Question 1 ‘Human rights have to be understood as claims about the nature of human beings that are both legal and political.’ Discuss.
Human rights are a philosophical concept as well as a series of laws. The thrust of the title statement is apposite.
The notion of human rights emerged as long ago as under Cyrus the Great in Ancient Persia. He did not enslave those captured in battle. He permitted people to practise any religion. Human rights is the notion that all people have certain fundamental entitlements. These are only to be taken away when absolutely necessary. Chief among these is the right to life. People are only to be killed when it is unavoidable during war or possibly as a judicial punishment. However, the latter ( the application of the death penalty) is increasingly rejected by human rights experts.
After Cyrus rights seemed to be only for certain groups of people – only free people or men. Slavery was practised almost universally.
Ashoka in India introduced a notion of human rights.
Plato the Ancient Greek philosopher realised that there was no moral basis to slavery. People were slaves simply because another had power over them. It was not that they deserved to be in servitude nor was another worthy to own humans. He said, ”You can imagine yourself being a slave and he can imagine being a master.”
In mediaeval England people had certain rights.. Magna Carta in 1215 was issued by King John to clam a baronial revolt. He said that free men had the right to property, a fair trial and so forth. Notice this did not apply to peasants. He also said that people were entitled to rebel if their liberties were usurped. There was a legal principle that there could be no taxation without consent.
It is disputed whether human rights are real. Jeremy Bentham MP was a jurist and philosopher. He believed that human rights were mere opinions.
In the 18th century the notion of human rights evolved rapidly due to the Enlightenment. People questioned religious shibboleths. The intellectuals in Europe began to respect reason. They demanded evidence to prove that things were true.
The American Declaration of Independence contains some human rights nostra, ”We hold these truths to be self-evident that all men are created equal. They are endowed by their creator with natural rights.” The use of the expression ”self evident” showed a lack of reason. It was mere assertion. The use of the term ”Creator” was quasi religious. They avoided saying God since the American Revolution aimed at a establishing secular polity.
The US Constitution was promulgated in 1788 and took human rights further. ”Life, liberty and the pursuit of happiness” were its goals. However, only men were represented. Most black people were still slaves. Even free black men were usually excluded from the franchise. New Jersey allowed women the vote for a few years but then took it away. The amendments to the constitution took human rights further. The first Amendment granted people the right to free expression. The political notions of human rights were being given the force of law. The US Constitution is valourised in the US. Almost everyone pays homage to it. However, its legacy is fiercely contested. The amendment allowing people to carry firearms is a source of much dispute. It is questionable whether this advances human rights or not.
The French Revolution did a great deal to develop human rights. In 1789 the revolutionaries issued the Declaration of the Rights of Man and of Citizen. In those days the word man was sometimes used to mean people and not simply males. This Declaration of the Rights of Man and of Citizen built on the human rights ideas of the American Revolution. The nostra of the revolution were summarised in the French national motto, ”Liberte, egalite, fraternite”. Women were briefly given the right to vote in France. Slavery was abolished in the French colonies. AFter the defeat of the French Revolution slavery was re-established.
The Napoleonic Code embodied some of the human rights ideas of the revolution. Its emphasis on secularism was done away with. Nevertheless in this reorganistion of French law the political ideas were put into law.
The idea of human rights began to spread around the world. Through the 19th century slavery and serfdom were abolished. Women gained more rights. Civil rights advanced. Literacy spread knowledge of these freedoms. More people were granted the right to vote.
Trades unions and socialist parties started to demand more social rights. Minimum wages and maximum working hours were introduced. Strikes brought pensions and free schooling. This was a case of political ideas turning into legal entitlements.
In the 20th century human rights developed through political reform and outright revolution. The Russian Revolution led to a government that decried any notion of free expression or pluralism. However, it gave women equality and spread literacy. There were large scale famines in the Soviet Union. However, by the 1960s everyone was adequately fed, housed and so on as well as being provided with free healthcare.
In democratic countries social rights advanced too. The newly enfranchised working class compelled even right wing parties to provide basic standards of living.
In AFrica and Asia decolonisation led to democracy. However, coups often brought dictatorships that did little for human rights.
Many international human rights agreements were signed in the 20th century. The most renowned is the Universal Declaration of Human Rights in 1948. The United Nations used this as a gold standard for human rights. It seemed to be something to aim for rather than a legal instrument. It called for very extensive social rights as well as civil rights. Many countries have legislated along these lines.
Human rights were made effective by the Nuremberg International Criminal Tribunal and the Tokyo War Crimes Trial. Here alleged war criminals were put on trial for their crimes. The defence argued that there was no precedent for this. Nevertheless they were found guilty in many cases.
One of the major debates about human rights is whether they are universal or culturally relative. The Universal nature of the UDHR suggests these are the same rights for all nations. Others have said they are made by Western liberals to be imposed on others. Human rights is sometimes denounced as an imperialist trick to excuse aggression. The thing is the UDHR has been signed by all nations. Some communist countries signed the UDHR and made almost no effort to enforce it. Many tyrannies have been formally committed to human rights. The UDHR signed countries up to free and fair elections in which all could participate. Some countries had no elections at all at the time. Many had single party election or polls that were blatantly rigged.
Women’s rights are seen differently in Islamic countries from non Islamic ones.
The International Convention on Civil and Political Rights also tried to entrench these rights in international law. Free elections, free expression and freedom of association have become more widespread since the ICCPR was signed in 1996. It is dubious as to whether or not this is a consequence which flows from the signing of the said accord.
The International Convention on Social and Economic and Cultural Rights was signed in 1966. It calls for free healthcare, free education, decent wages, paid holidays and the right to form trades unions. Since the signing of the ICSECR these rights have been granted and expanded in many lands. However, it is doubtful that international law had much to do with the diffusion of these rights. These are political choices that various countries have made. Moreover, economic advance has made such things affordable.
The European Convention on Human Rights was signed in 1948. It was drafted by the Council of Europe. This was a mutli national organisation that included many countries in Europe such as the Soviet Union and Turkey. The ECHR was a reflection of the political will not to have the horrors of the Second World War revisited on another generation. The ECHR enshrined the right to life, freedom from torture and the right to form a family. This was because in the Second World War all the fundamental rights were breached on an absolutely massived scale. The ECHR is administered by the European Court of Human Rights in Strasbourg. At first its rulings were advisory and not binding. Since the then the ECHR has been domesticated by all member states of the European Union. The rulings of the ECHR are now legally binding on all EU countries.
Human rights promise so much. Certainly at the beginning human rights was more honoured in the breach than in the observance. India abolished slavery over 200 years ago. Its governments have tried to advance equality and has often espoused socialist policies. Yet India has more slaves than any other country in the world. Grandiloquent declaration on liberty are worth little if enforcement is ineffectual.
It will be noted that civil rights came first. As the excluded – the poor, women etc – gained a voice they demanded social rights. Civil rights are worth little without social rights. As Oliver Wendell Holmes said ”a necessitous man is not a free man.”
Human rights instruments now come with machinery. There will be a commission to monitor the situation. There are reports made denouncing states for failing to honour their obligations. A special rapporteur will examine the situation. Much of this is under the auspices of the United Nations Organisation.
Most regions of the world have different human rights regimes. Africa is an example where there is the African Charter. The African Union oversees its implementation.
Human rights are written into international law. There is much argument about to what extent international law is law at all and whether international law even exists. There is a Vienna Convention on the law of treaties so very few would dispute that international law is law. The trouble is that international law is poorly policed. It is hard to uphold. In relation to human rights there is often a huge gulf between the law and the reality.
Human rights law tries to make morality legally binding. One of the most vexatious questions touching this issue is state sovereignty. By accepting that human rights is an area governed by international law a state pools its sovereignty with others. States are often reluctant to have their domestic affairs intervened in despite formally agreeing to this. They will often say a matter is an internal affair and the international human rights law mechanisms are intrusive.
In conclusion, it is certainly true that human rights form a body of political ideas. These are the focus of intense debate. Does the right to life extend to a foetus or not? Do women’s rights extend to the right to terminate a pregnancy when not medically urgent? These are political questions. Governments take a position on human rights issues and enact legislation to try to make these political notions a reality.
General remarks It is up to you to agree or disagree with the statement but it is probably best to agree with the statement made by this question as claims about the nature of rights are indeed both legal and political. You could discuss the evolution of human rights, cultural relativity debates and enforcement issues. All such discussions are relevant but knowledge has to be attuned to the question – in particular the relationship between the legal and political. Thus, for example, a discussion which examines the work in the abstract of the Commission on Human Rights and the Human Rights Council would not do well as this would not be focused on answering the question. Law cases, reports and other references the examiners would expect you to use UDHR 1948, ICCPR 1996, ICESCR 1966 and ECHR 1950. Common errors Simply discussing the history of the legal evolution of human rights. Or discussing it as a question about women’s rights, which it was not, although if women’s rights were used as an example of cultural relativity and it was part of a broader discussion that would be more acceptable. Some candidates had a pre-learnt broad brush answer on ‘what are human rights’ – these did not do well. A good answer to this question would… examine how the law of human rights – whether in terms of what the law is and/or the rights protected and as defined – is a reflection of politics. Thus, the drafting history of the UDHR highlights tensions about which rights should be protected and how. In a similar vein, you could examine the two 1966 Covenants and the different ‘generations’ of rights and the political discussions and disputes both over the nature of rights and obligations and further enforcement. Poor answers to this question… either deliberately misinterpreted the question or focused on one or two narrow issues without examining issues more broadly.
Student extract 1 “Human rights have to be understood as claims about the nature of human beings that are both legal and political”. This statement is one that can be indefinitely argued with, considering that all human rights documents have provisions and implementing systems that are a coherent part of the legal and political systems of the states parties. In light of documents such as the Universal Declaration of Human Rights 1948 this may well be true. Considering of course this document as a legally binding document. The preamble states that this document is the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family. Human rights are the foundations of freedom justice and peace in the world. This is indeed a claim that has legal and political basis.
Examiners’ reports 2015 3 Comment on extract 1 This candidate started by referring to the question, always a good thing to do for focus but the answer rather quickly highlights that the candidate has knowledge but has not planned their answer and thus does not have a clear idea how to tackle it. The candidate does not set out how, for example, the preamble to the UDHR refers to legal and political claims. Overall, in this answer there was evidence of knowledge but an inability to make the most of it. The answer achieved a high third class mark.
Student extract 2 The definition of human rights is complex and may not be wholly convincing. To understand human rights one must understand international law. International human rights are encompassed with in international law. There are debates surrounding the definition of international law and whether international law can be defined as law or not. The regulation and coordination of states in international law exists to facilitate the atmosphere, good faith and practice that ensure good relations amongst states. In order to understand human rights, the nature of international law is important. This necessitates a discussion on whether international law is law or not. This is a non-ending debate
. Comment on extract 2 This answer completely misconstrued the question so that a different debate could be entered into. The question asked candidates to examine whether human rights are legal and political in nature, not whether international law is law or not. While that may possibly be of very tangential relevance, it is certainly clear that it is not central to the question. The candidate did later in the answer go on to examine the relationship between international law being law and/or morality, which is closer to the question posed but it was not linked back to the question sufficiently. This answer was a fail.
Question 2 ‘As human rights require advocates, we have to understand that they only make sense if we have at least some sort of an idea of global civil society.’ Discuss.
First of all one must define the terms. By human rights we understand that body of international law which expresses broad ethical principles. These are expounded in documents such as the Universal Declaration of Human Rights, the European Charter of Fundamental Rights, the Convention Against Torture, Inhuman and Degrading Treatment.
A human rights advocate is someone who campaigns to uphold human rights. Such a person may be a jurist, a politician, a journalist or just a member of society. Eleanor Roosevelt was First Lady of the United States and a renowned human rights advocate. She was instrumental in drafting the UDHR. Her own liberal beliefs found its way into the UDRH. She also co founded Freedom House to monitor civil liberty around the globe. It produced disinterested reports on civil liberties around the world. It shows no selectivity in who it lambasts.
Global civil society consists of Non Governmental Organisations, governments, the United Nations and so forth. Amnesty International is an example of an NGO which is key in promoting human rights worldwide. Human Rights Watch also helps in this regard.
Charities such as Save the Children and Christian Aid are part of global civil societies. By relieving poverty they contribute to the right to life.
NGOs complement the official sector. The state is often inadequate in performing its duties to uphold human rights. Sometimes the state breaches human rights.
The UN has its own Human Rights COmmittee to have oversight of the human rights situation globally. The Human Rights Commissioner is the person in charge. There are regional human rights system. These tend to have a committee to look at the HR situation in the region and a court too.
The UN is the principal organ for promoting human rights. Article 55 of the United Nations Charter sets out social rights as something the UN must further. This is vital because it means that poverty reduction is a human rights imperative. The Economic and Social Council of the UN seeks to surveil this area of achievement. The UN General Assembly votes on such matters and elects countries to serve on the said council for a limited period.
The UN allows the use for force in the case of a threat to international peace and security. This is under Chapter 7 of the UN CHarter. Recently the consensus is that gross abuse of human rights can be sufficient reason to warrant the UN to authorise the use of force. Only the UN Security Council can authorise the use of military power for this purpose. Because certain countries are permanent members of the UN Security Council – France, the UK, the USA, China and Russia – this gives too much might to certain nations. This shows that HR to some extent is about what superpowers want it to be. They can denounce other countries and excuse their own wrongdoing.
The Rome Conference set up the International Criminal Court. This is a major advance for human rights. Many defendants have been tried there. Most prominent among them was Charles Taylor the erstwhile President of Liberia. This is the first time there is a permanent international criminal tribunal. Previously these have only existed on an ad hoc basis such as the International Criminal Tribunal for Rwanda or the International Criminal Tribunal for the former Yugoslavia.
Some people dislike human rights because this intrudes on state sovereignty. Those with extreme religious views believe that HR takes away the right to practise their religion. They fear that HR has a Western particularism to it. The cultural specificity is seen in the fact that it was mainly Westerners who drew up the UDHR. Those who believe in the universality of human rights stress that the same standards must be applied everywhere. Tyrants hide behind national sovereignty or religion as an excuse to abuse others.
Human rights have little value if they cannot be upheld. In order to promote human rights one needs organisations to monitor the situations. One needs international organisations to take action to address human rights abuses. This will require condemnation, refugee relief, sanctions, trials and maybe even military action.
General remarks The question explores the role played in the ‘human rights movement’ by civil society and how the advocates of such rights have changed over time. The increasing sophistication of civil society and its evolution and diversity should be traced. It is probably best to agree with the opening part of the statement but there is no correct approach to the second part of the question. Global civil society may be considered to be constituted of NGOs such as Amnesty International and Human Rights Watch but equally some human rights ‘advocates’ seek to limit the effect of the human rights movement, for example, large business seeking to avoid international standards which regulate their activity. The idea of a ‘global civil society’ is strongly contested and some candidates may challenge it as the imposition of ‘Western standards’ whereas others may consider it, on balance, to be a good thing. Law cases, reports and other references the examiners would expect you to use There are no common cases etc. to be used here but you could refer to the role of NGOs before treaty bodies such as the Human Rights Committee were part of the reporting process. You could also discuss the role of NGOs in setting up, for LA3029 International protection of human rights 4 example, the Rome Conference, which led to the International Criminal Court. You could also talk about individual advocates such as Eleanor Roosevelt and the role she played in the drafting of the UDHR.
Common errors Misinterpreting or not focusing on the question. A good answer to this question would… consider whether the legal protection of human rights does require advocates or not. This can be through proposing new laws, amending existing ones or with regard to scrutiny. You may examine all of these aspects and argue it was a good thing that civil society was involved as States cannot be trusted. The global poverty eradication movement could be used as an example of the positive contribution made by civil society.
Student extract 1 Human rights are universal, they cannot be human rights that are applicable to different countries, different sentiments or different individuals differently. Therefore there is no discrimination in any means in the standard of human rights when it applies to different countries. The problem is that different people give different and various levels of importance to human rights – people are used to having different opinions, where they are influenced by their background such as the culture, religion and where they take the necessity or importance of human rights with varying importance. It is this reason that gives validity to the statement in the question. Therefore it is true that human rights do need advocates. Not all human beings welcome the need for human rights of their society law for themselves.
Comment on extract 1 This answer tried to link human rights advocacy to cultural relativism in what turned out to be quite an ingenious and clever way. Although, as the extract highlights, the candidate’s idiom left something to be desired, the argument developed was that if human rights are to be universal then you need civil society to argue for that and develop and enforce standards. The candidate used some good examples – for instance, concerning children’s rights – and by answering the question in this way scored a good upper second class mark.
Student extract 2 United Nations was developed in 1945, its foundational document is the United Nations Charter which is an intergovernmental agreement. It can be said that it was established to construct the international community after the world war. Article 55 and 56 are central. Article 55 states that the UN shall promote high standards of living, equal job fulfilment and shall resolve international social economic and health-related problems. It also promotes the dignity and rights and fundamental freedoms of the individual. According to Article 7 of the UN Charter the principal organ of the United Nations are the General Assembly, Security Council and the Economic and Social Council. The Universal Declaration of Human Rights was adopted in a resolution framed by the General Assembly in 1948, the rights contained in the declaration of founded on the inherent dignity of mankind. The UDHR is the Magna Carta of human rights for the global community.
Comment on extract 2 This was a very general answer which lacked focus and also routinely went off on tangents to discuss matters that were not central to the question. Thus, although reference was made the UDHR (and later to the ICCPR and ICESCR), little attempt was made to relate this back to the role of civil society. Rather, the answer focused Examiners’ reports 2015 5 on human rights law development in general, which led to a marginal pass mark as opposed to anything higher.
Question 3 ‘A human right to development is no more than a rhetorical claim: development is an economic process ill-suited to human rights discourse.’ Discuss.
First off one must interrogate the question. What is understood by development? This means economic growth, abolishing illiteracy, reducing infant mortality, increasing life span, ensuring there is a cleaner environment, providing better housing, immunising people against illnesses, proving higher education free of charge, building better infrastucture (in terms of roads, telecommunications, hospitals and so forth).
There can be no rights for the dead. Therefore the right to life is the vital one. All other rights are dependent on this.
The Universal Declaration of Human Rights 1948 touches on these issues. The UDHR calls for the gradual abolition of fees for education and for a decent standard of living to be extended to all. They are developed further in the International Convention on Social, Economic and Cultural Rights. Various regional human rights instruments have extrapolated on these themes. The European Convention on Human Rights says that everyone is entitled to a fair wage, a basic standard of living and so forth. The right to freedom of association includes the right to form a trades union and go on strike. Trades unions aim at the improvement of wages and working conditions. The ECHR says that people are entitled to sufficient rest time and paid holidays. Social security is also guaranteed by the same convention. The African Charter embodies many of these nostra. The ECHR is legally binding on all member states of the EU even though the ECHR was drawn up the Council of Europe and not the EU. Public authorities in the EU are not allowed to act incompatibly with the ECHR.
The Irish Constitution entitles people to a free school education. This is a development right.
Left wingers tend to believe that the right to development is real. They do not consider it mere rhetoric.
Rights wingers tend to stress civil rights and de emphasise social rights. THey see this as giving socialism legislative force.
Social rights if they are human rights mean that finance, banking trade and so on are human rights areas. The great inequality in the world impoverishes most people in relative terms and impoverishes some in absolute terms. The fact that the UN has agencies addressing these matters indicates that this issues are related to international law. The World Bank, the World Food Programme, the World Health Organisation and so on all try to tackle penury. The mission statements of these said agencies state that they are furthering human rights. The United Nations Development Programme is explicit in saying that ridding the world of pauperism is a human rights imperative. Non UN bodies such as the World Trade Organisation and the International Monetary Fund also strive to promote development. These organisations have all embedded human rights aims in their mission statements. The eradication of poverty is recognised as crucial is human rights are to be enjoyed in any meaningful sense. Freedom of assembly is worth little to the starving.
Mary Robinson (President of Ireland and UN Human Rights Commissioner) said that economic development and human rights overlap. Kofi Anan (erstwhile UN Secretary General) said that development is a human right.
The New International Economic Order seeks to promote more parity among countries. Free trade should reduce poverty. However, many countries practise protectionism. The NIEO seeks to provide a basic standard of living for all people including healthcare and primary schooling. Infant mortality is to be cut to a certain level. It will rid the world of extreme poverty and ensure a decently paid job for all. These goals have not been entirely met.
The IMF helps poor countries with loans. It also links this to better governance and human rights. Until the 1980s loans were advanced that states could not repay. Odious debts were run up. Aid packages were pilfered by kleptocrats.Money was squandered on grandiose development projects that were unrealistic and bound to fail. The IMF also seeks to control inflation. Hyper inflation such as in Zimbabwe has affected the poorest worst of all.
Amartya Sen wrote ‘Development and Freedom’. He sees reducing poverty as a liberation for the wretched of the earth. Sachs concurs. The UN Secretary General Ban Ki Moon echoed these sentiments. The World Bank and IMF no longer stand aloof from politics. Economics and politics cannot be entirely separated. The world needs to address human rights concerns and development as being two sides of the same coin. As Sen observed a human can have little dignity and few rights worth exercising if he or she dwell in crushing deprivation. Too many people suffer woeful privation. The deepest poverty makes people unable to enjoy freedom of expression and so on. People are entitled to a living wage and social service. Socialist dictatorships which scored very low on civil rights sometimes score highly on social rights. Cuba is a case in point which outstrips the United States in terms of healthcare provision and free higher education. Social rights enhance one’s quality of life. Many state manage to provide both civil rights and social rights to a very high degree. Denmark is the best case in point since it tops the Human Development Index.
General remarks The question asks whether or not the human right to development has any substance, and whether or not human rights extend to matters like trade, international banking and financial stability. Commentators such as Mary Robinson would certainly argue that economic development and human rights can be combined, but this is subject to a number of critical voices. At least to some extent, bodies like the IMF, WTO and World Bank are adapting to see their ‘missions’ in terms of human rights but the critical question is whether or not the idea of human rights is enough to make what some would see as significant differences in the way in which trade, finance and development are organised. A good answer to this question would… examine the right to development and how it relates to individuals and the approaches of developing and developed countries as to what that right actually means. Further, there needs to be an examination of how bodies such as the IMF, World Bank etc. can take human rights considerations on board, but the best answers would examine the limits of such approaches. Very good answers could discuss all the above in the context of the New International Economic Order and the approach and failings of that venture as well as linking it with poverty eradication as a development/human rights issue.
Poor answers to this question… did not really engage in what is meant by development or the work of the IFIs. A few candidates considered development to be related to economic and social rights, which while correct, was not brought out adequately in their answers.
Student extract 1 The IMF is described as a permanent coordinating body that will encourage monetary cooperation. It understands its task in helping poor countries by ensuring that economic concerns are linked to the creation of better governance structures. The IMF claims that in doing so it is contributing to policies which limit poverty and further human rights. Example, high inflation rates affect only the poor, but in acting to control this the IMF gives the poor the opportunity to increase their own assets and thus to help themselves out of poverty. But the adjustments needed to overcome the struggle of poverty and keep human rights a right for the people may sometimes have negative effects on the poor.
Comment on extract 1 This was part way through an answer and the candidate had already set out development issues and the content of the right and its contested nature. The candidate then set out how human rights considerations had permeated the work of international financial institutions. The above discussion was in that context. The candidate further went on to examine the limits of what IFIs could do and then linked this to poverty eradication. This was an excellent answer to the question posed and coherently written, well-structured and detailed. The answer was awarded a first class mark. LA3029 International protection of human rights 6
Student extract 2 The former secretary general of the United Nations Kofi Anan has clearly stated that all people have a right to security and development. There is a proven correlation between development and human rights and for these reasons the United Nations Development Programme has been charged with employing a human rights approach into all its endeavours. The premise of the argument lies in that development is an economic process. This premise has been eroded as argued by Amartya Sen in his seminal work, Development as Freedom. Sen has argued that development includes the processes which allow individuals to freely live a life of value. This was reiterated by the current Secretary General of the United Nations in the General Assembly when he articulated that the aims of member states should be sustainable development which would lead to a life of dignity for all. Even the World Bank has withdrawn or evolved from its original held aim of non-involvement in human rights and political issues advocating good governance as the condition for income growth and development. Development is not just an economic process but influences human rights and their protection within states.
Comment on extract 2 This was again a very good answer to the question. Adopting a holistic approach to the question and using authors such as Sen (and later Sachs), it displayed a sophisticated understanding of a number of related but different issues. The answer was awarded a high upper second mark.
Question 4 ‘The concept of the human rights of women is a significant development of human rights thinking: instead of abstract ideas, we can now see that human rights belong to people who labour, suffer and desire a good society in which to live.’ Discuss.
Women’s rights is certainly an area of human rights. Women’s rights appear in the Universal Declaration of Human Rights. Feminist texts calling for equality have been around since the English Civil War. The Vindication of the Rights of Women by Mary Wollstonecraft was one of the first feminist texts. The Convention on the Elimination of all Forms of Discrimination Against Women is a vital women’s right instrument. The Optional Protocol of CEDAW has been signed by most countries. It extends women’s rights.
The title statement is certainly veracious in saying that women’s rights is a significant development of human rights. It is also a controversial one. The notion of gender equality was dubious in the Western World in 1948 when the UDHR was promulgated. The fact that there was any commitment to gender equality shows the cultural specificity of the UDHR. The idea of equality of the sexes is resisted even now in many Muslim countries. Saudi Arabia is the most notorious example. Even in non Muslim countries such as Japan gender rights hardly exist except on paper. In Japan despite women officially have the same rights as men in practise their role is subordinate.
The UN has a women’s commission to monitor the situation. The International Convention on Civil and Political Rights seeks to enhance the status of females.
One of the seminal cases on gender parity is AT v Hungary. In 2003 AT took a complaint to the UN Women’s Committee. She had been beaten up and harassed by her alcoholic boyfriend who was the father of her two children. AT was the mother of a disabled child. There was no women’s shelter in London for a woman with a disabled child. Hungary was found to be in breach of its duty to provide for women in this respect.
Human rights do belong to those who labour, suffer and exist in society.
For a right to be a women’s rights issue it must affect women as women and not simply as people. Women’s rights are special because women tend to be disadvantaged in many respects. Although females constitute over 50% of the world’s population they have far less than 50% of the income. Every society that has ever existed has been male dominated to a greater or lesser extent. The question is whether it is right to have a separate category of rights for women? Does that diminish their status as women? Does it discriminate against men? Should their be men’s rights too. Few people would answer yes to any of the foregoing. Women suffer disproportionately. Only in the last 100 years have women approached real equality. The same principle holds true for other groups. Is it right to have a human rights instrument for a particular continent, or for children or for disabled people? In fact there is nothing amiss about having these particular documents aimed at addressing the problems faced by certain groups.
Women’s rights are about equality of opportunity in terms of education and employment. Female illiteracy is higher than male illiteracy in many countries. This is despite women usually have higher verbal intelligence. Women are banned from some jobs in certain countries. For instance in Saudi Arabia women cannot be in the military. Women are rarely promoted in work in many countries. Women suffer sexual harassment in the workplace and are judged on their appearance. Actresses and female journalists suffer age discrimination far more so than men.
Female rights have advanced enormously through the 20th century. Women can have just as much education as men. They have the right to own property, to serves as jurors and to be elected to public office even in the most phallocratic countries.
Some educational institutions are still gender segregated. It is questionable whether this is good or bad for women. Some women want all women spaces.
Because of anti feemale discrimination in employment some countries have pro female discrimination. The UK Labour Party had all women short lists to ensure there were more female Members of Parliament. In the Republic of Ireland various public sector positions had to have a certain proportion of women. The United Nations Development Programme has some scholarships for women only.
More and more professions are open to women. In many countries women can do jobs that were previously prohibited to them such as in the military. More and more countries have had a women as head of state and / or head of government. In many countries certain occupations are open to women but in practise are overwhelmingly male dominated. For instance engineering where over 90% of engineers are men. It could be that more men have an innate aptitude for such subjects. No one doubts that women tend to be better at languages. There is also conditioning that leads people to favour certain subjects and careers.
Women often want access to contraception. Reducing the number of children born cuts poverty like nothing else. The wealthiest countries tend to have the lowest fertility rates. The poorest lands have the highest fertility rates. Countries with the best gender equality have the lowest birth rates. Most women want to control their fertility. This de couples sex from child bearing. Moreover, having too many children is a health issue. Having a small number of children gives a woman more dignity, better educational opportunities and greater career prospects. It raises the socio economic status of women.
Abortion is a deeply tendentious issue. In countries with good gender equality elective termination of pregnancy is available on demand. In some countries with good female rights records termination is somewhat restricted. In societies in which women are little more than chattel abortion is not permitted unless it is a matter of life and death. These include Iran, Pakistan and Yemen. In Chile some women speciously claimed to have an ectopic pregnancy and they were granted them. Therefore termination of pregnancy even when medically exigent has been outlawed to prevent any possibility of a non therapeutic abortion being performed. Many theocratic countries outlaw termination.
Abortion is also a thorny question for feminists because of sex selective abortions. In Indian female foetuses are sometimes terminated because families want sons. Sex determination tests – to find the gender of the foetus – are illegal but still occur. Many Indians are horrified by this practise of terminating a foetus because it is a she. In China baby girls are often terminated. The one child policy has made this even more widespread. Whether abortion makes for a good society or not is a very controversial question. Some people consider foetuses to be human as is said in the Inter American Declaration of Human Rights. Therefore to terminate an embryo or foetus is murder. Abortion is an issue which is culturally relative. Amnesty International now takes a pro Choice line which some see as misguided.
Women are often at greater risk of violence than men. They tend to have less physical strength and access to weapons. In many societies they are discriminated against by the police and courts. In some countries sexual assault and rape are not dealt with properly. In some Islamic countries reporting a rape can lead to the victim being incarcerated. Islamic Law sets the bar for a conviction absurdly high. There must be four men of blameless integrity as witnesses. This burden of proof is virtually impossible to meet. A women who says she was raped and cannot provide such witnesses will be sent to prison for having had intercourse outside of marriage.
Many countries have gender discrimination in law. This can be like Singapore where a Muslim man gives his nationality to his wife but cannot take it from her. Polygamy is allowed in countries such as Sudan but polyandry is never allowed. Monarchies often favour males over females. Women are excluded from being religious leaders. In one sovereign state – the Vatican – women are blocked from all positions of power. There is gender segregation in Saudi Arabia.
Women are often married against their will. SOme lands have no legal precept of martial rape. Under age marriages are common in underdeveloped countries. The least developed countries tend to have the worst situation for women.
In conclusion, Women’s rights are a vital area of human rights. WOmen’s rights relates to work, suffering and so on. It is crucial to further the cause of human rights. This will enhance the liberty of men too.
General remarks A central issue in this question was to consider to what extent do the idea of the human rights of women move away from an ‘abstract idea’ of human rights? It is arguable that developing concepts and practices of human rights for women have made for the invention or elaboration of rights to cover, for example, concerns such as health care for women and relationships with fertility and children. It is possible to argue that these developments have moved rights into new areas, but, it would perhaps be a little artificial to suggest that. It is more accurate, however, to argue that developing human rights for women has enlarged the concept of human rights and our understanding of the dignity of the human being. Women-specific rights and the Women’s Convention focus energy and resources into such issues and work towards their realisation. Women’s rights, however, are a very clear basis for contention on the basis of culture/religion. Be careful not to focus solely on this aspect to the detriment of the other issues raised by the question. Law cases, reports and other references the examiners would expect you to use Women’s Convention 1979; Articles 2, 3 and 26 of the ICCPR. Some of the individual petitions before the Women’s Committee such as AT v Hungary.
Common errors Describing each of the provisions of CEDAW, which is simply not necessary. Simply discussing examples of the violations of women’s rights in certain specific States. Examiners’ reports 2015 7 A good answer to this question would… consider the issue of rights of women and how they have increasingly been developed in various ways – equal treatment, access to health care etc. – and been realised in some contexts. Very good answers would highlight how women’s rights issues are not uniform across the globe and question whether what were perceived as women’s rights were rather ‘Western women’s issues’ and not ‘women’s rights’ issues per se. Poor answers to this question… tended to focus almost entirely on cultural relativism, which, while relevant, was not the central focus of the question, or they tended to overly focus on the reality of women’s rights in parts of Asia and Africa. Again, while relevant, this was only one aspect of the question.
Student extract 1 In many developing countries, the spread of human rights is embedded in the socio-economic context in which women have comparatively little power, limited legal rights, less access to info etc. This subsequently affects children whose life is dependent upon adults. There is still a need for some sort of relativist intervention as they are all so different and because of this does not mean that they ought to be discriminated against. There exist many subsets of women around the world, so the protection of solely human rights will be useless to women in plight in India, Africa and seeking refugee rights. In recent years, the UNDP has been working to try and increase women’s participation, for example, providing university scholarships.
Comment on extract 1 This answer is a good example of where there is knowledge of the issues but a failure to appreciate the actual question, instead writing a pre-conceived answer on women and cultural relativism. Although the answer contained some good material, it focused heavily on the cultural relativism aspects and expanded in detail on the issues addressed in the extract. This was a low lower second answer.
Student extract 2 This statement leads us to wonder whether women’s rights are human rights at all or a separate entity of their own. It has been argued by some commentators that the establishment of human rights conventions for minorities would seem to suggest that they are not deserving of rights in their own right and that they are excluded from the more general international regime protecting human rights until they have received the Convention speak specifically to them. Could it be possible therefore that women fall into this category? I argue that the development of the Convention on the Elimination of all forms of Discrimination Against Women and the subsequent Optional Protocol are important because they mirror the rights contained in the International Bill of Rights but also contain specific provisions which address individual and differences that women have. While the Convention may have its faults the quotation above does represent an undertaking of the development of women’s rights.
Comment on extract 2 This was the opening paragraph of what was a superb answer which was awarded a first class mark. The candidate answered the question posed, looking at how women-specific issues did lead to the evolution and development of human rights as an idea while at the same time ensuring that human dignity is protected and leading to evolution of the meaning of a decent existence. The answer tackled almost all issues which the question raised in some way or other and was one example of an outstanding answer to this question. LA3029 International protection of human rights 8
Question 5 ‘If the prohibition of torture under international law is among the most comprehensively protected of all rights, its widespread violation highlights the futility of international human rights law.’ Discuss.
Torture most certainly is outlawed under international law. The Convention Against Torture, Inhuman and Degrading Treatment has been signed by almost all sovereign states and ratified. For centuries people have inveighed against the abhorrent nature of torture. The CAT also has an Optional Protocol which most countries have signed.
The CAT is often breached but the situation is better than before it was signed. In the Second World War all sides uses torture. Some countries such as Japan used it on an enormous scale. This was not merely about slapping people but inflicting the most sadistic cruelty.
The CAT is not entirely effective. No law has ever met with absolute compliance. The CAT has reduced the incidence of torture. The CAT is perhaps unrealistic in not making allowance for ticking bomb scenarios. No war has ever been fought by entirely lawful means. A war is about the lesser of two evils. People say that torture is immoral but also useful since it renders false information. This is true but it also render true information that can then be verified. If torture saves lives then surely it is occasionally justified.
General Augusto Pinochet was the president of Chile from 1973 to 1990. Under his time communist terrorist suspects were detained. It is widely alleged that torture was used on a grand scale by President Pinochet’s minions. In 1998 he visited the United Kingdom for medical treatment. He was arrested. He was charged with several offences including authorising torture. He was eventually set free because he was not medically fit to stand trial. The very fact that he faced extradition proceedings (Spain had sought to put him on trial) was seen as a huge step forward. It is a disincentive to others to use torture. On the other hand it made other dictators such as Gaddafi and Al Assad fight to the bitter end lest they face trial for their crimes.
The CAT is not well enforced. There is considerable selectivity in the way it is used.
The United States has been honest enough to proclaim that is uses water boarding. Hundreds of people have been subjected to this treatment. Khalid Sheikh Mohammed had undergone this procedure on dozens of occasions. This is surely banned under the CAT which is very comprehensive in its definition. If this treatment is not torture or not inhuman it is at least degrading since it causes severe mental suffering.
The Israeli Government used moderate physical pressure on suspected enemy fighters. Many would say this is tantamount to torture. B’Tselem and the Public Committee against Torture in Israel protest against these practices.
The European Convention on Human Rights bans torture. This is true of all regional human rights documents.
Amnesty International and Human Rights Watch have been very active in campaigning against torture as the most ghastly offence against human rights. A UN Special Rapporteur is tasked with examining allegations of torture and reporting on the situation.
More and more people have been prosecuted for torture.
A v Secretary of State for the Home Department. This is a British case which prevented the UK Government acting on intelligence obtained by torture used by another country. The United Kingdom has found it very difficult to extradite people to face charges of terrorism abroad because there was a significant risk these people would be subjected to abusive treatment. This makes these countries less inclined to mistreat suspects otherwise they will not be able to gain the refoulement of wanted persons.
Hamdan v Rumsfeld is a US case. Here is was found that the methods used by the US military were lawful despite being widely denounced by other countries. The War on Terror has been used as a reason for the United States to wiggle out of its obligations not to torture.
In the United States waterboarding has now been stopped. The very fact that the US Government openly committed these actions for several years with Supreme Court approval is a sign that the CAT is only semi effective. Republican presidential hopefuls such as Trump have called for worse than waterboarding. Some Americans have pleaded that there is a special situation and that permits waterboarding. The CAT makes it crystal clear that the obligations arising under the CAT are non derogable. No urgency and no superior order entitles anyone to torture. The US has been condemned by the UN for waterboarding. This shows that enforcement of the CAT is feeble. The enforcement of it leaves much to be desired as can be said of most areas of international law. It is still far better than having no such prohibition at all. If that were the case then people would torture with impunity. The US has stopped well short of the worst cruelties and was fairly selective in whom it waterboarded. Even then 25% of those put through this were found to be innocent. The Vice President Dick Cheney said this did not bother him one whit.
The means that were used to take detainees were taken to Guantanamo Bay seems to be a violation of human rights. The conditions of their confinement were also bad.
Many other countries torture on a much wider scale. These include Iran, China, North Korea and Russia. Western countries have lost their moral authority to denounce abuses by other countries since they themselves connive at torture.
Ireland took the UK to the European Court of Human Rights over allegations of torture. The UK won the case but was found to have engaged in inhuman treatment – not torture.
Torture is less commonly practised than it was. Prior to the Second World War torture was so common that people often did not even complain about it. It has been illegal in the United Kingdom since 1709. Lesser acts of violence against those suspected of serious crimes were fairly frequently used by the police in the UK until the Police and Criminal Evidence Act 1984. The human rights situation has certainly ameliorated due to the CAT and similar laws.
In conclusion, torture and the like is definitely forbidden under international law. Torture is committed as all crimes are committed. Because there is not total compliance with the law is no reason to assume that the law is without value.
General remarks This question allows you to discuss the substantive right as well as the specialist mechanisms/procedures to tackle torture. You could tackle the issues raised in any coherent order but the issues to be tackled include the prohibition at the regional and universal level. At both levels there are general prohibitions (e.g. Article 3 ECHR, Article 7 ICCPR) as well as right-specific mechanisms (e.g. UNCAT and ECPT). There is also the UN Special Rapporteur. You could highlight the procedures under these treaties/mechanisms although the discussion should focus on the specialist right-specific regimes and not how the ECHR, for example, functions. You should also address the scope of the substantive right, the absolute nature of the prohibition – if that is realistic – and the fact that it is a normatively superior prohibition. You could also consider the detainments at Guantanamo and the implications of the ‘War on Terror’. Very good answers would pull in themes from across the course which are pertinent, and discuss whether the widespread violation of the prohibition means that the entire human rights project is futile. Law cases, reports and other references the examiners would expect you to use ECHR, ICCPR, UNCAT, OP to UNCAT, A v Secretary of State, Hamdan v Rumsfeld.
Common errors Discussing almost solely techniques of ill treatment and/or the ‘war on terror’. While of relevance these are not the central focus of the question. A good answer to this question would… discuss the substantive prohibition as well as the specialist mechanisms/procedures to tackle torture.
Good answers would also consider the absolute nature of the prohibition and if that is realistic when faced with ‘terrorists’. Poor answers to this question… focused on one or two relevant issues to the detriment of the others raised by the question. Student extract 1 The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment provides the main mechanism in international law along with Optional Protocol of 2002. A close review of articles of the Convention shows that they are rights provided to persons with obligation placed on states to ensure those rights to limit torture. Therefore for our first element we may conclude as the international law is concerned, prohibition of torture is well established. Violation of torture law is evident in many countries. The violation is widespread or not that remains debatable. The violations are widespread if we considered the obligation placed on states to ensure that torture is limited. However, if we consider thus that degree of severity it may not be so widespread. I will consider few cases in short from here the major violation in recent time took place in the so-called war on terror. Suspects of terrorism were detained in many parts of the world including Guantánamo Bay.
Examiners’ reports 2015 9
Comment on extract 1 This is a good example of a candidate who focused primarily on one issue – in this case the ‘war on terror’; and did not seek to explore the other issues raised by the question. Although competent in what it sought to do, the answer was awarded a low lower second as it was too limited even though it displayed reasonable, and at times good, knowledge of the issues. The fundamental shortcoming was a failure to tackle the actual question posed.
Student extract 2 This question raises two issues. First, it considers torture to be a comprehensively protected right, we must examine if this is correct. The second issue is that if torture is so well protected and then violated, does that mean that all human rights protection is futile. The assumption is, if the best protected right is widely violated, then lesser rights must also be violated and therefore human rights law is ineffective. This is a complicated and controversial set of contentions. In this answer, I will first examine, whether torture is comprehensively protected. I believe it is and will set out why. Second, I will examine whether torture is widespread. Again, I believe it is but this has nothing as such to do with the law. This is very clear if we examine the war on terror. Finally, I will argue that just because torture is practised, it does not mean that the protection is futile. I will argue that put simply, at times States cannot be prevented from doing certain things even if they are illegal.
Comment on extract 2 This is a very clear, well-structured and coherent opening paragraph which seeks to answer the actual question posed. One of the key things to note, beyond the clarity of approach, is the fact that the candidate deconstructs the question, identifies the different aspects of it and then seeks to tackle them. What is also worthy of note, is that this candidate, like the candidate above, also used the ‘war on terror’. But in this case it was used as an illustration with a view to answering the question posed and not as the focus of the answer. The answer displayed very good knowledge and, most importantly, answered the question fully. The answer was awarded a high first class mark.
Question 6 ‘The 1951 Geneva Convention on Refugees and the 1967 Protocol sought to strike a delicate balance between the needs of those fleeing persecution and the interests of receiving States. The reality now, however, is that the Convention and Protocol have been overtaken by events and they impose an unacceptable burden on States receiving those fleeing persecution.’ Discuss.
First of all one must be clear on what the Geneva Convention on Refugees is.
The Geneva Convention on Refugees define what a refugee is. It also states how refugees are to be treated. This states that they are to be provided with adequate shelter (not necessarily housing because they could be in tents), nutrition, medical care and so forth. Minors shall be provided with education free of charge. If claims are held to be valid then refugees shall not be detained and will be permitted to work. A refugee is not to be subject to refoulement if he or she faces a significant risk of persecution. ”A well founded risk of persecution” could be on political, religious or racial grounds. Refugees are to be given the same social benefits of those who are citizens of that country. Refugees can lawfully be excluded from political rights. Refugees who are the spouses of citizens of the receiving country must have a pathway to citizenship. The same is true of the parents of citizens of that country. Refugees are to be protected from violence and must be allowed to practise their religion.
The receiving countries are granted various safeguards. If a refugees commits a grave crime he or she may be sent back.
The Geneva Convention on Refugees was drafted shortly after the Second World War. There were millions of displaced persons. Israel was founded by refugees. It was not intended to apply to economic migrants.
The Geneva Convention guaranteed refugees a minimum standard of treatment. It said that refugees must seek asylum in the first safe country they came to. They were not to pass through several safe countries to reach a prosperous one. That is illegal economic immigration.
Since the 1950s people have become much more mobile. Rather than traveling overland to another country to claim asylum in an adjacent country people often travel by plane. They may well travel thousands of miles to lodge a claim for asylum. More people speak English and other world languages. They have greater access to information. They are more inclined to travel far to claim asylum. Many people indulge in asylum shopping. That is to say they do not necessarily seek asylum in the nearest safe country. They may well travel through several safe countries and claim asylum in a wealthy land. For example, many Syrians travel through a dozen safe countries to the United Kingdom.
The duty to refugees builds on the core human rights of the right to life and the right to human dignity. This is why states which are civilised are duty bound to help the sojourners. States can be the worst abusers of human rights. In the best countries the state is the guardian of these rights.
The 1966 Protocol to the Geneva Convention on Refugees takes the rights of refugees further. It has been signed by most states. The 1967 International Convention on Civil and Political Rights also grants rights to refugees. These instruments weight the rights of the refugee against the rights of the receiving state. One must not make matters too difficult for the receiving state. Upholding the convention should not be too costly. It should not be that asylum seekers get jobs and benefits to the detriment of nationals of the receiving state. If the convention is too hard to comply with then states will withdraw from it.
The 1966 Protocol came about because there were more displaced people owing to Cold War conflicts. These included the Indochina conflict, the Congolese Civil War and the anti Portuguese uprisings in Angola and Mozambique. Dissidents from communist countries fled to Western countries. Could these dissidents be sent back or must they be granted asylum? Western politicians sometimes wished to curry favour with communist governments by returning refugees to face torture and death. Judges made decisions that were highly inconvenient for politicians.
The United Nations High Commission for Refugees tries to monitor the situation. It also runs camps for refugees.
Women fleeing domestic violence have been granted asylum. Americans fleeing the draft got asylum in Canada. A gay Romanian was granted asylum in the UK in 1998 because there was a law against homosexual acts in his country.
Some people such as Sir Max Hastings have argued that the asylum system is untenable. Because of the millions of people on the move the system cannot work. The United Kingdom cannot absorb the millions who would come to it.
Courts have been increasingly reluctant to expel refugees. Karakaran v Secretary of State for the Home Department is a case where a Sri Lankan national was permitted to stay in the UK on dubious grounds. A refugee does not have to prove positively that he or she faces a considerable risk of persecution. The fear must be reasonable even if exaggerated in the mind of the individual. Note that persecution does not mean a risk of death or even any personal violence. People who are discriminated against by law or in practise can gain asylum. Most asylum applications are found to be false but such people are often given exceptional leave to remain.
Regina ex parte Sivakumuran v Secretary of State for the Home Department
ex parte Vilvirajah v Secretary of State for the Home Department. In those conjoined cases six Tamils all citizens of Sri Lanka were allowed to remain in the United Kingdom due to a House of Lords decision. This laid down that the UK must not return people to a country where their freedom will be threatened.
An Indian man was granted asylum in the UK in the 1990s because he faced torture in India. This was despite the fact that he had been engaged in terrorism against his own country.
The risk to a person can be individual. It need not be general such as belonging to an ethnic group or religious community that is discriminated against.
In Al Ghafaji the Netherlands had to grant asylum to an Iraqi couple. They did not claim to be personally targeted despite the fact that the uncle or Mr Ghafaji had been murdered and they received a death threat. The issue went from the Dutch Raad van Stade to the European Court of Justice. The ECJ handed down A judgment in favour of the applicant.
The European Convention on Human Rights outlaws the death penalty and torture. EU countries will not send people back to face the death penalty however convincing the evidence is against someone. Countries where torture is commonly used find it very hard to get United Kingdom courts to extradite people. The United Kingdom took years to extradite Abu Qatada to Jordan because he might be tortured. Jordan gave diplomatic assurances that this would not happen.
Many people feel there is too much immigration. This is evidence by the rise of the United Kingdom Independence Party which campaigns for controlled immigration. Many economic migrants falsely claim to be asylum seekers. They often arrive illegally and without travel documents. They sometimes claim to be from a country with a civil war such as Afghanistan when in fact they are from somewhere else. The cost in benefits and in keeping people in asylum seeker detention centres is very high. Asylum seekers often complain that all the free things they receive are not enough. If they are allowed out of the detention centre they are not allowed to work until their claim to processed which can take months or years.
The Syrian Civil War has inflated the number of asylum seekers. There is an ongoing conflict in Afghanistan. Because of anarchy in Libya many people have fled that land. Many Afghans go to neighbouring Pakistan where they have people who can speak their language – Pashto. Pakistan can ill afford to host millions of people. Western countries have contributed to the problems in Syria and Libya and are therefore compelled to assist the refugees afflicted by the conflicts there.
In Australia there is a policy of offshore processing centres. This is cheaper for Australia. It has prevented a huge flood of refugees overwhelming Australia’s capacity to cope. Some people in the UK advocate the same thing. The United Kingdom has a land border only with the Republic of Ireland and no refugees come from there. Many illegal immigrants in France strive to get to the UK. They are blatantly not refugees because they are simply trying to get to a wealthier, English speaking country without compulsory ID cards.
The Geneva Convention on Refugees has placed a very heavy burden on countries such as Turkey, Jordan and Lebanon which receive huge numbers of refugees in proportion to their populations. The current system is workable so long as wealthier countries contribute more financially to providing for refugees. The situation is not helped by people tolerating illegal immigration in the guise of seeking refuge. So-called Refugees who cross safe lands to go to rich ones should be sent back as the illegals they are. Far left politicians welcome illegals and call people Nazis for seeking to uphold humanitarian law. Some people grandstand their much vaunted compassion. Pharisaical pro immigration fanatics denounced others for trying to stem the tide of illegal immigration. There are proper channels to apply through for immigration. Those who do it the proper way are mistreated when illegals jump the queue.
Criminal gangs profit gratefully from people trafficking. Some refugees are enslaved or forced into prostitution. This is because leftards have incentivised crime. People travel un dangerous conditions and often drown because they go on boats that are no seaworthy. the sometimes die in lorries without ventilation. Truck drivers face violence for refusing to take illegals. The current system is unworkable due to the greatly increased numbers of people claiming asylum and the long distances they travel.
General remarks You could choose to either agree or disagree with the question but the aim is to examine what the 1951 Convention is and how the 1967 Protocol amends that. You should examine, in light of the question, the background to the Convention and how a regime and approach focused on time specific events in Europe became the basis for a global regime. You should consider what a well-founded fear is, and the grounds set out and how they have been interpreted.
Better answers would consider the scope of the grounds and their focus on civil and political rights and also how the Courts in some States have sought to extend some of them – for example with regard to women fleeing domestic violence and those persecuted due to their sexual orientation. You should also consider at least some of the rights of refugees and their entitlements if awarded that status. These issues need to be considered in the context of ‘events’ and it is up to you how you interpret this.
LA3029 International protection of human rights 10 Be it conflict, ease of travel, economic migration and so forth. At heart, the 1951 Convention was a delicate balancing exercise and the aim of the question is to challenge you to consider if the balance struck in 1951 is still acceptable to States. Law cases, reports and other references the examiners would expect you to use 1951 Geneva Convention, 1967 Protocol, ICCPR 1966, Ex p Sivakumuran, Ex p Vilvirajah.
A good answer to this question would… look at the background to the 1951 Convention and 1967 Protocol and the tensions inherent in them – the attempt, on the one hand, to afford refuge and the continuation of a life of dignity for those persecuted but, on the other hand, seeking to recognise the ‘burden’ on host states of affording protection. Very good answers would focus on the narrow grounds – which reflect a Cold War ideology – and the evolution of some of those grounds by Courts but also the issue of individualised risk not a general one. Poor answers to this question… did not tackle the key legal issues and discussed migration and the plight of those seeking refuge from war or a better life.
Student extract 1 ”According to Hannah Arendt, even those of the most basic and fundamental rights, such as the right to freedom and development life do not desire to the human subject through mere impulsive existence of the world but due rather to the attachment to social and political organisations known as the state. She argues that the refugee introduces into a nation state a class of persons who are denied the equal rights of citizenship, the very rights upon which the legitimacy of the nation-state depends. She insists that there is no solution to this problem therefore how can a refugee rely on the state to protect their rights when it is the state itself that has been persecuting them.”
Comment on extract 1 This was the opening paragraph of an answer. It was clearly a pre-learnt answer on the general issues of refugee law and asylum which also displayed an awareness of contemporary events, such as mass crossings of the Mediterranean as well as the hosting of Afghani refugees in Pakistan. Thus, although the candidate had relevant knowledge they did not focus that knowledge on answering the question posed. This was a shame as the opening extract displayed at least an awareness of some of the tensions and issues raised by this area of law. This answer secured a high third class mark.
Student extract 2
”Some of the reforms proposed are essentially focused on creating transit centres either in Europe, at its border or in nations outside of Europe. The system of regional centres also includes a proposal for regional protection areas but those asylum seekers who failed to be accepted can be accommodated here. The proposals effectively shift the burden of asylum to countries that do not have the economic resources of somewhere like United Kingdom. Human rights are seen to have little meaning in Sudan as they have both explicitly and implicitly engaged in the destruction and displacement of the country. Various organisations have described the situation as the worst in the world, States who could intervene have shown a willingness to downplay human rights abuses. The definition of refugee is outdated as is its notion of exile as a solution to refugee problems, it confers no right of assistance of refugees unless and until they reached signatory country.”
Examiners’ reports 2015 11
Comment on extract 2 This was the latter part of the answer. The candidate had set out the key issues and was at this point trying to highlight how developed States were seeking to find ‘solutions’ to the flow of migrants coming to their borders. This was part of a series of discussions trying to highlight how ‘events’ had led to tensions in the 1951 Convention regime and how some States were seeking to deal with them. On the whole this was a sophisticated answer which sought to answer the question itself and address the issues raised. It was awarded a mid-upper second mark.
Question 7 ‘The African system for the protection of human rights is defined by normative development which is broad and precise but is coupled with weak and ineffective enforcement.’ Critically analyse the above statement.
At the outset one must define what the African system for the protection of human rights is. Then we shall analyse how broad and precise it is. Lastly we shall assess its enforcement.
The African system for the protection of human rights is based around the African Charter on Human and People’s rights. Notice that it has ”human” and ”people’s” as two separate words. Human is for the individual whereas people is for a group such as a nation. Herein lies tension. The African Charter states that all the classical civil rights exist. It then goes on to list various social rights. It says that no one should marry below the age of 18. It guarantees the right to practise a religion. The trouble is this can clash with women’s rights. It does not state that there are gay rights.
The African Charter has a Protocol on the Rights of Women. It also has a Declaration on the Rights of the Child. Women’s rights in Africa tend to lag behind the situation in other countries. Women tend to have considerably less wealth and education than men. Many societies are masculinist. Abortion is illegal in many African countries. Many feminists consider this to be dreadful. African countries have among the highest fertility rates in the world. This correlates strongly with female disempowerment.
The African Charter emphasises that self-determination is an over arching rights. The document is stridently anti imperialist and stresses pan Africanism. It allows for intolerance towards dissent. Dissentients were frequently dismissed as imperialist stooges. It says that AFrican states must not allow dissidents from another state to seek asylum. However, all are enjoined to assist in the anti colonial campaign. This is ironic since every African state is the child of European imperialism. Even the very language the charter is written in is not African. The Charter urges Africans to join hands in the fight against aparthied. Apartheid created refugees when black South Africans fled their country. Moreover, the South African Defence Force attacked the frontline states and made some people homeless. The AFrican Charter was successful in galvanising people against white mastery. It also provided an excuse to stifle debate in African countries and to focus all ire on South Africa. This was a reason to overlook the abysmal state of affairs in many AFrican countries such as Zaire and the Central African Republic where megalomaniac dictators plundered the nation’s wealth.
The African Union seeks to uphold the rights adumbrated in the said charter. There is an African Human Rights Commission. The African Union dispatches peacekeeping forces to try to stop conflicts and protect the vulnerable. There is an AU Court to try alleged malfeasants. These structures – the Human Rights COmmission and the African Court of Human Rights – largely replicate the UN agencies that perform the same roles.
There is resolution 1503 and 1235. These are both mechanisms for upholding human rights based on the charter. There are also rights that can be enforced based on treaties. These procedures allow individual petition and for a state to be reported to the AU for investigation. A state is allowed to respond to a submission against it. This system is painfully slow and not very effective.
Since the African Charter was drawn up in the 1960s AFrica of all the continents has had one of the worst human rights records. Almost every African country was a dictatorship. There was a dearth of a free media to expose abuses. Tyrants reigned and there were elections that were farcical.
The OAU drew up a convention on the refugee problems in Africa. This was seldom implemented.
The African Declaration on the Rights of the Child says that all children are entitled to an education. However, illiteracy rates in African remain among the highest in the world. This is because penury is so widespread. There is also gender and tribal discrimination which exacerbate these problems. Many countries still charge fees for even primary schooling. Children working full time is not unusual in some countries. Underage marriages are common in some lands. Some children have been forced to fight. Some Human Rights system is ever totally effective. However, in Africa the violations are particularly widespread and severe.
Illiteracy means people lack access to information. They are unlikely to know what their rights are. Many people do not speak the official language of the their country. For example a Chadean might speak Tadageh instead of French. This makes it harder to be aware of one’s rights much less assert them in court. Some people are nomadic. They hardly identify with the nation state and they travel from one sovereign state to the next and back.
The AU was called the Organisation of African Unity until 1999. It was often panned as the Disorganisation of African Disunity. People lampooned it as the dictators’ trades union. It lauded some of the world’s cruelest tyrants such as Idi Amin. Its principle of non intervention allowed tyrants to get away with genocide. Only in the 1990s did the AU become more effectual and tackling grave wrongdoing. The Congolese Civil War, the Angolan Civil War, the Rwandan Genocide, the Chadean Civil War and the Sierra Leonean Civil War all happened on the AU’s watch.
Charles Taylor the former President of Liberia has been sentenced to 50 years imprisonment by the International Criminal Court. It is an indictment of the African human rights framework that the AU did not deal with him.
The AU has been ineffective at dealing with deplorable situation in Darfur where hundreds of thousands of people have been killed by the Janjaweed militia.
The AU even had Mummar Al Gaddafi as its chairman for a while despite his own atrocious human rights record.
The AU helped to deal with a disputed election in Le Cote D’Ivoire. The AU is becoming better at living up to its own platitudes. There is a long way to go. Elections in Africa are often a charade. African Governments such as Sudan gain succour from countries such as CHina that sell them arms. China holds an annual conference for all African heads of state. China has a bad human rights record. Dictators feel they can be immune to proper action so long as they have the unstinting support of an unfree superpower.
In conclusion, the African system for upholding human rights is fairly weak and ineffective. It has improved notably in recent years. These shortcomings are partly due to the mammoth task facing human rights bodies in Africa. No part of the world has a flawless human rights system. In Africa the problems are especially severe.
General remarks This question asks you to consider the scope of the African Charter and the rights it protects, as well as various issue-specific conventions which have been adopted under the auspices of the African Union. You should highlight that although the African Union has been at the forefront of seeking to tackle certain issues, for example, right-specific issues concerning children, many of the provisions lack precision. Thus, in essence, the African Union adopts numerous initiatives but the treaties actually adopted often fail to accurately articulate the content of the obligation and the rights in question. You should thus be able to challenge the part of the question which suggests that there is precision in the African system. The other part of the question allows you to consider the enforcement mechanisms which exist within the African system. You should highlight the evolution of the mechanisms which exist and the role, function and utility of the Commission and the Court. Law cases, reports and other references the examiners would expect you to use African Charter, Protocol on the Rights of Women, Charter on the Rights and Welfare of the Child, OAU Convention on Refugee Problems in Africa.
Common errors Discussing apartheid, which, while of broader interest, was not the focus of the question. Discussing UN Charter-based and Treaty-based mechanisms. A good answer to this question would… tackle the various aspects of it and engage with the issues – the first extract below is a good example.
”Student extract 1 The following question deals with the issues related to the Protocol to the African Charter on Human Rights and People’s Rights which provides a special protocol to supplement the provisions of the African Charter. The weak enforcement of the African system for the protection of human rights can be seen in a variety of different areas. Child protection laws is one particular area. Children no doubt have been exploited in a wide variety of ways be that physical abuse and they have also been violated with by being appointed by local militias and armies to fight for them in many parts of Africa. As is clear from events in Uganda and Congo and villages in those countries, child soldiers have been widely used. Although the African Charter on Human Rights prohibit such acts, violation continue to exist both with regard to child soldiers and with regard to for example women. The question LA3029 International protection of human rights 12 must therefore be asked if the African system is effective and if it is normatively developed why do such widespread violations occur?”
Comment on extract 1 This was the opening paragraph of what was a very respectable answer to the question. The candidate went on to discuss enforcement in the African Union context as well as various rights and issues and the prohibitions. The answer highlighted a candidate who had read the various provisions and engaged with the relevant materials. Further, the candidate discussed a number of issues – child soldiers and women’s rights – as examples of some of the practical rights problems in Africa and how the African Union system has not been able to address them. The answer was awarded a high upper second.
Student extract 2
”There are two basic enforcement mechanisms that are used in Africa. They are Charter based mechanisms and treaty-based mechanisms. How effective are they to ensure the protection of human rights is our discussion for this answer. Charter based mechanisms include 1503 resolution, 1235 resolution and thematic procedures. Treaty-based systems are state to state petitions, individual complaints and state reporting. Once these mechanisms have been seen it essential to see what procedures they follow and what are the pros and cons of these enforcement mechanisms. On the whole it can be seen that Charter based mechanisms are much more political and treaty based mechanisms are legal. Still neither of them are effective as powerful states can evade both systems. In the Charter base system there is much more use of politics.”
Comment on extract 2 This is a good example of an answer which misconstrued the question and discussed issues which were not related to the question posed. It seems clear that the candidate hoped for a different question. This answer was awarded a fail mark.
Question 8 Critically examine whether humanitarian intervention represents an appropriate doctrine for the international community to respond to egregious abuses of human rights.
What is humanitarian intervention? It is the belief that in the case of severe abuse of human rights on a massive scale other countries are morally obligated and legally permitted to use military force to prevent the said abuses. This doctrine has been around in some form for centuries. Often countries would intervene in other countries to help their co religionists. There were cases of this in the Thirty Years War 1618-1648. What makes it an intervention is the fact that an outside country is not intervening at the request of the government of the state in question. The intervention may be a response to an appeal by a section of the population of the country that is being intervened in.
After the Thirty Years War the legal doctrine Cuis Regio Eius Religio prevailed. This means ”Whosever country his religion”. This was taken to mean that the ruler of the country – they were most dynastic dictators – had the right to choose the religious denomination of the land and persecute those of other religious denominations. This kept the peace. State sovereignty became sacrosanct. There was no notion of individual rights. International law was already beginning then.
In the French Revolution the French Republic declared that it was against all kings. Maximilien Robespierre warned his people against attacking German states in a bid to liberate them from their traditional rulers. He counselled, ”No one welcomes armed missionaries.” People did not heed his admonition. France invaded many lands in an effort to rid them of their hereditary rulers. This met with mixed success.
The Congress of Vienna after the Napoleonic Wars resurrected the notion that state sovereignty was sacrosanct. States often intervened to put legitimate – that is to say dynastic rulers – back on their thrones when they were ousted by revolutions. Russia began to breach the principle of state sovereignty by intervening in the Ottoman Empire to assist Orthodox Christians there.
In the late 19th centuries many European countries established and expanded overseas empires especially in Africa and Asia. This was justified by the notion that this was ”une missione civilisatrice”. The notion of humanitarian intervention seemed to become acceptable. People said they were establishing colonies to abolish slavery and bring the gladsome tidings of Christianity to the benighted heathen.
The International Court of Justice was established in the Hague in the 1860s. This showed that international law was real and respected. The United Kingdom lost a case to the United States over the Alabama. This was when a British shipyard repaired a Confederate ship. This was the UK assisting a revolt by allowing the said ship to be worked on. The UK duly paid compensation to the United States. Conversely the US Government let terrorists on their territory plan attacks in the United Kingdom.
The United States intervened in Cuba supposedly because the atrocious conduct of Spanish troops in quelling a rebellion there but also because the explosion of the USS Maine. Through the 20th century there were many examples of such interventions.
Dictatorships often cite national sovereignty as a reason why humanitarian intervention is unthinkable. They also note that European imperialism was predicated on the notion that humanitarian intervention is sometimes warranted.
The United Nations Charter allowed for the UN Security Council to authorise the use of force in the case of ongoing and huge scale breaches of human rights. That is Chapter 7.
There is a UN rule in the Charter against intervening in the internal affairs of other nations. That is chapter 51 of the UN charter – article 2 (2). The UN also forbids interference in the domestic affairs of other states.
Take cognisance that for this to be an intervention it must be inside a state and not intervening in a war between two recognised states. For instance when the UN authorised the use of armed force against Iraq because of its annexation of Kuwait this was not a humanitarian intervention notwithstanding the fact that humanitarian concerns were among the reasons for authorising the said armed action. One sovereign state had been occupied by another. That was indubitably sufficient grounds for the UNSC to vote for armed action.
In 1966 the UN authorised the United Kingdom to use force against Rhodesia which had unilaterally declared independence. Force was not used by the UK and perhaps that was a mistake since it would have ended the conflict in Zimbabwe much sooner. This was not much of a derogation from national sovereignty since Rhodesia was officially a colony of the UK at the time but the white immigrants there had rebelled over London’s insistence that the black majority be given a greater share of power. The UN authorised the use of force in the Congo.
The UN authorised the use of force in Korea in 1950. This was when one half of the country invaded the other. Korea was legally one country at the time.
Countries that were signed up the UN Charter, the Universal Declaration of Human Rights and many other such instruments often acted in ongoing material breach of their obligations. Very little was done about this because national sovereignty was paramount. When a state had no defence to its dreadful conduct it would always resort to ”it is none of your business” or ”it is an internal affair. But out of it!”
The United Nations authorised the use of force in Somalia in 1992. The United States and several other countries sent troops in. This was Operation Restore Hope. Somalia was a failed state and several warring factions had reduced the country to dystopia. Some factions welcomed UN troops but others opposed it. In the end UN soldiers found themselves embroiled in a multi sided civil war. The UN forces took significant casualties and pulled out without accomplishing much.
The UN has run many peacekeeping missions such as in Kosovo, the Congo, Cyprus and so on. The Blue Helmets are fairly good at keeping peace where a truce has been agreed. They are not good at intervening in a hot conflict. Then they are obliged to take sides. Many governments are very reluctant to internationalise internal conflicts because they feel this will legitimise and advantage insurgents. An example would be Sri Lanka. The Sri Lankan Army committed numerous atrocities whilst battling terrorists. Sri Lanka persistently refused to allow UN peacekeepers in believing this could only lead to the partition of the country. National sovereignty is always argued by those who abuse their own citizens.
In the Cold War both sides helped rebel groups in the territory of the other superpower’s allies. The United States lost cases in the International Court of Justice when Nicaragua sued the US for helping rebels. The USA would have had a hard time arguing that it was doing so for humanitarian reasons. The US’s confederates in Nicaragua had a ghastly human rights record – worse than the communists they sought to oust.
In 1999 several NATO countries bombed Yugoslavia because of several large scale massacres of Albanian civilians. Many countries such as Russia condemned this as an intrusion on state sovereignty and denied that any atrocities had occurred. Those who protested against these NATO air strikes emphasised that NATO killed plenty of civilians by its aerial bombardment. Not even NATO disputed that it killed civilians. International humanitarian law does not allow a state to commit human rights abuses in an effort to stop human rights abuses. Tony Blair was Prime Minister of the United Kingdom at the time. He was the prime mover behind this armed action. He maintained that it was allowed by international law. Many people now say this act was legitimate despite it being unilateral. Its status in international law was disputed. India, China and Russia all opposed it. This action would not occur now since those three countries are all mightier than they were in 1999.
The African Charter of Human and People’s Rights allows people to overthrow oppressive governments. This was aimed at colonialism and white domination but it is an ironic statement since most African governments at the time the charter was drawn up were oppressive. Moreover, the said charter states that other Africans have the duty to assist the liberation of their fellow Africans.The African Charter stresses that self determination is a core value. The trouble is many African countries have ethnic groups striving for independence and they are crushed by their governments. One example would be Biafra. The only African country to have gained independence from another African country is South Sudan and that was with UN help. This was after the AU did precious little about atrocities for decades. The people of South Sudan could argue that they fought out of self defence. Their entitlements under the African Charter were gravely and persistently breached for decades and they had no means of protecting themselves other than to resist.
The Geneva Convention outlaws the use of mercenaries. But it specifically excluded volunteers fighting in another land’s war of liberation. What is a terrorist campaign and what is a war of liberation? These are moot points.
In Afghanistan in 2001 the UN authorised armed action and the Afghan Government welcomed this. The Afghan Government controlled only 10% of the territory of the state. Most people in Afghanistan were oppressed by the Taleban which was recognised by only three countries as the government. The intervention was partly due to the Taleban conniving at 9/11 but also due to its woeful human rights record. NATO troops and other countries fought in the UN mission for years. The UN soldiers committed some crimes themselves.
In 2003 the United States and up to 40 other countries liberated Iraq. They justified this on the basis that Iraq had continually broken promises regarding dismantling its weapons of mass destruction in a verifiable manner. However, the military action was also called for because of the utterly horrific human rights situation in the country.
Javier Perez de Cuellar – former Secretary General of the United Nations – said that international law is now coming to favour armed intervention to save the oppressed.
In the Syrian Civil War some such as Tony Blair pleaded for intervention. When Ba’athist troops used poison gas on civilians some demanded humanitarian intervention. Geoffrey Robertson said there was a responsibility to protect in international law. Saudi Arabia has sent money to assist the rebels and thus has intervened in the internal business of a country that was not unfriendly to Saudi Arabia. Yet at the same time Saudi Arabia is hyper sensitive to castigation of its own monstrous human rights record.
If we are not to allow humanitarian intervention then what? Tyranny will never be properly challenged. The Rwandan Genocide was an example of a time when the world shrank back from its responsibilities. This is the most egregious recent example of what happens when non intervention in domestic states is adhered to rigidly. In Darfur the Janjaweed militia have engaged in ethnic cleansing. The murders of tens of thousands of civilians have been facilitated by China giving diplomatic cover to the Sudanese military dictatorship. In the former Yugoslavia many countries were loathe to get involved in the fighting there and this arguable prolonged the conflict. The doctrine of humanitarian intervention can be abused. One can never be sure if one has saved more than one has killed. Inevitably there are civilian deaths when one intervenes. For strategic reasons a state may be compelled to solicit the assistance of an unsavoury regime. This undermines the morality of the cause. Furthermore, no army will ever be perfect. Mistakes will be made and civilians are killed. Some troops deliberately kill civilians or prisoners of war. This reduced the purity of the humanitarianism.
There is much selectivity in humanitarian interventions. Palestinians are massacred by the Israeli military yet the United States funds and arms Israel to do this. India damns other countries for preventing genocide yet did just that in Bangladesh when it was East Pakistan. This is a vexatious issue because intervening states are often suspected of being actuated chiefly by self interest. Even Blair admitted as much with regard to Kosovo. If the United Kingdom and other NATO countries did not step in then they would be flooded with refugees. Moreover, Islamic countries would intervene and create a shariat state in Europe. Countries are thought to have intervened in Iraq more for oil than due to a worry about WMD or anxiety about the horrific human rights situation in the country.
Some people believe that state sovereignty has been over valued. States are not absolute or permanent. They appear, they merge, they split up and they disappear. National sovereignty is abridged by membership of international bodies. The UN claimed the right to intervene even in states that are not members of the UN. The League of Nations did the same. As George Canning wrote in the Universal Man ”A citizen of the world alone/ a friend of every country but his own.” Thomas Paine said, ”My country is the world and my religion is to do good.” He thought it daft that people said they should not care how much others suffered on the other side of an arbitrary line. Moreover, it is specious to say that one can be wicked to people in one’s own country and no one else has a write to utter a whit about it. The idea that religion permits such crimes is bunkum. Many people mistake mythology for morality. They claim if they go through the right ceremonies and utter the right mumbo jumbo then cruelty is good.
In conclusion, few people would dispute that there are times when states should intervene in other states. There is much debate about how horrendous a situation should be before such action is wise or acceptable.
The African Union has often defended tyrants there because it dislikes outsiders criticising African leaders. Yet the AU has increasingly intervened in the affairs of its member states. This is seen as acceptable because it is not redolent of imperialism.
There needs to be some oversight of the invocation of the said doctrine. Otherwise it will be misused as an excuse to invade willy nilly.
General remarks This question gives you the opportunity to discuss whether intervention by third states is appropriate when a state is unable or unwilling to prevent serious and systematic human rights abuses within its borders. Using various examples of humanitarian intervention, you should discuss whether such interventions have been successful or not in restoring peace and security. Some examples, such as those of Kosovo, highlight further issues and problems that may arise. Others, such as Afghanistan, highlight other problems. There is also a fundamental question as to whether States should intervene and the motives of those States.
Good answers could also point out how interventions in, for example, Kosovo, were not authorised but may be argued to be legitimate even if not unquestionably legal. Law cases, reports and other references the examiners would expect you to use Articles 2(1), 2(4) and 51 of the UN Charter, and various incidents/events such as the Kosovo intervention.
Common errors Writing a general answer on the use of force, as in a Public international law examination, which this was not.
Examiners’ reports 2015 13 A good answer to this question would… consider issues such as the principle of non-intervention in internal affairs and state sovereignty, as well as the prohibition on the use of force, before looking at interventions and what they can and cannot achieve. Better answers would also consider the Responsibility to Protect. Poor answers to this question… focused on the law on self-defence in the abstract, the legality of the Iraq intervention in 1990 and more general UN peacekeeping missions or UN military interventions as opposed to ‘humanitarian interventions’ which is usually (although in the case of Kosovo it was NATO led) a unilateral act.
Student extract 1
”The debate about intervention to respond to egregious abuses of human rights has been framed around the central issues of sovereignty and competing notions of the right to intervene also raises issues of the responsibility to protect. History is replete with examples of human rights abuses being ignored that the international community when faced with such crises either placed too high a value on state sovereignty or simply did not think they had the authority or a duty to protect others who are outside of their borders in another state. For these reasons the Holocaust was allowed to occur in Germany and Eastern Europe. The responsibility to protect is a relatively new concept in international law which imposes obligations upon states to intervene should human rights be abused elsewhere. It tries to overcome the limitations of the state sovereignty system, however, it suffers from the fact that political and other interests will play a role in any intervention.”
Comment on extract 1 This was the opening paragraph of what was a very competent answer. The candidate identified the issues precisely and then went on to tackle them in turn. The answer was accurate and well-informed and highlighted an acute awareness of the dilemmas and shortcomings of the law as well as the prevalence of political and other interests in interventions. The candidate used examples such as India’s intervention into East Pakistan to highlight some of the dilemmas and problems and further used the example of NATO’s intervention in Kosovo and subsequent events to try and evaluate the evolution of the law. This answer was awarded a first class mark.
Student extract 2
”The UN Charter bars states from intervening in the internal affairs of other states. Article 2 states that members must refrain from the threat or use of force against the integrity of others. Chapter 7 is an exception to this in cases of armed attack, self defence or collective self-defence. The era of humanitarian intervention can be divided into two ways before and during the Cold War and after. A former UN Secretary-General noted that the duty to intervene for moral reasons should be given priority to boundaries and political considerations. In 1950 the Security Council advised members to assist the Republic of South Korea as it may be necessary to ward off an armed attack. In 1966 the Security Council gave Britain the responsibility intervene in South Rhodesia using force if necessary. In more recent years the Security Council has also sanctioned the use of force in Congo. ”
Comment on extract 2 This extract is a good example of a candidate who considered the question to be about uses of force more generally and did not focus on humanitarian intervention as the question required. Although the candidate did go on to consider humanitarian LA3029 International protection of human rights 14 intervention it was only in passing. The discussion was generally very competent. The failure to answer the actual question posed but to write more generally on the use of force including humanitarian intervention in passing, meant that this answer was awarded a low lower second as the discussion was broadly relevant but not precise enough.