Right is defined as a claim or entitlement.

When we say that a person has a right, he has a justified valid

claim against another person which is supported by legal rules or by the principles of enlightened
conscious. So a right which makes its foundation onlegal rules is a legal right. but rights which are based
on the principles of enlightened conscious are moral rights. Right implies duty upon others. But some
philosophers do not agree whether all rights entail corresponding duty. They argue that since right is an
entitlement, it doesn’t need to be claimed against another person. The right holder does not need to
identify the duty bearer. It is still debatable issue.

Human rights are rights which are inalienable and inviolable by their nature and inherent to human
beings. By the mere fact that we are human, we are entitled to enjoy all human rights.

Classification of human rights:

There are first, second and third generation of rights. First generation right includes civil and political
rights provided under the ICCPR. Second generation rights are economic, social and cultural rights while
third generation rights are collective rights. The African charter on human and peoples’ rights recognizes
collective rights like the right to peace, development, healthy environment, self determination, etc.
collective rights are very common in the African system. The reason of the proponent of this
classification to call civil and political rights as first generations was that they were the first kind of rights
which were claimed by citizens against the state. He raises their existence to French revolution and goes
on to the declaration of American war of independence. According to him, the second generation rights
were claimed after that period. Collective rights were claimed particularly in 1960s. during that time,
most African countries were claiming their independence. The right to development began to be
claimed in 1980s.

There is also another classification of rights in to civil and political rights. Civil rights are rights that are
necessary for mere existence. They are rights that enable individuals to live in society. Some examples of
civil rights are the right to life, liberty, privacy, freedom of religion, etc. Political rights are rights that
enable a citizen to participate in astate affairs. some examples of political rights are the right to vote,
freedom of expression, the right to assembly, association, participate in state affairs, etc.

Economic rights include the right to work, the right to property, etc. unfortunately, we don’t find the
right to property both in the ICCPR and ICESCR .

Social rights includes the right to education, health, social security, housing, food, water, etc.

Cultural rights includes the right to participate in culture. The Vienna conference on human rights clearly
said that rights are interdependent and indivisible. Rights cannot be disassociated. The reason for
splitting the UDHR in to ICCPR and ICESCR is that during the cold war, the west bloc did not want to
recognize economic, social and cultural rights. They only recognized civil and political rights. The east
bloc on the other hand argued that people must eat, drink and find shelter before the claim of political
rights. If people hungry, they do not go and vote for you. It is because of this difference that the UDHR
splitted in to ICCPR and ICESCR. When we come to Africa, the African charter on human and peoples’
rights shows that civil and political rights cannot be disassociated from economic, social, and cultural
rights.

Human rights law is one branch of public international law which deals with international protection of
human rights. It discusses norms, institutions that are established to enforce those norms and
procedures that those institutions follow. At global level, we have the united nations framework. The
united nations institutional framework is divided in to charter based and treaty based mechanisms. The
charter based system has got its norms from the united nations charter. The institutions under the
charter based system include the general assembly, the secretariat, the security council, ecosoc,
international court of justice and the human rights council. There are different procedures which those
institutions follow. There are also treaty based organs, norms and procedures. There are 9 major human
rights treaties which establish norms. concerning treaty organs, there are different treaty organs at
regional and global level. The asian and Arabian regions are not as much developed in human rights
advancement. The European human right system is the most advanced system in the world. The
European court of human rights is very well established. In African regional system, there is the African
commission on human and peoples’ rights which is mandated to oversee the African charter on human
and peoples’ rights. There is also another institution called African committee of experts on the right
and welfare of the child which is situated in addis ababa. Another institution in Africa region is African
court on human and peoples’ rights situated in Tanzania. Ethiopia is not party to the African court on
human and peoples’ rights. Even individuals are not accessible to that court except five countries
including Ghana, Tanzania, burkinafaso and Malawi.

Some scholars say that civil and political rights imposes only negative obligation on the state. Negative
obligation means obligation to refrain from enterfering with the enjoyment of those rights. According to
those scholars, economic, social and cultural rights imposes positive obligation. Positive obligation
includes both the obligation of conduct or doing something and the obligation of results. For instance, if
a state takes legislative action and devise policy how to implement the right to education, it is possible
to say that state has carried out its obligation of conduct. But those policy and legislative measures must
result in tangible outcome. Later on, this distinction has been severely criticized. For instance, if we take
some rights under the category of civil and political rights, for one’s enjoyment of the right to liberty, it
is enough if a state refrains from enterfering with the enjoyment of that right. but that is not true when
it comes to the right to vote. In this case, a state must establish an electoral board and provide ballot
more over, it must educate those persons who administer the election processes. This requires a lot of
resources like any other obligation of economic, social and cultural rights. Because of this, the
justification given by scholars for classifying civil and political rights as it requires only negative
obligation does not make any sense. Both civil and political rights and economic, social and cultural
rights impose positive obligation. They also impose negative obligation. for instance, a state must refrain
from enterfering with the enjoyment of the right to education. Generally, that classification is merely on
the purposes of academic discussion.
Paragraph 5 of the Vienna conference of 1993 says that human rights are universal, indivisible,
interdependent and interrelated in nature. When we see indivisibility of the human rights, there is no
consistency even at the UN level. For instance, the UDHR which contained all the rights was adopted by
the general assembly in 1948. But later on, it was divided in to civil and political rights and economic,
social and cultural rights. The indivisible nature of the human rights is reflected in the conventions which
were adopted later. For example, CEDAW is inclusive of civil and political rights and economic, social and
cultural rights in one document. Likewise, CRC, CERD and convention on the rights of persons with
disabilities contain economic, social and cultural rights together with civil and political rights. That is why
we say that human rights are indivisible and totally reject the division of human rights except for the
purpose of academic discussion. At regional level, the African charter on human and peoples’ rights also
contain economic, social and cultural rights along with civil and political rights. This can be taken as
another evidence for the indivisible nature of the human rights. Some argue that economic, social and
cultural rights cannot be implemented as civil and political rights. Because when the ICCPR was adopted
in 1966, it was accompanied by the optional protocol1 which deals with consideration of individual
complaints. But we don’t see any similar adoption when we come to the ICESCR. But recently, this
problem vanished, and an optional protocol to ICESCR will be interred in to force on may 5 2013. This
optional protocol allows individuals to bring their cases before the committee on economic, social and
cultural rights.

Classification of rights in to generations in historical perspective is wrong interpretation. The distinction

based on imposition of positive vs negative obligation is also wrong understanding. Some scholars say
that Esc rights imposes positive obligation while civil and political rights imposes negative obligation.
however, this is completely false. Economic, social and cultural rights may impose negative obligation
and at the same time, civil and political rights imposes positive obligation. for instance, the right to fair
trial and the right to vote are civil and political rights which impose high positive obligation on states.
even the division as individual and group rights is incorrect. Because group rights usually contain
individual aspect. For example, in case of the right to self determination, individuals come together to
form group. So we cannot disassociate individuals from the group.

Interdependence:

Human rights are interdependent. This is to mean that the realization of one right results in the
realization of other rights. The same is true to the contrary. This means that the violation of a human
right results in violation other rights. For example, the deprivation of the right to food violates not only
the right to food but also the right to life. Violation of the right to health may lead to violation of the
right to life. Generally speaking, human rights are interdependent and interrelated.

Application of human rights:

There are two types of application. These are vertical and horizontal application. Vertical application is
occurred when individuals claim their rights against the government. an individual cannot bring a case
before the human rights committee for the violation of his rights against another individual. Basically,
even for that individual, it is the state that takes responsibility. Human rights are usually claimed against
the state. So any communication submitted to treaty organs is against the state. For instance, if an
individual brings a communication to the human rights committee for the violation of the right to life in
ogaden by ONLF, ONLF cannot make any defense as a defendant before the committee. Instead, it is the
Ethiopian government that would be defendant and held responsible. Because the Ethiopian
government failed to protect the right to life of individuals against ONLF. The application of Human
rights is usually vertical. Whatever happens to an individual, he claims for the violation of his rights
against the government. is there horizontal application of human rights under international law? at
domestic level, there are some constitutions that recognize horizontal application of rights. for instance,
the constitution of south Africa holds juristic or artificial persons like corporations responsible for the
violations of human rights. at international level, there is the issue of transnational or multinational
corporations. Most of multi-national corporations are more powerful than states. the financial resource
that they command is very huge. But surprisingly, these multinational corporations are not subject of
international law. treaties apply to states and other international organizations. They do not apply to
multi-national corporations. So how can we claim the violations of rights against multi-national
corporations? For example, there is a progressive instrument of the rights of women in Africa called
Protocol to ACHPR on the rights of women. Actually, Ethiopia is not party to this protocol. This protocol
clearly defines and prohibits domestic violence. it says that the violation of women’s rights provided
under the charter is state responsibility. How can we claim against individual? For instance, if a husband
abuses his wife in Ghana, is Ghana held responsible for the above act? As an obligation, Ghana must
take legislative and other measures like administrative, budjetary, judicial and other appropriate
measures to implement the rights recognized in that particular document. So in that case, Ghana will be
held responsible if there is no legislation in the country that prohibits domestic violence. if domestic
legislations are adopted, the next question will be whether administrative measures are taken. For
instance, is there police force that investigates domestic violence and brings the case before the court?
Then, does the government support that police force with sufficient budget? So in general, states are
held responsible for failing to take legislative, administrative, budgetary, judiciary or other appropriate
measures.

Is there any difference between human rights, human rights law and international human rights law?
Human rights may be defined as some kind of claim or moral right. Human rights may basically be
expressed in a philosophical or abstract form. As one category of rights, human rights can be traced to
ancient greek philosophies and religious teachings. For example, the rights to equality may be traced
from the saying of Saint Paul that all are equal before god. Similarly, Marcas oriius, one of the greek
philosophers, said that human family should be treated humanly as forming one family without any
distinction from which we can trace the right to equality. There are also some documents particularly in
Europe that are antecedents for modern constitution. Magna carta of Britain and the golden rule of
hungary ar some examples of those documents. These documents incorporated some human rights
provisions. After the middle age, philosophers separated rights from status. As you recall , slavery was
one kind of status where individuals were regarded as corporeal chattel. Slaves were not entitled to any
forms of human right. Society were classified in to certain group and each group has its own status. For
instance, people in the lowest status like slavery didn’t have any kind of rights. But people in the highest
social hierarchy or status used to enjoy the broadest rights. However, after the middle age, philosophers
began to distinguish right from status. People began to raise question saying that individuals have equal
right despite any stratification of human beings in to certain social category. Rights were disassociated
from status. Franscisco Victora and Vaslomen Rascasasus were the main philosophers who played
important role in separating right from status. Then, the period of enlightenment came in to picture.
Many philosophers flourished during this period including john locke, jean jacques rueasou and others.
The concept of human rights highly developed during the enlightenment period. Even if those
philosophers contributed a lot for the development of the conception of human rights,they did not use
the term human right at all. The term human right was first used in the French declaration of the rights
of men and citizen during the time of French revolution. John locke who is inglish philosopher is well
known for proposing that every individual has the right to life, liberty and property. The main
contribution of rousseau was the idea of social contract. Social contract is an agreement between
people and the government in which people will voluntarily give part of their rights so that the
government will in return protect the rights of individuals. Some Americans like tomas jefersen who
were educated in western Europe took those philosophical ideas and reflected it in America. In the
declaration of American independence, it is clearly stated that every individual is entitled to the right to
life, liberty and the persuit of happiness. The 1776 American declaration of independence formed
another stage in the development of human rights. At the constitutional level, the human rights
provisions were first incorporated in the 1792 american constitution. Then after, human rights
provisions were included in the constitutions of many countries such as the 1917 constitution of mexico,
the 1918 constitution of soviet union, the 1919 constitution of germany and others. During this time,
human rights became very well established at the domestic level. So it is possible to conclude that
human rights were developed first in the domestic law at national level before coming to the
international forum. It was regarded that the protection of human rights is within the preview of the
states; it does not concern international community. But later, the development began in the form of
the protection of alliance and diplomats. The protection of alliance and diplomats were the first
category of individuals whose protection were raised from domestic in to international level. In cases of
alliance and diplomats, if a state is responsible for the protection of its citizens, there are also other
category of persons within ones state jurisdiction. These are called alliance. Can a state extend the
protection to its citizen outside its territory? This actually involves the interest of state. For instance
Ethiopia is concerned the protection of Ethiopians who live somewhere else in the world. That is why
Ethiopia has diplomatic mission or consular mission in many countries of the world. The same is true for
other countries. So the rudimentary customary forms of protection of alliance and diplomats were first
developed internationally. Nevertheless, we cannot categorize and bring the protection of alliance and
diplomats in to human rights. Its relevance to human rights is that some important ideas like exhaustion
of domestic remedies were developed in the laws for the protection of alliance and diplomats. It raised
the protection of individuals from state to international level. From this perspective, we can regard the
protection of alliance and diplomats as an antecedent to human rights. Another antecedent of human
rights is the protection of victims of war. Even today, there is separate international law that regulates
victims of war called international humanitarian law. It is separate from human rights law. Its relevance
to human rights is that it also raised the protection of individuals from domestic law to an international
level. For instance, the geneva convention of 1864 deals with the protection of individuals. The heague
conventions of 1899 and 1907 also deal with regulation of the use of armaments or the conduct of
hostilities at international level. But after 1977, the geneva law and the heague law were more or less
mixed together so that it is impossible to distinguish. The other fundamental and relevant thing for the
development of human rights is the abolition of slavery. The abolition of slavery is traced to 1807 by
Britain. Nowadays, the prohibition of slavery is one of the fundamental provisions included in the
human rights instruments. The prohibition of slavery can neither be limited nor derogated. The abolition
of slavery was first made in 1807 by Britain. Later on, many countries declared the abolition of slavery
from which we can draw that state practice was there before the 1936 slavery convention. The forth
one is protection of minorities. This is as early as 1878. There were also a lot of treaties on minorities
concluded by league of nations. Generally speaking, we can trace the development of human rights
before the establishment of united nations and the adoption of universal declaration of human rights.
The united nations charter was the turning point for the production of different legislations concerning
human rights. As we recall, there were atrocities committed during second world war. For example,
human beings were used by the germans as subjects of laboratory experiment. That shocked the
conscience of international community. This resulted for the adoption of united nations charter. As it is
clearly stated under article 1, 55 and 56, the purpose of united nations charter is promotion and
protection of human rights. It imposes an obligation on the states to promote and protect the human
rights of individuals. To translate that charter obligation in to reality, human rights commission was
established in 1946. Its purpose was to translate the obligations that are clearly stipulated in the united
nations charter in to reality. The commission began drafting the universal declaration of human rights.
The united nations general assembly adopted the declaration that was prepared by the commission.
December 10 1948 is always celebrated as international human rights day. Starting from 2006, human
rights commission was bent and replaced by human rights council. Today, there are 9 major human right
treaties. These are: ICCPR, ICESCR, CRC,CAT, CEDAW, CERD, Convention on the rights of persons with
disabilities, Convention on the protection of the rights of migrant workers and their families and
Convention on prevention of enforced disappearance. The convention on the rights of the child has
comparatively got the status of universal ratification. The convention on the prohibition and punishment
of the crime against genocide of 1948 is also regarded as a human right convention. The convention on
the elimination of all forms of racial discrimination, which was adopted because of great influence of
Africans, can still be recognized as a human right convention. Similarly, at the regional level, there are
many conventions which are adopted for the purpose of promotion and protection of human rights. For
instance, European convention for the protection of human rights was adopted in 1950 before the
adoption of ICCPR and ICESCR. In America, the first convention on human rights was adopted in 1969.
But in Africa, conventions relating to human rights were adopted later compared to Europe and
America. The first convention on human rights adopted in the region of Africa is the 1981 african charter
on human and peoples’ rights. This convention established the African commission on human and
peoples’ rights. The other remaining regions including asia did not play much role in the adoption of
conventions on human rights. Is human right universal? Actually, the conception of human rights was
rooted and highly influenced by western culture. Can we consider accepting the conception of human
rights as an imposition of western culture upon 2others? Human rights actually has got its root from
western culture. But accepting those rights cannot in any way be considered as an imposition. Rather, it
is regarded as response to modern society. So human rights are universal even though there are
arguments made from cultural perspective.

Human rights and other branches of international law: international humanitarian law, refugee law and
international criminal law are international laws that are established with a view to protect the human
rights. In terms of history, the IHL came in to existence before the human rights. We can trace back to
the 1864 and the later 1949 geneva conventions. How IHL is related with the human rights? The ICJ, in
its advisory opinion concerning the legality of use and trait of neuclar weapon, explained that human
rights and international humanitarian law apply at the same time. But the point is that it is possible to
derogate human rights. As you recall from public international law class, IHL applies only when there are
armed conflicts. IHL talks about the protection of individuals. For example, the forth convention for the
protection of civilians talks about the life and liberty of individuals which is more related with human
rights. But it talks in the situations of war but not in normal situations. In the situations of war, we can
derogate from some human rights. Derogation of certain human rights is recognized under article 4 of
ICCPR, article 15 of the European convention on human rights and article 27 of the American convention
on human rights. But not all human rights are derogable; for example, it is absolutely impossible to
derogate or suspend the right to life, the prohibition of torture and slavery. In derogating some human
rights in the situations of war, international humanitarian law will be applied. This makes IHL the special
law of human rights. When we come to refugee law, it usually protects noncitizens who live in other
states. A citizen of a country cannot be refugee to it. For instance, an Ethiopian cannot be refugee and
claim protection from Ethiopia. Refugees are those persons who flee their country because of
persecution on the grounds of race, social origin, political thought and so on. But a person may be
prohibited from recognizing as refugee if he violates human rights. In other words, a person may loose
enjoying the rights of refugee if he violates human rights. Those who obtain the refugee status are
entitled to enjoy the rights of refugee enshrined in the refugee convention of 1951 including civil and
political rights and economic, social and cultural rights. This shows that refugee law is related with
human rights. Refugee law can play rights under international human rights instruments. An Ethiopian
who lives in Kenya can allege for the violation of his human rights. Because human rights are not
something that we obtain by being the citizen of a country. Rather, as of being human, every individual
is entitled to enjoy human rights irrespective of his citizenship or living place. In regard to the
international criminal law, it is the recent phenomenon of 1990s with the establishment of international
criminal tribunal for former Yugoslavia and international criminal tribunal for ruwanda. These tribunals
were made to punish individuals who commited gross violations of human rights. Later on, the
international criminal court was also established. The international criminal tribunals protect human
rights by punishing individuals who commit massive violations of human rights. The international
criminal tribunal is usually established for the protection of the violation of IHL. But it is impossible to
disassociate the violation of IHL from the violation of human rights. For instance, crimes against
humanity are violations of IHL. At the same time, crimes against humanity which involve killing and
torturing individuals are violations of human rights. But it is only at the gross level that we apply the
international criminal law. The purpose of international criminal law is not to protect individuals.
Instead, it intends to punish those individuals who are responsible for violation of human rights who
could not be tried at the domestic level.
At the UN level, there are two mechanisms which help for protection and promotion of human rights.
These are the charter based or nonconventional mechanism and the treaty based or conventional
mechanism. The charter based mechanism emanates from the charter of the united nations itself. The
charter of the UN contained different human rights provisions. One of the purposes of the united
nations is promotion and protection of human rights as laid down in article 1 of the charter. The charter,
under its article 55 and 56, imposes an obligation on member states to promote and protect human
rights.

The role of major organs of the united nations:

General assembly: the role of general assembly can be looked at from two perspectives. These are
standard setting responsibilities and establishment of institutions. In terms of standard setting, the
general assembly has the responsibility to adopt different rules and laws that promote and protect
human rights. For instance, it adopted the universal declaration of human rights in 1948 which later
splited in to ICCPR and ICESCR. Cedaw, CERD, CRC, and other major conventions of human rights were
also adopted by the general assembly and they became binding upon member states after they have
been ratified. It also adopts soft laws like declarations which have no binding effect on state parties. But
later on, soft laws will develop in to hard or binding laws. For instance, the CRC which enjoyed the
universal ratification was preceeded by the declaration on the rights of the child. So in this regard, the
general assembly has an important role in setting standards and establishing rules of human rights. The
second role of the general assembly is establishment of institutions or subsidiary organs. One of the
important institutions which was established by the general assembly in 1946 was the human rights
commission which drafted the UDHR. The office of high commissioner was established in 1993 following
the world conference on human rights in Vienna. Later, recently, it established the human rights council
in 2006. In terms of structure, the human rights commission was responsible not to the general
assembly but to the Ecosoc. The office of high commissioner on human rights is now under the secretary
general of the united nations. It is considered as vice or the deputy of the secretariat. This shows the
position given to the human rights in the secretariat. Finally, the human rights council, the successor of
the human rights commission is directly responsible to the general assembly.

The security council:

the security council is the UN organ which is responsible for the maintainance of international peace and
security. It is also the only organ that can pass binding decisions on member states as provided under
chapter 7 of the UN charter. In this regard, the security council can impose sanctions on member states
which violate human rights. It can also authorize state parties to use force. It sends peace keeping force
for the purpose of maintaining peace and security. These peace keeping forces of the security council
are authorized to use force to protect human rights. It also established criminal tribunals such as ICTR
and ICTY. These tribunals were established following massive violations of human rights like genocide.
For example, the ICTR was established in Tanzania Arusha following the genocide of ruwanda happened
in 1994. The revelance of these tribunals is referral to the ICC. So we can draw from this that the security
council is also involved in the ICC. It refers cases to the ICC. Generally speaking, these all functions of the
security council are regarded as enforcement of human rights.

The secretary general:

The organ of secretary general has also its own role in protecting and promoting the human rights. In
particular, coffee annan is well known for mainstreaming human rights in to member states of the
united nations. He is regarded as champion of human rights. Similarly, Ban Kimoun inherited the same
institutions that were established by coffee annan. Ban Kimoun has two special advisors. The first
special advisor of Ban Kimoun is advisor on responsibility to protect of states. Member states have the
responsibility to protect their population from any violation of human rights like crimes against
humanity including torture and genocide. The second special advisor of Ban kimoun is special advisor on
discrimination and mass atrocities. So the current secretary general is supposed to have the role of
mainstreaming of human rights in to member states.

International court of justice [ICJ]:

International court of justice is one of the major organs of the united nations which serves as judicial
organ. All members of the UN are ipso facto parties of the ICJ as per article 93 of the UN charter. The ICJ
has 15 judges who work in their personal capacity. The instrument that established the ICJ is the statute
of the ICJ. This statute is the annex of the united nations charter.

it is only the states that have standing before the ICJ. individuals cannot bring cases before the ICJ. Even
if individuals do not have standing to bring the case to it, the decisions of the ICJ are relevant for
protection and promotion of human rights. The decisions that are rendered by the ICJ have indirect
effect on individuals. The best instance for this issue is the Vienna convention on consular relations case
between Paraguay vs USA regarding death penality in the US. The case was between two individuals
one from US and the other from Paraguay. the case was brought before the ICJ by Paraguay
representing its national. The court of united states had imposed death penality on that Paraguayan
individual until the ICJ gave its final decision. In this case, the ICJ ordered US to stay of execution of
death penality. This is called provisional measures under international law. the court decided that US
must establish some important provisional measures for the execution of death penality. This indicates
that in one way or another, the ICJ has dealt with the issues of human rights.

As you recall from public international law class, ICJ doesn’t have a compulsory jurisdiction over states.
but some international human rights treaties confer compulsory jurisdiction on the ICJ. Convention on
the prevention and punishment of the crime of genocide and convention on the elimination of all forms
of racial discrimination are some of the treaties which confer jurisdiction on the ICJ. The icj also referred
to the application of international covenant on civil and political rights. It held in three cases that ICCPR
applies in all time. These cases are the contentious case of DRC vs Uganda, the advisory opinions of the
legality of threat or use of neuclar weapons and the legal consequences of construction of walls in
occupied palistinian territory. In all these cases, the ICJ held that the ICCPR shall apply at all times. It
applies even in war situations. The only exception the ICCPR doesn’t apply is by operation of its article
which allows derogation from rights. Similarly, article 15 of the European convention on human rights
and article 27 of American convention on human rights allow derogation of rights. Article four of the
ICCPR allows states to suspend certain fundamental human rights and freedoms in the state of
emergency. State of emergency includes wars, natural disasters such as flood, earth quake and the like.
So in that situation, states are allowed to suspend certain fundamental rights of individuals. But the
scope the operation of article four of ICCPR is limited. Because there are fundamental human rights
which cannot be derogated. These include the right to life, prohibition of torture, prohibition of slavery,
freedom of movement, nonretroactivity of the criminal law and so on. These are some examples of
nonderogable rights which cannot be suspended by the states even in the situations of state of
emergency. The ICJ also clearly held that the existence of deprivation of the right to life in the situations
of war must be determined by making reference to the lex specialis or international humanitarian law.
the IHL tries to regulate the restrictions of conduct of hostilities. The military objectives of a certain state
that are going to be achieved must be proportional. IHL only allows collateral damages.

The ICJ also reflected the responsibility to protect in its decision. In the bosinia vs Serbia case on the
application of the genocide convention, the ICJ clearly said that all states have the duty to protect their
population against the crime of genocide. To sum up, the ICJ held decisions which are relevant for the
protection and promotion of human rights.

The human rights council:

The human rights council was established in 2006. But before we deal with the human rights council in
detail, let us see some backgrounds of the human rights commission. The human rights commission was
established by the general assembly in 1946. In that year, 18 representatives from certain states were
sent to constitute the commission. The representatives recommended that there should be
independent experts rather than state representatives. However, that proposal was objected by
member states. In 1967, the number of representatives were raised to 32 and later to 53. The
commission drafted the UDHR, ICCPR, ICESCR, and other conventions. In adition to the function of
drafting, it was receiving a lot of complaints. In 1967, the Ecosoc, to which the human rights commission
is responsible, passed resolution 1235. By this resolution, the Ecosoc authorized the commission to
receive complaints, conduct studies and make public debate when there is consistent patterns of human
rights violations. One of the fundamental principles included in the united nations charter is the
nonintervention in domestic affairs of other states. There was no international organ which receives
human rights complaints. The human rights commission was receiving many complaints from different
states. people were sending their human rights complaints so long as they did not have any other
alternative organ which was receiving their complaints. When states were asked the situations of their
country, their objection was that the united nations cannot intervene in the domestic affairs of other
states. Receiving complaints was developed out of practice. Later, in 1970, the Ecosoc passed another
resolution 1503. In this resolution, the Ecosoc authorized the commission to perform private and
confidential examination of consistent : 1 patterns of gross and violetion should reliably attested
violations of human rights. This resolution contained a bit strong requirements of complaints in terms of
standards. First, one must show that such violation of human rights is gross. Secondly, such violation of
human rights must also be reliably attested. Both 1235 and 1503 complaint procedures were also
adopted by the human rights council. Even though the Ecosoc authorized the human rights commission
different functions through 1235 and 1503 resolutions, the commission did not resort to other system
called the special procedures or mechanisms. These special procedures however were adopted later by
the human rights council. These special procedures are thematic mandate and country mandate. In
general, there are 10 country mandates and 35 thematic mandates. Both country and thematic
mandates usually take one of the forms of special raportors, independent experts, working group or
representative of secretary general. Some instances of the thematic mandate are mandates on extra
judicial summary or arbitrary execution, torture or other cruel inhuman degrading punishment or
treatment, freedom of religion and belief, special mandate on mercenaries, sale of child, child
prostitution and pornography, arbitrary detentions, internally displaced persons, racism and
xenophobia, freedom of expression, violence against women, independence of judges, economic reform
policies, toxic and dangerous products and waste, extreme poverty, the right to education, the right to
food, the right to adequate housing, human rights defenders, indigenous peoples, the right to health,
racial discrimination, minority issues, international solidarity, trafficking persons, temporary forms of
slavery, cultural rights, freedom of peaceful assembly and association, discrimination against women in
law and practice, counter terrorism and human rights and so on. Regarding the appointment of the
mandate holders, there are six criteria yardsticks that the human rights council bases to elect the
mandate holders. These are expertise, independence, impartiality, experience, personal integrity and
objectivity. It is on these criteria the human rights council relies to select the mandate holders such as
special raportor, working group, special or representative of the secretary general and so on. Expertise
need to have some back ground in human rights. They also should not have any kind of responsibility at
state level. For instance, a person who works in Ethiopia as a foreign minister cannot be a mandate
holder under the special procedure. Regarding the procedure of appointment, it is the office of high
commissioner for human rights that presents the least of candidates. There is a consultative group that
considers the candidates why they want to be appointed. The mandate holders are usually appointed
after this consultative groop has enterviewed them.

The major problem of the human rights commission is that it was selective. Specially, during the cold
war, countries like USA did not want to be condemned, named and shamed as violaters of the human
rights. There was no full cooperation between states. because of this, states tried to insulate themselves
and their allies from condemning as violaters of the human rights. The human rights commission was
not an independent expert body. Rather, it was a political organ which comprised of the representatives
of state diplomats. States used the human rights commission as a mechanism for escaping
condemnation from human rights violations. So those countries which were condemned by the human
rights commission were not because they were the only human rights violaters but because they did not
have ally or any other means in human rights commission. For example, the issues like the gross
violations of human rights in chichinia, USSR was escaped without any kind of criticism. Basically,
members were seeking election to the human rights commission because they want to escape from
condemnation or criticism for human rights violations. The process in the commission was highly abused
and was used only for political consumption. For instance, until 2006, the commission had 53
representative states. Those representative states used the human rights commission as to insulate
themselves from criticism. Member states were trying to protect themselves and their allies from
naming and shaming and burden it on others. So using the human rights commission for political
consumption was one of the reasons that promoted the need to establish the human rights council.

Because of the above reasons, the critics were becoming serious since 2001. In 2005, the secretary
general of the united nations made a report to the general assembly by which it recommended the
establishment of the human rights council. Finally, in 2006, the general assembly adopted a resolution
which established the human rights council.

The united nations did some new reforms in the human rights council. The first new reform is the way of
electing the members of the human rights council. The way of electing the members of the human
rights commission was totally different from human rights council. During the commission, Any state
which obtains the majority vote of 54 member states in Ecosoc will be member of the commission. But it
is not true now. Membership to the human rights council is now granted by the general assembly not by
Ecosoc. So any state, to be the member of the council, has to obtain almost the majority in 193 member
states of the united nations general assembly. In this regard, it is hard to become a member of the
council since there are a lot of requirements. For example, a state to be elected must show better
records in the enforcement of human rights. Regarding to suspension of membership, the general
assembly can suspend a member of the human rights council if it commits gross violations of human
rights. For instance, livia was suspended in 2011 because of gross human rights violations. Members
cannot live in the human rights council for long. They are only allowed to be voted for three years’
terms. If they are elected for two consecutive terms, they are not eligible for re-election. Another new
thing to the human rights council is that it is the permanent body which seats through out the year. This
tells us that the human rights council has been more productive. Because, previously, the human rights
commission was only seating for 6 weeks and once a year. But now the human rights council deals with
human rights issues throughout the year. One thing which can be drawn from this is that more emphasis
is given to the human rights. Another thing which is new is the case of special sessions. Special sessions
are easy to hold in the human rights council. The only requirement for a country to call a special session
is getting the support of 16 other member states. in addition to ordinary sessions, around 19 special
sessions were held in the past 6 years which is really a lot.

The main new procedure under the human rights council is Universal Periodic Review [UPR]. The
purpose of universal periodic review procedure is to avoid selectivity that the human rights commission
used to have. As we recall, the major problem of the human rights commission was selectivity. If states
select certain countries, other countries wouldn’t be reviewed and examined. So when we say review,
we are talking about examination of human rights records of countries whether in terms of violation or
protection and promotion of human rights. That record is going to be scrutinized by a certain organ at
universal level in the united nations. that is why we call it universal periodic review. The procedure that
was followed by the human rights commission was not universal. Because in the commission, a
country’s record which was going to be discussed was selected on the basis of vote. They did not select
on the grounds of human rights violation or protection. Instead, they had been selecting on the grounds
of political motivation. Contrarily, the review procedure under the human rights council was universal.
For one thing, the universal periodic review is based on lot; not vote. The country that is going to be
reviewed in the human rights council is selected on the basis of chance. The other point is that every
country is not now limited from being reviewed. However, during the human rights commission, only
certain countries were reviewed. Not only that, but also it was only certain countries that participated in
the revision and examination of reports of other countries. So from both side, the reviewing countries
and the countries that were reviewed was limited under the human rights commission. But now, the
universal periodic review changed the situation that all members of united nations, whether they are
parties to a certain treaty or not, are going to be reviewed for their human rights records. We have 48
members of the human rights council and other states which are observer states. So every state is
wanted to participate in the review of the human rights records of a certain country that is why it is
called universal.

For another thing, every state would be reviewed. All kinds of human rights are also going to be
reviewed. It is not limited to civil and political rights or economic, social and cultural rights. Universal
periodic review makes its review based on UN charter, UDHR, treaties ratified by states and
international humanitarian law.

How is it going to be reviewed? Per year, around 42 countries are reviewed. So it takes four years and
half to review all member states of the united nations.

Concerning the procedure of reviewing, there are 3 raportors called troika who are members of the
human rights council. Questions are usually sent to Troica. Those questions are based on some source of
documents. These are called universal periodic review documents [UPRD]. These documents are three in
number. The first one is state reports. These are documents that are prepared by states which do not
exceed 50 pages. The other one is document prepared by the office of high commissioner for human
rights. This is the compilation of two documents; one is from treaty organs and the other is from stake
holders. Every state in the world is either party to one treaty or another. So these treaty bodies make
their report to the united nations. then, the office of high commissioner for human rights compiles
reports from those treaty organs which not exceeding ten pages. The other document which the above
mentioned office compiles is on the basis of the reports of stake holders. Stake holders are usually
nongovernmental and other organizations. The questions are going to be sent to Troica or 3 raportors
which probably represent 3 states. questions are usually sent to Troica from both members of the
human rights council and the observer states. then, the 3 raportors collect and collate those questions
and circulate them to the members of the human rights council and the observer states.

there is also another special procedure called consultative workinggroup. In consultative working group,
a state makes presentation of these reports and the questions are usually appraised to the states. the
member states have 3 minutes to address the questions to the state under review. Generally, the review
takes around 3 and half hours under the group. And later on, it will be adopted by the council. The final
outcome of the universal periodic review is recommendations. As recommendations indicate, some
questions may be accepted and others may be rejected by states. the Troica and state under review
work together and it is only after that group discussion that recommendations are adopted.

Subsidiary organs of the human rights council: are called advisory committee. We have said that the
members of the human rights council are political representatives of their states. they are supported by
an expert organ just like the house of federation of Ethiopia is supported by the council of constitutional
inquiry. The advisory committee is an expert body which consists of 18 members of independent
experts. When we say independent experts, it is to mean that they do not represent their respective
states. the function of these independent experts is handling complaint procedures. As we have talked
about before, the complaint procedures that were adopted by the human rights commission were also
taken by the human rights council. The advisory committee considers complaints at preliminary stage
and the final decision is left out to the human rights council. The advisory committee makes
recommendations to the council. It doesn’t handle the complaint procedures all in all. The
communications must be admissible to be considered by the advisory committee. It is not all
communications that are going to the advisory committee. Instead, only those communications which
fulfill the consistent patterns of gross and reliably attested violations of human rights are going to the
advisory committee. But if the human rights of an individual is violated which is not gross and reliably
attested, he cannot go to the advisory committee or the human rights council. Rather, he may go to the
human rights committee or to another organ depending on which rights are violated. For instance, if it is
the right to education which has been violated, that individual can go to the committee on economic,
social and cultural rights. With regard to the criteria which ascertain the admissibility of the
communications, it is similar with the criteria under treaty body or conventional mechanisms. One of
such criteria is that it must be submitted by a victim or person who has the knowledge of the violation.
An individual, national and international NGOs can submit the human rights violations so long as they
have some knowledge of the violation.

Another criterion of ascertaining the admissibility of the communications is that there must be
description of violation and human rights norms. When someone submits the human rights violation, he
must include and give explanation of the violation and the human rights norms which are violated.

It should not also be politically motivated and inconsistent with the human rights objectives. In addition
to these, there are other requirements that makes the procedure under the human rights council more
or less similar with the procedure under the treaty or conventional mechanisms. The complaint should
not be exclusively based on the reports disseminated by mass media. It must be supported by some
other evidences.

Another requirement is that it must not be under consideration by any other body such as treaty bodies,
regional mechanisms and the like. For instance, if a communication has been considered by a treaty
body irrespective of the violation is gross, the advisory committee would not consider the
communication. Similarly, if the communication has been considered by the regional mechanisms like
African commission on human and peoples’ rights, the advisory committee would reject the complaint.

The other requirement is exhaustion of domestic remedies. International mechanisms of protection of

human rights are not alternative to the domestic method. That is why we need the admissibility
requirement, in particular, the exhaustion of domestic remedies. If the human right of an individual is
violated in Ethiopia, that individual must resort to all domestic remedies first before he takes to either
the conventional or the nonconventional mechanisms like the human rights council.

Generally, the advisory committee of the human rights council considers the complaints if only the
above requirements are fulfilled.

Who decides on the admissibility of the complaint? There are two totally different organs called working
group on communication and working group on situation. The working group on communication
consists of 5 members out of 18 members of the advisory committee. This working group has its own
chairperson who first screens out the communications that are submitted to him/her. After screening
out, he/she sends the communications to the state parties against which the communications for
allegations of violations of human right were made. The chairperson of the working group can reject the
communications if they do not comply with the admissibility requirements. When the working group on
communication receives two documents, one from the complainant and the other from the state
against which the complaint was made, it will decide on its admissibility. The group decides both on the
admissibility and the merits. Merit involves whether there is consistent patterns of gross and reliably
attested violations of human rights. Then, the group transmits its recommendations to the working
group on situation. These are not members of the advisory committee; rather they are members of the
human rights council. Working group on situation consists of representatives of states who are
politicians. It receives recommendations from working group on communication. Then, it makes report
to the human rights council consisting of 48 members. The council may take several alternatives. Those
possibilities or alternatives that are available to the human rights council are:

1. It discontinues the communication in general.

2. It keeps the issue on its agenda and requests information from state parties.
3. It keeps the issue on its agenda and appoints an independent expert who monitors and reports
back to the council.
4. It discontinues the confidential procedure which is provided under resolution 1503 and adopts
its decisions to the public.
5. It recommends to the office of high commissioners to give any technical advice or capacity
building to the state concerned.

The office of high commissioner for human rights:

This office was established in 1993 through the resolution adopted by the general assembly. It works on
all human rights issues. The main focus of the office is on the implementation of the grounds through
the presence of fields. More than 500 staff members of high commissioners are working in the fields.
Likewise, the office of high commissioner for human rights has its own field office in the region or
country which supports the peace missions of the united nations. in those missions, there are groups of
human rights experts which monitor the violations of human rights. These human experts from the
office of high commissioner for human rights accompany the peace missions and study the situations.
Then, they make reports to the UN security council from which cases are referred to ICC. More than
1000 workers of the office in geneva support both the treaty body organs and the human rights council.
For instance, we said that it is the experts from the above office who compile the two documents
received from stake holders and treaty organs. The office of high commissioner for human rights
supports the states usually based on the analysis of gaps. These gaps may include; knowledge, capacity,
commitment and security gaps. For instance, if a certain state does not know how to translate its human
rights obligations in to domestic legislations, the office will give that state the human rights experts in
order to curb such gaps. That is why the human rights council refers the situations the office when there
is a need of advisory or technical cooperation.

There is a big difference between the recommendation made by the human rights council after universal
periodic review and the concluding observations made by treaty organs. The human rights council is a
political organ which deals with human rights issues in very general way. Therefore, the
recommendation made by the council deals with every kind of human rights. But when we consider the
case of treaty organs, for example the concluding observation of committee on the convention against
torture is only limited to torture. This shows that concluding observations made by treaty organs are
more specific.

Conventional or treaty based mechanisms:

One of the mechanisms which protect and promote the human rights is treaty based mechanism. There
are nine major human rights treaties which establish institutions for the purpose of implementation of
human rights. These are CERD, ICCPR, ICESCR, CEDAW, CRC, CAT, convention on the rights of persons
with disability, convention on the protection of the rights of migrant workers and the members of their
families. There are also other human rights treaties. But they did not establish any kind of institution
which deals with the implementation of the human rights. Some of these treaties are the convention on
the prevention and punishment of the crime of genocide, the convention on suppression and
prevention of the crime of apartheid and the convention relating to the status of refugee which was
adopted in 1951. These conventions do not deal with any human rights organ. There are also other
conventions which mainly focus on the protection of the rights of women. These are convention on
political rights of women, convention on the rights of nationality of married women and convention on
age of marriage, consent of marriage and registration of marriage. In the following sub sections, we will
discuss the treaty organs established by the above major conventions.

The human right committee:

The human right committee was established by international covenant on civil and political rights. This
committee is composed of 18 independent members. This makes the committee totally different from
the human rights council for the reason that the later consists of the representatives of states which are
not independent. However, when we closely look at the ICCPR, it doesn’t expressly exclude an
appointment of government representative as a member of the human right committee. The members
of the committee should be persons with high moral integrity. They are elected by state parties to the
covenant. The term of the committee is four years. But that can be renewed for indefinite period of
time. It is a temporary organ which does not work throughout the year. There are sessions in which the
committee sits.

The human rights council has the following basic functions.

-consideration of state reports

-consideration of interstate complaints

-consideration of individual complaints and

-Adoption of general comments.

The ICCPR has two additional protocols. The first additional protocol deals with the competence of the
committee to receive individual complaints. This protocol expands the procedural aspect of the ICCPR.
The second protocol deals with the abolition of death penality. This protocol expands the substantive
content of the ICCPR. There is not express mandate of adopting general comments given to the
committee both in the ICCPR and additional protocols. However, it practically adopts general comments.
Let us discuss the functions of the committee one by one.

Consideration of state reports:

The human right committee has mandate to consider reports from states based on article 40 of the
ICCPR. The first type of report that the committee receives is initial report. Initial report is the first report
that a state party to the covenant submits to the committee. It usually consists of background of the
country. the remaining reports are called periodic reports. Even if article 40 of the covenant gives power
to the committee to consider state reports, it doesn’t make clear the periodicity of the reports. In other
words, the covenant does not specify within how many years that a state party to the covenant submits
its report. However, as the practice of the human right committee shows, the committee sometimes
requires only three years. But the normal period of submition of reports is four years. But It may also
extend the period of submission to five years. Why does the committee make such distinction? This
depends on the situations exist in countries. For instance, if a certain state gives rise to serious concern
of human rights violation, the committee requires that state to submit its next report within 3 years. In
normal cases, it requires states to submit their reports within 4 years. If states give minor concern of
human rights violation, the committee allows those states more period to submit their reports. The logic
behind this is that there would be no problem if countries which relatively enjoy better human rights
realization are given more period. In addition to this, the committee may sometimes require special
reports called supplementary reports. Supplementary report is one type of report that the committee
requests a given state party to submit its report before the required period. For instance, though a
certain state has four years to submit its periodic reports, the committee may request that state another
report before that period. This special report was introduced by the committee in 1991. Ruwanda was
requested to submit special report in 1991. The committee also requested special report from USA in
2005. What would be the response of the committee if state parties fail to submit their reports?
Regarding this, the human right committee adopted the procedure called examination of situation in
2001. It is a method of the human right committee to cope with states who do not comply with their
treaty obligation. In this circumstance,The committee schedules examination of situations of a certain
country in the absence of report of the state. Basically, the committee schedules examination only after
state parties submit their reports. But in this case, the committee makes schedules of examination of
situations without receiving any report from the state. For instance, the committee examined the
human rights situations in gambia in the absence of report from gambia.

Review process of examination:

After states submit their reports to the committee, the committee will send the reports to a boty called
tax forces which consists of 3 to 5 members. After they read the reports, they select issues and frame
questions to ask the submitting states. The members of the tax forces agree on certain issues that will
be discussed with state party. These issues are usually prepared in writing and sent to the state parties.
This is the beginning of the constructive dialogue. The idea of reporting here is not like the case of
complaint procedure of advisory system where an individual stands against the state. Rather, it is
supposed to be constructive discussion between the committee and the state parties to the covenant.
Examination of report is a forum in which one state party lends from the successes of other states. Since
it is usually conducted in public, One state may suggest another state how it improves the human rights
situations in its country. That is why it is called constructive dialogue.

Following this, there is a process called oral follow-up. After the issues have been sent to the states, the
states usually send their delegated groups that will make a presentation of the report to the committee
members. When the delegations make of their oral presentations, they may be asked questions by the
committee members. After this process ends, the outcome of the report will be concluding observations
adopted by the committee. Concluding observation contains three parts. The first one is positive
development during the reporting period. In this part, the human rights developments achieved by
state parties are discussed. The second one is issues of concern. In this part, it discusses whether a
certain state violates human rights. Finally, the committee gives recommendations. The committee
recommends what state parties should do in the next time. It suggests solutions that address the issues
of concern. In its recommendation, the committee mainly addresses the issues of concern how state
parties overcome human rights violations and better implement the ICCPR. After concluding
observations are adopted, the human right committee appoints special raportor on follow up to
concluding observations. The special raportor follows up whether a certain state is taking in to
consideration the concluding observation given from the committee.
Note: special raportors, independent experts, working groups and special or representative of secretary
general are totally different organs from treaty organs. They structurally fall under the nonconventional
or charter based mechanism.

Consideration of interstate complaints:

Interstate complaint procedure is provided in article 41 of the ICCPR. However, it is optional. This
means that when they ratify the covenant, states are required to make declaration whether they accept
the competence of the human right committee to examine interstate complaints. Inter state complaint
refers to the cases where a certain state submits the complaint of human rights violation against
another state. Most human rights treaties provide interstate complaint procedure. But to your surprise,
it has never been used to date. The main reason is that a state doesn’t want to criticize another state
because of their foreign relation.

Consideration of individual complaints:

The mandate of the human right committee to consider individual complaints emanates from the
optional protocol1 to the ICCPR. Since its adoption, the committee dealt with around 2000 individual
complaints which is very minimum. Out of those complaints, it is only around 700 complaints that the
committee found as violations of the provisions of the ICCPR. When we consider its status, the
committee was not successful in considering individual complaints. There are reasons given for
unsuccessful actions of the committee. The first reason is lack of aWareness. Even IF the legal scholars
and legal practitioners know the existence of ICCPR, they do not know the mechanism of optional
protocol1. For instance, you cannot bring an individual complaint against state party to the covenant
unless that state is also party to the optional protocol1. Being a state party to the ICCPR doesn’t entitle
individuals to submit complaints against that state. If we take the African charter on human and
peoples’ rights, it is automatic. A state accepts the competence of the commission together with the
capacity of individuals to submit complaints. But this is not the case in the ICCPR. In the ICCPR, state
parties are only obliged to submit their reports unless they become party to the optional protocol1. But
peoples including legal practitioners do not understand the difference between the effects of being state
party to the ICCPR and optional protocol1 to the ICCPR.

The other reason for the failure of the activities of the human right committee is the existence of more
attractive regional mechanisms. If we take the case of Europe as one instance in terms of human rights
advancement, the council of Europe consisting of 47 states is leading the world. Even the European
convention on human rights and fumdamental freedoms was adopted in 1950 very long before the
ICCPR. The European court on human rights is very powerful. It renders binding judjments on states. So
there is no reason why the membersof European council will go to the human right committee.
Similarly, the interamerican court on human rights renders binding decision on member states. The
interamerican commission on human rights also does promotion and protection of human rights for
states which did not accept the competence of the court. Eeven in Africa, the African commission on
human rights is better than the human right committee at least in terms of procedure. For instance, all
African states are party to the African charter on human and peoples’ rights except south sudan. So
anyone can submit communications against all African states to the African commission on human
rights. In addition to this, even though it is very recent, there is the African court on human and peoples
rights which is situated in arusha, Tanzania.

The third reason why the human right committee is regarded as unsuccessful is that its judgment is not
binding. The views of the committee is not binding.

how does the committee receive individual complaints? As we discussed before, one of the functions of
the office of high commissioner on human rights is to support treaty based mechanisms. So when we
see the individual complaint procedures, individual complaint first goes to the office of high
commissioner on human rights. The secretary of the office reviews the complaint on its technical basis
like the appropriate name and address of the complainant. It doesn’t go to the issues of admissibility
and merits of the complaint. There is also special raportor on new communication who is under the
office of high commissioner on human rights. The responsibility of this special raportor is to review
whether there is a necessity to recommend for provisional measures. It checks whether it is necessary to
order provisional measures. Provisional measure is not ordered in all cases. Ordering provisional
measures may be needed for instance where an individual is sentenced to capital punishment and is
going to be executed. After the complaint is reviewed by the special raportor, it is sent to the human
right committee. The human right committee checks the admissibility of the communication based on
the optional protocol. It also considers on merits whether there is a violation of human rights.

Article 1, 3 and 5 of the optional protocol1 to the ICCPR give some requirements on the issue of
admissibility. After considering on the merits of the communications, the committee adopts views. Then,
the follow up procedure comes.

There are certain requirements to determine the admissibility of the communication.

The first one is standing. Article 1 of the optional protocol1 says that individual victims, who complaining
violations of their rights within the jurisdiction of state parties to the ICCPR, can submit their complaints
to the human right committee. According to the optional protocol1, an individual must be victim himself
to submit complaint to the committee. But when wee look at the African charter on human and peoples’
rights, it doesn’t have such kind of victim requirement. Any person, NGO or class action (actio popularis)
can submit complaint of violation of human rights to the African commission on human and peoples’
rights. This is not the case under the human right committee. Even NGOs cannot submit complaints on
behalf of the victim. Class action is also impossible under the human right committee. To submit
complaint on behalf of another individual, one must establish his authority. This means that one must
show that he is representing the victim. In Masera vs Uruguay case, the human right committee said
that authority will be established if the complainant has family relation with the victim; or he is legal
representative of the victim; or he shows the power of attorney.

Exceptionally, if there is a possibility for an individual to be victim of human rights violations very soon,
the human right committee will accept his complaint. This particularly happens in cases of extradition.
For instance, if an individual extradites to a state where torture is going to be exercised, this eventually
will violate human rights. So in that case, the human right committee provided an exception that where
the future human rights violation is imminent and distinct, individuals can submit their complaints.

The second requirement of admissibility is compatibility. Article 3 of the optional protocol1 provides
that the human right committee shall not accept the complaints which are not compatible with the
provisions of the covenant. So if communications are not compatible with the provision of ICCPR, the
committee will not accept those complaints. Compatibility is usually seen under three requirements. The
first one is subject matter or rationae matterii requirement. Here, the subject of the complaint must fall
under the provisions of the ICCPR. Stated otherwise, an individual must allege a violation of rights
provided in the ICCPR. If an individual alleges rights that are not guaranteed under the covenant, that
complaint will not be admissible. For example, in Jedjie vs Denmark case, the violation of property right
was alleged. However, the human right committee rejected the case on the ground of subject matter
requirement. Because there is no provision in the ICCPR that provides for the right to property. Similarly,
in VMRB vs Canada case, the right of asylum was alleged. But the committee rejected the complaint on
the ground of lack of subject matter requirement.

The second requirement that uses to determine the compatibility of the communication is temporal or
rationae temporii requirement. Individuals are allowed to submit their complaints for the acts of
violations that occurred after both the ICCPR and the optional protocol1 have been ratified by the
respondent state. There are certain states which are party to the covenant bot not to the optional
protocol. For instance, Ethiopia is party to the ICCPR. But so far, it has not become party to the optional
protocol. So individuals cannot submit their complaints against Ethiopia despite the fact that Ethiopia is
party to the covenant. Individual complaints cannot be submitted against the states which did not ratify
both instruments. As an exception, if the human rights violation continues or the violation has effects
after the two instruments have been ratified, the human right committee may accept the complaints.
For instance, if an individual is imprisoned or detained before the ratification of both instruments by the
given state party, and the detention continues after that state has been ratified both instruments, the
committee will accept the complaint. The committee also takes similar stand in case of disappearance. If
an individual who represents the state has disappeared before the ratification of those instruments by
the given state, and his disappearance continues after the ratification, the committee will accept the
complaint. In general, if the act of violation occurs before the ratification of the ICCPR and the optional
protocol for the respondent state, the complaint will be rejected on the ground that it is incompatible
with the temporal requirement laid down in article 3 of the optional protocol.

The third kind of compatibility requirement is territorial requirement. If the acts of violations of human
rights that have been complained about occurred somewhere else than the territory of the respondent
state, the human right committee will reject that complaint. For example, an individual cannot submit
his complaint against Norway for the act of violation occurred in Finland or somewhere else. There are
two exceptions for territorial requirement. The first exception is that individuals may flee to another
country after their human rights are violated within the territory of their nationality state. At this time,
those individuals can submit complaints against their nationality state even if they are living in another
state. Because the acts of violation of human rights occurred within the jurisdiction of their nationality
state. Territorial requirement does not apply in the situations where the acts of violations are
committed within the territory of a state party and individuals who are making complaints are outside
the jurisdiction of a state party.

The second exception is the principle of effective control. if a state party exercises an effective control
over a certain territory, that state party will be responsible for the violations of human rights commited
in that teritory. So individuals can submit complaints against a state party for the violations performed
on a territory over which that state has effective control.

Personal requirement or rationae personii is also another requirement of determining of the

compatibility of the complaint. according to personal requirement, a state must be party both to the
ICCPR and the optional protocol1.

anonymity and abuse of process:

the other procedural requirement of admissibility is anonymity. An individual who submits complaint to
the human right committee must be known very clearly. Otherwise, the committee will not accept the
complaint. But an individual may sometimes not want to disclose his name to the state party and this
does not contradict the anonymity requirement. We said that the complaint must be submitted to the
office of high commissioner on human rights. So it is only the secretary of the office of high
commissioner on human rights that ascertains the identity of an individual who submitted his complaint.
Regarding abuse of process, if an individual uses an insultic, immoderate or intemperate language, his
complaint may be rejected. If the complaint is unduly prolonged, it may also be rejected on the ground
of abuse of process. If the complain is frivolous and fictitious, it is regarded as abuse of process and may
not be accepted by the committee.

There is also the requirement called duplicate procedure. If someone submits complaints to the
committee, that should not be under investigation or inquiry of other international procedures. If so, the
human right committee will not accept. This is called suspensive ban requirement. For instance, the
human right committee does not consider the case if the given complaint is pending before African
commission on human and peoples’ rights. Because it would be a duplicate procedure so long as it is
under investigation by another international procedure. In that case, the committee will reject the case
for the time being. but nothing prohibits the committee from seeing the cases that are decide by other
international procedures. This means that the decision given by another international procedure does
not have resjudicata effect on the committee. As you know, in case of resjudicata, if the matter is finally
decided, the international judicial organ will not see the case again. As one instance, according to article
56 paragraph 7 of the African charter on human and peoples’ rights, the African commission on human
rights will not consider cases that have already been decided in accordance with the procedures under
the African charter. So if the cases are already decided, they will not be admissible before the African
commission on human rights. This establishes the principle of resjudicata. But in case of the human right
committee, it follows the principle of pendency rather than resjudicata. It only prohibits the duplicate
procedure. It will not see cases while they are pending before other international procedures. The
concept of pendency is laid down in article 5/2[A] of the optional protocol. When many states had
ratified this optional protocol, they made reservation to the above sub article not to recognize the
competence of the committee on cases that have already been decided by other procedures. This
implies that the effect of such kind of reservation is resjudicata. Only Uganda made such reservation
from African countries.

Exhaustion of domestic remedies:

The last requirement of admissibility procedure is exhaustion of domestic remedies. Whenever your
human right is violated, you are not allowed to submit your complaint to the human right committee.
You must exhaust local remedies first. This is very common requirement of admissibility of all human
rights system. But this requirement has exceptions. For example, if the domestic remedies are unduly or
unreasonably prolonged, the human right committee will accept the case. domestic remedies must also
be available and effective. Here, executive or administrative procedures are not necessarily required to
be available and effective. For instance, an individual is not expected to go to the human rights
commission or ombudsman in any country. because they are considered as administrative procedures
and the decision they render is more discretionary. It is only legal remedies that are supposed to be
exhausted.

Why do the human right systems require the exhaustion of domestic remedies? One of the reasons for
the need of the requirement of exhaustion of domestic remedies is that the international human rights
institutions do not replace domestic courts. They only provide a subsidiary mechanism when the
domestic system fails to protect the human rights of individuals. Domestic remedies are also cheap
compared to other international human right systems. Domestic remedies are more effective in terms of
application and more closer in terms of place. State parties will also have opportunity to address the
issue of human rights at first instance. This is all about the requirements of admissibility under the
human right committee. After considering the admissibility of the communication, the committee
considers the cases on merits. In this level, the committee determines whether the human right is
violated or not. In the admissibility stage, the committee will not consider the provisions of the ICCPR
except to ascertain the compatibility of the complaint with the covenant. It only relies upon the optional
protocol. But in case of merits, it depends on the ICCPR. As we have said before, it finally adopts views.
In its views, the committee adopts some remedies like release if an individual is in detention, retrial,
new investigation, prosecution and so on. Then after, the follow up procedure follows. The human right
committee appoints special raportor that follows up the state party whether it is implementing the
views. it also receives information on the views that were adopted by the committee. When a state
party fails to execute the views adopted by the committee, the only alternative that the committee has
is to submit its report to the secretary general which later brings the case to the general assembly.

Substantive issues:
There are some conventions that prohibit reservations. For instance, reservation is prohibited by the
optional protocol to CEDAW. Reservations that contradict the purpose and object of the treaty is also
prohibited. General comment 24 of the human right committee provides that any reservation made
state party to article two of the ICCPR shall have no effect since it contradicts the purpose and object of
the covenant. Article 2 of the ICCPR imposes obligation on state parties to protect the rights guaranteed
by the covenant. So any state which makes reservation to this article contradicts the object and purpose
of the covenant.

Limitation or restriction:

To begin with, every human rights are not absolute. Some of absolute human rights are prohibition of
torture, prohibition of slavery the right to life and so on. Restriction or limitation refers to justifiable
infringement or violation of human rights. Limitation may remain for an indefinite period of time. There
are similarities and differences between limitation and derogation. Their similarity is that both are
violations of human rights by which a state unilaterally changes its obligation under international human
rights instruments. One thing that makes limitation different from derogation is that limitation can be
imposed for indefinite period of time while derogation is temporary. Limitation results in only
infringement of part of a right of individuals. It doesn’t result in total abrogation of a right. But
derogation brings about total suspension of right. When we analyze the international human rights
instruments, there are two kinds of limitation clause. These are general and specific limitation clauses.
General or global limitation clause applies to all the rights that are guaranteed in a particular human
right instrument. The clear example is article four of the international covenant on economic, social and
cultural rights. It generally deals with the limitation of all economic, social and cultural rights that are
provided in the covenant. Likewise, we find similar clause under article 29 of the universal declaration of
human rights. At regional level, article 27 of the African charter on human and peoples’ rights also
provides general limitation clause. The second category of limitation is specific limitation clause. The
best example is international covenant on civil and political rights. The ICCPR doesn’t contain general
limitation clause. Rather it provides some sorts of specific limitation clauses. For instance, the limitation
provided under article 18 paragraph 3 which deals with freedom of vote, religion and conscious does not
apply to other provisions of the covenant. It reads;

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed
by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and
freedoms of others.

In general, every rights are not absolute and they can be limited either on the basis of general or specific
limitation clauses. It depends on provisions exist in the instruments. But there are certain requirements
which must be complied with by limitation.

The first requirement is that a limitation made by a state must be prescribed by law. As a state,
legislative body of a country must legislate certain which imposes limitation on others. The quality of
the law must also come in to question. For example, an administrative decision cannot restrict or limit
the human right of individuals. The law also must be clear and eccessible to the public.
The other requirement is that the limitation must be necessary. The limitation clause must comply with
the principle of necessity. There must be strong justification to impose limitation on the rights. It is not
necessary for instance unless there are other alternatives for achieving certain interests. So necessity is
usually determined based on whether a state has other alternative methods to achieve its purposes.
Legitimate state interest and the principle of proportionality arhe another requirements which must be
complied with. Rights must not be limited arbitrarily. They must be limited only to serve certain
legitimate state interest. National security, public order, public health, public morality, rights of others
and protection of crimes are some of the legitimate interests of a state.[art. 18/3 of the ICCPR].
Whenever a state limits the rights, the limitation must be proportional with the state interests that need
to be achieved. Otherwise, it will be violation of rights.

Derogation:

Derogation refers to a temporary suspension of right during state of emergency. As opposed to

limitations which can be imposed at normal time, derogations are imposed in state of emergency.
Derogation is temporary in its nature which continues only until the period of state of emergency lasts.
Public emergency or state of emergency is unforeseen event or situation which occurs without prior
recollection. A force majeure event which pushes the life of the nation in danger is usually regarded as
emergency. Emergency situations can be international armed conflict, civil war, natural disaster like
earth quake, etc. rights are classified in to derogable and nonderogable rights. Article 4 of the ICCPR
gives state parties discretion to suspend certain rights. But the same article clearly prohibits states from
suspending or derogating the right to life, prohibition against torture, prohibition of slavery,
nonretroactivity of criminal law, the right to be recognized as person etc.

The European convention on human rights which was adopted in 1950 included only 5 nonderogable
rights. Article 15 of the European convention on human rights allows the states to derogate certain
rights in case of state of emergency. Paragraph 2 of the same article however mentions some
nonderogable rights including the right to life, prohibition of torture, prohibition of slavery and
nonretroactivity of criminal law. but the number of nonderogable rights has been increasing after the
adoption of European convention on human rights. For instance, apart from the nonderogable rights
included in the European convention, ICCPR incorporated 3 new nonderogable rights. these are
prohibition of imprisonment for civil debts art. 11, freedom of religion art. 18 and the right to be
recognized as a person. The interamerican convention on human rights which was adopted in 1969 also
included new nonderogable rights such as the right to family, name, child, nationality and the right to
participate in government. but most of conventions which were adopted later do not contain derogation
clause. Surprisingly, the international covenant on economic, social and cultural rights also does not
contain any derogation clause. The reason behind is that economic, social and cultural rights should not
be derogated even during public emergency. CEDAW also does not have any derogation clause. But the
CEDAW committee, in its general comment, stated that the rights of women cannot be derogated even
in cases of state of emergency. Similarly, there is no provision that provides for derogation under the
African charter on human and peoples’ rights. The African commission on human rights has taken its
stand that derogation is not permitted under the African charter. Because there is no any clause that
allows derogation under the African charter. When we look at its general evolution, derogation is being
prohibited in process.

We can understand that nonderogable rights under article 4 of the ICCPR are only limited to 7 human
rights. But the human right committee, in its general comment, added the right of prisoners and
freedom of opinion and expression as nonderogable rights. the committee clearly said that article 19 of
the covenant which deals with freedom of opinion and expression contains elements that cannot be
suspended even in state of emergency. The committee similarly stated that article 10 of the covenant
which talks about the right of prisoners contains elements that cannot be derogated even during the
period of emergency.

There are certain requirements for derogation of rights as provided under general comment # 19 of the
committee. The main requirements are necessity and proportionality. It must be necessary to declare
derogation of rights. State must be certain that there are no alternatives other than declaring
derogation. the suspension of rights must be proportional with the interests that a given state wants to
protect. the human right committee determines whether the suspension or limitation of rights is
necessary and proportional before the ICCPR. When we go to Europe, it is the European court on human
rights that determines the necessity and proportionality of the suspension or limitation of rights.
Notification is another requirement. According to the ICCPR, a state that suspends human rights must
notify to the secretary general of the united nations and other state parties. This is one of the
procedures that is expected to reduce the degree or extent of the human right violations during
emergency.

basically, derogation is temporary suspension of rights. But in cases of African countries, particularly in
Algeria, emergency has been enforced from 1991 to 2011. This shows that the practice is totally
different. Even though a lot of states declare state of emergency, they do not make notification to the
secretary general of the united nations and the human right committee. For instance, . in 2005 election,
Ethiopia suspended the freedom assembly and demonstration laid down in article 30 of the constitution.
But there was no any communication or notification to the secretary general. The issue was taken to the
council of constitutional inquiry. But the CCI understood it as limitation rather than derogation.

Civil and political rights:

Most conventions like CRC, CEDAW and Convention on the rights of persons with disabilities contain civil
and political rights. But the main substantive source of civil and political rights under international
human rights instruments is ICCPR. The convention on the rights of the child also contains civil and
political rights of the child. CEDAW also contains civil and political rights of women.

At regional level, the European convention on human rights and fundamental freedoms contain civil and
political rights. The same is true in African charter on human and peoples’ rights and interamerican
convention on human rights.
One of the civil rights is the right to life. The right to life is provided in article 6 of the ICCPR, article 4 of
the African charter on human rights and article 2 of the European convention on human rights. The
subjects of the right to life is every person. Every one has the right to life. In Ethiopian law, as a rule, an
individual is considered to be a subject of right from the time of his birth. But as an exception, it may
extend to the time of the date of conception where the interest of the conceived child so requires.
When we see international human rights instruments, for instance in the ICCPR , the right to life does
not extend to unborn child. But in the interamerican convention on human rights, even unborn child has
the right to life.

There are three levels of duties; duty to respect, protect and fulfill. The right to life of an individual must
be respected. If for instance a military force of the state kills individuals this is violation of the right to
life. does the prohibition of food violate the right to life? In this regard, the African commission on
human rights says that violation of the right to food is violation of the right to life.

Can the right to life be limited? Even though the right to life is nonderogable right, this does not mean
that it is absolute. There is a difference between nonderogable and absolute rights. The right to life is
nonderogable right. because it cannot be suspended even during public emergency. But it may be
limited. For instance, it may be limited on the basis of certain legislation. We said that limitation must be
prescribed by law. so if there is a law that prescribes or imposes death penalty for certain crime, the
right to life may be limited for that matter. Many constitutional provisions including that of Ethiopia
prohibit limitation of the right to life except in cases of death penalty prescribed by law.

The ICCPR in its article 6 does not totally prohibit death penalty. But optional protocol2 to the ICCPR
deals with abolition of death penalty. Similarly, protocol 6 to the European convention on human rights
and protocol2 to the American convention on human rights prohibit or abolish death penalty. Unlike the
above regions, death penalty is still practicing in Africa and Asia. The African charter on human and
peoples’ rights only prohibits arbitrary deprivation of life. So we don’t have any instrument that
prohibits death penalty in Africa. There are only 3 african states which are parties to the optional
protocol2 of the ICCPR that requires abolition of death penalty. The ICCPR limits the punishment
of death penalty only to serious crimes. Article 2 of the European convention on human rights provides
that loss of life in cases of self defense, preventing insurrections, preventing escape from prison and
effecting arrest are not regarded as arbitrary deprivation or violation of the right to life. For example, if
an individual is killed when his arrest is being effected, or a state uses force to kill individuals to put
down a riot against the state, these cases are not considered as arbitrary deprivation of life. We do not
find such kinds of provision under the ICCPR. But the human right committee, in one case, took a similar
position with that of the European convention. In its general comment #6, the human right committee
adopted certain obligations of states. one of the state obligations provided under general comment6 is
prevention of war. Every state has a duty to prevent war so as to implement the right to life which is
provided under article 6 of the ICCPR. A state has also duty to prevent security forces including military
and police from arbitrary killing of individuals. The committee, in its general comment, also goes on to
the extent that states have duty to take positive measures which include to reduce infant mortality and
increase life expectancy.
The right to life is nonderogable right according to article 4/2 of the ICCPR. But in some states,
particularly in Tanzanian constitution, it is clearly provided that the right to life is derogable. In Ethiopian
case, two arguments maybe raised. Some may argue that since we don’t find the right to life under the
list of nonderogable rights laid down in article 93 of the constitution, it is derogable. Others may argue
that according to article 13 of the constitution, our constitution must be interpreted inline with
international human rights instruments. The reason is that since Ethiopia is party to the ICCPR, the right
to life is nonderogable right [art. 4 of the ICCPR]. More over, article 9/4 of the constitution provides that
international agreements which are ratified by Ethiopia are considered as domestic law of the country.
Ethiopia became party to the ICCPR since 1991. But the human right committee did not say anything
about the constitutional provision of Ethiopia concerning the right to life. When we see the report
submitted by Tanzania, which clearly says that the right to life is derogable, the human right committee
recommended in its concluding observation that Tanzania must change its constitutional law. this shows
that the human right committee does not raise any concern unless there is an explicit provision that
makes the right to life derogable.

Can the right to life also include negative right? for instance, in case of freedom of association, every
individual has the right to come together with others and form association. But at the same time, every
individual has the right not to associate with others. Can the right to life include the right not to live? Or
can the right to life include the right to die? The phrase “inherent right to life” under article 6 of the
ICCPR indicates that a person cannot take away his right to life. However, this issue has never come
before the human right committee so far.

The right to equality and nondiscrimination:

Article 2 of the ICCPR talks about nondiscrimination in the enjoyment of the rights that are provided
under the covenant. Article 2/1 reads;

1. Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status. In
particular, article 26 of the same covenant deals with the right to equality. It states that

All persons are equal before the law and are entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal
and effective protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status. Article 3 of
the same covenant also prohibits discrimination. It reads

The States Parties to the present Covenant undertake to ensure the equal right of men and women to
the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4 also prohibits discrimination during state of emergency. It there any difference between the
right to equality and nondiscrimination? When we talk about nondiscrimination under international
human rights instruments, it relates to the rights that are provided within the convention. For instance,
article 2 of the ICCPR relates to all rights that are provided in the covenant. Every state must not make
discrimination on those prohibited grounds when it guarantees the enjoyment of rights within its
jurisdiction. So it applies to all rights. But article 26 stands by its own. It prohibits making distinction in
any kind of law. if the right to life is guaranteed to a certain category of people and denying other
category, it will be violation of nondiscrimination. But if a certain law of any state party to the ICCPR
makes any kind of distinction, that will be violation of the right to equality before the law. so article 26
relates to any legal right that is guaranteed or protected within the state party to the ICCPR. What does
it mean by discrimination? We don’t have a general definition of discrimination that applies for all rights.
CERD clearly defines what racial discrimination is. similarly, CEDAW defines discrimination against
women. In its general comment 18, the human right committee understood discrimination to include at
least four things. These are distinction, exclusion, restriction and preference. Discrimination is any
distinction, exclusion, restriction or preference which has the effect of nullifying or impairing the
enjoyment of the rights recognized under the covenant.

A distinction, exclusion, restriction or preference which has the effect of nullifying or impairing the rights
that are enjoyed by individuals under the covenant is called direct discrimination. Even if it does not
have the purpose of making distinction between individuals, the final effect of a certain act may be
discrimination. This is considered as indirect discrimination. the principle of equality sometimes requires
state parties to take affirmative action. Under paragraph 10 of the above comment, the human right
committee stated that affirmative action is not a violation of nondiscrimination. The committee said that
the principle of equality sometimes requires state parties to take affirmative actions in order to diminish
or eliminate the continuation of discrimination. equal treatment of equals is regarded as equality. But
unequal treatment of unequals is again considered as equality. For example, affirmative action, which is
unequal treatment of unequals,would not be considered as a violation of nondiscrimination. In
paragraph 18 of general comment8, the human right committee observed that not every differentiation
will constitute discrimination. in this regard, the committee adopted two criteria. The first one is that if
the criteria for such differentiation are reasonable and objective and the second one is that if the aim is
to achieve legitimate purpose between individuals. – vs Canada case can be taken as one example. In
this case, that individual was a Canadian worker in railway company. All workers who work in that
company were required to wear protecting helmet. But that individual was follower of Seik religion
which orders to wear another kind of helmet. The company required that individual to remove his hat
and wear protecting helmet. Then, the case was brought before the human right committee. He argued
that even though the company did not have the purpose of making distinction between individuals, it
had the effect of nullifying the enjoyment of his right to religion. But the human right committee did not
find any violation. Because the prohibition was fore legitimate purpose which is protection of workers
from danger.

Some of the prohibited grounds of discrimination are race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth and other status. In Mauritian women case, the
human right committee found a violation of the right to equality on the ground of sex. In Mauritius, if a
Mauritian man marries a foreign national, she will have the right to residence. But if a Mauritian woman
marries a man who is foreign national, she will not be allowed to reside in Mauritius. 19 mauritian
brought the case before the committee and the committee found a violation of the right to equality on
the ground of sex. In another case between Trun vs Australia, the issue of sexual orientation was raised
before the human right committee. Sexual orientation is a choice or preference of sex. In the above
case, an Australian state called casmania prohibits homosexuality. That individual argued that
prohibiting homosexual relation is a discrimination on the ground of sex orientation. The human right
committee found that the ground of sex also includes sex orientation. The committee said that it is
totally prohibited to make any discrimination on the basis of preference of sex.

Arguments against Esc rights:

The critics of economic, social and cultural rights argue that a right cannot be regarded as justiceable
unless it can be brought before a court of law. But for most international lawyers, this amounts to
emphasizing an argument at national level. Whether a right can be invoked in a court of law must be left
to the state in international law. so far as a state recognizes a certain rights and obligations , it exists
substantive justiceability. It doesn’t matter whether the state allows or provides procedures by which
those rights are invoked in the court of law. it suffices if a state recognizes economic, social and cultural
rights. it is the option of a state to decide how to enforce those recognized rights of individuals. That is
why scholars make distinction between procedural and substantive justiceability. However, since 1993,
the arguments on the issue of justiceability of economic, social and cultural rights is outdated. In 1993,
the second world conference on human rights was conducted in Vienna. The Vienna declaration on
program of action recognized the indivisibility, enterdependence and interrelatedness of human rights.
even before that, at national level,states were incorporating Esc rights as equal level with civil and
political rights. certain states make some distinction of human rights in their constitution. For instance,
the constitution of india makes a difference between fundamental rights and directive principles.
Fundamental rights include the right to life, liberty and the like. Directive principles include the right to
education, the right to work and the like. The Ethiopian constitution divides human rights in to human
rights and democratic rights. it also talks about national policy objectives and principles under its
chapter ten. Social, economic and cultural objectives are the objectives incorporated in our constitution.

Article 37 of the Indian constitution clearly provides that directive principles of state policy cannot be
invoked in the court of law. the same provision is included in Nigerian constitution. In Ethiopian
constitution, the way Esc rights are formulated is different from civil and political rights framed. For
example, article 41 is not framed in terms of individual entitlement. It talks about state duty which is
more or less similar with national policy principles. Making distinction between fundamental rights and
directive principles has its own consequence; that is, directive principles are considered as
nonjusticeable and cannot be invoked in a court of law. but when we come to Ethiopia, making
distinction between human rights and democratic rights does not achieve any purpose.

Another argument in connection with Esc rights is that Esc rights are not human rights. the proponents
of this argument say that human rights are only concerned with life, liberty and property or happiness. It
does not include the right to education, health, work, social security, so and soforth. Those scholars
argued on the perspective of liberal view. According to john locke, the only inalienable rights in natural
law are the right to life, liberty and property. The proponents further argue that ICESCR reflects only the
policy options of states. they also say that Esc rights are not legal rights so long as they are not subject to
legal process. put in other way, Esc rights are not justiceable and cannot be played before a court of law.
their reason is that there is no any international instrument that provides for individual complaint
mechanism that allows individuals to bring their communication before an international institution. In
this regard, there is a counter argument given by other international lawyers. They say that the issue of
nonjusticeability is not raised since there are international instruments which provides individual
complaint mechanism. For example, the optional protocol to the ICESCR will be interred in to force on
may 5 2013. Even before this protocol, there are conventions which entertain individual
communications. For example, CEDAW, which contains Esc rights allows individuals to submit their
complaints to the committee of CEDAW. This shows that Esc rights of women have justiceable matter at
international level even before the entry in to force of the optional protocol to the ICESCR. This gives Esc
rights similar position with that of civil and political rights. the justiceability of Esc rights at domestic
level is also ascertained through different cases. For instance, in SERAC vs Nigeria case, the court stated
that the right to education under article 15 of the African charter on human and peoples’ rights is
justiceable. In the same case, the African commission on human rights said that there is no right in the
African charter that cannot be effected. Regarding the legality of Esc rights, there are legal processes
and procedures for claiming the violation of Esc rights both at domestic and international level.

the critics of Esc rights also say that Esc rights can be included in civil and political rights. they argued
that it is not necessary to recognize Esc rights as a separate right because, civil and political rights do
have a social dimension. The basis of their argument is the jurisprudence of the human right committee
and the European court on human rights. the European court said that Esc rights can be claimed through
civil and political rights since the European convention on fundamental rights and freedoms has social
dimension. The same is true in the human right committee. We also find the same jurisprudence at
national level.

There is a counter argument for the above idea. This countr argument says that if Esc rights are not
recognized separately, it would not be fully protected. For instance, if the human rights committee
protects Esc rights which have not been provided in the ICCPR, it will only be incidental protection. It will
not be full and comprehensive protection of Esc rights. the same is true for the European human rights
system. Because of this, it is better for having comprehensive complaint procedure at international level
that has already been done under the optional protocol to the ICESCR.

The critics also state that Esc rights are fundamentally different from civil and political rights. according
to their belief, Esc rights require positive actions and resources. For instance, in case of the right to
health which is one of the social rights, the state must build hospitals and other necessary materials to
provide an individual with basic health care. This requires a lot of resources. But when we take the right
to life, the only thing that we are supposed to do is refraining from interference with the enjoyment of
individuals’ right to life. In this case, there is no need for the provision of resources. The states are not
supposed to do any thing in the protection of civil and political rights. this also has its own
counterargument. As this counter argument, not only Esc rights but also civil and political rights require
positive actions. For instance, to protect the right to fair trial, the state must, at least, establish courts
and train judges. This shows that civil and political rights also require positive actions. The only
difference existing between the two is not a matter of principle. Rather, it is a matter of degree. The
level of resources required for realization of Esc rights is higher than the level of resources required for
realization of civil and political rights.

The Other argument is that Esc rights are relative. The basis of this argument is article 2 of the ICESCR.
Article 2 of the ICESCR provides that state parties have undertaken to take steps to achieve progressively
the full realization of the rights recognized under the covenant with the maximum available resources.
Article 2 of the ICCPR imposes the same obligation on state parties. The obligation of states under the
ICESCR however, is based on the availability of resources, or progressive achievement of rights or taking
appropriate measures or achieving full realization. As a result, the contents of Esc rights are not basically
determined that is why they say Esc rights are relative. The obligation of states depends on resources.
And, as you know, resources are not evenly distributed in the world. It is not uniform across all states.
They say that Esc rights are relative Since their realization is dependent on the resources exist in a given
state party. The counter argument of this argument states that the ICESCR only makes distinction
between the fact that all states have a different factual basis when they begin the realization of Esc
rights.

The final argument raised in connection with Esc rights is that Esc rights are vaguely formulated. Most
of the provisions of the ICESCR are vague. For instance, the phrase (has undertaken to achieve) is vague
and cannot easily be understood. The counter argument is that civil and political rights are also equally
vague. Most of the above arguments enable us to see the position towards Esc rights, i.e. how
historically Esc rights have been opposed. But Those arguments are no longer raised today.

State obligations under Esc rights:

General comment No. 3 of the committee on Esc rights deals with state parties’ obligations under the
ICESCR. In that general comment, the committee on Esc rights analyzed article 2 of the covenant which
provided as state parties are undertaken certain obligations. As we have said, some of the arguments
against Esc rights are the issue of resources, full realization and the issue of appropriate measures. The
committee on Esc rights says that states are required to achieve a full realization of Esc rights
progressively. This means that there is no immediate obligation imposed on state parties. The corollary
is that if states are only required to achieve the full realization of Esc rights progressively, then, they are
not required to take any immediate obligation. but the committee said that the state parties do have
immediate obligations such as obligation to take steps and to ensure nondiscrimination in the
enjoyment of the rights recognized under the covenant. There should not be any discrimination in the
recognition and implementation of the rights under the covenant. So it would not be logical if a certain
state raises the issue of resources for its failure to ensure nondiscrimination.

Because taking steps does not depend on availability of resources. State parties to the covenant takes to
guarantee that, the rights enunciated in the present covenant will be exercised without discrimination
of any kind. States must take all appropriate means including adoption of legislative measures. Actually,
all states have their own legislative organs which pass laws by which they are governed. So taking
legislative measure does not require additional resources. The committee said that legislative measures
are desirable in some cases, but they are indispensable in other cases particularly in protection of the
rights of the child and mothers, the right to health, education and the like. Legislative measures is not
the only appropriate means. The phrase (by all appropriate means including adoption of legislative
measures) under paragraph 1 of article 2 of the covenant indicates that, the measures are not
exhaustively listed. For example, Judicial measure can be taken as appropriate means.
Nondiscrimination can be promoted by the provision of judicial measures without providing any
additional resources. The committee referred some provisions of the covenant particularly article 3, 7
paragraph 1, 8, 10 paragraph 3, 13 paragraph 3(a) and 15 paragraph 3. The committee clearly explained
that rights under those articles of the covenant are capable of immediate judicial application. For
instance, article 3 talks about equal enjoyment by men and women of all economic, social and cultural
rights. men and women shall equally enjoy all rights recognized in the covenant. This is the principle of
nondiscrimination. So in this regard, without any additional resources, the state must take immediate
judicial application to ensure nondiscrimination. Similarly, article 7 paragraph 1 talks about equall pay
for equal work which is also connected with nondiscrimination. This is also capable of immediate judicial
application without any additional resource. The same is true for remaining provisions mentioned
above.

The committee also took primary education provided under article 13 paragraph 2(a) as immediate
obligation of states. this paragraph states that primary education shall be compulsory and available to
all. But there is nowhere that the covenant requires provision of free social services. When they were
negotiating, states were convinced that all states in the world are capable of providing free and
compulsory primary education without any kinds of fee in return. The committee also gives other
categories of measures such as administrative, financial or budgetary, economic, social measures and
the like. Establishment of institutions like human rights commission, ombudsman and other organs
which ensure equality may be regarded as administrative measures. Budgetary issues are taken as
financial measures . the best example is allocating of budget to a certain sector.

The other issue the committee dealt with in the general comment No. 3 is that the issue of achieving
progressively the full realization of rights. the full realization of economic, social and cultural rights will
not be achieved in short period of time. That is why the ICESCR uses the word progressive realization
which will take a long time. So to achieve the full realization of the rights progressively, states should
take steps called minimum core obligation. under paragraph 10 of the general comment 3, the
committee states that a minimum core obligation to ensure the satisfaction of minimum essential levels
of each of the rights is incumbent upon every state party. This minimum core obligation must be applied
by state parties within a short period of time. According to the committee, if there is lack of essential
food staff, essential health care, basic education and basic shelter, the state party is in violation of the
covenant. So the committee lists some minimum core obligations which ensure the protection of the
above basic rights. as a principle, there is no state that going to be in violation of Esc rights since the full
realization of Esc rights will be achieved in a long period of time. But there are cases where states are in
violation of Esc rights. because if a state fails to provide essential food staff, essential health care, basic
education and basic shelter, that given state will be held in violation of Esc rights so long as it does not
fulfill its minimum core obligations. But the provision of essential food staff, health care, basic education
and shelter depends on availability of resources. A state cannot use this as a defense unless it shows
that it has taken all possible efforts.

The committee also made emphasis on the issue of resources under paragraph 13 of general comment
3. It says that it is not sufficient to use the resources existed within the territory of a state. A state which
does not have available resource must obtain additional resources from other states. as the covenant
provides, states must take steps to achieve the full realization of Esc rights individually as well as
through international assistance and cooperation. The word (individually) here indicates that a state
must use its available resources to the maximum possible. But the covenant also goes to international
assistance and cooperation. A state must not depend on its resources. It must also seek international
cooperation specially economic and technical cooperation. In paragraph 14 of the general comment 3,
the committee indicated that according to article 55 and 56 of the UN charter, international cooperation
for development and thus for the realization of Esc rights is an obligation of states. so states are
required the extra territorial application of the covenant. International assistance and cooperation is
required only from the states which have capacity to give cooperation. For instance, the committee does
not expect developing countries to give international aid.

In most of its general comments, the committee usually emphasizes on the elements which explain the
normative content of substantive rights that are guaranteed under the covenant. The elements that the
committee usually deals with are availability, accessability, acceptability adaptability and adequacy.
When we talk about availability of education, we are talking about the existence of educational
materials such as schools and text books. Availability refers to the existence of some social or economic
goods which help to realize Esc rights. availability is not sufficient in its own. It must also be accessible.
the element of accessibility includes physical, economic or affordability, information accessibility and
nondiscrimination. If we take the right to health, health institutions must be proximate. In terms of
distribution, it must be close to all citizens. Acceptability of Esc rights talks about whether they are
compatible with the culture of the society. For example, regarding the right to food, it would not be
acceptable by the society if the government provides a kind of food which the society does not need.
Concerning the right to education, the contents of curricula of education must be acceptable to the
society. Adaptability means providing social and other goods with changing needs of the society.
Regarding adequacy, the provision of social services and other goods must be sufficient in terms of
amount.

Rights of women:

CEDAW is the main source of women’s rights. ICESCR, ICCPR, CERD, CRC and other major conventions
also protect the rights women. For instance, the rights of the child recognized under the CRC equally
applies both to boys and girls. There were major international law instruments which deal with women’s
rights even before the entry in to force of CEDAW. For example, the UN charter recognized the equal
treatment of women and men. The ILO conventions No. 100 of 1951, 111 of 1958 and 156 of 1981 also
contained the rights women. CEDAW was adopted to address some issues which were not answered by
other conventions. CEDAW made some substantive interventions in certain areas. For example, in the
area of the legal status of women, it addressed in more detail than other conventions. CEDAW gives
more emphasis on the issues of nondiscrimination, education, employment and economic issues. The
main substantive intervention of CEDAW relates to reproductive rights. other conventions do not deal
with reproductive rights. the other area that CEDAW made advanced intervention is in respect of
fundamental rights connected with cultural or traditional values which restricted women’s rights.
CEDAW prohibits traditional practices which have negative impact on the women’s rights. in regard to
state obligation, article 2 of CEDAW provides that state parties condemn discrimination against women
in all its forms agree to persue by all appropriate means and without delay a policy of eliminating
discrimination. the committee of CEDAW adopted general recommendation No. 28 on article 2 and
identified several issues concerning the rights of women. The first point the committee dealt with that
general recommendation is the issue of discrimination in detail. The committee reiterated to adopt the
definition of discrimination against women. Article 1 of CEDAW defines discrimination against women as
any exclusion, restriction or distinction based on sex which has the effect of impairing or nullifying the
rights of women. It made distinction between discrimination based on sex and discrimination based on
gender. The committee, in the above general comment, states that even if CEDAW emphasizes on the
discrimination on the ground of sex, it includes discrimination on the basis of gender. Article 1 of CEDAW
talks about discrimination against women only based on sex. The committee however interprets that
from the cumulative reading of article 1 and article 2 of the convention, it is possible to deduce that the
convention also prohibits discrimination on the basis of gender. According to the committee, sex refers
to biological difference between men and women. whereas, gender refers to socially constructed
identities or attributes and roles. Even if it is not clear from the text of the convention, the committee
says that discrimination against women also includes violence against women and gender based
violence. violence against women and gender based violence were addressed in general
recommendation No. 19 of the CEDAW committee. Violence against women results in violation of other
several rights. regarding VAW and gender based violence, every state party has obligation particularly to
investigate, prosecute and punish individuals who violate the rights women guaranteed under the
convention. The police has a mandate to conduct investigation even by using its force if it deems
necessary. The CEDAW also made difference between direct and indirect discrimination. direct
discrimination against women constitutes different treatment explicitly based on the ground of sex or
gender differences. Indirect discrimination occurs when law, policy program or practice appears to be
neutral which has ultimately the effect of discrimination. there is also difference between discrimination
by acts and omission. If a state fails to pass legislations, regulation or policy programs which redress
discrimination against women, this state will be considered as it committed causes discrimination by
omission. If a state passes a legislation which makes discrimination between men and women, this will
be regarded as discrimination on the basis of acts. The committee identifies condemnation of
discrimination as immediate obligation of state parties. State parties have an immediate and continuous
obligation to condemn discrimination by using legislations, policy programs, media and other possible
actions. There are 3 levels of state duties. These are obligation to respect, protect and fulfill. These
obligations were enunciated very clearly by the committee on Esc rights. in case of duty to respect,
states must avoid laws, administrative procedures and policy programs which make any discrimination
against women. Regarding the obligation to protect, states must protect private actors by regulating
their conduct which may cause discrimination against women. For instance, private employers may deny
women’s constitutional right of maternity leave. In case of duty to fulfill, the committee says that every
state party must achieve defacto and dejure equality between men and women. According to the
committee, this will be achieved by taking temporary special measures provided under article 4 of the
convention. Defacto equality talks about substantive equality while dejure talks about formal equality.
Temporary special measures is synonymous with affirmative action. Affirmative action is an exception to
the right to equality. The purpose is to achieve substantive equality. The committee also identified 2
kinds of obligation. these are obligation of conduct and obligation of result. Obligation of conduct is a
duty of state to do something such as pass laws, adopt policy programs and national plans. Then, these
legislations, policy programs and national plans must produce some results. These conducts must
increase the equality of men and women, otherwise, a state does not achieve its obligation of result.
The committee stated that obligation of states to protect and enforce the rights of women continues
even during armed conflict and state emergency. As it is clearly seen from general recommendation No.
28, derogation is impossible under CEDAW. The committee also explained the issue of extra
territoriality. The CEDAW has extra territorial application or effect. It may apply to noncitizens such as
migrant workers, refugees, asylum seekers and stateless women. For instance, Ethiopia is responsible
for the rights of Eritrean women who live within the territory of Ethiopia. The above general
recommendation also says that obligation of states applies without discrimination both for citizens and
noncitizens. State parties are responsible for all their actions affecting human rights regardless of
whether affected persons are in their territory. The committee also emphasized the compounded
negative effects of different kinds of discrimination such as on the basis of race, ethnicity, religion,
status, culture and so on. Women may suffer double discrimination on those grounds. Girl child is
another issue dealt with by the committee. It said that special emphasis must be given to the girl child in
terms of education, prohibition of trafficking and prohibition of sexual abuses of the child. Policy must
be initiated by the state parties in that [Link] must assess the level of realization of women’s
rights on the ground and initiate and formulate policies. Policy includes study or evaluation of the
situations on the ground. The policy the state adopts must be comprehensive. It must address
discrimination against women both in public and private spheres. The policy must be prepared on the
basis of consultation which ensures women participation. Finally, the committee emphasized the issue
of remedies. When women go to the court, the court must be capable of addressing the rights of
women. The court must apply the provisions of law which are in force, and must provide remedies.

The rights of the child

The main source of the rights of the child is convention on the rights of the child. CRC is not the only
convention which deals with the rights of the child. The rights of Children are also specifically stated in
the ICCPR.

Obligations of state parties:

Article 4 makes distinction between civil and political rights and Esc rights. it says that state parties shall
take all appropriate legislative, administrative and other measures for the implementation of the rights
recognized under the CRC. Even though article 4 does not refer civil and political rights, the second
sentence of the article with regard to Esc rights, state parties shall undertake such measures to the
maximum extent of available resources, and when needed, depending on international cooperation. The
legislative measures that have to be taken by the state parties is common to all. Article 4 implicitly
recognizes the progressive realization of Esc rights of the child. One of the legislative measures that has
to be taken is on the issue of harmonization. Meaning that the state must review its laws. The state
must check its laws whether they are compatible with the rights of the child. Not only revision, but there
should be amendments if there are provisions which are incompatible. Laws should be inline with the
CRC. The committee requires to make the laws on rights of the child comprehensive. In its concluding
observations, the committee requires that state parties must have comprehensive child law. it also
requires the status of the CRC. Meaning that, CRC should be recognized in the constitutions of the state
parties. Not only this, the rights under the CRC can be invoked in national courts. The committee also
requires that the CRC must prevail if there is a conflicting laws. Regarding religious laws, the committee
on the rights of the child says that it must be interpreted in light of the principles of the CRC. States must
also take effective remedies. For children, there must have effective remedies when there are violations
of child rights. the allocated state budget must be used priorly to protect child rights. finally, concerning
international cooperation, states which have a means must provide assistance for the other states.

Regarding principles of the convention, the best interest of the child, nondiscrimination, the right to life
and survival development are general principles of the CRC.

The provision of the CRC defines what the child means. It states that child is a person who is below the
age of 18 years unless national laws provide another majority. The convention does not provide the
beginning of childhood whether it starts from the date of conception or date of birth. Some state parties
may make the attainment of the childhood below the age of 18 in their national laws. But in this regard,
the committee on the rights of the child takes its stand that this does in no way take away the rights of
the child.

With respect to the principle of nondiscrimination, article 2 of the convention discusses the prohibition
of discrimination on the grounds of race, colour, religion, sex, and other grounds. Apart from those
prohibited grounds of discrimination, the convention provides that children shall not be discriminated
on the basis of the view, race, religion, ethinicity or language of their parents. It also considers disability
as one ground of discrimination. the committee on the rights of the child also clearly states that there
should not be discrimination on the ground whether the children or their parents are refuges, asylum
seekers or migrants. However, this ground of discrimination has not been provided in the convention.
Particularly, in case of nondiscrimination, the committee emphasizes on the data that are submitted by
state parties in their reports. Because the committee requires segregated data between girl child and
boy child to make sure whether nondiscrimination exists.

The other principle incorporated in the convention on the rights of the child is the best interest of the
child. This is enshrined in article 3 of the convention. this principle was first incorporated in 1959 of the
UN declaration on the rights of the child. Article 3 of the CRC reads, in all actions concerning children,
whether undertaken by private or social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interest of the child shall be a primary consideration. Article 36 paragraph 3
of the FDRE constitution also recognizes the principle of the best interest of the child. Article 3 of the
CRC helps to interpret the whole provisions of the convention. It also assists in resolving conflicts
between the provisions. the convention does not give any definition for best interst of the child. One
celebrated scholar defines the best interest of the child as basic interest,, developmental interest or
autonomy interest. Basic interest includes physical, emotional and intellectual care, while
developmental interest is the possibility of allowing the child to inter in to adulthood. Autonomy
interest, on the other hand may be freedom of choosing one’s own way of life. But other say that best
interest of the child is the satisfaction of material needs of the child.

The best interest of the child is justified on the ground that children have a right to have priority for their
welfare. The best interest of the child is also necessary to make children successful adults. The first
proposal which was included in the 1959 UN declaration stated that the interest of the child shall have
paramount consideration. But article 3 of the CRC uses the term (shall be a primary consideration).
There is actual difference between paramount consideration and primary consideration. If the
requirement of paramount consideration is adopted, the issue of justice, the interest of the society and
other victims of individuals will not be taken in to account. No care would be taken for other individuals
who were victims. But in case of primary consideration, the interest of the child has absolute priority
that it has to be seen first. The interest of the child will prevail over any other interest.

The rights of indigenous people

The recognition of the rights of indigenous people is mainly because of their struggle. We do not have a
clear cut definition for the term indigenous people. But at least for the academic purpose, indigenous
people refers to decedents or pre settled inhabitants who are today surrounded or occupied by other
colonists. We call them indigenous because, they are the first or the original inhabitants of a particular
teritory. We say them people because, They are totally distinct community from mainstream population.
Peoples who migrated from Europe to Americas and austoralia are called mainstream population.
Whereas, peoples who previously inhabit in those areas are called indenegous.

To date, we do not have any convention which recognizes the specific rights of indenegous people. As
we well know, the rights incorporated in treaties are the result of general agreement of states. Most of
the time, the representatives of states are not from indigenous community. they are from mainstream
population class. So they will not accept and recognize the rights of indigenous people. When we look at
the particular situations of indigenous peoples, their land and natural resources were taken away by
colonists who are the second people to the place. They were pushed away from their territory. Because
of this, they were to some extent deprived of their means of survival. Their political institutions and
cultural patterns were suppressed by political institutions and cultural tradditions of the colonists who
came later. From that perspective, they became totally disadvantaged. They also had the lowest
opportunity for socio-economic framework such as education, political participation, access to social and
economic facilities and the like.
The global development of the rights of indigenous people

The first action of the united nations regarding indigenous people traced back to 1970s. in 1971, the
Ecosoc authorized the sub commission on human rights, which deals with prevention of discrimination
and protection of minorities, to make study the situations of indigenous people. Having conducted its
study, the above mentioned sub commission compiled a very comprehensive data. And it recommended
the establishment of working group on indigenous people which took effect 11 years later. In 1982, the
human rights commission established a working group on indigenous people. In 2000, the Ecosoc again
established the permanent forum on indigenous people which discusses the issues of indigenous
community. One year later, in 2001, the human rights commission took a mandate to establish special
rapportor on the rights of indigenous people. Even After it replaced the commission, the human rights
council extended the existence of that special rapportor. We have still a special rapportor working on
the rights of indigenous people. When we see the mandate of this special rapportor, he/she particularly
works on conducting research on series of topics, making reports, promoting good practices and to
some extent, acting on communications. Another important step in the development of the rights of
indigenous people is the establishment of UN declaration on the rights of indigenous people. That
working group which was established in 1982 adopted the draft of this declaration 1993. 1995, the
working group submitted its draft declaration to the human rights commission. Since they are experts,
the members of that working group were not sensitive about the political situations of their country. as
it has been discussed in previous sections, the members of the human rights commission are
representatives of states who are politicians. So they are more concerned about the issues of indigenous
people. Because, in most cases, the issue is about the recognition of the rights of indigenous people to
self determination. For instance, the mentioned declaration recognizes the rights of indigenous people
over their traditional land or territory and natural resources. It also recognizes about the development
of indigenous people and their culture. As we can understand from this, it has severe political and
resource based consequences for states. The declaration on the rights of indigenous people was
adopted in 2006 after the human rights council replaced the commission. This declaration was not
automatically adopted by the general assembly because of the position taken by African states. First,
indigenous people are not a kind of people more living in Africa. We may talk about south Africa where
we find a large population of white colonists. But in other African states, we do not find settlers as
much. So from the very outset, African states felt that the issue of indigenous people does not concern
them. Accordingly, They were not this much intrusive in that issue.

The group of African states in the general assembly proposed the deferment of adoption of the
declaration on the rights of indigenous people. The position of African states in this regard is that, every
individual in Africa is indigenous. And they will not accept any international instrument which gives
superior protection for one group of people over the others. The most central issue is that, if we give the
right to self determination to certain groups in Africa, these groups will have destabilization
consequence on Africa. it may also bring about instability in the continent.

After making further negotiations, African countries later agreed to adopt the declaration. recently,
there are NGOs working on indigenous people, and there are communities who are claiming that they’re
indigenous.
The declaration on the rights of indigenous people contains around 46 articles. It touches upon every
issue which affects the rights of indigenous people in very detailed manner. But mainly, it recognizes
collective rights of indigenous people to self determination, culture, development, socio-economic
services and traditional territories. Because the way of life of indigenous community is more of
collective. With regard to the right of self determination, the declaration affirmed dual aspects of self
determination. On one hand, it recognizes the autonomy or self governance of indigenous population
over local or internal matters based on their political institutions and cultural patterns. This indicates
that there is no need to refer the institutional set up of others. There is no need of imposing the
developed set up of colonists on local or internal matters of indigenous community.

On the other hand, it ensures the participation of indigenous people in state affairs. they must be
represented in the government which consists of the mainstream population. in terms of their land and
natural resources, the declaration gives the remedy of restitution. If the remedy of restitution is
impossible, the state must give compensation for those affected indigenous people.

Another international instrument which recognizes the rights of indigenous community is the ILO
convention No. 169 on the rights of indigenous and tribal community. It was adopted in 1989. We have
also the ILO convention No. 107 which deals with the rights of indigenous people. It was adopted in
1957. Though their title is almost the same, they are totally different. The ILO convention No. 107
focuses on assimilation of indigenous and tribal communities to the mainstream population. . but in the
1989 ILO convention, we see a paradign shift on the issue of indigenous people. It adopts the total
recognition of indigenous people to maintain their culture, language, religious and traditional values
intact. It totally shifted the assimilation policy to recognition policy. The UN declaration on the rights of
indigenous people is an affirmation of rights which are recognized in other instruments.

Coming to conventional mechanisms, there is no any distinction in the application of the ICCPR to
indigenous people and mainstream population. . For example, article 1 of the covenant which recognizes
the right to self determination equally applies to indigenous people. The human rights committee
adopted general comment 33 on article 27 which recognizes the rights of minorities to enjoy their
culture, language and religion. In that general comment, the committee clearly stated that article 27 of
the covenant equally applies to indigenous people. In one individual complaintcase of Mayak vs Canada,
the committee also recognized that granting leases for oil and gas exploitation, within an acestoral
territory of Lubican lake band, is a violation of article 27 of the ICCPR.

The other treaty organ which recognized the rights of indigenous people is committee on Committee on
elimination forms of racial discrimination. the committee says that indigenous people are the most
vulnerable group to discriminations. It adopted general recommendation No. 23 concerning indigenous
people which is similar with that of general comment of the human rights committee.

At regional level, even though Europe is leading in protection of human rights, they are not much
concerned with the development of the rights of indigenous people. In America, the general assembly of
organization of American states authorized inter-american commission on human rights to come up
with a juridical instrument. The inter-american commission on human rights prepared draft declaration
in 1996. But that draft declaration has not been enacted by the OAS. Even if the draft declaration was
not adopted, the commission has dealt with the rights of indigenous people in different cases.
Particularly, in Maya communities vs -- case, the inter American commission stated that failure to
recognize and protect the maya customary land tenure is a violation of property right of indigenous
people. This is the major problem almost in all countries. The reason is, most indigenous people do not
have official title deed which ascertains their ownership of the land. Even they do not know the
existence of this formal structure like registering of land and acquiring certificate. In the absence of title
deed, the state takes the land away from those people. However, importantly, the inter American
commission on human rights stated that failure to recognize and protect customary tenure is considered
as violation of property right. American states were taking some areas of land from certain indigenous
community. But in one case, the inter American commission decided that taking the land of indigenous
community without consultation is a violation of the right to due process of law.

The inter-american court on human rights also dealt with the issue of indigenous people at least in 3
cases. In Sahomayasa indigenous community vs Paraguay case, the court held that acts of Paraguay is
violation of the right to life where it failed to take measures to improve the living condition of the
indigenous people. In that case, the land of that indigenous community was taking away by the state
and their natural resources were given to investors. Most of the people were dying since they did not
have any means for survival. Having observed this, the court decided that, Paraguay violated the right to
life of those indigenous people since it failed to take measures to improve the living conditions of
people. In Iyatama vs Nicaragua case, the court held that Nicaragua violated the right to political
participation of indigenous community. because it failed to take measures to involve those indigenous
people in state political participation. Political participation which is one aspect of self determination
was upheld in Iyatama vs Nicaragua case. The court applied some principles to reach on the above
decisions, particularly on the issues of property right. The first principle the court identified is that
traditional possession is equal to full title granted by state. In practice, the absence of title which is
granted by the state subjected those indigenous community to violation of most of their rights. But the
court clearly explained that traditional possession of indigenous people gives the right to demand
registration. The second principle is priority. It said that where traditional possessions are taken away,
they must be reinstated. Thirdly, if the act of state affects the innocent third party, the state must give
compensation. Generally, the jurisprudence of the American court shows that it recognized the
traditional tenure system of indigenous community as state system.

When we see the development of the issue of indigenous people in Africa, the African commission on
human and peoples’ rights seems to take a civil position in the state. But that position seems to have
been changed since 2003. In 2003, the commission adopted a working group on indigenous people. the
working group sent a mission to the republic of kongo and studied the situation in which pygmies were
used to live. finally, it produced its report. In that report, the working group condemned the master
system existed in kongo. in master system, the bantu usually had certain pygmies working on his farm.
Pygmies did not have any right of remuneration. They were only entitled to eat for their survival. The
bantu men were sexually abusing pygmy women. and these pygmy women were always left out of
home after they gave birth. As any transferable property, pygmies were transferred by succession or
donation. They did not have access to education and other social services. The situation was totally
serious which seemed equal to slavery.

In its final report, the working group identified certain criteria on the issue of indigenous people. As one
indication, it dictated that indigenous community are communities that are distinct from mainstream
community and whose culture is under threat. This was one criterion used by the working group and
later adopted by the commission. The second criterion used by the working group was that indigenous
community is The community that depends on the right to access to land and natural resources. Thirdly,
it used the experience of discrimination and marginalization as one standard. The concern of African
community with respect to the right to self determination of indigenous people was that it affects the
territorial integrity of African states. however, on the issue of self determination, The African
commission clearly held that, the right to self determination under article 20 of the African charter only
guarantees the right to internal self determination which will not affect territorial integrity of any state.
(south Cameron and Katangese people of DRC cases). The African states also believed that giving
recognition for indigenous community is tantamount to benefiting one group over the other. But the
commission, in this respect, held that recognition of the rights of indigenous people is only remedial. It
does not give right to indigenous people over the other group. The African commission identified certain
groups in Africa as indigenous community. Particularly in Ethiopia, it identified the people of Somali,
afar, agnuak, borenna and kereyu as indigenous. The identification standard used by the commission
was based on the dependence of a certain group on land and natural resources. For instance, if a certain
people of a community are dependent on hunting, gathering, pastoral life or subsistent agriculture, they
may be considered as indigenous community. This criterion was used for the purpose of addressing the
issues of indigenous people in Africa.

African human rights system

The African human rights system operates within an international political organization called African
union. The main document that provides for protection of human rights in Africa is the African charter
on human and peoples’ rights. that charter was followed by other human rights instruments including
African charter on the rights and welfare of the child and the additional protocol to the ACHPR.

There are also institutions which are used to enforce norms.

Distinctive features of the African charter

The first distinctive feature is indivisibility of the human rights. we said that the division of human rights
in to civil and political rights and economic, social and cultural rights is more of ideology. The preamble
of African charter clearly says that the enjoyment of civil and political rights cannot be disassociated
from economic, social and cultural rights. when we look at its content, civil and political rights are
provided from article 2 to article 13. From Article 14 to article 17, the right to property, the right to
work, the right to health and the right to education and culture are laid down respectively which are
more of economic, social and cultural rights. another kind of rights which makes the charter distinct is
collective rights provided from article 19 to article 24. These articles deal with the rights of people such
as the right to self determination, the right to enjoy natural resources, the right to development, peace
and security and the right of people to healthy and safe environment. Article 1 and 27 of the ICCPR
recognizes the right to self determination and the rights of national minorities to enjoy civil and political
rights respectively which are collective. But The African charter gives more emphasis to collective rights
compared to other international human rights instruments. It is peculiar, because it recognizes many
collective rights such as the right to development, the right to peace and security and the right to
general safe and healthy environment which have never been recognized by other international
documents.

The other feature that makes the African charter different from other general human rights instruments
is absence of derogation clause. Article four of the ICCPR allows state parties to suspend rights
guaranteed under the covenant during public emergency. In a similar facion, article 15 of the European
conven and article 27 of the American charter on human rights contain derogation clause. Even if it si
not in a very clear words, the onhly thing that the African charter recognizes is limitation of rights. article
27 of its charter talks about limitation. But it does not provide for derogation clause. The African
commission on human and peoples’ rights, with its power to interpret the African charter, clearly stated
that derogation is not allowed. In article 19 v. Eritrea case, an organization called article 19 brought a
case against Eritrea before the African commission saying that, Eritrea violated the African charter. In
that case, one of the defenses raised by the state of Eritrea was that, it was in the situation of war with
Ethiopia so that it had right to suspend some rights recognized in the African charter. But the African
charter objected its defense saying that even in the situations of state of emergency, a state cannot
suspend a right recognized in the African charter. According to the commission, the only ground that
justifies the violation of right under the charter is article 27 paragraph 2, which is about limitation. The
holding of the commission is very consistent with other cases.

The other peculiar feature of the African charter is the consent of duty. From article 27 onwards, the
charter provides for duties of individuals toward the family, the society, the state and international
community. We do not find similar duty in other general human rights instruments such as the ICCPR,
the European convention and the American convention on human rights. they are more limited to
provision of rights than duty. So this makes the African chahrter unique.

The African charter does not provide for the detailed list of rights. for example, the right to privacy, the
right to food and the right to water are not clearly recognized. But SERAC v. Nigeria case, the African
commission introduced the doctrine of implied rights. the commission makes its foundation depending
on article 60. It reads

Article 60
The Commission shall draw inspiration from international law on human and peoples' rights, particularly
from the provisions of various African instruments

on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of
African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United
Nations and by African countries in the field of human and peoples' rights as well as from the provisions
of various instruments adopted within the Specialized Agencies of the United Nations of which the
parties to the present Charter are members.

Relying upon the above provision, the commission adopted the doctrine of implied rights since the
charter omitted some rights. in SERAC v. Nigeria case, the commission found Nigeria in violation of the
right to food despite the fact that the African charter has no provision which recognizes the right to
food. The jurisprudence of the African commission indicates that even if the African charter does not
recognizes the right to food, it is implied from article 4 (the right to life) and article 16 (the right to
health). The commission based its reasoning on article four that if someone does not eat food, he
cannot survive.

As it was discussed before, regarding the implementation of the provisions of the ICESCR, article 2 of the
covenant stipulates that the obligation of states for realization of economic, social and cultural rights is
based on the resources of states. its progressive realization is achieved through time i.e., state parties
are not expected to implement Esc rights immediately. The formulation provided under article 2 of the
ICESCR was repeated in other conventions like article 4 of the CRC. But in the African charter, we do not
see any obligation of progressive realization. This makes the critics to question whether African
countries which are poor in resource can realize Esc rights immediately. But the African commission
interpreted the charter in a way to include the obligation of progressive realization of Esc rights. it said
that states have the duty of progressive realization of Esc rights. the commission explained that states
do also have immediate obligation. as we have previously discussed, the committee on Esc rights
identified 2 immediate obligations of states, the obligation of nondiscrimination and the obligation to
take steps. Apart from these obligations, the African commission, in its guideline of Esc rights, included
many immediate obligations such as obligation not to take a retrogressive measure, minimum core
obligation and obligation to take national plan of action. Put in mind that the African charter does not
make any distinction between civil and political rights and Esc rights regarding the obligation they
impose on states. article 1 of the charter imposes obligation on states to adopt legislative measures
under which they are treated in the same manner. It is the African commission which made the above
distinction.

Procedures of African commission

Interstate complaint procedures are laid down undr article 47 and the following of the African charter.
But to your surprise, till now, only one interstate complaint was brought before the African commission
i.e., DRC vs brundi, Uganda and ruwanda. Individual complaint mechanism was also set under article 55
of the African charter.
Concerning the requirements of admissibility of individual communications, the first requirement of
admissibility is standing. The African commission adopted more liberal principle of standing. As you
recall from the previous discussion, the human rights committee will not accept individual
communications from NGOs and class actions. But that is not the case in African commission. The
African commission is very liberal that it accepts individual cases not only from actual victims but also
from NGOs and class actions. More than 90 per cent of individual communications that were brought
before the commission were by NJOs, not by individuals. To mention some, the SERAC vs Nigeria and
article 19 vs Eritrea cases were brought to the commission by NGOs. Ignorance of the charter and lack of
resources are the major reasons why individuals cannot bring complaints before the commission. The
African commission gives observer status to NGOs, and affiliate status to national human rights
institutions. So NGOs can participate in the proceeding of the African commission. Even NGOs which
have no legal basis in Africa and Persons who are not Africans can bring complaints before the
commission. The admissibility procedure is provided in article 56 of the charter. Paragraph 1 of this
article states that the author must be known. Concerning the compatibility requirement, all the
requirements that we have discussed under the human rights committee are applicable to the African
commission. Paragraph 5 of article 56 of the charter clearly requires that domestic remedies must be
exhausted. In Jiwara vs gambia case, the African commission held that domestic remedies must be
available, adequate and effective. When we see the issue of time, the European convention requires
that a case must be brought within 6 months after domestic remedies are exhausted. But there is no
such requirement of time under the African charter. It only requires to be brought within reasonable
period.

The other admissibility requirement under the African charter is duplicating procedure. Cases which
have been examined by another international procedure are not considered by the African commission.

The African court on human and peoples’ rights

it is composed of 11 judges. They meet together in arusha, Tanzania only when there are cases. The
African court protocol has several differences with European court. In Europe, every individual of
member states have access to the European court on human rights. but in Africa, only state parties to
the African commission have access to the African court as it is laid down in article 5 of the protocol.
Regarding the admissibility procedure, the African court protocol makes reference to article 56 of the
African charter. So it is more or less similar with that of the african commission. Only member states of
the African commission and African intergovernmental organizations have access to the African court.
Even the African committee of experts on the rights and welfare of the child does not have access to the
African court. However, as an exception, article 34 paragraph 6 of the protocol provides that states can
make declaration to allow an individual or NGO to submit cases to the court. Accordingly, only 6 states
namely Ghana, burkinafaso, mali, Tanzania, ruwanda and Malawi made declaration for allowing
individuals to submit their cases. So individuals and other NGOs in these states can bring their cases to
the African court since they accepted its competence. Most of the cases which were brought to the
African court were rejected on the ground of lack of standing. The brumbaye vs Senegal was brought to
the court. But it was rejected because of lack of standing.
When we compare the African commission with african court, the African commission does not have
power to render a binding decision. The only power the commission has is making recommendation. the
recommendation of the commission may only be binding if it is adopted by the assembly of ipso states
and governments of the African union. Other wise, it has no binding effect on the states. but the
decision of the African court is binding as laid down under article 13 of the protocol. The African union
has two major organs namely, the assembly of ipso states and governments and the executive council.
The executive council of the AU is composed of the foreign ministers of African states. so they are
required to put pressure on other states to implement the decisions of the African court on human and
peoples’ rights.

According to article 45 of the African charter, the African commission is mandated for promotion and
protection of the human rights and interpretation of the African charter. Article two of the protocol to
the African charter also clearly states that the mandate of the African court is to complement the
protective jurisdiction of the African commission.

The European human rights system

The European human rights system works within the council of Europe. The council of Europe consists of
47 member states. the major instrument of human rights in Europe is the European convention on
fundamental rights and freedoms. The council of Europe is totally different from the European union.
The European union has its own instrument called the European charter on fundamental rights and
freedoms which is implemented by European court of justice. This court is found in Belgium Brussels.
The European union was established in 1949. One year later, it adopted the European convention on
human rights. it has 27 member states. But here, the main point that should be underlined is that the
major human rights system in Europe is not within the European union. Rather, it is under the council of
Europe. the supervisory mechanism of the council of Europe is the European court on human rights. it is
found in france.

the European convention on human rights deals with civil and political rights. it does not contain Esc
rights. it has about 14 additional protocols. these protocols made several procedural as well as
substantive amendments to the European convention on human rights. in 1990, one of the protocols
amended the convention by adding the right to education.

Apart from the European convention on human rights, there are other conventions in Europe. One of
these conventions is the 1987 European convention on prevention of torture and cruel and inhuman
treatment. Its implementive body is the committee on prevention of torture. This committee examines
the European countries regarding torture and makes reports. But it does not make binding decisions like
the European court on human rights.

The other one is the European social charter which was adopted in 1961. This social charter deals with
economic, social and cultural rights. the implementive organ of the charter is the European committee
on social rights. the committee does not have power to oversee individual cases. Only collective
complaints are submitted to the committee. It only makes reports i.e., it does not give binding decisions
like the European court on human rights.
The third one is the European framework convention on national minorities. It was adopted in 1994, and
it has its own implementive organ called the European committee on national minorities. Apart from the
above organs, there are other political organs within the council of Europe which are concerned with
human rights. one of them is the committee of ministers. The committee of ministers oversees the
implementation of the decisions of the European court on human rights. there is also another political
organ called commissioner on human rights which helps to improve the activist forces for promotion of
human rights.

The European court on human rights

It functions within the council of Europe. In Africa, the African court consists of only 11 judges. But that
is not the case in the European court on human rights. the plenary court consists of 47 judges. Each
state party sends one judge to the European court on human rights. when we see how the court
entertains cases, it has judge rapportor. The judge rapportor is a single judge who deals with the
admissibility of cases. If the case is found inadmissible, that single judge will automatically reject the
case and the decision is final. But if the judge considers that the case contains some complicated issues,
he/she sends it to the committee of judges. This committee is composed of three judges. If the case is
simple, the committee will consider and decide both on admissibility and merits of the case. however, if
the committee thinks that the case is more complicated, it sends the case to chamber of judges which
consists of 7 judges. but again, if a state party or an individual considers that his case has not been
examined appropriately, he may go to grand chamber. The grand chamber consists of 17 judges. But
before the case is taken to the grand chamber, final of five decides whether the case will go to the grand
chamber or not. For instance, if the issue in the case is very serious and if there is fundamental error
which likely to change the decision of the previous chamber, the final of five may permit the party to
take the case to the grand chamber. This is all about how procedurally the European court on human
rights functions. But presently, the court is facing very serious challenges. The first challenge of the
court is the docket of crisis. The second one is back lock. Around 100,000 cases are brought before the
European court on human rights in a year. The other challenge is the issue of legitimacy. In particular,
UK is severely criticizing the power of the court. In UK, parliament is considered as representative of the
people. it is parliamentary supremacy recognized in UK. The laws that were enacted by parliament of UK
were being rejected by the European court on human rights. that is why the media particularly in UK,
Belgium and Netherlands are criticizing the function of the court. They say that the court lacks legitimacy
to nullify the laws which are passed by state parliament since the parliament is a legitimate organ to
enact laws. As one example, a law which was passed by UK parliament prevents the prisoners from vote.
But in one case, the European court on human rights made a decision against that law saying that,
prisoners in UK can vote since they have the right to vote which is guaranteed in the European
convention on human rights.

The interamerican human rights system

The interamerican human rights system operates within the organization of American states. the charter
which established the organization of American states was adopted in 1948. As it is provided under
article 3 of the charter of OAS, the main purpose of OAS is recognition, promotion and protection of
human rights without any discrimination on the basis of sex, race, colour, religion, and any other
ground. This indicates that it reflected the objective of the united nations charter which was adopted in
1945. The charter of OAS also establishes certain organs such as general assembly, secretariat, judicial
committee and council of ministers. Following the charter, the American declaration on rights and duties
of man was adopted. It had no binding effect on states. In 1959, the council of ministers of OAS
established the interamerican commission on human rights by resolution. The mandate of the
commission is to report and follow up on the implementation of the American declaration on human
rights. This is the general framework of the American human rights system. But the main treaty in
America i.e., the American convention on human rights was adopted in 1969. This convention has 2
substantive parts. The first part deals with civil and political rights. It also makes reference to economic,
social and cultural rights. The second part of the convention provides the supervisory mechanism. It
establishes a new institution called the American court on human rights. This convention also recognizes
the mandates of the American commission on human rights. In Africa, it is the African charter itself that
establishes the African commission. But in America, the American commission was established before
the adoption of the American convention on human rights. So the convention only makes recognition to
the mandates of the commission. The American convention on human rights was also supplemented by
other instruments. One of them is the 1985 American convention on torture which was adopted to
prevent and punish torture. The convention has 2 additional protocols. The first protocol is the protocol
san Salvador on the area of economic, social and cultural rights. Esc rights are not provided in the
American convention. They are added by the above additional protocol. This is similar with the
additional protocol of the African charter which added women’s rights to the charter. In Europe, there is
no separate protocol on Esc rights. There are only a few protocols in specific Esc rights such as on the
right to education. There is the European social charter but it has totally different mechanism in the area
of Esc rights. But in Africa, the African charter contains both civil and political rights and Esc rights in a
single document which is one of its distinctive features.

The second protocol to the American convention on human rights is the 1990 protocol on abolition of
death penalty. In 1994, the OAS adopted 2 other conventions. The first one is the American convention
on prevention, punishment, and eradication of violence against women. But when we see the
development at the UN, it does not focus in the area of punishing violence against women. The aim of
CEDAW is only elimination of discrimination against women. The CEDAW committee only discusses
violence against women as one ground of discrimination. It does not go any step on the issue of
punishing violence against women. So this is a new foundation dealt with in the American convention on
prevention, punishment and eradication of violence aginst women.

The other convention adopted in 1994 is the interamerican convention on forced disappearance of
persons. The interamerican system is leading world regarding the normative development in the area of
forced disappearance. Unlike the interamerican system, The UN convention on forced disappearance is
a very recent phenomenon which has been interred in to force in 2006.
Another area that the interamerican human rights system contributed to the world is the convention on
elimination of discrimination against persons with disability. It was adopted in 1999. The world has
taken experience from interamerican system regarding adoption of laws on the rights of persons with
disability. Even the UN convention on the rights of persons with disability was adopted in 2006, which is
7 years back from that of the American convention.

In terms of its institutions, the interAmerican commission on human rights was established by the
resolution of the council of OAS. The American commission consists of 7 commissioners while the
African commission has 11 commissioners. When we compare the American commission with the
African commission, the American commission carries out its functions with lesser budget. But
astonishingly, it is more efficient than the African commission. The main mandate of the commission
was conducting reports on implementation of human rights on the basis of the American declaration on
rights and duties of man. It makes its reports to the OAS. The OAS puts political pressure on the states.
when the American convention on human rights interred in to force in 1979, the commission began
receiving individual complaints. This means, it is the American convention on human rights which gave
the mandate of receiving of individual complaints to the commission.

Concerning the individual complaint procedures, the procedures of American commission is almost
identical with that of the African commission on human and peoples’ rights. with regard to standing, the
American commission follows very liberal approach. Individuals, group of persons and NGOs can bring
cases. This is similar with that of the African commission. So, it is possible to say that the African
commission lended its procedures from the American one. When the standing requirement of the
human rights committee which is the supervisory organ of the ICCPR, only individual victims are allowed
to submit their cases. But in American system, there is no victim requirement. any individual, NGO or
group of persons can submit complaints to the American commission. After the commission considers
on admissibility and merits of the case, it makes report to the council of OAS as per article 51 of the
interamerican convention on human rights. There are 2 kinds of reports here. One is confidential report.
Like any other institution, after it receives an individual case, it will send it to the concerned state. in
return, the concerned state gives its response on the case. finally, the commission makes
recommendation and sends it to the concerned state. As it is laid down under article 50 of the American
convention, This report is confidential and will not be public. The state will have 3 months to address on
the recommendation of the commission. If the state complies with addressing the given
recommendation, the commission makes a report as provided under article 51 of the convention. This is
a type of report which will be published.

Out of 35 states, 23 states are parties to the American convention on human rights. if a complaint is
presented before the commission against a state which is not party to the commission, it can put
political pressure on that state. For example, in 1962, the republic of cuba was suspended from the OAS
because of the pressure of the American commission on human rights. the second option that the
commission can make is, it may send the case to the interAmerican court on human rights if that state is
party to the court. The USA is not still party to the American convention on human rights and the
American court on human rights. but cases are brought to the American commission against US. The
interamerican commission handles cases against USA on the basis of the American declaration on rights
and duties of man.

The interamerican court on human rights was established by the American convention on human rights.
the mandate of the court is to apply and interpret the American convention on human rights. the court
has both contentious and advisory jurisdictions. In case of its contentious jurisdiction, it considers
individual complaints and interstate complaints. When we consider the locus standy or access to the
court, it is different from European court on human rights. only interamerican commission and states
are allowed to bring cases to the American court on human rights. individuals do not have direct access
to the American court. But in Europe, all individuals can submit cases to the European court on human
rights. However, interamerican states can make declaration to allow individuals to submit cases to the
American court. There are 3 possible ways of making declaration. A declaration can be made for
indefinite period, definite period and specific individuals. But in African system, the states make
declaration only for indefinite period. As the 2012 data shows, 136 judgments have been rendered by
the American court. Regarding its advisory jurisdiction, states can request advisory jurisdiction of the
American court mainly on compatibility of domestic laws with the American convention on human
rights. In 2012, around 21 advisory opinions were given by the American court on human rights.

Human rights and globalization framework

Globalization is usually related with increased flow of persons, ideas and information, expansion of
transaction and movements of goods, capital and labour. It is also connected with liberalization of
market economy, reduction of state’s involvement in the market and privatization of public enterprises.
It is the force of exclusion and inclusion. For example, world trade organization (WTO) is one of the
areas where trade liberalization is taking place. Starting the establishment of this organization, the world
is trying to negotiate a memorialized trade barriers and to avoid all forms of trade barriers. If national
economy and local industries of the developing countries will not be efficient, they will be taken away by
other powerful western states. consequently, if local industries are not competitive, individuals will also
loose their means of living. But those who are benefiting from global ideas and information will have
opportunity to gain employment and increase income and production at the global level. but now, our
concern is on liberalization of trade and avoiding of trade barriers. How do these issues relate with
human rights? for European human rights system, globalization and human rights can be understood
from 3 perspectives. The first perspective is that human rights are elements of globalization. It is forced
by powerful states and huge international organizations. For instance, the united nations is a very
powerful international organization which is very much concerned with human rights. Secondly, human
rights are affected by globalization both in negative and positive ways. One of the negative aspects of
globalization is that the human rights development in industrialized or developed countries has been
increasing. But in Africa and other developing countries, it is getting diminished. the income disparity
between the poor and the rich is getting wider. if individuals are poor, they cannot afford nutritious
food which makes them healthy. So globalization is negatively affecting the poor, while It has positive
effect on the rich.
The third perspective is that human rights can be used as a tool to transform globalization. If we are
requiring the states to afford human rights obligations including expansion of education, the provision of
social services and social securities, we are actually reducing the evils of globalization.

Another issue related with globalization and human rights is the Obligations of international financial
organizations. There are different arguments regarding human rights obligation of economic institutions
such as world bank, IMF, WTO and the like. Some scholars argue that The principles of promotion and
protection of human rights under article 3 of the UN charter are regarded as customary international
law. so economic institutions have the obligation under customary international law to promote and
protect human rights. because customary international laws are binding on all international actors
including financial organizations. therefore, these economic institutions must implement the human
rights without any discrimination and they must refrain from violating the rights of individuals. They are
also supposed to protect the rights of the people to self determination, equality and prohibition of
discrimination which have attained the status of jus cogens.

Gross violation of human rights

The first institutions that were established to deal with gross violation of human rights are Tokyo
tribunals. Gross violations of human rights are usually occurred during the time of conflict. War crimes
are gross violations of human rights. genocide and crimes against humanity such as torture,
extermination and using people as subject of experiment are also considered as gross violations of
human rights. the united nations embarked the establishment of international court of justice for
dealing with international crimes. But the idea was mooted when the cold war arise. After the cold war
became to an end, the idea to establish international criminal court was revived again. In 1993/4,
international criminal tribunal for ruwanda and international criminal tribunal for Yugoslavia were
established respectively. Finally, the international criminal court was established in 1998 by rome
statute. ICC started working in 2002. It is situated in Hague. It is not part of the united nations. but the
security council of the UN refers cases to the ICC. The ICC has its own chief prosecutor and judges.
Thomas Luangwa was the first individual who was convicted by the ICC. He was accused of violating the
rights of the child by recruiting children as soldiers. Generally, international tribunals are one way of
addressing violation of human rights as a greater scale.

The status of international human rights law in domestic laws

The usual problem of international human rights law is implementation at domestic law.

There are two different ways of interpretation regarding the status of international human rights in
domestic law. These are the dualist interpretation and the monist interpretation. The dualists argue that
international and domestic law are two separate systems of law so that they operate in their own way.
Perversely, the monists argue that both international law and domestic law are one and the same
system of law. most civil law countries like france and Netherland adopt the monist system of
interpretation. International treaties will have automatic effect in a domestic law. consequently,
domestic courts can invoke these international treaties in their decisions.

Common law countries like Australia and united kingdom follow the dualist system. In dualist system, a
state may become a party to a certain international treaty and ratify it. But that treaty will not have
domestic effect unless it fulfills the requirement of extra step called domestication. Simply put, dualists
believe that ratification is not enough for an international treaty to become part of a domestic law. it
must be adopted as an act of parliament. But this is not the case in the countries which follow monist
system. For them, once an international is ratified, there is no necessity of making that treaty part of
state law.

in Africa, because of colonial background, some countries adopted the system that their colonists were
used to follow. For instance, Nigeria which is the former colony of UK adopted the dualist system of
interpretation. Nigeria, after became party to African charter, enacted the charter as part of its domestic
law in 1993. The constitution of Nigeria clearly provides that any international treaty will not have
domestic effect unless it is enacted as acts of national assembly. There is also difference between the
two in terms of hierarchy of domestic laws. for example, the constitution of benin, which recognizes
monist system , clearly stipulates that international human rights law instruments are part and parcel of
the law of country and are superior to the constitution. In case of Nigeria, there is a judicial decision
which states that, international treaties which are domesticated as acts of Nigerian national assembly
will not have superior status over the Nigerian constitution. But nowadays, looking at the domestic
application of international law in general and human rights law in particular from the perspective of
monist and dualist system is considered as an outdated view. The now scholars of international law
criticized that division of the domestic application of human rights law in to dualist and monist is very
traditional. Instead of this kind of division, they refer to adoption, incorporation, active or passive
transformation and reference.

In regard to the status of ICCPR, the human rights committee adopted general comment No. 31. In that
general comment, the committee said that the state parties, in accordance with article 2 paragraph 1 of
the ICCPR, have undertaken the obligation to give effect to the rights recognized in the covenant. . the
committee requires that the state parties must make their domestic legislations compatible with the
ICCPR. The committee also made reference to article 27 of the Vienna convention on law of treaties
which stipulates that, the states must change their laws including the constitution if they are not
compatible with the ICCPR. States cannot invoke domestic laws for their failure to discharge their
international obligations. If a constitution of a given state is inconsistent with a certain treaty , before
ratifying that treaty, the constitution must be amended so as to avoid such inconsistency. As it has been
discussed somewhere else, the Tanzanian constitution permits to suspend or derogate the right to life
which clearly contradicts article 4 of the ICCPR. The committee however in its concluding observation,
recommended that the Tanzanian constitution must be amended to comply with the provisions of the
ICCPR. When we generally see the practice of monitoring states, they do not require specific ways of
implementing international human rights law in the domestic system. Instead, they evaluate only the
adequacy of giving effect to those international law instruments despite they follow the process of
adoption, incorporation, transformation or reference to international human rights law.

In Ethiopian case, whether it follows dualist or monist seems debatable issue. As international scholars
say, it is difficult to the implementation system of a country to dualist or monist. There is no any clear
indication in Ethiopian laws whether it follows monist or dualist system. That is why scholars say there is
reference to international law instruments by the states in interpreting their domestic laws. For
instance, the 1991 transitional charter of Ethiopia stipulates that the universal declaration of human
rights is part of Ethiopian law . this is simply by reference without providing for any specific rights. But
when we closely look at the Ethiopian constitution, it seems that the monist system of implementation
is adopted in Ethiopia.

Usually, states are represented in international dealings by persons who are from executive department.
For example, if the human rights committee requires report about Ethiopia, it is the foreign minister that
represents Ethiopia. In doing so, the executive sometimes ascribes certain violation to the judiciary or
legislature of the state. In this regard, the human rights committee says that a state cannot ascribe
certain violation to the legislature, judiciary or lower administrative organs. Because most of the time, it
is the executive that represents the state. So whatever violation is committed by any organ which is part
of the state, the executive must assume the responsibility for the violation of that organ.

Regarding the protection of human rights, most of international human rights instruments provide that
state must take measures including legislative measures. There is no specific requirement from
international human rights instruments which requires a state to pass certain law. But legislation is one
sort of protection.

Article 9 of the ICCPR requires certain domestic law to exist like laws about the procedures of arrest
warrant and search. Article 17 of the covenant also provides that the right of privacy of individuals must
be protected by domestic law. One thing we can infer from this is that the ICCPR implicitly requires state
parties to enact laws which protect the right of privacy.

In case of ICESCR, we said that state parties must take steps by all appropriate means. According to the
committee on Esc rights, those means must include legislative, administrative, budgetary, judicial
educational and other appropriate measures. The committee on Esc rights also clearly states that
passing legislations is desirable. But in some respect, such as prohibiting discrimination, passing
legislation is mandatory and indispensable. Generally, the committee requires the enactment of certain
domestic laws. In its concluding observation to germany, the committee said that germany should enact
laws which criminalize domestic violence. Similarly, in its concluding observation to Belgium, Belgium is
required to pass law that prohibits corporal punishment. The committee also required yemen to adopt
law which criminalizes female genetal mutilation. So basically, the domestic implementation of
international human rights law requires, to some extent, laws to be passed by the states. For example,
article 2 of the CERD provides that state parties must amend or repeal national laws which perpetrate
racial hatred. The committee on the rights of the child also says that the state parties must pass
comprehensive child law. So providing legal protection is one of the obligations of states which must be
complied with. The other issue is the issue of regulating private actors. When we see the obligation of
state to protect, the state must protect the violation of individual rights by private actors. In this regard,
the states are required to pass laws to regulate the conduct of private actors. In addition to enacting
laws for the purpose of regulation of private actors, states must provide effective remedies including
investigation and reparation. In case of investigation for instance, the right to life must be protected. If
an individual is killed by another individual, it is the state which takes responsible for violating the right
to life. Because on one hand, a state must criminalize homicide. On the other hand, it must make
investigation and, then after, appropriate or deserved punishment must follow. The same is true in case
of torture. Even if the state agents like the military and the police are not participating in committing
torture, if they fail in investigating and punishing the actual perpetrator, then, this constitutes the
violation on the behalf of the state. Because the state must investigate and try offenders as one remedy.

When we come to reparation, it may take different forms like rehabilitation and satisfaction. Satisfaction
may be apology to the government and the people for the acts which have been committed. It may also
be providing public memories or social ceremonies for those persons who were killed, tortured or ……

The other issue is monitoring of human rights in domestic system. International human rights law must
be applied at domestic level. Since international supervision is a subsidiary mechanism, the provision of
remedies that are available by domestic courts is very crucial. For instance, the European court on
human rights is not a replacement of domestic system. It is only a subsidiary mechanism of addressing
human rights violations. Because human rights are supposed to be implemented at domestic level for
different reasons. That is why all international judicial and quasi- judicial organs require the exhaustion
of domestic remedies. Compared to international organs, Domestic courts are cheaper, closer and
effective. For example, if the human rights committee renders its judgment in favour of an individual
complainant, it is difficult ofr that individual to bring the judgment to the appropriate domestic court for
execution. But reversely, it is quite easy to execute the rendered decision of domestic courts. So the
judiciary of domestic system must actively take in to consideration international human right laws in
passing its judgments.

Apart from domestic courts, national human rights institutions also take important role in implementing
international human right laws at domestic level. According to the 1993 Paris principle which was
adopted by the general assembly, National human rights institutions are regarded as institutions that
bridge the gap between the domestic and international systems. The paris principles deals with national
human rights institutions and the requirements. It for instance requires that they must be established by
law or the constitution. They must have independence. The paris principle also requires that national
human rights institutions must participate in preparation of reports. They also conseder complaints and
human rights comments on legislations whether they are compatible with international obligation of
states. They also make comment on the state. But surprisingly, national human rights institutions
sometimes act as NGO. They are not actually NGO since they are part of the state which cannot bring
cases against the state. However in chad, a national human rights institution brought a case against chad
before the African commissionon human and peoples’ rights. In general, national human rights
institutions are undeniably important categories of actors which bridge the gap between the domestic
and international systems.

When international monitoring organs visit the states, they usually make contact with national human
rights institutions.

Do Ethiopian courts invoke the ICCPR and other conventions in giving their decisions? Practically, they
are referring to the ICCPR. article 9/4 of the FDRE constitution makes international laws which are
ratified by Ethiopia part and parcel of law of the country. So nothing prohibits Ethiopian courts from
referring to international human rights instruments. Therefore, as the text of article 9 of the constitution
and the practices of courts show, there is no the necessity of publication of international human rights
instruments in to domestic laws, to be applied by Ethiopian courts. There is no clear provision in
Ethiopian law regarding the hierarchy of international law instruments with domestic laws.