Human rights defined

Human rights defined

(Sec, 1)Human rights are those moral rights which are owed to each man or woman by every man or woman solely by reason of being human, (Hobbes,119-122). They are said to be those rights every individual becomes entitled to not by any other reason other than they are human. There are various features that attach to human rights and distinguish them from any other rights. The following prerequisites distinguish human rights from other moral rights: universality, individuality, paramountcy, practicability and enforceability, (Henkin,101-119).

            While universality connotes the applicability of these rights to all human beings on equal measures regardless of their sex, age, social class, national origin or ethnic affiliation individuality on the other hand denotes entitlement of benefits deemed essential for individual wellbeing, dignity, fulfillment and that reflects a common sense of justice, fairness and decency. On the other hand, paramountcy promulgates that no one can be deprived of human rights without a grave found justice. This implies therefore that human rights cannot be transferred, forfeited or waived. Lastly, practicability and enforceability imply that rights established must be effective and that are capable of being enforced and protected for the benefits of the individuals concerned. This calls for state parties that are signatories to international conventions to ratify the same in their constitutional and local legislation. With the foregoing in mind, this paper seeks to examine the relation between the emerging group based rights from the traditional fundamental individual rights established in the universal declaration on human rights and the covenant on economic, social and political rights.

The emerging principles on the convention on the rights of the child

            The convention on the rights of the child was established in 2002 with aim of ensuring that the millennium development goals are achieved in light of the rights of the child. This is because the current international observation determines that children had become victims of exploitation and abuse, victims and orphans of HIV/AIDS, were denied good quality education and health care and finally became susceptible to political, economic, cultural, religious and environmental discrimination. A world fit for children was paramount so as to foster respect for the rights of the child by both the government and others.

What constitutes an ideal world fit for the child?

            A world fit for the child is one in which the best interest of the child is given priority. What constitutes the best interest is relative; as it differs from one society to another but the underlying benchmark is that the child gets the best possible start in life with access to quality basic education being paramount. Article3(1) of the convention affirms this position by establishing that any action concerning a child whether undertaken by a public or social institution shall consider the best interest of a child in decision making. To second this provision, article 5 establishes parental rights, duties and responsibilities and states that they will be subject to family or community custom. Subsequently, a child should not be separated against his/he parents except when competent authorities determine, (Hobbs.J.112-130). It also makes provisions that seek to combat the illicit transfer of children abroad.

The place of the convention on the rights of the child in place of the universal declaration and the covenant on social, economic and political rights

            The universal declaration and subsequent covenants that developed established the first and second generational rights. These rights were individualistic as they mainly promulgated individual liberty like the: rights to life and property, etc. The main purpose of the doctrine of fundamental rights as established in the universal declaration was to overthrow absolutism and propagate the pursuit of happiness by all individuals. It thus became acceptable that man had independent of the government, a right to enjoy all the conditions that the various conventions and declarations provided. This justifies, the general phraseology that is adopted by the two documents. Article 1 of the UDH establishes that every human being has an inherent right to life.

            Similarly, article 6 of the convention on the rights of the child, establishes the inherent right of the child to life. It is however worth noting that this right is not independent of the state as sub article 2 provides the responsibility of states to ensure that this right is effected. While the UDH makes general provisions with regards to the right to privacy and self determination, articles 13-16 of the convention on the rights of the child similarly acknowledge the right to elf determination. However, responsibility of the state parties and guardians of the children is recognized as being of paramount in realizing a child’s self determination. It can therefore be concluded that while the universal declaration recognizes the enjoyment of fundamental rights without he inclusion of state agencies and other persons, the convention on the rights of the child adopts a more inclusive and participatory framework for the enforcement of these rights.

Enforcement of the convention and the rights of a child

            The enforcement of this convention is highly dependant on how willing state parties are likely to cooperate in ratifying the provisions in the convention. So far 192 states are regarded as signatories to this convention but as to what extent they have localized the provisions of this convention, is subject to question. It is however imperative to note that various states have ratified this convention, both in law and in practice. This has been depicted through the introduction of the Children’s Act that brings the rights home. Consideration of the child’s best interest in determination of cases in court also forms a foundational basis of common law that would form precedence now and in the future.

            The introduction of juvenile courts that are able to listen to cases that relate to disputes among children and other parties ensures speedy determination of cases that is geared towards the furtherance of the child’s best interest. The introduction of welfare institutions has played a major role in ensuring that the protection of the child is enforced by ensuring that parental responsibility is afforded to persons who are of sound mind and depict willingness to look after the child. Lastly the introduction of juvenile custody for children who have committed crime enables their protection against abuse and ensurance of furthering their education.

(Sec, 2{5})Definition of international law

            The Permanent Court of International Justice defines international law as the body of rules which nations recognize as binding upon one another in their mutual relations, (Henkin, F,92-107). It further elaborated that international law governs relations between independent states and that the rules binding these states emanate from their own free will as expressed in conventions and/or treaties or by usage which form generally accepted practices as expressing principles of law. In modern day definition, international law refers to rules and norms which regulate the conduct of states and other entities which at any time are recognized as being endowed with international personality-and the United Nations is no exception.

            It is worth noting that though there were some elements of international law in the ancient period going as far back in Egypt during Pharaoh’s era, the ancient Greeks and the Roman Empire, modern international law can be traced to the medieval period culminating in the 1648 peace of Westphalia which ended thirty years of war in Europe and gave rise to the nation state concept. It is to this concept-which gave birth to the United Nations- that this paper seeks to establish its role and mandate in dealing with conflicts in sovereign states. Upon the signing of the peace of Westphalia, the conference of Vienna was established which laid out the legal mandate of the UN which saw its design to be an international organization for maintenance of peace after war. It can thus be affirmed from the foregoing that indeed the United Nations has a role to play through military intervention in Darfur.

Does Sudan have an international personality?

            The possession of international personality means that an entity is subject to international law and is capable of possessing international rights and duties and has the capacity to maintain its rights by bringing international claims. For a state to be able to possess international rights, it must have certain characteristics which include;

Permanent population;A defined territory;Government; andCapacity to enter into legal relations with other states.The republic of Sudan depicts the above mentioned prerequisites of statehood and thus acquires the status of being recognized in the international scene and within the municipal legal system of any recognizing state in the international realm. Upon affirming this recognition, Sudan has a responsibility in international law in the event of non-observance of the obligations upheld by international legal systems. This implies therefore that it incurs liabilities for breach of treaty obligations, injury to the Sudanese nationals and/or any aliens and their property there to.

What then is this international responsibility?

            Any government that is de-jure or de-facto has responsibility on the international plain and will incur international liability for actions or omissions which result in international injury. Liability may be civil or criminal and for purposes of this discussion, a look into the criminal liability is imperative since the Darfur conflict relates to this.

The ILC defines international crime as an international wrongful act which results from the breach by a state of an international obligation so essential for the protection of fundamental rights of the international community that its breach results into harm across the board, (ILC draft; Art 19{4}). It is worth noting that contemporary international law also recognizes the concept of erga-omnes; obligation owned by every state to the international community that relates to outlawing acts of aggression and genocide and from rules concerning the basic rights of the human person that relate to discrimination, (Henkin, F.59-72). By their nature, erga-omnes obligations are of concern to all states and because of their importance, all states have a legal interest in their protection: UN thus has a big role.

The role of UN upon breach of international responsibility by a state,

            On the basis of the protective security principle, the UN may exercise military jurisdiction in respect to offences which although occurring in a sovereign state and committed by nationals are regarded as injurious to the state security, (Malcolm,61-78).This remains ill defined and it is open to abuse if security and vital interests are defined arbitrarily and given broad interpretation. War crimes ad genocides are now widely accepted as being susceptible to universal jurisdiction even though no state has exercised jurisdiction exclusively, on such a case. The charter of Nuremberg military tribunal particularly article 6 which clearly lays out crimes against peace, violation of the laws and customs of war, crimes against humanity and international customs invokes the use of force which translates to the involvement of military upon violation of such rights. Similarly, the Convention on the Prevention and Punishment of the Crime of Genocide (pg 194-218) promulgates for the invocation of force where adverse abuse of human rights is depicted. Under this convention, a trial can be conducted by an international tribunal such as that established in Hague to try war criminals such as those in the Bosnian conflict, Arusha for perpetrators of the genocide in Rwanda in 1994. The foregoing clearly affirms the mandate of the UN in the Darfur conflict.

Work Cited

Henkin, F. The Age of Rights, London:SAGE. (1949).

Hobbs.J. Theory and Practice of Human Rights, Maxwell Inc.Manchester:Times.(1972).

Malcolm, A. International Law,London:SAGE.(1949).

Convention on the Prevention and Punishment of the Crime of Genocide (1948).