Human Rights

Lecture One
IPLG-AU:
Professor Dr. G. Menelik
20 January, 2016
The Modern State & Democracy
Mass political involvement transformed states into
mass democracies when the rights of opposition were
recognized and general suffrage granted.

Mass: when the internal restructuring of the state

converts subjects of the state into citizens, collectively
known as people.

But how we distinguish between democratic and non-

democratic states in the first place?
 The Modern State & Democracy

Usually, this question is answered by referring to:

Citizens’ rights,
Elections and
Parliamentary accountability
Citizens’ rights,

Discussions about political power and the rights of

citizens have always been at the centre of debates
about democracy.
As the members of French National Assembly
confirmed in August 1748, the struggle for political
power is not an aim in itself. It is what can be done
with that power that matters.
HR
Two historical documents:

1) Article 2 of the Declaration of the Rights of Man

and of the Citizen published in Paris (1789) talks about
the goal of all political institutions being the neutral
and inalienable rights of man.

2) The Virginia Bill of Rights –published in 1776,

stressed the universal nature of these rights.
A first characteristic of democracies, then, is the
acknowledgment that it is not power but the
protection of rights (Human Rights) that of prime
concern.
Human Rights Definition:
The innate, inalienable and inviolable right of humans
to free movement and self-determination. Such rights
cannot be bestowed, granted, limited, bartered or sold
away. Inalienable rights can be only secured or
violated.
Human Rights
Following this line of reasoning, the constitutions of
many states start with an enumeration of human
rights before political institutions and powers are
defined.
Please do a research and read about “ What a
constitution is, and why we have them”.
Some constitutions even borrow heavily from the a.m.
documents –published in Paris and Virginia in the late
18th century.
 Human Rights
The most common rights include:

Freedom of speech and the press

Freedom of religion and conscience
Freedom of assembly and association
Right to equal protection of the law
Right to due process of law and fair trial
Property rights to land, goods and money
 Human Rights
Protecting these rights is the first aim of democratic
political system.

Apart from anything else, they have a special political

importance for both ordinary citizens and political
leaders.
If human rights are protected, citizens and leaders can
engage in peaceful political conflict.
Human Rights
This must move without fear of reprisals so that free
competition for political power should result, on
election day, in government by those winning most
popular support.

Losers of the popular vote should not be victimised

because they were in the losing side.
 Human Rights
In this way democracy can gain the consent of losers
and winners alike and so it can also be government of:
the people
by the people
for the people
as the American president Abraham Lincoln (1809-65)
stated in his Gettysburg Address.
Elections & Parliamentary Accountability
The development of mass democracy began in a few
countries in the 19th century.
The Idea:
not that the citizens should be directly involved
should rely on being represented by elected leaders
main task of citizens was to elect representatives to
govern them (Representative Democracy)

This is a step towards democracy, but it was not

democracy as we would define it today –here in IPLG
Elections & Parliamentary Accountability
Only after long struggles among factions and elites, it
was recognized that democracies must function with
the consent of their citizens.
After a while it was also recognized -with their active
participation (Participatory Democracy)

This meant that the principle of parliamentary

accountability to citizens came to be incorporated into
the democratic ideal.
Elections & Parliamentary Accountability
In Europe it was accepted:
 in France in 1870 (Female 1946)
in Germany in 1918 (Female 1919)
In Belgium 1831 (Female 1948) etc...
But not in Spain until 1976. In several countries it took
long time before the new constitutional rules were
realized in practice.
Reason : autocrats and elites had to give up their privileges
first.
Applicable Human Rights Law

States are bound by international human rights

treaties to which they are party, as well as by human
rights norms reflected within customary international
law.

These obligations have extraterritorial application and

continue to apply during armed conflict.
Applicable Human Rights Law

States have international human rights obligations

under customary international law (applicable to all
States)
and
international treaties (applicable to States parties to
such treaties).
Applicable Human Rights Law

This pertains to the enjoyment of rights and freedoms

by all within the territory of the State, not only
nationals of the State.
Two aspects concerning the application of human
rights law should be clarified at this point, since these
are matters that may be of particular importance: for
example war, unrest and to counterterrorism.
The Extraterritorial Application of HR-Law

Particularly important to transnational

counterterrorist operations, whether involving
military action or the transfer of persons from one
jurisdiction to another, is the fact that human rights
are legally binding upon a State when it acts outside its
internationally recognized territory.
At a minimum, a State is responsible for acts of foreign
officials exercising acts of sovereign authority on its
territory, if such acts are performed with the consent
or acquiescence of the State.
A State is also obliged to respect and ensure the rights
and freedoms of persons within its power or effective
control, even if not acting within its own territory.
The interaction between
international Humanitarian law
and international human rights
law
Next
The interaction...
It is also a well-established principle that regardless of
issues of classification, international human rights law
continues to apply in armed conflict.

This is a point made clear, for example, by the Human

Rights Committee in its General
Comment 31 and confirmed by the International Court
of Justice (ICJ)
The interaction
“the protection offered by human rights conventions
does not cease in case of armed conflict“

This is to be found in article 4” of the International

Covenant on Civil and Political Rights (ICCPR).

The conduct of States involved in armed conflicts

must therefore comply not only with international
humanitarian law, but also with applicable
international human rights law.
Resolutions of the UN
Commission on Human Rights
Resolutions
The General Assembly
The General Assembly has adopted a series of resolutions
concerning terrorism since 1972.

The latter series of General Assembly resolutions began in late

December 1993, with the adoption of Resolution 48/122, entitled
Terrorism and Human Rights

Both series of resolutions contain various statements about the

need to comply with international human rights standards when
implementing counterterrorist measures.
series of resolutions
A common formulation of this principle is contained
in General Assembly Resolution 50/186 (1995):

Mindful of the need to protect human rights of and

guarantees for the individual in accordance with the
relevant international human rights principles and
instruments, particularly the right to life…

Reaffirming that all measures to counter terrorism

must be in strict conformity with international human
rights standards…
series of resolutions
Calls upon States to take all necessary and effective
measures in accordance with international standards of
human rights to prevent, combat and eliminate all acts
of terrorism wherever and by whomever committed.
Resolutions of the UN
General assembly
series of resolutions
series of resolutions
The general framework of internationally recognized
HR is established in 1948
Resolution.....
The Commission on Human Rights paid considerable
attention to the issue of the adverse consequences that
counterterrorism can have upon the maintenance and
promotion of human rights.

See--Security Council Resolution 1373 (2001). Pre-9/11

resolutions of the Commission and its Sub-
Commission on the Protection and Promotion of
Human Rights
Resolution....
It states -All States have an obligation to promote and
protect human rights and fundamental freedoms and
that all measures to counter terrorism.

It must be in strict conformity with international law,

“including international human rights standards
Resolution...
With that Post-9/11 resolutions of the Commission became more
strongly worded.

Two such resolutions were adopted in 2004 alone.

The issue was first addressed within the Commission’s annual

resolution on human rights and terrorism,

In a resolution later that month, the Commission again

reaffirmed that States must comply with international human
rights obligations when countering terrorism.
series of resolutions
The Commission’s Resolution 2005/80, pursuant to
which it appointed a Special Rapporteur on the
promotion and protection of human rights and
fundamental freedoms while countering terrorism,
Paragraphs 1 and 6 state that it:

[r]eaffirms that States must ensure that any measure

taken to combat terrorism complies with their
obligations under international law, in particular
international human rights, refugee and humanitarian
law…
series of resolutions
[r]eaffirms that it is imperative that all States work to
uphold and protect the dignity of individuals and their
fundamental freedoms, as well as democratic practices
and the rule of law, while countering terrorism.
Human Rights Actors and
Institutions
in Africa
HR- Africa has
largely been one of violation
All experts agree to the claim that the history of
human rights – the most natural and inalienable
endowments of human beings – in Africa has
largely been one of violation and systematic erosion.

Since independence –to-today the 18th of Feb, 2011 –

we have seen massive violations by the state.
Africa has
largely been one of violation
The need to foster development and meet popular
post-independence expectations led to the further
deterioration of human rights standards and the
emergence of fragile governance structures paved by a
century of European colonialism.
Africa has
largely been one of violation
This resulted from the establishment of one-party
systems, military regimes, and various brands of one-
man dictatorships under leaders such as Idi Amin of
Uganda and Mobutu Sese Seko of Zaire that marked
Africa’s immediate post-independence years
Africa has
largely been one of violation
In countries such as Ghana, Mali, Guinea and
Tanzania, socialist or quasi-socialist regimes were
established, which concentrated power in the
executive but which were used to suppress dissent and
alternative views to the reigning ideologies.
Africa has
largely been one of violation
In these countries, the imperative to promote
collective rights led to restrictions on individual rights.

The establishment of the Organisation of African

Unity (OAU) in Addis Ababa, Ethiopia, in 1963, barely
improved the fortunes of human rights in Africa.
Africa has
largely been one of violation
On the contrary, in addition to sanctioning
Africa’sarbitrary and hastily demarcated boundaries,
the OAU also adopted principles which left human
rights at the mercy of states.
Notable among these were the principles of ‘the
sovereign equality of all member states; and the non-
interference in the internal affairs of states’.
Africa has
largely been one of violation
Sanctifi ed by the Westphalian state system
established in Europe in 1648, sovereignty provided a
shield against international condemnation and
humanitarian intervention (HI), even in cases of
massive human rights violations.
The UN’s legitimisation
The UN’s legitimisation of humanitarian
interventions in Somalia (1993–1994) and Kosovo
(1999) also undermined orthodox assumptions on
state sovereignty.

The 1960s and 1970s saw a proliferation of regimes

across Africa that were anything but human-rights
respecting.
The UN’s legitimisation
Examples abound:
Idi Amin’s regime is believed to have massacred an estimated
300 000 gandans between 1971 and 1979.

The Marxist-styled regime of Mengistu Haile Mariam repressed

and routinely executed its opponents in Ethiopia etween 1974
and 1991;7
Kwame Nkrumah detained and imprisoned his opponents without
trial under the notorious Preventive Detention Act
(PDA) between 1957 and 1966,8 and the list goes on.