Human Right Law

The Origin and Development of Human Rights in the Global Scenario

Meaning of Human Rights

 The term "Human Right" is comparatively of recent origin. But the idea of human
rights is as old as the history of human civilization.
 Human rights are deeply rooted in the historical past. The history of mankind has
been firmly associated with the struggle of individuals against injustice, exploitation
and disdain.
 Human beings are born equal in dignity and rights. These are moral claims which are
inalienable and inherent in all individuals by virtue of their humanity alone,
irrespective of caste, color, faith, and place of birth, sex, cultural difference or any
other consideration.
 These claims are articulated and formulated in what is today known as human rights.
 Human rights belong to an individual as a consequence of being human.
 The term came into wide use after World War II, replacing the earlier phrase "natural
rights,"
 Human rights are sometimes referred to as fundamental rights, basic rights, inherent
rights, natural rights and birth rights.

Definition of Human Rights

 Dr. Justice Durga Das Basu defines “Human rights are those minimal rights, which
every individual must have against the State, or other public authority, by virtue of
his being a ‘member of human family’ irrespective of any consideration.
 Durga Das Basu’s definition brings out the essence of human rights.
 The Universal Declaration of Human Rights (UDHR), 1948, defines human rights as
“rights derived from the inherent dignity of the human person.”
 As understood today, human rights refer to a wide variety of values and capabilities
reflecting the diversity of human circumstances and history.

1
 Human Right Law
 Human rights when they are guaranteed by a written constitution are known as
“Fundamental Rights” because a written constitution is the fundamental law of the
state.

Characteristics and Nature of Human Rights

Following are the characteristics of human rights:

1. Human Rights are Inalienable

 Human rights are conferred on an individual due to the very nature of his existence.
 They are inherent in all individuals irrespective of their caste, creed, religion, sex
and nationality.
 Human rights are conferred to an individual even after his death. The different
rituals in different religions bear testimony to this fact.
2. Human Rights are Essential and Necessary
 In the absence of human rights, the moral, physical, social and spiritual welfare of
an individual is impossible.
 Human rights are also essential as they provide suitable conditions for material
and moral upliftment of the people.

3. Human Rights are in connection with human dignity

 To treat another individual with dignity irrespective of the fact that the person is a
male or female, rich or poor etc. is concerned with human dignity.

4. Human Rights are Irrevocable:

 Human rights are irrevocable. They cannot be taken away by any power or
authority because these rights originate with the social nature of man in the society
of human beings and they belong to a person simply because he is a human being.
 As such human rights have similarities to moral rights.

5. Human Rights are Necessary for the fulfillment of purpose of life:

 Human life has a purpose. The term “human right” is applied to those conditions
which are essential for the fulfillment of this purpose.

2
 Human Right Law
 No government has the power to curtail or take away the rights which are
sacrosanct, inviolable and immutable.

6. Human Rights are Universal

 Human rights are not a monopoly of any privileged class of people.
 Human rights are universal in nature, without consideration and without exception.
 The values such as divinity, dignity and equality which form the basis of these rights
are inherent in human nature.

7. Human Rights are never absolute

 Man is a social animal and he lives in a civic society, which always put certain
restrictions on the enjoyment of his rights and freedoms.
 Human rights as such are those limited powers or claims, which are contributory to
the common good and which are recognized and guaranteed by the State, through its
laws to the individuals. As such each right has certain limitations.

8. Human Rights are Dynamic

 Human rights are not static, they are dynamic. Human rights go on expanding with
socio-eco-cultural and political developments within the State.
 Judges have to interpret laws in such ways as are in tune with the changed social
values.
 For eg. The right to be cared for in sickness has now been extended to include free
medical treatment in public hospitals under the Public Health Scheme, free medical
examinations in schools, and the provisions for especially equipped schools for the
physically handicapped.

9. Rights as limits to state power

 Human rights imply that every individual has legitimate claims upon his or her society
for certain freedom and benefits.
 So human rights limit the state’s power. These may be in the form of negative
restrictions, on the powers of the State, from violating the inalienable freedoms of the
individuals, or in the nature of demands on the State,

3
 Human Right Law
 i.e. positive obligations of the State. For eg. Six freedoms that are enumerated under
the right to liberty forbid the State from interfering with the individual.

1.6 The Evolution Of Human Rights/ Historical Foundations Of Human Rights/

 The roots for the protection of the rights of man can be traced as far back as to the
Babylonian laws.
 Babylon was the capital of a small city state of Mesopotamia, named Babylonia, located in what
is now Iraq. Babylon reached its heyday under the Babylonian king Hammurabi (1792-1750
BC), who ruled all of southern Mesopotamia.

 The Babylonian King 'Hammurabi' issued a set of laws to his people called
'Hammurabi's Codes.' It established fair wages, offered protection of property and
required charges to be proved at trial.
 Hammurabi is known for the Code of Hammurabi, one of the earliest surviving codes of
law in recorded history.

 All the major religions of the world have a humanist perspective that supports human
rights despite the differences in their content.
 The evolutions of human rights have taken place over centuries.
 Man had to struggle hard in order to achieve the ultimate goal – living with dignity –
which still has to be realized in various societies.
 The world recognized the U.N.Charter of 1945 which states that human rights are
inalienable aspect of mankind.
 The origin of human rights may be traced to the theory of Natural Rights derived from
the concept of Natural Law, as propounded/advocated/ by ancient Greek Philosophers
and further developed by Thomas Hobbes and John Locke.
 The American and French Revolution gave further impetus to the struggle of human
rights.
 The evolution and development of human rights in the international context can be
traced to the Magna Carta and the English Bill of Rights followed by the French
Declaration and the American Bill of Rights.

4
 Human Right Law
 The twentieth century witnessed the crystallization of the philosophy of Human Rights
when
 the United Nations adopted the UN Charter, 1945,
 The Universal Declaration of Human Rights, 1948 and
 the International Covenants on Human Rights with further emphasis to
protection of rights of Women, Abolition of Slavery, Racial Discrimination, Civil
and Political Rights, Economic, Social and Cultural Rights and most importantly
the Rights of children.
In Ethiopia the drafters of Constitution took care to incorporate Human Rights for its
own citizens as well as for the aliens.

The Natural Rights Theory

 Though the expression ‘human rights’ had its origin in international law, which is not
older than the World War II, the concept of an individual having certain basic,
inalienable rights as against a sovereign State had its origin in the doctrines of natural
law and natural rights.
 Thomas Hobbes (1588 – 1679), John Locke (1632 – 1704) and Jean-Jacques Rousseau
(1712 – 1778) are the three main thinkers who developed the Natural Rights theory.

Thomas Hobbes was the first champion of the theory of ‘natural rights’.
 In his celebrated book, ‘Leviathan’, he advocated that no individual could ever be
deprived of the right to life, which he enjoyed in the state of nature.
 He asserted that all human beings are equal, without any consideration.

John Locke developed the idea further in his book, ‘Two Treatises Government.’ He
argued that every human being has a natural right to life, personal liberty, and property,
and that no governmental authority has power to deprive individuals of these rights
because they had enjoyed them even before the creation of the civil or political society.

Jean-Jacques Rousseau is regarded as the greatest master of natural law school.

5
 Human Right Law
 In his celebrated book, ‘The Social Contract’, Rousseau states that “All men are born free
but everywhere they are in chains.”
 Rousseau proclaimed that men are bestowed with inalienable rights of liberty, equality
and fraternity.
 These concepts became the basis for the French Declaration of the Rights of Man and of
the Citizen.
 He held that rights are natural, because they were bestowed upon man by God himself.
These rights exist independently of the legal code of any country.

Landmarks In Development Of Human Rights

The important landmarks in the progress of human rights are as follows:

1. The Magna Carta, 1215.

 The Magna Carta, also known as the Great Charter, of 1215 is the most significant
constitutional document of all human history.
 The main theme of it was protection against the arbitrary acts by the king.
 The 63 clauses of the Charter guaranteed basic civic and legal rights to citizens, and
protected the barons (A British nobleman of the lowest rank) from unjust taxes.
 The English Church too gained freedom from royal interferences.
 King John of England granted the Magna Carta to the English barons on 15th June 1215.
 The king was compelled to grant the Charter, because the barons refused to pay heavy
taxes unless the king signed the Charter.

2. The English Bill of Rights, 1689.

 The next source and avenue of the development of the philosophy of human rights is
the English Bill of Rights, enacted on December 16, 1689, by the British Parliament.
 The British Parliament declared its supremacy over the Crown in clear terms. The
English Bill of Rights declared that the king has no overriding authority.
 The Bill of Rights codified the customary laws, and clarified the rights and liberties of
the citizens.

6
 Human Right Law
 It lays down the twin foundations, viz., the supremacy of the law, and the sovereignty of
the nation, upon which, the English constitution rests.

3. American Declaration of Independence, 1776.

 The first colonies to revolt against England were the thirteen States of America.
 These states declared their independence from their mother country on 4th July 1776.
 The declaration charges the king with tyranny and affirms the independence of the
American colonies.
 The declaration of independence has great significance in the history of mankind as it
justified the right to revolt against a government that no longer guaranteed the man’s
natural and inalienable rights.

4. The U.S. Bill of Rights, 1791.

 The U.S. Constitution was enacted on 17th September 1787. The most conspicuous
defect of the original constitution was the omission of a Bill of Rights concerning
private rights and personal liberties.
 James Madison, (member of the U.S. House of Representatives) therefore proposed
as many as twelve amendments in the form of Bill of Rights.
 Ten of these were ratified by the State legislatures. These 10 constitutional
amendments came to be known as the Bill of Rights.
 The Bill of Rights is a list of limits on government power. (e.g Amendment II, the
right of the people to keep and bear arms, shall not be infringed. )
 The overall theme of the Bill of Rights is that the citizen be protected against the
abuse of power by the officials of the States.

5. The French Declaration of the Rights of Man and of the Citizen, 1789
 The Declaration of the Rights of Man and Citizen, defining a set of individual and collective rights
for all the people, regardless of their estate.
 The fall of Bastille (Bastille, a prison that was a symbol of the King's absolute and arbitrary
power.) and the abolition of feudalism/monarcy/. The Rights were formulated in 17

Articles.

7
 Human Right Law
 The Declaration of the Rights of Man and of the Citizen has far reaching importance not
only in the history of France but also in the history of Europe and mankind.
 The declaration served as the death warrant for the old regime and introduced a new
social and political order, founded on the noble and glittering principles.
 Further the declaration served as the basis for many Constitutions, framed in different
countries, where the framers gave top priority to human rights.

6. Declaration of International Rights of Man, 1929.

 After World War I, questions about human rights and fundamental freedoms began to
be raised.
 In 1929, the Institute of International Law adopted the Declaration of International
rights of Man.
 The Declaration declared that fundamental rights of citizen, recognized and
guaranteed by several domestic constitutions.

7. The UN Charter, 1945.

 The United Nations Charter was drafted, approved and unanimously adopted by all the
delegates of the 51 states, who attended the United Nations Conference at San
Francisco.
 The UN Charter contains provisions for the promotion and protection of human rights.
 The importance of the Charter lies in the fact that it is the first official document in
which the use of ‘human rights’ is, for the first time traceable and which also
recognized the respect for fundamental freedom.

8. The Universal Declaration of Human Rights, 1948.

 The Universal Declaration of Human Rights was adopted by the General Assembly of
the United Nations on 10th December, 1948.
 The Declaration consists of thirty Articles and covers civil, political, economic, social
and cultural rights for all men, women and children.
 The declaration however is not a legally binding document. It is an ideal for all
mankind.

8
 Human Right Law
9. International Covenants on Human Rights
 The Universal Declaration of Human Rights, 1948 was not a legally binding document. It
lacked enforcements.
 This deficiency was sought to be removed by the U.N. General Assembly by adopting in
December, 1966, the two Covenants, viz,
1. International Covenant on Civil and Political Rights and
2. International Covenant on Economic, Social and Cultural Rights.
 The two International Covenants, together with the Universal Declaration and the
Optional Protocols, comprise the International Bill of Human Rights.
 The International Bill of Human Rights represents a milestone in the history of
human rights. It is a modern Magna Carta of human rights.

CLASSIFICATIONS OF HUMAN RIGHTS

Human rights can be broadly classified on five bases. They are:
 Civil Human Rights
 Political Human Rights
 Economic Human Rights
 Social and Cultural Human Rights
 Development Oriented Human Rights
1. The seventeenth, eighteenth and nineteenth centuries contributed and strengthened
the civil and political rights, which assured civil and political liberties.
 The Civil and Political Human Rights are collectively known as ‘Liberty Oriented
Human Rights’ because they provide, protect and guarantee individual liberty to
an individual against the State and its agencies.
 Liberty rights also referred to as Blue Rights are the First Generation of Human
Rights.

2. The twentieth century contributed to the development and strengthening of

economic, social and cultural rights and the rights of minorities as well.

9
 Human Right Law
 These rights aim at promotion of the economic and social security through
economic and social upliftment of the weaker sections of the society.
 These rights are essential for dignity of personhood as well as for the full and
free development of human personality in all possible directions.
 These rights ensure a minimum of economic welfare of the masses and their
basic material needs, recognized by the society as essential to civilized living.

3. The economic, social and cultural rights, including the rights of the minorities are
collectively known as the “Security Oriented Human Rights” because these rights
collectively provide and guarantee the essential security in the life of an individual.
 In the absence of these rights, the very existence of human beings would be in
danger.
 These are also known as the “Second Generation of Human Rights”.
 They are also referred to as Red Rights or also as positive rights.
 These rights along with the Civil and Political Rights were declared by the
Universal Declaration of Human Rights and later were recognized by (1) the
Covenant on Civil and Political Rights and (2) the Covenant on Economic, Social
and Cultural Rights in December 1966.

4. The Development Oriented Human Rights are of a very recent origin in the late
twentieth century.
 These rights enable an individual to participate in the process of all round
development and include environmental rights that enable an individual to enjoy
the absolutely free gifts of nature, namely, air, water, food and natural resources,
free from pollution and contamination.
 These are known as the Third Generation of Human Rights or Green Rights.
 They are also called as Solidarity Rights, because their implementation depends
upon international cooperation.
 Solidarity rights are of special importance to developing countries, because these
countries want the creation of an international order that will guarantee to them

10
 Human Right Law
the right to development, the right to disaster relief assistance, the right to peace
and the right to good government.

Rights for Citizens and for all persons

All human rights can be further classified into two distinct classes on the basis of the
eligibility of individual, who can exercise them as under:
1. The rights for citizens and
2. The rights for all persons Certain rights are conferred only on citizens.
For eg. Articles 15, 16, 19 and 29 are limited to citizens. The remaining
provisions in Part III of the Indian Constitution are applicable to citizens and
aliens alike.

SOURCES OF INTERNATIONAL LAW

 Since time immemorial, states and peoples have entered into formal relationships
with each other.
 Like domestic law, international law covers a wide range of subjects such as
security, diplomatic relations, trade, culture and human rights, but it differs from
domestic legal systems in a number of important ways. In international law there is
no single.
 legislature, nor is there a single enforcing institution.
 Consequently, international law can only be established with the consent of states
and is primarily dependent on self-enforcement by those same states.
 In cases of non-compliance there is no supra-national institution; enforcement can
only take place by means of individual or collective actions of other states.
The internationally accepted classification of sources of international law is
formulated in Article 38 of the Statute of the International Court of Justice.
These are:
1. International conventions, whether general or particular;
2. International custom, as evidence of general practice accepted as law;
3. The general principles of law recognised by civilised nations;

11
 Human Right Law
4. Subsidiary means for the determination of rules of law such as judicial decisions
and teachings of the most highly qualified publicists.

These sources will be analysed below

A. International conventions
 International treaties are contracts signed between states.
 They are legally binding and impose mutual obligations on the states that are party
to any particular treaty (states parties).
 Even though the sources of international law are not hierarchical, treaties have
some degree of primacy.
 More than 40 major international conventions for the protection of human rights
have been adopted.
 International human rights treaties bear various titles, including ‘covenant’,
‘convention’ and ‘protocol’; but what they share are the explicit indication of states
parties to be bound by their terms. 
 Human rights treaties have been adopted at the universal level (within the
framework of the United Nations and its specialised agencies, for instance, the ILO
and UNESCO) as well as
 Under the support of regional organisations, such as
 the Council of Europe (CoE),
 the Organisation of American States (OAS) and
 the African Union (AU).

These organizations have greatly contributed to the codification of a comprehensive

and consistent body of human rights law. 

Universal Conventions For The Protection Of Human Rights 40 major

 The ‘International Bill of Human Rights’ consists of the Universal Declaration of
Human Rights, the ICESCR and the ICCPR and its two Optional Protocols.

12
 Human Right Law
 The International Bill of Rights is the basis for numerous conventions and national
constitutions. 
 Besides the International Bill of Human Rights, a number of other instruments
have been adopted under the support of the UN and other international
agencies.

a) Conventions elaborating on certain rights, inter alia:

  The Convention on the Prevention and Punishment of the Crime of Genocide
(1948)
  ILO 98 concerning the Right to Organise and to Bargain Collectively (1949)
  The Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984)
  International Convention for the Protection of All Persons from Enforced
Disappearance (2006) 
b) Conventions dealing with certain categories of persons which may need
special    protection, inter alia:
  The Convention relating to the Status of Refugees (1951), and the 1967
Protocol thereto
  The Convention on the Rights of the Child (1989)
  Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflicts (2000)
  Optional Protocol to the Convention on the Rights of the Child on the sale of
children,child prostitution and child pornography (2000)
  ILO 169 concerning Indigenous and Tribal Peoples in Independent Countries
(1989)
  The International Convention on the Protection of the Rights of All Migrant
Workers andMembers of Their Families (1990)
  The Convention on the Rights of Persons with Disabilities (2006) 
c) Conventions seeking to eliminate discrimination

13
 Human Right Law
  ILO 111 concerning Discrimination in respect of Employment and
Occupation (1958)
  UNESCO Convention against Discrimination in Education (1960)
  The International Convention on the Elimination of All Forms of Racial
Discrimination (1965)
  The International Convention on the Suppression and Punishment of the
Crime of Apartheid(1973)
  The Convention on the Elimination of All Forms of Discrimination Against
Women (1979)and its Optional Protocol (2000) 
 Regional Conventions For The Protection Of Human Rights

 The UN Charter encourages the adoption of regional instruments for the

establishment of human rights obligations,
 many of which have been of crucial importance for the development of international
human rights law.
 The Council of Europe adopted the European Convention for the Protection of
Human Rights and Fundamental Freedoms in 1950 and complemented other
Convention.
 The American Convention on Human Rights was adopted in 1969, under the
auspices of the Organization of American States.
 In 1981, the Organisation of African Unity, now the African Union, adopted the
African Charter on Human and Peoples’ Rights (see II§4.B).
 Three protocols to the Charter have been adopted: the Additional Protocol on
the Establishment of the African Court on Human and Peoples’ Rights (1998),
the Protocol on the Rights of Women in Africa (2003) and the Protocol on the
Statute of the African Court of Justice and Human Rights (2008).

14
 Human Right Law
B. International custom 
 Customary international law are those aspects of international law that derive from custom
 custom is considered by the International Court of Justice, jurists, the United Nations, and
its member states to be among the primary sources of international law.
 The vast majority of the world's governments accept in principle the existence of customary
international law, although there are many differing opinions as to what rules are contained in it.
 Customary international law plays a crucial role in international human rights law.
 The Statute of the International Court of Justice refers to ‘general practice
accepted as law’.
 In order to become international customary law, the ‘general practice’
 Needs to represent a broad consensus in terms of content and applicability,
deriving from a sense that the practice is obligatory) long-established practice.

 Custom, Certain standards have been nearly universal in their acceptance as correct

bases of action - in example, laws against piracy or slavery

 Customary law is binding on all states (except those that may have objected to it
during its formation), whether or not they have ratified any relevant
treaty.                                                 

C. General principles of law 

"recognised" by states

 In earlier stages of the development of international law, rules were frequently drawn from
municipal law
 Legal principles that are common to a large number of systems of municipal law.
 The reference to the principles as "general" signify that, if rules were to be adapted
from municipal law, they should be at a sufficient level of generality to encompass
similar rules existing in many municipal systems.

15
 Human Right Law
General principles of law play two important roles:

 on the one hand, they provide guidelines for judges, in particular, in deciding in
individual cases;
 on the other hand, they limit the discretionary power of judges and of members of
the executive in their decisions in individual cases.

5. Subsidiary means for the determination of rules of law

As subsidiary means for the determination of rules of law, article 38 of the Statute
mentions “judicial decisions and the teachings of the most highly qualified publicists”.
As previously mentioned, in the human rights field, judicial decisions are particularly
important for a full understanding of the law, and the wealth of international case-law
that now exists in this field must be regarded as authoritative evidence of the state of
the law.

As to “the teachings of the most highly qualified publicists”, it must be remembered that
article 38 was drafted at a time when international jurisprudence on human rights law was
non-existent. Whilst the interpretation and application of this law must principally be
based on the legal texts and relevant case-law, writings of “the most highly qualified
publicists” can of course in some situations contribute to an improved understanding of the
law and its practical implementation. Yet it is advisable to exercise considerable care
before relying on legal articles and principles and comments adopted by private bodies
outside the framework of the officially established treaty organs, since they may not in all
respects correctly reflect the status of the law to be interpreted and applied.

16
 Human Right Law
Chapter Two

Human Rights Systems:

2.1 The Universal System: The UN System

The Legal Framework

 The UN human rights system is a fundamental component of the international human

rights framework. The UN human rights system comprises: The treaties in which the
international human rights which are the subject of the UN system are enshrined.

1. The UN Charter

 The Charter of the United Nations was signed on 26 June 1945, in San Francisco, at the
conclusion of the United Nations Conference on International Organisation, and came
into force on 24 October 1945.
 The Statute of the International Court of Justice is an integral part of the Charter.
 The Charter of the United Nations represents a significant advancement in the direction
of faith in and respect for human rights.
 The appalling atrocities perpetrated by the Nazis against the Jews and other races
during World War II led to a strong movement towards international protection of
fundamental human right.
 The delegates from some of the States at the San Francisco Conference were in favor of
the adoption of an even stronger provision concerning human rights.
 The Charter contains a number of provisions for the promotion of human rights and
fundamental freedoms in the Preamble and in Articles 1, 13(b), 55, 56, 62(2), 68 and
76(c), which are as follows:

a) The first paragraph of the Preamble of the Charter lays down that "we the people' of
the United Nations are determined to reaffirm faith in the fundamental human rights, in
the dignity and worth of the human person, in the equal rights of men and women and
of nations large or small . . ."
 The U.N. Charter did not contain a specific Charter on human rights and so an attempt
was made to fill them out by drawing up the "Universal Declaration of Human Rights

17
 Human Right Law
and Fundamental Freedoms" “in 1948 and with a view to implement the Universal
Declaration.

2. Universal Declaration of Human Rights

 UDHR Adopted by the General Assembly on 10 December 1948, the Universal
Declaration of Human Rights (UDHR) is a foundational document of the UN human
rights system.
 Its adoption marked the first time in history that the international community
collectively agreed upon a body of fundamental rights and freedoms to which all
persons, simply by virtue of their humanity, were entitled.
 Indeed, the principle of the universality of human rights is the cornerstone of
international human rights law.
 The UDHR contains a preamble and 30 articles, which include a general prohibition of
discrimination and set forth various types of rights and obligations, including political
and civil rights.
 Although the UDHR is not a legally binding instrument (i.e. it does not create legal
obligations for States), customary international law, it has over time been widely
accepted as a universal agreement on fundamental human rights norms that duty
bearers are expected to respect, protect and fulfill.
 The UDHR has inspired a large number of legal documents at the national, regional and
international levels.
 Many subsequent international instruments are based on its catalogue of fundamental
rights and freedoms. ICCPR, and ICESCR, have effectively translated those rights into
binding treaty law for the States that ratified these instruments.

The rights set out in the Universal Declaration have subsequently been transformed into a
legally binding framework of international human rights through the following 9
international treaties, namely:

3. The 9 Core Human Rights Treaties

18
 Human Right Law
There are nine core international human rights treaties. The nine treaties address
economic, social and cultural rights, civil and political rights, the elimination of racial and
gender discrimination, protection against torture and forced disappearance and the rights
of women, children, migrants, persons with disabilities.

Each of these international human rights treaties also has a monitoring body within the UN
human rights system which monitors the implementation of the treaty provisions by its
States parties.

The nine core international human rights treaties dealing with specific human rights
are:

1. The International Covenant on Civil and Political Rights (ICCPR) (1976)

2. The International Covenant on Economic, Social and Cultural Rights (ICESCR) (1976)

3. The International Convention on the Elimination of All Forms of Racial Discrimination

(ICERD) (1969)

4. The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) (1981)

5. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) (1987)

6. The Convention on the Rights of the Child (CRC) (1990)

7. The International Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families (ICRMW) (2003)

8. The International Convention on the Rights of Persons with Disabilities (2008)

19
 Human Right Law
9. The International Convention for the Protection of All Persons from Enforced
Disappearance (This treaty the most recent one -- entered into force on 23 December
2010.)

These treaties create obligations on States Parties to establish and enact laws
promoting and protecting human rights at the national level.

 Some treaties are supplemented by optional protocols, which States Parties to the
treaty may ratify. Optional protocols normally contain provisions regarding a specific
issue and/or allow for specific procedures, such as individual complaints or inquiries.

RESERVATIONS AND DECLARATIONS

 Although it is desirable that states become party to a convention unconditionally, this is

often not the case.
  A number of States enter reservations to particular articles on the ground that
national law, tradition, religion or culture are not fitting with Convention principles,
and purport to justify the reservation on that basis.

RESERVATIONS

 In general terms, a reservation is a statement made by a state by to exclude or alter the

legal effect of certain provisions of a treaty in their application to that state.
 Unilateral statements made upon signature, ratification, acceptance, approval of or
accession to a treaty.
 Reservations often reflect an admission (oppossition) that the country in question
cannot, or will not, bring its conduct up to international standards.

Time for Formulating Reservations

Vienna Convention on the Law of Treaties; Article 19 VCLT: A State may, when signing,
ratifying, accepting, approving or acceding to a treaty, make a reservation unless:

20
 Human Right Law
(a) The reservation is prohibited by the treaty;
 Some treaties specifically prohibit reservations. E.g. Art. 120, ICC Statute
 CEDAW does not prohibit the entering of reservations.
(b) The treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) The reservation is incompatible with the object and purpose of the treaty.
 Articles 2 and 16 of CEDAW are considered to be core provisions of the
Convention. But a lot of state parties reserved even if withdrawn reservations.
 Article 2
States Parties condemn discrimination against women in all its forms, agree to
pursue by all appropriate means and without delay a policy of eliminating
discrimination against women.

 Article 16
States Parties shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations and in
particular shall ensure, on a basis of equality of men and women:

 Neither traditional, religious or cultural practice nor incompatible domestic laws

and policies can justify violations of the central principles of the Convention.
 Article 27 VCLT that states: ‘A party may not invoke the provisions of its domestic law
as justification for its failure to perform a treaty.’
 State Parties, therefore should be reviewed and modified or withdrawn.

What if no permitted reservation

 Unless expressly permitted by a treaty, the effectiveness of a reservation is dependent

on its acceptance by other states parties, and any other state party may object to it.
 It may be challenged by other States parties.
 As a rule, a reservation is considered accepted by another state party if that state party
has raised no objection within 12 months after it has been notified of the reservation
(Article 20(5)VCLT).
 Silence on the part of other states parties seems amount to acceptance.

21
 Human Right Law
 The UN Commission on Human Rights has stated that reservations should be
formulated ‘as precisely and narrowly as possible (Resolution 1998/9)
 Reservations may thus not be general, but must refer to a particular provision of the
covenant and indicate in precise terms its scope in relation thereto.’

Removing/ Withdrawal of a Reservation

 States parties which have entered reservations to the Convention have certain options
open to them.

 According to the Special Rapporteur appointed by the International Law Commission to

report on the law and practice relating to reservations to treaties a State party may:

(a) After having examined the finding in good faith, maintain its reservation;
(b) Withdraw its reservation;
(c) "Regularize" its situation by replacing its impermissible reservation with a
permissible reservation;
(d) Renounce being a party to the Treaty.

To date, few reservations to article 2 have been withdrawn or modified by any State party
and that reservations to article 16 are rarely withdrawn.

 A State may withdraw its reservation completely or partially at any time.

 The consent of the States concerned is not necessary.
 Must be formulated in writing and signed by the Head of State, Head of
Government or Minister for Foreign Affairs or a person having full powers
 The Secretary-General circulates a notification of a withdrawal.
 Objections can be withdrawn at any time also.
 Art. 22(3) VCLT: a withdrawal of a reservation becomes operative only when a
concerned State has been notified.

DECLARATIONS

22
 Human Right Law
 Some conventions allow or even require states parties to make declarations
concerning the extent to which they are bound by a certain provision.
 Such statements may relate to the competence of a supervisory mechanism.
 For instance, Article 41 ICCPR stipulates that a state party may choose (not) to
recognise the competence of the Human Rights Committee to receive state
complaints regarding its human rights performance.
 This type of declaration, as provided by the instruments, does not pose major
problems.

Interpretative Declarations /understandings,/

 A state party may also make interpretative declarations, otherwise known as
understandings,
 Interpretative Declarations does not intend to modify or limit the provisions of
the treaty, but indicates merely how it interprets a particular article.
 A reservation seeks to exclude or modify the legal effect of the treaty’s provisions
in their application to the state, the interpretative declaration seeks only to clarify
the meaning or scope of the treaty provisions./ it is a state’s understanding of a
provision/

LIMITATION AND DEROGATION CLAUSES

 Human rights law applies in peace and war, in ordinary periods as well as in
emergencies.

 However, there are provisions in human rights law instruments which:

 limit the scope of the protected human rights; and

 provide for suspension of/derogation from certain rights in time of public

emergencies.

Restrictions/Limitation clauses

23
 Human Right Law
 Limitation clauses permit States lawfully to restrict the free exercise of human rights in
order to protect public health, public safety and morals, to restore order, and to
protect fundamental rights and freedoms of others.

 Examples of such provisions are article 29(2) of the UDHR and articles 12(3), 18(3),
21 and 22(2) of the ICCPR.

When a right is subject to a limitation, no other limitations are permitted and any
limitation must comply with the following minimum requirements:
Limitations

Strict interpretation
 that the language is not extended beyond its ordinary meaning
 The limitation must not be interpreted so as to jeopardise the essence of the right
concerned;
Permissible limitations

 Lawful: “in accordance with the law” or “prescribed by law”

 Legitimate: aims listed in the provisions
 Necessary in a democratic society
 The limitation must be interpreted strictly in the light and context of the
particular right;
 The limitation must be prescribed by law and be compatible with the object and
purpose of the instrument;

Legitimate – aims listed in the provisions

 “national security” “public safety” “public order” “prevention of crimes” “morals”

“health” “the reputation of others” “the protection of the rights of others” “the
economic welfare of the country” “the prevention of disclosure of information
received in confidence” “the guaranteeing of the impartiality of the judiciary” “the
prevention of disorder and crime”

It be necessary in a democratic society – “margin of appreciation”

 To a larger or lesser extent depending on the nature of the rights or on the
balancing of the competing claims. The restriction must be necessary; there must
be a pressing social need, assessed on a case-by-case basis.

24
 Human Right Law
 it must be consistent with other protected rights Balance of legitimate interests/
Proportionality
 The restriction must be justified by a strictly limited set of public interests, the
following grounds: national security, public safety, public order (ordre public), the
protection of health or morals, and the protection of the rights and freedoms of
others.

Derogation clauses

 Derogation clauses permit States to suspend some rights in narrowly determined

situations, particularly situations of public emergency.

 A derogation measures are only allowed in exceptional circumstances and should be of

temporary nature.

 Only in a situation when the “life of the nation” is at stake, States may unilaterally
derogate from some of its obligations.

 Exceptional circumstances
 Non-derogable rights
 Strictly required – proportionality
 Temporary
 Procedure – international and domestic
 Applicable law during emergencies: Humanitarian law and international criminal
law and parts of international human rights law

 For example, article 4(1) of the ICCPR states: “in time of public emergency which
threatens the life of the nation and the existence of which is officially proclaimed, the
States parties to the present Covenant may take measures derogating from their
obligations under the present Covenant……

WHEN?

War and state of emergency

Threat to the existence of the State

25
 Human Right Law
 However, all these treaties list rights which cannot be derogated even in emergency
situations (“absolute rights”; art. 4(2) of the ICCPR, under all these instruments, the
right to life cannot be derogated.

 Derogations may neither be contrary to other obligations under international law nor
to the rights which are listed as “non-derogable” Article 4 of the ICCPR

 The right to food is directly related to the non-derogable right to life, and cannot
be suspended even in emergencies.

FDRE ARTICLE 1, Nomenclature of the State

18, Prohibition against Inhuman Treatment
25. Right to Equality
and sub-Articles 1 and 2 of Aarticle 39

 right to self-determination
 the right to speak, to write and to develop its own language; to express, to develop
and to promote its culture; and to preserve its history.

26
 Human Right Law

Institutions and Procedures

Treaty Based and Charter Based Mechanisms
The United Nations (UN) human rights system is a fundamental component of the
international human rights framework. The UN human rights system comprises:

 Charter-based bodies (established under the UN Charter (1945)); and

 Treaty bodies (created by one of the eight international human rights treaties).
Both bodies’ are supervisory mechanism and monitor compliance with human rights
treaties.
Charter-based bodies seek to uphold maintain international human rights in general,
while treaty bodies address compliance with human rights in the particular treaty under
which they were established.

CHARTER-BASED BODIES

Charter-based bodies in general

 Derive their establishment from provisions contained in the UN Charter

 They are established by resolutions of principal organs of the UN
 Hold broad human rights mandates
 Address an unlimited audience
 Take action based on majority voting

The UN Charter-Based Organs

There are numerous bodies established by the UN Charter which have a role in promoting
and monitoring compliance with international human rights, namely;

o The Human Rights Council,

o The Office of the High Commissioner for Human Rights
o The Security Council,
o The General Assembly,
o Economic and Social Council , and
o The International Court of Justice.

27
 Human Right Law
Of these, the Human Rights Council and the Office of the High Commissioner for Human
Rights are the most active in enforcing and monitoring compliance with international
human rights.

1. Human Rights Council (2006)

Responsibility;

 for strengthening the promotion and protection of human rights around the globe and
 For addressing situations of human rights violations and making recommendations on
them.
 Established by General Assembly resolution 60/251 of 15 March 2006

 The Commission on Human Rights was until recently the main UN organ dealing with
human rights. The Human Rights Council replaced the Commission in June 2006
 One change requires that the 47 members of the HRC be elected based on their own
human rights record.
 The first year has shown, however, that human rights violators have evaded this
requirement; countries like Cuba, Saudi Arabia and China are members.
 The Human Rights Council is an inter-governmental body within the United Nations
system.
 The Human Rights Council monitors compliance of all 192 UN member states with
their international human rights obligations through the Universal Periodic Review
(UPR). The UPR seeks to:
 Assess member states' human rights records;
 Highlight human rights violations;
 Provide technical assistance to improve member states' abilities to effectively
respond to human rights challenges; and
 Share best practices in human rights between states and other stakeholders.
2. The Office of the High Commissioner for Human Rights (OHCHR)
 The office was established by the UN General Assembly on 20 December 1993 in the
wake of the 1993 World Conference on Human Rights.
 The OHCHR is the principal UN organization mandated to promote and protect human
rights for all.
 To this end, it focuses on three main areas: standard setting, monitoring and
implementation on the ground.
 UNHCR is responsible for integrating human rights into all areas of its work.

28
 Human Right Law
 Specifically, UNHCR looks to the OHCHR for expertise on how to integrate human
rights into its work in practice, including how to conduct human rights-based
programming.
 Amongst other objectives, the High Commissioner for Human Rights works to:
 Promote universal ratification and implementation of international human
rights treaties; and
 Support the efforts of the Human Rights Council and treaty bodies.

3. General Assembly
 The General Assembly is the supreme governing body of the UN, in which all the
member states are represented, each with one vote.
 The General Assembly elects the ten non-permanent members of the Security Council.
 It also elects the 54 members of the Economic and Social Council, which is the source of
most of the human rights mechanisms within the UN.
 The UN Charter in Article 13(1) (b) allows the General Assembly to “initiate studies and
make recommendations” for the purpose of “assisting in the realisation of human rights
and fundamental freedoms for all”.
 This includes the final decision in the adoption of new human rights standards,
expressed in resolutions by the General Assembly.
 The recommendations are not legally binding on States.
 The General Assembly has established a number of subsidiary organs which are
concerned with human rights.
4. Security Council
 The Security Council consists of 5 permanent and ten non-permanent members elected
for two years.
 Article 24 of the UN Charter entrusts the Security Council with the primary
responsibility for the maintenance of international peace and security.
 The Security Council now sees that gross human rights violations creating conflict and
mass movements of refugees and internally displaced threaten international peace and
security.

29
 Human Right Law
 Before the 1990s, however, the Council rarely considered situations of grave human
rights violations, deeming them ‘internal matters’ and outside the Council’s mandate
 This reluctance began to melt with the end of the Cold War. In the early 1990s, the
Security Council authorised coercive action.
 Since then, conflicts in Africa have generated numerous Security Council resolutions
that explicitly mention human rights and the state’s obligations to protect them.
 The Security Council uses a flexible interpretation of what constitutes a ‘threat to
international peace and security’.
 The Security Council imposes sanctions on states whose conduct is a ‘threat to the
peace’, but sanctions are controversial because of their impact on the survival needs of
the poorest.
 The Security Council has dealt with several human rights problems, including massive
and repeated violations in South Africa, Somalia, Haiti, Yugoslavia, and Rwanda.

5. Economic and Social Council

 The Economic and Social Council (ECOSOC) is under the authority of the General
Assembly and has 54 members.
 Seats on the Council are allotted based on geographical representation with fourteen
allocated to African States, eleven to Asian States, six to Eastern European States, ten to
Latin American and Caribbean States, and thirteen to Western European and other
States.
 The Economic and Social Council is authorized by the charter of the United Nations to
make recommendations for the purpose of promoting respect for, and observance of
human rights and fundamental freedoms for all.
 It is also authorized to prepare draft conventions for submission to the General
Assembly, to call international conferences, and to obtain reports from member states

6. The International Court of Justice (ICJ)

 The International Court of Justice (ICJ) is the principal judicial organ of the United
Nations (UN).

30
 Human Right Law
 It was established in June 1945 by the Charter of the United Nations and began work
in April 1946.
 The seat of the Court is at the Peace Palace in The Hague (Netherlands).
 The Court’s role is to settle, in accordance with international law, legal disputes
submitted to it by States and to give advisory opinions on legal questions referred to
it by authorized United Nations organs and specialized agencies.
 The Court is composed of 15 judges, who are elected for terms of office of nine years
by the United Nations General Assembly and the Security Council.
 Its official languages are English and French.

TREATY BASED-BODIES

 The treaty-based procedures are the mechanisms established within the context of a
specific human rights treaty.
 The treaty bodies, with the exception of the Committee on Economic, Social and
Cultural Rights, are not organs of the UN, but derive their status from the convention
concerned.
 The role of monitoring implementation of and compliance of treaties by states parties is
tasked to committees established by the treaties.
 Each of these conventions has a supervisory body. These bodies consist of a number of
experts of a high moral character and recognised competence in the field of human
rights.
 They act in their personal capacity, which means that although they are normally
nationals of a state party to the treaty in question, they are not acting under
instructions from respective governments.

The various supervisory procedures established in human rights treaties can be divided
into four main groups:

 Reporting procedures
 Individual complaint procedure
 Inter-state complaint procedure
 Inquiries and other procedures

31
 Human Right Law

1. State Reporting

Most human rights treaties include a system of periodic reporting. States parties to them
are obliged to report periodically to a supervisory body on the implementation at the
domestic level of the treaty in question.

o Reporting is at the heart of international supervision of domestic implementation of

treaty obligations. Reporting strengthens accountability.
o The treaty bodies devote much time to examining and responding to state reports,
noting progress and deficiencies.
o The reports are considered in public meetings in the presence of representatives of the
reporting states.
o NGOs can submit ‘shadow reports’ providing an often contrary assessment of the
situation which the Committee members may take into account when questioning the
state representatives and when reaching their conclusions and recommendations.
o Whenever a treaty body finds that a certain state practice violates international human
rights standards, it invites the state to include in the following periodic report
information on measures taken to eliminate the violations

2. Conventional complaints procedures

o The complaints procedures give individuals the opportunity to bring violations
perpetrated by a government to the attention of an international forum.
o The international supervisory bodies have jurisdiction only in those cases where
domestic remedies have been exhausted, that is,
 When the national courts or administrative bodies have heard and rejected the claim
and there is no national recourse left.

32
 Human Right Law
o All complaints procedures are confidential, the meetings of the implementing bodies
are closed and the working documents are not released publicly.
o Under the treaty based procedures, however, all final decisions are made public.

3. Inter-state-complaint procedure
o Some human rights instruments allow states parties to initiate a procedure against
another state party, which is considered not to be fulfilling its obligations under the
instrument.

o The procedure provides for inter-State complaints "that enables one State Party to
charge another with a violation to the treaty.
o The possibility to lodge complaints against another state party is contemplated in, inter
alia, Article 41 of ICCPR; Article 21 of CAT; Article 11 of CERD.
o In practice, inter-state complaint mechanisms are seldom used.
o Inter-state relationships are delicate and inter-state mechanisms may not be ideal
procedures as states bringing complaints may elicit reprisals. In addition, many states
have not recognised the competence of the supervisory bodies to receive inter-state
complaints.

4. Inquiries and other procedures

Recently, however, several supervisory mechanisms have been established whereby an
independent person or group of persons may raise, on the person’s or group’s own
initiative, issues of non-compliance with human rights.

33
 Human Right Law

REGIONAL HUMAN RIGHTS SYSTEMS

The 1993 World Conference on Human Rights reaffirmed the fundamental role of regional
and sub-regional organisations in promoting and protecting human rights, and stressed
that regional groups should reinforce universal human rights standards.

Regional arrangements exist in three parts of the world.

 In Africa, the Organisation of African Unity (OAU), now AU, enacted the African
Charter on Human and Peoples’ Rights.
 The Organisation of American States and is based upon the American Convention
on Human Rights. Finally,
 The European human rights system forms one part of the Council of Europe. Its
founding instrument is the European Convention on Human Rights.

1. The European system

o There are in fact several systems for the protection of human rights within Europe.
 The European Union (EU),
 The Council of Europe (CoE) and
 The Organization for Security and Cooperation in Europe (OSCE) all voice their
concern with human rights issues.

34
 Human Right Law
o The Council of Europe human rights protection scheme plays, for instance, an
important part in the European Union’s fundamental rights protection system.
o The EU considers human rights field missions and election missions as part of its
mandate and this is a rapidly evolving area. So far the EU has been active mostly in the
area of election observation.

Regional Human Rights systems

Regional human rights systems strengthen the protection and enjoyment of human rights
by taking into account regional considerations, such as shared regional customs, values,
culture, and practices.

When domestic institutions fail to uphold the law, or when they themselves are the
violators of the law, it may be possible or necessary to seek redress beyond national
boundaries. Regional legal frameworks give violated rights-holders the possibility of
bringing their case in front of a regional body, providing that the country in question is part
of this framework, and providing that all national remedies have either been exhausted or
deemed inefficient.

In addition, regional human rights institutions are often competent to monitor the
implementation and enjoyment of the right to education, usually through report
submission.

The European Human Rights system

In Europe, there are two main institutions concerned with human rights: COE and EU

A. The Council of Europe (COE) focuses on human rights and the rule of law across its 47
Member States which account for almost the entire continent of Europe.
 The Council of Europe was founded in 1949 and has 47 Member States.

 The primary human rights text of the Council of Europe is the European Convention
on Human Rights (ECHR). The rights set out in the Convention are enforced by the
European Court of Human Rights, which is located in Strasbourg, France.
 Although the Council of Europe co-operates with the European Union in many ways,
the two organizations are entirely separate in how they are structured and the ways
they work.

35
 Human Right Law
 Every member of the European Union was a member of the Council of Europe first.

1. The European Convention on Human Rights

The Council of Europe established the European Convention on Human Rights and

Fundamental Freedoms, which entered into force in 1953, and is the main European
human rights convention.
It usually known as the European Convention on Human Rights (ECHR) was written in
1950 and came into force in 1953. 

It deals with civil and political rights, and is in that sense similar to the ICCPR. Several
additional Protocols have added to its substantive and procedural provisions.

The rights set out in the Convention have been added to by protocols that protect
additional rights, such as the right to private property, the right to education, freedom of
movement and the right to free elections. Only the states who have signed up to these
protocols are obliged to protect the rights they contain.

Although these are the main European human rights conventions,

The Council of Europe has adopted numerous other conventions pertaining to human
rights, covering a wide range of areas including, migrant workers, torture, national
minorities, and children, and gender equality.

The European Convention on Human Rights is often considered to be the most successful of
all regional human rights tools. The rights set out in the Convention can be directly enforced
by the European Court of Human Rights against states, and individuals can take cases for
alleged breaches of their rights to the Court. 

Article 1 of the Convention concerns the ‘obligation to respect human rights’; this requires
that all parties to the Convention make sure that everyone within their jurisdiction has the
rights and freedoms contained in the Convention.

2. The European Court of Human Rights

The European Convention on Human Rights is enforced by the European Court of Human
Rights, which has the power to hold states accountable for a failure to respect, protect
and/or fulfil the rights contained in the Convention. The Court is comprised of 47 judges,
one from each Member State. 

36
 Human Right Law
It is a permanent European Court of Human Rights, abolishing the European Commission
on Human Rights. 

If someone feels their Convention rights have been violated, they can bring a case to the
European Court of Human Rights. There are a few conditions that must be satisfied before
they can take their case to the Court:

 The person must have exhausted all domestic remedies available to them, such as

courts, courts of appeal or tribunals, within the time limit. The applicant must be
directly and personally the victim of the alleged violation. A complaint may not be
made on behalf of another person, unless they are clearly identified as their official
representative.
 No application before the Court can be anonymous.
 The case must not have been brought to the European Court of Human Rights
before.
 The complaint can only be about rights contained in the Convention.

As well as individual complaints against states, inter-state cases can be brought before the
European Court. 

Taking a Case
When a person feels their rights under the Convention have been violated by a state  party
to the Convention and wants to bring their case to the Court, they must first apply to the
Court Registrar with the details of the alleged violation. 

If the application is deemed admissible, or complies with certain requirements set out in

the Convention, the case is considered by a chamber of judges.

Composition of the Court

The Court’s composition varies depending on the type of case, and cases may be heard in
different ways. For example, a single judge or three-judge committee can rule on the
admissibility of a case concerning an issue already covered by established case law.

Other cases may be referred to a seven-judge chamber while occasionally cases are
referred to the Grand Chamber of 17 judges. 

The Grand Chamber of the European Court of Human Rights is made up of the Court’s
President and Vice Presidents, when it hears a case, the Grand Chamber does not include
any judge who first examined the case.

37
 Human Right Law
What happens when there has been a violation of the Convention?
When the Court makes a judgment, the state against whom the judgment is made must
carry out any obligations that result from it. When the Court finds that a state has violated
the rights of a person, the country must take steps to redress the violation, for example
through compensation (called ‘specific measures’) and make sure that it does not happen
again, for example through policy or legislative changes (called ‘general measures’). 

Enforcing Judgments
The Committee of Ministers is the Council of Europe’s decision-making body and enforces
judgments. It is comprised of the Ministers of Foreign Affairs of all the Member States, or
their permanent diplomatic representatives. 

In judgments from the European Court of Human Rights where violations of the Convention
are found, decisions are binding on the states concerned. The Committee of Ministers
monitors how the judgments are being implemented, both as regards compensation or
other specific measures and more general measures such as necessary policy, legal or
systemic change

B. The European Union (EU)

The European Union (EU) is an economic and political partnership between 27 democratic
European Member States. Its aims are peace, prosperity and freedom for its 498 million
citizens — in a fairer, safer world.

The EU institutions and bodies are the following: the European Parliament, the Council,
the Commission, the Court of Justice, the Court of Auditors, the Economic and Social
Committee, the Committee of the Regions, the Central Bank of Europe and the European
Investment Bank.

In 2009, the EU took a major step forward in the area of promoting and protecting human
rights with the adoption of a Charter of Fundamental Rights.

The European Union Charter of Fundamental Rights sets out in a single text, for the first
time in the European Union’s history, the range of civil, political, economic and social rights
of European citizens and persons resident in the EU.

Rights are also protected in the EU by the European Union Charter of Fundamental Rights
and the Court of Justice of the European Union, which is located in Luxembourg.

INTER-AMERICAN HUMAN RIGHTS SYSTEM

38
 Human Right Law
The Inter-American System for the protection of human rights is one of the world’s three
regional human rights systems, and is responsible for monitoring and ensuring
implementation of human rights guarantees in the 35 independent countries of the
Americas that are members of the Organization of American States (OAS).
The Inter-American System is composed of two entities: a Commission and a Court.
o Both bodies can decide individual complaints concerning alleged human rights
violations and may issue emergency protective measures when an individual or the
subject of a complaint is in immediate risk of irreparable harm.
o The Commission also engages in a range of human rights monitoring and promotion
activities, while the Court may issue advisory opinions on issues pertaining to the
interpretation of the Inter-American instruments at the request of an OAS organ or
Member State.

1. Inter-American Commission on Human Rights 

The Inter-American Commission on Human Rights (IACHR) addresses human rights

conditions and violations in the 35 Member States of the OAS. 
It began operating in 1960, observing human rights conditions via on-site visits, and in
1965 was authorized to begin processing specific complaints of human rights violations.

Individuals, groups of individuals, and non-governmental organizations recognized in any

OAS Member State may submit complaints (“petitions“) concerning alleged violations of
o the American Declaration of the Rights and Duties of Man,
o American Convention on Human Rights, and other regional human rights treaties

Inter-American Court of Human Rights

The Inter-American Court of Human Rights is the judicial organ of the Inter-American
human rights system.
o Its mandate is more limited than that of the Commission because the Court may only
decide cases brought against the OAS Member States that have specifically accepted
the Court’s contentious jurisdiction and those cases must first be processed by the
Commission.
o Additionally, only States parties and the Commission may refer contentious cases to
the Court.

39
 Human Right Law
o Currently, 23 OAS Member States have ratified the American Convention on Human
Rights, 20 of whom have opted to accept the Court’s contentious jurisdiction in
accordance with Article 62 of the American Convention.
o The Court began operating in 1979, and soon issued several advisory opinions, but
did not begin exercising its contentious jurisdiction until 1986, when the
Commission submitted the first contentious case regarding which the Court issued a
judgment on the merits in 1988.

Inter-American Instruments

The Commission and Court are charged with interpreting and applying a number of
regional human rights instruments, which include the:

 American Declaration of the Rights and Duties of Man

 American Convention on Human Rights
 Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights “Protocol of San Salvador”
 Protocol to the American Convention on Human Rights to Abolish the Death Penalty
 Inter-American Convention to Prevent and Punish Torture
 Inter-American Convention on Forced Disappearance of Persons
 Inter-American Convention on the Prevention, Punishment and Eradication of
Violence Against Women “Convention of Belem do Para”
 Inter-American Convention on the Elimination of All Forms of Discrimination
Against Persons with Disabilities

Additionally, the following documents guide the Court and Commission’s interpretation of

the above instruments:

 Declaration of Principles on Freedom of Expression

 Principles and Best Practices on the Protection of Persons Deprived of Liberty in the
Americas
 Inter-American Democratic Charter

AFRICAN HUMAN RIGHTS SYSTEM

40
 Human Right Law
The African System is the youngest of the three judicial or quasi-judicial regional human
rights systems, and was created under the auspices of the African Union.

Like the Inter-American System (and the European System, as originally designed), it is
composed of two entities: a Commission and a Court.

African Court on Human and Peoples’ Rights

Seat: Arusha, Tanzania   Instrument: Protocol to ACHPR  Operating Since: 2006

o The African Court on Human and Peoples Rights (AfCHPR) is a regional human rights

tribunal with advisory and contentious jurisdiction concerning the interpretation and
application of the African Charter on Human and Peoples’ Rights, which is also referred
to as the Banjul Charter.
o Its jurisdiction extends to those States that have ratified the Protocol to the African
Charter on Human and Peoples’ Rights on the Establishment of an African Court on
Human and Peoples’ Rights.
o Complaints against any State that has accepted the Court’s jurisdiction may be referred
to the Court by:
 the African Commission on Human and Peoples’ Rights,
 States Parties (as respondent or petitioner in a case before the Commission, or
on behalf of a individual citizen), and
 African intergovernmental organizations.

As of March 2016, 30 States had accepted the Court’s jurisdiction.

 The Court also has jurisdiction to hear cases instituted by individuals and non-
governmental organizations with observer status before the African Commission,
provided that the relevant State has made the necessary declaration under Article 34 of
the Protocol to allow these complaints.
 To date, eight States have accepted the Court’s jurisdiction to receive complaints
referred by individuals and NGOs; these are: Benin, Burkina Faso, Cote d’Ivoire, Ghana,
Malawi, Mali, Rwanda, and Tanzania.
 In February 2016, Rwanda announced it would withdraw its acceptance of the Court’s
jurisdiction over individual and group complaints.
 The eleven judges of the court are elected for renewable, six-year terms

o Additionally, the States of the African Union have agreed to establish an African Court
of Justice and Human Rights, intended to hear disputes arising under all African Union

41
 Human Right Law
instruments, including the human rights agreements, and to prosecute individuals for
serious international crimes.
o This new tribunal would replace the African Court on Human and Peoples’ Rights.
However, the protocol must be ratified by 15 States before the African Court of Justice
and Human Rights come into being.

African Commission on Human and Peoples’ Rights

Seat: Banjul, The Gambia   Instrument: ACHPR       Operating Since: 1987
o The African Commission on Human and Peoples’ Rights (ACHPR) promotes and
protects human rights in the 54 Member States of the African Union, which – with the
exception of South Sudan – have all ratified the African Charter on Human and Peoples’
Rights.
o The Commission accepts complaints (“communications”) from individuals, groups of
individuals, non-governmental organizations, and States concerning alleged violations
of the African Charter on Human and Peoples’ Rights.
o The ACHPR holds two ordinary sessions a year and may also hold extraordinary
sessions upon the request of the Chairperson of the Commission or a majority of
Commissioners.

The African Instruments

The Commission and Court are charged with interpreting and applying a number of
regional human rights instruments, which include:

 African Charter on Human and Peoples’ Rights (“Banjul Charter”)

 African Charter on the Rights and Welfare of the Child
 Protocol to the African Charter on the Rights of Women
 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa
 Convention for the Elimination of Mercenarism in Africa
 African Union Convention on the Conservation of Nature and Natural Resources
 Bamako Convention on the Ban of the Import of Hazardous Wastes into Africa
 African Union Convention on Preventing and Combating Corruption
 OAU Convention on the Prevention and Combating of Terrorism
 African Union Non-Aggression and Common Defence Pact
 African Charter on Democracy, Elections and Governance
Asian Regional Human Rights Mechanisms

42
 Human Right Law
o The Arab and Asian states have not yet created regional human rights regimes, but
some steps have been taken in that direction.
o In Asia, despite efforts by NGOs and the U.N., governments in the region have been
unwilling in general to ratify global human rights instruments, or create a regional
human rights system.
o Asia has a fragmented human rights protection framework. Human rights mechanisms
exist at the sub-regional level, but no umbrella human rights system covers the expanse
of the Asia-Pacific.
o The Asia-Pacific is consequently the only region not to have a comprehensive human
rights protection system.
o A number of intergovernmental organisations in the Asia-Pacific count human rights
amongst their priorities. Some have adopted human rights instruments and established
human rights bodies; two have established sub-regional human rights mechanisms.
 the Association of Southeast Asian Nations,
 the League of Arab States,
 the Organisation of the Islamic Conference,
 the Pacific Islands Forum, and
 the South Asian Association for Regional Cooperation

Justification

The vastness of geographical scope of the region, the vast differences in culture, language,
political ideology and economic development among nations, coupled with a lack of a
regional organization, constitute serious hurdles to the creation of an Asian- Pacific
regional system.

43