International Human Rights Law (IHRL)
- Rights which are inherent (natural) in all human beings by virtue of their humanity
alone.
Categorisation of human rights:
- Civil and political rights
- They help protect those who are governed by law from encroachments of the
government.
- E.g: Freedom of expression, freedom of assembly, freedom from torture,
freedom from arbitrary arrest and detention, right to a fair trial.
- Economic, social and cultural rights
- E.g: Right to work, right to education, right to access to health care.
- Group or peoples’ rights
- Focuses on the rights of a collective group of people, not on individual rights.
- E.g: Right to development, right to self-determination.
Art. 1, UN Charter lists among the main purposes of the UN, the achievement of international
cooperation in promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or religion.
- Art. 55, UN Charter: The UN has the duty to promote universal respect for, and
observance of, human rights and fundamental freedoms for all without distinction as
to race, sex, language, or religion.
- Art. 56, UN Charter: All Members pledge to take joint and separate action in
cooperation with the Organization for the achievement of Art. 55.
Universal Declaration on Human Rights (UDHR)
- It contains a list of two main categories of human rights:
- Civil and political rights (Arts. 3 – 21)
- Economic, social and cultural rights (Arts. 22 – 27)
- It represents a consensus of the international community regarding human rights
which each State must respect, promote and observe.
- However, as it is it not a treaty, the declaration has no binding force and thus, does
not impose any immediate duty upon Member States to implement its provisions.
- It merely provides a list of human rights that Member States have pledged
themselves to promote (Art. 56, UN Charter).
- From the UDHR, which is the first comprehensive universal catalogue of human rights,
specific human rights treaties, both at the universal and regional level, were adopted
to transform the general principles of the UDHR into legally binding instruments.
1966 International Covenant on Civil and Political Rights (ICCPR)
- Art. 2(1): Each State party undertakes to respect and ensure to all individuals the rights
recognised in the 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.
- Each State party must therefore ensure that anyone within the power or effective
control of that State is ensured the rights under the Covenant.
- This applies not only to citizens, but also individuals of other nationalities, such
as asylum seekers, refugees, migrant workers and other persons.
- The Covenant is applicable in times of peace, and in situations of armed conflict.
- Art. 4(1): In the event of an officially proclaimed public emergency which threatens
the life of the nation, States may derogate (deviate) from certain obligations under
the Covenant to the extent strictly required by the necessities of the situation,
provided that such measures are not inconsistent with their obligations under
international law, and do not involve discrimination.
- A State party seeking to invoke the right to derogate from the Covenant must be able
to justify that:
- There exists a public emergency which threatens the life of the nation
- Greek case: A public emergency must have four characteristics:
- Actual or imminent
- It effects the nation as a whole
- The continuance of the organised life of the community is
threatened
- The normal measures or restrictions permitted for the
maintenance of public safety, health and order are inadequate
- All their measures derogating from the Covenant are strictly necessary in that
situation
- Refers to the duration, geographical coverage (the parts of the State
affected), and material scope of the state of emergency.
- Non-derogable rights
- Art. 4(2) lists the rights from which no derogation can be made, even in a state
of public emergency, such as an armed conflict.
- Right to life (Art. 6), prohibition against torture or cruel, inhuman or
degrading treatment or punishment (Art. 7), prohibition of slavery and
slave-trading (Art. 8(1) & (2)), no imprisonment for failure of
contractual obligation (Art. 11), non-retroactivity of criminal law
(Art. 15), recognition as a person before the law (Art. 16), freedom of
thought, conscience and religion (Art. 18).
- Although the list does not include the right to non-discrimination (Art. 26), this
is considered an implied non-derogable right, as Art. 4(1) has provided that the
measures taken must not involve discrimination.
- Art. 4(3): Any State Party invoking the right of derogation must immediately inform
the other State Parties to the Covenant through the Secretary-General of the UN.
Enforcement of the ICCPR
- Art. 28, ICCPR provides for the establishment of the Human Rights Commission (HRC)
for the supervision and monitoring of the implementation of its provisions.
- The HRC oversees compliance with the ICCPR in several ways:
- It examines periodic reports submitted by contracting parties
- A State has to provide a report within a year of the ratification of the ICCPR,
and subsequent reports are required at a different time specified by the HRC
for each State.
- For each report, a country task force (CRTF) is established to prepare a list of
issues to be addressed to a State.
- After examining the report, the HRC will indicate measures which a State must
take to comply with the ICCPR.
- It adopts General Comments
- Art. 40(1), ICCPR empowers the HRC to make general comments as it may
deem appropriate.
- These comments must help promote cooperation between States in the
implementation of the ICCPR; summarise the experience of the Committee in
examining the States’ reports; draw the attention of States to matters relating
to the improvement of reporting procedures and implementation of the ICCPR
- It examines inter-State complaints
- Art. 41, ICCPR: HRC is entitled to hear inter-State complaints provided that
both States are parties to the ICCPR and have made a declaration recognising
its competence.
- It examines individual complaints under the First Optional Protocol to the ICCPR
- An applicant must be able to prove several things in the complaint:
- He is an individual (natural person) who is a victim of a violation of
rights guaranteed by the ICCPR (personally affected by the violation)
- The event occurred after the entry into force of the First Optional
Protocol
- The event took place within the jurisdiction of the State
- The subject matter is not currently being considered by another
international body
- All local remedies have been exhausted
- It is a prima facie case; there is sufficient evidence to support his case
- Although the HRC is not a judicial body, its high moral authority is often sufficient to
ensure compliance. However, if a State refuses to comply, the only sanction is bad
publicity, whereby the State’s refusal will be noted by the HRC in its annual report.
- The Second Optional Protocol, which provides for the abolition of death penalty,
prohibits the execution of any individual within a State’s jurisdiction. It requires States
to submit reports to the HRC on measures taken to implement the Protocol.
Freedom from torture or cruel, inhuman or degrading treatment or punishment under the
ICCPR and Convention against Torture (CAT)
- Art. 7, ICCPR: No one shall be subject to torture, or to cruel, inhuman or degrading
treatment or punishment.
- Art. 1, CAT, ‘torture’: Any act by which severe pain or suffering, whether physical or
mental is intentionally inflicted on a person for such purposes as obtaining
information or a confession, and is inflicted by a public official or other person acting
in an official capacity.
- Under the definition in order for an act to constitute torture, there must be:
- An infliction of severe pain or suffering, whether physical or mental
- An intentional infliction
- Torture inflicted for a purpose
- Infliction by a public official, or other person acting in an official capacity
- A State will not be held liable for acts beyond its control, however,
private acts of torture to which a State fails to respond to or take
reasonable measures against, will cause it to be held liable.
- Under the CAT, a contracting State must:
- Take all necessary measures to prevent, investigate and punish acts or torture,
cruel, inhuman or degrading treatment
- Either punish or extradite an alleged offender
- Compensate victims of torture
- Dzemajl et al v Yugoslavia: 65 people of Romani origin were either tortured or treated
cruelly or inhumanly by ethnic Montenegrins in the Federal Republic of Yugoslavia.
These torturous and inhuman acts took place for the purpose of punishing them for
the act of a third person in raping a girl of Montenegrin origin, and that they were
committed with consent or acquiescence of the police. The CAT Committee against
Torture held that the CAT had been violated.
- The HRC in deciding on situations in violation of the freedom under Art. 7, does not
distinguish between the different punishments or treatment.
- The prohibition is complemented by the requirement for all persons deprived of their
liberty to be treated with humanity and with respect for the inherent dignity of the
human person (Art. 10, ICCPR)
- Estrella v Uruguay: The author was arrested and taken to a place of detention where
he was subjected to severe physical and psychological torture. He was then taken to
prison, where he spent 40 days in solitary confinement in a cage-like cell, and went 7
months without mail and recreation, and was subjected to harassment and searches.
HRC decided: There was a violation of Art. 7 because he was subjected to torture, as
well as violation of Art. 10(1) because he was detained under inhuman prison
conditions.
Equality and non-discrimination under the ICCPR and other UN Treaties
- Art. 2(1), ICCPR explicitly prohibits any form of discrimination by State parties.
- Art. 26, ICCPR narrows the scope to equality and prohibition against discrimination:
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. Thus, the law is to 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,
- The provision has been identified by HRC as one which exists independently as
a general right of non-discrimination, and is not dependent upon the existence
of any other rights.
- HRC General Comment 18, ‘discrimination’: Any distinction, exclusion, restriction or
preference which is based on any ground listed, and which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an
equal footing, of all rights and freedoms.
- Thus, a person receiving less favourable treatment on one of the grounds of distinction
under Art. 26 can be regard as a victim of discrimination.
- Waldman v Canada: A complaint was made against an Ontario law which gave the
government power to provide special funding for Catholic schools while excluding
other religious schools from funding. The HRC found that there was discrimination on
the ground of religion.
Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- Art. 1, ‘racial discrimination’: Any discrimination, exclusion, restriction or preference
based on race, colour, descent, national or ethnic origin which has the purpose or
effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field.
- A State is required to eliminate any racial discrimination, direct or indirect, and to
prevent, prohibit and eradicate the practice of apartheid.
- Art. 1(4) permits in some circumstances the taking of special measures to secure
advancement of racial or ethnic groups, provided that they do not result in the
maintenance of separate rights for different racial groups, and are terminated upon
the achievement of its objective.
- The Committee on the Elimination of Racial Discrimination was set up with the task of
monitoring its implementation.
- Similar to HRC, the CERD Committee examines periodic reports, issues General
Comments, processes inter-State complaints and petitions from individuals or groups
of persons who claim to be victims of violations of the Convention.
- The Committee is allowed to use early warning measures and urgent procedures to
try to prevent serious violations of the CERD.
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- Art. 1, ‘discrimination against women’: Any distinction, exclusion or restriction made
on the basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital statutes,
on a basis of equality, of men and women, of human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any other field.
- Art. 2: State parties are to condemn discrimination in all its forms and agree to pursue
by all appropriate means, and without delay, a policy of eliminating discrimination
against women.
- Art. 17 establishes the Committee on the Elimination of Discrimination against
Women that oversees the implementation of the Convention.
- The main function of the Committee is to review reports, which consist of the
legislative, judicial, and administrate measures a State has taken in implementing the
Convention, and must be submitted to it every four years.
- Once reports have been reviewed, recommendations and suggestions must be made
and reported to the UNGA through the UN Economic and Social Council (ECOSOC)
- An Optional Protocol to the CEDAW authorises communication from individuals or
groups of individuals. Thus, women whose rights have been violate may seek an
international remedy.
- This is offered through two mechanisms:
- Communications procedure: Provides individuals and groups the right to lodge
complaints with the CEDAW Committee
- Inquiry procedure: Enables the CEDAW Committee to conduct inquiries into
serious and systematic abuses of women’s rights.
Convention on the Rights of the Child (CRC)
- Art. 1, ‘child’: A human being below the age of 18, unless majority is acquired prior to
that age according to the law applicable to the child.
- Art. 3: In decisions affecting a child, the best interests of the child shall be the primary
consideration.
- CRC provides for a number of basic rights such as the right to a life, a name and a
nationality, as well as the right of freedom of expression, thought and conscience.
- State parties also agree to protect the child from:
- Forms of mental or physical violence
- Economic exploitation
- Illicit use of drugs
- Sexual exploitation
- Torture and other cruel and inhuman punishment
- Employment of children below the age of 15 in an armed conflict
- Art. 43 establishes the Committee on the Rights of the Child
1966 International Covenant on Economic, Social and Cultural Rights (ICESCR)
- The Covenant covers three categories of rights:
- Rights to work and to the enjoyment of just and favourable conditions of work,
including the right to form and join trade unions
- Rights to social protection, to an adequate standard of living and to the
enjoyment of the highest attainable standard of physical and mental health
- Rights to education and to participation in cultural life
- The ICESCR does not require an immediate implementation, but allows progressive
realisation of its obligations by a State party. This is subject to two exceptions:
- Rights which can be implemented without imposing any burden on a State,
such as the right of non-discrimination, must be done immediately.
- Each State party must undertake to take steps to the maximum of its available
resources, with a view to achieving progressively the full realisation of the
rights recognised by all appropriate means, including the adoption of
legislative measures (Art. 2(1))
- Thus, regardless of the level of economic development, a State has a
duty to ensure that persons within its jurisdiction is provided with food,
housing, access to health services and education.
- ‘The maximum of its available resources’ means that when a party is
unable to ensure the bare minimum, it has an obligation to seek
international assistance and cooperation in order to fulfil its duty under
the ICESCR.
- Once progress has been achieved, a State is prohibited from taking any deliberate step
backwards (to when progress had not been achieved) that cannot be justified on the
grounds of severe economic difficulties, force majeure or similar circumstances.
- The essence of the Covenant’s rights must at all times be guaranteed by national law.
- The Committee on Economic, Social and Cultural Rights was established to ensure
compliance to the Covenant.
- The Committee may make recommendations to ECOSOC based on annual reports, but
has no power to hear inter-State or individual complaints.
Enforcement of IHRL at the universal level
- A compromise between State sovereignty and the requirement for State to comply
with international standard on human rights has led to the establishment of
monitoring mechanisms.
Monitoring mechanisms established by the UN:
- Art. 13, UN Charter: The UNGA may initiate studies and make recommendations on
human rights issues.
- The UN ECOSOC, which is primarily responsible for human rights matters, can make
recommendations on human rights, draft conventions, convene international
conferences and hear reports from various bodies (Art. 62, UN Charter)
- In 1946, ECOSOC established a Commission on Human Rights under Art. 68.
- However, its value was limited as politics played a role in choice and treatment
of cases (described as a political animal, with its initiatives and priorities
reflecting the interests of those with superiority)
- Thus, the Commission was highly criticised, as even in the most serious cases,
there were no legally binding sanctions available.
- This led to the establishment of the Human Rights Council in 2006 which replaced the
Commission on Human Rights.
- The Council, which is a subsidiary organ of the UNGA, has strengthened the
UN’s human rights machinery and elevated the institutional standing of its
human rights work.
- The Council is aimed at creating a more efficient and less politicised
organisation that would respond quickly to cases of human right abuses. It
functions:
- To promote universal respect for the protection of human rights
without discrimination
- To address and make recommendations on situations of violations of
human rights including gross and systematic violations
- To make recommendations on the promotion and protection of human
rights and for further development of international law in this field
- The Council has established procedures, mechanism and structures of its work:
- A Universal Periodic Review of the human rights record of all UN members
whereby a review of each member takes place once every four years.
- The review is based on a report submitted by the reviewed State.
- The process of review ends with the adoption of recommendations for
implementation by the State.
- Special procedures to examine human rights violations in a specific State or to
examine a specific human rights problem.
- Human Rights Council Advisory Committee was established to act as a ‘think
tank’ for the Council, whereby its main role is to advise the Council on specific
issues at its request.
- The complaints procedure was modified to examine not the situation of a
particular individual, but the situation of a particular country. Thus a complaint
must show that there is a consistent pattern of gross and reliably proven
violations of human rights.
Monitoring mechanism established by treaties:
- International human rights treaties have established their own monitoring
mechanisms to ensure compliance.
- ICCPR: Human Rights Committee
- ICESCR: Committee on Economic, Social and Cultural Rights
- CAT: Committee Against Torture
- CERD: Committee on the Elimination of Racial Discrimination
- CEDAW: Committee on the Elimination of Discrimination against Women
- CRC: Committee on the Rights of the Child
- These monitoring mechanisms have three general types of monitoring procedures:
- Periodic reports: Submitted by State parties when requested
- Inter-State complaints: A State party can make a complaint against another
State party for violation of human rights, which is only possible where the
States have ratified the treaty, and made a declaration recognising its
competence.
- Complaints (individual communications): Individuals or groups of individuals
may file with the monitoring body a communication stating the violation
allegedly committed.
Problems with enforcement:
- Each human rights treaty creates its own system for enforcement through the general
monitoring procedures
- States have not responded either consistently or cooperatively with reporting
requirements
- Rarely do States bring complaints against other States
- Effective enforcement of human rights depends on the procedural capacity of the
individual to complain to the relevant treaty-based Committee
- There is no procedural capacity to enforce human rights in many parts of Africa, the
Middle East and the Asia Pacific region
- There exist wide reservations to treaty obligations
- E.g: Reservations made to CEDAW
- Overdue and inadequate State reports
The fact that these monitoring bodies are not judicial bodies (whether established under UN
or treaties) renders their findings and recommendations not binding upon States.
- Non-compliance by States of their recommendations will not give rise to sanctions or
legally binding enforcement methods.
- This is because these monitoring bodies operate in an area where States, though they
may have assumed international obligations by acknowledging the declaration or
treaty, are not prepared to submit to international adjudication in the event of a
violation.
- This is supported by the fact that the area of international protection of human
rights cover matters that are politically, socio-economically and culturally
sensitive to each State.
- Thus, international protection of human rights at the universal level is only effective
to the extent of gradually inducing States to improve their human rights record.
Differences between IHL and IHRL
IHL IHRL
When? IHL is applicable only in times of an In principle, IHRL applies both, in
armed conflict, whether peacetime and in situations of
international or non-international. armed conflicts.
As IHL deals with exceptional Some IHRL treaties permit
situations in armed conflicts no governments to derogate from
derogation whatsoever from its certain rights in situations of public
provisions are permitted. emergency (armed conflict)
threatening the life of the nation.
However, certain human rights are
non-derogable.
Who is IHL binds all parties in an armed IHRL lays down rules binding
bound? conflict. government in their relations with
In international conflicts it must be individuals.
observed by the States involved,
and binds the government, as well
as the armed groups fighting
against in or among themselves.
Thus, IHL lays down rules that are
applicable to both, State and non-
State actors.
Who is The wounded, sick, shipwrecked All human beings without
protected? members of the armed forces, distinction as to race, religion, sex
prisoners of war, civilians. and etc.
Individual IHL imposes obligations on an Generally, individuals do not have
criminal individual and also provides that specific duties under IHRL.
responsibility individuals may be held criminally However, individuals may be held
responsible for ‘grave breaches’ of criminally responsible for violation
the Geneva Conventions. of human rights that are so heinous
and declared as international
crimes.
E.g: Genocide and crimes against
humanity.
Although there are differences between the two, both IHL and IHRL can be said to
complement each other.
- E.g: Committing a crime against humanity not only violates IHL, but also IHRL.
The International Criminal Court (ICC), and tribunals such as the ICTY and ICTR have
jurisdiction over violations of both IHL and IHRL.
