Human Rights in National and International Law - Assignment Example

Why is so much importance attached to human rights in both national and international law? In particular, why is it fundamental to safeguard human rights in times of emergency, such as terrorism? “The only thing necessary for the persistence of evil is for enough good people to do nothing." This famous Amnesty saying throws light on the necessity of a fundamental law and order for the protection of life on his planet, in the form of what are commonly known as our ‘human rights’. The barbarism of Second World War had left everyone questioning the need for protection of an individual’s right to life and it was with this understanding that the Universal Declaration of Human Rights was passed in 1948. This declaration, which was the first structured effort at an international level, aimed at promoting the basic political, civil, economic and social rights that an individual is entitled to irrespective of his nationality, ethnicity or sex. The necessity of human rights was manifested in the preamble of the UN Declaration of Human Rights stating, “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.” (Universal Declaration of Human Rights, 1948) It is the basic existence of human life on this planet makes the existence of human rights inevitable. However there have been several theories that have been put forward to substantiate the importance of human rights and how they became an integral part of social expectations. First is the ‘biological theory’ based on empathy and altruism which supports human rights in order to bring individuals at the same platform as against the comparative reproductive advantage that some of them may have. Second is the ‘natural law theory’ which is based on the natural moral behavior derived from a common understanding of justice as per the religious precepts. Third one is lesser known the ‘interest theory’ which considers respecting an individuals rights as a duty in order to ensure that ones own rights will be safeguarded too. (Finnis, 1980) Lastly, other theories such as the ‘ sociological theory’ state that the individual accepts rules as ‘human rights’ which codify moral behavior from a lawful body in exchange of a security advantage. Finally, on a larger scale Human Rights takes importance as a philosophy than just a legal concept. Some people felt that Human Rights abuses were mostly common only in dictatorships such as abuse of freedom of speech and freedom of press. However such a violation can also exist in a democracy such as in the case of the Guantanamo Bay. Hence an urgent requirement was felt for defining the Human Rights in a structured manner and as a mechanism which led to the formulation of the “International Human Rights Law” as a branch of the International Law. Under this the ‘International Human Rights Instruments’ was constituted which discussed Human Rights issues with the help of ‘global instruments’ which are applicable to any state in the world and ‘regional instruments’ which are applicable to a state of a specific region. (UNHCHR, 1948) However the implementation of these laws and order necessitated establishments of mechanisms which were sometimes relatively less powerful as in the case of UN Treaty Committees; and sometimes assumed great importance as in the case of European Court of Human Rights where individuals can take their own cases to the court directly. Over the past few years the International Law has transcended from a body of law and order to recognizing the importance of individuals rights within the International legal framework. The difference between the positive rights such as economics, social and cultural rights and negative rights such as civil and political rights assumes greater significance in their application to different states. This led to the preparation of 2 treaties under the International Bill of Rights known as the ‘International Convention of Civil and Political Rights’ (ICCPR) and the ‘International Convention of Economic, Social and Cultural Rights’ in the year 1966 and 1976 respectively. (UNHCHR, 1948) These laws hold importance in the context of the fact that every individual has the right to determine their own political status and pursue their economic, social and cultural development without any restraint thereby ensuring that every person has a right to self- determination. Later a well-regulated body called the ‘Human Rights Committee’ was started with the aim of submitting reports about practices conducted in violation of Human Rights, a situation which takes front seat especially during the subsistence of terrorism. In order to protect and promote the Human Rights in a given country, about 90 National Human Rights Institutions were set up and under the leadership of UN High Commissioner of Human Rights, a number of bodies were started to look into matters relating to protection and monitoring of Human Rights. (NHRI, 1948) The world constitutes of varying cultures and social practices and hence different regions are marked by a distinct way of life. It is this disparity in cultures and beliefs of different regions which made it obligatory for certain regional organizations to make specifically designed laws binding to their regions for protection of Human Rights. Some of these include the European Court of Human Rights, African Commission on Human and Peoples' Rights, Cairo Declaration on Human Rights in Islam, Iran's Defenders of Human Rights Center etc. Human Rights hold utmost importance during a state of emergency as it is during this period that the normal behavior of the citizens of a particular state is altered thereby leading to suspension of some Human Rights. States that are signatories to the ICCPR are allowed to derogate themselves from certain Human Rights in ‘time of public emergency’. (OHCHR, 1976) and this detraction must be announced to the secretary General of UN by the State. On the other hand there are few Human Rights which are non-derogable even during cases of emergency such as the right to life, right to be free from torture, right to be free from slavery and right to be free from retroactive applications of penal laws. A negative aspect of this it was noticed by the Office of the High Commissioner for Human Rights (OHCHR) where in the name of fighting terrorism several countries adopted certain practices which gave them the freedom to enjoy virtually all Human Rights. (OHCHR, 2001) There are two basic dilemmas that are faced while protecting Human Rights during a state of emergency. First lies in clearly defining all the situations that will be constituted as an ‘emergency’. The fact that a state of emergency will also bring about a certain amount of freedom in using human rights can lead to complex difficulties. For example, in the year 1986, about 70 states were undergoing some kind of an emergency in order to enjoy various Human Rights. (ILA, 1986) Second problem is that of differentiating emergency situations that do lead to Human Rights abuse from those which don’t. This means that not all emergency situations are of the same degree and hence the freedom of enjoying human rights has also to be given considerably. (Fitzpatrick Joan M, 1994) Following the attack on September 11, 2001 on USA, the issue of Human Rights protection and terrorism has been inextricably linked with each other. In the wake of an emergency, such as terrorism, the basic right to life has to be protected first. This is because of the fact that terrorism is aimed either at taking away innocent lives or filling the minds of thousands with fear. Realizing this the Security Council created the Counter-terrorism Committee (CTC) in order to make it obligatory for states to enforce more forceful counter-terrorism measures at a national level so as to cooperate in their struggle against terrorism.(UN Charter Resolution 1373, 2001) In response to this, Kofi Annan, the Secretary General of the UN at a CTC meeting said that “Our responses to terrorism, as well as our efforts to thwart it and prevent it, should uphold the human rights that terrorists aim to destroy. Respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism - not privileges to be sacrificed at a time of tension.” (CTC, 2003) This powerful speech highlights the point that human rights will never be destroyed by acts of terrorism, and in fact be used as a shield against terrorism. Terrorism is the worst enemy of human rights and the biggest threat to a civilized society. It tramples under its feet all that is human- human culture, human values, human civilization and human existence in general. Pressing on this, David Fromkin had once said "Terrorism wins only if you respond to it in the way that the terrorists want you to: which means that its fate is in your hands and not in theirs." The only way of combating terrorism and thereby protecting the Human Rights is by building a comprehensive strategy to fight the same. In situations of emergency such as that of terrorism one has to maintain the dual responsibility of not avoiding Human Rights abuse thereby giving them national security. This is a very difficult task in itself as one has to take into consideration the ripple effects of a particular action. During a state of terrorism, in order to ensure national security, it is mandatory for certain human rights to be suspended. In these situations, rights such as Right to Property, Right to Privacy and Press and Publication Rights can be suspended completely. Other rights such as Right to Religion and Right regarding Criminal Justice, though might not be suspended, but are circuitously and negatively affected too due to an existing situation of mistrust that accompanies a state of emergency. Hence the basic problem that arises is that of balancing Human rights protection with national security. However, a balancing approach has not been that successful in defending human rights owing to two crucial difficulties encountered. Firstly, in case of a clear conflict between security needs and human rights and security needs, the scale usually falls in favor of the latter. For example while introducing the ATCS Bill to the Parliament, David Blunkett, justified its necessity by saying, “If there were no emergency, if there had not been a terrorist attack and if there were no danger that not passing the Bill by the end of the year would put us at risk, I would not be introducing it in the first place.” This can create bitterness amongst the citizens as they might feel their basic human rights are being snatched away and not be able to look at the bigger picture. The second problem arises when there are concerns over the short term security as against a long term security which also leads to protection of human rights on a short term versus long term basis. Terrorism is not only a series of attacks but an on-going conflict and hence the most secure way of protecting the individuals is to try to bring an end to the conflict which is not a short term but a long term goal. Hence whatever measures are taken to fight terrorism on a long term will eventually affect human rights for an equal period of time. This is highlighted in the speech made by Mr.Blunkett where he says, “We are proposing measures allowing us to take rational, reasonable threats and proportionate steps to deal with an internal threat and an external, organized terrorist group that could threaten at any time not just our population, but the populations of other friendly countries.” (NLS, 2004) So while efforts are being made of combating terrorism forever, certain human rights if not completely suspended, might be lessened in their degree of effectiveness. An important example under this was the situation of Nepal over a long period of time when it was declared the state of emergency which drew a lot of global attention. There had been massive human rights abuses in the form of daily violence and terror meted out on ordinary communities and Nepal had been in the clutches of a human rights crisis for a number of years. Rather than safeguarding the national security, what the declaration of ‘state of emergency’ did to Nepal was nothing but aggravating the existing culture of lack of transparency and non-accountability which finally led to plummeting the chances of peace. During this period a large number of basic human rights were also suspended such as the Right to information, Right to privacy, Right to a constitutional remedy, Freedom of assembly, Freedom to form unions and associations, Freedom of opinion and expression, Press and publication rights and Right against preventive detention. Hence it is seen in the case of Nepal how declaration of a ‘state of emergency’ can prove to be harmful rather than helpful to a state and hence requires a strategic thinking. On a brighter side to this recently Kofi Annan talked about the five D’s as the basic pillars of a “principled, comprehensive strategy” to fight terrorism globally in a CTC meeting held at Madrid in 2005. The first of the five D’s that he spoke about aims at ‘dissuading disaffected groups from choosing terrorism as a tactic’ aims at clearly stating with the help of political and moral authorities, that terrorism under any circumstances is unacceptable. The second one is to ‘deny terrorists the means to carry out their attacks’ which means efficient action against money-laundering, denying terrorists the use of nuclear materials and eliminating potentially hazardous materials as much as possible. The third one is to ‘deter States from supporting terrorists’ under which the Security Council resolves to take action against any state which gives any kind of support to terrorism. Fourth is to ‘develop State capacity to prevent terrorism’ which aims at bringing the relatively weaker states to equal levels as others in order to help them build capacity to fight terrorism. And lastly to ‘defend human rights in the struggle against terrorism’ which ensures that the basic human rights are not abused in the process of combating terrorism. (CTC, 2005) There are some injuries which can be healed with the passage of time but others that can never heal fully — which especially applies to the mental anguish suffered by the survivors of brutal acts of terrorism. It is in context to this that protection of human rights becomes a necessity more than a liability. Protection of Human Rights assumes greater significance today as the world is in a state of unrest. Hence not just its existence, but a proper implementation of these rights is a must to ensure peace and in order to safeguard the inherent human dignity, based on which the Human Rights declarations are conceptualized. This is indispensable to retain the universal and inalienable character of human rights and take the larger responsibility of constituting as democratic ideals. Only the words of an epitome of humanity can do justice in throwing light upon the importance of Human Rights and on a bigger pedestal, humanity itself and hence it is desirable to quote the Dalai Lama- "All human beings, whatever their cultural or historical background, suffer when they are intimidated, imprisoned or tortured . We must, therefore, insist on a global consensus, not only on the need to respect human rights worldwide, but also on the definition of these rights, for it is the inherent nature of all human beings to yearn for freedom, equality and dignity, and they have an equal right to achieve that." List of References: 1. United Nations (1948) Universal Declaration of Human Rights [online] available from < http://www.un.org/Overview/rights.html> [14 October 2006] 2. Finnis John (1980) Natural Law and Natural Rights [online] available from < http://www.iep.utm.edu/n/natlaw.htm> [14 October 2006] 3. UNHCHR(1948) International human rights instruments Rights [online] available from < http://www.unhchr.ch/html/intlinst.htm> [14 October 2006] 4. UNHCHR(1948) International Bill of Rights [online] available from < http://www.unhchr.ch/html/intlinst.htm> [14 October 2006] 5. National Human Rights Institution(1948) [online] available from [14 October 2006] 6. OHCHR (1976) International Covenant on Civil and Political Rights [online] available from < http://www.unhchr.ch/html/menu3/b/a_ccpr.htm> [14 October 2006] 7. OHCHR (2001) Terrorism and Human Rights [online] available from < http://www.unhchr.ch/terrorism/index.html > [14 October 2006] 8. Newcastle Law School(2004) Uniting Human Rights and National Security in Countering Terrorism [online] available from [14 October 2006] 9. Fitzpatrick Joan M. (1994) Human Rights in Crisis. Pennsylvania: University of Pennsylvania Press 10. United nations (2001) security council unanimously adopts wide-ranging anti-terrorism resolution[online] available from < http://www.un.org/News/Press/docs/2001/sc7158.doc.htm> [14 October 2006] 11. United nations (2001) security council unanimously adopts wide-ranging anti-terrorism resolution[online] available from < http://www.un.org/News/Press/docs/2001/sc7158.doc.htm> [14 October 2006] 12. OHRCHR (2003) Terrorism [online] available from [14 October 2006] 13. CTC (2005) Secretary-General Kofi Annan Launches Global Strategy Against Terrorism in Madrid [online] available from [14 October 2006] Read More