Chapter One: Introduction to Human Rights Law

Nature and Definition of Human

Rights
 Nature and Definition of Human Rights

What is human rights?

• The basic notion of human rights lies in people’s recognition
of the need to protect and affirm every other person’s
individual dignity.
• Human rights are those rights that attach to all persons
equally, by virtue of their humanity, irrespective of race,
nationality, or membership of any particular social group.
• Thus it belong to an individual as a consequence of being
human.
• The concept of human rights is based on the belief that every
human being is entitled to enjoy her/his rights without
discrimination.
 Nature and Definition of Human Rights

• Human rights differ from other rights in two respects.

Firstly, they are characterised by being:
• Inherent in all human beings by virtue of their
humanity alone (they do not have, e.g., to be
purchased or to be granted);
• Inalienable (within qualified legal boundaries); and
• Equally applicable to all.
Secondly, the main duties deriving from human rights fall
on states and their authorities or agents, not on
individuals.
 WHY Human Right?
• Human rights are pre-condition to live a digified life.
• The Very idea of basic rights originated from the need to
protect the individual against the (arbitrary) use of state
power.
• Thus attention was therefore initially focused on those
rights which oblige governments to refrain from certain
actions.
• As human rights are viewed as a precondition for leading
a dignified human existence, they serve as a guide and
touchstone for legislation.
• They have a bearing also on relations between individuals
themselves too.
• The individual-state relationship is known as
the ‘vertical effect’ and while individual –
individual is known as ‘horizontal effect’.
• This is to mean that, while the primary
purpose of human rights is to establish rules
for relations between the individual and the
state, several of these rights can also have
implications for relations among individuals.
• This so-called ‘horizontal effect’ implies, among
other things, that a government not only has an
obligation to refrain from violating human rights,
but also has a duty to protect the individual from
infringements by other individuals.
• For instances, the right to life thus means that
the government must strive to protect people
against homicide by their fellow human beings.
 Historical Development
Pre World War II Developments

 The origins of human rights may be found both in Greek

philosophy and the various world religions.
 In the Age of Enlightenment (18th century) the concept of
human rights emerged as an explicit category. (it is important
historical moment)
• Some of important charter before the period of enlightment
having bearing towards human rights.
 The Magna Charta Libertatum of 1215,
 the Golden Bull of Hungary (1222),
 the English Bill of Rights of 1689 and etc
1. These documents specified rights, which could be claimed in the
light of particular circumstances (e.g. threats to the freedom of
religion),
2. Freedoms were often seen as rights conferred upon individuals
or groups by virtue of their rank or status
• In the centuries after the Middle Ages, the concept of liberty
became gradually separated from status and came to be seen
not as a privilege but as a right of all human beings.
• Spanish theologists and jurists played a prominent role in this
context.
• The work of Francisco de Vitoria (1486-1546) and Bartolomé
de las Casas (1474-1566) should be highlighted.
• These two men laid the (doctrinal) foundation for the
recognition of freedom and dignity of all humans by defending
the personal rights of the indigenous peoples inhabiting the
territories colonised by the Spanish Crown.
• The Enlightenment was decisive in the development
of human rights concepts.
• The ideas of Hugo Grotius (1583-1645), one of the
fathers of modern international law, of Samuel von
Pufendorf (1632-1694), and of John Locke (1632-
1704) attracted much interest in Europe in the 18th
century.
• Locke, for instance, developed a comprehensive
concept of natural rights; his list of rights consisting of
life, liberty and property.
• Jean-Jacques Rousseau (1712-1778) elaborated the
concept under which the sovereign derived his powers
and the citizens their rights from a social contract.
• The term human rights appeared for the first
time in the French Déclaration (1789), later in
American Declaration of Independence (July
1776).
• It was based on the assumption that all human
beings are equal.
• It also referred to certain inalienable rights, such
as the right to life, liberty and the pursuit of
happiness.
• Later on Taking into account the principle of
equality as contained in the French Declaration of
1789, several constitutions drafted in Europe
around 1800 not only contained classic rights, but
also included articles which assigned
responsibilities to the government in the fields of
employment, welfare, public health, and education.
• Social rights of this kind were also expressly
included in the Mexican Constitution of 1917, the
Constitution of the Soviet Union of 1918, and the
German Constitution of 1919
 The need for international standards on human
rights was first felt at the end of the 19th
century, when the industrial countries began
to introduce labour legislation.
 The International Labor Organization (ILO),
which was established in 1919, went on to
draft numerous other labor conventions.
 Post World War II Developments
• Before WW ii, international human right law was not
the concern of the international community.
• Mainly;
The first justification is the understanding/emphasis
given to state sovereignty at the time.
The second one is that, the international convention
at that time matters only the relationship between
two sovereign states.
This means the individuals were not the subjects of
international law.
 Post World War II Developments…..

• The atrocities of World War II put an end to the traditional view that
states have full liberty to decide the treatment of their own citizens.
• After WW II, the international community has taken the lesson about
the human right need to approach.
• The introduction of UN charter played a tranformative role in this
regard.
• The signing of the Charter of the United Nations (UN) on 26 June 1945
brought human rights within the sphere of international law.
• Less than two years later, the UN Commission on Human Rights
(UNCHR),which was established early in 1946, submitted a draft
Universal Declaration of Human Rights (UDHR).
• Since the 1950s, the UDHR has been backed up by a large number of
international conventions.
• The most significant of these conventions are the
International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR).
• These two Covenants, together with the UDHR,
form the International Bill of Human Rights.
• At the same time, many supervisory mechanisms
have been created, including those responsible for
monitoring compliance with the two Covenants.
 Regional…
• Human rights have also been receiving more
and more attention at the regional level.
• For example, in the European, the Inter-
American and the African context, standards
and supervisory mechanisms have been
developed have already had a significant
impact on human rights compliance in the
respective continents, and promise to
contribute to compliance in the future.
 Classification of Human Rights
• The term ‘human rights’, is used to denote a broad
spectrum of rights ranging from the right to life to the
right to a cultural identity.
• The classification is not based on hierarchical or their
importance rather it is based on their nature,
background and other factors.
 Classification
A. civil and political rights Vs socio-economic and
cultural right
 The classification rights in this way, mainly based the
duty of the state, civil and political right imposes the
negative obligation on the part of the government
which is duty to respect or to refrain from doing
something.
 E.g. right to life, liberty, property etc.
 On the contrary, social economic and cultural rights
impose the government positive obligation
 E.g. education, cultural right, societal right
 Classification
B. Generational classifications (1st 2nd, 3rd generation
rights)
 First generation (civil & political rights)
 Second generation (economic, social and cultural
rights)
 Third generation rights (collective rights)
E.g. The right to clean and healthy environment and the
right to self determination
 Classification
C. Individual vs collective rights
 Individual and collective rights: The fundamental
purpose of human rights is the protection and
development of the individual (individual rights),
some of these rights are also exercised by people in
groups (collective rights).
 For instances, Freedom of association and assembly,
freedom of religion, the freedom to form or join a
trade union, and the right to self-determination
 Classification
D. Absolute vs derogable rights
 based on the grounds whether restriction (derogation) is
acceptable or not, human rights may be classified as an
absolute and qualified right.
 If the right is absolute, it is not allowed to derogate the
right altogether.
E. Justiciable vs non-justiciable rights
 This means whether the rights are the subjects of the
judicial adjudication or not.
 Previously only civil and political rights are considered as
justiciable, but the current trend is eco-social &cultural
rights too are justiciable.
 STATE OBLIGATION UNDER INTERNATIONAL HUMAN
RIGHTS LAW
• The state obligations arising from human rights are: to
respect, to protect and to fulfill human rights:
Duty to respect: (Negative obligation) means simply
not to interfere with their enjoyment.
 For instance, States should refrain from carrying out
forced evictions and not arbitrarily restrict the right to
vote or the freedom of association.
Duty to protect: to take steps to ensure that third
parties do not interfere with enjoyment of rights.
Duty to fulfill: means to take steps progressively to
realize the right in question. (facilitation & Provide)
 Sources of Human Rights Law
• Forming one of the regimes of international law, human rights
law has the same source with the former.
• Article 38 of the Statute of the International Court of Justice
 International conventions, whether general or particular;
 International custom, as evidence of general practice
accepted as law;
 The general principles of law recognised by civilised nations;
 Subsidiary means for the determination of rules of law such
as judicial decisions and teachings of the most highly
qualified publicists.
 Chapter Two: Human Rights Systems :( Substantive Rights, Institutions and Procedures )

The Universal System: The UN System

A. The UN Charter: The Charter’s primary aim was
1. To save succeeding generation from the scourge of war and
2. To ensure the maintenance of international peace and security.
 Within such broad and ambitious objectives, a respect for human rights and fundamental freedoms hold
a pivotal place in charter.
 In other words the United Nations granted respect for human rights the status of one of the fundamental
purposes of the organization. Look at (Paragraph 3 of the preamble, Article 1(3), Articles 55 and 56,
Article 76(C), Article 13(1)(b), Article 62(2) and (3), and Article 68).
 When we look at these provisions of the charter human rights are ranked not an ad hoc, but of a long-
term and constant objective of the United Nations.
 They set out in the charter as as one prerequisite for ensuring international peace and security, friendly
relations among nations, welfare of peoples and other socioeconomic objectives.
 Both the number and the scope of human rights provisions in the UN Charter is prima facie quite
impressive in itself when the UN Charters is contrasted with the Covenant of the League of Nations,
which was entirely silent on human rights issues.
 In spite of these efforts however, the Charter has not adequately addressed the problem of colonialism.
Further more While the Charter refers throughout its text to the concept of human rights and
fundamental freedoms, their definition is missing, nor does the Charter make any mention of the
machinery to be used to secure their observance.
 B. The UDHR

• The task of preparing a declaration was given to the Commission on Human Rights
which consists of a drafting committee of eight members chaired by Mrs. Eleanor
Roosevelt.
• In 1948 the Commission adopted the draft Declaration and submitted it through the
Economic and Social Council to the General Assembly.
• After lengthy discussions, at the Chaillot Palace in Paris, the Declaration was adopted
on 10 December 1948.
• The Preamble to the Declaration is significant for several reasons.
1). It refers to the concepts of inherent human dignity and the inalienable nature of
human rights as the philosophical sources of the Declaration and inspirations for
further development of human rights.(para 1)
2). It announces the advent of a world in which human beings shall enjoy freedom of
speech belief and freedom from fear and want has been proclaimed as the highest
aspiration of the common people(para 2
3). It set out the rights and freedoms contained in the Declaration as a common
standard of achievement for all peoples and nations.
• The operative part of the Declaration can be divided into three groups of provisions.
• The first group (Article 1) contains an affirmation of the philosophical foundations of human
rights by saying that human beings are born free and equal in dignity and rights.
• They are endowed with reason and conscience and should act towards one another in a
spirit of brotherhood.
• The second group of provisions proclaims a number of general principles which include the
principle of equality and non-discrimination (Article 2) and others.
• The principles plays a fundamental role in the whole of human rights law.
• The third group is it Substantive part. Substantivly rights in the Declaration contains civil and
political rights(in Articles 3 to 21) as well as economic, social and cultural rights(22-27).
• The Declaration has established the very first international catalogue of human rights as a
common standard of achievement for all peoples and all nations.
• This model catalogue may thus be said to play also the role of the first definition of human
rights, the definition which is missing from the UN Charter
• It opened the way for what may be regarded as the codification and progressive development
of human rights in international law.
• All in all, UDHR is one of the best legal instruments on human rights ever adopted.
C. The Covenants on Civil a political and Economic,social and Cultural Rights

 After the adoption of the Universal Declaration, the

Commission on Human Rights embased on the
second part of “the Bill of Human Rights” namely the
development of norm that were undisputedly binding
on those states that choose to adhere to them. .I.e.
ICCPR and ICSECR and its two optional protocols(Bill
of rights).
 As of January 2001, 146 states are parties to the
Covenant on Civil and Political rights and 142 states to
the covenant on Economic, Social and Cultural Rights.
 ICCPR
 It contains 53 articles, of which 27 are of a normative character and the left are more
procedural nature.
 It has optional protocol establishing a procedure for individual complaints, and a
second optional protocol, adopted in 1989 aiming at the abolition of the death
penalty.
 As of January 2001, 98 states are parties to the first protocol and 45 states to the
second.
 Pursuant to Article 28 of the Covenant, a Human Rights Committee is established,
consisting of 18 members, who are nominated and elected by states but who serve in
their individual capacity.
 Its mandate is
 To consider the reports that all states parties are under a duty to submit regularly to
the committee,
 to consider interstate complaint and
 to deal with the individual complaints that may come before it under the first
optional protocol .
 ICESCR
• It consists of 31 articles, of which the first 15 are of a normative character and the
last 16 of a more procedural nature.
• In its normative articles it sets out many of the fundamentals for the well being
and prosperity of an individual.
• Each state party is under an obligation to undertake steps “to the maximum of its
available resources with a view to achieving progressively the full realization of the
rights recognized in the present covenant, by all appropriate means, including
particularly the adaption of legislative measures.
• Much debate had been held on the difficulties to enforce and measure to what
extent a state party is fulfilling its obligation under the Covenant. However, several
fundamental principles apply, e.g. the important principle of non-discrimination.
• The covenant on Economic, Social and Cultural Rights do not make provision for
the establishment of a separate treaty body. ECOSOC) originally; the ECOSOC
delegated this work to a special group of government experts. However, in 1985,
the ECOSOC decided to instead create the Committee on Economic, Social and
Cultural Rights, a body composed of eighteen members,
 D The International Convention on the Elimination of All Forms of Racial Discrimination

• It entered into force after having been adopted in 1965 by the General Assembly.
• As of January 2001 has 156 states parties,
• It was the first United Nations human rights instrument outside the provisions on
Human Rights in the Charter that established an international monitoring system,
including a procedure for individual complaints.
• The convention was essentially the work of the General Assembly itself, in
consolation with various other bodies.
• It contains 25 articles, of which the first seven articles are of a normative character.
• The Convention sets out a number of detailed prohibitions and obligations to
prevent discrimination based on the grounds of race, color, descent, or national or
ethnic origin. States are under an obligation to criminalize dissemination of ideas
based on racial superiority and hatred and participation in racial organizations or
activities.
• A Committee on the Elimination of Racial Discrimination (CERD), consisting of 18
independent experts created by the states parties after being nominated by such
states parties, examines and comments on reports submitted by the parties
 E The Convention on the Elimination of Discrimination against Women

• The commission on the status of women was established in the early days of the United
Nations, in 1943. In 1967, the General Assembly adopted the Declaration on the Elimination of
Discrimination Against Women (CEDAW).
• This was a reaction based on a growing concern that additional means for promoting and
protecting equal enjoyment of human rights by women is necessary.
• In 1974 the Commission began drafting a convention. The Convention was adopted by the
General Assembly in 1979, which is entered into force in 1981, and has as of January 2001 165
states parties.
• The Convention consists of 30 Articles, of which the first 16 are of a normative character.
• It identifies many areas where there have been a notorious discrimination against women; for
example in regard to political and civil rights, economic rights and employment. It calls for
equal rights for women, regardless of their marital status. It calls for national legislation to ban
discrimination.
• It allows for temporary special measures to accelerate the achievement of equality between
men and women.
• The Convention establishes a Committee on the Elimination of Discrimination Against Women
consisting of 23 members nominated and elected by states parties but serving in their
personal capacity.
 F. The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment

• On 10 December, 1984, another major step was taken when the General
Assembly adopted the Convention Against Torture on Other Cruel, Inhuman
or Degrading Treatment or Punishment, which entered into force in 1987.
• The Convention has, as of January 2001, 122 states parties
• The Convention provides for a definition of torture in its first article, which
includes intentional acts for certain enumerated reasons which causes
severe pain or suffering of physical or mental nature for a persons, “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.
• The Convention establishes a committee Against Torture, consisting of ten
members, nominated and elected by states parties but serving in their
personal capacity
 G. The Convention of the Right of the Child

• The Convention was adopted by the General Assembly in 1989, and

entered into force in 1990. It soon received unprecedented support
and achieved unique political commitments.
• The Convention on the Rights of the Child is the first specific Human
Rights treaty that has achieved an almost Universal adherence.
• As of January 2001 it has 190 states parties and only the United
States and Somalia have failed to accede to the Convention. The
Convention consists of 54 articles, of which the first 42 are of a
normative character.
• The Convention is all encompassing and sets up a holistic approach
where civil, political, economic, social and cultural rights are
included, all being of importance for safeguarding the dignity of the
child and a harmonious development of his personality.
• Four general principles have guided the authors of the Convention, and later been
highlighted by the committee on the Rights in the General Guidelines as the core
message of the Convention.
• Firstly, the principle of the full and equal value of children and that each child shall enjoy
the rights set out in the convention without discrimination (Article 2 and 4 of the
Convention.)
• Secondly, the principle that in all actions concerning children the best interest of the
child shall be the primarily consideration (Article 3 of the Convention).
• Thirdly, the principle of the right to life does not only entail the right to be protected
against being killed but a right to survival and development (Article 6 of the Convention).
• Fourthly, the principle that children, who are capable of forming their own views, shall
also have the right to participate and express their views, which shall be duly respected
(Article 12 of the Convention).
• The Convention establishes a Committee on the Rights of the Child, originally composed
of 10 members, but which the states parties in 1995, decided should be enlarged to 18
members.
 Reservations and Declarations
• Although it is desirable that states become party to
a convention unconditionally, this is often not the
case.
• A state may, by formulating reservations,
declarations and interpretative statements, seek to
limit its domestic application beyond what is
permissible under the limitations.
• These deliberate acts may enable a state to
participate in a multilateral treaty that it would
otherwise be unable or unwilling to participate in.
 Reservation
• A reservation is a statement made by a state by which it purports to exclude
or alter the legal effect of certain provisions of a treaty in their application
to that state.
• In other words it seeks to exclude or modify the legal effect of the treaty’s
provisions in their application to the state author.
• A state may, when signing, ratifying, accepting, approving or acceding to a
treaty, formulate a reservation unless:
(a) The reservation is prohibited by the treaty;
(b) The treaty provides that only specified reservations, which do not include
the reservation in question, may be made; or
(c) In cases not falling under subparagraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.
 Reservations often reflect an admission (oppossition) that the country in
question cannot, or will not, bring its conduct up to international standards
• The effectiveness of a reservation is dependent on its acceptance by other states
parties.
• That is any other state party may object to it, Unless expressly permitted by a
treaty.
• As a rule, a reservation is considered accepted by another state party if that state
party has raised no objection within twelve months after it has been notified of
the reservation (Article 20(5)VCLT).
• Meanwhile, the UN Commission on Human Rights has also stated that reservations
should be formulated ‘as precisely and narrowly as possible (Resolution 1998/9).
• Thus reservations may thus not be general, but must refer to a particular
provision of the covenant and indicate in precise terms its scope in relation
thereto.
• But is also true that, General reservations may be encouraged other states to
follow suit, and thereby reduce the ability of the state making the reservation to
complain when other states make similar reservations.
 Declarations
• Some conventions allow or even require states parties to make declarations
concerning the extent to which they are bound by a certain provision. Such
statements may relate to the competence of a supervisory mechanism.
• This type of declaration, as provided by the instruments, does not pose
major problems.
• interpretative declarations is whereby the state party to a treaty indicates
merely how it interprets a particular article.
• It seeks only to clarify the meaning or scope of the treaty provisions. ( i
accept the treaty but if it means---- and not include .....)
• Such interpretative declarations may raise certain problems in international
law as to their differentiation with reservations.
• One of the major differences between a ‘reservation’ and an ‘interpretative
declaration’ lies in the author’s purpose in making that declaration.
 Restrictions and Derogation

Restriction
• Conventions and other instruments may contain a number of restrictions or
limitations to the rights they stipulate.
• It is only few rights and freedoms are ‘absolute’.
• At the same time, such restrictions must be used only to establish the proper
limits of the protected right and not as an excuse for undermining the right
itself or destroying it altogether.
• In general, there must be a proportionate relationship between the
restriction of the right as such and the reason for the restriction.
• The reasons of limitation to rights guaranted might be the rights of others, by
the security of all, and by the just demands of the general(common) welfare,
Public morality ,national security in a democratic society’.
• But for a few rights, such as freedom from torture or slavery, no limitations
have been formulated.
 Any limitation must comply with the following minimum requirements:
• It must not be interpreted so as to jeopardise the essence of the right
concerned;
• It must be interpreted strictly in the light and context of the particular right;
• It must be prescribed by law and be compatible with the object and purpose
of the instrument;
• It must be based on a law;
• It must be necessary; there must be a pressing social need, assessed on a
case-by-case basis. The limitation be useful is in itself not sufficient; it must
be consistent with other protected rights.
• The restriction must be justified by the protection of a strictly limited set of
well-defined public interests( national security, public safety, public order
(ordre public), the protection of health or morals, and the protection of the
rights and freedoms of others.
• Thus, any restriction on the enjoyment of the
rights enshrined in human rights instruments must
be legally established, non-discriminatory,
proportional, compatible with the nature of the
rights, and designed to further the general
welfare.
• Finally, it is also important to stress that the
burden falls upon states parties to prove that a
limitation imposed upon the enjoyment of the
rights is legitimate.
 Derogations

• Some human rights instruments allow states to take measures

derogating temporarily from some of their obligations.
• Derogating measures must be of an exceptional and
temporary nature.
• The rationale for derogation provisions is to strike a balance
between the sovereign right of a government to maintain
peace and order during public emergencies, and the
protection of the rights of the individual from abuse by the
state.
• Thus, the state is allowed to suspend the exercise of some
rights when necessary to deal with an emergency situation .
e.g., derogation of the right to peaceful assembly
When derogation measures are allowed, such derogations have to meet
several criteria:
 There must be a war or general state of emergency threatening the life of
the nation;
 The state of emergency must be officially proclaimed;
 Measures may not go beyond the extent strictly required by the situation;
 Measures may not be inconsistent with other obligations under
international law; and
 Measures may not be discriminatory solely on grounds of race, colour, sex,
language, religion or social origin.
 A state availing itself of the right of derogation must immediately provide
justification for its decision to proclaim a state of emergency and also for
any specific measure based on such a proclamation.
 However, Article 4(2) of ICCPR, Article 15(2) of ECHR and
Article 27(2) of ACHR), a number of rights can under no
circumstances be limited or derogated from.
 Such rights are often called notstandsfest - a German term -
and include the right to life, freedom from slavery, torture and
imprisonment for debt, the principle of legality in the field of
criminal law, freedom of thought, conscience and religion and
the right to juridical personality.
 The Human Rights Committee, in its General Comment 29 sets
out in detail the conditions that must be met in order to
derogate from the rights contained in the ICCPR and refers in
length to those rights which are not derogable.
 Institutions and Procedures

 The numerous human rights conventions under the framework of the United Nations and the regional
systems in Africa, the Americas and Europe have led to the creation of a wide range of mechanisms for
monitoring compliance with the standards agreed upon.
 There are two distinctive types of supervisory mechanism:
a) Treaty-based mechanism: supervisory mechanisms enshrined in legally binding human rights instruments
or conventions. e.g., the Human Rights Committee and the Committee on the Rights of the Child. The
African Commission and future Court on Human and Peoples’ Rights, the European Court and commission
of Human Rights and the Inter-American Court and Commission of Human Rights are also treaty bodies.
 The treaty-based procedures are the mechanisms established within the context of a specific human rights
treaty.
 The Convention on the Elimination of All Forms of Racial Discrimination (1965) was the first human rights
treaty of universal application to provide for a mechanism of supervision.
a) Non-treaty- based mechanisms: supervisory mechanisms not based on legally binding human rights treaty
obligations.
 Under the UN framework, the non-treaty-based mechanisms are referred to as ‘charter-based’
mechanisms,
 This type of mechanism is based on the constitution or charter of an intergovernmental human rights
forum, or on decisions taken by the assembly or a representative body of the forum in question. The
European Commission against Racism and Intolerance under the Council of Europe is also an example of a
regional non-treaty based mechanism.
 The various supervisory procedures established in human rights treaties can be divided into four
main groups:
1).Reporting procedures:States parties to them are obliged to report periodically to a supervisory
body on the implementation at the domestic level of the treaty in question.
 They submitt reports on the measures they have adopted which give effect to the rights
recognised in the treaty and on the progress made in the enjoyment of those rights.
 The report is analysed by the relevant supervisory body, which comments on the report and may
request the state concerned to furnish more information.
 The treaty bodies also receive information on a country’s human rights situation from other
sources, including non-governmental organisations, UN agencies, other intergovernmental
organisations, academic institutions, and the press.
 These reports are mostly used to reports aimed at counter balancing the information submitted
by the state.
 Based on this dialogue, the Committees decide on their concerns and recommendations to the
state concerned, referred to as ‘concluding observation.
 All UN human rights conventions contain a reporting procedure: Article 16 of ICESCR, Article 40
of ICCPR, Article 9 of CERD, Article 19 CAT, Article 44 of CRC, Article 18 of CEDAW and Article 73
of CMW
2). Inter-state complaint procedure: Some human rights instruments allow states parties to
initiate a procedure against another state party, which is considered not to be fulfilling its
obligations under the instrument. E.g Article 41 of ICCPR; Article 21 of CAT; Article 11 of CERD
set a possiblity.
 In most cases, such a complaint may only be submitted if both the claimant and the
defendant state have recognised the competence of the supervisory body to receive this type
of complaint.
 In practice, inter-state complaint mechanisms are seldom used.
3). Individual complaint procedure: In order for an individual to bring a
case/communication/petition under a human rights convention, the following requirements
have to be met:
a) the alleged violating state must have ratified the convention invoked by the individual;
b) the rights allegedly violated must be covered by the convention concerned; and c)
proceedings before the relevant body may only be initiated after all domestic remedies have
been exhausted.
 At the UN level, individual complaint mechanisms are found under five conventions: in the
First Optional Protocol to the ICCPR; Article 22 of CAT; Optional Protocol to the CEDAW;
Article 14 of CERD and Article 77 of CMW.
 The two major stages in any case are known as the ‘admissibility’ stage and
the ‘merits’ stage.
 The ‘admissibility’ of a case refers to the formal requirements that the
complaint must satisfy before the relevant committee can consider its
substance.
 The ‘merits’ of the case are the substance, on the basis of which the
committee decides whether or not the rights under a treaty have been
violated.
 Procedurally the flow is as follows; individual complaint----state response---
individual comments---decision by concerned committe.
 There is no appeal against committees’ decisions.
 When a committee decides that the state party has violated a right, or rights,
enshrined in the treaty, it invites the state party to supply information within a
given time limit on the steps it has taken to give effect to the committee’s
findings.
4). Inquiries and other procedures: The supervisory bodies
may also initiate a visit in loco to gather information, or do
so as part of a regular visit-programme.
 One example of a visit-programme - an enquiry – and in
loco visits procedure - is that set out in Articles 126 and 132
of the Third Geneva Convention (1949), and the provision
in Article 143 of the Fourth Geneva Convention providing
for on-site visits to places of internment or detention.
 Mention should also be made of the International Fact-
Finding Commission established under Article 90 of
Protocol I to the Geneva Conventions.
 Non-treaty Based (Charter Based) Mechanisms

A). International Court of Justice (ICJ)

 It is the principal judicial organ of the UN.
 All member states of the United Nations are ipso facto
parties to the statue of the court.
 The jurisdiction of the court in all legal disputes concerning:
(a) the interpretation of a treaty;
(b)any fact which, if established, would constitute a breach
of an international obligation; and
(c) the nature or extent of the reparation to be made for
the breach of an international obligation.
 In Addition
• The General Assembly or the Security Council may request the court
to give an advisory opinion on any legal question
• Other organs of the United Nations and specialized agencies, which
may at any time be so authorized by the General Assembly, may also
request advisory opinions of the court on legal questions arising
within the scope of their activities.
• A number of human rights instruments contain provisions where by
any dispute between the contracting states relating to the
interpretation, application or fulfillment of the instrument may be
submitted to the Court at the request of any of the parties to the
dispute.
• Thus, with power within its jurisdiction and advisory opinion the ICJ
are used to monitor state compliances to its international obligations.
B. Security Council: Under the charter of the United Nations member states have
conferred on the Security Council primary responsibility for the maintenance of
international peace and security.
 To shoulder this responsibility, It may investigate any dispute, or any situation which
might leads to international friction or give rise to a dispute.
 When the Security Council determines the existence of any threat to the peace,
breach of peace, or act of aggression, it may make recommendations, or decide what
measures shall be taken to maintain or restore international peace and security
measures which the security council may initially take include complete or partial
interruption of economic relations and of rail, sea, air postal, telegraphic, radio, and
other means of communication, and the severance of diplomatic relations. If such
measures would be, or prove to be, inadequate, it may take such action by air, sea, or
land forces as may be necessary to maintain or restore international peace and
security.
 The Security Council has dealt with several human rights problems, including massive
and repeated violations in South Africa, Somalia, Haiti, Yugoslavia, and Rwanda; the
situation in the occupied Arab territories; the instances of hostage and abduction.
c).United Nations General Assembly: One of the functions of the United Nations
General Assembly is to intiate 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, languages or religion.
 The General Assembly has established a number of subsidiary organs which
are concerned with human rights. This include:-
 The International Law Commission: whose object is the promotion of the
progressive development of international law and its codification.
 The Office of the United Nations High Commissioner for Refugees, which
provides protection and assistance for refugees and other displaced persons.
 The Special Committee on Declaration, or the ‘Committee 24’, whose
principal function is to monitor the implementation of the Declaration on the
Granting Independence to Colonial Countries and Peoples.
 Committee on the Exercise of the Inalienable Rights of the Palestinian People,
D).Economic and Social Council :is authorized by the charter of the United
Nations to make recommendations for the purpose of promoting respect
for, and observance of human rights and fundamental freedoms for all.
E. UN Human Rights Council :The Commission on Human Rights is the principal
functional organ of the United Nations concerned with human rights.
 It consists of fifty-three members-all-states-who are elected from time to
time by ECOSOC.
 it is this body that drafted the UDHR, the ICCPR and ICESR, and all the
principal human rights instruments.
F. International Lab-our Organizations (ILO)
• The ILO as a specialized agency of the UN system has long been concerned
with labor rights.
• It has developed several complicated procedures for monitoring state
behavior in the area of labor rights
 Regional Human Rights systems

• The European Human Rights System:In May 1948, 800 prominent

members of the various sectors of the European Community drawn
from nineteen European states( politicians, lawyers and those active
in wartime resistance movements) met in The Hague, under the
auspices of the International Committee of Movements for European
Unity, to demonstrate their support for the cause of Europeans Unity.
• The immediate consequence of the Hague Congress was the creation,
one year later of the Council of Europe Comprising two principal
organs, a Committee of Ministers and a Parliamentary Assembly.
• Twelve states signed the EHCR in Rome on 4 November 1950. It
entered into force in September 1953, and has now been ratified by
all member states.
• The Inter-American Human Rights System: The Charter of the Organization of American States
(OAS) was singed on 30 April 1948 at the Ninth International Conference of American States
convened in Bogota. The Charter enters into force on 13 December 1951.
• In 1959, in Santiago, the fifth meeting of consultation of ministers of foreign affairs adopted a
resolution creating the Inter-American Commission on Human Rights. In 1965, the Commission was
authorized to examine and report on communication submitted to it, thereby initiating an individual
petition system.
• In 1970, the protocol of Buenos Aires which amended the Charter changes the status of the
commission from an ‘autonomous entity’ into one of the principal organs of the OAS.
• The African Human Rights System: The other regional human rights instrument is the African
Charter on Human and Peoples’ Rights (ACHPR).
• The draft prepared by African experts was considered at two sessions of the conference of OAU
Ministers of Justice held in Gambia in 1980 and 1981.
• In June 1981, the ACHPR was unanimously adopted at the Nairobi Assembly of Heads of states and
Government of the OAU.
• It became operative in October 1986, and an African Commission began functioning on 2 November
1987.
• In 1998, the thirty-fourth summit of Head of State and Government of the OAU adopted a protocol
to the ACHPR for the establishment of an African Court on Human and People’s Rights
• The Arab and Asian Human Rights Systems: The Arab and Asian states
have not yet created regional human rights regimes, but some steps
have been taken in that direction.
• In 1968, the Council of the Arab League adopted a resolution relating
to the creation of a Permanent Arab Commission on Human Rights.
• On September 15, 1994, the League of Arab States approved an Arab
Charter on human Rights building on earlier texts adopted by regional
non-governmental organizations and inter-governmental
organizations.
• The Charter has not yet entered into force.
• It requires acceptance by seven states before it comes into force. As of
January 1, 1998, only Egypt had ratified the Charter. Iraq signed it on
February 5, 1996.
• In Asia, despite efforts by NGOs and the U.N.,
governments in the region have been unwilling in
general to ratify global human rights instruments, or
create a regional human rights system.
• As of March 1998, for instance, 27 states in the region,
including virtually all Pacific Island States, had not signed
or ratified either the UN Covenants or the Torture
Convention.
• The vastness of geographical scope of the region, the
vast differences in culture, language, political ideology
and economic development among nations
 Chapter three: Systems of Protection for Vulnerable Groups

• There are particular groups who, for various reasons, are weak and
vulnerable and consequently require special protection for the equal and
effective enjoyment of their human rights.
• Often human rights instruments set out additional guarantees for
persons belonging to these groups; i.e., the Committee on Economic,
Social and Cultural Rights has repeatedly stressed that the ICESCR is a
vehicle for the protection of vulnerable groups within society, requiring
states (parties) to extend special protective measures to them and
ensure some degree of priority consideration, even where in the face of
severe resource constraints.
• These group include:-1) women and girls; 2) children; 3) refugees; 4)
internally displaced persons; 5) stateless persons; 6) national minorities;
7) indigenous peoples; 8) migrant workers; 9) disabled persons; 10)
elderly persons; 11) HIV positive persons and AIDS victim
 Women’s rights
• Women are subject to discrimination in all stages of life; in income, education, health and
participation in society and they are particularly vulnerable to specific violations such as
gender-based violence, trafficking and sex discrimination.
• Various international bodies have been established with the aim of eradicating policies,
actions and norms that perpetuate discrimination against women and violate women’s
human rights.For instances, the UN Charter and the International Bill of Human Rights (see
e.g. Article 3 of ICESCR and Article 3 of ICCPR) proclaim equal rights for men and women
and ban discrimination on the grounds of sex.
• In addition to these instruments. the UN Convention for the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of Others (1949), the UN Convention on
the Political Rights of Women (1952) and the UN Convention on the Nationality of Married
Women (1957). Furthermore, the Rome Statute of the International Criminal Court (1998)
Article 7 establishes that rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilisation and other forms of sexual violence are each to be considered a crime
against humanity.
 In addition to this general instruments, the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW is one of the most important instruments for the
protection of women
 This Convention sets out internationally accepted principles and measures to achieve
equal rights for women everywhere
 It sets out equal rights for women, regardless of their marital status, in all fields - political,
economic, social, cultural and civil and calls for national legislation banning discrimination.
 It allows for temporary special measures (‘affirmative action’) to accelerate the
achievement of equality in practice between men and women (Article 4), and actions to
modify social and cultural patterns that perpetuate discrimination (Article 5).
 requir Other measures aim at equal rights for women in political and public life (Article 7);
 equal access to education and equal choice of curricula (Article 10);
 non-discrimination in employment and pay (Article 11); and
 guarantees of job security in the event of marriage and maternity (Article 11).
 call for non-discriminatory health services for women, including services related to family
planning, and equal legal capacity to that of men.
States Parties agree that all contracts and other private instruments that restrict the legal
capacity of women’shall be deemed null and void’ (Article 15).
Special attention is given to the problems of rural women (Article 14).
 However, the effectiveness of the Convention in promoting the
rights it contains is significantly undermined by the numerous
reservations made by States Parties.
 Most reservations aim to preserve religious and national institutions
that are contrary to the rights guaranteed and many are obviously
incompatible with the object and purpose of the Convention
• On 6 October 1999, the General Assembly adopted an Optional
Protocol to the CEDAW, which entered into force in 2000.
• The Protocol establishes a procedure that allows individual women,
or groups of women, to submit claims of violations of rights
protected under the Convention to the CEDAW Committee.
• In July 2004, only 60 out 177 states had ratified the Optional
Protocol.
 Supervision

• The CEDAW establishes the Committee on the Elimination of Discrimination

Against Women to oversee the implementation of the rights it guarantees.
• This is done principally by examining reports submitted by states parties, but in
1999, an optional protocol expanded the powers of the Committee to include
competence to receive individual complaints.
• The Optional Protocol also establishes a distinctive feature: an inquiry procedure
that allows the Committee to initiate investigations into suspected grave or
systematic violations by a state party of the rights contained in the Convention.
• In this regard the Committee can carry out visits to the country in question.
• The Committee has contributed significantly to the interpretation of the
obligations imposed by the Convention through its General Recommendations
which have dealt with several issues of utmost importance for women like
violence against women, equal renumeration for work of equal value,female
curcumstaion and etc.
• The committe didnot recieved and intertained individual complaints so far.
 The rights of the child
• Every child has the right to grow to adulthood in health, peace and dignity.
• Ensuring the rights of children to health, nutrition, education, and social, emotional
and cognitive development is imperative for every country and entails obligations for
every government.
• Due to thier attachment to thier mother and hence women are still primary care-
givers for children, so ensuring women’s rights is positively linked to children’s
enjoyment of human rights.
• There are different legal instruments in relation to the protection of the rights of
children which include:- a Declaration on the Rights of the Child by leage of
nation(1924), UNGA Declaration on the Rights of the Child(1959)and the Convention
on the Rights of the Child (CRC) on 20 November 1989.
 Four general principles have guided the authors of the Convention(art.1)
 The principle of non-discrimination (Article 2);
 The best interests of the child (Article 3);
 The right to life, survival and development (Article 6); and
 Respect for the views of the child (Article 12).
• Underpinning the CRC are three core concepts; protection,
provision and participation:
A) protection against, e.g., violence, abuse, neglect,
maltreatment or exploitation (Article 19);
B) provision of, e.g., name and nationality (Article 7), social
security, adequate standard of living and education (Articles
26 to 28);
C) participation through the right of a child to express its views,
to freedom of thought and to freedom of association (Articles
12 to 15).
• It is the first instrument to specifically grant child rights and
protection as autonomous human beings.
• However, Some international instruments contain more
protective clauses than the CRC. For instance, Article 32 CRC
regarding child labour does not explicitly define a minimum age
for admission to employment.
• ILO 138 stipulates that the minimum age for admission to
employment or work shall not be less than 15 years and that
developing countries may initially specify a minimum age of 14
years.
• Similarly, while the CRC forbids recruitment of children below
15 years for the armed forces, Article 77 of Protocol I to the
Geneva Conventions of 1949, affords superior protection as
regards recruitment of children between 15 and 17 years of age.
• Two optional protocols to the CRC were adopted by the UNGA in
2000.
• The first Optional Protocol to the CRC, on the Involvement of Children
in Armed Conflict aims raising the minimum age of individuals taking
part in armed conflict to 18 and includes a unique provision stipulating
that non-state forces should not recruit persons under 18.
• The Second Optional Protocol to the CRC on the Sale of Children, Child
Prostitution and Child Pornography stipulates. Here the states have to
ensure that certain acts against children are criminalised, and that
states are obliged to prosecute or extradite offenders under their
jurisdiction.
• Regional human rights instruments have also set for the protection of
children’s rights in thier different legal instruments.
 Supervision

• The CRC establishes the Committee(10 members) on the Rights of the

Child to supervise the progress made by the states parties in achieving
the realisation of their obligations contained in the Convention, hence
individual compliants mechanisms.
• The Committee also adopts General Comments for the interpretation of
the rights contained in the CRC after assessing state reports.
• A mention should be made of the United Nations Children’s Fund
(UNICEF), one of the key organisations concerned with children’s rights.
• UNICEF was created in 1946 with aim of providing European children
facing famine and disease with food, clothing and health care.
• The organisation focuses on improving the child’s environment, the
improvement of primary health care, water supply, nutrition, education
and community development.
 Minority protection regime
The rights of indigenous people

 There is no all agreeable definition of Indeginous people so far . But Mr

Martinez Cobo, the rapporteur of the Sub-Commission, defined indeginous
people that consists the following important elements.
 Indigenous peoples have a strong affinity with the land they live on. Their
environment is essential for their survival as a cultural entity; it is decisive for
their social and cultural conditions;
 They are not dominant in their present national society, usually they have little
if any influence on state policy;
 They generally speak their own language and have common cultural qualities;
and
 Their political/organisational structure is generally of a decentralised nature.
 Some estimated 5,000 indigenous peoples comprising around 300 million
persons live in more than 70 countries from the Arctic to the Amazon.
 The Mayas in Guatemala, the Inuit in Canada, the Masai in Tanzania, and the
Naga in India are good examples of these people.
• The first international standard on indigenous populations was ILO in 1957.
• Since the 1970s, the United Nations has been involved in initiatives,
frequently in co-operation with the ILO and the OAS, concerning the
development of specific standards for the protection of indigenous
peoples.
• In 1982, the UN Working Group on Indigenous Populations was created.
• One of its commitments was the drafting of a Declaration on the Rights of
Indigenous Populations, which was adopted by the Sub-Commission in
August 1994.
• The draft Declaration consists of 45 articles, including the definition.
• As of July 2004, there was still no consensus on a draft text; indigenous
peoples and governments differ on issues related to the right to self-
determination, collective rights and the exclusive right to use natural
resources that guarnted by the draft declaration to these group of people.
 Supervision

• At the UN treaty-based level, the Human Rights Committee has been called upon several
times by indigenous persons to decide on possible infringements of their human rights.
• Three charter-based bodies have been established to deal with issues relating to
indigenous peoples at the UN:
a) The Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of
Indigenous People. For instance, In 2001, the UN Commission on Human Rights
appointed a Special Rapporteur Rodolfo Stavenhagen, from Mexico, on the Situation of
the Human Rights and Fundamental Freedoms of Indigenous People, in response to the
growing international concern regarding the marginalization and discrimination against
indigenous people worldwide (Resolution 2001/57).
 The Special Rapporteur has under his mandate addressed a wide range of human rights
issues.
 He has, for instance, formulated a proposal for a definition of indigenous peoples, and
addressed the role of intergovernmental and non-governmental organisations, the
elimination of discrimination, and basic human rights principles, as well as special areas
of action in fields such as health, housing, education, language, culture and etc.
b) the Working Group on Indigenous Populations: Working Group on
Indigenous Populations has a two-fold mandate:
I) to review developments pertaining to the promotion and
protection of human rights and fundamental freedoms of indigenous
peoples; and
2) to give attention to the evolution of international standards
concerning indigenous rights.
This in addition to facilitating and encouraging dialogue between
governments and indigenous peoples,
c) the Permanent Forum on Indigenous Issues: it serves as an advisory
body to the Economic and Social Council, with a mandate to discuss
indigenous issues relating to economic and social development,
culture, the environment, education, health and human rights
 Protection of disabled persons
• Persons with disablities are mostly excluded from participation in society and denied
their human rights.
• Discrimination against the disabled can take many forms, ranging from limited
educational opportunities to more subtle forms, such as segregation and isolation
because of physical and social barriers.
• The effects of discrimination are most clearly felt in the sphere of economic, social and
cultural rights, in the fields of, for instance, housing, employment, transport, cultural life
and access to public services.
• International human rights instruments protect the rights of persons with disabilities
through the principles of equality and non-discrimination.
• While UDHR expresely refered disabled persons,ICCPR and ICESCR are silent about
the rights of these gropus of people even thougght some of thier articles has
relevence for protection their rights.
• Several international and regional human rights instruments contain specific provisions
concerning persons with disabilities. For instances, the African Charter of Human and
Peoples’ Rights stipulates Article (18(4)), CRC(Article 23 ), The revised European Social
Charter(15).
• Two international conventions dealing directly with the rights of
disabled persons have been drafted.
• 1). Inter-American Convention on the Elimination of All Forms of
Discrimination Against Persons with Disabilities 1999).
• It is the only regional convention of its kind in the world.
• 2). ILO 159 concerning Vocational Rehabilitation and Employment
(Disabled Persons) (1983).
• Specific non-binding instruments have also been adopted at the
international level addressing the rights of disabled persons. These
instruments include the Declaration of the Rights of Mentally
Retarded Persons , the Declaration on the Rights of Disabled
Persons ,the World Programme of Action concerning Disabled
Persons and etc.
 Supervision

• In 1994, the position of Special Rapporteur on Disability of the United Nations Commission for
Social Development was established.
• The task of the Special Rapporteur is to monitor implementation of the Standard Rules on the
Equalisation of Opportunities for Persons with Disabilities and to advance the status of people
with disabilities throughout the world.
• Furthermore, under the auspices of the UN, the Division for Social Policy and Development of
the United Nations Secretariat is the focal point on matters relating to disability.
• It deals, inter alia, with the promotion, monitoring and evaluation of the implementation of the
World Programme of Action and the Standard Rules.
• It prepares publications, promotes national and international programmes and works closely
with and supports governments and NGOs in the field of disability.
• In 1982, World Programme of Action concerning Disabled Persons (WPA) was adopted by the
General Assembly.
• The WPA emphasises the need to approach disability from a human rights perspective and that
persons with disabilities should not be treated in isolation, but within the context of normal
community services.
• In order to provide a time frame for the implementation of the World Programme of Action, the
General Assembly proclaimed 1983-1992 the United Nations Decade of Disabled Persons
 Elderly Persons

• As the world’s population ages and the traditional role of the family as the main
support of older people weakens, the elderly are increasingly vulnerable to abuse
and various forms of negative stereotyping and discrimination. For instancers, In
developing countries with limited social security systems, the emigration of the
younger members has left the elderly, traditionally cared for by members of their
families, to fend for themselves.
• The rights stipulated for the elderly in international instruments stem from the
principles of dignity and non-discrimination.
• Neither the UDHR nor its derivatives, the ICCPR and ICESCR , contain any explicit
reference to older persons, but many provisions of these instruments are of direct
relevance to ensuring equal opportunities and the full participation of the
elderly.However, ICESCR Committee expressly addresses the economic, social and
cultural rights of older persons in General Comment No. 6.
• Three regional human rights instruments expressly mention older persons as a group
in need of special protection.African Charter(18(5), The Revised European Social
Charter(23) and Protocol San Salvador(17)
• No convention expressly dealing with the rights of the elderly has been adopted - as in the case
of women and children - a number of steps towards the improvement of the lives of older persons
have been taken under the auspices of the United Nations.For instances, the Vienna International
Plan of Action on Ageing(1982), the United Nations Principles for Older Persons(1991),
Proclamation on Ageing(1992), A Second International Plan of Action on Ageing(2002).
 This plan includes a number of central themes setting out goals, objectives and commitments.
These include:
(a) The full realisation of all human rights and fundamental freedoms of all older persons;
b) The achievement of secure ageing;
c) Empowerment of older persons;
d) Provision of opportunities for individual development;
e) Ensuring the full enjoyment of all human rights, and the elimination of all forms of violence and
discrimination against older persons;
f) Gender equality among older persons;
g) Recognition of the importance of families;
h) Provision of health care, support and social protection for older persons; and
k) Recognition of the situation of ageing indigenous persons
 Supervision

• Several supervisory bodies are progressively developing the

application of their respective instruments to afford
protection to this group and now concluding observations
frequently offer recommendations on the protection of
elderly persons. For example, the Concluding Observations
of the ICESCR on Jamaica E/2002/22 (2001); CEDAW
Committee on Iceland A/57/38 (2002) and CERD Committee
on Iraq CERD/C/304/Add. 28 (1997)).
• Plus the UN Commission for Social Development is
responsible for follow-up and appraisal of the
implementation of the 2002 International Plan of Action on
Ageing.
 Refugees

• The followings documents can be considred as cornerstone documents for protections

of refuge erights.
 The UDHR,
 The 1950 UNHCR(the Office of the United Nations High Commissioner for Refugees)
 The 1951 UN Convention Relating to the Status of Refugees and
 The 1967 Protocol(the Protocol relating to the Status of Refugees).
 While the international community has generally responded swiftly and generously to
refugee crises in the past 50 years, some worrying trends are emerging.
 Current refugee movements frequently take the form of mass exoduses rather than
individual flights and many of today’s refugees do not fit the definition contained in the
1951 Convention.
• According to this convention a refugee is someone who has a well-founded fear of
persecution because of his/her ,Race , Religion ,Nationality ,Membership in a particular
group, or Political opinion and Is outside his/her country of origins; and unable or
unwilling to avail him/herself of the protection of that country, or to return there, for
fear of persecution.
• In general, asylum will not be granted if the person concerned can enjoy protection
elsewhere.
• However, there can be situations in which it would be inhumane to return someone who
does not fulfil the criteria for refugee status under the Refugee Convention. This can be
the result of general circumstances in the country of origin such as, for example, war and
hunger, the risk of torture or cruel, inhuman or degrading treatment or punishment
upon return.
• Granting of asylum may therefore imply both admission as refugee on the basis of the
1951 Convention and permission to stay on humanitarian grounds.
• The 1951 Convention specifies who is a refugee and what rights a refugee has, once
she/he has been recognised as such. In Article 33, the principle of non-refoulement is
established.
• This principle forbids states to expel or return a refugee, in any manner whatsoever, to
the frontiers of territories where his/her life or freedom would be threatened on account
of race, religion, nationality, membership of a particular social group or political opinion.
• The non-refoulement principle also encompasses non-rejection at the border and can
oblige a state to accept a person on its territory.
• The 1951 Convention also includes ‘exclusion clauses’, which
stem from the understanding that the commission of some
types of crimes justifies the exclusion of the perpetrators from
the benefits of refugee status.
The 1951 Convention does not apply to persons with regard to
whom there are ‘serious reasons’ for considering they have
committed the following crimes:
a) Crimes against peace, war crimes and crimes against humanity;
b) Serious non-political acts; and
c) Acts contrary to the purposes and principles of the United
Nations.
• The 1951 Convention Relating to the Status of Refugees, as amended by
the 1967 Protocol Relating to the Status of Refugees, is the most
important international instrument protecting the rights of refugees.
• It says,Refuge is [A]ny person who owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a nationality
and being outside the country of his former habitual residence, is unable
or, owing to such fear, is unwilling to return to it.
• In addition to international and regional refugee conventions,
international human rights law and international humanitarian law play a
significant role in guaranteeing international protection of refugees.E.g
ICCPR(7),CAT(3),CRC,Fourt Geneve Convention(44)
 Supervision
• Both the 1951 Convention (Article 35) and its 1967 Protocol (Article II) bestow upon UNHCR
responsibility for supervising implementation by states.
• UNHCR was created to provide international protection to refugees and to find durable
solutions to refugee problems.
• These functions include:
1) securing legal and practical protection to refugees with and through governments,
2). overseeing the mobilisation and co-ordination of resources for the well-being and survival of
refugees and
3). encouraging conditions in conflict zones that will allow refugees to return voluntarily to their
countries of origin.
In addition to providing protection to refugees, UNHCR’s mandate has been expanded to include
persons in refugee-like situations, internally displaced persons, stateless persons, and
returnees (refugees who have returned to their own countries).
 UNHCR seeks long-term and durable solutions to refugee problems by helping refugees
return voluntarily to their home countries if the situation allows it; monitoring the treatment
and promoting the reintegration of returnees after repatriation has taken place; helping
refugees integrate in their countries of asylum and resettling refugees to third countries
when needed.
 Stateless person

• A stateless person is the person who is not considered a national of any state
under operation of its law.
• Statelessness occurs for many different reasons.
 May be because of extended stay abroad or
 because of marriage or dissolution of marriage to a person of a different nationality.
 In the case of children, if they are born to stateless persons or refugees, or in some
cases out of wedlock, they may be denied citizenship.
 faulty administrative practices, such as excessive fees or the failure to be notified of
registration or other obligations.
 Governments may change their nationality laws and deny certain groups nationality
under the new laws in order to marginalise them or to facilitate their expulsion
from the state’s territory.
 The transfer of territory or sovereignty or the disintegration and formation of new
states may leave thousands of people stateless or with disputed claims of
citizenship.
 The disintegration of several states, the rise of ethnic
consciousness in many parts of the world and the fear of large-
scale population movements involving stateless persons at the
end of the Cold War led to a profound change in international
relations and forced the issue of statelessness onto the agenda
of the international community
• Nationality and citizenship provide a legal basis for the exercise
of many human rights.
• Persons without a nationality are in many countries denied
numerous human rights that citizens take for granted, like access
to schools and medical care, ownership of property, marriage
and foundation of a family and enjoyment of legal protection
 Supervision

• Similar to the situation of IDPs, there is today no specific body that

deals with the problem of statelessness.
• UNHCR was provisionally asked to assume the responsibilities.
• The High Commissioner’s Executive Committee and the UN General
Assembly to adopt and endorse the Conclusion on the Prevention
and Reduction of Statelessness and the Protection of Stateless
Persons (Resolution 50/152). In addition, UNHCR was requested to
‘actively promoteTo this end, UNHCR has taken a number of practical
steps to strengthen its efforts with regard to stateless persons. It has
appointed a legal expert on the problem of statelessness, and has
actively assisted governments in the preparation and
implementation of nationality legislation while encouraging them to
accede to the 1954 and 1961 statelessness conventions.
 Migrant workers
• Traditionally, poverty and the inability to earn a decent living are major reasons
behind migration from one country to another, as well as war, civil strife, insecurity
and persecution arising from discrimination. But migrant workers and their families
frequently find themselves in situations of vulnerability in their host countries, in
part due to their living and working outside of their state of origin.
• Migrant workers often face discrimination in terms of employment: exclusion from
certain jobs, difficulty in access to vocational training and contracts that are inferior
to those of nationals.
• Historically, the rights of migrant workers have fallen under general diplomatic
protection, based on the international law governing the treatment of non-nationals.
• In 1990, the UNGA adopted the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Familis.
• The Convention does not create new rights for migrants, but aims at guaranteeing
equality of treatment and the same working conditions for migrants and nationals, as
well as guaranteeing the rights of migrants to maintain ties to their countries of
origin. milies .
 Supervision
• The International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families provides for the establishment of a
Committee on the Protection of the Rights of All Migrant Workers and
Members of Their Families
• In 1997, the UN Commission on Human Rights established the Working Group
of Intergovernmental Experts on the Human Rights of Migrants with a mandate
to gather all relevant information on the obstacles existing to the effective and
full protection of the human rights of migrants, and to elaborate
recommendations to strengthen the promotion, protection and
implementation of the human rights of migrants.
• In 1999 the Commission appointed a Special Rapporteur on the human rights
of migrants, to examine ways and means to overcome the obstacles existing to
the full and effective protection of the human rights of migrants, including
obstacles and difficulties for the return of migrants who are non-documented
or in an irregular situation
 HIV Positive Persons and AIDS Victims

• HIV positive persons and AIDS victims are often

subject to violations of many rights; some economic
and social such as work-related rights and access to
health care facilities, but also in relation to the
enjoyment of civil rights, such as the right to privacy
and freedom of movement.
• The key human rights principles essential for effective
protection of people with HIV/AIDS are to be found in
existing international instruments, such as the
ICESCR; ICCPR; CEDAW; CAT; CERD; and the CRC
 Chapter Four: Culture, Globalization and Human Rights

Universal Human Rights and Cultural Relativism

 How can universal human rights exist in a culturally diverse
world?
 As the international community becomes increasingly
integrated, how can cultural diversity and integrity be
respected? Is a global culture inevitable?
 If so, is the world ready for it?
 How could a global culture emerge based on and guided by
human dignity and tolerance?
These are some of the issues, concerns and questions underlying
the debate over universal human rights and cultural relativism.
 Cultural relativism
• Cultural relativism is the assertion that human values, far from being
universal, vary a great deal according to different cultural perspectives.
• Some would apply this relativism to the promotion, protection,
interpretation and application of human rights which could be interpreted
differently within different cultural, ethnic and religious traditions.
• According to this view, human rights are culturally relative rather than
universal.
• This relativism would pose a dangerous threat to the effectiveness of
international law and the international system of human rights that has
been painstakingly constructed over the decades.
• If cultural tradition alone governs State’s compliance with international
standards, then widespread disregard, abuse and violation of human
rights would be given legitimacy
• Accordingly, the promotion and protection of
human rights perceived as culturally relative
would only be subject to State discretion, rather
than international legal imperative.
• By rejecting or disregarding their legal obligation
to promote and protect universal human rights,
States advocating cultural relativism could raise
their own cultural norms and particularities
above international law and standards.
 Universal Human Rights and International Law

• Human rights are emphasized among the purposes of the United

Nations as proclaimed in its Charter, which states that human
rights are "for all without distinction".
• Accordingly Human rights are the natural-born rights for every
human being, universally. They are not privileges.
• The Charter and other subsequent covenants and conventions
further commits the all Member and signatory States to action
promoting "universal respect for, and observance of, human rights
and fundamental freedoms.
• The universal nature of human rights is literally written into the
title of the UDHR. Its Preamble proclaims the Declaration as a
"common standard of achievement for all peoples and all
nations".
• Furthermore the Vienna Declaration and programme of Action of 1993
continues to reinforce the universality of human rights, stating, "All
human rights are universal, indivisible and interdependent and
interrelated".
• This means that political, civil, cultural, economic and social human
rights are to be seen in their entirety. One cannot pick and choose which
rights to promote and protect. They are all of equal value and apply to
everyone.
• According to this declaration "the universal nature" of all human rights
and fundamental freedoms is "beyond question".
• It is clearly stated that the obligation of States is to promote universal
respect for, and observance of, human rights.
• Not selective, not relative, but universal respect, observance and
protection, regardless of particular cultural perspectives
• To deny human rights on the grounds of cultural
distinction is discriminatory.
• PPL of Non-discrimination protects individuals and
groups against the denial and violation of their human
rights on any grounds including culture.
• If a State dismisses universal human rights on the basis
of cultural relativism, then rights would be denied to
the persons living under that State's authority.
• The denial or abuse of human rights is wrong,
regardless of the violator's culture.
 Human Rights, Cultural Integrity and Diversity

• Universal human rights do not impose one cultural standard, rather one
legal standard of minimum protection necessary for human dignity.
• As a legal standard adopted through the United Nations, universal
human rights represent the hard-won consensus of the international
community, not the cultural imperialism of any particular region or set
of traditions.
• Like most areas of international law, universal human rights are a
modern achievement, new to all cultures.
• Human rights are neither representative of, nor oriented towards, one
culture to the exclusion of others.
• Universal human rights reflect the dynamic, coordinated efforts of the
international community to achieve and advance a common standard
and international system of law to protect human dignity.
 Inherent Flexibility

• universal human rights emerge with sufficient flexibility to respect and

protect cultural diversity and integrity.
• The flexibility of human rights to be relevant to diverse cultures is
facilitated by the establishment of minimum standards and the
incorporation of cultural rights.
• States have maximum room for cultural variation without diluting or
compromising the minimum standards of human rights established by
law.
• These minimum standards are in fact quite high , requiring from the
State a very high level of performance in the field of human rights.
• The Vienna Declaration provides explicit consideration for culture in
human rights promotion and protection, stating that "the significance of
national and regional particularities and various historical, cultural and
religious backgrounds must be borne in mind".
• Human rights which relate to cultural diversity and
integrity encompass a wide range of protections,
including: the right to cultural participation; the right to
enjoy the arts; conservation, development and diffusion
of culture; protection of cultural heritage; freedom for
creative activity; protection of persons belonging to
ethnic, religious or linguistic minorities; freedom of
assembly and association; the right to education;
freedom of thought, conscience or religion; freedom of
opinion and expression; and the principle of non-
discrimination.
 Cultural Rights

• Every human being has the right to culture, including the right to enjoy
and develop cultural life and identity. Cultural rights, however, are not
unlimited. The right to culture is limited at the point at which it infringes
another human right.
• This means that cultural rights cannot be invoked or interpreted in such a
way as to justify any act leading to the denial or violation of other human
rights and fundamental freedoms.
• As such, claiming cultural relativism as an excuse to violate or deny
human rights is an abuse of the right to culture.
• In now a days, cultural rights do not justify torture, murder, genocide,
discrimination on grounds of sex, race, language or religion, or violation
of any of the other universal human rights and fundamental freedoms
established in international law. Any attempts to justify such violations on
the basis of culture have no validity under international law.
 A Cultural Context

• Traditional cultures should be approached and recognized as partners to

promote greater respect for and observance of human rights if they are in
line the minimum standard.
• Drawing on such compatible practices and common values from
traditional cultures would enhance and advance human rights promotion
and protection.
• This insight would enable human rights advocacy to assert the cultural
relevance, as well as the legal obligation, of universal human rights in
diverse cultural contexts.
• Recognition and appreciation of particular cultural contexts would serve
to facilitate, rather than reduce, human rights respect and observance.
• Working in this way with particular cultures inherently recognizes cultural
integrity and diversity, without compromising or diluting the
unquestionably universal standard of human rights
 Globalization, Development and Human
Rights
• The relation between globalization, development and
human rights raises policy and legal questions. One such
question is whether globalization of market-oriented
economic system is essential for development and
protection of human rights?
• Human rights have become an integral part of the
process of globalization in many ways.
• However it tends to intensifies impoverishment by
increasing the poverty, insecurity, fragmentation of
society and thus violates human rights and human
dignity of millions of people.
• To curb these effects ,the Preamble of the Declaration of the Right to Development, adopted by
the UN General Assembly in 1986, describes “development as a comprehensive economic,
social, cultural and political process that aims at the constant improvement of the well-being of
the entire population and of all individuals on the basis of their active, free and meaningful
participation in development and in the fair distribution of resulting benefits”.
• Furthermore, the 1990 UN Global Consultation on the Right to Development as a Human Right,
stated that the right to development is an inalienable human right with the human being as the
central subject to the right and that all the aspects of the right to development set forth in the
Declaration of the Right to Development are indivisible and interdependent, and these include
civil, political, economic, social, and cultural rights.
• It was further maintained that the right to development is the right of individuals, groups and
peoples to participate in, contribute to, and enjoy continuous economic, social, cultural and
political development, in which all human rights and fundamental freedoms can be fully realized.
• A development strategy that disregards or interferes with human rights is the very negation of
development.
• However the global integration of the structures, processes, and ideologies produce injustice,
oppression, exploitation and mal-development in society. The systematic integration of the
forces that are dominant in the globalization process intensifies human rights violations.
 Development Aid and Human Rights

• The General Assembly has, by consensus resolutions, called for

such development aid to reach 0.7 per cent of the GNP of
developed countries. Actually less than half of that target has been
attained. For example, the United States gives only less than 0.2
per cent, instead of 0.7 per cent.
• Overseas Development Aid (ODA) presents debatable issues from
the perspective of human rights.
• Donor countries tend to emphasize their narrow concepts of
human rights as a prerequisite to sanction development
assistance.
• They also emphasize the pragmatic political fact that aid is not
likely to be provided if the beneficiary states violated basic human
rights.
 Trade and Human Rights

• Global trade is being liberalized and opened up in this era of globalization.

• Even though A UN Commission on Transnational Corporations attempt to draft
Code of Conduct that requiring transnational corporations to respect human rights
and fundamental freedoms in the countries where they operate, it has failed
• The TNCs which have gained strength in the post-globalization era is the main actor
in several developed countries in formulating new foreign policies to shape a new
global order that at the end of the day violate human rights .
• A few hundred corporate giants, many of them bigger than most sovereign nations
are engaging in d/t business activities that violate HR directly or indirectly.
• By acquiring earth-spanning technologies, by developing products that can be
produced anywhere and sold everywhere, by spreading credit around the world, and
by connecting global channels of communication that can penetrate any village or
neighborhood, these institutions we normally think of as economic rather than
political.
• private rather than public, are becoming the world empires of the twenty-first
century.
 Impact of Globalization on Human Rights

• With the expansion of trade, market, foreign investment,

developing countries have seen the gaps among themselves
widen.
• The imperative to liberalize has demanded a shrinking of state
involvement in national life, producing a wave of privatization,
cutting jobs, slashing health, education and food subsidies, etc.
affecting the poor people in society.
• In many cases, liberalization has been accompanied by greater
inequality and people are left trapped in utter poverty.
• The Human Development Report of 1997 revealed that poor
countries and poor people too often find their interests
neglected as a result of globalization.
 CHAPTER FIVE: RESPONSES TO GRAVE VIOLATION OF HUMAN RIGHTS

 Amnesty International has commented that ‘the twentieth century was perhaps the bloodiest in
history.
 Millions of people were victims of genocide, crimes against humanity, war crimes, torture, extra
judicial executions and "disappearances.“For instances,
 Government forces massacred more than half a million civilians in Indonesia in the mid-1960s in an
attempt to suppress communism.
 Estimates of people killed by the Khmer Rouge regime of Pol Pot in Cambodia vary between 300,000
and 2,000,000.
 During the rule of Id Amin in Uganda from 1972-1978, more than 250,000 people were killed.
 In 1994 between 500,000 & 1,000,000 people were killed in the government-directed genocide in
Rwanda
 The systematic & gross violations committed by State officials as an instrument of achieving some
policy or by non-state actors like rebel groups in case of civil war
 Thus it is clear that human rights cannot be realized without having an effective mechanism of dealing
with such systematic & gross violations
 The 21st century is also witnessing similar cruelties and injustices
• There two responses :
1.National responses -Transitional Justice and
2.International responses
 National responses -Transitional Justice

• It is an accepted principle that violations of rights Including systematic

& gross violations shall first be addressed at national level.
• Thus, the perpetrators of such violations/crimes shall be brought to
justice at national level.
• The international system of addressing such violations becomes
relevant if the domestic system is unable/unwilling to provide
remedies.
• The question of addressing such violation at national level doesn’t
arise unless there is some sorts of transitions. Thus the need is
addressed through what is usually referred to as transitional justice.
• Transitional justice broadly signify the mechanisms by which societies
in transition deal with past violations.
• It thus represents the various modalities of addressing past violations.
 The three main needs that arise in societies in transition are the following:
1) The need for justice. Victims of violations or their relatives and the society at large need to see the
perpetrators of the violations are brought to justice.
It is thus necessary that transitional justice should provide a mechanism by which this need may be
satisfied.
2). The need to know the truth. The society in general, and victims or relatives in particular, wants to know
who among its members did participate in the violations.
 As the past violations were committed systematically & grossly, the society, even victims/relatives,
may not know all that happened & all the perpetrators & the degree of their participation.
 Thus, the need to know who did what & why is one of the basic issues that may arise at the time of
transition.
 It is claimed that knowing the truth about the past is crucial to build a viable, rights-respecting &
democratic society as well as to ensure that violations wouldn’t happen again
3. The need for conciliation.እርቅ/negotiations There is a general understanding that one groups of the
society are victims while others are perpetrators or vice versa. This and other factors are likely to
cultivate among members of the society a mentality of suspicion, mistrust & even animosity. A society
desirous of moving forward should therefore address this mentality.
 Society should have a mechanism of reconciling its divided members & building trust, confidence &
mutual respect among its members
 The modalities of transitional Justice

 There are certain modalities of transitional justice that are well

known & well utilized by different socialites.
a) Prosecution: it involves the apprehension of perpetrators, the
gathering of evidence, and the filing of criminal charges, judicial
hearing and decision according to the law.
 The main concern here is to maintain the rule of law, international
obligation and moral duty to the victim.
 The duty to prosecute, particularly, exists in relation to grave
breaches of IHRL and IHL like War crimes, the crime of genocide,
crimes against humanity
 The rule of law thus requires that no person is exempt from the law.
 Thus it is a mechanism of fighting impunity.
b). Truth & reconciliation. The main priority of this modality is to reveal truths about the past,
create conciliation, and achieve a successful transition.
 Usually, the commission/authorized organ seeks & documents the truth about the past by this
procedure. Members of the society are encouraged to come forward and speak their stories.
Thus, both victims/relatives & perpetrators give their statements and such other information
relating to the past.
c) Amnesty. Is refers to an official act, usually through law, prospectively barring prosecutions of a
class of persons for a particular set of actions or events.
 Amnesties can be blanket or partial; they may be official, with, for example, the passing of a
law, or de facto, where a state simply does not prosecute.
 It is important to keep two points in mind. First, these mechanisms are not exhaustive. Other
mechanisms may include offering reparations to victims of State-sponsored violence,
reforming institutions like the police & the courts, & removing perpetrators from positions of
power (lustration). Secondly, they are not exclusive of each other. States may use a
combination of these mechanisms to attain the desired goal.
 A number of factors may influence society’s choice including the availability of resources, the
relative strength & weakness of the outgoing regime & the incumbent regime, political
willingness, & many others.
 2. International Responses
• The international response is premised on the conviction that such
violations constitutes crimes against the whole nations/international
community, and results from the inadequacy/ non-existence of
national responses.
• Thus, certain crimes do constitute international crimes for which the
perpetrators are held individually responsible.
• The mechanism by which international law ensures that has taken
different forms. These include:
(1) the recognition & application of the principle of universal
jurisdiction,
(2) prosecution and trial by ad hoc international tribunal, and
(3) prosecution & trial by a permanent international tribunal called the
International Criminal Court.
 1. Application of the principle of Universal Jurisdiction.

 It is classically defined as ‘a legal principle allowing or requiring a State to bring criminal

proceedings irrespective of the location of the crime and the nationality of the
perpetrator or the victim’.
• This principle is said to derogate from the ordinary rules of criminal jurisdiction requiring
a territorial or personal link with the crime, the perpetrator or the victim.
• The rationale behind it is broader: ‘ it is based on the notion that first certain crimes are
so harmful to international interests that states are entitled-and even obliged to bring
proceedings against the perpetrator, regardless of the crime and the nationality of the
perpetrator or the victim’,second, no safe havens must be available for those who
committed them.
• Universal jurisdiction allows for the trial of international crimes committed by anybody,
anywhere in the world.
• There are offences recognized by international law as punishable by any country. These
are (i) piracy, (ii) slavery, (iii) war crimes, (iv), crimes against peace, (v) crimes against
humanity, (vi) genocide, and (vii) torture. Eichmann Case in 1961, the Demanjuk Case in
1985, and more recently the Pinochet Case in 1999 and the Butare Four Case in 2001 are
a good examples
• The recognition of universal jurisdiction by the state as a principle is not
sufficient to make it an operative legal norm.
• There are basically three necessary steps to get the principle of universal
jurisdiction working:
1). the existence of a specific ground for universal jurisdiction,
2).a sufficiently clear definition of the offence & its constitutive elements, and
3). National means of enforcement allowing the national judiciary to exercise their
jurisdiction over these crimes.
 If one of these steps is lacking, then the principle will most probably just remain
a pious wish.
 In practical terms, the gap between the existence of the principle and its
implementation remains quite wide.
 Irrespective of its limited application, the principle of universal jurisdiction
provides a mechanism by which the international community responds to some
systematic violations of rights that constitute international crimes.
 2.Prosecution and trial by Ad hoc tribunal

• These tribunals have specific/limited jurisdiction over crimes listed

under the instrument creating the tribunal.
• The first among these tribunals is the International Military Tribunal at
Nuremberg established by the London Agreement of August 1945.
Many Nazi officials were prosecuted before this tribunal.
• Other ad hoc tribunal includes the International Criminal Tribunal for
the former Yugoslavia & for Rwanda (ICTY & ICTR respectively).
• The Statutes establishing these tribunals set out the crimes that fall
with in the jurisdiction of each tribunal.
• These are ad hoc tribunal established to address certain crimes
committed in certain geographic location or during specific period
• These tribunals are established pursuant to the Decision of the UN
Security Council
 3. The procedure under the ICC

• It is established pursuant to the Rome Statute of the International Criminal Court,

which was adopted at a diplomatic conference in Rome, on 17 July 1998.
• The Statute entered in to force on 1 July 2002 and the Court is now fully functional
at its seat in The Hague.
• The Rome Statute provides for the creation of a permanent international criminal
court to prosecute people accused of genocide, crimes against humanity and war
crimes.
• The court functions as complementary organ. Thus, the Rome Statute embodies
the principle of complemntarity.
• The principle of complementarity can be defined as a functional principle aimed at
granting jurisdiction to a subsidiary body when the main body fails to exercise its
primary function.
• Thus, the ICC has jurisdiction over the stated international crimes when States are
unable or unwilling to prosecute these crimes at national level. By so doing it
makes sure those that committed grave crimes are brought to justice & contributes
to the fight against impunity.