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ASSIGNMENT TOPIC “Organizational theories”

SUBMITTED BY: SUBMITTED TO: Maria Ashraf Ma’am Saima BS VIII SEMESTER POL.SC / IR LECTURER POL.SC REG. NO: 10050615-033/2208 COURSE: regional organization



HUMAN RIGHTS I. OBJECTIVES A. Understand the history and development of international human rights law and how it interacts with the law of war.
B. Understand those human rights considered customary international law.
C. Understand major international human rights treaties, their scope and application, as well as the Unites States’ approach to human rights treaty law.
D. Understand different regional international human rights systems.

Human rights law focuses on the life and dignity of human beings. In contrast with most international law, international human rights law protects persons as individuals rather than as subjects of sovereign States.
International human rights law exists in two forms: treaty law and customary international law (CIL). Human rights law established by treaty generally only binds the state in relation to persons within its territory and subject to its jurisdiction, and tends to be more aspirational. HISTORY AND DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW: A. As a field of international law, human rights did not fully develop until the years following World War II. The systematic abuse and near-extermination of entire populations by States gave rise to a truly revolutionary aspect of human rights as international law.
As sovereigns in the international system, States could expect other States not to interfere in their internal affairs. Human rights law, however, pierced the “veil of sovereignty” by seeking directly to regulate how States treated their own people within their own borders. 1. The Nuremberg War Crimes Trials are an example of a human rights approach to protection. The trials held former government officials legally responsible for the treatment of individual citizens within the borders of their state. The trials did not rely on domestic law, but rather on novel charges like “crimes against humanity.”
2. Human rights occupied a central place in the newly formed United Nations. The Charter of the United Nations contains several provisions dealing directly with human rights. One of the earliest General Assembly resolutions, the Universal Declaration of Human Rights(UDHR), is undoubtedly the strongest international statement of universal human rights norms.
3. Following the adoption of the 1949 Geneva Conventions, development of the law of war (LOW) began to stall. Through the so-called Geneva Tradition, the Conventions had introduced an approach to regulating armed conflict that focused on protecting and respecting individuals. By the mid-1950’s, however, the LOW process stalled completely.
4. At the same time, however, human rights law experienced a boom. Two of the most significant human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights, were adopted and opened for signature in 1966. Human Rights and Law of War:
Scholars and States disagree over the interaction between human rights law and the LOW. Positions range from arguments that they are entirely separate systems. In the late-1960’s, the United Nations General Assembly took on the application of human rights during armed conflict. Ultimately, however, the resolutions produced few ambiguous references to humanitarian principles.
1. The Traditional / United States View. Traditionally, human rights law and the LOW have been viewed as separate systems of protection. This classic view applies human rights law and the LOW to different situations and different relationships respectively.
a. Human rights law, in the traditional view, regulates the relationship between States and individuals within their territory and under their jurisdiction and may, however, be inapplicable during emergencies. This reflects the original focus of human rights law, which was to protect individuals from the harmful acts of their own governments.
b. Law of War, in the traditional view, regulates wartime relations between belligerents and civilians as well as protected persons, usually not one’s own citizens or nationals.
2. Emerging view. An expanding group of scholars and States has come to view the application of human rights law and LOW as overlapping. In this view, human rights law may create rights and duties beyond national borders between States and alien individuals during periods of armed conflict as well as during peace. The International Court of Justice recently adopted this view in two different Advisory Opinions.

A. If a specific human right falls within the category of Customary international law, it should be considered a “fundamental” human right. As such, it is binding on U.S. forces during all overseas operations. This is because CIL is considered part of U.S. law and human rights law operates to regulate the way State actors (in this case the U.S. armed forces) treat all humans. If a “human right” is considered to have risen to the status of CIL, then it is considered binding on U.S. State actors wherever such actors deal with human beings. Unfortunately, for the military practitioner there is no definitive “source list” of those human rights considered by the United States to fall within this category of fundamental human rights. As a result, the Judge Advocate (JA) must rely on a variety of sources to answer this question. These sources may include: the UDHR, although the United States has not taken the position that everything in the UDHR is CIL; Common Article 3 of the Geneva Conventions; and the Restatement (Third) of The Foreign Relations Law of the United States (2003). The Restatement claims that a State violates international law when, as a matter of policy, it “practices, encourages, or condones”19 a violation of human rights considered CIL.20 Furthermore, the Restatement makes no qualification as to where the violation might occur, or against whom it may be directed. Therefore, it is the CIL status of certain human rights that renders respect for such human rights a legal obligation on the part of U.S. forces conducting operations outside the United States, and not the fact that they may be reflected in treaties ratified by the United States.

V. HUMAN RIGHTS TREATIES The original focus of human rights law to protect individuals from the harmful acts of their own governments must be re-emphasized. Understanding this original focus is essential to understand why human rights treaties, even when signed and ratified by the United States, fall within the category of “aspiration” instead of “obligation.” Major Human Rights Instruments. Until 1988, the United States had not ratified any major international human rights treaties. Since then, the United States has ratified a few international human rights treaties, including the International Covenant on Civil and Political Rights; however, there are numerous human rights treaties that the United States has not ratified. The following is a list of the major international human rights treaties including a brief description of each one and whether the United States is a party to the treaty.
1. International Covenant on Civil and Political Rights (ICCPR) (1966).
The most preeminent international human rights treaty, the ICCPR was ratified by the United States in 1992. The ICCPR addresses so-called “first generation rights.” These include the most fundamental and basic rights and freedoms.
2. International Covenant on Economic, Social, and Cultural Rights (ICESCR) (1966). The ICESCR deals with so-called “second generation human rights.” Included in the ICESCR are the right to self-determination , the right to work , the right to adequate standard of living , and the right to an education. States that are party to this treaty undertake “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of available resources, with a view to achieving progressively the full realization of the rights recognized in the inding international law. The United States is not a party to the ICESCR.
3. Convention on the Prevention and Punishment of the Crime of Genocide(1948).
The United States signed the Genocide Convention in 1948, transmitted to Senate in 1949, and ratified in 1988. The Genocide Convention was the first international human rights treaty and also the first one that the United States ratified.
4. Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment (CAT) (1984).
The CAT is a United Nations treaty, administered by UN Committee on Torture, which is composed of ten elected experts. The Committee is informed by periodic reporting system and inter-state and individual complaint procedures.
5. Convention on the Elimination of All Forms of Racial Discrimination30 (CEFRD) (1965).
The CEFRD prohibits and defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin” to “nullify or impair the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other filed of public life.”
United States Treaty Process:
1. Article II, of the United States Constitution enumerates to the President the power to make treaties. After receiving the advice and consent of two-thirds of the Senate, the President may ratify a treaty. Article VI of the United States Constitution establishes treaties as “the supreme Law of the Land.” Consequently, treaties enjoy the same force as statutes.
2. Reservations, Understandings and Declarations (RUDs). The United States policy toward human rights treaties relies heavily on RUDs. RUDs have been essential to mustering political support for ratification of human rights treaties in the United States Senate.
Application of Human Rights Treaties:
Understanding how the U.S. applies human rights treaties requires an appreciation of two concepts: non-extraterritoriality and non-self execution.
1. Non-extraterritoriality: In keeping with the original focus of human rights law, the United States interprets human rights treaties to apply to persons living in the territory of the United States, and not to any person with whom agents of our government deal outside of our borders.This theory of treaty interpretation is referred to as “non-extraterritoriality.” The result of this theory is that these international agreements do not create treaty-based obligations on U.S. forces when dealing with civilians in another country during the course of a contingency operation.
2. Non-self execution:
While the non-extraterritorial interpretation of human rights treaties is the primary basis for the conclusion that these treaties do not bind U.S. forces outside the territory of the U.S.
A. The United Nations System. An understanding of international human rights obligations begins with the primary human rights system, the UN system, the foundation of which is the Universal Declaration of Human Rights.
1. The Universal Declaration of Human Rights (UDHR).
The UDHR was a UN General Assembly Resolution passed on December 10, 1946. The UDHR is not a treaty but many of its provisions reflect CIL. The UDHR was adopted as “a common standard of achievement for all peoples and nations.”
2. The Human Rights Committee (HRC).
The HRC was established by the ICCPR as a committee of independent human rights experts who oversee mplementation of the treaty.
B. The European Human Rights System. The European Human Rights System was the first regional human rights system and is widely regarded to be the most robust. The European System is based on the 1950 European Convention of Human Rights, a seminal document that created one of the most powerful human rights bodies in the world, the European Court of Human Rights.
C. The Inter-American Human Rights System. The Inter-American System is based on the Organization of the American States Charter and the American Convention on Human Rights. The OAS Charter created the Inter-American Commission on Human Rights.
D. The African Human Rights System. The African System falls under the African Union, which was established in 2001. It is, therefore, the most recent and least formed human rights system. The African system is based primarily on the African Charter on Human and Peoples’ Rights which entered into force in 1986.

International humanitarian law is part of the body of international law that governs relations between States. IHL aims to limit the effects of armed conflicts for humanitarian reasons. It aims to protect persons who are not or are no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and obligations of the parties to a conflict in the conduct of hostilities.

Because it is law, IHL imposes obligations on those engaged in armed conflict. Not only must they respect the law, they have an obligation to ensure respect as well. It is not acceptable to turn a blind eye.

The cornerstone of IHL is the Geneva Conventions. The first was signed by 16 countries in 1864. For centuries before then, rules had applied to the conduct of war, but they were based on custom and tradition, were local or just temporary. 1864 changed all that and began a process of building a body of law that is still evolving today.

The initiative for the first convention came from five citizens of Geneva. One of them, Henry Dunant, had, by chance, witnessed the battle of Solferino in 1859. He was appalled by the lack of help for the wounded and organized local residents to come to their aid. Out of this act came one of the key elements of the first convention – the humane treatment of those no longer part of the battle, regardless of which side they were on.

It was at this time, too, that a neutral protective sign for those helping the victims of conflict was adopted; a red cross on a white background, the exact reverse of the Swiss flag.

In the century and a half that followed the body of international humanitarian law grew. The Geneva Convention was extended, in 1906 and 1929 so as to improve the conditions of sick and wounded soldiers in the field and to define new rules on the protection of prisoners of war. In 1899 and 1907, the Hague Conventions, mainly aimed at regulating the conduct of warfare, were also adopted. In August 1949, the four Geneva Conventions as we know them today were adopted. This time they also included the protection of civilians, reflecting the terrible experience of World War II.

Protocols were added to the Geneva Conventions in 1977 and 2005, and a range of other international conventions and protocols covering specific areas such as conventional weapons, chemical weapons, landmines, laser weapons, cluster munitions and the protection of children in armed conflicts has developed the reach of IHL. So too has the codification of customary law.

The core, however, remains the Geneva Conventions and their additional Protocols. They combine clear legal obligations and enshrine basic humanitarian principles.

• Soldiers who surrender or who are hors de combat are entitled to respect for their lives and their moral and physical integrity. It is forbidden to kill or injure them.

• The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the red cross, red crescent or red crystal is the sign of such protection and must be respected.

• Captured combatants are entitled to respect for their lives, dignity, personal rights and convictions. They must be protected against all acts of violence and reprisals. They must have the right to correspond with their families and to receive relief.

• Civilians under the authority of a party to the conflict or an occupying power of which they are not nationals are entitled to respect for their lives, dignity, personal rights and convictions.

• Everyone must be entitled to benefit from fundamental judicial guarantees. No one must be sentenced without previous judgment pronounced by a regularly constituted court. No one must be held responsible for an act he has not committed. No one must be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.

• Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.

• Parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Adequate precautions shall be taken in this regard before launching an attack.

The International Committee of the Red Cross is regarded as the “guardian” of the Geneva Conventions and the various other treaties that constitute international humanitarian law. It cannot, however, act as either policeman or judge. These functions belong to governments, the parties to international treaties, who are required to prevent and put an end to violation of IHL. They have also an obligation to punish those responsible of what are known as “grave breaches” of IHL or war crimes.

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