View With Charts And Images
Q1.Compare and contrast the domestic implementation mechanism of Human Rights between Bangladesh and USA.
Introduction
The human rights system comprises several bodies which periodically make recommendations to States to assist them in implementing their international human rights obligations. civil society is vital to ensuring that these recommendations are implemented and lead to an improvement of the human rights situation on the ground.
The international treaty-based control mechanisms in the human rights
field consist of reporting procedures and the adjudication of individual or
inter-State complaints.. International procedures for the protection of human rights and freedoms are subsidiary to existing procedures in the national legal system of every State. International procedures can never be considered to be a substitute for efficient domestic legal procedures for the protection of human rights.
Open Society Justice Initiative, From Judgement to Justice: Implementing International Human Rights Decisions (2010) available at: http://www.soros.org/initiatives/justice/focus/international_justice/articles_publications/publications/from-judment-to-justice20101122, p. 127.
Human Rights and Business Dilemmas Forum, Emerging economic scenarios. Retrieved from http://human-rights.unglobalcompact.org/dilemmas/forced-labour/ retrieved on 16-10-2011,
The implementation mechanisms
The implementation of the Covenant is monitored by the Human Rights
Committee, which consists of eighteen members serving in their individual capacity (art. 28).
The monitoring takes three forms, namely, the submission of periodic reports,
inter-State communications, and individual communications:
(1) the reporting procedure: according to article 40 of the Covenant, the States parties “undertake to submit reports on the measures they have adopted which give effect to the rights” recognized therein and “on the progress made in the enjoyment of those rights”, 3.first within one year of the entry into force of the Covenant for the States parties concerned, and thereafter, whenever the Committee so requests, that is to say, every five years. The reports “shall indicate the factors and difficulties, if any, affecting the implementation of the … Covenant”, and the Committee has developed careful guidelines aimed both at facilitating the task of the States parties and rendering the reports more efficient2.. In July 1999 the Committee adopted consolidated guidelines for the submission of the reports of the States parties. 5.
(2) inter-State communications: as noted in section 2.1, States parties to the
Covenant may at any time declare under article 41 that they recognize “the
competence of the Committee to receive and consider communications to the
effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant”; in other words, the possibility of bringing inter-State communications is only valid as between States parties having made this kind of declaration. During the initial stage of the proceedings, the communication is only brought to the attention of one State party by another, and it is only if the matter is not settled to the satisfaction of both States parties within a period of six months that either State party has the right to bring the matter before the Committee itself (art. 41(1)(a) and (b)). The Committee has to follow a procedure prescribed in article 41(1)(c)-(h), but, since it was never used during the first 25 years of the Committee’s existence, it will not be dealt with further here. 6.
(3) individual communications: under article 1 of the Optional Protocol, a State
Party there to “recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant”. However, according to article 2 of the Optional Protocol, individuals claiming violations of their rights must first exhaust all remedies available to them at the domestic level; further, the Committee shall consider inadmissible any
communication which is anonymous, or which it considers to amount to an abuse
of the right of submission of communications or to be incompatible with the
provisions of the Covenant (art. 3). 7. If the communication raises a serious issue
under the Covenant, the Committee submits it to the State party concerned, which
has the possibility to submit its written explanations within a period of six months.
The procedure before the Committee is therefore exclusively written and the
discussions in the Committee on the communications take place behind closed
doors (arts. 4-5). At the end of its consideration of a communication, the
Committee adopts its “Views” thereon, which are sent both to the State party and to the individual concerned (art. 5(4)). 8
3.High Commissioner for Human Rights – see: <http://www2.ohchr.org/english/bodies/treaty/glossary.htm>.
4.Inter-Parliamentary Union, Parliament and Democracy in the Twenty-First Century (2006), available at: http://www.ipu.org/PDF/publications/democracy_en.pdf.
5.Joint Committee on Human Rights, The Committee’s Future Working Practices: Twenty-Third Report of Session 2005-06 (2006), from http://www.parliament.the-stationery-office.com/pa/jt200506/jtselect/jtrights/239/239.pdf, accessed 1 July 2009, [65].
6.http://nhri.ohchr.org/EN/Documents/Questionnaire%20-%20Complete%20Report%20FINAL-edited.pdf.
7.Conclusions of the International Roundtable on the Role of National Human Rights Institutions and Treaty Bodies, HRI/MC/2007/3, 7 February 2007, available at http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/1c1014317d376624c125728800586f24/$FILE/G0740362.pdf.
8 Strengthening the United Nations Human Rights Treaty Body System, A Report by the United Nations High Commissioner for Human Rights, Navanethem Pillay, June 2012
USA
The USA sent a large delegation to its UPR in Geneva in November 2010, including senior officials from eleven U.S. departments and agencies, a representative of local authorities (the head of the Los Angeles County Human Relations Commission), and two advisers from civil society groups.
As will be shown in further detail in Chapter 14 of this Manual, the
interdependence of civil, cultural, economic, political and social rights has been
emphasized by the United Nations ever since its inception. However, it is important at the outset to put to rest a frequently invoked distinction between civil and political rights, on the one hand, and economic, social and cultural rights on the other. 9.
According to this distinction, all that States basically have to do in order to respect civil and political rights is to refrain from killing, enforced disappearance, torture and other such practices; whereas in order to implement the other group of rights they have to undertake forceful positive actions.
However, as has already been pointed out in Chapter 1, and as will be further demonstrated in other chapters of this Manual, there are indeed many situations which impose on States positive obligations to comply with their international legal duties in the field of civil and political rights as well. 10.
When one examines, from a purely practical point of view, the reasons why in many countries worldwide people are still being killed and subjected to other forms of unlawful treatment, it becomes abundantly clear that it is precisely because States have not taken the resolutely positive actions required in order to put an end to these practices that human rights violations persist. Rarely, if ever, do such practices go away by themselves, and for States to adopt a position of inaction is thus not an adequate and sufficient means of ensuring that they comply with their international legal obligations. 11 States also have to undertake significant efforts both to organize free and fair elections at regular intervals and to set up and maintain an efficient, independent and impartial judiciary.
This imperative need for positive action to secure compliance with international human rights obligations is an important factor to be borne in mind at all times by judges, prosecutors and lawyers in the exercise of their professional
responsibilities.
9. Strengthening the United Nations Human Rights Treaty Body System, A Report by the United Nations High Commissioner for Human Rights, Navanethem Pillay, June 2012
10. http://www2.ohchr.org/english/bodies/HRTD/docs/HCReportTBStrengthening.pdf.
11. The Dublin Statement on the Process of Strengthening of the United Nations Human Rights Treaty Body System, available at http://www2.ohchr.org/english/bodies/HRTD/docs/DublinStatement.pdf [17].
Bangladesh
In its 2004 and 2011 Concluding Observations on Bangladesh, the CEDAW Committee called on the Government to expand the application of the Constitutional guarantee of equal rights for men and women, and to conduct a review of its laws with a view to harmonizing domestic legislation with obligations under CEDAW within a clear time frame. Women‘s groups in Bangladesh had formed a CEDAW Forum as early as 1992. These groups have won significant battles with the Government over the years, including prompting it to withdraw Bangladesh‘s reservations to articles 13(a) and 16(1)(f) of the Convention in 1997.15 They disseminated the CEDAW Committee‘s 2004 and 2011 Concluding Observations to Government, civil society, professional associations, and the media. 12
Extrajudicial executions(2010)
RAB allegedly killed at least 54 people in 2011, bringing the total number of people killed since 2004 – when RAB was formed – to more than 700. RAB injured or tortured scores more. In many cases, family members told Amnesty International that victims died after being arrested by RAB and not in an encounter as RAB claimed. The authorities failed to investigate these incidents credibly.
Violence against women
Under a new National Women Development Policy, published in March, the Ministry of Women and Children’s Affairs announced a plan to, among other things, “eradicate violence against, and oppression of, women and children by providing medical treatment, legal assistance and counselling to abused women and children”. Human rights organizations said the authorities had failed to implement the plan and many women and children subjected to sexual and other violence were receiving no support from state institutions.
International justice
In May, the International Crimes Tribunal, a Bangladeshi court set up in 2010 to try people accused of large-scale human rights abuses during the 1971 war of independence, began to address procedural shortcomings that were rendering its trials unfair. Its amended Rules of Procedure provided for bail, presumption of innocence before guilt is proven, and measures to ensure the protection of witnesses and victims. However, a constitutional ban on the right to challenge the jurisdiction of the Tribunal remained in force. 14
Indigenous Peoples’ rights
The government failed to prevent confiscation of Indigenous Peoples’ land by Bengali settlers in the Chittagong Hill Tracts. This led to violent clashes between the two communities, ending in loss of property and, at times, loss of lives. Bengali settlers usually entered Indigenous Peoples’ land and appropriated it for agricultural use. Indigenous People told Amnesty International delegates visiting the area in March that Bengali settlers, emboldened by the army’s tolerance of their actions, had frequently set fire to Indigenous homes, usually in clear sight of soldiers or other law enforcement personnel, without being stopped. 13
Torture and other ill-treatment
At least three people died in police custody, allegedly after being tortured. The government announced that criminal charges would be brought against any police personnel found responsible for these deaths. However, no one was charged or prosecuted by the end of the year. The government did not commit to bringing to justice police, RAB or other security personnel who allegedly tortured thousands of individuals in their custody throughout the year.
12Barnes A. J. Dworkin T. M., Richard E. L.(2000) Law for Business Craig S Beytien. ISBN- 0-07-365917-7
13Malik T. (2000) Human Rights Law: A Manual on Human Rights Training Programme for Lawyers. Part twelve-Right to Work. P.509
14Malik T. (2000) Human Rights Law: A Manual on Human Rights Training Programme for Lawyers. Part twelve-Right to Work., P. 513.
15CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH, Part Three Fundamental rights P.10
Reference:
1. Open Society Justice Initiative, From Judgement to Justice: Implementing International Human Rights Decisions (2010) available at: http://www.soros.org/initiatives/justice/focus/international_justice/articles_publications/publications/from-judment-to-justice20101122, p. 127.
2. High Commissioner for Human Rights – see: <http://www2.ohchr.org/english/bodies/treaty/glossary.htm>.
3. Inter-Parliamentary Union, Parliament and Democracy in the Twenty-First Century (2006), available at: http://www.ipu.org/PDF/publications/democracy_en.pdf.
4. Joint Committee on Human Rights, The Committee’s Future Working Practices: Twenty-Third Report of Session 2005-06 (2006), from http://www.parliament.the-stationery-office.com/pa/jt200506/jtselect/jtrights/239/239.pdf, accessed 1 July 2009, [65].
5. http://nhri.ohchr.org/EN/Documents/Questionnaire%20-%20Complete%20Report%20FINAL-edited.pdf.
6. Conclusions of the International Roundtable on the Role of National Human Rights Institutions and Treaty Bodies, HRI/MC/2007/3, 7 February 2007, available at http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/1c1014317d376624c125728800586f24/$FILE/G0740362.pdf.
7. Strengthening the United Nations Human Rights Treaty Body System, A Report by the United Nations High Commissioner for Human Rights, Navanethem Pillay, June 2012
8. http://www2.ohchr.org/english/bodies/HRTD/docs/HCReportTBStrengthening.pdf.
9. The Dublin Statement on the Process of Strengthening of the United Nations Human Rights Treaty Body System, available at http://www2.ohchr.org/english/bodies/HRTD/docs/DublinStatement.pdf [17].
10. Human Rights and Business Dilemmas Forum, Emerging economic scenarios. Retrieved from http://human-rights.unglobalcompact.org/dilemmas/forced-labour/ retrieved on 16-10-2011,
11. Malik T. (2000) Human Rights Law: A Manual on Human Rights Training Programme for Lawyers. Part twelve-Right to Work., P. 513 and 509
12.CONSTITUTION OF THE PEOPLE’S REPUBLIC OF BANGLADESH, Part Three Fundamental rights P.10