International perspective to human rights- International Law PDF

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These lecture notes provide an overview to international perspective to human rights and forms a part of International Law....

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INTERNATIONAL LAW HUMAN RIGHTS

Modern international outsets of human rights can be outlined to the foundation of the United Nations in the aftermath of World War II. The rights espoused in the UN charter would be codified in the UN General Assembly resolution named as International Bill of Human Rights, composing the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The family is the fundamental and natural unit of society and requires the full protection of the state. Human rights law upholds the positive right of all peoples to marry and found a family. It upholds the ideal of equal and consenting marriage and tries to guard against exploitations which undermine these principles. It is not prescriptive as to the types of families and marriages that are acceptable, distinguishing tacitly that there are many different forms of social arrangements around the world. The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in 1948. The UDHR urges member nations to promote a number of human, civil, economic and social rights asserting these rights as part of the "foundation of freedom, justice and peace in the world." The declaration was the first international legal effort to limit the behavior of states and press upon them duties to their citizens following the model of the rights-duty duality. International matrimonial law is an area of private international law (or conflict of laws in the United States). The area specifically deals with relations between spouses and former spouses on issues of marriage, divorce and child custody. In the last 50 years, the Member States of the Hague Conference on Private International Law have endeavored to harmonize domestic matrimonial laws and judicial rulings across international borders in these areas. The right to family life is the right of all individuals to have their established family life respected, and to have and maintain family relationships. This right is recognized in a variety of international human rights instruments, including Article 16 of the Universal Declaration of Human Rights, Article 23 of the International Covenant on Civil and Political Rights , and Article 8 of the European Convention on Human Rights. Whereas recognition of the inherent dignity 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.

Preamble to the Universal Declaration of Human Rights, 1948 Characteristics of the Right to Family Life A. The Right to Family Life—A Fundamental Right The right to family life is a fundamental right of the highest degree and has attained broad and comprehensive protection in international law. A first expression of the recognition of the right to family life as a basic human right, and of the protection of the family unit, may be found in Articles 12, 16, and 25 of the Universal Declaration of Human Rights, which state as follows: Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence. Everyone has the right to the protection of the law against such interference.

Article 16 1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 25 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services . . . . 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Moreover, the right to family life is enshrined in a significant number of international and regional conventions that emphasize the centrality and social importance of the family unit, and which list the right to family life as a fundamental right. First and foremost, the right is enunciated both in the Covenant on Social Rights and in the Covenant on Civil Rights. Article 10(1) of the Covenant on Social Rights states that: The States Parties to the present Covenant recognize that the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. Similar protection is granted to the institution of the family under Articles 17 and 23 of the Covenant on Civil Rights. These provisions state, respectively, as follows: Article 17 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. Article 23 1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2. The right of men and women of marriageable age to marry and to find a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children

Article 23 of the International Covenant on Civil and Political Rights 1966:

(a) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. (b) The right of men and women of marriageable age to marry and to find a family shall be recognized. (c) No marriage shall be entered into without the free and full consent of the intending spouses. (d) States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children. Case Law Winata v Australia This case was based on applications made by Hendrick Winata and So Lan Li under Articles 17, 23(1) and 24(1) of the ICCPR alleging that the removal of Winata and Li from Australia, where their adolescent son held residency, would amount a violation of their fundamental human rights, specifically that of their right to family. Both Winata and Li were living illegally in Australia, and were facing deportation by the State. It was claimed that through either the separation of Winata and Li from their son through deportation, or the forced removal of the whole family unit to Indonesia, there would be interference with the fundamental family unit that was not compatible with the State's protection obligations to the right to family under the ICCPR. Australia argued that the application was inadmissible and incompatible with the provisions of the ICCPR, emphasizing the ICCPR provides protection “only [to] a right to family life, not a right to family life in a particular country.” The majority view of the Human Rights Committee found in favor of Winata and Li, holding that while individuals may not have the right to decide where they reside, States are obligated to protect all of the rights within the ICCPR. The Committee recognized the importance of State's control over immigration within their territory, however this discretion is “not unlimited”. It was held that deportation of Winata and Li would constitute a violation of Article 17 and 23(1) ICCPR. Prior to this case, international practice indicated that it was for States to determine who could reside in their territory, even where an infringement of Article 23 would arguably occur. The Committee’s decision in this instance challenges this assumption, indicating that an individual's right to family life receives precedence over States’ ability to control residence within their territory.

Article 10 of the International Covenant on Economic, Social and Cultural Rights 1966: The States Parties to the present Covenant recognize that: The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. The European Convention on Human Rights: The ECHR states that all men and women, who have reached the age at which they can legally marry, have the right to get married and to start a family.

The European Convention on Human Rights (ECHR) sets out a list of fundamental rights and freedoms which are believed to be common to all people. The ECHR lists these rights in numbered' Articles'. Article 8 of the ECHR concerns an individual’s right to respect for their private and family life. Case Law EM (Lebanon) (FC) v. Secretary of State for the Home Department This case involved a second appeal against a decision of the Secretary of State for the Home Department that EM and her son (AF) must return to Lebanon, the appellant’s country of origin. EM had fled from Lebanon with AF following a violent marriage and resulting divorce. Under Lebanese Shari’a law, the physical custody of the child must be transferred to the father or a male family member once the child reaches seven years of age. AF was over the age of seven, and so would have all custodial rights transferred to his paternal father upon return to Lebanon. EM argued that the forced removal to Lebanon by the United Kingdom would result in a direct breach of both her and AF’s right to family life under Article 8 of the ECHR. The Court held that removal of the appellant and her son to Lebanon would violate both EM and AF’s Article 8 rights, and granted the appeal. This decision is significant, representing the first successful Article 8 claim in a foreign case. European Social Charter The European Social Charter (the Charter) is the counterpart to the European Convention on Human Rights, providing for fundamental social and economic rights under a Council of Europe treaty. The Charter also provides for the right to family under Article 16, reaffirming European parties commitment to the right: With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married, and other appropriate mean

Article 12: Right to marriage Men and women of marriageable age shall have the right to marry and to found a family, according to national laws governing the exercise of this right. Marriage is Civil Right Recognized federal civil rights law in the United States is grounded in the U.S. Constitution as interpreted by the Supreme Court. By this standard, marriage has long been established as a civil right. The operative constitutional text is section 1 of the Fourteenth Amendment, which was ratified in 1868. The relevant passages read as follows: No State shall not make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The U.S. Supreme Court first applied this standard to marriage in Loving v. Virginia (1967), Where it struck down a Virginia law banning interracial marriage. As Chief Justice Earl Warren wrote for the majority: The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. Marriage is a Constitutional Right One of our most fundamental rights as citizens of the United States of America is the right to marry the person of our choice. Courts in this country have determined that the right to marry is, in some cases, more fundamental than the right to vote. The right to marry cannot be denied: (a) on the basis of an individual’s race; (b) to those who have shown themselves to be delinquent on child welfare payments; or (c)to inmates. The American Convention on Human Rights is a regional human rights treaty that similarly provides for the right to family life under Article 17(1): The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. Specific protection for children within the family context may be found in the Convention on the Rights of the Child. Likewise, the Convention on the Elimination of All Forms of Discrimination Against Women includes provisions that grant comprehensive protection to women in the context of the family. Among regional conventions, comprehensive protection for the family institution may be found in the European Convention for Protection of Human Rights and Fundamental Freedoms. UK LAWS Article 12 of UK constitution guarantees the right to marry to men and women of marriageable age and the right to found a family, according to UK laws. The Courts have held that the right to marry includes a right for transsexuals to marry. Gay marriage is now lawful under the Marriage (Same Sex Couples) Act 2013. Case study In 2004 laws were introduced to prevent so-called ‘sham marriages’ among people who were subject to immigration control (except for those marrying in the Anglican church). However, the laws applied to all non-UK or European nationals subject to immigration control, regardless of whether there was any suggestion that the marriage was not genuine. The House of Lords held that this blanket policy – applying as it did irrespective of questions regarding the genuineness of a proposed marriage – was discriminatory and a disproportionate interference with the right to marry. As Baroness Hale said, marriage still has deep significance for many people, and denying to members of minority groups “the right to establish formal, legal relationships with the partners of their choice is one way of setting them apart from society, denying that they are ‘free and equal in dignity and rights.

Within the United Kingdom the right to family life is a ‘qualified right’ under the Human Rights Act 1998. This qualification allows a public authority to interfere with the right to family life if it is in protection of others' rights or in the interest of the wider community. On 9 July 2012 new Immigration Rules came into effect within the United Kingdom, affording greater weight to the States' ability to control entry and residence as compared to the individual right to family life. There is a presumption that decisions made under the Immigration Rules will breach Article 8 of the ECHR only in “genuinely exceptional circumstances”. This presumption significantly limits individual’s ability to successfully challenge decisions they believe have breached their fundamental right to family life. EU Charter of Fundamental Rights Article 9 - Right to marry and right to found a family. The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. Japanese constitution Article 24 of the Japanese constitution states: "Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis." Previous to the current constitution, a couple in Japan could marry only if their respective head of household (the father, or in the absence of a father, the eldest son) consented to the union. As a result, arranged marriage was the dominant form of marriage. Those couples who could not obtain permission had to elope and stay in common law marriage. The purpose of Article 23 of the new constitution was to assert freedom of consenting adults to marry, and to explicitly establish the equality of both sexes in marriage. The wording defined marriage as a union of husband and wife. Some legal scholars argue that because the intent behind the article was not in reference to same-sex marriage, it need not apply in legalizing same-sex marriage. However, conservative lawmakers as well as legal scholars who take a literal approach to constitutional interpretation argue that such argument is a stretch. In February 2015, the National Diet debated whether same-sex marriage should be recognized under Japan's Constitution. Kota Matsuda, a member of the House of Councillors, said: We need to eliminate lifestyle difficulties for same-sex couples. A prerequisite to achieving this goal is dealing with Article 24 of the Constitution. Japanese Prime Minister Shinzō Abe expressed his opinion on the issue: Extending the institution of marriage to same-sex couples was not anticipated under the current Constitution. It is an issue that concerns the very core of family values and, I believe, one that requires extremely careful consideration. Africa The protection of the family and vulnerable groups is specified under the African Charter on Human and People’s Rights in Article 18, stating: 1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.

2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community. The African Charter on Human and Peoples’ Rights was adopted by the Organisation of African Unity in 1981 and entered into force on 21 October 1986. CHINEESE CONSTITUTION Article 49 Marriage, the family and mother and child are protected by the state. Both husband and wife have the duty to practice family planning. Parents have the duty to rear and educate their children who are minors, and children who have come of age have the duty to support and assist their parents. Violation of the freedom of marriage is prohibited. Maltreatment of old people, women and children is prohibited. Basic Law for the Federal Republic of Germany Article 6 [Marriage – Family – Children] (1) Marriage and the family shall enjoy the special protection of the state. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. (3) Children may be separated from their families against the will of their parents or guardians only pursuant to a law, and only if the parents or guardians fail in their duties or the children are otherwise in danger of serious neglect. (4) Every mother shall be entitled to the protection and care of the community. (5) Children born outside of marriage shall be provided by legislation with the same opportunities for physical and mental development and for their position in society as are enjoyed by those born within marriage. Federal Constitution of the Swiss Confederati...