Differences between UDHR, Iccpr and Icescr PDF

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The Universal Declaration of Human Rights (UDHR) is a historic document that is adopted by the United Nations General Assembly in 1948. It consists of 30 articles affirming an individual's rights which have been elaborated in various international treaties and other laws. The purpose of adopting UDHR is to define the words “fundamental freedoms” and “human rights”, which is binding on all member states. It is not a treaty but a declaration in which does not have legal binding effect. It is advised that the Declaration constitutes an obligation for the members of the international community to all persons in 1968. Moreover, it has influenced constitution of many States including Malaysia Federal Constitution, in which Malaysia became independent due to decolonisation. In 1966, the United Nation’s General Assembly adopted two separate covenants, The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which both intend to provide a legally binding codification of the rights listed in the Declaration. Both covenants are initially drafted in 1954 as a single document. However, they are opened for signature and ratification separately, in 1966, and came into force in 1976, in virtue of Art.49 of ICCPR and Art.27 of ICESCR respectively, during the Cold War. By comparing the UDHR and the twin covenants, there are some existing differences from various aspects. Firstly, there are some rights provided under UDHR but are not incorporated to ICCPR and ICESCR, and vice versa. Under UDHR, there are right to asylum under Art.14, right to own property under Art.17, right to social security under Art.22, right to proper social order under Art.28, in which are not stated in ICCPR and ICESCR. Under the two covenants, there are right to self-determination under Art.1 of ICESCR, right of a detainee under Art.10(1) of ICCPR, right to free from imprisonment due to violation of contractual obligations under Art.11 of ICESCR, right to special protection of children under Art.24 of ICCPR, right of minority under Art.27 of ICCPR, in which are not proclaimed in UDHR. From this, it could be seen that there are still loopholes in both UDHR and twin covenants as some of the rights are not being guaranteed. Thus, there are still rooms of improvement on both UDHR and twin covenants as to cover up rights are yet to be guaranteed. Secondly, UDHR and twin covenants are different in terms of their binding effects. UDHR is merely a Declaration in which not necessary binding to the member’s States. It has listed out various types of human rights but some countries refuse to follow the listed rights guaranteed under UDHR as those rights might contradict with their local laws. Some countries have their own legislations which need not necessarily referring to the international human rights. In contrast, the twin covenants have the legal binding effect since the Articles under both ICCPR and ICESCR have clearly provided power of ratification which mean have make it necessarily binding. From this, it is clearly shown that there are various universal human rights in UDHR but unfortunately, do not make them compulsory to be followed. Thirdly, the state parties implementing UDHR could not enjoy the privilege to seek for advice from the Human Right Committee (HRC) as those for twin covenants. For UDHR, the HRC does not have any direct obligations to aid UDHR when is found any difficulties in

implementing the Declaration, unless that member State seek for the international aid and services. In contrast, HRC is responsible for all the matters relating to the implementation of the twin covenants as both covenants have vividly stated under the Articles. From this, we could see the state parties implementing twin covenants may be benefitted from HRC when facing any difficulties, but not those for UDHR. Fourthly, if an individual’s right under UDHR is infringed, HRC will not entertain any complaint since is not within of its responsibilities as under the twin covenants. However, HRC will only entertain a complaint made under ICCPR or ICESCR but with conditions that the rights of the person is infringed in the state parties which have recognized ICCPR and ICESCR. Aids will be provided if necessary to the victim as this has stated in both covenants. After comparing both UDHR and the twin covenants, it is found that there are some differences between the twin covenants too. Firstly, both ICCPR and ICESCR represent different generations of human rights. For ICCPR, it represents and protects the first generation of human rights which are civil rights and political rights, or in other terms, the blue rights. Civil and political rights could be known as the fundamental rights. The civil rights concern the rights belonging to a person by reason of citizenship such as right to marry, right to freedom from discrimination and etc. And, the political rights enable the individual to participate in running or influencing the administration of government such as right to vote under Art.3 of ICCPR, right to free elections and etc. In contrast, for ICESCR, it represents and protects the second generation of human rights which are socio-economic rights. It aims to provide equal treatment and protection for those who are suffering from hunger. Also, it tends to provide a better living environment such as working place, food, and etc. They are not rights directly possessed by the individuals but constitute positive duties upon the government to respect and fulfil them. Secondly, both ICCPR and ICESCR are different in terms of the right’s coverage. For ICCPR, it focuses on granting the freedom to the individuals to take part in any political events in which the public authorities could abuse their power over them. For instance, Part 3 of ICCPR has protected the political rights of an individual such as right to vote under Art.25, right to life under Art.6, and etc. For ICESCR, it aims to protect the socio-economic rights of the individuals as to prevent the citizens from suffering. For instance, the basic necessities of the citizens are protected such as right to health under Art.12, right to basic needs for living under Art.11, and etc. Thirdly, the right incorporated in ICCPR are negative in nature similarly with the provision in the penal code. Negative rights are granted to us, but in the interim, these rights could not be abused over the others. For instance, the State has provided us the freedom of speech, but it could not prevent the person from doing it. One of the examples is Art.22 of ICCPR stating that no restriction could be done to restrict right for association. In contrast, for ICESCR, the rights incorporated are positive in nature. It is obligated to respect the right of the people and shows the ways how the State implement certain programmes to uplift the

living standards of human beings and to protect the human culture. For instance, Art.12 of ICESCR stated that all individuals shall enjoy the standard of health. Fourthly, judicial remedies are provided in ICCPR to the aggrieved persons when their civil and political rights are violated by the State. Art.2(3A) of ICCPR has clearly stated that the state parties should provide the judicial remedies when an individual’s civil and political rights are violated. Also, the judiciary should ensure that there is a proper remedy granted. In contrast, in ICESCR, there is no scope of judicial remedies as the Court cannot force the State to implement the provisions on it. It is because the rights infringed could not be measured in terms of remedies as ICESCR is drafted to uplift the living standards of human beings. Fifthly, there is an immediate binding obligation once a state party has signed and ratified ICCPR. This is because the State is obligated to recognize the civil and political rights and need not further steps to be taken. For instance, Art.2(1) of ICCPR provided that each state party undertakes to respect and ensure the rights recognized in ICCPR, in other words, to honour it. In contrast, the economic, social and cultural rights are of progressive nature as it involves the distribution of resources and steps to be taken to implement the rights of the people. For instance, Art.2 of ICESCR provided that the state party will take steps to use its maximum available resources gradually to realized the rights. From my opinion, I do think that Malaysia should ratify the ICCPR and ICESCR. Although there are rights under the Federal Constitution guarantee the fundamental liberties of an individual, but it is insufficient as there are numerous of legislations passed in the Parliament which has deprived the basic human right of an individual. For instance, Sedition Act 1948, SOSMA 2012, Internal Security Act 1960, and many others. To enhance the protection of human rights in Malaysia, ratifying ICCPR and ICESCR should be the best way as to uplift the standard of living for the lower income citizens and meantime, to enhance the recognition of civil rights of an individual. However, there might be some restrictions on ratifying the twin covenants. Malaysia is a multi-racial country which comprises of various ethnics and religions. It is not easy to convince every citizen to have the equal rights among each other since the Federal Constitution has provided special position to Malays and the native of Sabah and Sarawak under Art.153. But, it is not an excuse that the religion, race and culture are the barriers for the government of Malaysia not to ratify the twin covenants. If Malaysia has ratified the twin covenants, there are pros and cons on it. The international organization will question the fundamental rights of an individual under the Federal Constitution and may criticise that our laws passed inconsistent with the Federal Constitution, infringing the fundamental rights of an individual, could still be practised. Also, once Malaysia has ratified both covenants, Malaysia will be monitored by those human rights organization. To date, Malaysia government still prefer to govern on own laws instead of ratifying the international human rights treaties. Comparing Art.9 of ICCPR with Art.5 of FC, Art.9 of ICCPR stated that everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or

detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. This means that it does not recognized arbitrary arrest or detention. However, Art.5 of FC stated that no person shall be deprived of his life or personal liberty save in accordance with law. The phrase “save in accordance with law” clearly stated that the laws passed under Art.149 could be protected under this phrase in which include unlawful arrest or unlawful detention. If Malaysia recognized the ICCPR, it might contravene the existing legislations. For instance, in Tee Yam @ Koo Tee Yam v Timbalan Menteri, the rights of the accused under Art.5(3) of FC was deprived because he was charged under Internal Security Act 1960. Moreover, in PP v Yee Kim Seng, the law mentioned could mean any law passed by Parliament, irrespective of whether such laws are morally right or otherwise. Thus, if Malaysia government ratified ICCPR, ISA 1960 is a legislation passed under Art.149 which might contravene Art.9 of ICCPR since ICCPR imposes restriction on arbitrary arrest or detention. In short, it is highly recommended that Malaysia government should ratify the twin covenants since it might help to enhance the protection of human rights in Malaysia. In the interim, the government should consider thoroughly whether it is necessary to implement the international human rights treaties or to implement our own laws on enhancing the protection of human rights....