Saturday, June 25, 2016

10:44:00 AM - No comments

Human rights problems occur in specific legal contexts. The issue may arise in domestic law, or within the framework of a standard-setting convention or within general international law" [Brownlie]

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Violations of human rights occur generally within states and prima facie does not involve any international consequences. Events such as  Nuremburg and Tokyo Trials, International Criminal Tribunal for the Former Yugoslavia etcetera are examples for the enforcement of international protection of human rights. Hence when a human right is violated where  can an individual look for a remedy?

An individual may find a remedy in the domestic courts if the constitution guarantees fundamental rights enshrined in specific provisions. A country may choose to be monist or dualist in its' adherence to international law. In order to understand the nature of international law its' sources must be discussed. Article 38, paragraph 1 of the statute of the court describes the sources of international law which includes: international conventions, international custom, general principles of law recognized by civilized states and subject to provisions of article 59, judicial decisions and teachings of highly qualified publicists.

Gardiner in his classification excludes treaties as general international law stating that treaties create right and duties only to those who are signatories. The Vienna convention 1969 defines treaties as "an international agreement concluded between states in written form and governed by international law" Gardiner maybe right in his statement about treaties. The highest number of reservations have been made to the Convention on the Elimination all forms of Discrimination Against Women (CEDAW). Article 14 of the International convention on Civil and Political rights (ICCPR) is subject to the highest number of reservations. The US has not yet ratified the convention on the rights of the child. The US has also made reservations to Article 6 right to life and Article 7 Prohibition against torture which are non-derogable rights.

Although US has derogated from these rights the decision in Hamdan v Rumsfield illustrates that there are instances in which the domestic courts may give effect to rights within their discretion. President Bush had created a military commission to try prisoners of war and declared the claimant Hamdan had committed acts triable by the commission. Supreme court ruling stated the commission was not constitutional as it violates the rules established by uniform code of military justice and Article 3 common to all Geneva conventions concerning right to a fair trial  and prohibition on torture and indefinite detention.

Alston and Goodman has commented on the role of customary international law as indispensable to an adequate understanding of the human rights regime. In Filartiga v Pena Irala, for the purpose of the Allen Tort Statute, torture was considered to violate law of nations. It was decided that prohibition against torture has become part of customary international law. The decision in Filartiga was influenced by the Universal Declaration of Human Rights.  UDHR is not a treaty nor is it an international agreement. Thus it has no legally binding force. There is an argument that because it was adopted by members of the General Assembly by vote it can be seen as an authoritative statement of the international community.

In Filartiga it was further argued that a declaration creates an expectation of adherence and ''in so far as the declaration is gradually justified by state practice a declaration may become custom'' The UDHR can be made effective in national law by being incorporated into a national constitution and the constitution may go on to specify whether or not international agreements have been made law. Article 39 (1) b of the South African constitution requires judges to take into account international law in judicial interpretation. Brownlie's statement thus creates a distinction between standard setting convention and general international law and in the above paragraphs the binding nature of agreements was discussed. As far as the UDHR is concerned one may say that it has a nuanced understanding.

Eleanor Rooselvelt and scholars such as Rossalyn Higgins has advocated on the universalist position of human rights. They take the position that rights are universal and indivisble and should apply to every human being equally. There is an opposing school of thought on part of cultural relativists those who take the position that rights are not universal but should be made culturally relevant. Thus regional documents on Human rights were made such as the Bankock declaration of human rights, Cairo declaration of human rights and the Islamic declaration of Human Rights. The 'asian values debate' by cultural relativists state that human rights are culturally dependant and the principles embedded in the UDHR are only products of Western political history and a universal attempt to extend western liberal ideals to the rest of the world in the form of cultural imperialism.

Therefore the rights embedded in the UDHR is not universal but is in contention with rights of other cultures and such countries prefer local and traditional approaches to justice. In conclusion to the discussion on Brownlie's arguement it must be said that human rights problems do occur in specific legal contexts and remedies to violations of human rights depends on the context in which human rights are recognized.


-International protection of Human Rights subject guide University of London International Programmes.
-Alston and Goodman International Human rights.
-Steinor and Alston International Human Rights in context Law Politics and Morals.

8:36:00 AM - No comments

Women make better Inclusive Leaders

Business News daily came up with 30 different ways to define leadership by asking 30 leaders in business to define what leadership means to them. I wish to quote a few of those which I found striking "Leadership is stepping out of your comfort zone and taking risk to create reward." – Katie Easley, founder, Kate Ryan Design.

"Leadership means using one's influence to help guide others in successfully achieving a goal without desire for recognition, without worry of what others think and with awareness of issues, internal or external, that might change the results sought." – Marie Hansen, dean of the college of business, Husson University. (, 2015)

In Sri Lanka one of the striking young entrepreneurs we have is Otara Gunawardena, the CEO of ODEL warehouses. One of her strongest believes on leadership in her words is : “To be successful one has to achieve a balance between business sensibility and social responsibility “

What is Inclusive Leadership?

A sensible reader of this blog would perhaps notice that all these quotes are by women entrepreneurs. This is because I strongly believe that women make good leaders especially when you put female leaders in to an inclusive leadership prism.  This would make you ask the question what is Inclusive leadership?

Inclusive leadership is the ability for a leader to include people with the most difficult of personality types in to working in a team. This also covers extreme introverts and others marginalized from society or not included in peer groups. For example: women with body image issues, a person with a lisp afraid of public speaking, or even someone with a social phobia. It is all about inspiring even the weakest of people to change positively for their development and to achieve a collective goal.

Why women?

Women in my opinion would make great inclusive leaders because of their ability to empathize, their sensitivity to the environment and intuition. A Business Insider Article I read recently on ‘’Why women are more effective leaders than men’’ set the record straight. A study done on the subject matter proved statistically that women actively take initiatives and are more competent at it. This was a study done on women’s leadership effectiveness : ‘representation in corporate America, and solutions for increasing their ranks’  (, 2014)

The study, by way of a standard 360 degree feedback instrument which measures 16 competencies, had proved that women scored higher than men in 12 of the 16 competencies.  Nurturing competencies such as developing, inspiring and motivating others are statistically significant. Reading this Business Insider article made me reflect on the National Leadership Development Seminar 2015 conducted by AIESEC Sri Lanka recently. AIESEC is the world’s largest student run organization focussed on empowering Youth for leadership development through cross-cultural volunteer exchanges and internships.

The Chair of the conference was a Vietnamese young lady called Milena Nguyen who had served at AIESEC International as a Global Partnership Development Manager.  Through transformational power of Yoga and excellent inter-personal skills she engaged with over 300 delegates from the AIESEC in Sri Lanka working body. She inspired and motivated the delegation who had many positive comments about her leadership.

In Sri Lanka, there are many females at lower level positions in organizations. In the streets there are more advertisements with a female figure, all focused on attracting customers which is very superficial. Such a superficial image on women could lead to a negative understanding of the female persona. Women are more than mere attractive figures because they can be leaders, change agents, and role models for both men and women. Education for females has never been more crucial. Free primary and tertiary education in Sri Lanka has enabled access to females to discover their potentials. Although this is so, only a few women pursue a greater ambition and work with vision. This has to CHANGE.

This blog is not intended at all to evoke female chauvinism on any grounds. Female representation in strategic levels of both public and private sector institutions in Sri Lanka is vital given that recent incidents concerning the impeachment of the Chief Justice has discouraged females from pursuing higher positions. The procedure of impeachment by the hands of ousted President Rajapaksa was incorrect. Our country needs women representing all ethnic groups to be more engaged in these matters especially when the country is undergoing major changes internally and also in international relations. We need more women leaders!

Disclaimer- AIESEC is a non-political organization that does not represent or endorse the political views represented in this blog. The views expressed are only the personal views of Miss Natasha Fernando (blog author).