THE NATURE OF HUMAN RIGHTS

Magana Carta 1215; The first ever Bill of rights, pursued by the barons during the reign of
King John. Included rights to property, access to swift and impartial justice, illegal
imprisonment, etc.
Universal Declaration of Human Rights 10 December 1948; ‘Recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world’.
Positive rights are those enshrined within a legal system, moral rights are those not necessarily
enforceable by law.
Natural Law view on Rights:
 Associated primarily with John Locke
 They exist as a result of a higher law than man-made law.
 This law constitutes a universal and absolute set of principles governing all human beings in
time and space.
 The natural inalienable rights as the rights to life, liberty and property
 The theory provides a powerful method of restraining arbitrary power.
 Led to establishment of human rights within the international community as universal
principles.
Positivist View on Rights:
 Emphasized the authority of the state.
 Rights emanate from the constitutional structure of that system.
 Marxist doctrine denied the existence of rights outside the framework of the legal order.
 Rights change with change in the legal system.
Modern policies on rights are guided by;
Demands relating to respect, power, enlightenment, well-being, health, skill, affection, and
various environmental influences.
Human dignity is seen as the key in seeking a democratic distribution of values, McDougal et
al, Human Rights,
THE BASIC CIVIL AND POLITICAL RIGHTS
 Rights that take the form of claims limiting the power of government over the governed.
 Due process
 Freedom of expression
 Assembly and religion
 Political participation in the process of government.
The consent of the governed is seen as crucial
The approach of the Soviet Union, the source of human rights principles is the state. G. Tunkin,
Theory of International Law.
Focus is not upon the individual (as in Western conceptions of human rights) but solely upon the
state.
Human rights were implemented by the state and matters basically and crucially within the
domestic affairs of the state.
Accordingly, the nature and context of those rights would vary from state to state
THE DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW.
The nineteenth century;
The positivist doctrines reigned supreme.
Human rights regarded as within the internal sphere of national jurisdiction except piracy jure
gentium and slavery; C. Greenidge, Slavery, London, 1958
Concern also with the treatment of sick and wounded soldiers and with prisoners of war
developed.
Observation of certain minimum standards in the treatment of aliens.
Certain agreements of a general welfare nature were beginning to be adopted.
Acceptance of the right of humanitarian intervention
Establishment of the League of Nations in 1919.
Article 22; Rights of peoples in mandated territories
Guarantee freedom of conscience and religion
Article 23;ust treatment of the native populations of the territories in question.
Included provisions relating to the protection of minorities
providing essentially for equality of treatment and opportunities for collective activity.
Creation of the International Labour Organisation, the promotion of better standards of working
conditions and support for the right of association.
SOME BASIC PRINCIPLES
Domestic jurisdiction.
Article 2(7) of the UN Charter: States have no right to encroach upon the preserve of other
states’ internal affairs;
The above provision has been subject to a process of reinterpretation in the human rights field;
C. F. Amerasinghe, Local Remedies in International Law, 2nd edn, Cambridge, 2004
States are permitted to solve their own internal problems in accordance with their law.
However, where such internal remedies are non-existent or unreasonably prolonged or unlikely
to bring effective relief, resort to international measures will be required.
Customary International Law and Human Rights
Rights that have entered into the category of customary international law in the light of state
practice
1. The prohibition of torture
2. The prohibition of genocide
3. The prohibition of slavery
4. The principle of non-discrimination.
Human rights established under treaty may constitute obligations erga omnes for the states
parties.
Article 15 of the European Convention; right to life, prohibition on torture and slavery, non-
retroactivity of criminal offences.
Inter-American Convention; right to juridical personality, right to life and humane treatment,
freedom from ex post facto laws, rights of the family, right to a name of the child
The United Nations system – Human Rights Provisions In The Charter.
Article 1; The promotion and encouragement of respect for human rights and freedoms for all
without discrimination.
Article 13(1); The General Assembly shall initiate studies and make recommendations regarding
the realization of human rights for all.
Article 55; The United Nations shall promote universal respect for and observance of human
rights;
Article 56; All members pledge themselves to take joint and separate action in cooperation with
the organisation for the achievement of the purposes set forth in article 55;
Article 2(7); On domestic jurisdiction, nothing contained in the present Charter shall authorise
the United Nations to intervene in matters which are essentially within the domestic jurisdiction
of any state;
However, human rights issues are no longer recognised as being solely within the domestic
jurisdiction of states.
DEVELOPMENT AND PROTECTION OF HUMAN RIGHTS THROUGH THE UN.
Declarations and treaties has emerged
Establishment of a variety of advisory services
Establishment of implementation and enforcement mechanisms.
Large numbers of studies and reports of various kinds have appeared
A number of committees and UN organs have been set up
The Universal Declaration of Human Rights adopted by the UN General Assembly on 10
December 1948.
It was approved without a dissenting vote
Its preamble proclaims, ‘a common standard of achievement for all peoples and nations’.
Its thirty articles cover a wide range of rights, from liberty and security of the person (article 3)
 Equality before the law; Article 7
 Effective remedies; Article 8
 Due process; Articles 9 and 10
 Prohibitions on torture; Article 5
 Prohibition of arbitrary interference with privacy; Article 12
 Rights protecting freedom of movement; Article 13
 Asylum; Article 14
 Conscience and religion; Article 18
 Assembly; Article 20.
 Social and economic rights such as the right to work and equal pay; Article 23
 The right to social security; Article 25
 The right to education; Article 26
Though not binding, but it it constitutes ‘an obligation for members of the international
community’. Review of the International Commission of Jurists, 1968, p. 94.
It has been referred to in many cases.
The post of UN High Commissioner for Human Rights was indeed established several months
later and filled in April 1994
ADOPTED INTERNATIONAL CONVENTIONS DEALING WITH SELECTIVE
HUMAN RIGHTS.
Prohibition of genocide: The Genocide Convention, London, 1960;
Genocide, a crime under international law.
Includes acts committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group as such’.
The ICTY and the ICTR provided for the prosecution of individuals for the crime of genocide.
In Bosnia and Herzegovina v. Yugoslavia, Yugoslavia had violated the Genocide Convention;
the ICJ.
Stated; the crime of genocide ‘shocks the conscience of mankind, results in great losses to
humanity . . . and is contrary to moral law...
The Court emphasised that the rights contained in the Convention were rights and obligations
erga omnes
Prohibition of discrimination: The International Convention on the Elimination of All Forms
of Racial Discrimination 1969.
Racial discrimination is any distinction, exclusion, restriction or preference based on race,
colour, descent or national or ethnic origin…
States parties undertake to prohibit racial discrimination and guarantee equality for all in the
enjoyment of a series of rights..
Article 26: All persons are equal before the law and thus, ‘the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against discrimination.
Equality in law precludes discrimination of any kind; whereas equality in fact involves different
treatment in order to attain a result which establishes an equilibrium between different
situations’. PCIJ in the Minority Schools in Albania case,
Requires the introduction of affirmative action measures in order to diminish or eliminate
conditions perpetuating discrimination.
Self-determination as a human right: International Covenants on Human Rights
Article 1; ‘All peoples have the right to self-determination.
To freely determine their political status and freely pursue their economic, social and cultural
development’
The Helsinki Final Act of 1975; ‘ . . all peoples have the right, in full freedom, to determine,
when and as they wish, their internal and external political status.
Article 20 of the African Charter on Human and Peoples’ Rights, 1981; ‘all peoples shall
have the right to existence. They shall have the unquestionable and inalienable right to self-
determination.
The 1970 Declaration on Principles of International Law Concerning Friendly Relations;
Subjection of peoples to alien subjugation, domination and exploitation constituted a violation of
the principle”
THE UNITED NATIONS SYSTEM – IMPLEMENTATION
Article 13;The General Assembly has power to initiate studies and make recommendations
regarding human rights.
Article 62; Recommendations on human rights, draft conventions for the Assembly and call
international conferences on human rights matters.
Hears annually the reports of a wide range of bodies including the UN High Commissioner for
Refugees, the UN Children’s Fund
1. The Commission on Human Rights (1946–2006)

Established in 1946
Consists of fifty-three representatives of member states of the UN.
Makes studies, prepares recommendations and drafts international instruments on human rights.
Examines information relevant to gross violations of human rights contained in communications,
Studies situations that reveal a consistent pattern of violations of human rights.
Holds public debates relating to specific situations. In 1967, also, the Commission set up an ad
hoc working group of experts on South Africa.
2. The International Covenant on Economic, Social and Cultural Rights 1976

Article 2; States undertakes to take steps to the maximum of its available resources ‘with a view
to achieving progressively the full realisation of the rights recognized in the present Covenant’.
The rights include; self-determination (article 1), the right to work (articles 6 and 7), the right to
social security (article 9).
It examines states’ reports, drawing upon a list of questions prepared by its pre-sessional
working group.
The Committee also prepares ‘General Comments’
The Committee also holds general discussions on particular rights.
EXPERT BODIES ESTABLISHED UNDER PARTICULAR TREATIES.
A number of expert committees have been established under particular treaties.
1. The Convention on the Elimination of All Forms of Racial Discrimination, 1965
 The Committee on the Elimination of Racial Discrimination
Committee of eighteen experts
States parties undertook to submit reports every two years regarding measures adopted to give
effect to the provisions of the Convention
The Committee may make suggestions and general recommendations based on the examination
of the reports and information received from the states parties,
The Committee is also able to operate early warning measures and urgent procedures.
Decisions, statements or resolutions may be adopted. Such action has been taken in relation to
more than twenty states parties.
The Committee also considers relevant information from other sources, including from non-
governmental organisations.
Article 11; one state party may bring a complaint against another state party and the Committee
will seek to resolve the complaint.
the Committee may also hear individual petitions under the article 14 procedure.
2. The International Covenant on Civil and Political Rights was adopted in 1966 and
entered into force in 1976.
By article 2, all states parties undertake to respect and to ensure to all individuals within their
territory and subject to their jurisdiction the rights recognised in the Covenant.
These rights include; self-determination (article 1), the right to life (article 6), prohibitions on
torture and slavery (articles 7 and 8), among others.
 A Human Rights Committee was established under Part IV of the Covenant.
It consists of eighteen independent and expert members
The Committee meets three times a year (in Geneva and New York).
The Covenant is primarily implemented by means of a reporting system.
Reports required every five years.
Reports are discussed by the Committee with representatives of the state concerned
Receives information from named non-governmental organisations.
The Committee may also seek additional information from the state concerned.
The committee can make general comments, Article 40(4); On article 6 (the right to life), ‘the
designing, testing, manufacture, possession and development of nuclear weapons are among the
greatest threats to the right to life’
3. 1979 Convention on the Elimination of all Forms of Discrimination Against Women
 The Committee on the Elimination of All Forms of Discrimination Against Women.
It works by means of states’ reports. It is composed of twenty-three experts serving in individual
capacities for four-year terms.
It held its first regular session in October 1982 and at its second session examined the reports of
seven states parties regarding measures taken to comply with the terms of the Convention.
It reports annually to the UN General Assembly through ECOSOC.
It provides General recommendations
GR No. 5; states parties to make use of ‘temporary special measures such as positive action,
preferential treatment or quota systems to advance women’s integration into education.
GR No. 12; states parties to include in their reports information on measures taken to deal with
violence against women
GR No. 14; measures to be taken to eradicate the practice of female circumcision.
GR No. 19 (1992); the problem of violence against women in general and specific terms,
GR No. 21 is concerned with equality in marriage and family relations.
4. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, 1987.
The prohibition of torture is a human right that has become part of customary international law.
Indeed it is now established as a norm of jus cogens.
Article 1; Torture is any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person
information….. when such pain or suffering is inflicted by or at the instigation of a public
official..
 The states parties are under duty to take measures to prevent such activities in territories
under their jurisdiction (article 2),
 Not to return a person to a country where he may be subjected to torture (article 3),
 To make torture a criminal offence and establish jurisdiction over it (articles 4),
 To prosecute or extradite persons charged with torture (article 7)
 To provide a remedy for persons tortured (article 14).
 The Committee against Torture
Established under Part II of the Convention
Commenced work in 1987.
It consists of ten independent experts,
states parties should ‘bear in mind the usefulness of nominating persons who are also members
of the Human Rights Committee’.
The Committee receives states’ reports (article 19)
The Committee may also make comments on states’ reports in the form of concluding
observations and may issue general comments.
Interim measures of protection may also be granted under Rule 108(1)
An Optional Protocol to the Convention to enable the Committee through a new Subcommittee
on Prevention to conduct regular visits to places of detention.
5. The Convention on the Rights of the Child 1989.
It provides that in all actions concerning children, the best interests of the child shall be a
primary consideration.
 Inherent right to life (Article 6);
 The right to a name and to acquire a nationality (Article 7);
 The right to freedom of expression (Article 13);
 The right to freedom of thought, conscience and religion (Article 14);
 The right to the enjoyment of the highest attainable standard of health (Article 24).
Article 43 of the Convention on the Rights of the Child provides for the establishment of a
Committee,
 The Committee on the Rights of the Child
Elected in 1991, was originally composed of ten independent experts
has the competence to hear states’ reports (article 44)
submits reports every two years to the General Assembly through.
Has sessions in which it holds general discussions on particular topics;
A general discussion on the ‘girl-child’ was held at the eighth session of the Committee in 1995.
The committee may send a communication to the state ‘in a spirit of dialogue’ and may request
the provision of additional information or suggest a visit.
6. The International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families December 1990.
A migrant worker as ‘a person who is to be engaged, is engaged, or has been engaged in a
remunerated activity in a state of which he or she is not a national’ (Article 2).
 Migrant workers are entitled to equality of treatment with nationals in areas such as matters
before courts and tribunals (Article 18)
 Terms of employment (Article 25)
 Freedom to join trades unions (Article 26)
 Medical treatment (Article 28)
 Access to education for their children (Article 30)
 Respect for cultural identity (Article 31).
 Protected from collective expulsion (Article 22).
The Convention provided for the creation of a Committee of fourteen independent experts (Part
VII).
 The Committee on the Protection of Migrant Workers
States parties to provide reports on measures taken to give effect to the provisions of the
Convention (article 73).
An inter-state complaints procedure; article 76
An individual complaints procedure; article 77
Conclusions
Most international human rights conventions obligate states parties to take certain measures with
regard to the provisions contained therein, whether by domestic legislation or otherwise.