 |
 |
|
Worldwide influence of the universal declaration of human rights and the international bill of rights International covenant on civil and political rights International covenant on economic, social and cultural rights Convention against torture and other cruel, inhuman or degrading treatment or punishment Convention on the rights of the child Convention on the elimination of all forms of discrimination against women Convention on the elimination of all forms of racial discrimination The international court of justice International criminal court WORLDWIDE INFLUENCE OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND THE INTERNATIONAL BILL OF RIGHTS by Kim Gleeson From 1948, when the Universal Declaration of Human Rights was adopted and proclaimed, until 1976, when the International Convenant on Civil and Political Rights (ICCPR) and The International Covenant on Economic, Social and Cultural Rights (ICESCR), entered into force the Universal Declaration stood alone as the international standard of achievement for all peoples and all nations . Today the Universal Declaration, along with the Convenants make up the International Bill of Rights. Nearly all international human rights instruments adopted by the United Nations bodies since 1948 elaborate principles set out in the Universal Declaration of Human Rights. The ICCPR states in it's preamble. "in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his or her economic, social and cultural rights, as well as his or her civil and political rights". The coming into force of the Covenants, by which State parties accepted legal as well as the moral obligation to promote and protect human rights and fundamental freedoms, has not diminished the widespread influence of the Universal Declaration. The Universal Declaration has established many of the principles for a number of important international conventions and treaties-the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading treatment or Punishment; the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by the General Assembly in 1981, clearly defines the nature and scope of the principles of non-discrimination and equality before the law and the right to freedom of thought, conscience, religion and belief contained in the Universal Declaration and the International Convenants. The Universal Declaration has informed the constitutions of nation states and it's principles have been included or adopted by the Council of Europe, the Organization of African Unity, and the American Convention on Human Rights, at Costa Rica, in 1969. Judges of the International Court of Justice have invoked principles contained in the International Bill of Human Rights as a basis for their decisions. In 1968, at the International Conference on Human Rights in Teheran, the Universal Declaration was once again declared "a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community". "The Universal Declaration has come to be regarded as an historic document articulating a common definition of human dignity and values. The Declaration is a yardstick by which to measure the degree of respect for, and compliance with, international human rights standards everywhere on earth". (Excerpts from the Centre for Human Rights, 1996 United Nations) At the 1993 World Conference on Human Rights in Vienna, over 150 countries once again re-affirmed their commitment to the Universal Declaration of Human Rights expressed in the Vienna Declaration and Program of Action. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS [ Moira Rayner] This Covenant is one of the most important protections of all human rights, and it made headlines in 1998 when China adopted it. Countries who sign this Covenant absolutely guarantee to protect all the rights it covers. They belong to any individual within their territory, whatever their status - including their sex, race, nationality, beliefs, social or economic standing - without any 'distinction' or discrimination. Signatories promise to provide an 'effective remedy' for their violation. Any one who believes they have beenwronged and has exhausted these domestic remedies, can take their complaint to the UN's Human Rights Committee. The Covenant protects fundamental rights, such as liberty and freedom from arbitrary arrest or detention. It guarantees humane treatment if people are detained according to law. It says that children who have been lawfully arrested or detained must not be jailed with adults: the reason is, that it is far too dangerous for the children. The Covenant says that every human being has an 'inherent right to life' - but the Covenant allows capital punishment in some circumstances. It prohibits torture - deliberate treatment causing very serious and cruel suffering - and cruel, inhuman and degrading treatment (which is different only in degree). It prohibits slavery or forced labour; guarantees freedom to move around and choose where to live; promises fair trials; and protects our right to 'privacy, family, home or correspondence' and 'unlawful attacks on a person's reputation or honour.' This could include vilification, such as falsely claiming that a political opponent is a sexual deviant, to discredit the person. We are entitled to freedom of thought, conscience, and religion. We have the right to hold and express opinions. The Covenant prohibits incitement to war, or racial or religious hatred. It guarantees our right to peaceful assembly (with restrictions only for safety, health and others' freedoms'), and to freedom of association (including joining trade unions). Individuals have the right to marry whoever they so choose and the family's and children's rights must be especially protected. We must be allowed to take part in public affairs and to vote. Ethnic, religious or linguistic minorities have the right to preserve their culture. This Covenant is a charter for individual autonomy and self-determination. The rights it protects belong to every man, woman and child on earth, and may be asserted against any authority on earth. The ICCPR has two Optional Protocols. the first allows individuals (not just states) to lodge complaints with the UN about human rights violations. The second, which was adopted as late as 1989, is designed to eliminate the death penalty. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS [Moira Rayner] This Covenant is one of the cornerstones of human rights. It protects our economic and social rights. These are the rights that 'cost': governments have to spend money to provide standards of living, or meet cultural expectations. It is far easier to respect or acknowledge a right such as the right to vote, than it is to promise that 'no child will live in poverty.' These rights 'cost' because often social and economic rights depend on someone else giving up their share of resources, or access to power. Few do that willingly. The rights the Covenant deals with are those people need because they live in communities, associating with other people. They need to be read with the ICCPR and other rights. Anyway, someone who is starving or sick is hardly 'free'. The Covenant protects, among others, the right to an adequate standard of living, to the best possible physical and mental health, and the right to education (including compulsory, free primary education for children). It guarantees rights to social security, which means a minimum standard of living. The rights protected include the right to work, to 'just and favourable' conditions of work, and the right to join trade unions. Artists, scientists and writers are entitled to the benefit and control of the works they create. It guarantees the right to participate in cultural life and to enjoy the benefits of social progress. Governments who sign this Covenant also promise to protect marriage, the family, and the well-being of pregnant women and those women who have recently given birth. These are some of the most important rights of all, yet there are no real performance measure for governments, and there is no mechanism for individuals to make complaints about the breach of these rights. The Covenant says that governments must act 'to the maximum of available resources', to achieve 'progressively' the full realisation of the Rights it protects. This gives governments - who have a discretion in how they spend their money - every reason to state that they just cannot afford them. CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT [Moira Rayner] This Convention requires governments to prohibit, and prevent, 'torture'. Torture is the infliction of severe pain or suffering that is intended to get a confession, punish, intimidate or coerce anyone or that is inflicted for any discriminatory reasons, if it is carried out by or with the acquiescence of a public official. It can include being forced to watch someone else being hurt, to put pressure on the observer. Oddly, the Convention does not cover pain or suffering 'arising only from, inherent in or incidental to lawful sanctions.' The only sensible interpretation of this proviso is that such sanctions would not be 'lawful' if their purpose was wrongful - punishment, intimidation, getting a confession or any one of the prohibited reasons. Other cruel, inhuman or degrading treatment or punishment' is not defined. It means marginally less 'severe' conduct of the same nature. It may include what some adults call 'corporal punishment' of children, at least if the child is hit with an object. In September 1998 the European Court of Justice said that it was 'cruel, inhuman or degrading treatment', under the European Human Rights Convention, for a stepfather to use a stick or a cane to beat a young boy. The Convention does not excuse torture under any circumstances whatever, whether there is a war or emergency on, or even if the torturer is merely 'obeying orders' from a superior officer. Countries who sign the Convention are obliged to arrest, detain and prosecute offenders; train their law enforcement and military personnel about the prohibition against torture, and review interrogation rules and practices. The treaty sets up a Committee Against Torture and people may raise complaints about cruel treatment to that committee at any time. CONVENTION ON THE RIGHTS OF THE CHILD [Moira Rayner] This Convention has been signed by more countries than any other human rights treaty. Unfortunately, there is no provision for individuals to make a complaint if the rights it addresses are violated. Children are the least able to claim the rights this Convention protects. The Convention requires the government protect the human rights of children - anyone under the age of 18 - and to recognise that children have precisely the same human rights as adults. Children also have special, protective rights, 'before as well as after birth'. This seems to require, at least, that governments make sure that pregnant mothers have good ante-natal care. Children are also entitled to special protections and safeguards, because others have to protect their rights for them. Children's 'best interests' must be the first consideration in all decision-making for children: in other words, adults have to put their interests before their own preferences. The Convention recognises that parents should raise their own children and are their best protectors, because children's 'best interests' would, naturally, be their first consideration. The Convention asserts that a child has the right to be brought up in a family environment of love and understanding, and that the State must support parents in that role. A key provision is the child's right to parental guidance and direction, consistent with their developing maturity. Children may not be taken from their parents against their will, unless their best interests demand it, and then only after a fair hearing. They must not be discriminated against because of their parents' status or beliefs. A key right of the child is the right to participate in decision-making and in community life - they must, in other words, be taken seriously, and not treated as non-people, or lesser people, because of their age, vulnerability and dependency. Another is the right to play, as a special developmental need. Their rights include the full range of civil and political rights as are covered by the ICCPR, including freedom of thought, conscience and religion, freedom of expression and the right to be heard in decision-making affecting them; privacy, and freedom from torture or other cruel, inhuman or degrading treatment, or arbitrary deprivation of liberty. They are entitled to the same economic, social and cultural rights as adults. They are entitled to special protection if they are deprived of the family environment in which, the Preamble makes clear, they are entitled to be brought up in an atmosphere of love and understanding, so that they may assume full adult responsibilities in due course. Essentially, this Convention reminds governments of the full humanity of all children, their equality, in moral terms as human beings, with adults; but their vulnerabilities too, and the special duties all owe to protect their rights. It simply states that adults must take children seriously, and they have to put their desires and interests second to their duty to ensure that all children achieve their full potential. CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN [Moira Rayer] The Convention obliges governments to prohibit discrimination against women on the one hand, and ensure their equality on the other, equality being one of the Convention's goals. There is not, at present, any procedure for complaints under this Convention, though it is under active consideration. The Convention prohibits any 'distinction, exclusion or restriction' based on sex, or marital status, which is either intended to, or has the effect of, impairing women's fundamental rights and freedoms, in any field. This covers unintentional (or indirect) discrimination, as well as deliberate acts that disadvantage women, and it affects the protection of rights in private (or family) life as well as public life. This Convention has a wider reach, therefore, than the Convention on the Elimination of All Forms of Racial Discrimination. The Convention obliges nations to pass laws to ensure the equality of women, and allows them to create 'temporary special measures aimed at accelerating de facto equality between men and women' - affirmative action, or positive discrimination, in other words, until equality is actually achieved. There is a positive duty to modify cultural and social practices that create stereotypes or reflect prejudices about female inferiority because of their sex. The Convention requires women's equality in economic and social life, and requires governments to take steps to address the special difficulties of rural women. They must take steps to eliminate trafficking in women and the exploitation of women's prostitution (it does not require the eradication of prostitution itself). States must also eliminate political discrimination (such as the right to vote and hold public office); discrimination in access to and the type or choice of education; ensure women's equality in choices of work, wages and conditions, and to social security, and prohibit dismissal because women have married, become pregnant or had children (maternity leave with pay and child care should be provided). Governments have to take special measures to provide care for women during pregnancy - they may provide special health services for women as well as ensuring their equal access to health care. Women must also have equality with men before the law, which includes the right to own property and enter into their own contracts. The Convention also requires equality in relation to marriage and the family, such as equal rights to choose their husband as the husband has to choose a wife; the right to choose when to bear, and how many, children, their rights and duties towards children, and property. This important Convention does not excuse discrimination against women for any reason, including cultural, traditional or religious grounds. Women's rights are human rights. CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION [Moira Rayer] This prohibits any 'distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights and fundamental freedoms in political, economic, social, cultural or any other field of public life'. The Convention covers 'preferences' as well as discrimination, so it addresses prejudices and assumptions explicitly. It requires governments to prohibit and eliminate racial discrimination and guarantee equality before the law with respect to every human right, including those covered by other human rights treaties, such as the ICCPR. It lists a wide range of civil, political, economic social and cultural rights, and also explicitly covers the right of access to public places and services (such as access to public transport and buildings), but the prohibition on racial discrimination covers any right covered by any treaty, whether mentioned in the Convention or not. The Convention covers all kinds of discriminatory or prejudicial acts, but only in public life. In other words, racism in your own kitchen is not covered by it. This is quite different from CEDAW, which explicitly covers discrimination against women in the home as well. This is because women's disadvantaged status is precisely because of the importance of the home, and their duties in it, which seem 'private' but carry over into their public participation. It is not entirely clear whether this Convention also covers 'indirect' race discrimination - where there is no intention to act in a prejudicial or unfair way, but where it becomes obvious that the 'equal' law, or policy, or service, or circumstance in fact results in disadvantage because of a person's race. An example of indirect race discrimination comes from a key US decision. A company had a policy that it would only hire workers who had graduated from High School. The majority of the people in the neighbourhood were African Americans. The majority of those people did not graduate from High School, for a range of reasons related to their disadvantage social and economic status, and their historical position as descendants of former slaves. The 'indirect' effect was that they could never meet the condition of getting a job with the company, because of a characteristic of their race. Therefore, the policy was indirectly discriminatory. 'Race' includes skin colour, nationality, ethnicity and so forth, but not citizenship nor, in general terms, immigration laws. The Convention provides three exceptions to the duty to prohibit race discrimination:
|
