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Human Rights and Vulnerable Groups

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  1. Human Rights and Vulnerable Groups Harkristuti Harkrisnowo Sentra Ham Fakultas Hukum Universitas Indonesia

  2. Why need to be studied • They are groups of individual who are sociologically vulnerable • Tend to be victimized • Perceived as having a somewhat ‘lower’ place in the social structure • Considered by the public as being ‘different’ from the majority

  3. Vulnerable Groups… • Women • Children • Diffable (different ability, disabled) • Indigenous people • Minority • Migrant workers • Refugees

  4. Women & The Millennium Development Goals …… In September 2000, world leaders agreed upon the Millennium Declaration, with a set of eight Millennium Development Goals with associated targets and indicators. By the year 2015, all 191 United Nations Member States have pledged to meet the MDGs: 1. Eradicate extreme poverty and hunger 2. Achieve universal primary education 3. Promote gender equality and empower women 4. Reduce child mortality 5. Improve maternal health 6. Combat HIV/AIDS, malaria and other diseases 7. Ensure environmental sustainability 8. Develop a global partnership for development

  5. Goal 3 of the MDGs… • Reaffirms an international commitment to gender equality, the targets and indicators linked this goal are narrowly defined. But gender equality applies to all the Goals. • Women disproportionately suffer the burden of poverty, are the primary agents of child welfare, are the victims of widespread and persistent discrimination in all areas of life, and put their lives at risk every time they become pregnant. • They are increasingly susceptible to HIV/AIDS and other major diseases, play an indispensable role in the management of natural resources, and have the right to gain as much as men from the benefits brought by globalization.

  6. Goal of… • Recognizing women’s contributions and realizing and protecting their rights thus impacts across all eight of the MDGs. • Failure to address these concerns will lead to failure in achieving the MDGs themselves. • Upholding the rights of women brings widespread benefits to everyone. And the links in respect of the MDGs are broad, not narrow.

  7. Basic Documents… • Declaration on the Elimination of All Forms of Discrimination against Women • Convention on the Elimination of All Forms of Discrimination against Women • Declaration on the Elimination of Violence against Women • Convention on the Political Rights of Women • Declaration on the Protection of Women and Children in Emergency and Armed Conflict • Optional Protocol to the Convention on the Elimination of Discrimination against Women • Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages • Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages

  8. Children • childhood is entitled to special care and assistance, • the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, • the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, • the child should be fully prepared to live an individual life in society, and brought up in the spirit of peace, dignity, tolerance, freedom, equality and solidarity, • the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth",

  9. Instruments on the Rights of the Child • Declaration on the Rights of the Child • Convention on the Rights of the Child • Optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict • Optional protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography • Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally

  10. The Disabled… • Over 600 million people (10 %) of the world’s population, have a disability of one form or another. While their living conditions vary, they have common experience – being exposed to various forms of discrimination and social exclusion.   • They tended to be viewed as “objects” of protection, treatment and assistance rather than subjects of rights, and excluded from mainstream society, and provided with special schools, sheltered workshops, and separate housing and transportation on the assumption that they were incapable of coping with either society at large or all or most major life activities. • They were denied equal access to rights and fundamental freedoms (e.g. health care, employment, education, vote, participation in cultural activities) that most people take for granted.

  11. …the disabled… • A dramatic shift in perspective occurs over the past two decades, and they are increasingly viewed as holders of rights. • In 2000, the Commission on Human Rights asked the High Commissioner “to examine measures to strengthen the protection and monitoring of the human rights of persons with disabilities”. • Following to that request, the Office of the High Commissioner for Human Rights designed a long-term plan to enhance the recognition of the human rights dimension of disability.

  12. Four core values of human rights in the context of disability: • the dignity of each individual, who is deemed to be of inestimable value because of his/her inherent self-worth, and not because s/he is economically or otherwise “useful”; • the concept of autonomy or self-determination, which is based on the presumption of a capacity for self-directed action and behavior, and requires that the person be placed at the centre of all decisions affecting him/her; • the inherent equality of all regardless of difference; • and the ethic of solidarity,which requires society to sustain the freedom of the person with appropriate social supports. 

  13. And the Instruments….. • Declaration on Social Progress and Development • Declaration on the Rights of Mentally Retarded Persons • Principles for the protection of persons with mental illness and the improvement of mental health care • Declaration on the Rights of Disabled Persons • Declaration on the Right to Development

  14. Minorities • In June 1990, the Copenhagen Document on the Human Dimension was adopted; • Par. 33 of the Document commits States to "protect the ethnic, cultural, linguistic and religious identity of national minorities on their territory... in conformity with the principles of equality and non-discrimination." • These special rights and measures do not constitute preferential treatment for persons belonging to national minorities. Rather, they aim to achieve equal and meaningful enjoyment of rights in fact as well as in law. • While the concept of minority rights grows out of the concept of individual human rights, it is only the joint exercise of these rights that enables persons belonging to a national minority to preserve their identity.

  15. These rights include…. • …a number of specific rights that may be exercised both individually and in community with other members of the group. • the right to "express, preserve and develop" their identity and culture, free from any attempts at forced assimilation (para. 32) • the right to use their mother tongue in private and public and to exchange information in their mother tongue (paras. 32.1, 32.5) • the right to establish and maintain minority educational, cultural, and religious institutions and to seek funding for them, "in conformity with national legislation" (para. 32.2)

  16. These rights… • the right to practice their religion, including using religious materials and conducting religious educational activities in the minority mother tongue (para. 32.3) • the right to maintain "unimpeded contacts" with those with whom they share common origin, heritage, or religious beliefs, within and across frontiers (para. 32.4) • the right to "effective participation in public affairs, incl participation in the affairs relating to the protection and promotion of the identity of such minorities" (para. 35)

  17. And… • The instruments speak of "persons belonging to national minorities“ where the term "national minority" is generally understood to mean a non-dominant population that is a numerical minority within a State but that shares the same nationality/ethnicity as the population constituting a numerical majority in another, often neighboring or "kin", State. • In practice, there is considerable latitude left to each State to establish the definition that it will apply within its own jurisdiction and there are substantial differences among such definitions within this area. Yet, this does not mean that States are free to make any unilateral determination, since he enjoyment of minority rights requires no formal legal recognition of a group by the State.

  18. That… • the principle that to belong to a national minority is a matter of individual choice and that no disadvantage may arise from the exercise of such a choice. • In practice, the lack of definition may have serious implications in real situations. For example, the term "national" in "national minority" has been interpreted by some to imply that persons belonging to a minority must be citizens of the State in whose territorial jurisdiction they are found. This interpretation has caused problems and increased inter-ethnic tensions in some States.

  19. Basic Documents…. • Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief • Declaration on Fundamental Principles concerning the Contribution to the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War • Declaration on Race and Racial Prejudice • Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities

  20. Indigenous peoples in the world • It was estimated that there are about 300 million indigenous people in more than 70 countries worldwide. • = the inheritors and practitioners of unique cultures and ways of relating to other people and to the environment. • They have retained social, cultural, economic & political characteristics that are distinct from those of the dominant societies in which they live. • Despite their cultural differences, the various groups of indigenous peoples around the world share common problems related to the protection of their rights as distinct peoples, seeking recognition of their identities, their ways of life and their right to traditional lands and resources; yet throughout history, their rights have been violated.

  21. Indigenous… • among the most disadvantaged and vulnerable groups of people in the world today. • The international community now recognizes that special measures are required to protect the rights of the world’s indigenous peoples.

  22. Criteria of Indigenous people: • They are descendants of a people who lived in the region prior to the arrival of settlers coming in from the outside, settlers who have since become the dominant population; • They have maintained a culture which is different in significant respects from that of the dominant population • They are, as a group, in an inferior position in the country concerned, in political and economic respects [Asbjorn Eide, 1993]

  23. ICCPR articles of particular relevance: • right of self-determination for all peoples, including the right to determine one’s political status and economic, social and cultural development • right to life • freedom from torture or cruel, inhuman or degrading treatment or punishment • right to liberty and security of person and freedom from arbitrary arrest or detention • right of all persons deprived of their liberty to be treated with humanity and respect • right to be equal before the courts, including the right to a fair and public hearing and the right to free legal aid and assistance of an interpreter • right to freedom of thought, conscience and religion • the right of every child to protective measures as required for minors • the right of ethnic, religious or linguistic minorities to enjoy their own culture, profess/practice their own religion & use their own language

  24. Possible causes of complaints… • Mandatory sentencing: In some cases, indigenous peoples are imprisoned for relatively minor offences and mandatory sentencing can result in prison terms disproportionate to the alleged crime. Articles that may be relevant include Articles 2(1), 9(1), 10(3), 14(4), 24(1) and 26 of the ICCPR and Articles 5(a) and 2(1)(c) of CERD. • Infant mortality: Rights relevant to the problem of disproportionate rates of indigenous infant mortality are primarily addressed in provisions of the ICESCR and CRC. Certain provisions of the ICCPR would also be relevant, particularly Articles 2(1), 6(1), 24(1) and 27. Articles 2(1)(c) and 5(e)(iv) of CERD may also apply. • Property Rights: Any action by a government that has the effect of discriminating against indigenous peoples with respect to their property rights would probably violate CERD, specifically Articles 2(1)(a), 2(1)(c), 5(d)(v)-(vi) and 5(e)(vi). Such action by a Government might leave no means of domestic redress, in which case there would be no domestic remedies to exhaust.

  25. Possible… • Deaths in Custody: Depending on the situation, a number of Articles of the ICCPR might be relevant to concerns over the deaths of indigenous persons in custody. These would include Articles 2(1), 6(1), 7, 10(1), 10(2)(b), 10(3), 14(4), 24(1), 26 and 27. In such cases, complainants would have to be sure to exhaust domestic remedies before filing a complaint with the Committee. • Interpreters: Article 14(3)(f) of the ICCPR provides that a defendant has the right to the free assistance of an interpreter if he or she cannot understand or speak the language used in a court. There may be a domestic remedy available to this violation: appealing to a higher court that there has been an abuse of process or that a conviction is unsafe and unsatisfactory. If a defendant in this situation is in custody, domestic remedies that may result in the earlier release of the defendant should be pursued as a priority. However, such circumstances may also form the basis for a complaint under the Covenant.

  26. And the Instrument… • International Labor Organization (ILO) Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries • ILO Convention no 107 Concerning Indigenous and Tribal Populations, 1957 • Project to Promote ILO Policy on Indigenous and Tribal Peoples • INDISCO Programme • Working Group on the Draft Declaration of the Rights of the Indigenous Peoples • Working Group on the Indigenous Population

  27. Refugees • A refugee is a person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country..." • Refugees are forced from their countries by war, civil conflict, political strife or gross human rights abuses. There were an estimated 14.9 million refugees in the world in 2001 - people who had crossed an international border to seek safety - and at least 22 million internally displaced persons (IDPs) who had been uprooted within their own countries

  28. Refugee… • The 1951 Geneva Convention, does not specifically address the issue of civilians fleeing conflict, though in recent years major refugee movements have resulted from civil wars, ethnic, tribal and religious violence. However, UNHCR considers that persons fleeing such conditions, and whose state is unwilling or unable to protect them, should be considered refugees. • Some countries argue that civilians fleeing generalized war or who fear persecution by non-state groups such as militias and rebels, should not be given formal refugee status. It is UNHCR's view that the origin of the persecution should not be decisive in determining refugee status, but rather whether a person deserves international protection because it is not available in the country of origin.

  29. And the Internally Displaced Persons? • Internally displaced persons (IDPs) flee their homes for the same reasons as refugees, but remain within their own country and are thus subject to the laws of that state. Though it does not have a specific mandate for IDPs, UNHCR assists several million in various crises, but not all of the estimated 25 million displaced persons worldwide. • These operations are initiated at the request of the U.N. Secretary-General or the General Assembly, with the consent of the country involved and have included recent crises in Colombia, the Middle East, the Balkans, Africa, Afghanistan, Timor and Sri Lanka.

  30. What rights do refugees have? • refugee has the right to safe asylum. However, international protection comprises more than physical safety. • Refugees should receive at least the same rights and basic help as any other foreigner who is a legal resident, including freedom of thought, of movement and freedom from torture and degrading treatment. • Economic and social rights are equally applicable. Refugees should have access to medical care, schooling and the right to work.

  31. What… • In certain circumstances when adequate government resources are not immediately available, including the sudden arrival of large numbers of uprooted persons, UNHCR and other international organizations provide assistance such as financial grants, food, tools and shelter, schools and clinics. • With income-generating and skill training projects, UNHCR makes every effort to ensure that refugees become self-sufficient as quickly as possible.

  32. Basic Documents… • Convention on the Reduction of Statelessness • Convention relating to the Status of Stateless Persons • Convention relating to the Status of Refugees • Protocol relating to the Status of Refugees • Statute of the Office of the United Nations High Commissioner for Refugees • Declaration on Territorial Asylum • Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live

  33. Migrant Workers…. • "migrant worker" refers to a person who is tobe engaged, is engaged or has been engaged in a remuneratedactivity in a State of which he or she is not a national.

  34. Antecedents  …. • Poverty and the inability to earn enough or produce enough to support oneself or a family • War • civil strife • insecurity or persecution arising from discrimination on various grounds

  35. Problems… • vast numbers of migrant workers are uninformed and ill-prepared to cope with life and work in a foreign country. • most of them are unaware of the human rights protection and fundamental freedoms which they are guaranteed under international treaties and national laws • May be subject to discrimination in the communities where they live and work. • In most cases financially poor, they share the handicaps economic, social and cultural of the least-favored groups in the society of the host State. • the poor ones subject to be victims of clandestine acts, people smuggling, and human trafficking 

  36. Basic Documents…. • Slavery Convention • International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families • Protocol Amending The Slavery Convention • Supplementary Convention On The Abolition Of Slavery, The Slave Trade, and Institutions And Practices Similar To Slavery • Forced Labor Convention • Abolition Of Forced Labor Convention • Convention For The Suppression Of The Traffic In Persons And Of The Exploitation Of The Prostitution Of Others