Contributed by Alexis Bautista, Chan Chee Khoon, Muhamad Izwan Ishak, Musarrat Perveen, Nasrikah Paidin, Naweed Harooni, and Patricia Nunis; photos by Satha Selvan Subramaniam, Senior Administrative Assistant, Bar Council Malaysia
The last session of the first day of the Diplomacy Training Programme (“DTP”) on Human Rights and Migrant Workers: Introduction to Key Standards and Mechanisms was presented by Patrick Earle, Executive Director of DTP. He provided an introduction to human rights and standards, an overview of the concept of human rights and the mechanisms established by the United Nations (“UN”) to hold governments to the standards adopted.
In considering human rights as expressions of human dignity, the corollary of human rights are human wrongs reflecting that there pre–exists a set of values which individuals and nations have agreed are inherent to the individual. These are to be found in all value systems and religious traditions. These legal standards and agreements are evident to some extent in most if not every nation’s constitution. The modern expression of human rights in international laws developed with the establishment of the UN. The UN was formed in 1945 after Europe had experienced two World Wars and the world was determined that such calamity would not happen again. The UN Charter sought to establish a framework that would support this. Human rights are one of three pillars of the UN, linked with the other two — development and peace/security. Currently, the UN comprises 193 nations. Recognition of human rights in standards reflects recognition of the wrongs that have occurred — they assert common values and express them in legal standards.
The development of the international legal framework on Human Rights began in 1948 with the adoption of the Universal Declaration of Human Rights, followed by the development of these rights into the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). Together these documents (with their optional protocols) make up the International Bill of Human Rights. Over subsequent decades a total of nine core international human rights covenants and conventions have been agreed by governments. Numerous declarations such as the Human Rights Defenders, Rights to Development, Principles and Guidelines, Resolutions and General Comments have supplemented these treaties — responding to specific issues and vulnerable groups. Conventions are treaties that are legally binding on ratifying member states.
Patrick highlighted the Optional Protocols to the Conventions, namely the ICCPR, ICESCR, Convention on Child Rights (“CRC”), Convention on the Elimination of all Forms of Discrimination Against Women (“CEDAW”) as the treaties providing for individual complaints to be made to the UN human rights treaty bodies.
It was emphasised that the principle of non–discrimination is central to human rights along with principles of equality, universality, accountability, interdependence and inalienability. The principle of non–discrimination has particular relevance to migrant workers.
Individuals are rights holders and governments are the principal (but not only) duty bearers in relation to these rights. While each human rights treaty imposes particular obligations, there are three general obligations that human rights treaty impose on governments (states) — to respect rights (in laws/policy, etc), to protect rights (from abuses by others/regulation/complaints mechanisms) and to fulfil human rights (to increase/redirect resources/set policies, etc).
Examples of the obligations of the states with respect to migrants were presented as follows:
(1) Respect: Not to arbitrarily detain migrants;
(2) Protect: Prosecute abusive employers through criminal sanctions if necessary; and
(3) Fulfil: Include irregular migrants in national plans for action and housing.
The UN Human Rights System has developed along two lines — drawing their authority/mandate from the UN Charter and from UN human rights treaties. Monitoring and accountability of human rights treaties are supervised by human rights treaty bodies through periodical reporting and individual complaints mechanisms. Treaty bodies are made up of independent experts, appointed for fixed terms. There are opportunities for civil society organisations to engage in the UN human rights treaty reporting system — to draw attention to specific issues and to influence the recommendations that treaty bodies make to governments.
Other human rights bodies and the mechanisms draw their authority from the UN Charter. The high level political body for human rights in the UN is the UN Human Rights Council, comprising the representatives of 47 UN member governments.
The UN Human Rights Council convenes and conducts the Universal Periodic Review (“UPR”) of every government’s human rights record every 4.5 years. This is a peer–to–peer review amongst governments on their national human rights record and commitments. Again there are opportunities for civil society organisations to use this process to bring attention to issues of concern, and to influence the recommendations made to governments.
The other main UN charter based human rights mechanisms are the UN’s human rights special procedures. These are individuals (special rapporteurs/independent experts) or groups of individuals (working groups). Each has a specific mandate (thematic or country focused). They are flexible, can respond to urgent human rights situations, have global coverage, and can direct communications to governments (and employers).
As a conclusion and summary, Patrick Earle presented the metaphor of a burger for human rights advocacy for civil society — where the upper bun was the UN Mechanisms and Procedures, centre being the government, and advocacy from civil society organisations being the bottom bun. He explained how civil society organisations could use the international human rights standards mechanisms nationally to exert pressure and how the UN could hold a government accountable to the human rights standards at the international level.
The framework of human rights standards and mechanisms provided by the UN can be utilised as tools by civil society to engage governments, and to hold them accountable to their commitments. Civil society organisations’ advocacy can guide and influence recommendations to governments by UN human rights mechanisms and this can help to bring about desired changes. UN and civil society working together may exert the necessary pressure to encourage governments to implement the agreed human rights.
* The above session was one of the sessions in the programme on Capacity Building Programme on Advocating for the Rights of Migrant Workers jointly organised by the following organisations: Diplomacy Training Program (“DTP”) in partnership with Migrant Forum in Asia (“MFA”), the Bar Council Migrants, Refugees and Immigration Affairs Committee (“MRIAC”), North South Initiative (“NSI”), and Migration Working Group (“MWG”). This programme, which runs from March to December 2017, contains five modules that spans over a course of four days each. The first module was held from 31 Mar to 3 Apr 2017.