Law Notes on Behalf of The Peoples Republic of Zambeziland - Essay Example

Law Notes on Behalf of The People’s Republic of Zambeziland In response to the Communication lodged by ZAPO to the African Commission under Article 55 of the African Charter on Human and People’s Rights (Banjul Charter) 1986, the PRZ makes two main arguments. First it is argued that due to natural disasters, the PRZ can derogate from Human Rights treaties, namely the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 and the Banjul Charter. Secondly, it is argued that the PRZ is not legally responsible for the irresponsible conduct of non-state actors pursuant to international treaty law and customary international law. As a preliminary matter, the PRZ asks the commission to take into account whether or not it has jurisdiction over this matter since Article 56(5) requires that all local remedies are exhausted, unless it can be shown that there is excessive delay. As the African Commission previously decided, governments should have an opportunity to remedy human rights violations prior to being ‘called to account by an international tribunal’.1 No national remedies have been pursued by Zapo notwithstanding the fact that the PRZ has been working with the IMF and the World Bank as a means of addressing the consequences of the national disaster. Thus a claim that there is exemption to the exhaustion of remedies’ requirement on the grounds that there are no adequate remedies would fail.2 With respect to derogation, the Banjul Charter does not address the issue of derogation at all and thus it neither forbids derogation nor does it set standards for derogation. Therefore, the only reasonable explanation for this omission is that the Banjul Charter expects derogation to be regulated by customary international law.3 Under the fiduciary theory of human rights, states may derogate from non-peremptory human rights norms during emergencies as long as such derogation is intended to ensure ‘secure and equal freedom’.4 Derogation is therefore recognized as a means by which the state takes action for the good of the people and not as a means of advancing the interest of the state.5 Specifically under international law, Article 62 of the Vienna Convention on the Law of Treaties 1969 provides specific guidance on the issue of derogation. To begin with, where termination or withdrawal form a treaty is not provided for in a treaty, states may withdraw from the whole of the treaty.6 In particular a change of circumstances in relation to circumstances existing at the time of subscribing to a treaty can justify withdrawal from a treaty. At the same time, where a change of circumstances justify withdrawal from a treaty, it will also justify suspension of treaty rights and obligations.7 In addition, perilous conditions such as the disaster (force majeure) and its consequences for the PRZ are tantamount to the state of necessity permitting derogation under the Draft Articles on Responsibility of States.8 According to the Commission, although the Banjul Charter does not contain a derogation clause, Article 27(2) thereof is interpreted as permitting derogation as it establishes that human rights contained in the Charter can be limited with respect to security, the rights of others, morality and common interest.9 It is therefore argued that due to the natural disasters, the government of the PRZ took emergency action which inadvertently limited Charter rights in terms of non-peremptory norms such as the right to the right to work, the right to work, the right to property and the right to economic, social and cultural development.10 However, those limitations occurred by privatization policies, necessitated for the restoration and enlargement of those human rights. The natural disaster produced those violations as natural resources were damaged and attempts at replenishing the resources forced and exacerbated health and safety risks through inadequate water, inadequate access to health care facilities and damages to land effecting access to food and economic opportunities particularly for rural farmers. Given that the natural disaster and the consequences of remedial action represented both a change of circumstances and a state of necessity, derogation was permitted under international law pursuant to these exemptions. Similarly, derogation is also permitted under the ICESCR to which the PRZ is a party and in particular establishes permissible limitations on economic, social and cultural rights.11 To begin with the economic, social and cultural rights contained in the ICESCR are progressive rights and the duty imposed on states is to ensure that those rights are secured in a manner that corresponds with the state’s resources.12 A natural disaster essentially wiped out the PRZ’s resources and remedial action only serve to limit recovery and essentially rendered the PRZ’s resources inadequate. It is argued that limitations on human rights arising out of responses to natural disasters were strictly necessary in that human beings were dying of starvation. This in and of itself is a violation of normative human rights and compelled the government of the PRZ to take action for remedying destitution, starvation and homelessness.13In addition, the CESCR places a duty on states to protect vulnerable members of the population in times of difficulties related to limited resources.14 Therefore, in all the circumstances, the PRZ was compelled to take action which inadvertently limited the rights of individuals for protecting and promoting the general welfare of members of society and for protecting vulnerable members of society. Therefore derogation was not only necessary but an obligation. As previously determined by the International Labour Organization (ILO), a force majeure justification for derogating from human rights will generally be acceptable if it is not arbitrary, has been compelled by “irresistible circumstances” and there was ‘imminent danger”.15 The ILO also ruled that where any legal duty is violated by a state, both international and national law can be invoked to justify that violation if it can be shown that it was impossible to proceed differently and that the wrong action is only for a limited duration. The natural disaster and the remedial action taken in this case were undoubtedly irresistible circumstances and not only imposed imminent danger but continued to so despite remedial action which unfortunately only created additional dangers which all acted together to suspend the rights contained in the CESCR. However, as the government continues to work with the IMF and the World Bank, the suspension of those rights are temporary and thus derogation is consistent with the limits imposed by international customary law. Liability for the Actions of Non-State Actors Under customary international law, states have a general duty to uphold and protect human rights and in this regard, are generally not permitted to restrict the human rights of non-state actors as private entities.16 Thus the PRZ has a duty under customary international law to protect the human rights of the private actors including non-state actors who are not organs of the state.17 The only duty imposed upon the PRZ in respect of regulating the conduct of non-state actors in terms of respecting human rights is the duty to regulate behaviour so that human rights are respected.18 The state is required to take action against non-state actors who violate human rights. A failure to do so will be considered a violation of treaty obligations. It was held the Inter-American Court of Human Rights that: An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.19 Therefore the only question is whether or not the PZR acted diligently in regulating the behaivour of non-state actors or in responding to violations. The evidence suggest that the government did in fact respond diligently to violations by making alternative provisions for health care and water supplies and seeking assistance from the IMF and the World Bank. Thus the PRZ has not violated its treaty obligations with respect to the human rights violations of non-state actors. Bibliography Textbooks Ouguergouz, F. The African Charter of Human and People’s Rights. (The Hague, The Netherlands: Kluwer Law International, 2003). Steiner, H.J. ‘International Protection of Human Rights.’ In Evans, M. (Ed.) International Law, (Oxford, UK: Oxford University Press, 2010) Ch. 26. Journal Articles Coomans, F. ‘The Ogoni Case Before the African Commission on Human and Peoples’ Rights.’ (July 2003) 52(3) International and Comparative Law Quarterly, 749-760. Criddle, E.J. ‘Human Rights, Emergencies, and the Rule of Law.’ (2012) 34 Human Rights Quarterly, 39-87. Muller, A. ‘Limitations to and Derogations from Economic, Social and Cultural Rights.’ (2009) 9(4) Human Rights Law Review, 557-601. Sermet, L. ‘The Absence of a Derogation Clause from the African Charter on Human and Peoples’ Rights: A Critical Discussion.’ (2007) 7 African Human Rights Law Journal, 142-161. Statutes African Charter on Human and People’s Rights 1986. Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of its Fifty-Third Session, UN GAOR 56th Sess., Supp. No. 10, Art. 43, UN Doc A/56/10 (2001). International Covenant on Economic, Social and Cultural Rights, 1966. Vienna Convention on the Law of Treaties 1969. Cases CESCR General Comment No. 7 E/1996/22 (20 May 1997). Communication 155/96 The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights/Nigeria. http://www1.umn.edu/humanrts/africa/comcases/155-96.html (Accessed 19 March 2014). Communications 140/94, 141/94 and 145/95 Constitutional Rights Project, Civil Liberties Organization and Media Rights Agenda v Nigeria, Thirteenth Annual Report of the Commission – 1999/2000. http://www1.umn.edu/humanrts/africa/comcases/140-94.html (Accessed 19 March 2014). Communications 105/93, 128/94, 130/94 Media Rights Agenda, Constitutional Project, Media Rights Agenda and Constitutional Project v Nigeria 12 Annual Report of the commission -1998/1999. http://www1.umn.edu/humanrts/africa/comcases/105-93_128-94_130-94_152-96.html (Accessed 19 March 2014). Fisheries Jurisdiction Case UK v Iceland International Court of Justice, Judgment (2 Feb. 1973) (Accessed 21 March 2014) http://www.icj-cij.org/docket/index.php?sum=302&p1=3&p2=3&case=55&p3=5 Complaint (Article 26) – 1968 – Greece –Co87, Co98 Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the complaints concerning the observance by Greece of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), para. 110. (Accessed 21 March, 2014). http://www.ilo.org/dyn/normlex/en/f?p=1000:50012:0::NO:50012:P50012_COMPLAINT_PROCEDURE_ID,P50012_LANG_CODE:2508299,en:NO R v Secretary of State for the Home Department ex parte Adam [2006] 1 AC 396. Velasquez-Rodriguez v Honduras Merits Judgment (29 July 1988) http://www1.umn.edu/humanrts/iachr/b_11_12d.htm (Accessed 20 March 2014). Read More