Law report
Commemorating World Human Rights Day
Historical evaluation of human rights and beyond
Barrister Harun ur Rashid
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independentsday.org |
10th December was the World Human Rights Day. It was on this day in 1948 the Universal Declaration of Human Rights was adopted by the UN General Assembly. All UN member states observe this Day to commit to themselves to preserve and protect human rights for all persons.
The Universal Declaration of Human Rights was drafted under the chair of Ms. Eleanor Roosevelt, the wife of the President Roosevelt, who was a champion in pursuing human rights for all human beings.
The Declaration has 30 Articles, setting forth the human rights and fundamental freedoms (liberties) and Article 1 lays down the philosophy of the Declaration: “ All human beings are born free and equal in dignity and rights.”
Although it is a Declaration, not a Treaty or a Convention, according to many legal experts, it represents customary international law because of general acceptance by all states.. This means that all states are legally bound to afford to individuals within their jurisdiction the human rights set forth in the Declaration.
After the Declaration, there has been a gap of 18 years, before two notable human rights instruments were adopted. They are: the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights. The other instruments are the 1979 Convention on Elimination of All Forms of Discrimination against Women and the 1989 Convention on the Rights of the Child.
Origin of human rights
The concept of Human Rights goes back to philosophy of Greek Stoics. It was later revived and developed during 16th century by Dutch jurist Grotius in natural law jurisprudence. The modern version of human rights is to be found in the English, American and French revolutions of the17th and18th centuries.
In England, the Bill of Rights of 1689 directed towards the protection of individual rights or liberties. The American Declaration of Independence of 1776 stated, “All men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are Life, Liberty and the pursuit to Happiness.” Following the French Revolution, the Declaration of the Rights of Man and Citizens of 1789 stated, “true happiness is to be found in individual liberty”.
All the above documents of the 17th and 18th centuries show that human rights are by nature inherent, universal and inalienable simply because they are human beings and not because they are the subjects to state's law.
The language used in Articles 1, 55 and 56 of the UN Charter presuppose the existence of human rights before the advent of the UN and the Declaration of 1948 is a manifestation of the commitment of the UN Charter to human rights.
UN & human rights
International concern with human rights is a phenomenon of comparatively recent origin. With the adoption of the UN Charter in 1945, it is possible to speak of the advent of systematic human rights protection within international system.
The institutions for the protection of human rights on national and international area have developed exponentially since the end of the Second World War. Human rights since then have been elevated to a matter of international rather than merely a national concern.
The revamped UN Human Right Council monitors the record of human rights of the member-states of the UN. The Human Rights Commissioner of the UN attempts to ensure the compliance of human rights of all member countries of the UN.
Human rights and rule of law
The rule of law is an ancient ideal first posited by Plato as grounded in divine reason and so inherent in the natural order. It continues to be important as a normative ideal, even as legal scholars struggle to define it
In the Anglo-American legal tradition, rule of law has been seen as a guard against despotism and as enforcing limitations on the power of the state. More recently, the rule of law has been considered as one of the key dimensions that determines the quality and good governance of a country.
The rule of law is interlinked with democratic norm and in a democratic society, the rights and freedoms are inherent to the human person, the guarantees applicable to them and the rule of law form a triad. Each component defines itself, complements and depends on the others for its meaning.
The rule of law does not mean rule by law. Laws are made by states but states are themselves subject to the rule of law. It includes not only equality before law of all persons but also non-discrimination among individuals, and no unlawful detention of persons.
Independence of judiciary is an important component of the rule of law. Under the rule of law, accuser cannot be at the same time the judge. In some ways it refers to accountability of actions or omissions of public officials.
Rule of law is one of the foundations of human rights because it is clear in domestic areas efforts have always been made to secure legal protection for individuals against arbitrary accesses of state power. Certain fundamental human rights cannot be diminished or curtailed under any circumstances because they are inherent with human beings. In many states the constitutions enumerate those fundamental rights that may be enforced through judiciary.
Migrants & human rights
The migrant workers including undocumented workers to most countries are denied of certain basic human rights. The 1990 UN International Convention on the Protection of All Migrant Workers Members of Their Families promotes humane and lawful conditions of migrant workers.
Article 70 of the Convention provides that state parties shall take measures not less favourable in a regular situation of employees that are in keeping with the standard of safety, health, and principles of human dignity. Regrettably most of the recipient-countries of migrant workers are not parties to the Convention and as such migrant workers do not enjoy basic human rights.
The remittances from migrants are an important segment in contributing to Bangladesh's socio-economic development. The remittances have a multiplier effect not only for the family members but also for the people in general.
It is reported that about 5 million Bangladeshi workers are now abroad, spreading almost in 100 countries. Last January it is reported that about 92,000 have found employment overseas and that is a good record. Last year about 832,000 Bangladeshi workers have found employment abroad. 85% per cent of Bangladeshi workers go to the Middle East countries.
As far as women workers, according to Bangladesh Manpower Employment and Training Bureau the number of women workers reportedly stood at 74,074 of August 2007. Of them 54,835 left the country in the last three and half years.
States & human rights
Human rights are part of contemporary political and legal norm at both national and international level. All international instruments require states' domestic legal systems to provide adequate redress for those whose rights have been violated. It is only when those states' own internal protective systems falter or where, in extreme cases, they are non-existent, the international mechanisms for securing human rights come into play.
In a sense, international mechanisms operate to reinforce domestic protection of human rights and to provide redress when the domestic system fails or is found wanting. This stands in stark contrast to the pre-1939 era when systematic and large-scale violation of human rights by states went unacknowledged and unaddressed by other members of international system.
The fact that human rights are part of the domestic and international political agenda must reflect a realisation by governments that behaviour in this field is crucial to their reputation and standing in world affairs and that it may even affect in a concrete fashion the way they are treated in their dealings with other states and international in general.
National institutions for protection of human rights are important in that individuals may claim that their human rights have been violated by governments' action or inaction. Individuals must in all cases attempt to secure redress of their grievances internally. This is known as the exhaustion the local remedies rule and is of fundamental importance in international human rights law.
Poverty in South Asia & human rights
While the concept of human rights is universal and may have an objective quality, its implementation is largely dependent upon a large number of variable factors including political and economic.
Reduction of poverty is the mother of all human rights because poor people suffer in inequality and indignity. All efforts must be directed by national and international agencies to alleviation of poverty in South Asia where about 40% per cent of the world's absolute poor live, although it is inhabited by about 21% per cent of the world's population, covering only 3.3% per cent surface area of the world.
On this day of 10th December, it is an obligation for all states to abide by the Universal Declaration of Human Rights so that all human beings including migrant workers do enjoy basic human rights.
The writer is a Former Bangladesh Ambassador to the UN, Geneva.
