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Compare & contrast the domestic implementation mechanism of Human Rights between Bangladesh & USA
Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.
The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, and color and so on. The principle of non-discrimination is complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.”
All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others.
Definition of Human rights
Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.
Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.
Declaration of human rights
Whereas 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 is ensured.
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, whereas it is essential to promote the development of friendly relations between nations is secured.
Whereas the peoples of the United Nations have in the reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.
Main articles of human rights are:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it is independent, trust, non-self-governing or under any other limitation of sovereignty.<href=”#_ftn5″ name=”_ftnref5″ title=””>
Everyone has the right to life, liberty and security of person.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Everyone has the right to recognition everywhere as a person before the law.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Main Approaches of human rights:
The promotion of human rights standards in another country can take place through a ‘positive’ <href=”#_ftn7″ name=”_ftnref7″ title=””>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. 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.<href=”#_ftn8″ name=”_ftnref8″ title=””>
b. REACTIVE APPROACHES
The call for positive measures to promote international co-operation to construct an ‘international human rights environment’<href=”#_ftn9″ name=”_ftnref9″ title=””> 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.<href=”#_ftn10″ name=”_ftnref10″ title=””>
c. HOLISTIC APPROACHES
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.
What are the major similarities between human rights in Bangladesh & that of USA?
While this hypothesis makes sense in the abstract, the problem it poses concerns a very concrete matter: How are individual members of society “contracted”<href=”#_ftn11″ name=”_ftnref11″ title=””> in Bangladesh and USA?
Some have asserted that the obligation to conform to the terms of social contract is a consequence of birth. Baldly stated, children are born into a particular society at a particular point in time, are reared within that society and, thus, are obligated to follow its laws.
Others have argued that the obligation to conform to the terms of the social contract is strictly legal, that is, anyone living in any particular locale is obligated to follow “the law of the land.”<href=”#_ftn12″ name=”_ftnref12″ title=””> Some laws are penal, carrying with them penalties for failure to comply (a negative view of the social contract). Other duly-approved and promulgated laws, like laws structuring marriage and setting standards with regard to basic needs, including among others safety, health, and education, make social life possible (a positive view of the social contract)<href=”#_ftn13″ name=”_ftnref13″ title=””>. These laws assist human beings to function, flourish, and perhaps even to prosper because they are members of society.
In contrast, social contract theorists’ reason that the free choice to remain a member of society—not birth and not locale—is what binds each member of society to the contract’s terms. In this sense, human beings “volunteer”<href=”#_ftn14″ name=”_ftnref14″ title=””> to belong to society simply because it is rational and in one’s self-interest to do so (Lessnoff, 1986). Laws—whether penal or non-penal—are non-coercive in that, once children have observed society and matured, they can choose as adults to stay or to leave. The choice to stay is what binds a citizen to the social contract and to abide by its terms. This is how the “contract”<href=”#_ftn15″ name=”_ftnref15″ title=””> emerges, as has been argued at least as early in intellectual history by Plato (1981). In Crito, Socrates maintained that a decision to remain in society confers legitimacy to the social contract and imposes its obligations upon a citizen; a decision to leave society signals illegitimacy and, although relieved of its obligations, a citizen now must submit to suffer the consequences of this decision or to leave society. The main acts are:
- 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.
What are the major dissimilarities between human rights in Bangladesh & that of USA?
Feminists and race-conscious philosophers, in particular, have argued that USA is more deficient for the reason that it subjects individuals and groups to an agreement that does not advance their particular self-interests. The issue for these philosophers concerns how the social contract has systematically excluded women and non-Caucasians from its provisions solely by means of the reasoning from which the social contract has been derived.
For feminists, what is wrong with the human rights is that much of Western philosophy was written by men and is based on instrumental rationality which supports the subordination of women (called “patriarchy” and “patriarchal right”).<href=”#_ftn16″ name=”_ftnref16″ title=””> Women and their experience, then, are excluded from the social contract and its provisions.
Pateman (1988)<href=”#_ftn17″ name=”_ftnref17″ title=””> argues that the social contract, as an exemplar of this patrimony was crafted by brothers, literally or metaphorically, who, after overthrowing their father’s rule, agreed to share their domination of the women previously controlled by the father. According to Pateman, the social contract in USA is way better than that of Bangladesh, then, is nothing more than a means by which men continue to exert hegemony over and to dominate women, especially as this ideology evidences itself in the marriage contract (which prohibits the legal category of marital rape), the prostitution contract (which accords males sexual access to female bodies), and the contract for surrogate motherhood (which requires access by men to women in the instance of women’s reproductive rights).
Other feminists argue that the USA considers only managing social relations—an approach delineating fundamental rights and responsibilities—and does not account for ethical relations characterized not so much by equality (as the social contract presumes) as by dependence. For the feminist theorists who assert this critique, including Gilligan (1982) and Noddings (1992), the question is not “What does justice require?” and the instrumental rationality that provides an objective response to that question. The important question is: “What does care require?” and the intuitive feeling that human beings experience which demand a subjective response.
For Held, to view human relationships in purely contractual terms represents “an impoverished view of human aspiration” (1993, p. 194).<href=”#_ftn18″ name=”_ftnref18″ title=””> Thus, when confronting ethical dilemmas, feminists like Held assert, the issue is not what the terms of the contract require equally of all members of society but what relationships require of equally of people who are dependent upon one another. Consider, for example, the mother-child relationship. This relationship, one that is necessitated by nature and where subjective feelings oftentimes will trump objective facts, is where human beings are formed into the ethical agents who are capable of entering into contracts. Social contract theorists have it wrong, feminists of this ilk assert, because social contract theorists start by establishing the contract and, then, impose it backwards upon human relationships in order to govern them.
Among the special procedures available to the Commission on Human Rights in USA, fact-finding missions<href=”#_ftn19″ name=”_ftnref19″ title=””> 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<href=”#_ftn20″ name=”_ftnref20″ title=””>. 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 Another special procedure available to the Commission on Human Rights is a thematic mechanism<href=”#_ftn21″ name=”_ftnref21″ title=””> 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 of USA offers advisory services<href=”#_ftn22″ name=”_ftnref22″ title=””> 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.
Human rights tell us about how it is that human beings are willing accept certain restrictions upon their freedom for the benefit of society. Such restrictions oftentimes take the form of laws which society requires its members to follow. In addition, social contract theory specifies the benefits of rule by the consent of the governed as opposed to living in the state of nature.
Held (1993) dissents, arguing that “Contemporary Western society is in the grip of contractual thinking” (p. 193) and perforce the instrumental form of rationality that supports such thinking. As with other critics, Held questions the fundamental assumptions supporting a society constructed upon the bedrock of the social contract theory, arguing that such a society defines membership in such a way as to exclude many human beings—women and persons of color, among others—from full and active participation in society.
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”<href=”#_ftn23″ name=”_ftnref23″ title=””> as rightly termed by Justice VR Krishna Iyer. (1996)<href=”#_ftn24″ name=”_ftnref24″ title=””> 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.
1. J. Bremen, Prussia (1925), Annual human rights report, 1926, p.11
2. Arbitral award March 15, 1963, I.L.R., 1967, 136 at 181.
3. B. Armane, “human act and social theories argument to justice“, J.D.I, 1979, 471, at 493-495, Lex Mercatoria, Forum Internationale, Kluwer, NY 1983, 19.
4. Cares, f.(1974) USA human rights, 35 NY: New York Press.
5. Jesse, D. & James, K.(2003). The Rise of human rights in sub continent, 50 UCLA L. Rev. 1303,pp. 1336-1337
6. w. Gabler. The human rights convention 1872,pp.12-15, NY press
7. Human rights (Just Satisfaction), Case of Zubani v. Italy (Art. 41), Applic. No. 14025/88, 16 June 1999.
8. R. Stevensen, Human act arrangement., 6-13,pp.123-156
9. Douglas Allen, (1991). What are human rights in developed countries? (Research in casual treaty and sovereignty based on human rights). Jai Pr.
10. Guerin, K. (2000). Human rights Bangladesh: a way to go ahead: A Judicial Perspective. Wellington, New Zealand: NZ Treasury.
<href=”#_ftnref1″ name=”_ftn1″ title=””> 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) –.
<href=”#_ftnref2″ name=”_ftn2″ title=””> 1998) 20 Human Rights Quarterly 691
<href=”#_ftnref3″ name=”_ftn3″ title=””> Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (2nd ed, 1996) 52.
<href=”#_ftnref4″ name=”_ftn4″ title=””>ICCPR, above n 1, art 2(3)(b).
<href=”#_ftnref5″ name=”_ftn5″ title=””> HRC, General Comment 31, above n 3.
<href=”#_ftnref6″ name=”_ftn6″ title=””> CESCR, General Comment 3, above n 39, .
<href=”#_ftnref7″ name=”_ftn7″ title=””>Akdivar v Turkey (1996) IV Eur Court HR 1192, 1210.
<href=”#_ftnref8″ name=”_ftn8″ title=””>Re Hood; Ex parte Mullen (1935) 35 SR (NSW) 289, 294–7 (Jordan CJ) (FC); Hinton Demolitions Pty Ltd
<href=”#_ftnref9″ name=”_ftn9″ title=””> The CESCR’s General Comments are available at http://www.ohchr.org/english/bodies/cescr/comments.htm.
<href=”#_ftnref10″ name=”_ftn10″ title=””> 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=””> CESCR, General Comment 9, above n 34, .
<href=”#_ftnref12″ name=”_ftn12″ title=””> HRC, General Comment 31, above n 3.
<href=”#_ftnref13″ name=”_ftn13″ title=””> The First Optional Protocol to the ICCPR, for example, requires that individuals must have exhausted all domestic remedies before they can bring a case before the HRC: Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302, art 5(2)(b) (entered into force 23 March 1976).
<href=”#_ftnref14″ name=”_ftn14″ title=””> CESCR, General Comment 3, above n 39, .
<href=”#_ftnref15″ name=”_ftn15″ title=””> GA Res 60/147, UN GAOR, 60th sess, 64th plen mtg, UN Doc A/RES/60/147 (2005) (‘Resolution 147’) (emphasis added).
<href=”#_ftnref16″ name=”_ftn16″ title=””> Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (‘European Convention on Human Rights’).
<href=”#_ftnref17″ name=”_ftn17″ title=””>Akdivar v Turkey (1996) IV Eur Court HR 1192, 1210.
<href=”#_ftnref18″ name=”_ftn18″ title=””>Re Hood; Ex parte Mullen (1935) 35 SR (NSW) 289, 294–7 (Jordan CJ) (FC); Hinton Demolitions Pty Ltd v Lower [No 2] (1971) 1 SASR 512, 532–8 (Wells J) (FC); Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368, 372–8 (Mahoney JA), 387–94 (Priestley JA) (NSWCA).
<href=”#_ftnref19″ name=”_ftn19″ title=””> CESCR, General Comment 14, above n 22,.
<href=”#_ftnref20″ name=”_ftn20″ title=””>Limburg Principles,above n 32, –.
<href=”#_ftnref21″ name=”_ftn21″ title=””> CESCR, General Comment 3, above n 39,.
<href=”#_ftnref22″ name=”_ftn22″ title=””> 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) .
<href=”#_ftnref23″ name=”_ftn23″ title=””> 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.
<href=”#_ftnref24″ name=”_ftn24″ title=””>Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)(f).