Differences between: Legal, Moral and Customary Rights Details

1. Distinguish between

a) Legal, Moral and Customary Rights.

A legal right is one that is enforceable by law. Any citizen and can discover these rights. They can validly be argued in court and generally take preference to other rights.

Moral rights are those that particular groups believe are right and just. They are generally derived from religion and reflect the values and attitudes of the group that holds them. Usually the moral rights held by the majority of the population are closely reflected in their legal rights. Moral rights vary depending on the group, for example, some groups believe men should have the right to take multiple wives. If there were a minority group who held such a belief in Australia, it would be illegal to practice that moral right because it is not a legal right.

Customary rights are borne out of age and habit. They are customs established long ago that have been practiced for a long time and are therefore established as ‘the norm’. In some cases customary rights are enforceable by law – but not by definition. An example of a customary right is on a footpath, it is the custom to walk on the left hand side so that is an unwritten but unenforceable customary law.

b) Various Types of Individual and Collective Human Rights.

Civil and political rights concern political comment and public opinion. The point of these rights is to stop oppression and allow freedom of expression. Civil and political rights detail things like anonymity, freedom of expression and peaceful protest. They protect the citizen’s rights to speak out against her country and in some cases are back up by legal rights.

Social and cultural rights concern groups’ right to practice cultural traditions and services. This ranges from the simple right to be in a group to the right to practice rituals or be officially recognised by the state.

A collective human right is of self-determination. This is the right to make decisions about one’s economic, social and cultural development. The International Court of Justice defines it as “The need to pay regard to the freely expressed will of peoples.” It is a more politically correct way of stating the right to a democracy. This right concerns (but is not limited to); people’s right to vote in state elections, decide their occupation, their language and their religion. It is not the same as social/cultural rights in that it is primarily concerned with voting for and choosing one’s future.

2. Outline the major international declarations/agreements conceived with the aim of protecting human rights.

The Universal Declaration of Human Rights is a list of thirty articles concerning civil, cultural, economic, political and social rights, adopted and proclaimed in 1948 to be displayed and made available in every country of the world. It mentions freedoms of; speech, property, political persuasion, religion, occupation, movement and government. It disallows; slavery, the loss of personal liberties, arbitrary detainment, violence, forced marriage and arbitrary interference. This declaration is widely respected and has set a standard that is yet to be reached. Unfortunately it is still soft law i.e. “not directly enforceable in courts and tribunals but that nonetheless ha[s] an impact on international relations and, ultimately, international law.” The covenants below were established because it is soft law.

In 1976 the International Covenant on Economic, Social and Cultural Rights was entered into force. The articles are of a very similar nature and idea to those of the Universal Declaration but the Covenant is designed to be capable of legal enforcement and therefore requires more credibility and realism. Because of this extra difficulty it took two years to draft. There was added difficulty in its production because of the precise and in-depth nature of the Universale Declaration. As a Danish delegate argued “[i]t would clearly be undesirable merely to transpose the relevant sections from the Universal Declaration to the draft Covenant, for to do so would weaken the authority of the former, and lead to unwarranted conclusions about the significance of those of its provisions which were not reiterated in the latter.”

Convention for the Protection of Human Rights and Fundamental Freedoms is a European treaty to secure the ‘universal and effective recognition and observance’ of the Universal Declaration’s rights. It was signed in Rome in 1950 and was designed to put into legal effect the statement of standards in the Universal Declaration.

The Geneva Convention or the UN Convention on the Condition of the Wounded and Sick in Armed Forces (I). A famous convention – known for its use in high-profile crimes against humanity cases. It focuses on the rights of individuals, combatants and non-combatants during wartime. The convention goes into a huge amount of detail on what the government and military can and cannot do. It defines war crimes and condemns the ill-treatment of anyone not directly under attack.

3. Describe the limitations of those outlined above in protecting human rights internationally.

To make a convention, declaration or agreement enforceable it must be signed by every country it applies to (i.e. every country in the world). This is obviously not always possible, which presents a problem. A law is less than useful if it is not enforceable.

The reason a country may refuse to sign such a convention, declaration or agreement may have no connection to the agreement itself. Maybe due to some international squabble a country may refuse to sign a document just because another country has. Also many developing nations do not get the chance.

Another limitation is that of ratification. This is especially important concerning a super-power or even a non-minor country. A country can sign an agreement, like the U.S.A. signing the UDHR and its government can simply not ratify it. For example the U.S.’s congress has certainly failed to ratify the UDHR in its treatment of racial minorities and the poor.

The third limitation is the difficulty of maintaining a legal system that protects human rights. To sustain such a system requires constant reviews of legal processes and abuses. This can be costly to a nation, and if it detects faults in its system, a nation may not want to repair them because that would be admitting its mistake.

To be effective and fair, a legal system maintaining human rights must have a system in which individuals who feel their human rights are being breached can protest and have laws changed or repealed. This presents another problem, because those with political motives can easily exploit such a system.

4. “The protection of human rights has been enhanced by the work of non-governmental organisations.”

Discuss this statement explaining how these organisations try to protect human rights.

There are a few NGO’s whose sole purpose is the protection of human rights. One of these is Human Rights Watch (another is Amnesty International). HRW conducts detailed investigations into worldwide instances of human rights abuses, reports on these abuses to embarrass governments in the world’s eye. They meet with governments and make recommendations to help the people. HRW has been successful in countless missions, exposing governments. This is inherently useful to the cause of protection of human rights because it brings human rights problems into the open where other groups can act on them as well. Through HRW’s actions, the UN has been able to punish multiple criminals of humanity and increase freedoms for oppressed people HRW itself has exposed torturous practices and reported war criminals.

The work HRW and organisations like it do does not go unnoticed in the international community. Through legal, ethical and practical means, they have made a very large difference by revealing the truth and acting on it.

5. In light of your research into non-government organisations, evaluate the success of one of these organisations in an area of human rights that has been of concern in recent years.

The use of land mines is considered a war crime because they are an offensively defensive measure. More importantly, they remain decades after a conflict and kill thousands of innocent civilians every year. Human Rights Watch is a co-founder of the International Campaign to Ban Landmines (ICBL) and serves on its Coordinating Committee. Because of the work of this committee, governments have destroyed millions of land mines, both in the ground and stockpiled. In December 1997, one hundred and fifty countries signed the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction. One hundred and forty-one countries have ratified the treaty (Australia one of them).

This difference is very great, as every landmine can save a life. However, the largest users of anti-personnel mines have not signed the treaty. The US, Russia, China, Iran, Libya, North Korea, Burma, Syria, and Cuba have all failed to sign the treaty which makes the treaty a lot less effective. This is because these countries are capable of (and probably will) producing enough anti-personnel mines to make up the difference. In a conflict, the treaty makes even less of a impact when you consider the fact that the countries who have not signed the treaty will have a tactical advantage and exploit that by using greater numbers of mines. Alternatively, in the worst-case scenario, the countries that did ratify the treaty would realise their disadvantage and produce more anti-personnel mines.

Therefore the difference made by the HRW is noticeable now and will have a significant impact on contemporary civilian landmine casualties, but will become less pronounced in the case of world conflict.