Laws 2225: International Human Rights Law

First Semester 2004

Mark: Distinction Overall

Question One.

Mark: 76

The following rights may have been violated:

  1. The Right to Work.

This is protected by Art 6 of the ICESCR and Art 23 UDHR (Marker Comment: Why mention UGHR when you know they are a party to the ICCPR?). The Agrarian Government is not under a positive duty to give all people or all women, a job, especially given the downturn in the economy: Olga Tellis. But they cannot take regressive steps and actually deprive women of jobs. By firing women first, they government is taking regressive steps. The media campaign also breaches this right by encouraging employers not to employ women.

CESCR General Comment No 3 (1990) states that although the ICESCR allows for progressive realisation and is weak on implementation compared to the ICCPR, it also imposes obligations on states that are of immediate effect. The Agrarian government must undertake to guarantee that rights such as the right to work will be exercised without discrimination. They must combat discrimination against women effectively and a legislative framework is essential. (Marker Comment: ticks all over this paragraph – good).

This also may lead to a breach of the Right to Life under Art 6 ICCPR and Art 3 UDHR. In Olga Tellis, it was noted that the easiest way to deprive someone of their right to life is to deprive them of their means of livelihood. By removing women from the workforce in an economy that is terrible, and in a society that seems quite sexist, may also lead to breaching the right to life.

Even though it is non-state actors, (employers) who are causing the dismissals, the State can be held responsible to prevent, investigate and punish violations of covenant right, even if they are committed by non-state actors: Velasuez Rodriguez; Inter-American decision. Furthermore, the employers are not acting outside the Govt’s control due to the media campaign Article 2 ICCPR says states must ensure to all individuals recognised rights. This goes beyond a hands off approach and extends to preventing violations. It certainly extends to not taking regressive steps as the media campaign.

  1. The right to form trade unions is also being breached, from Art 8 ICESCR and Art 23(4) UDHR and Art 22 ICCPR.

Art 8 ICESCR gives the right to form trade unions. It only allows a restriction on this for national security or public order. (marker comment: Similar limitation clause in Art 22(2))

In order to claim the limitation of public order, the Govt must show that the limitations are proportionate to the intended aims: Handyside; Toonan. A principle of deference will be shown because the Govt may be moe appropriate to determine morals, but the courts will interfere where necessary. I think interference is justified here. The Govt is being explicitly discriminatory and depriving women of fundamental human rights. This is not proprtionat to the aim of keeping men in the workforce.

If the Govt wanted to claim public emergency for a limitation, they would hae to demonstrate a threat to the life of the nation and must officially proclaim it: Brannigan. A mere economic downturn and increase in crime rate is unlikely to be sufficient.

The Govt may also claim that by removing women’s rights to work they are providing a different right- that of a man’s right to work. However, by virtue of Article 5 of the ICCPR and ICESCR, this is not permitted.

  1. Furthermore, Articles 3 of both ICCPR and ICESCR state that the Govt must ensure equal rights of everyone to the rights of the covenants. Art 7 UDHR provides the right to equal protection from discrimination. Thus the Govt is under an obligation to protect against discrimination. The media campaign clearly breaches this
  1. Article 2 ICESCR allows the Govt to claim that resource constraints prevent them from implementing rights. The Govt could claim that the downturn in the economy has them so strapped for cash that they are unable to satisfy minimum standards for women. However, the Govt must show that every effort has been made with existing resources. Given the money spent on the media campaign, this is cannot be shown.
  1. The facts do not state if Agraria is a party to CEDAW, but a discussion would not be complete without a reference to Art 11 CEDAW whereby states must take all appropriate measures to ensure that the right to work is provided to men and women. This imposes an obligation to protect and ensure, and certainly not take regressive steps.

Mechanisms for Enforcement & Problems

Members of the Womens Union could make an individual communication to the HR committee under the 1st Optional Protocol to the ICCPR. There is no equivalent mechanism for breaches of the ICESCR, but social, economic and cultural rights could be raised indirectly: Olga Telis. Sych as the right to work being interdependent with the right to life. (Markers Comment: Showed no exhaustion of local remedies).

A positive about this process is that a mere denial by the Govt is not sufficient. Agraria will have to provide records, documents, etc or the committee can find in favour of the women: Domukovsky

Problem is that it isn’t binding on Agraria. The Committee will probably ask for follow up info, but his isn’t even given in 1/3 of cases.

The women could also individually invoke a 1503 procedure. But they will have to show that this isn’t a one-off, atypical occurrence of discrimination. There must be a gross and consistent and reliably attestable violation of their rights. (Markers Comment: Try to apply to the facts).

The problem with this is that it will lead to a completely confidential procedure. As we saw with Saudi Arabia in 1996-1998, no reasons are given for the outcome, so it can be vulnerable to political influence. The dismissal of the complaints was highly criticised, leading Amnesty International to state that the confidentiality was just an instrument for concealing the occurance of violations.

However, it may be appropriate in that it will consider the whole situation of discrimination in Agraria, not just the individual complaints. It also provides an incremental technique for placing pressure on Agraria.

The 1235 procedure may not be too useful for individual women, but perhaps a trade union could summon enough clout to convince an NGO to get the issue on the agenda for an annual debate. This could lead to embarrassment, generation of media coverage or even adoption of the matter by the Commission. As a developing State that is probably vulnerable to shaming and dependant on foreign aid, this could possibly be effective.

In 1503, local remedies must be exhausted. I need more information on what kind of domestic remedies are available – it doesn’t state if the Covenants are implemented in local law or if there are implied constitutional rights.

Question Two.

Mark: 65

The following rights may be violated:

  1. Art 19 ICCPR gives the right to freedom of opinion and expression. By outlawing speech of the Diversity Party, the Govt is breaching the right to orally express their opinion and breaching the right of the people to be effectively informed and hold their opinions without interference.

Article 19(3) ICCPR limits this right for respect and reputations of others and for the protection of national security or public health or morals. The Govt could claim that the limitations apply, particularly that speech regarding homosexuality, immigrants and minorities is against public morality. However, outlawing this speech and providing a 24 hour power of detention is not proportionate to the aim: Handyside; Toonan. Furthermore, the aim of the govt must be legitimate and to address a pressing social need. Here, the Govt’s actions could easily be seen as a political move, aimed at silencing the opposition.

The Govt could also claim that public order, or even art 4 public emergency requires this action. The tensions have erupted, so perhaps there is fighting between the supporters of the two political parties. Until more info is provided, I’ll just note that a public emergency must be officially proclaimed and must threaten the life of the nation: Brannigan. Even if this is satisfied, it surely cannot be enough to silence an opposition political party for personal benefit as well.

  1. Art 9 ICCPR may also be breached. It gives freedom from arbitrary arrest or detention. By importing a detention of 24 hours of any person engaging in Anti-harmonious speech it may breach this right.

However, the power to detain has bee established by law (although discretionary) as required by Art 9. It also gives a type of procedure including requiring the AG’s input. I need more info am how this law is implemented and whether it is used in a illegitimate manner before determining if it is arbitrary.

Furthermore, the very nature of the law might be legitimate. It has occurred at a time which may in a public emergency and it might not specifically target the speech of the diversity party. Anti-harmonious speech is not defined so we don’t know how it will be used.

On the other hand, exposing people to a law that is not clearly defined and prone to abuse would breach their rights rights to be free to arbitrary detention. Allowing an arbitrary right to detain may also breach Art 14 which requires court procedures and due process.

  1. Silencing the opposition party breached Art 14 which recognises the right to participate in Government, and take part in the conduct of public affairs
  1. Silencing the opposition party breaches Art 25 which recognises the right to participate in Govt and take part in the conduct of public affairs.
  1. The law also seems to breach art 27 Minority rights as well, by targeting speech that preaches greater tolerance of minorities.

The General Comment 23 (1994) docuses mainly n the link between land and culture, but surely a right to enjoy culture hinges fundamental on a right to freedom of political expression.

Para 6.1 of the General Comment also states that Govt is under a positive obligation to protect.

Utopia is under a positive obligation to ensure its people these rights (Art 2 ICCPR). Not only can they not take regressive steps such as the legislation, but they must protect and protect its people from violations: Velasquez Rodriguez. (Marker Comment: See General Comments of HRC too)

  1. Art 20 ICCPR includes a qualification to free speech. Utopia may assert that anti-harmonious speech is a is advocacy of a national, racial or religious hatred that incites discrimination or violence. They could argue that tension and violence has erupted.

This is a vague article and the ICCPR Committee has not issued a General Comment on it. Manfred Nowak in his ICCPR commentary noted that it was obvious that it did not cover advocacy that instigates violence. This will turn on additional facts we don’t have, but I would venture a guess that members of Diversity preaching tolerance would not come under this article.

Enforcement Possibilities

Utopia is a party to the 1st Optional Protocol to the ICCPR, so can make individual communications to the ICCPR Human Rights Committee. In order for the committee to consider it, the members must exhaust all local remedies. We don’t have any info on what type of domestic remedies are available – and even if Utopia is a dualist system like Australia and has not implemented the ICCPR into local law, there may still be implied or express constitutional remedies.

The members could bring a 1503 procedure as individuals. But they will have to show that this isn’t a one-off, atypical occurrence of discrimination. There must be a gross and consistent and reliably attestable violation of their rights. (Markers Comment: Try to apply to the facts).

The problem with this is that it will lead to a completely confidential procedure. As we saw with Saudi Arabia in 1996-1998, no reasons are given for the outcome, so it can be vulnerable to political influence. The dismissal of the complaints was highly criticised, leading Amnesty International to state that the confidentiality was just an instrument for concealing the occurance of violations.

However, it may be appropriate in that it will consider the whole situation of discrimination in Utopia, not just the individual complaints. It also provides an incremental technique for placing pressure on Utopia.

Better dealt with in the European Regional System?

At the outset, I submit that most HR complaints are better dealt with in regional bodies. As noted by the 28th Report of the Commission to Study the Organisation of Peace, regional bodies are particularly effective because of the existence of geographic, historical and cultural bonds, and because the recommendations of a regional body may be met with less resistance.