International Human Rights law - Essay Example

?INTERNATIONAL HUMAN RIGHTS LAW INTRODUCTION International human rights law is actually the body of international law made to preserve and promote human rights and this law can be enforced at domestic, regional, and international level. This law was formed to protect human rights on many levels, so that if rights are abused, unnoticed or violated on domestic level, then the suffering parties would be able to seek justice or plead for enforcement of rights on regional and international level. International human rights law differs from other legislations in that it basically aims to regulate the relation between state authorities and common people for enforcing human rights in terms of daily life matters.1 Proponents of international human rights law claim that according to this legislation, it is the duty of the international community to respond to any such situation in which human rights get violated due to any reason and take a quick and effective action against such human rights abuse cases. It is commonly seen in the present age in many different parts of the world that no matter how many rights are abused by the oppressive parties, the international community fails again and again to take any proper action. This shows that though human rights are declared to be universal, yet state responsibility for their violations is limited by territoriality as well as by citizenship.2 A state only takes notice of human rights abuses if the violations occur inside its own territory and if the affected individual or party resides in that state.3 Little or almost zero notice is taken of human rights abuses if the affected individual happens to be a citizen of another state. However, those in favor of this law suggest that there is an ever-growing impact of international human rights law on domestic legal systems all over the world which shows how effective this law is thought to be by domestic judges, prosecutors, and lawyers.4 The evolving legal situation suggests that even the daily work of those related to domestic legal systems in any way is seen to be heavily influenced by the international human rights law which would definitely not have been possible had this law actually lacked effectiveness.5 It is also claimed that this law has helped the states immensely in implementing and securing human rights obligations. This law also requires the relevant legal professions to carefully scrutinize the broad range of ways by which human rights can be enforced and protected from abuses. This law also fulfils the purpose of enforcing human rights globally to a great extent through international cooperation irrespective of sex, race, religion, or language.6 In short, this paper strives to present both sides of the picture and discuss that though international human rights law was developed to protect and promote different human rights and though it succeeds in doing so on certain levels, the approach taken for the protection of human rights lacks effectiveness on many levels too. In order to validate discussion, the relevant research is presented with special reference to the rights of the child and the women’s rights. MAJOR HUMAN RIGHTS CONVENTIONS FOR GRANTING RIGHTS TO CHILDREN AND WOMEN This remains a resolute reality that children need very special kind of care, love, guidance, and attention as they happen to be very raw, vulnerable, sensitive, and immature. But another deplorable reality is that many children around the globe are subjected to violence on extreme levels. Rights of children are severely abused by forcibly making them participate in camel races in Arab countries where every year, cruel and influential people seek entertainment at the cost of myriad innocent lives. Children are also unlawfully forced to engage in prostitution, pornography, and labor. Since children happen to be particularly and naturally vulnerable and innocent, so they also feel insecure and hesitate to seek refuge and help. Children need to depend on others so it is understandable that majority hesitates to exercise rights independently. It is the primarily important right of children around the globe irrespective of race, sex, religion, culture, or language to be rescued from negative societal attitudes like discrimination, neglect, and abuse, and this is also described to be the main objective of United Nation’s Convention on the Rights of the Child (CRC).7 CRC is actually a convention of 1989 of United Nations that sets very clear and comprehensive standards for protecting rights of children and specifies areas which should be focused for granting those rights.8 A fully developed committee comprising of ten experts is also established under Article 43 of the Convention whose function is to examine the progress of the countries party to the Convention as a strict monitoring body in terms of following United Nation’s rules and provisions.9 Actually, the bedrock of CRC is formed by four general provisions which specifically guide all the countries as to how to protect and promote rights of a child and transform mere philosophy into real life effect. These major provisions focus on rights of children to life, survival, and development, non-discrimination, thinking visions of the child, and valuable interest of the child. Every government and legal authorities should focus on these major four principles if betterment and social welfare of children is intended in reality and actions should be taken on international, regional, and domestic levels in harmony with UN’s CRC and international law of human rights. CRC also fulfils the rights of refuges children if the national and international official authorities actually strive to grant those rights to them in accordance with CRC.10 UNCRC is intended to enhance children’s rights and has a potentially worldwide impact.11 Rights of the refugee children are thoroughly covered by the four provisions or standards set by CRC. This is because under Article 2 of CRC, it is clearly stated that the CRC applies to all children without discrimination of any kind.12 CRC differs from previous and conventional international treaties in that it calls for solid actions to be taken by legal institutions, the State, and parents or guardians in addition to granting children from all backgrounds to freely hold and express their views.13 It creates rights for children in areas not considered earlier and expresses them very realistically and with a multi-dimensional approach. CRC is also distinguished from previous treaties in respect that it is actually the first ever legally binding international treaty which ensures provision of rights to children universally.14 Another worth mentioning convention is the Hague Convention on the Rights of the Child which provides more explicit and specific directions to the courts for passing judgments on abduction cases than the European Convention on Human Rights (ECHR).15 The judgment passed on the case In the matter of E (Children)16 in 2011 was largely based on Hague Convention of 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. In this case, conflict was born between UNCRC and Hague Convention because Article 3(1) of UNCRC 1989 requires that in all actions concerning children, their best interests shall be a primary consideration.17 UNCRC’s Art 3(1) can be found similar to other acts found in other conventions like its inter-relationship with article 8 of the ECHR18 was recently considered in the Court of Appeal in ZH (Tanzania) v Secretary of State case.19 Now, In the matter of E case was about children who were abducted by mother from father and transported from Norway to England without father’s consent. The lawyer, on behalf of the mother, argued that focus should be laid on best interests of the children and their preference should be given utmost importance. The father, not being able to support and look after the children, should not be given children’s custody. The father applied to Norwegian central authority to take action against the mother under Hague Convention on the Civil Aspects of Child Abduction 1980 so that the children could be returned safely to Norway where they had spent all their lives before abducted by mother. The Hague convention requires a requested state to return a child forthwith to her country of habitual residence if she has been wrongfully removed in breach of rights of custody.20 The Hague Convention operates through a system designed by national central authorities and by seeking to ensure that decisions on intercountry adoptions are made in the best interests of the children and to prevent illegal abduction of children, it reinforces the UNCRC (Art 21).21 As for the children’s right to family life and the right to hold their own views and express them with freedom, ZH (Tanzania) v Secretary of State is a very interesting case to be mentioned in this regard. In this case, the judgment passed by Baroness Hale was largely based on Art 8 of ECHR according to which, children’s views must always be taken into consideration when a parent is threatened of deportation due to appalling history and when removing such a parent would lead to heavy interference with the children’s Art 8 rights.22 Article 8 of ECHR suggests that every child has a right to private or family life and that a parent should not be separated from the child if such an action produces disproportionate interference with the child’s comfort and family life. No state authority can take any action against any parent in terms of deporting him/her forcefully if doing so interferes negatively with the child’s best interests.23 Under Human Right Act 1998 also, all public authorities like central legal authorities, the government, the courts, the police, and the immigration officers are prohibited to take any action which would result in developing gross incompatibility with the rights expressed in the Act.24 However, sometimes such decisions may also be taken which antagonize the provision expressed under Art 8 of ECHR to a certain extent. This may be done in situations where the parent presents any threat to the common public or is seen as danger to the local state. The court must determine whether any continued contact between child and parent is advisable, because granting custody or visitation to an abuser may expose the child to unfettered and ongoing harm.25 In such cases, the parent must be deported or detained no matter the child’s rights as mentioned under ECHR Art 8 go unconsidered. But, such measures should essentially be prescribed by law and should also be made in legitimate interests of the local community and state authorities.26 This shows that Art 8(2) of ECHR contains certain exceptions to the rights of children mentioned under Art 8 jut like Article 9, 10, and 11 but these limitations may only be justified if they are “in accordance with the law.”27 ADVANCEMENT OF INTERNATIONAL HUMAN RIGHTS LAW AT REGIONAL AND DOMESTIC LEVEL Considering the above discussion, saying that UN has as yet remained ignorant and sluggish towards protecting and promoting children’s rights is empty mockery. This is because UN has always strived to introduce better and modified versions of human rights laws, treaties, legislations, and statues one after another over time but due to errors made at regional and domestic levels, disproportionate provision of rights has repeatedly been reported. Particularly in areas where there is armed conflict, children’s rights are subjected to different kinds of abuses. Girls are frequently subjected to rape and other forms of sexual violence and are forced to play multiple roles including providing sexual services.28 Therefore, analyzing how international human rights law is implemented by state and legal authorities at regional and domestic levels holds extreme importance. Though states are obligated to protect and maintain the rights of common people in accordance with those as defined by the international law of human rights, still every state is free to design and adopt its own modalities for implementing the rights of international law. States should feel free to choose their own modalities for effectively implementing their international legal obligations, and for bringing national law into compliance with these obligations.29 Effective incorporation of children rights as detailed by international law into regional and domestic legal systems presents a tough challenge and introduces huge responsibilities for the state authorities, courts, and police departments. Since common people have no other option but to seek help from local courts upon seeing their rights violated by criminals or oppressors, so every judge, prosecutor, and lawyer working at domestic level should take it upon him/her to remain updated about the changing ways to incorporate the State’s international legal obligations into national law.30 Laws already practiced in a certain state almost always need slight modification to be brought into conformity with the international legal obligations and provisions. There should be only one legal system everywhere comprising of two interrelated parts, international and domestic law. People do not feel indignant and frustrated upon having their rights brutally violated because treaties or laws designed by UN are incapable of preserving rights, but mistakes are mostly made when there is flawed understanding and perception of international law at domestic level. States should consider that the international treaties can be incorporated into domestic courts by enacting a national law. One good example of such an incorporation is ECHR in UK, where that Convention was incorporated into British law by virtue of the Human Rights Act 1998, which entered into force on 2 October 2000.31 An example of a human rights case showing practical application of international law on domestic level in UK in recent years is the Pinochet case32 according to which, a former dictator Pinochet got deported to Spain by a British Magistrate to attend hearing for crimes of torture and conspiracy. The obligations to which the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment gave rise, were incorporated into United Kingdom law by Section 134 of the Criminal Justice Act 1988, which entered into force on 29 September 1988.33 CONVENTION ON ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN The United Nations General Assembly adopted the convention on the elimination of all forms of discrimination against women (CEADW) in 1979 and got introduced worldwide as an international treaty two years later.34 The basic purpose of CEADW is to ensure equality between men and women while also requiring the state parties to move progressively towards the elimination of all forms of discrimination against women.35 CEADW is capable of providing much well-deserved protection to women who as a matter of fact, are still most frequently subjected to violence, discrimination, and inequality. The state of social and economic welfare of women does not paint a very radiant picture either. Though maintaining equality between men and women forms one of the main building blocks of UN, still it is a deplorable reality that in many underdeveloped areas of the world, women are subjected to extremely harsh behaviors, they earn significantly less than women, and many times they are not even paid anything unless they give their consent to engage in unlawful activities like prostitution. Save the high level of rights provision to women by the legal authorities as seen in developed nations, the harsh side of the picture suggests that women hold a very inferior position in many cultures still and UN statistics reveal that majority of the world’s illiterate community is formed by women. All such harsh and deplorable realities suggest that though UN indeed made a great effort by introducing the international human rights law and encouraging nations across the world to implement it, still it has remained unable to grant rights as they should have been granted to women in many areas to a great extent. However, one good aspect of CEADW is that it explicitly acknowledges that discrimination against women continues to exist around the globe extensively and lays stress on the negative influence produced by such growing discriminatory attitude by stating that it violates the principles of equality of rights and respect for human dignity.36 The word discrimination is defined very explicitly in CEADW under Art 1 in which any distinction, exclusion or restriction made on the basis of sex...in the political, economic, social, cultural, civil or any other field37 is labeled as discrimination and legal authorities everywhere are encouraged and guided to take actions against discrimination on grounds of Art 1 of CEADW. Heavy stress is laid on ensuring equality between men and women in CEADW as a great number of issues can be solved smoothly by maintaining equality alone between the two groups. Problematic issues like prostitution, illiteracy, trade, and poverty arise among women because they are not considered equal to men under many societal standards. In underdeveloped countries like India and Bangladesh, girls as young as 12 years are forced to become a part of the prostitution ring for as less as a dollar per day. Such a deplorable reality intensifies the need to ensure equality to women so that future of nations could be stabilized. Art 3 of CEADW is centered on equality rights of women and requires all state authorities, law-making teams, courts, and governments to identify and remove the root causes of inequality due to which women are discriminated against in the society. It requires the authoritative powers to adopt effective measures including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.38 The agenda for enforcing equality between men and women everywhere is not just limited to this article alone, but stressed upon in fourteen subsequent articles39 of the convention and also in every other single international human rights treaty. Art 8 of the convention lays emphasis on representation of women on national and international level identifying that state parties should take all measures to provide the women with an opportunity to represent their governments internationally.40 CEADW is also distinguished in respect that it is the only human rights treaty which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations.41 However, though countries that have adopted the convention are legally bound to comply with the provisions and the constitutions of all states around the globe declare men and women to be judged on an equal level, reality is that rural women should be given a voice now as they do not have equal access to education, jobs, social, and economical rights.42 CEADW is itself not seen as a foolproof convention by many critics who claim that the inadequate provisions and mechanisms in the Women's Convention43 have led to markedly lower priority for women’s rights in societies where males are already dominant and oppressive towards women. Article 8 of ECHR grants an individual the right to private and family life, home, and correspondence. This implies that everyone’s private and family life should be respected and no power should be should by legal state authorities against an individual’s right as mentioned in Art 8. No deviation should be made in granting these rights and no interference should be made by a public authority with exercising these rights either except under conditions in which the national security interests are threatened in a democratic society. An example of a case brought into UK court House of Lords for rights provision is the Abdulaziz case44, in which three women Abdulaziz, Cabales, and Balkandali as applicants living in UK complained that their Art 8 rights were violated because their husbands were not granted entry in UK by the state authorities. Such an action taken by the state parties resulted in violating the rights of these three applicants to private and family life and the correspondence.45 In response, UK state authorities justified their action by arguing that neither Art 8 nor any other article of ECHR applied to immigration control. Both the European Court and the Strasbourg Court denied this argument by passing the judgment in favor of the three applicants who, while being lawfully settled in UK, were deprived the company of their spouses or threatened with deprivation of the company of their spouses. This case is a good practical example of the use of human rights legislation in the Scottish courts. There has been a rapid proliferation of human rights standards at the international and regional levels fifty years since the end of WWII and United Nations has always served as the primary forum for explicit elaboration of those standards.46 Considering the present deplorable state of rural women particularly in underdeveloped countries like India, Pakistan, and Bangladesh, the need of the time is that women’s rights issue should be integrated rapidly into human rights agenda because the effort and progress made by human rights community in doing so has been very slow as yet.47 CONCLUSION This much remains clear from the above discussion that though international human rights law contains many rights for the benefit of mankind but it also has its share of weaknesses and fails to be considered a foolproof law which could be exercised for the optimum benefit of the mankind without any difficulties. To a certain extent, the state and central legal authorities fail to acknowledge and preserve human rights which shows that this law lacks effectiveness and is found difficult to comply with by judges and prosecutors. A large part of ineffectiveness is based on the irresponsibility shown by the state parties who fail to make decisions in accordance with the international law and its sublets and not the law, itself. The domestic and regional law should be compatible with international legislation so that individuals resorting to domestic and regional levels for law enforcement would not be left deprived in any possible way. In this regard, states should commit themselves to ensure to the common public that their domestic law is as much compatible with the body of international law as possible so that people everywhere could benefit from the law designed by the United Nations. There are many regions in the world where human rights are repeatedly abused in a very obnoxious and significant way on daily basis but no law of any kind designed by the United Nations has proven to be powerful enough to enforce human rights in these regions. Similar paradox in international human rights law is that though it professes that states should commit themselves to strictly following the basic guideline format of the original law designed by United Nations, still the state authorities fail to recognize rights of people living outside the territory of a certain state. In such a case, state responsibilities plummet down since it is not considered important to take any notice of any violation occurring outside the state territories despite the fact that human rights are declared to be universal by international human rights law. When human rights are labeled as universal, then violations of any such rights should also be acknowledged universally. However, the situation regarding practical application of international human rights law, international treaties, and other conventions is not totally dark or hopeless since many cases in the courts of UK, in European courts, and everywhere else in the world have been resolved under different acts as mentioned in these laws and treaties. Incorporating acts contained in these human rights law in national and domestic laws is largely the responsibility of the central legal authorities in control in a state and the judges. The rights of the children and women are given high level of importance by UN always through every human rights law passed out since the earliest times, however making legal decisions based on them is not always an easy job due to negative societal and cultural influences like accepting the societal norm of ushering children into labor or forcing women to stay indoors denying them their rights to express themselves. 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