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4 Indivisibility and Interdependence, or A Hierarchy of Rights?

4 Indivisibility and Interdependence, or A Hierarchy of Rights?

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UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS



2.5 Interdependence and Indivisibility

A further factor to consider is the overlap between rights thus the interdependence of all rights: for

example failure to secure the right to adequate healthcare (a social/economic right) may result in

a threat to life, the right to life being a primary civil and political right. Many more examples can

be found: right to education and right to vote and political participation; right to adequate rest

periods for workers and freedom from degrading and even life-threatening treatment.



2.5.1 Example of right to clean water and adequate sanitation

The following figure illustrates the interdependence of rights, focusing on the right to clean water

and adequate sanitation.

Access to clean water and sanitation clearly has a bearing on a number of other rights and freedoms.

A standalone right to clean water and adequate sanitation would not, of course, be sufficient to ensure

that all elements of the right to education or the right to health are satisfied. On the other hand, fully

implementing the right to health would require the supply of clean water and adequate sanitation.



Freedom from

inhuman and

degrading treatment



Right to life—



Right to adequate



life-threatening



standard of Living



illnesses borne by

dirty water



RIGHT TO

CLEAN WATER

AND

ADEQUATE



Right to development

and freedom from



SANITATION



Right to health



poverty



Freedom from



Right to education—



discrimination—



awareness of



not everyone lacks



importance of clean



clean water



water



2.5.2 The right to life

Life, and thus the right to life, is clearly a fundamental prerequisite to the exercise of many of the

other rights and freedoms. However, this does not mean that the right to life is totally sacrosanct.

That would place unrealistic burdens on the State – to preserve all life! Rather, each instrument

notes the instances in which life may be forfeited.

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950, Article 2

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life

intentionally save in the execution of a sentence of a court following his conviction of a crime for

which this penalty is provided by law.



INTERDEPENDENCE AND INDIVISIBILITY



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2. Deprivation of life shall not be regarded as inflicted in contravention of this article when

it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.



Not all rights are necessarily equal at all times, despite the concept of universalism outlined above.

Moreover, individual situations will affect which rights are prioritised at any given time. This will

usually be a subjective decision. Someone under house arrest for a prolonged period of time on

account of political activities may well prioritise civil and political rights. Indeed, such a person

may be willing to die for freedom of expression and political freedoms. In contrast, a child caught

up in HIV/AIDS with a terminally ill parent and three younger siblings to support is unlikely to be

as interested in political participation, freedom of expression and equality before the law. These

rights are all factors and may be important to the child. However, his or her focus is more likely to

be on the rights needed for immediate survival.

Question



Consider the plight of those involved in recent natural disasters: earthquakes in Italy, Turkey and Iran, droughts in northern

Africa, floods in the UK, hurricanes, cyclones, tropical storms. Tragically, the list could continue. Which rights would be a

priority for those caught up in the trauma and why?



2.5.3 A family of rights

Having addressed the issue of a ‘hierarchy’ of rights, now consider the extent to which the following

three rights and freedoms overlap. Is it possible to have full political participation without at least

some freedom of expression? Can education and freedom of expression be mutually exclusive?

Does an education (of whatever kind) assist with participation in the political process and the

exercise of associated democratic rights?

Rather than consider human rights in diverse categories, it is perhaps best to consider them as

an organic whole, a family of rights, each category performing an important function; each

contributing towards vibrant richness of rights and freedoms.

Right to

education



Freedom of

expression



Political

participation



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UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS



2.6 Evolving and Developing Rights

Finally, the rights enshrined in the various international and regional instruments are not static.

Rather than remain frozen in time, the rights constantly evolve, responding to international events,

reacting to social advancements and political change. The role of the courts and committees in

achieving this change was discussed in Chapter 1; see also Chapter 6.

In conclusion, it appears true to say that international human rights are universal, indivisible,

interdependent and inalienable.



Further Reading

Baehr, P., Universality in Practice, 1999, New York: St. Martin’s Press.

Bell, L., Nathan, A. and Peleg, I. (eds), Negotiating Culture and Human Rights, 2001, New York: NYUP.

Benvenisti, E., ‘Margin of Appreciation, Consensus and Universal Standards’ (1999) 31

International Law and Politics 843.

Caney, S., ‘Human Rights, Compatibility and Diverse Cultures’ in Caney, S. and Jones, P. (eds),

Human Rights and Global Diversity, 2001, London: Frank Cass.

De Varennes, F., ‘Fallacies in the Universalism Versus Cultural Relativism Debate in Human

Rights Law’, 7 Asia-Pacific Journal on Human Rights and the Law (2006) 67.

Donnelly, J., Universal Human Rights in Theory and Practice, 2002, Ithaca: Cornell University Press.

Eriksen, T., ‘Between Universalism and Relativism: a critique of the UNESCO concepts of

culture?’ in Cowan, J., Dembour, M. and Wilson, R. (eds), Culture and Rights: Anthropological

Perspectives, 2001, Cambridge: CUP.

Evans, T., ‘Universal Human Rights: as much round and round as ever onward?’ (2003) 7.4

International Journal of Human Rights 155.

Harris-Short, S., ‘International Human Rights Law: Imperialist, Inept and Ineffective? Cultural

Relativism and the UN Convention on the Rights of the Child’ (2003) 25 Human Rights

Quarterly 130.

Hutchinson, M., ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’

(1999) 48 International and Comparative Law Quarterly 638.

Lavender, N., ‘The Problem of the Margin of Appreciation’ (1997) European Human Rights Law

Review 380.

Letsas, G., ‘Two concepts of the margin of appreciation’ (2006) 26 Oxford Journal of Legal Studies 705.

McGoldrick, D., ‘Multiculturalism and its Discontents’ (2005) 5.1 Human Rights Law Review 27.

Perry, M., ‘Are Human Rights Universal? The Relativist Challenge and Related Matters’ (1997) 19

Human Rights Quarterly 461.

Renteln, A., International Human Rights: Universalism versus Relativism, 1990, Newbury Park, CA:

Sage.



Chapter 3



States and Treaty Obligations



Chapter Contents

3.1



‘Universal Human Rights’ and Ratification



60



3.2



Limitations on State Compliance: Reservations,

Declarations, Derogations and Denunciations



64



3.3



Reservations



64



3.4



Declarations



75



3.5



Derogations



78



3.6



Denunciations



87



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STATES AND TREATY OBLIGATIONS



To achieve universal acceptance of all human rights, obviously States must accept fully the existence

of all human rights. Generally, the law concerning State acceptance of human rights is public international law. This chapter examines the relevant aspects of public international law as it relates to

States and treaty obligations.













How do States accept treaty obligations?

Is a State always bound by the entire treaty?

How does a State opt out of treaty obligations?

Can a State opt out of fundamental human rights given they are universal?

Can a State opt out of complying with human rights during a national emergency (a natural

disaster or an armed conflict, for example)?



The Millennium Declaration adopted by the General Assembly of the United Nations in 2000

emphasised the need for respect for the Universal Declaration of Human Rights (UN Doc. A/55/L.2,

para 25), and for heads of State and government to spare no effort promoting democracy

and strengthening the rule of law, respecting all internationally recognised human rights

and fundamental freedoms (para 24). For any system of international human rights to work,

it is essential that as large a number of States as possible participate, embracing the rights and

obligations enshrined in the salient instruments. In other words, their participation should be

absolute.

VIENNA DECLARATION AND PROGRAMME OF ACTION WORLD CONFERENCE ON HUMAN

RIGHTS, VIENNA, 14–25 JUNE 1993, UN Doc. A/CONF.157/23

26. The World Conference on Human Rights welcomes the progress made in the codification

of human rights instruments, which is a dynamic and evolving process, and urges the

universal ratification of human rights treaties. All States are encouraged to accede to these

international instruments; all States are encouraged to avoid, as far as possible, the resort to

reservations.



By definition, international human rights are adopted in the understanding they will achieve international and, indeed, universal acceptance. To date, the only instrument to come close is the

Convention on the Rights of the Child, with ratification by all but three Member States of the UN

(the USA, South Sudan and Somalia). This chapter will encapsulate material relating to the obligations incumbent on States and the methods by which States may limit them. The next chapter will

focus more on the systems of monitoring and enforcing human rights.



3.1 ‘Universal Human Rights’ and Ratification

An essential part of the new world order created through the United Nations is the concept of

universal rights. Materials relating to the debate between universality and cultural pluralism have

already been discussed in Chapter 2. In contrast, this section examines the practical problems

encountered by the international community in trying to ensure the universal application of rights.

Problems arise through the myriad of ways a State can legitimately limit its obligations under any

given instrument. It is inevitable that universality was the goal of the United Nations: a truly global

organisation derives continued legitimacy from international endorsement. However, even without

the problems caused by cultural relativism, the goal of universality encounters hurdles due to the

lack of State ratifications.

Compare and contrast the following views of universal ratification.



‘UNIVERSAL HUMAN RIGHTS’ AND RATIFICATION



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A critical viewpoint

Professor Anne F. Bayefsky, York University, Canada. Committee on International Human

Rights Law and Practice Report on the UN Human Rights Treaties: Facing the

Implementation Crisis, International Law Association

Helsinki Conference (1996)

The implementation crisis facing the principle UN human rights legal standards is now of

dangerous proportions. For a great many States ratification has become an end in itself, a

means to easy accolades for empty gestures. The problem has arisen in part because of a

deliberate emphasis on ratification.

The primary goal of the UN community has been to achieve universal ratification of the

human rights treaties. The underlying belief is that once universal ratification is realized, the

implementation techniques can be strengthened. Once committed to participation, States will

find it difficult to pull out and will find themselves ensnared in an ever-expanding network of

international supervision and accountability.

In the meantime, ratification by human rights adversaries is purchased at a price, namely,

diminished obligations, lax supervision, and few adverse consequences from non-compliance.

The cost of membership has been deliberately minimized. One significant example of

this phenomenon is the acceptance into the treaty regime of States that ratify only with broad

reservations. These reservations purport to limit the obligations assumed. For example, many

Islamic and Asian States only ratify the treaties with the caveat that any obligation sustained

must first be compatible with Islamic law or a similar broad reservation.

Such reservations are inconsistent with international law which requires reservations to

conform to the object and purpose of the treaty, and in the case of human rights treaties means

identifying and applying overriding, universal standards. Nevertheless, few States are prepared

to challenge other States on the legitimacy of their reservations, and some important States

like the United States and the United Kingdom currently are resisting attempts by the treaty

bodies themselves to challenge reservations.



Question



Are Bayefsky’s criticisms realistic and justified or unduly pessimistic?

Bayefsky’s criticisms should be borne in mind when progressing through this chapter, not least as

you re-evaluate whether or not they are justified.

A programme of practical solutions in the push towards universal ratification was suggested by

Professor Philip Alston, the United Nations appointed Independent Expert who prepared a series of

reports on rendering the United Nations process more efficient.

United Nations support of universalism

Professor Philip Alston, UN Independent Expert. Final report on enhancing the long-term

effectiveness of the United Nations human rights treaty system, UN Doc. E/CN.4/1997/74

23. The emphasis upon promoting universal ratification is an essential one in order to strengthen

and consolidate the universalist foundations of the United Nations human rights regime. Despite

the fears of some critics, the quest for universal ratification need not have any negative consequences for the treaty regime as a whole. One such critic, Professor Bayefsky, has argued that the

‘implementation crisis’ which she perceives to exist is due in part to ‘a deliberate emphasis on

ratification’ which for many States, has ‘become an end in itself, a means to easy accolades

for empty gestures’. In her view, ratification is often ‘purchased at a price, namely, diminished



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