Examiners report. Human Rights. 2013

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Question 1

“The impact of the Universal Declaration cannot be underestimated. It created an international political and legal order based on enforceable human rights.” Discuss.

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Er, I think you mean OVERestimated. If it cannot be underestimated then the Universal Declaration of Human Rights has no importance at all.

The statement about the UDHR being impossible toOVERestimate is accurate but a small exaggeration. The UDHR was drawn up by the United Nations in 1948. It was significant in that it was the first time there was a human rights instrument for the whole world. Not all independent countries were member states at the time. Moreover, many countries were colonies at the time and thus not signatories in their own right. All countries have since signed the UDHR. The nostra expressed in the UDHR were not entirely novel. They can be traced back to the decrees of Ashoka in Ancient India or Cyrus in Persia. The American Declaration of Independence voiced some of the same ideals. At the French Revolution there was a Declaration of the Rights of Man and of Citizen.

The UDHR was important since it extended rights to all peoples and to women as well as men. It also envisaged a democratic society despite not actually using the world. It called for the right to participate in government. This was to be through genuine elections in which all people had the right to vote. The UDHR was flagrantly violated by most member states at the time. There were many dictatorships and one party state. Free expression and fair trials existed in few countries at the time.

The UDHR is chiefly about civil rights. These include the right to freedom of assembly, to juridical personality and to being safe from torture. There were some social rights in the UDHR as well such as to adequate pay and to education. The civil and political rights are easier to define and therefore to argue about in court. The social rights are open ended and were so far from a reality in most countries in 1948 as to make their inclusion in the UDHR almost farcical. In most countries in 1948 most people were illiterate.

The second part of the title statement is less easy to agree with. The UDHR was seen as simply expressing ideals and not law. There was no attempt to enforce the platitudes in the UDHR at the beginning. Many of the rights described in the UDHR have been fleshed out in subsequent human rights instruments. These include

the Convention on the Elimination of all forms of Racism

the Convention on the Elimination of all forms of Discrimination Against Women

The Declaration on the Rights of the Child.

The International Convention on Civil, Political Rights.

The International Convention on Social, Economic and Cultural Rights

The Convention Against Torture, Inhuman and Degrading Treatment.

There are optional protocols to most of these. Most sovereign states have signed the majority of these and ratified them. The United States is unique in not having ratified the DRR. However, the children’s rights situation in the USA is better than in many other countries. For instance, the Supreme Court now rules it is unlawful to execute someone under the age of 18 or to execute someone for a crime committed under the age of 18.

There is a UN Human Rights Committee and a UN Human Rights COmmissioner.

The above treaties have status under international law. Yet states have not been brought to book for breaching them. These comprise soft law. The United Nations has committees on all these areas of human rights. The committee has a commissioner to examine particular countries or certain aspects of human rights. A special rapporteur can look into the status of human rights in a country or an area of human rights in all countries. Reports are compiled. Countries found to be gravely in breach of their obligations can be called to account for their actions. They are entitled to put forward a defence.

The UDHR became part of the constitution of some countries. For example, France is a monist state. That means as soon as France ratifies a treaty it is part of French Law. In the United Kingdom a treaty is only part of British law if Parliament makes it a law.

The UDHR was not law for many reasons. Among the reasons why certainly at the outset most of it was not legally obligatory was that it was culturally specific. This was drawn up almost entirely by upper middle class Western intellectuals. It reflects bourgeois, capitalist and Enlightenment values. These meant little to most Muslims , communists, to people from Subsaharan Africa or to struggling working class people in the West.

The UDHR itself is probably not justiciable. The statements of rights contained therein were not legally binding. The tyrannies that signed it would never have agreed to this document if it had teeth.The UDHR created a political order. Since it was promulgated the UN has striven to advance human rights. The UN has achieved much success in this regard. It has not created a legal order. Subsequent human rights documents have done that. The International Criminal Court has helped bring to justice those who have committed crimes against humanity. Furthermore, the UN has also created various ad hoc human rights courts such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.

The UDHR is moving towards being legally binding. This is because more and more of its contents has been spelled out more precisely in other documents. More states have domesticated the provisions of the UDHR.

 

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General remarks

The best way to approach this question is to argue that the Declaration is both a legal and a political document. Some of the rights in the Declaration are framed in such a way as to state broad ideals, and not rights in a strict legal sense. Others, however, are clearly legal rights, and have been so treated. A good answer would also touch upon the extent to which rights enter into the constitution of nation states, and are thus given a precise legal form. It might also be possible to touch upon the distinction between civil/ political rights and social/economic rights as the former are often seen to be legal, whilst the latter tend to be considered political. This distinction has broken down to a large extent, and is thus relevant to a good discussion of the issues raised by the question. LA3029 International protection of human rights 2 Material relevant to this section is to be found in Chapter 2, particularly section 2.4, Chapter 3, particularly section 3.2, and the early parts of Chapter 4.

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Question 2 “Human rights are not legal remedies to be enforced by the courts.” Discuss with reference to the UN system for the protection of human rights.

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The above statement is largely untrue and becoming more untrue all the time.

The UN system for protecting human rights is very varied and extensive. The kernal of human rights in the UN system is the UDHR. This has been expanded by many human rights instruments under the auspices of the UN such as the Refugee Convention and the International Convention on the Elimination of all forms of Racism. The UN has a Human Rights Committee and a Human Rights Commissioner. The committee and the commissioner examine human rights abuse allegations and publish reports on the situation. Special rapporteurs are sent to investigate allegations and prepare reports. States that are in gross violation. All these are means of enforcing human rights but are not legally binding. States can be shamed into improving their human rights record. However, determined tyrants can flout their obligations and often do so with impunity.

The UN system is effectual in benchmarking human rights. The UN sets out the ideal and states can measure themselves against this. The UN scrutinises countries and the world as a whole in their effectiveness at protecting human rights.

The most oppressive societies are the ones that get away with this the most because it is so hard to know what is going on there. The climate of fear prevents a full disclosure of what is occurring in places such as North Korea. As Daniel Patrick Moynihan said the United States and open societies only appear to be fairly bad because they are free enough that people are allowed to know all the bad things that are occurring. In the case of unfree societies we only know a fraction of the abuses.

The UN does have some mechanisms for legally enforcing rights. The UN General Assembly can declare states to be in material breach of their obligations. The UN Security Council can authorise action against a state including armed action. The International Convention against Genocide is now justiceable.

The UN has set up the International Criminal Court. People have been arraigned before it for crimes against humanity. These include the erstwhile President of Liberia who is serving a 50 year sentence. The UN established the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. In that sense human rights are enforced by courts.

The UN’s other human rights instruments have become the basis for rights. The provisions of the Convention on the Elimination of all forms of Discrimination Against Women has been passed into domestic law in many countries. Therefore these rights are enforceable in national courts. However, they are not enforceable at a UN level. Human rights need to be incorporated into national law for people to be able to rely on them in national courts.

The UN Committee on Economic, Cultural Social Rights also monitors the state of human rights globally. These rights are even more vaguely worded. Such catch all rights cannot be upheld in a court.

Human rights are supposed to be universal. The trouble is these issues are relativist. One has to be sensitive to culture and history when seeking to apply human rights standards. One the Rights of the Child; the age of legal majority varies from state to state. Free higher education for all is impractical in poorer countries. Moreover, equality for women upsets many Muslims. The notion of human rights is chiefly rooted in Western, liberal capitalist thinking. It takes little account of other worldviews. This Occidental attempt to impose its ideology on those of another weltanschung is resented as neo imperialist by many. However, the UN is now by now means solely Western. All countries are Western. Those form non Western countries have been Secretary-General. Furthermore, prominent positions have been awarded to those from the Global South.

The UN is mainly about creating a consensus around human rights. A consensus means a clear majority agreeing – not a bare majority and not everyone. Moreover, a consensus means broad agreement and not agreeing on all the minutiae. This diplomatic work requires some fudge. States with a poor human rights record are sometimes given a pass in the interests of bringing them on board. This waters down human rights. No country will ever be absolutely perfect. Rights collide with each other. The right to life clashed with the right to a fair trial because fair trials allow the guilty to go free in some cases and kill again. Nonetheless human rights varies vastly from Denmark on one end of the scale to North Korea at the other. The UN has created a human rights culture in which sovereign states strive to improve their human rights record. It is a new modality. Previously states cared about internal affairs and security more. They did not care about matching up to a human rights ideal so much. Almost no one rejects the notion of human rights.

The Convention Against Torture is now international law. Charles Taylor was sentenced to that prison term for breaching this law among others.

In conclusion, The rights of humans are sometimes legally enforceable under the UN system. Some rights are not capable of being asserted in court under the UN system such as the right to sufficient nutrition. Third generations rights cannot be claimed in court. These include nebulous concepts such as the right to development. The right to a clean environment is very open ended and is too vague to be justiceable. Rights are not really remedies. In an ideal world rights would be respected in the first instance and not broken. But as they are constantly violated we need remedies. The UN does not pretend to provide many legal remedies but in some areas it does.

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General remarks

This question ranges over material in Chapter 5 of the subject guide. A good answer will show how in the UN system rights provide ways of benchmarking and scrutinising the commitment of different nations to human rights conventions. Whilst some rights to individual petition are recognised, it would, on the whole, be inaccurate to see rights as the strict correspondence between individual rights and remedies. However, a good answer will stress that the enforcement of rights also depends on whether or not a national government domesticates rights, and creates enforceable remedies in courts.

A well-argued answer would also engage with the idea that rights ‘operate’ through the UN and its associated agencies building international consensus, a process that involves diplomacy and compromise. Whilst the UN enforcement mechanisms fit into this general picture, the notion that protecting human rights is to be achieved through court-based enforcement of remedies does perhaps misunderstand how the creation of a rights culture at an international level is meant to take shape.

Student extract

”This essay by analyzing the Commission on Human Rights and the Committee on Economic, Social and Cultural Rights will show that the traditional view of human rights was not as remedies enforced by the courts. But in the modern western tradition, human rights have been used invoked to retaliate against the state.”

Comment on extract

Although this paragraph starts reasonably well as it indicates what the argument in the essay will be, the phrase ‘the traditional view of human rights’ is rather obscure. It is not really clear what point the writer is trying to make. The ‘but’ with which the final sentence starts suggest some contrast with the ‘traditional view’ but what is ‘the modern western tradition’, and how can rights be said to ‘retaliate’ against the state? The basic point seems clear: rights are not to be strictly seen as remedies, but the obscurities of expression make this argument difficult to follow.

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Question 3 “The fundamental problem for women’s rights is that Committee on the Elimination of Discrimination against Women is no more than a catalogue of rights. It is difficult to see what ideas underpin the notion that women have particular human rights.” Discuss.

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Women’s Rights are a special section of human rights. The title statement is specious. Women are entitled to all the same rights as men as set out in the UDHR and various other human rights instruments. Indeed documents such as the Geneva Convention seem to hint at extra rights for females saying ”women shall be treated with all due regard to their sex.” Women Rights’ tend to mean those rights which pertain to areas that especially affect women. Some people take exception to the very notion of women’s rights. It arguably compartmentalises women and segregates them. Some men’s rights activists claim that women’s rights privilege women over males.

The Convention on the Elimination of all forms of Discrimination Against Women describes women’s rights. Its very existence indicates that there are some areas of life which impact on women in particular and where women require especial consideration. There is no equivalent document concerning the rights of males. The ideas that underpin women’s rights are that women are commonly discriminated against in the workplace. Until recently they were seldom became national leaders. In Less Economically Developed Countries their illiteracy rate was much higher than that of men and their life expectancy was considerably lower. Educating women is important for healthcare and childcare. As the saying goes educate a woman and you educate a village.

There are health issues which touch women but not men. Most obviously their is pregnancy and childbirth. Contraception is a very pertinent issue for women. It grants them sexual liberty. It prevents them bearing more children than they wish to. Contraception can abolish poverty in a generation. Women’s rights are a special section of human rights owing to the physical differences between men and women and cultures which have established a patriarchy. No society has ever been female dominated. There are symbolic differences in that heads of state are overwhelmingly male. The use of the masculine pronoun in many constitutions seems to assume masculine mastery. Moreover, women are judged by their physical appearance more and pornography is mainly created by men featuring women to appeal to males. Erotic capital is seen as a large part of a female’s value.

CEDAW is arguably problematic in that it lays stress on a woman’s role as a wife and mother. Indeed most women marry and give birth but overemphasising this seems to devalue other female achievements. Admittedly CEDAW makes the laudable statement that a woman being a wife, even a housewife as well as a parent must not prevent her exercising other rights and pursuing a career. CEDAW states there should be ”a change in the traditional role of women and role of men in society.” This is an affront to those who think differently. This reveals that CEDAW is largely a western liberal feminist document. Many people outside the West would dislike this formulation. Attempting to make these objectives universal would meet much opposition. This is a culturally relativist issue. Some women are very happy with traditional gender roles including some Occidental females.

One of the vexatious issues in respect of women’s rights is whether women’s rights is there to abolish gender differences or preserve them? Are women to become more like men as some want or men more like women or both or neither? Perhaps in terms of gender separate but equal is a valid concept. In many societies a married woman adopts her husband’s surname. In no culture does it work the other way around.

Women are raped far more frequently than men. Women are virtually only ever raped by males. In macho societies the police and courts are deeply unsympathetic to rape allegations. Women are blamed for being victims of this. Marital rape does not exist as a legal concept in some countries. Underage marriage happens to women more than men. Underage childbearing also harms women a great deal.

Abortion is a highly tendentious subject. It is a women’s rights issue. Most feminists call for abortion to be legal on demand. The elective termination of pregnancy is lawful in most Western countries up to a certain foetal age. In some non Western countries especially Muslim ones elective termination of pregnancy is a crime. These are usually the countries with the most dreadful record on the rights of women. CEDAW does not take a position on termination.

There are sex selective abortions in some countries such as China due to gender favouritism. This also occurs in India despite it being an illegal reason for a termination. Women are becoming the clear minority in these countries. In a sense that raises their status.

Women’s rights is a controversial area. The notion of gender equality clashes with the traditional worldview of some societies. Some cultures favour different gender roles. The division of roles in traditional masculinist societies has the husband as the provider and the wife as the homemaker. Moreover, the male has authority over the female. WOmen are submissive and judged in relation to their male relatives. In Pakistan a woman’s id card always has her as ”daughter of ….” or if she is married ”wife of…” even if she is a widow. A man has himself as ”son of…” but never ”husband of…”. Women are in a sense treated as chattel. This is especially so in the Middle East and Subsaharan Africa. Some women in these regions resent wealthy Western women interfering and attempting to force another culture on them. Some react with horror to the notion that abortion should ever be allowed. This is why women’s right is not as universilisable as some suppose. One must tread carefully and have regard to different schools of thought.

In conclusion, there are sound reasons for keeping women’s rights as a discrete area of human rights. Women’s rights have improve immeasurably in Western countries. Women are at parity with men in many professions. Female leaders are not uncommon in many More Economically Developed Countries. Women’s rights are chiefly an area that is needed to assist LEDC’s improve the status of women.

 

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General remarks

This question requires candidates to think about the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW) through the statement on which the question is based, rather than just repeat information about the Convention.

A good answer would take issue with the sentiment expressed in the question. The question raises the issue of the distinct nature of human rights for women. Human rights for women reflect the specific issues that women rather than men face (rights in relation to reproductive health, for instance). If the understanding of human rights is expanded to allow for the fact that men and women are different, then there Examiners’ report 2013 3 would be no objection to a general concept of human rights. However, unless human rights acknowledge the cultural, physical and symbolic differences between men and women, they are clearly severely limited.

The Convention is well aware of social and cultural differences; and the problems inherent in these differences. For instance, the introduction to the Convention states that women make a ‘great contribution…to the welfare of the family and to the development of society’. Their role, however, has not been recognised, and the ‘social significance of maternity and the role of both parents in the family and in the upbringing of children’ has been insufficiently protected. It is important to note, though, that this ‘special role’ that links women to the family and the home, ‘should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole’.

The burdens and responsibilities of the family, then, should not fall disproportionately on women: society as a whole should be organised in such a way as to involve men and women in equal measures in the tasks associated with the family. The problematic nature of this goal is articulated very clearly by the next paragraph: ‘a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women’. It is easy to appreciate that this objective may lead to clashes between human rights and cultures that seek to preserve the ‘traditional’ role of women. A well-structured argument will show how these general ideas feed into the specific rights protected by the Convention. A well-informed answer will look in detail at Article 12. The relevant discussion is largely contained in Chapter 6 of the subject guide, specifically section 6.2, but there are also some useful general ideas in Chapter 3.

Student extract

”The Preamble to CEDAW strengthens the position of women’s rights by making them analogous to human rights. Theories have suggested that poverty is closely linked to women’s rights. The role of women in the family home has been greatly under-emphasised because it does not bring in any monetary, therefore economic value. However, a greater emphasis on the right to education, and the role that women play in it, may help build an economy by helping people to become better educated. ”

Comment on extract

This extract suffers from a failure of clarity. The first sentence sets up an interesting argument. However, what does ‘analogous’ mean? The candidate seems to be grappling with the idea that women’s rights are different from men’s rights. This is a valid point, but the word ‘analogous’ is not helpful here. The argument is then abandoned and the paragraph moves to a different point about poverty. It would have been better to really develop the first point about the nature of women’s rights and then turn to the argument about poverty. Indeed, the focus of this paragraph appears to be a discussion of poverty. The point that the candidate is making is a good one, but it needs to be set up properly, and linked to the earlier point about the nature of women’s rights. This paragraph gives the reader the sense of an intelligent person who needs to focus on the technique of writing.

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Question 4

“The concept of dignity underlies the prohibition on discrimination.” Discuss.

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Human dignity is the notion that all human’s have some worth and are therefore entitled to a minimum standard of treatment. This is the foundation of all human rights. Dignity indeed derives from the Latin ”dignitas” meaning ”worth.” Therefore the title statement is apt. Dignity it connected to the idea of equality. Dignity has to apply to all people from the best to the worst. Even the most heinous criminal is guaranteed a certain degree of compassion because to treat him barbarously would demean mankind.

The UDHR begins by stating that human dignity is crucial. It is a point repeated in subsequent human rights instruments. The same notion may be found in previous documents such as the American Declaration of Independence or the Declaration of the Rights of Man and of Citizen. Anti discrimination tries to take the abstract notion of dignity and turn it into something tangible.

The UDHR states that people are to have the same rights irregardless of gender, ethnicity, religion, political belief, social status and so on. It states that these rights are to work in relation to employment, education and politics. Our human nature is held to matter more than our minor differences such as race and gender. Interestingly it does not prohibit age discrimination. It is permissible to withhold certain rights from minors.

The Convention for the Prevention and Punishment of the Crime of Genocide was promulgated in 1948. Genocide is the ultimate in discrimination. As a reaction against the horrors of the Holocaust the UN and its member states moved to try to rid the world of discrimination.

The United Nations went on to introduce many more explicit anti-discriminatory instruments in respect of human rights. Among these are the Convention to End all forms of Racism. This instrument is against unfair discrimination but allows for positive discrimination to overcome centuries of mistreatment of certain ethnicities. Article 1 of the said convention gives a comprehensive definition of discrimination. Article 2 explicitly forbids all types of unjust discrimination.  Article 6 states that there is a right to a remedy in the case of discrimination. This is an bid to take the notion of anti discrimination and induce states to make it a hard law – one that is enforced in reality.

This can be observed in the Convention on the Elimination of all forms of Discrimination Against Women.

Some argue that anti-discriminatory human rights instruments are not rooted in the notion of human dignity. It is more prosaic. This is something practical. It helps people in their everyday lives if they can get access to higher education, employment and so forth without being discriminated against. Equality before law is the core of any system of justice worth the name.

The UN has tried to cleanse the world of discrimination against disabled people. One of the few forms of discrimination that the UN has not taken action on it against homosexual people. This is because this is too much of a hot potato. In many countries it is widely believe that homosexuality is unnatural and a perversion. Most religions teach that it is iniquitous. Many countries still prohibit this behaviour. The UN would not be able to pass such a human rights instruments since many governments would vote down such a proposition. Many hold that homosexual conduct is not equal to heterosexual behaviour partly because it is non reproductive. This is a belief that cannot be universal at the moment. This is a relativist issue in current practice but gay rights activists are pushing for the non discrimination against gays to become universal.

In conclusion, human dignity underlies the prohibition on discrimination.

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General remarks In this question, candidates had to trace the ways in which dignity informs the International Convention on the Elimination of All Forms of Racial Discrimination. LA3029 International protection of human rights 4 One obviously needs to know some basic human rights theory to do this; and it requires one to analyse the rights that form the content of the Convention from the perspective of this fundamental value. A good answer will agree with the statement. Dignity is clearly a key term in human rights law and attempts to ‘get at’ the nature of human beings. Dignity describes something inherent and inalienable; it relates, as suggested above, to concepts of equality and the prohibition on discrimination. Discrimination would be incompatible with the idea that all people are created equal. Moreover, being accorded ‘lesser status’ on account of one’s race would also contradict the idea that all human beings should be accorded equal status on account of their human nature. How do these ideas ‘structure’ the Convention itself? Dignity perhaps informs the relevant articles in a somewhat abstract way, as they tend to concretise notions of equality and the prohibition on discrimination.

Consider Article 1. Article 1 defines discrimination: ‘the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’. This could be seen as a more formal definition of the term that is expressed in more ‘philosophical’ terms in the Convention’s preamble. Article 2 continues the formal articulation of the prohibition on discrimination: it sets out the obligations of a state party to ‘condemn racial discrimination’ and to ‘undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms’. A well-informed answer would go on to show how Article 5 lists the kinds of rights necessitated by equality before the law that are to be enjoyed by all people. Article 6 builds on this by elaborating the right to an effective remedy. One can thus appreciate how the abstract principle of equality is ‘transformed’ into a more concrete legal idea. Material contained in Chapter 8 of the subject guide forms the focus of this question.

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Question 5 “It is difficult to see how children can be the subjects of human rights.” Discuss.

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The title statement is absurdity. Children are human and human rights apply to all humans. Adults and children are both homo sapiens sapiens.

The UDHR provides human rights for all persons. It forbids discrimination and sets out categories that one may not discriminate against. No distinction is to be made on the grounds of gender, social status, complexion, faith and so on. It does not rule out discrimination on the basis of age. One can deny someone employment for being very young or indeed very old.

Children are a special category because they are by definition less mature. There are some precocious children and some immature adults but the law tries to be consistent and have the same legal age for all persons regardless of individual circumstances. This is also for the sake of certainty and fairness. It is hard and laborious to assess the maturity of each person. Then one would have to make special age limits for each individual.

Children have particular needs. They need to be in education whereas adults do not need to be in education – they should already have had schooling. Children should be provided for unless they are older teenagers and capable of fending for themselves.

”Children, by reason of their physical and mental immaturity, need especial protection…” so opens the preamble to the Convention on the Rights of the Child. This has been ratified by all nations save the United States. Article 1 of this Convention articulates the key principle that children merit particular protection. Article 3 acknowledges that children do not have locus standi in a court or various political rights. The Convention later states the rule that is to guide all child legislation and that is that one must be guided by what is most advantageous to the minor. This is to be observed by public bodies as well as parents. Legal guardians and parents have particular rights in relation to the child as stated in Article 5 of the said document. However, should the fundamental rights of the child collide with the wishes of the parents or legal guardians than the former shall prevail. For instance, some Jehovah;s Witness parents refused blood transfusions for their children. If this wish were to be respected then the child would die. Various legal cases have found that a doctor is entitled to provide a blood transfusion against the express wishes of the parents because not do so would likely cause the death of the child.

Children have fewer rights than adults that is because they have fewer responsibilities. However, the core human rights such as the right to life apply to children a fortiori. This is because of the lesser physical strength and lack of full power of reasoning on behalf of children. The state has long been seen to need to exercise especial superintendence over children. Long before the UDHR was unveiled most countries had a concept of legal minority. That was whereby children could not face full criminal sanctions for their malfeasance. Indeed below a certain age children cannot be even charged with an offence. In English Law this is the age of reason. It used to be aged 7. In civil as well as criminal law children are not treated the same as adults. Minors cannot enter into most contracts. Minors are seen as not being compos mentis. They lack the capacity to agree contracts. They do not have full legal personality. Likewise they cannot initiate lawsuits.

It is true that certain civil rights do not apply to children. These include the right to vote, to seek election, to purchase immovable property and so on. This is because children are thought to lack the life experience and judgment necessary to make such decisions. Children are not permitted to wed indeed it is considered very bad for them to do so.

One of the troubling issues is what constitutes a child. Most countries and human rights instruments set the age of legal majority at 18. Yet even those who have not yet attained man’s estate can do certain adult things. Some countries allow children as young as 14 to marry. The Philippines and Iran have the right to vote at 15. Even over the legal age of majority one might not have all the rights. All the states of the USA do not permit people to drink alcohol until the age of 21. One cannot be elected president until the age of 35. Andorra set the voting age at 25.

There are certain things a child can do but only with the say so of the parents. At 17 one can enlist in Her Majesty’s Armed Forces but only with parental permission. One can wed at 16 in England but one with the permission of one’s parents.

The right to food, shelter and education are particularly pertinent for children. This is because they are often unable to provide for themselves especially if infants.

The human rights system recognises that children warrant an unusual degree of care. There is a convention against there being child soldiers. The Declaration on the Rights of the Child sought to safeguard the wellbeing of children. There are optional protocols thereto such as against the trafficking of children, child pornography and child prostitution.

In conclusion, children certainly can have human rights.

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General remarks This question is similar in certain respects to Question 3, as it is directing attention towards the idea of the ‘human’ of human rights. Children have very specific needs and interests (being, as it were, immature or ‘less than’ adults) hence it is correct that human rights address these needs. However, one should perhaps disagree with the idea that children’s rights are a ‘difficult’ concept.

The Convention begins by recognising the specific nature of children’s rights. As the preamble states: ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’. It is the sense of these ‘special safeguards’ that mean that protecting the rights of the child raises different issues from the rights of mature adults. However, this does not mean that children’s rights are ‘difficult’ or somehow less than adult’s rights. Thus, Article 1 acknowledges that a child is defined by a lack of majority; in this sense, the child is outside of the law, deprived of legal status and something less than an adult. Article 3 articulates a key principle that is meant to resolve at least some of the problems of this lack of maturity and legal status. The principle of ‘the best interests of the child’ governs all dealings with children whether by public or private actors.

The best interests of the child, or at least as it relates to ‘protection and care’ Examiners’ report 2013 5 must take into account ‘the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her’. One problem with the ‘best interests’ is that (presuming that it is possible to determine the best interests of the child) these best interests, if determined by a public or private agency, could easily conflict with the ‘right’ of the parents or guardians to determine themselves what is best for ‘their’ child (see, in particular, Article 5) . This might take us to some problematic areas of children’s rights, and introduce certain tensions into the concept, but it is not as if these issues are absent from the broader issue of human rights. Material from Chapter 7 of the subject guide, in particular sections 7.1 and 7.2, is relevant for this question.

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Question 6 “Recent events clearly show that there is now a right to intervene in the domestic affairs of a sovereign nation to prevent the abuse of human rights.” Discuss.

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The title statement is true but it is the subject of much heated debate. The balance between national sovereignty and human rights has swung back and forth down the ages. The current situation favours the latter over the former but the preference is not absolute.

A sovereign nation is one that has rightful power over its own territory. All member states of the United Nations are recognised as being sovereign. The situation is more complex since 28 of them are members of the European Union which is partly sovereign itself. Moreover, sovereignty is widely disputed. Russian claims sovereignty over Crimea. Some people claim there is such a country as Kurdistan and there are many other such examples.

In past centuries non interference was seen as a core principle of international law. This was laid down at the Peace of Westphalia in 1648. It was reasserted at the Congress of Vienna 1815-20. In fact conservative governments in Europe continually intervened through the 19th century to quell rebellions and put dynastic or ‘legitimate’ rulers back on the throne. In the late 19th century European imperialism reached its zenith. Imperialists felt they had an unbridled right to invade other countries to civilise them.

The United Nations founded in 1945 reasserted that non-interference in domestic affairs was a central tenet of international law. This can be seen in the Charter of the United Nations and to some extent in the Universal Declaration of Human Rights. There is a cognitive dissonance here since if rights are universal this necessarily trammels the sovereignty of nations. One of the arguments put forward by Hermann Goring at the Nuremberg International Military Tribunal was that Germany was entitled to do whatever it wished to its own people including murder. If one accepted that states has unlimited legal power to do as they wished to their own subjects then there was logic to his defence. This defence was rejected by the court.

Since 1945 the UN has moved away from absolute national sovereignty. The very fact that there is such a thing as a crime against humanity means that there are restrictions on what a state may do to its own people or to foreign nationals residing within its frontiers.

The Convention on the Decolonisation seemed to underscore the primacy of national sovereignty. Many former colonies in Africa and Asia gained independence in the 20th century. They were creations of colonial metropolitans such as the United Kingdom and France. Therefore they had no independent history of nationhood. They often contained minorities who strove for independence such as Biafra in Nigeria. Newly independent countries jealously guarded their sovereignty since they had been controlled by other countries for decades or centuries.

Gross abuse of human rights have occurred in many countries since 1945. The tyrants last resort has always been to plead national sovereignty. He has told human rights organisations, the UN and other governments to butt out because it is an internal affair. This was the case from Pol Pot, to Fidel Castro, to Zia ul Haq, to Stalin to Mao.

More and more International Non Governmental Organisations have campaigned for human rights. These include Amnesty International and Human Rights Watch. The UN has a Human Rights Commissioner, a Human Rights Committee and special rapporteurs to monitor the situation. All UN agencies have a human rights function. Much data has been compiled so we can see what the situation is like. Human rights has not improved more because governments have been able to get away with it.

Under the UN Charter the UN can authorise military action in the case of aggression such as in Korea in 1950 or when Iraq invaded Kuwait in 1990. Internal genocide has not been prevented because of national sovereignty. In Kurdistan in the 1980s there was genocide but it was seen as an internal issue. The Ba’athist regime was able to escape proper scrutiny because the Soviet Union would veto any United Nations Security Council Resolution. The same was true in Rwanda where people would not call it genocide lest that obligate them to act.

The UN condemned South Africa’s racist policies and called for sanctions. This was an example of a domestic policy being so offensive to human rights of dignity and equality that interference with national sovereignty was permissible. YET the UN did not call for armed action. In 1965 the UN authorised the UK to use armed force against Rhodesia which was a renegade colony under white rule where the white immigrants were depriving the black majority of almost any say in government. The United Kingdom did not use armed force but the precedent was there. The UN could allow armed action in internal affairs with the objective of protecting human rights.

The UN authorised Operation Restore Hope in Somalia in 1992. This was a human rights mission.

In Yugoslavia in 1999 the Yugoslav Armed Forces carried out several large scale massacres. The UN refused to order armed action. NATO took military action anyway to drive Yugoslav forces out of Kosovo where they were committing atrocities. No army is ever perfect in its conduct. Any army will be guilty of a few crimes in a war. The difficult question is what level of crime is so unacceptable that armed action is warranted?  When NATO intervened they too killed civilians so Yugoslavia could retort tu quoque. Moreover, Yugoslavia was fighting on its own sovereignty territory. Most scholars would say NATO’s action was unlawful.

When 40 countries liberated Iraq in 2003 it was partly because they were acting under a UN SCR from 1990 which only suspended and did not end the right to use force. There was a new UN SCR from 2003 warning of serious consequences for non compliance with the obligation to dismantle Weapons of Mass Destruction in a verifiable manner. Serious consequences was an ambiguous phrase and some said this did not permit military action. Those who liberated Iraq in 2003 said they were doing so for the cause of human rights as well as because of WMD. Those who opposed the invasion usually admitted that the human rights situation in Iraq was horrific. But the national sovereignty line of reasoning was used to say that the Iraqis should suffer under their hideously cruel regime indefinitely.

Proceedings for the South African Presence in Namibia was a 1980s law case. It stated that Namibia had sovereignty and South Africa’s occupation thereof was illegal. Miliary Action and Paramilitary Action in Nicaragua was another case in the International Court of Justice in the 1980s. It reaffirmed national sovereignty and condemned the United States for assisting insurgents. Nicaragua against Honduras was another ICJ case arriving at the same conclusion.

Javier Perez de Cuellar former Secretary General of the UN says that international law is increasingly favouring the view that intervention to save the oppressed is justified. The difficult issue is to decided what constitutes oppression? Who decides? One cannot be sure that the outcome will be better than not intervening.

In the 1990s the UN was negligent in protecting human rights in Yugoslavia. Dutch UN peacekeepers allowed thousands of Muslim civilians to be massacred in Srebrenica.  There is a new legal doctrine  – responsibility to protect. The Netherlands later accepted it was negligent. The UN has brought former heads of state to trial for crimes against humanity. This again undermines the notion of endless national sovereignty although it does not directly suggest that armed action is allowable in the case of terrible human rights violations.

 

African and Asian countries tend to be sceptical of human rights as a reason for intervention because this sounds resonant of the arguments for imperialism in the 19th century.

The Civil War in Syria is a case in point. The UN has not authorised action for human rights as such but against ISIS which is a major abuser of human rights. ISIS is a terrorist organisation but the Syrian regime is little better. The Ba athist dictatorship in Syria has avoided proper intervention by other countries because it has diplomatic support of two permanent members of the UN SC these are Russia and CHina. In Libya the UNSC authorised armed action to prevent massacres by the regime when Gaddafi attempted to crush protests and rebellions against his personality cult dictatorship in 2011.

When the Ba’athists in Syria were strongly suspected of using poison gas against their own civilians there was a clamour to use armed action to prevent the Ba’athists being able to do this again. The UN did not authorise the use of force nor would it have done because the Syrian dictatorship had the unstinting support of two governments that care little for human rights – China and Russia.

It is improbable that anything less than genocide is enough for a humanitarian intervention to be justified. Genocide can be killing as little as one person or indeed carrying out on lethal acts as specified in the Convention for the Prevention and Punishment of the Crime of Genocide. This could be taking children away from parents or separating men and women. This sort of thing occurs very frequently. In an armed intervention the intervening force will necessarily kill civilians by accident. No army is blameless and some intervening soldiers will commit war crimes. Therefore the level of violence has to be very high before an intervention to stop genocide is allowed.

In conclusion, international law is now sympathetic to humanitarian intervention. However, the abuses have to be severe before intervention is warranted. Realpolitik means that horrific regimes will be be intervened against so long as they have the backing of a UNSC permanent member. This is about diplomacy more than law or ethics.

====================

General remarks This question brings together material from Chapters 2 and 12 of the subject guide. It would probably be best to disagree with this statement. Admittedly, the principles of sovereignty are put into question by human rights, but this does not amount to a right to intervention. An intelligent answer would review the relevant principles of international law in relation to the UN Charter and the arguments that justified the invasion of Iraq.

This could also be put in the context of other interventions in the affairs of sovereign states. However, as most commentators suggest that justifications for war in Iraq were questionable, it is unlikely that human rights law has developed a right to military intervention. A well-argued answer would examine the relevant law – under the Charter and international law more generally – to define the precise scope of the sovereignty principle in the context of intervention and conclude that the Iraq war has not created an authoritative precedent for human rights-orientated military intervention. An up to date answer considering interventions in Libya and arguments around intervention in Syria would also receive credit.

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Question 7 “The failures of refugee law bear out Hannah Arendt’s essential insight into human rights; human rights are the ‘right to have rights’.” Discuss.

============

Hannah Arendt’s statement makes little sense with regard to refugees. A refugee is someone who flees to another country due to a well founded fear of persecution. The refugee does not have to fear for his or her life or indeed worry about violence at all. Sometimes people flee within their country and are internally displaced persons – this is not quite the same as a refugee.  Refugees sometimes flee conflict but sometimes they run away from persecution such as Muslims fleeing Burma. The International refugee is from 1951. There is a 1967 protocol thereto which many states have signed.

The International Convention on Refugees governs how refugees are to be treated. The United Nations High Commissioner for Refugees is in charge of relief efforts.

The conventions relating to refugees spell out what rights they have. They are to be protected and furnished with adequate food and shelter. They are to be given medical care free of charge. Children are to be enrolled in school.

Refugees flee because their rights are violated. Therefore there is some merit to what Hannah Arendt said. There are millions of refugees in the world because of conflicts and persecution. The Syrian Civil War has caused millions of Syrians to leave their country.

The world’s system for coping with refugees is stretched to its limits. Since the fall of the Gaddafi regime hundreds of thousands of African have passed through Libya en route to Europe.

Many refugees are in Iran and Pakistan. They have fled the endless conflict in Afghanistan.. These people are often living in camps and are poorly provided for. Their rights are not properly respected. Their humanity seems not to be fully acknowledged.

Refugees are to be processed. If someone if found to be a genuine refugee then he must not be subject to refoulement. This was as in the House of Lords case R (ex parte Karakaran) v Secretary of State for the Home Department. Then a state would be in breach of its obligations to shelter refugees. Refugees must be let out of a detention centre once their claim is found to be valid. At that point a refugee is allowed to work, access to benefits and all the rights of a citizen of that country except political rights. A refugee who marries a citizen of the host country must be allowed to stay indefinitely. The same is true of the refugee is a parent of a citizen of that country. These rights are not honoured in all countries. Similarly refugees are to be allowed to practice their religion and live their cultural life.

Not all states protect refugees properly in their law. The states that have complied with international laws but flout their own law.

In conclusion, refugees have rights but fewer than people in their own country. People are refugees because of human rights abuses. Arendt’s statement is misleading. Refugees are by no means all badly treated.

======================

General remarks Question 7 draws on material in Chapter 9 of the subject guide, in particular (as it draws on the Arendt quote), section 9.1. As with Questions 3, 4 and 5 the question asks the candidate to read the substantive rights of the 1951 Convention and the 1967 Protocol in the light of a claim about the nature of refugee rights. Arendt is talking about the way in which rights define the ‘civic’ status of the individual.

To be deprived of this civic status is to be deprived of rights, and thus, of one of the main ways in which one’s humanity is recognised. Section 9.1 elaborates this point with reference to the work of Agamben, and his perspective might also be worth bringing into an essay on this subject. The way to answer the question is perhaps to agree with Arendt’s insight, and then show how the various rights that a refugee has are ways of protecting an individual’s civic status. The difficulty, of course, is that this status is normally the product of national laws

. As a stateless person, a refugee is deprived of this ‘marker’ of their formal identity. It is also worth drawing attention to the reason why refugee law must deal with the rights of men and women as refugees: men and women must be recognised as such by the law of human rights. LA3029 International protection of human rights 6 It is also worth pointing out that this question is somewhat wider than a consideration of the rights of refugees. Note how it relates the question of refugee rights to the broader nature of human rights. In other words, the question is asking a candidate to engage with whether or not refugee law offers a unique insight into the nature of human rights (i.e. human rights are what ‘makes’ or defines human beings). It is worth thinking about these issues through the lens of the material contained in section 3.9. This allows us to stress our main point: think outside of the narrow subject divisions that the course uses, and try to link together the themes that the course is structured upon.

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Question 8 “The problem of human rights as a legal order is evident in all regional systems for human rights protection; whether one looks at Europe, Africa or the Inter American system, courts fail to enforce human rights.” Discuss with reference to TWO of the following THREE:

(a) the African system;

(b) the Inter American System;

(c) the European system.

=============

Human rights is not just a philosophical concept. It is part of international law as set out by the United Nations and it various treaties. There are also regional human rights systems such as the European Convention on Human Rights and the African Charter of Human and People’s Rights.

International Human Rights Law is judged by the International Court of Justice in the Hague and also by the International Criminal Court. The ICC follows the procedure laid down by the Statute of Rome. This applies various international laws. There have been ad hoc tribunals established ever since the Nuremberg International Military Tribunal in 1946.

The African Court of Human and People’s Rights is based in Arusha, Tanzania. It hears cases against state parties. It is only semi effective in providing redress. Common criticisms of it are that it is too dilatory in providing remedies and tends to side with the authorities against individuals.  Gross human rights abuses have occurred on this court’s watch. Robert Mugabe has used large scale violence to maintain power and his followers have killed hundreds of opposition activists without the court doing anything. There are far worse misdeeds in Africa such as genocide in Darfur. The President of Sudan Omar Al Bashir has been indicted before the International Criminal Court although not apprehended. The African Court tends to favour pan African solidarity over the lives of African people.

The European Convention on Human Rights 1948 was the first regional legal order about human rights. It took effect in 1951. At first it was very ineffective. Algeria was part of France until 1962. Despite France having ratified the ECHR the French military carried out many large scale atrocities in Algeria with virtual impunity. The ECHR has become more effective over time.

The reason the word ‘People’s’ is part of the African Charter is because the system stresses collective rights over individualised rights. Africa’s mindset is supposed to be more communal as the Charter says. The African critique of the UDHR and the European system is that it is Eurocentric and too atomised. We are members of a community. We must promote the common weal over personal wishes. Too often this rarionale has been an excuse for turning a blind eye to blatant crimes.

The African Court is relatively new so one must make allowances for teething problems. African countries are fairly newly independent so tend to guard their sovereignty more fierecel. Moreover, the African Court faced more obstacles. In many countries civil society was not highly developed. Freedom of speech was not well protected. It was difficult to garner accurate information. Many people did not speak the official language of their country. Illiteracy was the worst in the world. People were not apprised of their entitlements. Furthermore, countries had a tangle and farrago of legal system with common law and Sharia law often operating in the same nation.

The European Union requires all its member states to have incorporated the ECHR . The European Court of Human Rights has made countless landmark rulings such as permitting homosexual to serve in the British Armed Forces.

The European Court of Justice follows the ECHR’s jurisprudence but generally does not deal with human rights issues.

The E Court of HR is still fairly feeble. It was created by the Council of Europe which is NOT an EU body. The Council of Europe has 48 member states including all of the EU states. There is one judge from each Council of Europe country at the ECourt of HR in Strasbourg. Countries which have ratified the ECourt of HR are among those with a poor human rights record. Russia is one of them. The Russian Army has indubitably carried out several massacres in Chechnya and its enemies in Chechnya are no better. The ECHR has been a failure at bringing people to justice for such crimes. It is often said that the ECHR is too deferential to member states.  Throughout the fighting in the former Yugoslavia the ECHR was not helpful. Compliant judiciaries in the warring territories allowed many crimes to go unpunished. Few judges had the courage to rule against a member of their own ethnicity and in favour of someone of another ethnicity in time of conflict. To do so was to be called a traitor. Judges need to be mindful of the Ancient Roman dictum – fiat justitia ruat caelum – do justice though the sky should fall.

National sovereignty is favoured over human rights all too often. If the ECHR got serious about upholding human rights then Russia would withdraw therefrom.  The ECHR has tended to obsess over minor issues such as whether a man with a conviction for inciting terrorism – Abu Hamza – could be extradited from the UK to the United States. It took years to reach this decision. In the meantime hundreds of civilians were killed by various armies and no action was taken.

Human rights do not only operate through court. Human rights work by persuading governments to improve their conduct. This is a diplomatic as much as a judicial process.

In conclusion the title statement is apposite. Despite the admirable human rights provisions in the international legal order enforcement is patchy at best.

 

 

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General remarks

This is a rather straightforward question that requires the candidate to show, with respect to two regional systems, that courts fail to enforce human rights. The question covers material contained in Chapters 13, 14 and 15. One’s approach largely depends on the regional systems that one chooses to examine. Clearly the European system has a well developed court, the African system a less well developed court, with the Inter American system somewhere in between. The general point about human rights ‘enforcement’ discussed above in relation to Question 2 is also relevant in the context of this question. To look at human rights in terms of legal remedies may misconceive how human rights systems operate.

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About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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