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  • Print publication year: 2016
  • Online publication date: May 2018

8 - Civil and political rights

Summary

INTRODUCTION

Civil and political rights emerged out of fundamental rights conceptions protecting life, integrity, liberty and opinion of a person against an overbearing state. The twentieth century demonstrated that these rights were at risk in multiple contexts, ranging from genocidal campaigns, dictatorships and arbitrary law-enforcement to conflict and a breakdown of law and order. Rights such as the right to life and freedom from ill-treatment may also be at risk from other sources, namely non-state actors in the domestic and other spheres, which have taken on a growing importance in the wake of states’ withdrawal from public functions. While international human rights standards have been developed to provide adequate protection in these circumstances, their implementation requires certain structures without which it is unlikely that core civil and political rights can be effectively protected. The rule of law, the administration of justice and democratic structures are key components in this regard. While international human rights law does not mandate that a particular political system be in place, it is difficult to see how rights can be effectively protected without having at least a minimum of checks and balances.

Equally, however, a democratic system as such is not a panacea for rights protection. Indeed, there are deep-seated structural factors that can, and have, undermined the effective protection of rights in all systems. Social exclusion, inequality and discrimination in particular are prone to significantly increase vulnerability, as evident in the higher likelihood of persons from certain ethnic or class or national backgrounds being subject to arbitrary arrest, detention, ill-treatment and other violations. As a yardstick of power relations in a society, social exclusion, inequality and discrimination are also closely related to lack of access to justice, which both reflects and compounds vulnerabilities and impunity. The absence of effective remedies and accountability of those responsible has been identified as a central factor contributing to the perpetuation of violations. The resulting impunity constitutes both a cause and manifestation of a malfunctioning system that fails to protect. Against this background this chapter identifies the normative content of the right to life, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment), the right to liberty and security, the right to a fair trial and qualified rights, particularly freedom of expression, and examines the challenge of ensuring their effective protection.

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