INTRODUCTION

This short paper which is divided into two main parts, an introduction and a conclusion, aims to discuss the issue of corporal punishment on children with special emphasis given to a criminal case decided by a court in Ethiopia in 2012. The first part concerns itself with the events leading to the beginning of the case devoting itself to the backgrounds of the case and preceding to discuss the trial stage until its decision.

In the second part the paper will discuss the legality of corporal punishment in light of the convention to protect the right of the child, the African charter on rights and welfare of the child and domestic laws applicable in Ethiopia, it would further try to reflect on the decision given on the case discussed in part One in relation to basic principles enshrined in the convention and the criminal code of Ethiopia. In the end the Conclusion part would raise a few points by way of finalizing and putting forward general recommendations with regards to the issues discussed in the paper.

a)   Back ground of the case

On march 2012 a video posted on Youtube went viral after so many of the local community in Ethiopia shared and commented on it on social networks such as facebook and other blogs, the 6 minute footage showed  a child being beaten senselessly by an elder woman who seemingly was punishing the helpless child for crying in school. Another person who is recording the action is heard laughing in the background.

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Feelings of disgust and shock were echoed from all parts of the country as the video racked up thousands of views and stirred an online outrage. Cruel, appalling, beyond inhumane , heartbreaking, traumatising – those were just some of the reactions from those who have watched the video posted online.

People who watched the video said they were deeply shocked by the fact that the child remained impassive, throughout the whole episode, the girl doesn’t fight back, resist the attack or even cry, leading to speculations that the child may be used to such abuse even before this incident took place. Many were also disturbed by the audible laughs that can be heard from the background by the video taper as the abuse persisted.

As a result of the video the issue of child abuse in Ethiopia was for once brought to the frontline resulting in the launching of several online campaigns dedicated to the cause. Local media outlets also took notice of the developing story and started running it on radio stations and private news papers which soon led a local website owner to put forward a reward of  10,000 Ethiopian birr(about US$600) for anyone with information leading to the arrest of the abusive woman who was taught to be the mother of the child , shortly after which the woman who filmed the video Meron Asnake came forward and identified the woman as W/ro Halimat Mohammed, a janitor at the Addis Ababa city administration office.

The child in the video was also identified as Bemnet Kasaye who was now 7 years old and a kindergarten student. It was shortly known that the woman was the grandmother of the child who was in charge of raising the little girl. One of the local newspapers, the Ethiopian reporter, which was reporting the matter even before the identity of the individuals was known, got a hold of the woman at her house around Gulele Subcity in the capital and sat her down for her first interview since the video was posted.

The grandmother who gave her first interview wearing a T-shirt with the motto  “in the new millennium the safety of children is our common responsibility” plainly printed in Amharic, stated that the alleged incident happened more than 3 years ago because the child misbehaved at school and she become angry.

The response of the general public after this was mixed, The local community at first expressed their delight for the identification of the women and called for justice to be served, yet many expressed their views that they couldn’t believe the video was more than 3 years old as suggested by the women perpetrators, citing that the seven year old Bemnet kassaye now identified as the victim doesn’t look much older than what she looked like in the video.

The increasing public outrage by the video soon led to the arrest of both the grandmother and the young woman who recorded the video with her mobile phone but they were soon released on bail pending the filing of a formal charge by the public prosecutor.

b)  Trial

On the 20th of March, 2012 the federal prosecutor filed a criminal charge against W/o Halimat Mohammed in the Arada first instance court, alleging that the accused violated Article 556(2)c of the FDRE criminal code and committed  a crime of common wilful injury against a victim who is incapable of defending herself due to her small age, the charge further stated that the alleged crime was committed  when the child was 3 years old more than 3 years before the video was uploaded on the internet and that the child suffered minor injuries as a result of the actions of the accused.

The list of evidences cited by the public prosecutor in support of the charge included the child victim Bemnet Kasaye and the girl that filmed the incident on her mobile phone who was previously arrested in connection to this very event but was later changed to a witness. The video that brought this whole episode into the limelight was also included as evidence.

On the day set for the hearing of the case, the defendant admitted that she has beaten the child as specified on the charge but entered a plea of Not Guilty because she did not cause any injury to the child and was only trying to discipline the child so she will not grow up to be ill-mannered.

The court after recording the statement given by the accused ordered the prosecution to call their witnesses. Accordingly both witnesses took an oath to tell the truth and were called to the stand respectively.

The first witness to testify was Bemnet Kasaye the 7 year old child victim who started her testimony by stating that the accused was her grandmother who raised her. The child who was still living with her grandmother, told the court that the defendant punished her only when she is at fault, and hesitatingly admitted that she felt pain when her grandmother does that. The child testified that the defendant usually pinches and slaps her to discipline her; she further stated that although she felt pain at the time she wasn’t injured and didn’t even suffer bruising.

The second witness Meron Asnake, who stated that she was almost like a family to the defendant, told the court that she was the one who recorded the incident on her mobile phone more than three years ago and that the defendant was punishing the child because she ate from somebody else’s lunchbox and lied about it. The witness also stated that no injury was caused as a result of the beating and that the defendant slapped and shoved the child no more than three times.

After the testimonies the defendant told the court that she doesn’t wish to cross-examine either of the witnesses because all that was said was true and thus the court proceeded to give its ruling.

The judge’s final decision stated that the prosecution was able to prove that the accused did beat the child, a fact which wasn’t denied by the defendant from the start. But further stated that it wasn’t able to prove that the victim suffered injuries serious enough to invoke Article 556. As there was no medical evidence suggesting the extent of the injuries suffered by the victim and the victim herself has stated under oath that she didn’t suffer any injuries or bruising as a result of the beating, the defendant can only be held accountable for the crime of assault as per Art 560 of the criminal code which applies in cases where the victim suffered the lowest levels of trespasses to his/her body and health and thus only experienced transient aches and pains.

After the judgement was read in open court, the prosecution was asked if there is anything they would like to say with regard to sentencing, to which the prosecutor raised the shocking and inhuman nature of the assault and asked the court to pass a punishment capable of rehabilitating the offender and warn others from committing similar wrongs. The defendant on the other hand asked for a mitigated sentence for the reason that she committed the crime in anger and mentioning that she has since asked for forgiveness.

On July 7, 2012 the court finally sentenced W/ro Halimat Mohammed to a fine of 300 Ethiopian birr (less than $20 US dollars) for the crime of assault closing the case of Bemnet Kassa roughly three months after she entered into the hearts and minds of the Ethiopian people.

c)   Corporal punishment : legality

The committee on the rights of the Child noted in its general comment 8 that “corporal” or “physical” punishment defined as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light” violated the right of the child in the convention and was not in line with the obligation of states to protect children from all forms of violence as enshrined therein.

The African Charter on the Rights and Welfare of the Child to which Ethiopia is a signatory to, also requires states· to “take all appropriate measures to ensure that a child who is subjected to school or parental discipline shall be treated with humanity and with respect for the inherent dignity

of the child and in conformity with the present Charter” ; and even though the ACRWC‘s Article 20 provides for domestic discipline methods that are consistent with the inherent dignity of the child, It should be noted that the charter also emphasises “Nothing in this Charter shall affect any provisions that are more conducive to the realization of the rights and welfare of the child contained in the law of a State Party or in any other international Convention or agreement in force in that State.” thereby allowing the application of the convention’s provisions which are more favourable in this regard.

Whatever the case, the insensitive beatings inflicted on Bemnet Kassaye by her grandmother could not by any stretch of the provisions be taken as in line with the spirit of either the convention or the charter

With regard to affording protection against corporal punishment to children, Ethiopian domestic laws fall short of the international standards set by the committee which advices all signatory states to ban physical punishment at home, school and other settings

Corporal punishment is explicitly prohibited in schools by article 36 of the Constitution, which states that “every child has the right to be free of corporal punishment or cruel and inhuman treatment in schools and other institutions responsible for the care of children”. It is also not among the permitted disciplinary measures in the school administration regulation issued by the Ministry of Education in 1998.

Corporal punishment is however lawful in the home. Article 576 of the Criminal Code (2005) punishes maltreatment of children but states in sub-article 3: “The taking, by parents or other persons having similar responsibilities, of a disciplinary measure that does not contravene the law, for the purposes of proper upbringing, is not subject to this provision.” In addition Article  68  of the same code under the title “lawful acts justifiable acts and excuses” states that  “acts reasonably done in exercising the right of correction or discipline do not constitute a punishable crime thus in effect legalizing corporal punishment on children. The Revised Family Code (2000) also states that “the guardian may take the necessary disciplinary measures for the purpose of ensuring the upbringing of the minor.”Thus the provisions against violence and abuse in the Constitution (1995), the Criminal Code and the Revised Family Code in their present form are far from enough to protect children like Bemnet from physical abuse by guardians.

d)  Case analysis

Coming back to the case, the first thing that one observes on seeing the charge of W/ro Halimat Mohammed is that there is a mismatch between the crime cited and the act that was committed. The provision which is more special and thus applicable to the said incident was obviously Article 576 dealing with maltreatment of minors.

The public prosecutor however chose to bring a charge on account of Article 556(2)c treating the child as any regular person who needs special protection, the reason for this is most likely because the more than 3 years time gap between the commission of the crime and the instituting of the charge made it impossible to indict the accused on the relevant criminal provision because of the statue of limitation has already passed. Even though their where suspicions as to whether the video was indeed as old as the defendant claimed it to be, since there was no way of verifying the truth, the prosecution had to rely on the account of the defendant and her family with regard to when the said incident happened.

The obligations set under the convention involve not only the executive and legislative parts of the government but also the judiciary which is expected to uphold the best interests of the child in all actions. Thus the remaining portion of this paper would concern itself with the decision of the Arada court in light of its duties as prescribed in international instruments and domestic law.

Even though the laws in Ethiopia have not yet recognized the absolute right of the child to be free from corporal punishments in the home setting, once the court has passed a guilty verdict on the defendant, there certainly were a couple of extra measures the court could have taken, using the laws already in force, in order to ensure the best interests of the child.

First of all the final sentence given in the case, which is a fine of 300 birr, is too little a penalty for such a grave violation and thus not in line with the purpose of criminal law. In any case the decision could not be considered as holding the best interests of the child into account; a prison sentence could have sent the message that inflicting physical pain on children is a crime entailing serious consequences. As the aim of criminal law is not only to rehabilitate criminals but also to deter other individuals from committing similar crimes by giving notice of the illegality of an action, a prison sentence in a case such as this, which has captured the public eye may have had a better chance in sending the clear message that such punishments are crimes.

The court could also have ordered the convicted grandmother to enter a guarantee of good conduct as per article 135 of the criminal code. Considering the horrific images of the video and the level of violence, a guarantee of recognizance, which according to Ethiopian law could extend to a time as long as 5 years, may have had positive effects in protecting the child from further abuse in the future.

Its also the opinion of the writer that the court shouldn’t have limited its final decisions on  a simple fine which is even less than half of what the accused had secured for bail earlier. Rather the court should have also imposed secondary measures so as to ensure the best interests of the child. The FDRE criminal code allows the court to temporarily or permanently deprive convicted persons of their family rights where they have shown themselves to be unworthy of exercising such rights The video clearly shows that the woman can not in any way be considered fit to take care of any child, thus such a deprivation measure could have had a better chance of guaranteeing the safety of the child more than any imprisonment or other kind of punishment that could have been imposed in a court of law.

Conclusion

Researches done on the issue of corporal punishment in Ethiopia suggest that a very high percentage of children experience what can be considered as cruel, inhuman and degrading treatment by their parents or at school. The Committee on the Rights of the Child itself has expressed concern at the widespread use of corporal punishment in the home, schools and other settings, and recommended explicit prohibition following the state party’s third report in 2006.

It is the opinion of the writer that the case of Bemnet is not an isolated incident in a country where child disciplining is synonymous with physical punishment, yet it could have been a golden opportunity for the state machinery to change the attitudes of a society whose culture accepts corporal punishment, mainly because of the media coverage it received. Reforms in the law and public education about alternative ways of disciplining are urgently needed so there wouldn’t be another Bemnet and another missed opportunity.

Since time immemorial, states and peoples have entered into formal relationships with each other. Over the ages, traditions have developed on how such relationships are conducted. These are the traditions that make up modern ‘international law’. Like domestic law, international law covers a wide range of subjects such as security, diplomatic relations, trade, culture and human rights, but it differs from domestic legal systems in a number of important ways. In international law there is no single legislature, nor is there a single enforcing institution. Consequently, international law can only be established with the consent of states and is primarily dependent on self-enforcement by the same states. In cases of non-compliance there is no supra-national institution; enforcement can only take place by means of individual or collective actions of other states.

This consent, from which the rules of international law are derived, may be expressed in various ways. The obvious mode is an explicit treaty, imposing obligations on the states parties. Such ‘treaty law’ constitutes a dominant part of modern international law. Besides treaties, other documents and agreements serve as guidelines for the behaviour of states, although they may not be legally binding. Consent may also be inferred from established and consistent practice of states in conducting their relationships with each other. The sources of international law are many and states commit to them to different degrees. The internationally accepted classification of sources of international law is formulated in Article 38 of the Statute of the International Court of Justice. Forming one of the regimes of international law, human rights law has the same source with the former.

 

a) International conventions, whether general or particular;

b) International custom, as evidence of general practice accepted as law;

c) The general principles of law recognised by civilised nations;

d) Subsidiary means for the determination of rules of law such as judicial

decisions and teachings of the most highly qualified publicists.

These sources will be analysed below.

 

A. International Conventions

 

International treaties are contracts signed between states. They are legally binding and impose mutual obligations on the states that are party to any particular treaty (states parties). The main particularity of human rights treaties is that they impose obligations on states about the manner in which they treat all individuals within their jurisdiction.

 

Even though the sources of international law are not hierarchical, treaties have some degree of primacy. Nowadays, more than forty major international conventions for the protection of human rights have been adopted. International human rights treaties bear various titles, including ‘covenant’, ‘convention’ and ‘protocol’; but what they have in commone are the explicit indication of states parties to be bound by their terms.

 

Human rights treaties have been adopted at the universal level (within the framework of the United Nations and its specialised agencies, for instance, the ILO and UNESCO) as well as under the auspices of regional organisations, such as the Council of Europe (CoE), the Organisation of American States (OAS) and the African Union (AU) (formerly the Organisation of African Unity (OAU)). These organisations have greatly contributed to the codification of a comprehensive and consistent body of human rights law. 

 

UNIVERSAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS

 

Human rights had already found expression in the Covenant of the League of Nations, which led, inter alia, to the creation of the International Labour Organisation. At the San Francisco Conference in 1945, held to draft the Charter of the United Nations, a proposal to adopt a ‘Declaration on the Essential Rights of Man’ was put forward but was not examined because it required more detailed consideration than was possible at the time. Nonetheless, the UN Charter clearly  speaks of ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’ (Article 1, para. 3). The idea of promulgating an ‘international bill of rights’ was developed immediately afterwards and led to the adoption in 1948 of the Universal Declaration of Human Rights (UDHR).

 

The UDHR, adopted by a resolution of the United Nations General Assembly (UNGA), although not a treaty, is the earliest comprehensive human rights instrument adopted by the international community. On the same may that it adopted the Universal Declaration, the UNGA requested the UN Commission on Human Rights to prepare, as a matter of priority, a legally binding human rights convention. Wide differences in economic and social philosophies hampered efforts to achieve agreement on a single instrument, but in 1954 two draft conventions were completed and submitted to the UNGA for consideration. Twelve years later, in 1966, the International Covenant on Economic, Social 21 and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were adopted, as well as the First Optional Protocol to the ICCPR, which established an individual complaints procedure. Both Covenants and the Optional Protocol entered into force in 1976. A Second Optional Protocol to the ICCPR, on the abolition of the death penalty, was adopted in 1989 and entered into force in 1991.

 

The ‘International Bill of Human Rights’ consists of the Universal Declaration of Human Rights, the ICESCR, and the ICCPR and its two Optional Protocols. The International Bill of Rights is the basis for numerous conventions and national constitutions.

 

Besides the International Bill of Human Rights, a number of other instruments have been adopted under the auspices of the UN and other international agencies. They may be divided into three groups:

a) Conventions elaborating on certain rights, inter alia:

• The Convention on the Prevention and Punishment of the Crime of Genocide (1948)
• ILO 98 concerning the Right to Organise and to Bargain Collectively (1949)

b) Conventions dealing with certain categories of persons who may need special protection, inter alia:

• The Convention relating to the Status of Refugees (1951), and the 1967 Protocol thereto
• The Convention on the Rights of the Child (1989)
• Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (2000)
• The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (2000)

c) Conventions seeking to eliminate discrimination

• ILO 111 concerning Discrimination in respect of Employment and Occupation (1958)
• UNESCO Convention against Discrimination in Education (1960)
• The International Convention on the Elimination of All Forms of Racial Discrimination (1965)
• International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)
• The Convention on the Elimination of All Forms of Discrimination Against Women (1979) and its Optional Protocol (2000) 

 

The UN Charter encourages the adoption of regional instruments for the establishment of human rights obligations, many of which have been of crucial importance for the development of international human rights law. The Council of Europe adopted in 1950 the European Convention for the Protection of Human Rights and Fundamental Freedoms, supplemented by the European Social Charter in 1961, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in 1987, and the Framework Convention on National Minorities in 1994.

 

The American Convention on Human Rights was adopted in 1969, under the auspices of the Organisation of American States. This Convention has been complemented by two protocols, the 1988 Protocol of San Salvador on Economic, Social, and Cultural Rights and the 1990 Protocol to Abolish the Death Penalty. Other Inter-American Conventions include the Convention to Prevent and Punish Torture (1985), the Convention on the Forced Disappearances of Persons (1994), and the Convention on the Prevention, Punishment and Eradication of Violence against Women   (1995).

 

In 1981, the Organisation of African Unity, now the African Union, adopted the African Charter on Human and Peoples’ Rights. Two protocols to the Charter have been adopted: the Additional Protocol on the Establishment of the African Court on Human and Peoples’ Rights (1998), and the Protocol on the Rights of Women in Africa    (2003). Other African instruments include the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), and the African Charter on the Rights and Welfare of the Child (1990).

 

 B. International custom

 

Customary international law plays a crucial role in international human rights law. The Statute of the International Court of Justice refers to ‘general practice accepted as law’. In order to become international customary law, the ‘general practice’ needs to represent a broad consensus in terms of content and applicability, deriving from a sense that the practice is obligatory (opinio juris et necessitatis). Customary law is binding on all states (except those that may have objected to it during its formation), whether or not they have ratified any relevant treaty.

 

One of the important features of customary international law is that customary law may, under certain circumstances, lead to universal jurisdiction or application, so that any national court may hear extra-territorial claims brought under international law. In addition, there also exists a class of customary international law, jus cogens, or peremptory norms of general international law, which are norms accepted and recognised by the international community of states as a whole as norms from which no derogation is permitted. Under the Vienna Convention on the Law of Treaties (VCLT) any treaty which conflicts with a peremptory norm is void.

 

Many scholars argue that some standards laid down in the Universal Declaration of Human Rights (which in formal terms is only a resolution of the UNGA and as such not legally binding) have become part of customary international law as a result of subsequent practice; therefore they would be binding upon all states. Within the realm of human rights law the distinction between concepts of customary law, treaty law, and general principles of law are often unclear.

 

The Human Rights Committee in its General Comment 24 (1994) has summed up the rights which can be assumed to belong to this part of international law which is binding on all states, irrespective of whether they have ratified relevant conventions, and to which no reservations are allowed:

 

[A] State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women and children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And [...] the right to a fair trial [...].

 

Although this list is subject to debate and could possibly be extended with other rights not in the field of civil and political rights (for instance, genocide and large parts of the Four Geneva Conventions on International Humanitarian Law), the Committee underlines that there is a set of human rights which de jure are beyond the (politically oriented) debate on the universality of human rights.

 

 C. General principles of law

 

In the application of both national and international law, general or guiding principles are used. In international law, they have been defined as ‘logical propositions resulting from judicial reasoning on the basis of existing pieces of international law’. At the international level, general principles of law occupy an important place in case-law regarding human rights. A clear example is the principle of proportionality, which is important for human rights supervisory mechanisms in assessing whether interference with a human right may be justified. Why are general principles used? No legislation is able to provide answers to every question and to every possible situation that arises. Therefore, rules of law or principles that enable decision-makers and members of the executive and judicial branches to decide on the issues before them are needed.

 

General principles of law play two important roles: on the one hand, they provide guidelines for judges, in particular, in deciding in individual cases; on the other hand, they limit the discretionary power of judges and of members of the executive in their decisions in individual cases.

 

 D. Subsidiary means for the determination of rules of law

 

According to Article 38 of the Statute of the International Court of Justice, judicial decisions and the teachings of the most qualified publicists are ‘subsidiary means for the determination of rules of law’. Therefore, they are not, strictly speaking, formal sources, but they are regarded as evidence of the state of the law. As for the judicial decisions, Article 38 of the Statute of the International Court is not confined to international decisions (such as the judgements of the International Court of Justice, the Inter-American Court, the European Court and the future African Court on Human Rights); decisions of national tribunals relating to human rights are also subsidiary sources of law. The writings of scholars contribute to the development and analysis of human rights law. Compared to the formal standard setting of international organs the impact is indirect. Nevertheless, influential contributions have been made by scholars and experts working in human rights fora, for instance, in the UN Sub-Commission on the Promotion and Protection of Human Rights, as well as by highly regarded NGOs, such as Amnesty International and the International Commission of Jurists.

The “justification” of a right refers to how we argue for its existence, what philosophical assumptions and theories we use to defend and define the right.

Politicians, states and people do not necessarily use any explicit philosophical theory to support their views, or to explain why they believe in certain laws or basic rights, but they inevitably have some type of theory.

Also, the nature of public policy is compromise and mish-mash.  Usually, no one philosophical theory wins out.  Instead, policies reflect compromises between different theories. 

 

Classification of Human Rights

 

The term ‘human rights’, is used to denote a broad spectrum of rights ranging from the right to life to the right to a cultural identity. They involve all elementary preconditions for a dignified human existence. These rights can be ordered and specified in different ways. At the international level, a distinction has sometimes been made between civil and political rights, on the one hand, and economic, social and cultural rights on the other. This section clarifies this distinction. Since other classifications are also used, these will likewise be reviewed, without claiming, however, that these categorisations reflect an international consensus. It is also clear that the various categorisations overlap to a considerable extent.

 

Although human rights have been classified in a number of different manners it is important to note that international human rights law stresses that all human rights are universal, indivisible and interrelated (e.g. Vienna Declaration and Programme of Action (1993), para. 5). The indivisibility of human rights implies that no right is more important than any other.

 

One classification used is the division between ‘classic’ and ‘social’ rights. ‘ Classic’ rights are often seen to require the non-intervention of the state (negative obligation), and ‘social rights’ as requiring active intervention on the part of the state, Classfying human rights in terms of negative and positive ovligations may have its own defects for a certain right may involve both negative and positive obligations for its effective realization. In other words, classic rights entail an obligation for the state to refrain from certain actions, while social rights oblige it to provide certain guarantees. Lawyers often describe classic rights in terms of a duty to achieve a given result (‘obligation of result’) and social rights in terms of a duty to provide the means (‘obligations of conduct’). The evolution of international law, however, has led to this distinction between ‘classic’ and ‘social’ rights has become increasingly awkward. Classic rights, such as civil and political rights, often require considerable investment by the state. The state does not merely have the obligation to respect these rights, but must also guarantee that people can effectively enjoy them. Hence, the right to a fair trial, for instance, requires well-trained judges, prosecutors, lawyers and police officers, as well as administrative support. Another example is the organisation of elections, which also entails high costs.

 

On the other hand, most ‘social’ rights contain elements that require the state to abstain from interfering with the individual’s exercise of the right. As several commentators note, the right to food includes the right for everyone to procure their own food supply without interference; the right to housing implies the right not to be a victim of forced eviction; the right to work encompasses the individual’s right to choose his/her own work and also requires the state not to hinder a person from working and to abstain from measures that would increase unemployment; the right to education implies the freedom to establish and direct educational establishments; and the right to the highest attainable standard of health implies the obligation not to interfere with the provision of health care.

 

In sum, the differentiation of ‘classic’ rights from ‘social’ rights does not reflect the nature of the obligations under each set of rights.

 

 Civil rights

 

The term ‘civil rights’ is often used with reference to the rights set out in the first eighteen articles of the UDHR, almost all of which are also set out as binding treaty norms in the ICCPR. From this group, a further set of ‘physical integrity rights’ has been identified, which concern the right to life, liberty and security of the person, and which offer protection from physical violence against the person, torture and inhuman treatment, arbitrary arrest, detention, exile, slavery and servitude, interference with one’s privacy and right of ownership, restriction of one’s freedom of movement, and the freedom of thought, conscience and religion.

 

The difference between ‘basic rights’ (see below) and ‘physical integrity rights’ lies in the fact that the former include economic and social rights, but do not include rights such as protection of privacy and ownership.

 

Although not strictly an integrity right, the right to equal treatment and protection in law certainly qualifies as a civil right. Moreover, this right plays an essential role in the realisation of economic, social and cultural rights.

 

Another group of civil rights is referred to under the collective term ‘due process rights’. These pertain, among other things, to the right to a public hearing by an independent and impartial tribunal, the ‘presumption of innocence’, the ne bis in idem principle and legal assistance (see, e.g., Articles 9, 10, 14 and 15 of the ICCPR).

 

 

Political rights

 

In general, political rights are those set out in Articles 19 to 21 of the UDHR and also codified in the ICCPR. They include freedom of expression, freedom of association and assembly, the right to take part in the government of one’s country, and the right to vote and stand for election at genuine periodic elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 of the ICCPR).

 

 Economic and social rights

 

The economic and social rights are listed in Articles 22 to 26 of the UDHR, and further developed and set out as binding treaty norms in the ICESCR. These rights provide the conditions necessary for prosperity and wellbeing. Economic rights refer, for example, to the right to property, the right to work, which one  freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living, including rights to health, shelter, food, social care, and the right to education ( Articles 6 to 14 of the ICESCR).

 

Cultural rights

 

The UDHR lists cultural rights in Articles 27 and 28. These include the right to participate freely in the cultural life of the community, to share in scientific advancement, and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (see also Article 15 of the ICESCR and Article 27 of the ICCPR).

 

• The alleged dichotomy between civil and political rights, and economic, social and cultural rights

Traditionally, it has been argued that there are fundamental differences between economic, social and cultural rights, and civil and political rights. These two categories of rights have been seen as two different concepts and their differences have been  characterised as a dichotomy. According to this view, civil and political rights are considered to be expressed in a very precise language, imposing merely negative obligations which do not require resources for their implementation, and which, therefore, can be applied immediately. On the other hand, economic, social and cultural rights are considered to be expressed in vague terms, imposing only positive obligations conditional on the existence of resources and therefore involving a progressive realisation.

As a consequence of these alleged differences, it has been argued that civil and political rights are justiciable whereas economic, social and cultural rights are not. In other words, this view holds that only violations of civil and political rights can be adjudicated by judicial or similar bodies, while, economic, social and cultural rights are ‘by their nature’ non-justiciable.

Over the years, economic, social and cultural rights have been re-examined and their juridical validity and applicability have been increasingly stressed. During the last decade, we have witnessed the development of a large and growing body of case-law of domestic courts concerning economic, social and cultural rights. This case-law, at the national and international level, suggests a potential role for creative and sensitive decisions of judicial and quasi-judicial bodies with respect to these rights.

 

 

FUNDAMENTAL AND BASIC RIGHTS

 

Fundamental rights are taken to mean such rights as the right to life and the inviolability of the person. Within the UN, extensive standards have been developed which, particularly since the 1960s, have been laid down in numerous conventions, declarations and resolutions, and which bring already recognised rights and matters of policy which affect human development into the sphere of human rights. Due to the concern that a broad definition of human rights may lead to the notion of ‘violation of human rights’ losing some of its significance has generated a need to distinguish a separate group within the broad category of human rights. Increasingly, the terms ‘elementary’, ‘essential’, ‘core’ and ‘fundamental’ human rights are being used.

 

Another approach is to distinguish a number of ‘basic rights’, which should be given absolute priority in national and international policy. These include all the rights which concern people’s primary material and non-material needs. If these are not provided, no human being can lead a dignified existence. Basic rights include the right to life, the right to a minimum level of security, the inviolability of the person, freedom from slavery and servitude, and freedom from torture, unlawful deprivation of liberty, discrimination and other acts which impinge on human dignity. They also include freedom of thought, conscience and religion, as well as the right to suitable nutrition, clothing, shelter and medical care, and other essentials crucial to physical and mental health.

 

Mention should also be made of so-called ‘participation rights’. For instance, the right to participate in public life through elections (which is also a political right; see above) or to take part in cultural life. These participation rights are generally considered to belong to the category of fundamental rights, being essential preconditions for the protection of all kinds of basic human rights.

 

 

Freedoms

 

Preconditions for a dignified human existence have often been described in terms of freedoms (e.g., freedom of movement, freedom from torture, and freedom from arbitrary arrest). United States President, Franklin D. Roosevelt, summarised these preconditions in his famous ‘Four Freedoms Speech’ to the United States Congress on 26 January 1941:

 

• Freedom of speech and expression;
• Freedom of belief (the right of every person to worship God in his own way);
• Freedom from want (economic understandings which will secure to every nation a healthy peace-time life for its inhabitants); and
• Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough fashion that no nation would be able to commit an act of physical aggression against any neighbour). Roosevelt implied that a dignified human existence requires not only protection from oppression and arbitrariness, but also access to the primary necessities of life. 

 

Civil liberties

 

The concept of ‘civil liberties’ is commonly known, particularly in the United States, where the American Civil Liberties Union (a non-governmental organisation) has been active since the 1920s. Civil liberties refer primarily to those human rights which are laid down in the United States Constitution: freedom of religion, freedom of the press, freedom of expression, freedom of association and assembly, protection against interference with one’s privacy, protection against torture, the right to a fair trial, All the rights of workers. This classification does not correspond to the distinction between civil and political rights.

 

 

 

 Individual and collective rights

 

Although the fundamental purpose of human rights is the protection and development of the individual (individual rights), some of these rights are exercised by people in groups (collective rights). Freedom of association and assembly, freedom of religion and, more especially, the freedom to form or join a trade union, fall into this category. The collective element is even more evident when human rights are linked specifically to a membership of a certain group, such as the right of members of ethnic and cultural minorities to preserve their own language and culture. One must make a distinction between two types of rights, which are usually called collective rights: individual rights enjoyed in association with others, and the rights of a collective.

 

The most notable example of a collective human right is the right to selfdetermination, which is regarded as being vested in peoples rather than in individuals (see Articles 1 of the ICCPR and ICESCR). The recognition of the right to self-determination as a human right is grounded in the fact that it is seen as a necessary precondition for the development of the individual. It is generally accepted that collective rights may not infringe an universally accepted individual rights, such as the right to life and freedom from torture.

 

 First, second and third generation rights

 

The division of human rights into three generations was first proposed by Karel Vasak at the International Institute of Human Rights in Strasbourg. His division follows the principles of Liberté, Égalité and Fraternité of the French Revolution.

 

First generation rights are related to liberty and refer fundamentally to civil and political rights. The second generation rights are related to equality, including economic, social and cultural rights. Third generation or ‘solidarity rights’ cover group and collective rights, which include, inter alia, the right to development, the right to peace and the right to a clean environment. The only third generation right which so far has been given an official human rights status - apart from the right to self-determination, which is of longer standing - is the right to development (see the Declaration on the Right to Development, adopted by the UNGA on 4 December 1986, and the 1993 Vienna Declaration and Programme of Action (Paragraph I, 10)). The Vienna Declaration confirms the right to development as a collective as well as an individual right, individuals being regarded as the primary subjects of development. Recently, the right to development has been given considerable attention in the activities of the High Commissioner for Human Rights. The EU and its member states also explicitly accept the right to development as part of the human rights concept.

 

While the classification of rights into ‘generations’ has the virtue of incorporating communal and collective rights, thereby overcoming the individualist moral theory in which human rights are grounded, it has been criticised for not being historically accurate and for establishing a sharp distinction between all human rights. It would be more interesting if how hte concepts of generations of tights is at adds with the Tehran Proclummation or the UDPA was described or explained.

Pre World War II Developments

 

The origins of human rights may be found both in Greek philosophy and the various world religions. In the Age of Enlightenment (18th century) the concept of human rights emerged as an explicit category. Man/woman came to be seen as an autonomous individual, endowed by nature with certain inalienable fundamental rights that could be invoked against a government and should be safeguarded by it. Human rights were henceforth seen as elementary preconditions for an existence worthy of human dignity.

 

Before this period, several charters codifying rights and freedoms had been drawn up constituting important steps towards the idea of human rights. The first -were the Magna Charta Libertatum of 1215, the Golden Bull of Hungary (1222), the Danish Erik Klippings Håndfaestning of 1282, the Joyeuse Entrée of 1356 in Brabant (Brussels), the Union of Utrecht of 1579 (The Netherlands) and the English Bill of Rights of 1689. These documents specified rights, which could be claimed in the light of particular circumstances (e.g. threats to the freedom of religion), but they did not yet contain an all-embracing philosophical concept of individual liberty. Freedoms were often seen as rights conferred upon individuals or groups by virtue of their rank or status.

 

In the centuries after the Middle Ages, the concept of liberty became gradually separated from status and came to be seen not as a privilege but as a right of all human beings. Spanish theologists and jurists played a prominent role in this context. Among the former, the work of Francisco de Vitoria (1486-1546) and Bartolomé de las Casas (1474-1566) should be highlighted. These two men laid the (doctrinal) foundation for the recognition of freedom and dignity of all humans by defending the personal rights of the indigenous peoples inhabiting the territories colonised by the Spanish Crown.

 

The Enlightenment was decisive in the development of human rights concepts. The ideas of Hugo Grotius (1583-1645), one of the fathers of modern international law, of Samuel von Pufendorf (1632-1694), and of John Locke (1632-1704) attracted much interest in Europe in the 18th century. Locke, for instance, developed a comprehensive concept of natural rights; his list of rights consisting of life, liberty and property. Jean-Jacques Rousseau (1712-1778) elaborated the concept under which the sovereign derived his powers and the citizens their rights from a social contract. The term human rights appeared for the first time in the French Déclaration des Droits de l’Homme et du Citoyen (1789).

 

The people of the British colonies in North America took the human rights theories to heart. The American Declaration of Independence of 4 July 1776 was based on the assumption that all human beings are equal. It also referred to certain inalienable rights, such as the right to life, liberty and the pursuit of happiness. These ideas were also reflected in the Bill of Rights which was promulgated by the State of Virginia in the same year. The provisions of the Declaration of Independence were adopted by other American states, but they also found their way into the Bill of Rights of the American Constitution. The French Déclaration des Droits de l’Homme et du Citoyen of 1789, as well as the French Declaration of 1793, reflected the emerging international theory of universal rights. Both the American and French Declarations were intended as systematic enumerations of these rights.

 

The classic rights of the 18th and 19th centuries related to the freedom of the individual. Even at that time, however, some people believed that citizens had a right to demand that the government endeavour to improve their living conditions. Taking into account the principle of equality as contained in the French Declaration of 1789, several constitutions drafted in Europe around 1800 not only contained classic rights, but also included articles which assigned responsibilities to the government in the fields of employment, welfare, public health, and education. Social rights of this kind were also expressly included in the Mexican Constitution of 1917, the Constitution of the Soviet Union of 1918, and the German Constitution of 1919.

 

In the 19th century, there were frequent inter-state disputes in connection with the protection of the rights of minorities in Europe. These conflicts led to several humanitarian interventions and called for international protection arrangements. One of the first such arrangements was the Treaty of Berlin of 1878.

 

The need for international standards on human rights was first felt at the end of the 19th century, when the industrial countries began to introduce labour legislation. This legislation, which raised the cost of labour, had the effect of worsening their competitive position in relation to countries that had no labour laws. Economic necessity forced the states to consult each other. It was as a result of this that the first conventions were formulated in which states committed themselves vis-à-vis other states in regard to their own citizens. The Bernlin Convention of 1906, which prohibited night-shift work by women can be seen as the first multilateral convention meant to safeguard social rights. Many more labour conventions were later drawn up by the International Labour Organisation (ILO),which as founded in 1919. Remarkable as it may seem, therefore, while the classic human rights had been acknowledged long before social rights, the latter were first embodied in international regulations.

 

 

Post World War II Developments

 

The atrocities of World War II put an end to the traditional view that states have full liberty to decide the treatment of their own citizens. The signing of the Charter of the United Nations (UN) on 26 June 1945 brought human rights within the sphere of international law. In particular, all UN members agreed to take measures are there really such large number of articles in UN Charter which deals will human rights protection? to protect human rights. The Charter contains a number of articles specifically referring to human rights. Less than two years later, the UN Commission on Human Rights (UNCHR),which was established early in 1946, submitted a draft Universal Declaration of Human Rights (UDHR). The UN General Assembly (UNGA) adopted the Declaration in Paris on 10 December 1948. This day was later designated Human Rights Day.

 

During the 1950s and 1960s, more and more countries joined the UN. Upon joining the UN, they formally accepted the obligations contained in the UN Charter, and in doing so subscribed to the principles and ideals laid down in the UDHR. This commitment was made explicit in the Proclamation of Teheran (1968), which was adopted during the first World Conference on Human Rights, and repeated in the Vienna Declaration and Programme of Action, which was adopted during the Second World Conference on Human Rights (1993).

 

Since the 1950s, the UDHR has been backed up by a large number of international conventions. The most significant of these conventions are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

These two Covenants, together with the UDHR, form the International Bill of Human Rights. At the same time, many supervisory mechanisms have been created, including those responsible for monitoring compliance with the two Covenants.

 

Human rights have also been receiving more and more attention at the regional level. For example, in the European, the Inter-American and the African context, standards and supervisory mechanisms have been developed have already had a significant impact on human rights compliance in the respective continents, and promise to contribute to compliance in the future.