Modern Development of Human Rights: UDHR and Beyond

Modern Protection of International Human Rights

In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. The Declaration enumerates civil,
political, economic, social, and cultural rights, but the Declaration contains no provisions for monitoring or enforcement.
(*hereinafter UDHR)

UDHR
the Declaration was explicitly adopted for the purpose of defining the meaning of the words "fundamental freedoms"
and "human rights" appearing in the United Nations Charter, which is binding on all member states.it is a powerful tool
in applying diplomatic and moral pressure to governments that violate any of its articles. UDHR is not a treaty but a
declaration, hence a non-binding legal instrument. Declaration contains no provisions for monitoring or enforcement.

The 1968 United Nations International Conference on Human Rights advised that the Declaration "constitutes an
obligation for the members of the international community" to all persons. UDHR influenced constitutions of many
States which became independent due to decolonization. For example, Msian Fed Con. (right to life and liberty of a
person, equality, prohibition of slavery, freedom of speech, assembly and association, right to education and rights to
property(but may be subjected to some limitations))

UDHR creates general principles of law. It embraces customary international law rules without the Declaration having the
status in relation to the implementation and enforcement. UDHR works as a litmus test in which it helps us identify if the
laws were acceptable in future.

UDHR is a declaration but not a treaty because some States feared that more emphasis was given to individual rights
over community rights, or civil and political rights over economic and social rights. Fear of the possibility of impinging on
religious laws that have been practiced in some States for a long time.

Blatant interference in domestic or internal affairs

Organizations Promoting UDHR
 International Federation for Human Rights
The International Federation for Human Rights (FIDH) is nonpartisan, nonsectarian, and independent of any government,
and its core mandate is to promote respect for all the rights set out in the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural
Rights

 Amnesty International
In 1988, director Stephen R. Johnson and 41 international animators, musicians, and producers created a 20-minute
video for Amnesty International to celebrate the 40th Anniversary of the Universal Declaration. The video was to bring to
life the Declaration's 30 articles. Amnesty International celebrated Human Rights Day and the 60th anniversary of the
Universal Declaration all over the world by organizing the "Fire Up!" event.

 Unitarian Universalist Service Committee

The Unitarian Universalist Service Committee (UUSC) is a non-profit, nonsectarian organization whose work around the
world is guided by the values of Unitarian Universalism and the Universal Declaration of Human Rights. It works to
provide disaster relief and promote human rights and social justice around the world.

Divisions and ‘Cold War’ led to preparation of two separate convenants:

ICCPR – International Covenant on Civil and Political Rights
ICESCR – International Covenant on Economic, Social and Cultural Rights

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  ICCPR AND ICESCR
In 1966, the General Assembly adopted: The Covenant on Civil and Political Rights (and its First Optional Protocol) and
The Covenant on Economic, Social and Cultural Rights which, together with the UDHR, are now known as the
International Bill of Human Rights

 ICESCR
ICESCR was opened for signature and ratification in 1966. The ICESCR is part of the Declaration on the Granting of
Independence to Colonial Countries and Peoples, International Bill of Human Rights, along with the Universal Declaration
of Human Rights (UDHR) and the International Covenant on Civil and Political Rights(ICCPR), including the
latter's first and second Optional Protocols. The Declaration on the Granting of Independence to Colonial Countries and
Peoples was a milestone in the process of decolonization. Also known as the United Nations Resolution 1514, it was
adopted by the UN General Assembly on December 14, 1960.

First Optional Protocol ICCPR- an international treaty establishing an individual complaint mechanism for the Second
Optional Protocol ICCPR- aiming at the abolition of the death penalty- created on 15 December 1989 and entered into
force on 11 July 1991. As of April 2014

Features-ICESCR
a preamble and thirty-one articles. Part 1 (Article 1) - recognises the right of all peoples to self-determination, including
the right to "freely determine their political status”, pursue their economic, social, and cultural goals, and manage and
dispose of their own resources. It recognises a negative right of a people not to be deprived of its means of subsistence
and imposes an obligation on those parties still responsible for non-self-governing and trust territories (colonies) to
encourage and respect their self-determination.

Part 2 (Articles 2–5) establishes the principle of "progressive realisation". It also requires the rights be recognised
"without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status". The rights can only be limited by law, in a manner compatible with the nature of
the rights, and only for the purpose of "promoting the general welfare in a democratic society". (Balik negara Cina)
(bumiputera/malay can enter uni with lower grades in their results)

Part 3 (Articles 6–15) lists the rights themselves. These include: rights to work, under "just and favourable
conditions", with the right to form and join trade unions (Articles 6, 7, and 8); social security, including  social
insurance (Article 9); family life, including paid parental leave and the protection of children (Article 10); an adequate
standard of living, including adequate food, clothing and housing, and the "continuous improvement of living conditions"
(Article 11); health, specifically "the highest attainable standard of physical and mental health" (Article 12); education,
including free universal primary education, generally available secondary education and equally accessible higher
education. This should be directed to "the full development of the human personality and the sense of its dignity” and
enable all persons to participate effectively in society (Articles 13 and 14); participation in cultural life (Article 15). Many
of these rights include specific actions which must be undertaken to realise them.

Part 4 (Articles 16–25) governs reporting and monitoring of the Covenant and the steps taken by the parties to
implement it. It also allows the monitoring body – originally the United Nations Economic and Social Council – now the
Committee on Economic, Social and Cultural Rights to make general recommendations to the UN General Assembly on
appropriate measures to realise the rights (Article 21)

Part 5 (Articles 26–31) governs ratification, entry into force, and amendment of the Covenant. The Optional Protocol to
the International Covenant on Economic, Social and Cultural Rights is an international treaty establishing complaint and
inquiry mechanisms for the International Covenant on Economic, Social and Cultural Rights.

Malaysia’s status?
 Malaysia- not signed nor ratified ICESCR
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 ICCPR
It is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and in force from 23
March 1976. It commits its parties to respect the civil and political rights of individuals, including the right to
life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair
trial. The ICCPR is monitored by the United Nations Human Rights Committee which reviews regular reports of States
parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant
and then whenever the Committee requests (usually every four years). The Committee normally meets in Geneva and
normally holds three sessions per year. The Covenant follows the structure of the UDHR and ICESCR, with a preamble
and fifty-three articles, divided into six parts.

Part 2 (Articles 2 – 5) obliges parties to legislate where necessary to give effect to the rights recognised in the Covenant,
and to provide an effective legal remedy for any violation of those rights. It also requires the rights be recognised
"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," and to ensure that they are enjoyed equally by women. The rights can only be
limited "in time of public emergency which threatens the life of the nation," and even then no derogation is permitted
from the rights to life, freedom from torture and slavery, the freedom from retrospective law, the right to personhood,
and freedom of thought, conscience and religion.

Part 3 (Articles 6 – 27) lists the rights themselves. These include rights to physical integrity, in the form of the right to life
and freedom from torture and slavery (Articles 6, 7, and 8); liberty and security of the person, in the form of freedom
from arbitrary arrest and detention and the right to habeas corpus (Articles 9 – 11); procedural fairness in law, in the
form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition as a person before
the law (Articles 14, 15, and 16); individual liberty, in the form of the freedoms of movement, thought, conscience and
religion, speech, association and assembly, family rights, the right to a nationality, and the right to privacy (Articles 12,
13, 17 – 24); prohibition of any propaganda for war as well as any advocacy of national or religious hatred that
constitutes incitement to discrimination, hostility or violence by law (Article 20); political participation, including the right
to the right to vote (Article 25); Non-discrimination, minority rights and equality before the law (Articles 26 and 27).
Many of these rights include specific actions which must be undertaken to realise them.

Part 5 (Articles 46 – 47) clarifies that the Covenant shall not be interpreted as interfering with the operation of the
United Nations or "the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and
resources".

Part 6 (Articles 48 – 53) governs ratification, entry into force, and amendment of the Covenant.

Differences between UDHR AND the twin covenants

There are some rights which proclaimed in the UDHR but not incorporated in ICCPR and ICESCR. The rights are-
Right to Asylum under Article-14.
2. Right to own property under Article17
3. Right to social security under Article 22
4. Right to proper social order in Article 28.

At the same there have some rights which are contained in the two covenants but does not exists in UDHR. The rights
are-
1.   Right to self-determination under Article1 
2.   Right of a detained person under Article 10(1) in ICCPR
3.   Right to free from imprisonment due to violation of contractual obligations under Article 11.
4.   Right to special protection of children as under Article 24 of ICCPR.
5.   Right of Minority under Article 27 of ICCPR.

Differences between ICCPR and ICESCR

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ICCPR:
When the Universal Declaration of Human Rights was adopted, the United Nations General Assembly also wanted a
covenant on human rights and systems to put it into effect. But, long debates at the start of the Cold War made writing
the one instrument difficult, so the planned covenant was split into two. Although the two documents had to contain as
many similar parts as possible.

ICCPR represents and protects the human rights of first generation. (First-generation? - “civil-political” rights deal with
liberty and participation in political life. They are strongly individualistic and negatively constructed to protect the
individual from the state.). It explains human rights pertaining to cultural and political rights (i.e. not to torture, not to
show discrimination, etc.).

Civil and political rights get more attention than economic, social and cultural rights. ICESCR rights are sometimes
thought to be “second-class rights” because they’re unenforceable, can’t be reviewed in court and can only be fulfilled
“progressively” over time, taking account of available resources.

The rights incorporated in ICCPR are negative in character just like the provisions in the penal code. The Penal Code
defines and narrates different offences, which are prohibited. In the similar way ICCPR defines and narrates certain things
not supposed to be done by the States. The judicial remedies are provided to the aggrieved persons, in cases their civil
and political rights are violated by the State. Civil and political rights establish immediate binding obligation (Article-2(1)
of the ICCPR provides that each state party undertakes to respect and ensure the rights recognized in ICCPR.)

There’s also considered to be an East-West divide, with Eastern countries more inclined to economic, social and cultural
rights, and the Western countries more inclined to civil and political rights. An example of this is the fact that China is a
party to ICESCR, but not the ICCPR, while the United States is a party to the ICCPR, but not ICESCR.

ICESCR represents and protects the human rights of ‘second generation’. (second generation? - “socio-economic” human
rights guarantee equal conditions and treatment. They are not rights directly possessed by individuals but constitute
positive duties upon the government to respect and fulfill them.). It explains human rights pertaining to economic, social,
and cultural rights (e.g. to provide adequate housing, trade unions social security, medical facilities, etc.).

The rights incorporated in ICESCR are positive in character. It shows the ways to the State to implement certain
programmes to uplift the living standards of human beings and to protect the human culture. There is no scope of
judicial remedies. The Court cannot force the State to implement the provisions of part-IV. The economic, social and
cultural rights are of progressive nature. (Article 2 of the ICESCR provides that the state party will take steps to use its
maximum available resources gradually to realize the rights.)

It’s also thought that ICESCR rights require high levels of financial and human investment, while civil and political rights
just need states not to interfere. But civil and political rights need a functioning court system for their enforcement,
which means investment. Likewise, economic, social and cultural rights, like trade union freedoms, just  need the state
not to meddle.

But, like the United Nations General Assembly said both types of rights are “interconnected and interdependent”. For
example, the ICCPR right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment is
much the same as the ICESCR right not to be hungry.

Joining of ICCPR AND ICESCR

Signing on the ICESCR

No loss, and significant gains to be had. First, Malaysia in many instances recognises and fulfills ― to varying degrees ―
the major ESC rights. Our laws on education, healthcare, social security, employee’s rights, etc, are in place although
implementation is not at its best.
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Signing on to the ICESCR would hopefully promote improvements in the areas where we critically fall short, through
regulatory and legislative reforms, better enforcement, and international assistance and cooperation.

According to the World Bank, Malaysia was one of 13 countries identified by the Commission on Growth and
Development in its 2008 Growth Report to have recorded average growth of more than 7 per cent per year for 25 years
or more. 

Economic growth was inclusive, as Malaysia succeeded in nearly eradicating poverty: the share of households living
below the national poverty line ― US$8.50 (RM36.63) per day in 2012, fell from over 50 per cent in the 1960s to less
than 1 per cent currently.

If we are said to be meeting many of the ICESCR’s goals, why should we not step up on the international arena and be
seen to be proud of what we have achieved or are achieving?   

Second, the ICESCR does not require immediate and full achievement of these rights.  Each signatory undertakes to
“take steps… to the maximum of its available resources, with a view to achieving progressively the full realisation of the
rights.

The ICESCR also allows signatories to make limitations to those rights insofar as it may be “compatible with the nature of
these rights and solely for the purpose of promoting the general welfare in a democratic society.” The understanding is
that state parties should be free to allocate their resources but in accordance with the spirit of the ICESCR and its
principles.

Third, we are likely to sign on to the Trans-Pacific Partnership Agreement next year, and as we push towards developed
country status with Vision 2020, it would be good for the government to give more assurances to the people that our
socio-economic rights would be protected and advanced in tandem.

Rapid economic development and free market forces have led to greater income inequality and persistent poverty in
many countries, deepening social divisions and political crises. We now know that sustained government intervention is
required to counteract these economic forces.

Further, as a key player in Asean and a moderate Muslim-majority country, Malaysia can provide a powerful example for
others in this area. Yet, out of the 18 international human rights treaties, we have only acceded to six.  

Signing on ICCPR

On World Press Freedom Day 2017, the Human Rights Commission of Malaysia (Suhakam) urges the government to
accede without further delay to the International Covenant on Civil and Political Rights (ICCPR).

Article 19 of the ICCPR provides that everyone has the right “to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his
choice”. Suhakam reiterates that the exercise of the right to freedom of opinion and freedom of expression are
indispensable conditions for the full development of a person; and constitutes the foundation stone for every
democratic society.

Suhakam has always regarded the media as an essential instrument that has the potential to contribute immensely to
the promotion and protection of human rights. The media does not only act as a conveyor of information but it also,
either intentionally or indirectly, shapes public perception and opinion.

While the freedom of the press is indeed essential to the nature of a truly free State; particularly that no restraints shall
be placed upon publications, the media must exercise this right with responsibility as well as courage and sense of
purpose.

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Suhakam believes that on one hand, the media can serve as an effective apparatus for raising human rights awareness,
and for highlighting infringements and violations of human rights facing the people. Such role by the media is
instrumental in ensuring that human rights concerns are brought to the attention of the relevant authorities as well as
the public at large, with a view to prompting action and measures to address the issues.

On the other hand, the media can also have the effect of instilling or reinforcing sentiments and values that run counter
to human rights principles and standards, making it much more difficult to advance respect for human rights.

While Suhakam recognises the important role the media plays in keeping public discourse alive, the media should
continuously seek to improve their reporting standards and endeavour to promote human rights. In this regard,
adherence to a code of ethics is paramount paramount in ensuring professionalism in media reporting. A free,
responsible and unbought media is essential in any society to ensure freedom of opinion and expression.

Malaysia to be a party of International Human Rights Conventions

International Treaties Malaysia is party to three of the international conventions, which are the Convention on the
Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against women (CEDAW) and also
the Convention on the Rights of Persons with Disabilities (CRPD).

With regard to CEDAW, the Malaysian government submitted its combined initial and second report to the Committee
on the Elimination of Discrimination against Women in 2006. In May 2006, the Committee released recommendations
for the Malaysian government based on the government’s report and the appearance of its representatives before the
Committee. These recommendations are in the CEDAW Committee’s Concluding Comments.

Malaysia’s third and fourth periodic reports to the CEDAW Committee were due in August 2004 and August 2008
respectively. Upon the delay of the third report, the CEDAW Committee requested that a combined third and fourth
report be submitted in 2008. However, the Malaysian government has not submitted its combined third and fourth
report to the CEDAW Committee.

Follow-up measures by the Government with regard to international human rights mechanisms include the
establishment of a ‘Technical Committee on International Instruments: CEDAW, CRC and CRPD’, in which the
Commission attended a meeting held on 18 August 2014. The objectives of the meeting were: i. To inform and ascertain
views from government related agencies on acceptance of recommendations made by non-governmental organisations
(NGOs) to withdraw the remaining reservations to CEDAW, CRC and CRPD; and ii. To obtain views on the feasibility of
Malaysia acceding to the Optional Protocol on CEDAW, CRC and CRPD.

One of the resulting decisions of the Meeting was to establish specific subcommittees to review in detail the proposed
withdrawal of Malaysia’s reservations to CEDAW, CRC and CRPD, respectively.