An introduction to Human Rights

These notes are for use within the undergraduate course on human rights at the
University of Zimbabwe and copyright in different sections of the notes belongs
variously to SAHRIT, Dr Cephas Lumina, SB Chimhini and SF Sacco. Violations
of such copyright will lead to litigation.

Definition
Professor L Hinkin defined human rights as
“….claims, which every individual has, upon society in which he (she) lives.
To call them human rights suggests that they are universal, they are due of
every human being in every society. They know no geography or history,
culture or ideology, political or economic system or state of development.
They do not depend on race, or class or status.”

To call them ‘rights’ implies that they are ‘claims as of right’ not merely appeals to
grace or charity or brotherhood or love, they needed not be earned or deserved.
They are more than aspirations or assertions ‘of the good’ but claims of
entitlements and corresponding obligations”

Jack Donnelly said about human rights “Human Rights are literally, the rights
that one has simply because one is Human.” He went on to explain
“Human rights, because they rest on nothing more than being human, are
universal, equal and inalienable. They are held by all human beings,
universally. One either is or is not human and thus has or does not have
rights, equally. And one can no more lose these rights than one can stop
being a human being – no matter how inhuman the treatment one suffer.
One is entitled to human rights and is empowered by them”

CHARACTERISTICS OF HUMAN RIGHTS

They are universal- they are due of every human being in every society
They are inalienable-everyone is entitled to them and cannot be taken
away
They are indivisible and inter-dependent- exist simultaneously. The UN
has emphasised the indivisibility, interdependence and universality
They inhere from the dignity of the human person
Their enjoyment is based on the principle of non-discrimination-all people
are equal before the law and are entitled to equal enjoyment of these
rights

The Universality of Human Rights

Means that every state has an obligation to:
• respect and ensure respect of the human rights of its citizens.
• That other states and international communities have a right and
responsibility under international law to protect and take such action as

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 may be necessary or appropriate, in terms of international law, where
state does not comply with its obligation in this respect

United Nations Charter of 1945

The preamble to the Charter reads in part:
“We the people of the United Nations, determined…. to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women….have resolved to combine our efforts to
accomplish these aims.”

Article 1 (3) of the Charter proclaims as one of the purposes of the UN, the
following:
“To achieve international cooperation in solving international problems of an
economic, social, cultural or humanitarian character, and in promoting and
encouraging respect for human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion”.

Article 56 provides that all members of the UN “pledge themselves to take joint
and separate action in cooperation with the UN for the achievement of the
purposes set forth in Article 55”. These purposes include the promotion by the
UN of universal respect for, and the observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language or
religion.

To facilitate this cooperation, Article 13 (1) (b) of the Charter provides that the UN
General Assembly shall initiate studies and make recommendations for the
purpose of assisting in the realization of human rights and fundamental freedoms
for all without distinction as to race, sex, language or religion.

The provisions are broad but served to internationalise human rights; took H/R
out of the arena of the domestic sphere; members of the UN recognised that H/R
provided in the Charter are subject to international concern; obligates members
of the UN to cooperate with it in the promotion of H/R; conferred on the UN legal
authority to define and codify these rights and has led to the development of the
International Bill of Rights and other human rights instruments

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The Universal Declaration of Human Rights (UDHR)
Adopted by resolution 217 (111) of 10 December 1948 of the UN General
Assembly,-
…. the General Assembly proclaims this (UDHR) as a common standard
of achievement for all peoples and all nations, to the end that every
individual and every organ of society…shall strive by teaching and
education to promote respect for these and freedoms and by progressive
measures, national and international, to secure their universal and
effective recognition and observance…

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Strengthens obligations of States made under the Charter
This is not a treaty therefore not legally binding but has become normative
instrument creating legal objectives for UN members (assumed status of
international customary law through practice by states therefore now
assumed status of legally binding instrument); provisions have been
adopted in legally binding instruments at regional and international level.

- Recognises two broad categories of rights:

Civil and political and Economic, Social and Cultural Rights

BRANCHES OF HUMAN RIGHTS

Generally divided into three branches:

First Branch: Civil and Political Rights.

Second Branch: Economic, Social and Cultural rights

Third Branch: Solidarity or group rights

Civil and Political Rights

The main characteristics are:
• They mainly relate to the relationship between the state and the individual.
• They limit the state’s freedom of action versus the individual.
• They are predominately individual rights.
• They are justiciable (you can take the perpetrator to court if right is
violated) and are capable of immediate application.
• States are principally responsible for the violations
• Mainly enjoyed on an individual basis by every person

Examples of Civil and Political Rights

The right to life.
The right to personal Liberty.
The right to security of Person.
Freedom of expression.
Freedom of conscience.
Freedom of association and assembly et al.
Right to liberty of movement and freedom to choose residence.
Right to self determination- freely determine political status and freely
pursue economic, social and cultural development.

Economic, Social and Cultural Rights

These are rights that the state has to fulfil.
They are realised progressively hence are programmatic rights.
They are realised through positive state Intervention.
They can be both individual and group or solidarity rights.

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 They are not necessarily justiciable in court.
States must undertake steps individually and through international
assistance and cooperation to the maximum of available resources with a
view of achieving progressively the full realisation of theses rights.

Examples of Economic, Social and Cultural Rights

The right to an adequate Standard of living.
The right to housing
Health rights
The right to property
The right to social Security
The right to work and rights in Work.
The right to education
The right to human rights education
Cultural rights
The right to self determination
The right to form or join trade union

Solidarity or Group Rights

They are enjoyed in the community
Violations are not targeted to individuals and most them are contestable
(debatable- a new group of rights not initially in the International Bill of
Rights.)
Debate is still going on.

Examples of Group Rights

Right to development
Right to peace
Minority rights
Right to self determination (invokes perceptions of independence and non-
interference and intervention, e.g. the post – 1945 decolonisation process,
and also the right of a people to secede from existing state structures and
to set up their own state – Eritrea from Ethiopia

Major Human Rights Instruments

The Universal Declaration of Human Rights (Adopted in 1948);
The International Covenant on Civil and Political Rights (Adopted in
1966);
The international Covenant on Economic, social and cultural rights
(Adopted in 1966);
The International Convention on Elimination of all forms of racial
discrimination (Adopted in 1965);
Convention on the Elimination of all Forms of Discrimination Against
Women (Adopted in 1979);
The Convention on the Rights of the Child (Adopted in 1989);

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 Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment;
The African Charter on Human and People’s Rights.
Universalism v. Cultural Relativism

Is the universality of human rights compatible with the diversity of the

world’s cultural and political systems?

Although the Universal Declaration of Human Rights (UDHR) and the

ICCPR have achieved universal recognition, some believe that many
provisions reflect the Western perception of human rights and that
they are indeed the product of Western cultural imperialism. Some
argue that human rights are a disguised form of interventionist
policies by the West. The difficult question that remains subject of
intense debate is what constitutes human rights. Is there a common
understanding of what human rights are, one might ask.

Definitions:

• Human rights: the right that one has only as a human being,
which implies that the rights are held by all human beings
without distinction of race, language, sex, religion, etc. (see
Donnelly)

• Radical universalism: culture is irrelevant to the validity of

moral rights and rules which are universally valid. Problem:
danger of moral imperialism, leading to ignorance of the world’s
cultural diversity.

• Radical cultural relativism: culture is the sole source of the

validity of moral rights and rules. It recognises the need for
human rights to respect the variety of the world’s cultures.
Problem: risk of sacrificing some fundamental human rights
(such as the right to life, art. 3 UDHR, art. 6 ICCPR, art. 2

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 ECHR; freedom of religion, art. 18 UDHR, 18 ICCPR, art. 9
ECHR). In addition, it can be argued that some practices such
as enforced disappearances or torture are completely devoid of
any cultural basis and thus do not deserve any sort of respect
(Donnelly)

• Strong cultural relativism: culture is the principle source of

the validity of moral rights and rules. The presumption is that
rights are mainly determined by culture and the universality of
human rights serves as a check on potential excesses of
relativism.

• Weak cultural relativism: culture may be an important source

of the validity of moral rights and rules. The relativity of human
rights serves as a check on potential excesses of universalism.
Universal human rights are subject only to secondary cultural
modifications.

Universalism:

• Human Rights instruments are based on the assumption that

they reflect universally accepted norms of behaviour. That
assumption governed the adoption of the UDHR. Indeed, in the
formulation of its title as well as in the terms of the Preamble
(‘all members of the human family’, ‘all peoples and all nations’,
‘every individual and every organ of the society’) and of its
provisions (‘all human beings’, ‘everyone’, and ‘no-one) as such
the UDHR suggested that the rights enshrined therein were of a
universal character.

It is noteworthy that the UDHR has now “both moral and

political authority;” not only does it reflect an international
standard by which the United Nations and other subjects of
international law judge the conduct of governments, but it has
also inspired a number of treaties and its provisions have been
reproduced in many national constitutions. Some of the
provisions (mainly the civil and political rights) of the UDHR
have become part of customary international law, and thus it is
binding on States whether they voted for it or not. The

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 declaration is now perceived by many to have such binding
force on account of its almost universal acceptance.

• The two Covenants, ratified by a large majority of the States in

the world have similarly been drafted in universal terms:
“Everyone has the right to liberty and security of person”
(art 9 ICCPR) “No one shall be held in slavery or servitude;”
(art 8 ICCPR) “All peoples have the right to self-
determination.”(art 1 ICCPR), “the right of everyone” (art 6, 11,
12... ICESCR).

• Claims for universality have been reaffirmed by the Vienna

Declaration of the World Conference on Human Rights
1993, However it recognises the need to strike a balance
between universalism and cultural relativism. Art. 5: It is
noteworthy that more than 183 states and 500 non
governmental organisations were represented at the World
Conference on Human Rights in Vienna.

“All human rights are indivisible, universal, independent and

interrelated. The international community must treat human
rights globally ... While the significance of national and regional
particularities and various historical cultural and religious
backgrounds must be borne in mind, it is the duty of the States,
regardless of their political economic and cultural systems, to
promote and protect all human rights and fundamental
freedoms.”

Cultural Relativism:

• The reality of the world is such that the application of a set of

universal human rights has been difficult to implement in
practice. The maintenance of cultural or traditional practices
indeed challenges the claim for universality of human rights.

o For instance, in the Shari'a law of apostasy, a Muslim who

repudiates his faith in Islam, whether directly or indirectly
is guilty of a capital offence punishable by death. This
aspect of Shari'a is clearly in contradiction with the

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 fundamental human rights of freedom of religion and
conscience contained in Article 18 of the UDHR. (An
Naim). Similarly, honour killings which are not regarded in
some countries as murders may be seen as breaches of
the right to life contained in art 6 of the ICCPR.

o It is in order to preserve local customs that female

circumcision continues to be commonly practised in many
countries of the African continent. Such practice threaten
the right to health enshrined in the ICESCR and may be
regarded as an inhumane treatment in violation of the
ICCPR (art 7). Although some women in those countries
would like to stand against such practice, their fear of
ostracism is so high that they end up submitting to the
ritual.

o The caste system in India is yet another proof of the

contradiction between some indigenous practices and
universal human rights, namely the prohibition of
discrimination (art 2 ICCPR).

• More theoretically, the existence of universal standards has

itself been challenged by a number of countries where the
concept of universality of human rights represents a “Western
and industrialized” claim. Such challenge has become a real
tension, for example some Africans, Asians, Muslims criticize
the Western view of international human rights and demand
their cultural values, such as the concept of collectivity, and
their living circumstances to be taken into account in
formulating, interpreting and applying human rights.

To these relativists, the human rights instruments above

mentioned embody the arrogance and cultural imperialism of
the West which is willing to universalize and thus to impose its
political ideology (liberalism) and religious faith (christianism) to
the rest of the world. Furthermore, they advocate that the
Western view is based on an individualistic approach to human
rights, which is supposedly not suitable for societies that
emphasize collective values.

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• Individual v Collective Human Rights:

It has been said that international human rights has been shaped
by liberal western ideology, which rests upon the notion of
autonomous individuals. International human rights law is
designed to protect the rights of the individual against oppressive
collectives. Thus human rights are meaningful only if they ensure
entitlements and immunities to individuals.

The idea that human rights exist mainly in their quality of group
rights is typical of non-western societies. The African Charter
refers to “human and peoples rights”. African, Asian and Arab
groups - for which, regardless of the level of development and
modernisation achieved, family ties and traditions are important
values - are today asking the reformulation of the Universal
Declaration so that it puts larger focus on the rights of collectivities.

Traditionally, collective rights are generally those referred to by

collective entities that can be genuinely regarded as the subjects
of those rights (for example the right not to be exterminated as a
group enjoyed by national, ethnic, religious or racial groups, as
expressed in article 2 of the Convention for the Prevention and
Punishment of the Crime of Genocide).

Paragraph 9 of HRC General Comment 31 recognises that the

beneficiaries of the rights recognized by the ICCPR are
individuals. However, it also states that
“many of the rights recognized by the Covenant, such as the

freedom to manifest one's religion or belief (article 18), the

freedom of association (article 22) or the rights of members of

minorities (article 27), may be enjoyed in community with

others. The fact that the competence of the Committee to

receive and consider communications is restricted to those

submitted by or on behalf of individuals (article 1 of the Optional

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 Protocol) does not prevent such individuals from claiming that

actions or omissions that concern legal persons and similar

entities amount to a violation of their own rights.”

Thus, in an appropriate case, it could be argued that a breach of

collective rights necessarily entails a breach of an individual’s
rights.

It has also been argued that all human rights have a social
dimension. The very idea of respecting human rights is based on
the relationship of the individual with the rest of the community in
which he lives. Individuals today often see their identity as defined
by the membership to a group.

• In addition, such push to universalization of norms is regarded

as destroying the diversity of cultures and as a consequence to
amount to another path towards cultural homogenization.

Some Author’s Perspectives:

An Naim:

• He maintains that the lack or insufficiency of cultural legitimacy

of human rights standards is one of the main causes of
violations of those standards and thus he argues for the
development of internal and cross-cultural legitimacy of human
rights standards. (Universal Cultural Legitimacy)
• Given the extreme cultural diversity of the world community, it
can be argued that human rights should be founded on the
existing common denominator among these cultures.
• The observance of human rights standards can be improved
through the enhancement of their cultural legitimacy – this can
be done through an internal reinterpretation and cross-cultural
dialogue about the meaning and implications of basic human
rights norms. Indeed human beings and societies share certain
fundamental interests and values that can be identified and

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 articulated – such as the framework for a common “culture” of
universal human rights.
• Culture: primary force in the socialisation of individuals and
determinant of the consciousness and experience of the
community. Cultural diversity is unavoidable as the product of
significant past and present economic social and environmental
differences.
• Ethnocentricity is indispensable but we need to accept the
ethnocentricity of others.
• International peace and co-operation are better achieved when
there is a minimum cultural consensus on goals and methods.
• “To be committed to carrying out human rights standards,
people must hold these standards as emanating from their
worldview and values, not imposed on them by outsiders.”
• An Naim notably looks at cultural relativism in the context of
Islamic punishments under Shari’a – Islamic law. He asks “can
lawful sanctions under Shari’a be condemned as cruel,
inhuman of degrading punishment or treatment?” Indeed what
may be seen as cruel in one culture may not be seen as such in
another.

Donnelly:

• Argues for weak cultural relativism as seen above.

• Culture poses only a modest challenge to the contemporary
normative universality of human rights.
• Only human beings have human rights. Human rights are thus
universal since all human beings ought to be treated according
to them.
• In view of this, the only right that can be enjoyed as a group is
the right to self-determination.
• The risk of cultural relativism is that in some countries the
protection of traditional values against the homogenisation of
morals pushing from the West provides an excuse for the
imposition of arbitrary rules and might lead to despotic regimes
and ultimately to the violation of human rights.

Baxi:

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 • There isn’t one world of human rights but many conflicting
world, nevertheless there are some patterns for understanding
human rights.
• Among them is the pattern of human rights as culture: driven
by the tension between universalism and cultural relativism.
• Human rights are conceived as cultural systems.
• No culture is devoid of notions about human rights.

Renteln (to be found in Wilson, Human Rights, Culture and

Context: an introduction):

• There is remarkable diversity in notions of justice and morality.

• Her theoretical discussion of the universalism/relativism issue is
combined with a cross-cultural survey of moral values.
• Her ultimate objective is to build human rights standards which
have legitimacy across the globe. These values would be
grounded not in Western theories of natural rights but on the
empirically proven universality of a moral principle of reciprocal
vengeance.

Instruments to respond to the critique of cultural relativists:

1. Regional human rights instruments – to permit respect for

regional peculiarities. Proves that international law is sensitive
to cultural relativism.

2. Margin of appreciation (discretion) - developed by the ECHR to

give States a cushion to implement norms in a way that is more
conforming with their national ones.
It consists in a deference to national bodies in the examination
of the scope of certain rights embodied in the European
Convention. The function of such mechanism is the balance
between uniformity and diversity within a regional system of
human rights protection. It is indeed based on the idea that
each society is entitled to certain latitude in resolving the
inherent conflicts between individual’s rights and national
interests and/or among different moral convictions
The doctrine was initially used to allow some discretion to the
State-parties in states of national emergency or in relation to

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 security matters .Then, it was extended to regulate potentially
harmful activities (such as the incitement to violence and hate
speech) and to the assessment of morality. Therefore, i such
areas the EctHR has left room for diversity.

3. Art. 15 ICESCR – the right to take part in the cultural life (can
be used to resist human rights imperialistic tendencies).

4. A number of mechanisms exists in order to limit State

responsibilities with regard to the universal implementation of
human rights: the opposition of reservations (have to be
compatible with the object and purpose of the Treaty cf Vienna
Convention on the Law of Treaties article 19 (3)), the
derogations in time of public emergency (Art 4 ICCPR, Art 15
ECHR, Art 27 ACHR, cf African (Banjul) Charter which does not
contain such a provision) and limitations clause in relation to
public order or policy or public health which are to be found in
different provisions of the ICCPR, ECHR, and ACHR.

Point of conclusion:

If one takes the weak cultural relativist perspective (which Donnelly

believes is supported by international consensus re UDHR and other
HR instruments), it can be accepted that the existence of universal
human rights is not inconsistent with the idea of respect and
protection of local customs, as such culture is recognised as a limited
source of exceptions and principles of interpretation.

The African Human Rights System

The promotion and protection of human rights in Africa is underpinned by the
African Charter on Human and Peoples’ Rights (‘the African Charter’ or ‘Banjul
Charter’) which was adopted by the Assembly of the Heads of State and
government of the Organisation of African Unity (OAU) on 27 June 1981. The
Charter’s section on individual rights commences with a general non-
discrimination clause, an equal protection clause and a guarantee of the right to
life. A number of other individual rights including the prohibition on slavery,
torture, cruel, inhuman or degrading treatment and punishment, arbitrary arrest,
and detention are guaranteed. Provision is made for the freedoms of thought,
religion, information, expression, assembly, and association. The Charter
guarantees the right to property, the right to work (including equal pay for equal
work), and the right to enjoy the best attainable state of physical and mental
health. The right to education is protected with the attendant obligation on the

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state to promote and protect the ‘morals and traditional values recognised by the
community’. The family is declared to be the ‘natural unit and basis of society’
which must be protected and assisted by the state. Special protection is provided
for in respect of the rights of vulnerable groups such as children, women, the
aged and people with disabilities. It is notable that the section on individual rights
refers to and incorporates other international instruments. For example, Article
18(3) places an obligation on the state to ensure the elimination of all kinds of
discrimination against women and children ‘as stipulated in international
declarations and conventions.’

An overview of the nature of state obligations

• Human rights violations occur with a state principally in relations between
a government and its own citizens, rather than on the high seas or in outer
space outside state jurisdiction
• It is for this reason that ultimately, effective protection must come from
within the state
• International human rights play two roles
1. it provides standards for states to follow, and against which their
respect and protection of human rights can be measured or
assessed.
2. it provides a system of remedies which can help ameliorate the
deficiencies of national protection systems. This is still developing
and is not yet as strong as one would like it to be

When a state becomes a party to a human rights treaty it undertakes to

implement the treaty provisions within its domestic jurisdiction, in good faith.

International Covenant on Civil and Political Rights

Article 2:
• Sate must ‘respect and ensure’ guaranteed rights
• This obligation is absolute and immediate

International Covenant on Economic Social and Cultural Rights

Article 2:
• State must ‘take steps’ to the maximum of its ‘available resources’ to
‘progressively’ implement the guaranteed rights
• This obligation is progressive and relative

Sub –categories of the obligation

1. The obligation to respect
• The state is required to refrain from interfering with the right or from doing
acts which constitute violations of the right in question.

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 • Eg (1) obligation n the police not to torture people in police custody
articles 7 ICCPR
• Eg (2) Obligation of the state not to arbitrarily evict people from their
homes Art 11 ICESCR

Obligation to Protect
• The state is obliged to protect individuals from violations of their roights by
other private parties
• Eg art 26 if the ICCPR requires the state to provide effective protection
against discrimination, such as by the enactment of legislation that makes
it a crime to incite racial hatred

Obligation to fulfil
• This obligation is in two parts, the obligation to facilitate the realization of a
particular right by proactively enagaging in activities which strengthen
people’s access to resources and their means to ensure the enjoyment of
that right.

Eg the implementation of land reforms or improvement of methods of food

distribution, by the state may satisfy art 11, ICESCR

2. The obligation to provide

• Relevant when an individual is not able to enjoy a particular right eg the
state must assist an unemployed person who has no other means of
livelihood
• The scope of state obligation to respect, protect and fulfil depends on the
formulation of each right.

HOW DOES INTERNATIONAL HUMAN RIGHTS LAW BECOME PART OF

DOMESTIC JURISDICTION?

There are two theories regarding this matter: monism and dualism.

Monist theory (automatic incorporation)

• International law and state law are concomitant aspect of the one system-
law in general.
• Thus ratified treaties become domestic law by virtue of ratification.
• The system is followed in Namibia, France, Switzerland, the United States
of America, the Netherlands and many Latin American countries
• Treaty provisions are in general considered by national courts and
administrators as self executing when they lend themselves to judicial or
administrative application without further implementation
• In such a case an individual may invoke the provisions of a self executing
treaty before national courts in the absence of implementing legislation

Dualism (legislative incorporation)

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 • The provisions of ratified treaties do not become national law unless they
have been enacted as legislation by the normal method.
• The legislative act creating the norms as domestic law is an act entirely
distinct from the act of ratification of the treaty
• The legislative bodies may refuse to enact legislation implementing
• In common wealth countries courts apply what are known as the
Bangalore Principles on the Application of International norms in the
domestic Lgal system. The principles, adopted by judges and jurists from
commonwealth states, require the courts to use international human rights
law as an interpretative tool. Local legislation must be construed in such a
way that is not in conflict with the obligation of the state under the treaty.

International law does not prescribed which method of incorporation that

has to be adopted

Whatever method is adopted by a state, each state party has an obligation to

take measures necessarily to provide for effective remedies.

WHAT IS ENVISAGED
• Adoption of relevant legislation to implement treaty rights. The best action
would be to constitutionalise the rights
• Administrative measures
• Judicial measures
• Adoption of appropriate a plan of action
• Adoption of appropriate policies
• Mobilisation of necessary resources to implement rights especially
economic and social rights.
• Publicise the contents of the human rights treaties
• Steps should be taken to familiarise law enforcement officers, judicial
personnel, government officials, medical personnel, members of the
armed forces etc with the contents of the covenants
• Comprehensive legal aid programmes to ensure the availability of legal
aid or pro bono legal assistance for court and administrative proceedings.

PREREQUISITES FOR EFFECTIVE PROTECTION OF HUMAN RIGHTS

An independent, vigilant judiciary

• No external pressure on judges
• Security of tenure
• Secure salaries and other conditions of service
• Immunity from legal suits in respect of acts done in their official capacity
• Adequate funding of the judiciary
• Method of appointment of judges must be objective –only properly
qualified persons must be appointed to the bench

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 • Must have power to review both legislative and executive acts which
violate human rights
• Independent bar/lawyers association

Rule of Law (principles of law must prevail)

• No arbitrariness, no rule on basis of personal whims and caprice
• Law and order better than anarchy
• Equality before the law.
• Government must act according to law

Strong Civil Society

• Majority of people must be aware of their rights
• People must be willing to fight for their rights
• Strong active human rights NGOs required

Independent Press
• To expose violations
• To make authorities accountable

Democratic Government
• Transparent accountable government
• Government based in free consent of the people
• Free and fair elections
• Effective separation of powers with meaningful checks and balances
• Social and economic pluralism
• Protection of minority rights
• Multi-partysm

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The obligation of states to domesticate international human rights law
This paper is in two parts. The first part deals with general issues of law
pertaining to domestication of international human rights law. The second part is
an illustrative example of how states are required to domesticate the International
Covenant on Economic, Social and Cultural Rights (ICESCR).

Any meaningful discussion on the ‘obligations’ of states to domesticate

international human rights should begin with an attempt to unpack the notion of
‘human rights law’. In legal terms the notion of human rights has a verifiable legal
meaning. The notion is however in practice, not without controversy. Generally
speaking human rights are believed to be the rights that one has simply by virtue
of being human and yet in practice the understanding of the notion of human
rights is premised on different philosophical, social as well as ideological thinking.

The definitions of human rights in fact range from a preoccupation with radical
universalism; which posits that culture is irrelevant to the validity of moral rights
and rules which are universally valid ( this is problematic; the definition poses the
danger of moral imperialism which disregards cultural diversity).

Other definitions are based on radical cultural relativism; which presupposes that
culture is the sole source of the validity of moral rights and rules. It recognises
the need for human rights to respect the variety of the world’s cultures. This
approach presents a problem of a different sort; it carries the inherent risk of
sacrificing some fundamental human rights (such as the right to life, art. 3 UDHR,
art. 6 ICCPR, art. 2 ECHR; freedom of religion, art. 18 UDHR, 18 ICCPR, art. 9
ECHR). In addition, it can be argued that some practices such as enforced
disappearances or torture are completely devoid of any cultural basis and thus
do not deserve any sort of respect (Donnelly).

Yet other approaches are based on what could be termed strong cultural
relativism; culture is the principal source of the validity of moral rights and rules.
The presumption is that rights are mainly determined by culture and the
universality of human rights serves as a check on potential excesses of
relativism.

On the other end there is the notion of weak cultural relativism; culture may be
an important source of the validity of moral rights and rules. The notion is that the
relativity of human rights serves as a check on potential excesses of
universalism. The bottom line of weak cultural relativism is that universal human
rights are subject only to secondary cultural modifications.

Notwithstanding the different world views highlighted above the binding legal
framework for implementation of human rights is premised on a general
acceptance of the universal nature of human rights. Indeed human Rights
instruments are based on the assumption that they reflect universally accepted

18
norms of behaviour. That assumption governed the adoption of the UDHR.
Indeed, in the formulation of its title as well as in the terms of the preamble (‘all
members of the human family’, ‘all peoples and all nations’, ‘every individual and
every organ of the society’) and of its provisions (‘all human beings’, ‘everyone’,
and ‘no-one) as such the UDHR suggested that the rights enshrined therein were
of a universal character.

It is noteworthy that the UDHR has now assumed “both moral and political
authority;” not only does it reflect an international standard by which the United
Nations and other subjects of international law judge the conduct of
governments, but it has also inspired a number of treaties and its provisions have
been reproduced in many national constitutions. Some of the provisions (mainly
the civil and political rights) of the UDHR have become part of customary
international law, and thus it is binding on States whether they voted for it or not.
The declaration is now perceived by many to have such binding force on account
of its almost universal acceptance. It can therefore be stated with certainty that
even for a state that is not party to any human rights instrument by virtue of
article 1(3) of the UN Charter as read with the UDHR there are certain obligations
attendant on each state that are claimable as of right.

The international bill of human rights and beyond, ratified by a large majority of
the States in the world have similarly been drafted in universal terms: “Everyone
has the right to liberty and security of person” (art 9 ICCPR) “No one shall be
held in slavery or servitude;” (art 8 ICCPR) “All peoples have the right to self-
determination.”(art 1 ICCPR), “the right of everyone” (art 6, 11, 12... ICESCR).

These claims for universality have been reaffirmed by the 1993 Vienna
Declaration of the World Conference on Human Rights. The declaration however
recognises the need to strike a balance between universalism and cultural
relativism. It is noteworthy that more than 183 states and 500 non governmental
organisations were represented at this World Conference on Human Rights.
Paragraph 5 of the declaration reads as follows

“All human rights are indivisible, universal, independent and interrelated. The
international community must treat human rights globally ... While the
significance of national and regional particularities and various historical cultural
and religious backgrounds must be borne in mind, it is the duty of the States,
regardless of their political economic and cultural systems, to promote and
protect all human rights and fundamental freedoms.”

The reality of the world however is such that the application of a set of universal
human rights has been difficult to implement in practice. The maintenance of
cultural or traditional practices indeed challenges the claim for universality of
human rights. By way of illustration, in the Shari'a law of apostasy, a Muslim who

19
repudiates his faith in Islam, whether directly or indirectly is guilty of a capital
offence punishable by death. This aspect of Shari'a is clearly in contradiction with
the fundamental human rights of freedom of religion and conscience contained in
Article 18 of the UDHR. Similarly, honour killings which are not regarded in some
countries as murders may be seen as breaches of the right to life contained in art
6 of the ICCPR. Others examples include the practice of female circumcision
which continues to be commonly practised in many African countries (this is
argued to be a way of custom). Such practice threaten the right to health
enshrined in the ICESCR and may be regarded as an inhumane treatment in
violation of the ICCPR (art 7). Although some women in those countries would
like to stand against such practice, their fear of ostracism is so high that they end
up submitting to the ritual. In India the caste system is yet another proof of the
contradiction between some indigenous practices and universal human rights,
namely the prohibition of discrimination as provided in art 2 of the ICCPR.

International human rights law is sensitive to some of these challenges. In the

first instance treaty law is based on voluntary agreement to what may be said to
be a minimum common denominator. Within this framework of treaty law there
are mechanisms to take into account, cultural relativism. Secondly the system of
regional human rights instruments provides for respect for regional peculiarities.
Notable examples include the concept of margin of appreciation (discretion)
which was developed by the European Court on Human Rights to give states a
cushion to implement international and regional norms in a way that is in
conformity with their national values. This comes in the form of deference to
national bodies in the examination of the scope of certain rights embodied in the
European Convention. The function of such mechanism is the balance between
uniformity and diversity within a regional system of human rights protection. It is
indeed based on the idea that each society is entitled to certain latitude in
resolving the inherent conflicts between an individual’s rights and national
interests and/or among different moral convictions. The doctrine was initially
used to allow some discretion to State-parties in a state of national emergency or
in relation to security matters .Then, it was extended to regulate potentially
harmful activities (such as the incitement to violence and hate speech) and to the
assessment of morality.

Other mechanisms that exists in order to limit a State’s obligation with regard to
the universal implementation of human rights include the possibility for entering a
reservation (the reservation must be compatible with the object and purpose of
the Treaty; Vienna Convention on the Law of Treaties article 19 (3))) and the
possibility for derogations (suspension of the enjoyment of certain rights) in time
of public emergency (Art 4 ICCPR, Art 15 ECHR, Art 27 ACHR. There are certain
rights that cannot be derogated from; the right to due process, the right not to be
tortured etc. Please note that the African (Banjul) Charter does not contain such
a provision. There is also a possibility for limitations on the extent to which
certain rights may be enjoyed in times of emergency in relation to matters

20
pertaining to public order or policy or public health which are to be found in
different provisions of the ICCPR, ECHR, and ACHR.

Having problematised the notion of universal application of human rights we must

now consider what is actually meant by domestication of international human
rights law. International obligations are implemented into domestic law either
directly or indirectly. The status of treaties in national law is thus determined by
two different constitutional techniques referred to as ‘legislative incorporation’
and ‘automatic incorporation’. In some states the provisions of ratified treaties do
not become national law unless they have been enacted as legislation by the
normal method. The legislative act creating the norms as domestic law is an act
entirely distinct from the act of ratification of the treaty. The legislative bodies
may refuse to enact legislation implementing the treaty. In this case the
provisions of the treaty do not become national law. This method, referred to as
‘legislative incorporation’ is used in, inter alia, the UK, Commonwealth countries
and Scandinavian countries. In other states, which have a different system,
ratified treaties become domestic law by virtue of ratification. This method is
referred to as ‘automatic incorporation’ and is the method adopted, inter alia, by
France, Switzerland, the Netherlands, the United States and many Latin
American countries and some African and Asian countries. Even in such states,
however, some treaty provisions require implementing legislation before they can
be applied by the courts. Such provisions are categorized as ‘non-self-executing’.

It is clear that international law does not dictate that one or the other of the
methods of legislative or automatic incorporation must be used. Either is
satisfactory assuming that the norms enshrined in the treaties effectively become
part of national law.

The method by which treaties become national law is therefore a matter in

principle, to be determined by the constitutional law of the ratifying state and not
a matter ordained by international law. The international community, lacking
more effective means of enforcement, is often dependent on the constitutional
system of particular states for the effective application of treaties intended for
internal application.

Operative clauses in treaties will specify the duties on a state with regards to
implementation. However so-called self-executing treaties do not need legislative
action to be judicially enforceable. It can therefore be stated that international law
determines the validity of treaties in the international legal system, i.e. when and
how a treaty becomes binding upon a state as regards other state parties. It also
determines the remedies available on the international plane for its breach. But it
is the national legal system which determines the status or force of law which will
be given to a treaty within that legal system, i.e. whether national judges and
administrators will apply the norms of a treaty in a specific case. When the treaty
norms become domestic law, national judges and administrators apply them, and
individuals in the ratifying states may benefit from the provisions of that treaty.

21
While the international legal system does not directly penetrate national systems
to enforce its norms it attempts to do so indirectly. States are required under
international law to bring their domestic laws into conformity with the international
obligations they have assumed under treaty law. Failure to do so, however,
results in an international responsibility but does not change the situation within
the national legal systems where judges and administrators may continue to
apply national law rather than international law in such cases.

There is no general rule of international law that treaties must have domestic law
effects but it is envisaged that states should implement the provisions of the
treaty to ensure effective realisation of the rights provided. Most international
human rights instruments clearly require execution through domestic legal
measures. That requirement follows from the general commitment of each state
party to the covenants to “respect and ensure to all individuals within its territory
and subject to its jurisdiction the rights recognised in the present Covenant”
(Article 2(1) ICESCR). The basic commitment of the parties may be
characterized as an “obligation of result”

The question arises whether the obligation to ensure rights and remedies within
the domestic legal system require the states parties to make the Covenants
themselves part of domestic law? A number of states do so however, many other
states do not provide constitutionally, or in practice, for automatic incorporation.
Treaties may however, irrespective of constitutional law, require that they be
given direct effect in a domestic legal system and, if they do, the parties are
bound to follow the treaty requirement.

An illustrative example of how things work in practice can be seen from the
ICESCR. In article 2 of the Covenant, we find no requirement that [it] be
incorporated into domestic law. What it does require (para 2) is that the parties
take the necessary steps to adopt such legislative or other measures as may be
necessary to give effect to the rights recognized.

It is widely accepted in national legal systems that domestic law should, in the
event of doubt as to its meaning or application, be interpreted in a way consistent
with the country’s international obligations. A good example is the fact that while
the European Convention on Human Rights has not been made part of internal
law in the UK, it has been invoked as a guide to interpretation of the domestic
law of that country.

Vienna Convention on the Law of Treaties (1969)

It is also important to take note of article 26 of the Vienna Convention on the Law
of Treaties (1969) which provides that every treaty in force is binding upon the
parties to it and must be performed by them in good faith (Pacta sunt servanda.)
Article 27 also gives guidance on how states should domesticate the provisions

22
of international instruments. This article provides that a party to a treaty may not
invoke the provisions of its internal law as justification for its failure to perform a
treaty obligation.

The practice of states with respect to reception of customary international law

into domestic law tends to be much more uniform than in the case of treaties.
Nevertheless, direct enforcement of customary human rights norms against
officials or other actors in the forum state is still not an everyday practice in
domestic courts. The primary obstacle appears to be unfamiliarity of judges with
this elusive and complex body of legal norms.
There is no easily accessible, comprehensive compendium of customary
international human rights law. An advocate seeking to base a claim upon
customary law must be prepared to canvass state practice and the official
positions of governments concerning the existence of a binding norm (opinio
juris)… [etc].

The Bangalore Principles state that:

1/ International law is not as such, part of domestic law in most common law
countries;
2/ Such law does not become part of domestic law until Parliament so enacts or
the judges, as another source of law-making process, declare the norms thereby
established to be part of domestic law;
3/ The judges will not do so automatically, simply because the norm is part of
international law or is mentioned in a treaty, even one ratified by their own
country;¨
4/ But if an issue of uncertainty arises, as by a lacuna in the common law,
obscurity in its meaning or ambiguity in a relevant statute, a judge may seek
guidance in the general principles of international law, as accepted by the
community of nations; and
5/ From this source material, the judge may ascertain and declare what the
relevant rule of domestic law is. It is the action of the judge, incorporating the rule
into domestic law, which makes it part of domestic law.

Illustrative example

Legal obstacles to the Justiciability and implementation of the International

Covenant on Economic, Social and cultural Rights

23
The International Covenant on Economic, Social and Cultural Rights (ICESCR)1
is part of the International Bill of Rights. The Covenant is a legal document
creating binding obligations on parties who are signatories to it. The Covenant,
however, is couched in language which in some cases is imprecise and in others
somewhat vague. The imprecise language of the Covenant militates against easy
and general application of the obligations that it creates. This apparent weakness
has been used by many commentators as the basis for an argument that
suggests the rights enshrined in the Covenant are non justiciable and thus
incapable of national enforcement. The legal basis of such argument is suspect if
not untenable. I will argue in this paper that the Covenant with all its
imperfections, creates sufficiently clear legal obligations on duty holders in
respect of an identifiable beneficiary who in the case of a violation can look up to
the United Nations human rights system for protection2, in the first instance
however it is the state that should ensure effective realization of the provisions at
the national level. In this respect the Covenant meets the essential elements of
justiciability which have been identified as a two tier test;’ should the adjudicator
act’ and ‘can the adjudicator act3’. I will further argue that the legal obstacles to
justiciability of the Covenant should be considered within the context of a host of
contemporary developments in international law4.

The majority of writers who have commented on the justiciability of the economic,
social and cultural rights habitually begin by comparing the ICESCR with the
Covenant on Civil and Political Rights (ICCPR). It has now been proved, however
that it is mythical thinking that sways people into believing that ‘by their very
nature’ economic, social and cultural rights are non justiciable. I consider the
comparative analysis approach wholly inappropriate for an analysis of the legal
obstacles in the justiciability of social and economic rights, first, looking at
economic and social rights through the lenses of the ICCPR arbitrarily restricts
your analysis to the contours already defined by the on going debate on the
subject; this may not necessarily be appropriate. Economic and Social rights are
different from civil and political rights. This does not suggest that they are inferior;
to say men are different from women does not in itself suggest any hierarchy.
Further, analyzing the ICESCR within the context of the justiciability of the
ICCPR inevitably leads to an unduly legalistic approach to justiciability5. Cleary,
there will be points of overlap between the two Covenants and it is only at such
instances that we should look at the ICCPR as corroborating evidence of the true
nature of the legal obligations created by the ICESCR. It is my contention that
economic and social rights as enshrined in the ICESCR, are legally binding not

1
General Assembly resolution 2200 (XX1) sixteen December 1966, entry into force 3 January 1976.
2
General Comment 9 para10, Committee on Economic, Social and Cultural Rights adopted on 3/12/98 UN
Doc E/C. 12/1998/2
3
Hunt Paul, Reclaiming Social Rights International and Comparative Perspectives, Dartmouth 1996 at p25
4
Craven M, The International Covenant on Economic, Social and Cultural Rights; A perspective on its
Development (1995) at p7, see the argument on hoe the Cold war affected the development of these rights.
Hunt P accepts this argument, supra at p9
5
Ibid n2 at para 9. the Committee highlights the fact that administrative action might be all that is required
of a state to fulfill its obligations

24
because the ICCPR is binding, but by virtue of the fact that they are justiciable.
When I refer to the ICCPR I do so only on the basis of the validity of the concept
of the indivisibility, interdependence and interrelation of human rights.

In domesticating the ICESCR States should take into account the very long
history behind the entry into force of this instrument. Part of the history has
strong bearing on the legal nature of the Covenant as will become apparent in
the body of this paper. A few points on the background to the 1966 adoption of
the ICESCR can be instructive and helpful in understanding the conceptual
background to human rights in general and the need for a strong implementation
and enforcement mechanism at the national level. Human rights have a firm
philosophical appeal, which influenced important events in many countries such
as the French and American Revolutions6.

The American Bill of rights and the French Declaration on the Rights of Man
‘gave a positivistic dimension’ to the philosophy of human rights7. Economic and
social rights were not the forerunner in this struggle, but they undoubtedly were
considered as intrinsic to the notion8. The Declarations were however dismissed
by some as ‘rhetorical statements costing nothing’. Over time the list of human
rights lengthened to expressly include economic, social, and cultural rights. In
1948 the Universal Declaration of Human Rights (UDHR) was adopted. The
declaration in clear and unambiguous language recognizes the concept of
economic and social rights9. The ICESCR was later adopted in 1966. Because
the ICESCR has direct links to the UDHR the two documents should be read
together. It should however be concede that while some provisions in the UDHR
are now accepted as being customary international law, those relating to
economic and social rights have not achieved that status yet. Nonetheless the
declaration is regarded as having strong persuasive authority on account of its
widespread acceptance. The ICESCR properly construed, therefore expresses
an unequivocal acceptance, within the limited scope of jurisdiction covered by its
provisions on the intention of the parties to the Covenant to create legal and
binging obligations which should be implemented at the national level. This
indeed is what is envisaged by the Vienna Convention on the law of Treaties
which confirms the presumption that parties to a treaty have an obligation to
implement the treaty provisions in good faith10.

The ICESCR is part of the international bill of human rights. It can only be logical
that the provisions of a Covenant that constitute an integral core of a human
rights system be regarded as sacrosanct. If such a document were to be treated
as being merely hortatory this would stupefy the notion of human rights as

6
Eizejiofor G, The Development of the Concept of Human Rights: Definition and Philosophical
Foundations, text for Human Rights Teaching, Constitutional Rights Projects, Nigeria, Chapter 1.
7
supra
8
supra
9
Article 25
10
Article 27 of the VCLT

25
recognised entitlements and would be inconsistent with the express language of
the Convention. The philosophical and conceptual background of human rights
also suggests that the Covenant is positivistic in nature. It is my contention that it
can be proved that the ICESCR is intended to incorporate legal obligations for
state parties.

Are the rights enshrined in the ICESCR capable of justiciability at the

national level?

Article 2 of the ICESR sets out the obligations being undertaken by the states as
being “..to take steps, individually and through international assistance and
cooperation, especially economic and technical, to the maximum of its available
resource, with a view of achieving progressively the fully realization of the rights
recognized in the present Covenant by all appropriate means, including
particularly the adoption of legislative measures.” Further down paragraph 2
there is an obligation to “…guarantee that the rights are enjoyed ‘without
discrimination’. Developing countries with “due regard” to human rights and their
national economy may determine to what extent non-nationals may enjoy the
rights enunciated in the Covenant.

A conscientious reading of Article 2 reveals that there is an intention to create

binding obligations to take effective measures including but not limited to
domestic ‘absorption’ in a non-discriminatory fashion and based on availability of
resources with due regard being paid to respect for human rights. Where the
enjoyment of rights is not dependent on availability of resources, there is an
implied obligation of immediate realization. This issue has been fully considered
by a group of experts leading to what are now known as the Limburg Principle.
General Comment 3 has further elaborated on the point. General Comments are
sources of soft law and can be used as interpretative aids in probing the
normative content of the Covenant.

Progressive realization, it has been observed, imposes a clear obligation for non
retrogression and to move expeditiously towards realization of the rights. It is not
extravagant so say that we know, with sufficient degree of clarity, what conduct
would constitute a breach of the ICESR11. It is clear who the duty holders are
and on whom the primary responsibility of fulfillment has been placed. Any
conduct which is inconsistent with the primary objective of the Covenant
constitutes a violation of the Covenant. This is apparent if due diligence is paid
to the context of paragraph 15 of General Comment 12. Paul Hunt refers to the
multi-layered obligations of states to give effect to human rights12. There is an
obligation to respect, protect and fulfill. It is abundantly clear that not only do the
states have the obligation not to interfere in the private life of its citizens in a
manner that would be prejudicial to effective realization of human rights but it is

11
General Comment 3 of the Committee on economic, Social and Cultural Rights gives a well reasoned
opinion of the nature of state obligations
12
Ibid n3 at p31

26
obliged to impose restriction on its subjects not to engage in any conduct that
may obstruct the enjoyment of economic and social rights13. In the event that
non interference by the state or non state actors is insufficient to allow full
realization, the state has an obligation to facilitate and provide to those unable to
realize these rights without such assistance14. Article 11(2) specified some of the
methods of facilitating effective realization of human rights. In these
circumstances it is mischievous for anyone to suggest that the Covenant does
not create clear obligations. The Committee on Economic, Social and Cultural
Rights has suggested that a distinction should be made between unwillingness to
comply and inability to comply in assessing acts of omission constituting a
violation.

The next step is to inquire on the issue whether national courts can adjudicate on
the implementation of economic, social and cultural rights. Put differently can the
adjudicator act? To borrow the words of Paul Hunt “Does the adjudicator have
the capacity and expertise to delineate the rights, contours, elaborate their
context and apply these to the facts of the case?” It seems to me that there has
been significant progress in establishing the normative content economic, social
and cultural rights, at least with sufficient specifity to enable a national court to
determine a violation of such a right. What is required is simply for the court to
engage in a factual analysis of a situation to make a finding on the extent to
which a state is taking measures to implement these rights. This is in fact what
the Committee on ICESCR does in considering state reports. A particularly
useful aid will be the use of benchmarks and indicators15. There is no need to be
prescriptive about how this should work in practice but it suffices to observe that
the normative content of the ICESCR can be assessed objectively, both
quantitatively and qualitatively. An objective analysis can be made in this
respect. The objective test is then followed by a subjective application of the
tests to take into account the consequences of different levels of resource
availability. The adjudicator is however, enjoined to be guided by the principle of
‘progressive realisation’ in making his assessment. At the domestic level
different courts in different jurisdictions have used different mechanics in
assessing the ‘progressive’ nature of the ‘programmatic’ nature of economic and
social rights. One notable mechansism has been the ‘reasonable test’ as applied
in South Africa16.

It has been argued that the major drawback of the ICESR is its weak monitoring
or implementation mechanism. This is an accurate observation but caution must
be taken to avoid reckless and over glorified assertion that such weakness
inherently makes the ICESCR non justiciable. This argument is too simplistic to

13
General Comment 12 of the Committee on Economic Social Rights, The right to food
14
Supra para 15
15
Asjorn E, Krause C, Rosas A, (Eds) 2001. Economic, Social and Cultural Rights, 2nd Martinus Njihoff
Publishers
16
The South Supreme Court has applied a the ‘reasonable conduct’ test to consider claims for enforcement
of socio-economic rights see Government of South Africa v Grootboom and others 2001 (1) SA 46

27
be of any meaningful value. One might ask is international law, law? Strictly
speaking only states are subjects of international law and the enforcement
mechansism is so weak to such an extent that it seems meaninglessly
inadequate to provide any effective remedy. A classical example is the 1503
procedure meant to provide redress in instances of generalized and
gross/serious human rights violations17. The justiciability of civil and political
rights has never been challenged on account of the ineffectiveness of the
implementation mechanism. It is gratuitously arbitrary, unscientific and puerile to
suggest that the ICESCR is non- justiciable notwithstanding the clear wording of
the Covenant suggesting otherwise. The actual problem with economic, social
and cultural rights is the fact that their development at the international level has
been faster than its growth at the domestic level. This is something of a
anomaly. Ordinarily, legal concepts are firmly established at the domestic level
before they receive international acceptance. Recent developments however
suggest that economic and social rights are being more readily accepted at
domestic level than ever before but the retarded growth is due to lack of
conceptual clarity and understanding of the Covenant

Conclusion

It is apparent that the obligation to domesticate international human rights law is

the only meaningful way of giving practical meaning to the provisions of
international human rights law. While states are strictly speaking the subjects of
international law, international human rights law is designed to benefit individuals
at the national level. Domestication is thus the very raison detre of international
human rights law.

17
When Argentina was under consideration on this provision it managed to duck any real action against it
and it is precisely the embarrassment of the failure of the system that other methods of protection had to be
devised

28
Civil and Political Rights
Article 2 ICCPR, States undertake to respect and to ensure to all individuals
within their territory the rights recognized in the Covenant without discrimination.
States also undertake to adopt “all legislative or other measures as may be
necessary” to give effect to the rights.

Human Rights are interdependent and inter-related. The distinction between civil
and political rights and economic, social and cultural rights is not always
watertight. Most human rights instruments provide for both civil and political
rights as well as economic, social and cultural rights.

Freedom of Expression.
• A right without which other rights are difficult to enjoy
• An essential element for defence against the excesses of the state
A complex right which includes
• Freedom to seek, receive and impart information and ideas of all kinds
• This right is provided for in article 9 of the ACHPR
• Jurisprudence
Suleiman v Sudan Communication 228/99
• The Commission interpreted the right to include political expression.
• Sir Dawda Jawara v The Gambia Communications 147/95 &149/96
• Failure to investigate attacks on a journalist violate the right to freedom of
expression
• Media Rights Agenda v Nigeria Communication 105/93, 128/94,
130/94,152/96
• Freedom of expression is vital to an individual’s personal development, his
political consciousness and participation in the conduct of public affairs in
his country

The African Commission has adopted a declaration on Principles of Freedom of

expression in Africa. The declaration emphasises the fundamental importance of
freedom of expression as an individual human right, as a cornerstone of
democracy and as a means of ensuring respect for human rights

Freedom of Thought, Conscience and Religion

• This right is closely connected to other substantive rights such as freedom
of expression, assembly and association
Thought and views are intangible as along as they have not been expressed, and
convictions are valuable for a person only if the person can express them
• The right is closely connected to the right to privacy, you may not compel
a person to express their thought, change their opinion, reveal their beliefs
and convictions
• This is a guard against state indoctrination.
• A state may not prevent the people from holding particular thoughts,
however the state may prevent the manifestation of those beliefs if these
would threaten the rights of others

29
 • This right is provided for in article 8 of the ACHPR
Jurisprudence
• Free legal Assistance Group v Zaire Communication 147/95 and 149/96
The Commission held that harassment of Jehovah’s witnesses and religious
leaders, assassinations and death threats aimed at them and destruction of their
religious structures constituted a violation of this right.
• Amnesty International v Zaire
Expulsion of political activists constituted, inter alia, a denial of the right to
freedom of conscience in violation of article 8 of the Charter

The Right to Participate; Freedom of Assembly and the Right to vote

• Participation entails the idea that all citizens should be involved in the
decision-making processes that affect them
• Ensures the creation of a society that fulfils communal interests
• Article 13 of the ACHPR provides that every citizen shall have the right to
participate freely in the government of his country.
• Article 20 provides that citizens shall freely determine their political status
and shall pursue …development according to the policy they have freely
chosen.’
• Freedom of association covers the right to form and join groups freely and
for groups to be free of government. See article 10 of the Charter
• Jurisprudence
Constitutional Rights Project V Nigeria Communication 87/93
The commission has found annulment of elections a violation of the right to
political participation
• Sir Dawda Jawara v The Gambia
• Banning political participation of former members of government after a
military coup a violation of their rights and the military coup itself a
violation of the peoples’ right to freely choose a government.
• Amnesty International v Zambia
Illegal deportation of prominent opposition politicians a violation of the right to
freedom of association.

Limitation on the enjoyment of Freedoms

• Only a few rights are absolute
• There are a number of restrictions or limitations on the enjoyment of rights
• Restrictions must be provided for by law
• Must serve a legitimate purpose
• Must satisfy the standard of necessity (or must be proportional)

• Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 ICCPR, may not
be derogated from. These protect the right to life, prohibition of torture,
slavery, imprisonment for inability to fulfil a contractual obligation, the right
to freedom of thought, conscience and religion.
• The Covenant also permits States to limit and restrict the rights it
proclaims, as long as the imposition of restrictions or limitation is not

30
 aimed at the destruction of the rights or their limitation to a greater extent
than is provided for in the covenant (Article 5).

Illustrative cases
• The Human Rights Committee held that the breadwinner requirement in
the Dutch Unemployment Benefits Act- married women could receive
support only if they could prove that they were breadwinners- whereas this
requirement was not required of married man- constituted gender specific
discrimination in violation or art 26
• military regime in Uruguay, the Committee established serious violations
of the right to life, liberty and security of the person, of prohibition of torture
and inhuman and degrading prison conditions, of freedom of expression
and other political freedoms. Taken together these cases revealed a
consistent pattern of gross and reliably attested violations of human rights.
• The Committee also held that victims of human rights violations are
entitled to an effective remedy (see art 2 (3) (a).
• In respect of torture this entails an obligation on the state to carry out
official investigations, to identify the individual perpetrator and to grant
compensation to the victim.
• Amnesty laws are thus incompatible with the human rights obligations
attendant on a state in respect of acts of torture.

Death Penalty and Fair trial

• In capital punishment cases the Committee has held that state parties
must observe rigorously all the guarantees for a fair trial and that the
imposition of the death penalty upon conclusion of an unfair trial constitute
a violation of the right to life pursuant to article 6 of the ICCPR.
• The Committee also held that execution by gas asphyxiation as practised
in California constitutes cruel and inhuman treatment- Consequently by
exposing somebody to the real risk of execution in such a manner by
means of extradition to the US, Canada a state party which had abolished
the death penalty, violated article 7 of the Covenant.
• With respect to the US practice of imposing the death sentence even on
minors the Committee considered the US reservation to article 6(5) of the
CCPR to be incompatible with the object and purpose of the Covenant
and explicitly requested the US to withdraw this reservation as well as the
reservation concerning the prohibition of torture.

Other issues
• In 1994 the general prohibition of male homosexuality in the Australian
State of Tasmania was found to be in violation of the right to privacy in
article 17 of the Covenant
• In Lubicon Lake Band v Canada, the Committee made a pronouncement
to the effect that historical inequities as well as large scale expropriation to
the lands of the Cree Indian band for commercial interests threatened the

31
 way of life and culture of that indigenous minority and thereby constituted
a violation of article 27 of the Covenant.
• It must be appreciated that many states in which serious human rights
violations occur are not parties to the First Optional Protocol which
provides for individual complaint mechanisms and only very few states
actually make convincing effort to comply with their obligations under the
Covenant and with legally non-binding decisions of the Committee
• The Human Rights Committee has adopted a General Comment to the
effect that the obligations assumed under the Covenant are of a
continuing nature.
• The Covenant has no provision on denunciation or withdrawal- However
Article 12 of the First optional protocol provides for denunciation. Jamaica
and Trinidad and Tobago renounced the First Optional Protocol and
thereafter acceded again with a reservation excluding the competence of
the HRC to consider individual complaints relating to the imposition of the
death penalty- this reservation appears incompatible with the object and
purpose of the Covenant.

32
Economic, Social and Cultural Rights and the Right to Development in
Zimbabwe

„ Economic social and cultural rights are an integral part of human rights
law
„ Economic, Social and Cultural Rights are included in the Universal
Declaration of Rights
„ The International Covenant on Economic, Social and Cultural Rights is the
basis of all international law on economic, social and cultural rights
„ At the regional level the African Charter provides protection for economic,
social and cultural rights
„ Human rights and fundamental freedoms are interdependent, indivisible
and interrelated.
„ There should be equal attention on the promotion and protection of all
categories of human rights
„ According to the Vienna Convention on the law of treaties a state should
perform its treaty obligations in good faith
„ Failure by a state to comply with treaty obligations is violation of the
provisions of that treaty.
„ The ICESCR contains a list of ESC rights, which are:
„ Article 6 on the right to work.
„ Article 7 on the right to the enjoyment of just and favourable conditions of
work.
„ Article 8 on the right to join and form trade unions and to strike.
„ Article 9 on the right to social security.
„ Article 10 on the right to protection of the family, marriage, maternity
protection and special measures of protection and assistance for children.
„ Article 11 on the right to an adequate standard of living, including
adequate food, clothing, and housing and the continuous improvement of
living conditions.
„ Article 12 on the right to the enjoyment of the highest attainable standard
of mental and physical health.
„ Article 13 on the right to education.
„ Article 15 on culture and the benefits of scientific progress, and intellectual
property.

Article 2 of the ICESCR

„ Each State Party to the ICESCR undertakes to take steps,
individually and through international assistance and co-operation,
especially economic and technical, 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.

The obligation to 'take steps'

33
„ States must take concrete steps towards the achievement of the protected
rights. The steps must be appropriate in that they must include legislation,
must provide judicial remedies, and policy and administrative actions to
ensure that the rights are implemented.

Obligation to 'progressively realise'

„ Unlike the Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights cannot be
implemented immediately and allows for the progressive realisation of the
rights. However this must be done as expeditiously as possible.
„ The obligation to progressively realize economic, social and cultural rights
rights does not imply discretion on a state to defer indefinitely full
realization of the rights.

Obligations to Set and Meet Targets that Demonstrate Progress

States have an obligation to set time limits and benchmarks, targets and
indicators on the progressive implementation of the protected rights. In other
words the government must have a measurable plan for the implementation
of the rights.

„ States are required to engage in concerted national effort to invoke the full
participation of all sectors of society to be able to achieve progress in the
implementation of economic, social and cultural rights.
„ Particular attention should also be given to improve the living conditions of
the poor and others who are particularly vulnerable.
„ Although ECOSOC rights are generally supposed to be realized
progressively subject to availability of resources certain rights are capable
of immediate implementation.
„ States should take appropriate means including legislative measures,
administrative, judicial, educational and other measures necessary to give
meaning to the rights provided for.
„ NB legislative measures alone are not sufficient to implement ecosoc
rights.

The 'minimum core obligation' of the Covenant

The Committee on Economic, Social and Cultural Rights states that although
rights must be progressively realised each state has a minimum core
obligation that must be realised immediately. … 'at the very least, minimum
essential levels of each of the rights.' According to the CESCR, examples of
violations of core minimum obligations would include deprivation of essential
foodstuffs …basic shelter and housing…
„ States are obligated, irrespective of availability of resources, regardless of
the level of economic development- to ensure respect for the enjoyment of
the minimum subsistence rights.

Available Resources and Minimum Core Content

34
„ Where a state has failed to guarantee enjoyment of the minimum core
obligations and argues that it has failed to do so because of a lack of
available resources, this must be judged against the state party having
allocated "all resources that are at its disposition in an effort to satisfy, as
a matter of priority, those minimum obligations."
„ States are under an obligation to effectively utilize the available resources.
„ Available resources refers to both resources within the state as well as
those available from the international community.

The Principle of Non-Retrogression

State parties cannot implement measures that go contrary to their
international obligations, such as under ICCESCR. Within the subject of
economic, social and cultural rights it also means that a state cannot allow a
situation where the individual’s access to economic, social and cultural rights
declines through action or inaction by the state.

Non-Discrimination
The two articles on non-discrimination (Article 2(2)) and equality between
men and women (Article 3) apply to all rights within the Covenant and are not
subject to progressive realisation.

Remedies for violations of economic, social and cultural rights

„ The Committee on Economic, Social and Cultural Rights, in General
Comment 9 has noted the importance to provide mechanisms for
addressing violations, and has stated that remedies must be 'effective'.
For administrative remedies, the remedy must be 'accessible, affordable,
timely and effective.'

„ International law does not prescribe any political ideology as the preferred
method of implementation of ecosoc rights.
„ Whatever form of governance structure is chosen what is required is that
the rights provided for under treaty are fully realized.

„ The obligation assumed by states under the African Charter on Human

and Peoples’ rights require every member state to take immediate steps
towards implementation of the provisions of the Charter.

THE RIGHT TO DEVELOPMENT

„ The right to development under international law emphasises the centrality
of the individual
„ The right to development therefore refers to a process that is centred
around the needs and rights of people, which implies participation and
which is economically, socially and environmentally sustainable.
„ The right to development implies equitable distribution, enhancement of
the individual’s choices and her participation in social, economic and
political issues.

35
 „ The right to development can only be fulfilled if all human rights are
realised in a comprehensive manner based on principles of equity and
social justice through a process that permits active participation in a
transparent fashion in both the enjoyment of human rights and policy
implementation by everyone including minorities and vulnerable groups.
„ The focus on participation and accountability emphasises development
that is socially equitable, participatory, non discriminatory, accountable,
and transparent.
„ Beneficiaries are therefore to be decision-makers in the development
process and cannot simply be treated as recipients of aid. By placing the
emphasis on the rights of the individual the right to development attempts
to avoid perverse development and to ensure that the particular needs of
communities are met. From a practical perspective, when dealing with
individual projects, this means that projects should be developed in
proximity to partners and beneficiaries.
„ Participation implies the full ambit of civil and political rights, especially the
rights to information, freedom of expression and association

International assistance and cooperation

„ States have an obligation to create conditions favourable to the realisation
of the right to developemnt. The domestic efforts of any state should be
complemented by support from the international community.

The Development Compact

„ the development compact emphasises cooperation between all
stakeholders, especially the government/ developing state and donors and
the international community. The state has the obligation to initiate
developmental projects that are accountable, transparent and
participatory.
„ The international community and other stakeholders have a corresponding
obligation to assist and complement the efforts of the state.
„ Essentially the development compact is about accountability of the
government and international assistance.
Rights to food, education and health
„ International law implies that emphasis in the realisation of the right to
development should be given to the rights to food, education and health.

36
 The Limburg Principles and Maastricht Guidelines

DR C. LUMINA*

1. INTRODUCTION

Ten years after the entry info force of the International Covenant on Economic, Social and
Cultural Rights (ICESCR), a group of experts in international law, convened by the International
Commission of Jurists, the Faculty of Law of the University of Limburg (Maastricht, The
Netherlands), and the Urban Morgan Institute for Human Rights, University of Cincinnati, USA,
adopted the Limburg Principles on the Implementation of the International Covenant on
Economic, Social and Cultural Rights (‘the Limburg Principles’)18. The group had been convened
to consider the nature and scope of the obligations of states parties to the ICESCR, the
consideration of states parties’ reports by the (then) recently established Committee on
Economic, Social and Cultural Rights, and international cooperation in terms of Part IV of the
Covenant. In 1987, the Limburg Principles were adopted as an official document of the United
Nations19.

On the occasion of the tenth anniversary of the Limburg Principles, another group of experts
met in Maastricht to elaborate on the Limburg Principles with respect to the nature and scope
of violations of economic, social and cultural rights and appropriate responses and remedies.
The outcome of this meeting was the Maastricht Guidelines on Violations of Economic, Social
and Cultural Rights (‘the Maastricht Guidelines’).

This paper outlines the key elements of the Limburg Principles and the Maastricht Guidelines.

2. THE LIMBURG PRINCIPLES

As indicated above, the Limburg Principles were formulated by a group of international legal
experts as a means of assisting in the development and application of economic, social and
cultural rights. There are 103 individual Principles designed to address ‘the complexity of the
substantive issues covered by the ICESCR’, the provisions of which tend to be vaguely worded.

*
LLB (Zambia); LLM (Essex); PhD, GradCertHEd (Griffith); AdvDipIntHR (Abo Akademi); Advocate of the High Court for
Zambia; Senior Lecturer, Faculty of Law (Howard College), University of KwaZulu-Natal, Durban, South Africa. E-mail:
[email protected]
18
The participants came from Australia, the Federal Republic of Germany, Hungary, Ireland, Mexico, Netherlands,
Norway, Senegal, Spain, United Kingdom, United States of America, Yugoslavia, the United Nations Centre for Human
Rights, the International Labour Organisation (ILO), the United Nations Educational, Scientific and Cultural Organisation
(UNESCO), the World Health Organisation (WHO), the Commonwealth Secretariat, and other organizations.
19
See E/CN.4/1987/17, Annex.

37
(a) The Nature and Scope of States Parties’ Obligations

The Limburg Principles commence with the recognition that economic, social and cultural
rights are ‘an integral part of international human rights law’ (Principle 1). Principle 6
recognises that the achievement of socio-economic rights may be realised in a variety of
political settings. The Principles also recognise the important role that non-governmental
organisations can play in promoting the implementation of the Covenant.

(b) Interpretative Principles relating to Part II of ICESCR

Article 2(1): General obligation

Appropriate steps (including legislative measures)

According to Principle 16, this provision imposes an obligation to take immediate steps towards
full realisation of the rights contained in the Covenant. At the national level, states parties are
required to use all ‘appropriate means, including legislative, administrative, judicial,
economic, social and educational measures, consistent with the nature of the rights’ and to
provide for ‘effective remedies’.

Progressive realisation

The obligation to ‘achieve progressively the full realisation of the rights’ requires states
parties to move as expeditiously as possible towards the realisation of the rights in the
Covenant. This is not to be interpreted as permitting states to defer indefinitely efforts to
ensure full realisation but as requiring states to take immediate steps to fulfil their obligations
under the Covenant. In terms of Principle 22, some obligations, such as the prohibition of
discrimination in Article 2(2) of the Covenant, require immediate implementation in full by all
states parties. The obligation of progressive realisation is not dependent on an increase in
resources.

Availability of resources

The provision ‘to the maximum of its available resources’, like the ‘progressive realisation’
standard, is used to justify the non-enjoyment of socio-economic rights. Nevertheless,
according to the Limburg Principles, the provision enjoins states parties to ensure minimum
subsistence rights for everyone, irrespective of the level of economic development in a given
country. The phrase ‘its available resources’ refers to both the resources with a state and
those available from the international community through international cooperation and
assistance. The use of the available resources to realise the rights in the Covenant requires
that cognisance be taken of the need ‘to assure to everyone the satisfaction of subsistence
requirements as well as the provision of essential services’.

International assistance and cooperation

Principles 29 and 30 stipulate that international cooperation and assistance should be directed
towards the realisation of all human rights including socio-economic rights. Principle 34

38
recognises the role of international organisations and the contribution of nongovernmental
organisations in the context of international cooperation and assistance.

Article 2(2): Non-discrimination

According to the Limburg Principles, Article 2(2) of the ICESCR requires states parties to ensure
the provision of judicial review and other recourse procedures in the event that discrimination
in the enjoyment of socio-economic rights occurs. The grounds of discrimination listed in the
provision are not exhaustive. Further, special measures taken for the sole purpose of securing
adequate advancement of certain groups or individuals requiring protection in order to ensure
that they enjoy socio-economic rights equally are not considered discrimination, provided such
measures do not lead to the maintenance of separate rights for different groups and are not
continued after their objectives have been achieved. It is notable that the provision not only
enjoins governments to refrain from discriminatory behaviour and to change laws and practices
which allow discrimination, it also requires states to prohibit private persons and entities from
engaging in discriminatory practices in any field of public life.

Article 2(3): Non-nationals in developing countries

Principle 42 states that the Covenant applies equally to nationals and non-nationals.

Article 3: Equality

Women often face substantial and disproportionate obstacles in enjoying human rights,
including economic, social and cultural rights. Article 3 of the Covenant guarantees that men
and women are equally entitled to enjoy the rights set forth in the Covenant and that, if
necessary, states employ special measures to ensure that women enjoy these rights on an
equal footing. In other words, there should be equal rights for men and women.

According to Principle 45, in the application of Article 3 of the Covenant, due regard should be
had to, inter alia, the Convention on the Elimination of All Forms of Discrimination against
Women and the activities of the Committee on the Elimination of Discrimination against
Women.

Article 4: Limitations

This provision was primarily meant to protect the rights of individuals rather than to permit the
imposition of limitations by the state, particularly those affecting the subsistence or survival of
the individual or integrity of the person. The phrase ‘determined by law’ meant that no
limitation on the exercise of the rights in the Covenant is permissible except where provided
for by a law of general application that is consistent with the Covenant. Further, laws limiting
socio-economic rights must not be arbitrary or unreasonable or discriminatory. In addition,
legal rules limiting socio-economic rights ought to be clear and accessible to everyone and
adequate safeguards and effective remedies must be provided by law against illegal or abusive
imposition in the application of limitations on socio-economic rights.

The phrase ‘promoting the general welfare’ refers to advancing the well-being of the people
as a whole while the expression ‘in a democratic society’ imposes a further restriction on the
application of limitations. The burden rests on the state to prove that any limitations do not
impair the democratic functioning of society. Compatibility with ‘the nature of these rights’

39
requires that a limitation is not interpreted or applied so as to endanger the essence of the
right in question.

Article 5

According to Principle 57, none of the provisions in a law purporting to limit the rights in the
Covenant may be interpreted in such a way as to nullify any of the rights and freedoms
guaranteed in the Covenant. The main purpose of Article 5(2) is to ensure that no provision of
the Covenant is interpreted so as to prejudice provisions of domestic law or any other legal
instrument already in force, or which may come into force, under which more favourable
treatment would be accorded to persons protected.

(c) Interpretative Principles relating to Part III of ICESCR

Article 8: Right to form and join trade unions

The right to form and join trade unions may only be limited in terms of a law that responds to a
pressing public or social need, pursues a legitimate aim, and is proportional to that aim. With
regard to national security concerns, the Principles emphasise that the systematic violation of
socio-economic rights undermines true national security and may endanger international peace
and security. National security may be invoked to justify measures limiting certain rights only
where such measures are taken to safeguard the existence of the nation or its territorial
integrity or political independence against force or threat of force.

(d) Violations of Economic, Social and Cultural Rights

Principle 70 makes it clear that a failure by any state party to comply with an obligation
imposed by the Covenant constitutes a breach of the Covenant. However, the Principles
recognise that states have a margin of discretion in selecting the means for fulfilling the
objects of the Covenant and that factors beyond the state’s reasonable control may adversely
affect its capacity to implement certain rights. Examples of violations include: failure to take
steps required by the Covenant, failure to remove promptly obstacles it is enjoined to remove
in order to facilitate the immediate fulfilment of a right; failure to implement promptly a right
which it is required to provide immediately; wilful failure to meet a generally accepted
international minimum standard of achievement which is within its powers to meet; attempting
to limit a right in a manner inconsistent with the Covenant; deliberately hampering or stopping
the progressive realisation of a right unless it does so due to a lack of resources or force
majeure or it is acting within a limitation permitted by the Covenant; and failure to submit
reports as required under the Covenant.

(e) Other Principles

The remainder of the Principles are devoted to guidelines concerning the preparation and
submission of reports by states parties to the Covenant (Principles 74 – 82), the role of the
Committee on Economic, Social and Cultural Rights (Principles 83 – 91), and relations between
the Committee and the Specialized Agencies of the United Nations and other international
organisations (Principles 92 – 103).

40
3. THE MAASTRICHT GUIDELINES

The Maastricht Guidelines cover a variety of issues concerning socio-economic rights, including
the significance of economic, social and cultural rights (Part I); the meaning of violations of
these rights, including minimum core obligations (Part II); responsibility for violations (Part III);
victims of violations (Part IV); and remedies and other responses to violations (Part V).

(a) The significance of economic, social and cultural rights

The Guidelines begin by highlighting the growing disparities between the rich and the poor

since the adoption f the Limburg Principles in 1986 and the challenges of addressing the

multifaceted violations of socio-economic rights. The Guidelines also emphasise that the failure

by a state to fulfil a treaty obligation concerning economic, social and cultural rights

constitutes a violation of the treaty in question.

(b) The meaning of violations of economic, social and cultural rights

Economic, social and cultural rights, like civil and political rights, impose three different types

of obligations on states: the obligations to respect, protect and fulfil. Failure to perform any

one of these obligations constitutes a violation of such rights. The obligation to respect

requires states to refrain from interfering with the enjoyment of economic, social and cultural

rights. Thus, the right to housing is violated if the state engages in arbitrary forced evictions.

The obligation to protect requires states to prevent violations of such rights by third parties.

Thus, the failure to ensure that private employers comply with basic labour standards may

41
constitute a violation of the right to work or the right to just and favourable conditions of

work.

The obligation to fulfil requires states to take appropriate legislative, administrative,

budgetary, judicial and other measures towards the full realisations of such rights.

Consequently, the failure of a state to develop and implement a reasonable plan of action for

achieving access to essential primary health care to those in need may amount to a violation of

the right to health and medical care.

The Guidelines also state that socio-economic rights involve both ‘obligations of conduct’ and

‘obligations of result’. An obligation of conduct requires the taking of action reasonably

calculated to realise the enjoyment of a particular right. In the case of the right to health, for

example, the obligation of conduct could involve the adoption and implementation of a plan of

action to reduce maternal mortality. An obligation of result requires states to achieve specific

targets to satisfy a predetermined substantive standard. With respect to the right to health, for

instance, the obligation of result requires the reduction of maternal mortality to levels agreed

at the 1994 Cairo International Conference on Population and Development and the 1995

Beijing Fourth World Conference on Women.

It is recognised that in selecting the means for implementing their respective obligations,

states enjoy a margin of discretion. However, the fact that the full realisation of most socio-

economic rights can only be achieved progressively, does not change the nature of the

obligations of states which requires that certain steps be taken immediately and others as soon

as possible. Consequently, the state bears the onus of proving that it is making measurable

progress towards the full realisation of the rights in question. A state cannot rely on the

42
‘progressive realisation’ provision in Article 2 of the Covenant as an excuse for non-

compliance.

The Maastricht Guidelines provide for minimum core obligations. At the very least, states are

required to undertake specific conduct such as the adoption of measures (including a plan of

action) reasonably calculated to achieve the minimum essential levels of each of the rights.

Thus, for instance, a state in which a large number of people are deprived of essential

foodstuffs, health care or basic shelter, is prima facie, violating the Covenant. These minimum

core obligations apply irrespective of the availability of a state’s resources or any other

factors.

A state may violate economic, social and cultural rights through commission or omission. Thus,

a violation will occur when a state pursues, by action of omission, a policy or practice which

deliberately contravenes or ignores obligations of the Covenant or fails to achieve the required

standard of conduct or result. Examples of violations through commission or omission are given.

(c) Responsibility for violations

The state within whose jurisdiction violations of socio-economic rights occur bears

responsibility for those violations. As such, the state responsible is required to establish

mechanisms to correct such violations, including monitoring, investigation, prosecution and

remedies for victims. In situations where violations occur in a territory under foreign

43
domination or occupation, the state exercising effective control over the territory bears

responsibility for the violations.

The obligation to protect also requires the state to ensure that private entities or individuals,

including transnational corporations subject to their jurisdiction, do not deprive individuals of

their socio-economic rights, particularly where the state fails to exercise due diligence in

controlling the conduct of such non-state actors.

As members of international organisations, states are obliged to ensure that such organisations

do not violate economic, social and cultural rights.

(d) Victims of violations

Both individuals and groups can be victims of violations of economic, social and cultural rights.

The Guidelines recognise that certain groups, such as lower income groups, women, indigenous

and tribal peoples, asylum seekers, refugees, minorities, elderly persons, persons with

disabilities, and the homeless, suffer disproportionately. The Guidelines recommend that

victims of violations should not be subjected to criminal sanctions purely because of their

status as victims, for example, through laws criminalising homelessness.

(e) Remedies and other responses to violations

44
The Guidelines provide that victims of violations should have access to ‘effective judicial or

other appropriate remedies at both national and international levels’ and are entitled to

adequate reparation which may take the form of restitution, compensation, rehabilitation and

satisfaction or guarantees that the violation will not be repeated. The Guidelines also provide

that national promotional and monitoring institutions should address violations of socio-

economic rights with the same robustness as they do civil and political rights, and that states

should develop effective measures to preclude the possibility of impunity.

4. THE LEGAL STATUS OF THE PRINCIPLES AND GUDELINES

Neither the Limburg Principles nor the Maastricht Guidelines have any legal force. However,

they are considered an authoritative summary of the state of international human rights law on

the subject of economic, social and cultural rights. They provide a conceptual guide to the

interpretation of the rights guaranteed in the ICESCR. On numerous occasions, the Committee

on Economic, Social and Cultural Rights has referred to the Principles in its General Comments.

The inclusion of the Limburg Principles in Resolution 1993/14 of the UN Commission on Human

Rights underscores that the Principles have been accepted by the most important UN body in

the human rights field.

5. CONCLUSION

Since their adoption by international legal experts in 1986 and 1997, respectively, the Limburg

Principles and the Maastricht Guidelines have been endorsed by the United Nations and become

45
important authoritative guide to interpretation of the provisions of the ICESCR. The key

international body responsible for monitoring states’ compliance with their international legal

obligations in regard to socio-economic rights has relied upon the Principles and Guidelines in

formulating its General Comments on numerous occasions.

46
 20
INTERNATIONAL AND REGIONAL HUMAN RIGHTS MONITORING AND
ENFORCEMENT MECHANISMS

Introduction
International law,21 which includes international human rights law, principally
applies to states rather than individuals. Therefore, how can international human
rights law be enforced?

Ordinarily, and ideally, the most effective way to enforce human rights is by
taking action in the domestic legal system where the alleged violation has
occurred. Generally human rights treaties require that states incorporate the
rights contained in the treaty into their domestic law and provide effective
remedies if they are violated. Thus human rights may be recognised as rights
under a state’s constitution and/or other domestic law, and remedies provided
accordingly. It is these domestic remedies that individuals and groups of
individuals seeking redress or protection, for or against human rights violations,
are ordinarily required to exhaust before they can have recourse to regional and
international mechanisms. That is, international and regional mechanisms can
only be resorted to when all available domestic remedies have been exhausted.

Human rights treaties are based on the principle that states will respect them and
that they will promote and protect the rights that they enshrine at the national
level. To monitor compliance by states with their obligations under the treaties,
the international community22 has put in place some mechanisms. These are
either Charter based or treaty based. Some regional communities23 have also put
in place mechanisms for monitoring and implementing the provisions of human
rights treaties that have been adopted at the regional level by the respective
regional communities.

Treaty-based Mechanisms
Committees or treaty monitoring bodies or supervisory committees or treaty
bodies, however they are termed, monitor the implementation of core human
rights treaties. The legal basis for the establishment of these treaty bodies is
found in the treaties themselves, with the exception of the Committee on
Economic, Social and Cultural Rights, which was established through a
resolution adopted by the UN Economic and Social Council (ECOSOC).

Treaty bodies are composed of independent experts of recognized competence

in the field of human rights24 who are elected by members of the United Nations.
In the case of the United Nations, all treaty bodies are serviced by the Office of

20
As in the context of the African region.
21
International law, generally, is the law that governs relations between states.
22
I.e. states operating within the framework of the United Nations.
23
Such as Europe, the Americas and Africa.
24
Especially in the specific area covered by the treaty in question.

47
the High Commissioner for Human Rights in Geneva, with the exception of the
Committee on the Elimination of Discrimination against Women, which is
serviced by the Division for the Advancement of Women in New York.

The UN treaty bodies have been established in accordance with, or for, the
following treaties:
• International Convention of the Elimination of all forms of Racial
Discrimination (ICERD),
• International Covenant on Civil and Political Rights (ICCPR),
• International Covenant on Economic, Social and Cultural Rights
(ICESCR),
• Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT),
• Convention on the Rights of the Child (CRC),
• Convention on the Elimination of all forms of Discrimination against
Women (CEDAW),

At the regional level, treaty bodies have also been established in terms of the
following regional treaties:
• African Charter on Human and Peoples’ Rights (ACHPR),
• European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECPHRFF),
• American Convention on Human Rights (ACHR)

The UN and OAU systems provide as follows:

ICCPR – it established the Human Rights Committee (article 28), which monitors
and supervises implementation of the Covenant through:
• State party reporting (article 40)
• Inter-state complaints (articles 41 and 42)
• Individual complaints25

ICESCR - provides for a reporting mechanism (Article 16). However, no

committee is established to consider reports but the Covenant merely stipulates
that they are to be submitted to ECOSOC. In 1985 ECOSOC set up by
resolution, the Committee on Economic, Social and Cultural Rights as the
supervisory body for the Covenant.

ICERD – established the Committee on the Elimination of Racial Discrimination

(article 8), which has three procedures:
• State party reporting (article 9)
• Inter-state complaints (articles 11-13)
• Individuals complaints (article 14)26

25
This procedure is provided for by the First Optional Protocol to the ICCPR.

48
CEDAW – the Committee on the Elimination of Discrimination against Women
was established to review state party reports, on the legislative, judicial,
administrative and other measures they adopted to give effect to the provisions
of the Convention. The UN General Assembly in 1999 adopted an Optional
Protocol to CEDAW, in terms of which states ratifying or acceding to the Protocol
recognize the competence of the Committee to receive and consider
communications (article 1), submitted by or on behalf of individuals or groups of
individuals, under their jurisdiction, claiming to be victims of a violation of any of
the rights set forth in the Convention (article 2).

In addition to the individual communications procedure, the Protocol also

establishes a confidential inquiry procedure. The Committee may institute an
inquiry, including a visit to the territory of the state party concerned, if it receives
reliable information indicating grave or systematic violations of the provisions of
the Convention (article 8). Please note, however, that it is possible for a state to
opt-out of this inquiry procedure by making a declaration at the time of ratification
or accession that it does not recognise the competence of the Committee to
invoke the procedure with respect to it.

CRC - article 43 establishes the Committee on the Rights of the Child for the
purpose of monitoring progress made by states in achieving the rights enshrined
in the Convention. The only procedure it uses is the review of state party reports.
With the adoption of the Optional Protocol to the CRC on the sale of children,
child prostitution and child pornography and the Optional Protocol to the CRC on
the involvement of children in armed conflict, the Committee will now also
consider state party reports submitted in accordance with the Protocols. The
Protocols were adopted by the UN General Assembly in 1999 and they entered
into force in February 2002.

CAT - established the Committee Against Torture as the monitoring and

supervisory body for the Convention. It uses four procedures, viz:
• State party reporting (article 19)
• Inquiry (article 20)27
• Inter-state complaints (article 21)28
• Individual complaints (article 22)29.
26
Provided that the state complained against has made a declaration recognising the competence of the
Committee to receive such individual communications.
27
The Committee may undertake investigatory action on is own initiative where it suspects that torture is
being systematically practiced. However, the concerned state must consent to the investigation.
28
Provided that the states concerned have made a declaration recognising the competence of the
Committee to receive such complaints.
29
Provided that the state complained against has made a declaration recognising the competence of the
Committee to receive such individual communications.

49
ACHPR - established the African Commission on Human and Peoples’ Rights
(article 30), which promotes human and peoples’ rights (article 450, and receives
and considers:
• Inter-state complaints (article 47),
• Other complaints (article 55), which could be from individuals or groups of
individuals
• State party reports on the measures they have taken to give effect to and
to implement the provisions of the Charter (article 62).

The AU has adopted the Protocol to the African Charter on the establishment of
the Africa Court on Human and Peoples’ Rights to complement the
Commission’s mandate, and while this has come into force it is too soon to
determine how effective this body will be.

Charter-based Mechanisms
The old Commission on Human Rights
• The Commission on Human Rights was set up by ECOSOC in 1946 for
the purpose of, among other things, the implementation of human rights.
• The Commission was a subsidiary body of ECOSOC, which is an organ of
the General Assembly
• The Commission met annually in Geneva in March/April for six weeks
• It was composed of 53 States members chosen on a regional and
rotational basis.
During its regular annual session, the Commission adopted around a hundred
resolutions, decisions and Chairperson's statements on matters related to human
rights.
• The Commission was assisted in this work by the Sub-Commission on the
Promotion and Protection of Human Rights, a number of working groups
and a network of individual experts, representatives and rapporteurs
mandated to report to it on specific issues.
• The Commission relied on a network of mechanisms – experts,
representatives and rapporteurs
• These mechanisms relied heavily on the work of NGOs for the provision of
information
• The Commission had a broad mandate, allowing deliberation of:
• the right to self-determination;
• racism;
• the right to development;
• the question of the violation of human rights in the occupied Arab
territories, including Palestine;
• the question of the violation of human rights and fundamental freedoms in
any part of the world;
• economic, social and cultural rights;
• civil and political rights,

50
 • including the questions of torture and detention, disappearances and
summary executions, freedom of expression, the independence of the
judiciary,
• impunity and religious intolerance;
• the human rights of women, children, migrant workers, minorities and
displaced persons;
• indigenous issues;
• the promotion and protection of human rights, including the work of the
Sub-Commission, treaty bodies and national institutions;
• and advisory services and technical cooperation in the field of human
rights
Participation
• The Commission had broad guidelines on participation:
• Any state or entity present at its sessions could participate in its
deliberations on human rights activities,
• any state could be invited to participate in its deliberations of any matter of
particular concern to that state,
• UN specialised agencies and certain other inter-governmental bodies
could participate in its activities on issues that concern them
• NGOs with a consultative status with ECOSOC had an independent role
to playing the Commission’s proceedings.
Role of the Commission
• Standard Setting
• International Discussion on Human Rights
• Monitoring and Enforcement
Standard Setting
• One of the most important achievements of the Commission was the
elaboration of human rights standards.
• These include stadards relating to:
• the right to development,
• civil and political rights.
• economic, social and cultural rights,
• the elimination of racial discrimination,
• torture,
• the rights of the child and
• the rights of human rights defenders.
Forum
• A forum where all countries, non-governmental organizations and human
rights defenders met to voice their concerns regarding human rights
violations.
The Enforcement Procedures
• The Commission adopted two procedures for the monitoring and
enforcement of human rights.
• These were the 1235 and 1503 procedures, named after the resolutions
under which they were established.
The 1235 Procedure

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 • The procedure allowed public debate on human rights situations in any
part of the world showing consistent patterns of gross violations of human
rights.
• This procedure could culminate in an investigation being instituted such as
the appointment of a special rapporteur of the Commission on Human
Rights or a special representative of the UN Secretary-General.
• The matter could also be referred to the Security Council.
• The procedure was important because:
• it allowed naming and shaming;
• the procedure allowed NGOs an arena for lobbying influential states;
• the Commission was empowered to make statements and resolutions on
the human rights situation in different countries.
• Through this procedure the Commission could investigate particular
countries (country mechanisms or mandates) or particular human rights
issues (thematic mechanisms or mandates).
The 1503 Procedure
Resolution 1503 established a procedure that could be used by individuals and
NGOs to bring complaints of human rights violations directly to the Commission
on Human Rights, through the Sub-Commission.
• Communications needed to show a, “consistent pattern of human rights
violations”.
• Not strictly speaking an individual communications procedure

Consideration of Communications
• The Working Group on Communications, a working group of the Sub-
Commission, which consisted of five independent experts, considered the
complaints, as well as the government replies to the complaints.
• Communications considered to demonstrate consistent gross violations of
human rights were referred to the Sub-Commission
• The Sub-Commission would then refer any matter it agreed demonstrated
consistent gross violations to the Commission
• The Commission would report to ECOSOC and publicise any country that
was subject to the 1503 procedure (before this the whole procedure
would be confidential).
• Matters could then be decided on by ECOSOC and action could include
reference to the GA etc, or discussion under the 1235 procedure
Special Procedures
• Special procedures were usually the result of discussions under the 1235
procedure
• UN working Groups, Special Rapporteurs, Special Representatives,
Independent Experts, Missions and Studies made by the UN Secretary-
General.
• the mandate to receive information from anyone on human rights
situations and to submit such information to the relevant authorities in the
countries concerned and undertake urgent interventions on a strictly
humanitarian basis.

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Criticisms of the Human Rights Commission
• 53 member states (too large)
• Resolutions drafted by Regional Blocks
• Block Voting
• Membership by countries accused of gross violations
• It was allegedly too large
• The Commission was not permanent
• The 1235 and 1503 procedures were not fully utilised under the
Commission. This was because:
• The 1235 procedure was politicised
• So, the 1503 procedure concentrated on gross and massive violations,
rather than individual violations
• Motions of no action
Successes
• Successful in developing standards and norms regarding the content and
implementation of human rights.
• The Commission was able to conduct studies or investigative procedures
The Human Rights Council
• Negotiations in 2005 culminated in a draft General Assembly resolution
being circulated on the creation of a Human Rights Council to replace the
Human Rights Commission
• A final draft was published on 23 February 2006 and was adopted by the
UN General Assembly
• The Human Rights Council is an organ of the General Assembly
(therefore at the same level as ECOSOC)
• It consists of 47 member states, elected on a simple majority of all
members of the UN
• Each member will be elected individually
• There will be no block voting for membership of the Council
• The membership of the Council will be open to all members of the United
Nations;
• Consideration should be given “the candidates’ contribution to the
promotion and protection of human rights and their voluntary pledges and
commitments made thereto.”
• Members can be removed by a two thirds majority of the GA for “gross
and systematic violations of human rights.”
• The new Council will meet throughout the year and will hold one main
session but will have to meet for at least ten weeks in the year.
• The Council will also be able to meet whenever it needs to throughout the
year
Universal Periodic Review
• the Human Rights Council will be expected to conduct a “universal
periodic review of the fulfillment … by each State of its human rights
obligations and commitments…”
• the members of the Human Rights Council will subject themselves to the
universal periodic review mechanism during their term of office.

53
Commission Procedures
• All procedures (including 1235 and 1503) are continued on and the
Council will, in its first year, attend to amending and developing the
procedures)
• The same rules for NGO participation are maintained
Comments
• 1. Membership rules are still relatively relaxed, should they be stricter?
• 2.The Council is still rather large, should it be smaller?
• 3. The Council is now a subsidiary organ of the GA, will this make it more
effective?
• 4. The USA voted against the Council and did not stand for election, will
this weaken the Council?
Was it worth it?

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Protection of Human Rights under the African System
• The protection and promotion of human rights under the African system is
anchored on the African Charter on Human and Peoples’ Rights
• Adopted by the OAU on 27 June 1981 and entered into force on 21
October 1986. Currently has 52 member states.
• The charter sets up a system whose purpose is to promote fundamental
human rights, with particular emphasis on African tradition and the
peoples’ right to development.
• The preamble to the Charter mentions the UDHR as containing the
principles to which the state parties reaffirm their adherence. The Charter
of the United Nations is also mentioned as being relevant and applicable
to the African context
The Charter is of special significance in that it represents the beginning of African
States’ organized commitment to protecting human rights. Previously,
intervention in the realm of human rights had come almost exclusively from
Western states
• The African Charter first introduces the human and peoples’ rights to be
promoted and protected, and then lays out the individual duties to his
family and society.
• The charter also establishes the African Commission on Human and
Peoples’ Rights as a supervisory body to oversee the protection of the
rights enumerated, and then declares that the Commission shall draw
inspiration from international law on human and peoples’ rights- see art 60
Substantive content of the Charter
• Unlike other human rights instruments the African Charter provides for
both civil and political rights and economic social and cultural rights. It also
provides for collective rights.
• There is a general non discrimination clause which continues with an
equal protection clause and a guarantee of the right to life
• Slavery, torture inhuman and degrading or cruel punishment and
treatment is outlawed and so are arbitrary arrest and detention.
• The Charter protects the right to due process and provides for freedoms of
thought, religion, information, expression of opinion, and freedom of
association and assembly.
• The right to freedom of movement and the right to seek asylum is
recognized.
• Mass expulsion of non nationals is prohibited.
• The right to property is guaranteed and so are the right to work and to be
paid equally for equal work.
• The right to health, the right to education etc.
• The family is defined as the natural unit and basis of society, which shall
be protected and assisted by the family
• The rights of women, children as well as those aged and disabled are
designated for special protection
In its discussions of individual rights the Charter refers to and incorporates other
international human rights instruments- see article 18(3)

55
 • Articles 19-24 provides for third generation peoples’ rights.
• The general equality clause precedes this section
• Duties
• The African Charter is somewhat unique in that it recognizes duties as
well as rights
• The American Declaration on the Rights and Duties of man take the same
approach (laws and duties are inseparable)
• The individual is deemed to have duties to his family and society, the state
and other legally recognized communities and the international
community.
• Article 28 deals with the individual’s duty not discriminate against others
Claw back clauses
• The charter is replete with claw back clauses
• These clauses detract from effectiveness of the Charter’s protection by
granting states unqualified power to infringe upon certain rights- see
article 8, the enjoyment of the right to freedom of conscience is
subordinated to what is permissible ‘subject to law and order’
• See also article 13 the right to participate in government ‘in accordance
with the provisions of the law.’
• Under article 10 you have the right to assembly ‘provided that you abide
by the law’
• NB the Charter has no general derogation clause
• The Charter emphasizes negotiations consistent with the African tradition
of preference for reconciliation over adjudication.
• To complement the supervisory role of the Commission a Protocol
establishing an African Court on Human and Peoples’ Rights has been
established.
Mandate of the African Commission on Human and Peoples’ Rights
• Articles 30 -44 establishes and define the structure of the African
Commission on Human and Peoples’ Rights.
• The Commission consists of 11 members (usually senior government
officials- but ideally these should be people of highest moral standing with
some knowledge on human rights) elected by the heads of states for a
renewable period of six years
• Once elected members serve in their individual capacities, rather than
representatives of their governments.
• The Commission is serviced by a secretariat which is based in Banjul
Article 45 sets the functions of the Commission as being
• Promotion of human and peoples’ rights
• Protection of those rights
• Interpretation of the Charter
• Performance of any other tasks which may be entrusted to it by the
Assembly of Head of State and Government.
• Promotional mandate is very broad and it is the least controversial
approach as it does not challenge directly the performance of any one
country.

56
 • It consists of studies, convening of conferences, organize publication
programs, disseminate information, and collaborate with national, African
and International institutions concerned with human and peoples’ rights
(art 45(1) )
• The Commission may also give its views and make recommendations to
governments.
• The Commission may also formulate principles and rules for the solution
of human rights problems.
NGOs have a played an important role in the promotion and protection of human
rights- working in conjunction with the African Commission on Human and
peoples’ rights.
The protective functions of the Commission are provided for in articles 46- 54
• These provisions dictate the rules for filing of complaints which are also
known as ‘communications.’
• Communications can either be by individuals –which include all parties
other than States
• Or they may be inter-state complaints
• Inter-state complaints can either be a ‘negotiation communication’ or a
‘complaint communication’
• Article 56(4) provides for the requirement of exhaustion of domestic
remedies before any complaint can be brought to the Commission for
consideration- this is called admissibility
• Once the admissibility requirement is met the Commission has wide
investigatory powers when considering a communication- the Commission
may hear written or oral evidence and may obtain all other information it
considers necessary to adjudicate on a matter.
Article 52 obliges the Commission to explore all possible avenues to find an
amicable solution to the problem- if no friendly solution is found the Commission
will then prepare a report including its findings and make recommendations for
redress. This is submitted to Assembly of Heads of States before being made
public
• There are enforcement provisions to ensure compliance with the
recommendations of the Commission. (Any power to enforce
recommendations would seem to rest with the Heads of States)
Article 56 states the standard format for individual complaints
• The Communications must state the author even if he requests anonymity
• Must not be exclusively based on news articles
• Must not pertain to a matter that has been dealt with or settled under the
UN charter, the AU or the African Charter
• Must be compatible with the AU Charter
• Must not be written in disparaging language
• The Commission may only act on a complaint only when it targets a
‘series of serious or massive violations of human and peoples’ rights’- see
art 58(1)

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 • This seriousness provision frees the Commission from the burden of
dealing with isolated incidences of violations- it seems however that this
provision is not strictly applied in practice.
• The Commission in its rules of procedure provides for provisional
measures to deal with emergency situations. See rule 111
• Publicity is the Commission’s only sanction mechanism
• All proceedings of the Commission are confidential and only the Assembly
of Heads of States can make public the report of the Commission
• The protection of human rights is therefore largely left to the discretion of a
political body
The African Court on Human and Peoples’ Rights
• In June 1998 the Assembly of Heads of State and Government adopted a
Protocol on the establishment of an African Court on Human and Peoples’
Rights. The Protocol is now in force.
• The main purpose of the Court is to complement and reinforce the
functions of the African Commission on Human and Peoples’ Rights.

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Thematic Issues

The Right to Food

• The right to adequate food (art. 11)
• The human right to adequate food is recognized in several instruments
under international law. The International Covenant on Economic, Social
and Cultural Rights deals more comprehensively than any other
instrument with this right
• article 11.1 of the Covenant, States parties recognize “the right of
everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous
improvement of living conditions”,
• pursuant to article 11.2 they recognize that more immediate and urgent
steps may be needed to ensure “the fundamental right to freedom from
hunger and malnutrition”.
• The human right to adequate food is of crucial importance for the
enjoyment of all rights.
• the right to adequate food is indivisibly linked to the inherent dignity of the
human person and is indispensable for the fulfilment of other human rights
enshrined in the International Bill of Human Rights.
• also inseparable from social justice, requiring the adoption of appropriate
economic, environmental and social policies, at both the national and
international levels, oriented to the eradication of poverty and the fulfilment
of all human rights for all.
• a disturbing gap still exists between the standards set in article 11 of the
Covenant and the situation prevailing in many parts of the world. More
than 840 million people throughout the world, most of them in developing
countries, are chronically hungry; millions of people are suffering from
famine as the result of natural disasters, the increasing incidence of civil
strife and wars in some regions and the use of food as a political weapon.
• the roots of the problem of hunger and malnutrition are not lack of food but
lack of access to available food, inter alia because of poverty, by large
segments of the world’s population

Normative content of article 11, paragraphs 1 and 2

• The right to adequate food is realized when every man, woman and child,
alone or in community with others, have physical and economic access at
all times to adequate food or means for its procurement.
• adequate food shall not be interpreted in a narrow or restrictive sense
which equates it with a minimum package of calories, proteins and other
specific nutrients.
• States have a core obligation to take the necessary action to mitigate and
alleviate hunger as provided for in paragraph 2 of article 11, even in times
of natural or other disasters
• The precise meaning of “adequacy” is to a large extent determined by
prevailing social, economic, cultural, climatic, ecological and other

59
 conditions, while “sustainability” incorporates the notion of long-term
availability and accessibility.
• The Committee considers that the core content of the right to adequate
food implies:
• 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;
• The accessibility of such food in ways that are sustainable and that do not
interfere with the enjoyment of other human rights
• Dietary needs implies that the diet as a whole contains a mix of nutrients
for physical and mental growth, development and maintenance, and
physical activity that are in compliance with human physiological needs at
all stages throughout the life cycle and according to gender and
occupation
• Free from adverse substances sets requirements for food safety and for a
range of protective measures by both public and private means to prevent
contamination of foodstuffs through adulteration and/or through bad
environmental hygiene or inappropriate handling at different stages
throughout the food chain;
• Cultural or consumer acceptability implies the need also to take into
account, as far as possible, perceived non-nutrient-based values attached
to food and food consumption and informed consumer concerns regarding
the nature of accessible food supplies
• Availability refers to the possibilities either for feeding oneself directly from
productive land or other natural resources, or for well-functioning
distribution, processing and market systems that can move food from the
site of production to where it is needed in accordance with demand.
• Accessibility encompasses both economic and physical accessibility:
• Economic accessibility implies that personal or household financial costs
associated with the acquisition of food for an adequate diet should be at a
level such that the attainment and satisfaction of other basic needs are not
threatened or compromised
• Physical accessibility implies that adequate food must be accessible to
everyone, including physically vulnerable individuals, such as infants and
young children, elderly people, the physically disabled, the terminally ill
and persons with persistent medical problems, including the mentally ill.
Victims of natural disasters, people living in disaster-prone areas and
other specially disadvantaged groups may need special attention and
sometimes priority consideration with respect to accessibility of food.

Obligations and violations

Every State is obliged to ensure for everyone under its jurisdiction access to the
minimum essential food which is sufficient, nutritionally adequate and safe, to
ensure their freedom from hunger.

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• The right to adequate food, like any other human right, imposes three
types or levels of obligations on States parties: the obligations to respect,
to protect and to fulfil. the obligation to fulfil incorporates both an obligation
to facilitate and an obligation to provide.
• The obligation to respect existing access to adequate food requires States
parties not to take any measures that result in preventing such access.
The obligation to protect requires measures by the State to ensure that
enterprises or individuals do not deprive individuals of their access to
adequate food. The obligation to fulfil (facilitate) means the State must
proactively engage in activities intended to strengthen people’s access to
and utilization of resources and means to ensure their livelihood, including
food security.
• whenever an individual or group is unable, for reasons beyond their
control, to enjoy the right to adequate food by the means at their disposal,
States have the obligation to fulfil (provide) that right directly. This
obligation also applies for persons who are victims of natural or other
disasters.
• Violations of the Covenant occur when a State fails to ensure the
satisfaction of, at the very least, the minimum essential level required to
be free from hunger.
• In determining which actions or omissions amount to a violation of the
right to food, it is important to distinguish the inability from the
unwillingness of a State party to comply.
• Should a State party argue that resource constraints make it impossible to
provide access to food for those who are unable by themselves to secure
such access, the State has to demonstrate that every effort has been
made to use all the resources at its disposal in an effort to satisfy, as a
matter of priority, those minimum obligations.
• Any discrimination in access to food, as well as to means and entitlements
for its procurement, on the grounds of race, colour, sex, language, age,
religion, political or other opinion, national or social origin, property, birth
or other status with the purpose or effect of nullifying or impairing the
equal enjoyment or exercise of economic, social and cultural rights
constitutes a violation of the Covenant.
• Violations of the right to food can occur through the direct action of States
or other entities insufficiently regulated by States. These include: the
formal repeal or suspension of legislation necessary for the continued
enjoyment of the right to food; denial of access to food to particular
individuals or groups, whether the discrimination is based on legislation or
is proactive; …
• the prevention of access to humanitarian food aid in internal conflicts or
other emergency situations; adoption of legislation or policies which are
manifestly incompatible with pre-existing legal obligations relating to the
right to food; and failure to regulate activities of individuals or groups so as
to prevent them from violating the right to food of others,

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• While only States are parties to the Covenant and are thus ultimately
accountable for compliance with it, all members of society - individuals,
families, local communities, non-governmental organizations, civil society
organizations, as well as the private business sector - have responsibilities
in the realization of the right to adequate food. The State should provide
an environment that facilitates implementation of these responsibilities

Implementation at the national level

• The most appropriate ways and means of implementing the right to
adequate food will inevitably vary significantly from one State party to
another. Every State will have a margin of discretion in choosing its own
approaches, but the Covenant clearly requires that each State party take
whatever steps are necessary to ensure that everyone is free from hunger
and as soon as possible can enjoy the right to adequate food.
• require the adoption of a national strategy to ensure food and nutrition
security for all, based on human rights principles that define the
objectives, and the formulation of policies and corresponding benchmarks.
It should also identify the resources available to meet the objectives and
the most cost-effective way of using them.
• facilitate coordination between ministries and regional and local authorities
and ensure that related policies and administrative decisions are in
compliance with the obligations under article 11 of the Covenant
• The formulation and implementation of national strategies for the right to
food requires full compliance with the principles of accountability,
transparency, people’s participation, decentralization, legislative capacity
and the independence of the judiciary. Good governance is essential to
the realization of all human rights, including the elimination of poverty and
ensuring a satisfactory livelihood for all.
• strategy should set out for the responsibilities and time frame for the
implementation of the necessary measures.
• The strategy should address critical issues and measures in regard to all
aspects of the food system, including the production, processing,
distribution, marketing and consumption of safe food, as well as parallel
measures in the fields of health, education, employment and social
security;
• strategy should give particular attention to the need to prevent
discrimination in access to food or resources for food. This should
include: guarantees of full and equal access to economic resources,
particularly for women, including the right to inheritance and the ownership
of land and other property, credit, natural resources and appropriate
technology; measures to respect and protect self-employment and work
which provides a remuneration ensuring a decent living for wage earners
and their families (as stipulated in article 7 (a) (ii) of the Covenant);
• Even where a State faces severe resource constraints, whether caused by
a process of economic adjustment, economic recession, climatic
conditions or other factors, measures should be undertaken to ensure that

62
 the right to adequate food is especially fulfilled for vulnerable population
groups and individuals.
• Even where a State faces severe resource constraints, whether caused by
a process of economic adjustment, economic recession, climatic
conditions or other factors, measures should be undertaken to ensure that
the right to adequate food is especially fulfilled for vulnerable population
groups and individuals.

Benchmarks and framework legislation

• States should set verifiable benchmarks for subsequent national and
international monitoring.

Monitoring
States parties shall develop and maintain mechanisms to monitor progress
towards the realization of the right to adequate food for all, to identify the factors
and difficulties affecting the degree of implementation of their obligations, and to
facilitate the adoption of corrective legislation and administrative measures

Remedies and accountability

Any person or group who is a victim of a violation of the right to adequate
food should have access to effective judicial or other appropriate remedies at
both national and international levels.
National Ombudsmen and human rights commissions should address
violations of the right to food
• The incorporation in the domestic legal order of international instruments
recognizing the right to food, or recognition of their applicability, can
significantly enhance the scope and effectiveness of remedial measures
and should be encouraged in all cases. Courts would then be empowered
to adjudicate violations of the core content of the right to food by direct
reference to obligations under the Covenant.
• States parties should respect and protect the work of human rights
advocates and other members of civil society who assist vulnerable
groups in the realization of their right to adequate food.

International obligations
In the spirit of Article 56 of the Charter of the United Nations, the specific
provisions contained in articles 11, 2.1, and 23 of the Covenant and the Rome
Declaration of the World Food Summit, States parties should recognize the
essential role of international cooperation and comply with their commitment
to take joint and separate action to achieve the full realization of the right to
adequate food.
• States parties should take steps to respect the enjoyment of the right to
food in other countries, to protect that right, to facilitate access to food and
to provide the necessary aid when required. States parties should, in

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 international agreements whenever relevant, ensure that the right to
adequate food is given due attention
• States parties should refrain at all times from food embargoes or similar
measures which endanger conditions for food production and access to
food in other countries. Food should never be used as an instrument of
political and economic pressure

States and international organizations

States have a joint and individual responsibility, in accordance with the
Charter of the United Nations, to cooperate in providing disaster relief and
humanitarian assistance in times of emergency, including assistance to
refugees and internally displaced persons. Each State should contribute to
this task in accordance with its ability.
• The role of the World Food Programme (WFP) and the Office of the
United Nations High Commissioner for Refugees (UNHCR), and
increasingly that of UNICEF and FAO is of particular importance in this
respect and should be strengthened. Priority in food aid should be given
to the most vulnerable populations
• Food aid should, as far as possible, be provided in ways which do not
adversely affect local producers and local markets, and should be
organized in ways that facilitate the return to food self-reliance of the
beneficiaries.

The United Nations and other international organizations

• The role of the United Nations agencies, including through the
United Nations Development Assistance Framework (UNDAF) at the
country level, in promoting the realization of the right to food is of special
importance
• The food organizations, FAO, WFP and the International Fund for
Agricultural Development (IFAD), in conjunction with the United Nations
Development Programme (UNDP), UNICEF, the World Bank and the
regional development banks, should cooperate more effectively, building
on their respective expertise, on the implementation of the right to food at
the national level, with due respect to their individual mandates.
• The international financial institutions, notably the International Monetary
Fund (IMF) and the World Bank, should pay greater attention to the
protection of the right to food in their lending policies and credit
agreements and in international measures to deal with the debt crisis
• Care should be taken, in line with the Committee’s general comment No.
2, paragraph 9, in any structural adjustment programme to ensure that the
right to food is protected.

The right to Housing

The Right to housing is provided for, inter alia, in article 11 of the ICESCR;
article 25 of the Universal Declaration of Human Rights (UDHR); article 20 of
the African Charter on the Rights and Welfare of the Child (ACRWC)

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 (specifically in relation to children); article 27 of the Convention on the Rights
of the Child (CRC)(specifically in relation to children); and article 16 of the
Protocol to the African Charter on Human and Peoples’ Rights (ACHPR) on
the Rights of Women in Africa (specifically in relation to women)

Forced Evictions
• Everyone has the right to a secure place to live in peace and dignity,
which includes the right not to be evicted arbitrarily or on a discriminatory
basis from one's home, land or community.
• The ultimate legal and political responsibility for preventing forced
evictions rests with governments.
• When, under exceptional circumstances, evictions are considered to be
justified, such evictions must be carried out in strict compliance with
relevant human rights provisions, and such evictions must not result in
individuals being rendered homeless or vulnerable to other human rights
violations.
• Forced evictions may often constitute gross violations of a broad range of
rights, in particular, the right to adequate housing, the right to remain, the
right to freedom of movement, the right to privacy, the right to property, the
right to an adequate standard of living, the right to security of the home,
the right to security of the person, the right to security of tenure, and the
right to equality of treatment.

Case Study
Operation Murambatsvina (Restore Order) was administrative action taken by
the government of Zimbabwe (both central and local) to remove structures
deemed by local authorities and the police to be illegal under planning bye-
laws; as well as the removal of all informal traders from city-centres and
informal markets across the country.
• The “operation” was conducted in 2005, shortly after Parliamentary
elections and was effected with no warning in the initial evictions although
some very short termed warnings were given after initial outcry against the
operation.
Hundreds of thousands of people were forcibly evicted from their homes and
were either forced to relocate to the rural areas, forced to squat in the urban
areas (or to join already overburdened families) or were transported to
holding camps where they were held in unsanitary conditions

Thematic Issues: Education

• A basic human right contained in international and regional instruments
and some national constitutions
• Means of realising other human rights- it is an empowerment right
• CESCR Gen Comment 13 calls education the ‘primary vehicle through
which economically and socially marginalised individuals can lift
themselves out of poverty and obtain the means to participate fully in
communities.’

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 • Goal becoming increasingly remote due to ‘formidable structural and other
obstacles in many states’
Universal standards
UDHR,CESCR (articles 13 and 14), CRC (Article 28 ), Convention against
Discrimination in Education; CEDAW (Article 10)
World Declaration on Education For All of 1990
• Article 17 (1) of the African Charter on Human and Peoples’ Rights
(ACHPR)
Non discrimination and Equal Treatment
• Non-discrimination is a cross-cutting right of immediate effect

General Legal Obligations

• The Covenant provides for progressive realization of the right and
acknowledges constraints due to limits of available resources
• Immediate obligations; free and compulsory primary education, the
guarantee that the right will be ensured without discrimination of any kind,
and the obligation to ‘take steps’ towards the full realization of art 13.
• Steps must be ‘deliberate, concrete, targeted’ towards the full realisation
of art 13
General Comment 13
Education is both a human right in itself and an indispensable means of realizing
other human rights
• States agree that all education, whether public or private, formal or non-
formal, shall be directed towards the aims and objectives identified in
article 13 (1) of the ICESCR, and that these educational objectives also
reflect the fundamental purposes and principles of the United Nations
(look especially at articles 1 and 2 of the UN Charter)
• While the precise and appropriate application of the right to receive an
education will depend upon the conditions prevailing in a particular State,
education in all its forms and at all levels shall exhibit the following
interrelated and essential features:
Availability
• Functioning educational institutions and programmes have to be available
in sufficient quantity within the jurisdiction of the State.
• There will be different criteria for functioning educational institutions
depending on the society
Accessibility
• Educational institutions and programmes have to be accessible to
everyone, without discrimination, within the jurisdiction of the State.
Accessibility has three overlapping dimensions:
• Non-discrimination - education must be accessible to all, especially the
most vulnerable groups, in law and fact, without discrimination on any of
the prohibited grounds;
• Physical accessibility - education has to be within safe physical reach,
either by attendance at some reasonably convenient geographic location
or via modern technology;

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 • Economic accessibility - education has to be affordable to all.
Acceptability
• The form and substance of education, including curricula and teaching
methods, have to be acceptable (e.g. relevant, culturally appropriate and
of good quality) to students and, in appropriate cases, parents;
Adaptability
• Education has to be flexible so it can adapt to the needs of changing
societies and communities and respond to the needs of students within
their diverse social and cultural settings.
Primary Education
Primary education includes the elements of availability, accessibility, acceptability
and adaptability which are common to education in all its forms and at all levels.
• “Primary education must be universal, ensure that the basic learning
needs of all children are satisfied, and take into account the culture, needs
and opportunities of the community.” See the World Declaration for
Education for All.
• The Declaration defines "basic learning needs" as: "essential learning
tools (such as literacy, oral expression, numeracy, and problem solving)
and the basic learning content (such as knowledge, skills, values, and
attitudes) required by human beings to be able to survive, to develop their
full capacities, to live and work in dignity, to participate fully in
development, to improve the quality of their lives, to make informed
decisions, and to continue learning" (art. 1).
• Primary education has two distinctive features: it is “compulsory” and
“available free to all”.
• neither parents, nor guardians, nor the State are entitled to treat as
optional the decision as to whether the child should have access to
primary education.
• the education offered must be adequate in quality, relevant to the child
and must promote the realization of the child’s other rights.
Free of charge. The nature of this requirement is unequivocal. The right is
expressly formulated so as to ensure the availability of primary education without
charge to the child, parents or guardians. Fees imposed by the Government, the
local authorities or the school, and other direct costs, constitute disincentives to
the enjoyment of the right and may jeopardize its realization.

Secondary Education
Secondary education includes the elements of availability, accessibility,
acceptability and adaptability which are common to education in all its forms and
at all levels.
• Secondary education is not dependent on a student’s apparent capacity or
ability and, secondly, that secondary education will be distributed
throughout the State in such a way that it is available on the same basis to
all
• “[P]rogressive introduction of free education” means that while States
must prioritize the provision of free primary education, they also have an

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 obligation to take concrete steps towards achieving free secondary and
higher education.
Higher Education
• Higher education includes the elements of availability, accessibility,
acceptability and adaptability which are common to education in all its
forms at all levels.
• Must be made available on the basis of capacity
• Must be progressively offered free of charge
A school system; … material conditions of teaching staff
In practice the general working conditions of teachers have deteriorated, and
reached unacceptably low levels …. Not only is this inconsistent with article 13
(2) (e), but it is also a major obstacle to the full realization of students’ right to
education.
Educational Freedom
The right to educational freedom has two elements:
¾ The liberty of parents and guardians to ensure the religious and moral
education of their children in conformity with their own convictions,
¾ The liberty of parents and guardians to choose other than public schools
for their children, including the liberty of individuals and bodies to establish
and direct educational institutions.
Affirmative Action
¾ The adoption of temporary special measures intended to bring about de
facto equality for men and women and for disadvantaged groups is not a
violation of the right to non-discrimination with regard to education, so long
as such measures do not lead to the maintenance of unequal or separate
standards for different groups, and provided they are not continued after
the objectives for which they were taken have been achieved.
Academic Freedom
Academic freedom and institutional autonomy - the right to education can only be
enjoyed if accompanied by the academic freedom of staff and students.
Accordingly members of the academic community are free to pursue, develop
and transmit knowledge and ideas, through research, teaching, study,
discussion, documentation, production, creation or writing.
Discipline in Schools
• Discipline in schools - corporal punishment is inconsistent with the
fundamental guiding principle of international human rights law, the dignity
of the individual. Other aspects of school discipline may also be
inconsistent with human dignity, such as public humiliation.
Article 14 and national plans to realise universal primary education
• There is a clear and unequivocal obligation under article 14 on every State
party to present to the Committee a plan of action,
• In developing countries, 130 million children of school age are estimated
to be without access to primary education, of whom about two thirds are
girls.
Plans of action prepared by States parties to the Covenant in accordance with
article 14 are especially important as the work of the Committee has shown that

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the lack of educational opportunities for children often reinforces their subjection
to various other human rights violations
• For instance these children, who may live in abject poverty and not lead
healthy lives, are particularly vulnerable to forced labour and other forms
of exploitation. Moreover, there is a direct correlation between, for
example, primary school enrolment levels for girls and major reductions in
child marriages.
The plan must cover all of the actions which are necessary in order to secure
each of the requisite component parts of the right and must be sufficiently
detailed so as to ensure the comprehensive realization of the right.
• Participation of all sections of civil society in the drawing up of the plan is
vital and some means of periodically reviewing progress and ensuring
accountability are essential.
State Obligations
• The right to education, like all human rights, imposes three types or levels
of obligations on States: the obligations to respect, protect and fulfil.
• the obligation to fulfil incorporates both an obligation to facilitate and an
obligation to provide.
States must take steps, "individually and through international assistance and
cooperation, especially economic and technical", towards the full realization of
the rights recognized in the Covenant, such as the right to education.
Immediate obligations in relation to the right to education, such as the
"guarantee" that the right "will be exercised without discrimination of any kind"
and the obligation "to take steps“ towards the full realization of article 13 of the
Covenant. Such steps must be "deliberate, concrete and targeted" towards the
full realization of the right to education.
• The realization of the right to education over time, that is "progressively",
should not be interpreted as depriving States' obligations of all meaningful
content. Progressive realization means that States have a specific and
continuing obligation "to move as expeditiously and effectively as
possible" towards the full realization of article 13.
• States parties are required to ensure that curricula, for all levels of the
educational system, are directed to the objectives identified in article 13
(1). They are also obliged to establish and maintain a transparent and
effective system which monitors whether or not education is, in fact,
directed to the educational objectives set out in article 13(1).
States must prioritize the introduction of compulsory, free primary education. The
obligation to provide primary education for all is an immediate duty.
• States must “take steps" towards the realization of secondary, higher and
fundamental education for all.
Conclusion
• About 142 countries make reference to this right in their national
constitutions.

There are impediments:

• Lack of resources

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 • Poverty
• Cultural beliefs

The Prohibition Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment
Introduction
• Adopted and opened for signature, ratification and accession by
General Assembly resolution 39/46 of 10 December 1984
• Entry into force 26 June 1987, in accordance with article 27 (1)
• To date has xxx ratifications/accessions
• Human rights derive from the inherent dignity of the human person
• Torture and related activities represent the most basic denial of human
dignity, which lies at the very heart of the concept of human rights
• Apart from infringing the right to dignity, acts of torture and other forms of
ill-treatment may infringe the right to security of the person, the right to
equality and even the right to life itself
• The prohibition against torture has become part of customary international
law and it is articulated in numerous international instruments
• The significance of the prohibition forming part of customary international
law is that all states are bound by the general prohibition, regardless of
whether or not they have ratified any of the instruments prohibiting torture.
• Under the United Nations system, the broad prohibition against torture and
related activities has found specific application in, first, the Declaration on
Protection From Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment, 1975 and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984
• The words “Desiring to make more effective the struggle against torture
and other cruel, inhuman or degrading treatment or punishment
throughout the world” sum up the purpose of CAT
• CAT puts in place mechanisms for monitoring compliance with the
provisions of the Convention by State Parties
• The CAT mechanisms are further strengthened by the mechanisms put in
place by the recent Optional Protocol to CAT, 2002, which is yet to enter
into force
Torture is defined in article 1 of CAT as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person:
• For the purpose of:
– Obtaining from him or a third person information or a confession
– Punishing him for an offence he or a third person has committed or
is suspected of having committed
– Intimidating or coercing him or a third person
– any reason based on discrimination of any kind
• When such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in
an official capacity.
From the definition of torture three main elements emerge, viz, torture:

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• Constitutes severe pain or suffering;
• Is inflicted intentionally, that is, for a purpose;
• Is inflicted by a public official or other person acting in an official capacity,
or at his instigation or with his consent or acquiescence.
• Cruel, Inhuman or Degrading Treatment or Punishment – is a ‘lesser’ form
of the act of torture. It involves acts, which do not necessarily constitute
torture but fall short of torture and are nonetheless cruel, or inhuman or
degrading acts. Any harsh or neglectful treatment that could affect a
person’s physical or mental health or any punishment intended to cause
physical or mental pain or suffering, or to humiliate or degrade a person,
constitute cruel, inhuman or degrading treatment or punishment.
• According to studies by the UN and organisations such as Amnesty
International, torture can take various forms and the most common ones
include beatings, imposition of electric shocks, hanging by the arms or
legs, rape, sexual assault, or the threat of rape or sexual assault, and
mock executions. Torture can be perpetrated in places of detention, such
as a police station, a prison, a military camp, a secret detention place, a
hospital or mental institution, etc. On the other hand it can be perpetrated
against persons who are not necessarily in detention, such as the victim’s
home or even in the street or an open place. It can also take place in the
context of an armed conflict.
•
• States must take effective legislative, administrative, judicial and other
measures to prevent acts of torture (art. 2 (1) of CAT)
• No exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political in stability or any other public emergency,
may be invoked as a justification of torture (art. 2 (2) of CAT)
• An order from a superior officer or a public authority may not be invoked
as a justification of torture (art. 2 (3) of CAT)
• No State Party shall expel, return ("refouler") or extradite a person to
another State where there are substantial grounds for believing that he
would be in danger of being subjected to torture (art. 3 (1) of CAT).
• States must ensure that all acts of torture are offences under their criminal
law and the offences must be punishable by appropriate penalties which
take into account their grave nature. This also applies to an attempt to
commit torture and to an act by any person which constitutes complicity or
participation in torture (art. 4 of CAT)
• States must take measures to ensure that they establish jurisdiction over
acts of torture committed within their territory or where the offender or the
victim is their national. They shall also take measures to ensure that they
establish jurisdiction over such cases where the offender is in their
territory and they do not extradite the offender to another state for
prosecution (arts. 5 and 7 of CAT)
• States Parties shall afford one another the greatest measure of assistance
in connection with criminal proceedings brought in respect of any of the

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 offences related to torture, including the supply of all evidence at their
disposal necessary for the proceedings (art. 9 (1) of CAT)
• States must ensure that education and information regarding the
prohibition of torture are fully included in the training of law enforcement
officials and include this prohibition in their rules of instruction (art. 10 of
CAT)
• States must keep under systematic review interrogation rules and
methods and practices for the custody and treatment of persons subjected
to any form of arrest, detention or imprisonment (article 11 of CAT)
• A State Party shall ensure that its competent authorities proceed to a
prompt and impartial investigation, wherever there is reasonable ground to
believe that an act of torture has been committed in any territory under its
jurisdiction (art. 12 of CAT)
• A State Party shall ensure that any individual who alleges he has been
subjected to torture in any territory under its jurisdiction has the right to
complain to, and to have his case promptly and impartially examined by,
its competent authorities. Steps shall be taken to ensure that the
complainant and witnesses are protected against all ill-treatment or
intimidation as a consequence of his complaint or any evidence given (art.
13 of CAT)
• A State Party shall ensure in its legal system that the victim of an act of
torture obtains redress and has an enforceable right to fair and adequate
compensation, including the means for as full rehabilitation as possible. In
the event of the death of the victim as a result of an act of torture, his
dependants shall be entitled to compensation (art. 14 of CAT)
• A State Party shall ensure that any statement which is established to have
been made as a result of torture shall not be invoked as evidence in any
proceedings, except against a person accused of torture as evidence that
the statement was made (art. 15 of CAT)
Monitoring CAT
• The Committee Against Torture is entrusted with supervising the
implementation of the CAT
• It is made up of 10 experts, who must be of high moral standing and
recognised competence in the field of human rights.
• The Committee consider the reports of State Parties to the CAT, inter-
state communications, and individual communications. It may also carry
out an inquiry or investigation if it receives reliable information which
appears to it to contain well-founded indications that torture is being
systematically practised in the territory of a State Party
• The reporting procedure – CAT requires that State Parties must submit
periodic reports on the legislative, judicial, administrative and other
measures, which they have adopted for the purpose of giving effect to the
provisions of CAT, and on the progress made to implement those
provisions (art. 19 of CAT). The Committee will consider the report,
invariably in the presence of a delegation from the reporting State, and

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 make concluding observations or recommendations for consideration and
implementation by the reporting State
• The individual communications procedure – is used as an enforcement
mechanism by individuals and NGOs who allege violations of the
provisions of CAT by a State Party by a State in whose jurisdiction they
live or are subject to (art. 22 of CAT)
• Inter-state communications – this procedure enables one State Party to
raise a complaint against another State Party if the former is of the view
that the latter is violating or is not fulfilling its obligations under CAT (art.
21 of CAT)
• Investigation or inquiry procedure – if CAT receives reliable information
indicating grave or systematic violations by a State Party, of the provisions
of a treaty that it is responsible for monitoring, it may, with the cooperation
of the state, carry out an examination of the information and, to this end,
make observations with regard to the information concerned (art. 20 of
CAT)

Torture as an International Crime

• The international community, to show that torture is a very serious offence
and a gross violation of human rights, has gone on to make torture an
international crime, thus rendering perpetrators of torture liable to
prosecution not only under national law but also under international law
• In 1998 the Rome Statute on the establishment of the International
Criminal Court (ICC), was adopted. The ICC has jurisdiction to try persons
who have been accused of committing international crimes. Article 5 of the
Statute provides that the jurisdiction of the ICC shall be limited to the most
serious crimes of concern to the international community as a whole.
These include the crime of genocide, crimes against humanity, war crimes
and the crime of aggression. Article 7 of the Statute defines crimes against
humanity as, among other acts, torture, when committed as part of a
widespread or systematic attack directed against any civilian population,
with knowledge of the attack.

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International Criminal Law
• While international law essentially regulates affairs between countries,
there are circumstances in which international law takes an interest in an
individual
• Certain crimes are considered of such serious nature that they are subject
to international prosecution, either under the auspices of a United Nations
special court, or by the International Criminal Court or by individual states
“… there exist certain offences, which by their very nature, affect the the interests
of all states, even when committed in another state or against anther state, victim
or interest.”
Bassiouni M Crimes against Humanity in International Law (Second Edition) 229.
“A state has jurisdiction to define and prescribe punishment for certain offences
recognized by the community of nations as of universal concern, such as piracy,
slave trade, … , genocide, war crimes, …” Restatement of the Foreign Relations
Law of the United States(1987).
In The Attorney General of the Government of Israel v Eichmann (Dist. Ct.
Jerusalem) (1961), 36 Int’l L. Rep. 5.the Israeli government tried and convicted a
Nazi war criminal for offences committed in Germany and the occupied states
before the creation of Israel.

Universal jurisdiction is exercised by domestic tribunals and not by international

tribunals. Specific International treaties, such as the four 1949 Geneva
Conventions, place obligations on member states to exercise universal
jurisdiction over war crimes. However, in other situations it is not so evident
whether a state can apply universal jurisdiction. The Genocide Convention states
that genocide should be tried either in the jurisdiction in which the offence
occurred or by an international tribunal.
International Tribunals
• Because of the vagaries of universal jurisdiction a number of international
tribunals have been set up to try individuals guilty of international crimes
• The Nuremberg and Tokyo Military tribunals were quasi international
tribunals
• In 1993 and 1994 the UN Security Council set up the ICTY and the ICTR
respectively to try perpetrators of genocide and crimes against humanity
The International Criminal Court
• The Court is established by the Rome Statute – a binding treaty between
the members.
• It is not a UN structure and only applies to members
Jurisdiction
• The general principle is that a state only has jurisdiction over crimes
committed within its territory or by its nationals
• However, after the second world war it was accepted that certain crimes
are of such a nature that they cannot be left to the vagaries of national law
for prosecution
• Concepts of universal jurisdiction were argued for by different states,
arguing that some crimes could be tried by any country

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Crimes subject to universal jurisdiction
• Crimes against humanity
• Genocide
• War crimes
• Torture
• Slavery
Crimes against humanity
• This includes murder, extermination, enslavement, deportation or forcible
transfer of population, … torture, rape,… other inhumane acts of a similar
character
• However these crimes must be committed as "part of a widespread or
systematic attack against any civilian population."
Systematic
There are four factors identified as suggesting that the crime was systematic:
• the existence of a political objective, a plan pursuant to which the attack is
perpetrated or an ideology, in the broad sense of the word, that is, to destroy,
persecute or weaken a community;
• the perpetration of a criminal act on a very large scale against a group of
civilians or the repeated and continuous commission of inhumane acts linked to
one another;
• the preparation and use of significant public or private resources, whether
military or other;
• the implication of high level political and/or military authorities in the
definition and establishment of the methodical plan.
Widespread
• "refers to the scale of the acts perpetrated and to the number of victims."
• Implies "not an isolated act but a large scale action directed against
multiple victims."
•
Genocide
• After the second world war the international community had to face and
deal with the crime of deliberately trying to exterminate a race of humanity
• The crime has also been committed in Yugoslavia and Rwanda
• … any of the following acts committed with the intention to destroy,
in whole or in part, a national, ethnic, racial, or religious group, as
such,
• Killing members of the group,
• Causing serious bodily or mental harm to members of the
group,
c) deliberately inflicting on the group, conditions of life calculated to bring about
its physical destruction in whole or in part,
d) Imposing measures intended to prevent births within the group,
e) Forcibly transferring children of the group to another group.
To successfully prosecute genocide you need to prove both that the proscribed
acts were committed against one of the listed groups and that the perpetrator
had the intention to destroy the group.

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War Crimes
• Protection of civilian and non combatants during armed conflicts
“… violations of the laws or customs of war. Such violations shall include, but not
be limited to, murder, ill-treatment or deportation to slave labour or for any other
purpose of civilian population of or in occupied territory, murder or ill-treatment of
prisoners of war or persons on the seas, killing of hostages, plunder of private or
public property, wanton destruction of cities, towns or villages, or devastation not
justified by military necessity.” Article 6 of the Nuremberg Charter.

Torture
• Torture is an international crime
• Torture thus gives rise to universal jurisdiction, can lead to prosecution in
international tribunals, and can constitute crimes against humanity where
part of a widespread and systematic plan of attack

• Torture is any
a) Imposition of severe pain,
b) Intentionally imposed to obtain a confession or to punish,
c) Inflicted by or on behalf of a public official.
Prosecute or extradite
• The Convention against Torture imposes the requirement on states to
either prosecute alleged torturers in their territory or to extradite them to
countries that are willing to so prosecute
• The same obligation is imposed for grave breaches of humanitarian law
(war crimes) under the Four Geneva Conventions of 1949. The Genocide
Convention simply creates the duty to punish.
• Bassiouni is of the opinion that customary international criminal law
includes the duty to prosecute or extradite for crimes against humanity
Jurisdiction
• While international crimes can be prosecuted in any state on the basis of
universal jurisdiction, most legal systems require national legislation to
empower such prosecutions
• The International Criminal Court has been established on the consent of
states parties to try international crimes
• The ICC will only have jurisdiction where there is a connection between
the crime and a party to the ICC treaty – thus if genocide occurs in
Zimbabwe, which is not a state party, and the perpetrators and victims are
Zimbabwean the ICC would not have jurisdiction
• However, the Supreme Council may refer a case to the ICC for trial even
where there is no connection with a state party
• The ICC treaty also places a duty on states to prosecute the crimes in
their domestic jurisdictions and the ICC would only take over where this
does not happen

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