INTERNATIONAL

HUMAN

RIGHTS

LAW
 INTERNATIONAL HUMAN RIGHTS LAW
Ludovica Poli

Exam: written → open book exam on a case to solve and to provide an opinion on it (possibility to use slides,
notes, internet resources) → a week after the end of the course
OR open-ended questions
Group activity: presentation on a specific human rights’ topic → not compulsory

PUBLIC INTERNATIONAL LAW

IHRL is a branch of law.
What is public international law? It is a body of legal norms and standards that apply between sovereign states
and other entities legally recognized as international subjects.
The issue currently addressed by international law are wide and have been developed in these years: in the
beginning it was about maintaining peace and respecting boundaries, while nowadays most of the legislation is
about cooperation, including the protection of individuals; the issues addressed by IHRL are now moving
beyond the classical questions of war, peace, and diplomacy, to include human rights, economic and trade
issues, space law, and international organizations..
International law is an independent system of law existing outside the legal orders of particular states. It differs
from domestic legal systems because:
1) it lacks a centralized legislative body, having the power to issue binding laws generally applicable to anyone:
the sources of IL are directly created and applied by the addressees of the law, so mainly by states;
2) there is no system of courts with comprehensive jurisdiction in international law and international courts and
tribunals can consider cases in which states are parties only with their acceptance: states must agree on the fact
that there are some controversies with another state that should be brought before a judge and this is a major
difference with national law;
3) there is no international police force or a comprehensive system of law enforcement and there is also no
supreme executive authority: in international law self-defense is the rule, not an exception → self-defense is a
kind of countermeasure (e.g. violation of a treaty: state B violates its obligations, so state A violates it as well as
a countermeasure to the breach done by state B), that means that a state can violate international law when it is
suffering from a violation itself from another state; self-defense instead means that I use armed force because I
suffer an aggression and I use it to stop the original violation.
If there is no centralized legislative body, then which is the role of the General Assembly of the UN? What
about the binding sources adopted within international organizations, for example EU directives and
regulations: does this challenge the affirmation that in international law we lack a central legislative body?
The UN General Assembly contains all the states and there’s the role ‘one state one vote’, however the GA has
no binding power and it is not a legislative body, but it’s a core body because it gives an authoritative body of
international law. When there’s a brand-new document adopted by the UN GA, for example the UDHR, this is
usually transferred into domestic law systems. From an international perspective, why do we care about how
states elaborate on some subjects? Practice at the basis of customary law: soft law adopted by the GA may
stimulate the production of international law norms in the form of customs or the production of treaties.
If there are some bodies, like the Parliament, that can adopt binding documents, then do we have a centralized
body? No, because it’s up to the states to be part of the international organization and these organs work based
on the consent of states: the production of some norms that is up to certain organs is still based on the consent
that states must give to such organs.
How many international courts are there? The European Court of Justice, the International Court of Justice, the
International Criminal Court, the European Court of Human Rights, the International Criminal Tribunal for the
Former Yugoslavia and Rwanda, the InterAmerican Court of Human Rights, the International Tribunal for the
law of the sea, the Special Tribunal for Lebanon, the African Court of Human Rights.
If there is a great number of international courts, why do we affirm that there’s no comprehensive jurisdiction in
international law? These courts are not based on treaties and there’s not a proper consent given by states: some
of these states were created after the UN SC resolutions.
If everything in the international legal order is based on self-defense and there’s nobody dealing with
enforcement power, then which is the role of the UN Security Council? Is it a centralized executive authority or
not? Is the UN SC a comprehensive law enforcement system? The SC may not intervene in any violation, but it
is called only when serious violations happen, for example in cases of threat to peace, violation of peace and
acts of aggression.

BIRTH OF THE INTERNATIONAL LEGAL SYSTEM

The international legal system began with the Westphalian Peace Treaties of 1648, which marked the birth of
modern states, becoming primary actors. Modern states replaced the medieval system where there was a
centralized external authority – so the Holy Roman Empire and the Pope – and it overcame the federal division
of the state by holding exclusive control over social, economic and cultural activities within their boundaries.
When the modern state has risen, the legal system was clearly state-centric: the state was the very center of the
international legal system and all the pèrinciples and norms developed in that time tried to maintain the status
quo, so the sovereignty, the sovereign independence and equality of the nation states, the territorial integrity, the
equal rights and obligations of the states, the non-intervention in others’ domestic affairs: these are all
principles imagined for maintaining the status quo of independence of the states.
During the expansionist and industrial 19th century, the notion of state sovereignty was strictly linked to the
principle of exclusive domestic jurisdiction and non-intervention in the affairs of other states. In the 20th
century there was the great impact of two world wars, resulting into the growth of international organizations
where states can bring their concerns and aimed at cooperation among states (League of Nations, 1919; United
Nations, 1945) and into the increasing importance given to human rights and international criminal law.
Another consequence of the two wars was the importance given to the individual as a subject of law itself.
Having become geographically international through the colonial expansion of the European powers,
international law became truly international in the first decades after WWII, so when decolonization resulted in
the establishment of newly independent states. At the beginning, in 1648, international law was state-centric
and European-centric: it became geographically international with the colonial expansion, but even more when
the colonization process was completed.

SUBJECTS OF INTERNATIONAL LAW

IHRL considers the individual as having rights that can be protected before international tribunals.
States are the primary subjects of international law: this branch of law was born exactly when the states were
born.
Sovereignty is a pivotal principle of modern international law and can be defined as the supreme authority
within a territory: it is the main feature of states, as well as a precondition to be considered a state, to have legal
personality as a state.
There are two different types of sovereignty: internal and external. Both these elements are present in the
definition of modern states: no authority over the state + no more internal divisions within a state.
Internal sovereignty is also described with three core elements: population, permanent territory, stable
government → definition of state: “an entity governing a territorial community effectively and independently”.
A state must have a permanent population over a territory: a population is defined as a “Whole of individuals
living together on a stable basis within given borders by way of a community”, so a population is called like
that when there is a group of people that can be called a community and that is linked to a specific territory, no
matter what differences are present among the various individuals of a population; what is not relevant in
defining whether a territory is a state or not is the uniformity in culture, the dimension of the population and the
possession of citizenship.
A state must have a territory, independently from the dimensions of it (very small territories can be considered
states too), from the existence of boundaries or territorial disputes with another state (e.g. Israel and Palestine:
if there are two states and there’s a dispute between them about a piece of territory that both consider to be
theirs, this is a problem of sovereignty over the territory which is disputed, but this doesn’t constitute a limit for
the recognition of the state as such). The fact that there are no clear boundaries is not a limit for the sovereignty
of a state, even though boundaries may be the object of disputes between states and this is an issue that has to
be regulated under international law.
A state must have a government: the exercise of authority by a state upon a population within a given territory
and this governmental authority must be exclusive (the only authority with no doubts about its powers) and
effective (able to produce law, to make sure that the law is applied and in the condition to maintain public order
and to preserve the interests of the population). It is irrelevant the form of government and the democratic
nature of the government and it is not necessary to prove that there is respect for human rights.
External sovereignty is referred to as independence. A state is independent when it is free to enter into
relations with other states and when there is no interference with other states Factual independence: a state
which is not conditioned by external forces; however, there would be no independent states because all of them
are influenced in their decisions b y external powers.
When describing external sovereignty, it is important to focus on juridical independence, meaning that the state
recognizes no authority from above except for international law, so the state doesn’t depend on another legal
order but it finds its power in the constitution / constitutive act.
There are some states that have factual independence but lack external sovereignty: the U.S. E.g. California has
territory, population and government but it lacks the external sovereignty, it is governed by a superior force, the
U.S.
Each state which is part of a federal state doesn’t have the juridical dependence necessary to be considered a
subject of international law.
There are other subjects of international law: “the subjects of international law are not necessarily identical in
their nature or in the extent of their rights”:
i) non-territorial entities (legal personality is recognized without any reference to a territorial link) →
international organizations: the personality is not recognized for their presence over a territory, but because of
the function they play into the international legal system; Holy See (sui generis subject); International
Committee of the Red Cross (sui generis subject);
ii) individuals → according to the classic approach, which looked at the international legal order exclusively in
its inter-state and state-centered dimension, international law was a law made by states for states and the
conduct of individuals was thus not governed by international law, they were exclusively legal subjects of the
domestic legal order; in other words, individuals were not the addressees of rights and obligations under
international law; individuals were considered belongings of their national State: from this perspective, they
became relevant under international law only as another State’s citizens; after WWII individuals have acquired
a limited legal personality;
iii) territorial entities → insurgents (those who fight to get control of the state against the government), national
liberation movements (those who fight for self-determination): insurgents are not necessarily the expression of
a population which is in fight for self-determination, while national liberation movements are; in these cases
territory is important and these are territorial entities → we have a national liberation movement when there’s
someone who wants to obtain self-determination (right of people to be part of their own state by becoming an
independent state or by integrating into an existing one): independence from foreign domination, from
apartheid regimes and from colonialism; insurgents want, instead, to subvert the existing government of a given
country → both of them have a link with territory: insurgents, in order to be considered subjects of international
law, have to prove to control part of the territory but their legal personality is limited and temporary; national
liberation movements simply have the aspiration to control a territory, they don’t need to prove the actual
control over a portion of territory;
iv) other actors → multinational enterprises, NGOs which play a strong role in the definition and evolution of
international law.
What about terrorist groups if they have control over a portion of a certain territory? This is a difficult question
→ e.g. ISIS: there was the exercise of control and also a sort of governmental power of the group.
In general, terrorist groups which pose their existence on the rejection of any elementary idea of sovereignty
and of international law cannot be considered subjects of IL. Considered from the point of view of the principle
of effectiveness, there may be some doubts about terrorist groups because as long as they exercise a form of
government, they should be considered a subject of international law.
The fact that some states may manage some controversial situations through instruments similar to the ones
used in international law does not necessarily make them subjects of international law.
International organizations are derivative subjects, established by states, and they are organizations established
by a treaty or other instruments governed by international law and possessing its own international legal
personality. International organizations may include other IOs too.
International organizations are different from non-governmental organizations and the requirements in order to
be an IO are: i) there must be a distinction in terms of legal powers and purposes between the organization and
its member States; ii) the organization shall be capable of putting in place, through its organs, internationally
relevant acts and facts according to its conferred power.

SOURCES OF INTERNATIONAL LAW

There’s no centralized legislative authority that produces norms and rules, there is no binding document that
can be adopted by the UN SC; however, these two elements – relevant for the production of the law – don’t
challenge the fact that law, in the international legal system, is mainly based on the consent of the states and
that is why international law is usually said to be a consensual or a consent-based regime.
Two main sources of international law: treaties (expressed consent); customary law (implied consent): once a
custom is in force, it binds every state.
ICJ Statute, Art. 38: “The Court, whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply: international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states; international custom, as evidence of a general practice accepted
as law; the general principles of law recognized by civilized nations; subject to the provisions of Article 59,
judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law”.
When the ICJ Statute was adopted, the general principles of the law recognized by civilized nations was
properly referred to the fact that a part of the world was considered to be civilized, whereas the other part not:
there was a clear distinction. Nowadays these wordings are a starting point of reflection for scholars and don’t
make sense. These general principles are now referred to the principles that, despite the differences among the
legal cultures, are present in different systems.
Art. 38 mentions subsidiary means of interpretation: the court may use decisions of other courts, both
international and internal, and the decisions of scholars to better clarify the law; however, these elements cannot
be used to produce new laws.
International conventions: “contesting states” because this specific provision is applicable to cases where
there’s a dispute between states → in case of dispute, the Court can apply international conventions as far as
these are recognized by the contesting states: this defines the nature of treaties, that is the fact that treaties have
force only in those states where they were ratified.
International custom: practice of the persistent objector, according to which if a state, during the
implementation of a new custom, opposes to it, then it can be considered as not bound by the new custom,
however this is an attempt which has been made for years but still it is not put in practice, because if the
majority of states accepts the new custom, then the persistent objector can be considered in violation of
international law; since international customs are connected to the attitude of international law, if states want to
be subject of international law but they are in violation of international customs, this may generate a process of
reinforcement of the customary norms.
Customary law consists of two elements: an objective (or material) and a subjective (or psychological) one. The
objective element is the so-called diuturnitas, that is to say a consistent and uniform repetition of a specific
conduct over time (“general practice”); the subjective element is the opinio iuris sive necessitatis, which
consists of the belief that the specific conduct is legally due, that is to say imposed by a legal norm.
When a head of a state comes to an official visit to another state and he walks on a red carpet, this is a specific
conduct, an element of a certain protocol which is repeated; however, this behaviour is not legally due, so this
action is not a custom.
How long does it take to have a customary law norm? We don’t have a lapse of time, it depends on the number
of states and on the frequency of adoption of a certain act. A significant number of states need to adopt a certain
conduct in order for the latter to become a custom.
How can diuturnitas and opinio iuris be assessed? Jurisprudence: internal case law, the legislation of a state,
how a state behaves outside (multilateral fora).
Is one of the two elements more important than the other? Opinio iuris is much more difficult to be assessed,
however the important issue is to recognize whether a certain behaviour is repeated because it is considered
legally due or not. If you consider only practice, it is easier to say that a certain conduct is a custom; you need
to look at opinio iuris in order to verify if the conduct is legally due.
Treaties: called agreements, covenants, charters, conventions → definition: a binding agreement stemming
from the free will of two or more subjects of international law, aimed at creating, modifying or extinguishing
international legal obligations and governed by international law.
The rules concerning treaties are codified in two conventions: VCLT of 1969 and VCLT of 1986 (IOs and
states, IOs).
The way treaties are adopted and modified is the object of international law norms, customary law norms that
have been codified in the two VCLT Conventions.
Differences between customs and treaties:
customs are oral sources that might be transferred into treaties through a process of codification; they are
binding in all the states, no matter whether they have taken part to the formation; they are binding from their
birth (even though it is difficult to identify the moment in which a custom came into force) and there is no
option to avoid their application as long as they are into force (no persistent objector theory can be accepted);
treaties are written sources; states may take part to their formation or adhere to treaties already in force; they are
binding only for states which decide to ratify them; they are binding from their entry into force, so it is possible
that a state decides to adhere to a treaty 10 years after the writing of the latter (for those states participating in
their adoption or from ratification for states adhering later); denunciation or recession is usually possible (so
when the state decides not to be anymore bound by a certain treaty).

HIERARCHY OF THE SOURCES OF INTERNATIONAL LAW

Domestic legal orders are characterized by the existence of a hierarchy of the sources of law: generally, at the
top of the hierarchy, there is the constitution. The consequence is that any source must comply with those of a
higher rank (primacy).
International law does not provide a hierarchy of the sources (in particular there is no difference between
treaties and customs), it organizes them into three levels according to whether the type of source is foreseen
elsewhere:
1st level – customs: they spring out spontaneously from practice and they are the expression of our primitive
conception of a legal system → states perceive the need to perform in conformity with customs;
2nd level – treaties: they are foreseen in the customary rule “pacta sunt servanda” → the binding nature of the
treaties is based on a customary norm, so the state decides that in international law, once you have assumed an
obligation, then you are called to respect and apply it;
3rd level – acts of IOs: provided under the treaty establishing the IO → when we have treaties that permit, in
specific cases, the adoption of binding norms by specific organs, then we are dealing with 3rd level sources
(case of the UN Charter: the UN SC can adopt binding decisions in cases of serious violations).
Since there is no hierarchy of the sources, treaties may be derogated by subsequent customs and customs may
be derogated by treaties, which are lex specialis. The only exception was after WWII, when a bulk of
peremptory rules of customary international law emerged: jus cogens norms, that are peremptory rules,
customary law norms, that cannot be derogated → examples: prohibition of torture, genocide, racial
discrimination, apartheid, self-determination of states, slavery, acts of aggression.
There is also another regime of hierarchy between the acts adopted by IOs and their treaty: acts adopted by IOs
must always comply with the treaty establishing the IO. For example, the organs of the UN cannot act against
the UN Charter.

INTERNATIONAL RESPONSIBILITY
When does international responsibility arise? Subjective + objective elements of the internationally wrongful
act.
What does the responsibility regime consist of? There is a new legal regime, called ‘responsibility regime’:
rights and obligations of the injured party and the offender.
A wrongful act is a violation of an international norm that gives rise to the responsibility of the state, or (and/or
other states) a new legal relationship that is added to the existing one between the offending and the injured
state: it is not sufficient to see that a violation was made, we must be sure that the violation is a attributable to a
specific state.
State responsibility rules are generally referred to as ‘secondary’, as they only apply when a ‘primary’ rule has
been violated.
It’s not easy to attribute a wrongful conduct to a specific state: in international law, since the state is a complex
entity, we have to consider who is actually acting or working or omitting something in the name of the state.
Art. 2 Draft Articles: there is an internationally wrongful act of a state when conduct consisting of an action or
omission (a) is attributable to the state under international law; and (b) constitutes a breach of an international
obligation of a state.
Subjective element of the violation: attribution of an action or omission to the state → acts done by organs of
state (de iure and de facto organs); acts of persons under the direction or control of the state (when, for
example, the state is giving information to certain individuals to do something against another state; notion of
effective control v. overall control); acts of private individuals (even simple individuals, not working under the
control of the state, can commit actions attributable to the state whenever the state acknowledges this conduct
as its own); exceptional hypotheses (in the absence or default of the official authorities).
Objective element of the violation: it is the breach of an international obligation, in absence of circumstances
precluding wrongfulness (whenever there is no justification for a certain violation) → Art. 12 Draft Article:
there is a breach of an international obligation by a state when an act of that state is not in conformity with what
is required of it by that obligation, regardless of its origin or character.
Circumstances precluding wrongfulness and making violations legitimate → Art. 20: consent; Arts. 21-22:
self-defense and countermeasures (in international law, self-defense is the rule); Art. 23: force majeure; Art. 24:
distress; Art. 25: state of necessity.
Consequences of the violation: the violation of a rule of international law does not eliminate the binding nature
of the obligation violated and it determines two orders of consequences → 1) obligations of the offending state
towards the injured state: cessation, reparation and non repetition; 2) rights of the injured state: cessation,
countermeasures, reparation.
Aggravated responsibility regime → in case of violation of a jus cogens norm: the circumstances precluding
wrongfulness cannot be invoked; an aggravated regime emerges with obligation bearing upon the entire
international community (+ any State may invoke international responsibility)
1) states have to cooperate to put an end to the violation by lawful means + 2) they cannot recognize as
legitimate the situation that has been created nor provide help / assistance to its maintenance.

THE RISE OF INTERNATIONAL HUMAN RIGHTS LAW

What do we mean with ‘human rights’? Human rights are sometimes referred to as fundamental rights, basic
rights, inherent rights, natural rights, birth rights.
Which basilar features can be derived from these definitions? Human rights are fundamental basic human rights
because they are attributable to an individual just because of his human nature, just because he is an individual.
Fundamental rights can be considered from different perspectives: 1) rights as claims based on particular values
and principles (philosophical and political conceptions); 2) rights as legal entitlements that entail rights and
freedoms, rights validated in recognized sources.
Public international law: set of rules, norms, and standards generally recognized as binding between States
(and International Organizations); the main sources of it are treaties and international custom (general state
practice accepted as law); it is primarily applicable to countries, rather than to individuals (with exceptions…);
it operates largely through consent, since there is no universally accepted authority to enforce it upon sovereign
states.
International human rights law: set of rules, norms and standards dealing with the protection of individuals,
and not other interests of the state. States are called to respect the HR of any individual (no citizenship link); in
some context: judicial enforceability (states agreed to create Courts).
The position of the individual has evolved in time under the international legal system and there are three main
stages of this evolution:
1- for centuries international law did not consider individuals as such: they were conceived as subjects of a state
→ Westphalian notion of state sovereignty and non-interference in domestic affairs by other states, thus
meaning that when international law was focused on the protection of modern states, there was no interest in
looking at how the states were considering individuals;
2- within the state, the value of citizenship, so the idea that there might be a specific link between certain
individuals and the state, started to grow: with the emergence of the idea that there might be an interest of the
states in protecting their own citizens, specific principles of international law emerged → diplomatic protection
as a prerogative of the state to act internationally against another state to protect its own citizens abroad, whose
interests have been injured by another state (e.g. state A must recast reparation to state B because the latter
caused damage to a citizen of state A: it’s up to state A to decide whether it is suitable to act internationally and
to ask for reparation); but still, no obligations towards citizens of another state and still diplomatic protection is
not anyhow similar to the protection of human rights → diplomatic protection vs human rights protection:
diplomatic protection can be activated only for protecting the citizens of its own state and there’s no possibility
to protect non-citizens + the state may decide not to act under diplomatic protection, the latter might be
activated also for the protection of fundamental rights, but this is only one of the possibilities that a state has;
3- individuals per se, with no link of citizenship, are addressees of fundamental rights and these rights have to
be respected by any state and anytime: the definition of a limited legal personality of individuals is the result of
WWII.
Human rights law: rights and freedoms directly recognized to the individual as such (not as a citizen of a state)
– International criminal law: obligations whose violation determines the individual’s international criminal
responsibility.
What obligations are directly applicable to individuals? The prohibition to commit international crimes, such as
genocide, crimes against humanity, war crimes, crimes of aggression.
Since 1945, we have had the development of international criminal law, prohibiting the commission of
international crimes, and establishing that the latter are so serious that any individual who commits an
international crime can be prosecuted and condemned at an international level.
International human rights law as a reaction to the experience of “legal lawlessness” → the experience of
WWII showed that the violations committed were not against the law, but they were made because of the law:
the law made it legally possible to commit certain violations and some of the violations were committed by
states themselves, for example racial discrimination. Most of the violations of WWII were recommended by
states: this stimulated the protection of human rights.
Even before the end of WWII there were documents adopted within domestic systems that contributed to the
emergence of human rights and were based on the idea of natural law (rights intrinsic to human nature).
English Bill of Rights, 1689: it created separation of powers, limited the powers of the king and queen,
bolstered freedom of speech.
The French Declaration of the Rights of Man and of the Citizen, 1789: it introduced a new social and political
order, founded on new principles; it served as the basis for many Constitutions.
The U.S. Bill of Rights, 1791: its overall theme is that the citizen be protected against the abuse of power by the
officials of the States.
All these documents were a source of reflection and debate, but they were not internationally relevant because
they provided obligations upon the state towards its own citizens: these obligations were not assumed by states
at an international level.
These documents presented some shortcomings, due to the historical period in which they were elaborated: the
focus was more on women and men instead of human beings and they addressed class interests.
THE UN CHARTER
With the UN Charter, for the first time states assumed the obligation to protect citizens in international relations
and they decided to be bound, in their relationship between other states, by the protection of individuals.
First attempt to bring the protection of human rights at an international level: the protection of the individual,
realized within the jurisdiction of the various states, as an engagement that states undertake in their
international relations.
The main aim of the organization was to establish a collective security system (UN Security Council, Chapters
VII-VIII UN Charter) in order to prevent the recourse to war and to the use of armed forces by states.
When we consider human rights within the UN Charter framework, we must underline that the idea behind the
engagement of states in protecting human rights was aimed at improving security at an international relation
through the protection of human rights.
Preamble of the UN Charter: “We, the people of the United Nations determined… to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women
and of nations large and small”. → the element of individual dimension, with the reference to dignity and
equality between men and women + equality between all nations: reference to both individuals, human beings,
and nations.
Human rights and fundamental freedom are one of the aims of the organization (Art. 1).
Arts. 55-56 codify the commitment of the Organization to promote “the universal respect for and observance of
human rights” and the commitment of member states “to take joint or separate action in cooperation with the
organization”.
Under the UN Charter there’s a dual intention: protection of peace and protection of human rights and the idea
is that through the protection of human rights it’s easier to achieve a situation of peace among states.
Universal Declaration of Human Rights: it is considered the cornerstone of the normative development of
human rights; it was adopted on 10 December 1948 by the UN General Assembly by 48 votes to none, with 8
abstensions (most notably: South Africa that was against the prohibition of racial discrimination, Saudi Arabia
that was contrary to the freedom to choose religion, Soviet Union and its satellite states that scared the impact
of human rights on the sovereignty powers, it was seen as a challenge to sovereignty). It was a non-binding
document, a soft law instrument, although its rights have now acquired the status of customary law norms.
During the negotiations, states considered whether to insert in the Charter a catalog on human rights or to have
a different document, whose value was discussed (binding or non binding). Finally, the decision was for a
non-binding document: the UDHR was conceived to be a sort of educational tool for states, an instrument with
a strong moral value but not legally binding.
Despite the Declaration not having a binding nature, most of the human rights considered under the Declaration
are now part of customary law, meaning that the declaration per se is not binding, but human rights provided
there are customary law.
The UDHR was adopted by 48 votes, there were no contrary votes but significant abstensions done by states
which, at the time, feared the contents of the Charter.
Preamble of the UDHR: Whereas recognition of the inherent dignity and of the equal and inalienable rights of
all members of the human family is the foundation of freedom, justice and peace in the world (...).
Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood. → brotherhood: between
individuals; solidarity: between states.
● Equality = equal treatment, equality before the law → all human beings are born free and equal, all
individuals have the same rights, all the people have the right to be treated equally; it deals with
treating a group of persons fairly despite the differences → individuals or groups of individuals which
are in comparable situations should not be treated less favourably simply because of a particular
characteristic:
- right not to be discriminated on various grounds, such as race, colour, ethnicity, age, religion,
sexual orientation, gender;
- right to positive discrimination: different treatment that favours a person to guarantee equal
opportunity → positive discrimination is an instrument which helps people in starting from the
same point for achieving a specific goal;
 - direct and indirect discrimination → direct discrimination: provision stating who can enter into
a public building and who cannot; indirect discrimination: building with no elevator for persons
with disabilities;
- Art. 2 UNDecl; art. 7 UNDecl equality before the law.
● Dignity = human dignity, prohibition of torture → the right of a person to be valued and respected for
their own sake, and to be treated ethically:
- human dignity is the recognition that human beings possess a specific value intrinsic to their
humanity and as such are worthy of respect simply because they are human beings;
- the respect for human dignity is: the raison d’etre for all human rights and a right per se, it is
key to measures of protection against new threats;
- dignity as the respect of physical and mental integrity → what if an individual agrees to have
his body injured?;
- major problem: can we define dignity once and for all? is there an objective and impartial
definition? is there a general standard for defining dignity? or does it depend upon personal
perception? → some acts are, by definition, against dignity (e.g. torture), but what about other
acts that depend on personal beliefs?
- it is difficult to provide a definition of dignity: it depends on time, on space and the different
personal perceptions.
● Freedom = freedom of expression, freedom of movement; freedom from constraints, you can decide
what you want to do → freedom is limited by definition: there is no generic right to freedom, but its
role is evident in many rights → everyone has the right to freedom of thought, conscience and religion.
● Solidarity

THE 1966 COVENANTS

The adoption of the UDHR inaugurated a long era of normative production: it was the very beginning of a
process devoted to the production of binding norms.
The initial idea was to have the Declaration as such transformed into a binding legal instrument, as a unique
catalog collecting civil and political rights, as well as economic, social and cultural rights, and the added value
was that all human rights are interconnected and interdependent: this solution would have had the significance
that all rights are mutually reinforcing each other and interdependent; however, the final decision was to have
two different documents.
However, civil and political rights were of immediate applicability (states have primarily to abstain from
interfering with the rights of the individuals); economic, social (and cultural) rights required progressive
measures of implementation and also called for budgetary commitments.
In 1952 the UN General Assembly decided to elaborate two separate Covenants, to be implemented through
different techniques: International Covenant on Civil and Political Rights 1966 (in force 1976); International
Covenant on Economic, Social and Cultural Rights 1966 (in force 1976). Their adoption launched a period of
intense treaty-making activity → two twins covenants.
The reason behind the decision to split the catalog of rights in two different instruments is that civil and
political rights were immediately understood as rights of immediate applicability because most of them require
states to refrain from violating human rights and from adopting conducts which are against human rights →
civil and political rights: right to vote; right to life; prohibition of torture → e.g. prohibition of torture: states are
supposed not to commit torture (even though civil and political rights require also positive obligations).
On the contrary, economic, social and cultural rights imply a positive obligation by definition and their
fulfillment is linked to the action of states → e.g. right to health: is the access to health equal in a rich and in a
poor country? no! poor countries should decide how to use their budget to improve health, housing, and cultural
integration of minorities.
Usually, these rights require progressive measures, that means that states have to take steps in order to improve
the enjoyment of those rights, and the improvement is linked to the starting position of the states.
Since we have two different natures for the rights, within the UN system the General Assembly decided to
elaborate two separate covenants to be implemented in different ways. The two Covenants were both adopted in
1966, but it took 10 additional years to have these documents entered into force.
After the adoption of the Covenants, a period of intense treaty-making activity in order to improve human
rights took place.

THE CORE HUMAN RIGHTS TREATIES

These are the main nine core human rights treaties adopted within the UN, important for checking the
compliance of states with their contents:
International Convention on the Elimination of All Forms of Racial Discrimination 1965 → protected for their
condition of vulnerability within a society;
International Covenant on Civil and Political Rights 1966;
International Covenant on Economic, Social and Cultural Rights 1966;
Convention on the Elimination of All Forms of Discrimination against Women 1979 → protected for their
condition of vulnerability within a society;
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984;
Convention on the Rights of the Child 1989 → protected for their condition of vulnerability within a society;
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families 1990; International Convention for the Protection of All Persons from Enforced Disappearance 2006;
Convention on the Rights of Persons with Disabilities 2006 → protected for their condition of vulnerability
within a society.
Which was the focus of states in developing human rights protection? Which were the binding forces?
The UN was not the only context in which human rights developed:
American Declaration on the Rights and Duties of Man 1948;
American Convention on Human Rights 1969;
European Convention on Human Rights 1950;
European Social Charter 1961;
EU Charter of Fundamental Rights 2011;
Arab Charter of Human Rights 2004;
African Charter on Human and Peoples Rights 1981 → very innovative document in which access to safe
abortion is recognized as a human right;
ASEAN Human Rights Declaration 2012.

THE REGIONAL DIMENSION OF THE RISE OF INTERNATIONAL HUMAN

RIGHTS LAW
THE COUNCIL OF EUROPE
The Statute of the Council of Europe was adopted in May 1949 and came into force in August 1949 with the
aim to “achieve a greater unity between its members for the purpose of safeguarding and realizing the ideals
and principles which are their common heritage and facilitating their economic and social progress” (Art.1).
Art. 3 of the Statute defines as a condition for membership that ‘every member of the Council must accept the
principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and
fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council’.
Negotiations of a treaty on human rights were launched in August 1949 and finalized in September 1950. The
European Convention on Human Rights was signed in November 1950 and entered into force in September
1953.
An important element of ECHR is membership: Article 59 says that only members of the Council of Europe
can become parties to the ECHR; instead, there’s no provision that says that, in order to be part of the Council,
you have to ratify the ECHR. All the members of the Council of Europe have ratified the Convention.

THE CASE OF RUSSIA

On 15 March 2022, hours before a vote on its expulsion, Russian Federation filed a notice of voluntary
withdrawal from the Council of Europe → Article 7 - CoE Statute “Any member of the Council of Europe may
withdraw by formally notifying the Secretary General of its intention to do so. Such withdrawal shall take effect
at the end of the financial year in which it is notified, if the notification is given during the first nine months of
that financial year. If the notification is given in the last three months of the financial year, it shall take effect at
the end of the next financial year”.
What Russia did was possible, but it had to wait until the end of the financial year; however, the Committee of
Europe had already suspended Russia and decided not to take into consideration the request of withdrawal –
which was a political act – and decided to expel Russia with immediate effect from the organization.
However, the Committee of Ministers (which had already suspended it, on Feb. 25, from its rights of
representation, ex Article 8 of the Statute) formally expelled Russian Federation from the organization on 16
March → Article 8 - CoE Statute “Any member of the Council of Europe which has seriously violated Article 3
may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw
under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased
to be a member of the Council as from such date as the Committee may determine”.
Following its expulsion from the Council of Europe, the Russian Federation ceased to be a High Contracting
Party to the ECHR on 16 September 2022.
Art. 58 ECHR → “1. A High Contracting Party may denounce the present Convention only after the expiry of
five years from the date on which it became a party to it and after six months’ notice contained in a notification
addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting
Parties. 2. Such a denunciation shall not have the effect of releasing the High Contracting Party concerned
from its obligations under this Convention in respect of any act which, being capable of constituting a violation
of such obligations, may have been performed by it before the date at which the denunciation became effective.
3. Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a
Party to this Convention under the same conditions.”
Expulsion from an international organization is a serious form of punishment that states can use when a state
clearly infringes the rules and goes against the main aim of the Convention.

THE EUROPEAN CONVENTION OF HUMAN RIGHTS

The ECHR consists in two main parts:
1- Title I lists the main rights and freedoms (Arts. 2 to 18). This catalog is formulated in very general terms,
allowing an evolutionary interpretation. In the years, the ECHR has constantly evolved thanks to the case-law
of the Court. The Court’s case-law makes the Convention a “living instrument”, able to adapt to the changes
taking place in our societies (for example, in the 50s the environment was not a human rights issue);
2- Title II (Articles 19 to 51) sets up the Court and its operating rules: different formations in which the Court
works (single Judge, Committees, Chambers, Grand Chamber); the types of application; the conditions of
admissibility of applications. This part is currently the outcome of a major change in the system, realized
through the adoption of Protocol.
The Convention is considered to be a milestone in the development of international human rights law: it was
the first instrument to give effect and binding force to certain of the rights stated in the UDHR; it was also the
first treaty to establish an international organ to ensure that the states parties fulfilled their undertakings.
Along with states, also individuals can apply to the Court, provided that they have exhausted all domestic
remedies.

OTHER HR TREATIES OF THE COUNCIL OF EUROPE

European Social Charter (revised) 1996;
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987;
Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application
of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo 1997);
Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse
2007;
Council of Europe Convention on preventing and combating violence against women and domestic violence
(Istanbul 2011).
THE ORGANIZATION OF AMERICAN STATES
The Organization of American States is the world’s oldest regional organization. It dates back to the First
International Conference of American States (held in Washington, D.C., from October 1889 to April 1890),
during which the International Union of American Republics or Pan-American Union was established. The
Pan-American Union was reconstituted, in 1948, as the Organization of American States, with the signing in of
the Charter of the OAS, entered into force in December 1951. 35 States parties, including USA and Canada.
The current HR system is a result of three main steps:
1- The American Declaration of the Rights and Duties of Man, 1948 → adopted in April 1948 during the
Ninth International Conference of American States. The Declaration was initially not intended to be a binding
instrument;
2- Establishment of the InterAmerican Commission on Human Rights, 1959 → established as a principal
organ of the OAS with the aim of promoting and protecting human rights. By 1961, it had begun to carry out
on-site visits to observe the general human rights situation in a country or to investigate specific situations. In
1965, it was expressly authorized to examine complaints or petitions regarding specific cases of human rights
violations. The current version of the Statute was adopted in 1979.
3- Adoption of the American Convention of Human Rights (ACHR) and establishment of the
Inter-American Court of Human Rights (IACtHR) 1969 → in 1969, the American Convention of Human Rights
(ACHR) was adopted and entered into force in 1978. In its first part, it establishes States’ obligations and
enunciates the human rights protected thereof (similar to the ECHR because it has a catalog of human rights).
In its second part, it creates the InterAmerican Court of Human Rights (IACtHR) and defines the functions and
procedures of both the Commission (no international role) and the Court (juridical function).
While the Declaration is per se not binding, in its activity the Commission will check the performance of
states, the compliance of states to human rights, applying the Convention for those who have ratified it and the
Declaration (even if it’s not a binding document) with reference to the states which didn’t ratify the Convention.
Canada and the US are not party to the Convention, but still the Convention can measure its performance with
reference to the Declaration of the Rights and Duties of Man.

HUMAN RIGHTS BETWEEN UNIVERSALISM AND REALISM

The two concepts of universal nature of HR are those that can be derived from the Vienna Declaration and the
Programme of Action → 2 documents adopted in 1993 at the end of a huge conference on HR. The World
Conference on Human Rights reaffirms the solemn commitment of all States to fulfill their obligations to
promote universal respect for all human rights and fundamental freedoms for all in accordance with the Charter
of the UN, other instruments relating to human rights, and international law. The universal nature of these rights
and freedoms is beyond question.
Universality is related both to the nature of the rights and to the acceptance in terms of scope of application →
the nature of these rights support their legitimacy, on the other hand, they are universal because they should be
applied to everyone everywhere.
Recognition is something that the State does, but their validity does not come from the State validity, they pre -
exist.
The debate on the universality of HR:
1. universality is invoked as a cornerstone of the HR system, inherent to HR discourse, the Universal
declaration of HR. On the one hand, we use universalism as a strong slogan in the HR protection.
2. Since the very beginning, universality has been strongly criticized (mainly based on cultural relativism).
American Anthropology Association, Statement on HR in 1947: “How can the proposed declaration be
applicable to all human beings and not be a statement of rights conceived only in terms of the values prevalent
in the countries of western Europe and America?”. On the other hand, the idea of cultural relativism is that
cultures are different and the definition of morality of an action is a cultural element → what we perceive as
moral, good depends on our culture. If we consider the definition of values and morality as a cultural issue, we
cannot agree that human rights are universal because the perception on HR depends on culture.
Which are the limits of universalism and cultural relativism?
1. universality → considering HR as universal is actually applying an ethnocentrically western construct,
something that comes from the experience of people and States in western countries. Someone also says that
insisting on the idea of universalism is also a way to fuel neo-colonialism and stereotypes (victims and saviors)
→ the idea of universalism supports the division of people in the world in 2 categories: those who know the
way and those who need to be helped.
Democracy, HR are believed to be (according to someone) used for ideological purposes, they mask the intent
of a political nature = promoting liberal democracy.
In HR there is also a sort of over emphasis of the individual / individualism which brings a very poor reference
to individual duties and to other components of the society (like families, community → the African Charter is
the only document that mentions collective dimension + duties towards the society, family).
2. cultural relativism → if we consider that the moral system derives from culture, and that from different
cultures derive different moralities, then we should accept different moralities, we should accept the culture
according to which girls cannot study. Everything is connected to culture, we should accept everything. If we
deny universalism, we are going to accept any kind of violation. Recognizing that moral systems are linked to
cultures and that different cultures produce different moralities implies tolerance for any morality… § It is true
that cultures are space and time conditioned, but culture is not static and homogeneous, it is rather a dynamic
process. If we are focused on cultural relativism, we ignore that cultures are not fixed and static → cultures are
in continuous evolution, something that may not be accepted in certain times, may be accepted in other times.
The good and bad side of both → universality has a good side, which is the elaboration of minimal common
standards (States decide that there are certain principles which must be guaranteed to everyone), but it also has
a bad side which is arrogance (someone knows the way and others not). Similarly, relativism has a good side:
respect for different ways, but it also has a bad side: inaction or indifference.
Was the Universal Declaration a truly universal document when it was adopted? 56 States UN Members, 8
abstentions + minimal participation from Asia and Africa. HR and the Universal Declaration have been rather
universalized in time → they are leading to an universalization of HR.
If we consider universalism in terms of global acceptance, we may say that at that time, there was not
universalism in terms of HR. In terms of effectiveness of protection we have certain rights that should be
applied to everyone, but as a matter of fact, they are not applied to everyone, there is tension between: a set of
rights that should apply to everyone at all times, and a lack of shared understanding + limited recognition +
poor application.
In conclusion, we may affirm that universality is not actually a fact, but a worthwhile / worldwide project → it
is something that brings us and the international community at discussing, agreeing upon and practicing the
principle of governance, we should benefit all individuals equally.

→ Female genital mutilation

It is the total or partial removal of female genitalia for non medical reason, usually carried out by traditional
female practitioners. It is a traditional socio-cultural practice and initiation rite based on beliefs surrounding
female sexuality and purity. Practiced in many African, Middle-Eastern and Asian countries and immigrant
communities, affecting over a hundred million girls and women.
In terms of HR it is considered a HR violation and it results in pain and long lasting effects in the women lives;
it violates rights of the girl-child and women (freedom from torture and other illtreatment; right to health, right
to nondiscrimination).
Human rights instruments, treaty bodies and special procedures have classified it as a form of gender-based
violence → the violence is realized against a category of people because of the roles that are attributed to them
culturally. This practice is carried out on women not only because they are biologically female, but because of
their role in society, because they must be pure for their husband when marriage comes.
HR treaties provisions:
● CEDAW (Convention Against Violence on Women) – art. 5 requires States to work against those practices
that are based on the inferiority / superiority of one of the sexes and that support stereotypes against men and
women. This practice goes against this art.
“Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men
and women, with a view to achieving the elimination of prejudices and customary and all other practices which
are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men
and women.’’
● Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa– art. 5
requires States to adopt legislation prohibiting all forms of genital mutilations.
“States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human
rights of women and which are contrary to recognised international standards. States Parties shall take all
necessary legislative and other measures to eliminate such practices, including: (…) b) prohibition, through
legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalisation
and para-medicalisation of female genital mutilation and all other practices in order to eradicate them.’’
The prohibition and criminalization of FGM is an important step (as a public rejection of the practice and as a
deterrent) to protect women’s rights. However, legal measures alone have limited effectiveness.
1. Which lesson learned can be derived from field experience in dealing with this phenomenon? Importance of
community-based rather than individualistic approach to changing social convention. Since FGM is strictly
linked to community, culture, it is much more useful to have a community approach, rather than an
individualistic one → law is not sufficient, what needs to be done is work on the cultural factor → prohibition
is helpful if you already perceive the practice as wrong
2. What States and the International Community should do to deal with it? Does language have a specific role?
Legislative measures may not bring a change in practice unless they are complemented by programmes directly
engaging affected communities. Language does matter: cutting is non-judgemental; mutilation is judgemental
3. Does this tell us something about the clash between universalism and cultural relativism? Rather than
focusing on a dichotomy of abstract principles versus immutable cultures, dialogue based on agency of local
actors and sensitivity of external actors → principles are not immutable in time, need to consider the capacity to
be aware and to instaure a dialogue is important.

MONITORING HUMAN RIGHTS: THE UN SYSTEM

At the very beginning, human rights developed with the adoption of a number of covenants within the United
Nations; then, regional systems started to develop.
How is the compliance of states to these obligations checked at a universal level? What are the different control
activities that may be implemented to verify states’ compliance with these obligations?
There’s a dividing line between monitoring systems and adjudication systems: those systems which are focused
on monitoring and supporting the performance of states are monitoring systems, whereas those systems which
naturally provide for an international court and a judge that identify whether a violation took place and to find
the consequences of a certain violation are the adjudication systems.
The UN system has a monitoring system: there are courts and tribunals in regional systems, but not at the UN
level.
The UN system: there are a number of institutions and bodies called to work on the monitoring of human rights
that are usually divided into charter-based bodies and treaty-based bodies. This distinction is important to
identify the normative framework in which these institutions work.
Everything within the UN relevant for human rights protection is coordinated by an office, that is the Office of
the High Commissioner for Human Rights: this was established in 1993 by the General Assembly, with the
purpose of maintaining and coordinate human rights activities; it is independent from States, a subsidiary organ
of the UNGA and it coordinates the activity of charter-based and treaty-based organs. It was established as a
result of the acute politicization and lack of credibility of its predecessor (the Commission of Human Rights). It
is a subsidiary organ of the UN General Assembly. It maintains an ongoing review of HR records of UN
members through the UPR and examines situations concerning gross and systematic violations of HR.
CHARTER BASED BODIES
Human Rights Council: it is an intergovernmental body, composed of 47 states, and it has the main aim to
overwiev human rights protection within the UN members.
The Council may do this kind of monitoring activity through three activities:
1) the possibility to consider gross violations of human rights happening in one state in public debate and most
of the sessions of the Council are devoted to consider the situation of human rights in a particular state;
2) ‘complaint procedure’: this procedure is called ‘compliant’ but it is not a claim, but a way for individuals and
NGOs to bring specific cases to the attention of the HR Council, it may keep the situation under review and
appoint an independent expert to monitor it and report. The second method is confidential, not public, and the
Council may decide to keep the situation under control or to move it under a public situation procedure.
These procedures cannot be used for a single violation of human rights, even if it is a serious one: all the
activities on which the Council is focusing are situations concerning gross and systematic violations.
A second major activity that the Council performs is to maintain an overview on human rights performance in
general, not necessarily connected to a serious violation: this is performed through a specific procedure, named
UPR – Universal Periodic Review.
UPR: it is a peer-to-peer review mechanism, meaning that states evaluate and assess the performance of other
states.
Every cycle of this procedure lasts four years and a half:
it starts with the preparation of information towards review about the performance of one state in terms of
human rights protection and this information is collected into three different documents → 1) States’
Information, that it’s the state per se preparing a report about itself, usually insisting on the success achieved; 2)
Summary of Stakeholders and NGOs submission providing for what a state lacks; 3) Compilation of the UN: all
the documents prepared by the UN regarding the protection of HR in a certain state are very important.
Working Group on the UPR: then there’s a group of states preparing a draft report that is produced in an
interactive environment, where there’s a discussion between the states that are reviewing and the states under
review. Every state may ask questions and provide comments on the performance of the state under review.
Within the working group, every state of the UN may interact and take part in the debate.
The group meets in Geneva for three two-week sessions each year, it examines 14 states per session, 42 per
year.
Then, Human Rights Council general session: the Council considers each outcome document for one hour,
reviewed states, Council Member and Observer States and other stakeholders are given the opportunity to
express views before the adoption of the outcome document. The outcome documents are adopted by the
Council and usually contain recommendations for the states. States accept the responsibility to implement the
recommendations contained in the report and may ask for technical assistance to UN organs in order to improve
HR protection.
Implementation of outcomes: responsibility of the states concerned, which is encouraged to conduct broad
consultations with all the relevant stakeholders; there’s a voluntary fund for financial and technical assistance to
be strengthened and operationalized. National or regional UN representations to start assisting states upon their
request. Financial and technical assistance should support national needs and priorities.
Special procedures: they are independent experts that have the mandate to report and advise on human rights
from a thematic or country-specific perspective. They are UN independent human rights experts that focus on a
specific issue, they are non-paid and elected for a 3-years mandate that can be recounted for another three years.
There are currently 45 special thematic procedures and 14 country mandates.
These experts are called ‘special rapporteurs’ or ‘independent experts’, they can take country-visits, can be
involved into a dialogue with the governmental authorities, they work to keep the situation of human rights in a
country or on a thematic constantly updated.
E.g. Independent Expert on the enjoyment of all human rights by older persons: focus on the condition of older
people deprived of liberty.
Focus on a specific topic and explore arguments connected to the rights considered.

TREATY BASED BODIES

The nine Core Conventions establish, within their treaty or in an additional protocol, a committee which is
called to monitor the compliance of states to their provisions and they are called treaty-based bodies because
their founding principles are within the treaty, not in the charter per se.
The treaty based bodies are engaged in a number of activities:
1) reporting process → states party to the relevant treaty prepare periodic reports and submit these
reports to the committee, that recalls the reports; the main purpose of the reporting process is for the
treaty bodies to examine the level of the state’s implementation of its obligations under the treaties; the
preparation of the report should be a chance for states to consider what is going properly and what is
still difficult to be achieved, it is an opportunity to assess and debate human rights issues in the country
and identify problems and areas that may require further attention;
2) individual complaints → treaty bodies can receive complaints, communications or petitions from
individuals regarding violations of rights under the relevant treaties; the procedure for submission of
individual complaints may either be contained within an article of the treaty or it may be established by
a separate options protocol to the treaty; states can freely decide whether to recognize this competence;
even though treaty bodies are quasi-judicial mechanisms, there is no way to enforce their
recommendations and decisions; nevertheless, state parties are expected to implement the
recommendations and provide an appropriate remedy to the complaint → the committee considers the
case and can decide whether there has been a violation or not and this procedure is similar to the
adjudication procedure, because there’s a third subject (the committee) that decides whether a state has
failed in applying a norm or not → huge difference: this is not a judgment, an adjudication procedure,
because these treaty bodies cannot adopt binding decisions, judgments, but views, they don’t have
binding powers, they cannot adopt binding decisions; however, the organ is authoritative and states are
encouraged to respect and comply with the view of the relevant committee: quasi-judicial mechanism;
3) inter-state complaints → Committee on human rights, Committee on ECS rights, Committee against
torture, Committee against racial discrimination, Committee on forced disappearances, Committee on
the rights of migrant workers, Committee on the rights of the child: these committees provide the
chance for states to present a case dealing with a violation committed by another state, but in order to
carry out this procedure both the state complaining and the state accused have to be party to the
relevant treaty; this procedure is rarely used because it has huge political consequences;
4) inquiries → Committee on ECS rights, Committee against torture, Committee on women, Committee
on the rights of persons with disabilities, Committee on the rights of the child, Committee on enforced
disappearance: some treaty bodies can intiate inquiries into well-founded allegations of serious, grave
or systematic human rights violations by a state party, if the state party has recognized this competence
(with the exception of CPED), this is a confidential procedure: the Committees first invite the state to
cooperate by submitting observations in the allegations; then they may decide to deploy one or more of
its members to conduct a confidential inquiry (also through a country visit with the State’ consent) and
submit an urgent report; the inquiry findings are submitted to the State. A six-month deadline is
established for the State to respond and inform the committee of measures taken in light of the inquiry
procedure → the competence is enjoyed by all the committees above-mentioned, but only in the case
of the Committee of enforced disappearance is ipso facto accepted by all states parties (otherwise, in
order to send inquiries, the states must have accepted the competence of the committees in question);
5) general comments → the treaty bodies produce general comments or general recommendations that
are meant to serve as authoritative guides for States on how to implement and interpret the conventions
to which they are a party and in these comments they explain in depth the content of certain rights: such
general comments can elaborate on specific articles of a convention, or provide more general guidance
for States, on cross cutting issues or general topics such as how to prepare their reports to the treaty
bodies; the process for developing and adopting the general comments includes three basic stages –
consultations, drafting, and adoption. Some committees may choose to incorporate expert advice from
various stakeholders and NGOs into the drafting of the general comments → these documents are
usually adopted engaging civil societies into an exchange: a few years ago, a campaign was launched to
invite the civil society to give its opinion in order to prepare the general comment on the right to
science (UN website: space devoted where everyone could participate → interactive activity for NGOs
and civil society) → these documents provide an official explanation of rights, they are not binding
because there’s no binding document other than judgments, but they are documents helping judges and
authorities in understanding what a human right does and implies.
ADJUDICATING HUMAN RIGHTS VIOLATIONS: THE REGIONAL COURTS
→ Proximity: HRL moves beyond “the West and the rest” rhetoric
→ Local to global: ‘local’ human rights concerns more global = reconciling universality and relativism of
human rights
→ Enforcement: courts delivering binding judgments = last resort bodies to oversight states’ activities and
national courts’ approaches
From the perspective of international law, there’s a major distinction: on one hand there’s a mechanism that
improves the conditions of human rights through political dialogue, influences, support and the development of
human rights through interactive dialogues among states; on the other hand, there are all the consequences that
the violation of a state brings in terms of the assessment of the violation by international courts.
Regional HR Courts: who can bring a case? The EU is the only system in which an individual may always
directly go to the court, without needing the state to accept this competence, and there’s no other organ filtering
the request of the individuals. The members of the ECHR implicitly accept the power of individuals to directly
go to the court.
The most important requirement that an individual has to meet for presenting a case before the courts is the
quality of victim.
The quality of victim is keen in any state, but the case law of the EU is enormous and so detailed, more than in
other regional systems.
A person, in order to present a case before the European Court, must be a victim of a violation of a human right.
Victim: the subject who suffers in person the misconduct of a state.
Within the ECHR, it is stated that victims is an autonomous notion, it says that the Court provides a definition
of this requirement with no reference to domestic definitions, to procedural standards that national laws may
pose: victims under the European Court are mainly the direct victims, the person who is directly affected by the
violation.
It may happen that at a domestic level a person suffered a violation, but that she is not legally entitled and
cannot present a case before the domestic court: e.g. children, in most of the legal systems, don’t have legal
standing – the locus standi – and they need a parent or guardian acting on behalf of them; however, from the
perspective of ECHR, the fact that a person has no legal standing in the national system is not relevant: if she
suffered a violation, she can present a case, this because the ECHR focuses on the quality of victim, that is an
autonomous definition.
A child can present a case before the ECHR as long as he is a victim of a violation, and he doesn’t need to be
represented by someone.
The definition of victims is totally independent from the requirements and definitions that states may put or
give.
The victim is a person, a subject, directly affected by a violation, a person who suffered the detrimental effect
of the act/omission of the state: then, can NGOs be considered victims and present claims? Yes, but they can
lament only some of the violations that individuals can normally contest: there are some rights that belong only
to individuals (right to life, freedom from torture). Since NGOs need to be direct victims, they cannot lament
any violation, but only some that are consistent with their nature and with what they do.
Direct victim category: at the beginning it was the only category existing; however, the ECHR has expanded
the definition of victim and nowadays we have two more categories, that are indirect and potential victim.
Direct victim → the applicant should prove that he/she is directly affected by the violation, i.e. for acts or
omissions that are detrimental to his/her rights.
Indirect victim → he is a person who has a very close personal bond to the direct victim (e.g. relative) and has
a moral interest because of the personal bond with the direct victim in pursuing justice for the human right’s
violation suffered by the direct victim; the violation has a detrimental effect on the indirect victim too:
1. complaints related to the death or disappearance of the direct victim: close family members of a person
whose death or disappearance is alleged to engage the responsibility of the State can themselves claim
to be indirect victims of the alleged violation of Article 2, but also other complaints, (ex Articles 3 and
5 of the Convention) provided that the alleged violation is closely linked to the death or disappearance
giving rise to issues under Article 2; in addition to their status as “indirect victims”, family members
can also be “direct victims” of a treatment contrary to Article 3 of the Convention on account of the
 suffering stemming from serious human rights violations affecting their relatives → e.g. mother of a
person who was arrested and disappeared: she can present a case as an indirect victim on behalf of the
son, but she can present the case as a direct victim too, this because family members of the direct
victim can be considered direct victims too if the violation makes them suffer too, if it has a direct
effect on them as well → indirect victims are very close to the direct victim and show a moral interest
in pursuing justice for the violation suffered by the direct victim;
2. in cases where the alleged violation of the Convention was not closely linked to the death or
disappearance of the direct victim the Court’s approach has been more restrictive: it has generally
declined to grant standing to any other person → in these cases the Court is even more restrictive.

ECtHR, Selami and Others v The Former Yugoslav Republic of Macedonia (2018) The applicants are
respectively the widow and three children of Mr Selami. Mr Selami was arrested in August 2002 on suspicion
of involvement in the killing of two policemen. During his detention he was severely beaten and hospitalized.
He required brain surgery and remained in a coma for two weeks. Once back home, he began compensation
proceedings in 2004, but died in 2011 during an appeal on the case. The applicants complained that Mr
Selami’s compensation in the domestic proceedings had been unreasonably low, and complained about the
dismissal of the compensation claim which they had submitted in their own name. The Court first found that Mr
Selami had clearly been the victim of torture and unlawful detention for Convention purpose reference to art. 3
and 5 ECHR and then considered whether Mr Selami’s family had standing to complain on behalf of,
respectively, their late husband and father and in their own name. The question was whether they could
complain in their own name of a violation of their rights under Article 3, that is, whether they were “direct
victims”, and whether they could complain about Mr Selami’s torture and unjustified detention under Articles 3
and 5, that is, whether they were “indirect victims”.
→ decision: “54. The Court has always been sensitive in its case-law to the profound psychological impact of a
serious human rights violation on the victim’s family members who are applicants before the Court. However,
in order for a separate violation of Article 3 of the Convention to be found in respect of the victim’s relatives,
there should be special factors in place giving their suffering a dimension and character distinct from the
emotional distress inevitably stemming from the aforementioned violation itself. The relevant factors include
the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family
member witnessed the events in question and the involvement of the applicants in the attempts to obtain
information about the fate of their relatives 55. It notes that the applicants (…) were unaware of his
whereabouts for two days after he had been taken into custody. In the Court’s view, such a short period of
uncertainty as to his fate is not sufficient for their emotional suffering on those grounds to constitute inhuman
treatment contrary to Article 3 of the Convention. Nor were the applicants direct witnesses to his torture (…).
Lastly, there is no evidence of a causal link between Mr S. Selami’s torture in August 2002 and his death in
2011, over eight years after the incident engaging the State’s responsibility. 56. In such circumstances, the
Court does not consider that there are special elements which give the suffering of the applicants a
dimension and character distinct from the emotional distress which may be regarded as inevitably caused to
relatives of a victim of a serious human-rights violation.” → Mr Selami suffered a violation of Art. 3,
however, in order to be able to recognize family members as direct victims, there should be special factors that
in this case are missing: the Court states that every person who is an indirect victim has a distress, but there are
some special factors to be fulfilled in order to qualify the indirect as direct victim of the violation, so it’s not
sufficient to be the mother of someone who suffered a violation.
In this case, the Court decided that no member could be considered a direct victim.
There’s an extra caution in defining the extra element that a person should have in order to be considered a
direct victim.
→ “59. The Court firstly notes that Mr S. Selami died on 6 April 2011, while the domestic proceedings were
still pending before the Court of Appeal. After his death, the fourth applicant (Mr Nedžmi Selami) was declared
the sole heir of Mr S. Selami and stood in his stead in those proceedings. The fourth applicant lodged an appeal
on points of law on behalf of the late Mr S. Selami (…) In such circumstances, the Court considers that the
fourth applicant has demonstrated a strong moral interest in seeking that the State was held responsible for
the wilful acts of its agents prohibited under Articles 3 and 5 of the Convention, besides the material interest
linked with his entitlement to damages after Mr S. Selami’s death 60. The same, however, cannot be said with
respect to the remaining applicants. They participated in the compensation proceedings solely in their own
name claiming compensation of the non-pecuniary loss that they had allegedly sustained due to Mr S.
Selami’s severe disability.”
The Court identified that there’s only one person, one of the children, with a strong moral interest in seeking
justice and in proving the responsibility of the state, while the other child and the mother only wanted
compensation.
The Court considered that in the case there was just one indirect victim.

ECtHR, Petithory Lanzmann v. France (dec.) 2019 The son of the applicant died in 2017 at the age of
twenty-three as a result of a malignant tumor diagnosed in 2014. As soon as he was informed of his illness he
had taken steps in order to become a father and have offspring even in the event of his death. He had therefore
banked sperm with a French hospital and had contacted a healthcare establishment abroad with a view to
artificial insemination. Following the death of her son the French medical authorities refused the applicant
permission to have her son’s gametes transferred to a country which permitted their use post mortem for the
purposes of medically assisted reproduction or gestational surrogacy.
Law – Article 8: The applicant’s complaint concerned her inability to export the gametes of her deceased son
and to have artificial insemination carried out after his death, in accordance with his wishes, in a State which
permitted the practice, in order to perpetuate the memory of the Lanzmann family.
(a) Complaint asserting the deceased’s rights – What happened to the gametes banked by an individual, and the
issue of compliance with his or her wish for them to be used after his or her death, corresponded to that
person’s right to decide how and when to become a parent. However, that right belonged to the category of
non-transferable rights. Accordingly, the applicant could not claim victim status on behalf of her late son.
Conclusion: inadmissible (incompatible ratione personae).
Can the mother present a case as an indirect victim, considering that the refusal received is somehow
attributable to the son? The Court decided that the right to become a father/mother is a personal and
non-transferable right, with no possibility of someone else bringing the case post mortem.
Potential victim: a subject who, although not yet a direct victim:
1- runs a real risk of suffering an irreparable violation as a result of a state action or omission (Soering v. UK,
1989); or,
2- belongs to a certain category of the population to which a law violating HR is likely to be applicable (Norris
v. Ireland, 1988).

ECtHR, Soering v. UK 1989 Jens Soering is a German national, student at the University of Virginia. He and
his girlfriend were wanted in Virginia, USA for the murder of his girlfriend’s parents. The couple disappeared
from Virginia and were later arrested in England in April 1986. The USA commenced extradition proceedings
with the UK under the terms of the Extradition Treaty of 1972, between the USA and UK. Mr Soering applied
to the European Court on Human Rights (ECtHRs) alleging that the decision to surrender him to the US would,
if implemented, give rise to a breach of Article 3 ECHR prohibiting torture and inhuman/degrading treatment or
punishment, because of the anguish he would suffer waiting for execution for an expected six to eight years.
→ «In the Court’s view, having regard to the very long period of time spent on death row, with the ever present
and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the
applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the
United States would expose him to a real risk of treatment going beyond the threshold set by Article 3.
Accordingly, the Secretary of State’s decision to extradite the applicant to the United States would, if
implemented, give rise to a breach of Article 3»
The problem, at that time, was not death penalty per se (exception of capital punishment with reference to the
right to life was something added years later), but he stressed that, once condemned to capital punishment, he
would still have many years to spend waiting for the execution and this long lasting period would have been so
serious to be considered a violation of Article 3, an inhuman treatment.
This is one of the first cases in which the Court considers Soering as a potential victim and considers the fact
that the UK may fall into a violation of HR → violation which is legal, something the UK should practice
(cooperation in criminal matters), but the problem is the fact that Soering would be put in a situation of long
sufferance and this amounts to a violation.
The potential victim is someone who’s not suffering, but could be suffering a violation that may be connected to
an act or omission by the state: in this case the extradition would have put Soering in the condition to suffer a
violation and, even though the violation would have been committed by England and not by a EU Council
member, still the fact that EU puts someone in the condition to suffer a violation is sufficient to consider that
person as a potential victim.
Soering was extradited, prosecuted upon assurance that he wouldn’t have been to capital punishment: he was
sentenced to 30 years of imprisonment and nowadays he’s proclaiming his innocence.
As long as the US made assurance to the UK that they wouldn't have applied capital punishment, the UK
accepted to extradite Soering.
In order to have a potential victim, the risk run by the potential victim must be real, proven by serious
evidences: there are more than one case before the Court in which people tried to present themselves as
potential victims of violations connected to climate change, but the Court requires a strict link with what is
going to occur after the act/omission of the state.

ECtHR, Norris v. Ireland 1988 Mr Norris complained of the existence in Ireland of legislation which
prohibits male homosexual activity. Mr Norris alleged that the prohibition on male homosexual activity
constitutes a continuing interference with his right to respect for private life (including sexual life), contrary to
Article 8 (art. 8) of the Convention. The Government affirmed that there have been no prosecutions under the
Irish legislation in question during the relevant period except where minors were involved or the acts were
committed in public or without consent.
Belonging to a category which is affected by the law, he actually is in the condition to be prosecuted because of
his sexual orientation.
→ «It may be inferred that, at the present time, the risk of prosecution in the applicant’s case is minimal.
However, there is no stated policy on the part of the prosecuting authorities not to enforce the law in this
respect (…) The applicant can therefore be said to "run the risk of being directly affected" by the legislation
in question.»
The mere fact that the law was there and had serious consequences made Mr Norris a potential victim, even
though he wasn’t being prosecuted at the time he claimed to be a potential victim.

Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania

The application was lodged by a non-governmental organisation, the Centre for Legal Resources (CLR), on
behalf of a young Roma man Mr Câmpeanu, who died in 2004 at the age of 18. Mr Câmpeanu had been placed
in an orphanage at birth after being abandoned by his mother. When still a young child he was diagnosed as
being HIV-positive and as suffering from severe mental disability. On reaching adulthood he had to leave the
centre for disabled children where he had been staying and underwent a series of assessments with a view to
being placed in a specialised institution.
After a number of institutions had refused to accept him because of his condition, he was eventually admitted to
a medical and social care centre, which found him to be in an advanced state of psychiatric and physical
degradation, without any antiretroviral medication and suffering from malnutrition. A few days later, he was
admitted to a psychiatric hospital after displaying hyper-aggressive behaviour. The hospital concerned had
previously said that it did not have the facilities for patients with HIV. There he was seen by a team of monitors
from the CLR who reported finding him alone in an unheated room, with a bed but no bedding and dressed only
in a pajama top. Although he could not eat or use the toilet without assistance, the hospital staff refused to help
him for fear of contracting HIV. He was refusing food and medication and so was only receiving glucose
through a drip. The CLR monitors concluded that the hospital had failed to provide him with the most basic
treatment and care. Mr Câmpeanu died that same evening.
Government’s preliminary objection: CLR, so the organization, had no standing to lodge the application.
→ The state failed to provide for a guardian to Valentin: this is the only ground on which it is possible for the
court to accept this application, even if it was done by an organization. There is no sufficient connection
between Valentin and the organization in order to consider the latter as a direct or indirect victim, but the Court
concluded that exceptionally the application should be accepted because, otherwise, there’s the risk that the
responding state can be considered as non responsible for the violation it committed, even if it didn’t act for the
protection of Mr. Campeanu (it’s the only way to recognize that Romania made a violation).

M. A. and Others v. France

The applicants are more than 250 persons providing prostitution-related services, lawfully and on a regular
basis. They complain about Law no. 2016-444 of 13 April 2016, which made any purchase of sexual acts, even
between consenting adults, an offence under the Criminal Code.
According to the authorities, the law was aimed to reducing the demand for paid-for sexual relations, which
contribute to fuel human trafficking and more in general to protecting public order and human dignity.
Relying on Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the European
Convention of Human Rights, the applicants alleged that the French legislation criminalising the purchase of
sexual relations seriously endangered the physical and mental integrity and health of individuals who, like
them, engaged in prostitution. The criminalisation in issue obliges sex workers to operate in a secret and
insolation, which increases their vulnerability in relation to their clients, placing them at greater risk of robbery,
assault, stigmatisation and infection, and limiting their access to prevention, care facilities. Relying on Article 8
(right to respect to private life), the applicants argued that the fact of making it a criminal offence to obtain
sexual services in exchange for payment, even where this occurred between consenting adults and even in
purely private places, infringe on the right to respect for the private life of individuals engaged in prostitution
and of their clients, in so far as this included the right to personal autonomy and sexual freedom.
→ The law was not criminalizing sex workers’ activities, but the purchase of sex services by clients; however,
the case was presented by sex workers: the right to a private life, according to them, should include sexual
freedom too; furthermore, by prohibiting this activity, sex workers will carry out their work in an illegal way, in
clandestinity (more dangerousness).
The major effect will be over sex workers, not over clients. Sex workers may be considered as potential
victims, not as indirect victims because they only have an interest in clients, not a private bond.
The right to work is not guaranteed under the European Convention, it’s an economic right, and Article 8 is
used to lament any issue relating to the personal life of someone (even if this involves the working sphere).
Admissibility + merit of the case: two decisions that the Court takes → admissibility: if the Court can judge the
case + merit: if there was a violation.
The court considered that the Law has decriminalized the activity of prostitutes and that only clients of
prostitutes can be prosecuted (the focus is not on sex workers, but rather on the clients purchasing sex services),
so the applicants are not obliged to change their behavior to avoid criminal and legal consequences. As a
consequence, this law has no direct effect on sex workers and, as such, the latter cannot even be considered as
potential victims.
However, the Law may affect sex workers because the activity they carry out is discouraged and this may lead
to sex workers to decide to work in clandestine conditions.
The Court has defined the case as being admissible, even if it didn’t define sex workers as potential victims, but
rather as collateral victims because some effects, in terms of human rights’ violation, may happen and have an
impact on them.
It must be noticed that the Court was not clear in defining whether sex workers may fall under a category of
victims or not, however it seems that we are going towards a new category of victims, that is collateral victims,
this because sex workers may be influenced by the French Law.

Sanles Sanles v. Spain

The applicant is the sister-in-law of a man (Mr. Sampedro) tetraplegic since the age of twenty-five following an
accident, who have tried to have his right to have access to assisted suicide recognised.
On 12 January 1998 Mr Sampedro died, assisted by one or more anonymous persons. Criminal proceedings
were instituted against a person or persons unknown for aiding and abetting suicide. After Mr Sampedro’s
death, the applicant informed the Spanish Constitutional Court that she intended to continue the proceedings
instituted by Mr Sampedro in her capacity as his heir, but the Constitutional Court discontinued the
proceedings.
She lodged an application to the European Court submitting that: Mr Sampedro’s decision to request medical
assistance to put a painless end to his suffering fell fully within the scope of the right to private life guaranteed
by Article 8 of the Convention. Mr Sampedro had been claiming the right to non-interference with his wish to
put an end to his undignified life, because his total paralysis had been a source of intolerable suffering for him.
She alleged that there had been a violation of Articles 2 and 3 of the Convention.
Relying on Articles 5 and 9 of the Convention, the applicant also complained of interference by the State with
the exercise of Mr Sampedro’s right to freedom and to freedom of conscience. The applicant considered it
paradoxical at the least that a decision to commit suicide should be respected by the State, whereas assisting an
invalid to commit suicide was punishable under the criminal law. She relied on Article 14 of the Convention.

Ada Rossi and others v. Italy

In January 1992 Eluana Englaro, a 20-year-old woman, was a victim of a road-traffic accident in which she
suffered a head injury and a fractured vertebra and fell into a coma. She was subsequently diagnosed as being in
a vegetative state with spastic tetraplegia and loss of all higher cognitive functions. In 1999 her father began
court proceedings, seeking authorisation to discontinue his daughter’s artificial nutrition and hydration and
alleging that this would have been his daughter’s wish.
In a decision of 25 June 2008 the Milan Court of Appeal granted the authorisation requested by E.E.’s father on
two grounds, namely, that E.E.’s vegetative state was irreversible and that there was clear, consistent and
convincing evidence that the request accurately reflected the will of the Eluana. A case was lodged by the
guardians of persons in a vegetative state, and associations of severely disabled people’ relatives. Relying on
Articles 2 and 3 of the Convention, the applicants complained of the adverse effects that the execution of the
decision of the Milan Court of Appeal of 25 June 2008 in the case of E.E. could have on them.
→ The applicants are not potential victims. If they have intentions to have an interruption of nutrition, they
would follow the procedure, the requisites expressed by the Court in this case.

REGIONAL HR SYSTEMS
European system

Before the adoption of Protocol 11 (1959-1998), the way the European system worked was very different:
- mainly states could present a case before the Commission;
- in case of individuals’ application, this may happen only against states which have accepted this
competence, so the possibility of individuals’ complaints;
- the main role was played by the Commission: it adopted a report, not the final one, a report where the
violation submitted was analyzed;
- this report was then sent to the Committee of Ministers – so the political organ of the EU – to confirm
or not the procedure the Commission adopted;
- within three months after the referral to the Committee, only in cases in which the defendant states
have accepted the Court’s jurisdiction, the state or the Commission may present a case to the Court →
it was all up to the defendant state
Nowadays there’s only one Court and both states and individuals can directly bring the case to the Court against
any of the Council of Europe Member States.

InterAmerican system

There is much more confidence with individuals’ application than towards states application: states can present
a case before the Commission only if both the applicant and the defendant have accepted this competence, so if
they have made a specific declaration ex art. 45 ACHR.
Usually these cases are presented by individuals and the Court usually adopts a report that is initially
confidential; after the referral to the state, within three months, the state or the Commission may present a case
to the InterAmerican Court, but only if the defendant state has accepted its jurisdiction.
If the case, after these three months, has not been submitted to the Court, then the Commission may issue its
final report, which will then be officially published.

African system

There are two different normative instruments establishing:

1) the Commission through the African Charter on Human and Peoples Rights;
2) the Court.
According to the ACHPR, individuals can present a case and there’s no need for acceptance of this competence
by states → most of the African states are part of this Charter.
According to the Ouagadougou Protocol, we may have a case submitted by: 1) the African Commission which
may refer cases already decided, pending cases or cases needing attention; 2) the states that have ratified the
protocol (it may be the defendant state before the Commission or the state of nationality of the victim); 3)
african intergovernmental organizations, so sub-regional organizations; 4) individuals and NGOs if the
defendant state has ratified the Protocol and has also made a specific declaration accepting claims done by
individuals pursuant to Article 34.6.
The declaration is the acceptance of a state to the possibility of individuals bringing claims against states.

Chart of the Court’s jurisdiction: if I am an individual in a state that hasn’t ratified the Protocol, the only option
for my case to be considered is the Commission, so the only option I have is to present a case before the latter.
If I am an individual of a state that ratified the Protocol but didn’t make the declaration pursuant to Art. 34.6, I
have the option to go to the Commission and, hopefully, the Commission will take the case before the Court,
this because the defendant state may appear before the Court but it’s up to the Commission to bring the case to
the attention of the latter.
If I am an individual whose state has ratified the Protocol and made a declaration pursuant to Art. 34.6, then I
can directly go before the Court.
ACTIO POPULARIS
It means that I can present a case before the Court even without proving my personal interest in the case, but
just based on the general interest for the respect of human rights. It is an action to protect the collective interest
for respect of the law: it is not subject either to the demonstration of a personal interest by the application or to
the consent of the direct victims of the violation. However, in order to use actio popularis, there must be a
victim.
When a case in actio popularis is presented, the only thing that I need to prove is my interest in the protection of
HR; however, there must be a violation and the victims must be clearly recognized as such.
Inter-State application: actio popularis is very used in the InterAmerican Court (but it is subject to acceptance
by both the applicant and the defendant states) and in the African Court. In the European Court, once states
have accepted the competence, actio popularis is always open to be used in inter-state application and states
don’t even have to prove that they use it in order to protect their interest in HR.
Nature of HR as erga omnes obligations: obligations that each state accepts towards the entire international
community; thus meaning that the entire international community should have a general interest in the
application and respect of HR everywhere in the world, especially in those countries where there are obligations
established by treaties.
Individual application: Article 34 ECHR states that the Court may receive applications from any person,
non-governmental organization or group of individuals claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.

REGIONAL HR COURTS: WHICH MATTERS CAN BE BROUGHT?

Before the ECHR individuals can lament a violation only with civil and political rights.
Within the Social Charter there’s another organ called to monitor, that is the European Committee of Social
Rights. This organ may receive national reports on the compliance by states, that is similar to the UN system,
but also collective complaints (before the EU Committee dealing with the EU Social Charter, only NGOs, trade
unions and employees organizations may present a complaint, so only collective complaints are accepted).
Within the Inter-American Court, we have two documents, that are the American Convention on Human
Rights and San Salvador Protocol: economic, social and cultural rights. The Court and Commission can
consider violations of both documents, but in the case of the Protocol only for states which ratified it.
African Commission: ACHPR + any other human rights instruments bearing upon the defendant state: an
individual may claim, before the Commission or the Court, a violation of the Charter as well as of any other HR
instruments which have been ratified by states.
ECHR is usually interpreted in a systematic way: the Court tends to interpret the contents of the Convention
taking into consideration the general standards of HR protection; in some judgments, the Court may refer to
other HR treaties, also treaties which were not ratified by the defendant state, or it may consider the highest
level of protection.
American Convention on Human Rights → Art. 29: No provision of this Convention shall be interpreted as:
(…) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State
Party or by virtue of another convention to which one of the said states is a party; (…)
ADMISSIBILITY ISSUES OF REGIONAL HR COURTS
Conditions and timing: the exhaustion of domestic remedies
All the systems have a time limit to present a case → European Court: 4 months from the last domestic
judgment or the commission of the violation (if there is no domestic remedy to it); Inter-American
Commission/Court: 6 months from the last domestic judgment or the commission of the violation (if there is no
domestic remedy to it); African Commission/Court: “within a reasonable time”.
The main requirement remains the exhaustion of domestic remedies: first of all, you should try to have your
claim heard and decided by the national courts and you should explore all the possibilities at your disposal; this
is important because international courts do not replace national courts (subsidiarity principle referred to the
international courts) and because only very important cases should be brought before the Commission/Court of
an international court; furthermore, the states should have the chance to put a remedy to the violation they
committed.
The rule of exhaustion of domestic remedies is pursuing two different aims: 1) it provides victims the option to
get reparation; 2) it provides states the possibility to remedy their violations.
Victims can receive justice within the states, which are the first actors when it comes to justice → principle of
subsidiarity: international courts are not called to replace national courts and national courts should have the
chance to provide for reparation.
When we consider the exhaustion of domestic remedies, what domestic remedies are we referring to?
European Court: applicants are only obliged to exhaust domestic remedies which are available, accessible,
effective and offering reasonable prospects of success.
e.g. if I live in a country where the only remedy that I have in cases of disappearance of my son is to have a
certificate of death of him, this is not an effective remedy: effectiveness means that the remedy can effectively
provide reparation; reasonable prospect of success: I know that there’s a consistent case law about the issue and
that I have high possibilities of getting reparation.
Inter-American Court / Commission: the I-A Commission has observed that a petitioner is not required to
exhaust all remedies; rather, a petitioner must only exhaust those remedies that are deemed adequate and
effective.
African Commission / Court: the African Commission has limited the exhaustion requirement to include only
remedies that are available, effective and sufficient.
Some remedies may be available but not accessible by someone, for example in cases of mentally ill people
who don’t have adequate legal assistance.
Italian Constitutional Court: a case can be brought before it only by a judge, not by an individual.
What happens when one of the three courts recognize a violation of HR?
REPARATION
1- European Court → Art. 41 ECHR: “If the Court finds that there has been a violation of the Convention or
the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” → judgments
are declaratory, so they are a form of satisfaction per se; compensation for some violations; pilot judgments for
structural violations → the EC provides for judgments identifying an amount of money in terms of
compensation but it doesn’t provide a detailed approach of compensation, unless for the cases of pilot
judgments.
Pilot judgments are adopted to deal with structural violations, that means violations that do not occasionally
happen but are intrinsic in the system itself and are there to produce a huge number of violations.
E.g. → if I have a policeman who applies torture, he might be an occasional violation; if I don’t have a law
prohibiting torture, this is a structural violation because it may happen that one policeman applies non permitted
behaviour, but if I don’t have a law prohibiting torture the violation of the policeman may become a usual
attitude.
Within the pilot judgments the Court receives a huge number of applications dealing with the same issue and
may decide to select one of these cases, to analyze it defining where the violation happened and providing the
state details on how it should act to provide reparation in all the similar cases (compensation + invite to adopt a
law on the attitude of the case).
Pilot judgments provide a specific approach to reparation: the Court addresses not only the violation, but details
on how the state should reparate → this is uncommon in the EU system!
2- Inter-American Court → Art. 63 ACHR: “if the Court finds that there has been a violation of a right or
freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of
his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or
situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to
the injured party.” → victim-oriented approach: this system is focusing on individual and general measures, not
only on reparation in terms of monetary compensation, but it searches for the best measure for states to repair
the violation.
3- African Commission / Court → Art. 27 Ouagadougou Protocol: “If the Court finds that there has been
violation of a human or peoples' right, it shall make appropriate orders to remedy the violation, including the
payment of fair compensation or reparation.” → the African Court has held that it encompasses all of the
forms of reparations recognized in international law, namely get restitution, compensation, satisfaction and
guarantees of non repetition.
Restitution should suggest the establishment of the situation as it was before the violation occurred, so the
re-establishment of the status quo ante.
Compensation is used when it’s impossible to establish the status quo ante and many damages were suffered by
the victim: compensation deals with damages.
Satisfaction is used when there’s no way to provide a restitution to the victim: in international law, for example,
satisfaction is when the state recognizes its internationally wrongful act, but in terms of human rights the
satisfaction that may come at the end of a process of ascertainment of responsibility of a state is the judgment
of the court, so the mere fact that the court recognizes that there has been a violation of human rights.
Guarantees of non repetition are not very common in human rights, they might be general remedies, and are
used to prevent the same violation from occurring again; in international law, this remedy is typical because
there’s no a centralized means called to apply international law: it’s up to states and, sometimes, declaring that a
behavior is contrary to international law and swearing that it won’t happen again results in enforcing the value
of international law itself.
*ECtHR- Pilot judgments for structural violations
Structural violations derive from a common dysfunction at the national level (and generate “repetitive cases”).
The pilot judgment procedure was developed as a technique of identifying the structural problems underlying
repetitive cases against many countries and imposing an obligation on States to address those problems. Where
the Court receives several applications that share the same root cause, it can select one or more for priority
treatment under the pilot procedure. In a pilot judgment, the Court not only decides whether a violation
occurred in the specific case, but identifies the systemic problem and gives the Government clear indications of
the type of remedial measures needed to resolve it. Other cases are freezed for a period of time on the condition
that the Government acts promptly to adopt the national measures required to satisfy the judgment.

INTERIM MEASURES
They may be adopted when there’s a serious risk of irreparable harm, so in order to prevent the occurrence of a
serious violation. They are any position by the court of a measure that aims to protect the rights of the person
under the pending of a case.
A good example of an interim measure is the order to suspend the extradition / deportation process.
1- European Court → interim measures are urgent measures which, according to the Court’s well-established
practice, apply only where there is an imminent risk of irreparable harm. (Rule 29, Rules of procedure of the
Court: this issue was one of the reasons why, for some years, the binding force of interim measures was not
clear). Nowadays the Court has clarified the binding force of these measures.
2- Inter-American Court, Art. 63 ACHR: “In cases of extreme gravity and urgency, and when necessary to
avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in
matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the
request of the Commission.”
3- African Commission / Court, Art. 27 Ouagadougou Protocol: “In cases of extreme gravity and urgency,
and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as
it deems necessary.”
In the American and African systems interim measures are provided within their treaties, whereas in EU states
didn’t formally accept these interim measures.

IMPLEMENTATION
Usually states receiving a judgment in which their responsibility is defined are good in providing
compensation, so they usually pay. General measures are much more difficult because they require political
means which may be difficult to be achieved and those elements that are more difficult to be obtained from
states is to have effective investigation on who have committed a specific violation.

+ Compare the 3 Treaties (ECHR, ACHR, AfrCHPR) and find out the main differences.
1. In what the lists of rights differ? (ex: are economic, social and cultural rights covered in the treaty?
Other relevant elements of difference)
ECHR: these rights are not covered in the treaty, only civil and political rights are addressed.
ACHR: there’s Chapter III, entirely dedicated to the economic, social and cultural rights.
In the AfrCHPR there’s a section devoted to these three categories of rights.
2. Are there significant differences in the formulation? Consider how the prohibition of torture and of
slavery has been formulated in the three documents.
ECHR: Articles 3 and 4 are expressely on the prohibition of torture and slavery. The very simple formulation of
Art. 3 does not make it less effective: it was applied to a huge bunch of case-law.
In AfrCHPR there’s no specific provision dedicated to torture, it falls within Article 5 dedicated to the right to
humane treatment.
3. Does the treaty refer to possible derogation to the protection?
In ECHR there’s the prohibition to derogation in Protocol 6.

DIFFERENT CATEGORIES OF HUMAN RIGHTS

1- Which is the driving principle behind human rights?
There are three generations of human rights: since the very beginning, in the Universal Declaration there were
elements referring to all the generations (so they’re not classified according to the period in which they were
enforced):
● first generatìon – civil and political rights → civil and political rights protect individuals from the
abuses of the state assuring his/her freedom
● second generation – economic, social and cultural rights → social, economic and cultural rights
promote equality between individuals
● third generation – rights to peace, development and self-determination → right to peace, development,
self-determination, clean environment: they require the joint commitment of states (they cannot be
realized by a single state) and are based on solidarity in international relations.
2- Who are the rights-holders? – Individual rights and collective rights.
3- Which is the rank of these rights? – Core rights, more essential for the preservation of human rights, and
other rights.

FIRST AND SECOND GENERATION OF HUMAN RIGHTS

Most of the III generation of HR are enshrined in soft law documents and the only exception is the right to
self-determination, protected under the UN Charter and under the two Covenants.
The right to peace, development and clean environment are contained in soft law documents.
I and II generation of rights are well detailed in HR treaties, they were together in the Universal Declaration,
but are nowadays split into two Covenants. the ICCPR and the ICESCR. The major reason for this division is
historical: the drafters of the Covenants were divided into two political positions, that are the socialists and the
western liberals.
The socialists and the Soviet bloc nations were focused on the importance of having economic, social and
cultural rights included in an agreement and they wanted to establish a social welfare system encompassing all
ESC rights as an extension of clear political ideology and state organization; on the other hand, wester liberal
states considered these rights as conditioned on the forces of free market, resting on private initiative.
The III generation of human rights is contained in soft law documents: the right to self-determination is
contained in the UN Charter and in the two Covenants, but this is an exception; Right of people to peace 1984;
Right to development 1986; Right to clean environment 2021.
The difference between CP and ESC is in terms of implementation.
As a result of this political division, we have two covenants with different monitoring mechanisms:
ICCPR: Human Rights Committee → established by the ICCPR in 1966 and entered into force in 1976; a
monitor system was established and it was possible for states to present complaints to the HR Committee;
individual communication is much more critical: it was provided in an optional Protocol in 1976 because it was
an optional competence to be given to the Committee.
ICESCR: Committee on ESC Rights → it was established by ECOSOC, a UN organ, in 1985 (much later
than the HR Committee) and the possibility of states to present claims was provided only in an optional
Protocol which entered into force in 2013.

DISTINCTION BETWEEN CIVIL AND POLITICAL RIGHTS AND ESC RIGHTS

Many distinctions:
1. timing of realization →
● Art. 2 ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
● Art. 2 ICESCR: Each State Party to the present Covenant undertakes to take steps, individually
and through international assistance and co-operation, especially economic and technical, to
the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means, including
particularly the adoption of legislative measures.
● ICCPR provides immediate protection, whereas ESC rights are conditioned by a huge number
of elements, so that the states have to do their best in order to improve the enjoyment of these
rights by individuals.
● Committee on ESCR, general comment N. 3, progressive realization v. immediate application:
“(…) while the Covenant provides for progressive realization and acknowledges the constraints
due to the limits of available resources, it also imposes various obligations which are of
immediate effect’ 1. One of these (…) is the “undertaking to guarantee” that relevant rights
“will be exercised without discrimination ...”. (par. 1) 2. The other is the undertaking in article
2 (1) “to take steps”, which in itself, is not qualified or limited by other considerations. (par. 2)
(…) It thus imposes an obligation to move as expeditiously and effectively as possible towards
that goal. (par. 9) 3. There are a number of provisions in the International Covenant on
Economic, Social and Cultural Rights, including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3)
 and (4) and 15 (3) capable of immediate application by judicial and other organs in many
national legal systems. (par. 5)” → even for ESC rights there are rights having an immediate
effect
2. kind of states’ obligations →
● civil and political rights are freedom rights and are generally perceived as requiring negative
obligations of non-interference (erroneously seen as devoid of implementation costs); however,
even civil and political rights imply positive obligations;
● economic, social and cultural rights are welfare rights and are positive in nature, they are not
susceptible to implementation without costs.
● prohibition of torture: not only the obligation for states to refrain from using torture is applied,
but also a positive obligation is involved, so that states must do something, not only avoid
doing what is prohibited.
● the obligation to respect means that states must refrain from interfering with the enjoyment of
human rights;
● the obligation to protect requires states to protect individuals and groups against human rights
abuses committed by non-state actors (e.g. torture committed by a police officer, so a state’s
organ, and torture committed by an individual: in the last case there’s no action committed by a
state, but the latter must still protect individuals from the happening of such an act);
● the obligation to fulfill means that states must take positive action to support the enjoyment of
basic human rights (facilitate, promote and provide them).
3. justiciability → it was contended that ESC rights do not possess a justiciable character because:
● they are too “vaguely worded” to allow judges to decide whether violations have occurred;
● they depend on governments’ policies and fiscal priorities;
● it is not possible for courts to assess their progressive realization.
● this element of distinction is no more valid: there has been an interesting development and
evolution of domestic courts’ case-law and the same adoption of the ICESCR Optional
Protocol of 2008 gave more importance to these rights and to the power that domestic courts
have in relation to ESC rights.
The only – still existing – difference between civil and political and ESC rights is the timing of realization.

Rights of III generation

They are those rights based on the idea of solidarity in international relations: every right of the III generation
cannot be properly achieved by single states, but international cooperation is needed in order to have a proper
protection of these rights.
Rights of III generation: right to peace, development, self-determination, clean environment: they require the
joint commitment of states and are based on solidarity in international relations.
This category encompasses individual as well as collective rights and, with the exception of the right to
self-determination, these rights are mainly provided through soft law documents.
The right to self-determination was considered a sort of inspiring aim in the activity of the UN and it was
included in Art. 1 of the UN Charter, that contains the main aims of the UN.

Right to self-determination:
● Art. 1.2 UN Charter The Purposes of the United Nations are: (…) To develop friendly relations among
nations based on respect for the principle of equal rights and self-determination of peoples, and to take
other appropriate measures to strengthen universal peace;
● Art. 1 ICCPR/ICESCR 1. All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and cultural
development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international economic co-operation,
based upon the principle of mutual benefit, and international law. In no case may a people be deprived
of its own means of subsistence.
Then, in the two Covenants the right to self-determination became to be seen as a collective right pertaining to
people: everyone should be able to pursue their economic, social and cultural development.
Under international law, the external self-determination is recognized only to three categories of people:
apartheid regime, colonialism and foreign military occupation.

Declaration on the right of peoples to peace – UNGA, 1984: The General Assembly , (…) 1. Solemnly proclaims
that the peoples of our planet have a sacred right to peace; 2. Solemnly declares that the preservation of the
right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each
State; 3. Emphasizes that ensuring the exercise of the right of peoples to peace demands that the policies of
States be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the
use of force in international relations and the settlement of international disputes by peaceful means on the
basis of the Charter of the United Nations; 4. Appeals to all States and international organizations to do their
utmost to assist in implementing the right of peoples to peace through the adoption of appropriate measures at
both the national and the international level.
By definition peace cannot be achieved by a single state, there’s the need for cooperation.
Declaration on the right to development – UNGA, 1986: Article 1 1. The right to development is an inalienable
human right by virtue of which every human person and all peoples are entitled to participate in, contribute to,
and enjoy economic, social, cultural and political development, in which all human rights and fundamental
freedoms can be fully realized. 2. The human right to development also implies the full realization of the right of
peoples to self-determination, which includes, subject to the relevant provisions of both International
Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural
wealth and resources.
There’s a double dimension: the right to development is described as both a human and a collective right, and
there’s a strict link between development and self-determination. Self-determination has also an economic
dimension.
Right to clean environment: Human Rights Council October 2021, Resolution on Human right to a safe, clean
and healthy and sustainable environment, adopted by a vote of 43 in favour, none against and 4 abstentions
(China, India, Japan and Russia) → 1. Recognizes the right to a safe, clean, healthy and sustainable
environment as a human right 2. Notes that the right to a safe, clean, healthy and sustainable environment is
related to other rights that are in accordance with existing international law; the Council encourages States to
adopt policies for the enjoyment of the right to a safe, clean, healthy and sustainable environment as
appropriate, including with respect to biodiversity and ecosystems, and invites the General Assembly to
consider the matter.
UNGA Resolution A/76/L.75 adopted on 28 July 2022 (161 in favor and zero against, 8 abstentions: Belarus,
Cambodia, China, Ethiopia, Iran, Kyrgyzstan, Russia and Syria) notes that the right to a clean, healthy, and
sustainable environment is “related to other rights and existing international law,” and affirms that its promotion
“requires the full implementation” of the multilateral environmental agreements “under the principles of
international environmental law.

Individual and collective rights

We may distinguish between individual rights and collective rights by nature.
There are some rights recognized to individuals as such, meaning that they are recognized to human beings, for
example right to life or right to thought; sometimes some rights are recognized to an individual as part of a
social or cultural group, even if they still remain individual rights: for example, when an individual is part of a
minority (e.g. religious groups) or the right to association, that is an individual right which, however, may bring
benefits to a group. Another example is the right to family: it’s an individual right that has an impact on the
family itself, that is considered a small group.
Individual rights may have some impact or relation with groups, but when talking about collective rights we
refer to rights that are recognized to groups as such; however, even if we consider collective rights, we may see
that there are links between collective rights and rights of the individual.
United Nations Declaration on the rights of indigenous people, 2007: “The Declaration brings together
peoples’ and individual’s rights in a spectrum of mutual relationship” → Article 7: “Indigenous individuals
have the rights to life, physical and mental integrity, liberty and security of person. Indigenous peoples have the
collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of
genocide or any other act of violence, including forcibly removing children of the group to an- other group”
The right of Article 7 is not different from any other individual rights: indigenous people have the right to life
because they are individuals, not because they are a group, but there’s a strict link with a collective right.

Right to self-determination
It is a collective right.
UN Human Rights Committee – General Comment No. 12: Article 1 → The right of self-determination is of
particular importance because its realization is an essential condition for the effective guarantee and
observance of individual human rights and for the promotion and strengthening of those rights.

Distinction between core rights and other rights

All human rights are interconnected and interdependent, they are all fundamental for the development of
individuals, but there’s the possibility to make a distinction between core rights and the others.
Some rights rank higher than others because they are more essential for the preservation of human life and the
upholding of human dignity and human welfare.
The higher rank rights are those that cannot be derogated in times of emergency: civil and political rights are
core rights and cannot be derogated in time of public emergency (e.g. right to life, prohibition of torture,
prohibition of enslavement, principle of legality in criminal law).
It is much more difficult to find economic, social and cultural rights, which have a different nature in terms of
timing of realization, whose fulfillment is based on the resources and priorities of the state, but still there’s a
minimum standard of protection and these rights still fall within the definition of core rights.

LIMITATIONS AND DEROGATIONS TO HUMAN RIGHTS OBLIGATIONS

There are different possible ways to legally limit the enjoyment of human rights:
● limitations – HR can be limited in ordinary situations at the presence of certain conditions, to protect
the rights of other persons or a public interest: the rights that admit this kind of limits are called
qualified rights, that are rights that can be limited in everyday situations at the presence of certain
conditions (different from specific exceptions);
● derogations – states might be permitted to suspend their HR obligations in case of public emergency.

LIMITATIONS IN ORDINARY TIMES

Specific exceptions related to limitations
Art. 2.2 ECHR: Deprivation of life shall not be regarded as inflicted in contravention of this Article when it
results from the use of force which is no more than absolutely necessary: (a) in defence of any person from
unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Art. 4.3 ECHR; Art. 8.2.c ICCPR; Art. 6.3 AmCHR: For the purpose of this Article the term “forced or
compulsory labour”shall not include: (…)
Art. 5 ECHR: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law: (…) lawful detention and
arrest…
It is not possible to arbitrarily deprive someone of his life, unless for the exceptions provided in Article 2.
Article 2 prohibits the deprivation of life, however there are some situations in which Art. 2 is not applicable:
the right to life is not a qualified right, there’s no space for states to decide how much to protect the right to life,
but this right is subject to specific exceptions.
Qualified rights: conditions for interference
Qualified rights are those rights in which we have clearly stated that the state has the possibility to limit them to
pursue a public interest, in fact they may be interfered with in order to protect the rights of others or a public
interest.
Any interference, so any limitation, imposed by the state needs to meet three different conditions:
1. legality = the interference should be prescribed by the law → the relevant legislation must specify in
details the precise circumstances in which the interference is permitted; the interpretation of this
condition varies from one organ to another:
● InterAmerican Court, Adv. Opinion 1986 – The word "laws" in article 30 of the American
convention on human rights → (…) restrictions to basic rights [can] only be established by a
law passed by the Legislature in accordance with the Constitution. For the principles of
legality to be an effective guarantee of the rights and freedoms of the individual, not only [the
Law] must be formally proclaimed but there must also be a system that will effectively ensure
their application and an effective control of the manner in which the organs exercise their
powers.
● Siracusa principles on limitation and derogation to the ICCPR UN doc e/cn.4/1984/4
(1984) → 15. No limitation on the exercise of human rights shall be made unless provided for
by national law of general application which is consistent with the Covenant and is in force at
the time the limitation is applied. 16. Laws imposing limitations on the exercise of human
rights shall not be arbitrary or unreasonable. 17. Legal rules limiting the exercise of human
rights shall be clear and accessible to everyone.
● Generally there are no specific requirements about how the law should be in order to meet the
requirement of legality: it should be an instrument with a specific aim, so that people are aware
of the fact that their rights could be limited in order to pursue a higher interest, a public
interest.
● The fact of having a higher level of law is not a necessary requirement from international law’s
point of view: the only necessary thing is to have a law that is accessible by everyone, so that
people can know what they can or cannot do.
● The Siracusa document is a soft-law document, however it is very authoritative and it deals
with issues of derogations and limitations: we don’t have specific requirements on the nature of
the law, but on the quality of the latter.
2. legitimacy = the interference should pursue a legitimate aim → the condition of legitimacy aims at
excluding illegitimate reasons to impose restrictions to HR.
● Siracusa principles on limitation and derogation to the ICCPR UN doc e/cn.4/1984/4
(1984) → Legitimate aims:
➔ public order (ordre public): freedom of assembly is guaranteed until it puts into danger
the life of others;
➔ public health: in times of pandemic, it was acceptable to have our rights limited;
➔ public morals: it is strictly connected to cultural perspectives and it’s an element shared
by people;
➔ national security;
➔ public safety;
➔ rights and freedoms of others or rights and reputations of others: e.g. freedom of
expression, because we can say whatever we want unless we infringe someone else’s
right of expression.
● Open-ended formulation: usually minimal degree of scrutiny by Courts and other international
bodies → it’s very common for the courts to believe that the requirements are met.
3. necessity or proportionality = the interference must be limited to what is strictly necessary to fulfill the
public aim and must balance all the interests involved → the measure determining the interference
must:
 ● be appropriate to the fulfillment of the legitimate aim pursue (appropriateness or rational
connection);
● be limited to what is strictly required to achieve the aim (necessity or minimal impairment) and
must respect a proper balance between the guarantee of the public interest and the protection of
the fundamental right restricted (proportionality).
● It’s usually much more controversial to assess the proportionality principle, so to assess
whether a state has gone too far or not: ECHR case-law deals with this problem with more
insistence in deciding whether interference is admissible or not.
● Proportionality in interference implies the state’s margin of appreciation: discretion is left to
the states in the application of HR treaties (in particular the ECHR) in order to balance the
fulfillment of HR obligations with the protection of other state interests
● the margin of appreciation is intrinsically linked to the principle of subsidiarity → rationale:
national authorities are in a better position to give answers to political questions, so that there
should be a margin of discretion enjoyed by states in deciding where to set the boundaries
between public interests and human rights protection;
● any international court cannot substitute itself to the domestic authorities: it’s up to the states to
take decisions and international courts have only to verify whether the states respected their
margin of appreciation or not → this is the link with the principle of subsidiarity;
● in the ECHR case-law, the margin of discretion is defined as having a variable scope, it is
defined by:
➔ the importance of the right in question – when we are talking about an issue which is
strictly linked to the essence of the right, the Court considers that the marginal
discretion should be restricted: e.g. Article 8 ECHR, so the right to private life, covers
a wide number of issues including personal identity: if the state has to pose limits to
Art. 8 dealing with an issue of gender identity or sexual orientation, these are all
elements that the Court considers central to the right, keen expressions of Article 8 →
in this case the margin of appreciation should be limited;
➔ the ethically controversial nature of the issue – the Court usually considers the margin
of appreciation as being very large and it lets states decide whether to admit or not
certain controversial issues, such as surrogation;
➔ the existence of a european consensus – whether within the Council of Europe member
states states usually provide that kind of protection, so whether states are uniform to
guarantee a certain right in a specific way or not: if states provide LGBT community
some rights, the margin of appreciation of those states which want to deny those rights
will be reduced since there’s a european consensus bringing the protection of those
rights at a higher level; if there’s no european consensus and all states have a different
perspective, then the margin of appreciation will be larger.

DEROGATION REGIMES
States can suspend HR obligations if a state of emergency (armed conflict or other situations threatening the life
of the nation) requires them to do so: states may declare that for a certain period of time, a certain obligation
related to a right will be suspended until the end of the emergency.
→ Art. 4 ICCPR; Art. 15 ECHR; Art. 27AmCHR; The African Charter does not have a derogation regime.
Derogations are limited in duration and scope and there are many procedural requirements to be met and these
requirements are detailed under any relevant provision.
States are usually free to decide what an emergency represents for them and there’s no control on the state using
this derogation.

ABSOLUTE RIGHTS
These rights cannot be limited to pursue a legitimate aim, including the protection of fundamental rights of
other people; they cannot be derogated, not even in time of public emergency.
These rights cannot be limited nor derogated.
Absolute rights in the various conventions:
Absolute rights cannot be derogated nor limited.
ECHR ICCPR AmCHR

Art. 2 – Right to life (except in Art. 6 – Right to life Art. 4 – Right to life
respect of deaths resulting from
lawful acts of war)

Art. 3 – Prohibition of torture, Art. 7 – Freedom from torture and Art. 5 – Right to humane
inhuman or degrading treatment or other cruel, inhuman or degrading treatment
punishment treatment or punishment

Art.4 (Paragraph 1) – Prohibition Art. 8 (Paras. 1 and 2) – Freedom Art. 6 – Freedom from slavery
of slavery or servitude from slavery and servitude

Art. 7 – No punishment without Art. 15 – Prohibition against the Art. 9 – Freedom from ex post
law retrospective operation of criminal facto laws
laws

Art. 18 – Freedom of thought, Art. 12 – Freedom of conscience

conscience and religion and religion

Art. 11 – Freedom from Art. 3 – Right to juridical

imprisonment for inability to personality
fulfill a contractual obligation
Art. 17 – Rights of the family
Art. 16 – Right to recognition
before the law Art. 18 – Right to a name

Art. 19 – Rights of the child

Art. 20 – Right to nationality

Art. 23 – Right to participate in

government

+ judicial guarantees
essential for the protection
of such rights

Qualified rights (limitation may apply to these rights): the state needs to do a balance between the interests of
the individual and the public interest / interests of the state. They are those rights which, in their provision,
provide a space for the states: states can balance between the enjoyment of the rights by individuals and the
interests of the state.
Only as far as we are applying qualified rights, the margin of appreciation is a matter that comes into question:
the space of discretionality that the state enjoys in protecting human rights is present only when talking about
qualified rights.
Unqualified rights: no possibility to balance. They can be derogated in special occasions but do not include the
concept of margin of discretionality: there’s no space for the balancing done by states.
Presence of specific exceptions: they are situations in which a specific right is not applicable and in those
special situations individuals cannot claim violations of a certain right; however, specific exceptions do not
correspond to derogations.
 Limitation in ordinary Derogation in emergency Specific exceptions
times

Absolute rights (HR of NO NO YES / NO

absolute nature)

Qualified rights YES YES NO

NO: freedom of religion
(under ICCPR and
AmCHR)

Unqualified rights NO YES YES / NO

Article ECHR Right guaranteed Absolute, qualified, Specific exceptions

unqualified

2 Right to life Absolute Yes, in paragraph 2:

deprivation of life shall
not be regarded as
inflicted in contravention
of this Article when it
results from the use of
force which is no more
than absolutely
necessary

3 Prohibition of torture Absolute No

4 Prohibition of slavery Paragraph 1 → Absolute No

(para 1)

Prohibition of forced Paragraph 2 → Yes, in paragraph 3:

labour (para 2) Unqualified For the purpose of this
Article the term “forced
or compulsory labour”
shall not include

5 Right to liberty and Unqualified Yes, in paragraph 1:

security No one shall be deprived
of his liberty save in the
following cases: ….

6 Right to a fair trial Unqualified (the right to No

a public hearing can be
considered qualified)

7 No punishment without Absolute Yes, in paragraph 2:

law This Article shall not
(Nullum crimen / nulla prejudice the trial and
poena sine lege) punishment of any
person for any act or
omission which, at the
time when it was
committed, was criminal
according to the general
principles of law
recognised by civilised
nations.
→ This provision has an
 historical meaning:
reference to the
prosecution of
international crimes after
the WWII

8 Right to respect for Qualified

private and family life

9 Freedom of thought, Qualified

conscience and religion

10 Freedom of expression Qualified

11 Freedom of assembly Qualified

and association

12 Right to marry Qualified

13 Right to effective remedy Unqualified

ABSOLUTE AND QUALIFIED RIGHTS, ARTS. 3 AND 8 ECHR

Art. 3 simply states that no one shall be subjected to torture, inhuman or degrading treatment.
The prohibition of torture is a key element of any democratic society and it’s included in many HR treaties:
there are specific treaties, both at an international and regional level, that deal specifically with this prohibition.
This obligation is contained in various soft law documents and in specific international treaties
Prohibition of torture is considered a jus cogens norm, so a customary law norm that cannot be derogated by
treaties. It’s an absolute right that cannot be balanced with any other right or interest, not even in the so-called
“ticking bomb scenario”: this is a scenario where we have, for example, to torture someone in order to save
other lives, but under Article 3 this is not possible.
Not any ill treatment or infringement of physical or mental harm (which is detrimental to physical integrity) can
be considered a violation of Art. 3: according to the case law of the EU Court, only those treatments that
overcome a certain level of severity can be considered as a violation of the article. But how do I assess this
threshold? I should consider each specific situation in detail: e.g. a young man in good health may have less
implications than a vulnerable child or a sick person if put in a situation of serious distress.
This threshold of severity has to be assessed case by case, considering all the specific elements of a situation,
the context in which the ill treatment occurred and the personal conditions of the person who potentially
suffered a violation.
The level of severity is useful not only to understand which actions are covered by Art. 3, but also to
distinguish between prohibited and ill treatment:
- Degrading treatment/punishment: feelings of fear, anguish and inferiority capable of humiliating and
destabilizing (emotional aspects) → degrading treatment involves an emotional sphere and it may
happen without physical harassment or conduct;
- Inhuman treatment/ punishment: conduct that is featured by physical and/or psychological suffering
of a particular intensity (it may happen that we have an inhuman treatment even if there’s no physical
inhuman treatment, but just a psychological one);
- Torture: significant severity that may be both from a physical and psychological point of view (a
particularly severe form of inhuman treatment) and the difference between degrading treatment and
torture is that in the latter case torture is inflicted because of a specific purpose (obtaining information,
extorting a confession, inflicting punishment, intimidating someone) + deliberate infliction of such
treatment.
Examples of treatment or punishment held to be inhuman under Article 3 ECHR
● The applicant was threatened with torture while in police custody, with no ill treatment applied;
 ● The applicants’ homes and property were intentionally destroyed by security forces, forcing them to
leave their village;
● The applicant suffered uncertainty and apprehension over a prolonged period due to the disappearance
of his relative;
● The applicant witnessed the extrajudicial execution of several of his relatives and neighbours as well as
the authorities’ inadequate and inefficient response after the events;
● The applicant, a conscript suffering from health problems, was subjected to excessive level of physical
exercise imposed as punishment;
● The applicant was serving his life sentence for a long time in poor conditions and under a very
restrictive regime
Examples of treatment or punishment held to be degrading under Article 3 ECHR
● Judicial corporal punishment was inflicted on the applicant in primary school;
● The applicant was subjected to a strip search in an inappropriate manner, such as the making of
humiliating remarks;
● LGBTI activists were subject to vicious verbal abuse and random physical attacks by a mob of counter
demonstrators and the promised police protection was not provided in due time or adequately;
● As a result of the procrastination of the health professionals in providing access to genetic tests, the
applicant, who was pregnant, had had to endure six weeks of painful uncertainty concerning the health
of her fetus and, when she eventually obtained the results of the tests, it was already too late for her to
make an informed decision on whether to continue the pregnancy or to have recourse to a legal
abortion.
If we consider the case-law of the ECHR and its evolution of time, we discover that the notion of torture and
degrading treatment have changed through times: what was inhuman is now considered as a degrading
treatment; what was considered as a degrading treatment is nowadays considered as torture: the threshold, the
standard, is rising.

Prohibition of torture – Art. 3 ECHR: evolving standards

Ireland v. United Kingdom, 1978 Tomasi v. France, 1992

The five interrogation techniques used were: The five interrogation techniques used were: threats;
wall-standing; hooding; sleep deprivation; beatings; forced to stand naked in front of a window;
deprivation of water and food; subject to continuous no water, food, sleep; forced to stand-up for hours.
noise → a case of torture, even if it did not cause
→ for the Commission, it was torture; for the Court, long-term personal injury, but only seriously
it was ‘only’ inhuman treatment. psychological harm.
Prohibition of torture – state obligations
1- Negative obligations: avoid torture being committed by organs.
2- Positive obligations:
1) obligation to protect, in particular vulnerable persons;
2) obligations to prosecute it, so the need to have a law for preventive purposes;
3) procedural obligations, so effective investigations (ex officio, diligent, expedited process involving
victims).

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment
The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment, adopted by the
Council of Europe in 1987, offers complementary protection to that of Art. 3 ECHR: it establishes a monitoring
mechanism by an independent committee of experts, the Committee for the Prevention of Torture and Inhuman
or Degrading Treatment.
The Committee carries out its examinations by means of periodic or ad hoc visits to places of detention
(prisons, police stations, judicial psychiatric hospitals, etc.), reporting to the competent authorities the measures
to be taken to improve the conditions of detainees. It can also organize other surprise visits if the circumstances
seem to warrant them.

Art. 8 – right to respect for private and family life

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security, public
safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.”
There are four different spheres of personal autonomy that are included in Article 8.
→ first sphere home: physical space in which private and family life takes place (including working premises if
there’s a link with the development of your personal life in that working space); presence of effective and
continuous links between people and the place;
→ second sphere correspondence: the right aims to protect the confidentiality of communications; overlapping
with right of expression (art. 10), but here the focus is on means of communication, rather than contents (so the
freedom to express yourself).
→ third sphere private life: broad concept incapable of exhaustive definition; it covers the physical and
psychological integrity of a person and may embrace multiple aspects of the person’s personal and social
identity – how I perceive myself in relation with other people.
Those ill treatments that fall short to be qualified as a violation of Article 3 may be covered by Article 8: those
behaviors which are not so serious as to be declared inhuman/degrading treatment may still be considered a
violation to private life.
→ fourth sphere family life: marriage-based relationships; other forms of de facto families; biological kinship –
the notion of family life is an autonomous concept: whether or not ‘family life’ exists is essentially a question
of fact depending upon the real existence in practice of close personal ties.

Right to private and family life – State obligations

Negative obligations: the state must refrain from arbitrary interference.
Positive obligations: the State must take concrete measures to allow the enjoyment of the right with reference to
interpersonal relationships.

Activity - issues that may be relevant under Article 8

1- Physical, psychological or moral integrity = respect of human dignity and protection of the best interests of
children; protection of personal integrity of vulnerable people.
2- Privacy = right to develop interpersonal relationships; right to have a private social life.
3- Identity and autonomy = LGBTI marriages; right to adoption.

Abortion: controversial issue from an ethical pov, as well as surrogacy and euthanasia → abortion falls under
Art. 8 and sometimes under Article 3 too (the Court is very strict in assessing cases that involve abortion,
however it has identified a violation of arts. 3 and 8 whenever the abortion was legal under the national system,
but there were some impediments for the woman to effectively carry out abortion).
Surrogacy and euthanasia are extremely controversial: they are issues covered under Article 3; the position of
the ECHR in cases in which states do not guarantee the possibility of surrogacy and euthanasia would imply a
margin of appreciation of states in taking care of different interests and the general stance of the ECHR would
include a wide margin of appreciation.
Abortion: in Europe, in order to bring the Court to reduce the margin of appreciation of states, the European
consensus – so the fact that most states consider abortion legal under certain conditions – has to be applied;
however, in a famous case involving Ireland the ECHR judged that, based on the moral consensus of Ireland, it
was up to the state to prohibit the carrying out of a legal abortion, except for cases in which the woman’s life
would be put in danger.
Another famous case was decided by the HR Committee, established by the ICCPR, the case of Mellet v.
Ireland: the woman was forced to go to the UK to get abortion because the fetus was brainless and the fetus had
no chance to survive; however, the HR Committee declared that the decision of the state was an act of torture
against the fetus.
Then, in Ireland, after a change of perspective, the norm was modified and legal abortion is now possible in
more situations than before.
Environmental protection: always considered under Article 8, sometimes under Art. 3 too.

Do the following cases fall within the definition of private and/or family life developed in the case law of the
ECtHR and, if so, under what conditions?
- Relationship between two spouses separated for years pending family reunification
- de facto relationship between persons of different sexes
- de facto relationship between persons of the same sex
- relationship between father and child (legitimate filiation), after the separation of the parents and the
transfer of the father to another city
- birth mother and child given up for adoption
- adoptive mother and adopted child genetic ascendant (sperm donor) and child born from ART
- foster parents and child in temporary foster care

SCOPE OF HUMAN RIGHTS: THE NOTION OF POSITIVE OBLIGATIONS AND

THE HORIZONTAL EFFECT OF HR TREATIES
MATERIAL SCOPE OF HR OBLIGATIONS
What do states need to do in order to give effect to HR obligations? This is strictly linked to the notion of
positive obligations.
States accept to protect HR in these specific situations:
Art. 1 ECHR The High Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention.
Art. 2.1 ICCPR Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without
distinction of any kind,
Art. 1.1 ACHR The States Parties to this Convention undertake to respect the rights and freedoms recognized
herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and
freedoms, without any discrimination (…).
Art. 1.AfrCHPR The Member States of the Organisation of African Unity, parties to the present Charter shall
recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or
other measures to give effect to them.

Even if the formulation is different, the idea is that to give proper and effective value to HR and effective
protection, states are not just called to refrain from directly committing and violating HR, but they need to
ensure that HR are effectively enjoyed by individuals.

We may distinguish between positive and negative obligations:

1) positive = they require an action from the state, the intervention of the state; therefore, the violation will
result out as the inaction on the part of the national authorities;
2) negative = it requires the state from refraining to violate HR and the violation comes out as a result of
the infringement committed by the state.

Airey v. Ireland, 1979: she wanted to have judicial separation from her husband, however she was a
low-income person who couldn’t afford a lawyer for her process of divorce; she wasn’t able to receive a correct
protection by herself (she was not a lawyer so she couldn’t defend herself), so she renounced to judicial
separation; she presented a case before the ECHR claiming that, since there’s no possibility to have free consult
from lawyers, she had to renounce to go on with her process of separation. The Irish government defended
itself by saying that it hadn’t prohibited the separation per se and the ECHR affirmed that the possibility was
available to her, but her right was not effective enough: not having free legal aid prevented her to explore the
possibility of judicial separation and to exercise her right.

Positive obligations: contents

HR Committee - General Comment n. 31 The Nature of the General Legal Obligation Imposed on States
Parties to the Covenant
There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give
rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take
appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm (…).

There might be positive obligations linked to the violation of HR that may be produced directly by a violation
of the state or by individuals: in both cases the state has to do something to prevent the violation and something
that occurs after the violation, so an action to address and repair the violation.
Apart from the violation per se, the state may have responsibilities for something that happened before or after
the violation, because the state has the duty to prevent, but also the duty to provide remedies against violations.
Duty to prevent: most of the positive obligations apply to any kind of provision, especially to Arts. 2 and 3
ECHR – e.g. torture: it may be attributable to public officials, so directly to the state, or to individuals: the state
has, in any case, dealing with the prohibition of torture, a duty to prevent and a duty to provide remedes.
The duty to prevent includes the need of applying a normative framework, that means prohibiting some
violations under criminal law, to provide operational and protection measures and to apply punishment as an
element of deterrence → e.g. a child victim of abuses within his family:
1. regulatory framework (legal structure that provides a response for something that shouldn’t happen) =
statement of children abused as a criminal offense;
2. operational measure = provide guidance to teachers to report violences and abuses suffered by
children, so that social workers may intervene for the protection of the child;
3. punishment as deterrence.
Once the violation has occurred, even if the state is not directly responsible, it should provide for remedies.
We usually refer to the fact that positive obligations apply to respond to violations committed by individuals to
the so-called horizontal effect of HR treaties: this doesn’t mean that HR treaties are binding upon individuals,
but the fact that the state has to do something to make HR effective within intraindividual relations expands the
scope of HR to cover private relations too.

HR Committee - General Comment n. 31 The Nature of the General Legal Obligation Imposed on States
Parties to the Covenant
[The obligations to respect and to ensure human rights] are binding on States [Parties] and do not, as such,
have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute
for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights
will only be fully discharged if individuals are protected by the State, not just against violations of Covenant
rights by its agents, but also against acts committed by private persons or entities that would impair the
enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities.
→ this doesn’t amount to a horizontal application of HR.
Inter-American Court of Human Rights - Case of Velásquez-Rodríguez v. Honduras, 1988
§164. Article 1 (1) is essential in determining whether a violation of the human rights recognized by the
Convention can be imputed to a State Party. In effect, that article charges the States Parties with the
fundamental duty to respect and guarantee the rights recognized in the Convention. Any impairment of those
rights which can be attributed under the rules of international law to the action or omission of any public
authority constitutes an act imputable to the State, which assumes responsibility in the terms provided by the
Convention. §166. The second obligation of the States Parties is to "ensure" the free and full exercise of the
rights recognized by the Convention to every person subject to its jurisdiction. (…) As a consequence of this
obligation, the States must prevent, investigate and punish any violation of the rights recognized by the
Convention and, moreover, if possible attempt to restore the right violated and provide compensation as
warranted for damages resulting from the violation.
§174. The State has a legal duty to take reasonable steps to prevent human rights violations and to use the
means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to
identify those responsible, to impose the appropriate punishment and to ensure the victim adequate
compensation.
§175. This duty to prevent includes all those means of a legal, political, administrative and cultural nature that
promote the protection of human rights and ensure that any violations are considered and treated as illegal
acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the
victims for damages. It is not possible to make a detailed list of all such measures, since they vary with the law
and the conditions of each State Party. (…), subjecting a person to official, repressive bodies that practice
torture and assassination with impunity is itself a breach of the duty to prevent violations of the rights to life
and physical integrity of the person, even if that particular person is not tortured or assassinated, or if those
facts cannot be proven in a concrete case.
§176. The State is obligated to investigate every situation involving a violation of the rights protected by the
Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full
enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to
ensure the free and full exercise of those rights to the persons within its jurisdiction. (…)
§177. In certain circumstances, it may be difficult to investigate acts that violate an individual's rights. The
duty to investigate(…) must be undertaken in a serious manner and not as a mere formality preordained to
be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not
as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer
of proof, without an effective search for the truth by the government.

→ the Court declared that the disappearance happened because he was kidnapped by military forces; therefore,
it found out a violation of a number of articles of the AmConvention and these violations were considered as
directly committed by agents of the state (in this case the state failed to accomplish its negative obligations).
Then, the Court also considered the second dimension, so the positive obligations: the mere fact that, within a
system, an individual may be subjected to the authority of an organ which usually applies torture arbitrarily and
remains unpunished, even if that individual is not tortured, this can be considered a violation to the duty to
prevent – subjecting a person to judicial oppression bodies is in itself a violation to the duty to prevent, even if
the person is not effectively tortured or assassined and even if the torture cannot be seen and proved.
→ Investigation implies a qualitative investigation, that means that it should be undertaken in a serious manner,
not as a mere formality and it must aim to find out who is responsible for the violation.
Obligation of means: the state undertakes to do whatever it can to perform the obligation, but without ensuring
that a specific result will be obtained.
The obligation to get results means that states should do their best to fulfill their obligations without the
possibility to assure that certain results will be achieved.
Obligation of results: the state undertakes to ensure the achievement of a specific result; providing proper
normative framework (criminalization, proper procedures, operational measures): the state undertakes an
obligation to get a result.
Obligation of means: the state undertakes to do whatever it can to perform the obligation, but without ensuring
that a specific result will be obtained. The state has to apply due diligence necessary to perform a certain
obligation.
→ Duty to prevent: obligation of results or of means?
- having a regulatory framework is an obligation of result: a good law is a law that takes into
consideration the gravity of the action, that permits no excuse → there may be different technicalities
that ,ale a good law prohibiting torture;
- operational measures is an obligation of means because there has to be a specific framework, so also an
obligation of result: we need to have a system, so something that is there to take care of the situation,
but also a framework that reports;
→ Duty to provide remedies: obligation of results or of means?
- investigation: obligation of means, because there might be a number of issues that lead to the
impossibility of understanding who the perpetrator was.

Positive obligations and due diligence

Due diligence: the diligence reasonably expected from, and ordinarily exercised by, a subject to satisfy a legal
requirement or discharge an obligation; it implies a certain standard of conduct to be assessed according to four
main elements:
1) reasonableness → the state is only required to take reasonable measures and it necessarily presupposes
a context-specific assessment: no in abstracto and ex ante determination can be made as to what is
reasonable to expect from the state;
2) degree of control → the more control the state has over the actors, the higher expectations on the state
in terms of measures taken: the control factor can be linked to state capacities and resources;
3) degree of risk → the measures expected from the state have to be appropriate and proportionate to the
degree of risk of harm: the higher the risk for the victim, the more demanding obligations of diligence
can be imposed on the state (context-specific assessment);
4) knowledge about the risk of harm → the state can be expected to take measures only when it knows or
should have known about the harm or the risk of harm.
The standard allows a wide margin of flexibility as to the substance of conduct (i.e. the measures).
No assessment in advance can be made on whether the state conduct complies with the standard of due
diligence.

OSMAN V. UK
- he had an obsession with one of his pupils and his name was not his original one, but it was taken from
another pupil on whom he had an obsession in the past;
- school authorities were very cautious in trying to contain the danger (for example, he was transferred to
another school), but the records of the police were lacking some fundamental elements;
- ECHR: the Court didn’t recognize the violation of Art. 2 and created the Osman test.
- whenever we are measuring the compliance of a state with protection measures, this shouldn’t provide for
a disproportionate burden on the authorities:
- requirements of Osman test: states authorities have to be aware or should have been aware of the
situation and that there’s the risk of an immediate and irreparable risk + however did not take effective
measures to avoid the happening of the imminent risk;
- despite that Paget-Lewis represented a danger, still there was no clear risk of putting Ahmet’s life in danger
because no sexual or physical violence in general was ever made directly against the pupil

→ Bearing in mind the difficulties involved in policing modern societies, the unpredictability of human
conduct and the operational choices which must be made in terms of priorities and resources, such an
obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on
the authorities.
Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take
operational measures to prevent that risk from materializing. (…) it must be established to its satisfaction that
the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the
life of an identified individual or individuals from the criminal acts of a third party and that they failed to
take measures within the scope of their powers which, judged reasonably, might have been expected to avoid
that risk.

Talpis v. Italy, 2017

It’s a case dealing with domestic violence decided in 2017.
The ECHR considered the violence to which Talpis was subjected, resulting in the murder of her son and in her
attempted murder. Ms. Talpis denounced more than once her husband, she complained to the police that her
husband was an alcoholic. The evening of the last aggression she called the police because he was drunk and
aggressive: he was taken to hospital in a state of intoxication, but he was discharged and asked for his ID while
walking on the street. Once back home he attacked the wife with a knife and killed the son who was trying to
protect the mother.
He was condemned to life-imprisonment and Ms. Talpis presented a claim before the Court claiming that the
Italian authorities failed to provide operational measures to protect her and her son.
By properly applying the Osmen test, the Court stated that the real and immediate risk must be assessed taking
into consideration the context of domestic violence, which is featured by a typical recurrence of episodes of
violence.

THE NOTION OF JURISDICTION AND THE EXTRATERRITORIAL

APPLICATION OF HR TREATIES
Extra-territoriality of HR treaties: states are obliged to apply HR obligations also in geographical areas that are
outside the member states.
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful
Acts, 2001
Article 1- Responsibility of a State for its internationally wrongful acts Every internationally wrongful act of a
State entails the international responsibility of that State.
Article 2 - Elements of an internationally wrongful act of a State There is an internationally wrongful act of a
State when conduct consisting of an action or omission: (a) is attributable to the State under international law;
and (b) constitutes a breach of an international obligation of the State.
Subjective element of the internationally wrongful act
Attribution of an action or omission to the State:
1. Acts of organs of state (de iure and de facto organs)
2. Acts of persons under the direction or control of the State (‘effective control’ v. ‘overall control’)
3. Acts of private individuals acknowledged and adopted by the State as its own
4. Exceptional hypotheses (in the absence or default of the official authorities)
Attribution: the purpose of attribution is to establish that an act emanates from a certain state for the purposes of
responsibility.
Under HR Law, States are required to protect human rights of any individual from violations committed by
other private persons.
Horizontal effect of HR treaties = positive obligations consisting primarily in the duties to prevent and to
punish actions by private actors which violate human rights of other individuals) → this is not technically an
issue of attribution.
Attribution lets us focus on who committed an action, generally individuals. Are individuals able to transfer the
action on States’ organs? Yes, but we still need to verify whether the action consists of a breach of international
law.

Objective element of the internationally wrongful act

The objective element is the effective breach, violation of an international norm contained in a treaty.
To decide whether a conduct is a breach of international law, we first have to understand whether there’s an
international obligation: if we have a conduct which is against the Treaty, we need to verify whether the state
was bound by that treaty.
Is that specific situation (the situation in which the violation occurred) under the jurisdiction of the state? Does
the situation occurred falls within sovereign powers of the state? Was the state supposed to apply HR treaties?
A certain conduct (act of omission) is considered in breach of an international obligation if:
1. An international obligation does exist, and it is binding upon that State when the conduct takes place
(e.g., a treaty in force for that State at the relevant time)
2. The ‘situation’ in which the conduct takes place falls within the State’s jurisdiction, i.e. the reach of a
State’s sovereign powers. The State can be held responsible if a violation occurred where it was
exercising its sovereign powers → jurisdiction is the definition of the boundaries of sovereign states.
Therefore, while attribution is related to a subjective element, jurisdiction is one of the elements that we
consider while assessing the objective element of the internationally wrongful act, so the breach of the
obligation.
Usually states exercise their sovereign power over their state, however it may happen that they exercise some
sovereign powers outside their territory and they, in this regard, apply extra-territorial jurisdiction. In any case,
the state exercises its sovereign power outside its territorial jurisdiction, so it has extra-territorial jurisdiction
(e.g. military organs in another state): in this case we talk about extraterritorial application of HR treaties.
We have to define whether the violation occurred within the sovereign powers of a state. The jurisdiction helps
us in understanding if the state is exercising its sovereign powers in that situation.

Attribution and jurisdiction

Was the state supposed to respect a specific obligation in a specific situation?

ECHR: Art. 1) The High Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention.
ICCPR: Art. 2.1) Each State Party to the present Covenant undertakes to respect and to ensure the rights
recognized to all individuals within its territory and subject to its jurisdiction …
ICESCR: Art. 2 1) Each State Party to the present Covenant undertakes to take steps, individually and
through international assistance and co-operation, especially economic and technical, to the maximum of its
available resources, with a view to achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the adoption of legislative measures.
ACHR: Art. 1) The States Parties to this Convention undertake to respect the rights and freedoms recognized
herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and
freedoms, without any discrimination (…).
AfrCHPR: Art. 1) The Member States of the Organisation of African Unity, parties to the present Charter
shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative
or other measures to give effect to them.
Extraterritorial jurisdiction and HR treaties
Under international law, the jurisdiction of a state is linked with the territory. Thanks to the case law of the HR
bodies we can recognize that there has been a development in the notion of jurisdiction, covering also situations
that occurred outside the territory of a specific state: this event is called extraterritorial jurisdiction.
A state has jurisdiction over its own territory, but it may also exercise sovereign powers outside its own
boundaries = extraterritorial jurisdiction. The development of the idea of an extraterritorial jurisdiction implies
the extraterritorial application of HR treaties.
To be distinguished from intra-territorial acts with extra-territorial consequences.
Under international law, ‘jurisdiction’ is basically a 'territorial' concept. However, the concept has been
developed in the case-law of regional Courts and monitoring bodies.

Example of something with extraterritorial consequences: e.g. extradition.

If the state exercises its jurisdiction even outside its boundaries, in that situation it may be called to apply
treaties that are normally supposed to be applied within its boundaries.
Even if jurisdiction is primarily a territorial notion (because jurisdiction per se implies a control over the
territory), the case-law of HR bodies and of courts let us to enlarge this definition, including not only control
over the territory, but also control over persons.

ECHR CASE-LAW
Extraterritorial jurisdiction is an autonomous concept and it has mainly two phases of its evolution:
1- exercise of authority and control over the victim;
2- exercise of authority and control over the victim.
Loizidou v. Turkey 1996 – control over the territory
On 22 July 1989 a Cypriot national, Mrs. Loizidou, filed an application against Turkey to the European Court
of Human Rights. Mrs. Loizidou had been forced out of her home during Turkey’s invasion of Cyprus in 1974
along with around 200,000 other Greek-Cypriots: she was forced to leave everything and it was impossible for
her to come back to her house.
During more than 20 years, she made a number of attempts to return to her home but was denied entry into the
Turkish occupied part of Cyprus, Turkish Republic of Northern Cyprus (TRNC), by the Turkish army.
The Turkish government defended itself and affirmed that it had no jurisdiction over the territory which was
under another subject of international law, namely the Turkish Republic of Northern Cyprus, but the Court
considered that the TRNC was acting in total dependence from Turkey and had to be considered a de facto
organ of that State, so it was working as a longa manu of Turkey.
Any State party must recognise the fundamental rights and freedoms enshrined in the ECHR also to
individuals who are in a territory outside its national borders over which it exercises effective control.
(Loizidou v. Turkey, 1996)
Deciding otherwise would lead to a vacuum in the European human rights protection system (Cyprus v. Turkey,
2001). Both Cyprus and Turkey were party to the ECHR: not giving the possibility to Cyprus to lament the
invasion of Turkey would have meant having a territory in which the protection that should be given by the
Convention was not effective.
→ What happened was fully attributable to Turkey: Turkey was exercising control over the territory of Cyprus.

Bankovic and others v. Belgium and others, 2001 – control over the territory
The application was filed by a number of survivors and family members of the victims of the aerial
bombardment by NATO forces on Belgrade Radio Television station during the Kosovo war.
The applicants complain about the bombing of the Belgrade Radio Television station by NATO forces and they
invoke the following provisions of the Convention: Article 2 (the right to life), Article 10 (freedom of
expression) and Article 13 (the right to an effective remedy), lamenting this violation as being carried out by
the member states party to the NATO forces.
The Governments dispute the admissibility of the case. They mainly contend that the application is
incompatible ratione personae with the provisions of the Convention because the applicants did not fall within
the jurisdiction of the respondent States within the meaning of Article 1 of the Convention. [...] The applicants
were not under the jurisdiction of Belgium and of the other states.
The control exercised over the airspace above Serbian territory is not sufficient to establish ‘jurisdiction’. In
this case, the failure to recognise the jurisdiction of the NATO member states would not have created a vacuum,
since Serbia was not a member of the CoE, and the ECHR applied only to state parties.
→ It’s different from the situation of Loizidou v. Turkey: no territorial paradigm may be applied because the
control exercised over the airspace of Serbia was not sufficient to establish jurisdiction; furthermore, Serbia at
that time was not a state party to the Convention: no need to guarantee the application of the Convention.
This judgment makes it useless to have states obliged to respect the Convention if, then, they can decide not to
respect it over the territory of another state: many criticisms to this judgment.
Starting from this case, a process of enlargement of perspectives started.

Issa v. Turkey, 2003 – authority and control over individuals

Turkey was accused of breaches of ECHR rights in connection with the deaths of Iraqi shepherds who had
allegedly been killed by Turkish soldiers in northern Iraq. The applicants (family members of the victims)
maintained that Turkey’s ground operations in northern Iraq at the time (when they were deploying more than
35,000 ground troops backed by tanks, helicopters and F-16 fighter aircraft) were sufficient to constitute
‘effective overall control’ (within the meaning of the Loizidou judgment).
Given the degree of control enjoyed by the Turkish armed forces of the area, they argued that the Turkish
government had de facto authority over northern Iraq and its inhabitants, as opposed to de jure sovereignty.
Article 1 of the Convention cannot be interpreted to allow a State party to perpetrate violations of the
Convention on the territory of the other state which it could not perpetrate on its own territory.
→ Issue: military forces in a third country conducting an activity there; after their activity people are found
dead and supposed to have been killed by Turkish authorities.
In this case there’s a presence and a sort of control over the territory, whereas in Ocalan there’s only the control
over a person.

Öcalan v. Turkey, 2003 – authority and control over individuals

The applicant was the leader of the PKK (Workers’ Party of Kurdistan), considered to be a terrorist
organization by the Turkish Government. When he was expelled from Syria he sought political asylum in
several countries before being arrested in Kenya by Turkish authorities and detained in Turkey. The applicant
had been arrested by members of the Turkish security forces inside a Turkish-registered aircraft in the
international zone at Nairobi Airport.
Once in Turkey, his access to legal assistance was restricted and his meetings with lawyers monitored by
Turkish authorities. A military judge made up the panel of the national court which tried him for the majority of
his trial. He was sentenced to the death penalty and his appeal failed. However, a change in Turkish law with
regard to the death penalty meant his sentence was then commuted to a life sentence.
Individuals who suffer the effects of acts performed by a state outside its territory may be subject to its
jurisdiction since the state exercised a form of legal authority over them.
→ Issue: whether, since the very beginning, there was the jurisdiction of Turkey applying. Can we consider
The Court stated that even if states do not exercise control over the territory, the mere fact that it is exercising
control over a person makes the jurisdiction being present: the jurisdiction arises when Ocalan was delivered to
the Intelligent Forces in the international space of the Kenyan airport.

Al-Skeini and others v. UK, 2011 – authority and control over individuals
In 2003 the United States and the United Kingdom were occupying powers in Iraq. During the occupation of
Iraq, the United Kingdom had command of the military division – Multinational Division (South East) – which
included the province of Al-Basra. The applicants were close relatives of six Iraqi nationals who were and
killed inside and outside the military base of Al-Basra, however investigations had been carried out by UK
authorities only for events that occurred inside the military base.
The Court held that the United Kingdom had exercised both de jure and de facto control over both Iraqi
territory and the victims of the beating and had therefore been bound by its obligations under the Convention.
→ Para. 136 “(…) the Court’s case-law demonstrates that, in certain circumstances, the use of force by a
State’s agents operating outside its territory may bring the individual brought under the control of the State’s
authorities into the State’s Article 1 jurisdiction. (…) What is decisive in such cases is the exercise of physical
power and control over the person in question”
→ Here there are sovereign powers exercised over the territory of Iraq. The issue is about a positive obligation
related to proper investigations.
The Court said that it’s clear that the UK was exercising control over the territory and that it was an occupying
power and, for the first time, the notion of jurisdiction as implying control over a person was codified.
It’s true that the UK was exercising control over the territory too, but the key aspect is that victims were under
the physical power and control of the UK.
From territorial sovereignty and control to control over people, over victims!
The person in question is the victim because, as long as the state may control a person who is committing HR
violations, the issue is one of attribution: what is committed by a person is attributable to the state.

Hirsi Jamaa c. Italia, 2012 – authority and control over individuals

Migrants intercepted on the high seas and brought back to Libya by Italian coast guard vessels.
In Libya they suffered ill-treatments and many violations of HR. Some of them were able to reach Italy after
some years. They lamented the violation of art. 3, 13 ECHR and 4 Prot. N. IV.
The government affirmed before the ECtHR that the Italian officers who rescued the migrants were carrying out
a rescue operation at sea, not a police action; the intervention took place in international waters and therefore
outside Italian territory.
The jurisdiction of the flag state shall apply to the military vessel on the high seas even if it was a rescue
operation and not a police operation. In any event, between the time when the migrants were received on board
the Italian ships and the moment when they were handed over to the Libyan authorities in Tripoli, the Italian
authorities exercised de facto control over them which makes the Italian state responsible for any violation of
the rights enshrined in the European Convention.
Once those applicants presented the case, the government stated that at first the officers were not doing a police
operation but rescuing people at risk and the intervention took place in international waters: the Convention
does not apply.
→ The Court decided that the jurisdiction of flag state should apply also in rescue operations and that, apart
from noticing that the jurisdiction of the flag state at sea is always applicable whenever the state is conducting
some activities in high seas, between the time in which the migrants were received on board and the moment in
which they were given to Libyan authorities, they were exercised by the Italian authorities → Italy responsible
for any violation that happened to those migrants: the Convention is applicable!

ICESCR CASE-LAW
ICESCR provides a territorial definition of extraterritorialy jurisdiction.
ICJ Advisory Opinion Legal consequences of the construction of a wall in the occupied Palestinian
territory
112. The International Covenant on Economic, Social and Cultural Rights contains no provision on its scope of
application. This may be explicable by the fact that this Covenant guarantees rights which are essentially
territorial. However, it is not to be excluded that it applies both to territories over which a State party has
sovereignty and to those over which that State exercises territorial jurisdiction.
A crucial aspect of the international scope of the ICESCR is the broader meaning of the notion of international
cooperation and assistance.

ICCPR CASE-LAW
General Comment No. 31 - The nature of the general legal obligation imposed on States Parties to the
Covenant
States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all
persons who may be within their territory and to all persons subject to their jurisdiction. This means that a
State party must respect and ensure the rights laid down in the Covenant to anyone within the power or
effective control of that State Party, even if not situated within the territory of the State Party. (…) This
principle also applies to those within the power or effective control of the forces of a State Party acting
outside its territory, regardless of the circumstances in which such power or effective control was obtained,
such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or
peace-enforcement operation.
→ Power and control are always key elements.

Human Rights Committee S.A. et al. c. Italia

Covenant on Civil and Political Rights: applied in this case.
Shipwreck and drowning of more than 200 people in the high seas of the Mediterranean Sea. The vessel in
distress contacted the Italian Maritime Rescue Coordination Centre at 11:00 and 12:26. Italian authorities had
forwarded the call to Malta because the shipwreck occurred in a SAR zone of Maltese competence. Malta did
nothing. Despite the presence of an Italian ship not too far from the boat in distress, the Italian authorities
stalled for a long time, before authorizing the rescue intervention (the ship arrived at 18.00).
The survivors presented a case before the HR committee both against Malta and Italy.
SAR zone = A portion of the sea within which a State assumes the task of monitoring ship traffic and
intervening, coordinating rescues, in the event of danger. It’s a definition established by the International
Convention on Maritime Search and Rescue.
According to the applicants, the Maltese authorities had failed to intervene despite having a legal obligation to
provide assistance; the Italian authorities had unduly delayed their intervention, even though they had the
material possibility of saving the lives of the shipwrecked people.
- Application against Malta: inadmissible (domestic remedies had not been exhausted) → Malta failed
to intervene even if it had jurisdiction;
- Application against Italy admissible; violation of art. 6 § 1 ICCPR (right to life) and art. 2 § 3 a)
ICCPR (right to an effective domestic remedy) due to the delay in the rescue operations and in the
conduct of the investigation of the incident → Italy didn’t intervene and stood waiting for Malta to act
→ Italy is responsible for what happened.
→ The accident occurred in international waters, more precisely in a SAR zone pertaining to Malta, but the
Court considered the jurisdiction of Italy as existing: the fact that Italy was aware of the danger makes it have
jurisdiction over the case.
In this case there’s also an omission, which may represent a violation of human rights, because in the
Convention there’s a duty to positive obligations, but the reason why Italy had to do something despite the SAR
zone is, first of all, the fact that there was an Italian vessel near the migrants’ ship and the fact that Italian
authorities were already aware of the potential risks.
The particular circumstances of the case, in that specific situation, brought special relations of dependency
between individuals in distress and Italy, coming from factual elements (initial contact, the Italian ship close)
and from the fact that Italy was called to provide support to a vessel at risk.
The Committee considers that in the particular circumstances of the case, a special relationship of
dependency had been established between the individuals on the vessel in distress and Italy. This
relationship comprised of:
- factual element in particular, the initial contact made by the vessel in distress with italian authorities,
the close proximity of the Italian ship to the vessel in distress (people in danger could have had hope in
the help of Italy)
- relevant legal obligations bearing upon Italy under the international law of the sea, including a duty to
respond in a reasonable manner to calls of distress pursuant to SOLAS Regulations and a duty to
appropriately cooperate with other states undertaking rescue operations pursuant to the International
Convention on Maritime Search and Rescue.
As a result, the Committee considers that the individuals on the vessel in distress were directly affected by the
decisions taken by the Italian authorities in a manner that was reasonably foreseeable in light of the relevant
legal obligations of Italy, and that they were thus subject to Italy’s jurisdiction for the purposes of the Covenant,
notwithstanding the fact that they were within the Maltese search and rescue region and thus also subject
concurrently to the jurisdiction of Malta.
→ attribution and jurisdiction are different, but whatever is attributed to the state makes the state responsible:
overlapping of the two notions.

ACHR CASE-LAW
Coard et al. v. United States, 1999
On 19 October 1983: the Prime Minister of Grenada, Maurice Bishop, and a number of associates were
murdered pursuant because of a violent overthrow. On October 25, 1983, United States and Caribbean armed
forces invaded Grenada, deposing the revolutionary government. During the first days of the military operation,
a number of individuals, including the seventeen petitioners were arrested and detained.
Under certain circumstances, jurisdiction can be established through conduct with an extraterritorial locus
where the person concerned is present in the territory of one state, but subject to the control of another state –
usually through the acts of the latter’s agents abroad.

Alejandre v. Cuba v. United States, 1999

Two unarmed American civilian pilots were shot down and killed by the Cuban Air Force while flying in
international airspace. The pilots, and the location where they died, had no connection to Cuba through
geography or citizenship.
→ (…) when agents of a state, whether military or civilian, exercise power and authority over persons outside
national territory, the state's obligation to respect human rights continues - in this case the rights enshrined in
the American Declaration. The Commission finds conclusive evidence that agents of the Cuban State,
although outside their territory, placed the civilian pilots (…) under their authority.
→ Was Cuba responsible under the American Convention? Enlargement of the perspective: not over the
territory of any state, but the mere fact that Cuban forces killed people made those people within the authority
(flowing distinction between attribution and jurisdiction).

AFRCHPR CASE-LAW
General Comment No. 3 The Right To Life (Article 4)
State shall respect the right to life of individuals outside its territory. A State also has certain obligations to
protect the right to life of such individuals. The nature of these obligations depends for instance on the extent
that the State has jurisdiction or otherwise exercises effective authority, power, or control over either the
perpetrator or the victim (or the victim’s rights), or exercises effective control over the territory on which the
victim’s rights are affected, or whether the State engages in conduct which could reasonably be foreseen to
result in an unlawful deprivation of life. In any event, customary international law prohibits, without territorial
limitation, arbitrary deprivation of life.

(IN)VISIBLE BODIES: DISABILITY AND SEXUALITY BETWEEN ABLEISM AND

HUMAN RIGHTS
Terminology: “people with disabilities” and “disabled people”.
Social model of disability: it helps in understanding how disability can be defined → we are used to understand
disability in pejorative terms: the social model suggests us an alternative view on disability:
1. construction of the norm = according to Olivier and Filkenstein, scholars and activists, the social model
of disability is a tool to transform the view that societies have in societies; disability does not come
from our own bodies or minds, but it comes from society itself: we are used to understand disability as
something inherently connected to the way our body and mind function, we understand disability as
something which does not function, but the social model challenges this view of disability by saying
that disability is created as a form of oppressive relationship in our societies, how?
- creating a normal subject: the creation of this dichotomy between what is normal and what is
pathological – according to these scholars, medical expertises have a huge role in drawing
these boundaries → relationship between being a normal person and the possibility to properly
contribute to society: in this view, disability is casted as a diminished form of being a human, a
person → this view is coming from the individual / medical model, while, according to these
theorists, disability is a relation of disabled men, meaning that it’s society that disabled people
because if you do not have certain characteristics, that are the ones considered to be normal,
then you fit in society, but if society provides for normal and abnormal requirements, someone
does not fit in society;
If we describe disability as a relation of oppression, people with disability have concrete tools and do not have
to fight against them, but against injustice. Disability is not shaped in order to accommodate different kinds of
bodies and minds: disability is a social product.
In this social model theory, the social relationship of disabled men is different from impairment.
The social model was fundamental to let disabled people be part of a social group and be able to claim their
rights; however, some theories started to discuss that this theory was erasing the body experiences of people
with disabilities: disability is not an illness or something inherently negative, but we cannot deny that disability
is a form of embodiment: the social model disability misses its point.
Disability is an umbrella term: it includes physical, mental, health conditions which meet disabling social
structures, environments, organizations and barriers. In the umbrella of disabilities there are many different
conditions and experiences: invisible or visible disabilities, acquired or from birth disabilities, physical or
psycho-scoial disabilities, permanent/temporary/degenerative disabilities, chronic or rare diseases.
Disability does not come as an isolated experience, but it intersects with other experiences which might result
in discrimination in our society.
Another criticism is that the definition coming from the social model was narrow: it reflects the experience of
people with disabilities only in relation to specific subjects.

ABLEISM
The term ableism refers to a network of beliefs, processes and practices that produces a particular kind of self
and body that is projected as the perfect, species-typical and therefore essential and fully human. Disability is
then cast as a diminished state of being human.
Ableism is therefore a form of discrimination.
Even sexuality in our societies and cultures is strictly regulated and defined according to what is considered
normal and what is not: some behaviors were not considered normal (e.g. homosexuality was considered a
disease since the end of the 1800s).
During the 19th century someone started to investigate sexuality as a possible source of discrimination and as
something that we do collectively, not something that we are given.

SEXUALITY AND HUMAN RIGHTS

There’s no right to sexuality or a new set of rights on that: when talking about sexuality, there are many HR at
stake.
Sexuality cannot be considered as a private matter, but this does not mean that we should give up on the right to
private life.
Nowadays there’a a growing interest towards the field of sexuality, however the issue is not addressed in a
comprehensive way.