Posted by Tane on January 23, 2010 at 7:01am in Politics
Civil Rights reflect Human Rights recognized internationally. DLNR has been violating those rights and need to familiarize themselves with it. I am posting information about it which you can glean from to see how they have overstepped their bounds.
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The Fourth Geneva Convention, for the protection of civilian persons in time of war, is one of the four treaties of the Geneva Conventions. It was adopted in 1949, and defines humanitarian protections for civilians in a war zone, and outlaws the practice of total war. There are currently 194 countries party to the 1949 Geneva Conventions, including this fourth treaty but also including the other three.[1]
In 1993 the United Nations Security Council adopted a report from the Secretary General and a Commission of Experts which concluded that the Geneva Conventions had passed into the body of customary international law that is binding on non-signatory parties whenever they engage in armed conflicts. [2]
Part I. General Provisions
This sets out the overall parameters for GCIV:
Article 2 states that signatories are bound by the convention both in war, armed conflicts where war has not been declared and in an occupation of another country's territory.
Article 3 states that even where there is not a conflict of international character the parties must as a minimum adhere to minimal protections described as: noncombatants, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause shall in all circumstances be treated humanely, with the following prohibitions:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Article 4 defines who is a Protected person: Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. But it explicitly excludes Nationals of a State which is not bound by the Convention and the citizens of a neutral state or an allied state if that state has normal diplomatic relations within the State in whose hands they are.
A number of articles specify how Protecting Powers, ICRC and other humanitarian organizations may aid Protected persons.
Protected person is the most important definition in this section because many of the articles in the rest of GCIV only apply to Protected persons
Part II. General Protection of Populations Against Certain Consequences of War
Article 13. The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war.
Part III. Status and Treatment of Protected Persons
Section I. Provisions common to the territories of the parties to the conflict and to occupied territories
Article 32. A protected person/s shall not have anything done to them of such a character as to cause physical suffering or extermination ... the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment' While popular debate remains on what constitutes a legal definition of torture (see discussion on the Torture page), the ban on corporal punishment simplifies the matter; even the most mundane physical abuse is thereby forbidden by Article 32, as a precaution against alternate definitions of torture.
The prohibition on scientific experiments was added, in part, in response to experiments by German and Japanese doctors during World War II, of whom Josef Mengele was the most infamous.
Collective punishments
Article 33. No protected person may be punished for an offense he or she has not personally committed.
Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
Pillage is prohibited.
Reprisals against protected persons and their property are prohibited.
Under the 1949 Geneva Conventions collective punishments are a war crime. By collective punishment, the drafters of the Geneva Conventions had in mind the reprisal killings of World Wars I and World War II. In the First World War, Germans executed Belgian villagers in mass retribution for resistance activity. In World War II, Nazis carried out a form of collective punishment to suppress resistance. Entire villages or towns or districts were held responsible for any resistance activity that took place there. The conventions, to counter this, reiterated the principle of individual responsibility. The International Committee of the Red Cross (ICRC) Commentary to the conventions states that parties to a conflict often would resort to "intimidatory measures to terrorize the population" in hopes of preventing hostile acts, but such practices "strike at guilty and innocent alike. They are opposed to all principles based on humanity and justice."
Additional Protocol II of 1977 explicitly forbids collective punishment. But as fewer states have ratified this protocol than GCIV, GCIV Article 33. is the one more commonly quoted.
Section III. Occupied territories
Articles 47-78 impose substantial obligations on occupying powers. As well as numerous provisions for the general welfare of the inhabitants of an occupied territory, an occupier may not forcibly deport protected persons, or deport or transfer parts of its own civilian population into occupied territory (Art.49).
Part IV. Execution of the Convention
This part contains "the formal or diplomatic provisions which it is customary to place at the end of an international Convention to settle the procedure for bringing it into effect are grouped together under this heading (1). They are similar in all four Geneva Conventions of 1949."[3]
Annexes
The ICRC commentary on the Fourth Geneva convention states that when the establishment of hospital and safety zones in occupied territories were discussed reference was made to a draft agreement and it was agreed to append it as an annex I to the Fourth Geneva Convention.[4]
The ICRC states that "the Draft Agreement has only been put forward to States as a model, but the fact that it as carefully drafted at the Diplomatic Conference, which finally adopted it, gives it a very real value. It could usefully be taken as a working basis, therefore, whenever a hospital zone is to be established."[4]
The ICRC states that Annex II is a "...draft which, according to Article 109 (paragraph 1) of the Convention, will be applied in the absence of special agreements between the Parties, deals with the conditions for the receipt and distribution of collective relief shipments. It is based on the traditions of the International Committee of the Red Cross which submitted it, and on the experience the Committee gained during the Second World War."[5]
.................................................................
Civil Rights - Guide to Civil Rights Law
In civil law jurisdictions, a civil right is a right or power which can be exercised under civil law, which includes things such as the ability to contract. In civil law jurisdictions, lawsuits between private parties for things such as breach of contract or a tort are usually expressed in terms of infringement of a civil right.
In common law jurisdiction, the term civil right is distinguished from "human rights" or "natural rights". Civil rights are rights that are bestowed by nations on those within their territorial boundaries, while natural or human rights are rights that many scholars claim that individuals have by nature of being born. Other practice areas related to Civil Rights are Constitutional Law, Consumer Law, Discrimination, Human Rights, Native Populations, Privacy Law, Public Law, and Sexual Harassment.
Civil Rights - US
Civil Rights - Wex
A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. Examples of civil rights are freedom of speech, press, and assembly; the right to vote; freedom from involuntary servitude; and the right to equality in public places.
Corruption of Civil Rights and Civil Law
The concepts of "civil rights" and of "civil law" are both functions of the concept of "civil society": Civil society is that sphere of private action free of government control. It is not free of government action, because government action secures the nature of civil society by the protection of persons against criminal wrongs.
U.S. - Are America’s Civil Rights Laws Still Relevant?
The federal government created America’s historic 1964 Civil Rights Act during a period of low immigration. The primary goal was to create equal opportunities for African Americans by ending Jim Crow discrimination in the South.
U.S. Commission on Civil Rights
The mission of the U.S. Commission on Civil Rights is to investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices; to study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice.
U.S. Department of Justice - Civil Rights Division
The Civil Rights Division is committed to upholding the civil and constitutional rights of all Americans, including some of the most vulnerable members of our society. Founded in 1957, we celebrate our 50th Anniversary next year. Our proud mission remains vitally important today. The federal anti-discrimination statutes that we enforce reflect some of America’s highest ideals and aspirations: equal treatment and equal justice under law.
What is Fair Trial?
The right to a fair trial is a norm of international human rights law designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent of which are the right to life and liberty of the person.
Civil Rights - International
Freedom Force International
Freedom Force International is a network of men and women from all parts of the world who are concerned over loss of personal liberty and expansion of government power. They are not mere complainers. They have a plan to do something about it. They also share a common belief in The Creed of Freedom, which is a statement of principles that guide them in their mission to build a better world.
International and Regional Human Rights Standards on Freedom of Movement
The right to freedom of movement is a fundamental human right which has found expression and won endorsement in a varied range of human rights and humanitarian protection instruments.
International Center for Transitional Justice
The International Center for Transitional Justice (ICTJ) assists countries pursuing accountability for past mass atrocity or human rights abuse. The Center works in societies emerging from repressive rule or armed conflict, as well as in established democracies where historical injustices or systemic abuse remain unresolved.
International Covenant on Civil and Political Rights
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entry into force 23 March 1976, in accordance with Article 49.
Universal Jurisdiction
Universal jurisdiction is the principle that every country has an interest in bringing to justice the perpetrators of grave crimes, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims.
........................................................................................................................................................................
Today, it is considered by most nations contradictory to the modern concept of due process, where each individual receives separate treatment based on his or her role in the crime in question. Article 33 of the Fourth Geneva Convention specifically forbids collective punishment.
National Origin Discrimination Under Hawaii Law
Roman Amaguin, Esq.
Provided by Law Office of Roman Amaguin
Title VII prohibits discrimination because of "national origin." The EEOC defines national origin discrimination as the denial of equal employment opportunity because of an individual's ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group. Hawaii law prohibits "ancestry" discrimination. Like Title VII, the terms "ancestry" and "national origin" overlap.
Title VII prohibits discrimination because of "national origin." The Equal Employment Opportunity Commission ("EEOC") defines national origin discrimination as the denial of equal employment opportunity because of an individual's ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1.
"National origin" is a vague concept. The EEOC attempts to resolve some of the uncertainty by recognizing that while one's "ancestry" is not necessarily synonymous with one's national origin, where a person was born, the terms overlap as a legal matter. The United States Supreme Court has itself stated that, "the term &national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came."
Hawaii law, HRS Chapter 378, prohibits "ancestry" discrimination, but not national origin discrimination. Like Title VII, the terms "ancestry" and "national origin" as a practical matter overlap under Hawaii law. The state regulations are more expansive in that employers are precluded, unless there is a bona fide occupational qualification, from making pre-employment inquiries and requests for information which tend to disclose the applicant's ancestry. Under federal law, such inquires are not illegal per se, but may constitute evidence of unlawful discrimination.
Neither Title VII nor Hawai'i Revised Statutes Chapter 378 specifically prohibits discrimination on the basis of a person's citizenship. However, citizenship requirements that have the effect of discriminating against an individual because of his or her national origin or ancestry are unlawful. Additionally, discriminating against an individual because of a person's citizenship status is prohibited under the Immigration Reform and Control Act of 1986 ("IRCA"). IRCA prohibits employers with more than three employees from discriminating because of citizenship status.
Pre-Employment Practices
If language skills are relevant to the job, an employer may ask applicants what languages they read, speak, or write fluently. However, according to the Hawaii Civil Rights Commission’s ("HCRC") Guideline for Pre-Employment Inquiries (Application Forms and Job Interviews), an employer should not make the following pre-employment inquiries: Applicant's nationality, lineage, ancestry, national origin, descent, or parentage; nationality of applicant's parent or spouse; maiden name of applicant's wife or mother; language commonly used by applicant. "What is your mother tongue?; how applicant acquired ability to read, write, or speak a foreign language; whether applicant, parents, or spouse are naturalized or native-born U.S. citizens; birthplace of applicant; birthplace of applicant's parents, spouse, or other relatives; requirement that applicant submit proof of birth document prior to hiring; "Of what country are you a citizen?; date when applicant, parents or spouse acquired U.S. citizenship; requirement that applicant produce naturalization papers.
National Security Exception
Employment decisions that discriminate against a person's national origin are not unlawful if made for national security reasons. However, the singling out an individual or group when applying security requirements is unlawful. Employers relying on this exemption should be prepared prove as an affirmative defense that its employment decision was made because of national security requirements imposed by statute or Executive Order.
English-Only Rules
Employers frequently pass an "English-only" in the workplace rule without realizing it potentially violates federal and Hawaii law prohibiting national origin/ancestry discrimination. Care must be taken when implementing a policy prohibiting employees from speaking in any language other than English.
The scope of the English-only rule may affect its lawfulness. The EEOC closely scrutinizes English only rules that are applied at all times, as opposed to only at certain times. Both the EEOC and the Hawaii Civil Rights Commission presume that English-only rules applied at all times, including work breaks, are unlawful. On the other hand, English-only rules that apply only at certain times may be justified by business necessity. Proper justifications for English-only rules include the promotion of safety or efficient business operations.
When deciding whether to adopt an English only rule, employers should consider the following:
1.Evidence of safety or other business justifications for the rule
2.Likely effectiveness of the rule in meeting its objectives
3.English proficiency of workers affected by the rule. 2002
EEOC guidelines list the following examples where business necessity justifies an English only policy: For communications with customers, coworkers, or supervisors who only speak English; in emergencies or other situations in which workers must speak a common language to promote safety; for cooperative work assignments in which the English only rule is needed to promote efficiency; to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.
When enforcing English-only rules, employers should be sure to give employees fair notice of the rule and consequences for any violation. Sometimes, employers may need to give notice in English and in the other spoken languages in the workplace. Disciplining an employee for violating the rule without proper notice is considered evidence of national origin discrimination under both federal and Hawaii law.
Foreign Accents
Discrimination because of a person's accent may be unlawful, unless the employer can establish a legitimate, nondiscriminatory reason. An accent that interferes materially with job performance justifies an adverse employment decision based on the accent. However, if an individual can communicate well enough to perform all functions required by the job, then discrimination because of a person's accent may not be justified.
There is a difference between a merely discernible accent and one that renders the individual unable to perform the job's verbal communication requirements. Positions which may require effective English oral communication include teaching, customer service, and telemarketing.
For instance, in a Hawaii case, Fragrante v. City & County of Honolulu, (1989), a Filipino man applied for but was not selected for a clerk position with the City & County of Honolulu's Division of Motor Vehicles and Licensing. The position required some verbal communication over the telephone and in person. The interviewers believed that the applicant's accent was "difficult to understand" and "would be difficult to understand over the telephone". The court found that the City did not discriminate against the applicant because of his national origin but rather decided not to hire him because of his accent's deleterious effect on his ability to verbally communicate.
ABOUT THE AUTHOR: Roman Amaguin, Esq.
Roman Amaguin, Esq. has been practicing law in Hawaii since 1995, and specializes in employment and labor law, and general civil litigation.
Copyright Law Office of Roman Amaguin
More information about Law Office of Roman Amaguin
All Civil Rights Law Related Articles
Articles written by attorneys and experts worldwide discussing legal aspects related to Civil Rights including: constitutional law, consumer law, discrimination, human rights, native populations, privacy law, public law and sexual harassment.
HG Resources on Civil Rights
Guide to Constitutional Law
Constitutional law deals with constitutions as they set out the general framework of government. Government entities and specific provisions providing for human rights and civil rights, which are part of some constitutions, are set out in the appropriate sections.
Guide to Consumer Law
The rights of consumers are becoming increasingly important around the world. Governments have passed numerous laws to assure that end users have the same rights as manufacturers and providers of services.
Guide to Human Rights
Human rights: basic rights and freedoms to which all humans are entitled such as civil and political rights, the right to life and liberty, freedom of thought and expression, equality before the law, social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education.
............................................
What is Wex?
Wex is a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School. Wex entries are collaboratively created and edited by legal experts. More information about Wex can be found in the Wex FAQ. Here's a list of all existing pages.
civil rights: an overview
A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. Examples of civil rights are freedom of speech, press, and assembly; the right to vote; freedom from involuntary servitude; and the right to equality in public places. Discrimination occurs when the civil rights of an individual are denied or interfered with because of their membership in a particular group or class. Statutes have been enacted to prevent discrimination based on a person's race, sex, religion, age, previous condition of servitude, physical limitation, national origin, and in some instances sexual preference.
The existence of civil rights and liberties are recognized internationally by numerous agreements and declarations. Often these rights are included in agreements in which nations pledge themselves to the general protection of Human Rights. The United States has recently adhered to the most notable international agreement on civil rights: The International Covenant on Civil and Political Rights.
Replies
In 1993 the United Nations Security Council adopted a report from the Secretary General and a Commission of Experts which concluded that the Geneva Conventions had passed into the body of customary international law that is binding on non-signatory parties whenever they engage in armed conflicts. [2]
Part I. General Provisions
This sets out the overall parameters for GCIV:
Article 2 states that signatories are bound by the convention both in war, armed conflicts where war has not been declared and in an occupation of another country's territory.
Article 3 states that even where there is not a conflict of international character the parties must as a minimum adhere to minimal protections described as: noncombatants, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause shall in all circumstances be treated humanely, with the following prohibitions:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Article 4 defines who is a Protected person: Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. But it explicitly excludes Nationals of a State which is not bound by the Convention and the citizens of a neutral state or an allied state if that state has normal diplomatic relations within the State in whose hands they are.
A number of articles specify how Protecting Powers, ICRC and other humanitarian organizations may aid Protected persons.
Protected person is the most important definition in this section because many of the articles in the rest of GCIV only apply to Protected persons
Part II. General Protection of Populations Against Certain Consequences of War
Article 13. The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war.
Part III. Status and Treatment of Protected Persons
Section I. Provisions common to the territories of the parties to the conflict and to occupied territories
Article 32. A protected person/s shall not have anything done to them of such a character as to cause physical suffering or extermination ... the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment' While popular debate remains on what constitutes a legal definition of torture (see discussion on the Torture page), the ban on corporal punishment simplifies the matter; even the most mundane physical abuse is thereby forbidden by Article 32, as a precaution against alternate definitions of torture.
The prohibition on scientific experiments was added, in part, in response to experiments by German and Japanese doctors during World War II, of whom Josef Mengele was the most infamous.
Collective punishments
Article 33. No protected person may be punished for an offense he or she has not personally committed.
Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
Pillage is prohibited.
Reprisals against protected persons and their property are prohibited.
Under the 1949 Geneva Conventions collective punishments are a war crime. By collective punishment, the drafters of the Geneva Conventions had in mind the reprisal killings of World Wars I and World War II. In the First World War, Germans executed Belgian villagers in mass retribution for resistance activity. In World War II, Nazis carried out a form of collective punishment to suppress resistance. Entire villages or towns or districts were held responsible for any resistance activity that took place there. The conventions, to counter this, reiterated the principle of individual responsibility. The International Committee of the Red Cross (ICRC) Commentary to the conventions states that parties to a conflict often would resort to "intimidatory measures to terrorize the population" in hopes of preventing hostile acts, but such practices "strike at guilty and innocent alike. They are opposed to all principles based on humanity and justice."
Additional Protocol II of 1977 explicitly forbids collective punishment. But as fewer states have ratified this protocol than GCIV, GCIV Article 33. is the one more commonly quoted.
Section III. Occupied territories
Articles 47-78 impose substantial obligations on occupying powers. As well as numerous provisions for the general welfare of the inhabitants of an occupied territory, an occupier may not forcibly deport protected persons, or deport or transfer parts of its own civilian population into occupied territory (Art.49).
Part IV. Execution of the Convention
This part contains "the formal or diplomatic provisions which it is customary to place at the end of an international Convention to settle the procedure for bringing it into effect are grouped together under this heading (1). They are similar in all four Geneva Conventions of 1949."[3]
Annexes
The ICRC commentary on the Fourth Geneva convention states that when the establishment of hospital and safety zones in occupied territories were discussed reference was made to a draft agreement and it was agreed to append it as an annex I to the Fourth Geneva Convention.[4]
The ICRC states that "the Draft Agreement has only been put forward to States as a model, but the fact that it as carefully drafted at the Diplomatic Conference, which finally adopted it, gives it a very real value. It could usefully be taken as a working basis, therefore, whenever a hospital zone is to be established."[4]
The ICRC states that Annex II is a "...draft which, according to Article 109 (paragraph 1) of the Convention, will be applied in the absence of special agreements between the Parties, deals with the conditions for the receipt and distribution of collective relief shipments. It is based on the traditions of the International Committee of the Red Cross which submitted it, and on the experience the Committee gained during the Second World War."[5]
.................................................................
Civil Rights - Guide to Civil Rights Law
In civil law jurisdictions, a civil right is a right or power which can be exercised under civil law, which includes things such as the ability to contract. In civil law jurisdictions, lawsuits between private parties for things such as breach of contract or a tort are usually expressed in terms of infringement of a civil right.
In common law jurisdiction, the term civil right is distinguished from "human rights" or "natural rights". Civil rights are rights that are bestowed by nations on those within their territorial boundaries, while natural or human rights are rights that many scholars claim that individuals have by nature of being born. Other practice areas related to Civil Rights are Constitutional Law, Consumer Law, Discrimination, Human Rights, Native Populations, Privacy Law, Public Law, and Sexual Harassment.
Civil Rights - US
Civil Rights - Wex
A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. Examples of civil rights are freedom of speech, press, and assembly; the right to vote; freedom from involuntary servitude; and the right to equality in public places.
Corruption of Civil Rights and Civil Law
The concepts of "civil rights" and of "civil law" are both functions of the concept of "civil society": Civil society is that sphere of private action free of government control. It is not free of government action, because government action secures the nature of civil society by the protection of persons against criminal wrongs.
U.S. - Are America’s Civil Rights Laws Still Relevant?
The federal government created America’s historic 1964 Civil Rights Act during a period of low immigration. The primary goal was to create equal opportunities for African Americans by ending Jim Crow discrimination in the South.
U.S. Commission on Civil Rights
The mission of the U.S. Commission on Civil Rights is to investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices; to study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice.
U.S. Department of Justice - Civil Rights Division
The Civil Rights Division is committed to upholding the civil and constitutional rights of all Americans, including some of the most vulnerable members of our society. Founded in 1957, we celebrate our 50th Anniversary next year. Our proud mission remains vitally important today. The federal anti-discrimination statutes that we enforce reflect some of America’s highest ideals and aspirations: equal treatment and equal justice under law.
What is Fair Trial?
The right to a fair trial is a norm of international human rights law designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent of which are the right to life and liberty of the person.
Civil Rights - International
Freedom Force International
Freedom Force International is a network of men and women from all parts of the world who are concerned over loss of personal liberty and expansion of government power. They are not mere complainers. They have a plan to do something about it. They also share a common belief in The Creed of Freedom, which is a statement of principles that guide them in their mission to build a better world.
International and Regional Human Rights Standards on Freedom of Movement
The right to freedom of movement is a fundamental human right which has found expression and won endorsement in a varied range of human rights and humanitarian protection instruments.
International Center for Transitional Justice
The International Center for Transitional Justice (ICTJ) assists countries pursuing accountability for past mass atrocity or human rights abuse. The Center works in societies emerging from repressive rule or armed conflict, as well as in established democracies where historical injustices or systemic abuse remain unresolved.
International Covenant on Civil and Political Rights
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entry into force 23 March 1976, in accordance with Article 49.
Universal Jurisdiction
Universal jurisdiction is the principle that every country has an interest in bringing to justice the perpetrators of grave crimes, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims.
........................................................................................................................................................................
Today, it is considered by most nations contradictory to the modern concept of due process, where each individual receives separate treatment based on his or her role in the crime in question. Article 33 of the Fourth Geneva Convention specifically forbids collective punishment.
..............................................................................
HG.org Worldwide Legal Directories
http://www.hg.org/civilrgt.html
National Origin Discrimination Under Hawaii Law
Roman Amaguin, Esq.
Provided by Law Office of Roman Amaguin
Title VII prohibits discrimination because of "national origin." The EEOC defines national origin discrimination as the denial of equal employment opportunity because of an individual's ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group. Hawaii law prohibits "ancestry" discrimination. Like Title VII, the terms "ancestry" and "national origin" overlap.
Title VII prohibits discrimination because of "national origin." The Equal Employment Opportunity Commission ("EEOC") defines national origin discrimination as the denial of equal employment opportunity because of an individual's ancestry, place of origin, or because the individual possesses the physical, cultural, or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1.
"National origin" is a vague concept. The EEOC attempts to resolve some of the uncertainty by recognizing that while one's "ancestry" is not necessarily synonymous with one's national origin, where a person was born, the terms overlap as a legal matter. The United States Supreme Court has itself stated that, "the term &national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came."
Hawaii law, HRS Chapter 378, prohibits "ancestry" discrimination, but not national origin discrimination. Like Title VII, the terms "ancestry" and "national origin" as a practical matter overlap under Hawaii law. The state regulations are more expansive in that employers are precluded, unless there is a bona fide occupational qualification, from making pre-employment inquiries and requests for information which tend to disclose the applicant's ancestry. Under federal law, such inquires are not illegal per se, but may constitute evidence of unlawful discrimination.
Neither Title VII nor Hawai'i Revised Statutes Chapter 378 specifically prohibits discrimination on the basis of a person's citizenship. However, citizenship requirements that have the effect of discriminating against an individual because of his or her national origin or ancestry are unlawful. Additionally, discriminating against an individual because of a person's citizenship status is prohibited under the Immigration Reform and Control Act of 1986 ("IRCA"). IRCA prohibits employers with more than three employees from discriminating because of citizenship status.
Pre-Employment Practices
If language skills are relevant to the job, an employer may ask applicants what languages they read, speak, or write fluently. However, according to the Hawaii Civil Rights Commission’s ("HCRC") Guideline for Pre-Employment Inquiries (Application Forms and Job Interviews), an employer should not make the following pre-employment inquiries: Applicant's nationality, lineage, ancestry, national origin, descent, or parentage; nationality of applicant's parent or spouse; maiden name of applicant's wife or mother; language commonly used by applicant. "What is your mother tongue?; how applicant acquired ability to read, write, or speak a foreign language; whether applicant, parents, or spouse are naturalized or native-born U.S. citizens; birthplace of applicant; birthplace of applicant's parents, spouse, or other relatives; requirement that applicant submit proof of birth document prior to hiring; "Of what country are you a citizen?; date when applicant, parents or spouse acquired U.S. citizenship; requirement that applicant produce naturalization papers.
National Security Exception
Employment decisions that discriminate against a person's national origin are not unlawful if made for national security reasons. However, the singling out an individual or group when applying security requirements is unlawful. Employers relying on this exemption should be prepared prove as an affirmative defense that its employment decision was made because of national security requirements imposed by statute or Executive Order.
English-Only Rules
Employers frequently pass an "English-only" in the workplace rule without realizing it potentially violates federal and Hawaii law prohibiting national origin/ancestry discrimination. Care must be taken when implementing a policy prohibiting employees from speaking in any language other than English.
The scope of the English-only rule may affect its lawfulness. The EEOC closely scrutinizes English only rules that are applied at all times, as opposed to only at certain times. Both the EEOC and the Hawaii Civil Rights Commission presume that English-only rules applied at all times, including work breaks, are unlawful. On the other hand, English-only rules that apply only at certain times may be justified by business necessity. Proper justifications for English-only rules include the promotion of safety or efficient business operations.
When deciding whether to adopt an English only rule, employers should consider the following:
1.Evidence of safety or other business justifications for the rule
2.Likely effectiveness of the rule in meeting its objectives
3.English proficiency of workers affected by the rule. 2002
EEOC guidelines list the following examples where business necessity justifies an English only policy: For communications with customers, coworkers, or supervisors who only speak English; in emergencies or other situations in which workers must speak a common language to promote safety; for cooperative work assignments in which the English only rule is needed to promote efficiency; to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.
When enforcing English-only rules, employers should be sure to give employees fair notice of the rule and consequences for any violation. Sometimes, employers may need to give notice in English and in the other spoken languages in the workplace. Disciplining an employee for violating the rule without proper notice is considered evidence of national origin discrimination under both federal and Hawaii law.
Foreign Accents
Discrimination because of a person's accent may be unlawful, unless the employer can establish a legitimate, nondiscriminatory reason. An accent that interferes materially with job performance justifies an adverse employment decision based on the accent. However, if an individual can communicate well enough to perform all functions required by the job, then discrimination because of a person's accent may not be justified.
There is a difference between a merely discernible accent and one that renders the individual unable to perform the job's verbal communication requirements. Positions which may require effective English oral communication include teaching, customer service, and telemarketing.
For instance, in a Hawaii case, Fragrante v. City & County of Honolulu, (1989), a Filipino man applied for but was not selected for a clerk position with the City & County of Honolulu's Division of Motor Vehicles and Licensing. The position required some verbal communication over the telephone and in person. The interviewers believed that the applicant's accent was "difficult to understand" and "would be difficult to understand over the telephone". The court found that the City did not discriminate against the applicant because of his national origin but rather decided not to hire him because of his accent's deleterious effect on his ability to verbally communicate.
ABOUT THE AUTHOR: Roman Amaguin, Esq.
Roman Amaguin, Esq. has been practicing law in Hawaii since 1995, and specializes in employment and labor law, and general civil litigation.
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civil rights: an overview
A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. Examples of civil rights are freedom of speech, press, and assembly; the right to vote; freedom from involuntary servitude; and the right to equality in public places. Discrimination occurs when the civil rights of an individual are denied or interfered with because of their membership in a particular group or class. Statutes have been enacted to prevent discrimination based on a person's race, sex, religion, age, previous condition of servitude, physical limitation, national origin, and in some instances sexual preference.
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