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“Domestic Implementation Mechanism of Human Rights between Bangladesh & USA”
Abstract:
The paper discuss about the domestic implementation mechanism of Human rights of Bangladesh and USA. The Fundamental rights in the Constitution of Bangladesh, and the national human rights instruments. Similarly, the implementation and the supervision of USA regarding the mechanism established to determine whether the standards are adhered to, on the one hand, and actual compliance by states with those standards, on the other.
INTRODUCTION:
Every person is entitled to certain fundamental rights, simply by the fact of being human. These are called “human rights” rather than a privilege (which can be taken away at someone’s whim).
They are “rights” because they are things you are allowed to be, to do or to have. These rights are there for your protection against people who might want to harm or hurt you. They are also there to help us get along with each other and live in peace.
Many people know something about their rights. Generally they know they have the right to food and a safe place to stay. They know they have a right to be paid for the work they do. But there are many other rights.
When human rights are not well known by people, abuses such as discrimination, intolerance, injustice, oppression and slavery can arise.
Born out of the atrocities and enormous loss of life during World War II, the United Nations Universal Declaration of Human Rights was signed in 1948 to provide a common understanding of what everyone’s rights are. It forms the basis for a world built on freedom, justice and peace.
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 10rights 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.
USA Mechanism
Working groups have been formed to oversee implementation efforts in ten thematic categories:
• Civil Rights and Racial and Ethnic Discrimination
• Criminal Justice Issues
• Indigenous Issues
• National Security
• Immigration
• Labor and Trafficking
• Economic, Social, and Cultural Rights and Measures
• The Environment
• Domestic Implementation of Human Rights
• Treaties and International Human Rights Mechanisms
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. 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. From the variety of activities that states are to take at the national level to implement human rights standards this section briefly discusses three: the incorporation of international standards into domestic law; the establishment of national human rights institutions and human rights education.
Bangladesh Mechanism:
Fundamental rights in the Constitution of Bangladesh, and the national human rights instruments acceded to by Bangladesh, provide the normative framework for protection of human rights and access to justice for all people. In practice, violations of civil and political liberties, arbitrary detention, excessive use of force and extra-judicial executions, risks to personal safety and security, and violence against women are widespread.
The people of Bangladesh have a deep-rooted awareness of human rights and fundamental freedom borne of the experience accompanying the nation’s birth. This was again demonstrated in the struggle of the people of Bangladesh and their heroic sacrifice for the restoration of democracy by uprooting a+ deeply entrenched autocratic regime in December 1990.
The challenge before Bangladesh is to keep pace with rising expectations of people along a broad and complex range of fronts that mark the indivisibility of human rights.
Human rights are inalienable. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.
Interdependent and indivisible
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.
Equal and non-discriminatory
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, colour 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.”
Both Rights and Obligations
Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others.
Comparative assessment:
Unsafe working conditions in Bangladesh were brought into the international spotlight by the Tazreen factory fire of November 2012, the worst of many deadly manufacturing fires in the country in recent years. The ILO has been engaged with the Government of Bangladesh on a Tripartite National Action Plan on Fire Safety to address this issue, and as of today the Plan is being finalized by the Ministry of Labor and Employment. They also have worked with the Government to identify necessary steps, including reforms to labor law and an improved and more transparent union registration process, to create an “enabling environment” for the establishment of a Better Work program.
The National Action Plan and Better Work program both offer opportunities to sustainably improve labor standards in Bangladesh and could both benefit from the support and cooperation of international buyers, including in coordination with buyers’ own initiatives. The practices outlined below are recommendations from the U.S. government to U.S. brands as they promote respect for human rights and international labor standards, as well as encourage engagement with the Government of Bangladesh and other stakeholders on few issues.
In the USA, long before human rights were constitutionally entrenched in this country, they were championed by a variety of non-governmental groups and actors. Organized labor, the women’s rights movement, other human rights groups, and political activists, church groups, etc., all played a role and continue to do so. The tireless lobbying of government by these groups eventually would lead to legislative changes. Initially such redress was often directed at specific groups or grievances. Ultimately, the linkages between what all of these various groups were pursuing and the overarching concept of human rights was recognized, and broader, more systematic remedies were devised.
Prior to this coalescing of various claims and interests into the more generic notion of human rights that we know today, the legal protections were more haphazard. In the USA, the common law offered some protection to civil liberties and due process in the form of judicial interpretive presumptions against legislative interference. In addition, some provisions of the 1867 Constitution do contain selective protections for at least certain minority communities.
It is really with the adoption of statutory bills of rights, such as the US Bill of Rights of 1960, and human rights codes by the provinces and by Parliament in the mid to late twentieth century, culminating with the addition to the Constitution in 1982 of the US Charter of Rights and Freedoms, that effective efforts were made to entrench systematically human rights into the US law and government.
The USA’s domestic human rights protections can be divided into two categories:
1) Traditional civil liberties and due process rights, fundamental freedoms, and political rights, which consist essentially of constraints on governmental and legislative action; and
2) Anti-discrimination laws, which prohibit discrimination on various grounds in society generally, and which apply to both public and private actors.
The application of the first category of domestic human rights protections is largely entrusted to the courts. The second category of rights, by contrast, is at least in the first instance enforced by specialized administrative bodies (i.e., the various human rights commissions).
Both the ordinary courts and the human rights commissions offer adjudication on individual complaints regarding human rights violations as well as various judicially enforceable remedies where violations are made out. However, in theory at least, the human rights commission model offers a number of advantages over the traditional courts. Typically, human rights commissions:
· are comprised of persons with expertise in human rights;
· have a broader institutional mandate, which includes promotion of and public education about human rights;
· are more accessible to complainants (they have less formal procedures and, more importantly, if they accept the complaint, the commissions will usually investigate and pursue it on behalf of the complainant);
· can initiate their own reviews of policies and practices, even where no complaint has been filed, and can issue public reports accordingly; and
· are obliged to report regularly to Parliament or to the provincial or territorial legislature, as the case may be, not only on their own operations, but also on the state of human rights in their respective jurisdictions.
Domestic human rights are, of course, also applied to legislation and public policy outside of courts, tribunals, and commissions. Policy and legislation at all levels of government are sometimes voluntarily modified, particularly in the developmental stages, as a result of domestic human rights concerns, especially with respect to the Charter of Rights.
For federal legislation, such a review is a formal legal requirement. The federal Minister of Justice is required by statute to review and certify the compliance of proposed government-sponsored legislation with the rights guaranteed in the US Bill of Rights as well as the Canadian Charter of Rights and Freedoms.
Parliament also plays a formal role in this area. The Standing Joint Committee for the Scrutiny of Regulations, to which most government regulations stand referred, includes among its formal criteria for scrutiny the regulation’s conformity with the Charter and the Bill of Rights. In the case of Private Members’ Bills, compliance with the Charter is among the criteria applied by the House of Commons Standing Committee on Procedure and House Affairs in selecting such bills as “votable items,” which may then proceed to Second Reading consideration.
Apart from these instances, however, while consistency with human rights is, in fact, frequently raised by individual parliamentarians in the course of debating or scrutinizing bills, there is no legal or procedural rule providing for the systematic auditing of bills from the human rights perspective by Parliament.
Of course, in the USA as elsewhere, human rights are not an absolute – they are subject to the principle of proportionality. In the Canadian Charter of Rights and Freedoms, this principle finds expression in the general limitations clause, section 1. While guaranteeing the rights set out in the Charter, this section subjects them to such “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Moreover, most domestic human rights in the USA, including most of those in the Charter, are subject to express legislative derogation. However, such derogation is extremely rare and is controversial, both in principle and in practice. Furthermore, in the case of the Charter, legislative derogation must be renewed every five years. As a result, such derogations are not politically easy for governments in the USA.
Although it is by no means perfect, the USA machinery of government is responsive to its domestic human rights obligations. Such rights are effectively entrenched into domestic constitutional and statute law and may be invoked before domestic judicial or administrative bodies that can constrain contrary actions by governments and, in some cases, private sector actors.
Moreover, Parliament plays a key role in the realization of domestic human rights. Parliament, and the corresponding provincial and territorial legislatures, are of course directly implicated in the creation of domestic human rights instruments. Canadian parliamentarians also have a central role to play in the balancing of human rights with other societal objectives. Parliament has certain duties and opportunities to scrutinize legislation from a human rights perspective. Also, as indicated above with respect to the Charter, all governmental limitations on, and derogations from, the human rights guaranteed therein must be endorsed by Parliament or the provincial legislatures, as the case may be.
Although there is certainly room for improvement in the USA system of domestic human rights protection, which this Committee can look into in the future, that system is, as shall be seen, far superior to that which exists with respect to US international human rights obligations.
Referencing:
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http://www.ohchr.org/Documents/Publications/training9chapter3en.pdf,
http://www.hrw.org/united-states/us-program/excessive-punishment-and-restrictions,