The Concept of Three Levels of Human Rights Law - Essay Example

International law Critical analysis of why treaties of human rights do not grant rights directly to individuals Introduction Human rights declarations, conventions and laws form three levels of human rights law that include the domestic, regional and international law (Steiner, Alston & Goodman, 2008). The United Nations Declaration of Human rights contain several conventions, covenants and treaties that advance certain inalienable individual human rights (Bayefsky, 2001). In addition, regional groupings of states have treaties on human rights such as European Convention of Human rights and African charter on human rights and peoples’ rights. According to the Office of the United Nations High Commissioner for Human rights, human rights are inherent to all human beings regardless of their nationality, colour, religion, language, place of residence, sex or any other identifiable status of the individual (Ramcharan, 2010). Universal human rights are expected to be indivisible, interrelated and interdependent and human beings should enjoy such rights without any form of discrimination. Steiner arguesthat ‘human rights violations still occur within a state rather than high seas or outer space outside the jurisdiction of any one state’ (Ramcharan, 2010, p 45). In this case, states are expected to assume the obligations of protecting and fulfilling human rights to their citizens through positive actions lead to enjoyment of the basic human rights and respecting such rights (Steiner, Alston & Goodman, 2008). The UN charter that aims at ensuring global peace and fundamental human rights has led to numerous conventions that have been adopted in order to protect individual human rights and protect the citizens from atrocities such as genocide and torture (Bayefsky, 2001). Majority of the rules have been codified in to customary rules of international law thus binding even the countries that have not ratified the conventions. Each state has the responsibility of safeguarding individual human rights within its territory, but as Turkin emphasized ‘conventions on human rights do not grant rights directly to individuals’ since the rights will vary from state to the other or from region to region due to government structures and regional treaties and declarations of human rights (Provost, 2002, p 98). In this paper, I will demonstrate that all states have a duty to respect the universal fundamental rights within territories, prohibit discrimination and have the duty to respect such rights and co-operate with other states in attainment of such objectives. Thesis: treaties on human rights treaties grant rights directly to individuals. The role of state (state sovereignty and state responsibility) State sovereignty is a concept of international relations that provides order and stability since the sovereign states are regarded as equal regardless of the economic power, wealth and size. Article 2.1 of the UN charter guarantees the equality of states and sovereignty signifies that each state can make authoritative decisions regarding resources within the territory (Steiner, Alston & Goodman, 2008). Article 2.7 of the charter empowers the states to exercise exclusive jurisdiction within the territorial borders and other states have a duty to refrain from interfering with the internal affairs of other sovereign states. On the other hand, the sovereign states have a responsibility of protecting the safety and welfare of the citizens and the institutions of the state are responsible for any human rights violations (Bayefsky, 2001). Although the state has the primary responsibility of protecting the human rights, it can delegate or collaborate with the international community to protect the citizens. The state responsibility extends to the responsibility to protect, and rebuild. The developed countries and especially those in the European Community rarely employ economic and political sanctions to force other states to comply with international provisions of human rights (Steiner, Alston & Goodman, 2008). Some member states have ratified the treaties as a symbolic gesture, but rarely have mechanisms of implementation and enforcement of the human rights directly to individuals. For instance, Article 21 and 22 of the Convention against Torture has optional protocol that allows states and individuals to communicate the alleged human right abuses to the Committee against Torture. However, the Committee does not have any enforcement powers. Although the international law guarantee certain economic, social and cultural rights, the International Covenant on Economic, Social and cultural rights is silent on level that developing countries should provide this rights directly to individuals (Bayefsky, 2001). For instance, Article 2 (3) of the covenant allows the developing states to determine the extent they will guarantee the economic rights to non-nationals. The international covenant on civil and political rights (ICCPR) has not established clear guidelines on the provision of those basic rights to individuals. The member-states have established conflicting standards in the implementation since some states do not guarantee the right to participate in political affairs, trade union formation and right to peaceful assembly and association (Steiner, Alston & Goodman, 2008). In this case, the treaties have provided for special conditions that member-states use to perpetuate rights abuses such as ensuring public morals or public order. Some countries suspend or derogate from the rights through declaring a state of public emergency as stipulated by Article 4 (1) of the ICCPR. The current international law holds that states cannot be liable for human rights breaches if there are no institutions or authorized officials to act on behalf of the state (Bayefsky, 2001). Accordingly, states are free to assume express responsibility if acts of private individuals after overcoming emergencies. Many nation-states especially the repressive governments and hundreds of reservations in human right treaties especially Islamic treaties limit the universality of human rights to individuals (Brems, 2001). The states are required by the treaties to produce state reports on the progress of the compliance of the domestic human rights standards with treaty rights and obligations. In this case, some states have failed to create national institutions for the implementation of treaties due to ignorance and impressible reservations. Some countries do not encourage individual complaints regarding discrimination as there are no channels of submitting the complaints to the treaty bodies or the United Nations (Brems, 2001). Relationship between national and international law The international human rights law protects the human rights at international, regional and domestic level and comprises of the treaties, agreements and conventions that are intended to have binding legal force (Brems, 2001). The states are expected to put in place domestic national laws that are compatible with the treaty duties and obligations. If the national laws and domestic legal system fail to address the human rights abuses, the international treaties have mechanisms and procedures that allow individuals and groups to make complaints at both the regional and international levels thus ensuring the universal international human rights standards are implemented and respected (Bayefsky, 2001). According to the Declaration of the rights and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms. Article 2 grants each state the responsibility to promote and implement all human rights, and further undertake steps that create conditions that are necessary for the enjoyment of social, political and economic rights (Moeckli, Shah & Sivakumaran, 2013). However, cultural diversity in human rights is still evident in Islamic countries that have reservations on issues on freedom of religion and marriage since Shariah law forbids Muslims the right to freely change their religious beliefs or marry non-Muslim spouses (Brems, 2001). Accordingly, the states have taken reservations on right to property especially inheritance. Role of individual The notion that individuals are agents of state has expanded to include individual responsibility since individuals are now responsible for their own actions during armed conflicts and human rights abuses (Coomans, 2004). The individuals who participate in planning, preparing, financing and execution of humanitarian crimes during armed conflicts are individually responsible for their actions and omissions including persons acting in official authority such as heads of state (Brems, 2001). Article 25 (3) of the international criminal court statute provides that individuals will be criminally responsible if they commit a crime, order or induce the commission of the crimes, facilitate or contribute to commission of the crimes (Sunga, 1992). The individuals in certain states perpetuate human rights abuses when the national judiciary has collapsed to punish such offenses. The prosecution of such offenses is supposed is done by a third party who is empowered by International Organizations such as the United Nations (Coomans, 2004). In the recent years, such persons have been prosecuted for offenses against humanity committed in countries such as Rwanda and Yugoslavia after the establishment of the International Criminal Court. However, few states have signed and ratified the Rome Statute, but the UN Security Council is able to intervene in such situations and ensure prosecution of the individuals according to the international criminal code (Brems, 2001). Regional human rights protections (European convention on human rights compared with the American and African human rights) Regional human rights protections such as the European convention on human rights (ECHR) and African human rights charter have significant differences on the rights that are granted directly to the individuals. ECHR is more comprehensive, aligned with international covenant on civil, political, economic, social, and cultural rights and has mechanisms for implementation, monitoring and settlement of cases arising from the violations (Brems, 2001). ECHR considers the Universal Declaration of human rights and aims of Council of Europe in furtherance of human rights and fundamental freedoms. In addition, contracting states must protect rights outline by Section 1 of the Convention such as right to life, prohibition of torture, right to security and liberty, right to freedom of expression, religion, thought, fair trial, and prohibition from discrimination and right to marry (Steiner, Alston & Goodman, 2008). However, it is worth noting that ECHR does not include the economic and cultural rights that are secured by other international conventions such as ICCPR, but is aligned with the UDHR (Bayefsky, 2001). In the case of Austria v. Italy, the European Commission on Human rights pointed out that the obligations undertaken by the high contracting parties of the EU convention are designed to protect the individual rights of human beings rather than create subjective and reciprocal rights of the contracting parties. The same sentiments are shared in the case of Wemhoff v. Federal Republic of German whereby the court held that the specific purpose of the treaties was to protect individual human person. The American Convention of Human rights (ACHR) covers civil and political rights that are technically regarded as the ‘first rights’ and ignores the economic, social and cultural rights by are granted by other regional treaties like the European convention of human rights. Accordingly, ACHR entails several duties to the individuals that may conflict with the enjoyment of the fundamental rights such as duty to educate children and duty to serve the country through rendering civil or military service (Brems, 2001). The citizens are expected to cooperate with social security and welfare laws of the state and refrain from political activities in a foreign country. In this case, ACHR is weaker in granting rights directly to individuals while compared with the European Convention of Human Rights (ECHR). The African Charter on human and peoples’ rights (ACHPR) was adopted in 1981. Surprisingly, core international treaties like Universal Declaration of Human rights, International covenant on Economic, social and cultural rights (ICESCR) and International Covenant on Civil and political rights (ICCPR) were in place and African states should have joined the universal regime on human rights. Interestingly, African charter grant ‘third generation rights’ and right to solidarity such as Article 24 that outlines right to General satisfactory environment and collective rights of communities. The third generation rights are affirmed in the case of SERAC v. Nigeria, whereby it was held that environmental rights, collective rights and social rights are elements of human rights of Africans (Steiner, Alston & Goodman, 2008). The African court was later established for individuals and civil rights organisations to determine cases that may arise, but respondent states must authorize the application of the cases by individuals and organisations according to Article 34 96) of the 1998 Protocol (20) (Conforti, 1997). Although ACHPR was geared at ensuring universal rights, critics have argued that its intentions has shifted from granting rights and freedoms to ensuring the total liberation of Africa continent from neo-colonialism and control by the Western powers (Bayefsky, 2001). ACHPR shares some of the features of European Charter, but has differences in the norms it recognises and the supervisory mechanism since it aims at ending Zionism, apartheid and colonialism thus shifting the focus from providing universal and individual rights to citizens. However, the Charter seeks to safeguard the civil and political rights, economic, social and cultural rights, peoples’ rights and group rights (Conforti, 1997). The Charter has prohibited discrimination and ensured right to freedom of worship, information and expression, association and political participation. The charter grants social, economic and cultural rights such as right to work, health, education and housing, but African states have taken minimal steps in entrenching such rights in their national laws. A clear distinction of the African charter and European or American charter is the peoples’ rights and group rights (Bayefsky, 2001). For instance, Article 18 (2) provides that the family is the custodian of morals and traditional values while Article 21 (4) have provided that states have right to collectively or individually exercise free disposable of wealth and other natural resources in order to strengthen African Unity and solidarity (Steiner, Alston & Goodman, 2008). The duties outline by the African charter in Article 29 such as duty to strengthen social and national solidarity, duty not to compromise security of the state, and duty to preserve the positive African cultural values have limited the enjoyment of universal rights (Brems, 2001). For instance, the citizens are limited on their choices on issues regarding marriage, dress codes and freedom of information due to duties imposed by the charter. In this regard, the charter is the weakest in providing rights directly to the individuals (Simmons, 2009). Universal Declaration of Human rights Universal Declaration of Human rights (UDHR) upholds the right to equality, dignity and freedom of all human beings regardless of their beliefs, opinions and conditions. The UN general assembly proclaimed the UDHR as a common standard for the protection of human rights of all individuals and every organ of the society among the people of the member states. The UDHR aims at ensuring dignity and justice and promoting equal opportunities for all individuals regardless of their identifiable status in the society (Simmons, 2009). Article 1 of the UDHR clearly outlines that all people are born free and equal in rights and dignity and should act towards one another in the spirit of Brotherhood (Brems, 2001). Article 2 clearly entitles all individuals with rights and freedoms without any form of distinction and discrimination of any nature including race, sex, religion, political affiliation and national origin (Alston, 2000). Furthermore, Article 3 grants individuals the right to life, security and liberty while Article 4 prohibits all forms of servitude and slavery. Article 5 prohibits inhumane treatments and tortures while Article 6 grants individuals the right to recognition such as citizenship or refugee status in the country. Article 7 grants the individuals equal protection of the law while Article 8 grants right effective remedy by competent national tribunals for the violation of the fundamental rights (Simmons, 2009). Article 9 safeguards the individuals from arbitrary detention, unlawful arrests or exiles while Article 10 ensures an individual has access to fair, impartial and independent justice system for the determination of criminal charges against him (Brems, 2001). The UDHR is the cornerstone of civil rights since Article 11 provides that individuals should presumed innocent during trial until proven guilty and no one can be tried of offenses that did not constitute a penal offense at the time of the offense (Bayefsky, 2001). Article 12 grants right to privacy while Article 13 provides for the freedom of movement and residence within the national borders of each state (Alston, 2000). Article 14 provides for right to asylum while Article 15 has granted the individuals the right to nationality and right to change the nationality. According to Keller, Ulfstein & Grover (2012), the rights are geared at protecting individuals since Article 16 provides for the right of men and women of full age to marry and establish a family without any limitations based on race, nationality or religion. The states are expected to undertake measures that will ensure marriage is based on free and full consent of the spouses and protect the family as a fundamental group unit of the society (Simmons, 2009). Article 17 provides for right to own property which is an economic right while article 18 grants the individuals the freedom of thought, conscience, belief and religion thus states are expected to protect the minority religious beliefs and groups in the society. In addition, Article 19 provides for the freedom of opinion and expression and dissemination of ideas through free media thus states have an obligation of protecting these fundamental rights (Simmons, 2009). Article 20 provides for right to freedom association and peaceful assembly while Article 21 grants individuals the right to participate in public affairs such as voting and public service and the will of the people forms the basis of government authority. Universal Declaration has granted individuals the right to access social security under article 22 and right to employment under favorable conditions under article 23 (Brems, 2001). Article 24 requires that individuals should have right to rest, limitations on working hours, leisure and periodic holidays while Article 25 provides the citizens with a right to social services such as housing, medical care and other social services in event of sickness, unemployment or even old age (Alston, 2000). Furthermore, Article 25 provides for equality in access to children who are born out of the wedlock. Article 26 provides that individuals should have access to at least compulsory elementary and professional education on the basis of merit and parents have the freedom to choose the kind of education that is best for their children (Simmons, 2009). Furthermore, Article 27 ensures that individuals have right to participate in the cultural life of their communities, arts and scientific benefits while Article 28 makes it clear that individuals are entitled to social and international set forth in the declaration. The UDHR under Article 29 makes it clear that limitations to rights and freedoms are only subject to securing the respect of the freedoms of other, morality, public order and general welfare of any democratic society (Steiner, Alston & Goodman, 2008). Article 30 has outlined that Article of the UDHR cannot be construed as implying that the state or any person has right to act or perform any act that lead to prohibition of the rights and freedoms outlined by the declaration (Alston, 2000). Conclusion The human rights are constitutionally affirmed and summarized on the basis of the legal status of individuals. The international human rights treaties and conventions form part of the international law that requires states to implement measures and legislation of protecting those inalienable and indivisible individual rights. The Universal Declaration of Human rights (UDHR) is the cornerstone of international law on human rights, but numerous treaties, conventions and declarations have been made to strengthen the individual rights. UDHR provides for civil, political, economic, social and cultural rights. International conventions promote social, economic and cultural rights of individuals, but such rights rights depend on the national resources and are implemented within the existing national limits. The states have the primary responsibility of creating national conditions that will ensure citizens enjoy the economic, social and cultural rights. Regional treaties such as European Convention of Human Rights (ECHR) promote and safeguard civil and political rights and have mechanisms for implementation, monitoring and resolving conflicts that may occur between the contracting states. Other regional charters such as American and African charter have been adopted, but focus on collective rights and duties of the citizens thus limiting the safeguard of individual rights. In this case, states should implement the UDHR, International covenants and treaties that aim at ensuring inalienable and universal rights to all citizens. Bibliography: Alston, P. 2000. 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