International Mechanisms to Protect & Promote Human Rights - Research Proposal Example

INTERNATIONAL MECHANISMS TO PROTECT & PROMOTE HUMAN RIGHTS "AN EMPIRICAL STUDY ON THE ATTITUDE OF THE UAE OF HUMAN RIGHTS" RESEARCH PLAN IS SUBMITTED TO OBTAIN A DOCTORATE DEGREE IN LAW PREPARED BY ALI MATROOSHI I. Introduction: Since past deep history, human beings have demonstrated a yearning for respect, tolerance and equality. However, it is strange to note that despite the steps made by the contemporary societies in technological, political, social and economic development, it remains that what ails contemporary societies, to a large extent, is the same as that suffered communities for many years. The problems related to inequalities and intolerance has been persistent. In response to the concerns, the contemporary society has demonstrated vigor by developing systems and structures addressing the intolerance and inequalities in what have been coined human rights protection. As far as the protection of individual rights and freedoms at the international level is concerned, action began 19th century criminalization of slavery and improving the conditions of the sick and wounded in times of war (Robertson 1972). The end of World War 1 also makes marks to this beginning as it ushered an era of human rights protection treaties with respect to minorities. In 1919 the International Labour Organization was established in order to improve working condition. Although the original motivation of the establishment of this organization was to improve human life quality, there were also political reasons for its establishment. There were fears of social unrest arising from a growing working population which would have turned into a source of social unrest, even revolution, risking world peace and harmony. The atrocities of World War II have created an urgent need to preserve the peace and justice for humanity. They have alsohelped to accelerate the search for ways to strengthen international cooperation, including cooperation aimed at protecting the rights of the State's exercise of its influence arbitrarily and in order to improve living standards. MENA region countries have been recently under heavy criticism over violations of human rights. UAE is key member of MENA and has become an economic centre for the region as well as the globe. UAE is one of the countries that have paid great attention to the course of human right in the region. The state has worked to create the Emirates Association for Human Rights, the first non-governmental organization concerned with human rights in the UAE. It has taken stringent measures to regulate the labor market and improve the conditions of foreign workers, including the development of a system of health insurance, limit the duration of working hours for domestic workers and the establishment of a special tribunal to adjudicate labor disputes. However, it has been under criticism by from the international community for persistent gaps in enabling all individuals enjoy full human rights. More specifically, there have been gaps with respect to gender equality, civil and political participation, labor regulation and migration workers, as well as religion. The domestic law has also been identified as having significant contradiction with some of UN Conventions and UN human rights mechanisms. This study proposes to explore the UN human rights promotion and protection mechanisms and make comparisons with the systems and achievements in the UAE. Whereas there are achievements that have been made, the States continues to face numerous challenges. These challenges are inherently in the sociopolitical and democratic systems of the state. As such, this study seeks to identify the attitudes that inform the ratification and implementation of human rights conventions and their provisions. It explores the factors that are primary to the extent of UAE’s success in implementation. It will thus contribute to the knowledge on how to better address the implementation and thus inform the mechanisms that are enshrined in the legal systems. II. Problem of the study: UAE has achieved great successes in the areas of concern in the field of human right. However, there are among those areas that the state should review what has been achieved by the achievements of the continually; to ensure overcome the challenges to maintain a positive track. The main challenges facing the UAE are summarized in the following points: Ministries, agencies and institutions of civil society in the United Arab Emirates to suffer from a lack of awareness and training programs in the application of a engendered perspectives, gender equality and empower women. Gender inequalities and discrimination are persistently inherent in the system especially in labor, economics and political participation. As such, it is rather problematic as national machineries are not able to adequately translate textual equality and tolerance to legislative, institutional and sectoral policies. In addition, their input is not commensurate to the political support they have received in the current leadership dispensation. This is demonstrated in implications in areas such as the structure of the UAE labor market which has discriminated women. In addition, whilst the UAE labor market accommodates large numbers of expatriate arrivals, statistics on the development and employment of national human resources indicates that the unemployment rate for citizens amount to 12.9%. There is an urgent need to review the current social security legislations, institutions, and policies to accommodate some of the problems of the unemployed. Facing these challenges requires the UAE’s preparedness with a focus on the future. Since there is political will available in the UAE towards the achievement of equality, I believe it is high time that all systems and geared for this change. It is vital that all ministries and government bodies and civil society organizations working to translate human rights guidelines and mechanisms into a package of initiatives and actions and measures at all levels of political, legislative and institutional. III. Importance of the study: This study has both theoretical and practical importance. The theoretical importance of this study is to identify the human rights and the principle of domestic jurisdiction of the State, and to highlight the international commitment to respect human rights, as well as to identify the relationship between human rights and the principle of domestic jurisdiction of the state, and international mechanisms for the Protection of Human Rights, and to identify the mechanisms of international treaty to protect human rights. The practical importance of this study is to recognize the efforts of the United Arab Emirates in the application of international mechanisms to protect human rights, and shed light on the practical efforts of the State in order to promote human rights. IV. Methodology of the study Researcher will depend on the mixed methodology of scientific research in order to come to a conclusion on the objectives. This is an approach that enables the quantitative and qualitative components in the description of phenomena. The approach involves the description, evaluation and measurement of the state of phenomena. It is an important methodology in evaluation research. Evaluation researches refer to study of phenomena. This study described in the papers seeks to measure and evaluate the status of the implementation of human right protection mechanisms and in an attempt to present an overview of UAEs state of affairs. It has been presented by (Morgan 2011) as being in use by social scientists addressing human rights, political, social, cultural and economic conditions. This helps the researcher collect both quantitative and qualitative data and integrate the sources at a later stage and thus improve the understanding of the status of the phenomenon. In addition, a researcher may use one aspect to address a part of a phenomenon, and the other to address another. According literature, the question in the application of this methodology has not been its adequacy, but rather the best way to use it (Babbie & Rubin 2012). Essentially, it has been described as being most effective if used in a systematic way. As such, this study is structured systematically in which the researcher intends to first evaluate international and UN mechanisms for human rights protection. Secondly, it will evaluate the situation of the UAE and finally make conclusive comparative statement. This will be a statement of attitude. As such, this multi-methodology approach will enable the study to associate the UN mechanisms with the status of affairs at the state level. V. Objectives of the study This study seeks to identify the international mechanisms for the protection of human rights and how to apply them in the United Arab Pursuant to this, it has the following objectives: To identify the human rights and the principle of domestic jurisdiction of the state. To identify the nature of the obligation to respect international human rights To understand the relationship between human rights and the principle of domestic jurisdiction of the state To identify the mechanisms for the protection of public international human rights To identify what the Human Rights Council To identify the mechanisms of the Commission on the Promotion and Protection of Human Rights To identify the mechanisms of international treaty to protect human rights VI. Human Rights Standards: A comparative study United Kingdom The UK has had a tradition of entrenching human rights in its legal system despite the fact that reference to human rights is not a part of the treaties that bind the European Community (EC 1987). The dominant feature of Human rights protection in the EU must always be viewed against a backdrop of EC human right laws. According to Butler and Ahmed, the application of international Human rights has two consequences when it comes to the EU human right protection in that it raises the possibility of EU protecting human rights that are currently not covered by the EU domestic system and secondly in the sense that it may be relevant for EU to protect those human rights in a way that is further than plain “unconstructive protection”. Specifically, this means that subjecting EU human rights protection to international perspective defies EU community concepts and principles of human rights protection (Ahmed & Butler 2006). The context within which EU’s position regarding how the EU changed from being a regime that ignored human rights to one that respects and is founded upon the respect for human rights and fundamental freedoms is well documented (Alston & Weiler 1999). Today, the EU is indebted to protect human rights in accordance with its capabilities and in acquiescence with the European Court of Justice (ECJ) and as far as the European Community is concerned, an order that is seen to have emerged from the legal order of the EU that was initially developed by the ECJ (Ahmed & Butler 2002). Although the human rights laws of member states of the EU emanated from their domestic laws and in treaties to which they were members specifically the European Convention on Human Rights (ECHR) of 1950, the ECJ bases the community responsibility of respecting basic human rights on the community legal order. To this effect, specific human rights must be seen as community human rights first before they are endorsed for safeguard by the court and international and domestic human rights laws are only relevant in so far as they provide direction or back-up for the material substance of the common codes (Butler & Ahmed 2006). The EU is subject to international law on human rights. However there is a tendency among scholars to consider the EU human rights laws only in relation to how the EU is bound by its internal laws in respect to internal rules for instance Lawson, and where it is discussed like in Lawson, it’s only in confinement with ECHR as opposed to a direct comparison or directly under international law (Lawson 1991). The promotion of international Human rights, rule of law and democracy are the fundamental policy of EU and Britain to be specific. The Public in the EU therefore expects the Government to act with moral integrity in pursuit of the above interests. (United Kingdom Foreign & Commonwealth Office 2012). United Arab Emirates The UAE human rights record is considerably positive on the majority issues as assessed by the US and human rights organizations (Katzman 2012). However, According to the U.S Department of State report of 2009, there were assertions of torture of prisoners including those of a prisoner of US origin who was on trial for terrorism charges, constraints of freedom of speech and lack of legal independence but as the report states, the allegations were unverified (U.S Department of State 2010). Human right problems in the UAE including human trafficking occur mainly because the government is to some extend lax as opposed to being too strict; this according to Mattar (Mattar 2011). Estimates for the period spanning 1995 to 2004 of human trafficking place the numbers at 10% in the middle east of which UAE is part of a total 12.3 million (Mattar et al 2009) Along with other specific issues, freedom of assembly is forbidden by law in the UAE (U.S Department of State, 2010). However, the regimes do allow for little workers protests mainly regarding working conditions and other related issues (Keane 2008). The political rights of women have been steady as typified by the appointment of a woman as the deputy speaker of FNC in November 2011 (Katzman 2012). According to observers, UAE is perhaps the only Middle East Nation that accepts female emigrants to work in well rewarding professions such as banking and finance. Emirates women are also enjoying certain rights in terms of profession as they are now for the last five years able to get into professions such as engineering and information technology (Kirdar 2010). Women are also able to hold key leadership positions in government positions with the positions such as those of minister of foreign trade and planning, ministry of social affairs and two positions of ministers without portfolio being held by women (Katzman 2012 ; Kirdar 2010). About 10% of UAE Diplomatic Corps position are now held by women as compared to years before 2001 when none was held by a woman (Katzman 2012). When it comes to media freedom, UAE has been significantly praised for letting a “free-wheeling media” operate since 2006 when it abolished the post of the information minister to promote press freedom and independence. However human rights groups in 2009 were opposed to the move saying that it allowed for the penalising of individual journalists on ground of criticizing political leaders in the UAE (Katzman 2012). There is however a lack of provision governing media operations licensing and there are no set standards as to what constitutes ground upon which licenses should be issued or denied to a person or corporation and an increase in restrictions regarding the capabilities of research institutes’ operations (Katzman 2012). A dual court system operates in UAE in terms of justice and sharia (Islamic law) courts arbitrate both family and criminal law issues whereas civil courts arbitrate matters of civil law with a federal supreme court to review over it. The civil courts however do not extend to Ras al-Khaymah, Abu Dhabi and Dubai (Katzman 2012). The justice system in UAE has also been accused of being discriminatory as it favors influential individuals and discriminates against emigrants (Katzman 2012). The constitution of the UAE provides for freedom of religion but stipulates that the official religion is Islam . Christians are a minority but there is rarely any trace of Buddhist temples or Jewish synagogues. Only one Sigh temple exista which shares a building with one of the two existing Hindu templess since land basically belongs to the ruling class, it is they who allocate land for building religious places. Shiite temples do not exists at all but the shiite minority are free to worship although they do not receive any government funding support (Katzman 2012). World According to Neumayer, international treaties seldom affect human rights in any positive manner. Instead, the level of human rights mainly depends on how democratic individual countries are as well as how strong the human rights lobby groups in those individual countries are. The level of commitment to human rights is also dependent on the level of participation of the citizens of those countries in international human right organizations (Neumayer 2005). Human rights are also dependent on the power of a nation. The US, which can be termed the most powerful nation in the world, has a quite remarkable record in terms of human rights (Neumayer 2005). Powerful nations like the US and UK however do not apply the same principles as they do in their countries when it comes to foreign policy and they are never willing to contribute either by means of endorsements or force to make other countries improve their human rights situation unless it affects their citizens’ directly (Donnelly 1998). Additionally, rules of international human rights are relatively weak compared to those of finance and trade for example in the sense that they lack a strong observation and implementation systems and where those systems exist they are either fragile or undersupplied (Bayefsk 2001). According to Hathaway, treaty endorsements have often been used as tools to ward off both outside and domestic demands for real change in individual countries in the sense that they only act as a show of commitment to human rights to the world with no real commitment on the inside (Hathaway 2002). From an institution perspective, there are various mutual benefits to be reaped from international systems of international human rights specifically corporation but generally, it is debatable whether there are any tangible benefits to be gained when it comes to international human rights systems (Neumayer 2005 ; Krasner 1993). Countries that have high standards of human rights such as the UK AND US are more likely to benefit from effective human rights systems than those with low standards like the UAE in relation to their citizens abroad. The same case lapplies to people of similar backgrounds residing in foreign countrie be they religious or otherwise (Goldsmith & Posne, 2005). As Morasvcsik put it, Unlike other institutions such as those governing finance, trade, the environment and security International Human rights institutions are not designed primarily to regulate policy externalities emerging from social cross-borders interrelations but they are rather designed to hold individual govenments accountable for basic internal issues (Moravcsik 2000). VI. Study Plan: Chapter I: Human Rights and the principle of domestic jurisdiction of the State: The obligation to respect international human rights The International Human Rights lay has laid down obligations which bind states to respect human rights. Human rights detail both rights and obligations which are interrelated and indivisible. In this interrelation, one of the key principles is the states’ responsibility and obligation to protect human rights for all individuals without discrimination whatsoever. Under the international law, states assume the obligations to protect, respect and promote human rights. It is not just an assumption of obligation but rather a legal duty. This implies that states must set in place mechanism that not only promote, but also protect individuals from any interference. This implies an assumption to the obligation of facilitating the enjoyment of human rights. This is refered to as a positive action engagement by the OHCHR. In addition, states must, as individual entities, refrain from interfering or curtailing the enjoyment of human rights. This is according to the UN Committee on Economic, Social and Cultural Rights (CESR) which refers to this assumption as ‘a negative duty’ or duty to do no harm. In pursuit of the positive action, governments have risen and developed institutions in national laws and mechanisms to assist in promoting the enjoyment of human rights. Most states that are signatory to the international human rights conventions of the UN have in place mechanisms. Failure to protect human rights amounts to their violation both in accordance to the humanitarian law and international human rights, although the latter is more explicit on the obligation than the former. This violation is either by action, omission or protective action inadequacy (OHCHR 2011). This has been met conflicting literature opinions especially with regard to the question of armed conflicts, arms trade and proliferation. There exists significant disconnects between pledges and realities as states are often accused of fuelling violations in disguise of protecting them (Pillay 2009). The Middle East and North Africa (MENA) has been under heavy criticism from the international community over gross human rights violations. Whereas human rights violation has been a persistent concern for many over decades, the happenings since 2010 in political upheavals have put the region in the spot light even requiring the Arms trade Treaty establishment be made an urgent need (Amnesty International 2011). The principle of domestic jurisdiction In the administration of both the international human rights and humanitarian laws, the principle of domestic jurisdiction affects the development and implementation of both positive and negative mechanisms. It is entrenched by the Article 2 (7) of the UN Charter to limit the extent of UN’s authority over member states’ domestic jurisdiction. The principle of domestic jurisdiction refers to the area of internal state authority which is past the boundaries of international law. This implies that some humanitarian interventions may amount to illegalities against a member state as the principle relates to that of non-intervention which amounts to a jus cogens prohibition (D'Amato 2001, pp 1). However, this principle has had a significant share of contradicting theoretical and practical approaches. Essentially, the contradictions are inherent in defining the extent of international law boundaries. Essentialists views posit that there are matters which are within the exclusive individual states’ jurisdiction (D’Amato 1992). However, there are other views which seem to give monopolistic authority to the UN and its institutions. These views cite the growing nature of the international law and the gravity of the domestic issue e.g. genocides and massacres. Essentially, it is vital to note that the contradiction is inherent in determining textual and general applicability. Interestingly, although this principle was intended for maintenance of international peace and stability, it has been cited as hindering the same (Ahmed 2006). This is due to developments in international relations among states and in the UN. The relationship between human rights and the principle of domestic jurisdiction of the State Given the growth of human rights in international law and the cited developments in international relations; the principle of domestic jurisdiction has experienced significant changes and challenges. Inherent in the challenge is the legality of intervention of domestic affairs by foreign entities. Essentially, human rights and the principle of state domestic jurisdiction interact over the platform of state sovereignty. As indicated in Adjei, (2005) and Baek (2008) intervention in of sovereign states domestic affairs by other sovereign states is a key controversial issue in international law and relations. The controversy builds due to ascendancy of human rights in the law which has held to the traditional tenets of sovereignty of states upon which the principle stands. The relationship between international human rights and the principle has also found contest with regard to the doctrine of unilateral humanitarian intervention relative to that of non-interference. This former consents a sovereign state to intervene in other sovereign states internal affairs in case of violations of human rights such as genocide and mass murders. This relationship has further been shaped by globalization and a major challenge thereof: terrorism in which the issues of security and humanitarianism are debated. On one hand, sovereign states feel obliged to intervene and actually do it like in Afghanistan, Iraq and Libya whilst on the other there is sense of illegality in the intervention. According to Article 2(7) any intervention is illegal. However, Gutter (2006) suggests a consideration of several factors in attempt to illuminate on this relationship: the ranking of the provision in the Charter, standard of measuring what warrants intervention without legality concerns and entity authorized to settle the matter. Chapter II: General international mechanisms to protect human rights Council of Human Rights resolution 2006 The Human Rights Council (UNHRC) was created in 2006 following a resolution by the UN General Assembly to replace the previously discredited United Nations Commission on Human Rights (UNCHR) on the basis of its politicization. (Arroba, 2006) cites its formation as an ardous and complex process relative to international relations situations and politicization of the former. It is one of the key general mechanisms of the UN charged with the protection, promotion and the strengthening of human rights. The UNHRC also makes reference to the task of addressing human rights violations around the globe. Unlike its predecessor, the UNHRC has more frequent meetings, direct contact with the General Assembly, obligation to assess all States instead of a few and a more enhanced structure founded on better election process. This institutional mechanism has its current roles based on the Institution-bulding package adopted in its 9th meeting in june 2007. A key element of this package is the Universal Periodic Review (URP) that was created by a 2006 general assembly resolution 60/251. The URP is an instrument and a cooperative process by which states presents a self-analysis of steps made in promoting and protecting human rights once in 4 years. This analysis is then assessed by the HRC which ensures equal treatment of all states. It is vital to note that the UAE is not a signatory to the HRC. The UPR monitor 2008 presented critical human rights that are of significant concern for the UAE. These include civil rights, death penalty, migrant workers, and women’s rights, social security and political participation (International Service for Human Rights 2008). With reference to the same, the OHCHR cites additions of child rights, corporal punishment, education system and other discriminations. Essentially, the challenge is in establishing Human rights systems that fit in the Sharia laws. The Sub-Commission on the Promotion and Protection of Human Rights This commission has so far ceased to exist since its final session of July 2007. It had been created by the General Council as a main subsidiary of the disbanded CHR. It was composed of 26 experts elected with equitable geographical representation and tasked with the mandate of promoting human rights with reference to several key themes: human rights and freedoms violations, economic rights, racism, civil and political rights, freedom of expression, judiciary independence, human rights of children, women, minority populations and displaced persons, and impunity and religious intolerance (UNHCR 2012). To address these themes, the Sub-Commission was comprised of six major working groups: communications, Administration of Justice, Indigenous Populations, Minorities, Contemporary Forms of Slavery, and Transnational Corporations. Chapter III: mechanisms of international treaty to protect human rights Committee on the Elimination of Racial Discrimination (CERD) This Committee refers to a body if independent experts that is mandated to monitor the implementation of the Convention on the Elimination of All Forms of Racial Discrimination. It was established in 1970 to monitor member states progress in implementing the 1965-made convention which mandated CERD with four key functions: article 9 mandates it to examine members’ progresses, 11-13 mandates it to consider inter-State communications whereas article 14 focuses on individual communication. Finally, it facilitates other UN institutions review petitions as per article 15. In order to address these functions, CERD has developed mechanisms which enable a focused approach to the treaty. These mechanisms include the reporting procedure, early warning procedure, inter-states complaints and individual complaints examination. The reporting procedure obligates all states to submit regular reports which are examined. This is followed by a report in which CERD addresses human rights concerns. This is referred to as the Concluding Observations (Wolfrum 1999). For instance, the committee, in 2009, made concluding observations in the UAE citing milestones in reductions of discriminations. However, the state still lags behind due to the authoritarian rule with low democratic and civil action indices. The 2010 report cited challenges to the State with regard to social integration and gender equality justice. This was particularly so with a focus on women migrant workers. The observations also cited lack of clear structures between the domestic laws that is predominantly based on Sharia, and international mechanisms. In particular, there are concerns over the status of the Convention in the domestic law in spite of its publication in the Official Gazette. There are recommendations that UAE should clarify the status of the Convention, align domestic laws to it and ensure its precedence over domestic laws to alleviate contradictions (CEDAW 2010). Committee on the Rights of the Child (CRC). This committee is the major organ of the UN as overseer of the Convention on the Rights of the Child. It was formed pursuant to the 43rd Article of the Convention. Similar to CERD, it is comprised of experts mandated to monitor how states implement the Convention as well two other protocols: children involvement in armed conflict, their sale, and involvement in prostitution and pornography. CRC has procedures that are similar to CERD in the obligation for to periodic reporting which culminates to concluding observations. Apart from monitoring the implementation of various aspects of the convention, the CRC has endeavored to developed standards for rights of the child. They are referred to as General Comments by which it underlines and addresses key aspects as regarding the interpretation of child rights, promotion ad protection. Currently, there are so far 12 General Comments established since 2001. For the purposes of standardizing the implementation of the Convention for states, CRC has General Comment No. 5 which addresses the need for legally supported structures, practices, communications, national plans and commensurate funding. The UAE is a signatory of this Convention and ratified it in it legislation. This also includes other protocols such as the 2002 Worst Forms of Child Labor, Parlemo Protocol and Suppress and Punish Trafficking in Persons. As such, there have been significant achievements in the Constitution such as in Articles 15, 16, and 17. The Penal Code Articles 346, 358 and others are also in line with convention implementation. However, there are concerns that the domestic law does not address some child rights concern commensurate to the standards of the Convention (Human Rights Council 2010). Committee on the Rights of Persons with Disabilities This committee was established in 2006 on the tenets of Article 34 of the Convention on the Rights of Persons with Disabilities. It is mandated to oversee and monitor the implementation of the Convention in member States. Apart from the monitoring role, there is the Optional Protocol to the Convention which permits the committee to address and examine complaints of alleged violations. Member states are obligated by Convention submit periodic and regular reports to the Committee on progresses in the implementation. The UAE is a signatory to the Convention which was ratified by the government as Federal Law No. 116/2009. This implies commitment to ensuring that the UAE meets the scope of the Convention. References Adjei, E., 2005. The Legality of Humanitarian Intervention. LLM Theses and Essays, 5 January, pp. 1-70 Ahmed, K., 2006. The domestic jurisdiction clause in the UN Charter: A historical view. 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