International Human Rights LAw - Essay Example

International human rights law International human rights law Introduction The European Court of Human rightsrejected an appeal by three British Christians (Shirley Chaplin, Lilian Ladele and Gary McFarlane) who were disciplined by their employer for refusal to counsel same-sex couples (Taylor 1). Accordingly, the same court had earlier awarded 2,000 Euros in compensation to Nadia Eweida, a British Airways attendant who was banned from wearing a cross at work. The court ruled that the employers were justified given their obligations to prevent discrimination against the consumers (Taylor 2).

The European Court on a legal basis can judge differently in human rights issues. Accordingly, competing rights present problems when governments are supposed to safeguard and protect the human rights (Arai-Takash 2002). There are various treaties, covenants and protocols that all countries must protect in order to safeguard the universal human rights govern the International Human rights law (Daniel, et. Al, 2010). The right to own property, form associations and freedom of expression are fundamental freedoms that are inherent on the individual (Morsink 1999).

The European Court of Human Rights has developed the doctrine of margin of appreciation that allows the court to take in to consideration the possibility of the member states interpreting the European Convention on Human rights differently (Arai-Takash 2002). The European Court mainly developed the doctrine in order to permit various restrictions on human rights and freedoms (Arnold. 2013). The court has observed that the contracting states have the first priority in securing the liberties and rights outlined in the convention of human rights and State authorities are in a better position than the European Court in enforcing such rights (Mowbray 2007).

However, Article 10 limits the powers of states in appreciation while Article 19 grants the Court the final authority to make a ruling on whether human rights or fundamental freedoms of an individual have been violated (Cameron 2000). In the judgment of Leyla Sahin 2005, the court held that Article 9 grants the citizens the freedom of thought and religion, but outlined that the role of national decision-making bodies should be considered especially in matters dealing with the relationship of the state and religion (Schutter 2010).

In the ruling of Wingrove v. United Kingdom (1996), the European Court held that it is impossible to achieve uniform conception of the significance of religion since the meaning will differ with regards to context and time especially in educational institutions (Kao 2011). In the case of Waite and Kennedy v. Germany (GC), no. 26083/94, 54, ECHR 1999, the court outlined that it was the primary obligation of member states to interpret the domestic legislation and comfort to Covenant on Human rights (Lester 75).

Accordingly, the Court in the case of Alekseyev v. Russia (2011) ruled that it was a violation of Article 11, 13 and 14 of the Convention for Russian government to prohibit peaceful assembly of lesbians and gay citizens (Mahoney 1998). Competing rights are those rights that conflict with the rights of other people (Gustason 1999). The diverse nature of the society leads to conflicts especially when individual exercises his rights in a group setting such as an educational institution or workplace (Cameron 2000).

ECHR recognises that all rights are equally important since the Convention guarantees the right of expression as well as the right to safeguard from discrimination (Foster, Azmi and Jacobs 2012). The ECHR advocates for a case-by-case analysis in order to try to reconcile the competing rights depending on the domestic laws existing in a particular member state. In making the final decision, ECHR ensures that the decision is consistent with the other laws or human rights laws. The European Court ruled that paternity violated Article 8 of the Covenant in the case of Tavli thus a balance between the rights of individual and community should be established (Foster, Azmi and Jacobs 2012).

Question two Turkey is experiencing civil unrest due to authoritarian stance of Prime Minister Erdogan. The right of press and freedom of expression was over the recent years. The incumbent government is not willing to accept violent riots and the government is willing to use the police to disperse protestors from the streets. Turkey ratified the ECHR in 1954 and the ICCPR in September, 2003.The ECHR recognises that freedom of expression as a fundamental and inherent right that should be strictly safeguarded by the states.

Article 19 (I & 2) of the UDHR grants all individuals the freedom of expression, holding opinions and right to receive and impart information through any media (Arnold. 2013). Accordingly, Article 6 of the ICCPR safeguards the Turkish demonstrators from arbitrary deprivation of life. Article 19 of ICCPR provides that member states must ensure that the domestic legislation safeguards the right to freedom, right to hold opinions, right to a peaceful assembly and right of association (Greer 2008).

In addition, Article 10 of ECHR is clear that is clarifies that individuals are entitled to right of receiving information without any public authority interference (Sweet 2003). The Individuals have the right of holding independent opinion on public affairs (Greer 10). The United Nations outlines that prohibition of torture cannot be amended by any treat since the Convention against torture outlaws all form of inhumane treatment and torture to the citizens (Michael 2009). Numerous international legal agreements, customary international laws and human rights laws grant the citizens the right to peaceful demonstrations in demand for better governance (Greer 2008).

In the above case, Turkey government can rely on several international legal grounds in support of legislation that will grant the police the right to disperse the protestors from the streets. The Universal Declaration of Human Rights, which is part of the customary international law, allows the States to make laws that can restrain individual rights in order to maintain public order. Accordingly, Turkey has ratified ‘International Covenant on Civil and Political Rights’ (ICCPR) and can rely on Article 19 (3) of the ICCPR in limiting the rights of protestors to movement in the streets.

In this case, Turkey government must prove that the law is necessarily for the protection of the national security and ensuring public order through preventing position violent protests and deaths in the country (Conte and Burchill 2013). Accordingly, Turkey can argue that the rights of peaceful citizens are threatened by the continuing protests. For instance, the rights of business to own property and work have been violated by the violent protestors (James 2007). In addition, Turkey government can rely on paragraph 2 of the ECHR to enact a law that limits the freedom of assembly and expression of the protestors.

Article10 outlines that such restrictions should be intended at ensuring territorial integrity, maintaining authority of judiciary, ensuring public safety or protecting the national interests (Donnelly 2003). Conclusion The Universal Declaration of Human rights (UDHR) of1948 is a universal standard that requires all nations to respect and promote the human rights of its citizens (Arnold. 2013). (Schutter 2010). Article 2 of the UDHR forbids all nature of discrimination against individuals based on some identifiable characteristics such as race, religion, nationality or any other characteristics (Donnelly 2003).

The ECHR has adopted the margin of appreciation doctrine that entails considering the existing domestic laws before enforcing the uniformity of its decisions. The Court also balances with the right of individuals with the rights of the community. ECHR and ICCPR provides for the right of expression and peaceful assembly. However, Turkey can pass a law forbidding public expression of the grievances on the grounds such demonstrations threaten the national security, public order and rights of other people in a democratic society.

Reference list: Arai-Takashi, Y. 2002. The margin of appreciation doctrine and the principle of proportionality in the jurisprudence of the ECHR. Oxford: Intersentia. Arnold, R. 2013. The universalism of human rights. New York: Springer. Cameron, I. 2000. National security and the European Convention on human rights. London: Prentice-Hall. Conte, A and Burchill, R. 2013. Defining civil and political rights: the jurisprudence of the United Nations Human Rights Committee. London: Ashgate Publishing.

Daniel, M (et. Al.). 2010. International human rights law. Oxford: Oxford University Press. Donnelly, J. 2003. Universal human rights in theory and practice. London: Prentice-Hall. Foster, L., Azmi, S and Jacobs, L. 2012. Balancing competing human rights claims in diverse society: institutions, policy and principles. London: Irwin Law Incorporated. Greer, S. ‘The margin of appreciation: interpretation and discretion under the European Convention on Human Rights’, Council of Europe, human rights files, No. 17, 2000. Greer, S.C. 2008.

The European Convention on Human Rights: achievements, problems and prospects. Cambridge: Cambridge University Press. Gustason, C. 1999. Religion and human rights: competing claims. New York: Columbia University Press. James, S.A. 2007. Universal human rights: origins and development. London: Prentice-Hall. Kao, G.Y. 2011. Grounding human rights in a pluralist world. Washington: Georgetown University Press. Lester, L.A. 1998. ‘Universality versus subsidiary: a reply’, European Human rights law review, pp 73-81.

Mahoney, P. 1998. ‘Marvellous richness of diversity or indivious cultural relativism’, Human Rights Law Journal, pp 1-6. Michael, G. 2009. Human rights & practice. Oxford: Oxford University Press. Morsink, J. 1999. The Universal Declaration of human rights: origins, drafting, and intent. Pennsylvania: University of Pennsylvania Press. Mowbray, A. 2007. Cases and materials on the European Convention on Human Rights. Oxford: Oxford University Press. Schutter, O. 2010. International human rights law: cases, materials, commentary.

Cambridge: Cambridge University Press. Sweet, W. 2003. Philosophical theory and the Universal Declaration of human rights. New Jersey: John Wiley. Taylor, J. 2013. ‘A loss for the Christian lobby: the ECHR ruling reinforces the crucial point that religious rights don’t automatically trump the rights of others’, the Independent, 15th January, 2013. Accessed on 4th June, 2013 from h ttp://www.independent.co.uk/voices/comment/a-loss-for-the-christian-lobby-the-echr- ruling-reinforces-the-crucial-point-that-religious-rights-dont-automatically-trump-the- rights-of-others-8452458.html.