Concept of Human Rights

RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 165 protected in the national constitutions and statutes of many states around the world. In addition, treaties or agreements that states have signed oblige them to ensure the recognition and implementation of these rights and freedoms to individuals and citizens. Why are these universally recognized laws so important? The reasons are best stated in the pre- amble of the UDHR, which states: The inherent dignity and … equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and that disregard and contempt for hu- man rights resulted in barbarous acts. The preamble goes on to warn: … 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… Who are entitled to these rights? Are there exceptions? Every human being is born with equal human rights. Everyone is entitled to these rights in equal measure. These rights are inalienable: they cannot be taken away, lost or surrendered whatever a person does or whoever that person is. In the eyes of the law, even suspects and criminals are human beings with inalienable rights. A person accused of wrongdoing is entitled to fair trial and presumed innocent until proven oth- erwise; those proven guilty or convicted are entitled to appeal. As detainees or prisoners, they have the right to be treated humanely. Every individual’s human rights must be respected. To respect the rights of another person is to value that person’s human dignity. It is: …a conscious effort to find our common essence beyond our apparent divisions, our tempo- rary differences, our ideological and cultural barrier. Is “a freedom” the same as “a right”? Yes, in law they are the same. Your “freedom from torture” is your “right not to be tortured”. What is meant by the word “equality”? Human rights law establishes equality by protect- ing individuals from discrimination. Persons should not be discriminated against simply because of their beliefs or status in life; the law applies equally to rich and poor, to the Christian, Muslim, Buddhist and animist, to majority and minority, to the dominant and the dominated. Migrant workers are entitled to equal pay for equal work alongside the citizens of the country where they work. Women have the same rights as men. If a woman wishes to stay at home, it is her right and must be respected. It is also her right to work outside the home if she wishes to and to receive equal pay for her work. It is the duty of the state to make all these opportunities available. Module-8 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 166 What is the duty of the state? Considering that every state has national sovereignty, a state calls on another state to respect each other’s territorial integrity and political independence. However, there is a difference between meddling in the internal affairs of a state and compelling it to observe standards of conduct to which it has committed itself. Can states decide “to abide” or “not to abide” by their duties to protect individuals? Firstly, states have to agree to certain treaties, covenants and conventions, which set standards for the treatment by the state of its citizens and call it to account for its efforts or non-action in implementing these standards and answering allegations that may arise. Secondly, even if a state does not agree to these treaties, as a UN member-state, it is obliged under the UN Charter to promote, respect, and observe human rights. Thirdly, the International Bill of Human Rights and other human rights conventions together make up a body called international human rights law. In this regard, a government’s treatment of its citizens is now the legitimate concern of the international community. Below is a quote from Boutros-Ghali during the 1993 World Confer- ence on Human Rights in Vienna: It is the state that the international community should principally entrust with ensuring the protection of individuals. However, the issue of international action must be raised when states prove unworthy of this task… and when – far from being protectors of indi- viduals – they become tormentors… In these circumstances, the international community must take over from the states that fail to fulfill their obligations. What is the difference between a “human rights violation” and a “criminal offense”? Both involve wrongdoing. A criminal offense is a harmful act committed by one or more persons against other persons or against society at large, an act prohibited and punishable by the laws of a country. A human rights violation, on the other hand, is committed by the state through its agents such as police or armed forces against an individual or groups. In like manner that an individual who commits a crime is brought to justice, the state itself should also be made ac- countable when it violates the human rights of its citizens. What are the conditions and measures that favor human rights protection? Strong in- stitutional mechanisms are needed, such as having separation of powers, an independent judi- ciary system that is accessible to citizens, and special laws on human rights protection, to try and punish human-rights violators. If such mechanisms are lacking, international human rights law cannot be enforced within the state through a legal process. The UN can impose economic sanctions and, in some cases, allow armed intervention against a government that systematically violates human rights. Although governments can still abuse human rights with impunity, they are now increasingly aware of the importance of a good human rights record, if only to improve their global public image and trade and investment prospects. One factor that allows states to violate human rights is that many people are not aware of their basic rights according to law. Thus, there is a need for widespread public education on hu- man rights, to heighten vigilance against human rights violations, and to develop skills and net- work for monitoring and documentation of human rights violations. For a state to respect human rights, the key is an enlightened and vigilant citizenry that constantly hold the state accountable to its human rights obligations. At the same time, when citizens consistently inform the international community of their government’s human rights violations, the said government will find it harder to cover up such violations. Such global exposure may convince the international community to take action, and for the government itself to comply with its human rights obligations and standards. Module-8 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 167 Are atrocities committed by armed opposition groups also considered human rights violations? Atrocities that armed opposition groups may commit against ordinary citizens are as morally reprehensible as state-inflicted human rights abuses. Such atrocities, even if done in the name of a just social cause or political goal, also violates basic human rights. Even belligerent governments and insurgent armies are obliged by war conventions and international humani- tarian law to respect the rights of non-combatants, hors d’combat combatants who have ceased fighting, and prisoners of war. In strictly legal terms, however, human rights law is applicable to the conduct of the state towards individuals. The law exists to regulate the state’s use of power and to protect citizens from the state’s abuse. In moral terms, one cannot be distinguished from the other but in legal terms, they are treated separately. How are human rights violations related to tyranny? It is stated in Article 21 of UDHR that “the will of the people shall be the basis of the authority of government.” Where a govern- ment ignores the will of the people and does its worst to suppress the people’s will, it loses le- gitimacy and becomes a tyranny. Such a government increasingly relies on brute military force and becomes a most brutal and systematic violator of human rights. In such cases, human rights issues become an important arena in the broader resistance of an entire people against a tyran- nical regime or an oppressive state. Wole Soyinka said: Man dies in all who keep silent in the face of tyranny. Pastor Martin Niemoller composed this poem: First they came for the Jews And I did not speak out— Because I was not a Jew. Then they came for the Communists And I did not speak out— Because I was not a Communist. Then they came for the trade-unionists And I did not speak out— Because I was not a trade-unionist. Then they came for me— And there was no one left to speak out for me.

B. Scope and Deiniion of Militarizaion

During the elaboration on the draft UNDRIP, the scope and definition of the term “militari- zation” was one of the contentious issues. Since there is no agreed definition of militarization by the international community, the elaboration focused on contribution of demilitarization in indigenous territories instead of pushing for a comprehensive definition or a working definition of the term. Representatives both of states and indigenous peoples agreed that demilitariza- tion of indigenous territories contributes to peace, economic development, social progress and strengthens the understanding and friendly relations among nations and peoples of the world. Militarization is not merely the physical presence of massive military forces and camps, but the government’s reliance on the armed forces instead of civilian agencies as its main instrument to implement state policies and programs. In the extreme case, militarization blends into martial law, whereby the armed forces take over the most important civilian functions of government, in- Module-8 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 168 cluding legislative, judicial, administrative and local-police functions, or even including delivery of social services and cultural functions in the guise of “civic action.” Militarization can be imposed under the banner upholding national unity and territorial in- tegrity actually, defending the chauvinism of dominant society against indigenous peoples that assert their rights, or the supposed protection of natural resources, pursuit of national develop- ment, and corporate interests. The rhetoric of national unity and territorial integrity, as a fundamental political goal, has been deeply rooted in newly-independent countries emerging from colonial rule. This goal is pursued in total disregard, and in most cases in outright supression, of the exercise of the right to self-determination by indigenous peoples. One of the worst kinds of militarization is when the armed forces becomes the main instru- ment of a chauvinist or ethnocidal state policy to either forcibly assimilate indigenous peoples into the dominant society, or to forcibly rule over indigenous territories like a foreign invading and occupying power. EXAMPLES from Indigenous Affairs 201 Militarization in the Chittagong Hill Tracts Chandra Roy writes: The presence of the army in CHT affairs has its roots in Bengali hegemony predi- cated on the creation of Bangladesh as a separate homeland for the Bengalis. The exis- tence of indigenous peoples in the territorial framework of the Bangladeshi State, with their own identity, cultures and traditions, is a challenge to the concept of a homogenous state. The demands of the indigenous people for autonomy and the right to their own cultural identity were translated as being secessionist, and integration and assimilation became the fundamental pillars of the Government’s policy in the CHT, with the army as its main instrument in this process. “Militarization and Chittagong Hill Tracts” in Indig- enous Affairs 201, published by IWGIA Miltarization in Nagalim, Northeast India In Nagalim, in North East India, the Indian State has applied a systematic policy of militarization through counter-insurgency operations to silence the demands of the Naga people to self-determination. Indigenous Affairs 201, published by IWGIA Militarization in the Cordillera, Philippines Joan Carling and Benedict Solang write: Since the successful struggle of the Cordillera indigenous peoples against the build- ing of four megadams along the Chico River and the commercial logging activities of the Cellophil Resource Corporation in the late 70s to early 80s, militarization of the Cordil- lera countryside has always been part of the State Policy, from the Marcos Regime to the present. The exploitation of lands, territories and resources of indigenous peoples and the protection of private interests in indigenous territories often boil down to the interest of the states. To ac- complish this, militarization is imposed in such territories. Module-8