Effectiveness of the Protection of Human Rights by Public International Law - Coursework Example

Critically assess the effectiveness of the protection of human rights by public international law. Introduction Human rights are privileges and freedom, which are fundamental to one’s liberty and life. Human rights laws authorise individuals to have equal opportunity, to be free from discrimination in works place, and to work without harassment in works place. Human rights includes equality under the law, freedom of expression, the privilege to work, the privilege to food, and the right to education. Thus, human rights preserves the value and the dignity of an individual and offers equal privileges to women and men. Of late, there is an enhanced consciousness in public international law of the importance of human rights, which has given the rise to the notion of direct claim for compensation by individuals in the case of severe human rights infringements. This development has resulted in a number of claims for compensation in different jurisdictions as in the case of case of ECHR – Al-Adsani v. United Kingdom, Prefecture of Voiotia v. Federal Republic of Germany, and John Doe I v. Unocal Corp. For instance, the District Court of Livadeia in Greece, in 1997, awarded damages for Distomo-massacre victims. On 4 May, 2000, the Greek Areopag court upheld the decision of the District Court of Livadeia. Nonetheless, the execution of the award against the assets of the Federal Republic Germany which was located in Greece could not be accomplished for want of the required approval by the Greek government1. This research essay will make deeper analysis how violations of human rights of ordinary citizens are protected by the International Public law by referring various case laws on the subject. Protection of human rights by public international law – An Analysis As part of public international law, international human rights law is steadfastly embedded in it. Its main manifestation can be found either in regional or international treaties. Human rights are safeguarded under other international law such as international humanitarian law, which is also known as armed conflict and through the International Labour Law (ILO). It is to be noted that the extensively acknowledged international human rights declaration is the 1948 “Universal Declaration of Human Rights” which is also known as UDHR. As UDHR is a declaration and hence, the rights contained in it cannot be made legally binding. To plug this loophole and to make it legally binding, the rights acknowledged in the UDHR have been collated in two legitimately obligatory documents such as the 1966 International Covenant on Economic , Social and Cultural Rights (the ICESCR) and the 1966 International Covenant on Civil and Political Rights (the ICCPR)2. Both ICESCR and ICCPR being international covenants. ICCPR is protecting both the political and civil rights and offers protection to various rights such as security and liberty of an individual, freedom from forced labour and slavery, and the privilege to freedom of movement, the privilege to a peaceful assembly, and non-mediation in personal and family life. The ICESCR offers safeguard against the privilege to work, to start and join trade unions, to have a satisfactory standard of living, health, education and to involve in cultural life. More than 150 nations around the world are parties to the above covenants as of date. The ICESCR, ICCPR and UDHR are famously known as the international Bill of Rights. Many states have also consented a number of extra international human rights conventions such as racial discrimination, discrimination against women, and children rights. International Labour Organisation (ILO) declaration is safeguarding the rights of workers internationally3. It is to be noted that rights granted under the above international covenants are not unconditional and concerned state can place reasonable restrictions or limitations for legitimate objective. For instance, a state can limit a right so as to safeguard its national security, general welfare or public order in a democratic society. However, some human rights like the privilege to be free from torture and the privilege not to be in slavery are absolute in nature. Non-degradable or absolute rights are detailed in Article 4 of the ICCPR which cannot be violated in any scenario by the State parties4. Under the international covenants, states are entrusted with the duty to safeguard the human rights in their jurisdiction and are bound by the regulations and norms of international humanitarian law. Each state has primary accountability to look after the victims of man-made or natural emergencies happening in their region. International cooperation can also be sought in strengthening the initiatives of states, which are impacted by man-made or natural disasters. For instance, Article 2 (1) of ICESCR details out the duties of states “to initiate steps, individually or with the international cooperation and to help in order to accomplish gradually the full accomplishment of the privileges enshrined in the Covenant. An analogues norm is stipulated in article 11(2) of the covenant as regard to the privilege to freedom from hunger, to the effects that shall initiate steps , either with the help of international cooperation or individually5. Article 14 of the Elimination of All Forms of Racial Discrimination contains a communication procedure. This communication procedure can be employed to confront an occasion of discrimination, which is footed upon a mixture of gender and race. “The Yilmaz-Dogan v. The Netherlands (Communication No. 1/1984)” serves as a best illustration for this6. In this case, a Turkish national woman working in a textile company in Netherlands was terminated by her employer because she was pregnant. She failed to get a legal relief in the Netherlands court. On the receipt of communication from Yilmaz-Dogan, the Committee on the Elimination of Racial Discrimination found that the Netherlands had not safeguarded Ms Yilmaz-Dogan’s privilege to work under the Convention and directed the Netherland government to provide her alternate work with other equitable beliefs. “The Mauritian Women’s Case – (Communication No.35/1978)” Due to new immigration laws passed in 1977 in Mauritius, foreign husbands of Mauritian women lost their Mauritian residential status as under the new law, these foreign husbands had to apply afresh for a residence permit which could be declined by the Minister of the Interior any time. By employing the first Optional Protocol to the ICCPR, a group of 19 Mauritian women made a complaint about the Mauritius discriminatory law to the Human Rights Committee. These affected Mauritian women complained that the new Mauritian immigration law discriminated against them on the footing of sex in their capability to enjoy political and civil rights, including the privilege to be free from unlawful and arbitrary meddling with family. The Human Rights Committee concluded that the new Mauritian immigration law made an adverse distinction on the footing of sex on the privilege to be free from unlawful and arbitrary meddling with family, and it was in infringement of the ICCPR7. “Articles 26 of the ICCPR and the Broeks v. the Netherlands (Communication No. 172/1984)” Article 26 of the ICCPR states that all individuals are equal without any favouritism to enjoy the equal safeguard under the law. In this regard, the law will forbid any discrimination to all individuals and to offer equal safeguard against discrimination on any footing such as colour, race, sex, religion, language, political or other opinion, social or national origin, birth, property or other status. Under the Unemployment Benefits Act of Netherlands, no unemployment benefits can be claimed by a married woman on the continuous basis unless they demonstrated that she is the breadwinner, or she is permanently deserted her husband. However, men were given special treatment, and this stipulation did not apply to a married man. Mrs S.W.M Broeks, employing the first Optional Protocol, made a complaint to the Human Rights Committee that the Netherland’s Unemployment Benefits Act infringed her privilege under article 26 of ICCPR to equal protection and equality before the law. The Committee held that the Netherland’s law was discriminative in nature as it differentiated on the footing of sex thereby placing married women at a drawback as contrasted with married men and observed that this differentiation was not justifiable. The Committee found that Mrs Broeks was a casualty of infringement footed upon sex, as per article 26 of the ICCPR8. Article 14 of the ICCPR guarantees equality before tribunals and courts that is applicable despite of nature of proceedings before such bodies. In Avellanal v. Peru (Communication 202 of 1986), it was alleged by Avellanal that article 168 of the Peruvian Civil code infringed the article 14 of ICCPR, i.e. to warranty impartiality before courts. In this case, Avellanal alleged that under Peruvian Civil Code, only men were permitted to represent matrimonial property in any valid court. The Supreme Court of Peru held that Avellanal was not authorised to sue against her tenants for the collection of outstanding rents since she was a married woman and under the Peruvian Civil Code, only men (her husband) could represent matrimonial property. On the basis of compliant made to the Human Rights Committee , it found that the Article 168 of the Peruvian Civil Code had, in fact, refused equality for Ms Avellanal before the courts and amounted discrimination on the footing of sex. The Committee held that Peru was under responsibility to initiate measures to remedy the infringement of the ICCPR provision witnessed by Ms Avellanal9. Under International Covenants, states are needed to proactively guarantee that individuals within its jurisdictions do not witness human rights infringement at the hands of third parties. However, the state does not become accountable for every hostile meddling with the rights of the individuals by the third parties. Nonetheless, the state can be held accountable for those failures that can be due to its weakness in safeguarding individuals from third parties, for instance, because it has enacted a law that made infringement possible or due to its failure to do something that would have stopped the infringement from happening as held in Young, James and Webster v. UK (1982) 4 EHRR 38 and in “Eg X and Y v. The Netherlands (1986) 8 EHRR 235”10. Under the Article 15 of the European Convention on Human Rights, derogations from obligations under the Convention are allowed only if it is synchronised with the other international legal obligations. The responsibilities detailed out in the Geneva Convention are hence to be followed. In the Northern Ireland case, ECHR (the European Court of Human Rights) examined whether the derogations perused by the United Kingdom were in accordance with its commitments under the public international law. Especially, the Court investigated whether the British law in Northern Ireland was in tune with the Geneva Conventions11. The investigation was restricted to a statement that the Geneva Conventions were also applicable as the Irish side failed to offer further factual details as held in Brannigan and McBride v. ECHR12 .This case clearly demonstrates that referral to international law is generally possible under the ECHR. The United Nations Human Rights Committee (UNHRC), in accordance with the ICCPR and under its Optional Protocol, investigates a large number of death row cases. This is mainly due to the Optional Protocol which offers individuals on death row the privilege to petition the committee with alleged breaches. All death row phenomenon claims are initiated under Articles 7 and 10 of the ICCPR. Article 7 of the ICCPR explains that “no individual shall be endangered with torture or inhuman, cruel or degrading punishment or treatment. Likewise, Article 10 (1) of the ICCPR explains that” all individuals divested of their freedom should be treated with humanity and as regards to the innate dignity of the human being.” On the death row phenomenon, the UN Committee takes an intermediate position. The UN Committee not only tolerate any delay, but it will also look into the facts of the specific case to decide whether conditions as its entirety to inhuman , cruel or degrading punishment or treatment and if the conditions exist, then , the committee will be viewing it as an infringement of ICCPR provisions. In many cases, where prisoners have claimed that the death row phenomenon infringed the ICCPR provisions which has been turned down by the Committee since the appellants did not use remedies available in their nation as held in Little v. Jamaica (Nos 210/1986 and 225/1987), in Chittat Ng v. Canada (No 469/1991) and in “KC v. Canada (No 486/1992)”.13 However, the UN Committee obviously explained its stand in Pratt and Morgan v. Jamaica14. Pratt and Morgan witnessed a refusal of justice during the period 1980-1984 which is in infringement of Article 5(2) of the American Convention on Human Rights. The U.N Commission found that the Jamaican Court of Appeal held its verdict on December 5, 1980, but it did not offer any reasons for that verdict until four years afterwards on September 24, 1984 which the UN Committee was of the opinion that it amounted to inhuman, cruel, and degrading treatment since due to the four years delay, the petitioner could not be able to appeal his case to the Privy Council and subjected to sufferings of four years in death row anticipating execution. On the above findings, the Inter-American Commission and Court of Human Right made a request to commute the death sentences of Pratt and Morgan on humanity grounds. In “Kelly v. Jamaica”, a similar evaluation was made where the U.N. Committee observed that the deplorable conditions on death row, especially the lack of fundamental medical treatment, was in infringement of Article 10 of ICCPR15. Conclusion The ICESCR, ICCPR and UDHR are famously known as the international Bill of Rights. Non-degradable or absolute rights are detailed in Article 4 of the ICCPR which cannot be violated in any scenario by the State parties. In Broeks case, The Committee held that the Netherland’s law was discriminative in nature as it differentiated on the footing of sex thereby placing married women at a drawback as contrasted with married men and observed that this differentiation was not justifiable. The Northern Ireland case demonstrates that referral to international law is generally possible under the ECHR. In Ms Avellanal v. Peru case, the Committee held that Peru was under responsibility to initiate measures to remedy the infringement of the ICCPR provision witnessed by Ms Avellanal. “The case of Broeks v. The Netherlands” is a best illustration of article 26 of ICCPR offering safeguard from discrimination that is not associated to either political or civil right. If a State law is discriminatory in nature, article 26 of ICCPR can be applied with or even if the issue of the law falls not under the provisions of ICCPR. Hence, article 26 has the potential to be widely employed to compete against discrimination. Bibliography Alex Conte, Human Rights in the Prevention and Punishment, Springer, New York, 2010. Bayefsky A F , How to Complain to the UN Human Rights Treaty System , Ashgate Publishing Ltd , New Delhi ,2002. Burchill R, Davidson S & Conte A, Defining Civil and Political Rights: The Jurisprudence of the United Nations, Ashgate Publishing Ltd, New Delhi, 2002. Harris D J, O-Boyle M and Warbrick C, Law of the European Convention on Human Rights, Butterworth, New York, 1995. Hellum A & Aasen H S, Women’s Human Rights: CEDAW in International, Regional, Cambridge University Press, Cambridge, 2013. Hudson P, ‘Phenomenon Violate a Prisoner’s Human Rights under International Law?’ EJIL, Volume 11, No 4, 2000, pp.833-856. Moeckil D, Shah S, Sivakumaran S & Harris D, International Human Rights Law Oxford University press, Oxford, 2013. Pittrof, S , ‘Compensation Claims for Human Rights Breaches Committed by German Armed Forces Abroad During the Second World War’ German Law Journal, Volume 5, No 1 ,2004, 15. Wernaart B, The Enforceability of the Human Rights to Adequate Food, Wageningen Academic Publishers, London,2013,p.56 Read More