Violation of the Universal Declaration of Human Rights

This essay attempts to give an overview, briefly, about human rights and how these rights have been violated in the given scenario. Particular context will be given to women and children. The reader’s attention will be drawn to the human rights instruments which are in place to provide remedies for the violation of these human rights. A commentary will be provided at the end.

According to the facts, Afghanan was ruled by a revolutionary party, and during such period, it is alleged that there were serious allegations of human rights infringements, including violations of children and women’s rights by government. The facts further mention that there was an exercise of patriarchy and benevolent dictatorship by the government. The ruling party, as per the facts, which has overthrown the leader of the Afghanan country and the leader of the rebellious group believes in Zepharia code which discriminates women and children and also certain racial groups in society.

In its preamble, the Universal Declaration of Human Rights (UDHR) provides:

“Whereas recognition of the inherent 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”.

Article 1 of the UDHR provides that all human beings are born free and equal in dignity and rights. Furthermore, Article 2 states that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as, inter alia, race, sec or birth.

Drawing from the above, it can be established that the rights of children and women in particular have been violated.

Moreover, on the second part of the question, it has been held that one of the objectives of international human rights law is to converge all states towards a core of human rights. States are under an obligation to protect their subjects from the unjustifiable interference of their rights by non-state actors. Article 2 of the International Convention on Civil and Political Rights (ICCPR) provides that each State Party to the Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Pertaining to the given facts, the government of Afghanan bears the responsibility of the violation of these rights because the leader of the country fled during the overthrow of the government by the military group, instead of fulfilling its obligations in terms of international law. In Delgado v Colombia, the Human Rights Commission (HRC) held that the ICCPR entailed a State’s duty to ensure everyone within its jurisdiction the right to personal security.

First generation rights

The facts mention that the human rights of the children and women were suspended and there was also an unjustified detention of the People for Change’s, which is a political party, leaders. Citizens were prohibited, without justification, from walking freely outside their residences and legitimate members of parliament were replaced with politically appointed ones. Those citizens who defied the overthrowing party and its leader were tortured and were publicly executed without a trial. There was even a ban of foreign media activities.

There were many violations of human rights involved with regards to the above. This is inclusive of, but not limited to, the right to equality; the right to participate in governance either directly or through elected representatives; the right to freedom of movement; the right to freedom from torture and inhumane treatment; the right to freedom of expression; and the right to a fair trial. All of the aforementioned rights are provided for in the ICCPR.

Second generation rights

It may be inferred that the right to work and the right to education of women and children were infringed from the fact that their rights were suspended. Additionally, they were not allowed to walk out of their residences.

Third generation rights

Since these rights are collective by their very nature, the right which has been infringed in this case is the right to peace since, according to the facts, there has been an unrest in Afghanan due to the hostile takeover in its governance.

Human rights instruments

The turning point for the effective promotion and observance of human rights was the Charter of the United Nations. This was followed by the subsequent adoption of the UDHR, the ICCPR and the International Covenant on Social and Economic Rights (ICSER). The UDHR does not have binding force, however, it does have persuasive weight and some of its provisions have acquired international customary law status. The two covenants (the ICCPR and the ICSER) were adopted in order to capture the spirit of the UDHR. There were further treaties that were also adopted in addition to the above. These related to certain vulnerable groups which were the 1979 Convention on the Elimination of All Forms of Discrimination Against Women and the 1989 Convention on the Rights of the Child.

Municipal level

Section 233 of the Constitution provides that when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. Section 231 states that an international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, subject to subsection. Subsection provides that a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.

The facts state that the Constitution of Afghanan is exactly the same as that of the South African Constitution, meaning that the same provisions will apply mutatis mutandis to the given scenario and Afghanan is a member of the United Nations, African Union and other regional treaties. After ratifying the Statute of the International Criminal Court, South Africa adopted the Implementation of the Rome Statute of the International Criminal Court Act, in which the international crimes, such as crimes against humanity were codified into legislation. Likewise, the obligation to prosecute acts of torture, as provided for in the treaty Convention against Torture, was legislated in the Prevention and Combating of Torture of Persons Act. Section 39 (b) of the Constitution mandates the courts to consider international law when interpreting the Bill of Rights. In Glenister v President of the Republic of South Africa, the court observed that international law was the measure of the State’s conduct.

Concerning enforcement, there is no express procedure contained in the South African Constitution nor in legislation giving guide to enforcement procedures of binding decisions of international courts. However, Article 32 of the Protocol on the Southern African Development Community states that the law and the rules of civil procedure for the registration and enforcement of foreign judgements in force in the territory of the State in which judgement is to be enforced shall take all measures necessary to ensure execution of the decisions of the Tribunal.

Regional level

Under the African regional human rights system, there are institutions and processes to facilitate the realisation of human rights. They include the African Commission, African Human Rights Court and the African Children’s Rights Committee.

Article 45 of the African Charter provides that the functions of the Commission shall be to ensure the protection of human and people’s rights under conditions laid down by the Charter. The African Human Rights Court was established to complement and improve upon the weakness of the African Commission’s protective mandate. The court has both contentious and advisory jurisdiction. Its contentious jurisdiction comes into play when it decides a dispute between two or more parties-for instance, when a subject alleges that a state party has infringed his or her rights. Decisions in these cases have a binding nature. The advisory jurisdiction comes into play when the court is required to interpret a treaty outside the ambit of a dispute between parties. The African Children’s Rights Committee can receive individual and inter-state communications, it is mandated to examine state reports, and to undertake fact-finding decisions. At the regional level, some instruments including the African Charter guarantee the right to participate in public decision-making.

Global level

Initially, the UN human rights treaties provided for interstate communications. This procedure allows one state party to complain to the treaty-making body about the violation of the treaty by another state party. The CESCR may undertake enquiries on grave and systematic violations of any of the economic, social and cultural rights.

Article 25 of the ICCPR provides that citizens shall have the right without unreasonable hindrance to participate in the conduct of public affairs and in accessing public service in a given State. The Human Rights Committee has interpreted the “conduct of public affairs” to be inclusive of the exercise of political power and especially exercising legislative, executive and administrative powers, expanding to the development and implementation of public policy at the municipal, regional and international levels.

Ultimately, the question that was put as to whether Afghanan has violated its municipal, regional as well as international obligations has to be answered in the affirmative, in light of the aforementioned reasons.

29 April 2022
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