INTERNATIONAL HUMN

RIGHTS LAW
MS. E. MUSIKALI
1.1 Nature and Definition of Human Rights

• Human rights are a special type of inalienable moral entitlement.

• They attach to all persons equally, by virtue of their humanity,
irrespective of race, nationality, or membership of any particular
social group.
• Human rights belong to an individual as a consequence of being
human.
• The term came into wide use after World War II, replacing the
earlier phrase "natural rights," which had been associated with the
Greco-Roman concept of natural law since the end of the Middle Ages.
• Today, human rights refer to a wide variety of values and capabilities
reflecting the diversity of human circumstances and history.
a. Universality
• They are conceived of as universal .
• Universality of human rights is controversial, applying to all human
beings everywhere, and as fundamental, referring to essential or basic
human needs.
• The concept of human rights is based on the belief that every human
being is entitled to enjoy her/his rights without discrimination.
• Human rights differ from other rights in two respects:
a. Firstly, they are characterized by being:
i. Inherent in all human beings by virtue of their humanity alone (they
do not have, e.g., to be purchased or to be granted);
ii. Inalienable (within qualified legal boundaries);
iii. Equally applicable to all.
b. Secondly, the main duties deriving from human rights fall on states and their
authorities or agents, not on individuals.
- One important implication of these characteristics is that human rights must themselves be
protected by law (the rule of law).
- Furthermore, any disputes about these rights should be submitted for adjudication
through a competent, impartial and independent tribunal, applying procedures which ensure
full equality and fairness to all the parties, and determining the question in accordance with clear,
specific and pre-existing laws, known to the public and openly declared.
• The idea of basic rights originated from the need to protect the individual against the (arbitrary)
use of state power.
• Attention was therefore initially focused on those rights which oblige governments to refrain from
certain actions.
• Human rights in this category are generally referred to as fundamental freedoms.
• As human rights are viewed as a precondition for leading a dignified human existence, they serve
as a guide and touchstone for legislation.
• The specific nature of human rights, as an essential precondition for human
development, implies that they can have a bearing on relations both
between the individual and the state, and between individuals themselves.
• This individual-state relationship is known as the vertical effect of human
rights.
• While the primary purpose of human rights is to establish rules for
relations between the individual and the state, several of these rights can
also have implications for relations among individuals.
• This is horizontal effect implies that a government not only has an
obligation to refrain from violating human rights, but also has a duty to
protect the individual from infringements by other individuals.
• The right to life thus means that the government must strive to protect
people against homicide by their fellow human beings.
1.2 Historical Development of Human Rights
a. Pre-world War II developments.
b. Post World War II developments.
a. Pre-world War II developments
• The origins of human rights may be found both in Greek philosophy
and the various world religions.
• In the 18th Century, the Age of Enlightenment, the concept of human
rights emerged.
• Man/woman came to be seen as an autonomous individual, endowed
by nature with certain inalienable fundamental rights that could be
invoked against a government and should be safeguarded by it.
• Human rights were from this time seen as basic preconditions for an
existence worthy of human dignity.
• Before this period, several charters codifying rights and freedoms had been drawn up:
1. The first -were the Magna Charta - 1215, and the English Bill of Rights of 1689: -
• These documents specified rights, which could be claimed in particular circumstances
(e.g. threats to the freedom of religion).
• They did not yet contain an all-embracing philosophical concept of individual liberty.
• Freedoms were often seen as rights conferred upon individuals or groups by virtue of
their rank or status.
• After the middle Ages, the concept of liberty became separated from status and came to
be seen not as a privilege but as a right of all human beings.
• Spanish theologists and jurists played a prominent role in this context e.g. the work of
Francisco de Vitoria (1486-1546) and Bartolomé de las Casas (1474-1566) .
• They laid the (doctrinal) foundation for the recognition of freedom and dignity of all
humans by defending the personal rights of the indigenous peoples inhabiting the
territories colonized by the Spanish Crown.
2. John Locke (1632-1704) in the 18th century developed a
comprehensive concept of natural rights; his list of rights consisting of
life, liberty and property. Jean-Jacques Rousseau (1712-1778)
elaborated the concept under which the sovereign derived his powers
and the citizens their rights from a social contract.
3. The term human rights appeared for the first time in the French
Déclaration des Droits de l’Homme et du Citoyen (1789). (The
Declaration of the Rights of Man and of the Citizen.
4. The people of the British colonies in North America took the human
rights theories to heart. The American Declaration of Independence of
4 July 1776 was based on the assumption that all human beings are
equal. It also referred to certain inalienable rights, such as the right to
life, liberty and the pursuit of happiness. These ideas were also
reflected in the Bill of Rights which found its way into the American
Constitution.
5. The French Déclaration of 1789, as well as the French Declaration of
1793, reflected the emerging international nature of universal rights
6. Classic rights of the 18th and 19th centuries related to the freedom of
the individual. Even then, some people believed that citizens had a right
to demand that the government endeavour to improve their living
conditions. E.g with the principle of equality as contained in the French
Declaration of 1789.
• Several constitutions drafted in Europe around 1800s contained
classic rights, and included articles which assigned responsibilities to
the government in the fields of employment, welfare, public health,
and education.
• Social rights were also expressly included other constitutions such as
in the Mexican Constitution of 1917, the Constitution of the Soviet
Union of 1918, and the German Constitution of 1919.
• In the 19th century, there were frequent inter-state disputes on the
protection of the rights of minorities in Europe.
• These conflicts led to several humanitarian interventions and called
for international protection arrangements e.g. first of which was the
Treaty of Berlin of 1878
• The need for international standards on human rights was first felt at the
end of the 19th century, when the industrial countries began to introduce
labour legislation.
• This legislation, which raised the cost of labour, had the effect of worsening
their competitive position in relation to countries that had no labour laws.
• Economic necessity then forced States to consult each other.
• It was as a result of this that the first international conventions were
formulated.
• States made commitments to other states concerning the rights and
treatment of their own citizens.
• The Berlin Convention of 1906 was the first multilateral convention.
• It prohibited night-shift work by women and safeguard social rights.
• After the International Labour Organisation (ILO) was founded in 1919
more labour conventions were drawn up.
• Social rights were the first to be recognised in international
conventions.
b. Post-World War II developments
• The atrocities of World War II put an end to the traditional view that
states have full liberty to decide the treatment of their own citizens.
• The signing of the Charter of the United Nations (UN) on 26 June
1945 brought human rights within the sphere of international law.
• In particular, all UN members agreed to take measures which is
signified by the large number of articles in UN Charter which deals
with human rights protection.
• Less than two years later, the UN Commission on Human Rights
(UNCHR), which was established early in 1946, submitted a draft
Universal Declaration of Human Rights (UDHR).
• The UN General Assembly (UNGA) adopted the Declaration in Paris on
10 December 1948. This day was later designated Human Rights Day.
• During the 1950s and 1960s, more and more countries joined the UN.
Upon joining the UN, they formally accepted the obligations
contained in the UN Charter, and in doing so subscribed to the
principles and ideals laid down in the UDHR.
• This commitment was made explicit in the Proclamation of Teheran
(1968), which was adopted during the first World Conference on
Human Rights, and repeated in the Vienna Declaration and
Programme of Action, which was adopted during the Second World
Conference on Human Rights (1993).
• Since the 1950s, the UDHR has been backed up by a large number of
international conventions.
• The most significant of these conventions are :
a. the International Covenant on Civil and Political Rights (ICCPR) and the
b. International Covenant on Economic, Social and Cultural Rights (ICESCR).
• These two Covenants, together with the UDHR, form the International Bill of
Human Rights.
• At the same time, many supervisory mechanisms have been created, including
those responsible for monitoring compliance with the two Covenants.
• Human rights have also been receiving more attention at the regional level.
• For example, in the European, the Inter-American and the African context,
standards and supervisory mechanisms have been developed have already had a
significant impact on human rights compliance in the respective continents, and
promise to contribute to compliance in the future.
Theories of Human Rights
Necessary to understand the Foundations of Human Rights in Law
Different legal theories explain their origins, justification, and
application
• The only consensus about human rights is that there is no consensus
on the nature and justification of human rights.
• An argument is that human rights are essentially moral rights since
the idea of human rights denotes a moral concept. (Traditional View
based on ethics)
• Another is that human rights are a political concept; therefore,
human rights are primarily legal or political rights.
Natural Law Theory
• Core Idea: Human rights are inherent and derived from a higher moral
order, reason, or divine authority.
• Key Thinkers: John Locke, Thomas Aquinas, Hugo Grotius.
• Features:
- Rights are universal and inalienable.
- Often linked to moral and religious principles.
- Basis for modern constitutional and international human rights laws.
• Examples:
• - U.S. Declaration of Independence.
• - Universal Declaration of Human Rights (UDHR).
Positivist Theory
• Core Idea: Human rights exist because they are codified in laws,
treaties, or constitutions.
• Key Thinkers: Jeremy Bentham, John Austin, Hans Kelsen.
• Main Features:
- Rights are legal constructs, not inherent.
- Emphasizes state sovereignty and enforcement.
- Law is valid based on authority, not morality.
• Examples:
- Treaty-based rights (e.g., European Convention on Human Rights).
- Constitutional rights (e.g., U.S. Bill of Rights).
Social Contract Theory
• Core Idea: Rights come from a contract between individuals and the
state.
• Key Thinkers: Thomas Hobbes, John Locke, Jean-Jacques Rousseau.
• Main Features:
- Individuals surrender some freedoms for protection.
- Governments derive legitimacy from protecting rights.
- If rights are violated, people may challenge authority.
• Examples:
- U.S. Constitution and French Declaration of the Rights of Man.
- Democratic governance and civil rights movements.
Utilitarianism
• Core Idea: Rights should maximize the greatest happiness for the
greatest number.
• Key Thinkers: Jeremy Bentham, John Stuart Mill.
• Main Features:
- Rights are not absolute—they can be restricted for societal benefit.
- Focuses on outcomes rather than moral justification.
• Examples:
- Public health laws (e.g., mandatory vaccinations).
- Economic policies (e.g., taxation, wealth redistribution).
Marxist Theory
• Core Idea: Human rights are shaped by class struggle and
economic structures.
• Key Thinkers: Karl Marx, Friedrich Engels.
• Main Features:
- Rights serve the dominant economic class.
- Civil/political rights are secondary to economic and social rights.
• Examples:
- Soviet Constitution of 1936 (focus on economic rights).
- Socialist policies (e.g., free healthcare, education as rights).
Critical Legal Studies & Feminist Legal Theory
• Core Idea: Law reinforces power structures and must be challenged.
• Key Thinkers: Duncan Kennedy (CLS), Catharine MacKinnon
(Feminism).
• Main Features:
- Law is not neutral—it benefits powerful groups.
- Calls for gender-sensitive and intersectional approaches.
• Examples:
- CEDAW (Convention on the Elimination of Discrimination Against
Women).
- Affirmative action policies addressing racial and gender disparities.
Universalism vs. Cultural Relativism
• Universalism: Rights apply to all, regardless of culture.
- Example: UDHR and international human rights courts.
• Cultural Relativism: Rights should be interpreted within cultural
and social contexts.
- Example: Different applications of human rights in religious and
indigenous traditions.
• Debate: How do we balance universal human rights with cultural
differences?
Conclusion
• Human rights theories shape legal frameworks and
interpretations.
• No single theory explains human rights fully; modern law uses a
hybrid approach.
• Continuous debate on how rights should be justified and applied.
• Key Takeaway: Understanding these theories helps in advocating
for and interpreting human rights laws.
Classification of Human Rights
• The term human rights, is used to refer to a broad spectrum of rights
ranging from the right to life to the right to a cultural identity which
involve basic preconditions for a dignified human exist
• Human rights can be classified in many different ways, none of which
reflect an international consensus.
• Some categorisations overlap considerably.
• A distinction has been made between civil and political rights, on the
one hand, and economic, social and cultural rights on the other.
• Although human rights have been classified in different manners it is
important to note that International human rights law stresses that all
human rights are universal, indivisible and interrelated (e.g. Vienna
Declaration and Programme of Action (1993), para. 5).
• The indivisibility of human rights implies that no right is more important than
the other.
1. Classic and Social Rights
• Classic rights are seen to require the non-intervention of the state
(negative obligation).~(State refrain from interfering)
• Social rights require active state intervention (positive)
• Classic rights entail an obligation for the state to refrain from certain
actions, while social rights oblige it to provide certain guarantees.
• Classifying human rights in terms of negative and positive obligations
may have its own defects for a certain right may involve both negative
and positive obligations for its effective realization.
• Classic rights, such as civil and political rights, often require
considerable investment by the state.
• The state does not merely have the obligation to respect these rights,
but must also guarantee that people can effectively enjoy them.
• the right to a fair trial, for instance, requires well-trained judges, prosecutors,
lawyers and police officers, as well as administrative support.
• the organisation of elections, which also entails high costs.
• On the other hand, most social rights contain elements that require
the state to abstain from interfering with the individual’s exercise of
the right.
 • the right to food includes the right for everyone to procure their own food
supply without interference;
• the right to housing implies the right not to be a victim of forced eviction;
• the right to work involves the individual’s right to choose his/her own work
and also requires the state not to hinder a person from working and to
abstain from measures that would increase unemployment;
• the right to education implies the freedom to establish and direct educational
establishments; and
• the right to the highest attainable standard of health implies the obligation
not to interfere with the provision of health care.
• In sum, the differentiation of classic rights from social rights does not
reflect the nature of the obligations under each set of rights.
2. Civil, Political and Social Rights
Civil Rights
• ‘civil rights’ is often used with reference to the rights set out in the first eighteen articles of the
UDHR which are also set out as binding treaty norms in the ICCPR.
• Classified into:
a. “physical integrity rights”: the right to life, liberty and security of the person, and offer protection
from physical violence against the person, torture and inhuman treatment, arbitrary arrest,
detention, exile, slavery and servitude, interference with one9s privacy and right of ownership,
restriction of one’s freedom of movement, and the freedom of thought, conscience and religion.
• The difference between ‘basic rights’ and ‘physical integrity rights’ lies in the fact that the
former include economic and social rights, but do not include rights such as protection of privacy
and ownership.
• The right to equal treatment and protection in law certainly is as a civil right but also plays a role
in the realization of economic, social and cultural rights.
b. “due process rights”~: the right to a public hearing by an independent and impartial tribunal, the
presumption of innocence, the principle and legal assistance (Articles 9, 10, 14 and 15 of the ICCPR).
Political Rights
• Set out in Articles 19 to 21 of the UDHR and also codified in the
ICCPR.
• They include freedom of expression, freedom of association and
assembly, the right to take part in the government of One’s country,
and the right to vote and stand for election at genuine periodic
elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 of
the ICCPR).
Economic and Social Rights
• Listed in Articles 22 to 26 of the UDHR, and further developed and set
out as binding treaty norms in the ICESCR.
• Provide the conditions necessary for prosperity and wellbeing.
• Economic rights refer, to the right to property, the right to work,
which one freely chooses or accepts, the right to a fair wage, a
reasonable limitation of working hours, and trade union rights.
• Social rights are those rights necessary for an adequate standard of
living, including rights to health, shelter, food, social care, and the
right to education (Articles 6 to 14 of the ICESCR)
Cultural Rights
• The UDHR lists cultural rights in Articles 27 and 28.
• Include the right to participate freely in the cultural life of the
community, to share in scientific advancement, and the right
to the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which one is
the author (see also Article 15 of the ICESCR and Article 27 of the
ICCPR).
Civil and political rights, vs economic, social
and cultural rights
• Traditionally, it has been argued that there are fundamental differences
between economic, social and cultural rights, and civil and political rights.
These two categories of rights have been seen as two different concepts.
• Civil and political rights are considered to be expressed in a very precise
language, imposing merely negative obligations which do not require
resources for their implementation, and which, therefore, can be applied
immediately.
• Economic, social and cultural rights are considered to be expressed in vague
terms, imposing only positive obligations conditional on the existence of
resources and therefore involving a progressive realization.
• As a consequence only violations of civil and political rights can be
adjudicated by judicial or similar bodies, while, economic, social and cultural
rights are by their nature non-justiciable.
Fundamental Freedoms
• Are the rights which concern people’s primary material and non-material needs
which if not provided, no human being can lead a dignified existence.
• Other terms include ‘elementary’, ‘essential, ,core’ human rights.
• Fundamental rights are taken to include such rights as the right to life and the
inviolability of the person.
• The UN has set standards on such rights in numerous conventions, bringing
already recognised matters of policy which affect human development into the
sphere of human rights.
• This distinction came about due to the concern that a broad definition of human
rights may lead to violation of human rights, and the term losing some of its
significance.
• Thus, a set of ‘basic rights’, which should be given absolute priority in national
and international policy was set apart.
• Basic rights include:
a. the right to life,
b. the right to a minimum level of security,
c. the inviolability of the person,
d. freedom from slavery and servitude, and
e. freedom from torture,
f. unlawful deprivation of liberty,
g. discrimination and
h. other acts which impinge on human dignity.
i. freedom of thought, conscience and religion,
j. the right to suitable nutrition, clothing, shelter and medical care, and other essentials
crucial to physical and mental health.
• Mention should also be made of so-called ‘participation rights’ e.g.
the right to participate in public life through elections (which is also a
political right; see above) or to take part in cultural life.
• Participation rights are considered to belong to the category of
fundamental rights, as they are essential preconditions for the
protection of all kinds of basic human rights.
Other Classifications
A. FREEDOMS
• Are preconditions for a dignified human existence (e.g., freedom of
movement, freedom from torture, and freedom from arbitrary
arrest).
• United States President, Franklin D. Roosevelt, summarized these
preconditions in his famous “Four Freedoms Speech” to the United
States Congress on 26 January 1941:
i. Freedom of speech and expression;
ii. Freedom of belief (the right of every person to worship God in his
own way)
iii. Freedom from want (economic understandings which will secure to
every nation a healthy peace-time life for its inhabitants); and
iv. Freedom from fear (world-wide reduction of armaments to such a
point and in such a thorough fashion that no nation would be able to
commit an act of physical aggression against any neighbour).
- Roosevelt implied that a dignified human existence requires not only
protection from oppression and arbitrariness, but also access to the
primary necessities of life
B. CIVIL LIBERTIES
• The concept of “civil liberties” is common in the United States, where the American Civil Liberties
Union (a non-governmental organisation) has been active since the 1920s.
• Civil liberties are those human rights which are laid down in the United States Constitution:
a. freedom of religion,
b. freedom of the press,
c. freedom of expression,
d. freedom of association and assembly,
e. protection against interference with one’s privacy,
f. protection against torture,
g. the right to a fair trial,
h. and all the rights of workers.
- This classification does not correspond to the distinction between civil and political rights
C. INDIVIDUAL AND COLLECTIVE RIGHTS
• Although the fundamental purpose of human rights is the protection
and development of the individual (individual rights), some of these
rights are exercised by people in groups (collective rights).
• Freedom of association and assembly, freedom of religion and the
freedom to form or join a trade union, fall into this category.
• The collective element is more evident when human rights are linked
specifically to a membership of a certain group, such as the right of
members of ethnic and cultural minorities to preserve their own
language and culture.
• Example of collective human right: the right to self-determination,
which is vested in peoples rather than in individuals (Articles 1 of the
ICCPR and ICESCR).
• Its recognition as a human right is based on the fact that self determination is
seen as a necessary precondition for the development of the individual.
• Collective rights may not infringe a universally accepted individual
rights, such as the right to life and freedom from torture. (e.g a cult
whose basis is on extermination of certain group of people cannot be
allowed to exist)
D. FIRST, SECOND AND THIRD GENERATION
RIGHTS
• The division of human rights into three generations was first proposed by
Karel Vasak at the International Institute of Human Rights in Strasbourg.
• The division follows the principles of Liberty, Legality and Fraternity of the
French Revolution.
• First generation rights are related to liberty and refer fundamentally to
civil and political rights.
• Second generation rights are related to equality, including economic, social
and cultural rights.
• Third generation/solidarity rights cover group and collective rights, which
include, the right to development, the right to peace and the right to a
clean environment.
• The only third generation right which has been given an official
human rights status - apart from the right to self-determination,
which is of longer standing - is the right to development
• The Vienna Declaration confirms the right to development as a collective as
well as an individual right, individuals being regarded as the primary subjects
of development.
-(see the Declaration on the Right to Development, adopted by the UNGA
on 4 December 1986, and the 1993 Vienna Declaration and Programme of
Action (Paragraph I, 10)).
Sources of Human Rights Law
• Since time immemorial, states and peoples have entered into formal relationships with each
other.
• Over the ages, traditions have developed on how such relationships are conducted.
• These are the traditions that make up modern ‘international law’.
• Like domestic law, international law covers a wide range of subjects such as security, diplomatic
relations, trade, culture and human rights, but it differs from domestic legal systems in a number
of important ways.
• In international law there is no single legislature, nor is there a single enforcing institution.
• Consequently, international law can only be established with the consent of states and is
primarily dependent on self-enforcement by the same states.
• In cases of non-compliance there is no supra-national institution; enforcement can only take place
by means of individual or collective actions of other states.
• This consent, from which the rules of international law are derived, may be expressed in various
ways.
• These include:
a. Treaties: imposing obligations on the states parties. Constitute a
dominant part of modern international law.
b. Other documents and agreements serve as guidelines for the
behaviour of states, although they may not be legally binding.
c. Consent may also be inferred from established and consistent
practice of states in conducting their relationships with each other –
custom.
The sources of international law are many and states commit to them
to different degrees.
The internationally accepted classification of sources of international law is
formulated in Article 38 of the Statute of the International Court of Justice:
a) International conventions, whether general or particular;
b) International custom, as evidence of general practice accepted as
law;
c) The general principles of law recognised by civilized nations;
d) Subsidiary means for the determination of rules of law such as
judicial decisions and teachings of the most highly qualified publicists.
1. International Conventions
• International treaties are contracts signed between states.
• They are legally binding and impose mutual obligations on the states
that are party to any particular treaty (states parties).
• They impose obligations on states about the manner in which they
treat all individuals within their jurisdiction.
• More than forty major international conventions for the protection of
human rights have been adopted.
• International human rights treaties bear various titles: covenant,
convention and protocols
• Treaties contain the explicit indication of state parties to be bound by
their terms.
• Human rights treaties have been adopted at the universal level
(within the framework of the United Nations and its specialised
agencies, for instance, the ILO and UNESCO) as well as under the
auspices of regional organisations, such as the Council of Europe
(CoE), the Organisation of American States (OAS) and the African
Union (AU) (formerly the Organisation of African Unity (OAU))
a. UNIVERSAL CONVENTIONS FOR THE
PROTECTION OF HUMAN RIGHTS
• Human rights first found expression in the Covenant of the League of
Nations which led to the creation of the International Labour Organisation.
• At the San Francisco Conference in 1945, held to draft the Charter of the
United Nations, a proposal to adopt a “Declaration on the Essential Rights
of Man” was put forward but it did not go through.
• The UN Charter, though, speaks of “promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as
to race, sex, language or religion” (Article 1, para. 3).
• The idea of promulgating an international bill of rights led to the adoption
in 1948 of the Universal Declaration of Human Rights (UDHR).
• The UDHR, although not a treaty, is the earliest comprehensive
human rights instrument adopted by the international community.
• In 1966, the International Covenant on Economic, Social and Cultural
Rights (ICESCR) and the International Covenant on Civil and Political
Rights (ICCPR) were adopted, as well as the First Optional Protocol to
the ICCPR, which established an individual complaints procedure.
• Both Covenants and the Optional Protocol entered into force in 1976.
• A Second Optional Protocol to the ICCPR, on the abolition of the
death penalty, was adopted in 1989 and entered into force in 1991.
• The International Bill of Human Rights consists of the Universal Declaration of
Human Rights, the ICESCR, and the ICCPR and its two Optional Protocols.
• The International Bill of Rights is the basis for numerous conventions and national
constitutions.
• Other instruments have been adopted under the auspices of the UN and other
international agencies.
• They may be divided into three groups:
a) Conventions elaborating on certain rights, inter alia:
- The Convention on the Prevention and Punishment of the Crime of Genocide
(1948)
- ILO 98 concerning the Right to Organize and to Bargain Collectively (1949)
- The Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984)
b. Conventions dealing with certain categories of persons who may need
special protection, inter alia:
- The Convention relating to the Status of Refugees (1951), and the 1967
Protocol
- The Convention on the Rights of the Child (1989)
- Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflicts (2000)
- Optional Protocol to the Convention on the Rights of the Child on the sale
of children, child prostitution and child pornography (2000)
- ILO 169 concerning Indigenous and Tribal Peoples in Independent Countries
(1989)
• The International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families (2000)
c) Conventions seeking to eliminate discrimination
- ILO 111 concerning Discrimination in respect of Employment and Occupation
(1958)
- UNESCO Convention against Discrimination in Education (1960)
- The International Convention on the Elimination of All Forms of Racial
Discrimination (1965)
- International Convention on the Suppression and Punishment of the Crime of
Apartheid (1973)
- The Convention on the Elimination of All Forms of Discrimination Against Women
(1979) and its Optional Protocol (2000)
Regional Covenants and the Protection of
Human Rights
• The UN Charter encourages the adoption of regional instruments for
the establishment of human rights obligations,.
• The Council of Europe adopted:
a. in 1950 the European Convention for the Protection of Human
Rights and Fundamental Freedoms, supplemented by
b. the European Social Charter in 1961,
c. the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment in 1987,
d. and the Framework Convention on National Minorities in 1994.
• Under the Organisation of American States:
a. The American Convention on Human Rights was adopted in 1969,
b. two protocols, the 1988 Protocol of San Salvador on Economic,
Social, and Cultural Rights and the 1990 Protocol to Abolish the
Death Penalty.
c. the Convention to Prevent and Punish Torture (1985),
d. the Convention on the Forced Disappearances of Persons (1994),
e. the Convention on the Prevention, Punishment and Eradication of
Violence against Women (1995).
• The Organisation of African Unity, now the African Union, adopted:
a. the African Charter on Human and Peoples Rights in 1981.
b. Two protocols the Additional Protocol on the Establishment of
African Court on Human and People Rights (1998), and the Protocol
on the Rights of Women in Africa (2003).
c. the Convention Governing the Specific Aspects of Refugee Problems
in Africa (1969), and
d. the African Charter on the Rights and Welfare of the Child (1990)
B. INTERNATIONAL CUSTOM
• Customary international law plays a crucial role in international human
rights law.
• The Statute of the International Court of Justice refers to “general practice
accepted as law”.
• In order to become international customary law, the “general practice”
needs to represent a broad consensus in terms of content and applicability,
deriving from a sense that the practice is obligatory (opinio juris et
necessitatis).
• Customary law is binding on all states (except those that may have
objected to it, during its formation), whether or not they have ratified any
relevant treaty.
• A feature of customary international law is that customary law may,
under certain circumstances, lead to universal jurisdiction or
application, so that any national court may hear extra-territorial
claims brought under international law.
• In addition, there are peremptory norms of general international law,
or jus cogens, which are norms accepted and recognised by the
international community of states as a whole as norms from which no
derogation is permitted.
• Under the Vienna Convention on the Law of Treaties (VCLT) any treaty
which conflicts with a peremptory norm is void.
• Scholars argue that some standards laid down in the Universal
Declaration of Human Rights (which is only a resolution of the UNGA
and as such not legally binding) have become part of customary
international law as a result of subsequent practice; therefore they
would be binding upon all states.
C. GENERAL PRINCIPLES OF LAW
• General or guiding principles are used In the application of both
national and international law,
• In international law, they are referred to as logical propositions
resulting from judicial reasoning on the basis of existing pieces
• of international law
• General principles of law occupy an important place in case-law on
human rights.
• Example: the principle of proportionality, which is important for
human rights supervisory mechanisms in assessing whether
interference with a human right may be justified.
• Why are general principles used? No legislation is able to provide
answers to every question and to every possible situation that arises.
Therefore, rules of law or principles that enable decision-makers and
members of the executive and judicial branches to decide on the
issues before them are needed.
• General principles of law play two important roles:
1. they provide guidelines for judges, in deciding in individual cases;
2. they limit the discretionary power of judges and of members of the
executive in their decisions in individual cases
• According to Article 38 of the Statute of the International Court of
Justice, judicial decisions and the teachings of the most qualified
publicists are subsidiary means for the determination of rules of law
• Therefore, they are not, formal sources, but they are regarded as
evidence of the state of the law.
• As for the judicial decisions, Article 38 of the Statute of the
International Court is not confined to international decisions (such as
the judgments of the International Court of Justice, the Inter-
American Court, the European Court and the future African Court on
Human Rights);
decisions of national tribunals relating to human rights are also
subsidiary sources of law.
- The writings of scholars also contribute to the development and
analysis of human rights law. Their impact is indirect.
- Nevertheless, influential contributions have been made by scholars
and experts working in human rights for instance, in the UN Sub-
Commission on the Promotion and Protection of Human Rights, as
well as by highly regarded NGOs, such as Amnesty International and
the International Commission of Jurists.
HUMAN RIGHTS SYSTEMS
1. The Universal System: The UN System
2. The Legal Framework
1. Treaties
• Binding instruments adopted by states.
• They enshrine the fundamental rights and freedoms which a state
ascribes to and which its nationals are entitled to.
• They become legally binding to States which sign and ratify them.
• Examples: Vienna Convention on the Law of Treaties : governs the
creation, operation and legal effect of treaties in effect today.
Includes the major rules and regulations concerning treaties and
many of its elements represent common state practice, even
though many states have not ratified it.
What is a treaty
• Vienna Convention on the Law of Treaties: 1969 – Art 2(1)(a)
“ An International Agreement concluded between States in written
form and governed by international law, whether embodied in a
single instrument or in two related instruments and whatever its
particular designation.”
• Treaties are formal sources of international law.
• Very common in international human rights law.
• They are contracts concluded under international law and are
legally binding on the States which have agreed to them.
• Terminology: Treaties, conventions, covenants, protocols,
charters and statutes.
• Features:
1. Mostly written thus the contents of rights and freedoms can
easily be identified: oral treaties exist, and are binding though
there are no examples relevant to international human rights –
e.g. a promise made by one Minister of Foreign Affairs to another.
2. Bilateral: between two parties or Multilateral: between several
parties. International Human rights treaties are usually
multilateral instruments open to any state to sign at any time –
thus achieving the goal of international human rights.
3. Drafted by reps of States, umbrella Organisations (AU), EU, UN
and reps of NGOs thus the beneficiaries would be the people of the
world/ region.
- An international conference will be convened to allow a wide
number of states to debate proposed terms in treaties and decide
on unacceptable clauses.
- At these conferences, treaties are then launched or proclaimed
decades/years – The Convention on the Rights of the Child adopted
at the end of the International Decade on the Rights of the Child.
4. Treaties may be given a formal name or title but are usually
referred to by the city in which the text was agreed by the drafting
States – Banjul Charter on Human and People’s Rights of the
African Union; the Geneva Convention on the Laws of War.
- if several treaties are concluded in the same city, the full name of
the treaty may be used for identification purposes.
How to identify treaties
• All states possess the capacity to conclude treaties – Article 6
Vienna Convention
• Membership of UN is not necessary.
• Recognition by other states is necessary.
• Process followed by States wishing to be bound by the terms of a
treaty:
1. Signature
2. Ratification
- States joining a treaty after it has entered into force usually accede
to it.
Consent
• Art 11 Vienna Convention: The Consent of a State to be bound by a treaty may
be expressed by signature, exchange of instruments constituting a treaty,
ratification, acceptance, approval or accession or by any other means if so
agreed.
• Art 12 Vienna Convention:
1. The consent of a State to be bound by a treaty is expressed by the signature
of its representative when:
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were agreed that
signature should have that effect; or
(c) the intention of the State to give that effect to the signature appears from
the full powers of its representative or was expressed during the
negotiation.
• 2. For the purposes of paragraph 1:
(a) the initialling of a text constitutes a signature of the treaty when
it is established that the negotiating States so agreed;
(b) (b) the signature ad referendum of a treaty by a representative, if
confirmed by his State, constitutes a full signature of the treaty.
• Article 14 Consent to be bound by a treaty expressed by ratification, acceptance or
approval
1. The consent of a State to be bound by a treaty is expressed by ratification when:
(a) the treaty provides for such consent to be expressed by means of ratification;
(b) it is otherwise established that the negotiating States were agreed that ratification
should be required;
(c) the representative of the State has signed the treaty subject to ratification; or
(d) the intention of the State to sign the treaty subject to ratification appears from the
full powers of its representative or was expressed during the negotiation.
2. The consent of a State to be bound by a treaty is expressed by acceptance or
approval under conditions similar to those which apply to ratification.
• Accession" is the act whereby a state accepts the offer or the opportunity
to become a party to a treaty already negotiated and signed by other
states. It has the same legal effect as ratification. Accession usually
occurs after the treaty has entered into force.
• Article 15: Consent to be bound by a treaty expressed by accession
The consent of a State to be bound by a treaty is expressed by accession when:
(a) the treaty provides that such consent may be expressed by that State by
means of accession;
(b) it is otherwise established that the negotiating States were agreed that
such consent may be expressed by that State by means of accession; or
(c) all the parties have subsequently agreed that such consent may be
expressed by that State by means of accession.
• Once a statie indicates its intention to be bound by a treaty at the conference launching the
treaty, State representatives will usually be required to return to their respective States and
seek national approval and ratification for the terms of the treaty.
- Treaties are signed by an authorised state official.
- Art 7: 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for
the purpose of expressing the consent of the State to be bound by a treaty if:
(a) he produces appropriate full powers; or
(b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that
person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their
State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to
the conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State
to which they are accredited;
(c) representatives accredited by States to an international conference or to an international organization or one of its
organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.
• At signing, the treaty is politically and morally binding on the State.
• The signature is ratified after following national procedures
usually found in the Constitution. Can include referendums of
stePs to gain parliamentary or governmental approval of a treaty.
• After ratification, the instrument becomes legally binding on a
state and enforceable.
• Some treaties do not require ratification and become binding
solely on the basis of signatures.
Example of signature and ratification clause
• CONVENTION ON THE POLITICAL RIGHTS OF WOMEN 1952,
Article IV
1. This Convention shall be open for signature on behalf of any
Member of the United Nations and also on behalf of any other
State to which an invitation has been addressed by the General
Assembly.
2. This Convention shall be ratified and the instruments of
ratification shall be deposited with the Secretary-General of the
United Nations.
QUESTION
• In terms of national constitutional law, why are
signature and ratification treated separately and
why may both be required before a State is bound?
 State signs treaty

Any necessary
ratification occurs
Required number of ratification/lapse of specified time limit following ratification as
appropriate
Entry into force of treaty for State concerbed. State is legally bound to
comply with treaty obligations

Legal consequences ensue

• When ratifying an instrument, a State may also elect to indicate
whether it wishes to avoid legal liability for certain clauses –
Reservation.
• Legal effect of declarations and reservations shall affect the legal
impact of an instrument – discuss later.
When do treaties become legally binding? –
Art 24
• In international law, treaties become legally binding when they
enter into force.
• They become applicable and enforeceable on that date.
• Treaties only apply to States which have agreed to be bound to the
provisions of the treaty in question.
• States cannot be compelled to comply with a treaty which has not
entered into force or which has not yet been ratified by them.
• Political pressure is usually exerted to secure compliance with
certain human rights, e.g through trade and aid agreements. This
is different from legal enforcement of treaties.
• VIENNA CONVENTION ON THE LAW OF TREATIES 1969, Article 24
(1) A treaty enters into force in such a manner and upon such a
date as it may provide or as the negotiating States may agree.
(2) Failing any such provision or agreement, a treaty enters into
force as soon as consent to be bound by the treaty has been
established for all the negotiating States.
(3) When the consent of a State to be bound by a treaty is
established on a date after the treaty has come into force, the treaty
enters into force for that State on that date, unless the treaty
provides otherwise.
• A clause near the end of a treaty specifies when the treaty will come into
force/become legally binding on contracting parties.
• E.g.
• INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS 1966, Article 27
1. The present Covenant shall enter into force three months after the date of
the deposit with the Secretary-General of the United Nations of the thirty-
fifth instrument of ratification or instrument of accession.
2. For each State ratifying the present Covenant or acceding to it after the
deposit of the thirty-fifth instrument of ratification or instrument of
accession, the present Covenant shall enter into force three months after
the date of deposit of its own instrument of ratification or instrument of
accession.
• High Contracting Parties/ States Party/ Parties/ Signatories/
Member States: States which sign up to a treaty. Terminology
depends on the instrument. It is important to ascertain whether a
particular state is bound by a particular instrument. – the UN
human rights treaties issues a list of contracting States.
• Question What reasons are there for such a delay between
opening for signature and entry into force? Can delays ever be a
positive or essential element in creating a binding web of
obligations for the protection of human rights?
• Art 26: the doctrine of pacta sund servanda; once a treaty has
entered into force, all contracting parties are required to act per its
binding terms and to discharge any obligations in good faith.
• Art 29: unless otherwise specified, treaties are binding throughout
the territory of the Contracting State.
• Art 27: States may not invoke principles of their national laws as
justification for failing to comply with treaty obligations. National
laws do not supersede the terms of a binding international human
rights instrument.
WHAT HAPPENS IF A TREATY IS
CONCLUDED IN A FOREIGN LANGUAGE
• Treaties are usually concluded in one or more authentic
languages i.e. the language in which the treaty is confirmed as
being legally binding.
• The official languages of the organisation which has organised the
drafting of the treaty will be deemed authentic.
EXAMPLES
• UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION
AGAINST WOMEN 1979, Article 30The present Convention, the Arabic, Chinese,
English, French, Russian and Spanish texts of which are equally authentic, shall be
deposited with the Secretary-General of the United Nations.
• INTERNATIONAL LABOUR ORGANISATION CONVENTION NO 182 ON THE WORST
FORMS OF CHILD LABOUR 1999, Article 16
• The English and French versions of the text of this Convention are equally
authoritative.
• ORGANISATION OF AFRICAN UNITY CONVENTION GOVERNING THE SPECIFIC
ASPECTS OF THE REFUGEE PROBLEMS IN AFRICA 1969, Article X(2)
• The original instrument, done if possible in African languages, and in English and
French, all texts being equally authentic, shall be deposited with the Administrative
Secretary-General of the Organisation of African Unity.
• Question: What problems can having multiple authentic versions of a treaty cause in terms
of enforcement?
• VIENNA CONVENTION ON THE LAW OF TREATIES 1969, Article 33
When a treaty has been authenticated in two or more languages, the text is equally
authoritative in each language, unless the treaty provides or the parties agree that, in case of
divergence, a particular text shall prevail.
A version of the treaty in a language other than one of those in which the text was
authenticated shall be considered an authentic text only if the treaty so provides or the parties
so agree.
• The terms of the treaty are presumed to have the same meaning in each authentic text.
• Except where a particular text prevails in accordance with paragraph 1, when a comparison
of the authentic texts discloses a difference of meaning which the application of articles 31
and 32 does not remove, the meaning which best reconciles the texts, having regard to the
object and purpose of the treaty, shall be adopted.
SUBSEQUENT AMENDMENTS AND
ADDITION TO TREATIES
• Treaties can be amended through a protocol.
• Protocol – international instruments added on to a treaty.
• Optional, a State may be party to a main treaty but avoid
obligations under any associated protocols. In human rights,
protocols provide additional rights and freedoms.
• Examples include the two protocols of 2000 to the United Nations
Convention on the Rights of the Child on the involvement of
children in armed conflicts and on the sale of children, child
prostitution and child pornography.
• Enforcement mechanisms may be expressly stated.
• Within the African regional system, the protocol on establishing an
African Court on Human Rights was added to the African Charter
on Human and Peoples’ Rights several years after the original
treaty.
RESERVATIONS AND DEROGATIONS
• When becoming party to a treaty, a state may, by formulating
reservations, declarations and interpretative statements, seek to
limit its domestic application beyond what is permissible under
the limitations referred to above.
• Although it is desirable that states become party to a convention
unconditionally, this is often not the case.
RESERVATIONS
• A reservation is a statement made by a state by which it purports
to exclude or alter the legal effect of certain provisions of a treaty
in their application to that state.
• May enable a state to participate in a multilateral treaty that it
would otherwise be unable or unwilling to participate in.
•
• Article 19 of Vienna Convention on the Law of Treaties which sets out the general
rule on reservations:
A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless:
(a) The reservation is prohibited by the treaty;
(b) The treaty provides that only specified reservations, which do not include the reservation in
question, may be made; or
(c) In cases not falling under subparagraphs (a) and (b), the reservation is incompatible with the
object and purpose of the treaty.
• Unless expressly permitted by a treaty, the effectiveness of a reservation is
dependent on its acceptance by other states parties, and any other state party may
object to it.
• A reservation is considered accepted by another state party if that state party has
raised no objection within twelve months after it has been notified of the reservation
(Article 20(5) VCLT).
• Example: The International Court of Justice stated in its Advisory
Opinion on the Genocide Convention (1951): Object and purpose
of the Convention limit both the freedom of making reservations
and that of objecting to them.
• Regrettably, silence on the part of other states parties seems to be the common response to
reservations.
• Reservations should be formulated as precisely and narrowly as possible: The UN
Commission on Human Rights (Resolution 1998/9).
• Reservations often reflect an admission (opposition) that the country in question cannot, or
will not, bring its conduct up to international standards.
• General reservations may, encourage other states to follow suit, and thereby reduce the
ability of the state making the reservation to complain when other states make similar
reservations.
• Furthermore, extensive limitations may contravene established principles of international
law contrary, to Article 27 VCLT that states:
A party may not invoke the provisions of its domestic law as justification for its failure
to perform a treaty.
E.G. Article 57(1) of the ECHR prohibits reservations of a general character.
DECLARATIONS
• Some conventions allow or even require states parties to make declarations
concerning the extent to which they are bound by a certain provision.
• Such statements may relate to the competence of a supervisory
mechanism.
• Article 41 ICCPR stipulates that a state party may choose (not) to recognize
the competence of the Human Rights Committee to receive state complaints
regarding its human rights performance.
• This type of declaration, as provided by the instruments, does not pose major
problems.
• A state party may make interpretative declarations, otherwise known as
understandings, whereby it does not intend to modify or limit the provisions
of the treaty, but indicates merely how it interprets a particular article.
• Interpretative declarations may raise certain problems in international law as
to their differentiation with reservations.
• One of the major differences between a reservation and an interpretative
declaration lies in the author’s purpose in making that declaration.
• While a reservation seeks to exclude or modify the legal effect of the treaty’s
provisions in their application to the state author, the interpretative
declaration seeks only to clarify the meaning or scope of the treaty
provisions.
• It is the intention of the state rather than the form or the name or title which
matters.
• If a statement purports to exclude or modify the legal effect of a treaty in its
application to the state, that is a reservation.
• If a reservation merely provides a state9s understanding of a provision,
without excluding or modifying that provision, it is in reality not a reservation.
RESTRICTIONS AND DEROGATIONS
• Conventions and other instruments may contain a number of restrictions or limitations to the rights they stipulate.
• It is generally accepted that only few rights and freedoms are ,absolute’.
• Restrictions (or limitations) must be used only to establish the proper limits of the protected right and not as an excuse for
undermining the right itself or destroying it altogether.
• There must be a proportionate relationship between the restriction of the right as such and the reason for the restriction.
• Article 4 of ICESCR, for instance, reads: The states parties to the present Covenant recognise that, in the enjoyment of those rights
provided by the state in conformity with the present Covenant, the state may subject such rights only to such limitations as are
determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting general
welfare in a democratic society.
• The African Charter on Human and Peoples’ Rights does not contain a specific provision on restrictions but Article 27(2) on duties has
come to play the role of a general limitation clause providing:
“The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and
common interest.”
• In order to prevent abuse, conventions often contain a paragraph prohibiting the abuse of an international instrument to
destroy another right.
• Article 5 of ICCPR, , stipulates: Nothing in the present Convention may be interpreted as implying for any state, group or person any right
to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised herein or at their
limitation to a greater extent than is provided for in the present Covenant.
• Most human rights treaties contain specific provisions in various individual articles, which specify the
limitations and restrictions that are allowed on the particular right, using clauses such as: “prescribed
by law”, “national security”, “public safety” and “rights and freedoms of others”.
• For a few rights, such as freedom from torture or slavery, no limitations have been formulated.
• When a right is subject to a limitation, no other limitations are permitted and any limitation must
comply with the following minimum requirements:
✓ The limitation must not be interpreted so as to jeopardise the essence of the right concerned;
✓ The limitation must be interpreted strictly in the light and context of the particular right;
✓ The limitation must be prescribed by law and be compatible with the object and purpose of the instrument;
✓ The restriction must be based on a law;
✓ The restriction must be necessary; there must be a pressing social need, assessed on a case-by-case basis
✓ The restriction must be justified by the protection of a strictly limited set of well-defined public interests, which
usually includes one or more of the following grounds:
o national security, public safety, public order (order public), the protection of health or morals, and the protection of
the rights and freedoms of others.
DEROGATIONS
• Some human rights instruments allow states to take measures derogating
temporarily from some of their obligations.
• Derogating measures must be of an exceptional and temporary nature.
• E.g. in Article 15 of ECHR, Article 27 of ACHR and Article 31 of European Social
Charter.
• Some human rights instruments, such as the Convention on the Right of the Child,
the ICESCR, and the African Charter on Human and Peoples’ Rights, do not
contemplate any derogation clause.
• The rationale for derogation provisions is to strike a balance between the sovereign
right of a government to maintain peace and order during public emergencies, and
the protection of the rights of the individual from abuse by the state.
• A state is allowed to suspend the exercise of some rights when necessary to deal
with an emergency situation (e.g., derogation of the right to peaceful assembly),
provided it complies with safeguards against any abuse of these derogation
provisions.
• When derogation measures are allowed, such derogations have to
meet several criteria:
✓ There must be a war or general state of emergency threatening the life of
the nation;
✓ The state of emergency must be officially proclaimed;
✓Measures may not go beyond the extent strictly required by the situation;
✓Measures may not be inconsistent with other obligations under
international law; and
✓Measures may not be discriminatory solely on grounds of race, colour,
sex, language, religion or social origin.
• A state instituting its right of derogation must immediately provide justification for its
decision to proclaim a state of emergency and also for any specific measure based
on such a proclamation.
• E.G., the Final Document of the 1991 Moscow meeting of the Conference on
Security and Co-operation in Europe (CSCE), states: (after Cold War)
• “The participating states reaffirm that a state of public emergency is justified only by the
most exceptional and grave circumstances [...]. A state of public emergency may not be used
to subvert the democratic constitutional order, nor aim at the destruction of internationally
recognised human rights and fundamental freedoms. [...] The participating states confirm
that any derogation from obligations relating to human rights and fundamental freedoms
during a state of public emergency must remain strictly within the limits provided for by
international law, in particular the relevant international instruments by which they are
bound, especially with respect to rights from which there can be no derogation.”
• Limits have thus been set out on the extent to which states can derogate from their
human rights obligations.
e.g., Article 4(2) of ICCPR, Article 15(2) of ECHR and Article 27(2) of
ACHR), a number of rights can under no circumstances be limited
or derogated from.
• Such rights are often called not stands fest and include the right
freedom from slavery, torture and imprisonment for debt, the
principle of legality in the field of criminal law, freedom of thought,
conscience and religion and the right to juridical personality.
• The Human Rights Committee, in its General Comment 29 sets
out in detail the conditions that must be met in order to derogate
from the rights contained in the ICCPR and refers in length to
those rights which are not derogable.
• The Committee established that the rights contained in Article
4(2) of ICCPR are not the only non derogable rights; there are
elements of other rights not listed in Article 4(2) that cannot be
subject to lawful derogation.
Summary
• The 1991 Moscow Meeting of the Conference on Security and Co-operation in Europe (CSCE) emphasized the non-
derogable nature of fundamental human rights, reinforcing states' obligations even in times of emergency.
1. Non-Derogable Rights
Certain human rights cannot be suspended under any circumstances, including:
1. The right to life (prohibition of arbitrary kilngs).
2. The prohibition of torture and inhuman or degrading treatment.
3. The prohibition of slavery and servitude.
4. The recognition of legal personality.
2. Strict Limitations on Emergency Measures
Any derogation must:
1. Be proportional, temporary, and necessary for public security.
2. Not be used to justify political repression or violations of fundamental rights.
3. Be officially declared and subject to international oversight.
3. Role of International Oversight
The document strengthened the CSCE’s monitoring role in ensuring compliance with human rights obligations.
It emphasized transparency, requiring states to justify derogations and allow independent review.
4. Elections and Democratic Governance
Even in emergencies, states must uphold democratic governance and free elections.
Reaffirmed that emergency measures cannot be used to silence opposition or restrict political freedoms.
INSTITUTIONS AND MECHANISMS
• The numerous human rights conventions under the framework of
the United Nations and the regional systems in Africa, the
Americas and Europe have led to the creation of a wide range of
mechanisms for monitoring compliance with the standards
agreed upon.
• We will examine the different procedures, which have been
instituted at the international and regional levels to monitor
compliance with human rights treaties.
• There are two types of supervisory mechanism:
a) Treaty-based mechanism: supervisory mechanisms enshrined
in legally binding human rights instruments or conventions.
Within the UN framework these mechanisms are called treaty
bodies, e.g., the Human Rights Committee and the Committee on
the Rights of the Child. The African Commission and future Court
on Human and Peoples’ Rights, the European Court and
commission of Human Rights and the Inter-American Court and
Commission of Human Rights are also treaty bodies.
b) Non-treaty- based mechanisms: supervisory mechanisms not
based on legally binding human rights treaty obligations.
- Generally, this type of mechanism is based on the constitution or
charter of an intergovernmental human rights forum, or on
decisions taken by the assembly or a representative body of the
forum in question.
-Under the UN framework, the non-treaty-based mechanisms are
referred to as ‘charter-based, mechanisms, which include the
country mandates e.g. The European Commission against Racism
and Intolerance under the Council of Europe