Int’l Human Rights. 2011. report

Standard

Question 1 ‘Since the promulgation of the Universal Declaration in 1948, human rights considerations have completely transformed the fundamental concepts of international law.’ Discuss.

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The UDHR was not legally binding at first. Its influence is felt in international law however the degree of change felt has not been as dramatic as is suggested by the word ‘transformed’. It seemed to be an expression of ideals. These were endpoints towards which countries would progress. The UDHR soon became part of soft international law. In the case of monist states like Frances treaties that are ratified become part of domestic law. In that sense the UDHR’s provisions become part of international law. There are many conventions which related to the UDHR such as the International Convention on the Rights of Migrant Workers, the International Convention on the Rights of people with disabilities.

International law already had some notion of human rights prior to 1948 although the term human rights was seldom employed.The Nuremberg International Military Tribunal arraigned men for”crimes against humanity” as well as other alleged offences. It was notable that one of those brought to book at Nuremberg was Hermann Goring. As Hitler was dead this man was the German Head of State. Nevertheless he was called to trial. Previous heads of state had been tried by their own people such as Louis XVI, Charles I or Edward II but never before had a global court put the head of state of another country on trial. The Tokyo War Crimes trial also charged several hundred men (and I mean men) with ”crimes against humanity” as well as a host of other charges.

At the end of the First World War it was agreed at the Treaty of Versailles that the Kaiser would be indicted for ”supreme offence against international morality.” They did not use the word law and in the end he was not extradited by the Netherlands where he had been granted asylum. There were international laws prior to this but they concerned state to state relations rather than how a state treated its own folk. Moreover, the Geneva Convention and the Hague Convention were already part of international law. Germany was accused of breaching this conventions. In fact all belligerents to the conflict breached these convention but some with greater frequency and severity. This is why there was some legal basis to charge the Kaiser. Other jurists maintained that there was no widely accepted and lucid standard for such laws and that any charges would be laughed out of court on the opening day of the trial.

The UDHR has changed international law in that human rights are part of international law as almost every jurist agrees. It is held by some that there is a responsibility to protect as a legal principle. When NATO launched air strikes against Yugoslavia in 1999 the ostensible reason was to prevent further massacres of Kosovar civilians by the Yugoslav military. Some lawyers such as Tony Blair maintained that this action of NATO was lawful. That is generally not accepted but the very fact that he could advance such an argument was novel and could not have been made had human rights not entered international law. He pointed to the 1948 International Convention for the Prevention and Punishment of the Crime of Genocide.

The International Human Rights law are enforced in different ways. There is a UN Human Rights Commission and a UN Human Right Committee. Yes, that is right two separate bodies. There is a UN Human Rights Commissioner. There are special rapporteur who look into the predicament of different categories of people or into countries with especially poor human rights records. The UN Human Rights Commission reviews human rights in every country every four years. There are many other bodies which administer each treaty such as the UN Women’s Rights Commission, the UN High Commission for Refugees etc…

Human rights are enforced by publicising abuses. Governments are shamed into action. There is diplomatic pressure and there are votes in the UN General Assembly to shame recalcitrant states. The UN Security Council orders real action such as sanctions or armed action. The remedies are seldom judicial but usually political and diplomatic. This represents a change in international law.

Human rights law in the international sphere have made their way into domestic law. This is the case with hard law relating to first generation rights (civil rights), second generation rights (social rights) but not so much third generation rights (the right to development) since this area is contested and difficult to legislate for.

There have been various UN courts set up for a temporary period to handle particular situations. These include the International Criminal Court for the former Yugoslavia and the International Criminal Court for Rwanda. The full name of both the ICTY and the ICTR included the words ”humanitarian law”. There is now the International Criminal Court which was founded by the Statue of Rome. The ICC is permanent and it is a major innovation.

The UN is much more comfortable about intervening in the domestic affairs of countries. At the founding of the UN it was said that the UN would not meddle in domestic affairs. This created a tension between the mission to bring human rights to all and the need to respect national sovereignty. It is the state that often commits human rights abuses or at the least is negligent is seeking to obviate such wrongs been done. Human rights is an area that is evolving continuously. Genocide and grave breaches of human rights law are now taken much more seriously than heretofore. However, as one can see in Syria and the Sudan there are still grave violations that are ongoing and do not meet with condign action.

In conclusion it is irrefragable that human rights have morphed international law. The rule of law has been emphasised by making plain that no one is above the law. Former heads of state have been put on trial for breaches of human rights. Among these are Laurent Gbago, Charles Taylor, Saddam Hussein and so on.  Augusto Pincohet Ugarte was arrested on a Spanish warrant claiming world jursidiction for human rights violations.He was eventually released because he was unfit to stand trial.  It is patent that human rights have transformed international law. One of the core precepts of international law that has been transformed is the notion that sovereignty is a bar to human rights law. What a state does to its own people is a concern of international law.

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General remarks

This was not a popular question, which perhaps deprived some candidates of the chance to write on a fairly straightforward topic. Admittedly, the question seems rather broad, but, within the context of the course, it would have been possible to deal with the issues raised in a fairly robust way. As the number of candidates answering this question was so small, nothing meaningful can be pointed out about the spread of marks. 266 0029 International Protection of Human Rights 2 Law cases, reports and other references the Examiners would expect you to use The main material for an answer to this question could be drawn from Chapter 4 of the subject guide in general and 4.1 in particular. A good candidate could perhaps draw on ideas discussed throughout the subject guide (Chapter 11 and the material on the ICC would be useful in this respect; as could some ideas drawn from Chapter 12). Clearly, reference to the Universal Declaration is necessary; but the real focus of the question is on the relationship between human rights and international law.

Common errors

It is difficult to report on common errors, as there were few answers to the question. Perhaps the main error is sticking to the tried and tested areas (see below) rather than trying to think more creatively about the issues that the course raises.

A good answer to this question would… The starting point should be the thesis that the candidate presents in response to the question. It would perhaps be hard to argue that human rights have ‘completely transformed’ international law, as this would suggest a degree and extent of change that is probably not the case. However, human rights have clearly had some impact on the concepts and practices of international law. In general, human rights have qualified one of the founding ideas of international law: the sovereignty of the nation state. It would also have been possible to argue that human rights norms have fed into notions of international social and economic development. A good argument might also make links between these ideas and the ICC’s role in prosecuting crimes against humanity and genocide. It is as if human rights are providing a focus for an ongoing transformation or re-articulation of the norms of international law.

Poor answers to this question…

Given the lack of responses to this question, it is impossible to point to any general patterns. However, to stress a point above: it would be worth considering answering a question like this in the 2012 exam, as it allows candidates to link together themes in the course and to show knowledge of pervasive themes from across the course.

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. Question 2

‘The old distinction between social rights and civil and political rights no longer holds; the new consensus is that all rights are indivisible.’ Discuss.

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The title statement is misleading. First of all this redaction shall define the terminology used in the question. Social rights are those such as the right to a living wage, the right to healthcare, the right to schooling, the right to sufficient leisure time and the right to support in time of unemployment. Civil and political rights pertain to the right to vote, the right to express opinions, the right to form organisations, the right to a fair trial and the right to life.

Both civil rights and social rights were set forth in the Universal Declaration of Human Rights. Civil rights had been recognised in some form for millennia. Ashok in India granted such rights as did Cyrus the Great in Ancient Persia. However, social rights were relatively new. In the UNDHR the accent was on civil rights. However, it said the right to participate in government and did not actually say the right to vote.

There is some connectivity between social rights and civil rights. The right to life is worth nothing if one dies due to malnourishment. Moreover, one cannot be aware of many rights or able to exercise them if illiteracy makes one ignorant thereof. The right to a decent wage matters more to many people than abstract rights such as the right to protest. Communist countries emphasised social rights and were proud to provide the necessaries of life for their citizens whilst stifling free expression and criminalising dissent.

One may want civil rights in order to attain social rights. Supposing one dwells in a dictatorship which provides no amenities and where most people live in penury. Then one may wish to change society such that people are provided with a tolerable standard of living. It is impossible to do so by peaceable means if one is not allowed to speak out for social justice, to forgather and to vote. Therefore one type of rights can lead to another – enabling one to form a political movement for the upliftment of the residuum. Some juntas such as in Latin America in former times tended to deprive their subjects of both sorts of rights. Defenders of authoritarian systems often claim that social rights are worth more. The trouble is that a dictatorship can propagate dishonest propaganda such that people are made to believe they live decently and no better life is possible. This was the case in Ceausescu’s Romania.

There are various international conventions calling for the extension of such rights. Among these are the International Convention on Civil and Political Rights. There is also the International Convention on Social, Economic and Cultural Rights. Both have protocols and both have UN bodies to superintend their implemenation. Many states have given effect to these rights in national law. In fact the more advanced countries like Sweden had largely met these standards even before these human rights instruments were promulgated. The ICCPR calls for the right to vote, ”in regular, free and genuine elections”. The UNDHR only says the ”right to participate in government” and does not specificially say the right to cast a ballot.

There are some people certainly on the liberal left who take the view that these two sorts of rights are intertwined. They believe that civil rights are not much use without healthcare. Moreover, they are convinced that if people have a political voice they will demand publicly funded healthcare. There is some merit in this line of reasoning.

In conclusion, the two sorts of rights are indeed interrelated. More and more people take this view.  However, it is a considerable exaggeration to say that there is a consensus on this. A consensus would suggest that a high majority of people and states concur on this issue. There are plenty countries were people are denied both kinds of rights.

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General remarks

 

There were very few answers to this question. For the reasons outlined above, this is disappointing – as it shows that candidates might be approaching the course in a somewhat limited way, rather than trying to grasp some of the interesting generic themes. As the number of candidates answering this question was so small, nothing meaningful can be pointed out about the spread of marks. Law cases, reports and other references the Examiners would expect you to use Specific discussion of this theme is to be found in 4.2 of the subject guide; but a supplement on this theme was also issued in 2011. Reflection on the material in Chapters 6, 7, 8 and 9 would also be relevant. The material in Chapters 13, 14 and 15 could also be brought into discussion. Examiners’ report 2011 3

Common errors

 

The most common problem was not answering the question; this is not so much an error, though, as a failure to consider the course material in a creative way. A good answer to this question would…

This is a fairly straightforward question, and it would probably be best to assert that the statement is largely accurate. The old distinction between civil and political rights and social and economic rights has perhaps largely broken down – to the extent that rights are seen as indivisible. It is impossible to summarise the debate on the nature of social economic/civil and political rights due to limits of space, but the 2011 supplement should give you a sense of the debate. A good essay would provide an overview, and perhaps suggest that the consensus is perhaps moving away from a notion that social and economic/civil and political rights are radically different. Moreover, if one looks at the various Covenants and the regional human rights instruments, one can find good evidence of the indivisible nature of rights. Poor answers to this question… Given the lack of responses to this question, it is impossible to point to any general patterns.

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Question 3

‘The idea of women’s rights is too general and vague to be analytically useful. One should instead think of the rights of girls, widows and married and unmarried women.’ Discuss.

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The title statement is specious because women’s rights is indeed a helpful category. Moreover, there is no need to classify women by their marital status. Women are usually married to men and very seldom to other women since few jurisdictions permit same sex marriage. By grouping females according to their marital status this tends to feed into the patriarchal narrative that women are little more than appendages of males.

Women’s rights is a special subcategory of human rights for a few reasons. Foremost among these is the fact that women were denied many of the rights granted to men for centuries. In the 1640s some Englishwomen petitioned their Parliament calling for rights. They were told to ”meddle with their housewifery.” In the 1790s Mary Wollstonecraft’s ‘Vindication of the Rights of Women’ was perhaps the first feminist text. Through the 19th century women acquired more rights especially in Western countries. Only in the 20th century did women gain equality before law in most countries. Until the 20th century almost every, judge, lawyer and lawmaker was male. Unsurprisingly laws reflected male perspectives and masculine privileged. Another reason for female rights being a particular subset of human rights is there are certain issues which tend to affect women as women. Sometimes these issues impact on males too but they affect women much more.

Women’s rights cover issues such as reproductive health, discrimination in employment, rape and gender equality. Reproduction is blatantly an issue which is pertinent to both sexes however women are the ones who are negatively effected by premature pregnancy or too many pregnancies. This is a health issue but also an educational one. Girls who have children in their early teens find it very difficult to continue in education or do any job that is more than menial. This leads to one of the most fiercely contested issues of all and that is of elective abortion. This is permitted in most Western countries but forbidden in most Islamic countries. It varies in the rest of the world.

Women are often discriminated against in employment. Men make up a clear majority of almost every profession besides teaching. Perhaps it is to be expected that teaching is one of the lowest paid. Moreover, women are particularly vulnerable to discrimination if they have young children or are suspected of being about to have children. It is seen that this reduces their workplace productivity yet the same line of reasoning is never applied to a young father. Women are sometimes sexually harassed in the workplace. They very seldom make it to the top of an organisation. They are judged on their sex appeal. Sometimes after menopause their are discriminated against because not many men find them desirable.

CEDAW is mindful of the fact that women have different needs at different stages of their lives. It makes provisions to this effect. It ties in with the Convention on the Rights of the Child. The African Charter of Human and People’s Rights has its own women’s section. There is also a protocol to CEDAW which takes the rights further.

It is foolish to try to separate women according to different marital statuses. Unmarried women may become pregnant and be discriminated against in the workplace the same as women who are married or widowed. It is important to note that in some societies widows have low status. This is the case in rural India and in Kenya. Marriage is a feminist issue. Some girls are forced into marriage when below the legal age. The legal age is shockingly low in some Less Economically Developed Countries. It can be as young as 12 which is very unhealthy. Moreover, some girls are betrothed when even young than that. Underage marriage against makes education and well paid employment all but impossible to obtain. Some countries do not recognise that rape can occur in marriage. Polygamy is allowed in some countries and many women consider this to be a pernicious inequality. In the Occident women quite often have children while single or living with a boyfriend. The traditional married nuclear family is on the decline. In that sense marriage matters less. We must not overlook the fact that 2% of women are lesbians and usually are not permitted to marry the person of their choice.

Girls are obviously children. They have many of the same needs as boys. However, as has been stated there are certain issues that hurt them far more than boys. Girls are much more likely to be obliged to marry too young than boys are. Becoming a parent too soon is much more of an issue for girls than boys. Female genital mutilation is an outrage that effects girls. Male circumcision is trivial by comparison.

For the foregoing reasons women’s rights is a useful category.

In conclusion, women’s categories is analytically utile. It would be retrograde and pernicious to seek to separate women by marital status.

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General remarks

This was a popular question, and on the whole candidates provided respectable answers. Marks ranged between mid 2.2s and low 2.1s. Law cases, reports and other references the Examiners would expect you to use The question in based on the material presented in Chapter 6 of the subject guide.

An answer should focus on Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), but a candidate could also draw on material in other chapters of the subject guide, as the question does not specify a focus solely on CEDAW. Common errors The most common error made by candidates was to offer a summary of notes, rather than engaging with the question itself. A related problem was to offer an outline of a thesis relating to the question in the introduction, but then to fail to develop it in the body of the arguments itself. A good answer to this question would…

 

A good answer could begin by agreeing with this general statement. Perhaps the notion of ‘women’s rights’ is too general. However, if one looks closely at CEDAW, one would find that it does take into account the criticism the question is raising. CEDAW does offer a notion of discrimination that takes into account women at different stages in their lives. The Convention also reflects the different choice that women make about their bodies and the opportunities offered to them. Articles 9–14 could be analyzed in these terms. However, it would be worth taking into account the criticisms of CEDAW outlined in 6.2.5 of the subject guide. A good answer would also link discussion to the Convention on the Rights of the Child – in particular Articles 34–36 (this raises the problem of CEDAW and the trafficking of women). One might also draw on African human rights, in particular the Protocol on the Rights of Women – and show how it is structured by similar distinctions to those made by CEDAW. 266 0029 International Protection of Human Rights 4

Poor answers to this question…

It is not possible to reflect on bad answers, as most candidates provided a respectable response to the question. Better answers were distinguished by the organisation of the argument, and, as pointed out above, great answers would have engaged with material from different areas of the course.

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Question 4 ‘The prohibition on discrimination on the grounds of race fundamental to human rights.’ Discuss.

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The prohibition of racial discrimination is indeed fundamental to human rights. This is hinted at in the preamble to the UDHR. It states that human beings are born equal and alike in dignity. To seek to establish a racial hierarchy would be to strike at the heart of these nostra. The UDHR later explicitly prohibits racial discrimination.

When the UDHR was published many countries practised legal racialism. The UN was unwilling to intervene in domestic affairs. At first racist policies met with only muted criticism from the UN which was then overly respectful of national sovereignty. The United States had many states which had racist laws into the 1960s.

The UN became more strident in condemning racism in the 1950s. More colonies became independent and pressure built to take zealous action against racism. This lead to sanctions against South Africa by most countries and the International Convention on the Elimination of All forms of Racial Discrimination. This has been signed by almost every country and a UN body oversees it. It is important to note that the ICERD specifically states that discriminating to help a previously mistreated group is allowable. Positive discrimination exists and is laudable whether as negative discrimination is banned and is loathsome.

Anti-racism has found its way into other human rights instruments such as the European Convention on Human Rights, the Cairo Declaration on Human Rights in Islam and the African Charter.

The UN has moved to terminate all forms of colonialism and neo colonialism. This practise is help to be built on racialism. The UN monitors racial discrimination. It has stated its concern that African-Americans are disproportionately incarcerated. Another example is that the UN has voiced anxiety that Libya under Gaddafi claimed there was only one ethnic group in the country and there was no racial discrimination.

The International Convention for the Prevention and Punishment of the Crime of Genocide is part of the anti racist agenda of the UN. Genocide is the ultimate form of racism.

National sovereignty is a right mentioned in the UNDHR. Moreover, it is affirmed in the Convention on Decolonisation and in the African Charter of Human and People’s Rights. The trouble is that this clashes with anti racism. Racism is often committed by the state and to tackle it require national sovereignty to be infringed. Nations are ill-defined and protean. National self-determination is a right which can be found in the Decolonisation Convention, the African Charter and the Cairo Declaration on Human RIghts in Islam. There are many ethnic minorities in many sovereign states striving for independence. Yet they are denied independence by states that themselves believe in national self-determination. This is ironic. Furthermore, national self-determination in itself can be racist and exclusionary. It can be nativist and chauvinistic.

It is sometimes hard to tell what racism is. There is frank racism and that is unambigious. If a community with X % of the population has less than X% of the wealth it is not necessarily because of racism.

In conclusion, one can only concur with the title statement. It is now universally agreed that racism is against fundamental human rights.

 

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General remarks

There were some responses to this question; it was much more popular than Questions 1 and 2, but not as popular as Questions 3 and 5. Most people who attempted Question 4 provided competent, if unexciting, answers which ranged between mid 2.2s and low 2.1s. Law cases, reports and other references the Examiners would expect you to use This question is focused on Chapter 8 of the subject guide, but it would be possible to draw on Chapters 13–15 for comparative material. Some reference to Chapter 3 could also be made. Most candidates answered the question with a focus on Chapter 8 and presented adequate summaries of the Convention on the Elimination of All Forms of Racial Discrimination and some attempt at framing a response to the question.

Common errors

Common errors were similar to issues encountered with Question 3. It is important to read the question and respond to all the issues raised. Arguably the question requires more consideration of the concept of human rights than most candidates allowed. Note that it raises a general point about human rights and discrimination; the issues thus extend beyond the Convention on the Elimination of All Forms of Racial Discrimination. A good answer to this question would…

A good answer would link the prohibition on discrimination to the very idea of human rights, and the fundamental concept of dignity which is central to the articulation of human rights. An outstanding answer would also offer some comments on which discrimination on the grounds of race is inconsistent with such an idea; as well as linking the principle to the attempt to move away from a colonial world order. These themes could then be read into the Convention on the Elimination of All Forms of Racial Discrimination and into regional human rights catalogues to show that they are fundamental to the structure of human rights norms.

Poor answers to this question…

There were no bad answers as such. All candidates identified that this was a question about discrimination, but no (or very few) candidates realised the reach of the question and the need to think outside the narrow focus on Chapter 8. Examiners’ report 2011 5

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Question 5 ‘The Convention on the Rights of the Child does not create a viable regime for the protection of the rights of children.’ Discuss.

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The Convention on the Rights of the Child 1989 states the rights of children and provides a framework for enforcement. Like many human rights instruments the regimen for upholding these rights is not strong.

The United Nations Organisation has a Children’s Commissioner. There is a Children’s Rights Commission. The Children’s Rights Commission examines the state of the rights of the child in all countries. The commission also examines children’s rights thematically across the globe. These themes can be education, healthcare, child refugees, ethnic minority children etc… Disadvantage can be intersectional such as being a disabled child, or a child refugees. The Children’s Commission produces reports on children’s rights in various countries. This encourages countries to ameliroate the lot of children within their borders. States can complain about the condition of children in other lands. The state which is accused of failing its children has the right to respond. Nations tend to be shamed into improving their conduct.

The Convention on the Rights of the Child also empowers the UN to nominate special rapporteurs to produce reports into children’s rights in various countries or thematically. This scrutiny leads to better behaviour towards children on the part of states. There is an optional protocol to the rights of children. All states expect the USA have ratified the Convention on the Rights of the Child. Some states have reservations on the CRC.

The CRC has optional protocols. These include prohibitions on child prostitution and child pornography.

The regional human rights instruments include special sections for children. These include the African Charter on Human and People’s Rights. The African Charter on the Rights and Welfare of the Child.

Children’s rights have improved as a result of CRC. Literacy is higher than ever before. Healthcare for children has improved and child mortality has decreased. Furthermore, fewer children are in fulltime work. Child marriage is on the decline. Children are less frequently forced into slavery. Non Governmental Organisations are increasingly effective at working with governments and the UN to improve child welfare. Many states have passed child welfare legislation.

Problems still remain. Less Economically Developed Countries tend to see economic growth as assuming a higher priority than child protection. In some countries such as Nigeria underage marriage is time honoured and in traditional, rural communities it is the norm. Such practices are difficult to root out. The state is reluctant to take precipitate action because it would upset too many people. In conflicts such as in Syria child soldiers are sometimes used. When every other human right is abused the right to be a child is not honoured. Moreover, certain religious groups hold that underage marriage has divine sanction. In LEDCs with poor educational provision some children never go to school. Child trafficking occurs. SOme children are exploited in the most underpaid jobs and prostitution. Governments somestimes underfund child welfare. Vested interests may be using child labour. Child protection sometimes runs into cultural obstacles.

The aims of child protection are somewhat West-centric. The idea that adulthood begins at 18 is unrealistic according to some cultures. This is especially so in countries with a life expectancy of under 50.

In conclusion, the CRC has reasonable enforcement mechanisms. Unfortunately these are still not potent enough. Children are still malnourished, homeless, denied healthcare, forced to work and obliged to marry underage. The CRC needs better enforcement and state sovereignty is an obstacle. Governments must be forced to do much more to protect the rights of children.

 

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General remarks This proved to be a popular question, with some competent answers. Marks ranged from low 2.2s to mid/high 2.1s. This is not surprising as it was a relatively straightforward question. Law cases, reports and other references the Examiners would expect you to use The question focuses on Chapter 7 of the subject guide. There was perhaps less comparative material that one could bring into the question as it very specifically addresses the Convention on the Rights of the Child. However, it would have been possible to bring in some reference to the African Charter on the Rights and Welfare of the Child (15.4) to inform a critical perspective.

Common errors

 

Weaker essays tended to offer a summary of the Convention and some general critical points, without responding directly to the question asked. Weak essays also failed to develop a coherent thesis, tending to move from point to point in either a disorganised fashion; or seemed to reflect notes and/or a model answer. A good answer to this question would… An answer’s focus should be on the criticisms of the Convention. A critical position that could be developed from Chapter 7 of the subject guide would begin by noting the problems of applying the Convention in areas such as child labour or child soldiers. This form of critique could be generalised into some understanding of weak enforcement mechanisms under the Covenant, and/or cultural problems/problems with funding and/or coordination of the work of local and international agencies. It would, of course, be possible to develop one’s own thinking on the problems of children’s rights and build on some of the points made in passing in Chapter 7.

An outstanding answer would perhaps have engaged with the notion of children’s rights as rights of imperfect obligation. Other interesting critical approaches might have speculated on the values inherent in children’s rights and perhaps suggested some form of cultural critique. In this light, it might have been interesting to make reference to ideas of children’s rights in African human rights law.

Poor answers to this question…

Candidates generally seemed to have understood the question. As suggested above, weaker essays showed little or no critical thinking about children’s rights. 266 0029 International Protection of Human Rights 6

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Question 6

‘The idea that a region needs a specific articulation of human rights that reflects its culture is hard to sustain. Rights are simply universal.’ Discuss.

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This questions points at one of the central contradictions in human rights. Human rights are supposed to be universal and at the same time take account of national particularities. The UDHR speaks of rights for all because ”we are created equal and endowed with reason.” It gives human dignity as a common right. However, it also recognises state sovereignty. The UN was at first very circumspect about intruding on state sovereignty. If one is too respectful of national sovereignty one can make human rights laughable since the state can abuse these rights and get away with it or at the very least fail to make a decent effort to uphold rights. Regional human rights instruments are helpful in that they are different iterations of human rights that are apposite to the attitudes and realities in that area of the world. The UDHR says it will have regard to the special needs and the situation in each country.

There are various regional human rights instruments. These often restate the core tenets of the UDHR. These are useful in making human rights more enforceable. The best example of a regional human rights instrument is the European Convention on Human Rights. The European Court of  Human Rights adjudicates it and all EU member states must act not incompatibly with it. The ECHR goes even further than the UDHR. The ECHR is now highly effectual in the EU. In former times it was almost worthless. Despite being signed in 1948 it did not prevent the French Army carrying out severe human rights abuses in Algeria in the 1950s despite Algeria being part of France at the time. Even now many rights in the ECHR are derogable in the time of a war or a crisis threatening the life of the nation.

The Cairo Declaration on Human Rights in Islam is kind of a regional human rights instrument. It has been signed by most Muslim majority countries. They are geographically contiguous. This is an example of a regional human rights instrument which baldly contradicts the universality of human rights. This declaration is only for Muslims so cannot be universal. It guarantees freedom of religion but will not allow Muslims to convert to another faith which is in direct contradiction to an explicit right in the UDHR.

Human rights instruments often say that they take into account national, cultural and economic differences. A margin of appreciation is allowed to states. States sign up to human rights instruments and often do so with reservations. This is permitted by the UN but only in so far as the reservation does not defeat the object of the said human rights instrument. For example Saudi Arabia agreed to the Convention on the Elimination of Discrimination against Women but only inasmuch as this did not contradict Sharia Law. This more or less vitiated half of CEDAW. Under Islamic Law a man’s testimony is worth that of two women. For a rape case to be proven there must be four adult male witnesses of unimpeachable probity. A woman who reports being raped but is unable to provide testimony of four such men is found guilty of fornication. The ban on blasphemy infringes free speech severely. The ban on usury, alcohol, pork and gambling also take away rights. The Koran and Hadith do not talk of rights very much but permit slavery.

The is a Bangkok Declaration of Human Rights. This stresses Asian values which means community solidarity. It valorises the state and devalues the individual. Stern conservatism and puritanism is the order of the day. A severe penal code is lauded. This is a very different notion of human rights from that of the UDHR.

The African Charter emphasises national sovereignty and African solidarity. This has become a reason to overlook gross human rights abuses by African tyrants. Moreover, it has prevented ethnic minorities in African states from gaining autonomy much less independence. Some African nationalists were so fixated on demonising colonialism that they forgot what good and bad is. If they call something colonial it is bad even if it is good. The African Charter states that it is intended to enhance human rights in the context of the African situation.

Nevertheless there are some core rights which can be found in all systems. These include the right to life and the right to a fair trial. Even then there is much dispute over what constitutes justifiable homicide and what a fair trial consists of. When is a war permissible? Is the death penalty ever acceptable and if so for which offences? Is jury trial essential? These are all contentious questions on human rights to which there are no unanimous answers.

There is an increasing acceptance that human rights should be the same all over the world. States are becoming more similar. There is still a very long way to go. There is now universal jurisdiction for crimes against humanity. George W Bush was convicted in absentia by a court in Malaysia. The highest standards for human rights are in Western Europe. Other areas of the world are gradually catching up. One cannot expect all nations to have precisely the same standard. For example, on the age of legal marriage there is a legitimate amount of scope for variation. As for child labour – poorer countries cannot afford to insist no child works full time until the age of 18.

In conclusion, the existence of regional human rights systems is worthwhile inasmuch as it furthers human rights. It is problematic in that some regional human rights systems do not include certain areas of rights such as LGB rights. There is no consensus on all areas of human rights so this is to be expected. In some respects certain rights are tendentious and mere assertions. Some rights are simply an assertion of a certain cultural norm.

 

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General remarks

This proved to be another unpopular question; perhaps candidates did not realise that it could be answered by reference to regional human rights systems. It could also be legitimately interpreted as a question about the nature of human rights. Law cases, reports and other references the Examiners would expect you to use The question focuses on Chapters 13–15 of the subject guide. As mentioned above, it also draws on material in Chapter 3.

A good answer to this question would… This question should be approached as an invitation to think about the relationship of regional human rights systems to the concept of universal human rights. It would be best to begin by disagreeing with the statement that the question makes. Regional articulation of human rights do not mean that human rights are not universal; they can be seen as specific applications or articulation of universal principles. The contents of the different regional catalogues and their relationship to the Universal Declaration are evidence of this point. One could develop this argument by referring to specific rights in regional systems, and showing how they relate back to the Universal Declaration. A good answer would also show how the different regional systems have attempted to develop universal principles in specific cultural and historic contexts.

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Question 7 ‘The integrity of sovereign states is a compromised principle. The international community has recognised the right to prevent a state abusing the human rights of its citizens.’ Discuss.

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The title statement is correct. National sovereignty has not been absolute since the UDHR or even before. The Nuremberg International Military Tribunal established that there are crimes against humanity. Hermann Goring argued that there is nulla crimen, nulla poena sine lege but in fact the notion of crimes against humanity predated the Nuremberg Trial. It has long been possible to be hostis genitis humanis.

The UDHR makes allowances for national sovereignty. Yet the very fact that the UDHR exists with the word ‘universal’ in it implies that states’ sovereignty is compromised.

Javier Perez de Cuellar the former UN Secretary General said that international law is moving towards the idea that the oppressed must be supported in seeking freedom.

The United Nations is the best embodiment of the international community. The UN General Assembly can condemn actions of a state. The UN can impose sanctions. The UN Security Council can authorise military action. This is usually for violating the territory of another state as happened in Korea in 1950. On that occasion neither North Korea or South Korea was a member of the UN. Nor was Korea as a whole a member of the UN. In 1965 the UN authorised the United Kingdom to use armed force against a white settler revolt in Rhodesia.

In 1991 the UN permitted a coalition to use military force to expel Iraq from Kuwait. This was partly because one stated had illegally occupied another but also because of the gross violations of human rights being committed.

In 1992 the UN allowed a humanitarian intervention in Somalia. This could be seen as a violation of the country;s sovereignty but Somalia was a failed state.

In 1994 the UN failed to act to stop the Rwandan Genocide. Some countries avoided the word genocide lest this compel them to intervene.

What is more tendentious is an internal situation. In 1999 there was a rebellion by Kosovars in Yugoslavia. The Yugoslav security forces sought to quell the insurgency and committed several massacres of civilians. The UN Security Council would not permit armed action because Russia thwarted any move against her ally Yugoslavia. NATO bombed Yugoslavia in an action which is hotly contested. Many jurists hold that this was a breach of international law. The British Prime Minister at the time was Tony Blair, a barrister, and he maintained it was legal.

In 2011 the UN voted to allow air strikes against Libya to protect human rights. A rebellion had started against Gaddafi’s regime. This authorisation was interpreted very broadly by NATO countries – or misinterpreted as China and Russia would see it. The NATO and Qatari pilots acted as the air force of the rebels.

Geoffrey Robertson says there is a responsibility to protect when genocide is being committed. He argued for the use of force against the Assad dictatorship in Syria in 2013 over allegations that the Syrian Government had used chemical weapons against its own people. The UN would not vote for such a move because two UN permanent member states China and Russia are stalwart allies of Assad.

SOme countries still valorise national sovereignty. This is particularly true of non Western countries. They see human rights as being legal neo imperialism. SOme of these countries like China, North Korea, Iran, Turkmenistan etc… with lamentable human rights records. They do not want interventions to save their people. In fairness human right allegations are sometimes exaggerated and there are ulterior motives for intervention. Moreover, human rights arguments are deployed selectively. There is excessive partisanship in this area.

In conclusion, state sovereignty is now circumscribed. There is little doubt that it is less important than human rights. There are numerous examples of the UN permitting humanitarian intervention. This demonstrates that human rights prevail over national sovereignty but this is only the case when human rights violations are severe and occurring on a gross scale.

 

 

 

 

 

 

 

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General remarks

There were some good answers to this question, but it was not as popular as children’s rights and the CEDAW question. Perhaps its topical nature makes it an appealing question to answer. The spread of marks was similar to other questions, with some good 2.1s. Law cases, reports and other references the Examiners would expect you to use The question focuses on Chapter 12 of the subject guide, but also brings into focus some of the issues discussed in Chapter 4 Common errors Common errors made in answering Question 7 were similar to the problems found in answers to other questions, mentioned above. It is worth stressing that an essay must engage directly with the question asked. The argument must then go on to develop a coherent position. Candidates who simply learn and repeat the relevant sections of the subject guide have clearly misunderstood the nature of an essay.

A good answer to this question would… A good answer will be based on a clear response to the question asked. The best approach would probably agree to some extent that sovereignty has been questioned by the so-called right to intervention. However, it would be difficult to argue that this right has been recognised. Indeed, there are strong arguments to suggest that there is no right to intervene in the affairs of a sovereign state to protect human rights. A good answer would go into the various arguments relating Examiners’ report 2011 7 to the First and Second Gulf Wars, the invasion of Afghanistan and NATO actions in the former Yugoslavia. Although at the time of the exam, NATO had not intervened in Libya, the issues raised by the Libyan civil war would be relevant to any contemporary consideration of this issue. Poor answers to this question… See section above on common errors.

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Question 8 Do the International Monetary Fund, the World Bank and the World Trade Organisation have human rights obligations?

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The IMF, World Bank and WTO all have human rights obligations. The World Bank and WTO were founded by the UN and initially did not have any human rights duties. This was because they were intended to be solely concerned with economic reconstruction and they were required to be apolitical. The IMF is not a UN organ but its remit was similar. In time, however, all these organisations have been given human rights duties.

These bodies are supposed to uphold human rights within their own organisations. That is to act in consonance with the UNDHR and like instruments. Further, in their dealings with governments they are required to seek to uphold human rights.

The major part of the mission of these bodies in providing soft loans to LEDCs. They also provide crisis loans and banking facilities to deeply indebted countries. They strive to assist economic development. That means making sure a country has its basic infrastructure right with decent roads, functioning railways, a proper telecommunications system, hospitals, schooling for all children and so on. This has not been entirely achieved. These bodies have to promote sound governance which means accountability. Money is to be moved transparently. In the early years of these bodies too many loans and grants were creamed off by kleptocrats and was paid in bribes to corrupt functionaries. These bodies help sensible development projects. In the case of a country that is almost entirely agricultural it would involve improving irrigation, providing tractors and fertilisers. In the 1960s some underdeveloped countries went straight for industrialisation and sought to achieve this in 10 years. This ended in calamity.

These bodies stress that human rights are good for the economy. A free media allows people to expose pilfering governments. Independent courts mean that contracts are honoured and it creates a better investment climate. An honest police force also encourages people to set up a business. People can be confident their property will not be confiscated is the judiciary is not compliant. Free and fair elections mean that a government is held to account and is compelled to provide for its citizens. If there is massive state terror and disappearances then many of the cleverest and most entrepeneurial types will flee. If people do not trust their courts and the police they will get their capital out of the country. Violence and oppression impoverish people.

These bodies promote first generation human rights such as the right to life, the right to free expression etc… They also encourage second generation rights such as the right to housing and the right to healthcare. They are increasingly inclined to push for third generation rights these include the right to development . These bodies for a more equitable global trade situation. Tariff barriers retard the development of LEDCs.

In conclusion, it is certain that these bodies have the furtherance of human rights as part of their agenda.

 

 

 

 

 

 

 

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General remarks

Another deeply unpopular question. It is a shame that candidates did not attempt to tackle Question 8, as it raises some important issues. Law cases, reports and other references the Examiners would expect you to use The focus of this question is on 4.2 of the subject guide; but other sections of Chapter 4, in particular 4.4 and 4.5, could also be made relevant. Common errors Given the lack of responses to this question, it is impossible to point to any general patterns.

A good answer to this question would… This is not a difficult question to answer, even though the human rights obligations of the bodies concerned raise some controversial and technical issues in both international law and international human rights law. These bodies are not resistant to the idea that they have some sort of human rights obligations, and are even (at least to some extent) beginning to see human rights as important to their work.

A good answer would perhaps also broaden the question out to discuss the way in which human rights obligations might make some difference to the organisation of world trade or financial stability/international debt. Poor answers to this question… Given the lack of responses to this question, it is impossible to point to any general patterns

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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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