Core Human Rights Research Articles

Understand International Humanitarian Law: A Primer on IHL and Pakistan's Domestic Law

The following document on international humanitarian law (IHL) is a selective examination of the law of armed conflict in a context most relevant to Pakistan. IHL is a subsidiary body of public international law that governs armed conflicts, which may be either international or internal. International armed conflicts are those between two or more opposing states and non-international armed conflicts are those between states and non-state armed groups or between two such armed groups (A more detailed examination of these and other introductory concepts is provided in Chapter I). During an armed conflict, Pakistan is bound by customary rules of IHL as well as the four Geneva Conventions of 1949 to which it is a party. In addition, Pakistan is a signatory to Additional Protocols I and II. Human rights law is also applicable, in many cases, during an armed conflict, particularly non-international armed conflicts. To that end, Pakistan is a party to several core human rights instruments, including the International Covenant on Civil and Political Rights. In light of the above, several questions on the relevance of IHL arise, its application in Pakistan's context and on the role of this primer. The following questions seek to clarify the existing domestic perceptions regarding IHL: Why is it important to understand IHL? IHL is a set of rules that, for humanitarian reasons, seek to limit the effects of armed conflict. It is a body of law that protects persons not engaged or no longer engaged in hostilities and places limitations on the methods and means of warfare1. Thus, for the protection of those persons most vulnerable during hostilities, IHL exists as a set of rules limiting what is permitted in warfare. It is of interest to all parties to a conflict to observe and incorporate IHL, as it is applicable to all parties in a conflict, to provide protection to all persons engaged in and affected by the hostilities. Why is IHL relevant to Pakistan? Pakistan's security concerns are diverse and persistent. In certain areas, the Armed Forces are engaged in frequent skirmishes with violent non-state actors and in others the Civil Armed Forces and law enforcement are working to contain anti-state movements and political violence. In many major cities, violent acts of terrorism in schools and other areas frequented by vulnerable persons have become the norm. Within this climate of ongoing unrest, it is important to understand when and to what extent IHL applies. This is as opposed to the exclusive application of human rights law, which may be considered the ongoing law of peacetime. Where hostilities rise to threshold of an armed conflict, it is imperative for a state to know the manner and level of deadly force that is permitted. Thus in Pakistan's case, where internal disturbances may eventually develop into non-international armed conflicts, the importance of IHL increases when determining how to combat the violence. From the perspective of a domestic stakeholder, however, such distinctions may seem unimportant. This is because the domestic law implementing IHL in Pakistan is limited. At present, there is little differentiation in how to address situations that amount to armed conflict and those that do not. It would be inherently beneficial to thus incorporate IHL and to generally improve Pakistan's compliance with international legal obligations. How is this document helpful? This document was created to assist domestic stakeholders (i.e. policymakers, members of the judiciary, members of the Armed Forces, law enforcement, academics, etc.) to develop both an understanding and appreciation of IHL. The intent is to promote Pakistan's compliance with its obligations under IHL and to provide clearer guidelines for the Armed Forces and Civil Armed Forces engaged in military and law enforcement operations. The manner in which the following chapters are organized reflects not the entirety of applicable IHL, but rather a limited selection of relevant legal principles and customary rules. As a whole, this document is intended to be a user-friendly introduction meant to build the capacity of a domestic audience. With this in mind, certain related provisions of domestic law were incorporated to ease apprehensions regarding the compatibility of domestic law with IHL principles. This document is not a definitive legal interpretation of the relevant law, but rather a practical tool meant to introduce concepts of IHL into the domestic context. It should therefore prompt further exploration of IHL, its application within Pakistan and the improvement of domestic compliance with its provisions.

INSERTING A HUMAN RIGHTS APPROACH INTO PENAL SYSTEM AND CORRUPTION JUDICIAL DECISION IN INDONESIA

INTRODUCTION:In the last decade, it has become almost universally accepted that the development is based on and framed by core human rights, as international norms that protect all people from severe political, legal, and social abuses. Corruption is a central issue of human rights and vice versa. Corruption, even in its most minimal understanding as the waste of public recources, is both a primer source and facilitator of obstacles to development, which constitutes a human right in itself. Corruption is also a cause and facilitator of specific human rights abuses, undermining such core rights as equality before the law and nondiscrimination. Although this fact is not operationalized, it is recognized by Transparency International, as is expressed in the Seoul findings: 'we condemn corruption as immoral, unjust and repugnant to the ideals of humanity enshrined in the Unversal Declaration of Human Righss and we confirm our conviction that all human beings have a basic human right to live in a corruption-free society (Lucy Koechlin, 2007).Considering that corruption relates closely to human rights violation, the preamble of United Nation Convention Against Corruption (UNCAC), 2003 starts by referring to the concern about the 'seriousness of the problems and threats posed by corruption to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and the rule of law'. Conceptually, democracy is not identhical to human rights, but this principle has long had a close association with the ideas of human rights (Matthew Lister, 2012). Respecting and protecting human rights is one of the core elements in suppressing and eradicating corruption. The idea of substainable development shifts from an idea of sustainability as primarily ecological, to a framework that also emphasizes the economic and social context of development. The preamble then couples sustainable development with the rule of law. Therefore, it can be argued that the convention begins by recognizing the economic and social rights as well as the civil and political rights of people that the human rights based approaches seek to promote and protect (United Nations Development Programme, 2004).Under Indonesian context, The Indonesian (Anti Corruption Law number 20 of 2001) perceives corruption not only related to state financial loss, but also as a violation of economic and social rights, as stated clearly in the consideration that 'the widespread cases have not only inflicted losses on the state but also violated the social and economic rights of the general public so that corruption needs to be categorized as a crime that must be eradicated in an extraordinary way'. In this sense, a human rights based approach in eradication corruption is one of the extraordinary ways. This approach is taken into account in suppressing corruption in Indonesia because traditional ways appears unsuccesfull to minimize the rate of corruption cases committed by state officials. In some corruption cases showing to public, there is also a fact that corruption has a close connection to human rights violation.In the case of former general secretary of ministry of sport, Wafid Muharram, it is proved that the accused received bribery of 3,2 billion IDR from marketing manajer of Duta Graha Indah Ltd, Mohammad El Idris and manajing director of Anak Negeri Ltd, Mindo Rosalina Manulang. This money was given as a reward for directing Duta Graha Indah as a winner of public procurement of Asean Games athlete building in Palembang. By this bribery the apportunity of parties to obtain the same right for public service does not appear. It is also proved that former governor of Banten, Ratu Atut Chosiyah was legally quilty of corruption in the procurement of medical equipment of Banten province. In this case there is a close connection between corrupt practice of the accused and violation of the right of healthy. …

Examples of coupled human and environmental systems from the extractive industry and hydropower sector interfaces

Large-scale corporate projects, particularly those in extractive industries or hydropower development, have a history from early in the twentieth century of creating negative environmental, social, and health impacts on communities proximal to their operations. In many instances, especially for hydropower projects, the forced resettlement of entire communities was a feature in which local cultures and core human rights were severely impacted. These projects triggered an activist opposition that progressively expanded and became influential at both the host community level and with multilateral financial institutions. In parallel to, and spurred by, this activism, a shift occurred in 1969 with the passage of the National Environmental Policy Act in the United States, which required Environmental Impact Assessment (EIA) for certain types of industrial and infrastructure projects. Over the last four decades, there has been a global movement to develop a formal legal/regulatory EIA process for large industrial and infrastructure projects. In addition, social, health, and human rights impact assessments, with associated mitigation plans, were sequentially initiated and have increasingly influenced project design and relations among companies, host governments, and locally impacted communities. Often, beneficial community-level social, economic, and health programs have voluntarily been put in place by companies. These flagship programs can serve as benchmarks for community–corporate–government partnerships in the future. Here, we present examples of such positive phenomena and also focus attention on a myriad of challenges that still lie ahead.

A New Chilean Migration Act: an Approach to International Standards

The current Chilean Migration Act is the oldest in South America. It was created under the paradigm of national security, not human rights, and today does not adequately serve a participating democratic state, active within the international community. The Chilean government will soon be moving to discuss in congress a new migration act. We want to emphasize that the government should not forget the importance of incorporating international standards of migration policy into the national sphere. Chile is part of the United Nations system and, as a participating member, ratifies all core human rights treaties. Given that the United Nations Human Rights Bodies have made recommendations about migration policy, it is essential that this discussion be brought to the attention of our governing officials. This article reviews the UN recommendations as a concrete approach to the implementation of international standards in Chilean migrant policy.

Does counterterrorist legislation hurt human rights practices? A longitudinal cross-national analysis

In the aftermath of the 9/11 terrorist attacks, many countries have passed new counterterrorist legislation. One of the common assumptions about such legislation is that it comes with a price: a compromise to practices of human rights. Previous research, looking at a wide range of case studies, suggested that this is indeed the case and that counterterrorist legislation often leads to subsequent repression. However, no large-scale cross-national study has yet assessed this relationship. Relying on a newly assembled database on nation-level counterterrorist legislation for the years 1981–2009, we conduct a cross-national time series analysis of legislation and repression. Our analyses find little evidence for a significant relationships between national counterterrorist legislation and various measures of core human rights in most countries. However, while legislation does not affect repression of physical integrity rights in countries with low and high levels of repression, it is associated with greater state repression in countries with intermediate scores of repression.

Strengthening the human rights framework to protect breastfeeding: a focus on CEDAW.

BackgroundThere have been recent calls for increased recognition of breastfeeding as a human right. The United Nations Convention on the Elimination of All Forms of Discrimination against Women, 1979 (CEDAW) is the core human rights treaty on women. CEDAW’s approach to breastfeeding is considered from an historical perspective. A comparison is drawn with breastfeeding protection previously outlined in the International Labour Organization’s Maternity Protection Convention, 1919 (ILO C3), and its 1952 revision (ILO C103), and subsequently, in the United Nations Convention on the Rights of the Child, 1989 (CRC).DiscussionDespite breastfeeding’s sex-specific significance to an international human rights treaty on women and CEDAW’s emphasis on facilitating women’s employment, CEDAW is, in reality, a relatively weak instrument for breastfeeding protection. In both its text and subsequent interpretations explicit recognition of breastfeeding is minimal or nonexistent. Explanations for this are proposed and contextualised in relation to various political, social and economic forces, especially those influencing notions of gender equality. During the mid to late 1970s -when CEDAW was formulated - breastfeeding posed a strategic challenge for key feminist goals, particularly those of equal employment opportunity, gender neutral childrearing policy and reproductive rights. Protective legislation aimed at working women had been rejected as outdated and oppressive. Moreover, the right of women to breastfeed was generally assumed, with choice over infant feeding practices often perceived as the right NOT to breastfeed. There was also little awareness or analysis of the various structural obstacles to breastfeeding’s practice, such as lack of workplace support, that undermine ‘choice’. Subsequent interpretations of CEDAW show that despite significant advances in scientific and epidemiological knowledge about breastfeeding's importance for short-term and long-term maternal health, breastfeeding continues to be inadequately addressed in international human rights law on women. A comparison is made with CRC and its subsequent elaborations. Increasing recognition of the need to protect, promote and support breastfeeding within the framework of CRC but not that of CEDAW suggests that breastfeeding is regarded primarily as a children's rights issue but only minimally as a women's rights issue.SummaryThe human rights framework requires strengthening in every direction to protect, promote and support breastfeeding. Discussion is needed regarding whether a separate strengthening of the international human rights framework on women is required with regard to breastfeeding.

How Activists Perceive the Utility of International Law

Scholars agree that international law works in part by empowering activists and have elaborated activist-focused theories particularly in the domains of environment and human rights. Some theories emphasize accountability—that law helps activists coerce, punish, and deter offenders. Others emphasize that law helps to foster dialogue that leads to the acceptance of norms, trust, and capacity to foster compliance. Possibly, law does both. We assess these views with a pair of survey experiments applied to 243 highly experienced NGO professionals who have firsthand experience in either environment or human rights. Activists believe that NGOs would be less effective at reducing emissions of greenhouse gases or violations of core human rights in the absence of international law. They see the chief value of law arising through accountability politics rather than by fostering dialogue or capacity. However, the two communities have different views about whether binding or nonbinding agreements work best in their d...

The Economics of the Austerity Crisis: Unpicking Some Human Rights Arguments

Austerity is now the pervasive context of public policy across the advanced economies, and it is having clear negative impacts upon areas of spending such as welfare that are generally closely aligned with a states’ socio-economic human rights obligations. As a result, there has been huge concern expressed among the human rights community as to the impact of austerity policies on human rights, and a general sense that these states are undermining their level of compliance with international obligations by cutting spending. This article examines the current debt and demographic situation of the advanced economies to understand the policy imperative for austerity. It then scrutinizes four common arguments made by human rights lawyers about current austerity policies against the backdrop of fiscal reality. It argues that the current fiscal situation of the advanced economies and the dynamic of an ageing population paint a more nuanced human rights picture that raises pointed questions about the relevance and interpretation of international human rights law in the current policy context. It points to a need to take a broader, longer term approach to understanding states’ core human rights obligations.

Confucianism, Moral Equality, and Human Rights: A Mencian Perspective

AbstractThis paper attempts to show the compatibility between Confucianism and human rights, first by revisiting the moral philosophy of Mencius, a key founder of the Confucian tradition, then by reconstructing the Mencian‐Confucian idea of human rights from the perspective of his moral philosophy. One of my central claims is that not only did Mencius acknowledge core human rights—socioeconomic as well as civil‐political—justified by his foundational faith in universal moral equality and human dignity, but he further understood the right to subsistence as an essential part of Confucian‐constitutional rights. Contrary to the widely received notion that in Mencian‐Confucianism the right to subsistence has an overriding value vis‐a‐vis civil‐political rights, I argue that Mencius (and Confucians in general for that matter) never stipulated such a lexical ranking among rights. I conclude by discussing how the type of Confucian moral reasoning that Mencius employs in justifying the moral value of human rights can be re‐appropriated to produce Confucian rights suitable for today.… … … … … …

Terrorism and state repression of human rights: A cross-national time-series analysis

This study examines the major factors that predict states’ repressive policies, focusing on the relationship between oppositional terror attacks and state repression of core human rights. We rely on a theoretical framework that brings together actor-oriented explanations and socio-cultural approaches. While the former emphasize purposive rational action, international pressures, and domestic threats, the latter focus on the power of ideas and on processes of policy diffusion and cultural norms. Relying on a longitudinal cross-national analysis of panel data for the years 1981–2005, we find substantial evidence for the effects of both actor-oriented measurements and socio-cultural ones. These findings join a growing body of research that emphasizes the importance of the institutional and cultural determinants of states’ counterterrorist policies.

Report of the Independent Expert on the Question of Human Rights and Extreme Poverty

In this report, the United Nations independent expert on the question of human rights and extreme poverty focuses on non-contributory pensions or so-called social pensions. Social pensions consist of cash benefits received by persons above a given age that do not require prior compulsory contributions from beneficiaries, employers or the State. Social pensions are an important dimension of social security systems. States are obliged progressively to ensure the right to social security and the right to an adequate standard of living to all individuals within the country. These rights are enshrined in the Universal Declaration of Human Rights and several international human rights treaties and International Labour Organization conventions. Considering the vulnerability of older persons, States must take appropriate measures to establish social security schemes that provide benefits to all older persons without discrimination of any kind and ensure equal rights for men and women. Today, large proportions of the population work outside the formal employment sector and traditional informal support systems for older people are changing under the pressure of increased longevity, widespread poverty, the impact of HIV/AIDS and migration. Contributory pension schemes (e.g. employment-based pensions) do not reach all older persons. Therefore, States must recognize that social pensions are critical elements for the progressive realization of the right to social security for older people. Non-contributory pensions can significantly reduce poverty and vulnerability among old people, in particular for women, who live longer and are less likely to benefit from contributory systems. The report provides recommendations on how to ensure that non-contributory pensions comply with core human rights standards. It also addresses the role of international assistance and cooperation in the field of social security.

The nature and scope of states' obligation to adopt a national human rights action plan

The main purpose of this inquiry is to unravel whether states are obliged, under international human rights law, to adopt a National Human Rights Action Plan (NHRAP), and if so, what is the nature and the scope of this obligation. To this end, a textual analysis of nine core human rights conventions is conducted. The results of this analysis show that each of these conventions places upon states parties an immediate obligation to adopt a NHRAP which must be geared towards realising the rights embodied in the conventions. If states parties fail to adopt a NHRAP or if their plan is not in line with realising human rights, in either case, they may be deemed to be in violation of the conventions. By contrast, the fulfillment of this obligation could set a society on the road towards development.

Human rights activists and transitional justice in the post-communist world: explaining silence among the outspoken

In this article, I use the cases of Croatia and Poland to explore the role of long-time human rights activists as advocates in the field of transitional justice. I argue that while core human rights organizations from the non-democratic period may play an important role in bringing attention to rights violations in non-democracies, they are severely handicapped with respect to transitional justice in the early transition period as a result of the very nature of the past regime, which prompts formation of elite organizations dependent on outside donors and isolated, or even distrusted, by their natural constituents at home. By contrast, organizations for which human rights is only one sub-theme, such as victims? organizations, may be more insulated from these defects and hence have a better shot at influencing the public justice debate.

The Applicability of International Human Rights Law to the Regulation of International Trade of Genetically Modified Organisms: A New Haven Perspective

This article reviews the applicability of international human rights law to the regulation of international trade of genetically modified organisms (GMO) that may have adverse effects on human life and health. Rights to life and health are recognised by many international agreements as fundamental human rights. This article argues, from the perspective of the New Haven school of jurisprudence, that since the principle of human dignity as a legal source of fundamental human rights is a basic norm justifying all legal regulations and institutions, it must, in case of conflicts with provisions under the GATT/WTO Agreements, have priority over rules for free trade and investment liberalisation. In light of the rights to life and health being core human rights having the status of international custom or jus cogens, the author proposes several policy and legal requirements to ensure human dignity, as applied to regulations of international trade of GMO.

GSP+ and Human Rights: Is the EU's Approach the Right One?

Among the purposes of the EU?s GSP+ programme is to link human rights to trade incentives, with the idea of using such incentives to promote developing countries? adoption of the values found in core human rights treaties. With the re-renewal of the GSP (and GSP+) programmes to take effect in January 2014, it is fruitful to examine their efficacy and consistency with WTO law. In this article, I argue the GSP+ programme is not only ineffective in obtaining an improvement in human rights conditions for the vast majority of the world?s population, but it is also incompatible with WTO law. A stick-based regime where human rights abuses are linked to trade sanctions is a better way to proceed. After outlining the GSP+ system, and its linkage of human rights and trade, I analyse its efficacy and WTO consistency. Having shown that it is ineffective and contrary to WTO law, I argue that trade sanctions based on a PPM distinction and/or GATT XX(a) may be the appropriate means of linking trade and human rights. The article ends with some concluding remarks on the need for the careful design of such a system.

Late modernity: Human rights under pressure?

Human rights as a product of modernity are hugely successful in terms of number of treaties and ratifications, activities of international human rights bodies, expansion into new areas such as relations between private actors, and real progress achieved in areas such as the abolition of the death penalty. At the same time, several contemporary developments may, in the long term, erode the concept of human rights as developed since the Age of Enlightenment and undermine support for it. Three challenges are in the foreground: (1) the decline of state power, in particular the phenomenon of fragile states and the negative impact of weak state institutions on human rights such as the prohibition of torture; (2) the utilitarian challenge to the validity of core human rights guarantees, particularly in the context of the war on terror; and (3) the loss of empathy as a precondition for recognizing the rights of others even if they are our enemies.

“Good Citizen Europe” and the Middle East Peace Process

According to Evans (2007), for political actors to be “good international citizens,” they ought to recognize and promote respect for core human rights in their foreign policy, engage in vigorous multilateral cooperation, and contribute to positive change whenever possible. This study assesses this approach in the context of EU foreign policy by asking two questions: What sort of ethically oriented action should be expected of a foreign policy actor in the current global system? What are the barriers to achieving such action that naturally arise in that system, given the way it is constructed? We argue that the answer lies in recognizing not only the practical challenges or constraints, but also the normative constraints facing such actors in a foreign policy framework. First, we apply a good international citizenship framework in the case of EU foreign policy. We then assess EU actions in the context of the Middle East peace process, focusing on the efforts the union has made, and ones it might make toward “punching its weight,” consistent with good international citizenship. The assessment of the case, and the analysis of good international citizenship overall, highlight a gap between moral outcomes sought by many critics of EU foreign policy action and outcomes that should be routinely achievable in the present system. Securing much more robust moral outcomes, especially those advocated by cosmopolitan theorists, likely would require long-term movement toward system transformation consistent with “institutional global citizenship.”

Does Facebook 'Like' Count as Free Speech?

The new heights of communication with the advent of internet social networking tools has resulted in unprecedented implications on freedom of expression as a core human right. Among popular social networking instruments, Facebook has proved to be one of the most influential in shaping world communication. This paper intends to explore whether the simple act of clicking the ‘like’ button on Facebook can be held expressive enough to be protected under the First Amendment and to what extent such protection should exist in light of the recent decision by the Virginia District Court in Bland v Roberts. The author argues that mere clicking of the ‘like’ button on facebook amounts to protected speech under the First Amendment based on its technical repercussions on related online activities, already developed First Amendment jurisprudence on symbolic speech and the significant practical implications of Facebook as a mode of communication in the recent world political revolutions.

Circumcision of male infants as a human rights violation

Every infant has a right to bodily integrity. Removing healthy tissue from an infant is only permissible if there is an immediate medical indication. In the case of infant male...

Trading in Humans: A New Haven Perspective

Human trafficking is the third largest criminal industry after the drug trade and arms dealing, and it is also one of the fastest growing international crimes. Its victims are exploited in sex trafficking in large urban areas, vacation and tourist spots, near military bases; in labour trafficking fuelled by the demand for unskilled labour, present in seasonal agriculture, tourism, construction, fisheries and domestic servitude. This modern-day slavery is an affront to the dignity of the human being and a violation of core human rights. It is also a crime against the state that undermines labour relations, health, safety and security of every country it touches as a source of victims, place of transit or final destination. Concerted efforts locally and globally are necessary to combat it. Through the lens of the New Haven School of Thought, also known as Policy-Oriented Jurisprudence, this article analyses the problem of trafficking in human beings, presents the decisions made to address it, and develops recommendations to improve solutions.