Corporal punishment

From Wikipedia, the free encyclopedia

Corporal punishment or physical punishment is a punishment intended to cause physical pain to a person. When practised on minors, especially in home and school settings, methods include spanking or paddling. When practised on adults, it may be practised on prisoners and slaves.

Punishment for crime by inflicting pain or injury, including flogging, branding and even mutilation, was practised in most civilizations since ancient times. With the growth of humanitarian ideals since the Enlightenment, such punishments are increasingly viewed as inhumane in Occidental societies. By the late 20th century, corporal punishment had been eliminated from the legal systems of most developed countries.

The legality in the twenty-first century of corporal punishment in various settings differs by jurisdiction. Internationally, the late twentieth and early twenty-first centuries saw the application of human rights law to the question of corporal punishment in a number of contexts:

• Corporal punishment in the home, punishment of children by parents or other adult guardians, is legal in most of the world, but as of 2018 58 countries, most of them in Europe and Latin America, have banned the practice.
• School corporal punishment, of students by teachers or school administrators, has been banned in many countries, including Canada, Kenya, South Africa, New Zealand and all of Europe. It remains legal, if increasingly less common, in some states of the United States and Australia.
• Judicial corporal punishment, such as Pillory Stocks, as part of a criminal sentence ordered by a court of law, has long disappeared from most European countries. However, as of November 2017, it remains lawful in parts of Africa, Asia, the Anglophone Caribbean and indigenous communities of Ecuador and Colombia.
• prison corporal punishment or disciplinary corporal punishment, ordered by prison authorities or carried out directly by staff, such as was the practice in the Australian penal colonies.
• Corporal punishment is or was allowed in some military settings in a few jurisdictions.
• in the past, it was practised on apprentices by their masters.

In many Western countries, medical and human-rights organizations oppose corporal punishment of children. Campaigns against corporal punishment have aimed to bring about legal reform to ban the use of corporal punishment against minors in homes and schools.

History

Prehistory

Author Jared Diamond writes that hunter-gatherer societies have tended to use little corporal punishment whereas agricultural and industrial societies tend to use progressively more of it. Diamond suggests this may be because hunter-gatherers tend to have few valuable physical possessions, and misbehavior of the child would not cause harm to others' property.

Researchers living among the Parakanã and Ju/’hoansi people, as well as among some Aboriginal Australians, have written of the absence of physical punishment of children in those cultures.

Wilson writes:

Probably the only generalization that can be made about the use of physical punishment among primitive tribes is that there was no common procedure [...] Pettit concludes that among primitive societies corporal punishment is rare, not because of the innate kindliness of these people but because it is contrary to developing the type of individual personality they set up as their ideal [...] An important point to be made here is that we cannot state that physical punishment as a motivational or corrective device is 'innate' to man.

Antiquity

Birching, Germany, 17th century

 

Depiction of a flogging at Oregon State Penitentiary, 1908

Corporal punishment of children has traditionally been used in the Western world by adults in authority roles. Beating one's child as a punishment was recommended as early as the c. 10th century BC book of Proverbs attributed to Solomon:

He that spareth the rod, hateth his son; but he that loveth him, chasteneth him betimes. (Proverbs, XIII, 24)

A fool's lips enter into contention, and his mouth calleth for strokes. (Proverbs, XVIII, 6)

Chasten thy son while there is hope, and let not thy soul spare for his crying. (Proverbs, XIX, 18)

Foolishness is bound in the heart of a child; but the rod of correction shall drive it from him. (Proverbs, XXII, 15)

Withhold not correction from the child; for if thou beatest him with a rod, thou shalt deliver his soul from hell. (Proverbs, XXIII, 13–14)

Robert McCole Wilson argues, "Probably this attitude comes, at least in part, from the desire in the patriarchal society for the elder to maintain his authority, where that authority was the main agent for social stability. But these are the words that not only justified the use of physical punishment on children for over a thousand years in Christian communities, but ordered it to be used. The words were accepted with but few exceptions; it is only in the last two hundred years that there has been a growing body of opinion that differed. Curiously, the gentleness of Christ towards children (Mark, X) was usually ignored".

Foot whipping an offender, Iran, 1910s

Corporal punishment was used in Egypt, China, Greece, and Rome for both judicial and educational discipline. Disfigured Egyptian criminals were exiled to the Sinai border at Tjaru and Rhinocorura, whose own name meant "cut-off noses". Corporal punishment was prescribed in ancient Israel, but was limited to 40 lashes. China also disfigured some criminals and tattooed others. Some states gained a reputation for using such punishments cruelly; Sparta, in particular, used them as part of a disciplinary regime designed to build willpower and physical strength. Although the Spartan example was extreme, corporal punishment was possibly the most frequent type of punishment. In the Roman Empire, the maximum penalty that a Roman citizen could receive under the law was 40 "lashes" or "strokes" with a whip applied to the back and shoulders, or with the "fasces" (similar to a birch rod, but consisting of 8–10 lengths of willow rather than birch) applied to the buttocks. Such punishments could draw blood, and were frequently inflicted in public.

Quintilian (c. 35 – c. 100) voiced some opposition to the use of corporal punishment. According to Wilson, "probably no more lucid indictment of it has been made in the succeeding two thousand years".

By that boys should suffer corporal punishment, though it is received by custom, and Chrysippus makes no objection to it, I by no means approve; first, because it is a disgrace, and a punishment fit for slaves, and in reality (as will be evident if you imagine the age change) an affront; secondly, because, if a boy's disposition be so abject as not to be amended by reproof, he will be hardened, like the worst of slaves, even to stripes; and lastly, because, if one who regularly exacts his tasks be with him, there will not be the need of any chastisement (Quintilian, Institutes of Oratory, 1856 edition, I, III).

Plutarch, also in the first century, writes:

This also I assert, that children ought to be led to honourable practices by means of encouragement and reasoning, and most certainly not by blows or ill-treatment, for it surely is agreed that these are fitting rather for slaves than for the free-born; for so they grow numb and shudder at their tasks, partly from the pain of the blows, partly from the degradation.

Birching on the buttocks

Middle Ages

In Medieval Europe, the Byzantine Empire blinded and denosed some criminals and rival emperors. Their belief that the emperor should be physically ideal meant that such disfigurement notionally disqualified the recipient from office. (The second reign of Justinian the Slit-nosed was the notable exception.) Elsewhere, corporal punishment was encouraged by the attitudes of the Catholic church towards the human body, flagellation being a common means of self-discipline. This had an influence on the use of corporal punishment in schools, as educational establishments were closely attached to the church during this period. Nevertheless, corporal punishment was not used uncritically; as early as the eleventh century Saint Anselm, Archbishop of Canterbury was speaking out against what he saw as the excessive use of corporal punishment in the treatment of children.

Modernity

From the 16th century onwards, new trends were seen in corporal punishment. Judicial punishments were increasingly turned into public spectacles, with public beatings of criminals intended as a deterrent to other would-be offenders. Meanwhile, early writers on education, such as Roger Ascham, complained of the arbitrary manner in which children were punished.

Peter Newell writes that perhaps the most influential writer on the subject was the English philosopher John Locke, whose Some Thoughts Concerning Education explicitly criticised the central role of corporal punishment in education. Locke's work was highly influential, and may have helped influence Polish legislators to ban corporal punishment from Poland's schools in 1783, the first country in the world to do so.

Corporal punishment in a women's prison, USA (ca. 1890)

 

Batog, corporal punishment in the Russian Empire

 

Husaga (the right of the master of the household to corporally punish his servants) was outlawed in Sweden for adults in 1858.

A consequence of this mode of thinking was a reduction in the use of corporal punishment in the 19th century in Europe and North America. In some countries this was encouraged by scandals involving individuals seriously hurt during acts of corporal punishment. For instance, in Britain, popular opposition to punishment was encouraged by two significant cases, the death of Private Frederick John White, who died after a military flogging in 1846, and the death of Reginald Cancellor, killed by his schoolmaster in 1860. Events such as these mobilised public opinion and, by the late nineteenth century, the extent of corporal punishment's use in state schools was unpopular with many parents in England. Authorities in Britain and some other countries introduced more detailed rules for the infliction of corporal punishment in government institutions such as schools, prisons and reformatories. By the First World War, parents' complaints about disciplinary excesses in England had died down, and corporal punishment was established as an expected form of school discipline.

In the 1870s, courts in the United States overruled the common-law principle that a husband had the right to "physically chastise an errant wife". In the UK the traditional right of a husband to inflict moderate corporal punishment on his wife in order to keep her "within the bounds of duty" was similarly removed in 1891.

In the United Kingdom, the use of judicial corporal punishment declined during the first half of the twentieth century and it was abolished altogether in the Criminal Justice Act, 1948 (zi & z2 GEo. 6. CH. 58.), whereby whipping and flogging were outlawed except for use in very serious internal prison discipline cases, while most other European countries had abolished it earlier. Meanwhile, in many schools, the use of the cane, paddle or tawse remained commonplace in the UK and the United States until the 1980s. In rural areas of the Southern United States, and in several other countries, it still is: see School corporal punishment.

International treaties

Human rights

Key developments related to corporal punishment occurred in the late 20th century. Years with particular significance to the prohibition of corporal punishment are emphasised.

• 1950: European Convention of Human Rights, Council of Europe. Article 3 bans "inhuman or degrading treatment or punishment".
  • 1978: European Court of Human Rights, overseeing its implementation, rules that judicial birching of a juvenile breaches Article 3.
• 1985: Standard Minimum Rules for the Administration of Juvenile Justice, or Beijing Rules, United Nations (UN). Rule 17.3: "Juveniles shall not be subject to corporal punishment."
  • 1990 Supplement: Rules for the Protection of Juveniles Deprived of their Liberty. Rule 67: "...all disciplinary measures constituting cruel, inhumane or degrading treatment shall be strictly prohibited, including corporal punishment..."
• 1990: Guidelines for the Prevention of Juvenile Delinquency, the Riyadh Guidelines, UN. Paragraph 21(h): education systems should avoid "harsh disciplinary measures, particularly corporal punishment."
• 1966: International Covenant on Civil and Political Rights, UN, with currently 167 parties, 74 signatories. Article 7: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment..."
  • 1992: Human Rights Committee, overseeing its implementation, comments: "the prohibition must extend to corporal punishment . . . in this regard . . . article 7 protects, in particular, children, . . .."
• 1984: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN, with currently 150 parties and 78 signatories.
  • 1996: Committee Against Torture, overseeing its implementation, condemns corporal punishment.
• 1966: International Covenant on Economic, Social and Cultural Rights, UN, with currently 160 parties, and 70 signatories. Article 13(1): "education shall be directed to the full development of the human personality and the sense of its dignity..."
  • 1999: Committee on Economic, Social and Cultural Rights, overseeing its implementation, comments: "corporal punishment is inconsistent with the fundamental guiding principle of international human rights law . . . the dignity of the individual."
• 1961: European Social Charter, Council of Europe.
  • 2001: European Committee of Social Rights, overseeing its implementation, concludes: it is not "acceptable that a society which prohibits any form of physical violence between adults would accept that adults subject children to physical violence."

Children's rights

The notion of children’s rights in the Western world developed in the 20th century, but the issue of corporal punishment was not addressed generally before mid-century. Years with particular significance to the prohibition of corporal punishment of children are emphasised.

• 1923: Children's Rights Proclamation by Save the Children founder. (5 articles).
  • 1924 Adopted as the World Child Welfare Charter, League of Nations (non-enforceable).
• 1959: Declaration of the Rights of the Child, (UN) (10 articles; non-binding).
• 1989: Convention on the Rights of the Child, UN (54 articles; binding treaty), with currently 193 parties and 140 signatories. Article 19.1: "States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation . . . ."
  • 2006: Committee on the Rights of the Child, overseeing its implementation, comments: there is an "obligation of all States Party to move quickly to prohibit and eliminate all corporal punishment."
  • 2011: Optional Protocol on a Communications Procedure allowing individual children to submit complaints regarding specific violations of their rights.
• 2006: Study on Violence against Children presented by Independent Expert for the Secretary-General to the UN General Assembly.
• 2007: Post of Special Representative of the Secretary-General on violence against children established.

Modern use

Laws on corporal punishments in the world

  Prohibited at all settings

  Prohibited in schools

  Not prohibited in schools nor in a home, but prohibited in at least one setting

  Not prohibited at any setting

  Depends on state (USA)

 

School corporal punishment in the United States

Corporal punishment of minors in the United States

  Corporal punishment prohibited in public schools

  Corporal punishment not prohibited in public schools

Legality of corporal punishment of minors in Europe

---

  Corporal punishment banned in schools and the home

  Corporal punishment banned in schools only

  Corporal punishment not prohibited in schools or in the home

Legal status

58 countries, most of them in Europe and Latin America, have prohibited any corporal punishment of children.

The earliest recorded attempt to prohibit corporal punishment of children by a state dates back to Poland in 1783. However, its prohibition in all spheres of life – in homes, schools, the penal system and alternative care settings – occurred first in 1966 in Sweden. The 1979 Swedish Parental Code reads: "Children are entitled to care, security and a good upbringing. Children are to be treated with respect for their person and individuality and may not be subjected to corporal punishment or any other humiliating treatment."

As of 2018, corporal punishment of children by parents (or other adults) is outlawed in all settings in 58 nations (including the partially recognized Republic of Kosovo) and 3 constituent nations.

Countries that have completely prohibited corporal punishment of children:

Country	Year
Sweden	1979
Finland	1983
Norway	1987
Austria	1989
Cyprus	1994
Denmark	1997
Poland	1997
Latvia	1998
Germany	1998
Croatia	1999
Bulgaria	2000
Israel	2000
Turkmenistan	2002
Iceland	2003
Ukraine	2004
Romania	2004
Hungary	2005
Greece	2006
New Zealand	2007
Netherlands	2007
Portugal	2007
Uruguay	2007
Venezuela	2007
Spain	2007
Togo	2007
Costa Rica	2008
Moldova	2008
Luxembourg	2008
Liechtenstein	2008
Tunisia	2010
Kenya	2010
Congo, Republic of	2010
Albania	2010
South Sudan	2011
North Macedonia	2013
Cabo Verde	2013
Honduras	2013
Malta	2014
Brazil	2014
Bolivia	2014
Argentina	2014
San Marino	2014
Nicaragua	2014
Estonia	2014
Andorra	2014
Benin	2015
Ireland	2015
Peru	2015
Mongolia	2016
Montenegro	2016
Paraguay	2016
Aruba	2016
Slovenia	2016
Lithuania	2017
Nepal	2018
Kosovo	2019
France	2019
South Africa	2019
Jersey	2019
Georgia	2020
Japan	2020
Scotland	2020

For a more detailed overview of the global use and prohibition of the corporal punishment of children, see the following table.

Summary of the number of countries prohibiting corporal punishment of children

	Home	Schools	Penal system		Alternative care settings
			As sentence for crime	As disciplinary measure
Prohibited	58	118	155	116	38
Not prohibited	140	80	42	78	160
Legality unknown	–	–	1	4	–

Corporal punishment in the home

Domestic corporal punishment, i.e. the punishment of children by their parents, is often referred to colloquially as "spanking", "smacking" or "slapping."

It has been outlawed in an increasing number of countries, starting with Sweden in 1979. In some other countries, corporal punishment is legal, but restricted (e.g. blows to the head are outlawed, implements may not be used, only children within a certain age range may be spanked).

In all states of the United States and most African and Asian nations, corporal punishment by parents is currently legal. It is also legal to use certain implements such as a belt or paddle.

In Canada, spanking by parents or legal guardians (but nobody else) is legal, as long as the child is at least 2 years and less than 13 years of age, and no implement other than an open, bare hand is used (belts, paddles, etc. are strictly prohibited). It is also illegal to strike the head when disciplining a child.

In the UK, spanking or smacking is legal, but it must not cause an injury amounting to Actual Bodily Harm (any injury such as visible bruising, breaking of the whole skin etc.); in addition, in Scotland, since October 2003, it has been illegal to use any implements or to strike the head when disciplining a child, and it is also prohibited to use corporal punishment towards children under the age of 3 years.

In Pakistan, Section 89 of Pakistan Penal Code allows corporal punishment.

Corporal punishment in schools

Corporal punishment in schools has been outlawed in many countries. It often involves striking the student on the buttocks or the palm of the hand with an implement such as a rattan cane or spanking paddle.

In countries where corporal punishment is still allowed in schools, there may be restrictions; for example, school caning in Singapore and Malaysia is in theory permitted for boys only.

In India, South Korea, and many other countries, corporal punishment has technically been abolished by law. However, corporal punishment continues to be practiced on boys and girls in many schools around the world. Cultural perceptions of corporal punishment have rarely been studied and researched. One study carried out discusses how corporal punishment is perceived among parents and students in India.

Medical professionals have urged putting an end to the practice, noting the danger of injury to children's hands especially.

Judicial or quasi-judicial punishment

  Countries with judicial corporal punishment

 

A member of the Taliban's religious police beating an Afghan woman in Kabul on 26 August 2001

Around 33 countries in the world still retain judicial corporal punishment, including a number of former British territories such as Botswana, Malaysia, Singapore and Tanzania. In Singapore, for certain specified offences, males are routinely sentenced to caning in addition to a prison term. The Singaporean practice of caning became much discussed around the world in 1994 when American teenager Michael P. Fay received four strokes of the cane for vandalism. Judicial caning and whipping are also used in Aceh Province in Indonesia.

A number of other countries with an Islamic legal system, such as Saudi Arabia, UAE, Qatar, Iran, Brunei, Sudan, and some northern states in Nigeria, employ judicial whipping for a range of offences. In April 2020, the Saudi Supreme Court ended the flogging punishment from its court system, and replaced it with jail time or fines. As of 2009, some regions of Pakistan are experiencing a breakdown of law and government, leading to a reintroduction of corporal punishment by ad hoc Islamicist courts. As well as corporal punishment, some Islamic countries such as Saudi Arabia and Iran use other kinds of physical penalties such as amputation or mutilation. However, the term "corporal punishment" has since the 19th century usually meant caning, flagellation or bastinado rather than those other types of physical penalty.

In some countries foot whipping (bastinado) is still practised on prisoners.

Rituals

In parts of England, boys were once beaten under the old tradition of "Beating the Bounds" whereby a boy was paraded around the edge of a city or parish and spanked with a switch or cane to mark the boundary. One famous "Beating the Bounds" took place around the boundary of St Giles and the area where Tottenham Court Road now stands in central London. The actual stone that marked the boundary is now underneath the Centre Point office tower.

In the Czech Republic, Slovakia, and some parts of Hungary, a tradition for health and fertility is carried out on Easter Monday. Boys and young men will spank or whip girls and young women on the bottom with braided willow branches. After the man sings the verse, the young woman turns around and the man takes a few whacks at her backside with the whip.

International Covenant on Economic, Social and Cultural Rights

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights 

 

International Covenant on Economic, Social and Cultural Rights

Parties and signatories to the ICESCR:   signed and ratified   signed but not ratified   neither signed nor ratified
Type	United Nations General Assembly Resolution
Drafted	1954
Signed	16 December 1966
Location	United Nations Headquarters, New York City
Effective	3 January 1976
Signatories	71
Parties	170
Depositary	Secretary-General of the United Nations
Citations	Works related to United Nations Trusteeship Agreements listed by the General Assembly as Non-Self-Governing at Wikisource
Languages	French, English, Russian, Chinese, Spanish and Arabic

ECOSOC Resolution 2007/25: Support to Non-Self-Governing Territories by the specialized agencies and international institutions associated with the United Nations (26 July 2007)

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966 through GA. Resolution 2200A (XXI), and came in force from 3 January 1976. It commits its parties to work toward the granting of economic, social, and cultural rights (ESCR) to the Non-Self-Governing and Trust Territories and individuals, including labour rights and the right to health, the right to education, and the right to an adequate standard of living. As of July 2020, the Covenant has 171 parties. A further four countries, including the United States, have signed but not ratified the Covenant.

The ICESCR (and its Optional Protocol) is part of the International Bill of Human Rights, along with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), including the latter's first and second Optional Protocols.

The Covenant is monitored by the UN Committee on Economic, Social and Cultural Rights.

Genesis

The ICESCR has its roots in the same process that led to the Universal Declaration of Human Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San Francisco Conference which led to the founding of the United Nations, and the Economic and Social Council was given the task of drafting it. Early on in the process, the document was split into a declaration setting forth general principles of human rights, and a convention or covenant containing binding commitments. The former evolved into the UDHR and was adopted on 10 December 1948.

Drafting continued on the convention, but there remained significant differences between UN members on the relative importance of negative civil and political versus positive economic, social and cultural rights. These eventually caused the convention to be split into two separate covenants, "one to contain civil and political rights and the other to contain economic, social and cultural rights." The two covenants were to contain as many similar provisions as possible, and be opened for signature simultaneously. Each would also contain an article on the right of all peoples to self-determination.

The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

The first document became the International Covenant on Civil and Political Rights, and the second the International Covenant on Economic, Social and Cultural Rights. The drafts were presented to the UN General Assembly for discussion in 1954, and adopted in 1966.

Summary

The Covenant follows the structure of the UDHR and the ICCPR, with a preamble and thirty-one articles, divided into five parts.

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

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

Part 3 (Articles 6–15) lists the rights themselves. These include rights to

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

As negative and positive rights are rights that oblige either action (positive rights) or inaction (negative rights), many of these aforementioned rights include specific actions which must be undertaken to realise them, as they are positive economic, social and cultural rights that go beyond relatively inaction-based civil and political negative rights .

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

Part 5 (Articles 26–31) governs ratification, entry into force, and amendment of the Covenant.

Core provisions

Principle of progressive realisation

Article 2 of the Covenant imposes a duty on all parties to

take steps... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

This is known as the principle of "progressive realisation". It acknowledges that some of the rights (for example, the right to health) may be difficult in practice to achieve in a short period of time, and that states may be subject to resource constraints, but requires them to act as best they can within their means.

The principle differs from that of the ICCPR, which obliges parties to "respect and to ensure to all individuals within its territory and subject to its jurisdiction" the rights in that Convention. However, it does not render the Covenant meaningless. The requirement to "take steps" imposes a continuing obligation to work towards the realisation of the rights. It also rules out deliberately regressive measures which impede that goal. The Committee on Economic, Social and Cultural Rights also interprets the principle as imposing minimum core obligations to provide, at the least, minimum essential levels of each of the rights. If resources are highly constrained, this should include the use of targeted programmes aimed at the vulnerable.

The Committee on Economic, Social and Cultural Rights regards legislation as an indispensable means for realizing the rights which is unlikely to be limited by resource constraints. The enacting of anti-discrimination provisions and the establishment of enforceable rights with judicial remedies within national legal systems are considered to be appropriate means. Some provisions, such as anti-discrimination laws, are already required under other human rights instruments, such as the ICCPR.

Labour rights

Article 6 of the Covenant recognizes the right to work as defined by the opportunity of everyone to gain a means of sustenance by means of freely chosen or accepted work. Parties are required to take "appropriate steps" to safeguard this right, including technical and vocational training and economic policies aimed at steady economic development, and ultimately full employment. The right implies parties must guarantee equal access to employment and protect workers from being unfairly deprived of employment. They must prevent discrimination in the workplace and ensure access for the disadvantaged. The fact that work must be freely chosen or accepted means parties must prohibit forced or child labour.

The work referred to in Article 6 must be decent work. This is effectively defined by Article 7 of the Covenant, which recognises the right of everyone to "just and favourable" working conditions. These are in turn defined as fair wages with equal pay for equal work, sufficient to provide a decent living for workers and their dependants; safe working conditions; equal opportunity in the workplace; and sufficient rest and leisure, including limited working hours and regular, paid holidays.

Article 8 recognises the right of workers to form or join trade unions and protects the right to strike. However, it allows these rights to be restricted for members of the armed forces, police, or government administrators. Several parties have placed reservations on this clause, allowing it to be interpreted in a manner consistent with their constitutions (e.g., China, Mexico), or extending the restriction of union rights to groups such as firefighters (e.g., Japan).

Right to social security

Article 9 of the Covenant recognises "the right of everyone to social security, including social insurance". It requires parties to provide some form of social insurance scheme to protect people against the risks of sickness, disability, maternity, employment injury, unemployment or old age; to provide for survivors, orphans, and those who cannot afford health care; and to ensure that families are adequately supported. Benefits from such a scheme must be adequate, accessible to all, and provided without discrimination. The Covenant does not restrict the form of the scheme, and both contributory and non-contributory schemes are permissible (as are community-based and mutual schemes).

The Committee on Economic, Social and Cultural Rights has noted persistent problems with the implementation of this right, with very low levels of access.

Several parties, including France and Monaco, have reservations allowing them to set residence requirements in order to qualify for social benefits. The Committee on Economic, Social and Cultural Rights permits such restrictions, provided they are proportionate and reasonable.

Right to family life

Article 10 of the Covenant recognises the family as "the natural and fundamental group unit of society", and requires parties to accord it "the widest possible protection and assistance". Parties must ensure that their citizens are free to establish families and that marriages are freely contracted and not forced.

Parties must also provide paid leave or adequate social security to mothers before and after childbirth, an obligation which overlaps with that of Article 9. Finally, parties must take "special measures" to protect children from economic or social exploitation, including setting a minimum age of employment and barring children from dangerous and harmful occupations.

Right to an adequate standard of living

Article 11 recognises the right to an adequate standard of living. This includes, but is not limited to, the right to adequate food, clothing, housing, and "the continuous improvement of living conditions". It also creates an obligation on parties to work together to eliminate world hunger.

The right to adequate food, also referred to as the right to food, is interpreted as requiring "the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture". This must be accessible to all, implying an obligation to provide special programmes for the vulnerable. This must also ensure an equitable distribution of world food supplies in relation to need, taking into account the problems of food-importing and food-exporting countries. The right to adequate food also implies a right to water.

The right to adequate housing, also referred to as the right to housing, is "the right to live somewhere in security, peace and dignity." It requires "adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost." Parties must ensure security of tenure and that access is free of discrimination, and progressively work to eliminate homelessness. Forced evictions, defined as "the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection," are a prima facie violation of the Covenant.

The right to adequate clothing, also referred to as the right to clothing, has not been authoritatively defined and has received little in the way of academic commentary or international discussion. What is considered "adequate" has only been discussed in specific contexts, such as refugees, the disabled, the elderly, or workers.

Right to health

Article 12 of the Covenant recognises the right of everyone to "the enjoyment of the highest attainable standard of physical and mental health". "Health" is understood not just as a right to be healthy, but as a right to control one's own health and body (including reproduction), and be free from interference such as torture or medical experimentation. States must protect this right by ensuring that everyone within their jurisdiction has access to the underlying determinants of health, such as clean water, sanitation, food, nutrition and housing, and through a comprehensive system of healthcare, which is available to everyone without discrimination, and economically accessible to all.

Article 12.2 requires parties to take specific steps to improve the health of their citizens, including reducing infant mortality and improving child health, improving environmental and workplace health, preventing, controlling and treating epidemic diseases, and creating conditions to ensure equal and timely access to medical services for all. These are considered to be "illustrative, non-exhaustive examples", rather than a complete statement of parties' obligations.

The right to health is interpreted as requiring parties to respect women's reproductive rights, by not limiting access to contraception or "censoring, withholding or intentionally misrepresenting" information about sexual health. They must also ensure that women are protected from harmful traditional practices such as female genital mutilation.

The right to health is an inclusive right extending not only to timely and appropriate health care, but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions.

Right to free education

Article 13 of the Covenant recognises the right of everyone to free education (free for the primary level only, and "the progressive introduction of free education" for the secondary and higher levels). This is to be directed towards "the full development of the human personality and the sense of its dignity", and enable all persons to participate effectively in society. Education is seen both as a human right and as "an indispensable means of realizing other human rights", and so this is one of the longest and most important articles of the Covenant.

Article 13.2 lists a number of specific steps parties are required to pursue to realise the right of education. These include the provision of free, universal and compulsory primary education, "generally available and accessible" secondary education in various forms (including technical and vocational training), and equally accessible higher education. All of these must be available to all without discrimination. Parties must also develop a school system (though it may be public, private, or mixed), encourage or provide scholarships for disadvantaged groups. Parties are required to make education free at all levels, either immediately or progressively; "[p]rimary education shall be compulsory and available free to all"; secondary education "shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education"; and "[h]igher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education".

Articles 13.3 and 13.4 require parties to respect the educational freedom of parents by allowing them to choose and establish private educational institutions for their children, also referred to as freedom of education. They also recognise the right of parents to "ensure the religious and moral education of their children in conformity with their own convictions". This is interpreted as requiring public schools to respect the freedom of religion and conscience of their students, and as forbidding instruction in a particular religion or belief system unless non-discriminatory exemptions and alternatives are available.

The Committee on Economic, Social and Cultural Rights interpret the Covenant as also requiring states to respect the academic freedom of staff and students, as this is vital for the educational process. It also considers corporal punishment in schools to be inconsistent with the Covenant's underlying principle of the dignity of the individual.

Article 14 of the Covenant requires those parties which have not yet established a system of free compulsory primary education to rapidly adopt a detailed plan of action for its introduction "within a reasonable number of years".

Right to participation in cultural life

Article 15 of the Covenant recognises the right of everyone to participate in cultural life, enjoy the benefits of scientific progress, and to benefit from the protection of the moral and material rights to any scientific discovery or artistic work they have created. The latter clause is sometimes seen as requiring the protection of intellectual property, but the Committee on Economic, Social and Cultural Rights interprets it as primarily protecting the moral rights of authors and "proclaim[ing] the intrinsically personal character of every creation of the human mind and the ensuing durable link between creators and their creations". It thus requires parties to respect the right of authors to be recognised as the creator of a work. The material rights are interpreted as being part of the right to an adequate standard of living, and "need not extend over the entire lifespan of an author."

Parties must also work to promote the conservation, development and diffusion of science and culture, "respect the freedom indispensable for scientific research and creative activity", and encourage international contacts and cooperation in these fields.

Reservations

A number of parties have made reservations and interpretative declarations to their application of the Covenant.

Algeria interprets parts of Article 13, protecting the liberty of parents to freely choose or establish suitable educational institutions, so as not to "impair its right freely to organize its educational system."

Bangladesh interprets the self-determination clause in Article 1 as applying in the historical context of colonialism. It also reserves the right to interpret the labour rights in Articles 7 and 8 and the non-discrimination clauses of Articles 2 and 3 within the context of its constitution and domestic law.

Belgium interprets non-discrimination as to national origin as "not necessarily implying an obligation on States automatically to guarantee to foreigners the same rights as to their nationals. The term should be understood to refer to the elimination of any arbitrary behaviour but not of differences in treatment based on objective and reasonable considerations, in conformity with the principles prevailing in democratic societies."

China restricts labour rights in Article 8 in a manner consistent with its constitution and domestic law.

Egypt accepts the Covenant only to the extent it does not conflict with Islamic Sharia law. Sharia is "a primary source of legislation" under Article 2 of both the suspended 1973 Constitution and the 2011 Provisional Constitutional Declaration.

France views the Covenant as subservient to the UN Charter. It also reserves the right to govern the access of aliens to employment, social security, and other benefits.

India interprets the right of self-determination as applying "only to the peoples under foreign domination" and not to apply to peoples within sovereign nation-states. It also interprets the limitation of rights clause and the rights of equal opportunity in the workplace within the context of its constitution.

Indonesia interprets the self-determination clause (Article 1) within the context of other international law and as not applying to peoples within a sovereign nation-state.

Ireland reserves the right to promote the Irish language.

Japan reserved the right not to be bound to progressively introduce free secondary and higher education, the right to strike for public servant and the remuneration on public holidays.

Kuwait interprets the non-discrimination clauses of Articles 2 and 3 within its constitution and laws, and reserves the right to social security to apply only to Kuwaitis. It also reserves the right to forbid strikes.

Mexico restricts the labour rights of Article 8 within the context of its constitution and laws.

Monaco interprets the principle of non-discrimination on the grounds of national origin as "not necessarily implying an automatic obligation on the part of States to guarantee foreigners the same rights as their nationals", and reserves the right to set residence requirements on the rights to work, health, education, and social security.

Myanmar has a general reservation to interpret "the right of self-determination" to not interfere with the established government or authorize any action to undermine the government. Additionally, the term does not apply to Section 10 of the Constitution of the Republic of the Union of Myanmar, 2008. Section 10 reads: "no part of the territory constituted in the union such as regions, states, union territories, and self-administered areas shall ever secede from the Union."

New Zealand reserved the right not to apply Article 8 (the right to form and join trade unions) insofar as existing measures (which at the time included compulsory unionism and encouraged arbitration of disputes) were incompatible with it.

Norway reserves the right to strike so as to allow for compulsory arbitration of some labour disputes.

Pakistan has a general reservation to interpret the Covenant within the framework of its constitution.

Thailand interprets the right to self-determination within the framework of other international law.

Trinidad and Tobago reserves the right to restrict the right to strike of those engaged in essential occupations.

Turkey will implement the Covenant subject to the UN Charter. It also reserves the right to interpret and implement the right of parents to choose and establish educational institutions in a manner compatible with its constitution.

United Kingdom views the Covenant as subservient to the UN Charter. It made several reservations regarding its overseas territories.

United States – Amnesty International writes that "The United States signed the Covenant in 1979 under the Carter administration but is not fully bound by it until it is ratified. For political reasons, the Carter administration did not push for the necessary review of the Covenant by the Senate, which must give its 'advice and consent' before the US can ratify a treaty. The Reagan and George H.W. Bush administrations took the view that economic, social, and cultural rights were not really rights but merely desirable social goals and therefore should not be the object of binding treaties. The Clinton Administration did not deny the nature of these rights but did not find it politically expedient to engage in a battle with Congress over the Covenant. The George W. Bush administration followed in line with the view of the previous Bush administration." The Obama Administration stated "The Administration does not seek action at this time" on the Covenant. The Heritage Foundation, a critical conservative think tank, argues that signing it would obligate the introduction of policies that it opposes such as universal health care.

Optional Protocol

  states parties

  states that signed, but have not ratified

  states that have not signed

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights is a side-agreement to the Covenant which allows its parties to recognise the competence of the Committee on Economic Social and Cultural Rights to consider complaints from individuals.

The Optional Protocol was adopted by the UN General Assembly on 10 December 2008. It was opened for signature on 24 September 2009, and as of January 2020 has been signed by 45 parties and ratified by 24. Having passed the threshold of required ratifications, it has entered into force on 5 May 2013.

Committee on Economic, Social and Cultural Rights

Main article: Committee on Economic, Social and Cultural Rights

The Committee on Economic, Social and Cultural Rights is a body of human rights experts tasked with monitoring the implementation of the Covenant. It consists of 18 independent human rights experts, elected for four-year terms, with half the members elected every two years.

Unlike other human rights monitoring bodies, the committee was not established by the treaty it oversees. Rather, it was established by the Economic and Social Council following the failure of two previous monitoring bodies.

All states parties are required to submit regular reports to the Committee outlining the legislative, judicial, policy and other measures they have taken to implement the rights affirmed in the Covenant. The first report is due within two years of ratifying the Covenant; thereafter reports are due every five years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of "concluding observations".

The Committee typically meets every May and November in Geneva.

Freedom of information

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Freedom_of_information 

 

Free Speech Flag, from the HD DVD AACS case.

Freedom of information is freedom of a person or people to publish and consume information. The government of the United Kingdom has theorised it as being an extension of freedom of speech, and a fundamental human right. It is recognized in international law. It is related to freedom of expression, which can apply to any medium, be it oral, writing, print, electronic, or through art forms. This means that the protection of freedom of speech as a right includes not only the content, but also the means of expression. Freedom of information is a separate concept which sometimes comes into conflict with the right to privacy in the content of the Internet and information technology. As with the right to freedom of expression, the right to privacy is a recognized human right and freedom of information acts as an extension to this right. Lastly, freedom of information can include opposition to patents, opposition to copyrights or opposition to intellectual property in general. The international and United States Pirate Party have established political platforms based largely on freedom of information issues.

In law

In June 2006, nearly 70 countries had freedom of information legislations applying to information held by government bodies and in certain circumstances to private bodies. In 19 of these countries, the freedom of information legislation also applied to private bodies. Access to information was increasingly recognised as a prerequisite for transparency and accountability of governments, as facilitating consumers' ability to make informed choices, and as safeguarding citizens against mismanagement and corruption. This has led an increasing number of countries to enact freedom of information legislation in the past 10 years. In recent years, private bodies have started to perform functions which were previously carried out by public bodies. Privatisation and de-regulation saw banks, telecommunications companies, hospitals and universities being run by private entities, leading to demands for the extension of freedom of information legislation to cover private bodies.

Government bodies

As of 2006, 70 countries had comprehensive freedom of information legislation for public bodies, nearly half of which had been enacted in the past 10 years. Such legislation was pending in a further 50 countries.

Private bodies

As of 2006, the following 19 countries had freedom of information legislation that extended to government bodies and private bodies: Antigua and Barbuda, Angola, Armenia, Colombia, the Czech Republic, the Dominican Republic, Estonia, Finland, France, Iceland, Liechtenstein, Panama, Poland, Peru, South Africa, Turkey, Trinidad and Tobago, Slovakia, and the United Kingdom. The degree to which private bodies are covered under freedom of information legislation varies, in Angola, Armenia and Peru the legislation only applies to private companies that perform what are considered to be public functions. In the Czech Republic, the Dominican Republic, Finland, Trinidad and Tobago, Slovakia, Poland and Iceland private bodies that receive public funding are subject to freedom of information legislation. Freedom of information legislation in Estonia, France and UK covers private bodies in certain sectors. In South Africa the access provisions of the Promotion of Access to Information Act have been used by individuals to establish why their loan application has been denied. The access provisions have also been used by minority shareholders in private companies and environmental groups, who were seeking information on the potential environmental damage caused by company projects.

Consumer protection

In 1983, the United Nations Commission on Transnational Corporations adopted the United Nations Guidelines for Consumer Protection stipulating eight consumer rights, including "consumer access to adequate information to enable making informed choices according to individual wishes and needs". Access to information became regarded as a basic consumer right, and preventive disclosure, i.e. the disclosure of information on threats to human lives, health and safety, began to be emphasized.

Investors

Secretive decision making by company directors and corporate scandal led to freedom of information legislation to be published for the benefits of investors. Such legislation was first adopted in Britain in the early 20th century, and later in North America and other countries. Disclosure regimes for the benefit of investors regained attention at the beginning of the 21st century as a number of corporate scandals were linked to accounting fraud and company director secrecy. Starting with Enron, the subsequent scandals involving Worldcom, Tyco, Adelphia and Global Crossing prompted the US Congress to impose new information disclosure obligations on companies with the Sarbanes-Oxley Act 2002.

Internet and information technology

Freedom of information (or information freedom) also refers to the protection of the right to freedom of expression with regard to the Internet and information technology. Freedom of information may also concern censorship in an information technology context, i.e. the ability to access Web content, without censorship or restrictions.

The Information Society and freedom of expression

The World Summit on the Information Society (WSIS) Declaration of Principles adopted in 2003 reaffirms democracy and the universality, indivisibility and interdependence of all human rights and fundamental freedoms. The Declaration also makes specific reference to the importance of the right to freedom of expression for the "Information Society" in stating:

We reaffirm, as an essential foundation of the Information Society, and as outlined in Article 19 of the Universal Declaration of Human Rights, that everyone has the right to freedom of opinion and expression; that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Communication is a fundamental social process, a basic human need and the foundation of all social organisation. It is central to the Information Society. Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits the Information Society offers.

The 2004 WSIS Declaration of Principles also acknowledged that "it is necessary to prevent the use of information resources and technologies for criminal and terrorist purposes, while respecting human rights". Wolfgang Benedek comments that the WSIS Declaration only contains a number of references to human rights and does not spell out any procedures or mechanism to assure that human rights are considered in practice.

Hacktivismo

The digital rights group Hacktivismo, founded in 1999, argues that access to information is a basic human right. The group's beliefs are described fully in the "Hacktivismo Declaration" which calls for the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) to be applied to the Internet. The Declaration recalls the duty of member states to the ICCPR to protect the right to freedom of expression with regard to the internet and in this context freedom of information. The Hacktivismo Declaration recognizes "the importance to fight against human rights abuses with respect to reasonable access to information on the Internet" and calls upon the hacker community to "study ways and means of circumventing state sponsored censorship of the internet" and "implement technologies to challenge information rights violations". The Hacktivismo Declaration does, however, recognise that the right to freedom of expression is subject to limitations, stating "we recognized the right of governments to forbid the publication of properly categorized state secrets, child pornography, and matters related to personal privacy and privilege, among other accepted restrictions." However, the Hacktivist Declaration states "but we oppose the use of state power to control access to the works of critics, intellectuals, artists, or religious figures."

Global Network Initiative

On October 29, 2008 the Global Network Initiative (GNI) was founded upon its "Principles on Freedom of Expression and Privacy". The Initiative was launched in the 60th Anniversary year of the Universal Declaration of Human Rights (UDHR) and is based on internationally recognized laws and standards for human rights on freedom of expression and privacy set out in the UDHR, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Participants in the Initiative include the Electronic Frontier Foundation, Human Rights Watch, Google, Microsoft, Yahoo, other major companies, human rights NGOs, investors, and academics.

According to reports Cisco Systems was invited to the initial discussions but didn't take part in the initiative. Harrington Investments, which proposed that Cisco establish a human rights board, has dismissed the GNI as a voluntary code of conduct not having any impact. Chief executive John Harrington called the GNI "meaningless noise" and instead calls for bylaws to be introduced that force boards of directors to accept human rights responsibilities.

Internet censorship

Jo Glanville, editor of the Index on Censorship, states that "the internet has been a revolution for censorship as much as for free speech". The concept of freedom of information has emerged in response to state sponsored censorship, monitoring and surveillance of the internet. Internet censorship includes the control or suppression of the publishing or accessing of information on the Internet.

According to the Reporters without Borders (RSF) "internet enemy list" the following states engage in pervasive internet censorship: Cuba, Iran, Maldives, Myanmar/Burma, North Korea, Syria, Tunisia, Uzbekistan and Vietnam. A widely publicised example is the so-called "Great Firewall of China" (in reference both to its role as a network firewall and to the ancient Great Wall of China). The system blocks content by preventing IP addresses from being routed through and consists of standard firewall and proxy servers at the Internet gateways. The system also selectively engages in DNS poisoning when particular sites are requested. The government does not appear to be systematically examining Internet content, as this appears to be technically impractical. Internet censorship in the People's Republic of China is conducted under a wide variety of laws and administrative regulations. In accordance with these laws, more than sixty Internet regulations have been made by the People's Republic of China (PRC) government, and censorship systems are vigorously implemented by provincial branches of state-owned ISPs, business companies, and organizations.

In 2010, U.S. Secretary of State Hillary Clinton, speaking on behalf of the United States, declared 'we stand for a single internet where all of humanity has equal access to knowledge and ideas'. In her 'Remarks on Internet Freedom' she also draws attention to how 'even in authoritarian countries, information networks are helping people discover new facts and making governments more accountable', while reporting President Barack Obama's pronouncement 'the more freely information flows, the stronger societies become'.