J’Moul Francis BA Law, LLM, (EU Law, Competition Law, and International Law); Commonwealth Scholar, Legal Commentary Blogger at www.francisobiter.org
Last week on Thursday 10th December 2020, the world marked ‘Human Rights Day’ under the theme ‘Recover Better- Stand Up for Human Rights’. Given how problematic this year has been and the need to swiftly recover and build dynamic resilience, it is evident that the theme implores us, individually and collectively, to put human rights at the nucleus of our strategies from now on as we hope to end the tumultuous challenges unleashed by the pandemic.
The underlying theory here is that the recognition, guarantee, and enforcement of human rights could lead to the reduction and even elimination of inequalities, discrimination, and exclusion.
Throughout human history, there have always been a perennial struggle for more rights and liberties to improve the lives and livelihood of all. International law historically offered limited protection to combatants and civilians during war, while national law had a piece-meal approach to individual rights, however, this reality changed after two world wars through the efforts of the League of Nations and later the United Nations.
Even for us as Antiguans and Barbudans, our post-colonial struggles and post-independence achievements are part of the global story towards the development of human rights. Yet, there is still much more to be done to improve our socio-economic and human development.
With this year’s theme in mind, what are human rights? What are the human rights challenges we face? How can we strive towards placing human rights at the centre of our development as people?
In sum, human rights are freedoms, entitlements, and privileges that are inherent to every human being regardless of race, sex, nationality, ethnicity, religion, or any other status. These include the right to life; the prohibition of slavery, discrimination, forced labour, and torture; right to a fair trial; the right to personal liberty and security; freedom of thought, conscience, and religion; freedom of expression; freedom of assembly and association; right to own property; and right to education and adequate living standards. Moreover, these rights must be applied without discrimination as they are universal and indivisible as they transcend social, economic, and political boundaries. Yet, some rights can be limited once they are prescribed by law, proportional and legitimate.
I must also note that human rights developed from the evolution of historical lessons, enlightened norms and general legal principles, international legal instruments, and institutions operating on the international, regional, and domestic planes. The result of this development is enshrined in the UN Charter which reaffirms ‘a faith in fundamental human rights, in the dignity and worth of the human person’ and encourages the ‘universal respect and observance of human rights and fundamental freedoms’.
The Universal Declaration of Human Rights, in particular, brought the necessary protections into the scope of general principles of customary international law and placed an obligation on states to take effective steps in their respective jurisdictions. With a declaration not being sufficient, two UN-administered treaty regimes, i.e. The International Covenant on Civil and Political Rights (1966) and The International Covenant on Economic, Social, and Cultural Rights (1966) created a comprehensive code for human rights and fundamental freedoms and also an international legal framework to hold each other to account. These covenants co-exist and complement other human rights systems such as those governed by the European Convention on Human Rights, the American Convention on Rights, the African Charter on Human and Peoples’ Rights, and others. Although there is no formal human rights system within CARICOM’s legal framework, there is the Kingston Declaration (1990), the Charter of Civil Society (1997) and general principles within the Revised Treaty of Chaguaramas in which the Caribbean Court of Justice engages with and employs interpretative tools to bring about protections at the Community-level.
Domestically, Chapter Two of our Constitution provides a legal guarantee for the protection and enforcement of human rights within Antigua and Barbuda. However, even though the requisite legal protections are posited, more could be done to enhance the every-day lives of those who see interferences with their rights. As such, it is necessary to highlight some of those reoccurring human right issues.
Human rights become relevant for us in the context of the tragic homicides resulting from abuse and domestic violence especially against young women because this issue treads upon one’s right to life, freedom from torture, inhumane, and degrading treatment; respect for private and family life; and the prohibition of discrimination. Moreover, the jurisprudence from around the world trends towards the use of human rights, in addition to criminal law, as a legal tool for holding authorities accountable for failing to provide protective measures and effective deterrence.
Another discussed issue is the suppression of the freedom of expression to enforce political ‘loyalty’ or silencing opinions that may damage a particular promoted narrative. It is important to remember that everyone is entitled to freedom of thought and conscience as it creates a ‘marketplace of ideas’ which is inherent to any democracy to safeguard against totalitarianism. Also, the freedom of expression, which as one court puts it, ‘constitutes one of the essential foundations in a democratic society’ and one of the ‘basic conditions for the progress and development of every man’.
The exploitation of workers is another issue, particularly in the tourism sector where workers are sometimes overworked, underpaid, subjected to racism and discriminatory behaviour from tourists and others with impunity. Sometimes, one might think whether the ‘tourism dollar’ is even mightier than basic regard for the human rights of workers and the public. Of relevance here is the prohibition of discrimination, whether direct or indirect, which is based on the principle of equality and a positive obligation to combat discrimination, whether it arises from actions or omissions. There is no justification whatsoever for discrimination; however, there is a grey area where the rights of non-nationals might be limited by statutory and treaty arrangements. The rights within this grey area must be addressed as a collective in terms of how we, as a society, wish to treat such individuals and empower them through equal and equitable measures.
(Editor’s Note: Part 2 of J’Moul Francis’ article on Human Rights will be published in the next edition of PointeXpress newspaper)