( UN Charter & UDHR)
Course Code: Law 401
Course Title: Law of Human Rights
Date of Submission: 09-02-2017
Table of Contents
1
Md. Safiullah Assistant Professor Department of Law
Daffodil International University
S.N Topic Page No:
01 Acknowledgement 03
02 Introduction 04
03 Significance of UN Charter in the Protection of Human Rights
04
2.1. History of UN Charter
04
2.2. Articles Mentioned in UN Charter relating to Human Rights
05
04 Significance of UDHR in the Protection of Human Rights 08
3.1. History of UDHR
08
3.2. Legal Enforceability of UDHR in protection of Human Rights
09
3.3. Influence of UDHR in Protection of Human Rights
10
3.4. Influence of UDHR in protection of Human Rights in Bangladesh
11
3.5. Articles Mentioned in UDHR relating to Human Rights
12
05 Conclusion 20
Acknowledgement
First of all, We would like to thank Almighty Allah for giving us the opportunity to complete this assignment.
We would also like to express our special thanks of gratitude to our teacher: Mr. Safiullah for helping and guiding us in making this Assignment on Human Rights .
As a group work, we have discussed a lot of things on this topic and tried to give our level best effort to complete this assignment, sometimes we took information from different books and websites which is mentioned latter in this assignment on the footnotes.
There may occur some mistakes in the assignment but please avoid these and consider only the positive sides of the assignment.
Human Rights Protection Mechanism: International Perspective ( UN Charter & UDHR)
Introduction:
Protecting human rights is closely linked to advancing long-term, sustainable development.
Rights are both part of the goal of development and instrumental to attaining other goals such as economic growth or democracy. 1 The legal duty to protect human rights includes the legal duty to respect them. Members of U.N. have committed themselves to promote respect for and
1 https://www.usaid.gov/what-we-do/democracy-human-rights-and-governance/protecting-human-rights
observance of human rights and fundamental freedoms. The protection of human rights can be ensured by three main categories such as, universal protection of human rights, regional protection of human rights and national protection of human rights.2 Universal protection of human rights are being ensured by the following two main instruments:
i) UN Charter
ii) The Universal Declaration of Human Rights3
Significance of UN Charter in Protection of Human Rights
History of UN charter:
On April 25, 1945, the United Nations Conference on International Organization convened in San Francisco with 50 nations represented. Three months later, during which time Germany had surrendered, the final Charter of the United Nations was unanimously adopted by the delegates.
On June 26, it was signed. The Charter, which consisted of a preamble and 19 chapters divided into 111 articles, called for the U.N. to maintain international peace and security, promote social progress and better standards of life, strengthen international law, and promote the expansion of human rights. The principal organs of the U.N., as specified in the Charter, were the Secretariat, the General Assembly, the Security Council, the Economic and Social Council, the International Court of Justice, and the Trusteeship Council.
On October 24, 1945, the U.N. Charter came into force upon its ratification by the five permanent members of the Security Council and a majority of other signatories. The first U.N.
General Assembly, with 51 nations represented, opened in London on January 10, 1946. On
2 International Law and Human Rights, Dr. S.K. Kapoor_Twelfth Edition, Page No. 5 3 Law of Human Rights, Mirza Farjzana Iqbal Chowdhury_1st Edition, Page No. 1
October 24, 1949, exactly four years after the United Nations Charter went into effect, the cornerstone was laid for the present United Nations headquarters, located in New York City. 4
Articles mentioned in UN Charter relating to Human Rights:
The Charter of the United Nations is the foundational treaty of the newly created intergovernmental organization that emerged from World War II.
As a charter, it is a constituent treaty, and all members are bound by its articles. Furthermore, its Article 103 states that obligations to the United Nations prevail over all other treaty obligations.Most countries in the world have now ratified the Charter. Various Human rights occupy a significant place in the U.N. charter .
The document describes the organs and institutions of the UN and their respective powers, including arrangements for integrating the UN with established international law. Various chapters deal with the Security Council’s power to investigate and mediate disputes, and to authorize economic, diplomatic, and military sanctions, as well as the use of military force; the role of regional arrangements to maintain peace and security within their own region; the UN’s powers for economic and social cooperation.5
The Preamble of the U.N. Charter and reaffirms ‘‘faith in fundamental human rights, in the dignity worth of the human person , in the equal rights of men and women.6
According to Article 1, paragraph 3 it is one of the purposes of the U.N. to achieve international co- operation in solving international problems of economic,social, cultural or humanitarian
4 http://www.history.com/this-day-in-history/u-n-charter-signed
5http://www.peoplesworld.org/article/today-in-history-the-united-nations-charter-is-signed-in-194/
6 International Human Rights Law: Protection Mechanism and Contemporary Issues, Abdullah Al Faruque_1st Edition, Page No:73
character and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
Besides this, it is provided under Article 13(b) in the charter that the general assembly shall initiate studies and make recommendation for the purposes of promoting international co- operation in the social, economic, cultural, educational and health fields and assist in the realization of the human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
Further with a view to the creation of the conditions of stability and well being which are necessary for peaceful and friendly relations among the nations based on respect for the principal of equal rights and self determination of peoples , the U.N. shall promote universal respect former observance of human rights and fundamental freedom for all.
Article 62 and 68 also reaffirms the commitment of the U.N. to promote and encourage respects for human rights and fundamental freedoms for all.
Article 55 charges the U.N. to promote universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
This provision is further strengthened by Article 56 under which “All members pledge themselves to take joint and separate in co-operation with the organization for the achievement of the purposes set forth in Article 55.
Thus Article 55 and 56 bind member state to observe and respect human rights. This view finds support from the interpretation of these provisions given by the world court.
Article 76(C) says that one of the basic objectives of the trusteeship accordance with the purposes of the U.N. laid down in Article 1 of the charter shall be to encourage for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion to encourage recognition of the interdependence of the peoples of the world.
The human rights occupy significant place under the charter but writers are divided as to whether human rights have become legal rights under the law of United Nations or not. The correct view probably would be that human rights have now become legal rights .This is, inter alia, due to adoption of universal declaration of human rights and coming into effect of the international Bill of human rights.7
Significance of UDHR in Protection of Human Rights
History of the Universal Declaration of Human Rights:
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot, Paris. The Declaration arose directly from the experience of the Second World War and represents the first global expression of what many people believe to be the rights to which all human beings are inherently entitled. The Declaration consists of thirty articles which, although not legally binding, have been elaborated in subsequent international treaties, economic transfers, regional human rights instruments, national constitutions, and other laws. 8
The UDHR was framed by members of the Human Rights Commission, with Eleanor Roosevelt as Chair, who began to discuss an International Bill of Rights in 1947. The members of the Commission did not 7 International Law and Human Rights, Dr. S.K. Kapoor_Twelfth Edition, Page No. 28
8 The Universal Declaration of Human Rights. un.org.
immediately agree on the form of such a bill of rights, and whether, or how, it should be enforced. The Commission proceeded to frame the UDHR and accompanying treaties, but the UDHR quickly became the priority. Canadian law professor John Humphrey and French lawyer Rene Cassin were responsible for much of the cross-national research and the structure of the document respectively, where the articles of the declaration were interpretative of the general principle of the preamble. The document was structured by Cassin to include the basic principles of dignity, liberty, equality and brotherhood in the first two articles, followed successively by rights pertaining to individuals; rights of individuals in relation to each other and to groups; spiritual, public and political rights; and economic, social and cultural rights. The final three articles place, according to Cassin, rights in the context of limits, duties and the social and political order in which they are to be realized. Humphrey and Cassin intended the rights in the UDHR to be legally enforceable through some means, as is reflected in the third clause of the preamble.9
During World War II, the Allies adopted the Four Freedoms—freedom of speech, freedom of religion, freedom from fear, and freedom from want—as their basic war aims. The United Nations Charter reaffirmed faith in fundamental human rights, and dignity and worth of the human person" and committed all member states to promote universal respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.10 It has become a historic event of profound significance and as one of the greatest achievements of the United Nations. 11
Legal Enforceability of Universal Declaration of Human Rights:
The Universal Declaration is not a treaty, so it does not directly create legal obligations for countries. However, it is an expression of the fundamental values which are shared by all members of the international community and it has had a profound influence on the development of international human rights law.
Some argue that because countries have consistently invoked the Declaration for more than sixty years, it has become binding as a part of customary international law. Further, the Universal Declaration has given rise to a range of other international agreements which are legally binding on the countries that ratify them.12
9 https://en.wikipedia.org/wiki/History_of_human_rights 10 United Nations Charter, preamble and article 55
11 Law of Human Rights, Mirza Farjzana Iqbal Chowdhury_1st Edition, Page No. 59 12 https://www.humanrights.gov.au/publications/what-universal-declaration-human-rights
The Declaration was explicitly adopted for the purpose of defining the meaning of the words
"fundamental freedoms" and "human rights" appearing in the United Nations Charter, which is binding on all member states. For this reason, the Universal Declaration of Human Rights is a fundamental constitutive document of the United Nations.
In addition, many international lawyers believe that the Declaration forms part of customary international law and is a powerful tool in applying diplomatic and moral pressure to governments that violate any of its articles. The 1968 United Nations International Conference on Human Rights advised that the Declaration "constitutes an obligation for the members of the international community" to all persons.
The Declaration has served as the foundation for two binding UN human rights covenants:
i) The International Covenant on Civil and Political Rights and
ii) The International Covenant on Economic, Social and Cultural Rights.
The principles of the Declaration are elaborated in international treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of Discrimination Against Women, the United Nations Convention on the Rights of the Child, the United Nations Convention Against Torture, and many more. The Declaration continues to be widely cited by governments, academics, advocates, and constitutional courts, and by individuals who appeal to its principles for the protection of their recognized human rights.13
Influence of the Universal Declaration of Human Rights:
While the Charter gave birth to the Declaration, the Declaration in turn gave birth to these two covenants and a host of other international and regional instruments creating the means by which to ensure the legal implementation of human rights standards. The fact that the Declaration is not intertwined with any piece of this machinery of implementation gave it, from the start, an independent moral status in world affairs and law. More than fifty years after its adoption it now 13 https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights#Legal_effect
is the moral backbone and the source of inspiration of a whole new branch of international law.
From a time when there were virtually no international instruments concerned with the realization of human rights, the post World War II era has seen the evolution of around two hundred assorted declarations, conventions, protocols, treaties, charters, and agreements, all dealing with the realization of human rights in the world. Of these postwar instruments no fewer of sixty-five mention in their preambles the Universal Declaration of Human Rights as a source of authority and inspiration.
Moreover, the Universal Declaration has itself acquired over time legal character by absorption into that process by which the acts ("practice") and opinions ("opinio juris") of states are transmuted into binding customary international law. This was one of the legal bases upon which apartheid was condemned by states during the 1970's. The suggestion then was that the Charter, the Universal Declaration, repeated resolutions of international bodies, and the nearly unanimous opinion and practice of states together had combined to make customary law prohibiting egregious violations, such as apartheid. Even nations fearful of law-making by uncertain procedures undercutting the requirement of unanimity were hard-pressed to resist such arguments when applied to racism. And African states eager to make such law against racism were compelled to consider that it might apply also to other egregious violations which no one dared justify--slavery, genocide, even torture, perhaps other forms of repression.
A famous example that demonstrates how the status of the Universal Declaration as customary international law has influenced the protection of human rights in contemporary times is the Filártiga litigation.14
Influence of UDHR in Protection of Human Rights in Bangladesh:
As a developing country Bangladesh is confronted with many social, economic and political challenges including injustice, unbridled corruption and insecurity etc. Despite all these hindrances, the country has brought about a several positive impact in the development of Human Rights by initiating the Police reform programs, women's policing network, prison reform program etc.
14 http://ccnmtl.columbia.edu/projects/mmt/udhr/preamble_section_4/discussion_5.html
The Constitution of Bangladesh and the Universal Declaration of Human Rights:
Bangladesh has ratified all the Human Rights treaties and is subjected to the UDHR. The Constitution of Bangladesh has incorporated provisions regarding fundamental rights ranging from Article 27 to 47 to protect and promote human rights of its citizens. Article 27 states, "all citizens are equal before law and are entitled to equal protection of law" while Article 31 refers
"to enjoy the protection of law and to be treated in accordance with law is the alienable right of every citizen and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law." Article 32 says, "the right to life, liberty and security of person"
Agencies working on Human Right issues:
Internationally, Human Rights Watch, Amnesty International and many other agencies are working on this issue. So, governments as well as different NGOs are working on this ground.
National Human Rights Commission, Ain o Salish Kendra, Odikar, ECDO, Transparency International Bangladesh all are well mentioned organization.15
Application of UDHR by Supreme Court:
Article 25 of the Constitution of Bangladesh, the paramount provision relating to international law contained principles of international law including ‘international law and the principles enunciated in the UN Charter’ will be respected by State. This article has no binding effect that in case of violation, one can go to the highest court for enforcement. But it has two important consequences: by virtue of Article 8(2) of the Constitution, the principles of Article 25 were to be ‘fundamental’ to the governance and law- making of the state, and they were to be ‘a guide to the interpretation’ of the Constitution and other laws.
Hence, interpretation of the Constitution and national laws must be in conformity with the basic principles of international law. The general practice of the country is evident that international treaties are not automatically become part of the domestic law of Bangladesh unless and until it is incorporated into 15 http://www.academia.edu/23708571/Bangladesh_and_the_Universal_Declaration_of_Human_Rights
domestic legislation. So, international treaties are required to be inserted into the domestic law passed by due procedure and then it will be part of domestic law. The approach of the Court was reflected in the case of BNWLA v. Government of Bangladesh and others, where the Court vehemently declared-
“Our courts will not enforce those Covenants as Treaties and Conventions even if ratified by the State, as they are not part of the corpus juris of the State unless those are incorporated in the municipal legislation.”
The application of international instruments including UDHR in the domestic arena has been well announced further by the Supreme Court in BNWLA vs. Government of Bangladesh and others.16
Articles Mentioned in UDHR relating to Human Rights:
The problem and protection of human rights is seen as an integral and essential element for the preservation of world peace and cooperation. When the UDHR was adopted, provisions for human right become central to the whole philosophy of this declaration. The promotion and the protection of human rights is seen as an inseparable part of the principal objectives of the UDHR. The articles of UDHR includes several rights for the betterment of human beings such as the right of equality, the right of life, right of liberty, the right of privacy of family life, right to marry, right to freedom, right of movement, freedom of thought, right of conscience and religion, right to nationality, right to recognition as a person before the law, the right of property, right to seek asylum, and right to participate in government. The declaration also condemns torture and slavery.
Right to equal dignity:
Article 1 of the declaration declares, "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a
16 http://www.clcbd.org/journal/13.html
spirit of brotherhood." The declaration prohibits discrimination in equivocal tram on any grounds.17
Right of entitlement:
Article 2 of the declaration states that everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self- governing or under any other limitation of sovereignty”.18
Right to life:
Article 3 says, " Everyone has the right to life, liberty and security of person".
Right of freedom:
Article 4 says, " No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms".
Right to treatment:
17 International Human Rights Law: Protection Mechanism and Contemporary Issues, Abdullah Al Faruque_1st Edition, Page No: 20
18 International Human Rights Law: Protection Mechanism and Contemporary Issues, Abdullah Al Faruque_1st Edition, Page No: 20,21
Article 5 says, " No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".
Right of Equal Recognition before Law:
Article 6 says, "Everyone has the right to recognition everywhere as a person before the law".
Right of Equal Protection by Law:
Article 7 says, "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination".
Right to get Remedy by Law:
Article 8 says, "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law".
Right of liberty:
Article 9 says, " No one shall be subjected to arbitrary arrest, detention or exile".
Right of Legal Aid:
Article 10 says, " Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him".
Right of Defense:
Article 11 says, "(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed".
Right of privacy:
Article 12 says," No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks".
Right to freedom of movement:
Article 13 says, " (1) Everyone has the right to freedom of movement and residence within the borders of each State. (2) Everyone has the right to leave any country, including his own, and to return to his country".
Right to seek asylum:
Article 14 says, " (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations".
Right to nationality:
Article 15 says, " (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality".
Right to marry:
Article 16 says, " (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State".
Right to own property:
Article 17 says, " (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property".
Right to freedom of thought:
Article 18 says, " Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance".
Right to freedom of opinion:
Article 19 says, " Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers".
Right to freedom of peaceful assembly and association:
Article 20 says, " (1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association".
Right to take part in the government:
Article 21 says, " (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right to equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures".
Right to security:
Article 22 says, " Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality".
Right to employment:
Article 23 says, " (1) Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests".
Right to rest and leisure:
Article 24 says, " Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay".
Right to adequate standard of living:
Article 25 says, " (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection".
Right to education:
Article 26 says, " (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally
accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children".
Right to cultural life:
Article 27 says, " (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author".
Right to social and international order:
Article 28 says, " Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized".
Right to perform duties to the society:
Article 29 says, " (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations".19
19 http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf
Conclusion:
The expansion of international human rights law has often not been matched by practice. Yet, there is growing consensus that the protection of human rights is important for the resolution of conflict and to the rebuilding process afterward. To achieve these goals, the international community has identified a number of mechanisms and lot of treaties declarations etc. specially UN Charter and UDHR, both to bring an end to human rights abuses and to establish an environment in which they will be respected in the future. They are not alternatives, but each provides important benefits in dealing with the past and envisioning a brighter future.20
20 http://www.beyondintractability.org/essay/human-rights-protect
