International Human Rights: Prescription and Enforcement

July 19th, 2009 at 02:55am Under Civil Rights Law

INTERNATIONAL HUMAN RIGHTS: PRESCRIPTION AND ENFORCEMENT

INTRODUCTION

Rights that belong to an individual as a consequence of being human. They refer to a wide continuum of values that are universal in character and in some sense equally claimed for all human beings. It is a common observation that human beings everywhere demand the realisation of diverse values to ensure their individual and collective well-being. It also is a common observation that these demands are often painfully frustrated by social as well as natural forces, resulting in exploitation, oppression, persecution, and other forms of deprivation. Deeply rooted in these twin observations are the beginnings of what today are called “human rights” and the legal processes, national and international, associated with them.

BEFORE WORLD WAR II

Ever since ancient times, but especially since the emergence of the modern state system, the Age of Discovery, and the accompanying spread of industrialization and European culture throughout the world, there has developed, for economic and other reasons, a unique set of customs and conventions relative to the humane treatment of foreigners. This evolving International Law of State Responsibility for Injuries to Aliens, as these customs and conventions came to be called, may be understood to represent the beginning of active concern for human rights on the international plane.

HUMAN RIGHTS IN THE UNITED NATIONS

The charter of the United Nations (1945) begins by reaffirming a “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” It states that the purposes of the United Nations are, among other things, “to develop friendly relations among nations based on respect for the principle of equal rights and self determination of people and to achieve international cooperation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.”

In addition, the commission, together with other UN organs such as the International Labour Organization (ILO), the UN Educational, Scientific and Cultural Organization (UNESCO), and the UN Commission on the status of women, drafts human rights standards and has prepared a number of international human rights instruments. Among the most important are the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (together with its Optional Protocol; 1976) and the International Covenant on Economic, Social and Cultural Rights (1976). Collectively known as the International Bill of Rights, these three instruments serve as touchstones for interpreting the human rights provisions of the UN Charter

Unlike the League of Nations, the United Nations incorporated the principle of respect for human rights into its Charter: Article 1, paragraph 3, affirms that “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” is one of the basic purposes of the organization. According to the charter, the General Assembly is to initiate studies and make recommendations and ECOSOC is to set up commissions to fulfil this purpose. Consequently, the commission on Human Rights, chaired by Eleanor Roosevelt, was created in 1946 to develop conventions on a wide range of issues, including an international bill of rights, civil liberties, the status of women (for which there is a separate commission), freedom of information, the protection of minorities, the prevention of discrimination on the grounds of race, sex, language or religion and any other human rights concerns.

CONCLUSION

Whatever the current attitudes and policies of governments, the reality of popular demands for human rights, including both greater economic justice and greater political freedom, is beyond debate. A deepening and widening concern for the promotion and protection of human rights, hastened by the self-determinist impulse of a post-colonial era, is now unmistakably woven into the fabric of contemporary world affairs. Substantially responsible for this progressive development has been, of course, the work of the United Nations, its allied agencies, and such regional organization. The implementation of international human rights law depends for the most part on the voluntary consent of nations and commitment to implement it in domestic laws for the protection as well as for the respect of human rights of the citizens of the nation.

Globalization, State and Human Rights

July 18th, 2009 at 02:54pm Under Civil Rights Law

Globalization, State and Human Rights

Now we are living in the technological and modern world. India has developed in all the fields. All of have equal rights in India. There are different types of peoples (Hindu, Muslim, Christian) are living in India. But they are called Indian Hindu, Indian Muslim and Indian Christian. Our constitution gives equal rights and duties for all Indians.

Globalization

Globalization, or globalisation is a term describing the increasing interdependence, integration and interaction among people, companies and corporations in disparate locations around the world. This umbrella term refers to a complex medley of economic, trade, social, technological, cultural and political relationships. The term has been used as early as 1944, however Theodore Levitt is usually credited with its first use in an economic context.

Definition of Globalization     

globalization is the worldwide process of homogenizing prices, products, wages, rates of interest and profits. Globalization relies on three forces for development: the role of human migration, international trade, and rapid movements of capital and integration of financial markets.

Aspects of Globalization

Globalization also has a number of different focuses and aspects which contribute in varying amounts to the effect of globalization across the globe:

·        Industrial globalization (alias trans nationalization) – rise and expansion of multinational enterprises

·        Financial globalization – emergence of worldwide financial markets and better access to external financing for corporate, national and subnational borrowers

·        Political globalization – spread of political sphere of interests to the regions and countries outside the neighborhood of political (state and non-state) actors

·        Informational globalization – increase in information flows between geographically remote locations

·        Cultural globalization – growth of cross-cultural contacts

·        Globalism – connection between cultures, nations, and people, it embodies cultural diffusion, the desire to consume and enjoy foreign products and ideas, adopt new technology and practices, and participate in a “world culture”. It is a universal, internationalist impulse that the world is connected.

·        Globalist – someone who is aware of world issues, enjoys new ideas, and considers themselves global citizens with an open mind to both criticize and agree with others.

Positive and Negative Effects of Globalization

            The term “globalization” is used to these collective changes as a process, or else as the cause of turbulent change. The distinct uses include:

·        Economically, socially and ecologically postitive: As an engine of commerce; one which brings an increased standard of living to Third World countries and further wealth to First World countries.

·        Economically, socially, politically, and ecologically negative: As an engine of “forporate imperialism”, one which tramples over human rights in developing societies, claims to bring prosperity, yet oftern simply amounts to plundering and profiteering. Negative effects include cultural assimilation via cultural imperialism, the export of artificail wants, and the destruction or inhibition of authentic local and global community, ecology and cultures.

Because of globalization it is easy to get any type of information with in seconds with the help  televison, internet and telephone, mobiles and fax. Through media the people knowing what is meant by human rights and what is their duties.

Human Rights

          Human rights are universal, indivisible and interdependent. Human rights are what make us human. When we speak of the right to life, or development, or to dissent and diversity, we are speaking of tolerance. Tolerance will ensure all freedoms. Without it, we can be certain of none.

Definition of Human Rights

           Human Rights is defined as “The basic rights and freedoms, to which all humans are entitled, often held to include the right to life and liberty, freedom of thought and expression, and equality before the law”.

            Human rights are founded on respect for the dignity and worth of each person. They are universal legal guarantees protecting individuals and groups against actions which interfere with fundamental freedoms and human dignity. Some of the most important characteristics of human rights are the following:

Types of Human Rights

There are so many types of Human Rights. Among them the important Human Rights are:

·        Political Rights

·        Cultural Rights

·        Economic Rights

·        Civil Rights

·        Social Rights

Human Rights and Education

          Our former President Dr. Sarvepalli Radha Krishnan said that the development of any nation is depend upon on its educational system and teachers. Teachers are national builders. Through education it is possible to change the world. Through education it is easy to motivate people. Through education only it is possible to learn what are our duties and rights? By establishing Human Rights departments the University Grants Commission has taking good steps to improve social development. Human Rights department conducting national seminars, workshops and conferences about Human Rights to motivate students and people in the society.

            Mahatma Gandhi said ‘all are equal, truth is God and God is truth’. With the help of private organizations Government of India and  State Government of Andhra Pradesh conducting so many programmes about human rights. There is a separate department for human rights at both state and central level. Every year December 10th is celebrated as International Human Rights Day.

Gender and Human Rights   

          Because of science and technology a lot of change has occurred in our daily life. Because of globalization it is possible to get any type of information with in seconds. Males and females are equal. There is no gender difference. Women are participating in all types of competitions and they are also succeeding. Number of females is also working in the law and police departments. There is a separate wing for female protection and welfare both at central and state level. Government gives equal rights to male and female.

          The National Commission for Women was set up as a statutory body in January 1992 under the National Commission for Women Act, 1990 (Act No. 20 of 1990) of Govt. of India, to review the Constitutional and legal safeguards for women; recommend remedial legislative measures, facilitate redressal of grievances and advise the Government on all policy matters affecting women.

The issue of the advancement of women’s rights has concerned the United Nations since the Organization’s founding. Yet the alarming global dimensions of female-targeted violence were not explicitly acknowledged by the international community until December 1993, when the United Nations General Assembly adopted the Declaration on the Elimination of Violence against Women.

In view of the alarming growth in the number of cases of violence against women throughout the world, the Commission on Human Rights adopted resolution 1994/45 of 4 March 1994, in which it decided to appoint the Special Reporter on violence against women, including its causes and consequences.

The Declaration on the Elimination of Violence against Women is the first international human rights instrument to exclusively and explicitly address the issue of violence against women. It affirms that the phenomenon violates, impairs or nullifies women’s human rights and their exercise of fundamental freedoms.

The Declaration provides a definition of gender-based abuse, calling it “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”.

The definition is amplified in article 2 of the Declaration, which identifies three areas in which violence commonly takes place:

·         Physical, sexual and psychological violence that occurs in the family, including battering; sexual abuse of female children in the household; dowry-related violence; marital rape; female genital mutilation and other traditional practices harmful to women; non-spousal violence; and violence related to exploitation;

·         Physical, sexual and psychological violence that occurs within the general community, including rape; sexual abuse; sexual harassment and intimidation at work, in educational institutions and elsewhere; trafficking in women; and forced prostitution;

·         Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.

Health and Human Rights

The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…” – World Health Organization.

WHO’s health and human rights work areas

            Health and human rights has been designated as a cross-cutting activity in WHO. Ethics, Trade, Human Rights and Law (ETH) within Sustainable Development and Healthy Environments (SDE) is the focal point within the Organization for human rights.

WHO is actively strengthening its role in providing technical, intellectual and political leadership in the field of health and human rights. The main objectives are to:

·         Strengthen WHO’s capacity to integrate a human rights-based approach in its work

·         Support governments to integrate a human rights-based approach in health development

·         Advance the right to health in international law and international development processes

Promoting and protecting health and respecting, protecting and fulfilling human rights are inextricably linked:

·         Violations or lack of attention to human rights can have serious health consequences (e.g. harmful traditional practices, slavery, torture and inhuman and degrading treatment, violence against women and children).

·         Health policies and programmes can promote or violate human rights in their design or implementation (e.g. freedom from discrimination, individual autonomy, rights to participation, privacy and information).

·         Vulnerability to ill-health can be reduced by taking steps to respect, protect and fulfill human rights (e.g. freedom from discrimination on account of race, sex and gender roles, and rights to health, food and nutrition, education, housing).

Conclusion

          Now we are living in the technological world. Due to globalization we get any type of information with in seconds with the help of television, telephone, mobile, internet and fax. Now both male and female have equal opportunities. The literacy percentage of women is also high. Civil Rights, Political Rights, Economic Rights, Health Rights and Cultural Rights are primary rights for all. Through education it is possible to motivate about human rights among the students. Universities are primary resource centres for development of human right studies.  With the help of seminars, workshops and conferences it is possible to share opinions of eminent persons in the society. Their suggestions are more valuable. Sri Venkateswara University is giving opportunity for students in the field of research in Human rights subject.

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The Tryanny of Experts (part Ii) – Experts and Civil Society

July 18th, 2009 at 02:54am Under Civil Rights Law

Experts are valuable, necessary contributors to our diverse and specialized society. But they cannot and should not be used to constitute or replace civil society. Indeed, the idea that anyone can claim to be a civil society expert is troubling. Civil society needs to be composed of a broad and diverse array of people throughout our societies. The internet offers us an opportunity to radically expand civil society, to debate all of the ideas and ideologies that shape the world, and to publish our speech around the world. We cannot abandon this field to experts, particularly not the much vaunted experts of civil society.

What is an expert? Experts and expertise are usually recognized through degrees earned, publications, experience and notoriety. There are good reasons for each of these things. But each of them can also be troubling. If degrees and titles make experts, then we need to carefully, critically examine the curriculum, the quality, and the ideological biases of our degree offering institutions. If publications make experts, we need to be aware of the obscurity or audience of journals and the public and private funding sources for research. Experience is very valuable; but there are plenty of rich political donors who have become consular officials without a shred of expertise. Notoriety is the most troublesome of the signs and symbols of expertise. Famous experts are often assumed to be better experts – false. Famous people and celebrities often mistake themselves for experts and think we ought to care what their expert pronouncements are – really false! In addition, experts tend to congregate together and pat each other on the backs by awarding one another fellowships, grants, distinctions and prizes. The Ivy League is the country club of expertise. The longer you hang around, the more your expertise will be burnished, brightened and expanded by all of your expert pals who slap you on the back. Finally, success begets success. People who gain degrees, earn awards, grants and fellowships will earn more of them. If you have not broken into this club by the first year of graduate school, you are unlikely to join it later. Civil Society Experts

A wide array of civil society experts are called in to analyze, explain and advocate prominent policy issues. From the scientist and the statistician, to the economist and the literature professor, to the historian and the constitutional lawyer, to the retired general and the retired ambassador; there is no shortage of experts to tell us how to think and act and vote in this complicated world of ours. Now we even have technocrats – those elite experts who blend modern technological training with state power to produce utopia in developing nations like China and Chile, well, eventually maybe. Then there are the experts who are not experts. Politicians and rich people, reporters and pollsters get tired of having to ask the experts or hire the experts or hunt around for someone with an advanced degree to advocate their position. So they step up to the mike themselves and are transformed into pundits. But in the end, none of these civil society experts provide us with civil society, or solutions to the problems we must work together to solve.

In the last generation we have seen the rise of a new expert – the technocrat. This is the ultimate melding of expertise with power. Now instead of simply elevating the powerful to power, we elevate (powerful) experts to power. Hey, I love meritocracy. But let us not confuse engineering, business or science degrees with the ability to lead nations and states. Scientists, engineers and CEOs are no better or worse than anyone else at voting with principle, debating important issues, or leading communities.

Perhaps most prominent among civil society experts are scientists and statisticians. Statistics is an important tool for making valid conclusions based on small data sets. But statistics is also undoubtedly the most commonly misused tool for lying in politics, the media and civil society. Next, scientists are specialized professionals who master specific tools and methods for investigating specific, narrow questions. They arrive at provisional, evidence-based answers to those questions. They do not claim to discern truth, morality, wisdom or sound public policy. If you hear a scientist claiming any of these latter findings, then you are listening to a person, who happens to hold a PhD, who also holds an opinion that may or may not be informed, effective, wise or true. Scientists and scientific research are also very expensive, and so they are paid by someone or other. The sources of funding do not determine scientific results, but they can reflect policy analysis and advocacy.

Social scientists form a lower tier of civil society experts. These can include – Political scientists: who analyze politics and may try to tell you how to vote. Economists: who analyze the economy and may try to predict the future (with predictable results). Sociologists: who may or may not perform experiments on small groups of people, then tell you what is wrong with your society and what to do about it. Historians: who analyze the past then complain that you do not know about your past and that everything you think you know about the past is wrong. Anthropologists: who used to study remote cultures and now study ritual in any culture and will tell you how your culture is oppressing some other culture. And so forth. In related fields, literary and cultural critics abound in English, foreign language, and comparative literature departments. Scholars of literature and the arts consider themselves the primary experts on culture, mediators of high culture, and interpreters of all discourse, rhetoric and cultural expression. As a historian myself, I love social scientists and scholars of the humanities. They are often passionately devoted to civil society. But that does not make them experts on civil society.

Lawyers, constitutional lawyers, and law school professors form another common array of civil society experts. These people are trained to think critically, to read and write carefully, and to debate with acumen and rhetorical skill. Lawyers are legal experts, and so if you have legal problems, they come highly recommended. But in other circumstances the society of lawyers tends to make communication incomprehensible, extremely expensive, combative, and fraught with hidden landmines (read any small print lately?). The central problem with trusting a lawyer-expert is that you can find a lawyer who will argue any position. They may believe passionately in it, or they may simply believe in the virtue of arguing for their client. In short, lawyers are useful people to pay to support your position; but that does not make them civil society experts.

Finally, former government officials and diplomats are ubiquitous civil society experts. Former domestic or foreign policy advisors-now pundits, former generals and military officers-now private contractors or military advisors, former ambassadors-now think tank fellows, former congressmen-now lobbyists, former spies-now novelists, former bureaucrats-now whistleblowers. These people may or may not have done effective service for their governments in the past. They may indeed have garnered very useful experience. But you may be sure that these particular civil society experts certainly cultivated well placed friends, political favors, and public notoriety. Listen to such experts with care. Experts who aren’t

There are a variety of people who by virtue of their professions or positions voice their opinions and ideas with great authority – as if they should be listen to, believed and followed. Many of these experts are not experts at all.

First, politicians – Politicians are experts of campaigns and fund raising. They may be statesmen or stateswomen; they may be wise or principled; they may be experienced or expert in some field; but they are not necessarily any of these things. Generally, politicians (as politicians) are not experts. Elected government officials deserve respect on two levels. First, they have succeeded at communicating their ideas, marshalling personal and monetary support, and managing a campaign in order to attract democratic votes. This is a real achievement; but it does not make them a civil society expert. Second, successful politicians eventually accrue a great deal of experience in the halls of government. This is a mixed blessing in that these politicians have opportunities to contribute toward functioning governance and to help solve societal problems; but they just as frequently take those opportunities to perform bad governance, to fail to solve societal problems, and occasionally to become part of the problem. Few politicians are experts.

Rich people and celebrities – wealth, power and notoriety do not grant expertise. Celebrities are almost never experts and should not speak any louder than anyone else. Rich people are able to buy and broadcast louder speech, but it does not make them experts. (And then there is the stray expert who somehow gains celebrity. Expert-cum-celebrities sometimes deserve their notoriety. Some of them have gained celebrity through a lifetime of achievement crowned with high awards – Nobel Prizes, medals, honors, etc. These people mark an exception to the celebrity rule, but their celebrity is usually fleeting. How many Nobel Prize winners for the sciences can you name?)

Reporters and pundits – the press has become increasingly openly ideological. As the media has opened its ideological content, journalists, columnists, news analysts and pundits of all kinds have proliferated and expressed their opinions in ever increasing volume. Reporters and pundits are often widely informed by virtue of their interviews and reportage; they are also often very good rhetoriticians. Personally, I believe that open, honest, ideological expression by the press is much better than veiled or even unconscious bias contained in misleading headlines or buried ledes. But being published in print or being broadcast on cable does not make anyone an expert.

Pollsters – the ultimate non-experts. These are people who are paid to ask a representative sample of regular people what they think, then to use statistics and their analytical powers to discern what everyone thinks. Well, polls can be interesting; they might even in some cases be beneficial to policy makers or civil society. But how any of this makes pollsters experts is beyond me. Nevertheless, pollsters have become increasingly common media experts who provide journalists and pundits with a window into the mind of the common woman on the street. Where is the expert here? Wizard of Oz, we see you behind your curtain!

Finally, there is the all too common spectacle of the expert parading in public who establishes their credibility by lambasting their field of expertise – the expert insider critic or expert whistleblower. Have you seen the accredited psychologist who attacks the field of therapy or psychoanalysis right before lathering their audiences with a thick layer of relationship advice? What of the conservative scholar (tenured) who bravely eviscerates academia from within? Or the anti-medicine MD? How about the government civil servant whose civil rights (and political views) were so trampled that he had to give hundreds of media interviews to show how reactionary the government is? We could multiply examples. These experts are remarkable because they attack the root of their expertise, while all the time utilizing the same expertise to convince us we ought to trust and listen to them. Most remarkably, the slickest exploiters of the expert-insider-critic shtick actually manage to make us trust them more than other experts, even as they savage the root of their expertise. Your Civil Society

One of the major critiques of new media on the Internet is that it accumulates much noise and little substance – too much riff raff and too few experts. Wouldn’t it be better to gather quietly at the feet of wise experts, rather than sift through all of the shouting, competing voices in new media echo chambers? Oh, I have heard elderly reporters wax lyrical as they recalled the days when everyone listened to Cronkite and read the New York Times, because back then we knew that was the way it was. This common, elite meme argues that we actually need fewer media broadcasters, fewer experts, fewer points of view, and a lot fewer people speaking. But to the contrary, our civil society needs more people to be more engaged, to speak more openly, to broadcast their voices further, to test and debate more ideas, new ideas.

If Ideology Forum is to succeed in helping strengthen our civil society, together we need to enable a very wide range of people to thoughtfully engage one another about as many ideas and principles and movements and causes as possible. Doubtless, some will criticize saying that regular people – common internet users – lack the expertise to make newsworthy, publishable, original contributions to the big issues and debates that shape our world. In other words, ‘Shut up and listen to the columnists, pundits, politicians, professors, scientists – the experts.’ But civil society must be broad and inclusive; it ought to be active and democratic; the Internet makes that increasingly possible; and Ideology Forum strives to make that civil society real. We need more people to throw off the tyranny of experts and speak.

International Humanitarian Law

July 17th, 2009 at 02:54pm Under Civil Rights Law

International Humanitarian Law

What is International Humanitarian law?

Fact sheet providing a summary description of the sources, content and field of application of international humanitarian law.

Where did International Humanitarian Law originate?

International humanitarian law is rooted in the rules of ancient civilizations and religions – warfare has always been subject to certain principles and customs.

Universal codification of international humanitarian law began in the nineteenth century. Since then, States have agreed to a series of practical rules, based on the bitter experience of modern warfare. These rules strike a careful balance between humanitarian concerns and the military requirements of States. As the international community has grown, an increasing number of States have contributed to the development of those rules. International humanitarian law forms today a universal body of law.

Historical Convergence between International Humanitarian Law and the Laws of War

For most of the 20th century, international humanitarian law or the “Law of Geneva” was distinguished from the “Law of The Hague” or the Laws of War proper. The Law of The Hague “determines the rights and duties of belligerents in the conduct of operations and limits the choice of means in doing harm.” In particular, it concerns itself with the definition of combatants, establishes rules relating to the means and methods of warfare, and examines the issue of military objectives.

At the same time, the Law of Geneva, which focuses mainly on human beings as victims of war, is directly inspired by the principle of humanity. It relates to those who are not participating in the conflict as well as military personnel hors de combat. It provides the legal basis for protection and humanitarian assistance carried out by impartial humanitarian organizations such as the International Committee of the Red Cross. This focus can be found in the Geneva Conventions.

With the adoption of the 1977 Protocols to the Geneva Conventions, the two strains of law began to converge. Already before, articles focusing on humanity could be found in the Law of The Hague (i.e. the protection of certain prisoners of war and civilians in occupied territories) articles which were later incorporated into the Law of Geneva in 1929 and 1949). However the Protocols of 1977 relating to the protection of victims in both international and internal conflict not only incorporated aspects of both the Law of The Hague and the Law of Geneva, but also important human rights aspects.

Where is International Humanitarian Law to be found?

A major part of international humanitarian law is contained in the four Geneva Conventions of 1949.Nearly every State in the world has agreed to be bound by them. The Conventions have been developed and supplemented by two further

agreements: the Additional Protocols of 1977 relating to the protection of victims of armed conflicts. Other agreements prohibit the use of certain weapons and military tactics and protect certain categories of people and goods.

These agreements include:

Ø the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols;

Ø the 1972 Biological Weapons Convention;

Ø the 1980 Conventional Weapons Convention and its five protocols;

Ø the 1993 Chemical Weapons Convention;

Ø the 1997 Ottawa Convention on anti-personnel mines;

Ø the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Many provisions international humanitarian law are now accepted as customary law – that is, a general rules by which all States are bound.

When does International Humanitarian Law apply?

International humanitarian law applies only to armed conflict; it does not cover internal tensions or disturbances such as isolated acts of violence. The law applies only once a conflict has begun, and then equally to all sides regardless of who started the fighting. International humanitarian law distinguishes between international and non-international armed conflict.

International armed conflicts are those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I.

Non-international armed conflicts are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II. It is important to differentiate between international humanitarian law and human rights law. While

some of their rules are similar, these two bodies of law have developed separately and are contained in different treaties. In particular, human rights law– unlike international humanitarian law –applies in peacetime, and many of its provisions may be suspended during an armed conflict.

What does International Humanitarian Law cover?

International humanitarian law covers two areas:

Ø the protection of those who are not, or no longer, taking part in fighting;

Ø restrictions on the means of warfare – in particular weapons– and the methods of warfare, such as military tactics.

Basic rules of International Humanitarian Law

What is “protection”?

International humanitarian law protects those who do not take part in the fighting, such as civilians and medical and religious military personnel. It also protects those who have ceased to take part, such as wounded, shipwrecked and sick combatants, and prisoners of war. These categories of person are entitled to respect for their lives and for their physical and mental integrity. They also enjoy legal guarantees. They must be protected and treated humanely in all circumstances, with no adverse distinction. More specifically: it is forbidden to kill or wound an enemy who surrenders or is unable to fight; the sick and wounded must be collected and cared for by the party in whose power they find themselves. Medical personnel, supplies, hospitals and ambulances must all be protected. There are also detailed rules governing the conditions of detention for prisoners of war and the way in which civilians are to be treated when under the authority of an enemy power. This includes the provision of food, shelter and medical care, and the right to exchange messages with their families. The law sets out a number of clearly recognizable symbols which can be used to identify protected people, places and objects. The main emblems are the Red Cross, the red crescent and the symbols identifying cultural property and civil defense facilities.

What restrictions are there on weapons and tactics?

International humanitarian law prohibits all means and methods of warfare which:

Ø fail to discriminate between those taking part in the fighting and those, such as civilians, who are not, the purpose being to protect the civilian population, individual civilians and civilian property;

Ø cause superfluous injury or unnecessary suffering;

Ø cause severe or long-term damage to the environment. Humanitarian law has therefore banned the use of many weapons, including exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines.

Is International Humanitarian Law actually complied with?

Sadly, there are countless examples of violation of international humanitarian law. Increasingly, the victims of war are civilians. However, there are important cases where international humanitarian law has made a difference in protecting civilians, prisoners, the sick and the wounded, and in restricting the use of barbaric weapons. Given that this body of law applies during times of extreme violence, implementing the law will always be a matter of great difficulty. That said, striving for effective compliance remains as urgent as ever.

What should be done to implement the law?

Measures must be taken to ensure respect for international humanitarian law. States have an obligation to teach its rules to their armed forces and the general public. They must prevent violations or punish them if these nevertheless occur. In particular, they must enact laws to punish the most serious violations of the Geneva Conventions and Additional Protocols, which are regarded as war crimes. The States must also pass laws protecting the Red Cross and Red Crescent emblems. Measures have also been taken at an international level: tribunals have been created to punish acts committed in two recent conflicts (the former Yugoslavia and Rwanda). An international criminal court, with the responsibility of repressing inter alia war crimes, was created by the 1998 Rome Statute. Whether as individuals or through governments and various organizations, we can all make an important contribution to compliance with international humanitarian law.

Human Rights in Nigeria: the Buhari/idiagbon and Abacha Situations Compared and Contrasted

July 16th, 2009 at 02:54pm Under Civil Rights Law

Wikipedia encyclopedia refers to human rights as “basic rights and freedoms to which all humans are entitled.” This exists in the areas of civil and political rights and particularly describes the right to life and liberty, freedom of expression, and equality before the law, social, cultural and economic rights includes the rights to participate in culture, the right to food, the right to work and the right to education. This is expressly summed up by Article 1 of the UN Universal Declaration of Human Rights (UDHR as:

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Although this article will not delve into the history of Human rights which covers thousands of years and mainly drawn from almost every department of life such as culture, politics, religion and economy etc, it will merely look into a certain period of military rule in Nigeria when Buhari/Idiagbon and the Late General Abacha were in power as the rulers of Nigeria. It will seek to some extent objectively compare and contrast these two regimes for the purpose of establishing human rights situation in Nigeria within the period under study.

However, it is very germane to add here that so many ancient documents which can be recognized as concepts of human rights have existed globally, but credit should be given the United Nations Organization for the shaping of International Human rights Law as we have it today.

Human rights is agreed to be violated when a state or non-state actor within the International Community breaches any part of the United Nations Human rights treaty. This is hard to hard as such state or non-state actor may constantly risk condemnation by vehemently denying the act, and consequently covering up these acts of abuses with several sets of further acts which may prove difficult to demonstrate, particularly in several parts of the African continent. 

General Mohammadu Buhari and Tunde Idiagbon (now deceased) came to power on Saturday December 31, 1983 although the regime of this duo was too short to appraise but the regime reigned in what many people of Nigeria could at best describe as dictatorial, even the successor regime of this regime led by General Ibrahim Babangida described the regime thus:

“He was too rigid and uncompromising in his attitude to issues of national significance”.

No sooner did Buhari/Idiagbon ceased government than the infamous Decree Number Four (DN4) of 1984 was promulgated by the duo; Buhari/Idiagbon became famous for coming down heavily against the Nigerian press, making the report of truth a very serious offence in the country, not many will for get the terrible situation of Tunde Thompson and Nduka Irabor of the Guardian who were imprisoned for making a ca report on the Government.  The Buhari/Idiagbon regime would also executed Bernard Ogedengbe, Bartholomew Owoh and Lawal Ojulope for an offence committed by them as alleged by the regime after a national debate in spite of public pleas, the execution of these gentlemen were made possible by a retroactive decree courtesy of Buhari/Idiagbon regime.

Buhari and his Deputy would again promulgate another Decree called Decree Number two (DN2) of 1984 which made it possible for Tunde Idiagbon to detain anybody whether such person is a citizen of the country or foreigner, this decree stripped the court of law of the powers to depend the reason such person is being detained. In essence, the decree did not recognize the significance of the judiciary but was merely interested in achieving its aims of dictatorial tendencies. In what would later follow, the world became amused to hear the verdicts of 125 years imprisonments handed down to the regime suspects.

Buhari was also noted to have utilized excessive force in handling drug peddlers caught, as he issued death penalties to them in what political commentators believed should not have attracted death sentences, still death was the fate of several of these suspects in laws that resembled that of Saudi Arabia and other Arab nations.

The tactics of the Buhari/Idiagbon regime became too harsh for the survival of the people, with arbitrary creation of decrees to lead the regime but promulgated to harshly lure the Nigerian public into playing into the waiting ready-made hand of the regime. Victims who became preys of these draconian decrees were mostly detained and made to remain inside prisons for as many years as Buhari and Idiagbon pleased.

There are those have argued in favour of this regime, in that according them the regime came up with the famous War Against Indiscipline which re-awakened Nigerians to the social norms of the society and helped to maintain societal order and respect for the Nigerian society as a whole. But this is outside the human rights records of the time.

The regime of General Sani Abacha who lived from 20 September 1943-8 June 1998 and the de facto military leader of Nigeria between 1993 and 1998) suffered stiff opposition internally and externally because Pro-democracy activists made the regime unpopular. His regime was accused of gross human rights abuses both home and abroad. The heights of his human rights abuses was the arrest and detention of Chief Moshhod Kolawole Olawale Abiola, the man who won the 1993 Presidential election in the country, Abiola would later die in detention in a circumstance yet unclear till this day though this was not in the days of Abacha but his mere detention caused a global uproar as the appeals of several notable people from around the world to the Military leader to free Abiola was not heeded by him.

But the peak of the gross abuse of human rights in the country was ushered by the arrest, detention and hanging of Ken Saro-Wiwa, an activist by the regime in what was globally condemned.

Some the activities that characterized his regime as a tool for the gross violations of human rights in the country were the trial in absentia of Prof. Wole Soyinka, charged for treason, and the arrest and detention of Olusegun Obasanjo also jailed for treason. Abacha was also notable for banning political parties, in what people viewed as a means of likely transformation of himself to the life president of the country, and the personal control of the press. Several human rights activists who opposed his policies whether from the military or civil society were either detained without trial or jailed. Many other persons, chiefly members of the press were also jailed. Allegations of coups and counter coups reined in this regime too. The regime abruptly ended when General Sani Abacha reportedly died of heart attack in June 1998 at the Presidential Villa, Abuja.   

Having narrated the background of certain of the human rights violations of two military regimes Nigeria during the military era of the nation, this article will go further in comparing and contrasting the regimes in terms of human rights violations.

In the first place, both regimes were not democratically welcomed by Nigerians as power was ceased through fraudulent means, Buhari/Iidiagbon overthrew a democratically elected government of shehu Shagari , while Abacha ceased power from an interim government led Ernest Shonekan. It is also a known fact that Buhari, Idiagbon and Abacha all participated in the coup that overthrew the government of Shehu Shagari. Abacha and Babangida would further bring down the government of Buhari/Abacha.  

While the regime of Buhari/Idiagbon reigned for too short a period that any political analyst could valuably access, one can still point out that certain violations of human rights charter were committed that resembled the Abacha regime. One can not forget the incessant arrest and detentions of pressmen many of whom were jailed after trials too unconvincing to justify their offences. Buhari/Idiagbon shut down some media houses which was also a major feature of Abacha, in trying to personally control information and limit it to the whims and caprices of the regimes. Innocent pressmen who heard the names of Buhari/Idiagbon and Abacha fled for their dare lives and often abandoned their cameras and materials.

The two regimes also shared in the executions of persons globally thought innocent, especially after unconvincing trials, Buhari/Idiagbon executed Bernard Ogedengbe Bartholomew Owoh and Lawal Ojulope in yet a controversial circumstance, while Abacha executed Ken Saro Wiwa and his kinsmen, yet in another controversial circumstances. General sani Abacha operated with many of the draconian decrees set up by Buhari/Idiagbon administration, which both regimes used to try to gag the press and haul many innocent people into prisons.

Both regimes were tough on Nigerians, operating with draconian laws without recourse to the rule of law and legalities. This affected Nigerians negatively and brought sufferings to the people without correcting the anomalies both regimes claimed brought them to power. Again, it would seem that none of these two regimes announced a set date for the return of power to a democratically elected government.

 Both regimes continuously received harsh criticism from the civil populace, and in fact, however, while the overthrow of Buhari/Idiagbon was very surprising to the people, many Nigerians may have rejoiced over the exit of Abacha which they attributed to divine intervention, believing it to be welcome development.

Again, the attitude of Buhari in present time, has been described as a desperate one as he continues to express absolute ambition to once again lead the people of Nigeria, the extent he has pursued this to the Supreme Court level amidst the lack of interest attitude of his party has been used as indices to conclude that Buhari is power thirsty and may not have concluded his plans within himselve as the Head of State of the country to hand over power to any democratically elected government, a date he never mentioned until he was overthrown by Babangida. Abacha also never expressed any desire to hand over to civilians; in essence, both regimes had no plans for transiting to civil rule. Buhari/Idiagbon and Abacha were no democrats.

I have so far tried in some way to compare the regimes and shall now dwell on the area differences between the two regimes, Buhari/Idiagbon we may conclude was a not self-centered one, while that of Abacha was considered selfish with a lot of looting, accountability was not considered a responsibility to the people of Nigeria by Abacha while Buhari/Idiagbon felt they owe the nation regular accountability and transparency.

The major point of departure of these regimes was a more vocal international condemnation of Gen. Abacha which would further lead to the suspension of the country from Commonwealth in November 1995, when the regime hanged Ken Saro Wiwa and nine other persons believed to be enemies of the military regime in the country. This was with further condition “That if no demonstrable progress was made towards the fulfilment of these conditions (democratisation and respect for human rights/release of political prisoners) within a time frame (of two years), Nigeria would be expelled from the association.”

As we later observed Abacha bluffed this condition and the nation was made a pariah State, and in fact a leper-State not deemed fit for relations by other good nations of the world, Abiola would soon die in Jail still die in detention in a controversial State, it was partly as a result of this that the country failed to make it to a particular nations cup in South-Africa.

With the reported recovery of huge sums by the Obasanjo regime from Overseas which has implicated the deceased general and his family in a wholesale looting of Nigeria’s coffers and some $3 or $4 billion USD in foreign assets have been traced to Abacha, his family and their representatives, $2.1 billion of which the Nigerian government tentatively came to an agreement with the Abacha family to return, the Abacha is regarded as highly corrupt, another major departure from the Buhari/Idiagbon regime.

However, we conclude this article by stating that in spite of the differences highlighted here no military government is ever considered good by the people, and as they say, the worst civilian government is better than the best military government.

The European Convention and the Court of Human Rights

July 16th, 2009 at 08:54am Under Civil Rights Law

EUROPEAN CONVENTION & CIVIL LIBERTIES, FUNDAMENDAL FREEDOMS & COURT OF HUMAN RIGHTS(Based on author’s site www.geocities.com/ecnvn)

The European Convention of Human Rights is an expansion of the United Nations General Assembly’s Universal Declaration of Human Rights ~an enhancement to it and all others –in its Court anyone anywhere may sue any European government with the ultimate sanction for non-compliance of expulsion.

All 47 countries of the continent of Europe are bound by this protocol, the Convention for the Protection of Human Rights and Fundamental Freedoms, commonly referred to as the European Convention on Human Rights (ECHR) -with legal effect on still more countries on other continents.

It was introduced by Europe and influenced by the European Union peoples’ decision to make themselves extinct as nations to become a single nation as a ‘United States of Europe’.

After the Universal Declaration of Human Rights in 1948 the Council of Europe in 1954 enhanced that with the European Convention of Human Rights even more to protect against abuse of any person or group of persons anywhere by any European person or government -prohibiting also co-operation by commission or omission contrary to the letter or the spirit of the Convention ~of which the essence is human dignity.

(The Council of Europe was set up in 1949 following Briand’s proposals in 1930 for the integration of Europe as envisioned, e.g., by Victor Hugo and called ‘É tats-Unis d’Europe’ [The United States of Europe -‘U.S.E’], a considerably established future name for the European Union [which in 2007 a British-French-German amendment as a Reform Treaty has removed reference to most state-like terminology and symbols of, e.g., the word ‘constitution’, its flag and anthem]).

The Convention is Europe’s peoples’ decision on the lines pursued by John Locke four centuries ago to extend the operation of human rights from their present form as civil liberties with state discretion to civil rights incorporated rather like the Magna Carta into laws at state level and directly binding on governments.

The European Convention of Human Rights is unique. It not a pressure group as the Asian Human Rights Commission; neither as the African Charter on Human & People’s Rights and the African Court of Justice, nor as the American Convention on Human Rights, nor as the United Nations’ Universal Declaration of Human Rights and the International Covenant on Civil & Political Rights, does it limit complaints of specific human rights to violations of the citizens of and within the borders of and by a member state with the specific agreement of both sides with hearings in closed meetings.

The European Convention’s member states under Protocol 11 of 1998 may not opt out of agreeing to any state’s or body’s or person’s direct and public access and evidence and argument for a desired remedy against any member state including itself for any act or omission or co-operation with any state or body or person anywhere in breach of the Convention violating any right of anyone anywhere (including in respect of rights minor by comparison, e.g., state legal aid to sue for defamation of character by another individual), to the European Court of Human Rights (ECtHR) -and are bound by the Court’s judgements, with a duty also to accordingly amend their laws.

The European Convention of Human Rights sets out peoples’ freedoms and rights to be commonly enjoyed by the individual persons in the world (Article 1) in the acts or omissions of its 47 countries. These include the right to life and prohibition of capital punishment, prohibition of extradition by any European government of anyone to a country that has not formally by legislation abolished the death penalty and life imprisonment without parole and in state security courts in any capacity the involvement of the military if it might be faced, to fair civil and criminal public court hearings, right to privacy of one’s family life and home and communications -and that one shall enjoy these freedoms and rights, with more set out in its Articles, without discrimination on grounds of, e.g., race, gender, religion, nationality, political or other opinion held or expressed.

The Convention in effect is binding on the member states ~each has undertaken (with judicial and political Russian moratorium not to use capital punishment) to abide under Article 46 (1) & (2) by the final judgements of the European Court of Human Rights supervised in their execution by the Council of Europe’s Committee of Ministers, with the ultimate sanction of expulsion.

There is an expectation that not only individuals but each member government itself also will bring before the European Court of Human Rights a signatory government to the Convention that fails in respect of these freedoms and rights.

(While governments are considered rarely to have lived up to that expectation and proposals in Protocol 14 [pending ratification] are considered capable of limiting individual redress for human rights violations, the proposals include empowering of a Committee of Ministers of the Council of Europe [without effect on states who have not yet ratified the convention in full, e.g., Britain’s position on Article 4 of Protocol 7 of the Convention in respect of double jeopardy] to bring before the Court any governments that refuse to enforce any judgements against themselves.)

Where a member state has incorporated the Convention into its laws (e.g., Britain’s Human Rights Act 1998 making its courts [as public bodies] bound by the Convention) its national courts must operate as though they were local branches of (with a right on one to directly challenge them at) the European Court of Human Rights and declare ‘not law, not of legal effect’ any national laws involved but incompatible with the Convention.

In the case of the European Union there is an expectation to seek to centralise and equalise the laws and the legal standards in respect of all of the Articles of the European Convention on Human Rights, formally adopting by 2017 also the European Union Charter of Fundamental Rights (EUCFR), to be followed by the European Union’s Court of Justice (ECJ) -where disagreed with (by the European Union Reform Treaty amendment in 2007 by British-French-German governments with an express right [Articles 1 & 2] on the part of the United Kingdom not to comply) possibly tolerably not bindingly.

(In line with this expectation has come about through the European Union Council, e.g., the repeal of the Romanian Penal Code’s Article 200 [public manifestations of homosexuality], and in the course of the processing of its application to join it the formal abolishing in Turkey of the death penalty.)

(The European Convention itself also enjoys indirect but effective influence in the upholding of those rights, and, e.g., in the constitutional Monarchies of Canada, Australia, and New Zealand [each with also a British Governor-General], and where in the British Commonwealth appeal lies to the British Monarch the United Kingdom’s membership of the Convention would normally be a consideration and indeed the Judicial Committee of the Privy Council has been responsible, e.g., for blocking death-sentences passed by the courts in Trinidad & Tobago.)

In 1950 the peoples of the signatory countries to the Convention established in Europe the European Court of Human Rights which in 1998 was instituted permanently with full-time judges equal to the number of the signatory countries elected by the Parliamentary Assembly of the Council of Europe (PACE) but with no nationality requirement (i.e., not as representatives of member countries -e.g., in respect of Liechtenstein a Swiss national) and considered impartial (also not having disregarded criticism of undue consideration for some states’ preferences in respect of, e.g., family re-unification [Article 8] –although it is difficult to see how in applying the Convention it has not been regarded incompatible with the spirit of it where the state represents the society such state interest as by prosecution appeals once those representing the society at trial level by acquittal have expressed the end of their interest in the mater, or such state interest as increase of sentence which only comes into play upon the convict’s exercise of a right given by the society by his own appeal.).

The Court rules on such issues as below:-Civil Law: Sex discrimination also in the case of immigrants breaches Article 14, Abdulaziz -v- UK 1985… Denial of right to family reunification Article 8 breach, Şen -v- the Netherlands 2001… Right to life in Article 2 (1) does not apply to fetus as much as to pregnant woman, Paton -v- UK 1980… Lack of civil legal aid (for, e.g., libel) limits the right to fair trial and freedom of expression under Articles 6 & 10, Steele -v- UK 2005… Article 6 breach of Employment Appeal Tribunal who took nine years to decide a case, Darnell -v- United Kingdom 1993…Criminal Law: Under Article 6 not fair to try children in adult courts, Bulger & Venables -v- UK 1999… Convict entitled to privacy in dealings with lawyer, Golder -v- UK 1975… Unlawful to beat prisoners, Ireland -v- UK, 1978… Discretionary interception of telephone communications breached Article 8, Malone -v- UK 1984… Requiring disclosure of journalistic source beached Article 10, Goodwin -v- UK 1996… Detention with delay in bringing suspect before judge in Brogan -v- UK 1998 beached Article 5 -which Britain has since opted out of…Application of Convention: Human dignity is immanent in private life [Article 8] which includes physical and psychological integrity, Botta -v- Italy 1998… Its is “the very essence of the Convention”, Pretty -v- UK 2002… Prohibition of discrimination (Article 14) applies to all of the Articles of the Convention, Airey -v- Ireland 1979… Application of national law must not negatively affect in circumstance of vulnerability, e.g., re. the right to remain silent (Article 6 [1]) by compelling a convict to disclose information -or, e.g., re. the right to privacy (Article by disproportionate search of one’s premises, Funke -v- France 1998… A State’s responsibility extends not only to individuals also outside its territory, nor only to acts or omissions of its own, but anywhere where in the eyes of the Convention in practice it has control, Cyprus -v- Turkey 2001… This responsibility exists also where a State has no control over matters which is wholly in control of another State but may be involved, e.g., re. extraditing to a jurisdiction where a possibility is foreseeable of treatment incompatible with the general spirit of the Convention, Soering -v- UK 1989… Reparation: State laws must allow for and make reparation which is not partial and which does not fall short of being an effective remedy (Article 13) and this applies also to claims with a clearly casual connection to the violation, Mikheyev -v- Russia 2006… Just satisfaction (Article 41) includes compensation for loss of future earnings, Barberà -v- Spain 1994… There may be damages also for distress suffered and psychological trauma, M.C. -v- Bulgaria 2003… Allegations may imply remedies for the benefit of relatives, Kaya -v- Turkey 2000. (Legal costs are recoverable if they relate to violation found [Beyeler -v- Italy 2002], may cover domestic court costs [Kyprianou -v- Cyprus 2005], for non-pecuniary compensation there must be ‘real loos of opportunity’ [Ezeh -v- UK 2004] ~cost & compensation calculation is in EuroDolar convertible to complainant’s currency and include any taxes payable -default interest is at the European Central Bank lending rate plus 3%.)

The European Court of Human Rights in Strasbourg previously had a two-tier structure and involved the European Commission on Human Rights set up in 1954, but since 1998 it operates as a single court with a Grand Chamber composed of 17 members -a President and a Vice-President and the 5 Section Presidents (all for a term in such office of 3 years) and 10 justices from its gender and geographic balanced 5 Sections (each of which has 6 under its President) who rotate 9 monthly, the Court’s members sitting full-time each with a 6 year term of office, dismissable with two-thirds majority vote if and fails to meet the required criteria.

The procedure of the European Court of Human Rights has been to ascertain complaints by 3 judges (who only unanimously may reject them) to be put before 7, if precedent may be departed from or appealed 17, judges to be heard.

(Protocol 14 of the Convention awaiting ratification proposes admissibility of cases to be decided by a single judge instead of 3, and in cases arising from failure of a member state to amend its laws in line with an earlier judgement by 3 judges instead of 7 -and interpretation by the Court where it may help enable a government to determine how best accordingly to amend its laws ~also [as favoured on grounds of expediency by Britain and France and supported by Germany -more on the lines of the American and UN Conventions] less access by individual persons on significance basis at admissibility stage and un-enforcing state representation at judicial level.)(The Holy Sea has Observer status [which also the USA has been given -together with Canada, Mexico and Japan] and membership status is enjoyed by all of the countries of Europe, i.e.: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia & Herzegovina, Britain, Bulgaria, Czechoslovakia, Croatia, Cyprus, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marine, Serbia & Montenegro, Slovenia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine –Belarus being a candidate, Kazakhstan having received confirmation that may apply.)

With such a multitude of member states of the European Convention the European Court of Human Rights is charged with the duty to reflect the common views and the shared values in the Convention as are held by and are the united will of the peoples of Europe.The author has a website at: http://www.geocities.com/eoa_uk

What Do We Do When a Group of People Have Their Rights Taken Away??

July 15th, 2009 at 08:54am Under Civil Rights Law

Pregnancy Discrimination: Know Your Rights!

July 14th, 2009 at 08:54pm Under Civil Rights Law

As a starting point one thing should be made very clear: You cannot be discriminated against for being pregnant! You cannot be fired. You cannot be refused employment. You cannot be demoted. You cannot be docked pay.

Unfortunately, it seems to be a fairly common occurrence that once a woman becomes pregnant her formerly nice and reasonable employer treats her differently. Treating a woman differently – unless it’s to say how awesome it is that she’s pregnant – is likely to be illegal.

In 1978, Congress enacted the Pregnancy Discrimination Act (PDA) as an amendment to Title VII of the Civil Rights Act of 1964. In doing so Congress made clear that women were not to be punished for becoming mothers.

The PDA prohibits discrimination in areas and ways, including*:

*    Hiring/Firing: An employer cannot refuse to hire a woman because of her pregnancy or a related condition and cannot fire a woman for those things either. *    Pregnancy & Maternity Leave: An employer: cannot single out pregnant women for special procedures to determine her ability to work; must hold open the job while she is on pregnancy leave; must treat her the same as any temporarily disabled worker if she is unable to perform her duties for a short time; must allow her to work if she is able.  *    Health Insurance: Employer provided health insurance must cover pregnancy and pregnancy-related conditions on the same basis as other medical issues.  *    Fringe Benefits: Benefits cannot be given only to married couples. Benefits cannot be provided differently to pregnant and non-pregnant employees. Seniority, vacation, pay, temporary disability benefits, must all be the same as all other employees.

*This list is not all inclusive. See an attorney if you feel as if you have, or are, suffering some sort of mistreatment.

Additionally, the law prevents retaliation for complaining about discrimination either to your employer or to the EEOC. States and local governments may also have laws that are similar to the PDA. For example, in Illinois the city of Chicago, Cook County, and the state of Illinois all have laws intended to prevent or remedy pregnancy discrimination. There are also administrative forums at each of these levels devoted to hearing claims of discrimination and providing remedies, including monetary damages.

Women who suffer, or believe that they may have suffered, discrimination need to file a charge of discrimination with the EEOC within 180 days of the date of the last act of discrimination. The various local and state agencies may have different filing times but many mirror the 180 day filing requirement set by the federal government as well as the types of discrimination considered illegal. Missing the filing date may eliminate the women’s right to sue so careful attention must be paid to the date, or dates, the act of discrimination took place.

As always, it’s best to consult a local attorney about a claim of discrimination but these forums will allow a woman to file her claim without a lawyer and some will investigate the claims using trained personnel.

Powerful Laws Help Whistleblowers in the U.s

July 14th, 2009 at 02:55pm Under Civil Rights Law

Those who report fraud, known in legal terms as “relators” and commonly as whistleblowers, have some of the most powerful and effective laws in the country on their side.

Whistleblowers may identify and report actual theft, false claims, over billing, up coding, unbundling, kickbacks, false certifications, violations of governmental regulations, destruction of company records, workplace violence, safety hazards or unsafe working conditions, environmental concerns, substance abuse, general conflicts of interest, release of proprietary information and other types of fraud or occupational concerns.

Whistleblowers are protected by agencies and laws from the government which include:

. Americans with Disabilities Act (ADA)

. Civil Rights Act of 1866 (since amended numerous times)

. Federal Equal Employment Opportunity Commission (EEOC)

. Federal False Claims Act

. Occupational Safety and Health (OSH) Act of 1970

Under the OSH Act of 1970, employers may not discharge or in any manner discriminate against any employee because an employee has filed any complaint, or instituted or caused to be instituted, any proceeding under or related to this Act.

Additionally, the employer may not terminate an employee who has testified, or is about to testify, in any such proceeding.

Under the Act, an employee who believes that a work hazard exists, whether or not they have filed a claim, has legal protection to refuse to work if all of the following apply:

. The employee faces death or serious injury and the hazard is so clear that a reasonable person would agree with the seriousness of the hazard.

. The situation is so urgent that there is not time to eliminate the hazard through regulatory channels.

. The employee has tried to get the employer to

correct the dangerous condition and they have not complied.

OSHA also administers the whistle blowing provisions of thirteen other statutes, protecting employees who report violations of various trucking, airline, nuclear power, pipeline, environmental and securities laws.

The Federal False Claims Act provides the legal framework for claims alleging fraud against the federal government, and it does several important things for a whistleblower:

. Provides specific protection for the whistleblower from discharge, demotion, suspension, threats or other harassment or discrimination that the whistleblower may encounter due to lawful actions taken in the furtherance of a whistleblower claim, if the employee is still works for the employer.

. Provides for filing a whistleblower complaint under seal, which means that no one other than the government, not even the defendants alleged to have committed the fraud, can know of the complaint until after the government has investigated the claims.

. Anywhere from 15 to 25 percent of the entire recovery can be made in some instances by the whistleblower.

Eleven states and the District of Columbia also have their own false claims acts that closely resemble the Federal Act.

Whistleblower laws allow for the contingent fee representation of whistleblowers. The Federal False Claims Act also provides that a whistleblower’s attorney’s fees be paid by the entity that committed the fraud in the event of a government recovery. If the case is succesful, then there are no expenses or monetary costs to the employee.

Anyone who knows of fraud against the government can become a whistleblower. Usually it is employees or ex-employees who report fraud of a corporation because they have the most knowledge of internal operations.

The law only protects one whistleblower-based claim. The first to file based on specific information about a particular fraud preempts other whistleblowers and their claims. In addition, an employee cannot bring a whistleblower complaint if information about the fraud becomes public before bringing a claim.

Workplace Discrimination: 3 Things You Should Know About Your Rights

July 14th, 2009 at 08:54am Under Civil Rights Law

Discrimination in the workplace can take a variety of different forms, and there are specific laws that exist to protect employees against discrimination. When employers violate employment discrimination laws, they can face serious legal consequences.  Federal law prohibits workplace discrimination in a number of aspects of employment, including recruiting, hiring, promotion policies, compensation, job evaluations, training, retirement plans, and benefits.  Anti-discrimination laws are enforced at the federal level by the U.S. Equal Employment Opportunity Commission (EEOC), and state laws also exist to protect employee’s rights. Race, religion, national origin, age, gender, and disability status are among the characteristics that may be grounds for illegal employment discrimination. Listed below are three employment rights that you should be aware of in order to protect yourself from becoming a victim of discrimination.

Tip #1: All questions asked in a job interview must relate specifically to the position and the qualifications of the applicant. According to employment lawyer Steve Cahn, “When an individual is applying for a job or going to a job interview, there are certain types of questions that employers are not allowed to ask…It’s unlawful for the employer to make inquiries about someone’s health, about their disability, about their age, whether they’re married and have children…those type of things are illegal for an employer to ask a potential employee.” Failing to hire an individual because of his or her race, color, gender, religion, national origin, birthplace, age, disabilities, or marital status is considered discrimination and violates civil rights laws.

Tip #2: Employees who have experienced unfair discrimination may be entitled to back pay, compensation for pain and suffering, and restoration of employment position if they were fired or reassigned. Employers who are found guilty of workplace discrimination may also have to pay punitive damages for their illegal actions. Employment lawyer Greg Noble explains, “These (punitive) damages are very real in discrimination cases. They’re allowable when the conduct of the employer is intentional or overly reckless and the employer is going out of [his or her] way to discriminate against you or harass you. A lot of times, courts look to whether or not employers have effective anti-discrimination policies in their workplace when they’re deciding the reasonableness of punitive damages.”

Tip #3: Discrimination laws in some states, such as New Jersey, protect employees from discrimination based on a misperception. Kevin Costello, a New Jersey employment lawyer, explains, “If you have a disability or a handicap, you can’t be harassed or discriminated against. But the New Jersey Law Against Discrimination also prevents you from being harassed or discriminated against if you’re perceived to have a handicap or disability even when you don’t. It prevents you from being discriminated against or harassed if you’re straight but perceived to be gay, or gay and perceived to be straight…We’re trying to prevent discrimination in the workplace here, and it wouldn’t work if the only discrimination we could prevent is when the bigot gets it right.”

Discrimination in the workplace is a serious problem. If you are experiencing discrimination at your place of employment, you should inform your supervisor and Human Resources department immediately, both verbally and in writing. Keep copies of your notifications to these individuals, as well as a record of their responses.  Document how the discrimination was handled. You should also file a complaint with the EEOC and your state’s division of civil rights. It is also important to speak to a lawyer who handles employment cases and has experience with discrimination laws. Your attorney can advise of your legal rights and options and ensure that you get the justice you deserve.