic mechanism

Gross & systematic violations of human rights (1503 procedure)

Summary or arbitrary Executions (Special Rappr) Torture (SR) Disappearance (Working Group) Violence against Women (SR) Independence of the Judiciary (SR) Racism (SR) Freedom of Opinion and Expression (SR) Internally Displaced Persons (SR) Various country Rapporteurs Human Rights and Human Genome (SR), etc


Mandates of thematic mechanism…

Conducting general studies and analysis on issues that fall within their mandates

Making general recommendations on how to prevent human rights violations and remedy the consequences

Receiving communications (i.e. allegations about the violation of an individual’s human rights, made by individuals, governments, NGOs etc.)

Conducting communications with governments if an allegation is considered as credible and falls within its mandate

Conducting country visits to study a specific situation in a country, depending upon the acceptance of the government concerned

Submitting an annual reports to HRC


Other regional mechanism..

African Commission on Human Rights & People’s Rights

European Commission of Human Rights

European Court of Human Rights Inter-American Court of Human

Rights International Criminal Tribunals


The 1503 Procedure.. A confidential procedure adopted by ECOSOC in 1970

on Procedure for Dealing with Communications relating to Violations of Human Rights and Fundamental Freedoms (reformed during the 65th session of HRC in 2000)

It is confidential in that neither the author of the complaint nor the government concerned has the rights to information about the progress of the complaint (but since 1978, the names of the country have been announced by the Chair of HRC)

Not an individual complaint procedure per se, only complaints that allege a pattern & practice of human rights violations will be accepted.

Complaints may be made against any country, even if it is not a member of the UN

A Working Group on Communication is designated on a yearly basis by Sub-Commission on the Promotion and Protection of Human Rights


And international NGOs…

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


Documents

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