HUMAN RIGHTS. Historical development of International Human Rights. Events of WW1 & 2 –violation of basic human rights by States Adoption of UN Charter. Preamble to UN Charter.
“We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom”
Article 1 provides as follows:
“To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedom for all without distinction as to race, sex, language, or religion…”
There are therefore 3 tiers for the protection and enforcement of IHRL:
Conduct by State officials never takes place in a legal vacuum. Their actions are at all times governed by the law. Violations of which engage in certain circumstances, individual criminal responsibility.
Generally speaking the rights engaged within the context of any criminal investigation/prosecution would fall in the category of ‘civil & political rights’
Article 4 ICCPR permits a State to derogate from certain rights ‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, The State Parties…may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided such measures are not inconsistent with their other obligations under international law and do not involve discrimination.”
Similar provisions are found in Article 15 ECHR, Article 27 ACHR but the African Charter does not provide for any derogations
The criteria are therefore:
The two most significant absolute rights which are common to all IHRL instruments are:
A violation of these rights gives rise to individual criminal responsibility.
Other rights which are considered as absolute (non-derogable) rights are:
1. A negative obligation- not to take life;
2. A positive obligation- to take steps to preserve life;
3. A procedural obligation- to ensure an adequate & effective investigation into death alleged to have arisen at hands of agents of State or from State’s negligent failure to protect lives. A State must act of its own motion when matters are drawn to their attention
R (Amin) v Sec of State for the Home Dept (HL, 2003)
IHRL permits States to restrict or limit certain rights to allow for public order/safety. However, such limitations must be:
Secretary-General of the Council of Europe, September 2002:
“…The temptation for governments and parliaments in countries suffering from terrorist action is to fight fire with fire, setting aside the legal safeguards that exist in a democratic state. But…while the State has the right to employ to the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which would only undermine the fundamental values they seek to protect. For a State to react in such a way would be to fall into the trap set by terrorism for democracy and the rule of law.
It is precisely in situations of crisis, such as those brought about by terrorism, that respect for human rights is even more important, and that even greater vigilance is called for.”
UN Secretary General Kofi Annan, October 2002:
“…to pursue security at the expense of human rights is short-sighted, self-contradictory, and (in the long run), self-defeating.”
Commonwealth Heads of Government, 25 October 2001:
“[In cooperating against terrorism in response to Security Council Resolution 1373]…our actions will reflect the fundamental values upon which the Commonwealth is based, including democracy, human rights, the rule of law, freedom of belief, freedom of political opinion, justice and equality…”
United Nations Security Council Resolution 1456 (2003):
“States must ensure that any measure taken to combat terrorism comply with all their obligations under international law…in particular, international refugee, human rights and humanitarian law.”