Unit I: Introduction to International Organization and Human • usually in order to safeguard the state sovereignty operated at

Rights the level of consent, recommendation and cooperation rather

than through compulsion or enforcement.
Definition of International Institutions/ International Organizations • IOs are capable of entering into agreements among themselves
• No exact definition. or with states.
• As per Adulla El Erian, International Institution is an association of
states established by treaty possession as the constitution and Nature of IOs
common organs and having legal personality distinct from the • IOs stand for membership group that operates across national borders
member states. for specific purposes.
• are the secondary entities created by States, which are the • It is the cooperative arrangement instituted among states, usually by a
principle actors of IS. basic agreement, to perform some mutually advantageous functions .
• created by treaty. • “formal institutional structures transcending national boundaries
• has its organs. which are created by multilateral agreement among nation states.
• most IO operate as part of one or more international regimes. • Their purpose is to foster international cooperation in areas
• WTO, NAFTA and EU are key organizations that define such as security, law, economic and social matters, and
the international trade regime. diplomacy.
• An IO is an organization with an international membership, scope or • In the modern sense, an international organization, or more formally
presence. intergovernmental organization (IGO), is an organization, such as the
• the International institutions operate by organizing cooperation United Nations, European Community or the WTO, with sovereign
between the national governments. states or other IGOs as members
• Starke, the word “institution” is here used in its widest sense as • Such organizations function according to the principles of
nomen generalissimum for the multiplicity of creations for associating inter-governmentalism, which means that unanimity is
states in common enterprises required.
• (a) the rules of law relating to the functioning of international
institutions or organizations, their relations with each other, Scope and Functions of IOs
states and their relations with States and individuals; and • In terms of scope, international organizations perform a varied
• (b) certain rules of law relating to individuals and non State number of useful functions within the state system.
entities so far as the rights or duties of such individuals and • to provide the means of cooperation among states in areas in
non State entities are the concern of the international which cooperation provides advantages for all or large number
community. of nations. They not only work as a platform to take
• Characteristics of IO include: cooperative decisions but also the administrative tool for
• a permanent organization to carry on a continuing set of translating the decisions into action.
functions; • They also provide multiple channels of communication
• Voluntary membership or eligible parties; among governments so that areas of accommodation may be
• A basic instrument stating goals, structure and methods of explored and easy access will be available when problem
operation; arise.
• a permanent secretariat to carry on continuous • In conflict situations, if states are willing to explore the
administrative ,research and information functions. possibilities of accommodation and compromise,
• The nature of IO is different than any other organizations, modern IOs have made available a new dimension
• IO must be established by treaty providing it with legal beyond the previously existing channels of diplomacy
recognition, and peaceful settlement.
 • The United Nations, the Specialized Agencies, and • Although multinational corporations (MNCs)share many
regional organizations provide multiple and continuous characteristics of NGOs, they are not international organizations
contact points through which accommodation can be because they do not coordinate the actions of members for mutual
reached. gain.
• International organizations serve many diverse functions, including
collecting information and monitoring trends (e.g., the World Importance of IOs
Meteorological Organization), delivering services and aid (e.g., the • Increasing independence of the states-search the areas of mutual
World Health Organization), and providing forums for bargaining advantage such as trade , communications, economic
(e.g., the European Union) and settling disputes (e.g., the World development, and world peace.
Trade Organization). • Since the states must, in so many areas, cooperate, adjust,
accommodate, and compromise to promote their common
Classification of IOs welfare, to solve problems not limited to national boundaries, and to
• Intergovernmental Organizations ( IGOs) lessen conflict, it is entirely logical for them to create elaborate
• International Nongovernmental Organizations ( INGOs) agencies of international organizations for these ends
• The interdependence of nations in the modern world means that no
Intergovernmental Organizations (IGOs) single nation can dictate the outcome of international conflicts.
• IGOs have national governments as members. • Nor can private groups and individuals rely on national
• Member nations have created each of these organizations to serve a governments to solve major world problems.
purpose that those nations find useful. • Therefore, both governments and individuals will continue to turn
• Membership can range from as few as two member nations to to International Organizations as an important way to address
virtually all nation. these problems and to protect their own interests
• The UN and its various agencies are IGOs.
• world’s economic coordinating institutions, such as the World Bank Origin and Development of International Institutions
and the International Monetary Fund (IMF). T
• The Organization of Petroleum Exporting Countries (OPEC) seeks to The Holy Alliance
coordinate the production and pricing policies of its 12 member states. • Established after the Vienna Congress 1815
• The International Atomic Energy Agency (IAEA) seeks to regulate • Vienna Congress, was a meeting of ambassadors of European
the flow of nuclear technology to developing nations. states held in Vienna from November 1814 to June 1815.
• The WTO helps negotiate and monitor agreements among 128 nations • The objective of the Congress was to provide a long-term
to lower trade barriers. peace plan for Europe by settling critical issues arising from
• Military alliances, such as the North Atlantic Treaty Organization the French Revolutionary Wars and the Napoleonic Wars.
(NATO) and the Southeast Asia Treaty Organization (SEATO), and • Holy Alliance, a loose organization of most of the
political groupings, such as the Arab League, and the African Union European sovereigns, formed in Paris on Sept. 26, 1815,
are also IGOs by Alexander I of Russia, Francis I of Austria, and Frederick William
III of Prussia when they were negotiating the Second Peace of
International Nongovernmental Organizations Paris after the final defeat of Napoleon.
• International Nongovernmental organizations are private • Had the expressed interest of preserving Christian social
organizations whose memberships and activities are international in values and traditional monarchism.
scope. NGOs do not possess the legal status of national governments. • This alliance formed ‘Holy and indivisible trinity’, which established
• Examples of NGOs include Greenpeace, the International Olympic the notion that all member nation , in their own alternative and outside
Committee, and the ICRC. affairs need to incorporate justice, mercy, peace and holy religious
 rules and other that that they cannot make or apply any other international relations rather than concrete mutual obligations
rules. among the signers.
• The three monarchs had declared their fixed resolution to take as the
only rule of their future administration, both in internal and foreign Failure of Holy Alliance
affairs, the principles of the Christian religion-justice, love and • This revolutionary agreement could not succeed because it was
peace. created primarily to keep France , and old enemy , under check
• It aimed to re-establish the principle of hereditary rule and to but with the passage of time the possibility of France posing a
suppress democratic and nationalist movements, which sprung up serious threat to the peace of Europe, receded the alliance was
in the wake of the French Revolution. naturally weakened.
• After applying the policy of interfering in other nations internal affair,
Objectives during 19th century, it tried to interfere in America's internal affair
• To end the war. which was stopped by taking action through Monroe Doctrine
• To establish new principles for international domestic politics in which was brought in 1823.
Europe following the Napoleonic wars. • The 1823s Monroe Doctrine , 1825 Tsar Alexander's death and in
• By the early 1820s, the expression came to mean the reactionary 1830s the July revolution happened in France made the end of Holy
policies pursued by the three empires against the threats of social and alliance.
national revolution that persisted after the Napoleonic war. • The Holy alliance merely had the aim of moral manifesto and it
• This treaty’s main object was to announce that the allies would lacked even this value and no justification and interpretation was
take guidance from Christianity’s “precepts of justice, Christian provided at the end.
Charity and peace,” in their domestic administration and • It was solely an emanation of the pietistic feelings of the Emperor
relations with other states. Alexander and the application of the principles of Christianity to
politics.
Articles
• The treaty laid down three articles: The Concert of Europe
 Article 1 stated , ‘Holy scriptures’, the rulers would be united by “a • Idea by Austrian Chancellor, Kaunitz in 1971
true and indissoluble fraternity.” obligated to help one another ‘on all • The expression was found in Treaty of Chaumont in March 1814.
occasion and in all places.’ they also pledged to act as “ fathers of • Founding members : Great Britain, Russia, Prussia and Austria.
families” in relation to their subjects and armies, leading them in a • European Powers planned some means to secure the permanence of
“spirit of fraternity”, to defend “ religion, peace and justice.” Vienna Settlement. (Congress of Vienna)
 Article 2 declared that the only principle governing relation among • With that object in view, Great Britain, Austria, Prussia, and Russia
governments and their subjects “ shall be that of doing each other entered on 20 November 1815 into the Quadruple Alliance for the
reciprocal service.” maintenance of the treaties.
 Article 3 invited all powers recognizing the sacred principles which • The Powers also agreed to hold periodical meetings “either under the
have dictated the present Act to join “this holy alliance.” immediate supports of sovereigns or through their ministers.”
• This system of diplomacy by conferences was one of the most
End or Termination of Holy Alliance interesting experiments of 19th century. The period that followed the
• Despite occasional conflicts among the aliens, this conservative Quadruple Alliance is known as the Era of Congresses.
coalition endured as a safeguard of the international order unit 1854 • The Concert of Europe was the balance of power that existed in
during the Crimean war. Europe from the fall of Napoleon Bonaparte to the outbreak of World
• The ‘holy Alliance of sovereigns of Austria, Prussia and Russia War I.
departed from convention in emphasizing an overarching vision of • It was the result of a custom made in order to plan a solution by
 mutual agreement (hence "concert"), whenever some problem arose Great Britain opposed the proposal. The result was that when the British
that threatened peace between European nations. point of view regarding non-intervention was not accepted, Great Britain
withdrew from the Congress and thus the era of Congress ended.
Primary Objectives
• Add France after decades of war in concert Causes of Failure of Concert
• Uphold the territorial arrangements made at the Congress of Vienna • The principle of intervention in the internal affairs of the States
in 1814-1815 divided the Powers into two camps. Great Britain opposed the
• Prevent the rise of another Napoleonic figure which would result in principle in 1818. In spite of that the Protocol of Troppau was made
another continent wide war. in 1820. The era of Congresses collapsed with the withdrawal of
• Use this system to oppose the revolutionary movements, weaken the Great Britain.
forces of nationalism and uphold the balance of power ( so that the • There was no internal harmony among the Powers. Merely an
ambitions of each Great Power would be restrained by the others). outward show of co-operation was maintained for some time.
• In these Congresses, the dominating personality was the Austrian • It was also stated that the Concert of Europe was a product of the
Chancellor, Metternich Napoleonic Wars and its object was to provide against a common
• Under his leadership and guidance, the Quadruple Alliance practically enemy-France. However, when the French danger was over, the unity
established a dictatorship of the Powers. among the Allies was gone and every Power decided to deal
• The Concert of Europe broke up after holding four conferences at individually with her diplomacy.
Aix-la-Chapelle in 1818, at Troppau in 1820, at Laibach in 1821, and • It fell apart because the common goals of great powers were replaced
at Verona in 1822. by growing political and economic rivalries.
• The concert’s effectiveness came to an end because of many factors
1. Congress of Aix-la-Chapelle (1818): The purpose was to decide the such as the British distrust of Russia.
withdrawal of the army of occupation from France and re-negotiate the • The concert ceased to perform its central function during the war in
compensations it owed. It produced an amicable settlement, whereby Crimea which was designed to destroy Russia sea power.
France re-financed its reparations debt, and the Allies in a few weeks
withdrew all of their troops. The Hague Systems
• General sets of rules and principles of international conferences
2. Congress of Troppau (1820): The Congress of Troppau marks the primarily important for the development of laws of the war.
high point of Metternich’s diplomatic skill. The Congress also passed the • It started with the main motive to establish international institution of
famous Protocol of Troppau which justified the intervention of one State political nature but became successful to develop the public
in the internal affairs of other States. Great Britain, however, refused to international laws related to warfare mostly influenced by the Lieber
be a party to the declaration. Code of 1863.
• Started from the Westphalia Convention of 1648.
3. Congress of Laibach (1821): The Congress of Laibach was a • The Hague Conventions were international treaties negotiated at the
conference of the allied sovereigns or their representatives, held in 1821 First and Second Peace Conferences at The Hague, Netherlands in
as part of the Concert of Europe, which was the decided attempt of the 1899 and 1907, respectively, and were, along with the Geneva
Great Powers to settle international problems after the Napoleonic Wars Conventions.
through discussion and collective weight rather than on the battlefield. • A third conference was planned for 1914 (later rescheduled
for 1915), but was never realized due to the start of World
4. Congress of Verona (1822): At the Congress of Verona, France War I.
announced her intention to intervene in Spain and asked for the moral
support of the Powers. Austria Russia and Prussia backed France but
The Hague Conferences forbidden.
 Also known as The Hague peace conference (1899 and 1907). • The section was ratified by all major powers mentioned above.
 Main causes for the Hague conference were:
1. Growing power of German empire, various pacts and III) Convention for the Adaptation to Maritime Warfare of the
revolutionary groups in Europe increase the chances of war . Principles of the Geneva Convention of 22 August 1864
2. Dependency of states on each other for economic development. • This convention provides for the protection of marked hospital ships
3. Failure of Concert of Europe. and requires them to treat the wounded and shipwrecked sailors of all
belligerent parties. It too was ratified by all major powers.
Hague Convention of 1899
• The First Peace Conference was proposed on August 29, 1898, by (IV)Declaration concerning the Prohibition of the Discharge of
Tsar Nicholas II . Projectiles and Explosives from Balloons or by Other New Analogous
• It was held from May 18, 1899 and signed on July 29 of that year, and Methods
entered into force on September 4, 1900. • This declaration provides that, for a period of five years, in any war
• The Hague Convention of 1899 consisted of three main treaties and between signatory powers, no projectiles or explosives would be
three additional declarations . launched from balloons, "or by other new methods of a similar
• The main objectives of this conference is Disarmament and the nature." The declaration was ratified by all the major powers
peaceful settlement of the disputes. mentioned above, except the United Kingdom and the United States.

I) Convention for the Pacific Settlement of International Disputes (V)Declaration concerning the Prohibition of the Use of Projectiles
• This convention included the creation of the Permanent Court of with the Sole Object to Spread Asphyxiating Poisonous Gases
Arbitration, which exists to this day. • This declaration states that, in any war between signatory powers, the
• The section was ratified by all major powers and many smaller parties will abstain from using projectiles "the sole object of which is
powers - 26 signatories in all, including Germany, Austria-Hungary, the diffusion of asphyxiating or deleterious gases." Ratified by all
Belgium, China, Denmark, Spain, the United States of America, major powers, except the United States.
Mexico, France, Great Britain and Ireland, Greece, Italy, Japan,
Luxembourg, Montenegro, the Netherlands, Persia, Portugal, IV) Declaration concerning the Prohibition of the Use of Bullets
Romania, Russia, Serbia, Siam, Sweden and Norway, Switzerland, which can Easily Expand or Change their Form inside the Human
Turkey and Bulgaria. Body such as Bullets with a Hard Covering which does not
Completely Cover the Core, or containing Indentations
(II)Convention with respect to the Laws and Customs of War on • This declaration states that, in any war between signatory powers, the
Land parties will abstain from using "bullets which expand or flatten
• This voluminous convention contains the laws to be used in all wars easily in the human body."
on land between signatories. • This directly banned soft-point bullets (which had a partial metal
• It specifies the treatment of prisoners of war, includes the jacket and an exposed tip) and "cross-tipped" bullets (which had a
provisions of the Geneva Convention of 1864 for the treatment of cross-shaped incision in their tip to aid in expansion, nicknamed
the wounded, and forbids the use of poisons, the killing of "Dum Dums" from the Dum Dum Arsenal in India).
enemy combatants who have surrendered, looting of a town or • It was ratified by all major powers, except the United States.
place, and the attack or bombardment of undefended towns or
habitations. Hague Convention of 1907
• Inhabitants of occupied territories may not be forced into military • The Second Peace Conference was held from June 15 to October 18,
service against their own country and collective punishment is 1907, to expand upon the original Hague Convention, modifying
 some parts and adding others, with an increased focus on naval This convention updated Convention (III) of 1899 to reflect the
warfare. amendments that had been made to the 1864 Geneva Convention.
• Signed on October 18, 1907, and entered into force on January 26, Convention (X) was ratified by all major states except the United
1910. Kingdom.] It was subsequently superseded by Second Geneva
• Consisted of thirteen treaties, of which twelve were ratified and Convention.
entered into force and one declarations:
(XI)Convention relative to Certain Restrictions with regard to the
I) Convention for the Pacific Settlement of International Disputes Exercise of the Right of Capture in Naval War
• This convention confirms and expands on Convention (I) of 1899. As
of February 2017, this convention is in force for 102 states, and 116 (XII) Convention relative to the Establishment of an International
states have ratified one or both of the 1907 Convention (I) and the Prize Court
1899 Convention (I), which together are the founding documents of This convention would have established the International Prize Court for
the Permanent Court of Arbitration. the resolution of conflicting claims relating to captured ships during
wartime. It is the one convention that never came into force. It was
II)Convention respecting the Limitation of the Employment of Force ratified only by Nicaragua.
for Recovery of Contract Debts
(XIII) Convention concerning the Rights and Duties of Neutral
(III)Convention relative to the Opening of Hostilities Powers in Naval War
This convention sets out the accepted procedure for a state making
a declaration of war. (XIV) Declaration Prohibiting the Discharge of Projectiles and
Explosives from Balloons
(IV) Convention respecting the Laws and Customs of War on Land This declaration extended the provisions of Declaration (IV,1) of 1899 to
This convention confirms, with minor modifications, the provisions of the close of the planned Third Peace Conference (which never took
Convention (II) of 1899. All major powers ratified it. place). Among the major powers, this was ratified only by China, United
Kingdom, and the United States.
(V)Convention relative to the Rights and Duties of Neutral Powers
and Persons in case of War on Land Outcomes of the Hague System
• Established the Permanent court of Arbitration.
(VI) Convention relative to the Legal Position of Enemy Merchant • Development of various treaties for warfare.
Ships at the Start of Hostilities. • Contribution in establishment of international organizations such as
UN.
VII)Convention relative to the Conversion of Merchant Ships into • Although their contents have largely been superseded by other
War-ships treaties, the Hague Conventions of 1899 and 1907 continue to stand
as symbols of the need for restrictions on war and the desirability of
(VIII)Convention relative to the Laying of Automatic Submarine avoiding it altogether
Contact Mines
Causes of Failure
(IX)Convention concerning Bombardment by Naval Forces in Time • Negligence for future problems, only present problems were
of War discussed and presence of only nation that were most effected.
• National interest of every present state and lack of fixed mechanism.
(X) Convention for the Adaptation to Maritime Warfare of the
• Presence of politician rather than ad hoc personality
Principles of the Geneva Convention (of 6 July 1906)
• Interference in the internal matter of small and weak state by the • On 28 June 1919, 44 states signed the Covenant and came into force
powerful state. on 10th January, 1920.

The League of Nations Principal Organs

• The League of Nations was an international diplomatic organisation • Constitutional Organs
developed after World War I as a way to solve disputes between – General Assembly
countries before they erupted into open warfare. – The Council
• The largest number of member states was 58, between 28 September – The Secretariat
1934 and 23 February 1935. • Two main wings
• United Nations was the successor to the League of Nations. – Permanent Court of International Justice (PCIJ)
– International Labor Organization (ILO)
Origin
• Other Bodies
• Immanuel Kant's Perpetual Peace: A Philosophical Sketch (1795)
– The Mandate Commission
outlined the idea of a league of nations to control conflict and
– Refugee Committee
promote peace between states.
• Goldsworthy Lowes Dickinson, a British political scientist- coined the – Health Committee
term "League of Nations" in 1914 and drafted a scheme for its – Slavery Commission, etc.
organization.
Objective of League of Nations
• Him and Lord Bryce played leading role in founding of group of
• Collective security, which meant that all nations were to protect and
internationalist pacifists known as the Bryce Group, later the League
defend each other against an attack
of Nations Union.
• Disarmament.
• The recommendations of the so-called Phillimore Commission
• To improve living and working conditions
included the establishment of a "Conference of Allied States" that
• World peace
would arbitrate disputes and impose sanctions on offending states. T
• To improve health by targeting diseases such as leprosy.
• he proposals were approved by the British government, and
• Promote Diplomacy and emphasize on negotiation for dispute
much of the commission's results were later incorporated into
settlement to prevent war.
the Covenant of the League of Nations.
• The Fourteen Points speech of President Woodrow Wilson, part of Achievement of The League Nations
a presentation given in January 1918. • The International Labour Organization was an organization created by
• The two principal drafters of the covenant of the League of Nations- the League of Nations and improved working conditions around the
British politician Lord Robert Cecil and the South African statesman world.
Jan Smuts. • Created new benefits and improvements to the working
conditions such as, old age pensions and sickness and
Establishment
unemployment benefits.
• At the Paris Peace Conference in 1919- Wilson, Cecil and Smuts all
• The Commission of Refugees "introduced the first internationally
put forward their draft proposals.
recognized identity card for stateless refugees."
• After lengthy negotiations between the delegates, the Hurst–Miller
• When there was violence in Turkey, the Commission worked
draft was finally produced as a basis for the Covenant.
to find jobs, homes and food for the refugees. They also
• The final Covenant of the League of Nations was drafted by a
helped with the people leaving from the Nazi persecution.
special commission, and the League was established by Part I of the
• The Health Organization dealt with serious health issues. They
Treaty of Versailles.
achieved finding different causes/preventions for different diseases.
• The Mandates Commission took care of the land that was taken from Unit 2: Evolution of Human Rights
Germany and Turkey, and made sure it was prepared to be
independent. HRs Law
• The League helped with financial assistance for nations, and helped • Standards for duty-bearers at all levels of society, especially for
them intelligently spend their money. organs of State: a basis of accountability
• This helped countries such as Hungary and Austria become • It grants justiciable legal guarantees to every individual as a rights-
economically stable. holder
• Other issues such as drug trafficking and slavery were dealt with by • It is codified in int'l, regional and national legal systems
the League of Nations. • IHRs Law serves as:
• Helped free 200,000 slaves , and even found out that the – Makes state accept HRs
African president were exploiting forced labor. – Supplements the national legal system
– A basis - to ‘mobilize shame’ of the int'l community.
Reasons for Failure of League of Nations
Absence of Great Power Definition of HRs
• According to the Treaty Of Versailles, Germany wasn't allowed to • HRs are the rights that all people have simply by virtue of being
join the League human beings
• Russia was a communist country therefore, Russia was not invited. • Every HUMAN has RIGHTS (belong to every one)
Russia Stepped in only in 1934 • HRs are:
• America did not join the League. Which was the most powerful – Derived from the inherent dignity of the human person
Nation. – Defined internationally, nationally and locally by various law
• The United States had had enough of wars and dealing with making bodies
other countries problems. They also had little or no support for – Universal: applicable everywhere
British or French policies or the Treaty of Versailles, which
they refused to accept. So although when the League was Sources of Human Rights Law
actually being formed Woodrow Wilson still backed America • Int'l Conventions
joining it, by this time and, despite Wilson, America never • Int'l Custom:
joined the League. – prohibition of torture, genocide, slavery; principle of non-
discrimination
Dissolution of League of Nations • General Principles of Law
• When World War II broke out, most members of the League were not • Teachings of qualified publicists
involved and claimed neutrality, but France and Germany were the • Judicial Decisions
members.
• In 1940, League members Denmark, Norway, Luxembourg, Belgium, Classification of HRs
the Netherlands and France all fell to Hitler. Switzerland became According to source According to aspects According to
nervous about hosting an organization perceived as an Allied one, and – Natural, of life recipients
the League began to dismantle its offices. – moral rights – Civil and political – Individual
• Soon the Allies endorsed the idea of the United Nations, which held – Legal rights – Economic, social – Collective
its first planning conference in San Francisco in 1944, effectively  and cultural (solidarity)
ending any need for the League of Nations to make a post-war return. According to According to
derogability struggle
 – Derogable – I generation apply to all rights in varying
– Non-derogable – II generation degree
(Absolute) – III generation
Absolute, immutable Relative, All rights have a core of
Distinction responsive to which the implementation is
Civil Political Economic Social rights Cultural changing indispensable
rights rights rights rights conditions
Deal with Deal with Deal with Deal with Deal with
standards specific sphere of standards of cultural
of judiciary components human living and sphere of Derogable rights
and penal of beings quality of life life • Article 4 ICCPR
system participation working, for all including • In time of public emergency which threatens the life of the nation
in political producing, including culture, • Existence of which is officially proclaimed
power and those not sub-culture, • May take measures derogating from their obligations under the
servicing participating arts and Covenant to the extent strictly required by the exigencies of the
in economic science situation
activities • But such measures to be not inconsistent with their other obligations
under IL and do not involve discrimination solely on ground of race,
CPR CESR Rationale for challenging colour, sex, language, religion or social origin
distinction • No derogation from articles 6 (life), 7 (torture) 8 (paragraphs I and 2)
(slavery), 11, 15, 16 and 18 (thought, conscience and religion)
Objective to ensure Objective to Freedom requires both types
freedom ensure equality of rights, and equality must be Generations of HRs: Classification (Class)
assured in both • Karel Vasek, Czech Jurist, classified into 3 categories in 1979
• Writers commonly refer to HRs belonging to one of 3 generations
Negative Positive Obligation to respect, protect – First Generation: CPRs
and fulfill applies to all rights – Second Generation: ESCRs
Cost free (individual Resource Requirement of resource is – Third Generation: Collective/Solidarity rights e/x right to self-
freedom) required dependent on the type of determination
(welfare) obligation not on the type of  Rights that cannot be exerted only by an individual but only
right collectively
 Institutional support from State and positive discrimination
Justiciable (Are legal Political or All rights eventually become necessary for realization
entitlements+ may programmatic justiciable – Fourth Generation :so-called rights related to genetic engineering
be invoked in court
+ if violated, court First Generation: CPRs
may order remedy • Also called blue rights
e.g. compensation) • Liberation and participation in political life
• Arts 2-21 of UDHR
Immediate Progressive Elements of immediate and
• ICCPR
implementation implementation progressive implementation
• Originated in 17th-18th century western tradition
• Based on rights obtained by the people as a result of revolutions in • rights brought out by information and communication.
France, Britain and US • Existence of fourth generation is debatable
• Consisting of those CPRs:
– That derive from the natural rights philosophy of Locke, Rousseau Human Rights Principles
and others
– That have been given priority by Western States

Second Generation: ESCRs

• Red rights
• Arts 22-26 of UDHR
• ICESCR
• Originated in Western socialist tradition
• ESCRs that attained recognition in the 20 th century with the advent of
socialism
• Viewed as a balance to Western individualism, capitalism and
imperialism
• Focus on social equality and govt responsibility to its citizens
– Art 26 of UDHR: Everyone has the right to education. Education
shall be free at least in the elementary and fundamental stages

Third Generation: Solidarity Rights Core Principles of HRs

• Some view that this generation emerged as recently as 1970s – Human dignity
• But consider Arts 27-28 of UDHR – Equality
– Art 28 Everyone entitled to a social and int'l order in which – Non-discrimination
the rights and freedoms set forth therein can be fully realized – Universality
• Supported predominantly by developing States – Indivisibility
• Rights that require cooperation of all countries – Interdependency
• Represents poorer countries' hope and demand for global – Interrelatedness
redistribution of opportunity and wellbeing – Inalienability
• Right to peace, development, clean environment Source: Vienna Declaration and Program of Action on Human Rights
• Right to self-determination 1993
• Rights of sexual minorities
Historical Development of Human Rights
Fourth Generation (??) Development of HRs
• Rights that cannot belong to individuals nor to social groups or
nations
• They belong only to humanity as a whole
• Rights of humanity would treat the common assets of the whole
humanity
• Rights deriving from exploration and exploitation of cosmic space
• Rights related to genetics
 History of HRs
Written Antiquity
document Efforts • Code of Hammurabi 1904 ( Prior to Greek Period)
– One of the first examples of a codification of laws that
s asserting in the contain references to individual rights
individual 19th – Created by the Sumerian king Hammurabi about 4000 years
ago.
rights: century – The system of 282 laws created a precedent for a legal system
– Protected people from arbitrary prosecution and
- the to punishment.
Magna prohibit – It held no protection on more abstract ideas such as race,
religion, beliefs, and individual freedoms.
Carta the • Rights of Athenian citizens
Religious
ideas (1215) slave – Greeks were the first profounder of natural law principles.
– Conception of universal law for all mankind under which
The Hindu, - the trade all men are equal and which is binding on all people.
the Bible, English Bill and to – Human rights became synonymous with natural rights, rights
the Koran, that spring from natural law.
and the of Rights limit On – According to the Greek ,natural law is law that reflects the
Analects (1689) the Dece natural order of the universe, essentially the will of the
of gods who control nature.
Confucius the French horrors mber – Despite this principle, there are fundamental differences
address Declaratio of war 10, between human rights today and natural rights of the past.
o For example, it was seen as perfectly natural to keep
questions n on the are 1948, slaves, and such a practice goes counter to the ideas of
of freedom and equality that we associate with human
people’s Rights of prime the rights today.
duties, Man and exampl UDHR
rights, and Medieval
responsibi Citizen es. was • Sir Thomas Aquinas' Theory of natural rights
lities (1789) In 1919, adopt – He observed that the law of nature is the discovery of eternal
law through reason and reason is the manifestation of
The Code of the US establis ed by religion.
Hammura • Law "is nothing else than an ordinance of reason for the common
bi, Constituti hed to the 56 good, made by him who has care of the community, and
Inca and Aztec on and Bill protecti memb promulgated."
codes of of Rights ng ers of
• All law comes from the eternal law of Divine Reason that governs the
conduct and universe, which is understood and participated in by rational beings
justice (1791) workers UN (such as men and angels) as the natural law.
• The natural law, when codified and promulgated, is the human law.
Social Contractualist • Restriction on unnecessary search and seizure: could not be
• Idea of positive law warrantless and had to be reasonable. \
• John Locke claimed that every man had a right to life, liberty and • Eventually, the Petition
property. – Made more precise the provision prohibiting imprisonment of
• These ideas were based on the idea of rational, equal men and the freemen without legal grounds
natural rights provided by God. – Declared inadmissibility of existence of secret courts and arbitrary
• Governments that continuously violated these rights became tyrannies repressions
and lost their legitimacy to rule.
Habeas Corpus Act 1679
Magna Carta (Great Charter, 1215) • Introduced during the reign of King Charles II.
• The English Magna Carta of 1215 granted by King John . • England’s next step in enforcing HRs and freedoms
• The overreaching theme of Magna Carta was protection against • In criminal matters other than treason and felonies, the act gave
arbitrary acts by the King. prisoners or third parties acting on their behalf the right to challenge
– Land and Property could no longer be seized, judges had to their detention.
know and respect laws, taxes could not be imposed without • The act laid out certain temporal and geographical conditions under
common council. which prisoners had to be brought before the courts.
– The Carta also introduced the concept of jury trial ,which • Jailors were forbidden to move prisoners from one prison to another
protect against arbitrary arrest and imprisonment. or out of the country to evade the writ.
– Concept of due process : no imprisonment without lawful – In case of disobedience jailers would be punished with severe
judgment. fines which had to be paid to the prisoner
– Traditionally considered as first legal document that • Established procedural guarantees of person’s inviolability
o laid the foundation of HR • Introduced bail.
o Affirmed human liberties • Restricted time of detention.
• Particularly, it secured important principles such as
– Proportionality of action with punishment for it English Declaration of the Rights of Man 1689 (Bill of Rights)
– Strict compliance with law by officials • Act declaring rights + liberties of citizens
• Underlying legal foundation for constitutional monarchy (truly
– Recognition of guilt only by court judgment
limited govt)
– Right to freely enter and depart from country etc.
• King prohibited from forming armies without parliament's consent
Petition of Rights 1628 • Prohibited summarily increasing taxes
• England's 2nd greatest constitutional charter of liberties • Suspension of laws without parliament consent being illegal
• Rights and freedoms of citizens including trial by courts • Freedom of speech not to be impeached
• No taxation without representation • Parliamentary election to be free
• In sum: under influence of Enlightenment, ideas of freedom, natural
– Many English colonies believed that, as they were not directly
HRs, social contract, separation of powers were gaining ever-stronger
represented in the distant British Parliament, any laws it passed
foothold.
affecting the colonists (such as the Sugar Act and the Stamp Act)
were illegal under the Bill of Rights 1689, and were a denial of US Declaration of Independence 1776
their rights as Englishmen. • Relying on doctrine of HRs enshrined in natural law, the Declaration
• Principle of due process stated-
• Self-evident truth that ALL MEN are:
 – Created equal,  Objectives behind the establishment:
– Endowed by Creator with certain unalienable rights including  Promote int'l cooperation
life, liberty and pursuit of happiness  Achieve int'l peace and security
• The rights are prior to govt and legitimate govt is based on consent.  Maintain justice for people
• To secure rights, govts instituted among them, deriving their just  Restoration of peace by friendly relations
power from consent of the governed.  Provisions of dispute resolution through Council of LON
• Right to dissolve govt is inherent in the people.  Arts 22 and 23 are important
• Whenever any form of govt becomes destructive, right of people to
alter or abolish it existed. LON
• This document laid down  Article 22
– Not only foundation of US constitutionalism.  To those colonies and territories which as a consequence of
– But also liberal concept of HRs. the late war have ceased to be under the sovereignty of the
States which formerly governed them and which are inhabited
French Declaration of the Rights of Man and of the Citizen 1789 by peoples not yet able to stand by themselves under the
• Real turning point in mankind’s struggle to assert HRs was the strenuous conditions of the modern world, there should be
French Revolution applied the principle that the well-being and development of
• Revolution created the Declaration, a document of historical such peoples form a sacred trust of civilization and that
importance securities for the formance of this trust should be embodied in
• The Declaration: this Covenant.
– Legally secured for the first time the principle of formal  Art. 23
equality of all citizens before law.  Subject to and in accordance with the provisions of international
– Men born, remain free and equal in rights conventions existing or hereafter to be agreed upon, the Members of
– Recognized the natural, unalienable, and sacred rights of man. the League:
(a) will endeavor to secure and maintain fair and humane conditions of
– Proclaimed freedoms of conscience, of speech; rights of
labor for men, women, and children, both in their own countries and in all
equality ; presumption of innocence, inviolability of person
countries to which their commercial and industrial relations extend, and
and property; laid down that law is the expression of the
for that purpose will establish and maintain the necessary international
general will.
organizations;
– Laid that aim of every law is to preserve natural rights of man
(b) undertake to secure just treatment of the native inhabitants of
(liberty, property, security) territories under their control;
– Established state’s duty to ensure, guarantee HRs, freedoms (c) will entrust the League with the general supervision over the
and citizens’ right to oppose oppression. execution of agreements with regard to the traffic in women and children,
– Provided that limits on rights can be determined only by law. and the traffic in opium and other dangerous drugs;
– First time, secured generally permissible principle of d) will entrust the League with the general supervision of the trade in
regulating legal relations: arms and ammunition with the countries in which the control of this
– “Everything is permitted that is not directly prohibited by law" traffic is necessary in the common interest;
(e) will make provision to secure and maintain freedom of
communications and of transit and equitable treatment for the commerce
Post 19th Century of all Members of the League.;
League of Nations 1920 Issue of Slavery
 Contributed to recognition of right to be free from slavery as  Fundamental HRs
fundamental freedom under CIL  Dignity and worth of the human person
 1924 the Council established a Temporary Slavery Commission  Equal rights of men and women
 Commission studied status of existence of slavery in the would
 Led to adoption of Slavery Convention 1926 Art. 1.3 Purposes
 Achieve int'l co-operation … in promoting and encouraging respect
ILO 1919 for HRs and for fundamental freedoms for all without distinction as to
 Established as organ of the League race, sex, language, or religion
 Monitor, promote fair humane conditions of labor for men,
women, children Chapter IX: Int'l Economic and Social Co-operation
 Now as a specialized agency of UN  Art. 55
 ILO promulgated some 180 treaties concerning  UN shall promote universal respect for, and observance of, HRs
 Forced and compulsory labor and fundamental freedoms for all without distinction as to race,
 Freedom of association sex, language, or religion
 Right to organize  Art. 56
 Equal remuneration for men and women workers for work of  All Members pledge themselves to take joint and separate action
equal value in co-operation with UN for achievement of the purposes set forth
 Touching upon CPRs and ESCRs in Art 55

The 20th Century UN HRs System

 Labor unions  Adoption of int'l HRs standards (hard + soft)
 Women's right movement  Monitoring mechanisms: Charter based and treaty based
 National liberation movements  Technical assistance: Voluntary Fund for Advisory Services and TA

Post WWII: Nuremberg Trial International Bill of Human Rights

 8 August 1945 by London Agreement (signed by US, France, UK and  Universal Declaration of Human Rights (UDHR) - 1948
USSR)  Covenant on Economic, Social and Cultural Rights (ICESCR) - 1966
 Nuremberg Charter: for just, prompt trial and punishment of major  Optional Protocol (individual complaints) – 2008 (not yet
war criminals of the European Axis in force)
 int'l attention towards systematic + widespread atrocities  Covenant on Civil and Political Rights (ICCPR) - 1966
 Legal sanction for ending impunity  1st Optional Protocol (individual complaints) -1966
 Idea that genocide, torture, enslavement violate principles of  2nd Optional Protocol (abolition of the death penalty)-1989
HRs
 No presumption of innocence ( victor’s justice) Treaties addressing specific phenomena
 Tribunal designed specifically to ensure that trial  The International Convention on the Elimination of All Forms of
would result in conviction Racial Discrimination (ICERD), 1965
 The Convention against Torture and Other Cruel, Inhuman or
HRs in UN Charter Degrading Treatment or Punishment (CAT), 1984
 Optional Protocol to CAT (inspections of places of
Preamble deprivation of liberty) (OPCAT)- 2002
 Determined … to reaffirm faith in:  The Convention on Enforced Disappearances, 2006
Treaties Protecting Specific Groups  All human beings are born free and equal in dignity and rights.
 The Convention on the Elimination of All Forms of Discrimination They are endowed with reason and conscience and should act
against Women (CEDAW), 1979 towards one another in a spirit of brotherhood.
 Optional Protocol (communications)  Article 2
 The Convention on the Rights of the Child (CRC), 1989  Everyone is entitled to all the rights and freedoms set forth in this
 OP on the sale of children, child prostitution and child Declaration, without distinction of any kind, such as race, colour,
pornography sex, language, religion, political or other opinion, national or
 OP on the involvement of children in armed conflict social origin, property, birth or other status. Furthermore, no
 Optional Protocol (on communications in the making) distinction shall be made on the basis of the political,
 The International Convention for the Protection of the Rights of All jurisdictional or international status of the country or territory to
Migrant Workers and Members of Their Families , 1990 which a person belongs, whether it be independent, trust, non-self-
 The Convention on the Rights of Persons with Disabilities, 2006 governing or under any other limitation of sovereignty.
 Optional Protocol (communications)  Article 3
 Everyone has the right to life, liberty and security of person.
What Legal Instruments help the UN protect human rights?  Articles 4-21: Civil and Political Rights
 The International Bill of Human Rights  Article 22:
 Universal Declaration of Human Rights  Everyone, as a member of society, has the right to social
 International Covenant on Civil and Political Rights security and is entitled to realization, through national effort
 International Covenant on Economic, Social and Cultural and international co-operation and in accordance with the
Rights organization and resources of each State, of the economic,
social and cultural rights indispensable for his dignity and the
Universal Declaration of Human Rights free development of his personality.
 An authoritative interpretation of the human rights provisions of the  Articles 23-27: Economic, Social and Cultural Rights
United Nations Charter.
 Adopted by UNGA in Paris on Dec 10, 1948. Provisions of UDHR
 Also known as International Magna Carta for All Mankind.  Article 1 Right to Equality.
 United Nations Human Rights Commission was formed to draft the  Article 2 Freedom from Discrimination.
Declaration.  Article 3 Right to Life, Liberty, Personal Security
 Former First Lady Eleanor Roosevelt-Chairman.  Article 4 Freedom from Slavery
 18 members in the commission from France, China, Lebanon, Canada  Article 5 Freedom from Torture and Degrading Treatment
 For the first time set fundamental human rights to be universally  Article 6 Right to Recognition as a Person before the Law
protected and where human beings are inherently entitled.  Article 7 Right to Equality before the Law
 Preamble  Article 8 Right to Remedy by Competent Tribunal
 “ whereas disregard and contempt for human rights have  Article 9 Freedom from Arbitrary Arrest and Exile
resulted in barbarous acts which have outraged the conscience  Article 10 Right to Fair Public Hearing
of mankind…”  Article 11 Right to be Considered Innocent until Proven Guilty
 “ we the peoples of the United Nations determined … to  Article 12 Freedom from Interference with Privacy, Family, Home
reaffirm faith in fundamental human rights, in the dignity and and Correspondence
worth of the human person, in the equal rights of men and  Article 13 Right to Free Movement in and out of the Country
women and of nations large and small …”  Article 14 Right to Asylum in other Countries from Persecution
 Article I  Article 15 Right to a Nationality and the Freedom to Change It
 Article 16 Right to Marriage and Family  Several major treaties trace their origins to the UDHR.
 Article 17 Right to Own Property
 Article 18 Freedom of Belief and Religion Cons of UDHR
 Article 19 Freedom of Opinion and Information  Doesn’t have the power to be legally enforced
 Article 20 Right of Peaceful Assembly and Association.  Not followed everywhere, is optional to follow
 Article 21 Right to Participate in Government and in Free Elections  Better in paper, not in practice as it is easy to go against without
 Article 22 Right to Social Security suffering major or any consequences
 Article 23 Right to Desirable Work and to Join Trade Unions  Some second world countries can’t follow some of the laws (ex. good
 Article 24 Right to Rest and Leisure education; some can’t afford it)
 Article 25 Right to Adequate Living Standard  Jobs that are created can go against human rights with bad working
 Article 26 Right to Education conditions and low wage rates in less advantaged countries
 Article 27 Right to Participate in the Cultural Life of Community  There are limitations in how the UDHR is implemented
 Article 28 Right to a Social Order that Articulates this Document  Some cultures and/or religions don't agree with some of the articles
 Article 29 Community Duties Essential to Free and Full the UDHR state and therefore refuse to follow it
Development
 Article 30 Freedom from State or Personal Interference in the above International Covenant on Civil and Political Rights
Rights  Roots in the same process that led to UDHR.
 It was adopted by the United Nations’ General Assembly on
Significance of UDHR December 19, 1966, and it on March 23, 1976.
 UDHR has acquired a moral and political significance matched by  The International Covenant on Economic Social and Cultural Rights,
very few documents. the Universal Declaration of Human Rights, and the ICCPR and its
 has become a touchstone for actions by governments, two Optional Protocols, are collectively known as the International
individuals and non-governmental groups. Bill of Rights.
 It serves as a guide to present action and an evolving set of  The ICCPR recognizes the inherent dignity of each individual and
ideas for future implementation at the national level. undertakes to promote conditions within states to allow the enjoyment
 the principles have been embodied in several constitutions of civil and political rights.
and has been acting as a foundation for a continued  Countries that have ratified the Covenant are obligated “to protect
broadening and deepening of the very concept of human and preserve basic human rights… [and] “compel[ed] to take
rights. administrative, judicial, and legislative measures in order to protect
the rights enshrined in the treaty and to provide an effective remedy.”
Pros of UDHR  The Covenant follows the structure of the UDHR and ICESCR, with a
 It allows human rights to be recognized and to achieve international preamble and fifty-three articles, divided into six parts.
peace and stability  Part 1 (Article 1) Recognizes the right of all peoples to self-
 Intentions are to avoid discrimination in general, aim to improve determination, including:
equality  the right to "freely determine their political status"
 Sets the standard on how everyone should be equal  pursue their economic, social and cultural goals
 If a government is accused of human rights violation, there is a  manage and dispose of their own resources.
procedure where it can be judged  It recognizes a negative right of a people not to be deprived of
 Emphasizes the rights of citizens to fully participate in their its means of subsistence
government and the modernization of their country
 Gives a framework for developing international human rights laws
  Imposes an obligation on those parties still responsible for  Article 4 of ICCPR allows for certain circumstances for States
non-self governing and trust territories (colonies) to encourage Parties to derogate from their responsibilities under the
and respect their self-determination Covenant, such as during times of public emergencies.
 Part 2 (Articles 2 – 5) Obliges parties to legislate where necessary to  However, State Parties may not derogate from Articles 6, 7, 8
give effect to the rights recognized in the Covenant, and to provide an (paragraphs I and 2), 11, 15, 16 and 18.
effective legal remedy for any violation of those rights. The ICCPR establishes the Human Rights Committee which oversees
 Summary Part 3 (Articles 6 – 27) Lists the rights themselves. commitment to the ICCPR.
 These include rights to physical integrity, in the form of the  The Committee has 18 members made up of nationals from
right to life and freedom from torture and slavery (Articles 6, states parties who act as independent experts.
7, and 8);  They must have ‘high moral character’ and a ‘recognised
 liberty and security of the person, in the form of freedom from competence in the field of human rights.’
arbitrary arrest and detention and the right to habeas corpus  The Committee adopts ‘General Comments’ which give guidance on
(Articles 9 – 11); how to interpret the ICCPR.
 procedural fairness in law, in the form of rights to due  States have to submit reports on the steps they have taken to protect,
process, a fair and impartial trial, the presumption of respect and fulfil ICCPR rights, and part of the Committee’s job is
innocence, and recognition as a person before the law looking at these reports to make sure States are making progress.
(Articles 14, 15, and 16);
 individual liberty, in the form of the freedoms of movement, Appraisals of ICCPR
thought, conscience and religion, speech, association and  Greater impact of ICCPR at national level- national constitutions
assembly, family rights, the right to a nationality, and the right consider it as the yardstick.
to privacy (Articles 12, 13, 17 – 24);  ICCPR has made part and parcel of national legal order.
 prohibition of any propaganda for war as well as any  Some countries like Spain’s constitution provides for the
advocacy of national or religious hatred that constitutes administrative authorities and courts to follow applicable int.
incitement to discrimination, hostility or violence by law guarantees.
(Article 20);  ICCPR has been given the legal force for the provision of
 political participation, including the right to join a political constitution and quasi-constitution rank. ( art. 15(4) of USSR).
party and the right to vote (Article 25);
 Non-discrimination, minority rights and equality before the International Covenant on Economic, Social and Cultural Rights
law (Articles 26 and 27).  Roots in the same process as in UDHR promulgation.
 Many of these rights include specific actions which  Significant differences between UN members on the relative
must be undertaken to realise them. importance of negative and positive rights resulted into two different
 Summary Part 4 (Articles 28 – 45) Governs the establishment covenants.
and operation of the Human Rights Committee and the  Divisions and ‘cold war’ led to preparation of two separate
reporting and monitoring of the Covenant. covenants.
 Part 5 (Articles 46 – 47) Clarifies that the Covenant shall not be  The covenant follows the structure of UDHR and ICCPR with a
interpreted as interfering with the operation of the United Nations or Preamble, and 31 Articles divided into five parts.
"the inherent right of all peoples to enjoy and utilize fully and freely  Social Rights
their natural wealth and resources".  Core needs for a dignified life
 Part 6 (Articles 48 – 53) Governs ratification, entry into force, and  Right to an adequate standard of living
amendment of the Covenant.  Economic Rights
 Limitations  Rights to work
  Right to social assistance  participation in cultural life (Article 15).
 Right to property  Many of these rights include specific actions which must be
 Pre conditions for enjoyment of social and other rights undertaken to realize them.
 Cultural Rights  Part 4 (Articles 16 – 25) governs reporting and monitoring of the
 Right to Education Covenant and the steps taken by the parties to implement it.
 Right to participate in one’ own culture  It also allows the monitoring body – originally the United
 Right to cultural Identity Nations Economic and Social Council – now the Committee
 Part 1 (Article 1) recognizes the right of all peoples to self- on Economic, Social and Cultural Rights –to make general
determination, including the right to "freely determine their political recommendations to the UN General Assembly on appropriate
status", pursue their economic, social and cultural goals, and manage measures to realize the rights (Article 21)
and dispose of their own resources.  Part 5 (Articles 26 – 31) governs ratification, entry into force, and
 It recognizes a negative right of a people not to be deprived of amendment of the Covenant.
its means of subsistence, and imposes an obligation on those
parties still responsible for non-self governing and trust Differences between the ICCPR, ICESCR, UDHR
territories (colonies) to encourage and respect their self-  ICESCR limits the rights within it by laws, as long as the laws are
determination. compatible with the nature of the rights and promote the general
 Part 2 (Articles 2 – 5) establishes the principle of "progressive welfare in a democratic society.
realization". It also requires the rights be recognized "without  UDHR and ICCPR contain no general provision applicable to all the
discrimination of any kind as to race, colour, sex, language, religion, rights that authorize the restriction on their exercise
political or other opinion, national or social origin, property, birth or  Several rights in the ICCPR though can be restricted for purposes of
other status". national security, public order, to protect the rights and freedom of
 The rights can only be limited by law, in a manner compatible others
with the nature of the rights, and only for the purpose of  Rights in the ICCPR that can never be suspended or limited include:
"promoting the general welfare in a democratic society ." rights to life, to freedom from torture, to freedom from enslavement
 Part 3 (Articles 6 – 15) lists the rights themselves. These include or servitude, to protection from imprisonment for debt, to freedom
 rights to work, under "just and favorable conditions", with the from retroactive penal laws, to recognition as a person before the law,
right to form and join trade unions (Articles 6, 7, and 8); and to freedom of thought, conscience and religion
 social security, including social insurance (Article 9) ;
 family life, including paid parental leave and the protection of Right to Self Determination and the Indigenous Population
children (Article 10) ;
 an adequate standard of living, including adequate food, Principle of Self Determination
clothing and housing, and the "continuous improvement of  Revolves around the right of a people to determine its own destiny,
living conditions" (Article 11); this principle allows to choose its own political status and to
 health, specifically "the highest attainable standard of physical determine its own form of economic, cultural and social
and mental health" (Article 12) ; development.
 education, including free universal primary education,  considered as the precondition for the enjoyment of other human
generally available secondary education and equally rights and no other right can be fully enjoyed without it.
accessible higher education. This should be directed to "the  can result into political independence / full integration within
full development of the human personality and the sense of its a state.
dignity", and enable all persons to participate effectively in
society (Articles 13 and 14) ;
 right to self determination is recognized in IL as a right of process  Art. 1(1) of ICCPR & ICESCR
( not of outcome) belonging to peoples and not to states or  self determination is the right of all peoples to ‘freely
government. determine their political status and freely pursue their
 The preferred outcome of an exercise of the right to self economic, social and cultural development’.
determination varies:  This right to self determination is granted to ‘all peoples’ not
 For Tibet the only acceptable outcome is full political only colonial people.
independence.  General Assembly Resolution, 1514, 1541, 2625 considered the
 For west Balochistan, the goal is degree of political, cultural rights as synonymous with decolonization and independence.
and economic autonomy.  Resolution 1514, declared that, ‘ all peoples have the right to
 For Taiwan, it has already achieve high level or full self self determination, by virtue of that right they freely determine
determination, but is yet to recognized as an independent state their political status and freely pursue their economic, social
by international community. and cultural development’.
 The principle of self-determination is prominently embodied in  the people here is referred to people subject to ‘alien
Article I of the Charter of the United Nations. subjugation, domination and exploitation’.
 According to Art 1(2), one of the purposes of the UN is:  Resolution 1541granted the right of self determination to colonial
 ‘ to develop friendly relations among nations based on respect people, where they were considered as the inhabitants of non self
for the principle of equal rights and self determination of governing territories.
people, and to take other appropriate measures to strengthen  identified three ways in which self determination could be achieved:
universal peace’.  emergence as a sovereign independent state;
 Its inclusion in the UN Charter marks the universal  free association with an independent state; or
recognition of the principle as fundamental to the  integration with an independent state
maintenance of friendly relations and peace among states.  Resolution 2625 balances the principle of self determination with
 Guaranteed by several international instruments. other principles of IL, such as the principle of territorial integrity, non
 Article 55 provides that intervention and the prohibition on the use of force.
 ‘with a view to the creation of conditions of stability and well  The resolution thus was not only targeted to the colonial people but
being which are necessary for peaceful and friendly relations was meant to be a ‘universal right 'which was granted to all.
among nations based on respect for the principle of equal  the aim was also to ensure end of colonialism.
rights and self determination of people, the UN shall promote:  Traditional Distinction includes:
 (a) higher standards of living, full employment and  External Self Determination
conditions of economic and social progress and  International Self Determination
development ; (b) solutions of international economic,
social, health and related problems; and international External Self Determination
cultural and educational cooperation; and © universal  Developed in the colonial context and resulted it being
respect for, and observance of , human rights and synonymous with decolonization and independence.
fundamental freedoms for all without distinction as to
race, sex, language or religion. Internal Self Determination
 The right ensured in the Charter does not include a right of secession  Reinvented after the end of cold war
rather is guiding legal principle rather than a binding right under IL.  it is a universal and ongoing right for all peoples, not only colonial
 From here onwards, the principle merely was no longer a political peoples.
principle, but had taken its first steps onto the stage of international  refers to the right of a people to ‘participate in the decision
law. making processes of the states’.
  refers to the right of all people to participate in the expression of  Right to be free from any kind of discrimination, exercise of
the political will within the state (representative government). their rights, in particular that based on their indigenous origin
and identity.
Problems Associated to Right to Self Determination  the right to maintain and strengthen their distinct political,
 There is no generally accepted definitions of the right holders. legal, economic, social and cultural institutions, while
 States have tried to limit the group of beneficiaries arguing retaining their right to participate fully, if they so choose , in
that only the colonial ppl have this right. the political, economic, social and cultural life of the State.
 Others are saying once a state has achieved independence,  consultation in good faith with indigenous peoples…to obtain their
this right is exhausted. free, prior and informed consent before adopting and implementing
 External self determination v. Territorial Integrity of States legislative or administrative measures that my affect them.
 CCPR GC No. 12 on Right to Self Determination  right to the lands, territories and resources which they have
 The content of the right to self determination affirms that people are traditionally owned, occupied or otherwise used or acquired with
free to dispose of their natural wealth and resources without legal recognition and protection to these lands, territories and
prejudices to any obligations arising out of international economic resources under respect to the customs, traditions and land tenure
cooperation, based on the principle of mutual benefit and international system of indigenous peoples.
law.
 In on case shall people be deprived of their means of Right to Self Determination and Indigenous People
subsistence.  Preambular paragraph 14 affirms the fundamental importance of the
 Positive actions to be taken by states to realize this right. right of self-determination of all peoples, and preambular paragraph
 CERD GC NO. 21, 15 notes that this Declaration may not be used to deny any peoples
 Two aspects in right to self determination to be considered: their right of self-determination.
 Internal aspect, the right of all people to pursue freely their  Article 3 then outlines the right of self-determination in the language
economic, social and cultural development without outside of the international covenants.
interference.  Article 31 gives examples of what self-determination might entail.
 External aspect, implies that all people have the right to  Indigenous peoples have the right to maintain, control,
determine freely their political status and their place in protect and develop their cultural heritage, traditional
international community based on the principle of equal rights knowledge and traditional cultural expressions, as well as the
and exemplified by the liberation of peoples from colonialism manifestations of their sciences, technologies and cultures,
and by the subject peoples to alien subjugation, domination including human and genetic resources, seeds, medicines,
and exploitation. knowledge of the properties of fauna and flora, oral traditions,
literatures, designs, sports and traditional games and visual
UN Declaration on the Rights of Indigenous Peoples 2007 and performing arts.
 The declaration establishes a universal framework of minimum  They also have the right to maintain, control, protect and
standards for the survival, dignity and well being of indigenous develop their intellectual property over such cultural heritage,
peoples. traditional knowledge, and traditional cultural expressions.
 It elaborates on existing human rights standards and fundamental  Article 45 ensures that the right of self-determination, and the
freedoms as they apply specific situation of indigenous peoples. other rights recognised in the Declaration, are to be applied
 The declaration provides for: consistently with the Charter of the United Nations.
 the rights to full enjoyment, as a collective or as individuals,
of all human rights and fundamental freedoms as recognized Rights of Minorities and Marginalized Communities
by UN charter, UDHR and other instruments.
Background  they are numerically less, hence they are vulnerable. Because
 The Charter of UN makes no mention of minority rights, but it does majority can easily abuse minority.
include several provisions on human rights, including  if a state can ensure minority rights it means every other person in
 Article 1 (3), which identifies as one of the purposes of the majority also enjoys the rights.
UN in the achievement of international cooperation “in
promoting and encouraging respect for human rights and for Scope of Minority Rights Protection
the fundamental freedom for all without distinction as to race,  Survival and Existence
sex, language or religion”.  Protection of the physical existence of persons belong to
minorities, including protection from genocide and CAH.
Definition  The 2001 Durban Declaration affirms that “the ethnic,
 No internationally agreed definition of minorities. cultural, linguistic and religious identity of minorities, where
 Minority rights are the normal individual rights as applied to they exist, must be protected and that persons belonging to
members of racial, ethnic, class, religious, linguistic or sexual such minorities should be treated equally and enjoy their
minorities; and also the collective rights accorded to minority groups. human rights and fundamental freedoms without
 They generally have a strong sense of collective identity and discrimination of any kind” (para. 66).
history.  Protection of the existence of minorities also requires respect
 According to a definition offered in 1977 by Francesco Capotorti, for and protection of their religious and cultural heritage,
Special Rapporteur of the United Nations Sub-Commission on which are essential to their group identity
Prevention of Discrimination and Protection of Minorities, a minority  Promotion and Protection of the Identity of Minorities
is:  Promoting and protecting their identity prevent forced
 A group numerically inferior to the rest of the population assimilation and the loss of cultures, religions and languages.
of a State, in a non-dominant position, whose members -  Positive action is required to respect cultural, religious and
being nationals of the State - possess ethnic, religious or linguistic diversity, and acknowledge that minorities enrich
linguistic characteristics differing from those of the rest of society through this diversity
the population and show, if only implicitly, a sense of  Equality and Non-discrimination
solidarity, directed towards preserving their culture,  Minorities everywhere experience direct and indirect, de jure
traditions, religion or language. and de facto discrimination in their daily lives.
 The nationality criterion included in the above definition has  Differential treatment may be permissible if its objective is to
often been challenged, the requirement to be in a non- overcome past discrimination or address persisting
dominant position remains important. inequalities.
 Sometimes the majority might be in non dominant position  Temporary Special Measures.
unlike the usual trend of minority in being non-dominant  Effective and Meaningful Participation
position.  Participation in public affairs and in all aspects of the
 In addition, the use of subjective criteria, such as the will on political, economic, social and cultural life of the country -
the part of the members of the groups in question to preserve essential to preserving their identity and combating social
their own characteristics and the wish of the individuals exclusion.
concerned to be considered part of that group, should be  It should be reflected in public institutions, such as national
taken into account along with objective criteria. parliaments, the civil service sector, including the police and
the judiciary, and that persons belonging to minorities are
Why minority rights are important? adequately represented, consulted and have a voice in
 decisions which affect them or the territories and regions in communities in decisions which affect them” in order
which they live. to guarantee full enjoyment of the right to culture.
 Participation must be meaningful and not merely symbolic.  A number of rights in the Covenant may be particularly relevant to
 Participation should be effective. minorities, including following:
 For the participation of persons belonging to  Art. 1 provides for the right of “all peoples” to self-
minorities to be effective, it is not sufficient for States determination which includes the right to determine their
to ensure their formal participation; political status and freely pursue their economic, social and
 States must also ensure that the participation of cultural development.
representatives of minorities has a substantial  The right does not belong to minorities per se.
influence on the decisions which are taken, so  It in no way supports demands by minorities for
that there is, as far as possible, shared separation or secession from an existing state.
ownership of these decisions.  Art. 3 provides for the equal enjoyment of all rights by men
and women.
International Instruments on Minority Rights  Art. 18 is essential to minorities and protects freedom of
 ICCPR 1966 thought, conscience and religion.
 Art. 27 of ICCPR  GC No.22, 1993 provides that, minorities may
 “ In those states in which ethnic, religious or linguistic manifest their religion in public or private through
minorities exist, persons belonging to such minorities shall worship, observance, practice and teaching and
not be denied the right, in community with the other parents are free to ensure that the religious and
members of their group, to enjoy their own culture, to moral education of their children conforms to their
profess and practice their own religion, or to use their own own convictions.
language”.  Art. 19 protect freedom of opinion and expression.
 Article 27 technically applies only to “persons belonging to  Fundamental to the ability of minorities to
such minorities” not to minority groups or communities communicate in their own language and includes
themselves although the collective spirit of this right is “freedom to seek, receive and impart information
mentioned as “in community with the other members of their and idea of all kinds, regardless of frontiers, either
group”. orally, in writing or in print, in the form of art, or
 the phrase “shall not be denied” may give impression that the through any other media”.
State merely has to refrain from certain actions rather than  Art. 20 requires Government to prohibit any advocacy of
being obliged to adopt positive measures to promote or assist national, racial or religious hatred that constituted incitement
minorities in exercising their rights. to discrimination, hostility or violence.
 Human Rights Committee GC No. 23 , 1994 has provided  Article 22 guarantees freedom of association. While most of
that its provisions concern trade unions, this article also protects
 States may be required to adopt “positive measures of the right to form and participate in minority educational,
protection” to protect rights from being violated, not cultural, political and other organizations.
only by the State Party itself but also by other persons.  ICESCR 1966
 Also state that whether or not a minority exists is a  Article 2(2) states to guarantee that rights will be exercised
question of fact not dependent on formal without discrimination of any kind.
recognition by a State.  GC No. 20, 2009, states that States parties must adopt
 Also suggested that a State may need to ensure the measures, which should include legislation, to ensure
“effective participation of members of minority
 that individuals and entities in the private sphere do not discrimination and to promoting understanding, tolerance and
discriminate on prohibited grounds”. friendship among nations and racial or ethnical groups” (art. 7).
 Article 15 states that everyone has the right to take part in  The rights that must be guaranteed without racial discrimination are
cultural life and to have his or her intellectual property specified in Art. 5.
protected  Equal treatment before judicial bodies, the right to participate
 GC No. 21 observes, inter alia, that “educational in public affairs and have equal access to public service,
programmes of States parties should respect the freedom of movement and residence, freedom of opinion and
cultural specificities of national or ethnic, linguistic expression, and the right of access to any place or service
and religious minorities” and that States should intended for use by the general public.
“respect free access by minorities to their own
culture, heritage and other forms of expression, as UN Declaration of Dec, 18, 1992
well as the free exercise of their cultural identity  The UN promulgated the “Declaration on the Rights of Persons
and practices”. belonging to National or Ethnic, Religious and Linguistic Minorities”
 International Convention on the Elimination of All Forms of Racial  Art. 1 states that “ States shall protect the existence of the National or
Discrimination, 1969 Ethnic, Cultural, Religious and Linguistic identity of minorities
 It is sometimes assumed, that it can be invoked only to within their respective territories and encourage conditions for the
combat formal legal frameworks which discriminate on the promotion of that identity”;
basis of colour  States shall adopt appropriate legislative and other measures to
 In fact, the Committee has consistently considered achieve those ends.
discrimination against minorities in its examination of the  There is no internationally agreed definition as to which
periodic reports submitted to it by States. groups constitute minorities.
 The Convention specifically allows States to adopt “special  The existence of a minority is a question of fact and that any
measures” to ensure that certain racial or ethnic groups or individuals definition must include both
can enjoy equal rights in practice, provided that such measures do not  objective factors (such as the existence of a shared
lead to the permanent maintenance of separate rights for different ethnicity, language or religion) and
racial groups.  subjective factors (including that individuals must
 These measures are often known as “affirmative action” or identify themselves as members of a minority).
“positive discrimination”, and they may be adopted to correct  Provides for the :
historical injustices and to ensure that minorities are treated  right to enjoy their own culture, to profess and practice their
fairly, Provided by GR No. 32 (2009). own religion, and to use their own language in private and in
 A State’s obligation under the Convention extends not only to its public freely without interference or any form of
own actions and those of other public authorities. It must also discrimination.
prohibit and bring to an end racial discrimination by any persons,  The right to participate effectively in cultural, religious, social,
group or organization (art. 2 (1)(d)). economic and public life.
 States must punish, by law, the dissemination of ideas based on  The right to participate effectively in decisions on the national
racial superiority or hatred, and must prohibit organizations and when appropriate regional level concerning the minority
from promoting and inciting racial discrimination (art. 4 (a)). to which they belong or the regions in which they live in a
 States must also adopt “immediate and effective measures, manner not compatible with national legislation.
particularly in the fields of teaching, education, culture and  The right to establish and maintain their associations.
information, with a view to combating prejudices which lead to racial  The right to establish and maintain, without any
discrimination, free and peaceful contact with other members
 of their group and with persons belonging to other minorities Origins of the UN Charter
as well as contacts across frontiers with citizens of other states • 1941 The Atlantic Charter
to whom they are related by national or ethnic, religious and • 1942 Declaration by United Nations
linguistic ties. • 1943 The Moscow Conference
 Whether, for example, persons with disabilities, persons • 1944 Dumbarton Oaks Proposals
belonging to certain political groups or persons with a • 1944 Yalta conference
particular sexual orientation or identity (lesbian, gay, bisexual,
transgender or intersexual persons) constitute minorities? 14 Aug,1941 The Atlantic Charter
 The declaration is devoted to national, ethnic, religious and linguistic • Principles laid down by President Roosevelt and Prime Minister
minorities. Churchill.
 Important to combat multiple discrimination on other grounds • The Charter did not contemplate the establishment of an
as well like gender, disability or sexual orientation. organization of States to replace the League.
 Also, in many countries, minorities are often found to be • The need of creating a collective security system and establishing
among the most marginalized groups in society and severely strong economic and social cooperation between the States was
affected by, for example, pandemic diseases, such as prima facie.
HIV/AIDS, and in general have limited access to health
services. Goals of the Atlantic Charter
• No territorial gains, neither by the U.S. nor by Britain.
Unit 3: International Protection of Human Rights • Any territorial adjustments that were made, would have to be in
accord with the wishes of the people involved
General Overview • All people would have a right to self-determination.
• Two world wars were highly destructive of life as well as material. • The trade barriers would be lowered after the war’s conclusion.
• These two wars shook the conscience of the people of the world and • Global economic cooperation and an advancement on social
highlighted the need for peace and cooperation among the nations. welfare, were to be made.
• The first attempt towards achieving this aim of world peace was in the • Participants would work to create a world that was free of want
form of the League of Nations after the WWI. and free of fear.
• failure, as it could not avert the Second World War. • Freedom of the seas -another goal that the participants would
• The search for peace culminated in the formation of the UN after work together to attain; and,
World War II. • Disarmament of aggressor nations was a central goal.
• US President Franklin D Roosevelt was driving force behind the
creation of UN. Declaration by United Nations (1942)
• The name “ United Nations” was used by Roosevelt to describe the • Roosevelt, Churchill, Litvinov (USSR),T. V. Soong (China) signed a
alliance fighting the Axis powers in WWII. short document which later came to be known as the United Nations
• From 1941 to 1945, United States President Franklin Roosevelt, Declaration representatives of 22 other nations added their
British Prime Minister Winston Churchill, and Soviet Prime Minister signatures.
Joseph Stalin held various conferences in which they discussed • The original 26 signatories: US, UK, USSR, China, Australia,
various principles. Belgium, Canada, Costa Rica, Cuba, Czechoslovakia, Dominican
• Their experiences helped them to formulate a plan to create an Republic, El Salvador, Greece, Guatemala, Haiti, Honduras, India,
international peacekeeping organization with a goal of preventing Luxembourg, Netherlands, New Zealand, Nicaragua, Norway,
future wars on the scale of World War II. Panama, Poland, Union of South Africa, Yugoslavia
• Was the basis of the modern UN.
• The term United Nations became synonymus with the Allies and was • “We are resolved upon the earliest possible establishment with our
considered to be the formal name that they were fighting under. Allies of a general international organization to maintain peace and
• The declaration affirmed "that complete victory over their enemies is security…
essential to defend life, liberty, independence and religious freedom, • “We have agreed that a Conference of United Nations should be
and to preserve human rights and justice in their own lands as well as called to meet at San Francisco in the United States on the 25th April,
in other lands, and that they are now engaged in a common struggle 1945, to prepare the charter of such an organization, along the lines
against savage and brutal forces seeking to subjugate the world". proposed in the formal conversations of Dumbarton Oaks.”
• The principle of "complete victory" established an early precedent for
the Allied policy of obtaining the Axis' powers' "unconditional The San Francisco Conference (April 25 – June 26, 1945)
surrender". • Representatives of 50 states met to draw up the UN Charter based on
• The defeat of "Hitlerism" constituted the overarching objective, Dumbarton Oaks proposals by the Great Powers (China, the Soviet
• The declaration, furthermore, "upheld the principles of self Union, the UK, the US)
determination," • The Charter – unanimously approved and signed by all the
participating States, original members of the UN.
The Moscow Conference (1943)
• The Declaration of the Four Nations (U.S., Soviet Union, UK, China) United Nations Charter
recognized: • "The Charter of the United Nations which you have just signed is a
• “the necessity of establishing ...a general international organization, solid structure upon which we can build a better world. History will
based on the principle of the sovereign equality of all peace-loving honor you for it.
States and open to membership by all such States, large and small, • Between the victory in Europe and the final victory, in this most
for the maintenance of international peace and security” destructive of all wars, you have won a victory against war itself. . . .
With this Charter the world can begin to look forward to the time
Dumbarton Oaks Proposals (Washington Conversations on when all worthy human beings may be permitted to live decently as
International Peace and Security Organization (Oct. 7, 1944) free people." (President Truman)
• Representatives of the same 4 Governments met to lay down the • "If we fail to use it, we shall betray all those who have died so that
foundations of the future world organization we might meet here in freedom and safety to create it. If we seek to
• Purposes of the Organization: to maintain international peace and use it selfishly - for the advantage of any one nation or any small
security, develop friendly relations among nations, promote group of nations — we shall be equally guilty of that betrayal. "
cooperation in economic and social matters.
• Basic organs: the Assembly, the Council, the Secretariat, headed by The Four Policemen
the Secretary General, and the Court of Justice. • World peace was to be maintained by what Roosevelt described as
• Another important feature:member states were to place armed the “four policemen”-the US, UK, USSR and China, acting together
forces at the disposal of the Security Council in its task of to prevent conflict .
preventing war and suppressing acts of aggression. • These four policemen, along with France, became the five permanent
• The absence of such force -a fatal weakness in the League of Nations members of the UN Security Council .
machinery for preserving peace. • The USSR initially opposed China’s inclusion as one of the
“policemen”, but Roosevelt insisted.
Yalta Conference (11 Feb. 1945) • UN thus is an international organization designed to make the
• Churchill, Roosevelt and Stalin enforcement of international law, security, human rights, economic
and social progress easier for countries around the world.
Objectives of UN • Contributions of member states constitute the main source of funds
• Maintaining international peace and security. for the regular budget.
• Promoting human rights . • A state’s share is primarily determined by its total national income in
• Promoting international cooperation. relation to that of the member states.
• Fostering social and economic development.
• Developing friendly international relations among world nations . ORGANS OF UN
• Providing humanitarian aid in cases of famine, natural disaster, and • The UN has six main organs:
armed conflict. i. The General Assembly
• Solving international problems of any nature (economic, cultural, ii. The Security Council
social). iii. The Secretariat
iv. The Trusteeship Council
Principles of the UN v. The Economic and Social Council
• It is based on the sovereign equality of all its members. vi. International Court of Justice
• All members are to fulfill in faith their charter obligations.
• They are to settle their international disputes by peace. The General Assembly
• They are to refrain from the threat or use of force against other • The GA is the main deliberative organ ( like a world parliament).
state. • Composed of all United Nations member states, the Assembly meets
• They are to give the UN every assistance in every action it takes in in regular yearly sessions under a President elected from among the
accordance with the charter, especially during war. member states.
• Nothing in the charter is to authorize the United Nations to intervene • Each member has one vote.
in matters which are essentially within the domestic jurisdiction of • Decisions on important issues require two thirds majority vote
any state. • Peace and Security
• Admissions of new members
Membership • Budget matters
• Open to all peace-loving nations which accept the obligations of the • Decisions on other issues: simple majority
Charter. • The first session was convened on 10 January, 1946 in the
• The General Assembly admits new member states on the Westminster Central Hall in London and included representatives
recommendation of the Security Council. from 51 Nations.
• The Charter provides for the suspension or expulsion of a member for • Functions and Powers of GA
violation of the principles of the Charter (no such action has ever been – Deliberative functions
taken). – Supervisory functions
– Financial functions
Official Languages – Elective functions
• Arabic – Constituent functions
• Chinese
• English Deliberative functions
• French • Functions regarding decisions, discussions, studies declarations and
• Russian recommendations on different matters;
• Spanish • Matter within the scope of present Charter; or Relating to functions
& powers of other organs;
Finances
• Art 12 provides an exceptions to interfere with Security Council Security Council, violation of laws of charter and failure to
unless it request to do so; payments of financial contribution respectively.
• G.A. consider general principles of cooperation in the maintenance of • Election of member for other organ of the UN:
international peace and security; • Elects 10 non-permanent members of the Security Council;
• G.A. may call attentions of the Security Council to situations which • Elects 54 members of Economic & Social Council;
are likely to endanger international peace and security (Art 11(3)) • Elects some members of Trusteeship Council;
• Art 13- G.A. entrusted imp. responsibilities that it can initiate studies • Take part in the election of the Judge of the International
& make recommendations for the purposes of: Court of Law;
• Promoting international cooperation in political field; • Also take part in the appointment of Secretary General.
• Encouraging the progressive development of international law
& its codification; Constituent functions
• Promote the international cooperation in economic, social, • Take part in the amendments of the Charter;
cultural, educational & health fields and assists in the • The two-third of the majority of the members pass the Charter;
realization of H.R. & fundamental freedom. • And, it should be rectified in accordance with the constitutional
• Limitations: processes, again by the majority of two- third of the members.
• Resolutions & declarations are not binding to states;
• “Domestic Jurisdictions” Clause. The security council
• The Security Council is charged with maintaining peace and security
Supervisory Functions among countries
• The G.A. supervises the functions of other principal organs & • The most powerful organ of UN
specialized agencies of UN; • 15 Council members
• Particularly exercises sufficient control over: • The Security Council comprises five permanent members-United
• Economic and Social Council; and Trusteeship Council. States, Britain, France, Russia and China- and ten non-permanent
• Security Council and other organs of the UN have to submit Annual members- Belgium, Congo, Ghana, Indonesia, Italy, Panama, Peru,
Reports to the G.A.; Qatar, Slovakia, South Africa, who are elected for two years by
General Assembly.
Financial Functions • The non-permanent members are elected by the GA on the
• It considers & approves the budget of the UN; basis of geographical representation for 2 years term.
• Expenses of the organizations shall be borne by the members of the • The permanent members have the power to veto any of the decisions
G.A.; of SC.
• It examines and administrates the budgets made for the agencies of • Each member has one vote. Decisions on procedural matters are made
the UN with a view to making recommendations to the agencies by an affirmative vote of at least 9 of the 15 members.
concerned. • Decisions on substantive matters require nine votes and the
absence of a negative vote by any of the 5 permanent
Elective functions members.
• Admission of new states to UN: • All five permanent members have exercised the right of veto at one
• Decision of the members by two-third (2/3) majority (present time or another.
& voting) can lead to: • If a permanent member does not fully agree with a proposed
• Election of new state; and also suspension, expulsion or resolution but does not wish to cast its veto, it may choose to
deprivation of its vote due to preventive action taken by abstain — thus allowing the resolution to be adopted if it
obtains the required number of nine votes in favor.
• Under Article 25 of the Charter, all members of the United Nations • In some cases, the Council itself undertakes investigation and
agree to accept and carry out the decisions of the Security Council. mediation. It may dispatch a mission, appoint special envoys or
• While other organs of the United Nations make request the Secretary- General to use his good offices.
recommendations to member states, the Council alone has • •When a dispute leads to hostilities, the Council’s first concern is to
the power to take decisions which member states are bring them to an end as soon as possible. The Council may issue
obligated under the Charter to implement. ceasefire directives that can be instrumental in preventing an
escalation of the conflict.
Functions and Powers of SC • The Council may also dispatch military observers or a
• to maintain international peace and security in accordance with the peacekeeping force to help reduce tensions, keep opposing forces
principles and purposes of the United Nations; apart, and create conditions of calm in which peaceful settlements
• to formulate plans for establishing a system to regulate armaments; may be sought.
• to call upon the parties to a dispute to settle it by peaceful means; • Under Chapter VII of the Charter, the Council may decide on
• to investigate any dispute or situation which might lead to enforcement measures, including economic sanctions, arms
international friction, and embargoes, financial sanctions, travel bans or collective military
• To recommend methods of adjusting such disputes or the terms of action.
settlement; • The sanctions instrument is an important tool available to the
• to determine the existence of a threat to the peace or act of aggression Security Council in seeking to promote international peace and
and to recommend what action should be taken; security.
• to call upon the parties concerned to comply with such provisional • Each of the sanctions regimes currently in existence features “smart”
measures as it deems necessary or desirable to prevent an aggravation or targeted sanctions — arms embargoes, financial sanctions and
of the situation; travel bans — designed to eliminate or minimize unintended
• to call on members of the United Nations to take measures not effects by focusing on those responsible for the policies
involving the use of armed force — such as sanctions — to give effect condemned by the international community, while leaving other
to the Council’s decisions; parts of the population and international trade relations
• to resort to or authorize the use of force to maintain or restore unaffected.
international peace and security;
• to encourage the peaceful settlement of local disputes through Economic and Social Council
regional arrangements and to use such regional arrangements for • It has 54 members (14 African states; 11 Asian states; 10 Latin
enforcement action under its authority; American states; 13 west European and other nations and 6 east
• to recommend to the General Assembly the appointment of the European nations).
Secretary-General and, together with the Assembly, to elect the • Elected by the GA
Judges of the International Court of Justice; • 3 years terms
• to request the International Court of Justice to give an advisory • Serves as central forum for discussion international economic and
opinion on any legal question; social issues/cooperation and development.
• to recommend to the General Assembly the admission of new • The president is elected for a one-year term and chosen among the
members to the United Nations. small or middle powers represented on ECOSOC.
• When a complaint concerning a threat to peace is brought before it, • Voting is by simple majority; each member has one vote
the Council’s first action is usually to recommend that the parties try • The Council is responsible for:
to reach agreement by peaceful means. • promoting higher standards of living
• The Council may set forth principles for a peaceful settlement. • Full employment
• Economic and social progress
 • identifying solutions to international economic, social and • Each UN member country is enjoined to respect the international
health problems character of the Secretariat and not seek to influence its staff.
• facilitating international cultural and educational cooperation • The Secretary- General alone is responsible for staff- selection.
• Encourage universal respect for human rights and fundamental • The Secretary General’s duties include helping resolve international
freedoms disputes, administering peacekeeping operations, organizing
international conferences, gathering information on the
Functions of Council implementation on the Security Council decisions, and consulting
• It’s functions include information gathering, advising member with member Governments regarding various initiatives.
nations, and making recommendations. • The Secretary- General may bring to the attention of the Security
• In addition, ECOSOC is well-positioned to provide policy Council any matter that, in his or her opinion, may threaten
coherence and coordinate the overlapping functions of the UN’s international peace and security.
subsidiary and it is in these roles that it is most active.
International Court of Justice (ICJ)
Trusteeship Council
• Trusteeship Council aims helping countries under foreign rule to Introduction
attain independence.  Principal judicial organ of the United Nations (UN).
• There were eleven such countries that had come under this  Established in June 1945.
system after the second world war.  Seat of the Court- Peace Palace in The Hague (Netherlands).
• By 1994, all Trust Territories had attained independence.  The Court’s role is to settle disputes in acc. with IL, legal disputes
• Suspended operation on Nov. 1, 1994 submitted to it by states and to give advisory opinions on legal
• The last to do was the Palau, which became the 185 th Member state of questions referred to it by authorized United Nations organs and
the UN. specialized agencies.
 Composition- 15 judges- elected for a term of 9 years.
Secretariat  Official languages- English and French
• It is headed by the Secretary- General, assisted by staff working in  Also known as the World Court.
duty stations around the world
• The staffs are accountable only to UN and not to any particular Members of the Court
member state.  ICJ is composed of 15 judges elected to nine-year terms of office by
• It provides studies, information, and facilities needed by United the United Nations General Assembly and the Security Council.
Nations bodies for their meeting.  It may not include more than one judge of any one nationality.
• It also carries out tasks as directed by the UN Security Council, The  In order to ensure a measure of continuity, one third of the Court is
UN General Assembly, The UN Economic and Social Council and elected every three years.
other UN bodies.
• UN Charter provides that the staff be chosen by application of the Jurisdiction
“highest standards of efficiency, competence, and integrity,” with  I. Contentious Jurisdiction
due regard for the importance of recruiting on a wide  II. Advisory Jurisdiction
geographical basis
• The Charter provides that the staff shall not seek or receive Contentious Jurisdiction ( Art. 34)
instructions from any authority other than the UN  Contentious Jurisdiction ( Art. 34) (adversarial proceedings seeking
• take an oath not to seek or receive instructions from any to settle a dispute): -
government
  Court decides any case with the consent of the parties to  States can agree in advance by treaty to confer
the case jurisdiction to the Court. That is what Art. 36 (1)
 It is fundamental principle of international law that without means when it refers to “matters specially provided
the consent of any party to a case, the same shall not be for… in treaties”.
referred to mediation or arbitration.  There are several hundred treaties in force which
 Only states may be parties in contentious cases. contain such a jurisdictional clause stipulating that if
 Individuals, corporations, parts of a federal state, NGOs, UN parties to the treaty disagree over its interpretation or
organs and self-determination groups are excluded from direct application, one of them may refer the dispute to the
participation in cases, although the Court may receive Court.
information from public international organizations.  Such a clause is known as a “compromissory clause”.
 they have the right to request advisory opinions.  The treaty may be a general treaty of peaceful
settlement of disputes, or a treaty regulating some
Consent is the basis of the Court’s Jurisdiction other topic and containing a compromissory clause.
 Article 36 [Statute]  iii. By forum prorogatum
 1. The jurisdiction of the Court comprises all cases which the parties  Each party makes a separate reference to the Court by a
refer to it and all matters specially provided for in the Charter of the unilateral application [under Article40(1) of the Statute].
United Nations or in treaties and conventions in force. …  While the Court is considering the unilateral application of
 The phrase “all cases which the parties refer to it”, clearly indicates one state, the other may expressly or impliedly signify its
that the Court can exercise jurisdiction only when the parties refer consent to the jurisdiction.
the case to it.  Such consent may be express or implied.
 The word “parties” is in the plural, and implies that all the parties to  It can be implied if the defendant state defends the case on the
the dispute must agree that the dispute should be referred to the Court. merits without challenging the jurisdiction of the Court.(Like
 Therefore, the Court’s jurisdiction is not compulsory; it is voluntary an estoppel by conduct.)
only.  In such circumstances the jurisdiction is known as forum
 The Court on a number of occasions declared that its jurisdiction in prorogatum.
contentious cases is dependent on the consent of the parties.  IV. By accepting compulsory jurisdiction under Art. 36 (2)
 Contentious Jurisdiction is of three kinds which may be given as  (2) The States parties to the present Statute may at any time declare
under: that they recognize as compulsory ipso facto and without special
 i. Consent ad hoc : (An special agreement) agreement, in relation to any other states accepting the same
( compromis). obligation, the jurisdiction of the Court in all legal disputes
 ii. By a Compromissory clause in a treaty concerning:
 iii. By forum prorogatum; or  (a) the interpretation of a treaty;
 Iv. Compulsory Jurisdiction ( Unilateral Declaration of ICJ) under  (b) any question of international law;
Art. 36(2) of the Statute.  (c) the existence of any fact which, if established, would constitute a
 i. Consent ad hoc: By a Special Agreement ( Compromis) breach of an international obligation;
 The classic method by which the parties refer a case to the  (d) the nature and extent of the reparation to be made for the breach of
Court is by a special agreement(compromis). an international obligation.
 This is an agreement whereby two or more states agree to refer  It is compulsory once it is voluntarily accepted.
a particular and defined matter to the Court for a decision.  By the use of the term ‘may’, Article 36(2) is not obligatory upon
 ii. By a Compromissory Clause in a Treaty Member States.
 There is no obligation to make a declaration under Article 36(2). That  Advisory Jurisdiction means that the jurisdiction of the Court by
is the reason why it is called the ‘optional clause’. which it may only gives an advisory opinion on a question of law.
 (3) The declaration referred to above may be made unconditionally or  Provided under Chapter IV of ICJ Statute esp. Art. 65.
on condition of reciprocity on the part of several or certain states, or  The Court may give and advisory opinion on any legal
for a certain time question at the request of whatever body may be authorized by
 (6) In the event of a dispute as to whether the Court has jurisdiction, or in accordance with the Charter of the United Nations to
the matter shall be settled by the decision of the court. [This provision make such a request.
is known as “jurisdiction over jurisdiction”] “comp`etencede la  The case may be referred by an international organization or by any
comp`etence” organs within the scope of their activities
 Under Article 36(3), the declarations may be made unconditionally or  open only to specified UN bodies and agencies.
on condition of reciprocity or for a certain time.  not available to states.
 As declarations may be made conditionally, Some states have  considered as an exclusive prerogative of any body other than
accepted the compulsory jurisdiction with ‘reservations’. the members states themselves.
 These reservations may exclude from the acceptance of compulsory  This does not require the consent of the parties to a case but when any
jurisdiction a particular dispute or whole class of disputes. International Institute (General Assembly or Security Council) ask the
Court to give an advisory opinion on the question.
The Principle of Reciprocity
 States which accept the jurisdiction of the Court under the optional Prerequisites for requesting an Advisory Opinion
clause system [Article 36(2)]do so only ‘in relation to any other state  GA and SC are to request AO regarding any “legal question” and
accepting the same obligation’. other organs of the UN and its specialized agencies to request
 This is known as the ‘principle of reciprocity’. opinions regarding “legal questions arising within the scope of their
 This principle has two aspects: activities”.
 The first aspect is that the optional clause system applies only  Art. 96 of the Charter stipulates that the GA and the SC, as well as
between those States which have accepted compulsory the other political organs and specialized agencies that are authorized
jurisdiction. by the GA, have the right to request advisory opinions from the ICJ.
 Therefore, both parties to a dispute must have made declarations  On receiving a request, the Court decides which States and
under Article 36(2) in order that the Court may exercise jurisdiction. organizations might provide useful information and gives
 The second aspect concerns the ‘subject matter’ over which the them an opportunity to present written or oral statements.
Court may have jurisdiction by virtue of the phrase: ‘accepting the  Advisory Opinions were intended as a means by which UN
same obligation’. agencies could seek the Court's help in deciding complex legal
 Thus the principle of reciprocity means that the Court has jurisdiction issues that might fall under their respective mandates.
over the areas (or subject-matters) in respect of which no reservations
are made by both States’ Declarations. The Office of the High Commissioner for Human Rights ( OHCHR)
 According to Article 36(3), states may make ‘reservations’ when  OHCHR is led by the High Commissioner for Human Rights, the
accepting the jurisdiction of the Court. principal human rights official of the UN.
 By virtue of the principle of reciprocity, one state may rely on  It employs approximately 1,085 staff based in Geneva, New
the reservations contained in another state’s Declaration. York and 26 country/regional offices.
 OHCHR is mandated to promote and protect the enjoyment and
Advisory Jurisdiction ( Art. 65) full realization, by all people, of all rights established in the
 Are non binding opinions of the Court that have high moral and Charter of the United Nations and in international human rights
political weight in international arena. laws and treaties.
 The mandate for OHCHR is provided by GA resolution 48/141, UN  Knowledge and awareness of all human rights, whether civil,
Charter, UDHR and subsequent HRs instruments, the Vienna cultural, economic, political or social rights, are deepened and the
declaration and Programme of Action the 1993 World conference on capacity of rights-holders and duty-bearers are strengthened through
HRs and 2005 World Summit Outcome document. applied thematic research and analyses, methodologies, development
 The mandate includes under GA Resolution 48/141 and training.
 To promote and protect all human rights for all;  International human rights experts are also deployed to field offices
 To make recommendations to the competent bodies of the and other missions, including in circumstances of crisis, to assist
United Nations system for improving promotion and countries that are working to fulfil their human rights obligations.
protection of all human rights;
 To promote and protect the right to development; Challenges of OHCHR
 To provide technical assistance for human rights;  OHCHR lacks adequate resources and operational capacities, has an
 To coordinate United Nations human rights education and insufficient presence outside of Geneva, and faces ever-increasing,
public information programmes; uncoordinated (and usually unfunded) demands from the Commission
 To play an active role in removing obstacles to the realization on Human Rights, the General Assembly and other United Nations
of human rights; organs and offices.
 To play an active role in preventing the continuation of  For its part, the Commission has been accused of selectivity, double
human rights violations; standards, politicization, and obstructive regional divisions.
 To engage in dialogue with Governments with a view to  Enforcement mechanisms are weak, further undercutting the
securing respect for all human rights; credibility and effectiveness of the system.
 To enhance international cooperation;
 To coordinate human rights promotion and protection The United Nations’ System of Protection of Human Rights
activities throughout the United Nations system; • UN on the basis of its Charter provides generous, universal
 To rationalize, adapt, strengthen and streamline the United framework for the protection of human rights.
Nations human rights machinery • Mostly done through its legally binding treaties which are aimed at
 It is funded from the UN regular budget and from voluntary promoting democracy and extensive human rights throughout the
contributions from Member States, intergovernmental world.
organisations, foundations and individuals. • The UN system for the protection of human rights employs three
 Operationally, OHCHR works with governments, legislatures, courts, different strategies for the protection and enforcement of human
national institutions, civil society, the business community, regional rights.
and international organisations, and the UN system to develop and ▫ Firstly, it focuses on establishing and maintaining
strengthen the protection of human rights, particularly at the national international standards through its legally enforceable
level, in accordance with international norms. treaties and non binding declarations, agreements and
documents.
Work Method ▫ Secondly it focuses on using experts in varying fields of
 The work of UN Human Rights encompasses three broad areas: human rights and Special Rapporteurs for the promotion
 human rights standard setting, and enforcement of human rights.
 monitoring and supporting the implementation of human ▫ Thirdly, the UN system provides a voluntary fund for
rights obligations by States. advisory services and technical assistance in the arena of
 Substantive and technical support is provided to the various UN human rights.
human rights bodies as they undertake their standard-setting and
monitoring duties.
 Universal Periodic Review
Working Group ( UPRWG)(2007-)
Human Rights Bodies

Advisory Committee (HRCAC) (2007-)

Charter Based Bodies Treaty Based Bodies

Special Procedures ( 1947-)

UN Charter Based Bodies
• Human Rights Council
• Universal Periodic Review Complaint Procedures
• Commission of Human Rights ( replaced by Human Rights Council)
• Special Procedures of the Human Rights Council
• Human Rights Council Complaint Procedures
Universal Periodic Review Mechanism
Human Rights Council • A key component of the Council consists in a periodic review of all
• The HRC is an inter-governmental body within the United Nations 193 UN member states.
system responsible for strengthening the promotion and • The new mechanism is based on reports coming from different
protection of human rights around the globe and for addressing sources, one of them being contributions from NGOs.
situations of human rights violations and make recommendations • Each country's situation will be examined during a three-hour debate.
on them. • The Review provides with the opportunities to:
• It has the ability to discuss all human rights issues and situations that ▫ all States to declare what actions they have taken to
require its attention throughout the year. It meets at the UN Office at improve the human rights situations in their countries and
Geneva. to overcome challenges to the enjoyment of human rights.
• The Council is made up of 47 United Nations Member States which ▫ share best human rights practices around the globe.
are elected by the UN General Assembly. • The following terms and procedures were set
• The Human Rights Council replaced the former United Nations 1) Reviews are to occur over a four-year period (48 countries per year).
Commission on Human Rights. Accordingly, the 193 countries that are members of the United
• The Council was created by the United Nations General Assembly on Nations shall normally all have such a "review".
15 March 2006 by resolution 60/251. Its first session took place from 2) The order of review should follow the principles of universality and
19 to 30 June 2006. equal treatment.
▫ One year later, the Council adopted its "Institution-building 3) All Member States of the Council will be reviewed while they sit at
package" to guide its work and set up its procedures and the Council and the initial members of the Council will be first.
mechanisms. 4) Review will be done in alphabetical order.
• The documents on which the reviews are based are:
Subsidiary Bodies of Human Rights Council ▫ 1) information provided by the State under review, which can
take the form of a “national report”;
 ▫ 2) information contained in the reports of independent human ▫ Special Rapporteurs or Independent Expert
rights experts and groups, known as the Special Procedures, ▫ Working Groups : Composed of 5 members one from each of
human rights treaty bodies, and other UN entities; the five UN regional groupings: Africa, Asia, Latin America
▫ 3) information from other stakeholders including national and the Caribbean, Eastern Europe and the Western group.
human rights institutions and non-governmental organizations. ▫ The Special Rapporteurs, Independent Experts and members
of the Working Groups are appointed by the Human Rights
Human Rights Council Advisory Committee ( HRCAC) Council and serve in their personal capacities.
• Pursuant to Council resolution 5/1 paragraphs 65 to 84, the Human • They undertake to uphold
Rights Council Advisory Committee has been established to ▫ independence, efficiency, competence and integrity through
function as a think-tank for the Council and work at its direction. probity, impartiality, honesty and good faith.
▫ They are not United Nations staff members and do not receive
Mandates and Functions of HRCAC financial remuneration.
• The Advisory Committee provides expertise to the Council in the
manner and form requested by it. It mainly focuses on studies and Activities of Special Procedures
research-based advice. • undertake country visits
• The Committee may also propose within the scope of the work set out • act on individual cases and concerns of a broader, structural nature by
by the Council, for the latter’s consideration and approval, sending communications to States and others in which they bring
suggestions for further research proposals. alleged violations or abuses to their attention
• In its work, the Committee should be implementation-oriented and • conduct thematic studies and convene expert consultations
the scope of its advice should be limited to thematic issues • contribute to the development of international human rights standards
pertaining to the mandate of the Council, namely promotion and • engage in advocacy, raise public awareness, and provide advice for
protection of all human rights. technical cooperation.
• It shall not adopt resolutions or decisions.
Communications
Membership of HRCAC
• The Committee is composed of 18 independent experts from • The mechanism can intervene directly with Governments on
different professional backgrounds representing the various regions of allegations of violations of human rights that come within their
the world (5 from African States; 5 from Asian States; 2 from Eastern mandates by means of letters which include urgent appeals and
European States; 3 from Latin American and Caribbean States, and 3 other communications.
from Western European and other States). • The intervention can relate to a human rights violation that has
• Experts are nominated by Governments and elected by the Council. already occurred, is ongoing, or which has a high risk of
occurring.
Special Procedures • The process involves sending a letter to the concerned State
• The special procedures of the Human Rights Council are identifying the facts of the allegation, applicable international
independent human rights experts with mandates to report and human rights norms and standards, the concerns and questions of
advise on human rights from a thematic or country-specific the mandate-holder(s), and a request for follow-up action.
perspective. • Communications may deal with individual cases, general patterns and
• The system of Special Procedures is a central element of the United trends of human rights violations, cases affecting a particular group or
Nations human rights machinery and covers all human rights: civil, community, or the content of draft or existing legislation, policy or
cultural, economic, political, and social. practice considered not to be fully compatible with international
• Independent Human Rights Experts human rights standards.
• In some cases, communications are also sent to inter-governmental 2. A description of the facts, comprising: the identification of the
organizations or non-State actors. victims and suspects of the violation, accompanied by a detailed
• The decision to intervene is at the discretion of mandate-holders and description of the events when the violation took place.
will depend on the various criteria established under their respective • Apparent evidence, such as written declarations on the facts by the
mandates, as well as the criteria laid out in the Code of Conduct. victims, their families or witnesses of the violation, or a medical
• The criteria will generally relate to: the reliability of the source and report indicating the consequences of the violation.
the credibility of information received; the details provided; and the ▫ The evidence can be included in the complaint itself or
scope of the mandate. attached to it.
• Communications can be sent by mandate-holders irrespective of
whether an alleged victim has exhausted domestic remedies and UN Treaty Bodies
whether the concerned State has ratified an international or • Derive their existence from provisions contained in a specific legal
regional human rights instruments. instrument;
• Hold more narrow mandates: the set of issues codified in the legal
Special Procedures in Nepal instrument;
• SR on extrajudicial, summary or arbitrary executions • Address a limited audience: only those countries that have ratified the
• (2000) legal instrument; and
• SR on violence against women, its causes and • Base their decision-making on consensus.
• consequences (2000) • UN Treaty Bodies include:
• WG on Enforced or Involuntary Disappearances (2004) – Human Rights Committee (CPR)
• RSG on internally displaced persons (2005) – Committee on Economic, Social and Cultural Rights (CESCR)
• SR on torture and other cruel, inhuman or degrading – Committee on the Elimination of Racial Discrimination ( CERD)
treatment or punishment (2005) – Committee on the Elimination of Discrimination against Women
• SR on the rights of indigenous peoples (2008) (CEDAW)
• SR on migrants (2018) – Committee against Torture (CAT)
– Committee on the Rights of the Child (CRC)
Complaint Procedures – Committee on Migrant Workers (CMW)
• The complaint procedure allows an examination of such complaints
– Committee on the Rights of Person with Disabilities(CRPD)
which reveal the existence of a consistent pattern of gross and
– Committee on Enforced Disappearances (CED)
reliably attested violations of human rights and fundamental
freedoms. – The Subcommittee on Prevention on Torture and other Cruel,
• Once the Council received several individual cases which form a Inhuman or Degrading Treatment or Punishment (SPT)
consistent pattern of gross systematic human rights violations which established pursuant to the Opt. of CAT 2002.
are reliably proved, it can decide to examine the situation of the • The treaty bodies are composed of independent experts and meet to
human rights in the country concerned. consider State parties' reports as well as individual complaints or
• The complaint must comprise of : communications.
1. The name of the author of the complaint, i.e. the name of the ▫ Mandate of 4 years
person(s) or organization(s) who file(s) the complaint. The ▫ Elected by State Parties
claimant has to precise it clearly, if he or she wishes the case to be • They may also publish general comments on human rights topics
treated anonymously. related to the treaties they oversee.

Committee Against Torture (CAT Committee)

 Committee comprises of 10 independent experts that monitor CAT.. • Two public meetings are held: first meeting begins with a
• High moral standing and recognized competence in the field short presentation by the State party’s representatives, who
of human rights . usually update the information contained in the report and, if
• Under personal capacity applicable, highlight the most relevant issues of the replies to
• Politically Impartial the LOI previously sent in written to the Committee.
• Second meeting , devoted to the replies of the state party
Mandates representatives to the questions posed by the members during
 Review the State Reports the first meeting..
 Individual Complaints or Communications • Following the examination of each report, the country
 Undertake Inquiries rapporteurs draft a proposal for concluding observations,
 Inter-State Complaints which are sent to state party concerned.
 Subcommittee on Prevention of Torture under OP to CAT mandated • As a follow up procedure the state party may submit any
to visit places where persons are deprived of their liberty in State comment in accordance with the concluding observations.
Parties. And on serious matters that the committee considers to be, it
expects the information within 1 year,
Consideration of State reports • The committee appoints a rapporteur to follow up on the state
 Submission of Initial Report one year after the entry into force of the party compliance.
convention and periodic reports every four years.
 Committee draws up a list of issues to be transmitted to the State in General comments
question.  The Committee may also adopt general comments on specific
• The list of issues are intended for state parties to clarify and provisions of the Convention or issues related to their
update certain questions and issues and consider the dialogue implementation.
on the matters that are of interest to the committee.  They interpret the provisions of the Convention and provide guidance
 Constructive Dialogue on reporting procedures and on measures needed to enhance
• The examination of a report takes the form of a dialogue implementation of the provisions of the Convention.
between the delegation from the reporting State and the
Committee’s members. Individual communications
• The aim of the dialogue is to enhance the Committee’s  Under article 22 of the Convention, the Committee may receive and
understanding of the situation in the State party as it pertains consider individual communications.
to the Convention and to provide advice on how to improve  The state needs to make a declaration under this Article to recognize
the implementation of the Convention provisions in the State the competence of the committee.
party.  Communication should not be anonymous.
• The dialogue also provides an opportunity for the State party  The state party against whom the communication is sent within 6
to further explain its efforts to enhance prevention of torture months is to submit the explanations or statements clarifying the
and ill-treatment and to clarify the contents of its report to the matter and remedy after having brought the attention by the
members of the Committee. Committee..
• Exceptionally, the Committee may examine a report in  Exhaustion of all domestic remedies are to be done and other
the absence of representatives of the State party when, inadmissibility criteria applies in the similar manner as in other
after being notified, they fail to appear without providing committees.
strong reasons.
inquiries
 By virtue of Article 20, if the committee receives reliable information State reports
which appears to it to contain well-founded indications that torture is  Under Article 44 of the Convention, States parties accept the duty to
being systematically practiced in the territory of a State Party, the submit regular reports to the Committee on the steps they have taken
Committee shall invite that State Party to co-operate in the to put the Convention into effect and on progress in the enjoyment of
examination of the information and to this end to submit observations children's rights in their territories.
with regard to the information concerned. • Initial report to be submitted within two years of ratification of
 As per the requirement, the committee may designate its one or more or accession to the Convention and thereafter every five years.
members to make a confidential inquiry and report to the committee  A Pre-sessional WG draws the list of issues and is sent to the State
urgently. where the state is expected to respond back before the sessions.
 After examining the findings of its members the Commission shall  The preparatory meeting with the state representatives after being
transmit these findings to the State Party concerned together with any reviewed leads to the adoption of concluding observations, which are
comments or suggestions which seem appropriate in view of the the statements on its consideration of a State’s Report.
situation..
 The procedures are confidential and under taken in cooperation with Individual communications
the state parties.  Article 5 of the Third OP to UNCRC.
 Communication can be submitted by or on behalf of an individual or
Inter-state mechanism group of individuals…claiming to the victims of a violations by the
 Article 30 of CAT provides for it, state party. ( convention and both OPs)
• For disputes between States parties concerning interpretation  Interim Measures can be asked to be taken the State party by the
or application of the Convention to be resolved in the first Committee.
instance by negotiation or, failing that, by arbitration.  Admissibility Criteria ( Article 7 ) similar as in other committees.
• One of the States involved may refer the dispute to the  The committee should bring into attention the state about the
International Court of Justice if the parties fail to agree communication confidentially and state party is required to submit
arbitration terms within six months. back the explanations or statements clarifying the matter and the
remedy if any provided.
Subcommittee on prevention of torture
 OP to CAT entered into force on 22 June 2006. Committee on elimination of all forms of racial discrimination
 Pursuant to Article 1 of the Optional Protocol, its objective is to
establish a system of regular visits undertaken by independent Composition
international and national bodies to places where people are • CERD Committee was established in 1970 under Article 8 of
deprived of their liberty, in order to prevent torture and other cruel, CERD.
inhuman or degrading treatment or punishment. • The first treaty body to be established.
• The CERD is composed of 18 independent experts who are
CRC Committee elected for a term of four years.
 A body of 18 experts to monitor implementation of CRC and its two • Members are chosen based on their high moral standing,
optional protocols to the Convention. acknowledged impartiality, and considering an equitable
 Mandates: geographical distribution where Members can represent different
• State Reports forms of civilization and principal legal systems.
• Individual Complaints
• General Comments functions
• Consideration of State Reports
• Individual Complaints paragraph 2 of this article shall be deposited by the State Party
• Inter State Complaints concerned with the Secretary-General of the United Nations.
• Early warning and urgent procedures • In the event of failure to obtain satisfaction from the body
• Preparation of GC and thematic discussions established or indicated in accordance with paragraph 2 of this article,
the petitioner shall have the right to communicate the matter to
State reporting the Committee within six months.
• State parties are required to submit an initial report within one year • The Committee shall confidentially bring any communication
after acceding to the ICERD. referred to it to the attention of the State Party alleged to be violating
• regular periodic reports every two years. any provision of this Convention.
• The reporting system requires each State party to submit (1) • Within three months, the receiving State shall submit to the
a common core document, which lists general information about the Committee written explanations or statements clarifying the matter
reporting State, a framework for protecting human rights, and and the remedy, if any.
information on non-discrimination and equality, and (2) a treaty- • The Committee shall consider communications in the light of all
specific document, which accounts for specific information relating information made available to it by the State Party concerned and by
to the implementation of articles 1 to 7 of the ICERD and any national the petitioner.
law or policies taken to implement the ICERD. • The Committee shall not consider any communication from a
• Following the submission of State reports, the CERD will engage in petitioner unless it has ascertained that the petitioner has
a constructive dialogue with each State party that has submitted a exhausted all available domestic remedies unless
State report. unreasonably prolonged.
• The Committee will engage in a private discussion following • Committee then forwards its suggestions and recommendations if
the constructive dialogue, and will then issue any to the state party concerned and the petitioner.
recommendations in the form of concluding observations. The
Committee also keeps a current list of concluding Inter-state complaints
observations. • Articles 11 through 13 of the ICERD provide a mechanism for States
• The CERD further has a follow-up procedure such that the to complain about violations of the ICERD made by another State
Committee request further information or any additional reports through the establishment of an ad hoc Conciliation Commission.
concerning action taken by the State party to implement the • This procedure has never been used .
Committee’ recommendations. • Article 22 of the ICERD also provides a mechanism for States to
resolve inter-State disputes concerning the interpretation of
Individual complaints application of the Convention.
• Individual complaints will be entertained by the committee if the • This procedure allows for disputes to be resolved in the first
State party has made the necessary declaration under Article 14 of the instance by negotiation, and should that fail, by arbitration.
ICERD. • If the parties then fail to agree to the arbitration within a
• Any State Party which makes a declaration as provided for in period of six months, then one of the States may refer the
paragraph I of this article may establish or indicate a body within dispute to the ICJ unless a State opted out of the
its national legal order which shall be competent to receive and procedure by making a declaration at the time of ratification
consider petitions from individuals and groups of individuals or accession to ICERD.
within its jurisdiction.
• A declaration made in accordance with paragraph 1 of this article and Urgent interventions
the name of any body established or indicated in accordance with
• The CERD employs an early-warning procedure in order to prevent • Draws up lists of issues and questions wrt to state party
the escalation of existing conflicts as well as urgent procedures to reports to facilitate the constructive dialogue with the
prevent the number of serious violations of the ICERD. committee.
• Situations that qualify for an early-warning procedure could include: • Representatives of the specialized agencies and bodies of the
• the lack of an adequate basis for defining and prohibiting United Nations, national human rights institutions as well as
racial discrimination in domestic legislation, national and international non-governmental organizations, are
• inadequate enforcement mechanisms, invited to provide country-specific information to the pre-
• or an emerging pattern of racial propaganda or appeals to sessional working group on those States parties whose reports
racial intolerance made by other individuals. are before the group.
• Situations that qualify for urgent procedures may include a • The lists of issues and questions are promptly sent to the
situation where serious and persistent racial discrimination States parties concerned, usually within a week after the pre-
exists. sessional working group concludes its work. States parties are
• Once the CERD decides to undertake an early-warning procedure or invited to provide their responses) within two to three months
an urgent procedure, the Committee may make requests to the State thereafter
party involved to provide information, request the Secretariat to • Constructive Dialogue
collect information from the field offices of relevant • The Committee engages in a constructive dialogue with
organizations, and adopt a decision that addresses specific representatives of the reporting State .
concerns and recommends action. • The Head of the delegation of the State party is invited to
make an introductory statement
General comments • Following the introductory statement, experts pose questions
• The CERD also prepares general comments, known as general in respect of the articles of the Convention.
recommendations, interpreting the ICERD’s articles and • The Committee may consider a report in the absence of
provisions in order to assist State parties in fulfilling their representatives of a State party, if warranted.
obligations. • It may also consider the implementation of the Convention in
the absence of a report as a measure of last resort. Such a
CEDAW committee measure will be taken on a case-by-case basis, particularly in
• CEDAW Committee consists of 23 experts on women’s rights instances where a State party has not submitted a long-
from around the world. overdue initial report.
• Functions: • Concluding Observations
• Review state reports • The Committee adopts concluding observations on the reports
• Mandated to receive individual communications of States parties that it considers.
• Mandated to initiate inquiries into situation of grave or • Concluding observations include a recommendation relating to
systematic violations of women’s rights dissemination, requesting wide dissemination of the
• formulate general recommendations and suggestions concluding observations in the State party concerned, and also
• directed to states and concern article or themes in the a paragraph requesting that information be submitted on the
Convention. steps taken to implement two priority recommendations
State reports identified at the end of the concluding observations, within
• Initial and subsequent periodic reports. two years, or exceptionally within one year (known as the
• Pre Sessional working group( 5 members) “follow-up procedure”).
• The concluding observations also set out the date when
the State party’s next periodic report is due.
General recommendations measures as may be necessary to avoid possible irreparable
• Article 21 of the Convention provides that the Committee may make damage to the victim or victims of the alleged violation.
suggestions and general recommendations based on the examination • Within 6 months the receiving party shall submit to the
of reports and information received from States parties. committee written explanations or statements clarifying the matter
• General recommendations provide guidance on the content of the and the remedy, if has been provided.
legal obligations of States parties under the Convention. • The examination of the communication will take place in the light
• The Committee elaborates general recommendations on specific of all information made available to it by or on behalf of
articles of the Convention or themes/issues arising thereunder. individuals or groups of individuals and by the concerned state
• Most of these outline matters which the Committee wishes to see party
addressed in the reports of States parties, and seek to provide detailed • The Committee holds closed meetings when examining
guidance to States parties on the steps they need to take to comply communications .
with their obligations under the Convention. • After examining a communication, the Committee transmits its
views on the communication, together with its recommendations,
Mandates under optional protocol to the convention if any, to the parties concerned.
• Individual Communication under Article 2 of the OP • The State Party within six months, has to respond with a
• Communications may be submitted by or on behalf of written response, including information on any action taken in
individuals or groups of individuals, under the jurisdiction of a the light of the views and recommendations of the Committee.
State Party, claiming to be victims of a violation of any of the • The Committee may invite the State Party to submit further
rights set forth in the Convention by that State Party. information about any measures the State Party has taken in
• The communication cannot be anonymous. response to its views or recommendations, if any, including as
• Admissibility Criteria of the Communication ( Article 4) deemed appropriate by the Committee, in the State Party’s
• Should have exhausted all available domestic subsequent reports under article 18 of the Convention.
remedies unless the application of such remedies is
unreasonable prolonged or unlikely to get effective Confidential inquiries under Article 8 of the OP
relief. • If the committee receives reliable information indicating grave or
• The committee shall declare the communication inadmissible systematic violations by a state party, the inquiries can be
where: initiated.
(a) The same matter has already been examined by the • Inquires may only be conducted with respect to state
Committee or has been or is being examined under another parties that have recognized the competence of the
procedure of international investigation or settlement; relevant committee.
(b) It is incompatible with the provisions of the Convention; • The Committee invites the State party to co-operate in the
(c) It is manifestly ill-founded or not sufficiently examination of the information by submitting
substantiated; observations.
(d) It is an abuse of the right to submit a communication; • The Committee may, on the basis of the State party's
(e) The facts that are the subject of the communication observations and other relevant information available to it,
occurred prior to the entry into force of the present Protocol decide to designate one or more of its members to conduct
for the State Party concerned unless those facts continued after an inquiry and report urgently to the Committee. Where
that date. warranted and with the consent of the State party
• After the receipt of a communication and before a determination concerned, an inquiry may include a visit to its territory.
on the merits, the Committee may transmit to the State Party
concerned for its urgent consideration to take such interim
 • The findings of the member(s) are then examined by the • Members of the Committee serve in their personal capacity, not as
Committee and transmitted to the State party together with any representatives of their Governments. ( should be politically
comments and recommendations. impartial)
• The State party is requested to submit its own observations on the • For example, a Committee member does not participate in the
Committee's findings, comments and recommendations within a consideration of a periodic report submitted by the State of
specific time frame (usually six months) and, where invited by the which he or she is a national, or in the adoption of concluding
Committee, to inform it of the measures taken in response to the observations thereon. Nor does a Committee member take part
inquiry. in discussion of a complaint under the Optional Protocol that
• The inquiry procedure is confidential and the cooperation of is directed against his or her country.
the State party shall be sought at all stages of the proceedings.
Four monitoring functions of the committee
• First, the Committee receives and examines reports from the States
Human rights committee parties on the steps they have taken to give effect to the rights spelled
• Established under Article 28 of ICCPR. out in the Covenant.
• Has 18 members, who must be nationals of state parties to the • Second, the Committee elaborates so-called general comments,
covenant. which are designed to assist States parties to give effect to the
• Called as “experts” provisions of the Covenant by providing greater detail regarding the
• As per Article 28: substantive and procedural obligations of States parties
• members must be “persons” of high moral character • Third, the Committee receives and considers individual complaints,
and recognized competence in the field of human also known as “communications”, under the Optional Protocol made
rights by individuals who claim violations of their Covenant rights by a
• With consideration of having legal experience.( either State party
from a judicial bench, practitioner or in academia) • Fourth, the Committee has jurisdiction to consider certain complaints
• Article 31 states that , the committee “may not include more than one made by a State party that another State party is not abiding by the
national of the same state”. obligations assumed under the Covenant.
• “consideration should be given to geographical distribution
of membership and to the representation of the different forms Examination of reports submitted by state parties
of civilization and of the principal legal systems”. • This obligation to submit reports to the committee is contained in
• The state parties nominate members and elect them by secret ballot to Article 40 of the Covenant.
4 year terms. • A State party’s initial report is due within one year of the entry into
• Elections for half of the Committee’s members are held at force of the Covenant for the country concerned.
two-yearly intervals at United Nations Headquarters, during • Subsequent reports, known as “periodic reports”, are now due at a
the annual session of the General Assembly. time individually specified by the Committee for each State party.
• Members may be reelected, if re-nominated, upon the expiry
of their terms. I What should the report include
• If a Committee member should vacate his or her position • States should submit a “core document” with the details basic
early, for example by reason of death or resignation, another information about a State, its demography and geography as well as
election may be held. its constitutional , legal and political structures and other general info.
• States are to submit shorter periodic reports that focus on the issues
Roles of Committee members raised by the Committee in its previous concluding observations, and
on significant developments since the previous report.
 • All reports should also include explanations of the measures • In this session, the examination begins by an opening presentation of
taken to address any decisions made against the State on the the report by the State party’s delegation, often including a response
merits of individual complaints lodged under the Optional to the List of Issues.
Protocol. • Committee members then put questions to the representatives, seeking
to clarify or deepen understanding of issues arising concerning the
Who submits the report implementation and enjoyment of Covenant rights in the State party.
• Generally, the ministry of foreign affairs takes the lead role in • After the conclusion of this dialogue, the Committee drafts detailed
submission of a report. written concluding observations on the report in question.
• Non-governmental organizations (NGOs) and other members of civil • In concluding observations, the Committee identifies, a limited
society number of issues of particular priority.
• known as shadow report, the Committee is often able to give • State party is asked to provide, no later than a year thereafter,
greater weight to information supplied in a report compiled by information on the measures it has taken to address those
a number of 17 members of civil society than to information particular issues.
supplied by one group alone, though this information can also • If States fail to submit the follow-up information, the Special
be useful. Rapporteur will meet with representatives in order to pursue the issue.
• If a State continues to be unresponsive to the Committee’s
Procedure of examining a state party report request, that fact is recorded in the Committee’s annual report
• The process of examining a report runs across two consecutive to the General Assembly.
Committee sessions. • The Committee decided in 2001 that a State’s record under the
• At the first session, the report is assigned to a group of Covenant could be examined at the Committee’s discretion in the
between four and six Committee members known as a absence of a report, and if necessary in the absence of a delegation
Country Report Task Force (CRTF). from a State party, which would be advised in advance of the
• the CRTF draws up a “List of Issues” to seek additional information proposed date of such an examination.
with respect to key questions.
• The List of Issues is sent to the State party well in advance - at least Consideration of individual complaints
one session ahead - of the session at which the report will be • Individuals who claim that their rights and freedoms under the
examined in the presence of representatives of the State party. Covenant have been violated may call the State in question to account
• At the beginning of the Committee’s session, the Committee hears in for its actions if that State is a party to the Covenant and to the
a private meeting representatives of specialized agencies and other Optional Protocol.
parts of the United Nations that wish to provide information on the • When a complaint is first submitted, the Committee may sometimes
State to be considered. request the State party concerned to take what are called “interim
• The Committee then proceeds to examine each report in a public measures” to avoid irreparable damage to the alleged victim while the
constructive dialogue with a delegation of the relevant State complaint is being considered.
party. • The complaint having been lodged, there are a number of
• This delegation typically comprises the State party’s admissibility criteria that must be satisfied before the Committee will
ambassador to the United Nations Office at Geneva and other consider the merits of an individual communication under the
members of diplomatic staff, as well as representatives from Optional Protocol.
government departments and agencies with expertise in • The Committee does not have independent fact-finding functions.
matters dealt with in the Covenant. • There is no strict rule regarding the allocation of the burden of
proof in Optional Protocol cases. The Committee will tend to
accept the facts as alleged by the victim if it receives no
 information from the relevant State, or if the State merely • Unlike the five other human rights treaty bodies, the Committee on
submits refutations in general terms. Economic, Social and Cultural Rights was not established by its
• The Committee will tend to accept the State’s specific denials of corresponding instrument. Rather, the Economic and Social Council
certain facts unless the victim can provide documentary proof (ECOSOC) created the Committee,
supporting his or her own assertions. However, the Committee has on • The Committee was established in 1985,
occasion recognized that the nature of a complaint may make it • The Committee is comprised of 18 members who are experts with
impossible for the victim to submit further relevant evidence, and/or recognized competence in the field of human rights.
that certain information is occasionally exclusively in the hands of the • Members of the Committee are independent and serve in their
State party. personal capacity, not as representatives of Governments.
• In such cases, the burden placed upon the State to refute the alleged • Members of the Committee are elected by ECOSOC for four year
victim’s allegations will be higher. At the very least, a State is terms, and are eligible for reelection if renominated.
required to investigate a complainant’s allegations in good faith. • The Committee is thus a subsidiary organ of ECOSOC and
derives its formal authority from that body.
Assessment of inter state complaints • Elections take place in a secret ballot from a list of nominees
• A State party may submit a communication to the Committee proposed by States parties to the Covenant.
alleging that another State party is not fulfilling its obligations under • The principles of equitable geographical distribution and the
the Covenant. representation of different social and legal systems guide the selection
• Such a complaint, which is provided for in article 41 of the Covenant, process
may, however, only be made in respect of two States parties that
have declared that they recognize the competence of the Functions of the committee
Committee to receive and consider such inter-State complaints. • The primary function of the Committee is to monitor the
• The first step would be for the State lodging the complaint to bring implementation of the Covenant by States parties.
the matter to the attention of the State that is alleged not to be • Under articles 16 and 17 of the Covenant, States parties undertake
fulfilling its obligations. to submit periodic reports to the Committee-within two years of the
• Within three months, the latter should reply, in the form of a entry into force of the Covenant for a particular State party, and
written explanation or clarification. thereafter once every five years-outlining the legislative, judicial,
• If, within six months, the matter is not settled to the policy and other measures which they have taken to ensure the
satisfaction of both parties, either may refer it to the enjoyment of the rights contained in the Covenant.
Committee, which may deal with it once satisfied that, within • States parties are also requested to provide detailed data on the
a reasonable period of time, all domestic remedies have been degree to which the rights are implemented and areas where
tried, without success. particular difficulties have been faced in this respect.
• The Committee may then take the matter up and propose its good
offices in the search for a friendly solution. If there is still no Submission of reports and presentation of reports
agreement, the Committee may appoint a five-person conciliation • When States parties submit their reports, a standard procedure of
commission, with the agreement of the States parties directly consideration is followed by the Committee.
concerned, but not including their nationals among its members, with • Once received, processed and translated by the Secretariat, States
instructions to complete its business and submit a report to the parties' reports are initially reviewed by the Committee's five-person
Chairperson of the Committee and, through that person, to the parties pre-sessional working group
in dispute, within 12 months. • Develops written lists of questions based on disparities found in the
reports which are submitted to the States parties concerned.
Committee on economic, social and cultural rights
 • The States parties are then required to reply in writing to these • shortest ocean link between the Mediterranean and the
questions prior to their appearance before the Committee. Indian ocean.
• Representatives of reporting States are strongly encouraged to be • eased commerce for trading nations
present at meetings when the Committee considers their reports. Such • helped European colonial powers to gain and govern
delegations are virtually always present during this process, which is their colonies
generally carried out over a two-day period. • short sea route to the oilfields of the Persian gulf.
• Upon completion by the Committee of its analysis of reports and the • Britain and France, together with Israel launched attacks on Egypt.
appearance by States parties, the Committee concludes its • GA called for a halt to hostility and withdrawal of forces. French and
consideration of States parties' reports by issuing "concluding British agreed on the condition of the UN forces be stationed in the
observations", which constitute the decision of the Committee disputed area. (peacekeeping venture was kept)
regarding the status of the Covenant in a given State party.
• While the Committee's concluding observations, in particular PROMOTING AND PROTECTING HUMAN RIGHTS
suggestions and recommendations, may not carry legally binding • Food Aid: Every year, the UN feeds more than104 million people in
status, they are indicative of the opinion of the only expert body 80 countries. They feed people in war zones, natural disasters, health
entrusted with and capable of making such pronouncements. emergencies and poor countries.
• Aid to Refugee: UNHCR has helped more than 17 million homeless
General Comments refugees. It had assisted refugees who had fled from conflict in Syria,
• The Committee decided in 1988 to begin preparing "general Sudan and the Democratic Republic of Congo.
comments" on the rights and provisions contained in the Covenant • UNICEF: with the help of UNICEF, the number of deaths of children
with a view to assisting States parties in fulfilling their reporting under the age of 5 has declined from nearly 12 million in 1990 to 6.9
obligations and to provide greater interpretative clarity as to the million in 2011.
intent, meaning and content of the Covenant. • The joint united nations programmed on HIV/AIDS (UNAIDS)
• The Committee further views the adoption of general comments as a provide universal access to HIV prevention and treatment services
means of promoting the implementation of the Covenant, by drawing
the attention of States parties to insufficiencies disclosed by a large ENVIRONMENTAL ISSUES TREATY
number of States parties' reports, and by inducing renewed attention • United nations framework convention on climate change (UNFCCC),
to particular provisions of the Covenant on the part of States parties, international environmental treaty.
United Nations agencies and others with a view to achieving • Objective
progressively the full realization of the rights established under the • “to stabilize greenhouse gas concentration in the atmosphere
Covenant. at a level that would prevent dangerous and anthropogenic
interference with the climate system”.
Successes and Failures of UN • Peace and Peacekeeping
• Since 1948 the UN has deployed more than 68 peacekeeping
Success of UN missions across the world.
• Suez crisis (1956) • The UN has initiated peace talks and negotiated more than
• shipping canal through the 100 miles of desert between Africa 172 successful regional peaceful settlements in the world since
and Asia. its inception.
• In 1956, Egyptian leader “Gamal Abdel Nasser” seized • Nuclear Non-Proliferation
control of the Suez canal. • The Nuclear Non-Proliferation Treaty and the Partial Test
• Importance Ban Treaty and such negotiations were signed,
 • UN inspectors conduct regular inspections of nuclear reactors • They failed to stop the majority Hutus going on a
in about 90 countries of the world through IAEA murderous rampage killing almost a million member of
( International Atomic Energy Agency) to ensure that nuclear the Tutsi minority.
material is not used for armament. • The Darfur Crisis in the Sudanese Civil War (2003-2010)
• Healthcare • UN’s failure to intervene and save the lives of 300,000
• The UN agency WHO was instrumental in the eradication of civilians from Sudan who had faced systematic murder at the
Smallpox worldwide. hands of a militant group called the Janjaweed, which was
• Currently, the agency’s priorities include Malaria, AIDS, funded by the Sudanese government.
mother and child health, food and nutrition and provision of • Sri Lankan Civil War 2009
essential inoculations. • The UN admitted its failure in this case to confront the
• Culture, Development and Education government over the killing of separatist group members and
• The major cultural development agency of the UN, the of interference in the provision of humanitarian aid to
UNESCO has been of the organization's great successes. hundreds of thousands of Tamils, who were murdered by
• In 2010, the UN passed a resolution decreeing that culture government troops.
shall be integrated into all its developmental activities. • Rape and child sex abuse in the Congo
• In 2013, the UN started to formulate its post 2015 • UN peacekeepers were accused of paying women and young
development agenda. girls they were supposed to be protecting for sex, and
• Prosecutions of Charles Taylor and Slobodan Milosevic sometimes raping them, in the Democratic Republic of Congo
• The Liberian and Serbian leaders were both prosecuted for in early 2005.
war crimes by tribunals set up by the United Nations, with • Subsequent reports found there had been similar allegations in
Taylor sentenced to 50 years’ imprisonment. countries ranging from Cambodia to Bosnia to Haiti.
• Milosevic died of a heart attack before a verdict was reached, • Spreading cholera in Haiti
but the precedent that dictators can face impartial, rather than • Genome testing showed that the most likely source of the
victors’, justice has been established. world’s worst recent outbreak of cholera, which swept through
Haiti after the 2010 earthquake, was a Nepali peacekeeping
Failure to prevent Armed Conflicts force.
• Cambodia, the Khmer Rouge 1975-79 • Although more 700,000 were infected and 8,000 died, the UN
• An extremist communist administration eliminated all claimed immunity from a subsequent law suit.
opposition between 1975 and 1979 and killed over 2.5 million • Srebrenica
Cambodian nationals. • The massacre of more than 8,000 Bosnian Muslim men at the
• When Vietnam intervened to free the country and to establish hands of Serb forces in Srebrenica in 1995 was an even more
self-administration of Cambodia, the UN condemned the specific failure for the UN than Rwanda - in that the town had
intervention. been declared a “safe zone” and given its own Dutch
• Vietnam had till recently been at war with the US. protection force precisely to stop this happening.
• The Rwandan Genocide in 1994 • The sight of the Dutch commander drinking a toast with
• Nearly a million Rwandans were killed- about 20 percent of General Ratko Mladic, the Serb commander, further damaged
the entire population. the UN’s reputation.
• Though peacekeeping troops were present, they were not • Iraq oil for food programme
authorized to use force and thus were largely ineffective. • This was the programme whereby Iraq could gain relief from
international sanctions by selling oil through the UN, which
 would supervise the delivery of food and medicine with the regional action provided that such arrangements or agencies
resulting cash. and their activities are consistent with the purposes and
• However, large sums of money were channeled into private principles of the United Nations”.
pockets through the programme – with some even being used * UN GA Resolution 37/171 and 37/172 accepted the regional
to buy influence at the UN itself. It is regarded as the worst arrangements for the promotion and protection of human rights.
financial scandal in UN history.
• Veto Power: disagreement of one single nation of the 5 permanent Council of Europe
members can make the UN powerless. * Established by the Treaty of London [Link] by 10 states to
• July 19, 2012 promote democracy, the rule of law and greater unity among the
• The last veto cast, when Russia and China vetoed a nations of Western Europe.
resolution that intended to impose economic sanctions * It adopted the ECHR in 1950.
against Syria. * Until 1990 confined to Western Europe; today 47 member States.
* Conditions for admission: a genuine democracy that respects the rule
How has UN changed international relations? of law and human rights; a party to the convention.
• 1. Established a peace treaty in Yugoslavia. If the UN didn't exist the * Seat in Strasburg, France
genocide would have continued. 2. Has a security council that is made * Main Institutions
up of almost every type of political standing in which all have to * Council of Ministers: (Foreign ministers from each member
agree if war is allowed to happen and is just. states)- main decision making body
• 3. Established neutral zones in many Middle Eastern conflicts to make * Parliamentary Assembly: MPs from the parliaments of
both sides take a breather and try to talk. each member state-deliberative body-by national assemblies
• 4. It allows for open communication between all the nations in the * Congress of Local and Regional Authorities of Europe:
world. promoting local and regional democracy, social inclusion, etc.
• 5. Send food aid to many poor locations. * The commissioner for HRs- an independent institution,
promotes respect for HRs in member states.
Unit 4: Regional Protection Mechanism
The European HRS System
Advantages of Regional HR Mechanisms * The European Convention on HRs is an international treaty to protect
* Possibility to bring your claim at a supranational level. human rights and fundamental freedoms in Europe.
* Signed – Rome, 4 November 1950
Disadvantages
* Into force – September 1953
• Accessibility
* First legal treaty of Council of Europe
• Political Interference
* Only members of Council of Europe can be parties
• Efficiency in implementation
* List of civil rights and political rights
• including challenge of relationship with domestic system.
* First legal treaty with enforcement mechanism
* Significance of the ECHR
* UN Charter Chapter VII, provides for the regional arrangements for
* Post WWII, the allied powers were conscious of delivering
international peace and security.
human rights agenda through which atrocities committed
* Art 52 states that “ Nothing in the present charter precludes
during WWII could be avoided in future.
the existence of regional arrangements or agencies for
* highly based on UDHR
dealing with such matters relating to maintenance of
* The convention was the response to the growth of communism
international peace and security as are appropriate for
in central and eastern Europe and designed to protect the
 member states of Council of Europe from communist the death penalty torture or inhuman or degrading treatment or
subversion. punishment slavery and forced labour, arbitrary and unlawful
* Part II of the Convention set up 3 institutions for the application and detention discrimination in the enjoyment of the rights and freedoms
enforcement of ECHR. secured by the Convention, deportation of a state’s own nationals or
* The European Commission on HRS (set up in 1954) denying them entry and the collective deportation of foreigners.
* The European Court of HRs (1959) * Art. 8- Right to respect for private and family rights
* The Committee of minister of the council of Europe “Everyone has the right to respect for his private and family life, his
* The convention is more modest than UDHR as in it has incorporated home and his correspondence. This right embodies the right to a
the rights which were believed to be effectively enforceable: name, the right to change one’s civil status and to acquire a new
* right to life, prohibition of torture and of inhuman or identity, and protection against telephone tapping, collection of
degrading treatment or punishment, prohibition of slavery and private information by a State’s security services and publications
forced labor, right to liberty and security, right to a fair trial, infringing privacy. This right also enables members of a national
no punishment without law, right to respect for private and minority to have a traditional lifestyle.”
family life, freedom of thought, conscience and religion, * Art.9- Freedom of thoughts, conscience and religion
freedom of expression, freedom of assembly and association, Freedom of thoughts, conscience and religion “Everyone has the right
right to marry – and the right to have these rights secured to freedom of thought, conscience and religion. Everyone is entitled to
effectively and without discrimination. change his or her religion or conviction and is free to express that
religion whether individually or collectively, publicly or privately.
General Provisions of the Convention All recognized beliefs are protected by this right. One of the present-day
* Convention consists of three parts as amended by Protocol 11. issues of respect for freedom of thought, conscience and religion is
* The main rights and freedoms are contained in Section I, embodied, at both international and national level, in the upsurge of religious
which consists of Articles 2 to 18. intolerance.
* Section II (Articles 19 to 51) sets up the Court and its rules of The questions concerning the status of sects are also linked with the exercise
operation. of this freedom.
* Section III contains various concluding provisions. * Art.10- Freedom of Expression
* Art. 1: Binds the signatory parties to secure the rights under the other Everyone has the right to freedom of expression and to receive and
Articles of the Convention "within their jurisdiction". impart information.
* also extends to foreign territories, such as occupied land in This right also covers the freedom of the press. Freedom of expression is one
which the State exercises effective control. of the essential foundations of a democratic society.
* Not only to its own territory. The media require particular protection because they play a key role in
* The Convention protects the right to: defending freedom of expression.
* life, freedom and security Article 10 protects, among others, the right to criticize, to make assumptions
* respect for private and family life or value judgments and the right to have opinions.”
* freedom of expression * Art.14- Prohibition of Discrimination
* freedom of thought, conscience and religion “Everyone must enjoy the rights enshrined in the European
* vote in and stand for election Convention on Human Rights regardless of skin color, sex, language,
* a fair trial in civil and criminal matters political or religious beliefs or origins. The prohibition of
* property and peaceful enjoyment of possessions. discrimination is closely linked to the principle of equality which
* The Convention prohibits: holds that all people are born and remain free and equal in dignity and
rights.”
Protocols * Judges shall sit in the Court in their individual capacity
* The right to property; the right to education; the obligation to hold * Chambers (art. 24-31)
free elections; freedom from imprisonment for civil debts; freedom of * The number of judges in proceedings may vary on the
movement and residence; freedom from exile; no collective expulsion characteristics of the discussed cases, in particular on their
of aliens; abolition of the death penalty; the right to compensation for importance for the application and the interpretation of the
a miscarriage of justice; immunity from double prosecution for the Convention. Compositions are:
same offence; equal rights and responsibility of spouses * single judge
* three judges committees
European Commission of Human Rights * 7 judges chamber
* It was a special tribunal. * Grand chamber (17 judges)
* Individuals initially did not have direct access to ECHR, they had to * Jurisdiction and Access (art 32-35)
apply to the commission. * The committee of Ministers may request the Court to give an
* If found the case admissible, then the commission would launch a advisory opinion on any legal question concerning the
case in the court on behalf of the individual. interpretation of the Convention (art. 47)
* Protocol 11 of European Convention of HRs abolished the * Contentious Jurisdiction ( Art 33 and 34) : inter-state and
commission and enlarged the jurisdiction of court to take the cases individual cases
directly to it in 1998. * Ratione personae
* the court was given compulsory jurisdiction. * Any State party to the Convention against any
* previously states could ratify the convention without other party alleged to have breached the
accepting the jurisdiction of the court of HRs. provisions of the Convention (interstate
* the protocol also abolished the judicial functions of the complaints)
committee of ministers. * Any person (also legal person), NGOs, group
of individuals who claim to be victims of
European Court of Human Rights human rights violations by a party to the
* The ECtHR is a permanent Court entrusted with monitoring the Convention. Complaint must be submitted by
compliance of member States of the Council of Europe with their the real victim
obligations under the ECHR. * Ratione materiae
* It was established in 1959 and its competencies are set in Section II of * only alleged breaches by a State party of the
the European Convention on Human Rights (arts. 19 – 51). provisions of the Convention and Protocols.
* The Court deals with complaints by the states and individuals * Admissibility Criteria
concerning the protection of human rights. * The Court may only deal with the matter after
* Upon receipt of an application, the Court determines its admissibility all domestic remedies have been exhausted and
and, if admissible, attempts to secure a friendly settlement of the within a period of six months from the date on
dispute. which the final decision was taken.
* Composition ( Art.20-23) * Complaint shall not be anonymous.
* The number judges sitting in the Court has to be equal to the * It is not allowed to submit complaints to the
number of states parties to the Convention. ECtHR and to another international
* Judges shall be people of high moral character and must either tribunal/court in the meantime.
possess the qualifications required for the appointment to a * The complaint shall not be manifestly ill-
high judicial domestic office. founded
* Judges are elected by the Parliamentary Assembly
* Merits
* Freedom of method of implementation.
* The Court should not say to a State what to do to improve the
human rights situation; the Court can only determine whether
a violation has occurred.
* Just satisfaction → legal costs, material and immaterial
damage.
* Financial compensation of the legal costs, for the suffered
damage which can be material or immaterial.
* The Court usually assumes that the finding of a violation
should be enough on itself: small amounts and determination
of violation often considered sufficient satisfaction.
* Legal Aid
* If an applicant does not have sufficient means to meet the
costs, the president of a Chamber may grant free legal aid
effective from the moment that the respondent Party submits
its written observations on the admissibility of the application,
or when the time limit for their submission has expired
* A form of declaration of means certified by the appropriate
domestic authority

Committee of Ministers
* The execution of the decisions is supervised by the Committee of
Ministers, which will verify how the State have complied with the
judgment.
* State have to refer to the Committee the measures taken to comply
with the judgment.
* Supervision: monitoring legislative or administrative reforms
instituted by States in response to a finding of a violation or, in the
case of jugments for “just satisfaction”, ensuring that the State has
made its payment to the individual
* Has no power to intervene directly in the supervision and execution
of judgments by the offending State
* Some of the most serious sanctions – enshrined in the Statute of the
Council of Europe
* Sanctions
 * Article 3 of the Statute provides that respect for human rights * Competence of CPT
is a fundamental principle underlying participation in the * access to all place of detention, and all detainees
Council * access to all relevant information
* Article 8 empowers the Committee of Ministers to suspend or * unannounced visits and private interviews
even to expel from the Council of Europe any member State * Publication of reports on country visits and standard
guilty of serious human rights violations setting

European Social Charter Important Cases decided by ECtHR

* A multilateral treaty , came into force in 1965. * Lawless v. Ireland
* Adopted by Council of Europe with a view to develop and protect * The first international court case decision that involved the
social and economic rights and to achieve greater unity between its interpretation of international human rights law and the first
members for the purpose of safe guarding and realizing the ideals and one filed against a country.
principles which are their common heritage. * First case decided by the court in 1960
* The rights are not binding on the contracting parties. * Lawless an Irish citizen, a member of IRA member, charged
* These rights are the aim to be pursued by all appropriate means both of terrorist offences was detained without trial by Irish
national and international in character and the attainment of Government under emergency powers.
conditions in which they may be effectively realized…these are * also denied habeas corpus by the supreme court.
therefore target duties. * Detained under the special powers of indefinite detention
* Art. 30 provides for the derogation from these rights in time of war or without trial under the Offences against the State
other public emergency threatening the life of nation… (Amendment) Act 1940.
* Economic, social and cultural rights * The offenses against the State Act 1940 was
* Monitoring by European Committee of Social Rights introduced by the Irish Government as response to a
* 1996 new revised version sabotage campaign initiated by IRA in Jan 1939.
* Into force 1998 * The court unanimously held that the detention of lawless
* Monitoring mechanism without trial fell within the terms of derogation permitted by
* Report by Ss - review of report by Committee - Conclusion Art 15 of the convention and therefore was no breach.
(including violation) - Committee of Ministers asks the S to * In the words of the Court:
rectify (either by changing law or practice or both) * Whereas the existence at the time of a public emergency
* Additional Protocol to the Social Charter 1998 threatening the life of a nation, was reasonably deduced by the
* Workers groups and NGOs could lodge collective complaints Irish Government from a combination of several fact, namely:
* In the first place, the existence in the territory of the
European Convention for the Prevention of Torture and Inhuman or Republic of Ireland of a secret army engaged in
Degrading Treatment or Punishment unconstitutional activities and using violence to attain
* Adopted by Council of Europe in 1987 its purpose;
* Art. 2 provides that there shall be a European committee for the * Secondly, the fact that this army was also operating
prevention of torture and inhuman or degrading treatment or outside the territory of the state, thus seriously
punishment. jeopardizing the relations of the republic of Ireland
* The committee shall visit and examine the treatment of persons with its neighbor,
deprived of their liberty with a view to strengthening, if necessary, the * Thirdly, the steady and alarming increasing in terrorist
protection of such persons from torture and from inhuman or activities from autumn of 1956 and throughout the
degrading treatment or punishment. first half of 1957.
 * The case was dismissed because emergency * A signatory State must now consider consequences of
legislation was used. returning an individual to a third country where he might
* Soering v. UK(1989) face treatment that breaches the Convention. This is
* A landmark judgment of the European Court of Human notwithstanding that the ill-treatment may be beyond its
Rights (ECtHR) which established that extradition of a control, or even that general assurances have been provided
young German national to the United States to face that no ill-treatment will take place.
charges of capital murder violated Article 3 of the * By finding a breach of the Convention on the territory of a
European Convention on Human Rights (ECHR) non-signatory State, the Court considerably expanded the
guaranteeing the right against inhuman and degrading obligation to its signatory States. Not only are signatories
treatment. responsible for consequences of extradition suffered
* Soering, a German National was charged of having committed outside their jurisdiction, but this jurisdiction implicitly
a murder in the State of Virginia, where the sentence of this extends to actions in non-signatory States.
crime was death penalty. After committing the murder he fled * The Court's approach to the death penalty, itself permitted by
to UK and US sought extradition of Soering from UK. the text of the original Convention, may reduce its use by non-
* It was claimed by Soering that his extradition would be a signatory States that seek to extradite suspects from signatory
breach of Art. 3. under ECHR as it would amount to exposure States. The decision makes it difficult, if not impossible, for
to the “death row phenomenon” or subject to “…inhuman or the US and other capital punishment countries to extradite
degrading treatment or punishment.” suspects on capital charges from signatory States, without
* The European Commission of Human Rights accepted that the giving assurances that the death penalty will not be
extradition of a person to a country "where it is certain or where there executed.
is a serious risk that the person will be subjected to torture or inhuman
treatment the deportation or extradition would, in itself, under such Inter- American System
circumstances constitute inhuman treatment.  A regional mechanism, responsible for monitoring, promoting and
* The ECtHR highlighted four factors that would constitute the protecting human rights in the 35 independent countries of the
violation of Article 3 of ECHR. Americas, that are members of the OAS.
* The length of detention prior to execution  Two sub systems:
* Conditions on death row • One sub system having been evolved from the adoption of the
* Soering's age and mental condition Charter of the OAS
* The possibility of his extradition to Germany • Other sub system created by the entry into force of the
* The court held that having regard to the very long period of time spent American Convention of Human Rights
on death row in such extreme conditions, with the ever present and  First sub system
mounting anguish of awaiting execution of death penalty, and to the • Encompasses those OAS member states that remain subject to
personal circumstances of the applicant, especially his age and mental the law of the American Declaration of the Rights and Duties
state at the time of the offence, the applicant’s extradition to the US of Man vis-à-vis the OAS Charter, as well as to the
would expose him to a real risk of treatment going beyond the recommendations issued by the Inter-American Commission
threshold set by Art.3. on Human Rights under the American Declaration.
* Significance of the Case:  Second Sub Set:
* It enlarges the scope of a state’s responsibility for breaches of • Comprises of OAS member states that are parties to the
the Convention. American Convention on Human Rights and have also
accepted the Inter-American Court’s contentious jurisdiction.
 • These states are subject to the law of the binding judgments • American Declaration on the
issued by the Inter-American Court in cases referred to it by Rights and Duties of Man
the Inter-American Commission and, concurrently, to the law references UDHR (preamble)
of the Inter-American Commission’s resolutions and
recommendations. American Convention on Human
• States are committed to honor both the American Declaration Rights And
and the American Convention. Other human rights treaties
 Charter (applies to all OAS states)
• 1948 OAS Charter
• 1948 American Declaration of the Rights and Duties of Man
• 1959 Inter-American Commission on Human Rights American Declaration
 Convention (applies to States Parties) American Convention
on the Rights and
• 1969/1978 American Convention on Human Rights on Human Rights
Duties of Man
• Convention organs
• Inter-American Commission on Human Rights
• Inter-American Court of Human Rights All OAS member states are
bound by the Charter (a OAS member states choose
treaty). to ratify the Convention

OAS Declaratio Inter- Treaty: Ratifying States

n on the American
General Declaration is not a treaty, accept jurisdiction of
Rights and Court of
Assembly but has been ruled a source Commission (Art 45) & Court
Duties of Human of international obligations (Art. 62)
Man Rights
Inter- for OAS States & defines
OAS American human rights referred to in
charter Commissio the Charter.
Inter-
n on Petitions are made to the
American
Human Commission.
Commissio
Rights Petitions about violations
n on Commission may refer the
are made to the
Human case to the Court.
Commission.
Rights Court decision is binding.
Commission’s decisions
are nonbinding.
Relationship between UN and OAS
OAS Charter-Principles Art.1
UN OAS
 To promote Representative Democracy
 Economic, Social, and Cultural Development
• UN Chapter VII • OAS Charter Article 1 states  Eradicate Poverty
allows for regional that the OAS is a “regional  Education
arrangements. arrangement” under Chapter  Peace & Equality, Non-Discrimination (race. Nationality, creed or
VIII of the UN Charter sex)
 Pacific Settlement of Disputes, Justice, Freedom
 Respect for Non-Intervention Inter-american commission on human rights
 Defense of Territorial Integrity, Sovereignty and Independence  Established by an OAS resolution in 1959, the IACHR began
 Limit conventional weapons operating in 1960, observing human rights conditions via on-site
visits.
Human rights in the OAS charter  Established as a Charter organ in 1970
 Article 3 (j): “the American States proclaim the fundamental rights of • Charter, Chapter XV, Article 106 (as amended by the Protocol
the individual without distinction as to race, nationality, creed, or of Buenos Aires 1970)
sex.” • Headquarters in Washington DC
 Article 17: “each State has the right to develop its cultural, political • Both a charter institution and a convention institution.
and economic life” and that in such development “the State shall  In 1965 was authorized to begin processing specific complaints of
respect the rights of the individual and the principles of universal human rights violations.
morality.”  The Commission is composed of seven members who are elected by
 No elaboration of these rights in the Charter. the OAS Member States and who serve part-time and in their
 No institution to promote observance created by the original Charter. individual capacities for four-year terms that may be renewed once.
 The commissioners are supported by the staff of the Executive
American Declaration of the rights and duties of Man Secretariat.
 Primary Soft Law.  Functions of the Commission
• 1948 OAS resolution simultaneous with adoption of Charter • country visits and receiving complaints
• Predated the 1948 UDHR by a few months • holds thematic hearings on specific topical areas of concern
• Extensive list of human rights • publishes studies and reports,
▫ Civil and political • requests the adoption of precautionary measures to protect
▫ Economic and social (work, health, education, benefits of individuals at risk,
culture, fair remuneration, leisure, social security) • and has established several thematic rapporteur-ships to more
 In order to delineate the basic rights that were to be protected, the closely monitor certain human rights themes or the rights of
OAS member states adopted the American Declaration of the Rights specific communities in the hemisphere.
and Duties of Man at the Bogota Conference in the form of a
resolution. Who can complain to the commission?
 The American Declaration is the first international (regional) human • Individual petitions against members of the OAS about violations
rights instrument adopted more than six months before UDHR. of rights in the Declaration.
 Inter-American Court and Commission have held that it is now a • Article 20. re OAS members that are not parties to the
source of legal obligation for OAS member states (USA disagrees) Convention:
 Four major contributions to the development of the Inter-American  Commission to pay particular attention to observance of
system of human rights by this Declaration the human rights in Articles I,II, III, IV, VIII, XV, XVI of
• the conception of human rights as inherent to the human the American Declaration of the Rights and Duties of
person Man;
• the integral understanding of human rights (encompassing  examine communications submitted to it, examine and
civil, political, economic, social and cultural rights) seek other available information, and make
• the normative basis of protection vis-à-vis OAS member states recommendations to the state towards more effective
not parties to the (subsequent) American Convention on observance of fundamental human rights; and,
Human Rights  Verify that domestic remedies have been exhausted before
• the correlation between rights and duties examining communications.
State responsibility and jurisdiction  Article 23 (Right to Participate in Government), “or of the
 Violations via direct act or failure to prevent an act by a Non-State judicial guarantees essential for the protection of such rights.”
actor  Some of the features of the Convention:
 Failure to investigate and sanction those responsible • First, the American Convention has the most advanced
 Jurisdiction is not limited to the physical territory of the state, it protection of free expression of any of the other international
includes all areas over which it has effective control. instruments;
• 2002 Letter from IACHR president to US Secretary of State • Article 13 of the Convention specifically prohibits
on Guantanamo Bay prior censorship, it specifies that freedom of thought
and expression includes the freedom to seek, receive
Inter-American convention on human rights and impart information and ideas, and
 The American Convention on Human Rights was finally adopted at • its Article 14 (1) incorporates a highly controversial
the intergovernmental conference convened by the OAS in San Jose, provision among journalists and the media, i.e. the
Costa Rica in 1969. right of reply.
 Protects the CPR rights only.  Second, building upon the core obligations imposed on state parties
 Includes a general provisions that encourages state parties to adopt to the American Convention, the Inter-American Commission and the
progressive measures toward the full realization of the rights implicit Inter-American Court held that transitional governments in the region
in the economic, social, educational, scientific and cultural standards had an affirmative duty to investigate grave breaches of human rights
set forth in the OAS Charter. law and to prosecute whoever might be responsible.
 The Convention entered into force in 1978.  This double imposition led to two other innovations, the
establishment of the right to truth and the illegality of amnesty
Derogable and Non derogable rights laws, respectively.
 Article 27 “Suspension of Guarantees”.
 States may derogate from its obligations in times of war, Types of rights
public danger or other emergency “that threatens the  Civil and Political Rights (Arts. 3-25)
independence or security of a State Party.” • Right to life “protected, in general, from the moment of
 Only to extent and for period of time strictly necessary conception.” (article 4)
 Must not be inconsistent with other IL obligations; no • humane treatment, no slavery, fair trial, freedom from ex post
discrimination on ground of race, color, sex, language, facto laws, compensation for miscarriage of justice, privacy,
religion, social origin. freedom of conscience/religion, thought/expression,
 No derogation of: assembly/association, right of men/women to marry (consent),
 Article 3 (Right to Juridical Personality), right to name, rights of child (article 19), right to nationality,
 Article 4 (Right to Life), property (Art 21), movement/residence, participation…
 Article 5 (Right to Humane Treatment),  Economic, Social and Cultural Rights (Art. 26)
 Article 6 (Freedom from Slavery), • Additional Protocol to the ACHR in the Area of Economic,
 Article 9 (Freedom from Ex Post Facto Laws), Social and Cultural Rights (Protocol of San Salvador)
 Article 12 (Freedom of Conscience and Religion),
 Article 17 (Rights of the Family), Convention Complaint process
 Article 18 (Right to a Name),  Who can complain under the Convention?
 Article 19 (Rights of the Child), • A person, a group of persons, or an NGO may present a
 Article 20 (Right to Nationality), petition to the Commission
 The Commission decides admissibility
 State party against which the petition has been brought must have Art.64 Advisory jurisdiction
accepted Commission’s jurisdiction (Article 45)  OAS Member States and OAS Organs may request an advisory
 Domestic remedies must have been exhausted or unavailable opinion regarding the interpretation of the Convention or other
treaties.
Inter-American court of human rights  Authoritative, but non-binding
 Seat: San José, Costa Rica Operating Since: 1979
 the judicial organ of the Inter-American human rights system. The special mechanisms of inter-american commission of HR
 The Court’s mandate is more limited than that of the Commission  It began establishing rapporteurships in 1990.
because the Court may only decide cases brought against the OAS  Rapporteurships are special mechanisms dedicated toward protecting
Member States that have specifically accepted the Court’s contentious and promoting the rights of vulnerable groups of people who have
jurisdiction and those cases must first be processed by the historically faced marginalization.
Commission.  The establishment of rapporteurships allowed the Commission to
 Only States parties and the Commission may refer contentious cases oversee human rights conditions on topics of particular concern.
to the Court.  As of July 2018, there are eight thematic rapporteurships, and two
 The seven judges of the Court are independent, but are chosen by special rapporteurships.
States through the OAS General Assembly.  All of these special mechanisms gather and disseminate information
 Judges are elected for a six-year term, once renewable. on how different groups of people or different rights are being
 Currently, 23 OAS Member States are States parties to the American protected throughout the Organization of American States (OAS)
Convention on Human Rights, and 20 have opted to accept the Member States.
Court’s contentious jurisdiction in accordance with Article 62 of the  The special mechanisms use this information to develop reports or
American Convention. recommendations to Member States to help them better protect and
 The 20 States over which the Court may exercise its contentious promote the human rights of their people, and to guide the Inter-
jurisdiction are: Argentina, Barbados, Bolivia, Brazil, Chile, American Commission on Human Rights in its decisions.
Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador,  Thematic rapporteurships are generally overseen by one of the
Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Commission’s seven Commissioners, who undertake their duties on a
Peru, Suriname, and Uruguay. part-time basis. The Commission itself decides which members will
 The Court began operating in 1979, and soon issued several advisory be responsible for which thematic rapporteurships.
opinions, but did not begin exercising its contentious jurisdiction until  The Commission also designates country rapporteurs from among the
1986. seven Commissioners. Each Member State is assigned a country
rapporteur, who is responsible for carrying out activities assigned by
Art 62 Contentious jurisdiction the Commission within that State.
 Victims may participate in proceedings  Thematic rapporteurs often collaborate with the country rapporteurs
 Issues legally binding decisions (including reparations) on state in conducting country visits within the Member States.
responsibility  In contrast, the special rapporteurs – on freedom of expression and on
 Issues provisional measure orders (threat to life and physical integrity economic, social, cultural, and environmental rights – are not
of individuals and communities, protect prisoners and children in members of the Commission.
detention centres)  They are independent experts chosen by the Commission, and who
 Publishes compliance with judgment reports serve on a full-time basis for a period of three years, which may be
 Impunity: Problems with delays in payment of reparation, faulty renewed once.
implementation of orders to investigate, prosecute and punish the  The rapporteurships are responsible for reporting their activities to
individuals responsible the Commission.
 In turn, the Commission is tasked with presenting Annual Reports to  it was thus established to overcome the weaknesses of the
the OAS General Assembly. global system.
 Functions of rapporteur ship  Also most of the African states abandoned their belief in the
• advise the Commission in its processing of individual principle of non intervention which was prevalent initially in
petitions, cases, and requests for precautionary and provisional the region.
measures related to their mandate;  Following the end of Cold war , African states started losing
• undertake country visits to investigate human rights their allies and were the target for less desirable human rights
conditions; violations, feeling abandoned the African states started
• conduct thematic reports and studies; forming regional and sub regional coalition to help them
• develop recommendations to Member States; integrate continentally.
• organize seminars, workshops, and specialized meetings;  The prima facie behind establishment of OAU primarily not
• raise awareness of human rights issues; the protection and promotion of human rights in the region…
• receive information from individuals and civil society;  rather was for a solid foundation for peaceful and
• provide the Commission with annual reports on their work; positive cooperation among states…
and,  OAU played significant role in ending colonialism
• contribute to the development of international human rights and dismantling the apartheid regime in SA
law.  OAU was accused of having played a passive role and the
principle of non-intervention held by it was one of the reasons
INTER AMERICAN INSTRUMENTs for its inability to further human rights in Africa.
 American Declaration of the Rights and Duties of Man  Eg:inability in ending the conflict in democratic
 American Convention on Human Rights republic of congo
 Additional Protocol to the American Convention on Human Rights in  Failure to end Rwandan Genocide
the Area of Economic, Social and Cultural Rights “Protocol of San  Inability to stop civil war in Liberia
Salvador”  Failure to end the crisis in Burundi
 Protocol to the American Convention on Human Rights to Abolish  The youngest of the three judicial or quasi-judicial regional human
the Death Penalty rights systems.
 Inter-American Convention to Prevent and Punish Torture  Created under the auspices of the African Union.
 Inter-American Convention on Forced Disappearance of Persons  The AU was established on 26 May 2001 in Addis Ababa and
 Inter-American Convention on the Prevention, Punishment and launched on 9 July 2002 in South Africa, with the aim of
Eradication of Violence Against Women “Convention of Belem do replacing the Organisation of African Unity (OAU)
Para”  AU has a wider and more active mandate for the promotion of
 Inter-American Convention on the Elimination of All Forms of human rights in Africa in terms of norms, rules and
Discrimination Against Persons with Disabilities enforcement mechanisms and it got momentum with the wave
of independence that took over the continent in 1960s
African System  Aim of AU
 The rationale behind establishment of African System of Human  Peace, security, and stability on the continent
Rights  Democratic principles and institutions, popular participation
 they were largely under represented in drafting of UDHR. and good governance
 many African states at this time were still being colonized by  Promoting and protecting human peoples' rights as per the
western states and were not chosen to represent. African Charter on Human and Peoples' Rights (1981) and
other instruments
  The most important decisions of AU are made by the  On the basis of race, ethnic group, color, sex,
Assembly of the African Union, a semi-annual meeting of the language, political or other opinion, religion, national
heads of state and government of its member states. and social origin, fortune, birth and other status.
 The AU also has a representative body, the Pan African  Equality before the law
parliament, which consists of 265 members elected by the  Equal protection of the law
national legislatures of the AU member states.  Freedom of association and assembly
 Other political institutions of the AU include:  Freedom of conscience and practice of religion
 The Executive Council (made up of foreign ministers,  Access to information, express opinion
which prepares decisions for the Assembly),  Free access to judicial bodies
 the Permanent Representatives committee (made up of  Participation in government
the ambassadors to Addis Ababa of AU member  Freedom to seek and obtain asylum
states);  Freedom of movement within country and to enter/leave own
 and the Economic, Social, and cultural Council country
(ECOSOCC)-a civil society consultative body.  mass expulsion and slavery prohibited
 Torture, cruel, inhuman and degrading treatment prohibited
The African charter  Right to life and integrity of person
 Adopted 1981, entered into force 1986  No arbitrary deprivation
 All 53 AU countries are parties  Liberty and security of person
 Departs from the narrow formulations of other regional and universal  Freedom from arbitrary arrest or detention
human rights instruments.  Right to fair trial
 It consists of 68 articles and is divided into four chapters: Human and  presumed innocent
Peoples’ Rights; Duties; Procedure of the Commission; and  present defense, represented by counsel
Applicable Principles.  within reasonable time
 Consists of both CPR,ESCR and Peoples’ Rights.  By impartial court or tribunal
 ESCR Rights:  Retroactive application of criminal law prohibited
 Traditional Rights  Collective punishment prohibited
 work; equal pay for equal work, health, education and  Rights may be limited by law
participation in cultural rights  express opinions
 New Rights  association and assembly
 right to property  movement and residence
 equal access to public service  No reservation or temporary suspension
 equal access to public property and services  State responsibilities and obligations
 Peoples’ Rights  Adopt legislation and measures
 Unique to African Charter  Protect health and community morals and values
 Uncertainty over meaning of “peoples”  Guarantee independent courts
 Right to self determination  Promote and educate on human rights
 to freely dispose of wealth and natural resources  Individual Responsibilities
 to economic, social and cultural development  Due regard for rights of others
 to national and international peace and security  Do not compromise state security
 CPR rights  Preserve the family and positive African Cultural
 Freedom from discrimination values
African HRs supervisory institutions/organs African Court on Human and Peoples’ Rights (the Protocol), which
 African Commission on Human and Peoples Rights –Estd under was adopted by Member States of the then Organization of African
the African Charter – 1987 Unity (OAU) in Ouagadougou, Burkina Faso, in June 1998.
 African Court on Human and People’s Rights 1998/2004 merged  The Protocol came into force on 25 January 2004 after it was
with the Court of Justice in 2008 ratified by more than 15 countries.
 Creating an African Court of Justice and Human Rights  Seat of African HR Court in Arusha
 The African Human Rights Court is intended to complement the
African commission on human and peoples’ rights (ACPHR) African Commission on Human and Peoples' Rights the body that has
 The African Charter established the ACHPR as its primary exercised continental oversight over human rights since 1987.
supervisory mechanism(quasi judicial body) and vests in the  The Protocol suggests that the African Human Rights Court will
Commission both promotional and protective mandates make the promotion and the protection of human rights within the
 The Commission was formally inaugurated on 2 November 1987 and regional system more effective.
was formally installed for the first time on 2 November of that year  The Court has jurisdiction over all cases and disputes submitted to it
 The Commission is mandated by the Charter ( OAU, 1981, Art 30 & concerning the interpretation and application of the African Charter
45) on Human and Peoples' Rights (the Charter), the Protocol and any
 To promote and protect human rights in Africa, other relevant human rights instrument ratified by the States
 TO interpret the provisions of the Charter and perform any concerned.
other tasks assigned to it by the AU Assembly of Heads of  Complaints under African Charter and other human rights
States and Government and agreements ratified by party state
 To consider individual complaints of violations of the Charter.  NGO and Individual complaints only with state acceptance
 Has the Advisory and Contentious Jurisdiction concerning the
Functions of the African Commission interpretation and application of the African Charter on Human and
 Mandate to promote and protect Peoples’ Rights (“Banjul Charter”) and other instruments.
 Complaint/Communications mechanism –State and Individual  Its jurisdiction extends to those States that have ratified the Protocol
 State reporting system to the African Charter on Human and Peoples’ Rights on the
 Special rapporteurs and working groups Establishment of an African Court on Human and Peoples’ Rights.
 On-site visits  Complaints against any State that has accepted the Court’s
 Adoption of resolutions jurisdiction may be referred to the Court by:
 Human rights education  the African Commission on Human and Peoples’ Rights,
 States parties (as respondent or petitioner in a case before
Workings of the African Commission the Commission, or on behalf of a individual citizen),
 The Individual complaint system not expressly provided –Serious and  and African intergovernmental organizations.
massive violations (art 58)  As of January 2019, 30 States had accepted the Court’s jurisdiction.
 Relevance of art 56 - Admissibility  These States are: Algeria, Benin, Burkina Faso, Burundi, Cameroon,
 No victim requirement Chad, Cote d’Ivoire, Comoros, Congo, Gabon, Gambia, Ghana,
 Interim/provisional measures –Rule 111 Kenya, Libya, Lesotho, Mali, Malawi, Mozambique, Mauritania,
 Challenge of enforcement Mauritius, Nigeria, Niger, Rwanda, Sahrawi Arab Democratic
Republic, South Africa, Senegal, Tanzania, Togo, Tunisia, and
African Court on Human and Peoples’ Rights
Uganda.
 Established by virtue of Article 1 of the Protocol to the African
 The Court also has jurisdiction to hear cases instituted by individuals
Charter on Human and Peoples' Rights on the Establishment of an
and non-governmental organizations with observer status before the
 African Commission, provided that the relevant State has made the  The special mechanisms’ mandates extend to all African Union (AU)
necessary declaration under Article 34 of the Protocol to allow these Member States who are States parties to the African Charter on
complaints, described in Article 5(3). Human and Peoples’ Rights.
 The 11 judges of the court are elected for renewable, six-year terms.  The special mechanisms are dedicated to protecting and promoting
 The Protocol to the African Charter on Human and Peoples’ Rights specific rights or the rights of specific vulnerable groups.
on the Establishment of an African Court on Human and Peoples’  The ACHPR has established various working groups, special
Rights, along with the AfCHPR’s Rules of Court, set out the Court’s rapporteurships, and committees to advance specific thematic
functions and operating procedures. areas of work and to guide its functioning.
 The responsibilities of these special mechanisms include gathering
The African instruments and disseminating information on respect for the human rights of
 The Commission and Court are charged with interpreting and certain vulnerable groups.
applying a number of regional human rights instruments, which  The special mechanisms use this information to provide States or
include: the Commission with guidance toward effectively securing human
 African Charter on Human and Peoples’ Rights (“Banjul Charter”) rights in Africa.
 African Charter on the Rights and Welfare of the Child  The special mechanisms have a duty to provide the Commission
 Protocol to the African Charter on the Rights of Women in Africa with reports on their activities during each Ordinary Session.
 OAU Convention Governing the Specific Aspects of Refugee  In turn, the Commission presents annual Activity Reports to the
Problems in Africa African Union Assembly that contain information gathered from the
 African Charter on Democracy, Elections and Governance special mechanisms, summarizing positive developments and areas of
concern regarding human rights in Africa.
Other non treaty documents
 Guidelines for African Union Electoral Observation and Monitoring Principal function of special mechanism
Missions  Conduct country visits to Member States to investigate the
 Principles and Guidelines on the Right to a Fair Trial and Legal enforcement of human rights;
Assistance in Africa  Make recommendations to Member States to guide them toward the
 Pretoria Declaration on Economic, Social and Cultural Rights in fulfillment of their international obligations;
Africa  Lend expertise to the Commission when it is considering
 Declaration on Gender Equality in Africa communications that concern the special mechanism’s mandate;
 Kigali Declaration, 2003  Submit annual reports to the Commission detailing its activities;
 Resolution on Guidelines and Measures for the Prohibition and  Propose that the Commission send urgent appeals to Member States
Prevention of Torture, Cruel, Inhuman or Degrading Treatment or regarding imminent human rights violations;
Punishment in Africa (Robben Island Guidelines), 2008  Send letters to State officials requesting information regarding human
 Ouagadougou Declaration and Plan of Action on Accelerating Prisons rights violations;
and Penal Reforms in Africa  Analyze States’ domestic laws and their compliance with
 Grand Bay (Mauritius) Declaration and Plan of Action, 1999 international standards;
 Engage in promotional activities, including seminars, workshops, and
African rapporteurs and working groups expert meetings; and,
 The African Commission on Human and Peoples’ Rights has  Collaborate with civil society organizations and international human
established multiple special mechanisms to assist the Commission rights bodies.
with the promotion and protection of human rights.
Creation of special mechanisms
 The African Commission appoints Special Rapporteurs, * UN GA Resolution 37/171 of Dec 1982 on the report of the Seminar
Chairpersons, and members of the special mechanisms either by on National, Local and Regional Arrangements was held on 21 June
consensus or by a vote. to 2 July, 1982
 Typically, the ACHPR authorizes a special mechanism for a two-year * UN programs (Tehran framework) for the Establishment of Inter
mandate, which may be renewed through a resolution. Governmental Commission on 12 March 1998.
* The discussion in the 1982 Colombo meeting touched on the idea of
Other regions - Asia establishing national and sub regional human rights mechanisms.
 Many attempts to establish a regional body in the Asian Region (Asia- * The South Asian Association for Regional Cooperation ( SAARC)
Pacific region) has adopted two instruments that created a basis for cooperation in the
à UN programs (Tehran framework), Law Asia, Bangkok field of HR among the member states.
declaration, ASEAN meetings, Asian NGOs and Asian human rights * The South Asian Convention on Preventing and Combating
commission Trafficking in Women and Children for Prostitution ( Jan
 ASEAN Inter-Governmental Commission on HRs 2002) and
 Terms of Reference (ToR) adopted 20th July, Phuket, * the SAARC Convention on Regional Arrangements for the
Thailand Promotion of Child Welfare in South Asia ( Jan 2002).
 The Association of Southeast Asian Nations (ASEAN)is a geo- * The Social Charter was adopted in 2004 having numerous human
political and economic organization of 10 countries located in rights provisions relating to women and children. It under principles,
Southeast Asia, formed in 1967 by Indonesia, Malaysia, the goals and objectives states that:
Philippines, Singapore and Thailand. * Promote universal respect for observance and protection of
 Its aims include the acceleration of economic growth, social progress, HRs and fundamental freedoms for all, in particular the right
cultural development among its members, and the promotion of to development; promote the effective exercise of rights and
regional peace. the discharge of responsibilities in a balanced manner at all
 SEAN established in 2009–10 an Intergovernmental Commission on levels of society; promote gender equity; promote the welfare
Human Rights. and interest of children and youth; promote social integration
 In November 2012, ASEAN adopted the ASEAN Human Rights and strengthen civil society.
Declaration, but, as of 2015, still has no human rights convention or * However, the SAARC so far has not discussed the idea of a
court. South Asian Human Rights Mechanims.
 The Cooperation Council for the Arab States of the Gulf (CCASG) is * The Pacific Islands Forum moved towards a sub regional system by
a trade bloc involving the six Arab states of the Persian Gulf, with adopting in 2005 the Pacific Plan for Strengthening Regional
many economic and social objectives. Cooperation and Integration ( Pacific Plan).
 Created in 1981, the Council comprises the Persian Gulf states of * The Vision under the Pacific Plan includes “defense and
Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab promotion of human rights”.
Emirates. * The regional implementation of the Pacific Plan lies with the
 The Asia Cooperation Dialogue (ACD) is a body created in 2002 to Pacific Islands Forum Secretariat with political oversight and
promote Asian cooperation at a continental level, helping to integrate guidance provided by a Committee ( Pacific Plan Action
the previously separate regional organizations of political or Committee).
economical cooperation. * The establishment of pacific human rights mechanism is
subject to study.
Asia Pacific Initiatives
* The Association of Southeast Asian Nations (ASEAN)is a geo-
* Many attempts to establish a regional body in the Asian Region (Asia-
political and economic organization of 10 countries located in
Pacific region)
 Southeast Asia, formed in 1967 by Indonesia, Malaysia, the * Education and public awareness on human rights
Philippines, Singapore and Thailand. * Network of Cooperation among existing human rights
* Its aims include the acceleration of economic growth, social progress, mechanisms
cultural development among its members, and the promotion of * ASEAN instrument on the protection and promotion
regional peace. of the rights of migrant workers
* The 2005 ASEAN Summit’s Kuala Lumpur Declaration on the * ASEAN commission on the promotion and protection
Establishment of the ASEAN Charter declared a list of principles on of the rights of women and children
inter-state relations within ASEAN including “ promotion of * IN 2007, during the 40th ASEAN ministerial
democracy, human rights and obligations, transparency and good meeting in Manila, it was announced for the
governance and strengthening democratic institutions.” establishment of the ASEAN Committee on the
* The ASEAN Charter under Article 2 Provides for : Implementaiton of ASEAN Declaration on the
* respect for fundamental freedoms, the promotion and Protection and Promotion of the Rights of
protection of human rights, and the promotion of social Migrant Workers.
justice; * The first ever human rights structure
* upholding the Charter of the United Nations and international established by ASEAN.
law, including international humanitarian law, subscribed to * ASEAN established in 2009–10 an Intergovernmental Commission
by ASEAN Member States; on Human Rights pursuant to Article 14 of the ASEAN Charter.
* respect for different cultures, languages and religions of the * The purpose of AICHR include with regards to HRs :
peoples of ASEAN, while emphasizing their common values * To promote and protect human rights and fundamental
in the spirit of unity in diversity. freedoms of the peoples of ASEAN;
* ASEAN has adopted numerous documents relating to human rights, * To uphold the right of the peoples of ASEAN to live in peace,
namely dignity and prosperity;
* Jakarta Declaration on the Elimination of Violence Against * To promote human rights within the regional context, bearing
Women in ASEAN Region, 2004 in mind national and regional particularities and mutual
* It proves that member states shall respect for different historical, cultural and religious
Strengthen collaboration between and among countries, backgrounds, and taking into account the balance between
through bilateral, regional and international cooperation rights and responsibilities
for resource mobilization and technical exchange program * To enhance regional cooperation with a view to
s, including sharing of best practices and experience in complementing national and international efforts on the
raising awareness, developing advocacy programs on promotion and protection of human rights; and
preventing and tackling violence against women. * To uphold international human rights standards as prescribed
* The ASEAN Declaration Against Trafficking in Persons by the Universal Declaration of Human Rights, the Vienna
Particularly Women and Children, 2004 provides that Declaration and Programme of Action, and international
ASEAN shall human rights instruments to which ASEAN Member States
* Promote regional cooperation for the survival, are parties.
development, protection and participation of ASEAN * Mandate and Functions of AICHR
children, as an integral part of ASEAN’s effort to * To develop strategies for the promotion and protection of
improve the lives of peoples in the region. human rights and fundamental freedoms to complement the
* Vientiane Action Program, 2004 has identified several areas building of the ASEAN Community;
of human rights work regarding:
 * To develop an ASEAN Human Rights Declaration with a view * right of criminal justice
to establishing a framework for human rights cooperation * Right against any form of arbitrary interference
through various ASEAN conventions and other instruments * right to freedom of though, conscience and religion
dealing with human rights; * right to freedom of opinion and expression
* To enhance public awareness of human rights among the * Right to freedom of peaceful assembly
peoples of ASEAN through education, research and * right to vote
dissemination of information; * ESCR :
* To promote capacity building for the effective implementation * right to work
of international human rights treaty obligations undertaken by * right to form trade union
ASEAN Member States; * right of child
* To encourage ASEAN Member States to consider acceding to * right to adequate standard of living
and ratifying international human rights instruments; * right to enjoyment od the highest attainable standard of
* To promote the full implementation of ASEAN instruments physical, mental and reproductive health
related to human rights; * right to social security
* To provide advisory services and technical assistance on * right to education
human rights matters to ASEAN sectoral bodies upon request; * right to participate in cultural life
* To consult, as may be appropriate, with other national, * Right to development
regional and international institutions and entities concerned * Entitled to participate in , contribute to, enjoy and benefit
with the promotion and protection of human rights; equitable and sustainably from economic, social, cultural and
* To obtain information from ASEAN Member States on the political development.
promotion and protection of human rights; 4.11. To develop * Members states to adopt meaningful people oriented and
common approaches and positions on human rights matters of gender responsive development programs…with due
interest to ASEAN; 4.12. To prepare studies on thematic consideration to environment
issues of human rights in ASEAN; * Right to Peace
* In November 2012, ASEAN adopted the ASEAN Human * right to enjoy peace within the ASEAN framework of
Rights Declaration, but, as of 2015, still has no human rights security and stability, neutrality and freedom .
convention or court. * The Cooperation Council for the Arab States of the Gulf (CCASG) is
* The declaration has provided for CPR , ESCR, Right to development a trade bloc involving the six Arab states of the Persian Gulf, with
and Right to Peace. many economic and social objectives.
* CPR * Created in 1981, the Council comprises the Persian Gulf states of
* right to life Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab
* right to liberty and security Emirates.
* right against servitude and slavery * The Asia Cooperation Dialogue (ACD) is a body created in 2002 to
* right against any form of torture or to cruel, inhuman or promote Asian cooperation at a continental level, helping to integrate
degrading treatment or punishment. the previously separate regional organizations of political or
* right to freedom of movement and residence economical cooperation.
* right to seek and receive asylum
* right to own, use, dispose of and possession Unit 5: Domestic Implementation of Institutional Human Rights
* right to nationality
* family as a fundamental unit Legislative Measures
 Ensuring sustainable respect for HRs requires-
  Constitutional and legal framework  The Constitution has recognized NHRC as constitutional body (part
 Effective institutions (parliament, government, judiciary, 25)
public administration, HRs institutions)  Article 249 has the provisions in relation to functions, duties and
 Procedures and Processes including effective remedy powers of NHRC.
 Policies and programs, including awareness raising  Pursuant to this provision, the duty of NHRC lies in ensuring,
 Vibrant civil society and free media honoring, protecting and promoting HRs and implementing
 Links between protection systems those effectively.
 Global and regional protection are complementary
 Global and regional norms require national implementation Functions of NHRC
 Global and regional protection if national remedies have been  (a) Conduct inquiries into, investigations of, and recommendation for
exhausted action against the perpetrator of, instances of violation or abetment of
 HRs norms should be consistent with global and national violation of the human rights of any person or a group of persons,
standards upon a petition or complaint presented to the Commission by the
victim herself/himself or any person on her/his behalf, or upon
Constitutional and Legal Mechanism information received from any sources, or on its own initiative.
 The concept of HRs was constitutionally accepted for the first time in  (b) Forward a recommendation to the authority concerned to take
Nepal in 1990. departmental action against any authority that has the duty of
 The Constitution of Kingdom of Nepal expressed full commitment responsibility to prevent violations if it failed to perform such duty or
towards human rights in its Preamble. responsibility or showed recklessness or lack of interest in performing
 Thereof, The Human Rights Commission Act was enacted in 1997. that duty.
 The main purpose of this Act was to establish an independent  (c) Make recommendations if necessary, to lodge a petition in the
and autonomous NHRC for the effective enforcement , court, in accordance with the law, against a person or institution that
protection and promotion of HRs conferred by the has violated human rights
Constitution and other prevailing laws.  (d) Work jointly and in a coordinated manner with civil society to
 The Interim Constitution followed the same foot step, where NHRC enhance awareness of human rights.
was recognized as a constitutional body for the first time.  (e) Forward a recommendation to the relevant authority for taking
 After the promulgation of Interim Constitution, the new Human departmental action against or imposing punishment on the violators
Rights Commission Act, 2012 came into effect and replaced the 1997 of human rights, giving clear reasons and basis therefor.
one.  (f) Review existing laws related to human rights on a periodic basis
 The Constitution of Nepal (2015) provides the legal and structural and to recommend to the Government of Nepal the necessary reforms
mechanism for human rights and the guarantees of fundamental and amendment thereto.
rights.  (g) Recommend with reasons to the Government of Nepal that it
 The fundamental rights are cited from Article 16 to Article 46 become a party to any international treaties and agreements on human
comprising both of CPR and ESCRs. rights, if it is desirable to do so, and to monitor the implementation of
the international treaties and agreements on human rights to which
The Constitutional Framework Nepal is a party and if found not to be implemented, forward
 The Constitution has ensured basic human rights in part 3 ( Art. 16- recommendations to the Government of Nepal for the effective
46). implementation of such agreements.
 Articles 133 and 144 have empowered the SC and High Court to  (h) Publicize the names of any official, person or body not following
exercise extraordinary jurisdiction to enforce those fundamental or implementing the recommendations and directions of NHRC
rights.
 regarding the violations of human rights in accordance with law, and  This shall be made on merit basis and no discrimination shall
record them as human rights violators be made on the grounds of birth, sex, language, caste, tribe,
 The National Human Rights Commission in performing its functions color, origin, or religion or any of these.
and duties may exercise the following powers:-
 (a) Exercise same powers as the court in requiring any person Right against Untouchability and Caste-Based Discrimination
to appear before the Commission for recording their statement  Caste Based Discrimination and Untouchability (offense and
and information or examining them, receiving and examining punishment) Act, 2011
evidence, and ordering the production of any physical proof.  To ensure the right against untouchability and caste based
 (b) In case the Commission has received the information from discrimination guaranteed by the Constitution as a
any source that a serious incident of violation of human rights fundamental right.
has occurred or is likely to occur, it may enter a person’s  The Act acknowledges the principle that each person is equal
residence or office, conduct a search and seize any document in terms of rights and human dignity, makes the act of
and evidence related to human rights violations therein. untouchability punishable, protects the right of each person to
 (c) Enter any government premise or other places, without equality, freedom and human dignity, and includes the
prior notice, in case the Commission has received information provisions of compensation to the victims of such acts.
that violation of human rights of a person is occurring thereon  It is the first criminal law that prohibits all sorts of
and provide immediate action required to rescue the victim. discrimination based on caste.
 (d) Order compensation for the victims of human rights
violations in accordance with the law. Right Regarding Opinion and Expression
 The Press and Publication Act, 1992 guarantees the rights to freedom
Legal Mechanism of expression in terms of press and journalism,
 Nepal as a state party has ratified or acceded to many international  National Broadcasting Act, 1993 guarantees the freedom of opinion
human rights instruments, and have agreed to the respective and expression through electronic media.
obligations arising out of those.  The Civil Rights Act, 1955 also protects the right to opinion and
 Monism expression
 Dualism
 In addition to the Constitution, there are several legal frameworks/ Right Regarding Political Participation
Acts to protect and promote the HRs to Nepalese.  Political Parties Act, 2002 guarantees the right to establish political
 The NHRC Act has defined human rights as “ the rights provided by parties, periodic election of legislative body and formation and
the Constitution and other prevailing laws regarding life, freedom, dissolution of the government by the legislative body and right to vote
equality and dignity of a person and also indicates the rights and stand as a candidate in election.
incorporated in the international human rights treaties to which
Nepal is a party”. Right to Participate in Social Development
 Organization Registration Act 1974, National Direction Act, 1961 and
Right Regarding Freedom and Equality Social Welfare Council Act, 1993, guarantee the right of Nepali
 The Civil Rights Act, 1955 guarantees the right to freedom, right to citizen to participate in social development.
religion and right to property to every Nepali citizen.  Under those Acts many nongovernmental organizations have been
 The Civil Service Act, 1997 and other related Acts guarantee the right working and civil society is becoming more influential even in terms
to equality for the Nepali citizens wrt an appointment in a Civil of policy formation.
Service position or within the rank of Nepal Army, Nepal Police or
any other government position. Right Regarding Environment
 The Environmental Protection Act, 1996, the Forest Act, 1993, the Marriage for the protection of dignity of Nepali women and to ensure
Water Resources Act, 1993 and the Land and Soil Conservation Act, their right to marital relationship, health and reproduction and equal
1983 have been enacted for the protection of rights related to right to ancestral property.
environment.  The Domestic Violence (Crime and Punishment) Act, 2010, the
 They uphold the concept of Sustainable development via proper Human Trafficking and Transportation (Control) Act, 2007 are
relationship between economic development and environmental significant.
protection.  The National Women’s Commission established under National
 Right to live in a clean environment is mandatory to protect and Women Commission Act, 2006 and constitution has recognized it as a
promote in normative level. constitutional body.

Right Regarding Education Special Rights to Labor and Right against Exploitation
 The Education Act, 1971 and the Higher Secondary Education Act,  The Bonus Act, 1973, the Labor Act 2017, the Trade Union Act,
1989 are related to the secondary education, and there are various 1993 have arranged the provisions to protect the rights of workers
Acts related to universities that are regarding the higher education. such as the right to wage, right to collective bargaining, right to leave,
 The Council for Technical Education and Vocational Training Act, right to rest and right to form trade union and become the member of
1989 is related to the technical education and vocational training. trade union of his/her choice and the right to receive the amount of
 These legal frameworks provide foundation for establishment and social security after retirement.
operation of school, faculty and university, and make necessary  Labor Act, and Child Labor (Prohibition and Regulation) Act prohibit
provisions for examination, degree and conditions of services of the exploitation of children in labor work and criminalize such conducts.
teachers and personnels working in the educational institutions.
Special Rights to Children
Right related to Culture and Identity of the people of  Nepal is a state party to the International Convention on The Rights
Indigenous/Ethnic Community of Child, 1989.
 Nepal has become the state party to ILO Convention 169.  The Children Act, 2075 has been enacted to fulfill the liabilities of
 To reciprocate the liability of this convention, the National this convention.
Foundation for the Development of Indigenous Nationalities has been
established and is in operation under National Foundation for the Rights to Consumers
Development of Indigenous Nationalities Act, 2001.  The Black-marketing and Some Other Social Offenses and
Punishment Act, 1975, the Consumer Protection Act, 1999 and the
Special Rights of Marginalized Groups Competition Promotion and Market Protection Act, 2007, the
 The Scholarship Act, 1964 provides the reservation in government Essential Goods Protection Act, 1955, the Essential Services Act,
scholarship in technical and medical education to the people of 1957, the Iodized Salt (Production, Sale and Distribution) Act, 1998
marginalized groups and regions for their social, economic and and the Animal Slaughterhouse and Meat Inspection Act, 1999 have
cultural development and promotion. been enacted in this area.
 The constitution has recognized the different commissions for  The purpose of these Acts is to protect the consumers' rights
bringing the marginalized groups in the mainstream of national connected to the health, service and economic interest of
development. consumers.
 The Food Act, 1966 is enacted to prevent any undesirable adulteration
Special Rights to Women in food material or prevent from reduction in or extracting any natural
 The Penal Code, has incorporated many chapters including Chapter quality or utility from foodstuffs and maintain proper standard of
on: Partition, Husband and Wife, Women's Property, Homicide and foodstuff.
Right Regarding Social Justice Judiciary
 The Constituent Assembly Election Act, 2014, the Civil Service Act, • Article 46, 133 and 144 of the constitution have provided the
1993, the Military Act, 2007, the Police Rules, 1993, the Teachers Supreme Court and High Court with the leading role in the protection
Service Commission Rules, 2001, the Armed Police Rules, 2003 have and promotion of human rights by exercising the extra-ordinary
made significant provisions for reservation of women, Dalits, jurisdiction for the enforcement of the fundamental rights conferred
indigenous people and persons from ethnic groups, backward regions by the Constitution or any other legal right for which no other remedy
and inhabitants of backward regions and persons with disabilities in has been provided or for which the remedy is inadequate or
recruitment in the service. ineffective.
 Similarly, the Scholarship Rules, 2003 provides reservation in
government scholarship in technical and medical education based on National Human Rights Commission
ratio of population. • It is an independent and autonomous constitutional body.
• Created on the foundation of Paris Principles.
Right Regarding Information • Article 249 of the Constitution of Nepal, 2015 vests primary
 The Right to Information Act, 2007 is enacted to protect the right of responsibility in the Commission to protect and promote the human
information which is constitutionally protected as a citizen's rights of Nepalese people.
fundamental right.
 This Act makes the functions of the state open and transparent Attorney General
pursuant to the democratic system and makes the state responsible • Article 158(6)(C) of the Constitution provides the Attorney General
and accountable toward the citizen. the power to make inquiry in response to a complaint against
inhumane treatment in custody or restriction to meet relatives, and
Special Rights to Senior Citizens provide necessary instruction to the concerned authority to prevent
 The Senior Citizens Act, 2006 is enacted to protect and promote the such acts.
rights of the senior citizens on special right based approach.
 It comprises of many objectives including protection and social National Women Commission
security of senior citizens and enhancement of trust, respect and good • It was previously constituted under the National Women Commission
faith towards them by utilizing their inherent knowledge, skills, Act, 2008 and presently it is formed as a constitutional body by the
capabilities and experiences. new constitution.
– The National Women Commission has mandates to work in the
Right Regarding Food area of protection and promotion of the rights of women.
 The Essential Commodities Control (Authorization) Act, 1961, the – According to Article 253, the function, duties and powers of the
Food Act, 1966, the Black-marketing and Some Other Social NWC are:
Offenses and Punishment Act, 1975, the Consumer Protection Act, – To formulate policies and programs regarding women welfare
1998, the Competition Promotion and Market Protection Act, 2007 for the GoN and forward them to the Government for
and the Iodized Salt (Production, Sale and Distribution) Act, 1998 are implementation.
significant in this area. – (b) To review whether or not statutes related to women’s
 These Acts preserve the right to food, right to food security and food welfare are executed, and whether the international covenant
sovereignty signed by Nepal, as a signatory, has been executed, and to
forward a recommendation to the GoN in case they are found
Executive Measures not to have been executed.
– (c) To monitor, review and evaluate policies and programs
Institutional Structures to Protect Human Rights
implemented by the State to bring women into the mainstream
 of national development such as proportionate representation – To carry out research and studies regarding Dalit community of Nepal
in all of the state agencies, and to forward a recommendation so as to identify legal and institutional reforms to be made and make a
to the GoN for an effective implementation of those recommendation to the GoN.
provisions. – (b) To formulate national policies and programs in matters related
– (d) To carry out research and studies regarding gender with ending caste discrimination, untouchability, suppression and to
equality, women empowerment, other legal provisions enhance Dalit’s status and development, and to forward a
concerning women, and to forward a recommendation to the recommendation to the GoN for implementation.
concerned bodies regarding the areas to be amended in those – (c) To monitor and ensure whether the special provisions and laws
laws, and to monitor the same. related to Dalit welfare have been implemented or not, and to forward
– (e) To monitor the government regarding report to be a recommendation to the GoN, in case these provisions are found not
submitted by the GoN in matters related to international to have been implemented.
covenant and treaties to which Nepal is a party. – (d) To review and monitor the GoN, so as to ensure that the GoN
– (f) To forward a recommendation to concerned authority to submits the report as a signatory to the international treaties and
lodge a petition in the court, in accordance with the law, in agreement, as provisioned by those treaties.
matters related with gender violence, and women deprived of – (e) To monitor, review and evaluate the policies and programs
women rights due to social malpractices. implemented by the State to bring Dalit community into the
mainstream of national development such as proportionate
Adibasi Janajati Commission representation in all of the state agencies, and to forward a
• The National Foundation for the Development of Indigenous National recommendation to the GoN for an effective implementation of those
was established under the National Foundation for the Development provisions.
of Indigenous National Act, 2001 previously. – (f) To recommend to respective agencies on filing petitions in court
• Presently it is formed as a constitutional body by the new constitution according to the law, against any person or organization if it is
as an Adibasi Janajati Commission. ( Art. 261) deemed necessary on subjects of discriminations on caste and
• It has the mandate to carry out activities for social, economic, untouchability or victim of social malpractices or disallowing or
cultural development and upliftment of indigenous peoples and to depriving of exercising the right of Dalits.
ensure their equal participation in the mainstream of national National Muslim Commission ( Art 264)
development. • National Muslim Commission was established for the development of
• Other provisions related to functions, duties and power of such economic, social and other aspects of Muslim Community before the
commission will be determined by the federal law. promulgation of the Constitution of 2015.
• This constitution has made it a constitutional body.
National Dalit Commission
• Muslim Commission Act 2017, Section 7 deals with the functions,
• National Dalit Commission was established on March 19, 2002 to
duties and rights of it.
abolish economic, social, educational, political, administrative and
– Recommend GoN regarding the status of muslim community
religious and cultural discrimination against Dalits based on caste
on the required policies, programs and laws.
and empower them from human development perspective, making
– Recommend GoN wrt the empowerment of such community.
their proportional participation in every organ of state and prepare an
environment to live dignified life in the society. – Conduct study on the implementation status of laws, policies
• The Constitution of Nepal, 2015 as accepted it as a separate and programs and recommend GoN accordingly.
constitutional body ( Art. 255) – Recommend GoN for the amendment of laws, policies and
• According to the 256(1) of the constitution the functions, duties and institutional arrangements if so required.
powers of the National Dalit Commission are as follows:
 – Follow up on the recommendations given by the commission recommendations for revision based on reports of periodic census
to the GoN. and human development indices.
– Recommend on the Special programs for the upliftment , • National Inclusive Commission Act 2017 is there with further details of
development and empowerment of muslim community. the commission.
– Recommend the GoN on the language, culture, history,
culture, literature and development of the muslim community. Madheshi Commission
– recommend the GoN on the ratification of international • Article 262 of the Constitution has constituted Madheshi Commission
treaties and instruments as a constitutional body for the welfare of Madheshi community.
– conduct inquires against the person or institution for having • Section 3 of Madhesi Commission Act 2017 deals with the functions,
violated the rights of muslim community etc. duties and power of the commission.

National Inclusion Commission Tharu Commission

• Article 258 of the constitution has constituted National Inclusion • Article 263 of the constitution has constituted Tharu Commission as a
Commission as a constitutional body. constitutional body for the welfare of Tharu community.
• According to the article 259 the functions, duties and powers of • Tharu Commission Act 2017, section 7 deals with the functions,
National Inclusion Commission are as follows:- duties and power of the commission.
– To carry out research and studies for protecting rights and welfare Policies by Ministries of GoN
of Khash Arya, backward class, persons with disabilities, senior • National Health Policy, 1992,
citizens, laborers, peasants, marginalized and minority • National Ayurvedic Health Policy, 1995,
communities, people of Karnali region and economically • Special Education Policy, 1996,
disadvantaged people. • Senior Citizen Policy and Action Plan, 2001,
– (b) To review the policies of the GON for inclusion of the persons • National Wetland Policy, 2003,
as mentioned in section (a) above and their implementation, and to • Labor and Employment Policy, 2005, Informal Education Policy, 2006,
forward necessary recommendation to the government for reform. • Agro-Biodiversity Policy, 2006, Agricultural Business Promotion Policy,
– (c) To conduct study about the rightful representation of the 2006,
persons as mentioned in section (a) above in the state • National Policy on Disabilities and Work Plan, 2006,
mechanisms, and to forward a recommendation to the GoN to • National Policy on Internally Displaced People, 2006,
review the provision to ensure their representation therein. • Fourth National Plan of Actions on Human Rights (Fiscal Year
– (d) To study whether protection, empowerment and development 2014/2015 - 2018/2019),
of the persons as mentioned in section (a) is satisfactory and to • Climate Change Policy, 2011,
forward a recommendation to the GoN regarding the policies to be • National Children Policy, 2013, Irrigation Policy, 2013,
adopted for the future.
– (e) To recommend the GoN regarding policies and programs to be National Human Rights Action Plan
implemented for development and prosperity of Karnali and other • Fourth NHRAP is in the implementation stage.
backward regions. • All the ministries under the Government of Nepal are held responsible
– (f) To recommend for timely revision in the laws related to units in relation to the implementation of the action plan. Eighteen
minorities and marginalized communities. different issues are included in the action plan.
– (g) To monitor the situation of implementation of rights and • Issues include education, health, nutrition and population, labor and
interests of minorities and marginalized communities, and to make employment, culture, legal and judicial administration, environment and
sustainable development.
• Likewise, women, persons with disability, senior citizens and sexual and  If any legal remedy is not available under any law or the remedy
gender based minorities and implementation of Nepal's international available under the law is inadequate or ineffective, and
obligations are included.  If any issue relating to public rights or interest requires constitutional
• Apart from this, food security, transitional justice and conflict victim, or legal resolution.
human rights education, inclusive development, children, housing are  Article 133(1) of the constitution confers power upon the Supreme
included. Court to declare void either ab initio or from the date of its decision
• For the implementation and monitoring of the action plan central any statutory provision on the ground of inconsistency with the
implementation and monitoring committee of the National Human constitution or unreasonable restriction on the enjoyments of the
Rights Action Plan headed by the chief secretary at the center and in each fundamental rights of the citizen
of the district, district level implementation and monitoring committee  Article 144 of the Constitution provides for the power to the High
convened by the chief district officer is constituted for that matter. Court to issue necessary and appropriate orders , for the enforcement
• National Action Plan for the Elimination of All forms of Discrimination of the fundamental rights of the Constitution or for the enforcement of
Against Woman, 2013, any other legal right for which no other remedies are available or are
• Beijing National Action Plan for Gender Equality and Woman inadequate.
Empowerment, 2013,  High court may issue appropriate orders or writs including the writs
• National Action Plan Against Human Trafficking Specially of Women of habeous corpus, mandamus, certitorari , prohibition and qui
and Children, 2012, warranto.
• National Strategy and Action Plan for the Elimination of Gender Based
Violence and Women Empowerment, 2013/14 - 2016/17, Tek Tamrakar and Others v. HMG ( 2062)
• National Action Plan for Children, 2004/5 - 2014/15,  The petitioner challenged section 4(1) of the Birth, Death and Other
• National Action Plan for Senior Citizens, 2005, Personnel Events ( Registration) Act, 2033 and section 3(1) of
• Directives for Distribution of Identity Cards to the Persons With Children Act 2048 as being inconsistent with Article 11 of the
Disabilities, 2008, Constitution of Kingdom of Nepal, 1990.
• National Water Plan, 2007 and Water Resource Policy, 2003.  The court observed that the Badi people are equally vested with the
right to live with an honorable life pursuant to the prevailing
Judicial Measures Constitution, laws and international treaties to which Nepal has
 Article 46, 133 and 144 of the constitution have provided the become a party to.
Supreme Court and High Court with the leading role in the protection  The court declared the provision of sec 4 (1) of the Birth, Death and
and promotion of human rights by exercising the extra-ordinary Other personal events (registration ) Act 2033 as inconsistent.
jurisdiction for the enforcement of the fundamental rights conferred
by the Constitution. Kaman and Ram and Others v. GoN and others, 2057, DOD 2002
 Article 46 provides for the right to constitutional remedies within the  The petitioners alleged that the respondents who were obligated to
ambit of Article 133 and 144. carry out the obligations of the state did not undertake their duties of
 As per Article 133, the Constitution has empowered the Supreme providing administrative support and initiatives in elimination of
Court to issue writs (applicable to the respective issues) such as the untouchability in light with the Constitution and ICERD.
writs of Habeas Corpus, Mandamus, Certiorari, Quo warranto and  The petitioners who belonged to the Dalit community of Siraha and
Prohibition. The writs are issued particularly in the following Saptari district were allegedly forced by the people to do the task of
conditions: disposing corpses of animals. When they refused they were subjected
 If any illegal restriction is made against the fundamental rights of the to social and financial boycott and segregation.
people,  The court in the decision pointed out the role of administrative bodies
like district administration office and district police offices and DDC
 and municipalities to fulfill their obligation under constitution and  The court directed the government to amend the laws with
international law with regards to administrative support and consideration of possible dangers of early marriage on the health of
initiatives. The court issued a directive to the respondents to act as per women and also being distinction on the basis of sex.
the domestic and international obligations of implementing and
fulfilling the obligations. Som Prasad Paneru and Others v. OPM et al, NKP 2063
 The petitioner challenged the Kamlari practice. The practice was
Sunil Babu Pant on behalf of Blue Diamond Society v. Office of PM considered to be inconsistent with the existing legal provisions, the
and others, 2065 Bonded Labor Act, Child Labor Act, UNCRC.
 The petition was brought before the court on the situation of the  The court directed the government to formulate a comprehensive
minority people with different sexual orientation and gender identity legislation banning the practice that promoted the child exploitation.
who were treated as 2nd class citizen.
 The SC recognized the right of people of marriageable ages to be Sapana Pradhan Malla v GoN and Others, Writ no. 56 of 2058
able to marry upon their consent.  The petitioner challenged the constitutionality of No. 7 of the
 The court also issued a directive order to make laws so as to allow the Chapter on Rape.
people of different gender identity and sexual orientation to enjoy  The provision had provided maximum penalty of Rs. 500 or
their rights without any kind of distinction. imprisonment upto 1 year for the rape committed against the
prostitutes, whereas no. 3 of the same chapter on rape had provided
Pun Devi Maharjan v. GoN, 2065 for the punishment ranging from 6-10 years.
 The case challenged the Kumari practice.  The petitioner contended that the provision was contrary to the
 The petitioner claimed that the practice affects the human rights of principle of criminal justice system and CEDAW for the same
the girls acting as kumari. criminal act on the basis of the status of victims.
 The SC constituted a committee for the study of the same and  The SC observed that the legal provision of lesser punishment for
rejected the petitioner’s claim that that rights of the child were rapists of prostitutes tended to downgrade prostitutes without any just
exploited. or reasonable basis.
 It observed that the custom of kumari is not in contravention with  Since the actus reus and mens rea are always similar in the act of
children’s right as granted by Art 22 of the Constitution of 2047, right rape, a legal provision for awarding lesser or greater punishment to
against torture proved by art 26 and right against exploitation criminals on the basis of the character or profession of the victims is
provided by art 29 of the same as they are engaged in any kind of discriminatory. Hence the provision was declared void .
physical labor.
 Since they have freedom of movement, freedom of residence and Unit 6: Human Rights Protection under Special Situations
right to education it was considered that the practice does not hamper
the rights of children. Riots
 The case was considered to have promoted the rights to religion and O Is a form of civil disorder commonly characterized by a group
culture while not undermining the right of children to education and lashing out in a violent public disturbance against authority, property
other human rights. or people.
O Is often in reaction to a grievance or out of dissent.
Sapana Pradhan Malla and others v. PM et al, NKP 2063 O Riots consist of disorganized groups that are frequently chaotic and
 The petitioner challenged Sec 4 of the Marriage registration Act exhibit herd behavior.
2028. The section had prescribed the marriageable age of men as 22 O A concerted action: (1) made in furtherance of an express common
while that of women as 18. purpose; (2) through the use or threat of violence, disorder, or terror
 The provision was considered discriminatory on the basis of sex. to the public; and (3) resulting in a disturbance of the peace.
O The concerted act may be unlawful in themselves or they may be indispensable to the survival of the civilian population (GCIV
lawful acts that are done in violent or turbulent manner. Art. 23, API Art. 70, and APII Art. 18.2).

Uprising Armed Conflict

O An act of opposition, sometimes using violence, by many people in O International Armed Conflict
one area of a country against those who are in power. O Non International Armed Conflict
O An organized rebellion, especially against an authority or O Internationalized Armed Conflict
government.
O It is most often used to describe a political revolt, often a Context of Public Emergencies
violent insurrection against the established rule O Experience suggest that Public Emergencies pose a heightened threat
of grave and systematic human rights abuse.
Blockades O Theoretical Challenge v. Practical Challenge
O A blockade is an effort to cut off supplies, war material or O State of emergency is the counterpart in international law of self
communications from a particular area by force, either in part or defense in penal law.
totally. O The idea of an exceptional situation and a state’s need to
O One party blocks entry to or departure from a defined part of an defend itself is underpinned by an unusual balance between
enemy’s territory, most often its coasts. the collective interests (the life of the nation) and the interests
O Military Blockade and Commercial Blockade of the individual in particular in human rights and civil
O A military blockade is undertaken to attain some specific military liberties.
objective, such as the capture of a naval port. O Normalcy v. Emergency
O A commercial blockade has no immediate military objective but is O As McGoldrick states, the “idea of limitations is based on the
designed to cause the enemy to surrender or come to terms by cutting recognition that most human rights are not absolute but rather reflect a
off all commercial intercourse by sea. balance between individual and community interest.”
O A blockade should not be confused with an embargo or sanctions, O To address this, leading international treaties and specifically ICCPR
which are legal barriers to trade. tries to regulate states’ entry into and conduct within the state of
O An embargo is a type of economic sanction that may be emergency, with the availability of derogation clause.
adopted under the aegis of the UN or another international
organization, to try to force a State to comply with a decision. Human Rights in Times of Emergency
O It is also distinct from a siege in that a blockade is usually directed at O ICCPR, European Convention on Human Rights and American
an entire country or region, rather than a fortress or city. Convention on Human Rights contain derogation clauses.
O ICCPR allows states to take measures temporarily derogating some
Blockade under IHL of their obligations under the Covenant “…in times of public
O A blockade is a military operation that blocks all maritime emergency which threatens the life of a nations.” but only to the “…
movement to or from a port or coast. Blockades may also be exigencies of the situation”.
aerial. O The derogation regime includes:
O A military operation carried out on land that isolates or O (i) a threshold of severity clause
encircles an area is called a siege. O (ii) the requirement of national proclamation and international
O Regardless of whether the situation is a blockade or an notification to the treaty depository
embargo, humanitarian law clearly posits that States are under O (iii) the consistency of the derogation with the state’s other
the obligation to allow the free passage of relief that is of an international obligations
exclusively humanitarian and impartial nature and is O (iv) the proportionality of the measures and
O In Lawless v. Ireland,34 the ECtHR defined a “public emergency” as instrumentalisation) and that person are not to be subject to
a “danger or crisis” that is arbitrary power ( the principle of non-domination).
O (1) present or imminent, O State may derogate from non-peremptory human rights norms
O (2) exceptional, only where exigent circumstances imperil the state’s ability to
O (3) concerns the entire population, and guarantee secure and equal freedom, and only when such measures
O (4) constitutes a “threat to the organized life of the community.” employed are strictly necessary.
O IL limits executive and legislative discretion within states of O States may never derogate peremptory norms because the
emergency by prohibiting states from employing powers beyond the violation of these norms could never be consistent with the
temporal and geographic scope specified in their notice of derogation. state’s obligation to guarantee secure and equal freedom.
O The ECtHR affirmed this principle in Sakik and Others v. Turkey39 O Under IL, permitting derogation of such non peremptory
when it considered Turkey’s suspension of human rights protections norms is to ensure that persons are treated as ends in
in territories outside those identified in the state’s derogation notice. themselves and not merely as means to state’s ends.
O The court explained that it “would be working against the
object and purpose of [the ECHR’s derogation provision] if,
when assessing the territorial scope of the derogation
concerned, it were to extend its effects to a part of Turkish
territory not explicitly named in the notice of derogation.”
O Applying this principle, the court held that Turkey’s
derogation notice was inapplicable to the case at hand and
that the state’s delay in presenting detainees before a judge in
territories not covered by its derogation notice violated its
commitments under the ECHR
O The international human rights regime employs a two stage inquiry to
evaluate the legality of state’s derogation:
O First, are circumstances sufficiently dire to justify initiating a
state of emergency?
O Second, if a state of emergency is justified, what measures
may a state employ to address the emergency’s threat to
public order?
O The derogation clause, permit states to restrict some human rights
during emergencies but only necessary to address threats to “ the life
of nations” or the “independence or security” of the state.
O The derogation clause tries to accommodate concerns for public
necessity during emergencies.
O The state has the fiduciary duty to guarantee their subjects’
secure and equal freedom and the duty that flows is with the
assumption of sovereign power.
O However, in doing so, the state has to taken into
consideration that the human rights of people are to be
treated as ends always( the principle of non-