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Eleonora Banfi

05727/400
Giurisprudenza LMG/01
Anno 2009/2010

Human Rights
International and European policies

Libera Università Maria SS. Assunta


Prof. Igino Schraffle
Cattedra di Inglese Giuridico
Summary
Human Rights......................................................................................................................1
International and European policies.....................................................................................1
Summary..........................................................................................................................2
.........................................................................................................................................2
01 Introduction.................................................................................................................3
02 International Legislation.............................................................................................3
02.1 Treaties bodies.....................................................................................................4
03 European policies........................................................................................................5
03.1 The internal situation as a starting point .............................................................6
03.2 Fight against discrimination ................................................................................6
03.3 A global force for human rights ..........................................................................6
03.4 Taking the initiative.............................................................................................7
03.5 The EU and its partners........................................................................................8
03.6 The aims of the EU is helping to change situations.............................................8
03.7 European Parliament............................................................................................9
Conclusion.....................................................................................................................10
01 Introduction

Human rights are those rights universally recognized as pertaining to every man by the
mere fact of being human1. Moral norms are given by the natural law that go beyond the
written law and legal order present in the various states, however, there has never been
agreement, and there is still, on the exact nature of what it should be recognized as a right
or not.
Many of the ideas that gave rise to a strong movement to conquer the recognition of
human rights, developed after the Second World War, and led to the adoption of the
Universal Declaration of Human Rights2 (UDHR) by the United Nations3 in 1948. This
was a revolution of the rights because before, under international law only the States
enjoying the rights, but with the Universal Declaration the individuals received legal
recognition internationally. For the first time were granted to individuals - regardless of
race, creed, gender or any other condition - the rights and powers to use them to oppose
unjust law and oppressive practices.

02 International Legislation

The human rights law generally provides for:


• right to security that protects people against crimes such as murders, massacres,
torture and kidnappings;
• right to freedom that protects areas such as freedom of thought and of religion,
freedom of association, assembly and to form a movement;
• political rights which protect freedom of political participation through freedom of
expression, protest, vote and assume public office;
• habeas corpus4 rights that protect against abuses by the judicial system such as
imprisonment without trial, or so-called secret process, or excessive punishment;
• social equality rights that guarantee equal access to the citizenship, equality before
the law and abolition of discrimination;
• right to wellness (it can also take the name of economic and social rights), which
provides access to an adequate education and protection in situations of serious
hardship or poverty;
• collective rights that ensure protection against genocide and looting of natural
resources.

1
Feldman, David. Civil Liberties & Human Rights in England and Wales. Oxford University Press. p. 5.l
2
UDHR consists of 30 articles which have been elaborated in subsequent international treaties, regional
human rights instruments, national constitutions and laws.
3
The United Nations (UN), founded in 1945, is an international organization whose stated aims are
facilitating cooperation in international law, international security, economic development, social progress,
human rights, and achievement of world peace.
4
In the common law the term habeas corpus (trans. lat. "you have the body"), means the order issued by a
judge to bring a prisoner to his presence. The right of habeas corpus in the course of history was an
important instrument for safeguarding individual freedom against arbitrary state action. This system has
been included in the important document of the Magna Carta after claims of English barons.
02.1 Treaties bodies
Many nations would like to go beyond the Universal Declaration and create a body of
laws that commitments in effect all earth States to adhere at the standards for the
protection of human rights. This has led - because of some disagreement to include also
socio-economic standards - the preparation of two different treaties. In 1966 and 1976 the
International Covenant on Civil and Political Rights5 and the International Covenant on
Economic, Social and Cultural Rights6 were born. Both covenants begin with the right of
people to self-determination and to sovereignty over their natural resources. Together
with the Universal Declaration of Human Rights these documents form the International
Bill of Rights.

The United Nations recognized that with the exception of non-derogable human rights,
- the four most important are the right to life, the right to freedom from slavery, the right
to freedom from torture and the inability of the retroactivity of the penal law - some
rights may be placed under restriction or even pushed aside during national emergencies,
however, clarifying that this can happen only in special, very limited conditions: that "the
emergency must be effective, must involve the entire population and to be put at risk
should be the existence of the nation. The declaration of emergency must be put in place
only as a last resort, and adopted as a temporary measure” 7. The conduct during the war
is always governed by international humanitarian law.
The UDHR urges member countries to promote a series of human, civil, economic and
social rights such as affirming the "foundation of freedom, justice and peace in the
world”. The Declaration was the first international legal effort to restrict the behavior of
states and press upon them duties to their citizens following the model of the right-duty
duality
“...recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the
world.” 8
The Declaration was signed by many Countries that did not realize the glaring
contradiction inside themselves, they thought that the Declaration should remain a series
of norms set out which never be applied. Instead, once expressed in the form of
international norms, the language of rights burned out the colonial revolutions abroad and
the struggle for civil rights inside. The legal revolution was the necessary way to fight for
self-determination.

5
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty commits its
parties to respect the civil and political rights of individuals, including the right to life, freedom of religion,
freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of
December 2010, the Covenant had 72 signatories and 167 parties.
6
The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty in
force from January 3, 1976. It commits its parties to work toward the granting of economic, social, and
cultural rights (ESCR) to individuals, including labour rights and the right to health, the right to education,
and the right to an adequate standard of living. As of December, 2008, the Covenant had 160 parties.[1] A
further six countries had signed, but not yet ratified the Covenant.
7
International norms and standard relating to disability. Part II International Human Rights System.
8
Preamble UDHR
A modern interpretation of the Declaration of Human Rights was made through the
Vienna Declaration and Programme of Action, adopted by the World Conference9 on
Human Rights of 1993. The degree of unanimity about these conventions, in the sense of
how many and what are the countries that have ratified, varied, as well as differences in
the level of respect within the same nation. The UN has set up a number of bodies to test
and study for Human Rights under the leadership of the United Nations such as the High
Commissioner for Human Rights (OHCHR)10.
During the years the United Nations has continued an uninterrupted series of treaties with
the aim of protecting the fundamental rights in which places where also the more
important right wasn’t respected by the Government, such as South America, China,
Africa, until the recent reform of 2006, which established the Human Rights Council11, a
new subsidiary body of the General Assembly.
02.2 International penalties
Human rights violations occur when any state or non-state actor breaches any part of the
UDHR treaty or other international human rights or humanitarian law. In regard to human
rights violations of United Nations laws the article 39 of the United Nations Charter
designates the UN Security Council12 (or an appointed authority) as the only tribunal that
may determine UN human rights violations. Human rights abuses are monitored by
United Nations Committees, National Institutions and Governments and by many
independent non-governmental organizations (NGOs).

03 European policies

Human rights, democracy and the rule of law are core values of the European Union.
These values, already firmly anchored in the institutive treaties, have been strengthened
through the adoption of a European Charter of Fundamental Rights13. Countries wishing

9
The World Conference on Human Rights was held by the United Nations in Vienna, Austria, on 14 to 25
June 1993.[1] It was the first human rights conference held since the end of the Cold War.
10
The Office of the United Nations High Commissioner for Human Rights (OHCHR) is a United Nations
agency that works to promote and protect the human rights that are guaranteed under international law and
stipulated in the Universal Declaration of Human Rights of 1948.
11
The United Nations Human Rights Council (UNHRC) is an inter-governmental body within the United
Nations System. The UNHRC is the successor to the United Nations Commission on Human Rights
(UNCHR, herein CHR), and is a subsidiary body of the United Nations General Assembly. The council
works closely with the Office of the High Commissioner for Human Rights (OHCHR) and engages the
United Nations' Special Procedures.
12
The United Nations Security Council (UNSC) is one of the principal organs of the United Nations and is
charged with the maintenance of international peace and security. Its powers, outlined in the United
Nations Charter, include the establishment of peacekeeping operations, the establishment of international
sanctions, and the authorization of military action. Its powers are exercised through United Nations
Security Council resolutions.
13
This Charter is the end-result of a special procedure, which is without precedent in the history of the
European Union, it enshrines certain political, social, and economic rights for European Union (EU)
citizens and residents, into EU law. It was drafted by the European Convention and solemnly proclaimed
on 7 December 2000 by the European Parliament, the Council of Ministers and the European Commission.
The Charter entered into force by the ratification of the Lisbon Treaty on 1 December 2009
to become a member of the European Union are obliged to respect human rights, as well
as with the EU countries that have concluded trade agreements or otherwise.
The European Union considers the human rights universal and indivisible. It is therefore
committed to promoting and actively defend those rights both within its borders, and in
relations with third countries. At the same time the EU does not intend to usurp the
powers enjoyed by the national governments of its Member States in this area.
The European Union's policy on human rights focuses on civil, political, economic, social
and cultural rights. It is also aimed at promoting the rights of women and children, and
those of minorities and displaced persons.

03.1 The internal situation as a starting point


Although in European countries, respect for human rights is guaranteed in principle, the
European Union does not remain inactive in this respect. His interest is directed in
particular to respect the rights of asylum seekers and immigrants, and is specified in the
commitment to combat racism, xenophobia and other forms of discrimination based on
religion, sex, age, disability or sexual orientation. The EU has a long tradition of
welcoming people from other countries looking for work or on the run because of war or
persecution.

03.2 Fight against discrimination


As part of the Community Programme for Employment and Social Solidarity
(PROGRESS)14, the EU funds a wide range of activities to combat racism and xenophobia
within its borders. The EU has also recently established an Agency for Fundamental
Rights15.
The measures designed to stop the trafficking in human beings, especially women and
children, have become a political priority of the European Union, which launched a series
of cross-border programs to combat this phenomenon, in particular with applicant
countries and those South East European neighbors.

03.3 A global force for human rights


Gradually, the EU has made human rights a top issue in relations with other countries and
regions. All trade agreements and cooperation with third countries contain a clause which
states that human rights are an essential principle of relations between the parties. There
are currently more than 120 such agreements.

14
The PROGRESS programme (2007 – 2013) is to provide financial support for the implementation of the
European Union’s objectives in the field of employment and social affairs.
Decision No 1672/2006/EC of the European Parliament and of the Council of 24 October 2006 establishing
a Community Programme for Employment and Social Solidarity — PROGRESS [Official Journal L 315 of
15.11.2006].
15
Fundamental Rights Agency, (FRA) is a Vienna-based agency of the European Union inaugurated on 1
March 2007. It was established by Council Regulation (EC) No 168/2007 of 15 February 2007. The FRA
helps to ensure that fundamental rights of people living in the EU are protected.
What counts is the highest number of signatories to the Cotonou Agreement: the
Agreement on trade and aid between the European Union to 78 countries in the
developing African, Caribbean and Pacific (countries ACP area). The lack of respect for
human rights by one of the ACP countries may lead to suspension of EU trade
concessions, and scaling up aid programs. The European Union considers that the
reduction of poverty - the main objective of the policy of development cooperation - can
only be achieved within a democratic structure. Similar provisions apply to other partner
countries.
The European Programme for emergency humanitarian aid around the world is not
subject to conditions of human rights. The aid granted in kind, in the form of money or
technical assistance shall be determined solely for the purpose of alleviating human
suffering, whether caused by natural disasters or mismanagement of oppressive regimes.
In recent years the EU has conducted dialogues on human rights with several countries,
including Russia, China and Iran. He imposed penalties for violations of human rights in
Burma (Myanmar) and Zimbabwe.

03.4 Taking the initiative


To promote human rights around the world, the EU funds under the European Instrument
for Democracy and Human Rights (EIDHR)16. With a budget of € 1.1 billion for the
period 2007-2013, the instrument places the respect for human rights and democracy in a
global context and focuses on four areas:

1. consolidation of democratic structures, good governance and rule of law (support


for political pluralism, freedom of information and the proper functioning of the
judiciary);
2. abolition of the death penalty in countries where it is still in force;
3. combating torture through preventive measures (training and training of police
forces) and repressive (creation of international tribunals and criminal);
4. combating racism and discrimination by ensuring respect for civil and political
rights.
The EIDHR also funds projects for equal opportunities between men and women and
child protection. Finally supports the action taken by the EU and other organizations
active in defending human rights, as the United Nations, the International Committee of
the Red Cross17, the Council of Europe and the Organisation for Security and
Cooperation in Europe18.

16
Lunched in 2006 its aim is to provide support for the promotion of democracy and human rights in non-
EU countries.
17
The ICRC, established in 1863, works worldwide to provide humanitarian help for people affected by
conflict and armed violence and to promote the laws that protect victims of war.
18
With 56 States from Europe, Central Asia and North America, the OSCE is the world's largest regional
security organization. It offers a forum for political negotiations and decision-making in the fields of early
warning, conflict prevention, crisis management and post-conflict rehabilitation, and puts the political will
of its participating States into practice through its unique network of field missions.
03.5 The EU and its partners
Political dialogue is an important way of promoting respect for human rights worldwide.
Reflecting the increasingly multipolar nature of world affairs, the EU has an increasing
number of consultations with non-EU countries on all subjects, including human rights.
Human rights may feature in all the EU’s meetings with non-EU countries. In addition,
specialized dialogues on human rights have grown up over time with certain partners.
These take various forms, but all aim at improving performance as well as sharing
information. The EU’s guidelines on human rights dialogues set out best practice on the
basis of experience gained over the past 15 years. A main plank of the EU’s dialogues is
the involvement of civil society representatives.
The EU keeps its human rights dialogues under review, especially those which have been
running for several years. Over recent years the EU has entered into “Strategic
Partnerships” as the expression of some of its most important relationships, including
those with the U.S., Canada, China, India, Japan and Russia. These have provided various
platforms for addressing human rights, albeit with varying degrees of effectiveness.

03.6 The aims of the EU is helping to change situations


Conflict and the threat of conflict put human rights in danger, and the denial of human
rights in turn increases the risk of conflict. That is why the EU continues to improve its
capacities for crisis management and conflict prevention, integrating human rights
considerations into these efforts. Tackling the root causes of conflict means defending the
rights of all those involved in conflict, regardless of their religion or ethnicity.
The EU has pursued its efforts throughout the period to ensure that its security and
defense policy takes full account of human rights, gender issues, and the effects of armed
conflict on children. Most operations and missions now include human rights and/or
gender experts, who work to raise awareness of these issues.
The EU’s Special Representatives (EUSRs), represent the EU in some of the most
troubled countries of the world. Their mandates contain specific provisions to address
human rights, gender and CAAC19 matters. Most EUSRs have appointed human rights
and gender focal points, contributing to implementation of EU commitments.
The EU has unique a role to play in the field of crisis management, since it brings
together both civilian and military expertise. In December 2008 the European Council
agreed to further this by integrating strategic planning of civilian and military crisis
management. The new Crisis Management and Planning Directorate (CMPD), created in
2009, has provided for improved coordination, allowing the EU to maximize its
effectiveness.

The EU’s human rights policy is based squarely upon the provisions of the Treaty on
European Union, and also derives inspiration from the constitutional traditions of the 27
EU Member States. Over time a large body of agreed positions on human rights has
grown up as a result of interaction between the following important actors.
• The European Parliament holds regular discussions on human rights, including at the
appropriate subcommittee (DROI) of the Foreign Affairs Committee (AFET);

19
Civilian Agency Acquisition Council (CAAC).
• The Council of the EU Makes and coordinates EU Policy on human rights; its
decisions are prepared at the monthly discussions of its expert working party
(COHOM20);
• The 27 Member States decide the policy of the Council by unanimity, after which they
are responsible for supporting EU policy and putting it into practice in their own work;
• The European Commission shares the responsibility for implementing EU policy,
which it does through various means, including provision of assistance under the EIDHR.
By its essence, EU policy is consensual, inclusive and under constant review. This is
what the EU does, and it will not change with the advent of the External Action Service.

03.7 European Parliament


The European Parliament is an important voice on human rights and democracy issues. It
seeks to ensure that rights and freedoms are defended and promoted within and outside
the EU. Human rights issues are never far from the top of Parliament’s agenda.
Every year Parliament awards the Sakharov Prize for Freedom of Thought 21, which seeks
to honor individuals or organizations anywhere in the world for their efforts on behalf of
human rights, democracy and freedom of expression and their struggle against
intolerance and oppression.
The 2009 was election year for the European Parliament. Both presidents, outgoing and
incoming HansGert Pöttering and Jerzy Buzek, made a strong commitment to defending
human rights as part as the global action of the European Parliament.
While approaching the end of the 6th legislature, the Subcommittee on Human Rights
took the time to reflect on its five years of work and on the holistic approach to the EU
human rights policy, which it had encouraged by analyzing human rights instruments
(human rights dialogues, sanctions and human rights clauses in agreements) and
guidelines. Since the beginning of the 7th legislature, the Subcommittee has achieved a
new momentum, addressing major situations such as the crisis after high risk elections in
Afghanistan and Iran, difficult humanitarian situations as in Sri Lanka and Myanmar,
human rights in neighboring countries, Russia and Turkey, and the permanent concern
about human rights in China.
In December 2009, the European Parliament awarded the Sakharov Prize to Oleg Orlov,
Sergei Kovalev and Lyudmila Alexeyeva on behalf of MEMORIAL, an organization
promoting fundamental rights in countries of the Commonwealth of Independent States,
and all other human rights defenders in Russia.
The EU also looks at the work to be done internally in terms of implementation of the
Rome Statute22. The European Council adopted in December 2009 the new multi-annual
programme to be known as the Stockholm Programme for the period 2010-2014. The

20
Working Party of Human Rights
21
Named after Soviet scientist and dissident Andrei Sakharov, was established in December 1988 by the
European Parliament as a means to honor individuals or organizations who have dedicated their lives to the
defense of human rights and freedom of thought. The prize is of 50.000 euro.
22
The Rome Statute of the International Criminal Court (often referred to as the International Criminal
Court Statute or the Rome Statute) is the treaty that established the International Criminal Court (ICC). It
was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002.
As of March 2011, 114 states are party to the statute, and a further 34 states have signed but not ratified the
treaty.
programme invites the EU institutions to support and promote EU and Member States’
activity against impunity and to fight against crimes of genocide, crimes against
humanity and war crimes; and in that context, to promote cooperation between the
Member States and the International Criminal Court. Member States are encouraged to
develop exchanges of judicial information and best practices in relation to the prosecution
of such crimes through the European Network of Contact Points in respect of persons
responsible for genocide, crimes against humanity and war crimes.

Conclusion

The development of knowledge and protection of human rights both through legislation
and through the use of best practices in the actions of the Nations involved in this matter,
shows how the entire population is being committed for a real growth in this sense.
Especially the protection of human dignity, individual in its entirety, is the main purpose
of both the Authorities and central government organizations that deal with it. The most
important step to a full understanding of what "human rights" is that public awareness
which is due thanks to the media and the so-called “right information” which is the use of
ethical terminology. In a global society as one in which we live today the keyword is no
more multiculturalism, but “interculturalism”, it means not a mere tolerance of another
culture, but a full integration. See other people as equals is the first step to a better
understanding of what it is human right.
Bibliography

• AlphaTest,“Diritti Umani” , gli Spilli


• BernardiniI P., Bruno S.Heritier P., Giganti Serio, “Diritto Naturale e Diritti
Umani. Riscoprire le radici e i valori comuni della civiltà occidentale: il
concetto di legge in Tommaso d’Aquino” (2007) on
www.dirittoequestionipubbliche.org (visited on March 2011)
• “Carta dei diritti fondamentali dell'Unione europea” Gazzetta ufficiale n. C
83 del 30.3.2010 on www.Eur-lex.europa.eu (visited on March 2011)
• DixonMartin, 2010 Sixth Edition, Textbook on “International Law”, Oxford
• Freeman, Michael 2002 “Human rights: an interdisciplinary approach”.
Wiley-Blackwell
• “Human Rights” and “Universal Declaration of Human Rights” on
www.wikipedia.it (visited on March 2011)
• Ignatieff, M. 2001 “Human rights as politics and idolatry”, Princeton
• Merrills, J.G., Robertson, A.H., 1997 “Human Rights In The World: An
Introduction To The Study Of The International Protection Of Human
Rights”, Manchester
• “Protection on human rights” on www.europa.eu (visited on March 2011)
• “Speeches – Opening Plenary Session” on www.humanrightsngoforum.eu
(visited on February 2011)
• “Treaties and customary law” on www.icrc.org (visited on March 2011)