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Compare & contrast the domestic implementation mechanism of Human Rights between Bangladesh & USA
Introduction:
It is often difficult to make a clear distinction between ‘supervision’ and ‘implementation’ of human rights, and no consistent international terminology is used. In human rights literature, protection, supervision, monitoring, and implementation are terms often used indiscriminately to cover both the mechanisms established to determine whether the standards are adhered to, on the one hand, and actual compliance by states with those standards, on the other. The term ‘supervision’, discussed in the previous chapter, refers to all procedures that have been instituted at the international level, with the aim of monitoring compliance with human rights standards at the domestic level. The term ‘implementation’ is used here in reference to actual compliance with human rights standards by individual states as well as all initiatives taken by those states themselves, other states and international organs or other bodies to enhance respect for human rights and prevent violations. Sometimes there is an overlap between the two terms and some institutions use the same or similar processes for both supervision and implementation. Two examples illustrate this:
- Advisory services in the UN human rights system address compliance of states with human rights obligations (supervision) and assist states in improving respect for human rights through, for example, the provision of fellowships and expert advice (implementation).<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]
- The UN Human Rights Council allows individual states to discuss implementation questions in addition to dealing with supervision (e.g., through the establishment of the position of a country rapporteur).<href=”#_ftn2″ name=”_ftnref2″ title=””>[2]
Implementation at the national level
The implementation of human rights law depends to a large extent on the political will (and often, as regards economic, cultural and social rights, the economic capacity) of states to comply with international standards (see V§1)<href=”#_ftn3″ Ideally, a co-operative network of non-state actors and international institutions all ensure the effective implementation of the international norms and standards. Implementation entails an array of activities. These include primarily activities to improve compliance by the states themselves, such as enacting national laws or administrative practices to comply with human rights standards, strengthening the judiciary branch of government, educating the population, establishing national human rights institutions, improvement of minimum health standards, improving prison conditions, and increasing participation in government.
Implementation at the international level
Generally, to implement international human rights standards, states must affirmatively incorporate them into domestic law. In general, international treaties do not stipulate how states should implement human rights standards, leaving it to each state to decide how obligations will be implemented at the domestic level. However, it is notable that a few treaties specifically mandate the adoption of domestic laws as a part of its implementation framework. For example, both and the Convention on the Rights of the Child (Article 4)mandate that states parties pass domestic laws to give effect to the rights set forth in the respective treaties. There are a great variety of domestic methods for implementation of international human rights instruments. Scholars have classified them, for example, into adoption, incorporation, transformation, passive transformation and reference. Moreover, states may apply more than one of these methods. In very broad terms, two systems can be identified. In some states there is an automatic incorporation of treaty provisions once they have been ratified and published in the official gazette (e.g., France, Mexico and The Netherlands). These legal systems are referred to as , in that both domestic and international law are considered together and as having the same effect. Other states require the express legislative enactment of treaty provisions before they become domestic law (e.g., the United Kingdom, other Commonwealth countries and Scandinavian countries). These legal systems are referred to as ‘dualist’ in that a strong distinction is maintained between domestic and international law, and the latter must be written into the former in order to carry substantial and enforceable weight.
Implementation of human rights standards can be a difficult task for developing countries where the scarcity of resources may impose challenging obstacles to achieve compliance with human rights within a reasonable time. For example, while a state may in theory agree that people have the right to health, housing or other economic standards, it may not have the capacity radically to change everyone’s living conditions in order to bring them up to the level of the norms aspired to. Similarly, one’s right to a speedy and fair trial may require that a state increase funding to its judiciary system.
Main Approaches:
The promotion of human rights standards in another country can take place through a ‘positive’ approach, whereby support is given to the improvement of conditions that facilitate compliance with human rights, or through a reaction to a violation of human rights. Often a differentiated approach is chosen, as this may often be the most effective way to bring about compliance. One sees international treaty organs, other countries and non-governmental organizations all working to promote human rights compliance.
a. PROMOTION OF HUMAN RIGHTS – POSITIVE APPROACHES
One way to promote human rights is through the establishment of international human rights organizations. Many institutions monitor or assist in the compliance with specific human rights, such as the Office for Democratic Institutions and Human Rights (ODIHR) (promoting democratic institutions in OSCE countries), the International Institute for Democracy and Electoral Assistance (promoting electoral systems world-wide), and the Inter-American Institute of Human Rights (promoting human rights awareness in Latin America). Human rights NGOs serve several general functions. Some provide humanitarian assistance. Some act as watch dogs pointing out states’ failures to enforce rights in their countries and human rights violations in other countries. This may often happen through shadow reports to human rights treaty bodies or reports released to the press, or through direct shaming and other pressure tactics.
b. RESPONSES TO HUMAN RIGHTS VIOLATIONS – REACTIVE APPROACHES
The call for positive measures to promote international co-operation to construct an ‘international human rights environment’ should not minimize the constant need to respond to human rights violations. While many countries struggle to meet their human rights obligations, the lack of resources cannot justify violations of fundamental human rights. States should respond to human rights violations in other countries in order to promote international compliance based on rights and values as opposed to national interests.
The suitability of a measure in a given situation depends on the specific characteristics of the case at hand, and the potential impact of the responses. Additionally, it should be noted that most states will strongly consider foreign policy ramifications as a reason not to ‘interfere’ or ‘meddle’ with the domestic affairs of another state.
c. HOLISTIC APPROACHES TO HUMAN RIGHTS SITUATIONS
While sometimes the most appropriate approach seems obvious, the available options have to be carefully weighed. Obviously, measures taken simply to promote respect for human rights are less controversial than possible steps in response to violations such as trade sanctions or humanitarian intervention. But at the same time, one should not overlook the fact that the promotion of human rights through development, economic, or trade co-operation programs by its very nature takes a structural, long-term form. This frequently entails co-operation with recipient countries over a fairly long period, even if the human rights situation continues to leave much to be desired. Effective human rights promotion is generally contingent on the resources available to fund such activities and on the political will of the government whose behavior is at issue.
Comparison between human rights in Bangladesh & that of USA:
The mandate of the NHRC necessarily emanates from the Constitution of the People’s Republic of Bangladesh and USA, the Human Rights Commission Act and the international human rights instruments to which Bangladesh is a party. As per the Constitution the fundamental objective of the state is to establish an egalitarian society where equality and social justice would be guaranteed for all citizens in both the countries. It envisages that Bangladesh and USA shall be a democracy where fundamental human rights and worth of human persons of all would be ensured.<href=”#_ftn11″ name=”_ftnref11″ title=””>[11] In line with these objectives, the National Human Rights Commission Act in its preamble [read with section 2(f)]<href=”#_ftn12″ name=”_ftnref12″ title=””>[12] has reflected that the National Human Rights Commission is being established in order to protect, promote and foster human rights as<href=”#_ftn13″ name=”_ftnref13″ title=””>[13] envisaged in the Bangladesh constitution and international instruments. The key mandates can be summed up as follows:
- It is a statutory independent institution established by an Act of Parliament.
- NHRC is committed to provide independent views on issues within the parlance of the Constitution or prevailing law for the time being in force for the protection of human rights.
- The Commission works independently. It does not require prior approval of the government to spend its budgetary allocation. The budget of the Commission comes from annual grant of Government of Bangladesh and USA or local authority. The account of the Commission is to be audited by the Auditor and Comptroller General of Bangladesh and USA.
- Authority to mediate any complaint if feasible and appropriate.
- Authority to revisit existing laws of the land and recommend amending any discrepancy for better and more effective protection and promotion of human rights.
The Uniqueness of the Powers and Functions in Bangladesh and USA
- Apart from entertaining complaints the NHRC can exercise the power suo motu.<href=”#_ftn14″ name=”_ftnref14″ title=””>[14]
- The NHRC can ask for report from the Disciplinary Forces or the Law Enforcing Agencies or any of its members on the allegation of human rights violation.
- The NHRC can visit any jail or correctional centers, custody and such other places and make recommendation to the government thereon for the development of those places and conditions.
- The Commission can inquire and report a matter being referenced by the Supreme Court of Bangladesh on a writ petition heard by it.
- The Commission enjoys the power of a civil court in case of any inquiry or investigation.
- The Commission is empowered to appoint mediators according to established rules to dispose of a dispute relating to violation of human rights.
- In case of non-compliance of the reports and recommendations the Commission can bring the matter to the notice of the President who shall cause it to be laid before parliament.<href=”#_ftn15″ name=”_ftnref15″ title=””>[15]
- The Commission can ask for information from governmental authorities on any alleged violation of human rights and the government is required to give the information. In case of failure to provide information the Commission can start to work at its own initiative.
- Even the Commission itself can lodge application to the High Court Division if the case fits with the conditions of filing writ petitions under the constitution.
- Apart from suggesting legal remedy, the commission is endowed with the power to recommend the government to provide temporary grant to the aggrieved person or his family.<href=”#_ftn16″ name=”_ftnref16″ title=””>[16]
- The commission can publish the inquiry report fully or partially at its own satisfaction.
- The witnesses before the Commission are protected for their deposition.
Contrast between human rights in Bangladesh & that of USA:
The type of protection provided by the United Nations on issues of human rights is based on either Charter-based or treaty-based mechanisms. Those mechanisms based on the UN Charter include: the Universal Declaration of Human Rights; the Commission on Human Rights; and the Sub-Commission on the Promotion and Protection of Human Rights is strictly followed in USA.
Universal Declaration and implementation of Human Rights in USA
Among the special procedures available to the Commission on Human Rights, fact-finding missions are a useful tool. In a fact-finding mission, an expert or group of experts studies the human rights situation and looks for violations in a given state with the purpose of gathering information for a 1503 or a 1235 procedure However, a fact-finding mission may only occur with the consent of the state whose human rights recorded is being questioned. As of April 2003, 47 countries had extended standing invitations to the Thematic Special Procedures of the United Nations Commission on Human Rights to investigate human rights issues, meaning that the Commission may initiate a fact-finding mansion to any one of those countries at any time. For all other nations, the Commission must first seek and gain approval before dispatching its experts to the country.
Another special procedure available to the Commission on Human Rights is a thematic mechanism or mandate. Working groups and/or Special Rapporteurs investigate human rights violations and the problems they have caused on a multi-state level. Recently, there has been an increase in the number of Special Rapporteurs investigating human rights issues.
Lastly, the Commission on Human Rights offers advisory services to nations that request it. The Commission provides educational and informational assistance to states in order to help them observe a high level of human rights protection. Additionally, the Commission on Human Rights may request assistance from the Office of the High Commissioner for Human Rights in the form of seminars, training courses, and clinics as well as advice from experts.
Article 1 states: “[A]ll human beings are born equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Article 2 continues: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Articles 3 through 21 specify civil and political rights. In these articles, rights set forth include the right to life, liberty, a fair trial, free speech, privacy, of personal security, and of movement, as well as freedom from slavery, torture, and arbitrary arrest.
Articles 22 through 27 provide for economic, social and cultural rights. These rights are specified as an indispensable aspect of an individual’s life, being necessary for one’s dignity and personal development, and include economic rights such as the right to social security, economic work-related rights, fair payment and leisure; social rights such as the right to an adequate standard of health, well-being and education; and cultural rights, such as the right to participate in cultural life.
Finally, Articles 28 through 30 establish a general framework to provide for the enjoyment of human rights: the recognition of the right to a social and international system that promotes human rights; a statement that humans have obligations to the community along with fundamental rights; and a reminder that no state or individual may utilize the Declaration to promote goals contrary to the mission or goals of the UN.
Conclusion:
National human rights institutions are being set up in many parts of the world. While the powers of these national institutions in the different countries vary, there seems to be a “core concept” emerging. In many countries, such national institutions have not matched the expectations they generated when they were first set up. On the other hand, in some other countries, where the expectations were not so great, national institutions have yielded some positive results.
No doubt national human rights institutions can be effective consolation, but without power to adjudicate and issue binding commands they may be turned to be “glorified ciphers and promise of unreality”as rightly termed by Justice VR Krishna Iyer. Only the real political will of the government, the opposition groups and the civil society as a whole can help reach the cherished destination. The decision of the Bangladesh Government to set up a National Human Rights Commission is a welcome development. But again the success of the proposed commission will largely depend on the true political will of the government. At the same time, we cannot solely depend on political will of the ruling class. We need a good process, which will ensure that the Commission is born properly and can grow independently as a people’s commission and not a quasi-governmental body.
Bibliography:
1. Charles, F.(1980). CESCR Doctrine in Public human rights Law, 14 U.C. DAVIS L. REV. 269, Oxford: Oxford Press.
2. Joseph, L.(1970). The human rights acts: Effective Judicial Intervention, 68 MICH. L .REV.pp.432-455.
3. Cares, f.(1974) USA human rights, 35 NY: New York Press.
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Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (2nd ed, 1996) 52.
Asbjørn Eide, UN Special Rapporteur for the Right to Food, The Right to Adequate Food as a Human Right: Final Report submitted by Asbjørn Eide, UN Doc E/CN.4/Sub.2/1987/23 (1987) [67]–[69].
CESCR, General Comment 12: The Right to Adequate Food, UN Doc E/C.12/1999/5 (1995) (citations omitted) available at http://www.ohchr.org/english/bodies/cescr/comments.htm
Human Rights Committee, General Comment 6: The right to life, available at http://www.ohchr.org/english/bodies/hrc/comments.htm
<href=”#_ftnref5″ name=”_ftn5″ title=””>[5] See generally Ida Elisabeth Koch, ‘Dichotomies, Trichotomies or Waves of Duties?’ (2005) 5 Human Rights Law Review 81.
<href=”#_ftnref6″ name=”_ftn6″ title=””>[6]A v United Kingdom (1998) VI Eur Court HR 2692.
Velasquez Rodriguez v Honduras [1988] Inter-Am Court HR (ser C) No 4.
Osman v United Kingdom (1998) VIII Eur Court HR3124.
The CESCR’s General Comments are available at http://www.ohchr.org/english/bodies/cescr/comments.htm.
<href=”#_ftnref10″ name=”_ftn10″ title=””>[10] HRC, General Comment 3: Implementation at the National Level,UN Doc HRI\GEN\1\Rev.1 (1981) available at http://www.ohchr.org/english/bodies/hrc/comments.htm.
<href=”#_ftnref11″ name=”_ftn11″ title=””>[11] CESCR, General Comment 18: The Right to Work, UN Doc E/C.12/GC/18 (2006), [31] available at http://www.ohchr.org/english/bodies/cescr/comments.htm.
Ibid [23].
Sigrun Skogly, The Human Rights Obligations of the IMF and the World Bank (2001) 151.
See generally CESCR, General Comment 14, above n 22,[33]. For a more detailed discussion of this typology of obligations, see Part 3 above.
CESCR, General Comment 9, above n 34,[7]–[8].
CESCR, General Comment 9: The Domestic Application of the Covenant, UN Doc E/C.12/1998/24 (1998) [1].
CESCR, General Comment 14, above n 22,[31].
Limburg Principles,above n 32, [35]–[41].
CESCR, General Comment 3, above n 39,[10].
In a statement adopted on 4 May 2001, CESCR considered itself to have, in its General Comments on the subject, confirmed that core obligations under the ICESCR are non-derogable: CESCR, Poverty and the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/2001/10 (2001) [16].
CESCR, General Comment 13, above n 21,[57].
CESCR, General Comment 17, above n 25,[39].
CESCR, General Comment 15, above n 23,[37].
CESCR, General Comment 14, above n 22,[43], [47].
CESCR, General Comment 18, above n 26,[31].
See, eg, the HRC in relation to the ICCPR, and the Committee on Torture in relation to the CAT. The monitoring by international treaty committees is discussed at Chapter 6.